Shaw v MIMA B99/2002 [2003] HCATrans 783 (17 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B99 of 2002

B e t w e e n -

JASON SHAW

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

GLEESON CJ

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 17 JUNE 2003, AT 10.20 AM

Copyright in the High Court of Australia

MR S.J. HAMLYN-HARRIS: If it please the Court, I appear for the applicant. (instructed by South Brisbane Immigration and Community Legal Service Inc)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with my learned friends, MS M.N. ALLARS and MR B.D. O'DONNELL, for the respondent. (instructed by Australian Government Solicitors)

GLEESON CJ: Mr Hamlyn-Harris and Mr Solicitor, Justice Callinan is indisposed this morning but I understand that the parties are agreeable to his participating in the matter and dealing with it on the written submissions and on a reading of the transcript.

MR HAMLYN-HARRIS: That is so, your Honour.

GLEESON CJ: Yes, Mr Hamlyn-Harris.

MR HAMLYN-HARRIS: If it please the Court, I propose to begin with the issue of the aliens power. This application concerns a decision by the Minister to cancel a visa but the effect of that cancellation is that by virtue of other provisions of the Migration Act 1986 the applicant can be removed from Australia, so it is not within the power of the Commonwealth unless it is supported by some head of power.

In relation to the aliens power, the issue is whether the applicant was an alien as at the date of the decision to cancel his visa, which was 17 July 2001. The starting point of my submissions is that British subjects were not aliens at the time of Federation and yet by the end of the 20^th century, at least generally speaking, British subjects were regarded as aliens in Australia. So that at some stage in between those two times a change has occurred. It seems to be generally accepted that it has occurred by means of an evolutionary process, that is by progression of events rather than by any single defining event such as a formal change to the Constitution.

So, in my submission, the issue therefore is when that evolutionary process was complete or when that evolutionary process should be regarded as being complete, accepting that as an evolutionary process there are no clear guidelines or, as his Honour Justice Callinan said in Sue v Hill, there is no destination markers.

KIRBY J: Justice Callinan said that ultimately it was when this Court said so.

MR HAMLYN-HARRIS: Yes.

KIRBY J: That was a little bit of Realpolitik on his Honour's part that may face the reality. We do not have in this case to define the precise moment, do we? We just have to concentrate on your client's case and decide whether any rule emerging from Patterson, which is the latest authority of the Court, provides a basis for upholding your submission as at the dates that are critical to your client.

MR HAMLYN-HARRIS: Yes, with respect, that is so, your Honour. It is not necessary for the Court to define the end of the evolutionary process, unless it is necessary for the particular case. The particular issue which this case presents is the fact that the applicant arrived in Australia after the enactment of the Royal Style and Titles Act in 1973, but well before the amendments to the Migration Act and well before the Australia Act in 1986.

KIRBY J: They were amendments of 1984, were they not, coming into effect in 1987, is that right?

MR HAMLYN-HARRIS: That is correct, your Honour. They were amendments passed in 1984, which came into effect on 1 May 1987, and the significance of those amendments is that the non-alien status of British subjects under the Migration Act was removed as of that date.

KIRBY J: The Minister simply will not give up; he will keep coming back here until we get a majority that is agreed not only on the outcome, but on a binding rule. We will just have to sit here while the Minister comes back over and over again, hoping that some change might lead to a withdrawal from the overruling of Nolan, which was absolutely clear from the decision in Patterson.

MR HAMLYN-HARRIS: That is my respectful submission, your Honour. Your Honours, I made the point that the applicant's arrival was between the Royal Style and Titles Act and the Australia Act and also the amendments that came into effect to the Migration Act in 1987. There does not appear to be any other events of particular significance between 1973 and 1986, and it is for that reason that in my written submissions I have made particular reference to the significance, in my submission, of the Australia Act.

KIRBY J: I am afraid I have to tell you that is where you lost me because, as far as I am concerned, I do not see how the Australia Act 1986 , an act either of the United Kingdom Parliament or of the Australian Parliament, has the slightest power to alter the Australian Constitution, that power belonging to the people as electors.

MR HAMLYN-HARRIS: Yes. Well, your Honour - - -

KIRBY J: If by 1986 Australia had become an independent country, it was no business of the Parliament of the United Kingdom to be intermeddling in our constitutional affairs; and if it had not, even by that principle, by 1986 the United Kingdom Parliament, in my view, had no right to intervene in our Constitution.

MR HAMLYN-HARRIS: Well, your Honour, in my submission, the Australia Act (Cth) is probably an example of the law following the facts but, nevertheless, in my submission, it is significant because it is the formal termination of the remaining constitutional links between the United Kingdom and Australia.

I should say, your Honours, that my submissions are not dependent on my argument in relation to the Australia Act 1986 being accepted because my primary submission is that the significant event was the coming into effect of the 1984 amendments to the Migration Act on 1 May 1987 which terminated the special status of British subjects in slightly different forms, but the status that people and, in particular, citizens of the United Kingdom had always had up until that particular date.

In my submission, the evolutionary process by which the meaning of the word or the application of the word "alien" changed is a process which ran parallel. It may not have run in identical terms as the evolutionary process by which Australia became a completely independent sovereign nation, but it is certainly a parallel process.

In relation to my argument on the Australia Act, my submission is that a British subject or a British citizen or a citizen of the United Kingdom could not have become an alien in Australia until the United Kingdom became a foreign country and, as I have set out in my written submissions, my submission is that the coming into effect of the Australia Act 1986 should be regarded as the effective date on which the remaining constitutional links with the United Kingdom ended, appreciating, however, that the authority to pass the Australia Act (Cth) is in the Constitution rather than dependent on the will of the United Kingdom Parliament.

It is also my submission that the change in the status of a person such as the applicant, that is, British subjects and people who became British citizens or citizens of the United Kingdom, did not happen on the passing of the Nationality and Citizenship Act 1973 in 1948 because of the fact that that Act very clearly preserved the common status of British nationality. That changed in 1969 but between 1948 and 1969 that common status was recognised by the citizenship legislation.

My submission is that once the change in the application of the word "alien" took place so that it could refer to British subjects, it did not operate to remove the non-alien status of such people who were already members of the Australian community at that time.

KIRBY J: Could you help me, Re Patterson; Ex parte Taylor was the case that dealt with this intermediate, one might almost call anomalous, group of non-Australian citizens but people who were part of our community as British subjects.

MR HAMLYN-HARRIS: Yes, your Honour.

KIRBY J: Then there was Te and Dang, in respect of which they were not British subjects, either of them.

MR HAMLYN-HARRIS: That is right.

KIRBY J: Was there not another case involving British subjects between Taylor and Te and Dang, or is that it?

MR HAMLYN-HARRIS: As far as this Court is concerned, that is it, I believe, your Honour.

KIRBY J: Yes, but in Te and Dang some reference was made to and there was debate between the Justices concerning the holding in Re Patterson.

MR HAMLYN-HARRIS: That is right, yes, your Honour. Of course, in Te and Dang the issue was quite different from the issue generally described in Taylor v Patterson and in the present case, because the issue raised in Te and Dang was whether a person who was an alien could be converted into a non-alien by some process of absorption. That submission was rejected unanimously by the Court. The situation in Re Patterson: Ex parte Taylor and this case is really whether a person can lose non-alien status by operation of the relevant law assuming, or, I should say, once they have become a member of the Australian community.

KIRBY J: The Minister concedes that as at the beginning of the Commonwealth a person in the position of your client would not have been an alien. Is that not correct? Am I reading the submissions correctly?

MR HAMLYN-HARRIS: That is my reading of the submissions, your Honour, yes.

KIRBY J: So that on the Minister's submission, as on yours, it has to be accepted that as at Federation the persons in what I have called the anomalous class, though not Australian citizens, that status not existing at the time, were not aliens outside our nationality.

MR HAMLYN-HARRIS: Yes.

KIRBY J: And that gets some support from section 117 of the Constitution as well.

MR HAMLYN-HARRIS: Yes, in my submission.

KIRBY J: And then somewhere along the path from that time to this something has happened, constitutionally speaking. So the area for the debate is one of clarifying what happened and when it happened, at least relevant to the determination of this case.

MR HAMLYN-HARRIS: Yes. With respect, that is the issue.

KIRBY J: The source of the problem that has continued to present these cases to the Federal Court in the matter that Justice French had to deal with and this Court has been that although the majority in Taylor and in Dang accept that Nolan no longer rules, there has not yet been concurrence on the reasoning of that.

MR HAMLYN-HARRIS: Yes, that is so. Also, in the case of Long, which your Honour referred to, the view was taken - and I must say it is - - -

KIRBY J: It is a very peculiar factual case.

MR HAMLYN-HARRIS: Yes.

KIRBY J: He went backwards and forwards - but it does illustrate the sort of problems that have to be grappled with.

MR HAMLYN-HARRIS: Yes, and it also illustrates the problem of someone who arrived and settled in Australia after the Royal Style and Titles Act, which is the issue which this case raises. Perhaps I should just say in relation to Long's Case, his Honour Justice French - if I could refer to the judgment in paragraph 40 - because of the relevant facts, as I say, the person had arrived after 1973, and his Honour said in paragraph 40 of Long's Case:

In my opinion, there is no binding principle in Re Patterson which assists me to a decision in this case. I consider that I should not apply to this case the proposition that British subjects living in Australia were not to be regarded as aliens until after 1987 -

Then his Honour referred to the fact that in Taylor v Patterson Justice Gaudron and your Honour Justice McHugh and his Honour Justice Callinan took the view that the significant date was the 1987 date, whereas your Honour Justice McHugh approached it on the basis that the significant date was the passing of the Royal Style and Titles Act 1974 in 1973.

HAYNE J: Do you contend that a binding principle does emerge from Re Patterson?

MR HAMLYN-HARRIS: I do, your Honour.

HAYNE J: What is the principle that you say emerges?

MR HAMLYN-HARRIS: The principle in broad terms - but it needs to be clarified a little - is that British people who settled in Australia before 1973 and who have not taken out citizenship are not aliens within the meaning of the Constitution.

HAYNE J: That I would understand to be the result for which you contend. What is the principle which supports the result thus described?

MR HAMLYN-HARRIS: The principle, your Honour, is that there is a category of persons in Australia who are neither citizens under the Australian Citizenship Act nor aliens. In other words, a third category of persons.

HAYNE J: How do you decide who are persons falling within this third category?

MR HAMLYN-HARRIS: The defining circumstances, your Honour, are, firstly, the relevant date - whether it is 1973 or 1987 or some date earlier than both of those - upon which the constitutional meaning of "alien" applied to people who we could generally describe as British subjects. That is the first issue. The second issue is that the person concerned had to obviously establish some relevant connection with Australia before that date. So that a citizen of the United Kingdom, for example, who never left the United Kingdom would simply become an alien, as far as Australia was concerned, after that defining date, but in order for a person to fall into that third category, they would need to have established the relevant connection with Australia and, in my submission, the relevant connection is that they have become a member of the Australian community.

GUMMOW J: Now, what does that mean?

MR HAMLYN-HARRIS: It simply means - - -

GUMMOW J: In legal, as distinct from emotional or political terms?

MR HAMLYN-HARRIS: It has been described in many ways, but it simply means, in my submission, that the person has settled - - -

GUMMOW J: It has been used in constitutional terms to describe the end of the immigration power.

MR HAMLYN-HARRIS: Yes.

GUMMOW J: What does it mean in relation to the aliens power?

MR HAMLYN-HARRIS: In my submission, it simply means that the person has settled in Australia and become a member of the community.

GUMMOW J: What does "member of the community" mean?

MR HAMLYN-HARRIS: Your Honour, there is no - - -

GUMMOW J: Member of the prison community in the case of your client?

MR HAMLYN-HARRIS: I accept what was said in Re Te and Dang that a criminal history and the commission of criminal offences in Australia might affect the question of whether a person becomes a member of the Australian community but, in my respectful submission, consistent with what has been said in the cases, ultimately, whether a person has become a member of the community is a question of fact.

GLEESON CJ: But the explanation that has been given as to why settling in Australia puts a person beyond the reach of the immigration power is that immigration is a process whereas alienage is a status. Can you not settle in a community and retain your status of an alien? Can a British person not settle in Monte Carlo and retain the status of being an alien?

MR HAMLYN-HARRIS: Yes, your Honour, with respect, that can happen, but that is not the situation with a person such as the applicant. The difference is that the applicant settled in Australia as a non-alien, so the situation perhaps of an alien becoming a member of the community is the sort of situation which, on the submissions that were put up, was raised in Te and Dang.

KIRBY J: You have to say that Australia is not, and Federation by common concession was not, equivalent of Monaco or of another foreign country; Australia was part of the dominions of the Crown; the status of nationality was, at that time, the common status of British subject; that this is recognised in section 117 of the Constitution itself and, therefore, something has happened between Federation and now. Your client came in 1972 - - -

MR HAMLYN-HARRIS: , your Honour.

KIRBY J: - - - 1974 - so that he came after the Royal Style and Titles Act 1973 .

MR HAMLYN-HARRIS: Yes.

KIRBY J: So it is not enough for you to embrace the Royal Style and Titles Act theory.

MR HAMLYN-HARRIS: No, that is so.

KIRBY J: You have to embrace the theory which was propounded by Justice Gaudron and myself, that whenever the point happened, it should now be taken to have happened as at 1987 when the 1984 legislation came in.

MR HAMLYN-HARRIS: Yes.

KIRBY J: As Justice Gaudron said in Nolan and repeated in Taylor, a statute cannot effect a change of the Constitution, but it can recognise the process of constitutional change which we are dealing with and which both sides of the Bar table agree has occurred.

MR HAMLYN-HARRIS: Yes. Could I just address the point that the statute cannot determine the constitutional meaning of a word. That really is at the basis of my submission, that the fact that a person is not a citizen under the Australian Citizenship Act cannot necessarily determine whether or not they are an alien because it is not within the power of the Commonwealth Parliament to determine by statute that issue.

HAYNE J: Which brings me back to, what is the principle that you say is engaged in determining who is or is not an alien? Do you depend on notions of allegiance? Do you depend only on notions of allegiance? At some point you have to identify and articulate the principle which you say is engaged to inform the meaning of the word "alien" in its constitutional context.

MR HAMLYN-HARRIS: Your Honour, in my submission, the notions of allegiance assist in the concept of a person becoming a member of the community, but it is not necessarily essential to that. The principle is, in my respectful submission, really described by the factual situation to which it relates, which is a somewhat unusual one because it concerns a situation where, in effect, Australia has over a period of time become totally independent from the United Kingdom. So the starting point is that the United Kingdom was not a foreign country and the end point is that the United Kingdom now is a foreign country.

The principle, in my respectful submission, is that a person who became a member of the Australian community before the constitutional application of the word "alien" changed to include British subjects cannot be regarded as an alien for the purpose of the Constitution. It really depends on the fact that that person was within a class or category of persons who were never aliens within Australia up until the relevant date.

HAYNE J: What is it about whatever is entailed by this notion of membership of the community - itself a separate subject - what is it that is entailed by the notion of membership of the community that serves to take someone out of the class of aliens?

MR HAMLYN-HARRIS: Your Honour, in my submission, the starting point is that they arrive in Australia as non-aliens and the second point is that they are accepted into the Australian community, on an unconditional basis, as a member of the Australian community.

KIRBY J: And they come from a country which has as its monarch the same person as is the monarch of Australia and owe allegiance to her, and when they come here they are owing allegiance to the Queen, that at the beginning of the century was taken in the theory of the indivisibility of the Crown as owing allegiance to the one Crown. Somewhere over the process of the century that has been modified, but the fact is that they are not a Monte Carlo person with allegiance to Prince Rainier or a French person with allegiance to the republic; they are a person who owes allegiance to the common monarch.

MR HAMLYN-HARRIS: Yes.

GLEESON CJ: Such as a person from Gibraltar.

MR HAMLYN-HARRIS: I am not sure of the situation with Gibraltar, but presumably that would be the case. The only thing that must qualify that is the fact that by 1973 it would appear that the Crown was clearly no longer regarded as indivisible.

GUMMOW J: Long before 1973.

MR HAMLYN-HARRIS: Yes, your Honour, I think that is - - -

KIRBY J: In the 1920s, I think, or earlier, maybe the 1930s, but the style and title does not seem to be an appropriate thing to change the substance of a matter so deep as allegiance. The fact that the style and title of the monarch has changed, with her consent, does not seem to me, at least, to change the obligations of loyalty and fidelity to the monarch, who is the same person. She has not changed.

MR HAMLYN-HARRIS: That is so, your Honour, although the difficulty with the notion of allegiance is that it is - perhaps I should put it this way - the concept of allegiance has changed considerably since feudal times, when the notion referred to personal allegiance more than it certainly does now. It would seem that currently the notion of allegiance, in essence, is allegiance to the government which is represented by the Queen - that is probably not the right way of putting it - but the Queen is the formal embodiment of the government so that the allegiance to the Queen arises in that way rather than in the feudal way. But there has been a gradual process of change, in my submission, in relation to the notion of allegiance.

KIRBY J: I know something to that effect was said by Sir Gerard Brennan in his swearing-in speech about the oath that he had just taken. Having taken 10 oaths of allegiance to the Queen, I must confess to you that I perhaps erroneously have always thought of it as a personal obligation.

MR HAMLYN-HARRIS: Yes. On the question of allegiance, the applicant is a person who arrived in 1974 but there are other people, by way of illustration, who are in a similar category to the applicant in that they arrived from perhaps the United Kingdom or they certainly arrived as British subjects a long time ago. They have not taken out citizenship and yet they remain as permanent and long-term members of the Australian community.

In my respectful submission, if, for example, a person arrived in 1950 and has remained here ever since, it is artificial to regard their allegiance as being to the Queen in the right of the United Kingdom, as opposed to the Queen in the right of Australia. In my submission, such a person, by becoming a member of the Australian community, has taken up an allegiance to the Queen of Australia and I would respectfully - - -

KIRBY J: That is what Justice McHugh reasoned, did he not, in Patterson? Did he not say that it transmogrified over time, there was not a particular moment, but as the Crown changed, the loyalty, allegiance and duty of the subject or citizen who is in Australia who came from the United Kingdom changed with the change in the position of the Crown?

MR HAMLYN-HARRIS: Yes, as I understand it - - -

KIRBY J: Am I correct? Would it be helpful to take us to what Justice McHugh said about that in Patterson?

MR HAMLYN-HARRIS: Yes. If I could take your Honours to page 431 in paragraph 121. Your Honour Justice McHugh said in the second half of that paragraph:

But in my view the terms of the Constitution make it clear that, at least until the passing of the Royal Style and Titles Act (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. That legislation provided that, for Australia, the Royal Style and Title of Elizabeth the Second was henceforth "Queen of Australia".

KIRBY J: Paragraph 124 was the passage that I had in mind:

Logically, it must follow that, upon the completion of the evolutionary process, the subjects of the Queen born and living in Australia became subjects of the Queen of Australia. Henceforth, by a mystical process, they owed their allegiance to the Queen of Australia, not the Queen of the United Kingdom.

MR HAMLYN-HARRIS: Yes.

KIRBY J: But it is a "mystical process". It is a process that is a mixture of the letter of the Constitution, including section 117, the process of the devolution of the powers to the dominions of the Crown, the break-up of Empire, the emergence of independent countries, which was reflected in the Royal Style and Titles Act 1953 , which talked of "in the present stage of the development of the British Commonwealth", and on top of all this is grafted the loyalty, which is originally a feudal notion, that is owed by an individual to a monarch.

MR HAMLYN-HARRIS: Yes.

KIRBY J: Somewhere between 1901, when the Minister concedes the duty was owed to the monarch as the one monarch of the British Empire, and 1987, which is the last cut-off point, the evolution of a mystical kind occurred. That is what Justice McHugh was saying there.

MR HAMLYN-HARRIS: Yes.

KIRBY J: But they are not aliens in the sense that a Monegasque person would be.

MR HAMLYN-HARRIS: No, in my respectful submission. Perhaps I should return to the issue of the Australia Act 1986 (Cth). Whilst accepting that the power to pass that Act is found in the Constitution, in my submission, the Australia Act nevertheless formally ended the power of the United Kingdom to, amongst other things, legislate for Australia. Another significant event was the Statute of Westminster in 1936 and the Statute of Westminster Adoption Act 1931 in relation to - - -

GUMMOW J: .

MR HAMLYN-HARRIS: I am sorry, your Honour, 1931, and the Statute of Westminster Adoption Act 1958 in, I think, 1942.

GLEESON CJ: What do you say is the relevance, if any, of absorption into the Australian community to the status of alienage?

MR HAMLYN-HARRIS: I say it is relevant, your Honour, but, in my submission, the notion of absorption is identical with the notion of a person becoming a member of the Australian community.

GLEESON CJ: I understand that, but what do you say is its relevance to the status of alienage as distinct from its relevance to the end of the activity of immigration?

MR HAMLYN-HARRIS: In my submission, it is necessary to prevent a person becoming an alien at the point where British subjects generally became an alien. If I could illustrate that, your Honour, by making the point that - I have mentioned a British subject or, let us say, a British citizen living in the United Kingdom, that person simply became an alien at the end of the process whenever it was, but in relation to a British citizen in Australia, but not in such a way as to have become a member of the community, that person would also become an alien at the end of that process. So, for example, a British visitor or a British tourist would simply become an alien at that particular point. In order to avoid becoming an alien, in my submission, it is necessary for the person to have become a member of the Australian community or, alternatively expressed, to have been absorbed into the Australian community.

The process of absorption, in my submission, consists of what I have described as becoming a member of the community, but it consists of being accepted by Australia unconditionally as a member of that community. So that if under legislation or under the terms under which a person is allowed to enter Australia there are qualifications on their right to remain and their right to become a permanent and indefinite member of the community, then they do not become a member of the community until those conditions have been removed.

So in relation to the Migration Act as it applied when the applicant arrived in Australia there was a provision to the effect that a person could be deported within - a permanent resident I should say - could be deported within five years for criminal offences. So that, really, it was necessary for that five years to pass before the applicant's status in Australia could be regarded as a non-alien status and a status as a permanent member of the community.

GUMMOW J: Now, what do you say about Professor Clive Parry's treatment of this, which is set out at paragraph 151 of Patterson? He spent a lot of his life worrying about these questions as to the significance of the 1948 legislation of this notion of allegiance. Do you challenge what Professor Parry says there?

MR HAMLYN-HARRIS: Sorry, your Honour - - -

GUMMOW J: Paragraph 151.

MR HAMLYN-HARRIS: Yes, your Honour. I challenge it to this point, your Honour. Professor Parry says that "the traditional and familiar status of British subject" became a derivative status with the passing of the 1948 - he refers to the 1948 United Kingdom Act. But in Australia the Australian Citizenship Act 1948 of 1948 does not, in my submission, relegate the status of British subject to a derivative status. If I could refer your Honours to the Act as passed in 1948.

KIRBY J: This is just his opinion about English law, British law.

MR HAMLYN-HARRIS: Yes.

KIRBY J: It cannot control the position of our law, Australian law.

MR HAMLYN-HARRIS: No.

KIRBY J: When I got my first passport in 1962 - - -

GUMMOW J: If one does him the courtesy of reading the book, you will see he deals with the whole box and dice.

MR HAMLYN-HARRIS: Yes.

GUMMOW J: There was a conference of all the Commonwealth players involved in those days that produced this legislation which was meant to go in tandem throughout the British Commonwealth.

MR HAMLYN-HARRIS: That is so, your Honour, and the agreement was that the individual dominions or countries would pass their own citizenship laws.

GUMMOW J: Exactly. That is what he is talking about.

MR HAMLYN-HARRIS: Yes.

KIRBY J: And that is all that matters, so far as we are concerned. It is the Australian law - we are applying Australian law. We have gone a long way beyond applying what the English say is our law. We apply our own law.

MR HAMLYN-HARRIS: That is so, with respect.

GUMMOW J: I was trying to locate - if I can continue - the point of time at which this said to be mystical change occurred. It strikes me it is a highly specific legal stage, and it is in 1948 in this legislation that I am asking you to consider.

MR HAMLYN-HARRIS: Well, your Honour, in my respectful submission, the reason it should not be regarded as 1948 is that when one looks at the 1948 Act as passed the full title of the Act is "An Act relating to British Nationality and Australian Citizenship". The short title is the Nationality and Citizenship Act.

KIRBY J: My first passport in 1962 declared that I was a British subject and Australian citizen. That is borne out by the analysis of the legislation that you have given in your written submissions.

MR HAMLYN-HARRIS: Yes.

KIRBY J: As I understand it, I think that remained until 1983, did it not?

MR HAMLYN-HARRIS: I think 1969, your Honour, because in the current - I am sorry. There is a section in the Australian Citizenship Act 1986 , section 23C, which was inserted into the Act in 1969 and it states:

An Australian citizen who is required to state or declare his national status may state or declare himself to be an Australian citizen and his statement or declaration to that effect is a sufficient compliance with the requirement.

So, as I understand it, before 1969 it was customary, and also it accorded with the Nationality and Citizenship Act of 1948, that Australians would primarily describe themselves as British subjects, but after 1969 a significant change occurred because of that section.

KIRBY J: As further evidence of the way this is - you can call it - mystical or evolutionary, the fact is that at that time you described yourself as both, "British subject and Australian citizen".

MR HAMLYN-HARRIS: Quite so, yes.

KIRBY J: That is what my passport said, that is what the law said, that is what the law of Australia said. Professor Parry's view cannot affect our law.

MR HAMLYN-HARRIS: No, with respect, and, your Honour, my recollection is that before 1969, or whenever it was, if an Australian was required to nominate their nationality, they would put "British subject".

GUMMOW J: Required for what purposes? We are dissenting into anecdotage, if I might say so.

MR HAMLYN-HARRIS: Sorry, your Honour. Could I return to the 1948 Act. Firstly, I have referred to the long title. Section 5 defines "alien" - and this is referred to in the written submissions - as:

a person who does not have the status of a British subject and is not an Irish citizen or a protected person -

Then, in Part II of the Act, which begins in section 7, the heading is British nationality, and section 7(1) says:

A person who, under this Act, is an Australian citizen or, by a law for the time being in force in a country to which this section applies, is a citizen of that country has, by virtue of -

that citizenship be -

a British subject.

GUMMOW J: That is right, "by virtue" of that citizenship, be "a British subject". That is what Professor Parry is talking about. The one is derivative of the other, which was not so in 1901, obviously.

MR HAMLYN-HARRIS: No, that is so, your Honour. I must say, reading section 7 again, it does appear to put the Australian citizenship - - -

GUMMOW J: It mirrors the British provision, the UK provision. None of this is an accident.

MR HAMLYN-HARRIS: Yes, but, your Honour, the significance of the Act is that it specifically preserves a non-alien status of any British subject.

GUMMOW J: Well, that is a question. That is a question. What was the consequence of all of this in terms of alienage? This is a new sort of ball game, really.

MR HAMLYN-HARRIS: That is so, your Honour.

GUMMOW J: It is a long way from Calvin's Case.

MR HAMLYN-HARRIS: But, by and large, when the concept of Australian citizenship was introduced in 1948, the legislation did not purport to define precisely the significance of being an Australian citizen.

HAYNE J: But two things happened in 1948, did they not? First, there were changes made by Australian law, but at the same time, throughout the other countries mentioned in 7(2), most notably including the UK, there were changes made to the nationality and citizenship arrangements and the changes in the UK mirrored these, did they not?

MR HAMLYN-HARRIS: They did, your Honour, yes.

HAYNE J: In particular, the concept of British subject was a derivative concept under UK law, is that right?

MR HAMLYN-HARRIS: Yes, your Honour.

HAYNE J: The particular status that your client now asserts is a status that in part depends upon the status he had under UK law, does it not? He claims a special position in this middle ground because he was born in UK; is that right?

MR HAMLYN-HARRIS: No, your Honour, with respect. It is because the Nationality and Citizenship Act between 1948 and 1987 gave him a specific non-alien status which reflected, as your Honour has mentioned - - -

HAYNE J: Why?

GUMMOW J: Why? Where?

MR HAMLYN-HARRIS: Because the definition of "alien" between 1948 and 1969 and then the new definition from 1960 to - - -

GUMMOW J: No. How does he get to be a British subject?

HAYNE J: Because he was born in the UK, is it not?

GUMMOW J: It is not because of anything the - - -

MR HAMLYN-HARRIS: I am sorry, yes. I misunderstood.

KIRBY J: It is a combination?

MR HAMLYN-HARRIS: Yes.

HAYNE J: But you start, do you not, your argument by a proposition about his birth in the UK and consequences of birth in the UK?

MR HAMLYN-HARRIS: Yes.

HAYNE J: Once we have got to the point of the 1948 changes, made both in the UK and elsewhere, the concept of British subject, both in UK law and in Australian law, is derivative, is it not, derivative upon a concept of citizenship? Is that right?

MR HAMLYN-HARRIS: Yes, it is, your Honour.

HAYNE J: A question which then emerges is if you have this concept of citizenship from which the concept of British subject derives, whether that is in any respect informing notions of alienage, allegiance, allegiance to an individual sovereign, allegiance to a sovereign power, and all of those steps have to be taken to make good the argument which you advance, it seems to me, and they are not made good by simply saying the 1948 Act of Australia said some were what might be called statutory aliens, some were not. What is the constitutional principle which you say informs the meaning of "alien"?

MR HAMLYN-HARRIS: Your Honour, in my respectful submission, whilst issues of allegiance are relevant, the significant facts in relation to this issue are the fact that before 1948 a person who was described as a British subject was not an alien. After 1948, as your Honour has pointed out, the status of British subject became a derivative status dependent on citizenship of a particular country and, in particular, for the purpose of this case, the United Kingdom.

From 1948 until 1987, the Australian citizenship legislation specifically recognised that citizens of the United Kingdom were not aliens, and because they had never been aliens before 1948, in my respectful submission, the fact that under the citizenship legislation they did not become citizens does not convert them from their previous status as non-aliens into aliens. If it had been intended that that should happen, then the Nationality and Citizenship Act would not have had the definition of "alien" which gave to citizens of the United Kingdom that non-alien status.

HAYNE J: May I simply detain you a little longer and take you back to what Justice McHugh says in Patterson 207 CLR at 432, paragraph 124 and the reference there to "completion of the evolutionary process" and the "mystical process". Do you say that the applicant in this case owes allegiance to the Queen of Australia?

MR HAMLYN-HARRIS: I do, your Honour, but - I am sorry, your Honour.

HAYNE J: By adopting that terminology, it seems to me that there is thrown into play the notion of allegiance, not to an individual, but allegiance to, for convenience I will call it a sovereign power, which is personified by the individual but the personification is something which may distract attention. If the allegiance is allegiance to sovereign power, what is the nature of the process or the act or the step by which there was any acknowledgment by your client of that obligation?

MR HAMLYN-HARRIS: There was no act of acknowledgement, your Honour, and, in particular, there was no act of acknowledgment such as by taking an oath of allegiance in the process of naturalisation.

HAYNE J: But, relevantly, therefore, is the concept of allegiance that thus is engaged a concept that is a one-way street or is it mutual?

MR HAMLYN-HARRIS: In my respectful submission, it is mutual but it does not necessarily depend on any act of acknowledgment. For example, people who are citizens of Australia by birth do not at any time have to acknowledge their allegiance. Their allegiance arises because of the fact that they are Australian by birth and the fact that they live in Australia and that the sovereign power in Australia is personified in the Queen of Australia. Similarly, it is possible under the Citizenship Act for a child to become an Australian citizen by a process of naturalisation through the child's parent and, again, as I understand it, it would not be necessary, in every case at least, for the child to make an acknowledgment.

In my submission, the applicant, firstly, was a child when he arrived in Australia and, in my submission, he would have become a member of the Australian community within the time that he was still a child. It is by virtue of him becoming and being a member of the Australian community that the mutual situation of allegiance arises. It is allegiance to the sovereign power which operates as the government in the country in which he is a member of the community. Perhaps if I could follow that point by referring to a submission that is made in my written submissions which relates to the Australia Act.

GUMMOW J: On this notion of allegiance, what do you say as to the views of Sir Hersch Lauterpacht set out in paragraph 129 of Te, 72 ALJR? Do you disagree with that?

MR HAMLYN-HARRIS: Paragraph 129 of Te, your Honour?

GUMMOW J: Yes, the passage set out there from Sir Hersch Lauterpacht. Do you disagree with that authority? He likewise spent a lot of his time worrying about these questions.

MR HAMLYN-HARRIS: I beg your pardon, your Honour?

GUMMOW J: Do you disagree with what Sir Hersch Lauterpact says?

MR HAMLYN-HARRIS: I am sorry, your Honour - - -

GUMMOW J: As to the significance of this notion of allegiance on questions of alienage; in particular that resident aliens may owe it some species of allegiance. So to fix on allegiance is not to determine these questions.

MR HAMLYN-HARRIS: No. Well, that is so, with respect, your Honour, but there is what has been described as local allegiance, which is the allegiance that an alien owes to the government or the sovereign power in which the alien is present, but that is not the allegiance - - -

GUMMOW J: I understood that is what you were saying when you said your client owed allegiance to the Queen of Australia.

MR HAMLYN-HARRIS: No.

GUMMOW J: That is consistent with him still being an alien. That is all I am putting to you.

MR HAMLYN-HARRIS: No, I am sorry, your Honour. My proposition was that he owed an identical allegiance that members of the Australian community generally owed, not the allegiance which might be called local allegiance which an alien would owe. The fundamental reason, in my submission, for that is that he settled in Australia and became a member of the Australian community as a non-alien and, therefore, the nature of his allegiance is a non-alien allegiance rather than the alien allegiance, which is referred to in that passage.

Because it would seem that the current notion of allegiance, that is the allegiance owed by the members of a community as opposed to aliens, is an allegiance to a sovereign power or to a government rather than the old feudal notion of a personal allegiance, in my respectful submission, if it is accepted, which of course it may not be, but if it is accepted that the Parliament of the United Kingdom retained at least in a formal sense the power to legislate for Australia until the passing of the Australia Act 1986 in 1986 - - -

GUMMOW J: Wait a minute. Suppose the United Kingdom Parliament repealed the Australia Act UK?

MR HAMLYN-HARRIS: Well, in my submission it is not within the power of the United Kingdom Parliament to do that for this reason, that whatever - - -

GUMMOW J: That is not really the point, is it?

MR HAMLYN-HARRIS: I beg your pardon?

GUMMOW J: The point as we explained in Sue v Hill I think is that if they did that we would ignore it.

MR HAMLYN-HARRIS: That is right, but - - -

KIRBY J: Well, I think we should ignore what they have done interfering in our constitutional affairs. I just do not see that they have any right whatsoever by 1986 to be passing any laws without the consent of the people, electors of Australia, in relation to our constitutional affairs. It is not for the Executive Governments or even the Parliaments of Australia to give that authority. That authority belongs to the electors under our Constitution.

MR HAMLYN-HARRIS: Yes.

KIRBY J: Anyway, that is my view.

MR HAMLYN-HARRIS: Is your Honour referring to after 1986 or?

KIRBY J: By 1986.

MR HAMLYN-HARRIS: Yes.

KIRBY J: The United Kingdom Parliament had no business intermeddling in our constitutional affairs, whether by the request of the Executives or the Parliaments of Australia. That belongs to the people. That is the whole point of section 128 of our Constitution.

MR HAMLYN-HARRIS: Your Honour, that would - - -

KIRBY J: They cannot change the meaning of the word "alien". That meaning is a constitutional term, it is in our Constitution. It is for this Court to determine it.

MR HAMLYN-HARRIS: On the question of whether the United Kingdom Parliament could repeal the Australia Act of 1986 - - -

GUMMOW J: We do not have to worry about it, it seems to me. That is what we said in Sue v Hill.

MR HAMLYN-HARRIS: That is so, your Honour, but the whole concept of - if one looks at it as the final step in the granting of independence, if that were accepted, the whole concept of granting independence is that you cannot take it back. I mean, apart from the fact that by 1986, it is accepted, as explained in Sue v Hill, that the authority of the United Kingdom Parliament had ended - - -

GUMMOW J: Well, that might be a question of international law, I suppose.

MR HAMLYN-HARRIS: Yes.

GUMMOW J: Namely, what would some third country say about it all, if it was trying to apply rules of international law? That is a world away from this.

KIRBY J: Personally, I find objectionable the notion that we were granted independence by the United Kingdom Parliament in 1986. As far as I am concerned, we had achieved our independence long before then, long before then. They have no right to be granting or not granting our independence; that belongs to the people of Australia.

MR HAMLYN-HARRIS: I understood that to be decided by Sue v Hill, in that, in the judgment of your Honour the Chief Justice and Justices Gummow and Hayne, it is made clear that the source of the authority in 1986 to pass the Australia Act (Cth) was the Constitution and not the United Kingdom Parliament. I do not for a moment suggest otherwise, but I do make the submission that, accepting that, the Australian Parliament in 1986 nevertheless formally terminated what remaining constitutional links there were, even if those links were really totally anachronistic by that stage.

KIRBY J: So the Australian Parliament, without the approval of the electors as required by section 128, made a change to our Constitution. I do not accept that that is valid or possible. In fairness to the United Kingdom government, I should say that they simply did what they were asked to do by the Commonwealth and the States of Australia, but, speaking for myself, I think they had no power to do what they did and that the Federal Parliament and the State Parliaments had no power to do what they did bypassing the electors of the Commonwealth.

MR HAMLYN-HARRIS: Could I refer your Honours in that regard to the chapter by Professor Sawer in his book, The Australian Constitution, the title of the chapter being "Australia as a Sovereign Nation State". By way of introduction, Professor Sawer says, at the top of page 71:

Australia's emergence as an independent member of the world community depended on two developments which proceeded simultaneously: cutting legal ties with Britain, and developing independent Australian activity in international affairs.

On page 74, Professor Sawer refers to the position of the States and, in particular, the position of the States at the time of and after the Statute of Westminster. As appears about three quarters of the way down the page, he says:

The States failed to get separate representation at imperial conferences, but they secured assurances that matters within their exclusive competence would be discussed only incidentally and that in such cases they would be informed.

Having secured this position, the States then, generally speaking, declined to join with the Australian Government and Parliament in the various steps towards the development of legal independence from Britain and an independent international personality for Australia as a whole. Hence, strictly speaking, the conventions and practices laid down at the Imperial Conferences of 1917, 1926, 1929 and 1930 did not apply to them. They sought and obtained exclusion from the operation of the Statute of Westminster, and wanted even stronger guarantees against interference with their constitutional position than those contained in section 9.

He says, in the second paragraph on page 75, that the Australia Act:

deals mainly with the position of the States which, as noted above, were not covered by the Statute of Westminster -

KIRBY J: These are the States of the Commonwealth provided for in the Constitution of the Commonwealth of Australia?

MR HAMLYN-HARRIS: Yes.

KIRBY J: A cosy agreement between the Commonwealth and the State Executive Governments and Parliaments is not the way you change the constitutional arrangements of this country. Such changes belong to the people.

MR HAMLYN-HARRIS: If I could refer your Honours to the bottom of page 76. This is Professor Sawer's view and he has referred to the Statute of Westminster and the Australia Act :

The result of these provisions is to leave Australia a fully sovereign, self-governing nation with a rather rigid basic constitutional structure, but one capable of a great deal of adjustment in detail by its component parts. The basic structure has to be sought in three great constitutional documents - the Commonwealth of Australia Constitution Act 1900 , the Statute of Westminster 1931, and the Australia Act 1986 .

GUMMOW J: At the end of the day, your argument depends upon a restriction of the Commonwealth power with respect to aliens by reference to extra Australian characteristics and circumstances, namely, British circumstances; is that not right?

MR HAMLYN-HARRIS: Yes, your Honour, in the sense that the non-alien status recognised under the Australian Citizenship Act 1986 is one which depends on a person being a citizen of a particular country.

GUMMOW J: How could it be changed? What Parliament, anywhere, could turn these people into aliens, or could no Parliament do it?

MR HAMLYN-HARRIS: No, in my submission, the Australian Parliament can do it and did do it by the 1984 amendments to the Australian Citizenship Act which came into effect on 1 May 1987.

KIRBY J: That is the question: if "alien" is a constitutional word, at least before 1984, or 1987, was it possible for the Australian Parliament, in respect of persons who up to that time were British subjects and were part of our community and owed allegiance to a common monarch, to change their status, like Idi Amin in Uganda? We were told in Patterson that, I think, there were 800,000 people in this so-called anomalous category. I do not know how many exactly it is but it is many hundreds of thousands of people who regard themselves as Australians who came here, many of them on assisted passage, who have lived quietly and peacefully in this country and who, on the theory of the dichotomy between citizen and alien which did not exist at the time of their arrival, makes them all subject to being expelled by a Minister.

Now, that is the notion which at least the majority in Taylor found unacceptable. It is hundreds of thousands of people we are talking about here, not just your client with his rather unpalatable record. It is a lot of people.

MR HAMLYN-HARRIS: Yes, that is so, your Honour. I was addressing the issue of whether it was within the power of the Commonwealth Parliament, in effect, to change the constitutional status of a person, and I said that it was, but I am not saying that there is a power to, in effect, retroactively change the constitutional status of a non-alien member of the Australian community.

GUMMOW J: Now, where do you get this expression "constitutional status" from which transcends legislative power? It transcends legislative power by reference to some foreign situation, namely, some British situation. At the time this gentleman was born he was a British subject in Britain by virtue of his British citizenship. He was not a British subject in Australia because he did not have Australian citizenship. That, I thought we had established, flowed from section 7 of the mirror legislation in 1948. How do you get out of all of that some supra-status which transcends Australian legislative power?

MR HAMLYN-HARRIS: Your Honour, the Australian Parliament does not and did not defer to the Parliament of the United Kingdom in recognising the status of a person, such as the applicant, who came from the United Kingdom. The Australian Parliament made a choice to preserve to such people a non-alien status until 1987. The fact that it was consistent with the uniform process which took place in or around 1948 after the conference in relation to citizenship dominions does not alter the fact that the Australian Parliament took upon itself, with its own authority, to preserve that status.

If I could address the question of how the Parliament can change the constitutional status which, as I have submitted, it did by bringing into effect the 1984 amendments in 1987.

GUMMOW J: What do you mean by "constitutional status"? Do you mean amenability to a particular head of legislative power?

MR HAMLYN-HARRIS: I do, yes, your Honour. If I could go back to the starting point of my submission which is that it seems to be widely acknowledged that at some time between Federation and the end of the century - let us say between Federation and 1987 - the constitutional status in that sense of British subjects did change.

Now, it did not change by any formal change to the Constitution. It changed by a series of events in a historical context, events which varied in their own individual significance. Some, like the Statute of Westminster, were clearly of great significance, but it also occurred in a historical context where the notion of Australian identity throughout the century became more and more accepted and acknowledged and part of the Australian ideology. So, therefore, because the change which seems to clearly have occurred between Federation and 1987 did not occur by any great constitutional act in itself, it is quite consistent for a specific event, like the coming into effect of a piece of legislation, to end that constitutional status, because in fact the whole process occurred in that way.

KIRBY J: That is one way to put it. The other way to put it is that the legislation recognises the constitutional change that independently of legislation has happened.

MR HAMLYN-HARRIS: Yes, I respectfully accept that, your Honour.

KIRBY J: And for convenience, I mean, you could say it was sometime between 1948 and 1987, but it is necessary in the practical world to have a clear line in the sand. That is why Justice Gaudron and I took as the clear line in the sand the 1984 Act coming into force in 1987.

MR HAMLYN-HARRIS: Yes.

KIRBY J: But the other theories have been pushing it back: the 1973 Royal Style and Titles Act, or pushing it further back, the 1948 Nationality and Citizenship Act, but somewhere along the line a change happened, but the word is a constitutional word and as Sir Harry Gibbs said in Pochi, you cannot just take on any old meaning that a Parliament wants to give it.

MR HAMLYN-HARRIS: No.

KIRBY J: It has to take on a meaning in the context of the Australian Constitution that has express references to British subjects.

MR HAMLYN-HARRIS: Yes, that is so, your Honour, and - - -

GUMMOW J: And which is a living Constitution, as we are told from time to time.

MR HAMLYN-HARRIS: Yes, and - - -

KIRBY J: The life of it is demonstrated by the transmogrification in a mystical form that has happened between 1901 and 1987. Somewhere there a change has indisputably occurred.

MR HAMLYN-HARRIS: Yes, and I should just add that, in my submission, it is clear that the coming into effect in 1987 of the 1984 amendments did not in itself do anything other than provide the final step in an evolutionary process which consisted of many events and occurrences between Federation and 1987. So that it is not a case of the Parliament simply determining for itself what the constitutional meaning of "alien" is. It also follows from the fact that Parliament did that in 1987 or it came into effect in 1987 that it could have been done, presumably, at some slightly earlier stage, but it could only happen once the evolutionary process got to a certain point.

McHUGH J: But it all hinged on what I regard as one of the most radical propositions of constitutional interpretation that can be found in the decisions of this Court and that is that in Nolan the Court changed the meaning of a constitutional term, not its denotation. "A subject of the Queen" in section 117 in 1900 and thereafter for a great many years could only mean the subject of the Queen of the United Kingdom. The proposition that was accepted in Nolan rejected the declaration covering clause 2 of the Constitution that the provisions of the Constitution applied to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

GUMMOW J: And Ireland.

McHUGH J: And Ireland. Now, that was a very radical proposition. In Taylor, I said I will accept it, but logically, and the problem about this evolutionary theory was that people such as Mr Brazil feared that Australian citizens, people born in Australia, would lose their section 117 rights if they became subject to the Queen of Australia because section 117 was understood as referring to the Queen of the United Kingdom. This Court in Nolan got over it by saying, "It has evolved, it now means the Queen of Australia and not the Queen of the United Kingdom". It was a very radical proposition.

Now, I accepted that in Patterson but I said if people born in Australia have evolved into owing allegiance to this new "subject of the Queen" in section 117, logically, it must follow that those other people who are here also evolve. But I regarded the matter as turning more on the Constitution rather than on any of the pieces of legislation that have been passed by the Parliament, except for the Royal Style and Titles Act which seemed to me to be the first assertion of sovereignty which may have been in existence as an independent nation since 1931.

MR HAMLYN-HARRIS: Yes. It was said, I think by Justice Gibbs, that in passing the Royal Style and Titles Act of 1973 the law followed the facts. But in terms of the allegiance being - - -

GUMMOW J: What is the big difference between that and the 1953 Act?

KIRBY J: It just took out "Defender of the Faith", did it not?

GUMMOW J: It took out "United Kingdom", did it not?

MR HAMLYN-HARRIS: It changed the - no, the United Kingdom - - -

GUMMOW J: "Australia" was there for 1953. It followed from the 1949 Commonwealth - - -

MR HAMLYN-HARRIS: It was. It really changed the emphasis by putting Australia first.

GUMMOW J: Yes, exactly. There was a lot of political huffing and puffing at the time.

MR HAMLYN-HARRIS: Yes.

GUMMOW J: It did not seem to me to be all that dramatic.

MR HAMLYN-HARRIS: Certainly, in the parliamentary debates it seems to have been - well, I do not know about debates, but in the discussion in Parliament it seems to have been accepted as a very significant Act, but perhaps as a very significant symbolic Act.

GUMMOW J: Yes.

KIRBY J: The Prince of Wales wants to change the title "Defender of the Faith". Maybe they will copy our Act? After all, it was Henry VIII who got it from the Pope before the Reformation.

MR HAMLYN-HARRIS: Yes.

KIRBY J: Historical relic.

MR HAMLYN-HARRIS: Could I refer your Honours to the second reading speech of the Minister for Immigration, Mr Downer, in introducing the Migration Bill on 1 May 1958.

HAYNE J: With a view to demonstrating what?

MR HAMLYN-HARRIS: With a view to demonstrating the basis upon which the applicant and his family were permitted to come to Australia. I have addressed in my written submissions what the legislation and the changes in the legislation said about that, but on page 1397, in the second paragraph of the second reading speech, the Minister said of the new requirement that anyone who enters Australia required an entry permit in order to avoid being a prohibited immigrant - he said:

I cannot emphasize too strongly that these new arrangements will not add to existing formalities. British subjects, who now enter without visés or prior authority will have entry permits stamped in their passports in exactly the same way as before, to show date and place of arrival; nor will they be refused entry permits except on my express authority.

KIRBY J: And then the word, "Aliens who have had visés inserted" by way of contrast to British subjects. This is 1958. The Minister was continuing to draw that distinction.

MR HAMLYN-HARRIS: Yes, and I think the point is also made that aliens required visas whereas - I think it is in the passage that I have referred to - British subjects did not require visas. They simply required a stamp in their passport on arrival.

KIRBY J: In your combing through the parliamentary debates, which I am sure are very interesting, did the parliamentary debates of 1984 refer to the size of the class that we are here dealing with, that is to say, the anomalous class of those who were not Australian citizens but who were British subjects who had come on assisted passages from the United Kingdom and who voted in our elections, could claim our passports, and had to do jury service, were liable to national service. Did the ministerial debates reveal the numbers of people we are dealing with in this case? Because it is not just your client. This is a very large number of people living peacefully as quasi-citizens in this country.

MR HAMLYN-HARRIS: Yes. Your Honour, I do not believe that I looked at that particular debate.

KIRBY J: This is an original proceeding and, for my part, if it can be found, I would be interested to know, because it is hundreds of thousands of people all now at the behest of the Minister - at the will of the Minister. At the moment, it is on a condition as to a criminal offence, but that can be changed. They can be bundled out of the country as Idi Amin bundled out the British subjects in Uganda, if this is a correct interpretation of "alien".

MR HAMLYN-HARRIS: Your Honour, could we have the opportunity to check the material perhaps at lunchtime?

KIRBY J: It might be in the Australian statistical - the statistician might have it. It could put this argument in context.

MR HAMLYN-HARRIS: Just in that regard, could I refer your Honours to the decision of your Honour Justice Gummow in Kenny v Minister for Immigration in the Federal Court.

GUMMOW J: That dealt really with the particular problems relating to Ireland, did it not?

MR HAMLYN-HARRIS: Yes, your Honour, it was, and your Honour referred to the particular situation with Irish citizens, but the case concerned a man from Ireland who joined the Australian Navy in Ceylon in 1946 and then travelled with the Australian Navy to Australia and settled in Australia in, I think, 1946 or 1947, then remained in Australia for something like 37 years, during which time he married and had children and then left Australia in about 1984, and was refused permanent entry on his return a few years later. I appreciate that the case itself - - -

GUMMOW J: Not for fanciful reasons either. He had a criminal record of some sort, I think.

MR HAMLYN-HARRIS: That may be so, your Honour, but my recollection was that it was just simply that he did not meet the entry requirements at the time that he sought to come back.

GUMMOW J: Yes, you may be right. I have forgotten.

MR HAMLYN-HARRIS: And your Honour Justice Gummow did refer to the decision in Nolan. I really used the case more for the purpose of illustration because it did depend, to some extent, on the fact that he was Irish, but if he had been British, if the argument is correct that the Australian Parliament can regard anyone who is not a citizen under the Australian Citizenship Act as an alien, then he would equally have been an alien on his return in the late 1980s and would equally have been capable of being excluded under the power of the Parliament notwithstanding that he clearly had established a very, very long and close connection with the country as a member of the Australian community.

KIRBY J: It makes an awful lot of people dependent on the enlightened administration of the Department of Immigration.

MR HAMLYN-HARRIS: Yes. Could I deal, your Honours, with the question of why it is not open to the Parliament to, in effect, retroactively make a person an alien, why it is, in my submission, not within the power of the Commonwealth Parliament after 1987 to determine that from that date on the applicant is an alien. In my submission, if - and, really, the relevant date is when the decision was made in 2001 to cancel his visa.

GUMMOW J: Your submission must be he does not need a visa and never needed one when he first came here?

MR HAMLYN-HARRIS: Yes, certainly, that is right, your Honour. With respect, my submission is he does not need a visa to remain in Australia.

McHUGH J: He would have needed one when he came in because he was an immigrant.

MR HAMLYN-HARRIS: No, your Honour, in fact all he needed was what they called an "entry permit", which was - - -

McHUGH J: I know, as a matter of statute law, but as a matter of constitutional law there is no reason why the government could not have passed legislation requiring him to have a visa when he first came in, is there?

MR HAMLYN-HARRIS: No, and certainly as an immigrant there is no reason why he should have been accepted. It would be within the power to refuse acceptance to anyone under the immigration power. My submission is that, if it is accepted that British subjects generally did not become aliens until 1987 and I appreciate that is controversial but assuming that to be the case - - -

HAYNE J: Sorry, can I just take you back. Is your proposition that he could have been refused entry though not an alien?

MR HAMLYN-HARRIS: Yes, your Honour, because from the very earliest cases it has been accepted that the immigration power extends to exclude people who were British subjects, even at the very beginning of the twentieth century.

KIRBY J: That was the whole point of the dictation test.

MR HAMLYN-HARRIS: Yes.

McHUGH J: They wanted to get rid of the people from Natal, for instance.

MR HAMLYN-HARRIS: Yes, and incidentally, the dictation test was only removed by the 1958 Act. But, if it were to be accepted that until 1958 British subjects were not aliens but after that time they generally were aliens, then if the Parliament were to pass a law under which a person who had settled in Australia as a non-alien, which, in my submission, is the situation of the applicant, it would have the effect of making someone who up until that point had not been an alien into an alien, and, in my submission, it runs into the same difficulty that arises if the Parliament endeavours to treat someone who has ceased to be an immigrant as the subject of the immigration powers.

In my submission, it is endeavouring to use the aliens power to apply to someone who is not an alien so as to bring about the removal of that person from Australia. Because it applies to someone who is not an alien, it is therefore not a power with respect to aliens. Consistent with that, the Australian Citizenship Act does not contain any provisions under which, generally speaking, Australian citizens can be deprived of their Australian citizenship, except for fraud in obtaining the grant of citizenship or for criminal offences committed before the grant of Australian citizenship, which, in my submission, is consistent with the notion that the aliens power does not apply to people who are non-alien members of the Australian community.

So it would not be within the power of the Commonwealth Parliament to declare or pass a law under which an Australian citizen born in Australia could be deprived of that Australian citizenship and deported. Likewise, it would not be within the power to pass a law under which a naturalised Australian citizen could be deprived of citizenship and removed from Australia.

GUMMOW J: Why not? Why can the grant not be conditioned?

MR HAMLYN-HARRIS: Yes, I am sorry, your Honour. Unless the grant is conditional - and I should have said that. But if the grant is unconditional or the conditions have passed, then a naturalised Australian citizen is in the same position as a citizen born in Australia and, in my submission, the same principle applies to someone who is a non-alien non-citizen, such as the applicant. The reason is that a law which sought to remove such a person from Australia is not a law with respect to aliens.

Your Honours, the respondent has referred to a number of old cases beginning with Calvin's Case in 1609. Calvin's Case would appear to be unexceptional, even under current principles. Calvin was born in Scotland after James I of Scotland acceded to the throne of England and the question was whether Calvin was an alien in England and as - - -

GUMMOW J: For what purpose?

MR HAMLYN-HARRIS: Because under the law at the time an alien was disabled from holding land in England or bringing an action to recover land in England, and that was, in fact, the issue in that case, but it was held in that case that he was not an alien in England. That really is just perfectly consistent with the original idea at the time of Federation that all persons who were subjects of the indivisible sovereign were not aliens as between themselves, so that really does not advance the argument. There are two United States cases of Thomas v Acklam in 1824 and Auchmuty v Mulcaster in 1826. They are both conveniently discussed in the In re Stepney Election Petition, Isaacson v Durant Case.

McHUGH J: Did those cases not bring about a change of doctrine, in effect, overrule Calvin? Anyway, it does not matter.

MR HAMLYN-HARRIS: In the Stepney Election Petition Case there is certainly disapproval of some dicta in Calvin, but I did not understand that it overruled anything that it was decided in Calvin's Case. On pages 60 to 61 in the Stepney Election Petition Case - - -

GUMMOW J: Now, just going back to what you were saying before, what significance does your submission have for the Papua New Guinea Independence Act?

MR HAMLYN-HARRIS: Your Honour, the effect of that Act, as I understand it, is that once Papua New Guinea became independent then the people of Papua New Guinea who were Australian citizens before Independence upon Independence became aliens as far as Australia was concerned. Now, in my submission, that is consistent with the notion in the context of the current case that at 1987 - and once again I appreciate that this is controversial. But if, in fact, Independence was finally completed in 1986, then it is consistent with the New Guinea example that thenceforth, from 1986, people who are in the United Kingdom, for example, who were not aliens in as far as Australia was concerned until then, then became aliens. So that, in my submission, it does not - - -

GUMMOW J: But that class of persons to which the 1975 New Guinea Act applied included a large number of people who were born with the relevant characteristic and then lost it by virtue of an Act.

MR HAMLYN-HARRIS: Yes.

GUMMOW J: They were not naturalised people. I thought you said the power did not extend beyond dealing with revocation of naturalisation?

MR HAMLYN-HARRIS: Well, your Honour, it does extend in what we could call the independence situation and, in fact, that really seems to be exemplified by the independence of the United States of America. When the United States of America became independent from Great Britain, then all the people who remained in the United States, at least, generally speaking, became aliens as far as Great Britain was concerned. In fact, that is exemplified by these 1824 and 1826 cases which are amongst the material but are conveniently dealt with on pages 60 to 61 of the Stepney Election Petition Case.

In the first one, Thomas v Acklam, the proposition was established that a person born in the United States before independence became an alien in England after independence. In Auchmuty v Mulcaster, it is said to be "the converse" of that case. The facts are referred to on page 61 of the Stepney Election Petition Case. The person concerned:

left America when the Treaty of 1783 -

following the end of the war -

was signed. He came to England and there resided for some years. Then he returned to America in the service of the British Government, and some years after, when that employment came to an end, he stayed in America, married there, and there he died. The Court there held that, as he had not remained in the newly-made independent country when its independence was conceded, he was still bound by his allegiance to -

the United Kingdom and so, therefore, he did not become an alien so far as the United Kingdom was concerned.

GLEESON CJ: What would be the position of your client if he had been born in Hong Kong?

MR HAMLYN-HARRIS: Your Honour, I have not checked, but if the Australian Citizenship Act treated a citizen of Hong Kong in the same way that it treated a citizen of the United Kingdom up until 1987, then my submission would be that a person from Hong Kong would be in the same position as that of the applicant. I do seek to advance my argument further by reference to the significance of the Australia Act of 1986, which may not have the same significance, necessarily, in relation to someone from Hong Kong, because the point that I seek to make about the Australia Act is that it completed the process of independence of Australia from the United Kingdom. In the Stepney - - -

KIRBY J: I will not express my view again.

MR HAMLYN-HARRIS: No, your Honour.

GLEESON CJ: That is a promise.

KIRBY J: But I adhere to it.

MR HAMLYN-HARRIS: Yes, your Honour. The headnote of The Stepney Election Petition Case - - -

GUMMOW J: What do you get out of Stepney Election?

MR HAMLYN-HARRIS: I take it, it does not apply, your Honour.

GUMMOW J: I see. So it is confess and avoid?

MR HAMLYN-HARRIS: I beg your pardon, your Honour.

GUMMOW J: You confess it and avoid it. You do not rely on it?

MR HAMLYN-HARRIS: That is so, your Honour, but I seek to deal with it because the respondent is placing some reliance on it. The headnote says that:

Persons born in Hanover before the accession of Queen Victoria to the throne of the United Kingdom -

that is when Hanover and the United Kingdom had the same monarch -

and not naturalized, are, though resident in the United Kingdom, aliens, and not entitled to vote at the election of members of Parliament.

On the face of it, that runs counter to my submissions, because those persons were said to be resident in the United Kingdom and nevertheless were aliens. Could I refer your Honours to page 63 of the judgment of Chief Justice Lord Coleridge? In relation to the facts of that case his Honour said - his Honour early in the judgment referred to the question of election - of a person electing allegiance and said that there was no principle under which a person could elect to change their allegiance under the notions of allegiance which were effective as at that time, 1886.

So having dealt with the fact that a person could not, in principle, elect to change their allegiance, that is to change the allegiance from Hanover to the United Kingdom, his Honour said at the bottom of page 63:

It was further pointed out that in this case there was no proof of an election in fact, no evidence how long these voters had resided in this country, nothing inconsistent with the supposition that one or all of them might have come into this country quite recently, and even animo revertendi.

So, on the facts, it would appear there was no evidence of the persons having established a sufficient connection with the United Kingdom, but also the notion that because allegiance is a mutual thing, a person cannot elect to change their allegiance is not part, in my submission, of the modern or current notion of allegiance. In fact, the Australian Citizenship Act 1953 recognises the fact that a person may have dual allegiance, and in very recent amendments to the Australian Citizenship Act there is recognition to the fact that a person can take up citizenship of a foreign country without having to renounce their Australian citizenship, which was previously the situation.

Also in the case of Sue v Hill, the respondent, Mrs Hill, was held to be a citizen of a foreign power within the meaning of section 144 of the Constitution, but in fact, she is an illustration of the fact that she was, whilst a citizen of a foreign power, also a citizen of Australia. So that she was a citizen of a foreign power, without being an alien, as far as Australia is concerned, which really reflects modern notions of allegiance as opposed to the notions which seem to have been of some significance at the time of the cases like this particular case.

Reference is also made by the respondent to the case of Prince Ernest of Hanover v Attorney-General in 1956. As I understand that case, it is primarily a case which turns on questions of statutory construction, particularly the construction of very old legislation, and it does not, in my respectful submission, appear to advance the argument in this case.

Your Honours, just before I conclude my submissions on the aliens power, the respondent has submitted that the applicant could not be absorbed or become a member of the Australian community because he was a child at the time that he arrived in Australia. In my submission, that is really contrary to what was said by his Honour Justice Gibbs in - - -

KIRBY J: It is Pochi, is it?

MR HAMLYN-HARRIS: I was thinking of the - - -

HEYDON J: Henry's Case in 133 CLR?

MR HAMLYN-HARRIS: Yes, I think so, your Honour.

HEYDON J: [1975] HCA 62; 133 CLR 369.

MR HAMLYN-HARRIS: R v Director-General of Social Welfare (Victoria); Ex parte Henry. In that case his Honour - I am sorry, it was Justice Gibbs - at page 373 was referring to the provision of an Act of Parliament providing for the guardianship of an immigrant child. His Honour said at the bottom of page 373:

I consider that a person who has immigrated into Australia will pass beyond the range of the power when the act of immigration is at an end - that is when that person has become a full member of the Australian community. It follows, in my opinion, that the Parliament can attach to the entry of an immigrant who is a child the condition that the child have a suitable guardian and can ensure that the guardianship subsists until the child has been fully absorbed into the Australian community, but cannot validly make a law providing for the guardianship of a child who has become a member of the Australian community.

GLEESON CJ: Now, if you go back to 373 four lines from the bottom, his Honour used the expression "when the act of immigration is at an end".

MR HAMLYN-HARRIS: Yes.

GLEESON CJ: What does that have to do with the status of alienage?

MR HAMLYN-HARRIS: Your Honour, certainly it refers to the concept of immigration ending by a person becoming a member of the Australian community.

GLEESON CJ: Because immigration is an activity.

MR HAMLYN-HARRIS: Yes, your Honour. The principle does not apply in exactly the same way with the question of the aliens power, but in my submission the person who was in Australia when, generally speaking, British subjects became aliens for the purposes of the Constitution needed to have a certain connection with Australia, and, in my submission, that is they needed to have become a member of the Australian community.

Now, I understood that the respondent may have been submitting that that was something the applicant in this case could not do because he was a child. I really seek to refer to this case for the proposition that the fact that a person is a child does not affect the capacity of that child to either become absorbed for the purpose of the immigration power or become a member of the Australian community for the purpose of the question of the application of the aliens power.

HEYDON J: Mr Justice Gibbs is in a minority on that point, is he not?

MR HAMLYN-HARRIS: I am sorry, your Honour, I did not - - -

HEYDON J: Sir Garfield Barwick, at the bottom of page 372, suggests that:

a person under the age of twenty-one may not choose to join the Australian community till he or she is twenty-one -

Mr Justice Stephen, on page 378, seemed to indicate that a child could not acquire membership of the community by itself.

MR HAMLYN-HARRIS: Your Honour, Chief Justice Barwick did say that but then, almost at the top of page 373, his Honour went on to say, on the third line:

Thus, it seems to me that, so read -

and I think he is referring to reading the section down, that -

the section provides only for the guardianship during the period the immigrant child remains an immigrant, with, in any case, an upward limit of the attainment of twenty-years of age.

So, if I understand that correctly, his Honour seems to be accepting the concept referred to by Justice Gibbs, that the immigration power, even in relation to a child, does not extend beyond the time when the child is absorbed into the community. I am sorry, your Honour, I do not recall what Justice Stephen - - -

HEYDON J: At the top of page 378:

Without legal capacity I would doubt the ability to be absorbed -

MR HAMLYN-HARRIS: Thank you, your Honour. Yes, I am sorry that I did not advert to that alternative opinion.

GUMMOW J: The analogy with domicile is pretty powerful.

MR HAMLYN-HARRIS: Your Honour, except that, in my submission, if it were correct that the applicant because he was a child could not become a member of the Australian community or could not become absorbed for the purposes of the immigration power, then the situation that would result is that his parents, whom he came with as a very young child, would become members of the community and would pass beyond the reach of the immigration power, for example, but he, as a child, would not. In my submission, that is really contrary to the notion which must be fundamental, which is that children are as much members of the community, and, if it is a question of citizenship, children are citizens as much as adults are, notwithstanding their lack of capacity to give an informed consent to such a process.

Also, under the Australian Citizenship Act, as I have mentioned earlier, it is possible for a child to become naturalised, presumably without being able to exercise any choice independent of his parents in so doing. So, in my submission, there is no reason in principle why a child cannot become a member of the community in precisely the same way that an adult does, by being accepted into the community and adopting the community, even if the child does not have the capacity, perhaps, to understand that that is happening.

GUMMOW J: Well, his first sentence of imprisonment was when he was 18, by the look of it.

MR HAMLYN-HARRIS: No, younger than that, I think, your Honour.

GUMMOW J: Imprisonment?

MR HAMLYN-HARRIS: I am sorry, yes, that is so, your Honour.

GUMMOW J: When he was 18?

MR HAMLYN-HARRIS: Yes.

HEYDON J: Seventeen, actually.

GUMMOW J: Yes.

MR HAMLYN-HARRIS: Your Honours, perhaps if I could, because it is really a very similar issue, if I could move to the question of the immigration power, because as I understand it, the respondent's submission is that it is accepted that a person can cease to be subject to the immigration power by being absorbed into the Australian community, but the respondent submits that, in this case, the applicant did not become absorbed because of the criminal offences that he committed.

KIRBY J: I thought that the two arguments were the adulthood/childhood argument as well as the criminality argument.

MR HAMLYN-HARRIS: Yes, that is so, your Honour. In relation to the criminality argument, I firstly would accept, with respect, what his Honour Justice Callinan said in Re Te and Dang to the effect that the commission of criminal offences in Australia may prevent a person from becoming absorbed into the Australian community.

The argument in that case, which was rejected by the court, was that an alien could cease to be an alien by a process of absorption and that whole concept was rejected unanimously by the court, but his Honour Justice Callinan did deal with the question which it was not really necessary to decide, which was whether in any case a person who committed criminal offences could be absorbed, and I accept that, for example, if an adult person comes to Australia and really, for the duration of the time or much of the duration of the time that they are in Australia, they commit criminal offences, then it would be reasonable to conclude that that person has not become absorbed into the Australian community.

But, in my submission, the situation is different in relation to a child, particularly a child who arrives and settles in Australia with his family at the sort of age that the applicant did in this case. Firstly, under the legislation, the only condition or restriction placed on his capacity to become a permanent member of the community was the one that related to criminal acts within five years, so that, in my submission, after five years he really passed beyond any conditions attached to his right to remain in Australia. So therefore, in my submission, he was absorbed into the Australian community, as far as the immigration power was concerned, well before he began committing the criminal offences which appear on his criminal history.

HEYDON J: Particularly as we just do not know any facts about his life other than the small number recorded in the case stated. You bear an onus presumably of proving absorption or demonstrating absorption.

MR HAMLYN-HARRIS: Yes.

HEYDON J: And you say it follows simply from the fact of having come here with his parents at a young age?

MR HAMLYN-HARRIS: Yes, and all that flows from that in terms of becoming a permanent resident and, in my submission, a permanent member of the Australian community.

HEYDON J: He started outlawing himself, as it were, from the age of 14 onwards.

MR HAMLYN-HARRIS: Yes.

HEYDON J: Which is about the age you start to be able to make up your mind.

MR HAMLYN-HARRIS: Unfortunately that is so, your Honour, yes.

KIRBY J: One reason for preferring the view of Sir Harry Gibbs, if it is open, on Henry is that migration being a process, it is a long way from the process in point of time, circumstance, involvement in the activities of migration by the time he reaches the age of 14. I think he was two when he arrived?

MR HAMLYN-HARRIS: Approximately 18 months old, so a little less than two, your Honour.

KIRBY J: So that is a long way in point of time and in point of his life from the moment that he arrived and began the process of migration as it affected him.

MR HAMLYN-HARRIS: Yes, and, your Honour, in that regard, the fundamental proposition about the limits of the immigration power is that the immigration power cannot apply to someone who is no longer an immigrant. Then there is reference to absorption or becoming a member of the community as describing the circumstances by which a person ceases to be an immigrant, but the fundamental question is whether the person has, at the time that the power is sought to be exercised, ceased to be an immigrant. My submission is that notwithstanding the fact that unfortunately the applicant - - -

GUMMOW J: The clearest evidence of it would be to take out citizenship, if it were open to you. It may not be open to you by reason of a criminal record and so on and so forth.

MR HAMLYN-HARRIS: Yes, I think that we do not have any evidence on that, but that would appear to follow, your Honour, and also whilst there is provision, as I mentioned, for a child to take out citizenship, in effect, at the behest of his parents, I do not believe that a 14 year old could have done it on his own. So that, in short, because of his criminal offences, the applicant has probably made it impossible for him to become an Australian citizen in that the discretion, presumably, may have been exercised against that - - -

GUMMOW J: But he is advantaged over other aliens.

MR HAMLYN-HARRIS: I am sorry, your Honour?

GUMMOW J: There are other aliens who have come here who cannot take up citizenship on similar facts to this, agreed? If he had come from Italy and these facts obtained, he would not now take out citizenship by reason of his criminal activities. There would be a problem about it, would there not?

MR HAMLYN-HARRIS: Yes.

GUMMOW J: But this gentleman is advantaged because he happens to come from the United Kingdom. Now, what is the rationality of that?

KIRBY J: I suppose one might say we had to take him along with all the other very good people who have come here. He is the one exception, but overwhelmingly the hundreds of thousands have been good people.

MR HAMLYN-HARRIS: Yes.

KIRBY J: You cannot just say from the point of view of the Constitution the word "alien" if he is not an alien that he loses that by reason of the fact that he has misbehaved. Somehow in these things if he is a quasi citizen you take the good with the bad.

MR HAMLYN-HARRIS: Yes.

GUMMOW J: And the Constitution is mandating some discriminatory process of status based upon national origin.

MR HAMLYN-HARRIS: Well, with respect, your Honour, in my submission, the effect - - -

GUMMOW J: An odd thing for a country which is a country of people who have come from elsewhere.

MR HAMLYN-HARRIS: To discriminate?

GUMMOW J: To a very large degree. Yes.

KIRBY J: Well, we did discriminate for a very long time.

MR HAMLYN-HARRIS: Yes.

KIRBY J: It is not so odd in our history.

GUMMOW J: It is odd to be inventing a new category; that is what I am putting to you.

MR HAMLYN-HARRIS: Your Honour, with respect, it could be regarded as a form of discrimination but it is a discrimination which is based on historical circumstances, rather unusual historical circumstances, and when it comes to the applicant in this case who, as your Honour Justice Gummow has pointed out, is in a favoured position compared to someone from Italy who also commits criminal offences, the reason for that, in my submission, is the more general principle which, as your Honour Justice Kirby has mentioned, applies to good people and bad people which, in my submission - - -

GUMMOW J: We are not comparing good people to bad people. We are comparing bad Italians and bad British people.

MR HAMLYN-HARRIS: That is so, your Honour, but the proposition, in my respectful submission, is that a good British person has to be treated in exactly the same way as a bad British person. I mean, that is subject to an examination of the actual facts, and of course if a British person arrived as an adult and immediately began committing criminal offences, then I would accept that they would not permit themselves to become a member of the community.

The other aspect of it, in my submission, is that in some ways when a person arrives in Australia at the age that the applicant did, if he is to be regarded as an alien or continued to be an immigrant because of that, it is really in effect to attribute his criminality to his birth or the fact that he was born in the United Kingdom rather than to his upbringing in Australia.

Finally, on the question of absorption, in any community, such as the Australian community, there are members of the community who are criminals, unfortunately, and those who are not, and yet they are equally members of the community. They may not be good members of the community, but they should be regarded equally as members of the community.

Those are my submissions on the aliens and immigration powers. The only other issues which are raised by the respondent is the external affairs power and the implied nationhood power. If I could deal, firstly, with the question of the external affairs power, and I have dealt with both of these issues in my reply. In my submission, whilst the external affairs power must be interpreted very widely with all the generality that the words can admit, the interpretation is nevertheless subject to the subject matter, in accordance with accepted principles of the interpretation of the legislative powers of the Parliament.

In my submission, if it is accepted that the applicant is an alien, then it would seem to follow that his removal from Australia would be justified under the aliens power and also under the external affairs power. But if my submission that he is not an alien and cannot be treated as an alien is accepted, then, in my submission, there is nothing external to Australia about the proposal to remove him to Australia, because if the alien submission is accepted, he is a non-alien member of the community and therefore cannot be subject to the operation of the external affairs power.

Finally, on the implied nationhood power, the suggested application of that power, in my submission, does not in any case extend to the situation - I am talking about in decided cases - does not seem to extend to any situation similar to that of the issue that we are concerned with here. The implied nationhood power recognises that there are certain powers, in effect, inherent in the fact that Australia is a sovereign power, but it does not follow from that that the power of the Parliament to pass laws is unlimited simply on the basis that it is a sovereign power, because that is what the - - -

GLEESON CJ: Otherwise they could banish people.

MR HAMLYN-HARRIS: Yes. Your Honour, my submission is that, in all of the suggested uses it has not been suggested for this type of situation. Just finally, whilst it might seem therefore that, in some respects, the legislative power of the Commonwealth has limitations, whereas the legislative power, generally speaking, of sovereign powers is not limited, the power of the Australian Parliament is limited only by the Constitution and it is possible for the Constitution at any time to be changed by the will of the people. Those are my submissions, thank you, your Honours.

GLEESON CJ: Thank you, Mr Hamlyn-Harris. Yes, Mr Solicitor.

MR BENNETT: Your Honours, like my learned friend, I will start with the aliens power then deal with the others powers. In relation to the aliens power I propose to start with some general comments. I accept my learned friend's first submission, which is that in 1903 a person coming to Australia from the United Kingdom and settling here would not be an alien in the constitutional sense, but that today such a person would be.

Now, my learned friend then says at some point, by what has variously been described as a mystical process, or a process of osmosis, that changed. We say rather that it changed at a particular point. It may be difficult to identify that point, the Court has not identified it, and it may be that the Court will never have to identify it. It does not need to identify it in this case for reasons I will give in a moment, but, the fact that there is difficulty identifying it and we have not had the need to do so yet, does not mean that that did not occur.

When I come to that part of my argument I will be submitting that it occurred earlier rather than later, probably in 1948, although there is a case for each of a number of other dates but our primary submission in relation to the aliens power is that whatever that date is, whatever the date when people who came from the United Kingdom and settled in Australia were aliens, there was a change at that date in relation to people who were already here.

In other words, that one can become an alien because of external events, even though it may be difficult, and even difficult for this Court, to identify those events. I will deal with that submission first, before I come to the submission as to what the relevant date is.

In relation to the change, may I put this. Let it be assumed, as seems to be clear, that before a certain date there is no Australian citizenship or nationality, whatever word one wishes to use, within the meaning of the word "alien" in the Constitution, so that "alien" simply means as it did in 1900, a person who is not a British subject.

Let it be assumed that that is so and let it be assumed that by some means, as I will be submitting, that changes and that after that date there is a concept of Australianism - whether one uses Australian nationality, citizenship, non-alienage, whatever words one wishes to use - within the meaning of the Constitution which excludes people from other Commonwealth countries who might otherwise be British subjects. If one assumes that, why does one not, as a matter of logic, take the next step and say, "Well, that change affected people who were already here"? We know that whatever that change is affected people born in Australia. As I say, we submit, it is probably 1948. In 1948, people who had previously been just British subjects because they were born in Australia, woke up the next day without any bell ringing and they were Australian citizens.

KIRBY J: Justice Gaudron suggested the answer to your question was because you are making a fundamental change in the status of a lot of people who came to this country and lived here peacefully, were voters, had passports, had duties to jury service and so on, without giving them an opportunity to be heard.

MR BENNETT: The legislation does not need to give people an opportunity to be heard, and, in any event, they voted for the Parliament which did it. They were eligible to vote for it, if one does go to that detail. But many changes affect people and this change, whatever it was, affected a large number of people. It also affected, in one sense, 10 billion people, or however many the population of the world was then, excluding Australia, because - I am sorry, I withdraw that. It affected the population of the Commonwealth outside Australia, because everyone in India, in Pakistan, in Rhodesia, in Ghana, in England, woke up one morning, whenever that morning was, and found that under Australian legislation that person was an alien. That seems to be accepted.

Now, every Australian woke up, if it was 1948, that morning - every person born in Australia - and was able to say "I am now an Australian citizen" and in 1987 every person born in Australia lost the status of being a British subject under Australian law. Those things took place as a result of legislative change. Why do we baulk at saying that people who had migrated to Australia from a small number of Commonwealth countries listed in the relevant legislation could not have undergone whatever change is necessary under the Constitution?

We call in aid the case which everyone seems to accept as being correct, the Stepney Election Petition Case of Isaacson v Durant. Once one appreciates that that case was decided in an era when the law was wedded to the indivisibility of the Crown - so accepting the indivisibility of the Crown, the logic of the Stepney Election Petition Case is this, that when King William IV was King of England and Elector of Hanover, the Hanoverians living in England were not aliens because they owed allegiance to the same person. Calvin's Case, your Honours will recall, makes the rather quaint point that the king has a physical and personal status, as well as a representative status, and your allegiance is owed in the first rather than the second - something that is a little difficult to accept today, perhaps.

Nevertheless, that was the point of Calvin's Case and that was the point in the Stepney Election Petition. Because the allegiance then became divided, because the Salic law meant that Queen Victoria could not become the Elector of Hanover and Prince Ernest did - whereas Queen Victoria became Queen of England - there was no longer that unity, and it followed that Hanoverians resident in London suddenly, by a process over which they had no control, became aliens. There is nothing surprising in that, but it is exactly - - -

KIRBY J: It is hardly analogous. Here is a migrant country that welcomes people, that even pays their passage for hundreds of thousands of people. They come here to this migrant country in a special status which is equalised by our law and our recognition, and on one view, our Constitution, to that of our nationality, and later our citizenship, and we welcome them and include them in our community, and they have all these rights. It is completely different to the position of the elector of Hanover. I regard that as a very remote analogy for deciding what alien means under our Constitution in this migrant country.

MR BENNETT: Your Honour, that argument may or may not go to the merits of the law, but it does not go to its constitutionality, we would submit.

McHUGH J: But why not? You see, you concentrate on the word "alien" and you want to divorce it from the Constitution. Now, this is a Constitution that says, in its preamble, that the people have united:

under the Crown of the United Kingdom of Great Britain and Ireland -

You have the oath in the schedule, you have section 2:

The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

You yourself opened your argument by conceding that in 1900 "alien" is a person who is not a British subject. Now, you only get that definition because of these other provisions. Nolan stretched the Constitution beyond breaking point. It changed the meaning of the term "subject of the Queen", but let it be accepted that you are entitled that it is too late to turn that back or we do not want to turn it back. Why should not the same process be used in respect of the rights of the people who had the protection of the Queen be changed and evolve?

MR BENNETT: Because, your Honour, our Constitution is not one which contains a Bill of Rights. The word "alien" is not a word in the Constitution placed there for the purpose of conferring some rights on people who are non-aliens.

McHUGH J: No, I know, but, it is first of all, it is since 1951 and it is subject to the Constitution, and 117 is, on your argument, people just lose their section 117 rights?

MR BENNETT: Yes, your Honour, but, your Honour, with respect to use - - -

HAYNE J: I am surprised you agree with that, Mr Solicitor. I would have thought that the critical question was, in covering clause 2, what is meant by "in the sovereignty of the United Kingdom", in 117, what is meant by "subject to the Queen" and what operation is to be given to those expressions over time.

MR BENNETT: If I can deal with them separately. Your Honours, first to use section 117 - - -

GUMMOW J: And to the.....of the schedule, if I may say.

MR BENNETT: Yes, your Honour. Perhaps I could deal with each one separately and start from section 117.

GUMMOW J: Well, one thing we know, they cannot work according to their terms anymore.

MR BENNETT: They cannot, your Honour. Your Honour, we rely simply on - - -

GUMMOW J: And could not work according to their terms since 1922.

MR BENNETT: Your Honour, precisely. We rely on, whether one calls it concept and conception or identification of connotation, the words have changed. But can I just say this about section 117. To use that as governing the whole of the argument is, with the greatest respect, really using the tail to wag the dog. It is a case which I think has involved this Court in considering rights under it on four occasions - there may be a fifth, there may be five. In at least two of those it was held not to apply. It is hardly one of the basic protections which Australians go to bed at night comforted by the existence of. It is a provision in the Constitution - - -

McHUGH J: I do not know. Mr Street did and Mr Robinson - - -

KIRBY J: It came to the aid of the Bar.

MR BENNETT: Yes, and Mrs ....., although Mr Jones failed and - I have forgotten the name of the case, the one about the barrister in South Australia, he failed.

McHUGH J: Henry v Boehm.

MR BENNETT: Henry v Boehm, yes. Mr Henry failed. But this is not something which is of such fundamental importance that it must be allowed to govern the far more fundamental matter of the question of alienage and the powers given to the Australian Government. In my respectful submission, aliens and naturalisation is conferring upon the Australian Government a - - -

KIRBY J: Parliament, please.

MR BENNETT: - - - on Parliament, I am sorry, on Parliament a head of power which every sovereign nation has to determine who is - whether one uses the words "a citizen", "a national", "an alien" - in relation to that country and who is not, and it confers that right by using the words "aliens" and "naturalisation".

GLEESON CJ: Now, perhaps you can come back to this point at 2.15, Mr Solicitor.

MR BENNETT: Yes.

GLEESON CJ: We will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: May it please the Court. Your Honours were asking me before the adjournment about covering clause 2, section 117 and the oath, and perhaps I should add section 34(ii) of the Constitution. May I start with covering clause 2. That clause, in my respectful submission, is easily explicable once one accepts that at the time of the Constitution the Crown was indivisible. It is talking not about the capacity in which the Queen is the Queen, but rather about who she will be. It is talking about succession, in other words.

Now, there may be some interesting questions which arise about Australia's power to determine the succession and there may be issues one day if questions arise about whether the law saying that the monarchy can pass equally to male and female, even though there are daughters older than sons - I mean, there are all sorts of problems that may arise in the future, but at the moment it is sufficient to say it is a clause dealing with succession and dealing with the identity of the monarch, rather than the capacity, because at that time, in the light of Calvin's Case, one assumed the indivisibility of the Crown. When one goes to section 117 and 34(ii) - - -

HAYNE J: Before you leave covering clause 2, it is cast in terms of "The provisions . . . shall extend to". What is the significance of that phrase? It is not as though it is providing for succession - plainly, it is contemplating that succession will occur. "The provisions . . . shall extend to".

MR BENNETT: It is to avoid the rather whimsical interpretation, which might otherwise be applied, of someone saying, "Once the Queen is dead, there is no one to whom those provisions apply". It is making it clear that "Queen" is to be read as meaning whoever for the time being is monarch of the UK, but not necessarily, I stress, in that capacity.

Section 117 is easy, of course, "a subject of the Queen". Once one applies doctrines of divisibility of the Crown, it means the subject of the Queen in her relevant right or in her relevant capacity, and that we know now means Australia. It happened to mean UK as at 1900 because UK was the same as Australia for that purpose. Australia was a colony; pace the view of Justice Murphy on that subject.

Section 34(ii) also uses the phrase "subject of the Queen" but there there are perhaps greater hints than elsewhere of the possibility that one is talking about something Australian and in the future there may be a different view, because it specifically referred to a person who had been:

naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

It would not include someone naturalised in India or South Africa. But otherwise it is the same position as section 117.

This is the oath taken by members of Parliament, and under the letters patent it is also the oath taken by the Governor-General, as your Honours would know. Under the letters patent, of course, it is one of your Honours who administers the oath. If one looks at the form of oath, there is a note after it on which reliance is sometimes placed. But, again, all that is talking about is who is the person who holds the office, not the capacity in which it is held.

Indeed, the words of the oath itself must prevail over the note and the words of the oath and affirmation themselves are:

Her Majesty Queen Victoria, Her heirs and successors according to law.

Reading that as the law of Australia it becomes much easier to apply a Nolan sort of approach. We would submit there is nothing radical or nothing surprising - I should not say "nothing radical" - nothing surprising in Nolan saying once you have the constitutional evolution that those things can change.

I was dealing before I answered some questions about these provisions with the example of the Hanoverians. There are, as your Honours have heard, a number of other examples of people losing or changing citizenship or becoming aliens by virtue of external Acts. There is the US Colonies Cases, there is Papua New Guinea, where virtually the entire population of Papua were, prior to that, Australian citizens and they all lost it. "As long as they had two indigenous grandparents" I think the test was.

McHUGH J: We have a case in Brisbane next Friday week, Walsh v The Minister, on this very issue.

MR BENNETT: Yes, there is, your Honour. That involves a slightly different issue.

McHUGH J: Yes.

MR BENNETT: It involves a number of different issues. It is an example of people en masse losing their citizenship by virtue of legislation. There are provisions in the legislation, and have been for many years, dealing with people losing their citizenship by serving in foreign armies, by renouncing citizenship, by taking citizenship of foreign countries and that sort of thing. Why does one draw a line in the sand and say, "But those are voluntary things" and we put on the one side notorious constitutional events and voluntary acts and on the other side less notorious constitutional events or statutes and other matters which may affect people's status. People's status can be affected in many ways. In my respectful submission there is no reason for drawing a constitutional line in the sand in that respect.

There is another aspect which one needs to be careful of, because there is an easy logical or linguistic fallacy one can fall into in this area and that is one starts with the truism, a statute cannot alter the meaning of a word in the Constitution; that, of course, is a truism subject to doctrines of evolutionary change and the annotation and connotation. But, on the other hand, it does not follow from that, that a statute or, indeed, an executive act or an event cannot cause a person to move into a constitutional category. The Bankruptcy Act cannot change the meaning of the words "bankruptcy and insolvency" in the Constitution, but it can define who becomes a bankrupt and that person undergoes a change of status on becoming a bankrupt. The same applies to marriage, the same applies to divorce and to any of the status powers.

To say that Parliament cannot change the constitutional meaning is not to say that the Parliament cannot enact that a person becomes a member of the class, if the constitutional meaning of the class encompasses that possibility, and that, of course, gets one into a slight degree of circularity. Once the power deals with aliens and naturalisation it is dealing with a status and a process. We know from Kartinyeri, no doubt, that naturalisation includes denaturalisation of a person who has been naturalised, so it is at least dealing with those processes.

Now, why does one draw a line in the sand and say, if a person has, because of a transitional status, picked up on the way between being a colony and being an independent country, a person has certain rights because of a transitional status like being a British subject under the 1948 legislation, which was an anomaly which existed for 39 years in Australia and the other countries of the Commonwealth, why does one then say, well, because a person has that status, that person in some way can never be removed from it? Where does the Constitution say a non-alien has the - if you will excuse the pun - inalienable right not to be made into an alien? Where does one find that idea? In my respectful submission, one finds it nowhere.

Now, there are other problems with saying that on the relevant date, whatever it was, UK citizens in Australia did not continue their non-alien status. One is this: what does one say about the British tourist in Australia on that day, the person who is here for a week,? Does one say, "No, that person, because he or she arrived in Australia prior to the relevant date and was a British subject on that date, that therefore it follows that there is some magically status forever"? No one would suggest that.

So one has to then draw some sort of distinction. One has to say we are only talking about people who are here in some more permanent way. Is one talking about residents, people who intend to reside here, domiciliaries, immigrants or people who have gone through the period of being immigrants? What is one talking about? Once one says that they did not lose their non-alien status on that day, one has to answer all those questions. One then has to answer some of the questions which are before the courts at the moment, which I have referred to in our submissions, about people who leave, who are here just before for some period and then leave. How long do they have to stay in England before they lose the status they acquired under Patterson by being here on the relevant day or just before?

McHUGH J: Yes, but these questions are no more difficult than one has to determine under the immigration power or the secondary phase of the defence power. Petrol rationing, control of real estate, was all valid up until 1949 and the same with preference to servicemen in Illawarra v Wickham. Suddenly one day it just disappeared because this Court said so.

MR BENNETT: Your Honour, that is so, but, in my respectful submission, it is more in accord with normal constitutional interpretation to say, once there was an Australian citizenship created, that was the end of it. But I will come back to the question of which the date was. The only other point I would make about the question of losing your status is that it has always been an aspect of sovereignty that people can be outlawed or banished or exiled subject to whatever constitutional limitations there are and there is, again, nothing surprising in finding that in the aliens power.

I remind your Honours of this fact about the examples of people born in Australia, in Australia on the day of change, who all overnight changed the nature of their allegiance, and the other one of other members of the Commonwealth in their own countries on that day, who were clearly affected.

One ironic consequence of the distinctions drawn by four members of this Court in Patterson is that people in Australia who were born in Australia have their rights completely changed overnight by some event; people in the rest of the Commonwealth, born there, have their rights changed overnight by that event; but this funny, intermediate group of people who were born in five Commonwealth countries and in Australia at that time for some reason do not.

KIRBY J: It is not a funny intermediate group. It is a group of people whom we welcome to this country in the equivalent of our nationality and we paid them to come here in large numbers.

MR BENNETT: Some of them, your Honour, yes, but against that - - -

KIRBY J: Do you have any idea of the numbers that are affected by the decision of the constitutional principle that is decided in this case?

MR BENNETT: There are some figures given to this Court in Patterson which showed that there were, I think, half a million between 1959 and 1969.

KIRBY J: Quite. It is a lot of people.

MR BENNETT: What the overall number - - -

KIRBY J: Your theory of the Constitution puts them at risk of removal at the whim of a minister.

MR BENNETT: Yes, your Honour, which they could - - -

KIRBY J: That is an outrageous theory as far as I am concerned.

MR BENNETT: Which they could have avoided, your Honour, had they during the 39 years in which it was open to them, availed themselves of the provisions concerning registration and, indeed, that was made available to them and is still available to them today. It may not be available to my learned friend's client for obvious reasons, but leaving aside that subcategory, which of course is a very much smaller subcategory, they are people who have deliberately chosen not to become Australian citizens when - - -

KIRBY J: They have not deliberately chosen. They have to do jury service, they can vote for most part up to a certain point in elections, they are liable if it is revived to national service, they live within their own view as the equivalent of Australian citizens because they owe the same allegiance to the same Queen as a person and they came here, many of them on assisted passage, and view themselves as the equivalent of Australian citizens in that transitional period.

MR BENNETT: We would say a different Queen, your Honour. Whether they were assisted or not - - -

KIRBY J: Not originally.

MR BENNETT: Whether they were assisted or not cannot make a difference with respect, your Honour, to the analysis.

KIRBY J: Many of them were.

McHUGH J: When they lined the streets in 1954 they did not think they were cheering a foreign sovereign, did they?

MR BENNETT: Your Honour, the popular ignorance - - -

McHUGH J: On your theory she was the Queen of Australia at that stage.

MR BENNETT: Yes.

McHUGH J: And she was not their sovereign.

MR BENNETT: She was the Queen of Australia at that stage for one of a number of possible reasons, one of which is the Royal Styles And Titles Act, one of which is the Statute of Westminster or its adoption in 1931 and 1942 respectively, and one of which is the Commonwealth conference of 1928 which is probably the real origin of the idea of the divisibility of the Crown, although there are dicta in the Indian Association Case, which I will take your Honours to, suggesting that the divisibility of the Crown had its origins as early as the British North America Act in 1867, but we do not need to go that far of course.

HAYNE J: Just one matter of fact, Mr Solicitor, that you might be able to help me with. Was the assisted migration scheme confined to Britain?

MR BENNETT: I do not know, your Honour. I can find out.

HAYNE J: I had in mind it was not.

McHUGH J: I do not think so. No, I think there were - - -

HAYNE J: I thought it extended, for example, to bringing large numbers of Italian, Greek, any other nationals - - -

McHUGH J: Yugoslavs.

MR BENNETT: I will have an inquiry made, your Honour, and if I may have leave I will provide a note dealing with that. May I move now to the question of what the relevant date is? It is convenient to start this topic by addressing your Honours a little bit about the question of divisibility of the Crown. Might I remind your Honours of the decision of the English Court of Appeal in R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Alberta, [1982] 1 QB 892.

GUMMOW J: Did we refer to this in Sue v Hill?

MR BENNETT: I think we have given your Honours copies of this.

GUMMOW J: Yes. Did we refer to this in Sue v Hill?

MR BENNETT: I think your Honours did, yes. Yes, your Honours did. It is referred to in Nolan I think, your Honour. It is referred to in Nolan at page 184 of the report. I am not certain about Sue v Hill.

If I can just show your Honours two passages. First, in the judgment of Lord Denning, at the bottom of page 916 his Honour says:

Hitherto I have said that in constitutional law the Crown was single and indivisible. But that law was changed in the first half of this century - not by statute - but by constitutional usage and practice. The Crown became separate and divisible - according to the particular territory in which it was sovereign. This was recognised by the Imperial Conference of 1926.

And it refers to a number of decisions in that conference. Then he says:

Thenceforward the Crown was no longer single and indivisible. It was separate and divisible for each self-governing dominion or province or territory.

Lord Justice May put it much earlier. He said at page 933B:

By the Act of 1867 -

that is, the British North America Act -

therefore, the Dominion and the provinces acquired a substantial degree of self-government and their own treasuries. Between then and the Imperial Conferences of 1926 and 1930 the Dominion acquired, largely by agreement and convention, increasing independence over and above that given it by the Act of 1867 from the United Kingdom and its Parliament until, by the Statute of Westminster 1931, it and the other Dominions referred to in that statute attained complete independence subject, in the case of Canada, to section 7 -

What he says about indivisibility of the Crown - - -

GUMMOW J: I think Lord Justice May is a bit simplistic, really. Independence is one thing, indivisibility of the Crown is another. The Canadians were hardly independent when the Privy Council was holding their statutes were invalid.

MR BENNETT: That is so, your Honour, yes. Yes, the relationship is shown in page 928E:

This divisibility of the Crown was recognised by the courts in this country at a relatively early stage in the evolution from Empire to Commonwealth. In In re Holmes -

the date is not given, but it is 1861 -

the Court of Chancery was asked to entertain a petition of right presented under the then recent Petitions of Right Act 1860 claiming the restoration of certain lands taken for a canal -

in Canada. It was before the British North America Act and, in effect, there was a decision saying that because the Queen is resident in England, that did not entitle them to sue in England in relation to an obligation of the Crown existing prior to that date. His Lordship goes on at 929D:

That the duties and liabilities of the Crown in right of the United Kingdom in respect of another territory or its peoples within the Commonwealth should devolve in this way upon the Crown in right of that territory as the latter attained its own legislature, and with that its own revenue and Consolidated Fund, was itself merely a natural consequence of that progress of self-government and ultimately independence.

GLEESON CJ: When did that expression "the Crown in right" of a certain body politic come into use?

MR BENNETT: I do not know, your Honour. I would suspect one of the Imperial Conferences, either the 1926 one or one of the later ones, but I do not know, your Honour.

The Royal Style and Titles Act of 1953 was, we would submit, the more important step than the Royal Style and Titles Act of 1973. The Royal Style and Titles Act of 1953 provided, as a result of a Commonwealth conference in 1952, that the Queen's title would be:

Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and her other Realms and Territories Queen -

That was different to the Royal Style and Title adopted in other parts of the Commonwealth; they did not even all follow the same formula. The different formulae used in different parts of the Commonwealth was not just a matter of substituting the name of the colony. The different formulae used are set out in Mr Menzies' second reading speech, which shows that, as a result of that conference, they all had a different view of how she should be described.

The reference to "the United Kingdom, Australia" rather shows that there are separate capacities. Mr Menzies said in his speech that he would regard it as almost unthinkable that the United Kingdom should not come first and be the first matter referred to. That was a point he had made at the Commonwealth conference, which a number of other Prime Ministers had disagreed with, hence the differing - - -

GLEESON CJ: He would be British to his bootstraps.

MR BENNETT: It is very clear when one reads this speech - sorry, we seem to have lost it. The importance is that if one is looking at a statutory reflection of the divisibility of the Crown, this is a very clear one. When one goes back to 1948 - if I can just support the candidature of that date as the relevant cut-off - what occurred was that for the first time Australian citizenship was created and people born in Australia, or of Australian parents, all became Australian citizens.

GUMMOW J: As a result of section 25, is it, of the 1948 Act? These are the people who woke up - they are section 25 people, are they not? The earlier sections of the postnati are the - - -

MR BENNETT: My Act seems to end at section 15, your Honour, but that may be - - -

GUMMOW J: I know.

HAYNE J: The good bits come much later, Mr Solicitor.

MR BENNETT: Yes.

GUMMOW J: Sections 51 and 52 are important too, I think.

MR BENNETT: Mine has section 51 omitted, your Honour, I am sorry. It is a reprint.

HAYNE J: I will hand you mine, Mr Solicitor.

MR BENNETT: I am grateful to your Honour. I apologise for that. Yes. Under section 25:

A person who was a British subject immediately prior to the date of commencement of this Act shall . . . became an Australian citizen if -

(a) he was born in Australia . . .

(b) he was born in New Guinea . . .

(c) he was a person naturalized in Australia; or

(d) he had had been . . . ordinarily resident in Australia . . . for a period of at least five years.

So those people were given Australian citizenship.

HAYNE J: The content of what was meant then by "British subject", that is, the content of the expression "A person who was a British subject immediately prior to the date" is to be derived from the then state of the law.

MR BENNETT: Yes.

HAYNE J: There is not to be an immediate and unthinking translation of that concept through into the concept that is spoken of in section 7(1) by use of the same expression. It may be the same, it may not be the same, but you cannot simply slide seamlessly between them.

MR BENNETT: Yes, I was about to submit that your Honour, yes. What was done was to create, in effect, a new status, a new meaning, namely a person who is described as a British subject by Australian legislation, and that was a descriptor which, as your Honour says, in our submission, had no relationship to the former concept which was a much more universal concept.

HAYNE J: But taking place also against the background of changes at the root, in the UK.

MR BENNETT: Yes, and, also, it is easier for lawyers who were brought up in the 1950s, 1960s, 1970s and 1980s to think of citizenship and nationality as two concepts, but, of course, in the entire world outside the Commonwealth and the entire period of time outside those 39 or so years, the words did not have a different meaning. It was simply a convenient use of language - perhaps an inaccurate use of language - designed to create two classes of people during what we now know was a transitional period of the decline of empire. It had no greater significance than that.

It is not as if there is some common law concept of citizenship on this side and a common law concept of nationality on that side; there is not. In my respectful submission, the better view - although your Honours do not need to decide that in this case - the better view is that the effect of the definition of Australian citizenship for the first time in 1948 was, pursuant to the power over aliens and naturalisation, to say, this is how we will determine who is a person who is an - whether you use the word Australian citizen, non-alien, within the meaning of the Constitution, member of the Australian community, or whatever phrase one wants to use. It was defined pursuant to that power in this way.

Now, that is not changing the constitutional meaning. It is saying who is to fit within it. The constitutional meaning, the connotation of the word "alien" is simply a person defined by the legislature of the sovereign State as a person who is not a member of its community. It can do that by using any word it wants. It can use the word "citizenship", it can use the word "nationality", it can use "non-alien", it can use any word.

We submit it chose to use the word "citizenship", and that is why I was at pains earlier to draw a distinction between defining a constitutional term and saying, if the constitutional term so permits, who is to fall within it. If the constitutional term - as this one does, in my respectful submission - contains within it the power to say who is in it and who is not, then the power is there.

We do not need to decide - or the Court does not need to decide in this case - further questions which may arise in the future, or may never arise, as to the right to take away, for example, the citizenship or nationality of a person born in Australia, against that person's will. We do not need to decide that. We do it already in relation to people who serve in foreign armies, swear foreign oaths of allegiance and renounce and so on, but the extent of that power under the aliens power is one which the Court does not need to consider.

It may arise in the future, but for present purposes it is my respectful submission that the best time, the best of the available dates for the purpose of saying when the change occurred, is 1948. The second best, if one takes allegiance as being the be-all and end-all, if one takes Justice McHugh's approach, we would submit that the appropriate date is 1953 rather than 1973.

HAYNE J: Now, those two submissions assign particular dates according to particular legislative activity of the Parliament, do they not?

MR BENNETT: Yes, they do.

HAYNE J: Another way of approaching it, I would have thought, would be to say that those legislative steps recognised an event that by then had occurred.

MR BENNETT: Yes.

HAYNE J: And that, if that approach were to be adopted, the contrast to be drawn would be between the word "aliens" in 51(xix) and one or more - perhaps all - of the expressions found in, for example, 44(i), 34(ii) and 117, of course, of the Constitution, namely, the expression "subject of the Queen", which invites the question, Queen in what right? What is meant by "subject of the Queen" and the like?

MR BENNETT: Yes. Your Honour, we would not deny that as a possible approach. I am content to submit that by 1948 or 1953 the relevant event had occurred.

HAYNE J: As was recognised by both the UK and the Commonwealth nationality changes.

MR BENNETT: Yes, precisely.

GUMMOW J: At the conference?

MR BENNETT: Yes. The relevant conference is probably the 1926 conference.

McHUGH J: That must be so, must it not, because as late as Engineers Justice Isaacs spoke of the Crown being one and indivisible throughout the Empire but its legislative, executive and judicial powers being exercised by different agents in different territories, so as late as 1920 the accepted view in this Court seems to have been as one and indivisible.

MR BENNETT: Yes. That approach, your Honour, probably goes back to the sort of approach taken in Calvin's Case where what was said was that there was the King in his representative capacity and the King in his personal capacity who was born, married, and died and so on, but that allegiance was owed in the personal capacity which sounds very foreign to modern thinking, but it was that idea that was largely behind what Justice Isaacs said in Engineers, your Honour.

Calvin's Case [1572] EngR 64; 7 Co Rep 1a and it is also in volume 77 of the reprint at page 377 - I do not think I need to take your Honour to it, but there is a lot of discussion about the allegiance to the King being by the law of nature and not depending on the coronation and being personal to the King and so on. At 388 at the bottom of the page this is said:

It is true, that the King hath two capacities in him: one a natural body, being descended of the blood Royal of the realm; and this body is of the creation of Almighty God, and is subject to death, infirmity, and such like; the other is a politic body or capacity, so called, because it is framed by the policy of man . . . is called a mysticall body;) and in this capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity, infancy, (a) nonage, &c. . . . Now, seeing the King hath but one person, and several capacities, and one politic capacity for the realm of England, and another for the realm of Scotland, it is necessary to be considered, to which capacity ligeance is due. And it was resolved, that it was due to the natural person of the King - - -

GUMMOW J: Yes. That is why they needed the Demise of the Crown Act because officeholders lost their offices.

MR BENNETT: Yes. It is that type of thinking which led to the doctrine of the indivisibility of the Crown and which one can understand becoming less and less meaningful. As early as the case of the - I am sorry - well, certainly by the early conferences and perhaps earlier in relation to Canada, on one view of it.

McHUGH J: The problem becomes blurred and perhaps it supports your proposition more so in the Australian Federation because certainly for a long period of time the term "the Commonwealth" was seen as embracing two conceptions. One was the King in right of a designated Territory such as a State or the whole land mass and the other as the people of that Territory considered as a political organism.

MR BENNETT: Yes.

McHUGH J: Now, although we still speak about the Crown in right of the Commonwealth, I think the emphasis is more on the second aspect.

MR BENNETT: Yes.

KIRBY J: Well, some speak of the Crown in right of the Commonwealth. That is another heresy in my respectful opinion. The Constitution talks of the Commonwealth.

MR BENNETT: Yes. I will not expatiate on that aspect. Now, for those reasons then we submit first that the date was, on any view of it, well before 1973, possibly 1948, possibly 1953, and on one view of it 1926, 1931 or 1942, depending on whether one regards as more important the decision of the Commonwealth conference, the Statute of Westminster or Australia adopting it. Those dates are available dates. The 1948 and 1953 dates have very strong claims, we would submit. Of course, if either of those dates are taken, they are well before dates which are relevant in relation to the present applicant.

HEYDON J: But 1973 would do for you for this case.

MR BENNETT: It would, your Honour. It would for this case but not for the many other cases with which we are concerned, but it would for this case, yes. That is why we have put as a fallback position the approach taken by Justice McHugh.

I should say this about the approach taken by Justice McHugh in Patterson, that there is one decision of Justice French in Western Australia, which I will take your Honours to in a moment - it is on the list - Long v The Minister [2002] FCA 1422 where his Honour held that the ratio of Patterson was the judgment of Justice McHugh on the basis that it was the lowest common denominator of the four majority Justices. That case is presently reserved by the Full Court. We would submit the better view of - - -

KIRBY J: Is that the correct way, as a matter of doctrine, to find the binding rule of a case? I am not asking that argumentatively; I am asking it to clarify the principle.

MR BENNETT: There is authority, your Honour, in the Tasmanian Dams Case I think it is referred to, in this Court suggesting that that is the appropriate course. One thing is clear: one cannot take the majority of a majority. So one cannot take the three Justices who took one view and say that is the majority of the majority. It is also clear one cannot add a member of the majority to the minority Justices. So one cannot add Justice McHugh to the three dissentients and get a ratio.

KIRBY J: No. You disregard the dissenting judges.

McHUGH J: But it cannot be right in principle, can it, because the whole theory of our doctrine of case law is that a case must be decided based on a rule of law of general applicability. You have to be able to identify what that rule is of general applicability. I said in Tang I think, or Te, that it has no ratio.

MR BENNETT: Yes, your Honour did. Your Honour, four Justices in Te effectively said there was no ratio, we would submit. Two said - - -

KIRBY J: Yes, but that simply cannot be so because before Patterson a pristine rule, if you would like to call it that, the rule in Nolan reigned, and the one thing that is clear from Patterson is that the dichotomous rule of citizen and alien was rejected by four Justices of the Court and therefore Nolan was overruled. Now, the question then becomes one of finding what is the principle that, as it were, supplements the overruling of Nolan, and the affirmative principle is then to be found in the decisions of the four Justices in the majority overruling Nolan.

MR BENNETT: Your Honour, in my submission, no, because what was overruled about Nolan was not so much the proposition as the fact that the proposition had no exceptions. The statement in Nolan was that if a person is born outside of Australia, not of Australian parents, it is open to the Commonwealth Government to make that person an alien. Three Justices said that that rule is not absolute because it does not apply to people who arrived from the United Kingdom before 1987. One said there is a different and smaller exception, but it does not apply to people who arrived from the United Kingdom before 1973.

Hence the argument in Long, which Justice French accepted, that Justice McHugh's view is the lowest common denominator of the majority, but one cannot say four Justices agreed that Nolan was wrong, because what the four Justices agreed was that there is an exception to that principle. They did not agree on what the exception was.

McHUGH J: I would not call it a principle. In my mind, I have always distinguished between the ratio of a case, by which I mean a rule of general application which will not only decide that case but similar analogous cases, and what can be described as the rule of the case, which is a much narrower holding, in effect, tailored to the specific facts of the case. Although Taylor may have a rule - I think it does have a rule - it is different from saying it has a ratio, a more general rule, that is generally applicable.

MR BENNETT: Yes. Well, what was done by Justice French in Long was really to take the second of those meanings and, on the basis of that, treat your Honour's decision as being the statement of principle or statement of general circumstances one could obtain from it. But what one cannot do, we would submit, is say because four judges disagreed with a statement in Nolan, for different reasons, three because they had one exception to it, one because he had a different exception to it, one can add the three and the one to say Nolan was overruled.

KIRBY J: I will think about that submission but, as I understand it, Nolan propounded the majority view in Nolan which was that there was a dichotomy between citizens and aliens. You were one or the other; there were two boxes - only two. That, as I understand it, is the view that the minority in this Court has persisted with in Te and Dang and in Patterson, but that was a view which a majority of the Court did not accept, either in Taylor, where it was necessary for decision, or in observations in Te and Dang.

MR BENNETT: Well, your Honour, in Te it was clearly obiter, because the people were not from Commonwealth countries. We would submit that that aspect of Nolan, while it may be something on which four Justices formed their different view and expressed a different view in Patterson, that does not establish it as a ratio in the strict sense. It does not matter in this Court; it only matters to the extent that if it is ratio, I need to seek leave, and I formally do so without admitting that I need to do so. Except for that purpose, it does not matter in this Court whether it is ratio or not. The fact is that it is a decision which, for all practical purposes, in the rules it laid down, was 3:1:3 and is capable of further subdivision in a number of respects, which I will not elaborate on. In my respectful submission, for those reasons, it does not determine the result in this case.

Now, I will deal very briefly with questions of the immigration power and the other relevant powers. I am told the 500,000 figure of settlers from the United Kingdom from 1959 to 1968 is a misleading figure because it includes people who have subsequently taken out citizenship, it includes people who have subsequently left Australia, it includes people who subsequently or before 1969 had died, so it - - -

KIRBY J: It is also misleading if you cut off at 1968 when you should at 1987.

MR BENNETT: Yes, your Honour. It is misleading in a number of respects. It is not a very helpful figure.

KIRBY J: But it shows that we are talking here about very large numbers of peaceful people in this country who think of themselves as Australians but are subject to this decision of Ministers - - -

MR BENNETT: And who if they read the statute book would see that they could register as Australian citizens, as many of them did.

KIRBY J: Yes. If they look at the Constitution they will take the view that you cannot do it.

MR BENNETT: I am sorry, your Honour?

KIRBY J: If they look at the Constitution, they make take the view you cannot do it to them.

MR BENNETT: It is unlikely, your Honour, that any of them would read the Constitution and not read the legislation.

KIRBY J: It is unlikely they would read the statute book.

MR BENNETT: Your Honour, I have also been instructed that up to the end of the mid-1970s, there were a whole range of assisted migration package schemes which were offered not only to United Kingdom citizens but to migrants from, for example, the United States, Netherlands, Italy, Malta and Turkey. Having said that, there is no doubt that the majority of them came from the United Kingdom.

In relation to the immigration power, I just want to make two points. The first is to rely on what was said by Justice Callinan in relation to people engaged in criminal conduct, and simply to point out that when one looks at the stated case and the annexures here, one sees a person who has spent a great deal of his adult life in gaol and who was in constant trouble with the law from the age of 14.

KIRBY J: That cannot affect the matter if he has already been absorbed.

MR BENNETT: No, that is the second part of the argument, and that - - -

KIRBY J: You take the occasional Mr Shaw with the 500,000 plus, plus.

MR BENNETT: Now, your Honour, we have referred in footnote 36 in our submissions to the case of The Queen v Director-General of Social Welfare (Vict); Ex parte Henry. There were a number of different views expressed in that case. That concerned a rather different issue. It concerned orphan migrants who came out as children, unaccompanied, and the question of their status, so it did not raise the issue of whether you can be absorbed merely because your parents are absorbed, but one wonders if that issue is necessarily controlled by one's parents. What, for example, of the parents who migrate to Australia and send their child to a Swiss boarding school or who send the child to live with relatives overseas for a period? It cannot necessarily follow from the parents without more.

There is no reason why the concept of absorption, which is not a statutory concept - it is a concept derived from cases discussing the provision in the Constitution. It is hard to see why that should occur merely because one's parents become absorbed, in the relevant sense, into the community. In my respectful submission, the better view is that expressed by Sir Garfield Barwick, which seems to be that it involves an element of free will, and that while the person is a minor, the person cannot exercise that. So that today one ignores the period up to the age of 18, and from the age of 18, we rely on what Justice Callinan said about people being absorbed when the only community they are being absorbed into is the prison community. So for those reasons, we submit the immigration power is available to deport this particular applicant.

In relation to the external affairs power, it is my respectful submission that that is wide enough. There are a number of external elements in the present case. The fact that the person has come from a country and is being sent back to that country and that that is a legitimate subject of negotiations between Australia and that country is enough, in my respectful submission, to make it an external affair.

If one thinks not so much in terms of the United Kingdom but in terms of a country likely to be more sensitive about treatment of its émigrés or ex-citizens, one can well understand how deportation of people to that country is an external affair. If one thinks in terms of the cases which are coming before the courts at the moment involving the difficulty of deportation to certain countries that do not want to take people back, one sees how it is very much a matter of foreign relations to arrange deportation with other countries.

GLEESON CJ: Does that mean that the Executive Government of the Commonwealth can make it a matter upon which the Parliament can legislate to send somebody back to another country by entering into negotiations with the other country about whether they will take him back?

MR BENNETT: Yes, your Honour, it then becomes an external affair. Now, that was an argument not put in most of the early migration cases and not considered by them and some of them might have been decided differently had that argument been put. But, in my respectful submission, the width of the concept of external affair is wide enough to cover it.

KIRBY J: What is the principle where there are express provisions in the Constitution? The external affair power appears in the constitutional grant which is subject to the Constitution and there are express grants in respect of aliens and in respect of migration. Now, what is the correct principle? Do you just say you can pick and choose and use whichever head is available?

MR BENNETT: The only power which has been held to limit other powers is the acquisition power. One has not, for example, cut down the aliens power by reference to the migration power or vice versa.

GUMMOW J: Or the corporations power by reference to the industrial relations power.

MR BENNETT: Yes, precisely, your Honour, or the bankruptcy power. There are many powers which intersect and there are many situations where things can be done under a number of different powers and, in my respectful submission, this is something which squarely can fall under the external affairs power.

There is also the implied nationhood power. What one starts with there is saying if one had an independent sovereign country with no particular constitutional limitations, would one regard it as part of its normal exercise of sovereignty to be able to send a person back to the country of his or her origin many years later, and the answer to that question can only be yes.

One then says we have developed doctrines under the immigration power that that power does not extend beyond a certain distance, but that does not mean that Australia does not have the power which other sovereign countries have, that there is some sort of lacuna or that the States cannot have it so it must be either implied nationhood or external affairs and we would submit it falls within both.

KIRBY J: Did you tell me that the 500,000 are mentioned in Taylor somewhere, are they? The numbers involved, is it somewhere in the reasons - - -

MR BENNETT: Yes. I think we were asked the question in Patterson, and handed up a document.

KIRBY J: I just seek the reference.

MR BENNETT: I think, your Honour, it was only mentioned in argument, not in the judgment.

KIRBY J: I see.

MR BENNETT: I am not aware of any reference in the judgment to the number. There were joint supplementary - I do not know if your Honour regards as appropriate - - -

HAYNE J: I assume, Mr Solicitor, because of its intrinsic unreliability.

MR BENNETT: Yes. The table from the immigration statistics in 1968 said that from 1959 to 1968 there were 499,488 British Commonwealth settlers from the UK and the colonies.

KIRBY J: This is in joint supplementary submissions after the hearing, is it?

MR BENNETT: Yes, it was a joint submission, your Honour, the parties to that case. My learned friend, of course, was not a party to it, so I would not invite your Honours to use it in any way against his submissions.

KIRBY J: I do not think it is against his submissions.

MR BENNETT: No, but in any event, your Honour, the figure has all the problems I referred to earlier - it includes people who have died, people who have registered as Australian citizens - - -

KIRBY J: Yes, do not go there again.

MR BENNETT: Yes, it is very wide. Your Honours, for those reasons we submit that whatever date one takes, the key matter which needs to be determined by this Court is whether, on whatever date it was or at the end of the period of osmosis if that be what occurred, people who were in the relevant category had in some way an inalienable constitutional right not to become aliens within the meaning of the Constitution. Put that way, your Honours, we would submit there could only be one answer to the question. May it please the Court.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Hamlyn-Harris.

MR HAMLYN-HARRIS: Thank you, your Honours. Your Honours, I should say that I looked at the second reading speech of the 1984 amendments to the Australian Citizenship Act, but there is no mention in there of any figures for the people that might be affected by the change.

GUMMOW J: Why does the number of potential people affected by a law's validity affect its validity?

MR HAMLYN-HARRIS: I suppose in a sense it does not, your Honour.

GUMMOW J: If it does not, why do we have regard to it?

MR HAMLYN-HARRIS: Your Honour, in my submission, what is significant is that whatever the numbers, the situation of the applicant is the same situation which many other people - - -

GUMMOW J: You have no idea, in any event, how many people are potentially subject to this exercise of power under 501.

MR HAMLYN-HARRIS: No, not in terms of figures, your Honour.

KIRBY J: Yes, but we test the constitutional proposition by its limits and application, at least that is one possibility given that the Constitution operates in the real world and on that footing if very large numbers are rendered vulnerable to a view of the aliens power, which is propounded, then that is a matter that causes you to pause and to take your focus off the rather unpleasant record of your client to consider the implication as a matter of power of the argument being propounded for the meaning of the Australian Constitution that renders hundreds of thousands of people here vulnerable to easy removal, though they came and have lived and probably mostly believe themselves to be Australians.

GUMMOW J: We are not considering power in the abstract, we are considering validity of a particular law.

MR HAMLYN-HARRIS: That is so, your Honour.

GUMMOW J: We are not concerned with nice, law-abiding folk.

MR HAMLYN-HARRIS: That is so, your Honour.

GUMMOW J: If and when the Parliament thinks fit to pass some drastic law of the nature indicated, we will look at it.

MR HAMLYN-HARRIS: I make the point that the applicant is not a single person in some sort of very unusual, anomalous situation. He is in a situation which is shared by clearly a large number although we do not know the number of people.

Your Honours, by way of reply I wanted to make three brief points. My learned friend, the Solicitor, referred to cases which show that citizenship can be lost by legislation and in particular those cases are the Hanoverian cases, the cases that concern the United States of America, and another example is Papua New Guinea. In my submission, in reality the situation in which citizenship can be lost by legislation is limited to situations where the grant of citizenship is subject to some sort of condition which has not been fulfilled and also to the situation which we could call the independent situation, like the United States or Papua New Guinea situation.

HAYNE J: Which are particular examples of particular forms of political change, and that is the case that is made against you here - - -

MR HAMLYN-HARRIS: Yes.

HAYNE J: - - - that in the life of the Constitution there has been a significant political change.

MR HAMLYN-HARRIS: That is so, your Honour, but the point that I seek to make is that consistent with the situation with the Independence of the United States and consistent with the situation with the Independence of Papua New Guinea from Australia, I accept that after the relevant date, whatever it was, that generally speaking British subjects who before that date would not have been aliens, for example people living in the United Kingdom, did become aliens as far as Australia is concerned. So, in my submission, that is really analogous to the United States and Papua New Guinea situation.

Just to conclude that point, in my submission the Australian Parliament clearly does not have power in a general sense to deprive people by legislation of citizenship if it means that by so doing that that person becomes an alien and can be removed from the country, because if that was, in fact, the extent of the power of the Commonwealth, it would contradict what was said by his Honour Chief Justice Gibbs in Pochi v Macphee in a passage which is often quoted. This is on page 109:

Clearly the Parliament cannot, simply by giving its own definition of "alien", expand the power under s 51(xix) to include persons who could not possibly answer the description of "aliens" in the ordinary understanding of the word.

Your Honours, in relation to the external affairs power, in my submission, the power - - -

GUMMOW J: Well, that is a slightly difficult proposition with all respect to Chief Justice Gibbs. Take marriage. Would that mean you could not have a law about polyandrous or polygamous marriages, because it cuts across the understanding in 1900 - - -

MR HAMLYN-HARRIS: No, your Honour. I do not suggest for a moment that the interpretation of the Constitution should remain static as at 1900. Another example given by my learned friend, the Solicitor, was bankruptcy. It is true that as a general proposition the Parliament can determine who shall be regarded as bankrupt.

GLEESON CJ: Can they determine who should be regarded as insolvent?

MR HAMLYN-HARRIS: In my respectful submission, they could on the same basis.

GLEESON CJ: We all know that insolvency does not mean having deficiency of assets to liabilities. Could Parliament enact a law that set up as the test of insolvency a comparison between your assets and your liabilities as distinct from your ability to pay your debts as they fall due from money reasonably available to you?

MR HAMLYN-HARRIS: In my respectful submission, the power is really limited to situations which can, as a question of fact, be properly described as situations of bankruptcy.

GUMMOW J: But it is not fact. It is an artificial construct, it is not fact.

MR HAMLYN-HARRIS: Your Honour, there may be some range of situations - - -

GUMMOW J: Lighthouse might be a fact.

MR HAMLYN-HARRIS: Yes.

KIRBY J: Is not Chief Justice Gibbs merely saying there is an outer boundary - - -

MR HAMLYN-HARRIS: Yes.

KIRBY J: - - -that if you said insolvency is related to a person's religion, well, obviously it cannot be, and that is outside the boundary, but where the limit of the boundary is, given that it will be given a broad limit because it is a constitution we are dealing with, is a matter ultimately for this Court to chart. That is all he is saying, as I understand it.

MR HAMLYN-HARRIS: Yes, and I would respectfully accept that, your Honour, and on the question of bankruptcy, it would not be within the power of the Commonwealth to pass a law which treated a person who was extremely wealthy and had no debts as a bankrupt, so that there is a range, but there is a limit to the range.

GLEESON CJ: But it would be within the power of the Commonwealth Parliament to pass a law that treated as the test of whether or not you were insolvent, because it is insolvency that may lead to the status of bankruptcy, not the test of the common law, or the statute law, as it existed at the time of Federation, which was whether you had a capacity to meet your debts as they fall due from moneys reasonably available to you, but the quite different test of whether your assets exceeded your liabilities in value.

MR HAMLYN-HARRIS: Yes. I am afraid I do not know the answer to that, your Honour, but I do accept that interpreting the scope of the bankruptcy power it would be interpreted widely and it may well include that latter test, but I am afraid I am not familiar with the law on insolvency.

McHUGH J: Well, let me ask you a question about an issue which is quite a live one. Under the trade and commerce power can the Commonwealth regulate the legal profession?

KIRBY J: Answer this very carefully, please.

HAYNE J: There are only about 2000 barristers watching you.

MR HAMLYN-HARRIS: Once again, your Honour, I do not know the answer, but I would have thought it could.

GLEESON CJ: Perhaps under the external affairs power it could regulate the legal profession by entering into an agreement with the United States on how it would deal with lawyers.

MR HAMLYN-HARRIS: Yes. Your Honours, on the question of the external affairs power, in my submission, it could not possibly apply to allow for the deportation of citizens, and if that is correct then, in my submission, it cannot apply to provide for the removal or deportation of anyone else who is a member of the Australian community and is not an alien. So, once again, the applicability or otherwise of the power would depend on the resolution of the aliens issue.

Finally, your Honours, if I could deal with the point that has been made about the failure of bells to ring to announce the change in the non-alien status of British subjects, in my respectful submission, the real significance of that point is that the Nationality and Citizenship Act - it was passed in 1948 - and in its various forms up until 1987 did not tell British subjects that they were to be regarded as non-aliens. In fact, if anyone had looked at the legislation up until 1987, they would have in fact got the opposite impression, which was that until then they were granted a specific non-alien status.

GUMMOW J: I am not sure about that. If you look at the statutory definition of "alien" in section 5 of the 1948 Act - - -

MR HAMLYN-HARRIS: I am sorry.

GLEESON CJ: Do you want my copy?

MR HAMLYN-HARRIS: Thank you, your Honour. Yes, your Honour.

GUMMOW J:

[A] person who . . . is not an Irish citizen"

So it is a statutory definition available. It is not a constitutional definition available.

MR HAMLYN-HARRIS: Yes.

GUMMOW J: It also includes protected persons, and if you look down at the definition of "protected person", that includes persons in various trust territories and protected States, the Malay States which have their own sovereigns and so on and so forth, Tonga.

MR HAMLYN-HARRIS: I am sorry, your Honour, I am not sure that I understand the significance of the reference to "Irish citizen" and - - -

GUMMOW J: Well, they were undoubtedly aliens.

HAYNE J: Does it not follow that the statutory definition of "alien" is, on any view, narrower than the constitutional concept?

KIRBY J: It may be broader than the constitutional concept, may it not? Irish citizens were in an anomalous position because they had been British subjects and there are an awful lot of them in Australia.

MR HAMLYN-HARRIS: Yes. In my submission, the situation with an Irish citizen under the 1948 Act is identical to the situation with a British subject, in that the legislation specifically preserved a non-alien status which up until, at least, around about 1948 Irish citizens had enjoyed.

GUMMOW J: Yes, but there is a law with respect to aliens. It was giving this particular species of alien a special treatment, especially advantageous treatment. That is what Kenny is all about, to some degree.

MR HAMLYN-HARRIS: That is so, your Honour, but if I could return to the overall point that I have made in relation to the aliens power, the law, in the form of the citizenship legislation, preserved a non-alien status of British subjects, Irish citizens and protected persons until 1987. So that in terms of the evolutionary process between Federation and 1987, in my submission, those persons retained a non-alien constitutional status until 1987.

GUMMOW J: That is what I am putting to you. That is just a non-sequitur.

MR HAMLYN-HARRIS: Thank you, your Honours.

GLEESON CJ: Thank you, Mr Hamlyn-Harris. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 3.31 PM THE MATTER WAS ADJOURNED