Singh v Commonwealth of Australia & Anor [2004] HCATrans 6 (11 February 2004)

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Singh v Commonwealth of Australia & Anor [2004] HCATrans 6 (11 February 2004)

Last Updated: 11 February 2004

[2004] HCATrans 006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S441 of 2003

B e t w e e n -

TANIA SINGH AN INFANT BY HER NEXT FRIEND MALKIT SINGH

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 FEBRUARY 2004, AT 10.05 AM

(Continued from 10/2/04)

Copyright in the High Court of Australia

__________________

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: If the Court pleases, there are three remaining matters I propose to deal with today. The first is general submissions about the interpretation of a constitutional term such as “alien”; secondly, in answer to the question Justice Kirby asked yesterday about public international law on the subject; and thirdly, I will very briefly answer a number of points made in the plaintiff’s written submissions.

On the first point, which is the longest of the three, of course a power to make laws with respect to a subject matter does not of itself necessarily enable the Commonwealth Parliament to make laws defining that subject matter. As has been said, the stream cannot rise higher than its source. However, where a power relates to a legal status such as bankruptcy or marriage or non-alienage, if one takes the negative for the moment, the conception itself involves ascertaining what the law is at the relevant time.

In relation to bankruptcy, for example, clearly the Commonwealth Parliament can make laws about who becomes a bankrupt and then thereby become the subject, in a number of ways, to the power. Now, of course, it cannot do that by something totally foreign to the concept of bankruptcy. That is where the phrase “core and penumbra” and so on come in.

KIRBY J: Could I just ask you very clearly, do you concede for the purpose of your submission that a core or integral or essential feature of the meaning of the word “alien” would exclude the designation by Parliament as an alien of a child of grandparents who were born outside Australia?

MR BENNETT: Your Honour, it would exclude a child who was born in Australia of Australian parents. One could not avoid that - - -

KIRBY J: Why does it exclude them and not exclude this case? What is the discrimen?

MR BENNETT: Your Honour, the ultimate discrimen is a person who is recognised by law as being a member of the community, and that is the area in which we are operating, and to exclude as a member of the community a person born in Australia to Australian citizens would go beyond the core conception. To exclude a person born in Australia to non-Australian citizens or people who were here on a transitory basis would not do so.

KIRBY J: Why does it take ten years for a person in the position of the plaintiff to become a member of the Australian community though her parents are not?

MR BENNETT: Your Honour, that unlike the other part of the provision is a form of statutory naturalisation. The making of the 10-year-old child who at nine is an alien into a citizen at the age of 10 is simply a statutory exercise of the power of naturalisation.

GLEESON CJ: Do you not have to begin at an anterior position because the power to make laws with respect to lighthouses might, to an extent, include a power to decide what is a lighthouse, in the light of modern technology, for example, but when you are dealing with the power to make laws with respect to naturalisation and aliens you are dealing with a power concerned with a matter that is accepted in international law as an aspect of sovereignty, that is, a power to determine who is a member of the community. The question is the extent to which section 51 has conferred upon Parliament a capacity to define the very status about which it is empowered to make laws.

When that question of status is a question about who is a member of the Australian community and there is a power conferred upon Parliament to make laws with respect to who is a member of the Australian community, that may, may it not, confer a wider capacity to define the status itself than a power to make laws with respect to lighthouses.

MR BENNETT: Yes, your Honour. If a radio beacon is erected on the coast and the Commonwealth claims to have done that under the lighthouses power, the Court has to determine whether, bearing in mind the denotation and developments in technology and so on, that is a lighthouse. One matter which may be relevant to that inquiry is the current usage and the statute may, indeed, form part of that, but, nevertheless, the question is of a different nature, but where one is dealing with a power over bankruptcy or marriage or who is an alien, one assumes a body of law.

That body of law in default as at 1901 may have involved the common law, it may have involved some statute law, but it certainly soon did involve some statute law. The common law, of course, can be altered by statute and the bankruptcy power is perhaps the archetypical one and what was said in cases such as Grain Pool and Union Label on that area is very useful.

Might I just take your Honours to Grain Pool 202 CLR 479. There is a discussion at the bottom of page 493, after a broad approach has been taken:

Consistently with the general principles which we have identified above, an appropriate approach to the interpretation of –

the power over intellectual property –

is that appearing in what was then the dissenting judgment of Higgins J in Attorney-General (NSW) v Brewery Employés Union of NSW (the Union Label Case). Higgins J observed that trade marks were “artificial products of society”. Further, whilst “we are to ascertain the meaning of ‘trade marks’ as in 1900”, trade marks usage in 1900 “gives us the central type; it does not give us the circumference of the power . . . The centre of the thing named - trade marks - was to be taken with the meaning as in 1900 to find the circumference of the power. However, it would be “a mistake to treat the centre as the radius”.

There is a discussion of some remarks of Justice Higgins at the bottom of page 494 in relation to bankruptcy, where it is pointed out again that the bankruptcy power necessarily presupposes a body of law, and that body of law may, of course, within some limits, define who is and who is not a bankrupt. One could put it differently by saying the bankruptcy power is concerned with the law relating to persons determined by the legislature to be bankrupts, and the criteria have to fall within a certain core, but within that core they necessarily are matters for legislature, and the same applies to marriage. There is an interesting article on the subject of the marriage power by a Mr Dan Meagher in (2003) 17(2) AJFL 134 where there is a lengthy discussion of whether the Commonwealth could make legislation for same-sex marriages.

The important issue for present purposes is not the answer to that question but the article usefully collects some of the materials on the appropriate methodology, which is, of course, to say marriage necessarily involves the law creating a legal relationship. Clearly Parliament can say it must be performed by a marriage celebrant, it must have this condition or that condition and then the question arises whether in a particular case it is within or outside what is the core. That involves defining the core, a topic on which minds may differ and which the Court ultimately, if the question arises, has to rule. An alien is a person who is not under the law prevailing from time to time treated as a member of the community.

GLEESON CJ: That is the issue, is it not? A possible point of view is that what the argument against you depends on is locking us in constitutionally to a feudal concept of alienage, and part of the basis of disagreement in recent cases in this Court relates, does it not, to whether or not the concept of alienage is tied to the feudal concept of subjection to a monarch or whether it is related to questions of citizenship and membership of the community?

MR BENNETT: Yes.

KIRBY J: The only problem was that when the Australian founders had the chance and were urged to include citizenship and had the model of the United States Constitution before them, they deliberately and affirmatively rejected it.

MR BENNETT: For a number of specific reasons.

GLEESON CJ: You were going to hand us this morning a document which made the history on that subject a little clearer. Have you brought that along?

CALLINAN J: Mr Solicitor, it was a heavily evolved and much evolved understanding of what alienage was by the time of Federation. True it may be that it had its foundation in feudal concepts. But, in any event, even if it did have its foundation in feudal concepts, not everything that happened in the Middle Ages was bad.

KIRBY J: A lot of our land law was founded on feudal concepts.

CALLINAN J: Exactly.

MR BENNETT: Yes. In the same way as the provisions of bankruptcy legislation as at 1900 are not entrenched. One can remove or add to the acts of bankruptcy. One does not say for a new act of bankruptcy that is added to the Bankruptcy Act, that is invalid because it goes beyond what bankruptcy involved in 1900.

CALLINAN J: They are all towards a common end, are they not, a demonstration of an inability to pay one’s debts?

MR BENNETT: Your Honour, in my respectful submission, the concept of insolvency could go wider than that. One could define insolvency for the purpose of the Bankruptcy Act, as I suggested yesterday, as excess of liabilities over assets. Inability to pay debts as they fall due has been the traditional definition. It is a definition which appears in the Act at the moment. It is not a necessary precondition for the making of a sequestration order, if one demonstrates an act of bankruptcy and an eligible petitioning creditor and so on. The acts of bankruptcy are all, of course, things which were thought to be indicia of insolvency, of an inability to pay debts as they fell due, but they can vary. The point is - - -

CALLINAN J: But if they are indicia, they are all towards a common end of inability to pay debts. That is all they are. They are merely indicia.

MR BENNETT: Yes, your Honour.

CALLINAN J: They do not alter the fundamental nature of bankruptcy.

MR BENNETT: No, your Honour, but one could go beyond that. For example, some recent cases have said that where one has a debt which one refuses to pay for reasons of principle, although one is able to pay it, that may not lead to an act of bankruptcy in the relevant sense. There has been some discussion about that. That could no doubt be reversed legislatively, if a legislature chose to do it. There is no need in this case, of course, to debate what the core of bankruptcy law is. All I need to submit for present purposes is that there is a core. The fundamental nature of alien is the absence of a relationship with the sovereign, which is defined by law, and law includes legislation.

GUMMOW J: Can you just look at Nolan [1988] HCA 45; 165 CLR 178 at 183 for a minute, Mr Solicitor? It puts it positively. About point 5: “As a matter of etymology”.

MR BENNETT: Yes. My only concern about that definition was that it has some difficulty when it is applied to stateless people.

GUMMOW J: That is right. I know. But it certainly applies to this plaintiff, at any rate.

MR BENNETT: Yes, we do not need to wrestle with - - -

GUMMOW J: She answers that definition, because she is a citizen of India.

MR BENNETT: Yes, precisely, your Honour.

KIRBY J: But that is their business. The question is, what is our business? The fact that she has other citizenship – members of this Court may well have entitlement to British citizenship or to Irish citizenship, but that is their business. It is not a matter we are - - -

CALLINAN J: And also, in fact, she is under the protection of the Australian community and not, in fact, under the protection of the Indian community.

MR BENNETT: As a matter, your Honour, of local allegiance, that is so. I have to accept that the - - -

GUMMOW J: That does not deny she is an alien.

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

GUMMOW J: She is an alien in that temporary sense – protection. Section 44(i) of the Constitution gives you some further idea of the notion of what an alien is, does it not?

MR BENNETT: Yes, it does, your Honour.

GUMMOW J: She falls within that too.

MR BENNETT: Yes, although, funnily enough, section 44(i) rather assumes the absence of statelessness. It would be an interesting question one day for this Court whether a totally stateless person without Australian citizenship - - -

GUMMOW J: Yes, stateless persons are a horrible phenomenon of the 20^th century, really. They were not really understood in 1901.

MR BENNETT: No, that is so, your Honour.

CALLINAN J: Mr Solicitor, there is no dispute, is there, about the applicable Indian law, the statute?

MR BENNETT: No.

CALLINAN J: There is no evidence, apart from you assertion, is there? You have not proved it.

GUMMOW J: We have the statute.

MR BENNETT: Your Honour, the practice in this Court in relation to foreign statutes has been to simply rely on them as - - -

GLEESON CJ: We have a concession made by your opponent yesterday. He said it. It is on the record.

MR BENNETT: Yes.

CALLINAN J: Right, thank you.

GUMMOW J: We have the text.

GLEESON CJ: We do have that material from your junior that was handed up overnight and it examines the actual history of what went on in the Convention debates in relation to the matter of citizenship. It just might be worth noting that this whole concept of citizenship was also the subject of the more recent Constitutional Convention debates that were held a few years ago before the bicentenary. They were, I think, similarly inconclusive, but this whole question of what should be done about citizenship, and, in particular, what should be regarded as the responsibilities of citizenship as well as the rights of citizenship, is a major issue of debate and it was regarded as a very awkward issue at the Convention for the reasons set out in this document.

KIRBY J: Dr Quick is said to have been exasperated by the unwillingness of the other delegates to agree to citizenship, and that is the form our Constitution took. The question then is, are we fixed forever with the fact that they had this difference at the time or do we focus on the word and is it capable of moving with time, given that it operates in a Constitution and given that our Constitution operates in a world where there has been a coalescence of these principles of jus soli and jus sanguinis - - -

MR BENNETT: Yes. Of course, at the time, your Honour, there was the distinction, which is disappearing, between citizenship and nationality which, insofar as it exists, now exists for different purposes.

KIRBY J: At the time there was no constitutional notion of citizenship except in relation to qualifications for the houses of the Federal Parliament. The only concept was nationality, which was that of a British subject or “subject of the Queen”, as section 117 expresses it. The question is whether or not, with the change in the Australian community reflected in such decisions as Sue v Hill, it can now be said that the word “alien” has taken on the notion of non-citizen. The Court has said that in as many words and the issue in this case is whether the word is capable, competent, to expand to that different meaning.

In your favour is the fact that, I think, all members of the Court in Shaw said, including the three in the minority, that ultimately by 1986 the word “alien”, though at Federation meaning one thing, had changed so that it did exclude British subjects born in the United Kingdom.

MR BENNETT: Yes, and that occurred partly by the evolutionary process that has been described, but that evolutionary process relevantly included legislation of the Australian Parliament.

GUMMOW J: And the rather embarrassing circumstance that by 1986 the British did not have a notion of British subject. Their 1981 Act did away with it.

MR BENNETT: Yes.

KIRBY J: We will not get into that. I just do not see what business they had to be getting into our constitutional affairs in 1986, and I will never see it.

MR BENNETT: Your Honour, the legislation was passed by States and the Federal Government - - -

KIRBY J: Yes, but they are subject to the Constitution of the Commonwealth and the electors of the Commonwealth. Anyway, it is a side issue in this case, but it is true that all members of the Court in Shaw accepted that by 1986 the word included whatever it had included in 1901, British subjects born in the United Kingdom. In 1901, it would have been unthinkable that they were aliens.

MR BENNETT: That is so, your Honour. The way we put it ultimately is simply this; that where one has a power which relates to a legal concept like bankruptcy, marriage or alienage or the negative of alienage, one looks to the law to see whether a person falls within the category and then the power enables one to legislate in relation to people or institutions that fall within it. It was known in 1900, as I said a number of times yesterday, that the particular common law power was one which, (a) had been modified by a statute in England, and (b) was exercised in a totally different way in many countries of the world.

GLEESON CJ: What do you mean by the law in that proposition?

MR BENNETT: The law defining who was a member of the community.

GLEESON CJ: Which law? The law of?

MR BENNETT: Your Honour, that is my point. The power, of course, is concerned with Australian law, but that Australian law was the common law as varied by statute, that being the law in Australia, in the same way as bankruptcy, patents and so on, do not have any meaning - - -

GLEESON CJ: The other thing on which all members of the Court have been agreed in recent cases is that Parliament cannot define itself into power. Everybody says that there are limits to the capacity of Parliament to define the status of alienage. How do we find those limits?

MR BENNETT: Your Honour, one can only find them by looking at the concept, looking at the way it was treated in the world in 1900, looking at the way it has developed over the years, and generally, construing it in the light of subsequent developments and the general understanding at the time, but it is a legal concept. One could not have a marriage in the absence of some law which either recognises marriages or facilitates them. One could not have a bankrupt in the absence of some law providing for the making of sequestration orders or some other form of declaration. One cannot, in my respectful submission, know who an alien is until one knows who the community defines by law as members of that community. In each case, the ability to do it is circumscribed by what I have described as “the core”, but in each case that is the effect of the - - -

GLEESON CJ: Did you mix that metaphor yourself?

MR BENNETT: I am sorry, your Honour.

GLEESON CJ: You are circumscribed by the core.

MR BENNETT: I am sorry, yes. I did, your Honour, and I apologise. Yes, it is a bad mix metaphor. But that, your Honour, we would submit, is the – in Grain Pool the Court looked at the common law, it looked at United Kingdom and colonial legislation in 1900 and it looked at legislation from other countries and it determined the essential meaning of patents of invention to find a lowest common denominator. It is then asked whether Commonwealth legislation about rights in relation to plant species was within that lowest common denominator or not. That is another word for core, if one likes. The question is whether a particular feature is essential.

Trial by jury is a very good example. One cannot have trial by jury in the absence of statutes which provide for it. Those statutes, it has been held, can have more than 12 jurors, it can have reserve jurors and so on, but it must have unanimity.

GUMMOW J: In 1900 no women.

MR BENNETT: Yes, and that is - - -

HAYNE J: Mainly property holders.

GUMMOW J: Yes.

MR BENNETT: Yes.

KIRBY J: And you cannot have non-unanimity.

GLEESON CJ: Trial by jury is a very good example of the problem. Whether it is a good example of the solution might be another question. But what is the process of reasoning by which you say as a matter of constitutional interpretation that a procedure providing for determination by a majority verdict is not within the concept of trial by jury but a procedure allowing for additional jurors, in the case that some of them get ill and cannot continue, is?

MR BENNETT: It is very hard to answer that, your Honour, except by using words such as “core”, “penumbra”, “connotation”. There are many words one can use which define what one is looking for, but at the end of the day the Court has to select one of those words and apply it.

GLEESON CJ: Is that some kind of process of originalism by which a court says, “Well, in 1900 there weren’t majority verdicts”, if that is true as a matter of fact?

MR BENNETT: No, your Honour. One looks at matters such as function and matters such as foreign law and matters such as general understanding. In Grain Pool one went further and one said, when one is looking at patents for inventions, the whole nature of the concept is one where new things are being thought of and one would expect the concept to expand.

GLEESON CJ: What this Court has said is, is it not, that there is something about trial by jury that makes it impossible to describe a procedure that permits majority verdicts as trial by jury for purposes of the Constitution?

MR BENNETT: Yes, and, your Honour, one gets that from a combination of analogy and common understanding and function and - - -

KIRBY J: And history.

MR BENNETT: History perhaps, to some extent.

GLEESON CJ: It must end up as a matter of judgment, must it not?

MR BENNETT: Yes, your Honour.

GLEESON CJ: Because somebody says having regard to function, purpose, history and so forth - - -

GUMMOW J: They say this is the essence.

GLEESON CJ: Yes.

MR BENNETT: Yes, but that is less than what is required of this Court by the contrary submission. The contrary submission says this Court has to define the word absolutely and in all respects, and that definition is fixed and frozen.

GLEESON CJ: Well, on that approach, you would have to ask, is it of the essence of alienage – or, to put it the other way, is it of the essence of membership of the community? Is birth within or without the territory of the essence of alienage or of the essence of membership of community?

KIRBY J: In our Constitution.

MR BENNETT: There, we submit not. We submit that, bearing in mind the absence of that as an element in many legal systems, and bearing in mind the beginning of the trend away from it by the statutes dealing with the converse situation in England, one cannot say that alone it is. But one can say, although one cannot define when day ends and night begins, the person born in Australia to Australian citizen parents is midday, and the person born overseas to non-Australian parents is midnight, and somewhere around the twilight area are people who have one characteristic but not the other.

HAYNE J: May this not illustrate a potential difficulty which comes from examining the problem in the negative terms, is the plaintiff not an alien? The constitutional power, by its reference to alien, picking up what is said in Nolan as a convenient source for it, looks to the relationship between the individual and a foreign state or power.

MR BENNETT: Yes, your Honour. The original meaning does.

HAYNE J: It looks to whether allegiance is owed, obligations are owed, to the foreign state.

MR BENNETT: But, your Honour, that merely goes to the Latin derivation - - -

HAYNE J: But, let me pursue it further. If that is an element of what is involved in alienage, we begin to get into difficulties, one, when we introduce more modern concepts of dual nationality. Those are statutory creatures which may distract from our focus on the constitutional power. Secondly, if we are looking to the relationship between the individual and a foreign power, there is at least a question about whether it is relevant, whether it is useful, to apply an Australian criterion, namely, birth here, in determining whether or not there exists a relationship of the kind described in 44(i), for example, between the individual and that foreign state.

I suspect that if we are relevantly to dig back into Calvin’s Case and notions of allegiance and the like, what we find, particularly in Calvin’s Case with copious reference to Ǽneid and Trojan horses and the like, is this notion that if you owe obligations to a foreign power, you are an alien, and the duality of obligation is something that was not countenanced.

Now, again, that may require further consideration in relation to stateless persons, as Justice Gummow said earlier this morning, the unhappy product of events of the 20^th century. But if we are heading to look for, as you would have it, the core meaning, the essence – whatever metaphor we employ – of alienage, we are looking to the relationship between the individual and the foreign state, if you like, according to the rules of the foreign state, not according to some rule that we would apply here to determine who is a member of this community.

MR BENNETT: Your Honour, in my respectful submission, the difference in wording between 44(i) and 51 rather denies that. That places too much emphasis on the derivation of the word and not enough emphasis on its current meaning, which is basically, whether by denotation or connotation or otherwise, a negative meaning.

HAYNE J: The moment you start defining it in terms of a person not in relationship with the sovereign power of Australia, which was the proposition put to you yesterday for comment, it seems to me that you are at once entitled to have regard to what might be termed the Australian rule about the significance to be attached to birth.

MR BENNETT: Your Honour, yes, although what the Australian rule is, we say, is found in the legislation.

HAYNE J: Then you have the statute construing the Constitution and that is a proposition of no little - - -

KIRBY J: Otherwise you might just as well pack up.

MR BENNETT: No more than the Commonwealth is expanding the power if it adds an act of bankruptcy to the Bankruptcy Act or imposes or removes a requirement in relation to marriage or divorce. There are certain powers which, in my respectful submission, assume a law, whether common law or statute, which creates the relationship upon which the Constitution operates and in some cases confer power to make that law.

In relation to statelessness, if one were today to define the core concept of “alien” by reference to “allegiance to another”, one would have problems with dual nationality, as your Honour says, and one would have problems with stateless people. Every stateless person would be a non-alien, even though the person had never had any connection with Australia. That cannot be what the Constitution means.

HAYNE J: Why? Why not? The immigration power would commonly be engaged in such cases.

MR BENNETT: Yes, your Honour. We would submit the essence of the power is like - - -

GUMMOW J: And if they were born here, you might have to put up with it.

MR BENNETT: Your Honour, we submit the power is a power to deal with people who do not have by law, whatever the law is from time to time, the necessary relationship with the polity to be members of it. That connotation remains the same. The denotation of who has that relationship is defined by law from time to time. That is why I have placed such emphasis on the variants which existed in 1900 and the fact that the founders had seen a change in the definition of the relationship in the United Kingdom.

KIRBY J: It seems to me if you take the criterion at 1900, you are sunk, but if you take the view that the Constitution adapts and develops with the meaning of the word over time, then you win.

MR BENNETT: Your Honour, we would accept that the word adapts and varies over time, but I do not need to go so far.

KIRBY J: You are sunk if you are using a 1900 criterion because in our constitutional setting, against the debates that we have been shown, against the standards of the common law, against Calvin’s Case, at that time if you were born on the soil, with those few exceptions, you have nationality.

MR BENNETT: Your Honour, the existence of exceptions rather postulates that they can be changed.

KIRBY J: They were well-worn, limited, well-known and eventually statutory exceptions and not many of them.

MR BENNETT: I am not sure the foreign sovereign was ever statutory or ever occurred, but it was referred to as an exception in certain cases.

KIRBY J: That was only something that came out of your exotic mind, I think.

MR BENNETT: I think it is referred to in Calvin, your Honour. It is referred to in one of the cases.

KIRBY J: You say it is there, but it is not very many and it would not have included this case.

MR BENNETT: No, your Honour.

KIRBY J: That is why this really puts us to the test of our theory of constitutional interpretation.

MR BENNETT: But the inquiry to ascertain the core is broader than looking at what the common law provided as at 1900.

GLEESON CJ: Is there any difference between the meaning of your expression “the core” and what the Court in Cheatle repeatedly described as “an essential feature”?

MR BENNETT: No, your Honour. Different words have been used from time to time in relation - - -

GLEESON CJ: But if you look at the methodology of the Court in Cheatle, what it did was consider successively history, principle and judicial authority, in each case asking the question, “Is unanimity an essential feature of trial by jury for the purposes of understanding the meaning of that expression in the Constitution?”

MR BENNETT: But it did not have available to it, of course, juries in civil law systems. So that was an analogy not available to the Court in that case.

KIRBY J: The one thing that was absolutely clear was that you had to be a male to be a member of a jury – male. That was absolutely clear and it was also fairly clear you had to have property. Now, that is so offensive to modern notions that the Court said, “Well, you don’t have to be male, you don’t have to have property, but you do have to have unanimity”.

MR BENNETT: That was a mere characteristic at the time, your Honour, based on society’s views as at that time.

KIRBY J: “Mere characteristic” is not just another way of saying “not really and truly” or “non-core”.

MR BENNETT: Yes, your Honour. I do not know about “not really and truly” but certainly “non-core”.

GLEESON CJ: What the Court did by its process of reasoning in Cheatle was reach the conclusion that history, principle and authority dictate the conclusion that unanimity is an essential feature of trial by jury in the face of the fact that in many parts of Australia unanimity is not necessary in the case of trial by jury.

KIRBY J: By the 1990s.

MR BENNETT: The Court is not tied to a particular approach. It is a slightly different methodology from that used in Grain Pool, but both are endeavouring to search for essential features and, in my respectful submission, the connotation of alien is the negative of a member of the community under the community’s laws from time to time and it involves the - - -

KIRBY J: But the problem with that definition, as we brought out yesterday in questions in the Court, is that in some communities in living memory some very cruel and nasty things are done by law to members of communities. We do not really want that to happen under our Constitution and, therefore, we look very carefully at that type of submission. It has not only been in uncivilised countries, it has been in one of the most civilised countries on earth, Germany.

MR BENNETT: Your Honour, I referred your Honours yesterday three or four times to the passage about not limiting constitutional terms by reference to extreme examples.

KIRBY J: I do not think we should limit it by reference to nightmares and horror stories, but sadly in the business of ethnicity and minorities there is sometimes cruelty and, therefore we – I do not want our Constitution to be construed in such a way.

MR BENNETT: And, your Honour, I have accepted that it would be outside the core for Parliament to legislate, for example, for the exclusion of Aboriginals or for the exclusion of racial groups within Australia or particular areas in the absence perhaps of secession from the Commonwealth. Secession from the Commonwealth is an example of something contemplated by the Constitution where no doubt it would be open to Parliament to remove citizenship and make into aliens people who were citizens of the seceding State or area.

GLEESON CJ: Contemplated?

MR BENNETT: Your Honour, in part by section 128. There has been considerable discussion, which I will not go into in this case, about the ability of the State to secede - - -

KIRBY J: I do not think we should stir this up.

MR BENNETT: No, I do not wish to stir it up, your Honour. All I am doing is saying that if it were to occur, and were to occur in a manner consistently with the Constitution, one thing that would necessarily be open as part of the process would be some adjustment to the citizenship of the people who left the Commonwealth - - -

GUMMOW J: Well it happened - - -

MR BENNETT: As occurred with New Guinea.

GUMMOW J: Exactly.

KIRBY J: New Guinea was never part of the Commonwealth. New Guinea was in part a mandated Territory then a trust Territory.

MR BENNETT: But in Papua, your Honour - I should have said Papua rather than New Guinea - people who were born in Papua were Australian citizens and the effect of the legislation when Papua New Guinea became independent was to remove citizenship from all persons who became citizens of Papua New Guinea - - -

KIRBY J: Well, we are not looking at that question. That may raise a question as to whether you can take away citizenship. That issue has been debated in the Supreme Court of the United States.

MR BENNETT: Your Honour, it was probably done under the territories power.

KIRBY J: Yes it may have been, but we are not dealing with that today.

MR BENNETT: We are not dealing with that today. There is Full Federal Court authority supporting it. I have referred your Honour to Walsh’s Case. I have not given your Honours the reference; I can perhaps do that later.

GLEESON CJ: What were the other two points you wanted to deal with?

MR BENNETT: Your Honour, the second matter concerns the question Justice Kirby asked. The leading public international law case is, of course, the Nottebohm Case between Guatemala and Liechtenstein. That was a case involving naturalisation, but one matter which is referred to in obiter in the course of the judgments is that the bond of nationality is a matter for individual states. That is perhaps a common matter.

KIRBY J: If you could just put the name of the case and the reference on - - -

MR BENNETT: Yes. Liechtenstein v Guatemala [1955] ICJ Rep. I do not have the page reference to those reports.

KIRBY J: Do not worry. That will be enough.

MR BENNETT: It is 6 April 1955 in the International Court of Justice.

KIRBY J: That seems to confirm what I said yesterday, which is also borne out by the book of Dr Weiss, Nationality and Statelessness in International Law (1980). International law leaves this to the nation state.

MR BENNETT: Yes. Article 15 of the Universal Declaration of Human Rights provides that:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Here, of course, there is no deprivation because the plaintiff never had the relevant nationality. This is not, as I have said a number of times, an example of denaturalisation. It is an example of definition of who is and who is not a member of the - - -

KIRBY J: That is the question, whether the statute deprives of a constitutional nationality.

MR BENNETT: I am sorry, your Honour.

KIRBY J: The question is whether the statute purports to deprive a person of a constitutional nationality by reference to a 10-year requirement of residence.

MR BENNETT: “Deprive” is an inappropriate word for something a person never has. “Deprive” involves taking away something.

KIRBY J: Yes, but that is the very issue we have to decide, whether they never had it. You say they never had it. The plaintiff says she always had it. That is the issue.

MR BENNETT: But, your Honour, we do not say that we took it away. We do not say that she had it and we took it away. If she had it because of invalidity of legislation or construction of legislation, she has always had it. If she did not because of the validity of the legislation, she never had it. On neither scenario was she deprived of it. “Deprive” involves taking away something a person has.

KIRBY J: If the jus soli is the constitutional law of this country, she had it.

MR BENNETT: And still has it.

KIRBY J: And you, by your statute, have purported to take it away.

MR BENNETT: No, your Honour, we did not purport to take it away. We purported to say that she did not have it, contrary to what, on that hypothesis, would be the constitutional situation. Nothing is taken away in this situation and, of course, the attainment of citizenship after 10 years is an example of a statutory naturalisation.

KIRBY J: As a person was being put on the plane, be expelled from the country, it might seem a very academic debate.

MR BENNETT: Yes. Well, I will come to the other aspects of justification for that. That involves the immigration power and other powers. The other matter is on the International Covenant on Civil and Political Rights, Article 24.3 says:

Every child has the right to acquire a nationality.

Now, that is of course met. In the present case she has a nationality on any view of it, her Indian nationality. Secondly, in relation to stateless people they have, subject to the questions of extent of discretions and so on under section 23D, the right to acquire a nationality. But saying every child has the right to acquire a nationality leaves silent the question of which nationality. That obviously has to be considered in individual cases. Those are the matters of international law to which I wish to refer in answer your Honour’s question.

The third and final matter with which I wish to deal is a few minor points in the plaintiff’s submissions. Might I take your Honours to those submissions. The first is paragraph 5. This goes to the use of the Convention debates:

“Reference to the [Convention Debates] may be made, not for the purpose of substituting of the meaning of the words used [in the Constitution] the scope and effect – if such could objectively be established – which the founding fathers subjectively intended the Section to have –

That can be the only relevance of using something not done by the founders in order to construe what was done –

but for the purpose of identifying the contemporary meaning of the language used –

we have done that without the debates –

the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of Constitution finally emerged”.

Those are not the purposes for which my learned friend seeks to use the provisions. That is really all I wish to say about that. I have already, by referring your Honours to chapter 2 of my learned junior’s book, shown your Honours how the debates are fairly inconclusive on this topic.

It is noteworthy in paragraph 9, in the quotation from what Mr O’Connor, as he then was, said, starting from the middle of the passage:

it appears to me quite clear, as regards the right of any person from the outside to become a member of the Commonwealth, that the power to regulate immigration and emigration, and the right to deal with aliens, gives the right to define who shall be citizens, as coming from the outside world...”.

Now, of course that does not deal with the present case. He was not in that passage dealing with the problem that we face today, but it does indicate that he regarded the right to deal with aliens as giving the right to define who shall be citizens.

I have dealt with paragraph 10 and the referenda and their insignificance. In relation to paragraphs 11 and 12 and 13, those submissions misinterpret our submissions.

I do not submit for a moment that the plaintiff in some way was an immigrant at the moment of birth and crossing the birth canal, to use my friend’s picturesque phrase, in some way resulted in an act of immigration. We put it as incidental to the immigration power to determine that people who have come to Australia and awaiting determination of whether they will be accepted as immigrants that if they have children the denial of citizenship to those children is incidental to the immigration power in relation to the parents. That is the basis on which we rely on the immigration power.

In relation to paragraph 14, I again repeat my submission that this is not a case of denaturalisation and we do not seek to support it on that basis. The relevance of naturalisation in part is that it informs in part the meaning of alien in the placitum, but not that this is a case of denaturalisation. The passage in paragraph 19 from Wong Kim Ark is merely referring to the United States Constitution and the common law as at Calvin’s Case, which apparently was accepted in the United States. It does not go any further than that. It does not deal with any general proposition.

The passage in Cunliffe referred to in paragraph 20 is not, we would submit, intended to be an exhaustive definition. It is rather either a picking up of part of the definitions in the legislation, in the Australian Citizenship Act, or simply a definition of what might be regarded as a core group of aliens, but it is not, we would submit, an exhaustive definition. For example, unless one treats the provisions in relation to adoption as a form of statutory naturalisation, which they may be as a matter of constitutional power, but certainly not as a matter of the way the statute operates, the definition certainly cannot be a complete one.

The reference in paragraph 21 to Pochi v MacPhee – I have taken your Honours to that passage. It was preceded by the words “it is unnecessary” to decide this issue and the relevant sense ensues with the word “possibly”, that Parliament could not define as an alien a person “who could not possibly” be regarded as an alien. The word “possibly”, we would submit, is another way of referring to the concept of a core.

We accept what is said in paragraph 22 as to the way citizenship and alienage have become synonymous. We accept what has been said about that. Paragraph 23 is a different way of putting it, a reference to “a subject of the Australian monarchy”, but that leaves open the question of who that subject is. For that one has to look at the law of Australia, and for that one has to look at the legislation and test its validity in the way we have indicated.

KIRBY J: That is one way to put it. Another way is to look at the evolving notion of the monarchy in the Constitution.

MR BENNETT: Yes. I think that is implicit in what is said there. It uses - - -

KIRBY J: Which the statutory provisions such as the Royal Style and Titles Act and so on have reflected.

MR BENNETT: I assumed that was covered by the words “Australian monarchy”, your Honour, so I did not – that issue, of course, does not arise in this case. The next paragraphs deal with that subject matter which, of course, is well-known. I have dealt with paragraph - paragraph 26 largely puts what we submit. We accept that a power over a legal classification means that the Constitution gives the core concept and does not define the outer circumference of the power. We are now dealing with circles as the appropriate metaphor.

We accept it cannot apply to its antithesis, but that is another way of saying it cannot apply outside the core and leaves open the question, and as my learned friend says, insolvency cannot mean solvency. The next sentence is where we join issue. It is in that paragraph, we would submit, is a non sequitur, and the last sentence is the advocate’s flourish which does not assist your Honours in the end with the proposition. Paragraph 28, as I have said, we stress the word “possibly” and we stress the fact that it was not put as a concluded view.

Paragraph 32 - I am not sure what is meant by “guilt by association” in that context, but it seems to raise the issue which is before your Honours in Applicants M276/2003 and I do not propose to say more about it. As I understand it, it is not one of the matters which is to be considered by your Honours in this case. The implied nationhood power is merely something which certainly must be borne in mind in construing the power over aliens, and we would submit that again the power exists subject to the relevant core.

Much of what appears in the following paragraphs is concerned with extreme examples of cases where clearly one could not use the power to define an alien – to define a non-alien, more accurately – as one which “could allow one to tinker with the electorate”, to use my friend’s phrase. Those are the additional matters. If I did not make this clear, my reference to the incidental power in relation to removal was a reference to the immigration power, and the immigration power in relation to the parents. It was not a reference to anything incidental to the aliens power.

GLEESON CJ: Yes, thank you, Mr Solicitor.

MR BENNETT: If the Court pleases.

GLEESON CJ: Mr Levet, before you complete your submissions in reply, do not forget to take us to the questions that have been asked in the case stated and let us know precisely what you say the answers to those questions should be.

MR LEVET: Your Honour, I would seek to call on my learned junior, Dr O’Hair, to present the submissions in reply on behalf of the plaintiff.

GLEESON CJ: Yes, Dr O’Hair.

KIRBY J: Dr O’Hair, just before you start, in accordance with the request of the plaintiff yesterday I have amended the stated case to substitute the name of the plaintiff for the anonymous identification previously appearing.

MR O’HAIR: Thank you, your Honour. Your Honours, so far as the matters that have been dealt with by the Solicitor-General in relation to questions that arose relative to the question of connotation and denotation and so forth, in our respectful submission, there have been a number of matters that have fallen from the Bench that could be used as the discrimen for whether a person is an alien or not. In our submission, whichever of those are adopted, perhaps apart from a suggestion from the learned Solicitor-General that the Commonwealth is essentially able to define its own powers, that seems to have been withdrawn this morning, that our client manages to meet all of those.

One of those questions is a concept of whether alienage is frozen in time. If it is frozen in time as a concept, then, in our submission, plainly enough, we would win. So far as the core concept idea, in other words, the essence of the matter or what have you, in our submission, the core concept of alienage is one that rests upon, at common law, birth within the jurisdiction. Why do we refer to the common law? Perhaps only because, as Sir Owen Dixon said, the common law, as it were, precedes the Constitution and informs its structure.

KIRBY J: Yes, but the Constitution does not freeze itself or the common law in terms of what it was in 1901.

MR O’HAIR: That is certainly correct, your Honour.

KIRBY J: In 1901 there were two great theories and we know from material we have had that the jus soli, which was a sort of feudal theory, has been gradually eroded by the jus sanguinis theory, which was the European theory. Why should we interpret our Constitution to limit the Parliament forever, for centuries, to the jus soli theory, given that they were both there in 1901 and they are both legitimate theories and the latter has increasingly invaded the jus soli territory elsewhere in the word?

MR O’HAIR: I understand the question, your Honour, and I will address it, but I do indicate that, in our submission, whatever test is used, that it is within, as it were, the parameters of choice, that nevertheless our client is entitled to an answer favourable to her interests. But if one says, “Why would one use the common law?”, and the common law is a concept that could be used in order to define an expression that has an ordinary meaning at common law which, in our submission, it does, “alien”, then the advantage of using the common law as opposed to perhaps using a meaning frozen in time or, alternatively, to using an ordinary understanding of the word, because an ordinary understanding of the word, whilst it is capable of evolution, perhaps is not as capable of as great an evolution as Justice Callinan pointed out, other in relation to popular culture perhaps, than the common law itself.

So the common law, in our submission, your Honour, would reflect a developing concept. It is not a concept frozen in 1901 or 1900 or the dates of the referenda or what have you, but the one point that would emerge from the common law theory would be that it must begin, as Justices Gaudron and McHugh aptly said in Breen’s Case, from a baseline of accepted principle.

Your Honour, we would submit that in the materials that we only had the opportunity to look at overnight, that were provided by the Commonwealth, one of those articles has exceptional value to the Court in our submission, and I refer to the folder. That is the article of – it is at tab 7 which is “Natural Law and Birthright Citizenship in Calvin’s Case” by Polly J. Price. When one refers to that article what one finds is for instance that – I draw your Honours’ attention at page 74 – that this is – first around about footnote 6 it says:

Remarkably, the rule of birthright citizenship derived from Calvin’s Case remained a status conferred by the common law, as opposed to statutory or constitutional law, for centuries. Until 1898 in the United States, and as late as 1949 in Britain, there were still some cases in which the determination of nationality depended upon the common-law rule of birth within a territory.

That is a very long-lived common law rule. If one turns to page 83 and looks at the text associated with footnote 54 one sees that:

But the rule that presumed anyone born with the territory of the King to be a natural-born subject of the King remained a part of English law until 1981 -

which is referring to the British Nationality Act of that year. If one turns back to pages 77 to 78, your Honours, at the last two lines of page 77 and over to 78:

In the history of both Britain and the United States, the jus sanguinis has always been established by statute, never by judge-made law.

There are numbers of other - - -

GUMMOW J: The real significance in Calvin’s Case appears – temporary significance – appears at page 84 line 10:

In effect, by determining that the Scottish postnati were subjects in England, the decision established that a merger of England and Scotland had taken place to some degree at a political level, as well as through medieval dynastic law.

MR O’HAIR: We certainly – I am indebted to your Honour - - -

GUMMOW J: It was a highly politically charged decision in its time.

MR O’HAIR: I am indebted to your Honour for that point. That having been said, your Honour, we believe that this Court has essentially in Shaw adopted the approach that was available to it, from Isaacson v Durant which the US Supreme Court in Wong Kim Ark has referred to and has indicated that Calvin’s Case was not to be accepted to the extent that the idea rested upon allegiance to a particular person of a monarch as opposed to allegiance to a system of law represented by the monarch.

So, in our submission, your Honour, indeed the Court has adopted – and from that we do not cavil – the proposition that the allegiance is, as it were, to the Australian monarchy. There is a divisibility of the Crown, something that was essentially in that politically charged case, as your Honour correctly points out - - -

GUMMOW J: Now, what do you mean to the Australian monarchy? What does that mean?

MR O’HAIR: Your Honour, I think it is best to look at it by its practical implication, by its - - -

GUMMOW J: What does allegiance mean?

MR O’HAIR: Your Honour, I think that that actually strikes to the nub of the case and is an excellent question. The best I can answer it is by indicating that whatever allegiance meant at Calvin’s Case it is something different now. The reason it is something different now is that it is an evolving common law conception. That evolving common law conception, rather like parenthood, I think, as Lord Denning once said, started out as a complete right and has now dwindled. The position of the Crown, as such, went from a position of great strength to a position of great weakness, in essence, within a constitutional democracy.

The US Supreme Court in Wong Kim Ark itself, as indicated in our submissions, was content with indicating that the nature of a republican citizenship was to be equated to the concept of a British subject so far as the legal tests were concerned, except for the fact that a different word was used, “citizenship” rather than being a subject.

In view of that, your Honour, even though there was an enormous break, as it were, with the Declaration of Independence and with the establishment of the Articles of Confederation and then the Constitution in the United States of America, that concept was of allegiance, coupled with protection, that concept that founds the proposition that the Queen can do no wrong, those fundamental concepts that underlie our law and our legal system are ones that tie to that concept of allegiance.

It might have from feudal times but, indeed, many concepts come from feudal times. It does not mean that we live in the Middle Ages or that we adopt the concept in the full sense that was adopted by Lord Coke in, as your Honour points out, a highly controversial and political case, but that does not mean that there are not many cases that are of a political character that affect the evolution of the common law. I think it was in Melbourne Corporation v The Commonwealth that Sir Owen was minded to say that it was not what questions were political; it was what questions were compelling.

CALLINAN J: Dr O’Hair, can I ask you a question about a matter which just has not had much attention in oral submissions?

MR O’HAIR: Certainly, your Honour.

CALLINAN J: Paragraph 51 of the defendant’s written submissions.

MR O’HAIR: I will obtain a copy, your Honour.

CALLINAN J: Why does not the immigration power extend to a power to make laws dealing with the status of a child of an immigrant wherever the child is born?

MR O’HAIR: As best as we can answer that submission, in our submission, your Honour, it is that immigration and emigration adopt a discrimen or a criterion, and the cases that would most assist your Honour in saying why would dealing with a child who is the child of, as it were, an immigrant and perhaps someone who is in breach of - - -

CALLINAN J: They are still immigrants. They may be unlawful immigrants, as it turns out, but they are immigrants, and obviously the immigration power can deal with unlawful immigration.

MR O’HAIR: Your Honour, our proposition that we would put is that the child can be on no view an immigrant.

CALLINAN J: The child?

MR O’HAIR: The child itself can be on no view an immigrant, that immigration and emigration is, indeed, a process, but because that child has not been involved in that process, then the question that one comes to is rather similar to the ones in Airlines of NSW (No 2), I think it was, where the question was why not adopt a commingling doctrine and say that interstate commerce, since it is so commingled with intrastate commerce, could pick up and make legislation with respect to both.

KIRBY J: It is a tricky question, though, because one could imagine, say, federal legislation which, without discrimination, provides for the children of immigrants benefits and assistance for their membership of the Australian community.

MR O’HAIR: Yes, your Honour, but where we would perhaps be able to distinguish that would be this. It may just be that the benefits are to the parents, and then, under Countess of Bective v Federal Commissioner of Taxation, how those moneys are spent is with the parents, but they would presumably be applied to the children.

Leaving aside those private law concepts, what we would suggest relative to that, would be this, that there is, relative to ideas that are incidental - picking up Justice Callinan’s question - relative to matters that are incidental, there has long been acceptance, as exemplified by the Illawarra County Council Case, or, indeed, by another case that is perhaps somewhat more controversial, whose name escapes me, relative to the taxation of stamp duty on family maintenance agreements. There has been an acceptance over a lengthy period that the more drastic the invasion of the rights of the third person affected, who does not actually stand within the discrimen, the less chance of it being regarded as incidental.

So a payment of moneys, for instance, might fairly be regarded as something that is incidental and does not have such a drastic effect on other legal rights as to lead to a characterisation that the statute is not with regard to immigration or emigration. But when the statute has such a drastic effect on the rights of a person who stands outside the principal focus of the power or what have you, then the question of incidentality is raised at a greater level, and, as Justice McHugh mentioned yesterday, relative to powers concerning purpose.

KIRBY J: Your point is that every Australian, except those descended from the indigenous people, is either an immigrant himself or herself or a descendant from an immigrant, and that if one, as it were, had a completely open-ended interpretation of the power, it would give the Commonwealth the power to make laws with respect to virtually everybody in the country.

MR O’HAIR: I am grateful for that, your Honour. Yes, we are a nation of immigrants.

GUMMOW J: It is limited to notions of absorption.

MR O’HAIR: Exactly, your Honour.

GUMMOW J: It is not suggested that these parents have been absorbed. Paragraph 4 of the case stated does not make it clear the basis on which they entered Australia. Did they enter Australia with visas?

MR O’HAIR: I am not aware, your Honour. I would have to take instruction on that.

GUMMOW J: It might be a material matter to know. If they did enter here under visas, have the visas expired?

MR O’HAIR: I certainly have sought instruction, your Honour, and assist the Court in any way. In our submission though, your Honour, while certainly it is true that the question of absorption is a significant question and, as your Honours pointed out - - -

GUMMOW J: It is the terminus of the power, so all this is up in the air at the moment. You have to deal with matters in reply.

MR O’HAIR: I am instructed that they came in on a business visa that expired, your Honour, but, in our submission, in any case we would say that a person born within the jurisdiction is not someone who has crossed any territorial boundary, which we submit is implicit in immigration, that one does have to cross a territorial boundary.

In view of that, whether the child is wrapped up in the incidental power is, indeed, a question of incidental power and the effects on the child are drastic and they are even more drastic if it is regarded that the child has the status as the subject of the Australian monarchy. Indeed, your Honour, we would press further and say this, that following Wong Kim Ark that there perhaps should be a recognition that there are constitutional citizens and if one wishes to use that term instead of constitutional subjects and that - - -

GUMMOW J: .....these questions you have asked, I do not understand them.

MR O’HAIR: You are speaking, your Honour, of the questions - - -

GUMMOW J: In the stated case. We have to write a judgment.

MR O’HAIR: I will address the questions in the stated case, your Honour.

GUMMOW J: I understand question 1 is not pressed, is that right? The only question that really arises is question 4?

MR O’HAIR: That is the nub of the matter, your Honour, yes.

GLEESON CJ: Do you press for an affirmative answer to question 1?

MR O’HAIR: Your Honour, from our client’s perspective, if question 4 were able to be answered in our client’s favour, without reference to an answer to the other questions, then, as it were, principles of judicial economy relative to constitutional issues are such that we would not press for an answer to those questions.

GLEESON CJ: Since you only give that qualified answer, let me ask you, how could there possibly be an affirmative answer to question 1?

MR O’HAIR: Your Honour, the way that we see that there would be an affirmative answer to question 1, in our submission, is essentially that citizenship in question 1 should be regarded as constitutional citizenship.

GLEESON CJ: No, citizenship is a legal term of art and there is an Act called the Australian Citizenship Act 1948. Does question 1 use the expression “Australian citizenship” in a non-legal sense or a non-technical sense?

MR O’HAIR: Question 2 is the one we press, your Honour, but if I answer your question directly, an enormous amount of confusion in this case has been brought about by the fact that the Commonwealth has been using concepts of citizenship in an Act enacted by the Commonwealth as determinative of the idea of citizenship, and your Honour has asked the question quite correctly yesterday and sought for an answer, and that question was, what is the status of this particular plaintiff, having regard to the fact that “we know what she is not”, I think was the eloquent expression that fell from your Honour, “what is she?” In our submission, your Honour, she is a constitutional subject, or if one does not wish to use “subject” any more, she is a constitutional citizen. The reason that we would adopt that - - -

KIRBY J: How can she be a citizen, given that citizenship is provided by a statute and she falls outside the statute?

MR O’HAIR: Your Honour, now we are dealing with two - - -

KIRBY J: I have not heard any argument addressed to question 1 supporting the notion that she is a citizen. Citizen is a statutory not a constitutional expression.

MR O’HAIR: If “citizen” is accepted as a statutory and not a constitutional expression, your Honour, then I do not see that we are in a position to press question 1.

KIRBY J: That was my conclusion.

MR O’HAIR: If “citizen”, as the US Supreme Court indicated in Wong Kim Ark, is a term interchangeable as a legal term with “subject” - - -

GUMMOW J: So we could strike out “Alternatively to 1” in 2, can we - 1 is not pressed, and we go to 2?

MR O’HAIR: Yes, your Honour.

GUMMOW J:

did the plaintiff acquire Australian nationality –

What does that mean?

MR O’HAIR: I think it is a necessary reflex, your Honour, of her being a subject of the Australian Queen.

GLEESON CJ: But is the expression “Australian nationality” in question 2 being used in a non-technical sense?

KIRBY J: “Nationality” was the word used in the Convention debates in relation to the equivalence of citizenship, that the people who founded the Constitution were talking of.

MR O’HAIR: I am indebted to your Honour for that and in answer to your Honour the learned Chief Justice, in our submission, “nationality” should be understood as his Honour Justice Kirby has indicated.

GLEESON CJ: So it should read, “Did the plaintiff acquire Australian nationality” within the meaning of that expression as used by a speaker during the Convention debates?

MR O’HAIR: No, your Honour, as used - - -

KIRBY J: The question goes on to say, “as a ‘subject of the Queen’”.

MR O’HAIR: Certainly, your Honour.

KIRBY J: So the question is defined?

MR O’HAIR: Yes, your Honour, so that is where - - -

GUMMOW J: The question is, is the plaintiff a subject of the Queen?

MR O’HAIR: Subject of the Queen - - -

GUMMOW J: Within the meaning of what, section 117?

MR O’HAIR: No, your Honour. In our submission, whether she is an alien or not, rests upon whether she is a subject of the Australian monarch, or if one wishes to say – and I appreciate that we are accepting that “citizen” at this stage is not to be used as Wong Kim Ark, is whether she is a citizen of Australia which would be equivalent to, exactly equivalent to by all legal tests, a subject of the Australian monarch. Section 117 does not need to be dealt with in that respect, your Honour, although it is indicative of a concept that runs through the Constitution. Section 117, in its current form, would appear to protect a subject of the Queen, perhaps even if that subject was not a subject of the Australian monarch.

GLEESON CJ: That may be the answer to the question I asked yesterday. We know you say that she is not an alien, but what do you say she is?

MR O’HAIR: A subject of the Australian monarchy, your Honour.

GLEESON CJ: Right.

MR O’HAIR: And if the question is in - - -

GLEESON CJ: No, just a minute.

KIRBY J: I do not know why you use this expression “Australian monarchy”. That is not an expression that is found in the Constitution. The expression that is found in the Constitution, albeit in a limited sense, is “a subject of the Queen”. The Queen appears in the Constitution about 50 times and the notion of “a subject of the Queen” is not alien to our constitutional history. The first passport I received declared that I was a British subject and an Australian citizen. It is not unknown to us.

MR O’HAIR: Your Honour, that is in deference to the holding in Shaw. The holding in Shaw, as we understand it, is that the concept of allegiance and the concept of being a subject is one that is to be determined as was indicated in Isaacson v Durant and in Wong Kim Ark, not as a matter of personal allegiance to a particular monarch – and there will be references, I think, to questions of Hanover and so forth, but rather as a reference to a monarchy that is the one provided for under the Constitution.

KIRBY J: It just has a ring of the Austra-Hungarian monarchy about it. It is enough for you to refer to the Queen. She appears in the Constitution.

MR O’HAIR: Certainly the Queen, your Honour, and it is certain - - -

GLEESON CJ: If you want us to say what she is, we have to express ourselves in legal terms, either a term that comes from the Constitution or a term that comes from a statute. We cannot express ourselves in political terms.

MR O’HAIR: Certainly, your Honour.

GLEESON CJ: So you do not say she is a citizen. As I understand it, you say she is a subject of the Queen.

MR O’HAIR: She is a subject of the Queen, your Honour.

GLEESON CJ: Anything else?

MR O’HAIR: Well, she is an Australian in every sense of the word, your Honour, but - - -

GLEESON CJ: We are not going to say she is an Australian in every sense of the word.

MR O’HAIR: I appreciate that, your Honour, but I am - - -

GUMMOW J: That sounds like a sports hero.

HAYNE J: Or Australian of the Year anyway.

MR O’HAIR: Well, that is not in evidence anyway, your Honour.

GLEESON CJ: She is an Australian in the very nicest meaning of the term.

MR O’HAIR: Australian subject, your Honour, of the Queen. The problem that one has is that one is faced with Shaw’s Case. We have no cavil, nor could we have any cavil with Shaw’s Case, your Honour.

KIRBY J: But Shaw’s Case has nothing to do with it. Shaw’s Case dealt with a person born overseas.

MR O’HAIR: Certainly, your Honour.

GLEESON CJ: Can you offer any other legal description of your client’s status for consideration by the Court than “subject of the Queen”?

MR O’HAIR: Well, if your Honour were moved to accept what is said by Justice Gray in Wong Kim Ark, we would say that that status is exactly the same as citizenship and we would say that is a legal conception, but that is not the legal conception in the statute. That is the legal conception as a matter of constitutional law in the United States. So whether your Honour were minded to adopt - - -

KIRBY J: That has nothing to do with the case, with all respect to you, Dr O’Hair. The United States Constitution has numerous references, as the founders of our Commonwealth saw, to citizen. It had in Article XIV of the amendments to the Constitution specific provisions for citizens born in the United States. We do not have that provision. Therefore, your only hope, it seems to me, is to anchor yourself in the status of “a subject of the Queen” as Queen of Australia.

MR O’HAIR: Yes, your Honour, I would adopt that, as what has fallen from - - -

GUMMOW J: Well, how then do you reframe question 2? You have to be specific, I am afraid, or otherwise I will not answer it.

MR O’HAIR: I appreciate that, your Honour. I certainly do not want to - - -

HEYDON J: Should it be, “Did the plaintiff become a ‘subject of the Queen’ by reason of her birth in Australia on 5 February 1998 and has she retained that status since that date?”

MR O’HAIR: I think that admirably deals with the question, Justice Heydon.

McHUGH J: But what point does it go to? It is an abstract question.

MR O’HAIR: Well, your Honour, it may be, as has been usefully suggested by my learned friend - - -

KIRBY J: It is a matter of status. It is not abstract to the plaintiff. It is either good or bad, but, with respect, it does not appear to be abstract.

McHUGH J: Well, it is abstract in the sense that it does not lead anywhere. The only question that matters to you is question 4, is it not? Again, that is a question which, on one view, might be regarded as moot, because according to the evidence, there is no threat to use section 198 against your client at this stage.

MR O’HAIR: Your Honour Justice McHugh, I would indicate two things relative to that. It may be moot, but cases such as Poe v Ullman and so forth would indicate that it is a difficult - - -

GUMMOW J: Well, which particular section of 198? There are 10 of them. They are quite complex and they are discrete, some of them, and that throws up Justice McHugh’s point. It does not seem that any particular one of them has been triggered yet.

MR O’HAIR: I am sorry, your Honour, we appear to have misplaced our Migration Act at this time.

GUMMOW J: Certainly, your client is not going to be asking to be removed in writing.

MR O’HAIR: I would also indicate, your Honour, that my learned friend, whom I am grateful to, indicated that a more appropriate question might be whether the plaintiff is an alien within the meaning of section 51(xix), but then that leaves out of account the question of the Migration Act, to the extent it rests on the migration power.

GLEESON CJ: The question would be whether she is capable of being treated by Parliament as an alien within the meaning.

MR O’HAIR: Yes, your Honour.

KIRBY J: A declaration of non-alienage may not be particularly helpful at the edge of the aircraft when an endeavour is made, if an endeavour is made, to remove the plaintiff from Australia.

CALLINAN J: Surely an answer to question 4 is all you need, really.

MR O’HAIR: I think that is correct, your Honour, but I think, as Justice Gummow has pointed out, his Honour has asked which possible application of the various paragraphs in section 198.

GLEESON CJ: Question 4 begins with the words:

In the light of the answers to 1) and 2) - - -

MR O’HAIR: Yes, your Honour, but as Uebergang v Australian Wheat Board and Hepples v Federal Commissioner of Taxation indicate, the exact form of the stated case can be adjusted to ensure that the issue before the Court is addressed. What your Honour is asking is, what is the exact form of the question, what is the question that needs to be determined? And the point that fell from his Honour Justice Kirby was that since it is a question of status, the status obviously has other implications as well, quite apart from the answer under section 198. But, your Honour, having regard to the way the matter has been opened and the way the matter has been argued, in our submission, the answer to 198 would be - - -

CALLINAN J: To deal with the matter that Justice Gummow raised with you, might not a better question be, is the plaintiff an unlawful non-citizen within the meaning of section 198?

HAYNE J: That is a question that engages a statutory concept. It does that through the definition of “non-citizen” in section 5 and seems to be but the precursor to the underlying question that seems to be sculling around though never properly formulated, about the intersection between the statutory concept of “Australian citizen”, the power with respect to naturalisation and aliens.

MR O’HAIR: Yes, your Honour, we would adopt that form of question that has fallen from Justice Callinan.

HAYNE J: Dr O’Hair, it all very well to adopt what is last put to you by a member of the Bench, but at some point you are asking us to write judgments, to write judgments that deal with questions in a stated case. We have to understand what the questions are and they have to some legal content. Can we get on and deal with it?

MR O’HAIR: Certainly, your Honour. Your Honour, so far as the stated case is concerned, we would indicate that the first question is abandoned. The second question in the stated case should be as formulated by Justice Heydon in his Honour’s kind suggestion to me, insofar as 4 was concerned, your Honour, that 4 ought to be formulated in the way that has fallen from his Honour Justice Callinan.

GUMMOW J: Namely?

MR O’HAIR: Namely, that the plaintiff is not an unlawful non-citizen.

HEYDON J: The question was, is the plaintiff an unlawful non-citizen within the meaning of section 198 of the Migration Act?

MR O’HAIR: Thank you, your Honour.

GUMMOW J: It is clearly within the meaning of section 14, is it not?

CALLINAN J: Yes, that would be better.

MR O’HAIR: Thank you, as was indicated to me by Justice Heydon.

GUMMOW J: Section 10 has some role to play, too.

MR O’HAIR: The section that has an operative effect, Justice Gummow, that our client is concerned with is 198 and so it is in the context of that section that we would have that operation. As your Honour might be minded to construe it perhaps in a different way, not that you have been invited to by the Commonwealth, but there might be questions in 198 as opposed to 10 or 14, because I am not sure where else that provision has effect about the questions of severability and reading down.

GUMMOW J: Anyway, you can rephrase question 4 as, “Is the plaintiff an unlawful non-citizen within the meaning of section 198?” Is that is how it is rephrased?

KIRBY J: She may be an unlawful non-citizen within the meaning of that statute but she may not be liable to removal from Australia, that notwithstanding, and that is what we have been debating the past day and almost a half.

MR O’HAIR: I take your Honour’s point, so “Is the plaintiff liable to removal from Australia as an unlawful non-citizen under section 198?”

KIRBY J: She might be a non-citizen under the Australian Citizenship Act and the Australian Migration Act.

CALLINAN J: These questions are being formulated on the run but perhaps, “Is the plaintiff liable to involuntary removal from Australia?” That may be enough for your purposes? It may be. I am not saying it necessarily is.

MR O’HAIR: Yes, your Honour, I think that – at least if it were, “Is the plaintiff liable for involuntary removal from Australia under section 198”.

GLEESON CJ: And is this on the assumed factual basis, which does not appear from the case stated, that the parents of the plaintiff came to Australia on a visa which has since expired and they have remained here?

MR O’HAIR: Well, whilst, your Honour, we would not - - -

GUMMOW J: For all one knows at the moment they have a bridging visa, I just do not know.

HEYDON J: Mr Markus told the Court on the first occasion it was before the Court that the plaintiff and the other family members have bridging visas except for the father.

MR O’HAIR: I am indebted to your Honour. I was not aware of that.

GUMMOW J: Well, where is your - - -

HEYDON J: Mr Levet was.

MR O’HAIR: I am indebted to my learned friend who has indicated to me that the bridging visa is in relation to certain other litigation but, nevertheless, there is indeed a bridging visa. Those are our instructions as well, your Honour.

McHUGH J: What you really want is a declaration that with or without a visa, within the meaning of the Migration Act, an officer of the Commonwealth has no duty to remove your client from this country.

MR O’HAIR: Your Honour, I am mindful of Justice Hayne’s statement of, as it were, shifting every time a suggestion has fallen from the Bench, but notwithstanding that, your Honour, that seems to bring it down to a concrete matter that does divide the parties.

McHUGH J: But you also need an amendment of your statement of facts really, do you not, to add at least one other paragraph which states that the Commonwealth contends that your client is an alien or is an unlawful non-citizen, et cetera?

GLEESON CJ: Dr O’Hair, we cannot, as a committee, as it were, redraft a stated case on the run.

MR O’HAIR: Certainly, your Honour.

GLEESON CJ: What I would propose for your consideration is that the matter be listed for further hearing before Justice Kirby, for the purpose of considering any amendments to the stated case that either side may propose, and that in the meantime you and your opponents apply your mind to some of the questions that have been raised from the Bench.

MR O’HAIR: Thank you, your Honour.

GLEESON CJ: Are you content with that, Mr Solicitor?

MR BENNETT: Yes, your Honour.

GLEESON CJ: All right. That will be done.

MR O’HAIR: Thank you, your Honour. So, your Honour, if then, leaving aside the form of the stated case - - -

GLEESON CJ: Do you not think it would be prudent for you to make your further submissions in reply in writing after that event has occurred, and then your opponents would have an opportunity to make any response they wanted to make in the light of any amendments that are made to the stated case?

MR O’HAIR: Your Honour, that is a prudent course, but I would simply like to deal with a couple of the matters that fell from the Solicitor-General, because it might be of assistance to the Court - - -

GLEESON CJ: Are you content with that, Mr Solicitor?

MR BENNETT: Yes, your Honour.

GLEESON CJ: The matter will be relisted for further hearing before Justice Kirby on a date convenient to Justice Kirby, arranged with the parties, to consider any reformulation of the stated case. Within seven days after any amendment of the stated case the plaintiff will have an opportunity to put any additional submissions in reply and the defendant will have a further seven days thereafter to put any submissions arising out of any amendments that have been made to the stated case. You go ahead now, Dr O’Hair.

MR O’HAIR: I am indebted to your Honour, thank you. Returning to the connotation and denotation points, one has dealt with the frozen in time concept and one has dealt with the ordinary understanding of the word. On the ordinary understanding of the word, in our submission, your Honours, the meaning of the word would not include our client. If the Court needed guidance relative to those matters, then the names of the cases already appear in written submissions and raised with the Bench. One is Cunningham v Tomey Homma, which is a Privy Council case, and a further case is Co-operative Committee on Japanese Canadians. In both those cases the Privy Council just deals with the matter as an ordinary English word and in dealing with it in those circumstances finds, as was indicated by Justice McHugh, that our client is not within the description of an “alien”.

Further, to the extent that one speaks of a foreign sovereign relationship which therefore has made questions of statelessness an issue, in our submission, your Honours, the Court might find advantage in reference to a case from the Privy Council in the English Reports, which is Donegani v Donegani 3 Knapp 63 and 12 ER, and particularly I would draw your Honours’ attention to page 85 in the Knapp Reports and page 580 in the English Reports which is to the effect that the status of a person as an alien or not is to be determined by our law rather than to be determined by a reference to a foreign law.

GUMMOW J: When you say “determined by our law”, of course. What is the answer to the definition given in Nolan in the joint judgment?

MR O’HAIR: Your Honour, so far as the definition in Nolan is concerned - - -

GUMMOW J: They are saying what our law is and they say you ask yourself the question, like Sir Edward Coke did, “Does this man owe allegiance to a foreign sovereign?”, to put it shortly.

MR O’HAIR: In Donegani, your Honour, or do you mean - - -

GUMMOW J: Do not take up more time, Mr O’Hair.

MR O’HAIR: Thank you. Beyond that, your Honour, we would indicate to your Honours that so far as the core concept is concerned, that core concept is one that is a question of what is the essence. Concepts of essences have been discredited in philosophy for a long time, but so far as a core concept is concerned, one is looking for what are the features of it that have to remain there and, as to the rest of it, what are the matters that are purely matters that go with the ebb and flow of the times.

In that connection, for instance, relevant to the definition of jury, one finds the idea of whether a person is a male to be a juror and, so far as a jury is concerned, the court is assisted by concepts of purpose relevant to a jury as to what its function and effect is to be.

Your Honours, the remaining matter, so far as fell from the learned Solicitor-General, is that obviously bankruptcy has to have something to do with financial matters. It could not, for instance, be moral bankruptcy, and, equally here, the railways power has to have something to do with railways. It cannot be a law with respect to a house.

KIRBY J: Yes, but if you adopt it, it has to have something to do with test. There is no doubt that the connection of blood is a something to do with.

MR O’HAIR: Certainly, your Honour, but, in our submission, the concept of allegiance and the concept of being a “subject of the Queen” is something that is implicit and runs through the whole structure of the Constitution, because the Queen runs through the structure of the Constitution. So far as that structure is concerned, it is referring to the concept of allegiance and to a concept of being a subject that was well understood and, indeed, right up until 1981, had not been touched in the United Kingdom, and in other places remains. This is not as if it is the law of contract, where equity receded in order to allow special assumpsits or what have you. This is an area that in fact, over centuries, has had a strong and determinate and continuing presence.

KIRBY J: That is a bit of a weak argument, because the only reference to “subject of the Queen” is in section 117. The Queen is mentioned many times, but nationality was not closely defined, perhaps because of the divisions in the Constitutional Conventions.

MR O’HAIR: That is true, your Honour, but on the other hand responsible government is not something that is necessarily referred to in the document. It is true that under 64 that the Ministers have to sit in the Parliament, but if the document is treated without reference to its common law background and without reference to its history then it will mean something altogether different and could, indeed, embrace some sort of near autocracy. So, your Honour, in our submission, that is a feature that is fundamental and underlying the Constitution.

Indeed, so far as the living Constitution is concerned, the advantages of using a common law concept is that a common law concept can, indeed, evolve – just excuse me, your Honour. Indeed, your Honour, as, in a totally different area, Justice Heydon wrote in The Restraint of Trade Doctrine, 2^nd edition, at page 1:

As Pollock remarked, the history of restraint of trade shows ‘a singular example of the common law, without aid from legislation and without any manifest discontinuity, having practically reversed its older doctrine in deference to the changed conditions of society and the requirements of modern commerce’.

So it is possible for the concept to evolve. It is possible to have a living Constitution and if the common law is used as a foundation for that, that is something that does not cause that departure from the bedrock of principle that Justices Gaudron and McHugh referred to in Breen v Williams, but it is a case that jus sanguinis, as indicated by the article presented by the Commonwealth that I referred your Honours to, is a concept that has never had any profile in common law other than by statutory enactment. So, in our submission, a birthright being a subject is something that is fundamental and is a common law conception that underlies the whole Constitution and the relationship to the Queen.

Your Honour, in deference to the fact that there are going to be further submissions, I shall not take your Honours’ time at any greater length other than to say perhaps two points, and that is these. I was going to draw your Honours’ attention to the well-known passage of Lord Atkin in his celebrated dissent in Liversidge v Anderson, and the effect of that is a question of who is the master as to the meaning of words.

In plain language, your Honour, our client is not an alien, has not been an alien for hundreds of years in the common law, and, whatever be the key peaks and high points in that core that is not to be eliminated. She falls squarely within the antithesis of being an alien and, therefore, cannot be defined as an alien by the Commonwealth or acted upon to that regard, although, your Honours, if, like the Marriage Act Case, the Commonwealth wishes to define someone, I think, as Justice Kitto said, as an alien with no practical or legal consequences thereto and perhaps hang that around someone’s neck, but not be able to deport them or do anything else to them, then probably, whilst it might not be within federal power, it certainly cannot be reached by a declaration of this Court. But as matters currently stand, the Commonwealth seeks to rely on that alleged status in order to justify her removal from Australia. Those are our submissions at this point. Thank you, your Honours.

GLEESON CJ: Thank you. Subject to the matters that I mentioned earlier, we will reserve our decision in this matter and we will adjourn for a couple of minutes to allow people to arrange their papers for the next case.

AT 12.06 PM THE MATTER WAS ADJOURNED