Hwang v Commonwealth of Australia & Anor; Fu v Commonwealth of Australia & Anor [2005] HCATrans 878 (26 October 2005)

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Hwang v Commonwealth of Australia & Anor; Fu v Commonwealth of Australia & Anor [2005] HCATrans 878 (26 October 2005)

Last Updated: 4 November 2005

[2005] HCATrans 878

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S428 of 2005

B e t w e e n -

BONNIE HWANG (AN INFANT BY HER NEXT FRIEND LI XIA YU)

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Defendant

Office of the Registry
Sydney No S498 of 2005

B e t w e e n -

ROGER WENJIE FU (AN INFANT BY HIS NEXT FRIEND HUI LING HUANG)

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Defendant

Summonses

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 26 OCTOBER 2005, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR A. MARKUS: If your Honour pleases, I appear for the defendants, who are the applicants on the summons. (instructed by Australian Government Solicitor)

MR B. LEVET: May it please your Honour, I appear for the respondent. (instructed by Michaela Byers)

HIS HONOUR: Now, Mr Markus, this is a strike-out application. I have read the submissions on behalf of the plaintiff and they seem to me to be basically hopeless, but the Court has adjourned Koroitamana into the Full Court of the High Court. The
pleadings in this case are somewhat deficient in terms of coming within the Koroitamana principle, but it seems to me in the circumstances it is proper to adjourn these proceedings until we see what the High Court does in respect of the Koroitamana matter. What is your view about that?

MR MARKUS: Your Honour, I am aware that the special leave application in Koroitamana has been adjourned before the Full Court in Canberra. In my respectful submission, this case does not raise the same issues at all. This case raises an issue, as I understand it, whether on the same facts as existed in the Tania Singh proceedings certain provisions of the Migration Act - - -

HIS HONOUR: Yes, I appreciate that and the application in great respects, as far as I can see, is hopeless, but the fact is that the pleadings do not give sufficient details to ascertain whether the child has any of the contraindicators of non-alienage, that is there is nothing in the pleading which indicates no allegiance to a foreign power as is the allegation in Koroitamana, but until we see what the Court does in respect of that I would be loath to dismiss these proceedings. At the moment the way the plaintiffs frame their case it seems to me there is no substance in it, with great respect, but this other point may be a valid point and it may not be.

MR MARKUS: It does not apply to this case, your Honour. It is not asserted that it applies. If Koroitamana is determined in favour of that particular applicant, there is no suggestion that that would assist these particular plaintiffs at all. I do not know whether your Honour has seen submissions which have been prepared - - -

HIS HONOUR: I have seen those submissions. It is, with great respect, nothing - - -

MR MARKUS: I am sorry. Is your Honour referring to the submissions dated today?

HIS HONOUR: Yes.

MR MARKUS: Your Honour will see that in those submissions there is an acknowledgement at paragraph 3 that this particular matter cannot be distinguished from Singh on its facts. Now, that is one of the matters my clients rely on in saying that these proceedings do not raise any arguable issue for consideration by this Court. Your Honour, Koroitamana may be determined one way or another. Koroitamana relates to cases where the fact that infants have been born in Australia have some significance.

HIS HONOUR: Yes.

MR MARKUS: In this particular case there is no significance at all to the fact that the plaintiffs have been born in Australia. What the plaintiffs seek to argue in this case is that much of the Migration Act is invalid or unable to operate because it refers to non-citizens as a category of persons in relation to whom powers may be exercised and the plaintiffs assert that the Commonwealth Parliament has no power to legislate in relation to citizenship. If your Honour has read our brief outline - - -

HIS HONOUR: Yes.

MR MARKUS: - - - the defendants respond to that by saying that the assertion in the first place cannot be made out and is simply unarguable, but in any event it is irrelevant because even if the Citizenship Act was beyond power this Court and any other court would seek to give some meaning to the provisions of the Migration Act and it is tolerably clear what is meant by the term “non-citizens”. So in those circumstances, your Honour, we say that the fact that there is another proceeding seeking to raise issues regarding the constitutional status of persons who have been born in Australia to non-citizen, non-resident parents and who owe no allegiance to any other country is irrelevant to these cases.

HIS HONOUR: Yes.

MR MARKUS: Your Honour, I should just say for the sake of completeness that I do not think it is at issue – and obviously the documents as prepared by the plaintiffs are deficient, but it is not in issue on my instructions that these particular plaintiffs have been born in Australia and, in fact, both plaintiffs were born in Australia in April 2002. The plaintiff in the Hwang matter was born on 8 April and the plaintiff in the Fu matter was born on 17 April.

Your Honour, just one other matter. The parents in both proceedings are citizens of the People’s Republic of China and I should just mention, your Honour, that the proceedings No S428 of 2005 give different names to the plaintiff and, in particular, the writ of summons refers to Hwang and the other documents all refer to Huang. On my instructions the correct name is Huang.

HIS HONOUR: Yes. Well, the statement of claim is defective in many ways and there is not even a statement of fact in it that the plaintiffs were born in Australia. You have to get that out of the order.

MR MARKUS: I made that point, your Honour, I think, in the submissions.

HIS HONOUR: Yes.

MR MARKUS: Your Honour, there is no doubt that the documents are deficient but that is not really the basis upon which my clients move for the orders that we are seeking. We say that the argument is simply not one that deserves consideration by this or any other court, your Honour. The argument that is being run is the same as was considered by the Full Court of the Federal Court in the Doumit matters, reference to which has been given.

Those proceedings were dismissed on a summary basis originally by Justice Emmett and then a leave to appeal application was refused by the Full Court. I should just say that the applicants in those matters have filed applications for special leave to appeal to this Court. I will not say anything further than that, your Honour, about those proceedings.

HIS HONOUR: Yes.

MR MARKUS: Could I just say one more thing before I sit down. The urgency really about this matter and this matter staying alive in this Court is this. If the applicants’ argument has any basis, then my clients have no power to remove any person from Australia at all because section 198 is not capable of valid operation. The Minister would submit that this Court ought to deal with that sort of a proposition on a fairly – quickly, I think is what I am trying to say. Thank you, your Honour.

HIS HONOUR: Thank you. Yes, Mr Levet. Now, what do you say?

MR LEVET: Firstly, your Honour, I have to concede that the case is indistinguishable from Singh insofar as there are no Koroitamana type indicia of non-alienage.

HIS HONOUR: You are not seeking to make any application to put them in?

MR LEVET: Your Honour, obviously the documents would have to be amended to properly allege facts, but I would have to concede that were that done there would be no indicia of non-alienage that could properly be asserted. Having said that, your Honour, I say “however”. Your Honour will recall that in Singh on similar facts to those before you on behalf of these plaintiffs the Court came to its decision on different bases.

His Honour the Chief Justice, for instance, asserted that the Commonwealth had acquired a power over citizenship and that it had done so since Federation as a result of the emergence of Australia as a fully sovereign independent nation. Other members of the majority hung their hat squarely on the extant aliens power contained in section 51. So the same result was achieved - - -

HIS HONOUR: Yes, but what you are saying does not really reflect what Chief Justice Gleeson said because in Singh he referred to the passage in Lim’s Case from a joint judgment of Justices Brennan, Deane and Dawson and what they said was that the effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship was that an alien under the alien power of the Constitution has become synonymous with non-citizens. That is what they said. He did not say anything about that they had acquired a power, did he? Take me to the passage if my recollection is wrong.

MR LEVET: I am sorry, your Honour. Your Honour, if one adopts this as a starting point. If one adopts as a starting point that in 1901 there was no power over citizenship quite clearly at that time. There had been two plebiscites. The Convention Debates had argued the matter and no power over citizenship was contained in section 51 at that time.

Your Honour, following Singh and Lim’s Case, however you dress it up, whether it is an extension of the aliens power or whether it is a separate power, however you dress it up, there would now appear at least to be an assertion that there is a power over citizenship that has arisen as a result of Australia’s emergence as a sovereign independent nation. Your Honour, whether you say that it is simply an extension of the aliens power or whether you say it is a completely separate power does not matter. The fact of the matter is that now it is asserted that there is a power over citizenship whereas in 1901 there was not.

Your Honour, there has not, it is trite to say, been a referendum giving that power. If there is now a power over citizenship, it is a power which has arisen, to quote both Lim and his Honour the Chief Justice in Singh, as a result of Australia’s emergence as a sovereign independent nation. Your Honour, Australia’s emergence as a sovereign independent nation since 1901, in my respectful submission, depends to a large extent on the operation of international law. It is the customary international law rules of recognition of States and recognition of the indicia of States that has caused that to occur.

The point I make is simply this, that if a power which was not there in 1901 is there now, whether as an extension of the aliens power or otherwise, and it has not come about as a result of a referendum, it can only have come about as a result of the operation of international law. If that power, your Honour, has come about as the result of the operation of international law, in my respectful submission, that power is subject to the limitations imposed by international law and, in particular, Article 3 of the Convention on the Rights of the Child.

To that extent, your Honour, it would, in my respectful submission, be an exception to the clear rule enunciated in both Teoh and Polites that international law does not form part of the law of Australia. Your Honour, the argument is simply that the power has been acquired by the operation of international law and it comes subject to its constraints.

HIS HONOUR: Yes.

MR LEVET: Your Honour, that is not something that was argued in Singh. As far as I am aware it is not to be argued in Koroitamana. Indeed, in Singh, as your Honour will recall, the attack on section 10(2) of the Citizenship Act was not continued with. In my respectful submission, Article 3 of the Convention which requires that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Your Honour, if that is a constraint to which the exercise of any power over citizenship is subject, then section 10(2) simply cannot stand because it certainly does not consider the best interests of the child. In effect, section 10(2) we would say would be ultra vires. It would be ultra vires the operation of any power over citizenship and that power over citizenship would have been acquired by international law subject to the constraints of international law and subject to the constraints of Article 3 of the Convention which Australia has both signed and ratified.

Your Honour, we would say, with respect, that an issue for summary dismissal, the proper test is that propounded by his Honour Chief Justice Barwick in General Steel Industries Inc v Commissioner for Railways (NSW) and that the test is whether the applicant’s claim is one entirely devoid of substance. Your Honour, it is not an argument that has been run before. It is not, in my respectful submission, devoid of substance. Given that his Honour the Chief Justice has said that Australia has, in effect, acquired a power over citizenship which it did not hitherto have, and your Honour whether you dress that up as being an extension of the aliens power or as a completely fresh power, it matters not. The fact is 1901, no power over citizenship; 2004, power over citizenship. It has been acquired from somewhere, not by referendum, we would say by the operation of customary international law.

HIS HONOUR: Buy why? It is just that Australia is an independent nation. That is sufficient to give an implied power over citizenship just as it has no power over sedition but the country is entitled, or the nation is entitled, to defend itself because it is an independent sovereign nation.

MR LEVET: Your Honour, his Honour the Chief Justice did not in Singh advance the citizenship argument in terms of an implied nationhood power. As I understand it, the majority spoke of it in terms of the aliens power and his Honour the Chief Justice by inference is saying that the aliens power has now extended as a result of the emergence - - -

HIS HONOUR: No, he said no such thing. He said that as a result of Australia’s emergence as a fully independent sovereign the concept of alien has become synonymous with non-citizen. Where is the passage in Singh that you rely on? It is at paragraph 4. He said:

I have previously stated my view that, subject to a qualification, parliament under paras (xix) and (xxvii) of s 51, has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode. In that regard, Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, that the effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship was that alien in section 51(xix) of the Constitution has become synonymous with non-citizen. The qualification is that parliament cannot, simply by giving its own definition of “alien”, expand the power under 51(xix) to include persons who could not possibly answer the description of “aliens” in the Constitution.

Even if the Commonwealth has no power over citizenship the structure of this Act is such that aliens are deemed to be people who were not born in Australia and who have not acquired any citizenship.

MR LEVET: Who were not born in Australia.

HIS HONOUR: Section 198 is dealing with a particular description - - -

MR LEVET: Of non-citizen, unlawful non-citizen.

HIS HONOUR: Yes.

MR LEVET: I do not think there is any issue between the Commonwealth and the plaintiffs that the term “non-citizen” is to be defined in terms of the Citizenship Act.

HIS HONOUR: That is right.

MR LEVET: The question is does it have a power in respect of citizenship. Your Honour, if you say – I mean to some extent it is merely semantics – but if you say that Australia’s emergence as a sovereign independent nation means that “alien” now means this, what in effect one has done is to redefine “alien” in terms that it adds another power to the Commonwealth. If your Honour accepts that in 1901 immediately following Federation there was at that stage no power over citizenship because by two plebiscites it had expressly not been included in section 51, then one must say that Australia has more fully, since 1901, emerged as a sovereign independent nation.

HIS HONOUR: It does not follow at all that because citizenship was not included in the Constitution specifically it was not capable of being the subject of some other head of power.

MR LEVET: Your Honour, it is proper, in my respectful submission, to go to the Convention debates in terms of interpreting existing heads of power.

HIS HONOUR: That may be but the fact that those who attended the Convention did not think that they were legislating for citizenship or authorising the Parliament to legislate for citizenship is neither here nor there if there is a sufficient power specifically granted to the Commonwealth.

MR LEVET: Your Honour, my point would be simply that pre-1901 there were two nationwide plebiscites and during the course of the Convention debates, there were motions lost at the Convention debates seeking to confer a power over citizenship. Had this Court made a decision in 1901 as to whether there was such a power, in my respectful submission, it would have found that there was not.

Your Honour, if one looks at what has happened since 1901 which has caused us to become an emergent sovereign independent nation, one looks at such things as the Statute of Westminster. One looks at the Australia Act. Before I leave those, your Honour, it is noted that the Australia Acts were passed - and the Statute of Westminster - by a foreign government, the Westminster Parliament. Also, your Honour, there have been other indicia of our emergence into nationhood. We have acquired a seat in the United Nations. We have entered into numerous bilateral and multilateral treaties. We are recognised, your Honour, as a sovereign independent nation by all of the countries of the world.

Midway through last century, your Honour, that probably was not the case. We certainly did not have a seat at the conference at Yalta. We certainly did not have a seat at any of the post-war negotiations that took place between the Allies and the defeated. Britain did so on our behalf, as it did with all of the Dominions. So we have emerged. We have emerged as a sovereign independent nation as was said in Lim’s Case. We have clearly emerged. We have emerged sometime between 1901 and 2004. It is not necessary for the purposes of this exercise to put a precise time on that emergence save and except it was somewhere between those dates.

If we have emerged, we have emerged as a result of the mutual recognition or the recognition concepts of international law. We are recognised as having emerged. We are recognised as being a sovereign independent nation which we were not before. Having been recognised by international law, if one says that it is that emergence which is the critical fact that leads one to have a power in respect of citizenship or that the aliens power extends to cover citizenship, however you dress it up, you are saying that there is this new power, in effect, to determine who is an Australian citizen and that has come about as a result of international law and we would say, okay, if you have a new power, if that new power has come about because of international law, then it is subject to international law’s constraints.

So whereas Polites and Teoh say no, international law is not part of the law of Australia except insofar as it is necessary to interpret it, we would say here is an exception, here is one exception.

HIS HONOUR: You are in a different field of discourse altogether. Polites was dealing with questions of domestic law. What this argument is concerned with is a question of constitutional law and insofar as the Commonwealth relies on Australia’s emergence as a fully independent sovereign nation, it says that fact itself. It has nothing to do with international law as such. It is the fact that it is an independent sovereign nation.

MR LEVET: Your Honour, the other example I give in respect of the acquisition of a new power as a result of changing circumstances - - -

HIS HONOUR: It is not an acquisition of a new power at all. It is the application of an existing power which was always inherent in the Constitution to a new set of facts, just the same as the trade and commerce power today includes a power to regulate hedge funds or hedging; financial instruments that were not known in 1900.

MR LEVET: Your Honour, if you look at section 75(ii) of the Constitution, it vests in the High Court original jurisdiction in all matters:

affecting consuls or other representatives of other countries -

I would say, your Honour, that the Commonwealth can be deemed since Federation to have acquired new powers as a result of changing circumstances so far as that is concerned because if one were construing the Constitution in the same way as a municipal statute, for example, a Dog Act, you would, by virtue of the ordinary principles of statutory construction read such a provision down to exclude ambassadors and diplomats who rank higher than a consul.

In the modern constitutional context though, there is, in my respectful submission, little doubt that the original jurisdiction of the High Court would be held as being extended to diplomats and higher ranks. So that, your Honour, is another example of a power that has accrued that did not exist in 1901, that certainly does exist today, to have an original jurisdiction in respect of ambassadors, et cetera.

HIS HONOUR: But the power always existed. The connotation was always there. It is the denotation of the power that has changed. That is to say, the facts, matters and things to which the power applies. What do you say about the power in respect to naturalisation which is an express power? How can that be the subject of legislation otherwise than by taking a person who is an alien and giving them some status, such as citizenship?

MR LEVET: Your Honour, the power of naturalisation is quite simply, as your Honour correctly identifies, a power to end the status of alienage.

HIS HONOUR: But in what sense? It must go beyond simply saying A is no longer an alien.

MR LEVET: Your Honour, it cannot go beyond that. It does end the status of alienage and I know, your Honour, there is authority for the proposition that once alien, always an alien to the extent that the aliens power always applies to one even if naturalised. But naturalisation can be no more, as a power, than the ending of the status of alienage. That is not relevant, in my respectful submission, in this case.

Citizenship and nationality are not necessarily synonymous, in my respectful submission. There is an argument, in my respectful submission, which says that one cannot be a full citizen until one is sui juris or unless one is sui juris. Yet, there is provision for the granting of citizenship to persons attaining the age of 10 years. There is provision for the granting of citizenship to persons born here of non-alien parents during the course of their minority.

So citizenship and nationality cannot, in my respectful submission, be wholly synonymous. Here, your Honour, and your Honour sorry if I sound like a broken record, but there was at some stage clearly no power over citizenship It was not intended. It was not there. In 1901 or 1902 the Commonwealth could not have, in my respectful submission, validly legislated in respect of citizenship.

HIS HONOUR: Why not?

MR LEVET: It had not, in the terms of Lim, fully emerged as a sovereign independent nation. It was part of the British Commonwealth or, indeed, in those days, part of the British Empire.

HIS HONOUR: But why would that stop it from legislating for citizenship?

MR LEVET: Well, presumably, your Honour, one could argue that citizenship could be legislated pursuant to the implied nationhood power, but that has not been advanced. His Honour the Chief Justice, in quoting Lim - - -

HIS HONOUR: Well, the Commonwealth does in this particular case. The Commonwealth submission says that the Federal Parliament had power over nationality and citizenship from the very beginning.

MR LEVET: Your Honour, that probably flies in the face of what his Honour the Chief Justice said in quoting Lim’s Case.

HIS HONOUR: No. With great respect, you keep misrepresenting or misquoting what the Chief Justice says. The Chief Justice was talking about “alien” being synonymous with “non-citizen”.

MR LEVET: Yes.

HIS HONOUR: That is all he was talking about. The Chief Justice said nothing at all in that passage in Singh about the power to make laws with respect to citizenship.

MR LEVET: Your Honour, he says that:

subject to a qualification, parliament . . . has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship -

He then qualifies that by reference to the decision of their Honours Justices Brennan, Deane and Dawson.

HIS HONOUR: He does not qualify it at all.

MR LEVET: Well, he starts off by saying:

In that regard Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, that the effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship was that alien in s 51(xix) of the Constitution had become synonymous with non-citizen.

HIS HONOUR: He is talking about alienage in that passage. That is what I have been putting to you. He is not talking about the power to make orders with respect to non-citizenship. Then he goes on to say:

The qualification is that parliament cannot, by simply giving its own definition of “alien” –

He takes the power of citizenship as a given. Then he says “alienage” has now become synonymous with “citizenship”.

MR LEVET: Then he ends up, your Honour, at the foot of the paragraph, saying:

Within the class of persons who could answer that description, parliament can determine to whom it will be applied, and with what consequences.

HIS HONOUR: Yes, he is talking about aliens. The previous sentence shows that:

possibly answer the description of “aliens” in the Constitution. Within the class of persons who could answer that description –

It is all about aliens.

MR LEVET: Yes, your Honour, but if non-citizenship and alienage are synonymous and Parliament can define who is an alien - - -

HIS HONOUR: No, they are synonymous only because Parliament has said so.

MR LEVET: But the fact remains, your Honour, that Parliament having said so, subject to what this Court might determine in Koroitamana, there is now a power in effect of the Parliament to determine who is and who is not a citizen.

HIS HONOUR: Well, that has been accepted for a long time. You can go back to Nolan for a start. In fact, you can go back to Lim. You can go back to all those cases. It is just accepted that the Parliament has power to make laws with respect to citizenship. It has been accepted since 1948, at least.

MR LEVET: Your Honour, there is the rub. If it is accepted in 1948 but was not accepted in 1901 - - -

HIS HONOUR: Well, you keep asserting that but you do not point to anything, other than the fact that people at the Convention wanted a specific head of power in relation to it and it did not appear in the Constitution.

MR LEVET: Not only, your Honour, did people at the Convention want a specific head of power, but there were two what were in effect referenda through the Australian population.

HIS HONOUR: That has nothing to do with it.

MR LEVET: And it did not appear.

HIS HONOUR: How does that have anything to do with it? We are talking about a piece of legislation enacted by the British Parliament.

MR LEVET: Yes.

HIS HONOUR: The fact that the people did or did not approve at a referendum says nothing about its meaning.

MR LEVET: Your Honour, if one accepts that at some stage there was no power then over citizenship but there in effect came to be, that can only be explained, as in, I would say, Lim attempts to explain it, by reference to Australia’s emergence as a sovereign independent nation and that it has emerged gradually - - -

HIS HONOUR: But in any event once you accept, as you seem to accept, that there is now a power to make laws with respect to citizenship, how does the Convention on the Rights of Children have anything to do with the government’s constitutional power about citizenship?

MR LEVET: Only this way, your Honour. If, for the sake of argument, your Honour accepted that at some stage between 1901 and 2004, or 1948 or whenever, that a power had emerged over citizenship – and I concede that there is that power now – I would respectfully submit to your Honour that it has emerged as a result of the operation of international law.

HIS HONOUR: No, not as a result of international law at all; as a result of a fact.

MR LEVET: That fact, your Honour, can only be determined by reference to international law.

HIS HONOUR: Why?

MR LEVET: Well, in 1901 if you sort of put up your hand and say, “We are a sovereign independent State”, then you apply certain tests to determine whether you are a sovereign independent State. For instance, if somebody landed on the Antarctic continent and proclaimed an independent sovereign State, the fact of whether that became the sovereign independent State would depend on the operation of international law. In short, it would depend upon whether other States recognised it. If other States recognised it, then, as a matter of fact, it would be a State. If other States did not recognise it, then, as a matter of fact, it would not be.

If one looks at the Gaza Strip, there is arguably no independent State of Palestine. It is probably getting there, but at some stage it will become a State, one presumes, with all the trappings of statehood and sovereignty, but that will not depend on conditions in the Gaza Strip, that will not depend on resolutions passed by the Palestinian Authority. That will depend, as a matter of fact, on the recognition that is either afforded or withheld by - - -

HIS HONOUR: That is the point. Recognition is very different from rules. It depends upon a fact. On your argument, the power of citizenship would wax and wane depending upon whatever agreement happened to be made by executive governments around the world. On your argument, the right of the Commonwealth to defend itself against internal sedition would depend upon whether or not there was any international agreement that nations should not defend themselves against sedition, or that should outlaw it.

MR LEVET: Indeed, your Honour, to some extent that is the position that applies so far as the law of the United Kingdom is concerned because the United Kingdom quite clearly says that international law is part of its own domestic law. We do not.

HIS HONOUR: I do not know that England says that, does it? Anyway, it does not matter. It has nothing whatever to do with the point in this particular case.

MR LEVET: If your Honour does not accept that as a matter of fact Australia’s emergence as a sovereign independent nation is the thing that has caused - - -

HIS HONOUR: It does not seem to matter one way or the other whether it is accepted or not. The fact is it strikes me as an absolutely hopeless argument to say that the constitutional power to make laws with respect to citizenship is affected by an international covenant in relation to children which has been signed by the Executive Government of Australia. That is an unbelievable proposition. The constitutional power of a country to make laws with respect to citizens waxes and wanes according to provisions of international covenants simply because they are entered into by the Executive Government, not authorised by the Parliament or approved by the Parliament.

MR LEVET: Ultimately that is the purpose of ratification as opposed to signatory, is it not?

HIS HONOUR: It is ratification by the Executive, not by the Parliament of the Commonwealth. It is a large proposition to be asserting that a constitutional power of the Parliament waxes and wanes according to agreements made by the Executive Government. That is really the tail wagging the dog.

MR LEVET: Your Honour, in respect of all of those powers which are enumerated by section 51, no, they do not wax and wane.

HIS HONOUR: Defence power does depending on circumstances. In the Communist Party Case Justice Fullagar spoke about the primary and secondary operation of the defence power. In a time of war the defence power expands to cover almost every facet of Australian life. In peacetime it contracts. In wartime Federal Parliament have power to make laws with respect to control of prices of houses. They do not have it in peacetime.

MR LEVET: Your Honour, my argument depends on this as a proposition. If your Honour is not with me on the basic proposition, your Honour is not with me. As a basic proposition, if the Commonwealth has acquired a power that it previously did not have and it has acquired it other than by referendum by virtue of the operation of international law, then yes, that power itself might well wax and wane according to the dictates of international law and might itself be subject to the constraints of international law. A constraint of international law to which that and that power alone would be subject, in my respectful submission, is the constraint imposed by Article 3.

HIS HONOUR: I have to tell you, Mr Levet, I think the power to make laws in respect of citizenship has always existed. It is inherent in the nation being constituted. The Commonwealth Parliament surely from the very beginning in 1901 had power to say that the people of this or that place or on this condition were citizens of the country.

MR LEVET: But on the face of it it did not.

HIS HONOUR: Until 1948 Great Britain was exercising a power and it would have been very difficult for the Commonwealth to legislate in a way that might have brought it into conflict with the United Kingdom Parliament. That is not to say they did not have the power.

MR LEVET: Your Honour, if they could not have exercised a power in a way that brought them into conflict with the United Kingdom Parliament, then on the face of it they did not have that power.

HIS HONOUR: On that theory they did not have any power.

MR LEVET: No.

HIS HONOUR: Any power over anything, because it was always open to the Parliament of Westminster to legislate for the Australian Constitution.

MR LEVET: Yes.

HIS HONOUR: The fact that potentiality existed did not mean that they did not have the power.

MR LEVET: Certainly not unfettered. Your Honour, I cannot take it further than I have, save and except to say that despite the fact that your Honour is obviously not with me on the issue of the acquisition of the power and the fettering of the power. In my respectful submission, it is arguable. The test that your Honour has to apply, given that this is not an application for special leave, this is an application by my friend or those who instruct my friend, for strike-out and the tests that you have to adopt is the test espoused by his Honour Chief Justice Barwick in General Steel Industries and it is whether the appellant’s claim is one entirely devoid of substance.

In my respectful submission, even though your Honour might not be with me, and your Honour clearly is not with me, on the issue of whether the power is fettered by international law, in my respectful submission, the proposition is arguable and, your Honour, I do not even have to establish a likelihood of success. It is, is this argument - - -

HIS HONOUR: No, all you have to do is show it is arguable.

MR LEVET: Yes, is it entirely devoid of substance? In my respectful submission, it is not.

HIS HONOUR: Yes. Is there anything you want to say, Mr Markus?

MR MARKUS: Just very briefly, your Honour, two points. First, I know that my friend appears to have conceded the first and principal point that I understood to be his case, that is that there is now power in the Commonwealth Parliament to legislate with respect to citizenship. Secondly, your Honour, we accept the onus that we need to satisfy in relation to the application that is before this Court, we say that we meet that onus.

There are two separate bases where we say that the plaintiffs’ case is simply unarguable. First, as is pointed out or argued or submitted in paragraph 25 of our submissions, the defendants’ case is that it is not correct that principles of international law are the source of Parliament’s power to make laws with respect to citizenship. That power derives from the text of the Constitution and at most the construction of the text may have been influenced by developments in Australia’s status as a nation.

HIS HONOUR: What part of the text of the Constitution do you rely on, Mr Markus, for that?

MR MARKUS: Your Honour, relevantly we rely on the aliens power but we say that there are other heads of power which are relevant, including the immigration power and the implied nationhood power. But, your Honour, importantly, in our submission, the issues of nationality and citizenship have been within the power of the Commonwealth legislature since Federation and the absence of a distinct Australian citizenship law until 1948 reflects matters of history, not of legislative power.

HIS HONOUR: Yes.

MR MARKUS: Secondly, your Honour, and just as importantly, insofar as the plaintiffs’ case relies on the proposition that the heads of legislative power in the Constitution are or can be limited by principles of international law, we say that that proposition is also totally and utterly unarguable. It runs into a whole line of authorities and I think in footnote 7 I refer to paragraph 63 of your Honour’s judgment in Al-Kateb where your Honour described that proposition as heresy and we say that is what it is and it is unarguable. Those are my submissions.

HIS HONOUR: I will reserve my decision in this matter and give judgment at 10.15 tomorrow morning. I take it that what has been said in relation to Hwang applies also to Fu. They both stand together.

MR LEVET: Yes, your Honour.

MR MARKUS: Yes, your Honour.

HIS HONOUR: I will adjourn until 10.15 tomorrow.

AT 11.14 AM THE MATTERS WERE ADJOURNED
UNTIL THURSDAY, 27 OCTOBER 2005