Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2019] HCATrans 90 (8 May 2019)

Last Updated: 9 May 2019

[2019] HCATrans 090

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B43 of 2018

B e t w e e n -

DANIEL ALEXANDER LOVE

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Brisbane No B64 of 2018

B e t w e e n -

BRENDAN CRAIG THOMS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MAY 2019, AT 10.04 AM

Copyright in the High Court of Australia

____________________

MR S.J. KEIM, SC: Your Honours, I appear with my learned juniors, MS K.E. SLACK and MR A.J. HARTNETT, and we appear on behalf of the plaintiff in each of the matters. (instructed by Maurice Blackburn Lawyers)

MR S.P. DONAGHUE, QC, SolicitorGeneral of the Commonwealth of Australia: May it please the Court, I appear with MR N.M. WOOD and MS J.D. WATSON for the defendant in both matters. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Keim.

MR KEIM: Thank you, your Honour. Your Honour, it would seem from the parties’ positions that much of the Court’s attention in deciding these special cases will be devoted to considering the authority of Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322. In particular, we will focus on those parts of the plurality judgment on which the Commonwealth relies. This part of the submissions, which will take the greater part of our time, is particularly relevant to the position of the plaintiffs as children who were born outside of Australia of Australian nationals.

In this part of our oral submissions our principal focus will be on why the reasons of the plurality in Singh should be restricted to the facts in that case and not treated as a universal guide to determining questions of alienage under section 51(xix) of the Constitution. Inter alia, we say that is because, firstly, the criterion asserted as being the defining characteristic of alienage did not capture the inherent circumstances of Ms Singh, but brought her within the constitutional meaning of “aliens”. The reasoning on which the Commonwealth relies was not necessary to the decision in Singh.

Secondly, the proposition advanced by the Commonwealth in reliance upon the plurality’s reasoning that any person who owes allegiance to a foreign state by being a citizen or subject of that foreign state is ipso facto an alien for the Australian Constitution was not supported by a majority of the judges in Singh. As a result of the plurality in Singh approaching the construction of section 51(xix) through the narrow prism of the facts in Singh, it did not consider matters going to nationality by descent. Nationality by descent is central to the facts in the present cases.

The case of Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 is authority for the proposition that nationality by descent is an independent basis for a person to be an Australian national. The majority in Nolan acknowledges an express exception for persons born overseas with Australian parentage from being aliens. This part of the decision in Nolan was not referred to by the plurality in Singh, but is consistent with the approach taken by this Court unanimously in Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101.

Fifthly, the proposition relied upon by the Commonwealth is not an appropriate test because of the inconvenience flowing from reliance upon the domestic law of other nations to determine the effect of the Australian Constitution. Sixthly, the test for nationality articulated by the plurality in Singh did not give sufficient attention to the law applicable in 1901 in construing or applying section 51(xix).

Seventh, the proposition relied upon by the Commonwealth is contraindicated for application to claims of nationality by descent by the approach taken in the Australian Citizenship Act 1948 especially at the time that each of the plaintiffs was born. Lastly, the proposition relied upon by the Commonwealth produces unexpected and concerning results when applied to claims for nationality by descent. Many of these revolve around the impact upon other examples of foreign allegiance at birth and the resulting dual citizenship.

That will complete the first part of our submissions. The second, briefer part of our submissions will address the proposition that Aboriginal Australians do not come within the concept of “aliens” in section 51(xix) no matter where they happen to be born.

This part of the submissions will address the following three matters: those principles of construction of the Constitution which arise from its function as a document which is difficult to amend but which is intended as an enduring document to serve the needs of succeeding generations; secondly, the changes in Australia’s social and legal context, including its international context and including changes in the prevailing values which call for a changed understanding of the potential of section 51(xix) to deal with the position of Aboriginal Australians in Australian society; and, thirdly, the reasons why those changes applied to the construction of 51(xix) require that Australian Aboriginals be recognised as persons no matter where they are born as falling outside the meaning of “aliens”.

GAGELER J: Are the two parts of your argument cumulative? Do you need to succeed on both parts?

MR KEIM: They are independent, your Honour. We can succeed on either part and be successful, but it is not a major part of our case. The aspects of our clients actually involve all of those parts so it is possible that if one took a multicomponent approach to alienage then perhaps all four parts could be relevant but that is not the way in which we put the case. We say they are independent and our clients are entitled to succeed on either part.

NETTLE J: On the first part of your argument would someone, say, who was descended from British Australians but born abroad to a foreign national and an Australian and not an Australian citizen, be recognised as an alien or not? In other words, does it require the aboriginality of the plaintiff in order to succeed on the first or would it work that people of any descent

MR KEIM: No, I am sorry, your Honour. The first part applies to anybody who is born overseas of an Australian national. The second part is restricted to the special characteristics of Aboriginal Australians.

NETTLE J: So anyone of any race born abroad from at least one Australian national is not an alien?

MR KEIM: Yes, your Honour.

KIEFEL CJ: But you are not contending that Singh was wrongly decided?

MR KEIM: No, your Honour. We are restricting the reasons of the plurality to the facts in Singh for the reasons that we have outlined and we will go to in some detail. Your Honours, can we just start by providing a context of why we concentrate on these parts of Singh by asking your Honours to go to our learned friend’s outline at paragraphs 20 to 23.

GORDON J: Do you mean their outline or their submissions, Mr Keim?

MR KEIM: Yes, their primary written outline, not their oral outline. I am sorry, yes.

KIEFEL CJ: Their full written submissions.

MR KEIM: Your Honours will see in paragraph 21 the central statement in paragraph 200 of the plurality’s reasons on which our learned friends rely and your Honours can see from the whole of the four paragraphs that the Commonwealth’s position is that Singh is determinative of all aspects of our clients’ claims. The second citation or the second extract in paragraph 22 is taken from paragraph 205 and we can take your Honour to those in due course.

As I just said, in answer to your Honour’s question and as we said in our reply submissions at paragraph 6, the plaintiffs do not seek to challenge the result in Singh. However, the plaintiffs assert that the reasoning of the plurality which led to the passages in paragraphs 200 and 205 contains errors of principle and for the other reasons which we advance should be confined to the facts of that case.

Can we just remind the Court of the circumstances of Ms Singh. She was born in Australia in 1998. Both of her parents were born in India and were citizens of India. Neither of her parents were permanent residents in Australia. By virtue of her parent’s Indian citizenship, Ms Singh took Indian citizenship at the moment of her birth. She was not an Australian citizen and the Court by a 5-2 majority determined that Ms Singh was an alien.

In terms of the proposition that it was not necessary for the decision to lay down the principle with regard to foreign allegiance being the central characteristic, could we just indicate that we say that the reasons of Chief Justice Gleeson and Justice Kirby, but also the case itself, indicates that paragraphs (a), (b) and (c), which I have just outlined born in Australia in 1998, both of her parents were born in India and were citizens of India and neither of her parents were permanent residents in Australia, would have been sufficient to decide that case in the way that it was decided, without any reference to the foreign allegiance at birth.

If I can turn to the proposition that the plurality’s reasons were not shared by the other members of the majority in terms of the joint book of authorities, paragraph 200, is at volume 9, tab 50, page 3623 and page 398 of the report, and I would ask your Honours to go to paragraph 200, and about six lines in draw your Honours’ attention to the sentence that commences:

The central characteristic of that status is, and always has been, owing obligations (allegiance) to a sovereign power other than the sovereign power in question (here Australia).

GAGELER J: What did they mean by the “central characteristic”? The difficulty I have with that statement is that at the end of paragraph 190, in the last sentence, their Honours accept that a person with no allegiance to any sovereign power can be an alien.

MR KEIM: Yes, your Honour. There is a disjunct, in our submission, between the sentence in 200 and the sentence to which your Honour has just directed our attention.

GORDON J: There is a further proposition, too, I think, and that it is recognises dual nationals at 182 as falling outside that general description that is given at 200 – recognition of more than one state.

MR KEIM: In 182, your Honour?

GORDON J: Yes.

MR KEIM: Yes, your Honour.

GORDON J: Does that mean that the statement at 205 is, in a sense, saying that it is a factor in alienage but not determinative?

MR KEIM: We understood it to be determinative.

EDELMAN J: It cannot be, you cannot

MR KEIM: But we say that there are difficulties with it.

GORDON J: It cannot be determinative, though, can it, given the way in which you have just been taken to those two passages at 182 and 190?

MR KEIM: No. We say there are inconsistencies in what their Honours have said at 190. I do not know whether the passage at 182 was anything more than a history but it is part of the proposition

GORDON J: It is more than a history, Mr Keim. It is recognising the existence that you can have someone who has a dual nationality, which would mean that - there are a lot of dual nationals in this country.

MR KEIM: There are, your Honour.

GORDON J: They are not, by their dual nationals, aliens.

MR KEIM: They are not, your Honour.

GORDON J: The mere fact – so it cannot be determinative, can it?

MR KEIM: It cannot, your Honour. That is so.

NETTLE J: The reason they are not aliens is because they are Australian citizens, despite what other citizenship they might hold. That is what makes them nonaliens, but they are Australian citizens.

MR KEIM: Can I approach it in this way, your Honour. The effect of applying the criterion in paragraph 200 as determinative in all situations means that all persons who are born with a foreign allegiance are aliens at birth. We will take the Court to some examples later on. With regard to some of these persons, the Citizenship Act deems them to be citizens from birth, so at a single moment in time they are aliens and are naturalised. In other cases the Citizenship Act provides pathways to citizenship but treats them as aliens to start with.

But the problem in the result of treating all of these people who start off through the domestic law of another nation as aliens, as an essential proposition, is it exposes to denaturalisation in all of the negative aspects in which the aliens and naturalisation power can be used to being denaturalised, to having their citizenship stripped from them and to being detained and being removed from the country.

The point that we make is if you apply this as the central characteristic, as our learned friends seek to do, as the definitive criterion, a very large sum of people, even people born in Australia, who at their birth have New Zealand citizenship, for example, are aliens by that. Even though the Citizenship Act says a person born in Australia to somebody who has lived here for a sufficient number of years is a citizen, that is a statutory naturalisation process, so they are exposed to the power of 51(xix) in its negative form.

So that is how they become dual citizens. If one treats the reasoning of the plurality in the way that our learned friends rely upon it, then all of those people have to be naturalised to become dual citizens. That is the central point that we make. We say that it cannot be the case, for the reasons that we have said, that that is the central characteristic. It was unnecessary and outside the facts of that case. It produces concerning results.

NETTLE J: But your contention at base is that citizenship and alienage are not the same thing. They are not the opposite thing.

MR KEIM: Yes.

NETTLE J: One is not the

MR KEIM: What we say is - and we have set out the authorities in our primary outline of submissions and we will take your Honours to the passage in Nolan in due course - we say that citizenship is a statutory approximation to nonalienage, that in many of the cases to which our learned friends refer in their outline it was an effective synonym because those people failed the test in Pochi v Macphee without any difficulties.

So all of the people who have come as asylum seekers and who are born in Myanmar or Vietnam or China or England, they are aliens because of what Sir Harry Gibbs said in Pochi v Macphee. So, when they are declared by the Citizenship Act or the Migration Act to be noncitizens, it is an exact approximation to a synonym. But in those cases where the Parliament gets it wrong and applies section 51(xix) to people who are not yet granted citizenship, then the synonym does not apply and there are several statements in the authorities that indicate that. In fact, we say

EDELMAN J: This first submission, though, would not apply, for example, to an Aboriginal Australian born in Australia to two noncitizen parents, for whatever reason. That would be your alternative submission, would it?

MR KEIM: Yes, it would be. If I could put some bones on your Honour’s example – if, for example, the two plaintiffs in this case who we say are Australian nationals although they are noncitizens, if they had a child both of their parents would be noncitizens. They would be indigenous, as their parents are indigenous Aboriginal Australians and, in those circumstances, they would succeed on our second proposition but not necessarily on our first proposition – well, they would succeed on the first proposition because no matter where they are born they are born to Australian nationals, even though they are noncitizens.

GAGELER J: When you say “Australian nationals”, are you drawing a distinction between nationals and citizens?

MR KEIM: Yes, I am, your Honour. We originally in our written outline of submissions used, I think, Justice Kirby’s terminology of “nonalien, noncitizen”, but “Australian national” we have adopted as a generic form of category upon alien, so it deals with people who are treated as subjects, it deals with - as in 1901, it deals with people who - where the nationality is generally citizenship as well.

GAGELER J: Yes. So I am understanding you are currently addressing a submission to the effect that a person born to an Australian national parent while that parent was outside of Australia cannot be an alien.

MR KEIM: Yes.

GAGELER J: In that proposition, how do you define “Australian national parent”?

MR KEIM: “Australian national parent” is somebody who is not an alien but who has not been granted citizenship under the Australian Citizenship Act 2007 or its earlier forms.

GAGELER J: I am sorry, I do not understand that – someone who is not an alien but who has not been granted citizenship?

MR KEIM: Yes.

GORDON J: How can that be anybody other than an Aboriginal Australian on your argument, that is, why is it not that the second limb of your argument is, in a sense, the precursor to this? Or, to ask Justice Gageler’s question, who else could it be other than an Aboriginal Australian, on your argument?

MR KEIM: It could be anybody who, according to the law in 1901, would have received – in the law as it was in 1901 and as it has evolved – who was a national by descent.

EDELMAN J: A British national?

MR KEIM: At that time, a British subject by descent, the modern analogue is an Australian national by descent. So what we say is that if neither of our clients were Aboriginal Australians but, for example, a couple went to New Zealand for a holiday and a child was born prematurely and they came back as soon as the child was born, they are Australian nationals, whether they have taken out citizenship or not. But that child, we say, is an Australian national by descent.

We say that is recognised by the Citizenship Act because there are pathways to citizenship for those people. People who are born overseas to Australian nationals, whether they are citizens or not, are entitled to nationality by descent. In the case of both our clients, one of their parents was an Australian citizen.

GAGELER J: Mr Keim, can you point, please, to somewhere in some authority where “Australian national” has been used in the sense in which you now use it? I just want quite a clear definition of what you mean by “Australian national”.

MR KEIM: I cannot, your Honour. I say the closest synonym of it – the closest terminology is Justice Kirby’s use of the word.

GAGELER J: Where do we find that?

MR KEIM: I will find that for your Honour. He used the term “noncitizen, nonalien” in

EDELMAN J: Your second submission is, in a sense, a very narrow submission. The second submission is that whatever the bounds of the word “alien” in 51(xix) are they do not extend to the special and sui generis category of Aboriginal Australians.

MR KEIM: Yes, your Honour.

EDELMAN J: Why do you need to have this vastly expansive rewrite of the whole of our understanding of section 51(xix) as your first submission? I am not sure I follow where it is going and what it adds to the second submission.

MR KEIM: They are independent pathways to being a nonalien, your Honour.

BELL J: Looking at the first of those pathways, you have been developing a concept of “Australian national” which might, on a view, simply add confusion to the debate. Your contention is, going back to Chief Justice Gibbs in Pochi that, firstly, the constitutional content of the word “alien” cannot be defined by the Parliament in terms of providing for Australian citizenship, that is, there is some content that is beyond the scope of the Parliament to exhaustively define in terms of citizenship legislation, as I understand it

MR KEIM: That is the proposition.

BELL J: and, secondly, his Honour’s further conclusion that it is within the scope of the power conferred under 51(xix) for the Parliament to treat as an alien a person who was (a) born outside Australia, (b) whose parents, that is, both parents as I understand it, were not Australians and who has not been naturalised as an Australian. If you take the middle one of those three propositions “whose parents were not Australians”, on your own case each plaintiff had a parent who was an Australian citizen.

MR KEIM: Yes, your Honour.

BELL J: So that if we were to understand Chief Justice Gibbs in speaking of a class of people whose parents were not Australians was referring to people who were not Australian citizens, your argument remains.

MR KEIM: Yes, your Honour.

BELL J: So, I am just wondering why we are being enticed into some very fuzzy concept of Australian nationals being persons who, for the purposes of this part of your argument, one of whom is an Australian but does not have citizenship and who gives birth to an individual outside Australia by some accident of history. It just seems to me to add a level of complexity which may not assist.

MR KEIM: That is certainly true, your Honour, of the case which this Court has to decide. There are some issues of consistency, I suppose, that stand outside that. Once you say that citizenship is not definitive of who is or who is not an alien that could extend through several generations. You could have people who are not aliens but for whatever reason did not take out Australian citizenship and then they give birth overseas. So, it is not necessary for the decision in this case, your Honour.

BELL J: Is it possible to confine your argument to that which is necessarily raised? It seems to me

EDELMAN J: But there is no special concept in the Constitution of Australian “national” but there is a special concept of “Aboriginal”.

MR KEIM: Yes, your Honour. Yes, your Honour is asking a slightly different question. I can simply use the terminology of “nonalien” rather than using the word

EDELMAN J: No, I was making the same point as Justice Bell which is I still do not see why you need for the purposes of this case to go beyond your second proposition or what it adds to your second proposition to create these expansive new concepts?

MR KEIM: We say they are not expansive new concepts. We have used the word “national” simply as a convenient word.

NETTLE J: Well, the Court has not before recognised a category of “noncitizen, nonalien” except once - Justice Kirby to whom you refer - and he subsequently too stepped back from that. The Court regards “citizenship” and “nonalienage” as the same.

MR KEIM: In our submission, they are not, your Honour.

NETTLE J: Well, I understand you argue against that but that has been the accepted wisdom until this point.

MR KEIM: We say that the Court has continually stated that it is not within the power of the Parliament to define who is or who is not an alien.

NETTLE J: Well, it is said repeatedly that it is within the power, subject, perhaps, to some outer limit of the kind that Justice Gibbs described in Pochi.

MR KEIM: It is the outer limit that we are interested in, your Honour.

EDELMAN J: That is the core of your second submission.

NETTLE J: All right. Well, that is where, if I may say so, where you ought be going, to the outer limit.

EDELMAN J: The core of your second submission is if there is any outer limit, that outer limit is Aboriginal Australians.

MR KEIM: We say the outer limit includes Australians by descent.

GORDON J: But why do you need to go that far? That is our question. We are dealing with Aboriginal Australians Aboriginal Australians who are referred to in the Constitution, as is “alien”. As I understand your argument, and I do not mean to put it in simple terms, but as I understand it, your propositions are alienage should not be equated with noncitizenship, alienage should not be equated with foreign citizenship and you do not equate it with birth outside Australia.

MR KEIM: Yes, your Honour.

GORDON J: The critical proposition is then what do you with your clients who are Aboriginal Australians, which is the outer limit. So why not focus on them?

MR KEIM: Because

GORDON J: You do not need to go any further, do you?

MR KEIM: Well, our learned friends say that their aboriginality is irrelevant

GORDON J: And you say it is

MR KEIM: Our learned friends say

GORDON J: and you need to explain why it is.

KIEFEL CJ: Mr Keim, it may perhaps simplify matters to focus attention on this reality and that is that the Court will be determining the questions raised by reference to the facts in the special case, which is to say upon the matters raised by the plaintiffs concerning their aboriginality and how it relates to the question of alienage.

I cannot, of course, be assured that my colleagues will not go a little further, but it is generally the case that the Court will not decide a question wider and you are inviting the Court to decide a much larger question. The chances are that it will not be answered. Your focus should be upon the facts put forward in the special case as the foundation for the argument in relation to the two plaintiffs.

It is one thing to say that – it is one thing to use wider propositions perhaps to challenge reasoning in a case for the purpose of the plaintiffs’ case, but it is another thing to invite this Court to go beyond what is required for these to be determined in the plaintiffs’ cases and to engage in a much larger proposition involving much greater facts which are actually not before the Court.

MR KEIM: But the fact that each of the plaintiffs had citizens as one of their parents are in the special case, your Honour, and we say that is sufficient on its own for the plaintiffs to succeed.

GAGELER J: Mr Keim, I have rewritten your first proposition. I want to put it to you to see if I have understood it. Does it come down to saying that a person born to a nonalien parent outside Australia is a nonalien?

MR KEIM: Yes, your Honour.

GAGELER J: Thank you.

KIEFEL CJ: Mr Keim, do you take issue with the statement by Chief Justice Gibbs in Pochi v Macphee that any person born outside Australia whose parents are not Australian, which you have accepted means Australian citizen, and who has not been naturalised as an Australian, is an alien?

MR KEIM: No, we accept that as a statement of the law, your Honour.

KIEFEL CJ: But you say that just does not deal with your clients’ cases?

MR KEIM: No, it does, your Honour, we say that should be applied to us but

KIEFEL CJ: But if it applies, you are aliens, are you not?

MR KEIM: No, one of our parents is an Australian and that is sufficient.

KIEFEL CJ: A citizen of Australia.

MR KEIM: We say – yes, one of our parents is a citizen of Australia.

KIEFEL CJ: Yes, I am sorry, I had forgotten that you distinguish between one parent and two parents. But Chief Justice Gibbs was actually saying both parents, was he not?

MR KEIM: Can I go to that passage, your Honour, because it is important.

BELL J: I think his Honour was saying it was open to the Parliament to treat as an alien a person who was born outside Australia whose parents, plural, were not Australian and who has not been naturalised as an Australian and your contention is one is not within that definition if a parent is an Australian and for present purposes we need not concern ourselves with the notion of whether the parent is a nonalien or not because the fact is on each of the plaintiff’s case a parent was an Australian citizen at the time of the plaintiff’s birth.

MR KEIM: Yes, your Honour.

KIEFEL CJ: But the point is you do not gain that – your submission does not arise from what Chief Justice Gibbs said. You cannot take from what his Honour said about both parents that one will do, can you?

MR KEIM: Yes, well, we can, in terms of the way it is framed, in fact, in the way that her Honour

KIEFEL J: You were going to take us to that.

MR KEIM: I will take your Honour to the passage. We say it is consistent with the law in 1901 because all you needed to be a British subject was a father. Now, we think that the law may have evolved from that particular patriarchal view. So we say that what his Honour Justice Gibbs is saying in that is that if those three characteristics are not met then you are not an alien.

EDELMAN J: Well, this really does undercut then your second submission because as I understood – as I understand your second submission, your second submission really does depart from a legal conception of “alien” as governing section 51(xix) and it is saying it is relying upon probably a majority approach in Singh that “alien” at its core involves notions of outsider – outsidership and for that reason it does not encompass Aboriginal people. But now, in the first submission, you seem to be focusing very heavily upon a similar approach to that taken by Justice McHugh in Singh.

MR KEIM: Your Honour is absolutely right. What we say is that the law as stated by Sir Harry Gibbs and the law as it existed in 1901 did not envisage any special place in alienage law for indigenous people. What we say is that applying the principles of construing the Constitution as an enduring document, that what was not considered in 1901 is a potential in the words in “alien” that is now crucial, that is, this Court reflects the changes in society by which what was understood as “aliens” in 1901 now has something which says that Aboriginal Australians just cannot be aliens or cannot have alienage bestowed upon them.

At the narrowest, it is that an Australian Aboriginal cannot be an alien just because she was born overseas. We say that that is something that the Court would recognise now which a court - would not necessarily have arisen in 1901 when travel was much less frequent in any event, so the question was unlikely to arise in 1901.

So, you are right, your Honour. We accept that our second proposition is - our first proposition is anchored very strongly in the meaning of “alien” as it was understood by the founders with minimal changes for the changes in values which have taken place in the 120 years. We say that our second proposition conversely is anchored in the social changes that have occurred since 1901 and requires the Court to find the potential in the words of section 51(xix) that were always there but would not have been recognised in 1901.

KIEFEL CJ: Mr Keim, if one focuses just for a moment on the words adopted by the Constitution in relation to the power to legislate it is not one just with respect to aliens, it is called “naturalization and aliens” in 51(xix).

MR KEIM: Yes, your Honour.

KIEFEL CJ: “Naturalization” being understood to be the process by which you become

MR KEIM: An Australian national.

KIEFEL CJ: No

MR KEIM: Sorry, your Honour.

KIEFEL CJ: By which you become a nonalien.

MR KEIM: Yes.

KIEFEL CJ: It is the cure for your being an alien.

MR KEIM: Yes, your Honour.

KIEFEL CJ: And in the legislation which has occurred that process is one by which you become a citizen. Naturalisation equates in legislative terms to citizenship. I do not think anyone has suggested that that is not within the naturalisation power.

MR KEIM: No, that is right, your Honour.

KIEFEL CJ: If that is the case, is not the dichotomy of “alien” and “noncitizen”, which has been put to you earlier I think by Justice Nettle, evident as flowing from the Constitution and the powers with respect to naturalisation? Is not that the position that prevails in Australia, that an alien is simply a noncitizen?

MR KEIM: No, your Honour. If the power is exercised in a positive way so that

KIEFEL CJ: Which power?

MR KEIM: If the naturalisation power is exercised in a positive way it does not

KIEFEL CJ: But you are not challenging the Citizenship Act.

MR KEIM: No, I am not, your Honour. Well, I am, your Honour, challenging the Migration Act so far as it seeks to treat our clients as an alien. Where the

KIEFEL CJ: You are not challenging the validity of any legislation as far as I was aware. You are saying that, as I understood the case stated, it is that the facts and particular aspect of your clients as having aboriginality, as being Aboriginal persons, takes you out of any notion of status of aliens.

MR KEIM: Yes, your Honour, so that those powers which are sought to be exercised with regard to us in an adverse way must be read down as being in excess of the power.

BELL J: Your contention is that sections 189 and 198 of the Migration Act are invalid in their application to the plaintiffs by reason of the fact they are not supported by the aliens power, neither of the plaintiffs being aliens, for the reason that though each is not a citizen of Australia they fall within the outer boundary, if you like, of the concept of “alien” as that term is used in the Constitution because of their connection to Australia?

MR KEIM: Yes, your Honour. So far as we talk about

KIEFEL CJ: That is not invalidity. It is just you say section 189 does not apply because your client is not an alien?

MR KEIM: Yes, your Honour, it is just that.

KIEFEL CJ: It is not invalidity we are talking about.

MR KEIM: I accept what your Honour says, yes.

GORDON J: As I understood your argument about that, it was that if you look at it in effect chronologically, at Federation Aboriginal Australians were not aliens, the Citizenship Act did not affect that status. This is as I understood your argument.

MR KEIM: Yes.

GORDON J: And in a sense, because of their connection to land that in effect recognition of that by this Court and elsewhere has increased rather than decreased that recognition, and, yes, it is possible for someone by their Aboriginal descent to take a disqualifying step in respect of their being a nonalien to bring about them being an alien, but there is no such disqualifying step here, as I understand you say.

MR KEIM: Yes.

GORDON J: And that if one goes back to the propositions that were put to you before, as I understand it, one then looks to see what is the definition of “Aboriginal Australian” and by that you pick up Justice Brennan’s description in Mabo. Is that right?

MR KEIM: Yes.

GORDON J: Is that not a shorter route home for you than the other route?

MR KEIM: Except that our learned friends say that being an Aboriginal Australian is irrelevant and

GORDON J: You are answering that, are you not, by the propositions that you have just accepted?

MR KEIM: Yes.

EDELMAN J: Speaking for myself, I think that is a much more logical and simpler starting point than the creation of a new edifice.

KIEFEL CJ: It is in fact the question you pose in your written submissions at paragraph 3, when you describe the task of the Court as being:

to determine whether an Aboriginal Australian with at least one parent who is an Australian; who was born outside of Australia; who first arrived in Australia as a young child; has only departed Australia for brief, temporary periods; and is not an Australian citizen, is an “alien” for the purposes of s 51(xix) of the Constitution.

That is the way your case was presented to the courts and the defendants have prepared it really on that basis. That is what we were to address.

MR KEIM: Yes, your Honour, and that is what we are addressing. I was asked right at the beginning do the two separate parts of the argument – are they independent bases and we say that they are. We say that being born overseas

KIEFEL CJ: I am sorry, Mr Keim, that is not how you stated the question in your written submissions. What has happened, I suspect, is that you have moved on and decided to – when you were preparing for argument you prepared, effectively, a new argument, one which focuses just on the Australian parentage. If you wish to take up the time you have for oral argument on that and not on the basis upon which the argument was initially put, which focused upon the aboriginality of the plaintiffs, then that is a matter for you. But, as I say, time is finite in this Court for oral argument and you have given your estimate.

MR KEIM: I realise that, your Honour. Can I just

KIEFEL CJ: The Justices are not being unhelpful to you.

MR KEIM: I understand that, your Honour. Can I just explain in answer to your Honour’s suggestion that we have thought up a new argument, our learned friends have responded to that by saying that aboriginality is irrelevant and being born overseas to an Australian parent makes you an alien. We say that there is a satisfactory answer to both of those propositions.

Can I just perhaps deal with the Pochi matter first and your Honour the Chief Justice did ask me about that. The report appears at tab 38. The particular passage is at page 109 of the report, which is page 2973 of the joint book. It starts at the bottom of page 109, in the last new sentence. I would ask your Honours to read the sentence starting “However, the Parliament can in my opinion treat as an alien”.

GAGELER J: You want to get some negative proposition out of that, do you?

MR KEIM: We say this - yes, we do, your Honour. We say

GAGELER J: I think we understand what you say, but where does the negative proposition come from? Do we just get it out of these words or is there something more in the history?

MR KEIM: There is something more than that, your Honour.

GORDON J: The preceding few lines might help, where the Chief Justice said, it seems, that you cannot expand the definition of “alien” to simply answer something which is beyond that in the Constitution. In other words, Parliament cannot expand it just to make it mean whatever it thinks it means.

MR KEIM: Yes, your Honour.

GORDON J: That is a pretty good starting point.

MR KEIM: That is why we say there is an area where a person who is not a citizen can also be not an alien, because whereas Parliament tries to approximate what its view of what an alien is, Parliament can treat as aliens people who are not aliens. We fall into that category, and Parliament is not entitled to do that.

KEANE J: But the point about this passage is that Chief Justice Gibbs is distinctly not saying that anyone who falls outside this description is not an alien. He is saying it is unnecessary to address the outer limits of the concept of “alien”. He is saying whatever those outer limits may be this - the person he is describing - is within the limits. He is not stating a negative proposition. He is not saying these are the people who cannot be regarded as aliens.

MR KEIM: I understand what your Honour is saying. What we say with regard to that is that that test, when you look at the other parts of his judgment, is actually based on his view of the law as to what an alien is. Can we just explain it in this way, and I will take your Honours to Quick and Garran in a moment. We say that Chief Justice Gibbs is saying that if a person is born outside Australia that blocks the birthright pathway to Australian nationality. Neither of the person’s parents are Australians. That blocks the jus sanguinis pathway to being an Australian and has not been naturalised. That blocks the exercise of the naturalisation power.

We say that although it has been framed in that negative way, each of those reversepositive propositions represent the Chief Justice’s view of the law at the time that he was deciding that case. The reason why we say that is because he makes a reference to the law in Quick and Garran. If I can take your Honours back to page 107 of the report, at the bottom of that page, page 2971 in the book:

To enable this highly technical argument to be understood it is necessary to refer to the manner in which the status of a British subject is acquired under the Australian Citizenship Act. At the time of federation, the status of British subjects was governed mainly by the common law, which applied in both England and the Australian colonies, with some immaterial statutory modifications.

After his reference to Blackstone, he says at the top of the next page:

(See also Quick and Garran, The Annotated Constitution of the Australian Commonwealth, p. 599.)

If we can take your Honour to that, that is at tab 54, volume 10. If your Honours can go to page 3965 of the book behind tab 54

KIEFEL CJ: You might have to read it out since it is almost impossible to read:

MR KEIM: Your Honour:

In English law an alien may be variously defined as a person who owes allegiance to a foreign State, who is born out of the jurisdiction of the Queen, or who is not a British subject.

Then the law is stated in the next couple of sentences:

The rule of the common law is that every person born out of the British Dominions is an alien, and that every person born within British Dominions is a British subject.

That was really the question that was before the Court in Singh:

This is known as the jus soli or the territorial test of nationality, which is contrasted with the jus sanguinis or the parentage test of nationality.

That is perhaps, your Honours, where I started to use “nationality” as a descriptor:

There are several exceptions to the territorial rule: (1) legitimate children born out of the British Dominions, whose fathers, or grandfathers on their fathers’ side, were naturalborn subjects –

and so on. So, what we are saying is that Justice Gibbs was representing in modern terms – was representing the jus soli test for nationality as at 1901, adjusted because he talks about parents - he does not talk about fathers and he does not talk about grandparents, he talks about parents - the jus sanguinis test, which is what is before the Court here, and he also talks about the naturalisation power, so we say that his Honour in formulating that test was having regard to what he saw was the definition of an “alien”.

KIEFEL CJ: But there is a distinct majority, is there not, in Singh which holds that at the end of the 19th century preFederation there was no fixed meaning given to the term “alien”. There was no specific requirement for whether you fell within or without. It was not completely settled. As the Chief Justice in Singh pointed out, it was a matter referring to the class of persons of the plaintiff there. The question of alienage was a matter for legislation. That is what happened postFederation. So, why are we spending time back in preFederation common law, unsettled as it was?

MR KEIM: We say the law was settled as Chief Justice Gibbs and Quick and Garran indicates.

EDELMAN J: But one thing that Singh does decide is that Calvin’s Case does not govern the meaning of section 51(xix).

MR KEIM: That is because, your Honour, the law at 1901, as Chief Justice Gibbs states, was an amalgam of the common law and statutes which were passed in 1730, 1772 and 1870. In answer to your Honour Chief Justice’s question, what was dealt with in Singh, was the birthright pathway to nationality and what the court held – what we say the Court is holding in Singh should be understood as what was necessary for that case is that it is no longer sufficient to be born in Australia to not be an alien. We say that it did not consider the jus sanguinis pathway to nationality and so it should not be held as authority in that case. In terms of its statement that the law was unascertainable in 1901, if that is the way in which it is to be interpreted, we say the Court should depart from that.

KIEFEL CJ: I think their Honours said “no fixed meaning”.

MR KEIM: Yes. Yes, your Honour. We say that it did have a fixed meaning. We say that that is indicated by Chief Justice Gibbs. It is indicated by Quick and Garran, and we say

KIEFEL CJ: You say “fixed meaning” but different pathways.

MR KEIM: Yes. It had a fixed meaning in which you could be a British subject

KIEFEL CJ: You could approach it by different methods. That is a fixed meaning.

MR KEIM: What I am saying, your Honour, is yes, that it had a fixed meaning which involved two different ways in which you could be a British subject. Both were accepted.

KIEFEL CJ: Mr Keim, in relation to Singh, do you say that there is a ratio or not?

MR KEIM: Yes, we say that in the most narrow approach to a ratio it is that a person born in Australia incidentally, if I can put it that way, whose parents are foreign citizens, is an alien. In terms of the fixed meaning of the law, we say that Chief Justice Gibbs’ statement of the law in Pochi v Macphee is restated in longer terms by the minority in Singh. Both Justice McHugh and Justice Callinan set out in some detail what was – what the 1870 Royal Commission stated, and subject to the fact that one of the recommendations was not put into law as we see from Quick and Garran, that statement of the law was the fixed meaning that would have been applied to the law if a case had arisen in 1902 or 1903.

BELL J: And that is on the way on your first argument, Mr Keim, but as, I think, you acknowledged somewhat earlier this morning, that does involve an essential inconsistency with the second way you put your case based on aboriginality. Coming back to Chief Justice Gibbs, what Chief Justice Gibbs said in Pochi at 109 was that, firstly, a clear acceptance that the Parliament cannot by legislation define the outer limits of the concept for the Constitution of “alien”. That matter was not raised in Pochi. His Honour referred to the inability of the Parliament to include persons who could not possibly answer the description of “aliens” in what his Honour said was the ordinary understanding of the word.

If one takes from Singh acknowledgement that the ordinary understanding of the word “aliens” for the purposes of 51(xix) did not and does not have a fixed meaning, that, as I would see it, is important to your argument on the second basis that you advance.

MR KEIM: Tempting as it is to agree with your Honour, can I just say this?

BELL J: Yes.

MR KEIM: In terms of construing the meaning of “aliens”, I say it is very similar to the approach that was taken by this Court in the St George County Council Case which is referred to by Chief Justice Gleeson in Singh, that is that one of the ways in which you construe the Constitution is to work out what the legal meaning of the word was at the time and we say that is the approach that Chief Justice Gibbs took, that is the approach that Justice McHugh in Singh took and that is the approach that Justice Callinan in Singh took. What we say is

GORDON J: If you take that approach, then I think it is common ground, as I read the Commonwealth’s submissions, that Aboriginal Australians were not aliens at Federation.

MR KEIM: They are not, your Honour, but our learned friends say

GORDON J: So let us just stop and take that in stages. If that is right, why is that not your starting point and then move to say, well, what has happened since?

MR KEIM: Because our learned friends say that if you are born overseas you are an alien.

GORDON J: I know. That is what your learned friends say. I am asking you what your argument is. I just do not understand why you do not embrace it. Why complicate it? As a starting point, it is common ground, as I read the Commonwealth’s submissions, that Aboriginal Australians were not aliens at Federation.

MR KEIM: Yes, your Honour, but

GORDON J: And “Aboriginal Australians”, as I understand your submissions, has a particular descriptor which is that the test set out or the description set out – “test” is probably the wrong word – what has happened since to disqualify them?

MR KEIM: Nothing, your Honour. In fact, things have moved in the other direction and so we say even more strongly now that they are not aliens and certainly the accident of being born overseas does not make them an alien. But we say also that the accident of being born overseas does not make people who are the children of Australian citizens aliens either.

KIEFEL CJ: But your case is not that persons of Aboriginal descent who have a connection with Aboriginal communities in Australia but who are not born in Australia – I am sorry, I will start that again. Your case is not as posited as accepted at Federation that Aboriginal Australians are citizens. It is that persons of Aboriginal descent who were not subjects of the Crown and then came to be citizens of Australia are necessarily nonaliens. Your argument is that persons of Aboriginal descent who were born elsewhere are nonaliens.

MR KEIM: Yes, your Honour, we have to make out that case.

NETTLE J: Because of their race.

KIEFEL CJ: That is not the case that is accepted at Federation though; it is different. It is not suggested that the power under section 51(xix) has been exercised by the Parliament to make Aboriginal Australians aliens, and that would be the kind of case that Sir Harry Gibbs and others were referring to and say it is beyond the power of the Parliament to make some people who are obviously not aliens, aliens. If there was a law which said Aboriginal Australian people – Aboriginal people born in Australia are aliens that would clearly be beyond power. That is the kind of area – but that is not this case.

MR KEIM: No, your Honour. We do not necessarily agree with what your Honour said that Sir Harry Gibbs was referring to, but that would be an extreme case and that would clearly come within what he said about Parliament’s inability

KIEFEL CJ: That would be an expansion of the power under 51(xix), the example I posited.

MR KEIM: Absolutely, your Honour. Your Honour, if I can turn to the second leg of our argument, as we acknowledge at paragraph 14 of our reply submissions there is no evidence in the historical record that, at the time of Federation, the law of nationality paid any heed to the possibility that Aboriginal Australians may have been thought to be aliens under the Constitution. It is unlikely to have been raised on many occasions in an era when travel was much more arduous for most strata of society and Aboriginal Australians were regarded as being on the fringes of colonial society, in any event. To support that last proposition we say the content of the now repealed s 117 of the Constitution is evidence that the framers of the Constitution at least regarded Aboriginal Australians in that way.

It is the plaintiff’s case that changes in the social and legal context, including the way in which the Australian community has come to understand the fundamental role played by Aboriginal Australians in Australian society, have led to different understandings of section 51(xix).

GAGELER J: Mr Keim, before you come to the changes, could we just go back to 1901.

MR KEIM: Yes, your Honour.

GAGELER J: In volume 10 of the joint book of authorities – I am not sure who is responsible for putting this in – there is behind tab 53 a report from the Select Committee on Voting Rights of Aboriginals. At page 1433, which is also helpfully numbered page 3947, there is an opinion by Professor Sawer which goes directly to the question at about point 3 of the page. You see there is a sentence:

After 1901, the Commonwealth acquired concurrent power with the States on nationality questions (sec.51(xix), but did not deal with nationality by birth . . . It is clear that on these principles –

That is, the principles applicable in 1901:

every aboriginal native of Australia born in Australia after 1829 . . . became a British subject by birth; his race was irrelevant, and there were no other circumstances capable of qualifying the allegiance.

Now, do you accept that as the starting point?

MR KEIM: Yes, your Honour.

GAGELER J: Thank you.

NETTLE J: You are pushing an open door, because that is what the Commonwealth accepts. The Commonwealth accepts that was the position.

MR KEIM: Yes.

EDELMAN J: Except you say that the reason why Aboriginal people are not aliens, in 1901, was not because they were British or was not only because they were British.

MR KEIM: Yes, your Honour. That is how the law regarded them in 1901, particularly the phrase that

GAGELER J: When did race become relevant, on your submission?

MR KEIM: We say that it became relevant by the time of our client’s birth, but we say that somewhere the judicial recognition of those changes occurred after their birth. So the question arises at this point in time. We want to take the Court to what was said in Mabo and other cases to indicate that change of values.

EDELMAN J: But why was race not relevant in 1901? If we are not governed in the meaning of “aliens” by a strict legal meaning and if there are some ordinary conceptions of the word that lie at the core of the power, why would not one look to the literal meaning of the word, which is “from another place”, and that in 1901 Aboriginal people were not from another place?

MR KEIM: We accept that, your Honour. We accept that in the sense that, while it may not have been recognised if the question had arisen then, what we say about Australian Aboriginals’ fundamental connection with Australia and with the Australian community ab origine that it was a basis for not treating them as aliens in 1901. What we say is that the changes which have occurred now mean that this Court should recognise that, whereas the Court may not have recognised it in 1901. I am not sure if I have answered your Honour’s question.

KIEFEL CJ: Mr Keim, the Court will take its morning break.

MR KEIM: Thank you, your Honour.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

KIEFEL CJ: Yes, Mr Keim.

MR KEIM: Thank you, your Honour. A question that your Honour Justice Gageler asked me earlier was the reference in Justice Kirby’s judgment in Singh to the terminology of “noncitizen nonaliens”. That can be found at page 408 of the report, page 6633 of the joint book at paragraph 234. In terms of the changed understandings and values, changes in the social and legal contexts which we say have taken place since 1901, we say may include a better understanding of the fundamental role played by Aboriginal Australians in Australian society; may also include the adoption of newly articulated values going to the need for the law to be consonant with notions of justice. In this new context section 51(xix) does not comprehend that Aboriginal Australians fall within the concept of “aliens” in the ordinary – or that they are alien to the Australian community in the ordinary sense of those words.

We will not take the Court to the various paragraphs, particularly in Chief Justice Gleeson’s reasons in Singh, which talk about the importance of the Constitution being an enduring document. He quotes Sir Alfred Deakin from a speech in 1903. He does make a reference at paragraph 18 on page 335 to the need to “explore the potential inherent” in the words of the Constitution as time goes on.

But if we can summarise the various phrases that have been used by Chief Justice Gleeson, also by Justice Kirby at paragraph 246, Justice McHugh at paragraph 53 and by the plurality at paragraph 160, the sorts of phrases used are developments “in the national and international context”, the aspects of the present of which the founders had no “capacity to foresee”, the circumstances differing “widely from the expectations” then held, the changed needs and the new problems, the changing circumstances, the “life and progress of the community” and/or the changed wishes and expectations which allow us to press upon - and the changed wishes and expectations. We say all of those phrases are applicable to the task which we say is before the Court in dealing with our second proposition.

In terms of the potential in the inherent meaning of the words, which your Honour Justice Edelman I think raised with me, we have given the Court definitions of “alien” and “aborigine” from the 6th edition of the Macquarie Dictionary. We say that outside its technical legal meaning, “alien”, which is derived from “aliēnus”, meaning belonging to another, means “outsider”, “foreign; strange; not belonging”. “Aboriginal”, in contrast from “ab origine”, means from the beginning, from the earliest period, “from the source”.

In terms of recognition of new values, can we just note the number of the international instruments which Australia has become a party to. They include the Universal Declaration of Human Rights, which is a nonbinding instrument, in 1948; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; and, in more recent times, Australia joined itself to the Declaration on the Rights of Indigenous Peoples. A number of those instruments use a phrase of which – this is an example that goes across a number of instruments:

recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

They go on to recognise that human rights derive from the inherent dignity of the human person. In terms of how those values might be different from those values that guided the drafting of the Constitution, can we ask the Court to go to a passage in Singh in Chief Justice Gleeson’s reasons at page 341 of the report, paragraph 31, page 3566. His Honour was there discussing aspects of the Convention Debates concerning the rejected proposal for a citizenship power. His Honour then notes something said by Sir Isaac Isaacs. In particular, I draw the Court’s attention to about four lines from the bottom, starting with the sentence:

Some regarded a definition of citizenship as unnecessary. Some saw the proposal –

and then particularly going from the third last line “He expressed concern”, I would ask your Honours to read the rest of that paragraph on the top of the next page about race being of “great concern to the framers”.

In his Honour’s statement:

The subject of race was of great concern to the framers, and their views on that matter quite different from those which now prevail.

So that evidences the values at the time, and we say that the international instruments which Australia has adopted or ratified indicate the change in values of the Australian community over that period of time. We wanted to take the Court to various passages in decisions in this Court which reflect those changes in the values. Perhaps we could start with a decision in the Federal Court of Milirrpum v Nabalco.

GAGELER J: Does the 1967 referendum have anything to do with your argument that you rely on?

MR KEIM: It does, your Honour, and I intend to take the Court to passages in the Tasmanian Dam Case in which some comment is made with regard to the impact of that. We say it does indicate a change in values with regard to - and change in recognition of Aboriginal people that is not found in the Constitution as it was originally written, and that is reflected in the judgment in the Tasmanian Dam Case. Have I answered your Honour’s question?

GAGELER J: You can point generally to changes in values, but is there anything specific upon which you rely that has occurred since 1901 that you wish us to take into account?

MR KEIM: There is, your Honour. I want to take your Honours to the joint reasons of Justices Deane and Gaudron in Mabo (No 2) in which their Honours say that the common law’s role in dispossession - in promoting the doctrine of terra nullius and recognising the role of terra nullius in fact contributed to the dispossession and oppression of Aboriginal peoples. That was a reason those two judges gave for the need to change the common law.

What we say with regard to this case is that this Court has to give a meaning to “aliens” in the Constitution which raises similar questions. I know that the Court cannot just do what it likes and I know that expounding the common law and construing the foundation document, the Constitution, are two different judicial tasks. But what we say is that to interpret the aliens clause in the Constitution to say that it is all right to remove Aboriginal Australians from their country, from the country which they have occupied for 80,000 years, on the mere basis that they happened to be born overseas is a similar proposition - it is another dispossession in itself and it raises similar challenges to what endorsing terra nullius raised with this Court - for this Court in 1992. I hope I have answered your Honour’s question because I cannot say very much more.

GAGELER J: You need to present your argument, I think. I will stop interrupting you.

MR KEIM: Thank you, your Honour. The passage in Milirrpum is at page 2655 at page 167 of the report and I just intend mainly to just guide the Court to the passages that we are referring to. It is the first new paragraph on page 167, Justice Blackburn starts, “I turn to the question of the land”, and it goes down for about 10 lines and end with the words “organic parts of one indissoluble whole”.

The next case to which we wanted to take the Court is Ex parte Meneling Station. That is in volume 9 at tab 46 at page 3330 to 3360. The passage at the last new paragraph on page 356 and I would ask your Honours – it starts with the words:

The religious relationship of particular Aboriginal groups with their “country”

KIEFEL CJ: Mr Keim, I think you can take it that the Court is familiar with what had been said in these cases about cultural and spiritual connection to land of Aboriginal people, not the least because we have recently had to consider it in the Griffith’s Case.

MR KEIM: Yes, your Honour. I will perhaps just give your Honours the citations. The passages in the Tasmanian Dam Case - the Tasmanian Dam Case is in volume 4 at tab 20. At page 1652 of the book, page 242 at about point 7 on the page, Justice Brennan refers to the approval of the amendment of the race power as the affirmation of – I will let your Honours read that in due course.

BELL J: I am sorry, what was that page number?

MR KEIM: It was page 242 and it refers specifically to the approval of the proposed law. Under the heading “Power to Make Special Laws” just after the reference to Quick and Garran, the passage starts “The approval of the proposed law” and it goes on for the next five or six lines.

GAGELER J: I am sorry, I have to ask what do you get out of that for present purposes?

MR KEIM: We say that a judge of this Court, Justice Brennan, is of the view that the passing of the referendum is evidence of what he calls “the will of the Australian people”. So we say that that is a strong indication of the changing values – the changing questions for this Court, the various matters that permit the Court to find the potential in the words of section 51(xix) to address the proposition that it is all right to deport Australian Aboriginals if they are born overseas.

So, we say that the changing values are the sorts of matters that this Court can take into account in construing the Constitution as an enduring document; that is, to construe 51(xix), from the needs of today. And the Court - without following every opinion poll, the Court will reflect those changing values in the way that relate to Australian Aboriginal people. In the very last line of page 245, Justice Brennan talks about:

The high purpose which the Australian people intended when the people of the Aboriginal race were brought within the scope of its beneficial exercise.

That is really an application by his Honour of the principles that he stated on the previous page. Then at page 272 of the report - 1682 of the book - Justice Deane quotes I draw the Court’s attention to the paragraph that commences – the last new paragraph on the page, and that is a different article of Professor Sawer, but it reflects what he said about the race of people being irrelevant in the paper that your Honour took me to previously in the book.

I direct your Honours’ attention to the last sentence on page 272, going over for the whole of the unfinished paragraph on the next page. We say that construing section 51(xix) in the way for which we urge is part of that process of avoiding diminution as a nation in that a different construction would not be an acceptable law in the terms that Justice Deane is dealing with there.

We would ask your Honours to go to the very bottom of page 274, 1684 in the book, still in the reasons of Justice Deane. We would ask your Honours to – and in terms of a recognition, an increasing recognition of – I understand what your Honour the Chief Justice said about being familiar with this but that recognition is reflected in the words of Justice Deane down to about the 10th line on page 275.

In our primary outline of submissions we drew attention to the fact that Mr Thoms is a native title holder but we also pointed out that the connection to Australia is not just meeting the test of connection as stated in the Native Title Act. Can we take your Honours to Gerhardy v Brown which is at volume 5, tab 25, page 2028. Gerhardy v Brown deals with the Convention to eliminate all forms of racism. So, this is really to provide the Court with some indication of the way in which the Court has regarded Australia’s adherence to international instruments of this kind in the past. We would draw your Honours’ attention to page 97 of the report, page 2028 of the book, the sentence which starts, about point 3 on the page:

By subscribing to these provisions, the nations which adhere to the Convention –

It goes on to discuss Article 5 of the Convention.

GAGELER J: Are you going to go to the Hindmarsh Island Bridge Case in this context?

MR KEIM: Yes, I am, your Honour. At page 124 of the report of Gerhardy v Brown, in the reasons of Justice Brennan, I would draw the Court’s attention to a paragraph at the end of the page:

The States Parties to the Convention acknowledge the object of securing human dignity for all and equality between human beings through the achievement of universal respect –

and so on. At page 149 of the report, 2080 in the book, Justice Deane makes a comment in the first new paragraph on the page:

It would seem that the Aboriginal people had inhabited this country for at least forty milleniums before the arrival of the first white settlers less than 200 years ago.

Then, about eight lines from the bottom, he makes the statement:

the common law of this land has still not reached the stage of retreat from injustice which the law of Illinois –

and then he refers to Chief Justice Marshall’s decision there. In our submission the second proposition that we are arguing involves avoiding what we say would be an advancing to injustice because to remove Aboriginal Australians from the country on the basis that they were born overseas, as I said earlier, would be another and perhaps worse form of dispossession.

That is what we wanted to take from that case. Can we just refer your Honours to the relevant passages in Mabo (No 2) [1992] HCA 23; (1992) 175 CLR 1. It is at volume 7, at tab 31. You can see that at the top of the page his Honour is talking about the “skeletal principle” in terms of the common law. Seven lines in towards the righthand side of the page he says:

It is not possible, a priori, to distinguish between cases . . . but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights -

We say again the same sort of challenge is involved in section 51(xix) and its construction. At page 64, still within the reasons of Justice Brennan – that is, page 2666 of the joint book. It is just the first new paragraph where his Honour refers to the rule of construction:

a power to extinguish native title must reveal a clear and plain intention to do so -

Again, we say there are analogies with interpreting. Can we just say this. This is something that we did not get to raise earlier with regard to the first part of our argument. What we say is that the law and the concept of aliens in 1901 bestowed rights on people. It bestowed rights on people who were born within the sovereign’s dominions to have British subject status, and it bestowed rights on people who were born overseas to British subjects’ fathers or grandfathers – rights on the fathers and grandfathers to have their children and grandchildren treated as British subjects. It obviously gave those children the right to be British subjects as well.

We say that the concept – if you look – there is a positive and negative side to the concept of “aliens”. The positive side is that it grants a right to be an Australian nonalien and, in terms of the first proposition, to say, well, we cannot fix what the law was then or we will just let the Parliament decide broadly what an alien is now, is actually to take away those rights. We say with regard to our first proposition that the Court would be slow to say that the law had changed since 1901 to allow any person born with a foreign allegiance, whether they are born in Australia, like Mr Joyce in Re Canavan, or whether they are born overseas like Senator Waters, not to have a right to be an Australian.

If they are aliens, then there is no obligation on the Parliament to give them a pathway and there is nothing preventing the Parliament from denaturalising them at any point in time. So that is why we say – with regard to our first argument, to say that anybody born overseas or anybody born with foreign allegiance is an alien is taking away rights that were there in 1901.

KIEFEL CJ: It is, of course, within the power of persons in the positions of the plaintiff, to ensure their connection with country by seeking naturalisation, as in the case of some of their parents. Their parents did so.

MR KEIM: Yes, your Honour.

KIEFEL CJ: It is just that they did not.

MR KEIM: Yes, your Honour. But what we say is that is only because we have a good and humane Parliament that those pathways are made open. What we say is that if we interpret the Constitution to say all of those people who have never thought – people like Mr Joyce who never ever thought that he was not an Australian, that he was never an alien, Parliament is not obliged to draft the Australian Citizenship Act in the way that it is. It could draft it in a different way according to the political atmosphere of the time.

So, we say it is taking away a huge right from people, even though they have become citizens, because they can always be naturalised by not interpreting it in the way that it was in 1901. But in terms of the second argument – no, I will not say anything further about what Justice Brennan has said at that page. Justice Toohey at page 184 of the report, page 2586 of the book – I draw the Court’s attention to what his Honour has said, at about point eight of the page:

Even more startling is the consequence that, immediately on annexation, all indigenous inhabitants became trespassers on the land on which they and their ancestors had lived.

We say that the construction of section 51(xix), for which our learned friends argue, has been as startling a consequence as that which is referred to there by Justice Toohey.

Lastly, with regard to the passages in Mabo we wanted to go to the reasons of Justices Deane and Gaudron, starting at page104 of the report, page 2506 of the reasons. We draw the Court’s attention to the paragraph which starts with “An early flash point with one clan of Aborigines”, and then their Honours, over the next five lines, talk about a “conflagration of oppression and conflict” and their Honours talk about leaving “a national legacy of unutterable shame”.

At page 105, at about point 3 on the page, the first new paragraph, their Honours talk about the history of the treatment of Aboriginal Australians, the first 10 lines of that paragraph. Then, at page 108, at page 2510, this is where I come to the passage which I think I mentioned to your Honour Justice Gageler in answer to a question before. We would ask your Honours to go to the paragraph at the bottom of the page where their Honours seems to be saying that the propositions of the common law contributed to the “dispossession and oppression of the Aborigines” and the whole of that paragraph, down to the first two lines on page 109. That is what we wanted to say about our second proposition, your Honour.

BELL J: Mr Keim, just before you leave Mabo (No 2), as I understand your argument, when you speak of Aboriginal Australians as being nonaliens, you are accepting a definition of the kind posed by Justice Brennan at page 70, namely, that:

Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

MR KEIM: Is that at page 70, your Honour?

BELL J: Yes. Can I just raise this with you and it may be that this is not a convenient time in your argument to deal with it, but I would like to address your attention to what seems to be a point of distinction between the plaintiff’s cases. One sees in relation to Mr Thoms, at special case book 30, that he identifies, and is accepted by other Gunggari people, as a member of the Gunggari tribe and that he is accepted to be a common law holder of native title in accordance with the two decisions of the Federal Court.

MR KEIM: Yes.

BELL J: By contrast, when one looks at the position of the plaintiff, Mr Love, it is said that he identifies as a descendant of the Kamilaroi tribe and it is noted that he is recognised as a descendant of that tribe by an identified person who is an elder of the tribe.

MR KEIM: Yes, your Honour.

BELL J: Is it your contention that Mr Love meets the tripartite test posed by Justice Brennan at page 70 of Mabo (No 2)?

MR KEIM: Yes, your Honour. The special case books were prepared at different times and they were prepared under obviously some time limitation, but the object was to place before the Court, and agree with the Commonwealth, sufficient facts to satisfy those texts.

EDELMAN J: Is it common ground then with the Commonwealth that on the facts in the special case the approach of Justice Brennan at page 70 is satisfied in relation to both plaintiffs?

MR KEIM: I do not think our learned friends will necessarily go that far, your Honour.

GORDON J: Is that because you do not know what the position is, I

MR KEIM: No, your Honour. We would have liked to have put it in terms which made it easier for the Court but meeting the tripartite test – the authority is reflected by Justice Bromberg in Eatock v Bolt as well. It seems to have been the accepted test. We would say this in response to your Honour Justice Bell’s question and I think I am right in saying that the authorities reflect this, it is really – the test as we understand it being stated for aboriginality in most of the authorities is that it is a sufficient but not necessarily an essential requirement that all three elements of the test be met and we have referred in our primary outline of submissions to Justice.....decision in a case whose name I cannot remember where his Honour talks about you do not have to be full blood.

BELL J: But his Honour was dealing with the fact that if one goes back again to the time of Federation and “Aboriginal native”, to use the expression that one sees in the Convention Debates and elsewhere at that time, was a person who was a full blood Aboriginal as distinct from someone described as a halfcaste.

MR KEIM: Yes, your Honour. I appreciate there is a different historical context for that. Your Honour, we set out some of the Acts of Parliament and some of the decisions in our primary outline of submissions starting at paragraph 29 and we have, I think, actually set out the test that your Honour referred to at page 70 in Justice Brennan’s reasons. We say they are Aboriginal and we say that the meet the Brennan test and we acknowledge on the one hand that the fact with regard to recognition is a minimal statement of meeting that test in the case of Mr Love but we say he meets it nonetheless. He is obviously not a native title holder but – I am in your Honour’s the Chief Justice’s hands. I feel that I probably have – we originally talked about three hours and then the discussion was about finishing in a day. My learned friends expect to take an hour and a half so

KIEFEL CJ: Well, that gives you a little time.

MR KEIM: Thank you, your Honour. Your Honour Justice Gageler asked me about the decision in Kartinyeri (Hindmarsh Bridge Case) and it is right in front of me, your Honour. The paragraph on which our learned friends rely is paragraph 40, which is at page

KIEFEL CJ: It is in Justice Gaudron’s judgment, is it?

MR KEIM: Yes, at the bottom of page 365, page 2305 in the book. What we say - it is really the passage probably at the top of page 366, about six lines in, that our learned friends rely upon where her Honour Justice Gaudron says:

To put the matter in terms which reflect the jurisprudence that has developed with respect to antidiscrimination law, race is simply irrelevant to the existence or exercise of rights associated with citizenship.

The obvious thing to say is that her Honour is dealing there with the race power, and the reference to citizenship is – what we understand her Honour to be doing there was really to say – I mean, Justice Brennan had talked in the Tasmanian Dam Case about, in the light of the referendum, the race power can only be used for positive means.

The Court in Kartinyeri really rejected that proposition and said it could be used for positive and negative reasons. What her Honour Justice Gaudron was really saying is that there are limits on the negative ways in which you can use the race power because if you wanted to say that all people of an Italian heritage shall henceforth be noncitizens and shall be liable to removal from the country then that would not be a proper exercise of the race power because race is irrelevant to citizenship. That is what we understood her Honour to be saying there.

KIEFEL CJ: Do you accept that race is irrelevant to citizenship in connection with the naturalisation power?

MR KEIM: What we say is this, your Honour, that the claims of Aboriginal Australians are not about race – it is about them being

KIEFEL CJ: Yes, I understand what you are saying.

MR KEIM: the founders of a continuous community, which continued on from 26 January 1788. So they are not only connected to the land, they are foundation members of the Australian community. It is for that reason that we say that their incidental birth overseas cannot be something that converts them from nonaliens into aliens.

BELL J: Insofar as reference is presently made to her Honour’s analysis in Kartinyeri, it does have to be viewed in the context of her analysis in Ex parte Te (2002) 212 CLR, where, I think consistently with earlier statements that she had made in Patterson, the emphasis is that citizenship is a wholly statutory concept, distinct from the constitutional notion of alienage and her Honour makes clear, as I think other Justices have, the recognition of the limits on the power of the Parliament in relation to declaring persons to be aliens beyond a certain limit.

MR KEIM: Yes, your Honour. We adopt your Honour’s view of the law with regard to that but we say that even though in a number of cases she was in the minority – we may deal with this in our reply if we need to - we say that, for example, if you go back to Nolan, which is the source which everybody sources - that is this statement that alienship is synonymous with noncitizenship - the six judge majority in Nolan does not actually say that, but the context of that is the discussion of the growing divisibility of the Crown.

What their Honours are really saying there is that we used to talk about alienage in terms of whether you were a British subject or not. Now we have to change our language and talk about it in terms of whether you are a citizen or not. But almost every time that that passage is cited, somewhere else in the judgments of that Justice of this Court is an acknowledgement of what Sir Harry Gibbs said in Pochi v Macphee, which is that – which is what your Honour just outlined through the words of Justice Gaudron.

That reference to Nolan was one of the things I might have wanted to go back to, your Honours. Can I just check very briefly if there is anything of absolute importance that I have skipped over. One thing that we have not mentioned at all, your Honour, with regard to our first proposition is the proposition which our learned friends put forward as the defining characteristic of alienage is dependent upon foreign law and that produces a whole lot of inconvenient and arbitrary consequences because if we look at the law with regard to Mr Canavan as it now is as opposed to what it was in Re Canavan, now you can be the child of Australian citizens who have an Italian heritage and you have Italian citizenship. So you can be born of two Australian citizens, you can be born in Australia and you fail the Singh test.

So, even though the Act says immediately you are a citizen that is a statutory naturalisation it is a statutory naturalisation. So you are liable, having been born an alien you are liable to be denaturalised at any time and Mr Joyce is an example of that. His father was a New Zealand citizen. He was born in an Australian hospital. He was, according to the Citizenship Act at the time of his birth, an Australian citizen, but according to our learned friend’s argument, he was born an alien. So he was naturalised at the moment of his birth by the Act, and therefore, as an Australian person, as Mr Joyce is, liable to be denaturalised and removed from the country if it were convenient to the Parliament of the day.

KIEFEL CJ: You say “denaturalised”. It is perhaps a rather inaccurate term, if by that you mean taking away someone’s citizenship status.

MR KEIM: Yes, your Honour.

KIEFEL CJ: In the case of the plaintiffs, neither has citizenship status. They are noncitizens. That is what the Migration Act operates on. How would you summarise your argument about why the fact that they are noncitizens is not – and they are citizens of a foreign country - is not sufficient for alienage. Could you summarise what your argument is in reliance upon their aboriginality, taking as its starting point the accepted fact that they are noncitizens of Australia?

MR KEIM: Aboriginal Australians

KIEFEL CJ: You cannot say that they cannot be noncitizens. You do not argue that.

MR KEIM: No, I do not, your Honour.

KIEFEL CJ: So they are noncitizens.

MR KEIM: And nonaliens.

KIEFEL CJ: And they are citizens of a foreign country.

MR KEIM: They are citizens of a foreign country. But we say as Aboriginal Australians their connection with the Australian community is such that

KIEFEL CJ: They cannot be aliens.

MR KEIM: no modern understanding of the concept of “alien”, even taking into account its legal meaning in 1901, would treat them as aliens.

KIEFEL CJ: But essentially that means that your argument comes down to the fact that a noncitizen cannot be equated with an alien. That is it. In pure legal terms, that is your argument.

MR KEIM: That is the argument, yes, your Honour. We say that “citizenship” and “noncitizenship” are statutory terms.. To be valid in a particular place, the person has to be an alien.

KIEFEL CJ: So you are saying that the Migration Act should be read down, where it refers to a noncitizen, to have a form of exclusion around the word “noncitizen”.

MR KEIM: Yes, your Honour, absolutely.

KIEFEL CJ: So you do not even necessarily have to refer to alienage. On one view you read “noncitizen” down. I do not mean to confuse your argument but what you are saying is there has to be some understanding that 198 cannot apply because “noncitizen”, if it means alien, cannot apply to Aboriginal persons.

MR KEIM: Absolutely, your Honour.

EDELMAN J: Historically, I suppose, you have the support of the fact that a denizen was always a noncitizen, nonalien.

MR KEIM: Yes.

EDELMAN J: So there were examples of noncitizens, nonaliens, but you just say that one very small, additional category of noncitizen, nonalien is Aboriginal people.

MR KEIM: Yes. If I could come back to your Honour the Chief Justice’s question, we say that section 189

KIEFEL CJ: Did I say 198?

MR KEIM: I cannot remember, your Honour.

KIEFEL CJ: I should know by now, should I not?

MR KEIM: I do not know what your Honour says and I do not know what the right section is. I say that it could be based to some extent on the immigration power but it is not in the case of our clients. So it is based entirely on the aliens power. For it to be effective with regard to any noncitizen, that noncitizen has to be an alien. In terms of our aboriginality Act, we say that as Aboriginal Australians we do not come within the ordinary or legal meaning of “alien”. If we can in some way become aliens it is not through the happenstance of being born overseas.

KIEFEL CJ: But if you say that Aboriginal Australians cannot be aliens because something will be taken away from them, can you say that in face of the constitutional power which allows their status as aliens – assuming for the moment that that is what it is – that allows for that status to be altered by naturalisation? Are we in the area of dispossession or are we in the area of something being available which has not been availed of? I am here referring to your Mabo argument about dispossession.

MR KEIM: Yes, your Honour.

GORDON J: In one way of looking at your argument, I think - I may be wrong about this - but put in its simplest terms, I do not mean to minimise it so do not take me incorrectly, is that you have indigenous preFederation, there from the beginning Aboriginals. That connection to land existed before Federation. Nothing that happened at Federation, as I understand your argument, took that away. It continued.

MR KEIM: Yes, your Honour.

GORDON J: Becoming British subjects did not detract or remove from the idea that you can have both existing, as I understand your argument.

MR KEIM: Yes, your Honour.

GORDON J: And that nothing in the Constitution purports to sever it which is the passages you took us to in Mabo. We are not talking about native title, we are talking about connection to land which, consistent with the definition, includes descent.

MR KEIM: Yes, your Honour.

GORDON J: In that sense, as I said and I put to you this morning, the Citizenship Act did not alter that. Is that the way you put it?

MR KEIM: The Citizenship Act

GORDON J: No, no, the first proposition, that series of propositions, in effect, it is like a parallel system. So, to answer to the Chief Justice, it is really, is it not, as I understand your argument, a nonrecognition of something that has always existed and not taken away. Am I right or am I wrong? I do not know what your argument is.

MR KEIM: Your Honour is right and what we would underline is that it is not taken away from being born overseas. Your connection with Australia and the Australian community is not taken away as an Aboriginal Australian by the happenstance of being born overseas.

GORDON J: So what the focus then is on is the concept that existed and continues giving rise to being able to identify, to use the words adopted - “mutual recognition” of Justice Brennan - as an Aboriginal Australian.

MR KEIM: Yes.

GORDON J: Part of which connection arises, part of which, by descent.

MR KEIM: Yes, whether you are an Aboriginal Australian for the purpose of the Constitution is a question of fact. What the courts have found convenient and what society has found convenient is the threepart test articulated by Justice Brennan.

KIEFEL CJ: Does that mean that would need to be resolved at a factual level in each case in which a noncitizen who was an Aboriginal person, who claimed aboriginality and within the tripartite test, there would have to be a trial about this in every case where they were to be deported if it was contested.

MR KEIM: Yes, I mean, it is a factual question that has to be addressed.

KIEFEL CJ: Quite.

MR KEIM: In Milirrpum, Justice Blackburn – which has been developed by millions of cases since then talked about developing the law of evidence to deal with the – the law is always going to face facts questions. Sorry, your Honour.

KIEFEL CJ: Just to look into this notion of the ramifications, does it also mean that there might be persons of Aboriginal descent who would be recognised but who live overseas, are born overseas, they would not be Aboriginal people because they would not identify as such. One of the parts of the tripartite test would be missing, so they are not affected. That is, Aboriginal people here might recognise them as part of their people but because they had been brought up overseas and had been distant from their aboriginality they did not identify with it as such. They would not fulfil the tripartite test, therefore, they would not come within the purview of what you are talking about.

MR KEIM: If I can answer your Honour’s question in this way.

KIEFEL CJ: I am just trying to work out the ramifications of how this works with respect to people born overseas who are of Aboriginal descent and might be recognised by persons in Australia as such.

MR KEIM: There is a point at which a person with Aboriginal descent might cease to be Aboriginal.

KIEFEL CJ: You mean seeks to identify as such.

MR KEIM: Well, ceased to be Aboriginal because they no longer identify or because they are no longer recognised or because they have lived overseas for so many generations that they are just Swedish now. But that is not a problem that this Court has to wrestle with because we say

KIEFEL CJ: I have the sense in your argument that aboriginality was something which inheres from time immemorial and cannot be given up. It is a question of whether you call upon it for the purpose of nonalienage.

MR KEIM: What we say is that courts have wrestled with this idea and they have come up with the threepart test as a sufficient basis but not necessarily

KIEFEL CJ: True – not a perfect basis.

MR KEIM: Essential basis. Those questions may come up at different times but these are both people who came back to Australia as children and who have lived here ever since and have been in contact with their aboriginality.

KIEFEL CJ: Yes, and were in a different factual area.

MR KEIM: Can I go back to something that your Honour the Chief Justice raised with me a little while ago and that is this not taking up the opportunity. There are two things with regard to that. One is that Mr Love – his parents were prevented from registering him because they were not married at the time of his birth, even though they were later married.

KIEFEL CJ: But were there any other avenues subsequently for him to apply? I do not think that is in the special case.

MR KEIM: His sister has since applied and been granted Australian citizenship. But what we say is two things about the pathways that the Parliament makes available. The first is that they do not have to make them available and that is why, whether you are an alien or not

KIEFEL CJ: They might be taken away at some point; that is your point?

MR KEIM: Yes, they might be taken away at some stage. If you are not an alien becoming a citizen is not going to make sense but if you are not an alien, becoming a citizen does not make you not an alien because you are already not an alien.

KIEFEL CJ: You are right; it does not immediately make sense.

MR KEIM: Yes. But if you are an alien the way in which our statutory laws are set up makes you cease to be an alien and makes you a citizen. So it is not the case that if you are an ungrateful alien

KIEFEL CJ: What you are really saying is – I think your argument is that you are talking about a new category. Essentially, that is what you are saying.

MR KEIM: We talking about people who are not aliens and

KIEFEL CJ: Who cannot be aliens.

MR KEIM: Yes, who cannot be aliens. They could, and if they went and did what the other Mr Joyce did and decided to broadcast in English for the Germans, at some stage they could abandon their connection with Australia. But they cannot have alienage imposed upon them and particularly they cannot have it imposed upon them because they have to be born overseas.

KEANE J: But they can choose to give it up.

MR KEIM: Their connection with Australia? Yes, anybody can.

KEANE J: Yes, and if they do – if they do choose to give it up, what is the case with their children who decide to take it up?

MR KEIM: I do not know the answer to that question, your Honour, but it is feasible

KEANE J: It is a problem in terms of looking at this from a systemic point of view, is it not, looking at individuals, looking at the situation of individuals and the effect on them of their choices and of the choices made by their parents rather than looking at individuals in terms of their citizenship or their nonalienage by reference to some racial characteristics.

MR KEIM: Yes, your Honour, but can I answer your Honour’s question in this way? The answer to your Honour’s question could be different depending on the fact situation. So, if an Australian Aboriginal - and the multigenerational thing helps a little - if an Australian Aboriginal decided to abandon Australia and become Swedish and that persisted for a number of generations and there seems to be no

KEANE J: Not just a number of generations – what about the next generation?

MR KEIM: Can I come back to that, your Honour? Then it – in our submission, it would make sense that at some stage the descendants lose the right to reassert their aboriginality and reassert their Australianness. But one might have circumstances where a child is born overseas and abandoned by their parents who go off to become Swedish and they immediately realise that they have a connection with Australia. They are Australians by descent, they are Aboriginal and they want to identify, and they come back to Australia and become Aboriginals. The actions of the parent in that situation, in our submission, would not impact upon the rights of the child. We have given the multigenerational example because it is an extreme the other way.

KEANE J: But just assuming that they are responsible parents making responsible decisions for their children and not irresponsible people making silly decisions.

MR KEIM: Yes, your Honour. It seems that the answer to the question is that if all connection with Australia is abandoned before the child is born it would be difficult for the child to assert that connection with Australia.

EDELMAN J: In a way, these issues are secondorder issues, are they not, in that if, for example, section 127 had not been repealed, you might still encounter exactly the same questions in relation to section 127, but there would be no question that an Aboriginal person still fell within that section?

MR KEIM: Yes, your Honour, yes. There will always be problems – I mean the evidentiary problem, the threepart test in our reply submissions - it is a way in which the law has dealt with a fact problem. It does not mean that a child when it is born to Aboriginal parents in Australia is not Aboriginal from the time that they are breastfeeding. It just means that when they are 21 it is a lot easier to decide through identification and acceptance – mutual acceptance – than when they are children. It does not mean to say they were not Aboriginal up until a time that they thought, “Yes, I am Aboriginal, all my friends are Aboriginal, my family is Aboriginal”. So, it is part of that – I adopt your Honour’s use of the words “secondorder issues”.

Can we just say two last things, your Honour? The first is – in terms of, I think, what your Honour Justice Gordon raised with me – the “no fixed meaning” notion – I think we have dealt with in our written submissions. But what we say is that if a court was asked to apply the law in 1903, they would have applied the law and fixed the law and given it a fixed meaning in exactly the terms that Quick and Garran state the law to be and the Royal Commission and Justice Gummow and Justice McHugh.

NETTLE J: That is to say, race is irrelevant – as in Quick and Garran, race is irrelevant as at Federation to the recognition of Aborigines as British subjects.

MR KEIM: I think I have probably answered this in other questions, your Honour. We say that the Court would not have realised that race was relevant now, but because of the changing in the national and international and social and legal context

NETTLE J: No, I understand that. The proposition was though that if a court had decided the matter as at the date of Federation they would have decided it as set out in Quick and Garran.

MR KEIM: Absolutely, your Honour.

NETTLE J: That is to say, that court at that time would have regarded race as irrelevant to the question.

MR KEIM: Yes, your Honour. That is why we adopted the task in our oral submissions and in our reply.

NETTLE J: Changing attitudes which you say the Court ought follow.

MR KEIM: Yes, absolutely, your Honour. Can I just say this in answer to some of your Honour the Chief Justice’s questions. In paragraph 12 of our reply submissions, we have submitted that the Australian Citizenship Act as it stood at respective times for the constituted an imperfect attempt on the part of Parliament to reflect the meaning of “aliens”. That is why there is also a possible disjunct between “noncitizen” and “alien”. But we say this also, that all the way through the Citizenship Act speaks as if citizenship by descent, or nonalienage by descent, is a recognised part of the law because it provides for people who were born overseas to register at the consulate, et cetera, especially at the time of these two children’s births. I think I have probably gone beyond my promised time. Is there anything else that your Honours would like to hear from me?

KIEFEL CJ: No, if you have finished your submissions. If you wanted to review your position and make sure that you have covered it, we can leave it until 2.15.

MR KEIM: I would be a fool not to welcome that opportunity, your Honour.

KIEFEL CJ: All right, then. The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Keim.

MR KEIM: Your Honour, I have decided to take up your kind invitation and hope that I do not make your Honour regret that, but there are just two points that we wanted to touch upon.

Firstly, with regard to our proposition that the criterion of foreign allegiance as the central characteristic, that it was not shared by the other two majority judges, we just wanted to indicate that the passages we rely upon there, in respect of Chief Justice Gleeson is paragraph 30, and in respect of Justice Kirby at paragraph 272. We say that those paragraphs respectively indicate that the ratio of the decision for those judges was based on other facts pertaining to Ms Singh and not on the foreign allegiance criterion. That was the first point, your Honour.

I wanted to take the Court briefly to the case of Nolan [1988] HCA 45; (1988) 165 CLR 178 which I promised to do earlier. It is in volume 8 at tab 35, and the passage is at page 183 of the report, which is page 2852 of the bundle. In terms of the pluralities’ reliance on Nolan, they refer to part of what the majority in Nolan say at paragraph 205. I will not take the Court back to that, but that is where the link is made between the two judgments. Can I ask the Court to look at the second new paragraph and the passage starting with:

As a matter of etymology, “alien”, from the Latin alienus –

and so on. Pretty much that definition is picked up in paragraph 205, but what is left out is the sentence that starts after footnote (25):

That definition should be expanded to include a person who has ceased to be a citizen by an act or process of denaturalization

and this is the crucial bit:

and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage.

What we say is that that indicates that the sixjudge majority in Nolan was recognising nonalienage by descent as being part of section 51(xix), and that was not taken up - that was not referred to or mentioned in paragraph 205 by the plurality in Singh. The submission that we would make is that, to the extent that the plurality in Singh was putting forward the foreign allegiance as a central characteristic of alienage, they were not intending to refer to anybody whose claim to nonalienage was through citizenship by descent. That is an important reason, we say, why that particular part of the reasoning in Singh should be restricted to the facts in Singh. The two other things I wanted to mention – and these are the final two things I wanted to say while we are at this part of Nolan - their Honours go on to say:

Otherwise, it constitutes an acceptable general definition of the word “alien” when that word is used with respect to an independent country with its own distinct citizenship.

That is what we think the judges in later cases such as Lim were adopting as the foundational passage for the proposition that “noncitizenship” and “alienage” were interchangeable words.

But we say two things about that. We say, firstly, that in that whole passage “citizen” is being used at a generic level, not in terms of the distinction between a statutory definition and what is permitted to be treated as being a citizen or noncitizen or an alien in a consideration as to whether the Parliament is treating people who are not aliens as if they were aliens; exercising the power with regard to people who are not aliens. So it is being used at a generic level. It is not a basis for saying that whatever the Citizenship Act says or whatever the Migration Act says, anybody who is not a citizen is necessarily an alien. It is a generic statement.

The second thing I want to say about that is that that becomes quite clear when you go through the discussion on pages 184, 185 and 186 because all of that discussion is really about the shift from being a British subject as being an indication of nationality, to being some kind of Australianborn description of nationality, in this case citizenship. The third thing we want to draw from Nolan is just to point out that on page 185 of the report, about 10 lines down towards the righthand side, there is a sentence that starts:

The leading judgment was that of Gibbs C.J.

Then this sixjudge majority in Nolan apply the Pochi test and indicate that the Pochi test is good law with regard to who is or who is not an alien. I will not go back through the discussion with regard to what does it mean that it was in negative terms. I have discussed that. I have referred to Quick and Garran. But we say that both on the part of Chief Justice Gibbs and on the part of the majority in Nolan, that test was indicated as a way of applying the law as to what an alien was in terms of their understanding. They are the only matters that we wanted to raise, thank you, your Honour.

KIEFEL J: Yes, thank you, Mr Keim. Yes, Mr Solicitor.

MR DONAGHUE: Thank you, your Honour. Your Honours, the scope of the Commonwealth Parliament’s power to legislate with respect to aliens under section 51(xix) of the Constitution has been examined by this Court on very many occasions starting particularly in the 1980s with Pochi and Nolan, moving on to Lim in the early 90s and then particularly relevantly to this case, a series cases decided between 2002 and 2005. In our submission, the proceeding now before the Court asserts the existence of limits on that power of a kind that are incompatible with principles established as a matter of ratio by that line of authorities and your Honours have no application to reopen or overrule any of them.

EDELMAN J: Did any of those authorities directly or indirectly say anything about Aboriginal people?

MR DONAGHUE: No, your Honour, but what they did do is that they identified criteria that were sufficient to satisfy a person falling within the scope of the aliens power without reference to any such criteria. So your Honours would have to find that statements of principle made as sufficient to engage the power are not actually sufficient to engage the power.

EDELMAN J: No, just that there may be exception, albeit particularly limited, to statements of general principle that was never considered in any of those cases.

MR DONAGHUE: But, your Honour, if a court says you are an alien if you are (a), (b) or (c), and you are (a), (b) or (c), to introduce a (d) that means you are not an alien is, in my submission, inconsistent with the proposition.

EDELMAN J: Not as a matter of ratio if the point was not argued.

MR DONAGHUE: Well, your Honour, except that none of the cases were grappling with this, but they were grappling directly - and I will take your Honours to some of the authorities - with, in particular, the concept of whether it is possible for there to be a category of noncitizen, nonalien, that divided the Court in Patterson where four judges held there was able to be such a category, and then Patterson was overruled in Shaw, where four judges held there was not.

BELL J: Is the consequence of that that, notwithstanding statements to the contrary in a number of the authorities, the specification of the criteria for citizenship states completely those persons who do not answer the description of being an alien; that is, that the two have come to be antonyms.

MR DONAGHUE: Alien and noncitizen?

BELL J: Yes.

MR DONAGHUE: Well, certainly the Court has said one is the obverse of the other in a number of passages.

BELL J: Yes. And for lots of purposes, it may well be that that is the case, but the matter that I am raising with you is the consistent recognition that the constitutional concept of “alien” is not susceptible of being defined by the Commonwealth Parliament in terms of its outer boundaries.

MR DONAGHUE: Your Honour, as I will come to, I am not in any way challenging that proposition, so I accept that “citizen” and “alien” are only the obverse of one another to the extent that the law specifying that status is not invalid, and it might be invalid if it contravenes the Pochi limit. So I cannot just say it is an agreed fact that neither plaintiff is a citizen and therefore I win and sit down. I accept that I cannot stop there.

But all I need to do additionally, in my submission, is to say can it be said that the law pursuant to which the two plaintiffs are aliens fails that kind of criteria; cannot possibly be said to be aliens. In that respect, in our submission, a number of authorities, including most obviously Singh, as followed by the Court in Koroitamana, recognises that at least where Parliament’s definition reflects one of the two competing or prevailing theories of alienage that operated at the time of Federation, jus soli or jus sanguinis, at least when you are within that territory you are not outside the boundaries of the power.

Now, the Court has always to date avoided trying to define in the abstract the outer boundaries of the power and, in my submission, this is another case where your Honours do not need to go to the outer boundaries of the power because here, we submit, you have noncitizens who were born outside of Australia and who owe allegiance to a foreign power.

Those two criteria of being born outside of Australia and owing allegiance to a foreign power are two of the most obvious historical criteria by which it has been possible to identify an alien.

BELL J: But unlike many aliens who answer those two descriptors, the case that is sought to be made is that these are individuals who biologically trace their ancestry back to the traditional occupiers of this land before European settlement, and they draw attention to the circumstance that in the course of the last century, courts have come to recognise the particular relationship of indigenous Australians both culturally and spiritually to the physical land of Australia.

It is against that background, as I understand the plaintiffs’ second argument, that it is contended that we are in a sui generis category of person who, provided he or she answers that description in the sense of not only having the biological indicia but the recognition and identification, is necessarily a person who falls outside the concept. It seems to me that it is difficult to make a case that Singh addressed that squareon or that any of

MR DONAGHUE: Your Honour, in my submission, the problem with the argument, as your Honour has just summarised it - and that is how we understand the proposition - is that it treats the category of Aboriginal persons as if it is a monolithic, homogenous category within which no variation is possible. It would be the case, as Professor Sawer’s opinion identified and Justice Brennan said the same thing in Mabo, that an Aboriginal person who was born within Australia and whose ancestors were born within Australia would not be an alien. But that is not because of some special rule that applies to people in that group. That is because the ordinary rule that applies to everybody would recognise the status of that person as an alien.

EDELMAN J: That is because they were British then.

MR DONAGHUE: It is because the applicable body of law which identified alienage status said, not just for indigenous persons but for all persons, until quite recently if you are born within the country you are a British subject.

GORDON J: The question here and the question raised by the plaintiffs is whether or not there is another category; that is, as I understood Mr Keim to put it, whether you start with a parallel system, you start with a group of people called Aboriginal Australians who existed before Federation, before sovereignty, which continued, and where they get their attachment to this country by another means.

MR DONAGHUE: Your Honour, I understand that has been put, but going back to 1829 there has not been a parallel system recognised. It has been said instead Aboriginal persons are British subjects and they have the same rights as any other British subjects.

GORDON J: So let us test that. That means, does it, that upon Federation something happened, did it?

MR DONAGHUE: No, your Honour.

GORDON J: What took it away?

MR DONAGHUE: Nothing took it away. This is why I say one cannot deal with it as a monolithic group.

GORDON J: It is not monolithic; it is asking whether or not there are connections to land, connections to this country, that existed in 1901 which recognised the attachment to land and to country which has, to pick up the words of Justice Brennan, the tripartite test – descent, recognition, mutual backwards and forwards.

MR DONAGHUE: Your Honour, the reason I say monolithic is the reason that these plaintiffs are, in our submission, aliens, is that their families moved overseas and they were born overseas and when they were born overseas they became citizens of another country. Those are not characteristics that are shared with all of the indigenous people of Australia and it is those characteristics that make them aliens. So, it is not that there has been some change at Federation that shifted the position of

EDELMAN J: What I think Justice Gordon is trying to ask, and which I am also struggling with, is why it is that you say that Aboriginal people in 1901 were not aliens, and I think your answer to that is essentially because by being born in Australia they were British, which made them nonaliens.

MR DONAGHUE: In the same way as for everybody else, yes.

EDELMAN J: There were 150 million Indians who were also British, but I think would seem to be certainly common ground at the Convention that they were aliens and that they would have fallen within section 51(xix).

MR DONAGHUE: At the time of Federation, your Honour?

EDELMAN J: Yes.

MR DONAGHUE: In my respectful submission, the position is more complicated than that because it was really only on the emergence of – there is a question as to whether they could have been – I will withdraw that. It was not until the end of the 1940’s that a concept of Australian citizenship arose. Prior to that time, the status of all persons living in Australia who were not aliens was British subject, and that went for indigenous and nonindigenous people, in my submission, in the same way.

EDELMAN J: So any of the 150 million Indians

MR DONAGHUE: In India, your Honour?

EDELMAN J: - - - that happened to be living in Australia immediately lost the status of being an alien?

MR DONAGHUE: Is your Honour talking about Indians living in Australia?

EDELMAN J: If any Indians or Chinese who happened to be British subjects that moved to Australia would have lost that status of being an alien by virtue of arrival in Australia.

MR DONAGHUE: When this concept of Australian citizenship was introduced, it dealt in a transitional way with people in various categories but most people who had been born – possibly even all people who had been born in Australia as British subjects became Australian citizens at that time. There was a capacity for different dominions within the Empire to control movement from British subjects who were born in India and lived in India, that there was capacity to regulate that, but birth within Australia was a sufficient and the only criteria that operated – sorry, I withdraw the “only” - it was a sufficient criteria under the common law and that common law criteria was not altered until quite recently.

EDELMAN J: But the relevant common law criteria in 1901 that applied to Aboriginal people was not the fact they were living in Australia; it is the fact that they were original inhabitants of a country that was settled by Great Britain. That has been the case since Lord Mansfield.

MR DONAGHUE: Your Honour, in my submission, the relevant common law criteria was Calvin’s Case. A person born within the territory of the country, needing no other connection, as a matter of common law became a British subject.

EDELMAN J: So you are saying Calvin’s Case was concerned with Aboriginal inhabitants?

MR DONAGHUE: It was concerned with anyone who was born within the territory. That was part of the point. You could come with no other connection as a tourist to Britain, have a child and that child would be – a French couple coming to Britain who had a child within the territory, that child would be a British subject, under Calvin’s Case, unless and until the law was modified. In my submission, what one

EDELMAN J: Just so I understand, when Lord Mansfield in Campbell v Hall says that the categories of people who are entitled to the King’s protection, entitled to citizenship, include those who were conquered inhabitants or those who were living in territories that were acquired by session, occupation or otherwise, what work does that category have to do if anyone who had been born in the territory fell into a different category?

MR DONAGHUE: I may have been at crosspurposes with your Honour. My answers related to persons who were born after Britain acquired sovereignty over Australia. I was talking about people, at least in Professor Sawer’s terms, born after 1829, and that category that your Honour just put to me is a category concerned with people born at an earlier point in time, in my submission.

The essence of our submission is that Singh establishes that the word “alien” in section 51(xix) was not a word that had a fixed or certain meaning at the time of Federation, that there was an interplay of different concepts that bore on the meaning of that word, including the British common law, British statutory reforms of the British common law but also the citizenship laws that operated in different parts of Europe, and that\ in light of that competing interplay of theories giving different significance to place of birth, descent, allegiance to a foreign power, it was an appropriate topic for parliamentary regulation of and selection between what this Court has called the crosscurrents between the different approaches in order to determine status as an alien.

Now, our friends are fixed particularly on descent, the significance of descent, particularly in their first argument, and I confess I am not totally clear on what the relationship between the first argument and the second argument has ended up being. But insofar as the first argument is still advanced, descent was relevant as a matter of British law at the time of Federation only because British statute law made it relevant.

So the common law said birth within the territory and there was then extension by British statutes so that certain linkages by descent were sufficient, through father and grandfather. What seems to be being put is that the content of British law at the time of Federation fixes forever the scope of the aliens power, so that if you were someone who was entitled to become a British subject by descent under that then applicable statute law, then Parliament cannot deprive you of that status.

That is a more ambitious argument than the argument that was unsuccessfully advanced in Singh, which was that 400 years of common law meant that if you were born within Australia then you could not be treated differently, and this Court said no. If the common law with that long history is not constitutionally entrenched such that Parliament cannot make choices, in my submission, it is impossible to conceive that the British statute law at the time has that immutable characteristic, and yet that really seems to be what the first part of the case entails.

We submit it is inconsistent with the legal reasoning that led to the result in Singh, which was that it is for Parliament to determine those crosscurrents. So where that takes us, in our submission, is that it is not meaningful, in our submission, to ask the question is a person an alien within the meaning of section 51(xix) by reason of some direct application of that constitutional word? Instead, one needs to ask the question in two parts, and I am going to develop this by reference to the authorities. But the first part is to ask the question is it open to Parliament to treat a person as an alien? Your Honours will see many references to that phrase “treat a person as an alien” in the cases; you see it in Pochi, in Nolan and in Shaw. If it is open to Parliament to treat the person as an alien, the second part then is to say, “Well, what has Parliament done? What status has Parliament accorded to people within that wider group?”, because it is for Parliament to choose within the range of people who could be aliens, which people are to be aliens and which people are not.

And to illustrate, Singh makes the point. The young girl who was the plaintiff in Singh, having been born within Australia, could have been treated by the Parliament as a citizen. There was no impediment to her being treated in that way, but equally she could be treated, as the Court held, as an alien, and her status does not depend on answering some question by the direct application of 51(xix). You need to say, “Well what did Parliament choose to do in the exercise of its power to determine the status of someone in her situation?”

BELL J: Unless I have misunderstood the plaintiff’s second argument, it is a contention that it is outside the legislative power of the Commonwealth to treat a person who answers the tripartite Brennan Mabo (No 2) test of aboriginality, as an Anglian to Australia.

MR DONAGHUE: Your Honour, I understand that, so that is an argument about what I have just identified as the first part. It is not open to Parliament to treat. But the reason I make the point that I just made is that some of the asserted problems with the reasoning in Singh do not arise once the distinction is appreciated because, for example, in relation to foreign citizens – people who owe allegiance to another country – Singh was not saying someone who has that criteria is necessarily, ipso facto, an alien and there is nothing that Parliament can do about it.

GORDON J: They were not making an exact equation.

MR DONAGHUE: No. They were saying that is enough

GORDON J: It is not determinative.

MR DONAGHUE: - - - to allow you to be treated as an alien.

GORDON J: Well, are they?

MR DONAGHUE: In my submission, that is what their Honours were doing in that passage. They were saying one of the things that is a feature that means that you are not a person who, to adopt Chief Justice Gibbs’ language, cannot possibly be understood to be an alien - one of the things that means you can possibly be understood to be alien is that you owe allegiance to another country. Parliament then chooses, “Do we accept dual citizens or don’t we, or in what circumstances do we accept dual citizens and don’t we?”, and Parliament has made different choices about that over the years since Federation.

But it is not required to treat the dual citizen as an alien, and obviously it does not do so under the current legislative framework. But I accept that one needs to meet the case that someone who meets the tripartite criteria, as the plaintiff has advanced, that he is not a person who could not possibly answer the description and, in my submission, one can do that by reference to the reasoning that the Court has adopted. Your Honours will have seen in paragraph 5 of our oral outline I have identified three cases that we particularly rely on. I take the Court to each one of those cases. Justices McHugh and Kirby relevantly dissented in this line of authority, and so our friend’s reliance upon the reasoning of those judges is reliance on the reasoning that the Court has rejected.

Can I start with Shaw [2003] HCA 72; (2003) 218 CLR 28, which your Honours have not yet been taken to, which is in volume 9, tab 49. This was the case that was at the end of a line of cases in which the question was, were people who migrated to Australia as British subjects within the scope of the aliens power, even though they had never become Australian citizens? That was the issue that was dividing the Court over a period of time. Nolan had said yes. In Patterson, the Court departed from that position in Nolan. In Shaw it was restored by a majority of the Court.

If your Honours could start on page 35 at paragraph 2. This is in the joint reasons of Chief Justice Gleeson, Justice Gummow and Justice Hayne. Justice Heydon relevantly agreed with the reasoning of those three Judges at paragraph 190, so this is the reasoning of the majority of the Court. Paragraph 2:

The power conferred by s 51(xix) supports legislation determining those to whom is attributed the status of alien; the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons . . . In this way, citizenship may be seen as the obverse of the status of alienage.

I particularly emphasise that because our friends in their written submissions, including in their reply are dismissive of the proposition that Parliament has a capacity to determine those to whom is attributed the status of alien on the basis that they say it has a stream and source problem or a Communist Party Case problem. In our submission, it is clear as a matter of authority that that is not right.

EDELMAN J: Subject to the limit in

MR DONAGHUE: Subject to the limit in Pochi and because it is subject to the limit in Pochi is why there is no Communist Party problem.

EDELMAN J: Is that not exactly what this case is about. This case is whether or not we are past the limit in Pochi. I am not sure how you can say, well, you are not going to give us any examples or tell us where that limit is where, on one view, that is exactly what the plaintiff’s case is.

MR DONAGHUE: Your Honour, because, as far as I am aware, this argument has not been raised before, I cannot take your Honours to a case which has rejected it but what I can do and I am seeking to do is to identify the criteria that the Court has identified in the past as controlling of the reach of the aliens power.

EDELMAN J: Would it be possible to give us an example? Obviously, this category of person, you say, is not past the limit, someone who is an Aboriginal person who traces lineage with Australia and connection with the land over tens of thousands of years. Who would be – who would be past the limit? What category of person would be beyond that limit if these people are not?

MR DONAGHUE: Your Honour, the reason that I say that these people are not has nothing to do with the long connection of indigenous people to the land. It is to do with the same criteria that would cause me to say anybody who was born outside of Australia and who became – who was born out of Australia, that is enough, or who was a foreign citizen. Anybody who meets those criteria is somebody who can be treated as an alien and in my submission that is totally consistent with the history of how the power has been understood and the reasoning in the cases. What our friends are doing is asking your Honours to identify as a new limit on the power something that has no resonance in the law about alienage at all.

EDELMAN J: What is something that would be beyond the Pochi limit then?

MR DONAGHUE: Well, if one was dealing with a person born in Australia to two Australian parents who has not done anything themselves to renounce their Australian citizen, it is difficult to see that a person in that category would be outside the reach of power because that would be a person who, on the jus soli view of the world, would not have been an alien, on the jus sanguinis view of the world, would not have been an alien, on the allegiance view of the world, would not have been an alien.

So, one cannot identify any of the ways the law has given content to the alien doctrine and say, well, that is my hook to say that there is a connection between – it is open to Parliament to treat that person as an alien. But if you have any of those things which the law at the time of Federation recognised were criteria by which a person might be an alien then Parliament gets to choose which ones are relevant and which ones are not.

Your Honours are being asked to conclude that even though a person has multiple criteria that would, on those prevailing theories – on both of those prevailing theories – have entitled the person to be treated as an alien. They cannot because of their race or their membership of the indigenous people of Australia. That is to reintroduce into the Constitution criteria of a kind that was removed from the Constitution. The only references to Aboriginal persons in the Constitution were removed in 1967.

Your Honours are being asked as a matter of interpretation to bring one back. In my submission, a neutral law applying the same rules to everyone, being rules of a type that have the historical foundations we have identified, is clearly within the scope of the aliens power.

BELL J: We moved from that approach in the context of the physical land of Australia in the recognition that came to be made respecting the peculiar relationship between indigenous Australians and land. If one looks to references to the word “alien”, bearing its ordinary meaning as Chief Justice in Pochi suggested that it did, then it may not be such a stretch to consider a person who answers the description of himself or herself being an Aboriginal person possessed of that particular link to the physical land of Australia is simply not an alien.

MR DONAGHUE: But to say that, your Honour, one has to ignore – one has to choose those criteria as the only potentially relevant criteria.

GORDON J: Is that right?

BELL J: One has to recognise that Aboriginal Australians may represent a sui generis group for the purposes of alienage.

MR DONAGHUE: Even if they move overseas and live overseas through multiple generations because that is what the plaintiffs’ argument

BELL J: Well, depending on the argument, these are, as I understand the argument, factual matters. So a person who can trace their heritage back to Aboriginal ancestry but who, for a number of generations, has lived elsewhere would almost certainly not pass the second or third limbs of the test. We are dealing here with, at least in the case of Mr Thoms, a person who eloquently answers the Brennan test in Mabo (No 2). Indeed, he is acknowledged to hold native title rights and interests.

MR DONAGHUE: Indeed, as a member of a group.

BELL J: Yes. How else could one

MR DONAGHUE: I accept that that is so, but I do not – as I understood the plaintiffs’ submissions, they would not limit the proposition in that way. So if we take, for example, a person who is born overseas in the same circumstances as Mr Thoms or Mr Love, becomes a foreign citizen because their family lives there but instead of coming here as a sixyearold comes here as a 60yearold, that person could then, with the same family connections, be accepted into an indigenous community in Australia in a way that met the criteria and would, on the plaintiffs’ argument, not be an alien. What they were for the 60 years before they arrived in Australia is not clear.

EDELMAN J: One would have had the same questions in 1901 with section 51(xxv) and section 127. I mean, they were resolved in relation to censuses in a particularly narrow way to define what an Aboriginal is, but I do not think you would say that those definitions are fixed in time.

MR DONAGHUE: No, your Honour, I would not. The difference is that, certainly in the context of the races power, one was in an area of discourse where indigeneity was obviously relevant. Here, alienage is just a legal status. It is a legal status that has existed for a long period of time. The criteria have been not fixed, because obviously they have moved, but they have never moved in a way that turns on race. They have moved by reference to allegiance and connection, defined by reference to parliamentary criteria of the kind your Honours are familiar with. What your Honour is being asked to do now is effectively to say, never mind that legal history of what is essentially a legal creation of status, of connection between the body politic and a person, something - a new limit should be identified

EDELMAN J: Is your submission that as a matter of legal history, at constitutional conventions and so on one of the major concerns behind section 51(xix) was not race? One finds pages and pages and pages of statements that talk about alien races and aliens interchangeably.

MR DONAGHUE: Yes.

EDELMAN J: But it is never talking about the Aboriginal race.

MR DONAGHUE: No, they were not talking about people who were born in Australia because they were covered by the existing rules. As far as I am aware, it has never been suggested otherwise. It has not been suggested that Aboriginal persons in Australia at the time of Federation were anything other than British subjects. Certainly Justice Brennan regarded that as clear in Mabo. He did not suggest that the recognition of native title was creative of some parallel sovereignty status.

GORDON J: It is not sovereignty status in that context. It is a question here about what happened on Federation in relation to that connection to land and in a sense what that gives rise to in a context of connection here for the purposes of what is an alien and not an alien. It is difficult to look at an Aboriginal Australian who satisfies the Mabo Justice Brennan test and describe him as an outsider.

MR DONAGHUE: It is unless you recognise that they are born overseas and are a foreign citizen. If you do not add those criteria – I understand what your Honour is saying but they are the key criteria, in our submission. They are what means that treating these plaintiffs as aliens does not discriminate them; it applies the same law to them as to everyone else.

KIEFEL CJ: Mr Solicitor, what do you say is the relevant connection in terms of alienage between the person considered to be an alien and a country? Is it to the polity as a whole?

MR DONAGHUE: To the?

KIEFEL CJ: The connection - in the context of alienage.

MR DONAGHUE: To the other country?

KIEFEL CJ: Yes, not to the country in which they are seeking to be a nonalien, to use the new term, but to the country of which – what is the relevant connection for the purpose of alienage, do you say?

MR DONAGHUE: Your Honour, I cannot give a simple answer to that question because it is enough to be a citizen of that country to have that legal relationship with the body politic.

KIEFEL CJ: It is to the body politic at a minimum.

MR DONAGHUE: Yes.

KIEFEL CJ: It can be more.

MR DONAGHUE: It is the body politic but it can be more. This Court has recognised that a stateless person is also an alien. Absent that connection to a body politic, one can still have the relevant status. I will take your Honours to those cases in a moment. That is what the Court was saying in the passage criticised in Singh. Can I take your Honours to Singh, rather than to make this submission in the abstract.

As your Honours know, the plaintiff in Singh was born in Australia. She was a young child – six years old. Her parents were Indian nationals. Our friends have said, well, this case could have been decided on the basis of different reasoning. No doubt that is true, but the ratio is the reasoning that the Court adopted to get to the conclusion, and that was reasoning that focused on the existence of foreign citizenship which Ms Singh had by descent under the then applicable Indian law.

If your Honours start with Chief Justice Gleeson’s judgment on page 329, paragraph 4 – sorry, Singh is volume 9, tab 50[2004] HCA 43; , (2004) 222 CLR 322. In paragraph 4, his Honour is dealing with the matters I have just been addressing Parliament having the capacity to define the concept of citizenship, et cetera, subject to the Pochi limitation, which he goes on to address in the second half of paragraph 4. In the middle of that paragraph you will see his Honour saying:

alien in s 51(xix) of the Constitution had become synonymous with noncitizen -

before explaining the qualification from Chief Justice Gibbs’ reasons. But then, just following footnote (30):

Within the class of persons who could answer that description, Parliament can determine to whom it will be applied, and with what consequences. Alienage is a status -

Now, his Honour then, having referred to the Pochi limit, says in paragraph 5:

Everyone agrees that the term “aliens” does not mean whatever Parliament wants it to mean. Equally clearly, it does not mean whatever a court, or a judge, wants it to mean.

His Honour then goes on to explain, in what I submit are conventional terms, that the most authentic will of current or reflection of current public opinion is that of the Parliament and:

It is not the role of the judiciary to give effect to an understanding of public opinion and opposition to the will of Parliament.

The point of the aliens power - and his Honour explained this eloquently in Te in a passage that is referred to in our – paragraph 2 of our oral outline, but I will not go back to - but the point of the aliens power is that Parliament, on behalf of the community, makes the contestable value judgments about membership of the community from time to time and that the aliens power was intended to confer ample power on Parliament to make that judgment within the realm of the persons who could possibly answer the description.

KIEFEL CJ: Mr Solicitor, would the plaintiff’s case require the term “noncitizen” in the Migration Act to be read down or with a qualification?

MR DONAGHUE: I think the answer to that is yes. I am going to come briefly to how the argument connects with the Citizenship Act

KIEFEL CJ: I will leave you to develop it.

MR DONAGHUE: Yes. Thank you, your Honour. With respect to our friends, we submit that what your Honours are being asked to do is the very thing that Chief Justice Gleeson is warning against in paragraph 5. Your Honours are being asked to give the word a meaning that is not a meaning supportive by any previous understanding of the meaning of the word “alien”. You are being asked to fix upon a criteria that does not have a legal foundation within this area. It obviously has important legal consequences in other areas - in the areas of native title law, in the areas of nondiscrimination law, but it does not intercept with the ambit of Parliament’s power under 51(xix).

If your Honours go on to paragraph 30 on page 340 your Honours see in the Chief Justice’s judgment the discussion of the major legal systems approaching the concept differently - the two leading theories to which I have already referred, controlling importance to descent, controlling importance to place of birth, common law of England adhered to the second but the Parliament had modified it – that is over on the top of 341:

The questions of nationality, allegiance and alienage were matters on which there were changing and developing policies, and which were seen as appropriate for parliamentary resolution.

He refers to the complex racial circumstances to which your Honour Justice Edelman was referring and then, in my submission - and our friends said this is a passage which indicates that Chief Justice Gleeson should not be grouped with the plurality judgment to find a majority in Singh. We respectfully disagree with that.

The reasons of Justices Gummow, Hayne and Heydon demonstrate that in the case of someone such as the plaintiff, an Indian citizen born in Australia, there was no established requirement that she be excluded from the class of alien. So, his Honour’s finding that the ordinary meaning of “alien”, that the Pochi limit, even though it had such a wellestablished long common law foundation, did not prevent Parliament from treating an Indian citizen born in Australia as an alien.

EDELMAN J: It also means that the only example that you have given of something that might be beyond the Pochi limit is not beyond the Pochi limit. A child that is born in Australia of two Australian parents with an Italian grandfather is all of a sudden not beyond the Pochi limit.

MR DONAGHUE: The example I gave did not have the Italian grandfather, it had

EDELMAN J: We do not know that, though. You would have to trace the lineage of every single person to make sure that they do not fall within any foreign law because otherwise there is no limit.

MR DONAGHUE: Your Honour, at most, bearing in mind the distinction I drew between treating a person as an alien and the person being an alien, at most what your Honour’s example would demonstrate is not that the person is an alien but that it might be open to Parliament to treat the person in that way.

EDELMAN J: In other words, there is not a Pochi limit for that person?

MR DONAGHUE: Well, if they are a foreign citizen, there is not. I say that because in a passage I am about to come to in Singh, it is said the central characteristic, the Court called it a – used even stronger language in Koroitamana, was foreign citizenship itself being enough to make you a person who can be treated as an alien. This is not, one would expect, again, cannot treat the group of Aboriginal persons as a monolith but we are not talking about criteria that one would expect to be broadly applicable to the indigenous people in Australia. But insofar as they or their parents or grandparents move overseas, become foreign citizens, they put themselves in a class in the same way as any other Australian moving overseas, having children overseas, becoming a foreign citizen, puts themselves in a class where Parliament can treat them as an alien.

BELL J: Looking at Mr Thoms, Mr Thoms has a recognised right in Australian law in relation to his – the exercise of native title rights and interests. That is inalienable because of the very nature of those rights but you say that there is no obstacle to him being declared to be an alien with the consequence that he may be excluded from Australia notwithstanding the recognition of his connection to the physical land of a part of Australia by virtue of his membership of that community.

EDELMAN J: If I can just add to that, the people that then cannot be falling within the notion of “alien”, the very narrow category that do not, are those born in Australia of Australian parents who can trace their lineage back through Australian parents so that there is no foreign citizenship. So, Australian lineage counts but longstanding native title connection does not.

MR DONAGHUE: Your Honour, that example assumes an exorbitant foreign citizenship law that is requiring one to trace back a long period of time or that is conferring foreign citizenship. It would not be necessary to engage in that process unless there is a foreign law that is conferring that status on a person who does not actually have a connection with the foreign power now. I cannot exclude the possibility of a law of that kind, but to have a foreign law that was conferring foreign citizenship across generations for people who were not continuing to reside in or be born in the foreign country might be surprising.

To return to your Honour Justice Bell’s example or question, rather, in my submission Mr Thoms has his connection to the indigenous people of Australia through one of his parents. That connection under the then applicable citizenship law created an entitlement for him to be an Australian citizen on registration. He did not register. So his status is not able to be determined and there is no challenge to that law. So he has the status of alien rather than citizen because there was a statutory opportunity available to him, not utilised and not challenged, that prevented him from being given that status.

To hold that it is not open to – and it is that law, the citizenship law, not the migration law, that is really the problem from his perspective. To say that Parliament cannot validly require the person born overseas to register would, in my submission, be a very large step to take, whether or not the person is indigenous.

BELL J: That is a twist. We are moving – the question is the capacity to say of a person who answers the description of being an Aboriginal Australian and who, in these circumstances, happens to be a person with recognised native title rights and interests to the land of Australia, is an alien for the purposes of the law of alienage. You take us to the notions of allegiance to a sovereign dating back to feudal concepts, well recognised in this area. But the matter that is being raised with you is the possibility of an exception in relation to indigenous peoples of this country.

MR DONAGHUE: But a constitutional exception.

BELL J: Yes.

MR DONAGHUE: In my submission, what the Court held in Shaw – in my respectful submission, correctly – is that 51(xix) supports legislation determining the status of those who will be attributed. Parliament could choose criteria of the kind your Honour is putting to me and that would be unproblematic and that would then govern status. But our friends have to go much further than that and to say, as a matter of constitutional interpretation, the threepart criteria takes outside the capacity of the Parliament to determine status and here

GORDON J: It takes them outside, on the plaintiffs’ argument, because they are not an alien. That is the argument you have to deal with.

MR DONAGHUE: I understand that, and what I was putting – and I was not trying to twist the argument – to your Honour Justice Bell is that the law where Parliament determined the - who will be attributed the status of an alien that we are here concerned with with Mr Thoms, was the Citizenship Act law that said if you are born outside Australia, even if you have an Australian parent, you will be determined to have the status of an alien unless you register. That is the law that our friends have to attack because that is the law that means they are aliens. So, their argument goes so far as to say you cannot make an indigenous person register even when they are born outside of Australia.

BELL J: What they attack, as I understand it, is the application to them of section 189 of the Migration Act. What is attacked is the capacity under that legislative power to take them into immigration detention and, indeed, to expel them from Australia.

MR DONAGHUE: But that power only applies to them because – this is your Honour the Chief Justice’s question – that power applies to them because it operates on a noncitizen who is a person who lacks citizenship status under the Citizenship Act.

BELL J: Indeed, indeed, but it comes back to a consideration of the constitutional content of the term “alien” and the capacity to visit the section 189 consequence on an Australian Aboriginal.

MR DONAGHUE: But if it is open to Parliament to say even if you are an Australian Aboriginal person, even if you are an Aboriginal person, if you are born overseas you have to register. If that is a valid law, passed pursuant to 51(xix), then the plaintiff should fail in this case because he has the status that he has because he did not do the thing that the Parliament in regulating status required him to do and that then has the consequence that he has a status upon which the Migration Act fixes.

BELL J: It is a circular argument.

KEANE J: If one were to accept that section 189 does not apply to people of the Aboriginal race, does one then have to read section 189 pursuant to section 10 of the Racial Discrimination Act so that people of other races have the same rights? So, that section 189 would have no operation at all.

MR DONAGHUE: Your Honour, I cannot see how I could say no to that because your Honour’s question raises the point I was perhaps not eloquently raising before that this argument is to introduce a racial criteria as to the operation of the citizen/noncitizen distinction. Once there is a racial criteria governing the citizen/noncitizen distinction it may well be that what your Honour puts to me would follow.

EDELMAN J: Unless one views section 51(xix) as law which had at its – as a head of power which had at its core a concern with foreigners or as a number of the delegates of the Conventions expressed it “foreign races” and had a very close association with 51(xxv) which expressly excluded Aboriginal people.

MR DONAGHUE: But, your Honour, the hot debates in this Court about the reach of 51(xix) have been about British people. That has really been where the division has occurred.

EDELMAN J: Of course, because this issue has never arisen.

MR DONAGHUE: But once one says, well, 51(xix) reaches British people, it is difficult to say that it is a law that is just concerned with racial distinctions or centrally concerned with racial distinctions. It is a law as Chief Justice Gleeson put it in Te about exercising the inherent sovereignty, the power of every sovereign nation to decide who is a member of the community and who is not and that is not a racial decision or it is certainly not exclusively a racial decision and one hopes that it is now not a racial decision at all even though, obviously, historically, it was.

EDELMAN J: But that is the concept. The core concept is not necessarily one of racial. It was expressed in racial terms but the core concept was an idea of foreigners or otherness, which fits with the very language of the word “alien”, which is about another.

MR DONAGHUE: Many of the questions your Honour is putting to me are understandably, in light of the plaintiffs’ argument, fixing upon the satisfaction or otherwise of the threepart criteria, but not fixing upon the indicators of otherness or connection to elsewhere that exist in relation to these plaintiffs but may well not exist in relation to most indigenous persons.

If what the Court said in Singh and Koroitamana is right, that any person in Australia who is a citizen of a foreign country is an alien, except an Aboriginal person who is a citizen of a foreign country, that any person – and that is a distinction as a matter of constitutional interpretation your Honours should not embrace because it draws that line between people who are the subject of the power by reference to a standardised criteria – do you owe allegiance to a foreign country? – and then distinguishes on effectively a racial basis. Your Honours said in Singh – and if your Honours could go back to Singh in the plurality judgment, in my submission this case is key.

GORDON J: Sorry, where are we going, Mr Solicitor?

MR DONAGHUE: In Singh, in the joint judgment of Justices – your Honours I had taken you to paragraph 30, where the Chief Justice associated himself with the reasons of Justices Gummow, Hayne and Heydon in focusing on the Indian citizenship of the plaintiff and said there was no excluded basis. Can I just ask your Honours, while you are still there, to note paragraph 32, under the heading “Conclusions and orders”:

The argument for the plaintiff has not been made out. She is a citizen of a foreign state, the child of foreign citizens and, although born in Australia, she is an alien.

So his Honour’s conclusion, in my submission, squarely focused on her citizenship status of a foreign state in the same way as the plurality I am about to come to.

If your Honours go in the joint reasons, starting at paragraph 146, which is on page 381, under the heading “‘Aliens’ – the competing contentions”, you see here an argument, in my submission, that has clear parallels with the argument that your Honours are now considering from the plaintiffs, in that it is again submitted:

that, at the time of Federation, “aliens” had an accepted and fixed legal meaning . . . excluded from its embrace any person born in Australia -

Here, it is accepted, excluded any Aboriginal person, and it was said the Calvin’s Case meaning was outside the power of Parliament to change it. Their Honours then at paragraph 157, at the bottom of page 384, returned to the argument that there is a fixed legal meaning. Four lines down:

These reasons will seek to demonstrate that, at Federation, “aliens” did not have a fixed legal meaning ascertained by reference to the common law.

What had been said in Calvin’s Case had been changed by legislation. Then their Honours say:

It is as well, however, to go on to say something further about the second of the assumptions just identified –

I am sorry, I have done that poorly, your Honours. If you could go back to the start of 157, their Honours make two points: first:

that “aliens” had a fixed legal meaning –

it was assumed:

but also that the meaning, once ascertained, defined the outer limits of the power –

That is the second point. So when, later in that paragraph, their Honours say:

It is as well, however, to go on to say something further about the second of the assumptions –

they are talking about the outer limit assumption. They say that:

To say of a constitutional expression, like “aliens”, that its content is “immutable” invites controversy which may be more remarkable for its heat than for the light shed on the underlying issue. The relevant question is not whether the meaning of “aliens” is immutable, it is whether –

the law is a law with respect to aliens, that is, can the person be treated as an alien? At 162 their Honours refer to the fact that to look at:

the historical meaning . . . is not complete if all that is done is to give a list of the –

particulars at the applicable time. But then at 190 their Honours return to the point that the Chief Justice had made: no fixed legal meaning. But there was one feature and here I am in 150, about six or seven lines down – sorry, in paragraph 190, on page 395:

But there was one feature about the use of the word that was constant: it was that the alien “belonged to another”.

That was identified not by reference to connection to land, whether in Australia or elsewhere, but by reference to the nature of the allegiance that they owed. Then at the end of the paragraph:

“Aliens”, even if it had once had a fixed legal meaning, did not bear such a meaning by the end of the nineteenth century. But what did remain unaltered was that “aliens” included those who owed allegiance to another sovereign power, or who, having no nationality, owed no allegiance to any sovereign power.

So there is no fixed legal meaning, but the focus was at least on allegiance. To accept the plaintiffs’ argument, your Honours would need to find not only was there no fixed legal meaning but there was some fixed exclusion so that the power could not reach Aboriginal persons, even if they had the criteria identified at the end of paragraph 90. Our friends cannot point your Honours to anything that would support that because there is nothing that supports that. They are relying upon a characteristic that has never been treated as relevant to this legal status.

EDELMAN J: Well, it is effectively to read 51(xix) as though it contained the same exclusion as 51(xxv), “other than Aboriginal people” and one might think that the reason for doing that was the very close association at the time of Federation between those two placita and also the fact that it would have been thought entirely unnecessary to express an exclusion from the concept of aliens for Aboriginal people because that was not the concern of the provision or the power.

MR DONAGHUE: The races power having been removed to exclude that exclusion on the basis of the evolution in social attitudes to which my friend referred, your Honours would then be reading 51(xix) as subject to the exclusion that was repealed at referenda.

EDELMAN J: But the reasons in 1967 for removing the exclusion in 51(xxv) could hardly extend to saying, “Well, we now want to bring Aboriginal people into the concept of ‘alien’ within 51(xix)”.

MR DONAGHUE: But, your Honour, they extended - as was recognised I think in the passages your Honours were taken to in Tasmanian Dams - a law ahead of power that was inserted to support racially discriminatory laws but was not able to extend to indigenous persons. They removed that exclusion so that indigenous persons became potentially subject, both to beneficial but also to adverse laws under the races power.

In my submission, what the Court said in Singh at 190 and following – followed the detailed examination of the historical development of the law in this area and resulted in a conclusion that whatever else might be within the power it includes foreign citizens. Your Honours should not, in my respectful submission, jettison the body of learning that led to that conclusion and the conclusion itself.

I remind your Honours that Singh is not challenged. Our friends expressly said that this decision is not challenged. It was followed by five members of the Court in Koroitamana identifying this same criteria, whatever else it may include, foreign citizen is enough, and they are admittedly foreign citizens.

BELL J: What are we to make of paragraph 158 of Singh, which is on page 384, where their Honours disavow and attempt, as I understand it, to give content to the constitutional term “for all purposes” and then they identify the issue at the conclusion of the paragraph as whether the law:

can be supported in its operation with respect to the plaintiff -

If one looks at the joint reasons in that light, it is not surprising that consideration was not given to the possibility that the Commonwealth Parliament does not, under 51(xix), possess power to treat Aboriginal Australians as aliens.

MR DONAGHUE: Your Honour, in answering your Honour’s question, could I ask your Honour to go to paragraph 200 at the bottom of 398.

BELL J: Yes.

MR DONAGHUE: Because there, their Honours criticise the argument that was made by reference to the proposition that it sought to focus on what takes a person outside the power, rather than what puts a person within it. I am referring to the last six. So, the central characteristic of the status is and has always been allegiance to a sovereign power other than the sovereign power in question here. That definition focuses on what it is which gives the person that status, owing obligation to another sovereign power.

So, their Honours were saying let us focus on what makes you an alien rather than what is said does not. Here you are a citizen of another country. That makes you an alien. Therefore, we do not need to worry about the other things that are said to take you outside the power. I am making the same submission.

KIEFEL CJ: Do you say that the same question identified in the last sentence of paragraph 158 is the question here?

MR DONAGHUE: Yes, your Honour, which is, in effect, is it open to the Parliament to treat the plaintiffs as aliens because if it is, then they are within the the law is supported by that. Now, if your Honours still have paragraph 200 of Singh, while I have taken your Honours to it, can I just complete the passages I want to identify there. At paragraph – I will not read it to your Honours – 203, but their Honours deal with an argument that, what was being called by our friends this morning, the Pochi test was, in some way, exclusive. Their Honours, in the last few lines of paragraph 203 reject that:

It would be wrong, however, to take what was said by Gibbs CJ as necessarily treating a person born in Australia as beyond the reach of the aliens power. That question did not arise -

This is the issue that your Honour Justices Gageler and Keane raised this morning. There is no negative implication in that list of criteria, and one can see that because one of the three criteria was “born outside Australia”. If his Honour was exhaustively stating the criteria, that would mean no person born within Australia could be an alien and Singh holds that that is wrong. Finally then in 205 your Honours see a reference back to Nolan:

where it was said that “alien” “[u]sed as a descriptive word to describe a person’s lack of relationship with a country . . . means, as a matter of ordinary language, ‘nothing more than a citizen or subject of a foreign state.

So, if one links up - Chief Justice Gibbs in Pochi says, well, the limit is someone who cannot possibly answer the description of an alien. In Nolan, six members of the Court say, well, the ordinary meaning of the word is someone who is a citizen of a foreign country. It is hard to see how someone who falls within the ordinary meaning identified in Pochi could possibly fall outside of what the word can possibly mean.

BELL J: Their Honours said it was a descriptive word to describe a person’s lack of relationship with a country, and I think the contention that has been put is it is on one view difficult to say an Australian Aboriginal does not have a relationship with Australia.

MR DONAGHUE: That is true, but returning to the answer I gave to your Honour earlier, the focus on what makes them an alien rather than what does not

KEANE J: But is it not also that when they are speaking about country in this passage, they are not talking about ownership of land. I mean, a Frenchman who owns freehold is still a Frenchman. They are talking about the polity.

MR DONAGHUE: They are, absolutely, your Honour. They are talking about relationship to the body politic and that is the answer I gave the Chief Justice earlier.

EDELMAN J: In 1901, was it possible for an alien to have any rights or title to land under the common law?

MR DONAGHUE: Your Honour, I am not sure of the timing of the developments. Certainly there were, as your Honour knows, restrictions on holding land and at different times then on passing land under testamentary dispositions. So I do not know the answer to that.

EDELMAN J: If the answer to that is no, does that mean that the theory that Aboriginal people who were born in another country fell within the notion of alien despite having long connection with the country, albeit that might be a very, very small or nonexistent category in 1901, but as a matter of theory, that theory would undercut the decision in Mabo (No 2), would it not?

MR DONAGHUE: Your Honour, I think that there is a lot wrapped up in that because the notion of native title recognised in Mabo (No 2) was a recognition that the common law of Australia was able to accommodate the existence of legal rights arising under traditional law, whatever they may have been according to the content of that law.

EDELMAN J: Which may have been rights that aliens could never have had.

MR DONAGHUE: Well, but the rule that aliens could not hold the property may have been a rule that aliens could not hold the property under the then prevailing common law system and not have intersected easily with the native title system. I think your Honour’s question raises a lot of large issues that I would not want to reach a definitive answer upon. But we do submit that, having regard to the analysis that focuses on the owing of allegiance to another body politic, these two plaintiffs are not properly treated as proxies for an argument at the general level, can Aboriginal persons be treated as aliens, because these two plaintiffs have characteristics of a kind long recognised in the law as resulting in that status in circumstances where that will not be true of much of the indigenous population.

Now, obviously one cannot give figures about these things but there is just no equivalence between the factors that the Commonwealth identifies as determining the status of these two plaintiffs as people Parliament was entitled to treat as aliens and people who do not have the characteristics either of birth outside of Australia or foreign allegiance.

I mentioned, your Honours, that that key reasoning at paragraph 200 that I have relied on has been followed by the Court elsewhere. The references to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36; (2005) 222 CLR 439 at 35,which is in volume 8, tab 44. Could I just ask your Honours to note that case or to turn to that case, rather. This is in the joint reasons of six members of the Court: Chief Justice Gleeson, Justices McHugh, Gummow, Hayne, Callinan and Heydon. In paragraph 35, at the bottom of page 458, this is another attempt to engage the Pochi limitation. It is said:

no limitation of the kind proposed applies to the power conferred by s 51(xix). The extent of the power of Parliament to deal with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which citizenship may be acquired and lost, and to link citizenship with the right of abode, has been considered most recently by this Court in Singh v The Commonwealth. Two points of present relevance emerge from that consideration. First, the legal status of alienage has as its defining characteristic the owing of allegiance to a foreign sovereign power.

Cite footnote to paragraph [200]. In my submission, what their Honours mean when they say that is that it has a defining characteristic, meaning that it is open to Parliament to treat a person who has that characteristic as an alien, not that a person who has that characteristic is necessarily an alien. Their Honours should not include the same members of the Court who said in Shaw it is for Parliament to define the circumstances in which people do or do not have the status, so they should not be regarded as contradicting that.

In my submission, notwithstanding that our friends have not challenged that statement, as was recognised by six Justices in Ame, Singh is authority for the proposition that a person who is a foreign citizen is an alien. So, unless your Honours overrule that proposition and Ame, the fact that these plaintiffs are foreign citizens should be sufficient to dispose of the case.

GORDON J: Does that extend to include dual nationals?

MR DONAGHUE: Because, your Honour, the existence of that status is enough to allow Parliament to treat the person as an alien, it does.

GORDON J: It is a separate question, though, is it not?

MR DONAGHUE: If your Honour’s question is, does that statement mean that dual nationals are aliens

GORDON J: No. I understood you to say they can be treated but they are not to be considered as aliens, as I understood the way you put the submission.

MR DONAGHUE: They can be treated, and whether they are aliens or not depends on how Parliament has treated them.

GORDON J: Depends upon how Parliament

MR DONAGHUE: How Parliament has treated them. So, because they are within the range of people who Parliament can treat as an alien – and I am using that language borrowing from Nolan, Pochi and Shaw – one cannot just say of any person, that person is or is not an alien within 51(xix). One needs to ask the question, what status do they have under the prevailing domestic law which these days is statutory, so that one needs to then go to the Citizenship Act to answer the question, because there are many people who Parliament could treat as aliens or could treat as citizens, and dual citizens are a good example of that category.

GAGELER J: Mr Solicitor, there seems to me to be a merging of a couple of ideas in all of these passages you are taking us to. On the one hand, we see quite clearly in Chief Justice Gleeson’s various pronouncements the idea of a power to define a legal status which is really binary alienage or is one side of the coin, citizenship is at the other side of the coin and there would be limits on that power, but effectively it is a power that is conferred on the Parliament subject to limits.

MR DONAGHUE: Indeed.

GAGELER J: We see in other passages, perhaps in the joint judgment, perhaps in the sentence that you have taken us to in Ame, this idea that an alien is a person having characteristics independently of the status that they have given in the exercise of that power. These things seem to get mixed up.

MR DONAGHUE: I accept that that is true to an extent and, in my submission, the way your Honour should approach that is to look first at Shaw and the passage in paragraph 2 of Shaw, which is Chief Justice Gleeson and Justices Gummow and Hayne with Justice Heydon. There the position, your Honour, just attributed to Chief Justice Gleeson is very clearly set out. It is a status that Parliament determines it.

One then moves to Singh and has a separate judgment of Chief Justice Gleeson clearly articulating the same approach and the plurality judgment less clearly articulating the same approach, but the same judges who a year earlier supported the relevant passages in Singh. The reason for the distinction, in my submission, is that the argument in Singh, as indeed is the argument in this case, takes as its starting point the fact that the person is not a citizen. So if one just approached it from the level of the Chief Justice’s analysis, one would say, well, that is easy, this person is an alien. But the debate is about the Pochi limit or the outer limit.

So, rather than analyse it through the perspective of the status creating law, as their Honours have done in Shaw, the plurality reasons jump straight in to the question of the outer limit. That is apparent, to some extent, from 157 and 158 that I took your Honours to earlier. In my submission, the way you should read 200 and Ame is as directed to that question. They are focusing on a characteristic that means you are not outside the limit. So it does, I accept, blur a little but, in my submission, your Honours should not treat Singh as a departure from the position articulated very clearly in Shaw, but as an explanation of why the outer limit had not been reached. Similarly, in Singh their Honours are necessarily holding that the existence of a status – that the fact of birth within Australia, notwithstanding the significance that would have been accorded to that fact for a long time, did not take you outside the outer limit.

GAGELER J: On any view, that sentence you took us to in Ame, paragraph 35, that says:

the legal status of alienage has as its defining characteristic the owing of allegiance to a foreign sovereign power -

just cannot be right, can it, for at least two reasons. One, the whole point of the earlier discussions is that the legal status of alienage is the topic of the legislative power that is committed to the Parliament. The defining characteristic depends on how Parliament chooses to define it.

MR DONAGHUE: It is not right unless you understand it in the way that I have just tried to explain.

GAGELER J: Yes.

MR DONAGHUE: There is a shift between paragraph 200 in Singh which says the “central characteristic” and that paragraph I just read citing it which says the “defining characteristic”. In my submission, there is no defining characteristic. There are just available characteristics for the Parliament to choose and some unavailable characteristics. So, in my submission, that is how it should be read, and I would not support it if it was read in a different way.

The other case I should just mention which also forms part of this line of authority is Koroitamana v The Commonwealth [2006] HCA 28; (2006) 227 CLR 31, so decided two years later - which is volume 7, tab 30. This case is useful principally because it involves members of this Court interpreting their own reasons in Singh, or explaining what the Court regarded itself as having held in Singh. If your Honours start here in the joint judgment of Chief Justice Gleeson and Justice Heydon on page 37 of paragraph 9, you see a clear exposition, if I may respectfully so submit, of the nature of the issues and of the decision in Singh. Four lines down:

Singh decided that birth in Australia does not of itself mean that a person is beyond the reach of the power . . . Secondly, all the Justices who were in the majority in Singh rejected the proposition that, at the time of federation, the concept of alienage had an established and immutable legal meaning that deprived Parliament of any substantial room for legislative choice . . . The Constitution did not commit Australia to uncompromising adherence to either theory.

It must follow from that discussion that, as long as you are adhering to one or other of the theories, the legislation is within the scope of the power. That is logic of their Honours’ analysis. At paragraph 11, there is the “wide power”, “capacity to decide who will be admitted”, Pochi limitations. At paragraph 14, at the top page 39, it said:

it is open to Parliament to decide that a child born in Australia of parents who are foreign nations is not automatically entitled to such membership. It cannot be said of such a person that he or she could not possibly answer the description of alien.

So that is all, in my submission, supportable, consistent with the idea that the question is about whether Parliament can treat a person as an alien. Then in the joint judgment, Justices Gummow and Hayne, this time joined by Justice Crennan, there is a discussion at paragraph 28 of Singh which is said to be:

authority at least for the propositions that (i) the common law of England respecting alienage as understood in 1900 does not mark the boundaries of the power conferred by s 51(xix); (ii) it is not an essential characteristic of the “aliens” referred to in s 51(xix) of the Constitution that they be born outside Australia –

That is, they can be born inside Australia:

(iii) the Parliament might treat as an “alien” –

That idea, again:

a person born in Australia with a foreign citizenship derived from that of the parents of that person.

Again, in our submission, what Parliament has done here is treat the plaintiffs as aliens because, amongst other things, they were born outside Australia to foreign parents and owe allegiance to another country.

Singh, at paragraph 30, it is said:

The applicants accepted that the possession of a foreign nationality or allegiance would be such a relevant characteristic –

sorry, I should not have jumped 29, but 29 and 30 together are treating Singh as authority for the proposition that possession of foreign nationality is enough. At paragraph 48, on page 46, no support:

for the “constitutional citizenship” of those born in Australia.

In a sense, what your Honours are being asked to adopt is a more limited proposition there, not constitutional citizenship for all persons born in Australia but constitutional citizenship for Aboriginal persons. It is similarly true there is no support in the decisions of this Court for such a thing and it would equally with the statement their Honours make in the second half of that paragraph:

That absence of authority is not surprising because to accept the applicants’ argument would cut across the now settled position that it is for the Parliament, relying upon para (xix) of s 51 of the Constitution, to create and define the concept of Australian citizenship.

Well, that is clearly equally true of the argument your Honours are asked to accept. It would cut across that settled position to take a group, not even able to be identified by persons born in Australia but born outside Australia potentially at a number of generations removed, as necessarily outside the reach of the aliens power. Finally, Justice Kirby at page 49, paragraph 62 –and it is recognised:

rejection of the constitutional idea of nationality as a birthright were differently expressed in the several reasons in Singh. However, basically, they reflected the recognition by all members of the majority, that, at the time the Constitution was written and thereafter, two criteria for nationality by birth existed in the world – ius soli and ius sanguinis. In that circumstance, consistent with the accepted norms for the construction of the Australian Constitution, notions of alienage and of nationality could adapt, as Parliament provided, by reference to one, both or a mixture of these competing approaches –

That, we submit, is correct. So in Koroitamana the Court understood Singh, consistently with the submission that I am advancing. Again, that is a decision that stands in the way of taking the particular characteristics of these plaintiffs - and I know I keep coming back to this - but it is the particular characteristics of these plaintiffs and not any general characteristic of Aboriginal persons that brings them within the reach of the aliens power.

I have taken these propositions a little out of order now in light of the time, but the idea that the obverse or the connected relationship between citizenship and alienage recognised it clearly in the passage I have already taken your Honours to in Shaw, goes quite into a lot deeper than Shaw and it finds clear expression in the reasons of the Court in Lim, picking up and quoting from the reasons of the Court in Nolan. I will not take your Honours – I think I have given you the references in the oral outline, paragraph 7. Yes, so the passages in Lim and in Plaintiff M76 – in M76, in the joint reasons of Justices Crennan, Bell and Gageler, there is a recognition that a law with respect to noncitizens is a law with respect to aliens, and that is a recognition consistent with the characteristics of one status being the obverse of the other.

I have said that the debate about existence of a category of noncitizen, nonalien was a debate resolved in favour of the nonexistence of that category. Shaw, we submit, is authority to that effect, but the fact that that category does not exist was recognised by both Justice McHugh and Justice Kirby, who had been proponents of the existence of that category in Patterson’s Case, but their Honours subsequently acknowledged that there is no such category. Justice Kirby did that at paragraph 265 in Singh. I will not ask your Honours to go back to it but he said there, there are no noncitizens and nonaliens, so he was unequivocal about it. Could your Honours go to Re Woolley, which is volume 9, tab 47.

EDELMAN J: It is a very peripheral point, but is not a denizen a noncitizen, non alien?

MR DONAGHUE: No, your Honour, a denizen is still an alien. As I best recall the position, a denizen gets the rights of a British subject without becoming a British subject.

EDELMAN J: So when, for example, Blackstone divides the categories of people into subjects, denizens and aliens, denizens and aliens are really one category?

MR DONAGHUE: Denizens are persons who have - I think historically the distinction was that in order to be naturalised one needed an Act of Parliament. Denization could happen by reason of executive act. It conferred all of the rights but it did not actually change the legal status.

EDELMAN J: It was not a separate category?

MR DONAGHUE: I do not believe it was a separate category. I think it was not a separate category, as best I recall the position. In Woolley, your Honours, which is volume 9

GAGELER J: Can I just ask about this proposition. You accept that there are limits on the aliens power, so you must accept that there are some people who may not be treated as citizens under the Citizenship Act who are not aliens, I think.

MR DONAGHUE: There must be circumstances in which an attempt by a Parliament to ascribe the status of alien to a certain person would be beyond the power of the Parliament under 51(xix).

GAGELER J: So simply by recognising the possibility of a limit on the power, are you not recognising the possibility of a category of noncitizen, nonaliens?

NETTLE J: Is it not rather that there be a limit on the ability of Parliament to class those persons as noncitizens?

MR DONAGHUE: That is what I was attempting to put, your Honour. So the law that attempted to create – the reason I am hesitating slightly is that one might have a question as to whether the relevant law is framed positively or negatively, and that complicates things a little.

GAGELER J: It is all very good if you can actually strike down something in the Citizenship Act and they become a citizen as a result.

MR DONAGHUE: Which they may well, because of the common law.

GAGELER J: But if they do not, then you will have this category.

MR DONAGHUE: If they do not, and if the common law does not fill the gap, perhaps. Logically I do not think I can deny that. I do not seek to advance the, I think, obviously problematic proposition that an alien could be anything that the Parliament says an alien is.

But hitherto, the Parliament has not, in my submission, come anywhere near to the outer boundaries and certainly as – the question that occupied the courts in Nolan and Patterson and in Shaw was a question rooted in the difficulties caused by the historical developments of the relationship between Australia and Great Britain and the fact that we were once all British subjects and that that status then changed as the realities in the world changed.

In that context, it was easier to see why it might have been said that persons who came to Australia as British subjects should not have transmuted into aliens by some difficult to discern process and that was really the debate that enlivened the question of whether you could have such a category but the Court emphatically ultimately came down against it.

Subject to the theoretical possibility Justice Gageler puts to me, in my submission, Shaw, Woolley, I will not take your Honours to the passage, but particularly paragraph 15, Chief Justice Gleeson summarises the way the pathway from Nolan to Patterson and then to Shaw and in paragraph 38 Justice McHugh recognises that in Shaw the majority held that all noncitizens are aliens for the purposes of section 51.

So, even the people, the members of the Court who were proponents of the existence of that category have accepted that the category does not exist and yet your Honours are being asked to reintroduce it and to reintroduce it in a way not that has the historical foundations identified in the British subject issue but to reintroduce it in a way that creates as a legal limit on the power of the Commonwealth Parliament a racial criteria which, in my submission, your Honours should not do.

Your Honours, can I just say something briefly by way of conclusion in relation to the second way our friends put the case which I have already dealt with in significant part in the submissions I have already made. But, in answer to a question that your Honour Justice Gageler asked, our friends first said that the law was as stated in Sawer and in Quick and Garran and your Honours were taken to both of those passages.

I will not take your Honours back to it but the Quick and Garran passage – I might take your Honours back to it, if you will forgive me. It is in volume 10, tab 54, because this is the passage – page 599 halfway down the page. I think it is 3965 in the book. Under the heading “Aliens” in the middle of that page:

In English law an alien may be variously defined as a person who owes allegiance to a foreign State –

We have that present here:

born out of the jurisdiction of the Queen –

We have that present here:

who is not a British subject.

We have that present here. So, if that is the applicable criteria, all three of those limbs were satisfied on the facts of both plaintiffs. It was said that – and your Honours will recall Professor Sawer said all Aboriginal persons, at least from 1829, were British subjects and race was irrelevant. Your Honour Justice Gageler said, well, when did race become relevant? The answer was at some time before the plaintiffs were born, which was 1979 or 1985, but the mechanism by which criteria about legal status where race was irrelevant became subject to a requirement where race was relevant was, in my submission, never satisfactorily explained.

Your Honours were taken to passages that – with which we do not quibble, where the Court has recognised the long and deep connection to the land of Australia’s indigenous persons and to passages that recognise an evolution in understanding of the relationship between the Australian body politic and indigenous persons.

But those developments in the law are developments in the law that cannot just be assumed to translate to introduce new criteria into a different area of legal discourse and certainly not in circumstances where – as your Honour the Chief Justice pointed out - there were mechanisms available under the laws that would have made it possible for the connection to land to be maintained.

So this is not, in my submission, a case of dispossession. The fact that particular people with particular characteristics can be treated as aliens cannot properly be generalised to a proposition about indigenous persons more generally. The Constitution now – now, post 1967, does not use the words “Aboriginal person” or “Aboriginal race”. It does not appear.

That is discussed by Justice Deane in Tasmanian Dams at 272 and 273, and you have been taken to it. In my submission, there are real dangers in picking up the threepart definition, which is a definition proffered by Justice Brennan and, I think, used by Justice Deane as well, but principally reflected in legislation that has been enacted dealing in various ways with Aboriginal persons, Aboriginal representative bodies, different government programs, it has been used in a statutory context in many ways and it has evolved over a period of time.

So up until I think around the 1980s, the concept of an “Aboriginal person” would principally have been focused on biological descent and the inappropriateness for that was recognised and the additional second and third criteria were developed for various purposes. But ultimately, none of that – the words themselves, “Aboriginal person”, do not appear in the Constitution, and there are dangers in taking a concept of that kind and constitutionalising it, which is what your Honours are being asked to do because you are being asked to read the phrase in, as a limit on 51(xix), and then to give it a meaning that constrains the reach of a head of power which, according to ordinary principles, should be construed with all the generality that the words admit.

As a matter of ordinary theory of constitutional interpretation, your Honours should not, in my submission, read in language of that kind, certainly without the foundations that are absent here because of the clear meaning of the boundaries of that legal status reflected in the authorities.

To the extent that the threepart test calls for selfidentification and group identification, it certainly seems to have the potential to operate in such a way that status depends on things that happen in Australia - the person, to take the example of my hypothetical person who grew to adulthood overseas and then moves to Australia and connects with the indigenous group and is recognised as a member.

If the effect of the argument is that a person in that category arrives in Australia as an alien because at that time they do not meet the threepart test but come, over time, to meet the threepart test, then that would be to recognise the possibility that alienage can be lost by a process outside the process of parliamentary naturalisation and that is something this Court has emphatically denied.

In Pochi, for example – I will not take your Honours to it – but in Pochi at page 111, Chief Justice Gibbs, with Justices Mason and Wilson agreeing, said the argument that a person can cease to be an alien by absorption:

is impossible to maintain –

and the Court in Te likewise held you cannot cease to be an alien by any mechanism other than legislative naturalisation. So if the test operates in that way then it collides with another area of authority. Your Honours, we otherwise rely upon our written submissions.

Can I make one closing point about relief? It is a minor point. If your Honours go to either of the questions in the special case you will see the question your Honours are asked to answer is:

Is the Plaintiff an ‘alien’ within the meaning of s 51(xix) of the Constitution?

That question follows the form of the question the Court answered in Singh, and your Honours may be content with it. In my submission, it is a little infelicitous in the sense that it suggests that one can answer the question is the person an alien by reference to the direct application of the constitutional meaning without looking at the question of how Parliament has dealt with the person.

KIEFEL CJ: Are you suggesting more of a speaking order?

MR DONAGHUE: I was going to suggest, your Honour, that it might be better phrased as saying, “Is the plaintiff within the reach of the legislative power in 51(xix)?” It might frame the issue more accurately but, ultimately, whether reframed or not, the answer is, no, in our submission.

BELL J: Mr Solicitor, do you accept that each of the plaintiffs meets the tripartite Justice Brennan test in Mabo (No 2)?

MR DONAGHUE: The answer to that question is no, but I do not affirmatively advance a submission against that proposition. If your Honours are against us – against the arguments I have raised – and you find that this is a relevant criteria, then you will need to answer that question. Your Honour drew attention to – can I interrupt my answer to your Honour to say I misspoke. The answer to the question is yes, not no.

KIEFEL CJ: I was wondering why this was not in the Federal Court.

MR DONAGHUE: Yes – a fair question, your Honour – my apologies. Your Honour, the facts about satisfaction of the threepart test are not within our knowledge. They are within the knowledge of the plaintiff. The facts that we were asked to agree, and did agree, as your Honour noted in questioning, are different between the two plaintiffs. The difference includes, in the case of Mr Love, that – by contrast, Mr Thoms is agreed to be a person who identifies and is accepted by the Gunggari people as a member of the Gunggari people. By contrast, Mr Love identifies as a descendant of the Kamilaroi tribe and is recognised as a descendant of the Kamilaroi tribe by one identified elder.

So, one does not have a fact about membership of the group in relation to Mr Love, and one has a fact about one person. If your Honours get to this point, you will have to marry that up with whatever tests you identify as appropriate. I note that the way Justice Brennan framed it – he was talking about identification in the plural. So, there would be a question there for your Honours. But, in our submission

GORDON J: He is talking about mutual recognition, you mean. Is that what you mean by plural?

MR DONAGHUE: Mutual recognition but, also, he did not seem to be suggesting that if you could find one person who recognised you as a member of the group that that would do it and, yet, that is what you have in relation to Mr Love. But we are conscious of the historical difficulties that have attended questions of definition in relation to Aboriginal persons. We have preferred to approach the case at the level of urging your Honours not to read in a definition of that kind. But, if we are wrong about that, then I do not affirmatively submit either way. If the Court pleases.

KIEFEL CJ: Thank you, Mr Solicitor. Anything in reply, Mr Keim?

MR KEIM: Yes, please, your Honour. I am aware that the time is late.

KIEFEL CJ: We have not finished yet.

MR KEIM: I am sorry, your Honour?

KIEFEL CJ: Time is not up.

MR KEIM: Yes. Thank you. I wanted to deal at the level of principle with the distinction that our learned friends make with regard to the concept that a person is an alien and the concept that a person may be treated as an alien. Of course this must be taken in the text of the conceded point by our learned friends that Parliament’s power comes from 51(xix), so the person must be an alien before the Parliament has any power to deal with the matter.

It is important, in our submission, to be conceptually clear and it is important not to confuse the width of the power itself and this can be done if one reads some of the statements in the cases out of context. The power is a very strong power I will give some examples of that in a moment – but it is only exercisable with regard to a person who is constitutionally an alien.

KEANE J: So you are submitting that the meaning of the term “alien” was fixed at 1901?

MR KEIM: No, we are not, your Honour. We are saying that “alien” in 1901 had a clear, ascertainable meaning of the kind set out in Quick and Garran and of the kind set out in detail in the 1870 Royal Commission, which we have given your Honours copies of, and as set out in more detail in the reasons of Justices McHugh and Callinan in Singh. So what the law in 1901 was is clearly ascertainable and we say that also is recognised by his Honour.

KEANE J: So that Parliament cannot add to the concept of alienage?

MR KEIM: The Parliament can only deal with people who are aliens

KEANE J: Sure. So is that your submission that the Parliament can only make laws with respect to people who satisfy the term “alien” in 1901?

MR KEIM: No, your Honour. The second aspect of it is, in accordance with those principles of interpreting or construing a constitution that is difficult to amend and is intended as an enduring document – and I gave your Honours the citations without taking your Honours to those paragraphs – the Court can come to a view of the meaning of “aliens” in 1920 which may be different to the view that the Court would have taken in 1901. As with any other power in the Constitution the connotation, as opposed to the denotation – I probably put that the wrong way round – of the words can change over time.

A good example is Cheatle v The Queen where this Court held that unanimity of a jury was a fundamental point that could evolve or, at least, had evolved but other aspects of the law with regard to juries in 1901, like the fact that they had to own property or they all had to be male, those matters were matters that had evolved over time with the changing standards.

Our second point is based on that power of the Court to revisualise the words in the Constitution in the context and that is why the authorities such as Sir Alfred Deakin, cited in Justice Gleeson’s reasons in Singh, that is why the Constitution is written in broad terms. So, if one looks at the Parliament and the Court together, the law with regard to aliens will evolve over time but at any point in time it is 51(xix) as interpreted by the Court which decides who is an alien. That is the starting point.

Then, I move to an area that is not far removed from the position taken by our learned friends. The power with regard to aliens includes both negative and positive aspects. The most obvious positive aspect is that the Parliament can treat any person who is an alien and turn them into a citizen by naturalising them. So that is a positive power.

So in that sense – and our learned friends indicated this, a person who is an alien, the Parliament can say this group of people who are aliens by the effect of the Citizenship Act at birth they become naturalised and they are treated as citizens, or the Parliament can say this group of aliens, if you want them naturalised you have to apply, you have to live in Australia for 10 years and your naturalisation will be subject to a decision by the Minister in accordance with the criteria laid down in the Act.

So, that positive power of naturalisation does give the Parliament a great deal of leeway as to who they treat as welcome aliens and turn them into citizens and who they treat as unwelcome aliens and they remove them from the country as soon as possible. There is also the negative aspects of the power which I have just alluded to which is the power to detain people for the purpose of removing them from the country and the power to strip away their citizenship, the power to denaturalise them and that is very clear in Meyer v Poynton, which is one of the cases that we have given your Honours. So, we say, that it is not a fudgy approach to what “aliens” means in section 51(xix) but neither is it a fixed approach. It is an approach that will change over time.

The other aspect in which we disagree with this fundamental approach of our learned friends in this regard is we say they turn the law as at 1901 upside down. As we said to the Court earlier, the law in 1901 bestowed rights on people to be British subjects and so anybody who had those rights if the British Parliament had a written constitution would not be able to be taken away. We have – so you do not say, well, in 1901 there were some rules with regard to foreign allegiance, therefore, you can make anybody who has foreign allegiance an alien.

What you have to look at is look at the context in which foreign allegiance is relevant, look at the rights associated with birthright, look at the rights associated with nationality by descent and see what those rights were then. This Court can, as it did in Singh, as we say it did in Singh, the Court can say if Ms Singh was born in Australia in 1902 she would not have been an alien.

But in effect what the Court has said in Singh is, “There has been a period in which circumstances have changed. We now think that we should read “alienage” to give the Parliament a slightly broader power than it would have had in 1902”. So it is not fixed. It is not immutable. It can evolve. But it is this Court who decides to what extent it has evolved and what the meaning of “aliens” is at any time. That is the position we take.

The other sorts of cases - we say the law in 1901 was not a case of crosscurrents and we say that the rights associated with being a British subject are quite different from the patents power and the inventions power, because inventions are completely unpredictable as to how the future will change. But we say that this case is like Cheatle. This case is like St George County Council, which Chief Justice Gleeson referred to in Singh, in that you looked at what “trading corporations” meant in the law in 1901 in order to interpret it today.

That does not mean that it could not have changed from 1901, but in order to understand what it meant you had to look at the law in 1901. Also, Cole v Whitfield is a very good example of - the way in which section 92 was understood in 1901 was very, very influential in the decision in Cole v Whitfield. In fact the Court tended to say that there had been very little evolution in the meaning during that period of time.

One other reason – no, I will not cover that, your Honours, not in reply. In answer to your Honour Justice Edelman’s question I am not saying that this is the last word on the subject – in volume 2 at tab 12, we have included the 1870 Act, which was passed in the light of the recommendations of the 1869 report of the Royal Commission, and there is a provision in there allowing aliens to own property. What we do not know, is whether that was declaratory of previous law, or whether that was the point in time when the rights changed.

BELL J: What page number in the volume is that?

MR KEIM: I am sorry, your Honour. It is page 797.

BELL J: Thank you.

MR KEIM: And it is at tab 12. With regard to Ame, we would just point out that Ame was decided on the basis of the territories power, and so any rearticulation of what they saw as the principles in Singh, did not go to the heart of the decision. In M76 at paragraph 265, where our learned friend said that his Honour Justice Kirby had recanted, Justice Kirby’s words in paragraph 265 really have to be understood in the context that in the earlier cases he had been talking about being a British subject. So it is not accepting the logical impossibility that noncitizen and alien must be exactly the same thing.

With regard to the reference to Quick and Garran, the opening words are really a definition of what the concept was generally understood to be and the following words to which we took the Court is an elaboration of what the law was at the time of that publication, in our submission.

One last point in response to our learned friends - we are not suggesting that the threepart test for aboriginality be constitutionalised. Whatever that test is, as to whether a person is an Aboriginal or not, whatever facts the person can put before the Court to indicate to the Court or to indicate to the Executive that they are Aboriginal persons, that is a matter that is not part of the Constitution and is not a part of section 51(xix).

It is the inherent fact that a person is an Australian Aboriginal which we say is now a matter which is part of the construction of section 51(xix). It is not constitutionalising the test; it is elaborating the principle that is contained in the test, in our submission. Back to your question, Justice Edelman, at tab 54, at page 3966 – so it is the last page of the extract from Quick and Garran – in the second last paragraph, the sentence which starts “The Act 7 and 8 Vic.” indicates that in 1844 that Act, of that year:

first allowed aliens to take and hold every species of personal property—but not real property –

So it would seem that the 1870 Act may in fact be the first legislation with regard to real property. Your Honours, we have not placed any evidence
before the Court, but the internet does reveal that South Sudan grants South Sudanese citizenship to great grandchildren of South Sudan children. So if you are looking for an extreme example, there is one. That is all we had. Thank you, your Honours.

KIEFEL CJ: Yes, thank you, Mr Keim. The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 4.21 PM THE MATTER WAS ADJOURNED