Chetcuti v Commonwealth of Australia

Chetcuti v Commonwealth of Australia - [2021] HCA 25 - HCA 2021 case summary — Zoe

[10]

The appellant was born on 8 August 1945 in Malta, then still a Colony of the United Kingdom. By virtue of his birth in Malta, the appellant had from birth the status of a British subject under the British Nationality and Status of Aliens Act 1914 (UK) and from 1 January 1949 the status of a citizen of the United Kingdom and Colonies under the British Nationality Act 1948 (UK). At the commencement of the Malta Independence Act 1964 (UK) on 21 September 1964, the appellant ceased to have the status of a citizen of the United Kingdom and Colonies, and acquired in its place the status of a citizen of the State of Malta under the Constitution of Malta. When the State of Malta became the Republic of Malta on 13 December 1974, he continued to have the status of a Maltese citizen under Maltese law.
The appellant arrived in Australia on 31 July 1948. He has not since left Australia other than to visit Malta for several months between 1958 and 1959.
At the time of his arrival in Australia, the appellant had the status of a British subject under the Nationality Act 1920 (Cth) by virtue of his birth "within His Majesty's dominions and allegiance"[2]. At the commencement of the Australian Citizenship Act 1948 (Cth)[3] on 26 January 1949, the appellant had the status of a British subject under that Act by virtue of his citizenship of the United Kingdom and Colonies[4]. Cessation of that citizenship on 21 September 1964 resulted in simultaneous cessation of that status.
The appellant appears to have regained the status of a British subject under the Australian Citizenship Act on 15 January 1965[5]. From then he appears to have retained that status until abolition of that status altogether on the commencement of relevant provisions of the Australian Citizenship Amendment Act 1984 (Cth) on 1 May 1987[6].
Following a trial by jury in the Supreme Court of New South Wales, the appellant was convicted in 1993 of murder and sentenced to a term of imprisonment of 24 years.
At the commencement of relevant provisions of the Migration Legislation Amendment Act 1994 (Cth) on 1 September 1994, the appellant was taken to be granted an Absorbed Person visa under the Migration Act[7].
In 2017, by reference to the appellant's conviction in 1993, the Minister for Immigration and Border Protection made a decision to cancel his Absorbed Person visa under the Migration Act[8]. The appellant was soon afterwards taken into detention under the Migration Act. There he remains.
The initial decision to cancel the appellant's visa was set aside by consent on judicial review by the Federal Court, following which the Minister for Immigration and Border Protection immediately made another decision to cancel the visa. That further cancellation decision was upheld at first instance on judicial review by the Federal Court in 2018 but set aside on appeal to the Full Court of the Federal Court in 2019[9]. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs then immediately made yet another decision to cancel the visa. That further cancellation decision was at the time Nettle J gave judgment the subject of an undetermined application to the Federal Court for judicial review.

[11]

Since 2 April 1984[10], the Commonwealth Parliament has relied on the legislative power with respect to aliens to sustain the Migration Act. Subject to providing through s 15A of the Acts Interpretation Act 1901 (Cth) for the Migration Act to have a distributive and severable operation to the extent of any constitutional overreach[11], the Parliament has done so treating all non-citizens as aliens. And since 1 September 1994[12], it has done so creating a clear-cut distinction between lawful non-citizens, being non-citizens who hold visas permitting them to enter and remain in Australia[13], and unlawful non-citizens, being non-citizens who do not hold visas[14] and who are in consequence liable to detention and to removal from Australia[15].
In challenging his detention on the ground that he is not within the reach of the aliens power, the appellant does not seek to disturb the settled understanding that the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status[16]. Nor does the appellant seek to disturb the settled understanding that, in determining who is and who is not to have the legal status of an alien, it is in general open to the Parliament to "treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian"[17].
Seeking to build on the recognition by the majority in Love v The Commonwealth[18] of an exception in respect of a person who is an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2][19], the appellant argues for recognition of a further exception. The further exception is in respect of a person who was a natural born British subject and who commenced residing permanently in Australia before 26 January 1949. The appellant argues that the status of a non-alien attaches indelibly to a person in that category either by reason of the person having been born within the allegiance of an as yet undivided Imperial Crown or by reason of the Parliament having once and for all determined the person not to be an alien under the Nationality Act.

[12]

The answer to the appellant's argument is to be found in the reasons for judgment of the majority in Shaw v Minister for Immigration and Multicultural Affairs[20], from which the holding of the majority in Love v The Commonwealth does not depart except in respect of an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2].
The conclusion of the majority in Shaw was confined in its terms to a determination that "the aliens power has reached all those persons who entered this country after the commencement of [the Australian Citizenship Act] on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised"[21]. The reasoning employed by the majority to reach that conclusion nevertheless equally supports the conclusion that the aliens power has reached all those persons who entered this country before 26 January 1949 who did not then or did not afterwards become Australian citizens.
Essential to the reasoning of the majority in Shaw were the propositions that: (i) "[t]here never was a common law notion of 'British subject' rendered into an immutable element of 'the law of the Constitution'"[22]; (ii) the Commonwealth Parliament exercised the aliens power in establishing by the Australian Citizenship Act the status of an Australian citizen on and from 26 January 1949[23]; (iii) on and from which date persons who have not had the status of Australian citizens have been aliens, persons having the status of British subjects but not the status of Australian citizens forming a class of aliens on whom special privileges were for some time afterwards conferred[24]; and (iv) by which date the development of Australian sovereignty had been such that the constitutional term "subject of the Queen"[25] could no longer be taken to refer to a subject of an Imperial Crown but to a subject of the Crown in right of Australia, being an Australian citizen[26].
The significance of that reasoning to the status on and from 26 January 1949 of a person who entered Australia before that date and who did not on that date or afterwards become an Australian citizen is best appreciated by noting at the outset observations as early as 1906[27] and as late as 1936[28] that there was no such thing as a distinct "Australian nationality". The Nationality Act - itself an exercise of the aliens power - did no more than restate the common law[29] as replicated in the British Nationality and Status of Aliens Act[30] (which appears in relevant part to have applied in Australia by paramount force[31]) in so far as it provided that "[a]ny person born within his Majesty's dominions and allegiance" was to be deemed to be a natural born British subject[32] so as to be included within the statutory definition of British subject[33] and for that reason excluded from the statutory definition of alien[34].
Even at the time of enactment of the Nationality Act in 1920, political and demographic forces within the British Empire were fracturing the consensus reached at the Imperial Conference of 1911 that "Imperial nationality should be worldwide and uniform"[35] which had underpinned the enactment in 1914 of the British Nationality and Status of Aliens Act[36]. Following on from the Balfour Declaration of the Imperial Conference of 1926 to the effect that the United Kingdom and its Dominions were "autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations"[37], the Imperial Conference of 1930 not only agreed to the principles of the Statute of Westminster 1931 (UK), ultimately adopted by the Commonwealth Parliament in the Statute of Westminster Adoption Act 1942 (Cth), but concluded that "it is for each Member of the Commonwealth to define for itself its own nationals"[38].
On the understanding that the expression "a member of the community" of a Member of the Commonwealth of Nations was "intended to have a rather technical meaning, as denoting a person whom that Member of the Commonwealth has, either by legislative definition of its nationals or citizens or otherwise, decided to regard as 'belonging' to it, for the purposes of civil and political rights and duties, immigration, deportation, diplomatic representation, or the exercise of extra-territorial jurisdiction", the Imperial Conference of 1937 went on to resolve that it was for each Member of the Commonwealth of Nations "to decide which persons have with it that definite connection ... which would enable it to recognize them as members of its community"[39]. The resolution continued[40]:

[21]

Through the operation of s 2(2) of the Statute of Westminster as adopted by the Commonwealth Parliament in the Statute of Westminster Adoption Act, the Australian Citizenship Act would have prevailed over the British Nationality and Status of Aliens Act if and to the extent that there had been any inconsistency[45]. In the co-ordinated sequence of events that occurred, however, no inconsistency arose. The British Nationality and Status of Aliens Act was repealed in relevant part on the commencement of the British Nationality Act on 1 January 1949[46]. The Australian Citizenship Act then commenced on 26 January 1949 and on that date repealed the Nationality Act[47].
Part II of the Australian Citizenship Act provided for the status of British subject to be conferred on and from 26 January 1949 on an Australian citizen[48] as well as on a person who "by an enactment for the time being in force" in a specified country was a citizen of that country[49]. The countries specified were some (but not all) of the Members of the Commonwealth of Nations. They included "the United Kingdom and Colonies"[50], which were "deemed to constitute one country"[51]. The term "alien" was relevantly defined to mean a person who was not a British subject[52].
Part III of the Australian Citizenship Act provided for the acquisition of Australian citizenship on and from 26 January 1949 to be by birth[53], by descent[54], by registration[55] or by naturalisation[56]. On and from 26 January 1949 a citizen of a specified country who was thereby a British subject could become an Australian citizen on application through registration, generally after residing in Australia for a period of five years[57]. But an alien who was not a British subject could become an Australian citizen only through naturalisation[58].
The Australian Citizenship Act did not ignore the position of persons who had been British subjects under the Nationality Act and who had resided in Australia before 26 January 1949. Part IV was headed "Transitional Provisions".
Within Pt IV, s 24 provided:

[28]

The final sentence of that statement is as much applicable to a person who entered Australia before 26 January 1949 and who on 26 January 1949 failed to meet the criteria for the acquisition of Australian citizenship set out in s 25(1) of the Australian Citizenship Act as it is applicable to a person who entered Australia on or after 26 January 1949 and who then and thereafter failed to meet the criteria for the acquisition of Australian citizenship set out in Pt III of the Australian Citizenship Act.
The British Nationality and Status of Aliens Act having been repealed on the commencement of the British Nationality Act on 1 January 1949, the appellant's status in Australia as a British subject immediately before the commencement of the Australian Citizenship Act on 26 January 1949 was conferred solely by operation of the Nationality Act. His status in Australia as a British subject on and from 26 January 1949 was conferred solely by operation of the Australian Citizenship Act. The appellant being a person born outside Australia whose parents were not Australians, it was open to the Parliament in the exercise of the aliens power through prescription of the criteria for the conferral of Australian citizenship set out in s 25(1)(d) of the Australian Citizenship Act to deny him the status of an Australian citizen and thereby to treat him as an alien in the transition that occurred on 26 January 1949.
The appellant missed out on becoming an Australian citizen on 26 January 1949 through operation of s 25(1)(d) of the Australian Citizenship Act only because, having arrived in Australia on 31 July 1948, he had then been ordinarily resident in Australia for a period of less than five years. His position, however, was not irremediable. After he had resided in Australia for a period of five years - that is, after 31 July 1953 - it was open to him under the Australian Citizenship Act by virtue of his new citizenship of the United Kingdom and Colonies to apply to become an Australian citizen by registration. That course of action remained available to him until the provision for obtaining Australian citizenship by registration was removed from the Australian Citizenship Act at the commencement of relevant provisions of the Australian Citizenship Act 1973 (Cth) on 1 December 1973[61]. His problem is that he did not take that available course of action.
The conclusion that the appellant was and remains within the reach of the aliens power can therefore be arrived at, as in Shaw, without need to explore common law notions of allegiance and alienage[62] and without attempting to pinpoint the precise time prior to 26 January 1949 when there emerged a distinct Crown in right of Australia[63]. There is also no need to explore the position before 26 January 1949, touched on in Shaw[64], of a person not born within the dominions and allegiance of the Imperial Crown who acquired under local naturalisation legislation in one part of the British Empire the status of a British subject not recognised in other parts[65]. Even less is there need to re-examine the present position of an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2], recently examined in Love v The Commonwealth.

[29]

The appeal is to be dismissed with costs.
GORDON J. I agree with Kiefel CJ, Gageler, Keane and Gleeson JJ that, in light of the reasoning of the majority in Shaw v Minister for Immigration and Multicultural Affairs[66], this appeal must be dismissed.
While I accept that one aspect of the power in s 51(xix) of the Constitution with respect to "naturalization and aliens", as well as of the "immigration" power in s 51(xxvii), is the power to define a concept of "citizenship"[67], I remain of the view that Parliament's "power to define, for some purposes, who are members of the Australian community does not constitute a power to define the scope of the aliens power under s 51(xix)"[68]. The qualification identified by Gibbs CJ in Pochi v Macphee[69] that "Parliament cannot, simply by giving its own definition of 'alien', expand the power under s 51(xix) to include persons who could not possibly answer the description of 'aliens' in the ordinary understanding of the word" is important because "[t]o suggest that Parliament has the power, under the aliens power, to define alienage status, risks circularity - it presupposes, as the basis for validity of the law, that the people to whom the law applies are aliens within the constitutional meaning"[70].
Relatedly, citizenship is a matter that is relevant to alienage, but it is not determinative of alienage[71]. "Aliens" is a constitutional term, whereas "citizenship" is a purely statutory concept[72]. "Non‑citizen" is not a synonym for "alien"[73]. It is not the case that, on and from the commencement of the Australian Citizenship Act 1948 (Cth)[74] on 26 January 1949, all persons who have not had the status of Australian citizens have been aliens. Indeed, the majority holding in Love v The Commonwealth was to the contrary[75].
It is, however, unnecessary in this case to chart the metes and bounds of the constitutional concept of "alien". Mr Chetcuti was a "natural-born British subject" under the British Nationality and Status of Aliens Act 1914 (UK) by reason of his birth in present day Malta, "within His Majesty's dominions and allegiance"[76], and when he arrived in Australia on 31 July 1948 he had the status of a "British subject" under the Nationality Act 1920 (Cth)[77]. It is sufficient to dispose of this appeal that, in accordance with the majority's reasoning in Shaw[78], "[i]t can hardly be said that, as the relevant political facts and circumstances stood" when Mr Chetcuti arrived in Australia in 1948, persons who were British subjects born out of Australia of parents who had not been naturalised in Australia "could not possibly answer the description of aliens in the ordinary understanding of that word". The following aspects of the majority's reasoning in Shaw are both relevant and determinative.
First, "[t]he Constitution took effect at a time when 'the Crown' was said to be 'indivisible' and when the common law notion of allegiance to that 'Crown' informed the statutory use of the term 'British subject'"[79] (emphasis added). But, "[t]here never was a common law notion of 'British subject' rendered into an immutable element of 'the law of the Constitution'"[80].
Indeed, in 1900 the term "the Crown" was used in several distinct senses, including "the Crown in right of" a government when identifying the powers of the United Kingdom (the parent state) in relation to its dependencies (the newly created and evolving political units)[81]. And, in the statute establishing the Australian federation, the Imperial Parliament "unquestionably" treated Australia as a distinct entity[82]. It is apparent, albeit not explicit, that the majority in Shaw considered that the Constitution itself implicitly recognised that the notion of the "indivisible" Imperial Crown was in a state of flux at federation[83].
Second, the text of the Constitution "contemplates changes in the political and constitutional relationship between the United Kingdom and Australia" and it is, therefore, "impossible to read the legislative power with respect to 'aliens' as subject to some implicit restriction protective from its reach those who are not Australian citizens but who entered Australia as citizens of the United Kingdom and colonies under the [British Nationality Act 1948 (UK)]"[84] (emphasis added).
The majority's reference in Shaw to persons entering Australia "as citizens of the United Kingdom and colonies" reflects that Mr Shaw had that status when he entered Australia[85]; it does not mean that their Honours' reasoning is incapable of applying to a person (like Mr Chetcuti) who entered Australia in 1948, prior to the commencement of the British Nationality Act 1948 (UK), as a "British subject" under the British Nationality and Status of Aliens Act 1914 (UK). As will be explained next, this is because the British Nationality Act 1948 (UK) and the Australian Citizenship Act 1948 (Cth) did not, in and of themselves, have any transformative effect in respect of either the relationship between the United Kingdom and Australia, or the divisibility of the Imperial Crown. "The transition from Empire to Commonwealth and the emergence of Australia and other Dominions as independent sovereign nations within the Commonwealth"[86] was the result of various constitutional and political changes that took place, especially after federation.
The relevant constitutional and political changes included: the Balfour Declaration of the Imperial Conference of 1926[87]; the Statute of Westminster 1931 (UK)[88]; and negotiations between the governments of the United Kingdom and other Commonwealth countries about nationality and citizenship, which culminated in the enactment of the British Nationality Act 1948 (UK) and the Australian Citizenship Act 1948 (Cth)[89].
Those changes that had taken place by 1948, and the development and evolution of the relationship between Australia and the United Kingdom, had rendered any notion of an "indivisible" Crown obsolete[90]. As the majority said in Shaw, it is an "undoubted truth that, by 1948, the Imperial Crown, indivisible in nature, with an undivided allegiance, was no longer apparent, whether in this country or the United Kingdom"[91] (emphasis added).
Understood in light of those facts and matters, references in the Constitution to "the Queen" must be to the "office" (not to the person)[92], and the constitutional term "'subject of the Queen', with its implicit reference to notions of sovereignty, must recognise that at least by 1948 the subjects of the Queen to which reference was made were subjects of the monarch in right of Australia, not subjects of the monarch in right of the United Kingdom"[93] (emphasis added).
The British Nationality Act 1948 (UK) and the Australian Citizenship Act 1948 (Cth) put in place new arrangements which "reflected [the] significant changes in the Imperial system which had taken place since federation"[94] (emphasis added). Those Acts did not create any fundamental shift in the relationship between the United Kingdom and Australia, nor did their commencement result in the division of the Imperial Crown. And, consistent with the significant changes which had taken place by 1948, the Australian Citizenship Act 1948 (Cth) "[u]ndoubtedly, to a significant degree, ... depended upon the aliens power"[95]. The expression "British subject" was "not a constitutional expression; [but] a statutory expression"[96] in the Australian Citizenship Act 1948 (Cth). It is irrelevant that "British subjects" did not fall within the statutory definition of "alien" in s 5(1) of the Australian Citizenship Act 1948 (Cth) or within the former definition of "[a]lien" in s 5(1) of the Nationality Act 1920 (Cth). By 1948, "British subjects" were aliens in the constitutional sense; albeit a "class of aliens with special advantages in Australian law"[97].
There is no principled basis for suggesting that the Commonwealth Parliament would have lacked power to enact the Australian Citizenship Act 1948 (Cth) - which, as noted, depended "to a significant degree" upon the aliens power[98] - some months earlier than it did, with a commencement date shortly prior to Mr Chetcuti's arrival in Australia. Once that is accepted, it is difficult to see how the commencement of that Act on 26 January 1949, when combined with the significant changes which had taken place by 1948, could be characterised as transforming the constitutional status of British subjects. In truth, as the majority in Shaw recognised[99], the necessary transformation had already taken place.
For these reasons, Mr Chetcuti, like Mr Shaw, arrived in Australia as an "alien" in the constitutional sense and he has not lost that status by reason of his subsequent personal history in Australia[100]. He did not acquire Australian citizenship automatically under s 25(1) of the Australian Citizenship Act 1948 (Cth) and he did not subsequently apply to become an Australian citizen by registration under s 12(1) of that Act by reason of his citizenship of the United Kingdom and Colonies.
It is unnecessary to determine in this case, and the majority in Shaw did not address, whether all persons born outside of Australia of parents who had not been naturalised in Australia, who had entered Australia before 26 January 1949 and who, on that date, did not meet the criteria for the acquisition of Australian citizenship in s 25(1) of the Australian Citizenship Act 1948 (Cth) are "aliens". Indeed, the majority in Shaw focussed on the constitutional and political changes that had taken place by 1948[101], being changes to which reference has just been made, and their ultimate conclusion was confined to dealing with persons "who entered this country after ... 26 January 1949"[102] (emphasis added). Neither Shaw nor this appeal addressed any larger question.

[30]

Mr Chetcuti was born on 8 August 1945. He arrived in Australia on 31 July 1948 from his birthplace in Malta. He arrived as a British subject. Apart from spending approximately eight months in Malta as a teenager, he has remained in Australia for 73 years. He has voted in local, State, and federal elections. He was registered in the birthday ballot for compulsory military service during the Vietnam war. He was employed for seven years as a teacher by the New South Wales Education Department. And he has spent 24 years in an Australian prison for murder.
In 2017, as a result of his conviction and sentence of imprisonment in 1993, the Minister for Immigration and Border Protection purported to cancel Mr Chetcuti's Absorbed Person visa under s 501 of the Migration Act 1958 (Cth), following which Mr Chetcuti was detained in immigration detention under s 189 of the Migration Act pending removal to Malta. In his claim before the primary judge in this Court, Mr Chetcuti sought relief including a declaration that his detention was unlawful, a declaration that he is not an alien within s 51(xix) of the Constitution, and damages for false imprisonment. The primary judge rejected Mr Chetcuti's claim. This appeal concerns whether Mr Chetcuti falls within the scope of the constitutional meaning of "alien" in s 51(xix) of the Constitution and therefore whether he is within the application of the Migration Act such that he can lawfully be detained or removed from Australia. Mr Chetcuti submits that (i) he arrived in Australia as a British subject outside the constitutional conception of alien and (ii) his non‑alien status continued as he became a subject of the Queen of Australia upon the bifurcation of the Crown, in effect rendering his status almost indelible so that, absent renunciation, he could never fall within the meaning of an "alien" in s 51(xix).
The unchanging, essential meaning of an "alien" in s 51(xix) of the Constitution is a foreigner to the Australian political community. But the application of this meaning, like the application of the meaning of all constitutional terms, can change over time. The application can be affected by changes in political and social facts and circumstances. Based on the political and social facts and circumstances of 1948, there is some force in the first aspect of Mr Chetcuti's submission. In 1948, when Mr Chetcuti arrived in Australia as a British subject, no legislation existed recognising Australian citizenship. The Nationality Act 1920 (Cth) defined an "alien" as "a person who is not a British subject"[103]. At that time, many Australians may have been surprised by a suggestion, consistently with one of the Commonwealth's submissions, that the Commonwealth had power to treat a British subject as an alien, particularly where the British subject: was living in Australia; was eligible for a passport; and, when old enough, was eligible to vote in Australian elections, to be elected to the Commonwealth Parliament, and to be conscripted to fight wars.
There is less force in the second aspect of Mr Chetcuti's submission, which requires consideration of the application of the constitutional meaning of "alien" according to the political and social facts and circumstances since 2017. In Pochi v Macphee[104], this Court rejected the notion that an alien could become a non‑alien by absorption into the Australian community. That conclusion was not challenged on this appeal, so matters such as the length of Mr Chetcuti's stay in Australia and the strength of any of his general bonds to the community must be put to one side. That leaves for consideration Mr Chetcuti's submission that, in the application of the constitutional meaning of "alien" since 2017, the Commonwealth Parliament has no power to treat him as an alien even though: he is a Maltese citizen; he has never been a citizen of Australia; he was not born in Australia; and he does not have Australian parents.
This Court has previously been confronted with cases where the parties' submissions raised the two issues of (i) a person's status upon arrival in Australia and (ii) that person's status as at a relevant later time. In Sue v Hill[105], a majority of this Court decided the case on the basis that whatever the status of Ms Hill was when she migrated to Australia from the United Kingdom in 1971, as at the time of her nomination for election as a senator for the State of Queensland on 4 September 1998 her British citizenship meant that she was a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution. By contrast, in Shaw v Minister for Immigration and Multicultural Affairs[106], a majority of this Court decided the case on the basis that when Mr Shaw arrived in Australia as a British subject on 17 July 1974 he fell within the scope of the aliens power in s 51(xix) of the Constitution, which extended at least to people who had entered Australia on or after 26 January 1949 and who were born outside of Australia to parents who were not Australian citizens. There was no suggestion that any change in political or social facts or circumstances since 17 July 1974 had removed Mr Shaw from the scope of the aliens power.
In the present appeal, the only question that needs to be decided is whether Mr Chetcuti was a constitutional alien at the time at which he is said to fall within the application of the Migration Act. Whatever his status might have been almost seven decades earlier upon his arrival in Australia, that status was not cryogenically frozen and impervious to the application of the Constitution to new political and social facts and circumstances. In light of the many changes in political and social facts and circumstances since 31 July 1948, the contemporary application of the aliens power in s 51(xix) of the Constitution leads to the conclusion that Mr Chetcuti was within the scope of the aliens power at least from 2017.

[36]

The meaning of "alien" in s 51(xix) does not correspond precisely with the concepts of either (i) non-subjecthood or non‑allegiance or (ii) non‑citizenship. To set the meaning by reference to either non‑allegiance or non-citizenship would be to ascribe too narrow a scope for the evolution of application of that constitutional term. It is necessary to reiterate why "alien" was not, and is not, the simple antonym of either (i) a person who, as a subject, owes allegiance to the relevant sovereign or (ii) a person who is an Australian citizen.
One stable, but overly narrow, essential meaning of "alien" might have been that taken by Quick and Garran, who asserted in 1901 that an alien was "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"[119]. On that approach, every British subject, born in a Dominion, who did not owe a foreign allegiance, was a non‑alien. Similarly, in his dissenting judgment in Singh v The Commonwealth[120], McHugh J said that "the essential meaning - the connotation - of the term 'alien' was a person who did not owe permanent allegiance to the Crown". That essential meaning should not be adopted. To ascribe to the term "alien" the essential meaning of "non‑subject" or, at an even greater level of specificity, "non‑subject of the Queen" or "person not owing permanent allegiance to the Crown", would be to define the term at too great a level of specificity. Norms concerning subjecthood and allegiance were in a state of flux at the time of Federation, particularly due to the Royal Commission in 1868[121]. As the joint judgment in Shaw said, "[t]here never was a common law notion of 'British subject' rendered into an immutable element of 'the law of the Constitution'"[122].
The early understandings of how "alien" would be applied, and the early applications by this Court, were inconsistent with such an essential meaning that equated "alien" merely with a person not owing permanent allegiance to the Crown. Those applications in the Convention debates and in early decisions of this Court were underpinned by the very slippery, perhaps incoherent, notion of race even of persons who owed permanent allegiance to the Crown[123]. Hence, in Shaw, Heydon J, a member of the majority, observed that "[i]t is not in fact self‑evident that from 1 January 1901 all British subjects were not aliens, and inquiry into a subsequent date on which, or process by which, they became aliens tends to proceed on a false footing so far as it excludes the possibility that on 1 January 1901 some of them were aliens"[124].
An example of the way in which the slippery, possibly incoherent, notion of race underpinned this Court's understanding of the concept of alienage is the decision in Robtelmes v Brenan[125]. The question before the Court was whether any head of power, including s 51(xix), of the Constitution supported s 8 of the Pacific Island Labourers Act 1901 (Cth), which permitted the deportation from Australia of all Pacific Island labourers whose employment had concluded. Griffith CJ said of Pacific Islanders, including the appellant in that case, that "[t]hey are aliens; that is indisputable"[126]. Barton J also said that it was "undeniable" that the aliens power extended to deporting Pacific Islanders[127]. And O'Connor J began his judgment by comparing the exclusion of Pacific Islanders with the exclusion of those who were ethnically Chinese as aliens, in each case without regard to whether they were British subjects[128]. This decision was reached by application of the concept of alienage through a racial lens, irrespective of considerations of British subjecthood. As Dr Prince observed of the racially based approach taken by this Court[129], many Pacific Islanders were British subjects, including Torres Strait Islanders, those from British colonies such as Fiji and, after 1888, British New Guinea. And many others came from British protectorates such as the Solomon Islands and the Gilbert Islands or had been born in Queensland or married British subjects.
Although British subjecthood, embodying allegiance to the Queen, did not control the meaning of the term "alien" in s 51(xix), that concept nevertheless had a substantial effect on the early application of the meaning of "alien" as a person who is a foreigner to the Australian political community. The effect of allegiance on the application of the meaning of "alien" began to fade after the commencement of the Nationality and Citizenship Act 1948 (Cth) ("the 1949 Act")[130]. As I explained in Love v The Commonwealth[131] by reference to the observations of Professor Parry, the 1949 Act was said to have had the effect that the concept of allegiance was "altogether swept away, together with all other rules of the common law respecting nationality".
Any suggestion that the essential meaning of "alien" is "non‑citizen" has far less to commend it. In 1902, Salmond wrote that "[t]here are citizens in France and in the United States of America, but the law and language of England know of subjects only"[132]. The founders of the Constitution had also consciously rejected any constitutional notions of citizenship, in part because of the uncertainty of that concept[133]. As Barton explained, "'[c]itizens' is an undefined term, and is not known to the Constitution"[134]. Although, as explained below, norms of citizenship can have a strong effect on the application of the meaning of an "alien", to re‑define the essential meaning of "alien" as "non-citizen" would effectively be a judicial amendment to the Constitution. It would also be contrary to basic constitutional principle.
In Love v The Commonwealth[135], multiple members of this Court acknowledged the existence of a constitutional limit upon the extent to which Parliament could affect the meaning of "alien" by legislation. This limit, which Gibbs CJ (with whom Mason and Wilson JJ agreed) had earlier regarded as clear in Pochi v Macphee[136] and which many other members of this Court have reiterated[137], was that the Commonwealth Parliament cannot "simply by giving its own definition of 'alien', expand the power under s 51(xix) to include persons who could not possibly answer the description of 'aliens' in the ordinary understanding of the word". Whether such Commonwealth legislation involves a definition of "alien" or a definition of "citizen", the limit ensures that it is for the judiciary, and not for Parliament, to provide the final interpretation and application of the meaning of the Constitution. This is the principle of law recognised in Marbury v Madison[138] that is deeply embedded in the foundations of the Constitution.
In Love v The Commonwealth[139], as in this case, the Solicitor‑General of the Commonwealth gave an example of a person who, whatever their status under statutory citizenship laws, would be beyond the aliens power due to the strength of that person's connection with the Australian political community. His example, which should be accepted as correct, is a person born in Australia, to two parents who are Australian citizens, who is not a citizen of another country, and who has not renounced their allegiance to Australia. Another example, recognised by a majority of this Court in Love v The Commonwealth, is Aboriginal Australians.
In Pochi v Macphee, Gibbs CJ considered that the limit on Parliament's ability to legislate over aliens would not be exceeded if Parliament treated as an alien a person who was born outside Australia, to parents who were not "Australians", and who had not been naturalised as an "Australian"[140]. The Chief Justice was not considering the position of Aboriginal Australians. Rather, his point, correctly made, was that the meaning of a constitutional term is not dictated by the fluctuating content of legislation on a related subject.
Even putting to one side the error in defining the essential meaning of a constitutional term ("alien") by reference to a notion that (i) at best, was little understood and was evolving at Federation and (ii) conflates constitutional meaning with an exercise of legislative power (ie the statutory rules governing persons who are eligible to be citizens), there is a degree of circularity in treating a constitutional power to legislate over aliens as co-extensive with, and defined by, a power to legislate over anyone who is not a citizen. The power to legislate over citizens is itself derived "to a significant degree"[141] from the constitutional power with respect to aliens[142]. Hence, the Commonwealth Parliament could not recite itself into power by using the Australian Citizenship Act 2007 (Cth) to deny citizenship to "every Aboriginal Australian ... or ... every descendant of Australians of Chinese (or other) ethnicity"[143] and thereby acquire power over these groups under the aliens power. Nor is the grant of statutory citizenship a constitutional ratchet so that, unless a person renounces their citizenship, the grant under statute of citizenship becomes irrevocable, taking the person beyond the power over naturalisation and aliens. In short, the meaning of "alien" in the Constitution is not, and has never been, "any person who has not received Australian citizenship". Instead, the constitutional meaning requires a "search ... for the essential character of the constitutional idea of alienage"[144]. That essential character is absence of membership of the Australian political community.

[38]

Although neither non‑allegiance nor non‑citizenship is part of the essential meaning of "alien" and hence neither can dictate whether or not a person can be treated as falling outside the membership of the Australian political community, the scope of application of the aliens power over time has been heavily influenced by the concept of allegiance and, later, the concept of citizenship, particularly a person's place of birth (ius soli) and the citizenship of a person's parents (ius sanguinis)[145]. The aliens power is also a partial source for the power to create statutory citizenship, which, in turn, assists to define the membership of the Australian political community.
At the time of Federation, the concepts of allegiance and subjecthood were powerful factors in the application of whether a person was a member of the Australian political community, notwithstanding that the concept of allegiance was complicated by a strong racial lens through which it was initially understood and applied. On this appeal, Mr Chetcuti relied heavily upon the concept of allegiance to assert that since he had arrived in Australia as a British subject with an allegiance to the Crown, and since (as he claimed) the Crown had not yet divided, he could not have been an alien when he arrived in Australia. The submissions of the parties therefore attempted to identify a point in time at which Australia achieved independence from the United Kingdom. These reasons follow the approach of the parties, but three points should be emphasised.
First, there is no magic date when independence was suddenly achieved by Australia. The move towards independence had a slow and incremental character. It is an example of "the gradualness, the extreme gradualness, of inevitability"[146]. Secondly, although the relevant date in Shaw was said to be at the latest 26 January 1949, it is arguable that the Crown had divided earlier, so that by the time Mr Chetcuti arrived in Australia on 31 July 1948 he arrived as a British subject to a country where the sovereign had separate identity in relation to Australia. But the further back that a date on which Australian independence, and the division of the Crown, is said to have occurred, the more care must be taken that history is not being revised contrary to the political and social facts and circumstances at the time. Thirdly, and in any event, allegiance was only a factor in the application of the meaning of "alien". The factors governing the application of constitutional meaning can change over time. From 26 January 1949, the factor of allegiance began to be overtaken by a focus on citizenship.

[40]

There is no magic date when, like Cinderella at midnight, all British subjects who had no other connection to Australia which was capable of taking them outside s 51(xix) suddenly became capable of being treated as aliens in Australia. Rather, the process of Australian independence from the United Kingdom, as the special case before the primary judge pointed out in painstaking detail, involved incremental development marked by a number of significant political and legal steps following Federation in 1901.
The incremental development was, in large part, political. In 1917, a constitutional resolution at the Imperial War Conference recognised that readjustment of the constitutional recognition of the different parts of the British Empire should be based upon "a full recognition of the Dominions as autonomous nations of an Imperial Commonwealth". On 30 July 1918, the Imperial War Cabinet resolved that the Prime Ministers of the Dominions "have the right of direct communication with the Prime Minister of the United Kingdom and vice versa". That resolution was described the same year by Pollock as the beginning of "the building" of a new constitution which would treat the Dominions as "partners on an equal footing"[147]. Following the Treaty of Versailles, Viscount Grey described the "self-governing Dominions" as "free communities, independent as regards all their own affairs, and partners in those that concern the Empire at large"[148]. At the Imperial Conference of 1930 it was resolved that the King would act in appointing a Governor-General of a Dominion by advice of his Ministers in the Dominion concerned. In 1931, when Sir Isaac Isaacs was appointed as the Governor‑General of Australia under s 2 of the Constitution, the appointment was therefore made by the King on the advice of his Australian Ministers.
Part of this political evolution was the gradual recognition of the division of the Crown with respect to the Commonwealth of Australia[149]. On 28 June 1919, the Treaty of Versailles was signed on behalf of the British Empire but also contained indented signatures for the Dominions, including a signature for the Commonwealth of Australia by the Prime Minister and Minister for the Navy. In 1926, the Balfour Declaration declared the Dominions to be "autonomous Communities within the British Empire, equal in status, in no way subordinate one to another ... though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations"[150]. Other aspects of the Balfour Declaration were less clear in their recognition of Australian independence[151]. It might be said that, although the Balfour Declaration was the "declaration of independence" of the Dominions, the Imperial Conference "recognised that this principle was still not reflected in reality"[152]. At that time there also remained strongly held views of the unity of the Crown[153]. However, the recognition of Her Majesty as the Queen of Australia in the Royal Style and Titles Act 1973 (Cth)[154] was a formal recognition of a division of the Crown in relation to Great Britain and the Commonwealth of Australia[155].
Despite these large strides in political theory towards Australian independence, there was still a substantial degree of practical integration between Australia and the United Kingdom at the time that the 1949 Act came into effect on 26 January 1949. Immediately prior to that date, there was no statutory concept of an Australian citizen. At that time, Australian passports could be issued to British subjects[156] and a relevant qualification for election to the House of Representatives was that the person "must be a subject of the King, either natural born or for at least five years naturalized under a law of the United Kingdom or of the Commonwealth"[157]. Even after 26 January 1949, when statutory qualifications for election were amended on 22 April 1949, this requirement was replaced with a requirement that the person "must be a British subject"[158]. And the issue of Australian passports remained possible for British subjects who were not Australian citizens[159].
Further, although Australia might in theory have had the power to make a declaration of war[160], on 3 September 1939 Prime Minister Menzies announced that Great Britain was at war with Germany and that "as a result, Australia is also at war". On the other hand, on 9 December 1941 Prime Minister Curtin independently announced that Australia had declared war against the Japanese Empire following accession by the King the previous day to the Prime Minister's request for assignment to the Governor‑General of the power to declare and proclaim a state of war between the Commonwealth of Australia and Finland, Hungary, Rumania, and the Japanese Empire[161].
Apart from the legislation already discussed, the incremental development of Australian sovereignty over this period also included: the Nationality Act 1920 (Cth); the Commonwealth Public Service Act 1922 (Cth); the Statute of Westminster 1931 (UK); and the Aliens Deportation Act 1946 (Cth). These legislative steps to complete independence were arguably not wholly concluded until the passage of the Australia Acts 1986 (Cth and UK). But a significant legislative step, which was the focus of this appeal, was the enactment of the 1949 Act.

[41]

As explained earlier in these reasons, in Shaw a majority of this Court held that British subjects who entered Australia as citizens of the United Kingdom and colonies after the 1949 Act took effect, and who had not fulfilled the criteria to be Australian citizens, were capable of being treated as falling within s 51(xix) as aliens to the Australian community. No party challenged that conclusion, although Mr Chetcuti submitted that the date could not be pushed further back from 26 January 1949 to the date of his arrival on 31 July 1948.
The genesis of the 1949 Act was the British Commonwealth Conference on Nationality and Citizenship in February 1947, which itself had followed consideration in 1945 of the creation of Australian citizenship and the creation of Canadian citizenship in 1946[162]. The Report of that conference recorded the general view of the conference that it would be desirable to adopt a scheme of legislation which combined two matters: first, the ability of each country to determine who are its citizens; and secondly, the maintenance of the common status of British subjects throughout the Commonwealth by recognition of the citizens of particular countries of the Commonwealth as British subjects[163]. Most Commonwealth countries subsequently adopted this model in domestic legislation.
Consistently with this model, the 1949 Act created the new concept of an Australian citizen, with citizenship broadly arising from categories of birth, descent, registration, and naturalisation[164], and with Australian citizenship being lost in circumstances including the acquisition of foreign citizenship[165]. There were express assurances in the second reading speech of the 1949 Act that British subjects would "continue to be free from the disabilities and restrictions that apply to aliens"[166]. Section 5(1) of the 1949 Act defined an alien as a "person who is not a British subject, an Irish citizen or a protected person". By s 7, which was common to the model applied by most Commonwealth countries that adopted the model[167], a person was a British subject if the person was an Australian citizen or, by an enactment in a relevant country, was a citizen of that country. The relevant countries were: the United Kingdom and colonies, Canada, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia, and Ceylon[168].
The 1949 Act contained a transitional provision, s 25, which, subject to an exception not presently relevant, conferred Australian citizenship on all British subjects who: (i) were born in Australia and would have been an Australian citizen under s 10 at the time of birth if that section had been in force; (ii) were born in New Guinea; (iii) were naturalised in Australia; or (iv) had been, immediately prior to the date of commencement of the 1949 Act, ordinarily resident in Australia or New Guinea (or partly resident in both), for a period of at least five years.
The gap in the transitional provision meant that not all British subjects became Australian citizens. In broad terms, the new Australian citizenship was not automatically conferred upon British subjects who had migrated to Australia less than five years before 26 January 1949. Those persons could become Australian citizens only by registration, subject to conditions including at least five years of residence in Australia[169]. British subjects could not be naturalised. Naturalisation was reserved for aliens or protected persons[170].
Despite the gap in the transitional provision, and consistently with the intention of the 1949 Act that British subjects would continue to be free from the restrictions that applied to aliens, those British subjects who were not Australian citizens could still be issued with Australian passports[171]. Indeed, approximately a decade after the 1949 Act, the legislation was still seen as not having had the effect of making any British subject an alien. As Professor Parry observed in 1957 of the s 7 common clause[172]:

[45]

It can be accepted that from 26 January 1949 the relevant political and social facts and circumstances meant that, without other factors to take them outside s 51(xix), all British subjects were capable of being treated as aliens within s 51(xix) of the Constitution. But as this date is pushed back further - the Commonwealth's alternative submissions being 1942, 1931, 1926, or 1901 - there is a corresponding increase in the likelihood of this Court retrospectively revising the historical political and social facts and circumstances that determined those who fell outside the conception of an alien at the time in question.
The notion of an Australian political community existed long before statutory citizenship came into existence in 1949. It is in this sense of an independent Australian political community that, from the time of Federation and long before the concept of Australian citizenship had been legislated, members of this Court spoke loosely of "Australian citizens"[175] to describe what Isaacs J called "the community known as the Australian people"[176]. In the early years after Federation, that conception was one that was strongly associated with British subjecthood and was not generally distinguished from it, albeit that the membership of the Australian political community was sometimes applied through a racial lens. This Court said in 1906 that it was not "disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality"[177]. But in 1929 it was observed in the Report of the Conference on the Operation of Dominion Legislation that the common status as a British subject "is in no way inconsistent with the recognition within and without the Commonwealth of the distinct nationality possessed by the nationals of the individual states of the British Commonwealth"[178]. And, as discussed above, from the time that the 1949 Act took effect the relevance of British nationality and the concept of allegiance were, at least, in steep decline.
In the early stages of the inexorable progression towards Australian independence from the United Kingdom, and whether or not through the racial lens with which the Australian political community was often seen at that time, it would have been thought absurd to suggest that all British subjects could be treated as foreigners to the Australian political community; that is, as aliens within s 51(xix) of the Constitution. But it is unnecessary in this case to ask how much earlier than 26 January 1949, if at all, a British subject could be treated by the Commonwealth Parliament as an alien within s 51(xix). The reason it is unnecessary to ask that question in this case, and the reason it may be unnecessary to ask it in any other case, lies in the difference between essential constitutional meaning and its application, to which reference was made earlier in these reasons. The essential meaning of "alien" in s 51(xix) is a foreigner to the Australian political community. The application of that essential meaning will depend upon the relevant facts and circumstances that exist at the time of application; here, the time of application being the point at which Mr Chetcuti was detained under s 189 of the Migration Act following the cancellation of his visa in 2017.
There is no person whose constitutional status with respect to alienage is immune from any change in facts and circumstances and is therefore indelible. Even a person who today is outside the application of s 51(xix), such as an Aboriginal Australian or a person born in Australia to two Australian citizen parents, might tomorrow be within the application of that power. In the former example, a person might cease to identify or be recognised as an Aboriginal Australian. In the latter example, the person might renounce their Australian citizenship conferred by statute[179] and accept foreign citizenship, thereby ending their membership of the Australian political community.
This point is equally true of other changes in political and social facts and circumstances. The circumstance that at some time before 26 January 1949 at least some British subjects were incapable of being treated as aliens within s 51(xix) is not immutable. Allegiance had ceased to be understood as indelible shortly before Australian Federation[180]. The essence of the reasoning of the majority in Shaw was therefore as follows[181]:

[59]

Mr Chetcuti was born in Malta in 1945. He arrived in Australia, before 26 January 1949, on 31 July 1948. Until it obtained independence in 1964, Malta was a British colony[200]. Its people had only recently received the George Cross for their gallantry during the Second World War. Mr Chetcuti was thus a British subject[201]. He was also not an "alien" when he arrived in Australia for the purposes of the Nationality Act 1920 (Cth) or the Aliens Act 1947 (Cth). Pursuant to the former Act, an "alien" was defined to be "a person who is not a British subject"; a "British subject" was, amongst other things, defined to mean "a person who is a natural‑born British subject"[202]. The definition of "alien" in the latter Act also excluded British subjects[203]. As properly conceded by the Solicitor‑General of the Commonwealth, upon arrival in Australia Mr Chetcuti was, under Australian law, the same "British subject" as a person who had been born in this country.
On 30 July 1948, the day before Mr Chetcuti's arrival in Australia, the Imperial Parliament passed the British Nationality Act 1948 (UK). When that Act took legal effect, on 1 January 1949, Mr Chetcuti also became a citizen of the United Kingdom. Shortly thereafter, the 1948 Citizenship Act came into effect. That Act also defined the word "alien" as, amongst other things, "a person who is not a British subject"[204]. By s 7(1), a person who, under the 1948 Citizenship Act, was an Australian citizen was also "by virtue of that citizenship ... a British subject". In addition, pursuant to ss 7(2) and 8(1), persons who were citizens of the "United Kingdom and Colonies, Canada, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon" and Ireland[205], were also, by reason of their citizenship, British subjects. The purpose of this arrangement is explained below.
In 1964, Mr Chetcuti automatically became a citizen of Malta[206]. He never became an Australian citizen, but in 1994 Mr Chetcuti was "taken to have been granted an absorbed person visa"[207]. In 2019, his absorbed person visa was cancelled pursuant to s 501 of the Migration Act 1958 (Cth)[208]. The issue for determination is whether he is an "alien" for the purposes of the Constitution and therefore subject to Div 8 of Pt 2 of the Migration Act. If he is an "alien", he may be removed to Malta as an unlawful non-citizen pursuant to s 198 of that Act, provided that his removal is otherwise lawful.
Whilst the 1948 Citizenship Act categorised Mr Chetcuti as a "British subject", and accorded him certain rights and privileges as such, he was, and otherwise remained, a British subject because he was a natural‑born British subject[209]. That status, as described in Nolan[210], did not depend upon any Act of the Federal or Imperial Parliament.
In the years that immediately followed the enactment of the 1948 Citizenship Act, those British subjects in Australia who were not Australian citizens, as in the case of Mr Chetcuti, were: eligible to vote[211], eligible to sit as members of the House of Representatives or in the Senate[212], eligible to become public servants[213], required to register for national service from 1951[214], and eligible to be issued with an Australian passport[215]. Prior to 1976, a person's nationality was recorded in the census as either "British" or "foreign"[216]. It is not wholly accurate to describe those attributes merely as "special advantages" conferred on a "class of aliens"[217]; rather, for the reasons set out below, those attributes reflected the status, as an historical fact, of British subjects who had arrived in Australia before 26 January 1949 and for a period of time after.
Two issues arise for consideration. First, had the sovereign power of the United Kingdom and Australia already divided when Mr Chetcuti arrived in 1948? In other words, had Australia become an independent sovereign nation before 26 January 1949? Secondly, if it had not, when that division took place subsequently, did Mr Chetcuti then become an alien? The learned primary judge answered the first question by concluding that Australia became an independent sovereign nation, with its own King, when the Commonwealth Parliament enacted, in 1942, the Statute of Westminster Adoption Act 1942 (Cth)[218]. On that basis, it followed that Mr Chetcuti, who was born in Malta in 1945, and thus was a British subject owing allegiance to the Crown in right of the United Kingdom as opposed to the Crown in right of Australia, had arrived in Australia as an alien[219].

[62]

In 1944, four years before Mr Chetcuti's arrival in Australia and subject to adoption of the Statute of Westminster 1931 (UK) (as to which, see below), nothing again would appear to have changed. In Minister for Works (WA) v Gulson, Rich J observed that "[i]t has been decided by the highest authority that, in constitutional theory, the Crown is one and indivisible"[226]. His Honour referenced an earlier advice of the Privy Council in Williams v Howarth[227]. That case concerned an action by a soldier of the second New South Wales contingent, who had served in the Boer War, to recover 10 shillings per day said to be owed to him by the New South Wales Government (he had otherwise been paid his 10 shillings in part from that Government and in part in the form of "Imperial pay"; the soldier claimed, however, that the latter payment did not discharge New South Wales' obligation). The Lord Chancellor refused recovery and said it did not matter whether the soldier had been paid by the colony or the "Mother Country"[228] since his employer was the Crown. His Lordship said[229]: "[t]he Government in relation to this contract is the King himself. The soldier is his soldier".
Williams J was also of the view in Gulson that the Crown is "one and indivisible throughout the Empire"[230]. It follows that in 1944, it could not be said that there was a separate King in right of Australia[231].
The foregoing is consistent, by way of illustration only, with the service by Australian men and women in the British Army, Royal Air Force and Royal Navy during the Second World War. Flight Lieutenant Les Knight, born in Camberwell in the State of Victoria and an officer in the Royal Australian Air Force, did not serve a King different from that of his fellow members of the British "Dambusters" squadron, when he flew his Royal Air Force Lancaster aircraft to breach the Eder Dam. The same might be said of his fellow squadron member, "Micky" Martin from New South Wales. At that time, they both, together with the other members of their famous squadron, served, like the Boer War veteran in Howarth, the same King.
The Commonwealth relied upon certain documents relating to the declaration of war by Australia upon Finland, Hungary, Rumania and the Japanese Empire in 1941 and 1942. The documents showed that King George VI, acting on the advice of the Federal Executive Council, assigned to the Governor‑General of the Commonwealth of Australia, by means of Royal Instruments, the power to declare and proclaim war against those countries[232]. The Commonwealth also relied upon minutes of a meeting of the Australian War Cabinet held on 8 December 1941, which resolved that the "situation" at that time involved a state of war against Japan. That "situation" included Japanese attacks against Malaya, Hawaii and the Philippines[233].
These documents support the continuing emergence of the Commonwealth of Australia as a fully independent sovereign power. But they do not justify the conclusion that during the war the Imperial Crown transformed itself into the Crown in right of Australia. The Commonwealth Gazette, which published the Royal Instruments, described the Style and Titles of King George VI as follows[234]:

[65]

Nothing took place after 1944, and prior to the enactment and coming into effect of the 1948 Citizenship Act, that led to a divisible Crown. The materials before the Court demonstrate that the 1948 Citizenship Act was the product of a British Commonwealth Conference on Nationality and Citizenship, which took place in London in 1947. Australian representatives attended this Conference, together with representatives of the other British Dominions and the United Kingdom.
The minutes of the first meeting record that the peoples of these countries belonged "not only to their own country, but also to the wider association of countries comprising the Commonwealth"[237]. This had led to the adoption by most of the British Dominions of "the principle of the common status"[238]. Under this principle, "every person recognised by the law of one [British Dominion] as belonging to the Commonwealth should be so recognised by the laws of all the [British Dominions]"[239]. In the past, this had been achieved by each country enacting a "common code" which defined the class of person, or persons, "who had the common status"[240].
The "common code" had been created by the British Nationality and Status of Aliens Act 1914 (UK)[241]. Amongst other things, that Act defined a natural‑born British subject to be "[a]ny person born within His Majesty's dominions and allegiance"[242]. However, this "common code" practice was considered by the Conference members to have the disadvantage that if one British Dominion wished to make a change to its nationality laws, it was obliged to consult with the other Commonwealth countries[243]. This inconvenience, it was thought, might lead to "unilateral action" that would impair "the common code and possibly ... the common status"[244].
A solution was proposed, inspired by the passing of Canada's Canadian Citizenship Act 1946 (Can)[245]. Under that Act, as understood by the Conference members, the qualifications for being a Canadian citizen were first defined, and then it was provided that each such citizen was also to have the "common status" of being a British subject[246]. The Conference members proposed that all self‑governing countries of the Commonwealth enact similar legislation[247]. A subsequent report prepared by the Conference thus recommended the following "system"[248]:

[70]

Agreeing to a change in the "common code" at the Conference held in 1947 did not have the effect of transforming the Imperial Crown into a divided Crown. That is because, whilst the Conference recommended that each British Dominion should create its own rules for citizenship, it was also agreed to continue with the principle of "common status". In that respect, it was recommended that each British Dominion pass a law whereby citizenship in that Dominion conferred upon a person the status of British subject[251]. The adoption of the Canadian scheme was not intended to divide the Commonwealth and Empire or the Imperial Crown; rather it was to avoid, as described above, a particular disadvantage found in the old "common code". Citizens of each British Dominion otherwise expressly retained their status as British subjects.
Another relevant event was the enactment of the Royal Style and Titles Act (Australia) 1947 (Cth). Pursuant to that Act, the Parliament of the Commonwealth assented to the omission from the Royal Style and Titles of the words "Indiae Imperator" and "Emperor of India"[252]. Seeking in this way the assent of the Federal Parliament was another step towards the emergence of the Crown in right of Australia. But in 1947, the Royal Style and Titles still did not refer to Australia. The first reference to Australia only appeared in 1953[253]. The reference to the United Kingdom in the Royal Style and Titles was only deleted in 1973[254].
With very great respect to the learned primary judge, it should not be accepted that the Imperial Crown was transformed, relevantly into the Crown in right of Australia, from the enactment of the Statute of Westminster Adoption Act in 1942. It may be accepted that Australia's adoption of the Statute of Westminster was a pivotal step towards Australia's independence; but it was not the step that completed that process. The preamble to the Statute of Westminster affirms that the British Dominions remained "united by a common allegiance to the Crown"[255]. The Statute of Westminster legally affirmed what probably already existed (due to the forbearance of the Imperial Parliament), namely, the relationship of equality that existed as between each British Dominion Parliament and the Parliament at Westminster. But, critically, it did not alter the constitutional relationship between each British Dominion and the Crown. That relationship was expressed to be one of "common allegiance"[256]. That quality of commonality is not consistent with a divided Crown; indeed, it is entirely inconsistent with it.
Similar expressions of unity may be found in the Balfour Declaration of the Imperial Conference of 1926[257]. Again, the purpose of the Balfour Declaration was to acknowledge the equality in status and power of certain of the British Dominions, including Australia. But that Declaration in no way authorised, recognised or established that the Imperial Crown was a divided monarchy in 1926. On the contrary, the Declaration expressly recognised the continuation of a "united" allegiance to the Crown by all British subjects throughout the United Kingdom and the British Dominions[258]. For example, the Imperial Conference included a "message" to the King and Queen, which expressed the hope that their Majesties "may long be spared to strengthen the ties of affection and devotion which unite the peoples of the British Commonwealth under the Crown"[259]. Under the heading "STATUS OF GREAT BRITAIN AND THE DOMINIONS", the British Dominions are described in the Balfour Declaration in the following way[260]:

[77]

In Nolan, the emergence of the Crown in right of Australia was described as a "truism"[270] arising from the change in relations between Australia and the United Kingdom. Australia's independence as a sovereign power was not the product of any one specific legislative change; nor was it the product of any declaration or international meeting. Rather, it was a gradual process comprising political and cultural changes that the law over time, and following these changes, came to recognise as fulfilled. The most important political change was the decision of the Imperial Parliament to cease to pass laws concerning any of the Empire's Dominions. Other changes included the entry into the Washington Naval Treaty[271] in 1922 and the fall of Singapore in 1942. Legal recognition of Australia's emerging independence then appeared from, amongst other things, the Balfour Declaration, the Statute of Westminster Adoption Act and the 1948 Citizenship Act. Critically, the process of independence did not call for, or depend upon, any positive act, or assent, on the part of the Australian people. It was, as McHugh J has described, a "mystical process"[272].
Nonetheless, as already mentioned, the plurality in Shaw drew a bright line by selecting 26 January 1949 as the date by which the Imperial Crown relevantly divided. That bright line is a necessary and convenient constitutional fiction which should not now be disturbed. In that respect, the correctness of the decision in Shaw (as distinct from some of the plurality's reasoning) was not challenged by Mr Chetcuti. It follows that it may be accepted, for the disposition of this appeal, that British subjects who arrived in Australia after 26 January 1949 did so as aliens in the constitutional sense. As it happens, nothing here turns upon whether the time at which the Crown divided was in 1949, or some later date[273]. All that matters is that the division took place at some point after Mr Chetcuti's arrival in Australia.
It follows that when Mr Chetcuti arrived in Australia, before 26 January 1949, he did so as a British subject and as a non-alien. That accords, if it matters, with the application to him of both the Nationality Act and the Aliens Act then in force in 1948.

[88]

With great respect, I disagree. That is for two reasons. First, because of McHugh J's observation in Patterson - leaving aside disqualification as a member of Parliament[283] - nothing in the Constitution indicates that allegiance to the Queen in two capacities makes a person, who has arrived in Australia as a non‑alien British subject, an alien for the purpose of the Constitution after 26 January 1949. Secondly, and more fundamentally, it is difficult to accept that British subjects, resident in Australia, retained any allegiance to the Queen in right of the United Kingdom when they took up allegiance to the Queen in right of Australia. The better view is that, together with all Australian citizens, one allegiance replaced the other. This conclusion is consistent with the legal proposition that the Crown in right of Australia, when exercising duties within this country, should be considered "present"[284] in Australia. Following completion of the "mystical process"[285], the Crown in right of the United Kingdom ceased entirely to be "present" in Australia. In such circumstances, it should not be accepted that British subjects, who arrived as non‑aliens and have lived permanently in Australia ever since, retained any allegiance to that Crown.
Such a conclusion may perhaps more readily be drawn in the case of Mr Chetcuti, who arrived in Australia at the age of three and has lived here ever since[286].
It follows that Mr Chetcuti is not an alien for the purposes of the Constitution and the Commonwealth has no constitutionally valid power to remove him to Malta. The foregoing conclusion is not inconsistent with the usually accepted definition of "alien" as propounded by Gibbs CJ in Pochi v Macphee[287] and set out above. That expression of principle was not intended to be an exhaustive statement of the power conferred by s 51(xix) of the Constitution[288]. Moreover, the question of who is an alien had not then been "fully explored" before the Court[289]. Nor was Gibbs CJ required to decide whether a person in the position of Mr Chetcuti was an alien. It follows, for the reasons already given, that the principle expressed by Gibbs CJ must necessarily be qualified. It does not apply to British subjects who arrived in Australia before 26 January 1949 as non‑aliens, who have since lived here as Australians, who thus owe allegiance to the Queen of Australia, and who have not otherwise renounced that allegiance.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (318 paragraphs)

Parties

Legislation Cited (33)

Cases Cited (51)

Cited By (1)