H v Minister for Immigration and Citizenship

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 134

Counsel for the Applicant in NSD 1320 of 2009: Mr J A Gibson with Ms S Burchell (Pro Bono)

Counsel for the Respondent in NSD 1320 of 2009: Mr C Horan

Solicitor for the First Respondent in NSD 1320 of 2009: Clayton Utz The Second Respondent in NSD 1320 of 2009 filed a submitting appearance Counsel for the Applicant in VID 705 of 2009: Mr C Horan

Solicitor for the Applicant in VID 705 of 2009: Clayton Utz

Counsel for the Respondent in VID 705 of 2009 Ms G Costello

Solicitor for the Respondent in VID 705 of 2009 Oboodi

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION NSD 1320 of 2009

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

JUDGES: MOORE, KENNY & TRACEY JJ DATE OF ORDER: 15 SEPTEMBER 2010 WHERE MADE: MELBOURNE

1. Leave to amend the notice of appeal be granted.
2. Ms W be appointed as NWH's next friend for the purpose of the appeal and the formal requirements of O 43, including r 5(2), of the Federal Court Rules be dispensed with.
3. The appeal be allowed.
4. The decision of the Administrative Appeals Tribunal ("the Tribunal") of 28 October 2009 be set aside and the matter be remitted to the Tribunal, differently constituted, to be heard and determined according to law.
5. The first respondent pay the applicant's costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 705 of 2009

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP

JUDGES: MOORE, KENNY & TRACEY JJ DATE OF ORDER: 15 SEPTEMBER 2010 WHERE MADE: MELBOURNE

1. The appeal be dismissed.
2. The Minister for Immigration and Citizenship pay the respondent's costs of and incidental to the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION NSD 1320 of 2009

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

BETWEEN: First Respondent

AND: ADMINISTRATIVE APPEALS TRIBUNAL

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 705 of 2009

JUDGES: MOORE, KENNY & TRACEY JJ DATE: 15 SEPTEMBER 2010 PLACE: MELBOURNE

THE COURT: 1 These two appeals from decisions of the Administrative Appeals Tribunal ('the Tribunal') involve the construction of s 16(2) of the Australian Citizenship Act 2007 (Cth) ('the Citizenship Act'), which provides that a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if, among other things, "a parent of the person was an Australian citizen at the time of the birth". In particular, in both these appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the same fundamental question arises: "Does 'a parent of a person' in s 16(2) of the Citizenship Act mean only a natural or biological parent of the person?" 2 For the reasons stated below, we conclude that the appeal in proceeding NSD 1320 of 2009 should be allowed, whilst the appeal in proceeding VID 705 of 2009 should be dismissed. 3 Before detailing the reasons for this conclusion, we outline the history of the appeals and their factual backgrounds.

Procedural history 4 At the outset, it is important to note that these appeals are in the original jurisdiction of the Court, being appeals brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Section 44 provides for appeals from the Tribunal to this Court "on a question of law": s 44(1). Jurisdiction to hear and determine an appeal under s 44(1) is exercised by this Court constituted as a Full Court if the Tribunal decision was that of a presidential member and, after consulting the Tribunal President, the Chief Justice considers that it is appropriate for the appeal to be heard by a Full Court: see s 44(3)(b). On 27 November 2009 and 3 December 2009, the Chief Justice determined that these two appeals should appropriately be heard by a Full Court. 5 Proceeding NSD 1320 of 2009 is an appeal by NWH (an infant) against a decision of the Tribunal, constituted by Deputy President Handley, made on 28 October 2009, to affirm a decision by the Minister's delegate to refuse his application for Australian citizenship: see NWH v Minister for Immigration and Citizenship [2009] AATA 833 ('H'). In H, the Deputy President held that the child was not eligible to become an Australian citizen under s 16 of the Citizenship Act because he did not have a biological parent who was an Australian citizen at the time of his birth. In reaching this decision, the Deputy President concluded that "the word 'parent' in s 16(2)(a) means biological parent", adding that: This is consistent with the use of the word 'descent' in the heading to Subdivision A of the 2007 Act, the relevant dictionary meanings accorded to the word 'descent', and with the structure and context of the 2007 Act, including, for example, how provisions affecting adopted children are set out. 6 One issue regarding the constitution of this appeal must be noted. NWH's citizenship application was completed on his behalf by his mother, Ms W, as provided for in the standard application form used by the Department of Immigration and Citizenship. The application form contains a declaration by Ms W that she is a responsible parent of NWH. When the application was denied, Ms W, acting as NWH's representative, commenced an appeal to the Tribunal in NWH's name. Ms W filed detailed written submissions in support of the appeal before the Tribunal. The present appeal was also commenced by Ms W in NWH's name, although pro bono counsel has since been obtained to represent him. Ms W has been actively involved in the case and it is apparent that she has consented to this representation. Ms W commenced the appeal without first being appointed NWH's next friend, as O 43 r 1 of the Federal Court Rules contemplates and as the common law generally requires. Nothing may, however, turn on this, and no point was taken by the Minister. Thus, in some cases, as for example, where a minor brings a proceeding for judicial review of a decision of the Refugee Review Tribunal, the Court has held that the proceeding may be brought and continued without the appointment of a friend or tutor: see Odhiambo v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 29; X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524; and Jaffari v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 10. Contrast Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1619 at [24], [28]-[29], and also SZJXW v Minister for Immigration and Citizenship [2008] FCA 143 at [10]-[11]. Where a friend has not been appointed, the application is not void ab initio, but instead is voidable: see R v Danaher; Ex parte Olzier Industries Pty Ltd [1969] VR 445 at 446. In the instant case, however, it is clear that Ms W is acting on behalf of her son and it would probably be helpful to regularise the proceedings. Accordingly, an order should be made appointing Ms W as NWH's next friend for purpose of this appeal and, to the extent necessary, dispensing with any formal requirements of O 43. 7 Two months before the decision in H, on 27 August 2009, Deputy President McDonald held that the word "parent" in s 16(2)(a) was not limited to a biological parent and that Ms Vanessa McMullen could claim Australian citizenship through either a biological parent or a non-biological parent. As a result, the Deputy President set aside the decision of the Minister's delegate refusing Ms McMullen's citizenship application and remitted the matter with directions: see McMullen v Minister for Immigration and Citizenship [2009] AATA 638 ('McMullen'). Proceeding VID 705 of 2009 is an appeal by the Minister against this decision. The fact that the Tribunal in McMullen identified two possible bases for citizenship raises another issue, which is discussed further below.

Factual background NWH 8 NWH is now about two years of age, having been born in China in September 2008. His mother, Ms W, is a Chinese citizen. His putative father, Mr H, is an Australian citizen by birth. Ms W and Mr H married in China in June 2008. 9 Ms W lodged an application for Australian citizenship on her son's behalf on 9 October 2008 at the Australian Consulate in Shanghai. The application named Mr H as her son's father - a statement repeated in the child's birth certificate accompanying his citizenship application. The Minister's delegate refused the application on 15 April 2009, on the ground that the child "is not descended from an Australian citizen parent, and has no genetic link to an Australian citizen", noting that: The period when the child was conceived strongly appears to be during a time when Ms W and Mr H were in different countries, and thus the child, NWH, is not the biological child of Ms W and Mr H. When this office contacted [Ms W] about this, [Ms W] confirmed that Mr H is not the biological father of the child, but that [Ms W and Mr H] had met and married in a ceremony in China prior to the birth of the child. On 19 May 2009, an application for review of the delegate's decision was filed in the Tribunal pursuant to s 52(1)(a) of the Citizenship Act. 10 As already noted, relying on these somewhat sparse findings of fact, the Tribunal upheld the delegate's decision. In concluding that the word "parent" in s 16(2) of the Citizenship Act meant "biological parent", the Tribunal relied particularly on the heading "Citizenship by Descent", which appears in front of Subdivision A of Part 2 of the Citizenship Act; the dictionary definitions of "descent"; and the fact that the Citizenship Act has specific provisions addressing how various non-genetically related children of Australian citizens, such as adopted children, can obtain citizenship. The Tribunal noted agreement with the view expressed in Kumar v Minister for Immigration and Citizenship (2009) 107 ALD 178 at 202 [82] and indicated that it derived little assistance from the Explanatory Memoranda preceding the enactment of the Citizenship Act; or from the provisions of the Family Law Act 1975 (Cth) ('the Family Law Act') or the United Nations Convention on the Rights of the Child, to which reference was made in the submissions filed on behalf of the child. 11 On 18 November 2009, NWH (via Ms W) filed a notice of appeal from the Tribunal's decision. The notice of appeal was subsequently amended. At the hearing, counsel for NWH sought and was granted leave to amend his notice of appeal in so far as necessary to raise precisely the same question as that raised by the Minister in the appeal from the decision in McMullen. The single ground of appeal was that "the Tribunal erred in finding that 'a parent of the person' in s 16(2)(a) of the [Citizenship] Act means only a natural or biological parent of the person". Vanessa McMullen 12 Vanessa McMullen is a citizen and resident of Fiji. Ms McMullen was born in Fiji on 11 December 1988. Her mother was a citizen of Fiji. 13 On 16 December 2008, Ms McMullen applied for Australian citizenship under s 16(1) of the Citizenship Act. The application named Mr Frederick McMullen as Ms McMullen's father, and indicated that Mr McMullen was an Australian citizen by birth. On 22 December 2008, a delegate of the Minister refused the application on the ground that Ms McMullen "did not have an Australian citizen parent at the time of birth". The delegate's letter of that date further stated that: "DNA tests have shown that the Mr Frederick McMullen, nominated as the Australian citizen parent is not Vanessa's natural parent". On 19 January 2009, Ms McMullen applied to the Tribunal for review of the delegate's decision. As noted earlier, in a decision given on 27 August 2009, the Tribunal set aside the delegate's decision. 14 The Tribunal heard oral evidence, on the applicant's side, from Ms McMullen and her mother in Fiji, Ms Akisi Dilagi; Mr Frederick McMullen and his wife; and Dr Simon Kennedy, a forensic psychologist. The Minister called no witnesses. 15 The facts as found by the Tribunal were as follows: (1) Ms McMullen is the daughter of Ms Akisi Dilagi, a citizen of Fiji, and was born in Fiji. During the time leading to Ms McMullen's conception, Ms Dilagi had intimate relationships with both Mr Bill Davidson and Mr McMullen. Mr Davidson, now deceased, is likely to have been an Australian citizen. Mr McMullen is an Australian citizen. (2) In May 1988, Ms Dilagi, then residing in Fiji, informed Mr McMullen, then residing in Melbourne, that she was pregnant with his child. Mr McMullen visited Ms Dilagi in Fiji several times during her pregnancy and again shortly after the birth. He and Ms Dilagi selected Vanessa McMullen's name, and her birth certificate states that Mr McMullen is her father. Around the time of the birth, however, Mr McMullen had some doubts as to whether he was in fact Ms McMullen's biological father. Shortly after she was born, blood tests were conducted. These tests established that Ms McMullen had a different blood type from her mother and the same blood type as Mr McMullen. Mr McMullen's doubts were resolved and he accepted that he was her biological father. (3) Before the birth, Mr McMullen purchased a house for Ms Dilagi and Ms McMullen. He provided monetary support for Ms McMullen throughout her childhood. When she was three years old, Vanessa McMullen and her mother visited Mr McMullen in Australia. Mr McMullen has had regular telephone contact with Ms McMullen and has visited her in Fiji at least once a year. In sum, Mr McMullen "has provided both material and emotional support to [Ms McMullen] over the years and assumed as best he could . . . a father role to [her]". Ms McMullen regarded Mr McMullen as her father and he, after his initial doubts, regarded her as his daughter. Ms Dilagi too regarded Mr McMullen and Ms McMullen as father and daughter. In addition, Mr McMullen's wife and the three children of his marriage also accepted Ms McMullen as Mr McMullen's daughter. Mrs McMullen referred to herself as Ms McMullen's step-mother. (4) In 1999, a DNA test (conducted in connection with a previous Australian citizenship application) indicated that Mr McMullen was not Ms McMullen's biological father. Ms Dilagi considered the test mistaken, and Mr McMullen and Ms McMullen accepted that this was the case. In 2008, a further DNA test was conducted in connection with Ms McMullen's current citizenship application. The test confirmed that Mr McMullen was not Ms McMullen's biological father. In her evidence to the Tribunal, Ms Dilagi "maintained that she had nominated Mr McMullen as Vanessa's father because he had told her, before Vanessa's birth, he would look after her, whatever circumstances she faced" and that she "had accepted Mr McMullen as a man of his word". In early 2009, after the receiving the results of the second DNA testing, Ms Dilagi told Mr McMullen and Ms McMullen for the first time that Mr Davidson was Vanessa's biological father. Ms Dilagi's statement "has not resulted in a change to the existence or closeness of the long established father/daughter relationship enjoyed between Mr McMullen and [Ms McMullen]". 16 Based on these facts, the Tribunal ultimately concluded that Ms McMullen had "a biological father in the late Mr Davidson and an accepted father in Mr McMullen". The Tribunal concluded that Ms McMullen's relationship with Mr McMullen satisfied s 16(2)(a) of the Citizenship Act. In reaching this conclusion, the Tribunal had regard to the expert evidence from Dr Kennedy, forensic psychologist, who gave evidence "that a person who is not a biological parent may assume the role of a parent for a child by virtue of the strength of attachment arising between the child and that other person" and that "such a high quality well [-]established relationship of the type which arose where there was physical separation had occurred in the case of Mr McMullen and [Ms McMullen]". Dr Kennedy said that "regular telephone contact combined with irregular one to one contact had resulted in a very sound father/daughter relationship arising". 17 The Tribunal also observed that the notion of parenthood was flexible and subject to change "as science and the community changes". The Tribunal rejected the submission that the term "parent" should be limited to biological parentage. Describing the facts as "unusual", the Tribunal found that there was a "father/daughter relationship" between Mr McMullen and the Ms McMullen, on the basis that he had believed on reasonable grounds that he was her father, and had assumed that role over an extended period. Considering the nature of the relationship over time between Mr McMullen and Ms McMullen, the Tribunal was of the view that "it would be unduly restrictive, unfair and unreasonable to determine in an administrative sense [that the relationship] was anything else other than a father/daughter relationship". 18 In the alternative, the Tribunal concluded that Ms McMullen's citizenship should be approved if her biological father, Mr Davidson, was an Australian citizen. The Tribunal stated: "While there is nothing raised by the [Minister] to suggest otherwise than Mr Davidson was at the time of [Ms McMullen's] birth an Australian citizen the Tribunal accepts that this is something which should be formally confirmed". The Tribunal remitted the matter with instructions: to undertake the following procedure (if it becomes necessary to rely on ground (b)) in the order stated: (a) determine if Mr Davidson was an Australian citizen at the date of birth of the applicant and if so accept him as being the applicant's father, or if it transpires Mr Davidson is not an Australian citizen as at the date of Vanessa's birth, then (b) accept Mr McMullen, an Australian citizen at the time of Vanessa's birth, as the applicant's father. 19 On 1 December 2009, the Minister filed a notice of appeal from the Tribunal's decision. At hearing of the appeal, counsel for the Minister confirmed that the question of law, as set out in the notice of appeal, was intended to be understood as asking "Does a parent of a person in s 16(2) of the Citizenship Act mean only a natural or biological parent of the person?" Appeal Grounds (a)-(c) were directed to this question. 20 Appeal Ground (d) constituted a challenge to the finding that Mr Davidson was Ms McMullen's biological father, and asserted that "[i]t was not open on the evidence before the Tribunal to find that Mr Davidson was the natural or biological father of the applicant or that he was likely to have been an Australian citizen at the time of the Respondent's birth". The Minister abandoned this ground on the hearing of the appeal. It may be doubted that the ground raised any question of law, or that the Tribunal made any definitive finding regarding Mr Davidson's citizenship. 21 The preferable course in these circumstances might have been for the Tribunal to have determined the question of Mr Davidson's citizenship before considering the more difficult question of Mr McMullen's status. The Minister has not, however, invited the Court to remit the matter to the Tribunal to make this determination at this stage; instead, the Minister has asked the Court to decide the question of law raised by the Tribunal's finding that Mr McMullen too is a "parent" within the meaning of s 16(2)(a) of the Citizenship Act. 22 Though no party pressed the point, in the appeal from the decision in McMullen, the question whether the word "parent" in s 16(2)(a) is limited to a biological parent is not an immediate one, at this stage at least; and in these circumstances it might have been thought that there was a question as to whether the Court should proceed to determine it: compare QBE Insurance (Australia) Ltd v Tropical Reef Shipyard Pty Ltd [2009] FCAFC 161 at [26] (Kenny, Gordon and Jagot JJ); Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135 at [20] (Siopis J); [57]-[59], [69]-[70] and [92] (Tracey and McKerracher JJ); and Australian Institute of Private Detectives Ltd v Privacy Commission (2004) 139 FCR 394 at 400-1 [22]-[28] (Sackville J). It must be borne in mind, however, that, if the Tribunal's decision stands, then Ms McMullen satisfies the factual criterion in s 16(2)(a), whether there is in fact any further inquiry into Mr Davidson's citizenship status and whether in fact Mr Davidson is shown to have had Australian citizenship at the relevant time. On this analysis, the question of mootness tends to fade away. 23 In any event, in the appeal against the decision in H, there is no such complexity. Any eligibility for Australian citizenship through an Australian citizen parent in this case depends on whether Mr H could qualify as a "parent" for the purposes of s 16(2)(a) and, at this stage of the factual inquiry, this depends on whether as a matter of law "parent" in s 16(2)(a) is limited to biological parent. If it is, then Mr H cannot qualify as NWH's parent, irrespective of any other facts that might be found to support his parental status. Accordingly, there is a clear basis in the appeal in H for the Court to consider the question of law with which the Court is presently concerned.

Submissions of the parties 24 The Minister's contention in both appeals was that "parent" in s 16(2)(a) of the Citizenship Act meant only biological parent, although the Minister acknowledged in argument that, in the special case of artificial conception, parenthood might not be biological parenthood. Counsel for the Minister defined biological parent during oral submissions as "a person who supplied the biological material, either the sperm or the ovum that produces the child". 25 In the McMullen appeal, the Minister argued that, in so far as the Tribunal found that Mr McMullen was Ms McMullen's parent because he was her accepted father, the Tribunal misconstrued s 16(2)(a) of the Citizenship Act, it being common ground that he was not her biological father. The Minister's argument was essentially the same in the H appeal, it having been conceded by NWH's mother that Mr H was not his biological father. 26 The Minister's argument focussed in the first place on the ordinary meaning of "parent", which the Minister said meant biological parent as reflected in the Oxford English Dictionary. Opposing counsel submitted that the ordinary meaning of the word "parent" was not so limited, but neither counsel sought to set out the precise boundaries of any broader meaning. Indeed, counsel for Ms McMullen submitted that the word "parent" in s 16(2)(a) had "an ambulatory meaning adapting to the realities of Australian families" and, on this basis, both Mr McMullen and Mr Davidson could properly be considered "parents" of Ms McMullen within the meaning of the Citizenship Act. 27 Counsel for Ms McMullen and for NWH relied on particular definitions in the Citizenship Act itself, including definitions of "responsible parent" and of "child", as supporting a broader meaning of the word "parent" than the Minister would allow. The Minister, on the other hand, submitted that "responsible parent" was intended to be wider in scope than "parent", and that to read "parent" in s 16(2)(a) as encompassing notions of parental responsibility would be to improperly read the definition of "responsible parent" into the provision. Similarly, the Minister argued that the definition of "child" did not operate to extend the meaning of parent beyond biological parent. 28 The parties also addressed their attention to timing considerations in s 16(2)(a); the structure of Division 2, Part 2 of the Act, including the structure of Subdivision A; and the effect of provisions outside Subdivision A of Division 2, Part 2. We address these arguments in detail below. 29 The parties relied on a variety of other interpretive aids in support of their positions, including legislative history. Essentially, the Minister's contention based on legislative history was that provisions of the Nationality and Citizenship Act 1948 (Cth), later renamed the Australian Citizenship Act 1948 (Cth) ('the 1948 Act') from which s 16(2) derived were "generally concerned with the status of a person's biological parents at the time of his or her birth", and that there were no extrinsic material indicating a legislative intent to depart from this approach. The Minister contended that the 1948 Act should be understood as adopting a combination of the international law principles of jus soli, under which nationality was determined by place of birth, and jus sanguinis, under which nationality was determined by the nationality of one's parents: see generally Singh v The Commonwealth (2004) 222 CLR 322 ('Singh'). The effect of the original language of the 1948 Act was not, however, explored in any real depth; and, as Singh itself demonstrates, Parliament no longer treats either of these principles as immutable. 30 In discussing the legislative history of s 16 of the Citizenship Act, counsel for NWH made a number of points, but it suffices to note only two. Counsel particularly referred to the use of "natural mother" and "natural parent" in the 1990 and 1991 amendments to the 1984 Act, which is discussed in detail below. Counsel argued that the subsequent omission of the qualifying word "natural" showed that Parliament had not intended to limit "parent" in s 16(2)(a) to biological parents. The Minister argued, on the other hand, that the use of "natural parent" in s 10C favoured the Minister's construction of s 10B (both discussed below). The Minister argued that since s 10C (introduced in 1991) was intended as a remedy for individuals who had missed the opportunity to register as citizens under s 10B, if "natural parent" in s 10C were narrower in scope than "parent" in s 10B, then s 10C would not have had its intended remedial effect. 31 Both the Minister and counsel for NWH emphasised the importance of s 10B, introduced by amendment in 1984 (discussed below). The Minister relied on the Revised Explanatory Memorandum for the Australian Citizenship Bill 2005 (Cth), which stated that Subdivision A in Division 2, Part 2 (of what is now the Citizenship Act) "mirrors the provisions of the old Act" and that s 16(2) "combines the descent sections 10B and 10C of the old Act". Thus, so the Minister argued, s 16(2) should be understood as having the same meaning as the equivalent provisions of the former Act, which, so the Minister submitted, were limited to biological parents. The Minister argued that, if the legislature had intended to expand the definition of "parent" for the purposes of citizenship by descent, this intent would have been reflected in the extrinsic material, and that there was no evidence of such an intent in this material. 32 Opposing counsel contended that there was no biological limitation in "parent" evident in the legislative history of s 16(2) of the Citizenship Act. We discuss this in more detail below. Counsel for NWH also made particular reference to the Explanatory Memorandum to the Australian Citizenship Amendment Bill 1983-84, stating that the 1984 amendments (see below) were designed, among other things, "to remove all discriminations from the Australian Citizenship Act 1948", to support an argument that the 1984 amendments were intended to remove discrimination against children such as NWH. Since this argument distracts attention from the principal competing considerations, we discuss it briefly at this point in order to put it aside. 33 As noted below, the discrimination with which the 1984 amendments were concerned was discrimination on the basis of sex and marital status. In his second reading speech on the Australian Citizenship Bill 1983 (Cth), the Minister said (see Parliamentary Debates, House of Representatives, p 3369): The existing Act discriminates on the basis of sex and marital status. Mothers, for example, do not have the same rights as fathers in determining their children's citizenship. It has been decided to amend the Act to place mothers and fathers on an equal footing for all purposes related to citizenship, and the citizenships of their children. All other discrimination on the grounds of gender and marital status will be removed. 34 The new s 10B reflected this purpose. Prior to the 1984 amendment, the citizenship of a child born overseas and out of wedlock could be based on a citizen mother but not a citizen father. This was so notwithstanding that, following the 1976 amendment the citizenship of a child born overseas to a married woman could be based on a citizen mother or citizen father. The new provision referred to "a person, being a parent of the relevant person at the time of the birth of the relevant person", without reference to gender or marital status, thus eliminating these distinctions. One object of the amendment appears to have been to enable illegitimate children to obtain citizenship through their "parents" - whatever the word meant - to the same extent as legitimate children. The fact that the amendment was concerned with discrimination against illegitimate children does not say anything about the meaning of the word "parent". That is, the discrimination with which the 1984 amendments were concerned did not include discrimination as between biological or non-biological parents. Indeed, apart from removing gender and martial status as distinctions, these amendments did not mention biological connection at all. 35 The parties also relied on the Family Law Act 1975 (Cth) ('the Family Law Act') and certain state legislation, especially the Status of Children Act 1974 (Vic), to support their competing arguments. 36 The Minister relied particularly on the presumptions contained in the Family Law Act (particularly, as to parentage arising from marriage (s 69P), as to paternity arising from cohabitation (s 69Q), and as to parentage arising from registration of birth (s 69R)) as well as the presumptions in the Status of Children Act 1974 (Vic) (ss 5, 8) and at common law, to support the contention that the need for genetic testing would generally not arise if "parent" in s 16(2) were limited to biological parent (although the Minister acknowledged that s 19A of the Citizenship Act might present difficulties for individuals in particular cases if this construction were preferred). In this context too, the Minister argued that the same interpretative analysis should apply to s 12(1)(a) (citizenship by birth). Reference in this connection was also made to ss 17(4B), 19D(7), 24(4B) and 30(6). 37 In this context too, the Minister cited In the Marriage of CV and SL Tobin (1999) 24 Fam LR 635, in support of the submission that "parent" in s 16(2) of the Citizenship Act meant biological parent. In that case, the Full Court of the Family Court held (at 645 [45]) that "[w]hile the term may be capable of being used in different contexts to include broader categories … the natural meaning of the word [parent] in context in Pt VII Div 7 [of the Family Law Act] . . . is the biological mother or father of the child and not a person who stands in loco parentis". It is, however, apparent from the discussion in that case that the Court reached this conclusion because of the specific provisions in the Family Law Act and the child support legislation. Thus, the decision does not particularly assist in resolving the present question. 38 Counsel for Ms McMullen also relied on the attribution in the Family Law Act of parental status to persons who were not biological parents. Reference was made to numerous provisions, including s 64C (permitting a parenting order in favour of parents or other persons), s 65C (setting out who may apply for a parenting order), s 69R (see above), and s 69S (presumption of parentage arising from findings of courts). Reference was also made to s 60F (certain children to be children of a marriage) and s 60H (children born as a result of artificial conception procedures). Counsel argued that the Citizenship Act and the Family Law Act were essentially in pari materia, citing Dampier Salt (Operations) Pty Ltd v Collector of Customs (1995) 133 ALR 502 at 509-10 (Lee J) (affirmed on appeal). 39 It is convenient to note briefly that we reject the submission that the two statutes are appropriately described in this way since they do not in truth deal with the same subject matter. The subjects with which these statutes are concerned are essentially different, although at times certain discrete issues arise that are the same or similar under both. Generally, in the latter case, Parliament has expressly stated when the provisions of the Family Law Act are to operate in the context of the Citizenship Act. The fact that the Citizenship Act expressly picks up and adopts provisions in the Family Law Act does not diminish the difference between the two subject matters. The Citizenship Act picks up certain provisions of the Family Law Act for its own purposes, and generally where it does so, it does so expressly. 40 Ultimately, the parties did not really explain how the provisions of the Family Law Act that were not expressly picked up by the Citizenship Act could in law inform the interpretation of s 16(2) of the Citizenship Act and, unless indicated to the contrary in what follows, we would not consider that they assist with the present question. 41 Counsel for NWH also noted examples of state legislation in which the State Parliament had not limited the word "parent" to biological parent, referring particularly to the Children, Youth and Families Act 2005 (Vic), s 3; Family Violence Protection Act 2008 (Vic), s 4; and Victims of Crime Assistance Act 1996 (Vic), s 3. These do no more than illustrate that a legislature may choose to accord the word "parent" a wide meaning; but it is apparent that in each case the relevant legislature has specifically defined "parent" having regard to the legislative contexts in which the word is to be used. These contexts are different from the present. These specific legislative definitions provide no guidance on the present question. 42 Finally, both the Minister and the opposing parties relied on competing policy considerations. We refer to the most significant of them hereafter. However, we mention one here because it seems to us that it may be put to one side speedily. Counsel for Ms McMullen relied on the principle that beneficial legislation should be interpreted widely rather than narrowly, referring to VFAY v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 402 at 409 [23] and Bortolazzo v Comcare (1997) 75 FCR 385 at 388. Counsel argued that the Citizenship Act was "intended to benefit those people who seek to be Australian citizens", and that any ambiguity in the Act should be resolved in favour of such beneficiaries. The present question is not, however, about resolving an ambiguity, which is a common application of this principle. Nor is it remedial in the usual sense. It is true that s 16 of the Citizenship Act renders a person who falls within its terms eligible for citizenship and that this is a benefit to him or her, the citizen parent or parents, and also presumably to the Australian community (see the preamble to the Citizenship Act). Equally, however, the provision is not intended to benefit a person who does not fall within s 16 and, if a person does not have a citizen parent within the meaning of the provision, then the benefit of the provision does not extend to him or her. That is, so far as the present question is concerned, the principle to which counsel referred has no useful application.

What is the question raised? 43 As will by now be plain enough, the parties are agreed that the question of law raised by the appeals is whether the word "parent" in s 16(2) of the Citizenship Act means only a biological parent. The formulation of the question in this way is, partly at least, a consequence of the nature of the statutory jurisdiction for these appeals; and, in answering the question, the nature of this jurisdiction has also to be kept in mind. 44 As noted already, the jurisdiction conferred by s 44(1) of the Administrative Appeals Tribunal Act is a limited one, confined to a question of law. In order for there to be a competent appeal under s 44(1), there must be a question that is properly characterised as a question of law that is the subject of the appeal; and, as this case shows, what may be a question of law conceived in one way is a question of fact when understood in another way. In a case such as the present, this is a consequence of the difficulty in the ready identification of the distinction between questions of law, questions of fact, and questions of mixed fact and law. It must be kept in mind, however, that the competence of the appeals depends on the distinction. 45 The Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 ('Pozzolanic') at 287 set down five general propositions for determining when a question is one of fact, law, or mixed fact and law. Three propositions assist in these appeals. First, the ordinary meaning of a word is a question of fact. Second, the question whether a word in an Act is to be given its ordinary meaning or some technical or other meaning is a question of law: see also Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397. Third, whether the facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. This last proposition can give rise to further difficulties, some of which are discussed in Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551 at 563-5 (Sundberg and Kenny JJ). 46 Here all the parties focussed a primary part of their argument on the ordinary meaning of the word "parent". Thus, the Minister drew on a dictionary definition to support his contention that the ordinary meaning of the word "parent" was biological parent, with the result that whether or not a person was properly described as a "parent" in s 16(2)(a) ultimately depended on a DNA test known to the science of genetics. The opposing parties, on the other hand, argued that the ordinary meaning of "parent" was broader than this, and signified a particular socially-defined status held by one person (the parent) in relation to another person (a child of that person). 47 The contest about the ordinary meaning of "parent" is not at all straightforward. In her preface to the scholarly publication Parenthood in Modern Society: Legal and Social Issues for the Twenty-first Century (Martinus Nijhoff Publishers, 1993), edited by John Eekelaar and Petar Sarcevic, Marie-Therese Meulders described the legal basis and social significance of parenthood as "one of the major and most complex issues throughout the history of mankind". As Professor Meulders noted, looked at superficially, the basis of parenthood might appear to be "blood ties resulting from procreation". Considered more carefully, however, as Meulders and other scholars acknowledge, it is clear that, over the ages and in different places, the status of being a parent has been socially defined in a great variety of ways that do not always reflect the biological facts. Certain socially recognized facts have come to define the social status of a "parent" in relation to another person. Modern ethnology and anthropology recognize as much. Historians have shown that family structures and notions of parent and child, marriage and descent have differed widely over time and within a range of demographic, economic and cultural frameworks distinctive for each society: see, for example, Lawrence Stone, The Family, Sex and Marriage in England 1500-1800 (Penguin, abridged version, 1979, reprinted 1990), pp 22-29, 48, 80-86, 109; Rosemary O'Day, The Family and Family Relationships, 1500-1900 (Macmillan 1994) pp 29, 127, 134; Martine Segalen, Historical Anthropology of the Family (translated by JC Whitehouse and Sarah Matthews; Cambridge University Press, 1986), pp 32-36, 173; Michael Anderson, Approaches to the History of the Western Family 1500-1914 (Macmillan, 1980), pp 14, 41-2, 60; and Philippe Aries, Centuries of Childhood (Jonathan Cape London, 1962). In essence, the status of being a parent may imply physical procreation, the social assumption of a specific relationship to another (as the child of the parent) or both. Comparatively recent developments in the biological sciences, especially in genetics, and the introduction of DNA testing, has highlighted the differences between understanding "parent" as a biologically defined status and as a socially-defined one. 48 Today, perhaps, one assumes that when a person speaks of a "parent", the speaker is referring to a biological parent. If, however, it is plain from the context or from one's knowledge of the speaker that the reference is not to a genetic relation but to someone who, for the speaker, performs the role that society typically expects a parent to fulfil, then one accepts the reference to "parent" as apposite. Thus, in ordinary usage, the word "parent" may be used without modifier to signify a genetic or non-genetic connection with another: compare Black's Law Dictionary (8th ed, 2004). Whilst often a person's parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word "parent" is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships. 49 Whether or not this exposition of the current ordinary meaning of the word "parent" is accepted is, however, beside the point on these appeals. This is because, as already noted, a question as to the ordinary meaning of a word such as this is a question of fact, which cannot be dealt with on these statutory appeals. No-one has suggested, however, that this Court lacks jurisdiction in the appeals because there is no question of law. How therefore is the question to be understood, having regard to s 44(1)? If the question raised by the appeals is not one about the ordinary meaning of "parent", it must be about some particular meaning of "parent" in s 16(2) of the Citizenship Act. That is, the point at issue on these appeals must be whether, in the specific context of s 16(2), the word "parent" can only mean biological parent, irrespective of the ordinary meaning of the word. The Minister would have the Court answer this question in the affirmative. The argument for the opposing parties is that the word "parent" in s 16(2) is not to be so limited.

Approaches to construction 50 In construing s 16(2), the Acts Interpretation Act 1901 (Cth) must be kept in mind. At the outset, we note that s 15AA of that Act requires that a court construing federal legislation have regard to its purpose or object. Further, s 15AB permits reference to a wide range of material not forming part of the relevant Act. Moreover, as Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, "the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief … the statute was intended to remedy". The legislative structure and history are also important parts of the context for the purposes of interpretation: see also Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112 (McHugh J). So too reports, parliamentary speeches and explanatory memoranda may assist. Of course, contextual considerations enhance, rather than detract from, the necessary consideration of the actual statutory text: compare Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at 206 [30] (Gleeson CJ, Gummow, Hayne and Heydon JJ). 51 In deciding the question raised by these appeals, the Court is obliged to consider the object of the legislation and the text of s 16 in its proper context, having regard, where appropriate, to legislative structure, legislative history (here considered in the context of the common law and Australian constitutional history), parliamentary speeches and explanatory memoranda. Consideration of these matters draws attention to the fact that the history of citizenship legislation reflects underlying changes in the political and social fabric of the country. As Kitto J wrote in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 (in a passage cited by Gleeson CJ in Singh 222 CLR at 336 [19]): The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation … It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances.

The legislative object 52 The primary object of the Citizenship Act is to define who is and who may become formal members of the Australian body politic, with such rights and obligations as that status entails. These are the people who are, or are eligible to become, Australian citizens. Such is the effect of the preamble and the provisions of the Act itself, although there is no express legislative statement of objects. Thus, the preamble states: The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations: (a) by pledging loyalty to Australia and its people; and (b) by sharing their democratic beliefs; and (c) by respecting their rights and liberties; and (d) by upholding and obeying the laws of Australia. 53 Generally speaking, the Citizenship Act does not identify the reciprocal rights and obligations inherent in Australian citizenship. This is left to other statutes, such as the Australian Passports Act 2005 (Cth), s 7; the Commonwealth Electoral Act 1918 (Cth), ss 93, 94, 94A, 95, 163; and the Migration Act 1958 (Cth) (citizens enjoying a right of abode: see generally Re Patterson; Ex parte Taylor (2001) 207 CLR 391 ('Re Patterson'); Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 173 [31] (Gleeson CJ); and Singh 222 CLR at 329 [4] (Gleeson CJ)). As Gaudron J said in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 190: Neither the Citizenship Act nor the Migration Act, in terms, makes Australian citizenship the exclusive criterion for admission to membership of the community constituting the body politic of Australia. However, given that no other criterion is supplied, either by the general law or by statute, and that (as from its amendment in 1984) s 12 of the Migration Act posits the deportation only of persons who are non-citizens, it must be accepted that the intendment of s 12 of the Migration Act, when viewed in the context of the amendments made to the Citizenship Act, was that Australian citizenship should be (or perhaps, should become) the criterion for admission to membership of the community constituting the body politic of Australia. 54 The concept of citizenship, though not constitutionally defined, is therefore central to the idea of the Australian body politic; and to the way the Australian community defines itself for the present and the foreseeable future. As the legislative history (discussed below) shows, just as "[c]onstitutional notions of membership of the Australian community" have changed with "international and national realities", so too legislative notions of membership of the Australian community have altered to keep pace with changing social or cultural realities: compare Singh 222 CLR at 417 [263]-[264] (Kirby J). Unsurprisingly, the ancient principles of jus soli and jus sanguinis to which the Minister referred no longer much guide Parliament in determining membership of the Australian community. Today, the fundamental consideration in acquiring citizenship is the strength of the connection between a person and Australia; it is this which provides the basis for the "common bond" mentioned in the preamble. Within this framework, there is, however, little contextual support for the proposition that the word "parent" has some restrictive meaning, signifying only a biological parent, as opposed to a parent, whoever that may be, within ordinary meaning of the word. Biological parentage can scarcely be the sine qua non of a meaningful connection to the Australian community. A claimant for citizenship under 16(1), with a biological at-birth citizen parent, can have no more connection with the country than a claimant for citizenship also born outside Australia, with an at-birth citizen parent who holds out the person as his child from birth, treating the person as his child from that point on, though the genetic link is missing. Bearing this in mind, the more rational approach is not to attribute some technical meaning to the word "parent" in s 16(2), but instead to attribute to the word its ordinary meaning as evident in ordinary contemporary English usage. Under the present jurisdictional arrangement, it would then be a matter for the Tribunal to determine whether, on the facts as found, either claimant for citizenship had, relevantly, a citizen "parent" within the ordinary meaning of the word, as at the time of their birth.

The text of s 16 55 We commence with the text of s 16 of the Citizenship Act. Section 16(1) provides that a person "may make an application to the Minister to become an Australian citizen". Central to these appeals is s 16(2), headed "Persons born outside Australia on or after 26 January 1949". This reads as follows: (2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if: (a) a parent of the person was an Australian citizen at the time of the birth; and (b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act [i.e., the Australian Citizenship Act 1948 (Cth)] (about citizenship by descent), at the time of the birth: (i) the parent has been present in Australia (except as an unlawful noncitizen) for a total period of at least 2 years at any time before the person made the application; or (ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and (c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application - the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application. 56 Section 16(3), headed "Persons born outside Australia or New Guinea before 26 January 1949", has a similar form to s 16(2), providing that a person born outside Australia or New Guinea before 26 January 1949 is eligible to become an Australian citizen if: (a) a parent of the person became an Australian citizen on 26 January 1949; and (b) the parent was born in Australian or New Guinea or was naturalised in Australia before the person's birth; and (c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person - the Minister is satisfied that the person is of good character at the tine of the Minister's decision on the application. 57 The word "parent" is not defined in the Citizenship Act, although the Citizenship Act defines other familial relationships, including "responsible parent", "step-child", "de facto partner" and "child". Counsel for Ms McMullen and NWH relied on these definitions as explaining in some way what Parliament intended by the word "parent" in s 16(2)(a). For the reasons we are about to give, however, almost all these definitions of other familial and related relationships throw little light on the question raised by the appeals. 58 There was substantial debate about the effect of the definition of "responsible parent". For this reason, we set the definition out in full below. 59 "Responsible parent" is defined in s 6 of the Citizenship Act in the following way: (1) For the purposes of this Act, a person is a responsible parent in relation to a child if and only if: (a) the person is a parent of the child except where, because of orders made under the Family Law Act 1975, the person no longer has any parental responsibility for the child; or (b) under a parenting order the child is to live with the person (whether or not the person is a parent of the child); or (c) under a parenting order the person has parental responsibility for the child's longterm or daytoday care, welfare and development (whether or not the person is a parent of the child); or (d) the person (whether or not a parent of the child) has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise. (1A) In paragraph (1)(a): parental responsibility has the same meaning as in Part VII of the Family Law Act 1975. (2) Expressions used in paragraphs (1)(b) and (c) have the same meaning as in the Family Law Act 1975. 60 For present purposes, two points regarding this definition are worth remembering. First, within the definition in s 6(1) above, the expression "responsible parent" is evidently wider that the word "parent": that is, a person can be a responsible parent within this definition, whether or not a "parent" of the child: see, for example, s 6(1)(c). Secondly, the term "responsible parent" appears in two specific contexts: in a fairly specific group of provisions (ss 25, 28, 36); and again in a separate provision (s 46). Sections 25, 28 and 36 are not related in any direct way to s 16. Section 25(4) concerns Ministerial cancellation of an approval of citizenship by conferral (applied for under s 21) in circumstances where a child and his or her responsible parent(s) made application at the same time. Under s 25(4), if the Minister cancels approval of a child's responsible parents' applications for citizenship by conferral, the Minister must cancel approval of the child's application for citizenship by conferral. Section 28(3)-(4) deals with the day upon which citizenship by conferral begins in the case of a child who has sought citizenship at the same time as the responsible parent(s). Broadly speaking, under s 28, a child's citizenship by conferral commences on the day a responsible parent of the child obtains citizenship by conferral. Section 36 concerns the loss of citizenship by children of responsible parents ceasing to be citizens by virtue of ss 33, 34 or 35. Again, broadly speaking, under s 36, a child ceases to be an Australian citizen if the Minister revokes the citizenship of a responsible parent of the child under ss 33, 34 or 35, unless another responsible parent of the child remains an Australian citizen, or the revocation would cause the child to become stateless. In the context of these provisions, the use of the expression "responsible parent", as opposed to "parent", whether used in its ordinary sense or in some special way, is explicable by reference to the matter with which the provisions deal, especially their relation to "citizenship by conferral". This use does not really assist in construing "parent" in s 16(2). 61 Section 46 is in a different class of provisions, being in Part 3 of the Citizenship Act, entitled "Other matters". Section 46(1) provides that an application under the Act must, amongst other things, "be on the relevant form approved by the Minister for the purposes of that provision" and "contain the information required by the form". Section 46(2) and (2A) further provide: (2) The Minister may, by writing, approve one or more forms for the purposes of a provision of this Act under which an application may be made. Note: For example, there are 2 ways to become an Australian citizen by descent under section 16. The Minister may approve 1 form for the purposes of that section or may approve 2 different forms. (2A) An application under a provision of this Act by a child aged under 16 must be set out: (a) on a form that contains no other application; or (b) on a form that also contains an application by 1 responsible parent of the child. This use of the expression "responsible parent" throws little light on the meaning of "parent" in s 16(2). Interestingly, though perhaps of little moment in construing s 16(2), we note that the "Form 118 for Application for citizenship be descent", which was completed by or for both Ms McMullen (then over 16) and NWH, provided for a declaration by a responsible parent as to his or her consent and the veracity of the information supplied. 62 Counsel for Ms McMullen also relied on the definition of "child" in the Citizenship Act, which is as follows (s 3): child: without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person: (a) an adopted child, stepchild or exnuptial child of the person; (b) someone who is a child of the person within the meaning of the Family Law Act 1975. 63 Section 4(1) of the Family Law Act 1975 (Cth), which defines words and expressions within the Act, provides that: child: (a) in Part VII, includes an adopted child and a stillborn child; and (b) in Subdivision E of Division 6 of that Part, means a person who is under 18 (including a person who is an adopted child). child: Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship. Subdivision D of Division 1 of Part VII contains a number of provisions dealing with issues of child-parent status. Section 60F provides that a reference to a child of a marriage includes adopted and ex-nuptial children, as well as a child who is, by virtue of s 60H(1) or s 60HB, the child of the husband and wife. Section 60H deals with the position of children born as a result of artificial conception procedures, providing, amongst other things, that a child born to a woman as a result of such procedures is a child of that women, whether or not the child is biologically a child of that woman; and that a child may be the child of a man, though not biologically related to him. Section 60HB contemplates that a child may be the child of one or more persons under surrogacy arrangements and that each of those persons may be a parent of the child. Section 60HA deals with the position of children of de facto partners. 64 In this connection too, counsel for Ms McMullen referred to the presumption of parentage in s 69P, which, broadly speaking, provides that a child born to a married woman is presumed to be a child of the woman and her husband. Reference was also made to the presumption of paternity arising from cohabitation (s 69Q), the presumption of parentage arising from registration of birth (s 69R), the presumption of parentage arising from court findings (s 69S), and presumption of paternity arising from acknowledgments (s 69T). 65 Counsel for Ms McMullen submitted that because "parent" and "child (of a person)" describe two sides of the same relationship, "parent" should be understood as having the same broad and inclusive scope as the statutory definition of "child". 66 We accept that, where a child is said to be a child of a person, then that person is ordinarily described as a parent of the child. Where Parliament states in an Act that a child is a child of a person, then, absent any contrary indication, it is reasonable to assume that Parliament intended that that person has the status of parent of the child, if that status is relevant for the operation of the Act. We also accept that, having regard to the definition of "child" in the Citizenship Act, the Act clearly contemplates that, at least for some purposes (including where the word "child" is expressly used), the status of being a parent is not limited to a biological parent. However, the use of the words "parent" and "child" in a correlative sense may weaken, depending on the context in which the words "child" (in the sense "child of a person") or "parent" are used. Having regard to the absence of the word "child" from s 16(2), the definition of that term in s 3 does not greatly assist in answering the present question. 67 Turning from these statutory definitions to the precise words of s 16(2), the Minister maintained that s 16(2)(a) requires that the citizen parent is a parent of the applicant "at the time of the [applicant's] birth". In other words, the Minister argued that, for purposes of s 16(2)(a), parenthood must be established as at the time of the birth. That is, on this construction of s 16(1)(a), "at the time of birth" qualifies both the status of being a parent and the parent's citizenship. This was said to be the natural effect of s 16(2)(a). If this were the correct construction, then, so the Minister argued, his argument as to the meaning of "parent" in s 16(1)(a) was strengthened. 68 As it happens, we accept the Minister's submission as to timing, although we reject the latter submission as to its consequential support for his case. Whilst commonly one may assume that a person accepting the status of a parent at the time of a birth is in fact a biological parent, human experience is that this is not always so. Numerous cases in the history of the law illustrate that the acceptance of parenthood at birth may be made in the absence of any relevant biological relationship: see, for example, Magill v Magill (2006) 226 CLR 551. Indeed, the appeal in McMullen provides a further example. Accepting that the Minister is correct on the timing issue, this does not favour the limitation of parent to biological parent only. Even on this construction s 16(2)(a) does not in terms preclude attributing parent status to a person identified as a parent at the time of birth even though not a biological parent. 69 The Minster's construction as to timing might have been plainer if the phrase "at the time of birth" had been placed first, rather than last, in the paragraph. As s 16(2)(a) is drafted, it is grammatically possible to interpret "at the time of the birth" as applying only to "was an Australian citizen" and not to "a parent of the person". If this were correct, the provision could be seen as covering a person who was an Australian citizen at the time an applicant was born but who only became a "parent" of the applicant at some point after the applicant's birth. Such a situation could only occur, of course, if the Minister's submissions as to the meaning of parent were rejected. 70 Having regard to the legislative history of s 16 (which is discussed in detail below), however, the construction as to timing advanced by the Minister is to be preferred. Having regard to that legislative history, the clear better view is that s 16(2)(a) requires that an applicant for citizenship have, at the time of birth, a parent with Australian citizenship. The legislative history of s 16 shows that eligibility for citizenship under predecessor provisions has always required a citizen parent at the time of birth. As the Minister submitted, there is no indication in the extrinsic materials that Parliament intended to change this basic test. This construction is also consistent with s 12(1), according to which a person born in Australia is an Australian citizen in certain circumstances, including that "a parent … is an Australian citizen … at the time the person is born". Other provisions that support the Minister's position on timing include ss 17(4) - (4B), which address the national security exceptions to the Minister's non-discretionary duty to approve the application of a person eligible for citizenship under s 16. There would seem to be no logical reason to limit 17(4B) to parents as at the time of birth if s 16(2) were not also so limited. Similar language appears in the context of national security exceptions to other routes to citizenship: see ss 19D(7) (adoption under the Hague Convention), 21(6) (citizenship by conferral) and 24(4B) (resumption of citizenship). 71 As we have explained, however, acceptance of this aspect of the construction of s 16(2) still leaves open the question raised by the appeals.

Structure of Part 2 72 The Minister properly drew attention to the structure of Part 2 of the Citizenship Act and, in particular, to the heading of Subdivision A of Division 2. The Minister relied on the heading to Subdivision A of Division 2, Part 2 - "Citizenship by descent" - as indicating a biological limitation for parenthood. A heading such as this is deemed by s 13(1) of the Acts Interpretation Act 1901 (Cth) to be part of the Citizenship Act, and, in the process of construction, can be taken into consideration in determining the meaning of a provision or its scope, although it cannot limit the operation of a provision if its meaning is clear: see Silk Bros Pty v State Electricity Commission (Vic) (1943) 67 CLR 1 at 16 (Latham CJ). Citing The Macquarie Dictionary definition of "descent" as "derivation from an ancestor; extraction; lineage", the Minister argued that this heading to Subdivision A evinced an intent that "parent" be understood as biological parent. In response, it was said that "[d]escent can apply to non-biological steps on a family tree", and that the use of descent in the heading was "meant to distinguish between those born in Australia and those not born in Australia". 73 Not much can be gleaned from the heading to Subdivision A of Division 2 of Part 2. Like the word "parent", the meaning of the word "descent" depends on the context in which it is used. A family tree, which is designed to describe the familial relationships of members of a family or families, including descent, will ordinarily include biologically and non-biologically related individuals. The significance of a heading will, in any event, depend a good deal on the provisions that it covers and the weight of other factors. Thus, in Chalmers v Thompson (1913) 30 WN (NSW) 161, Harvey J was required to decide whether or not a non-adoptive father of a child could be charged with breach of a provision relating to ill-treatment of children, even though the provision was headed "Adoption of children". Harvey J had regard to the form of the Act prior to its consolidation when it had no headings upon the basis that there was an "ambiguity", and decided that the provision was intended to apply to the parents of children generally and was not limited by the heading. See also K & Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 and Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325 at 332. In these appeals, the significance of the heading "Citizenship by descent" may perhaps be garnered from the provisions covered by it or the legislative history of the Citizenship Act (discussed in further detail below). 74 Today, the heading to Subdivision A of Division 2 of Part 2 encompasses related provisions that concern the eligibility for citizenship of persons born outside Australia claiming through a citizen parent. The reference to "descent" in the heading is a reference to the fact that the claim for eligibility relies upon a citizen parent. However, there is nothing here to indicate whether descent and parenthood are exclusively biological. Moreover, the fact that (save perhaps for s 13) Division 1 of Part 2, headed "Automatic acquisition of Australian citizenship", is very largely directed to the eligibility for citizenship of persons born in Australia or Australian territory (see especially s 12), whilst the remainder of Division 2 of Part 2, headed "Acquisition of Australian citizenship by application" deals almost entirely with the eligibility for citizenship of persons born outside Australian (as well as the resumption of citizenship) indicates that the principal discrimen between Division 1 and Division 2 of Part 2 is between persons born in Australia and persons born outside Australia. 75 This is in part confirmed by the legislative history of the provisions providing for persons born outside Australia, discussed below. Presently, it suffices to observe that a heading of this kind first appeared in the Nationality and Citizenship Act 1948 (Cth) as originally enacted, which divided the Act into five parts, Part III dealing with "Australian Citizenship". Division 1 of Part III was entitled "Citizenship by Birth or Descent", the other Divisions being "Citizenship by Registration", "Citizenship by Naturalization" and "Loss of Citizenship". 76 Broadly speaking, this skeletal structure has remained the same though the body of provisions has grown, with the result that today Part 2 of the Citizenship Act concerns Australian citizenship. Speaking very generally, as changes in circumstances calling for a legislative response have arisen, the legislature has responded within a structure conceived under the 1948 Act. Part 2 now provides various ways in which persons may acquire Australian citizenship - some being automatic and others requiring application to the Minister - generally depending on whether an applicant was born within or outside Australia. Division 1 of Part 2 is now entitled "Automatic acquisition of Australian citizenship" and contains within it provisions for citizenship by birth (s 12), as well as modern provisions for citizenship by adoption (s 13), citizenship by incorporation of Territory (s 15) and citizenship in circumstances where a person "is found abandoned in Australia as a child" (s 14). Division 2 of Part 2 is entitled now "Acquisition of citizenship by application". As noted, Subdivision A is headed "Citizenship by descent" and includes s 16. Subdivision AA is headed "Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption" and contains provisions reflecting Australia's legislative implementation of international obligations under this Convention, which Australia ratified on 25 August 1998. Subdivision B of Part 2 is headed "Citizenship by conferral", and Subdivision C, "Resuming citizenship". It is true that other Divisions in Part 2 are not so greatly concerned with the distinction between persons born in Australia and persons born outside Australia, but these Divisions relate to matters of concern for persons in both classes. Division 3 of Part 2 now deals with "Cessation of Australian citizenship", Division 4, with "Evidence of Australian citizenship", and Division 5, with "Personal identifiers". 77 Before leaving Subdivision A of Division 2 of Part 2, it is important to consider the manner in which the provisions within it operate together, particularly the effect of s 19A. 78 The Minister's decision to approve or refuse to approve a person becoming an Australian citizen under Subdivision A, Division 2 of Part 2 of the Citizenship Act is essentially non-discretionary. Once an application for citizenship is made under s 16(1), the Minister is required by s 17(1) to approve, or refuse to approve, the person becoming an Australian citizen. The Minister must not approve an application under s 16(1) if the person is not eligible under s 16(2) or 16(3): see s 17(1A). Conversely, the Minister "must approve the person becoming an Australian citizen" if the person is eligible to become an Australian citizen under s 16(2) or 16(3)" unless the Minister is not satisfied of the person's identity or certain national security exceptions apply: ss 17(2)-(4A). Citizenship begins for a person on the day on which the Minister approves the person becoming an Australian citizen: see s 19. Section 19A further provides that: Despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless: (a) if the person was born on or after 26 January 1949 - a parent of the person was an Australian citizen at the time of the person's birth; or (b) if the person was born before 26 January 1949 - a parent of the person became an Australian citizen on 26 January 1949. 79 Section 19A may give rise to particular and possibly unintended difficulties for certain individuals if the Minister's construction is preferred. Let it be assumed that "parent" in s 16(2) is limited to a biological parent. Let it also be assumed that, acting under s 17(2), the Minister approved an applicant becoming a citizen, on the basis that the applicant was eligible under s 16(2), in circumstances that did not involve DNA testing. Typically, so counsel for the Minister said, there would be no DNA testing in circumstances falling within a presumption of parentage in the Family Law Act or State legislation (as, for example, s 5 of the Status of Children Act 1974 (Vic)). Let it also be assumed that the Minister so approved the applicant in his infancy. The applicant grew up in Australia and subsequently fulfilled the obligations of citizenship. If, for some reason (medical or familial perhaps), such a person in later life were to be the subject of DNA testing from which it appeared that his supposed citizen parent was not in fact his biological parent, then, on the Minister's construction, such a person would never have become an Australian citizen. (In some circumstances a similar difficulty might arise under s 12(1).) Further, without a visa, such a person would be an unlawful non-citizen liable to deportation under the Migration Act 1958 (Cth). Perhaps, he might be eligible for a visa under s 35 of that Act, but eligibility for such a visa is limited and it would not permit re-entry to Australia. 80 These difficulties would be unlikely to arise if "parent" in s 16(2) were not limited to biological parent in the way the Minister contends. 81 It will be seen from the foregoing that the Minister's argument relied heavily on the presumptions as to parentage in the Family Law Act and in State legislation. These presumptions lay at the heart of the Minister's argument that his proposed construction meant that s 16 of the Citizenship Act operated fairly and efficiently, whilst the opposing parties' construction would operate inefficiently. There is, however, no provision in the Citizenship Act that permits the Minister to pick up and apply the specific presumptions in the Family Law Act in a general inquiry under s 16. On the contrary, where the Citizenship Act picks up provisions of the Family Law Act (and through the Family Law Act, State legislative provisions), it does so expressly: see, for example, Citizenship Act, s 8 and the definition of "child" in s 3. There is moreover nothing in the Family Law Act that indicates that its provisions are generally applicable in other Commonwealth legislation (absent express provision). It follows therefore that these statutory presumptions have no legal operation in settling a question of parenthood under s 16(2) of the Citizenship Act. Further, one may doubt whether the common law presumption of legitimacy can properly be applied in determining a matter arising under a statute that no longer treats marriage as a relevant criterion in determining eligibility for citizenship. If these presumptions have no part to play in a Ministerial decision under s 17, then a decision under s 17 must be made in the ordinary way, including by having regard to all the circumstances of the case that are disclosed to the decision-maker and by reference to the ordinary experience of a member of the Australian community. In this case, none of the constructions favoured by the parties would appear to have any particular advantage so far as efficiency and fairness are concerned. 82 It is convenient to note at this stage that both the Minister and the opposing parties directed argument to the common law presumption of legitimacy, under which a child born in wedlock was presumed legitimate: see Cocks v Juncken (1947) 74 CLR 277 at 285, 288 (Latham CJ), 292-93 (Starke J), 294 (Dixon J), 309, 311 (Williams J); also Magill v Magill (2006) 226 CLR 551 at 572-73 [54], 885 [107]-[108] (Gummow, Kirby and Crennan JJ). In Cocks v Juncken Dixon J said (at 294): The law of to-day appears to me to provide a simple presumption of legitimacy which applies to children born during a marriage, whether conceived before or after the marriage took place, and to children conceived during the marriage, whether born before or after the marriage is dissolved by the husband's death or otherwise. The presumption is rebuttable in all these cases by proof that sexual intercourse between the husband and the mother could not have taken place or did not take place at a time which would account for the pregnancy, having regard to the date of the child's birth. 83 Rebutting the presumption required clear and convincing evidence that, in the natural order of things, the husband could not have fathered the child: compare Cocks v Juncken at 284, 288 (Latham CJ), 290 (Rich J), 292 (Starke J), 294, 307 (Dixon J), and 311-312 (Williams J). Therefore, in ordinary circumstances, if a child was born to a married woman, then her husband was presumed the father of the child. 84 The function of the presumption can only be understood be reference to its historical origins. Historically, a biological connection was insufficient to establish parentage since at common law a child born outside wedlock was filius nullius. In that instance, the biological father owed no legal duties to his biological offspring. Nor had he any parental rights. Before the introduction of modern legislation designed to ensure that the legal rights of children were not adversely affected by their biological parents' marital status, the common law presumption of legitimacy was important in protecting children's rights, particularly property rights of inheritance: see Magill v Magill at 572-73 [54]; compare Status of Children Act 1974 (Vic), Status of Children Act 1974 (Tas), Family Relationships Act 1975 (SA), Children (Equality of Status) Act 1976 (NSW), repealed and replaced by Status of Children Act 1996 (NSW), Status of Children Act 1978 (Qld), Status of Children Act 1979 (NT), and Parentage Act 2004 (ACT). Whilst biological considerations might operate to rebut the presumption, the presumption generally operated by reference to the social institution of marriage. This may be considered illustrative of the proposition that in human societies over time parentage is what society understands it to be. 85 An incident of the protection afforded by the presumption was that the presumption would generally have operated so as to ensure that a child born to a married woman outside Australia (and earlier the British Dominions) would ordinarily acquire the status of her husband as an Australian citizen (or earlier, British subject): see the legislative history of the Nationality and Citizenship Act 1948 (Cth), discussed below, especially at [110]. As counsel for Ms McMullen noted, at a time before DNA testing to establish paternity, a person might thereby acquire citizenship, whether or not the child was, genetically speaking, the offspring of the husband.

Other provisions of the Citizenship Act 86 The Minister also relied on the specific language used in s 2A and on particular provisions outside Subdivision A of Division 2 of Part 2 to support his submission that "parent" in s 16(2) of the Citizenship Act meant biological parent. In this regard the Minister made a number of points, none of which, so it seems to us, greatly assist in answering the question raised by the appeals. 87 First, the Minister relied, though relatively slightly, on s 2A, which in terms provides a "simplified outline" of the Act. Regarding "citizenship by descent", the outline states: Generally, you would apply for this if you were born outside Australia and one or both of your parents were Australian citizens when you were born. The Minister argued that the reference to "one or both of your parents" supported a reading limiting s 16(2) to two biological parents. 88 Section 2A is part of the Citizenship Act and cannot be ignored in the process of construction. Perhaps such an outline may help resolve ambiguities in, or doubts about the scope of, other provisions of the Act. Since it is only a "simplified outline", however, it is improbable that s 2A would alter the clear meaning of a provision or, indeed, resolve a constructional issue of any complexity. 89 In the present instance, considering that the provision offers only a "simplified" outline and that that "outline" is relevantly qualified by "generally" (see the above quoted passage), it is inappropriate to rely on the use of the word "both" in the phrase "one or both of your parents" to justify any particular interpretation of the word "parent" in s 16(2). In any case, the outline is silent as to the basis of parental status; no mention is made of a relevant biological connection. 90 The Minister also identified two other provisions said to indicate that, where Parliament intended to address non-biological parents, it did so by specific provision. These provisions were s 8 dealing with artificial conception procedures and surrogacy and s 13 concerning adoption. 91 Section 8 is headed "Children born as a result of artificial conception procedures or surrogacy arrangements" and provides: (1) This section applies if a child is: (a) a a child of a person under section 60H or 60HB of the Family Law Act 1975; and (b) either: (i) a child of the person's spouse or de facto partner under that section; or (ii) a biological child of the person's spouse or de facto partner. (2) The child is taken for the purposes of this Act: (a) to be the child of the person and the spouse or de facto partner; and (b) not to be the child of anyone else. Broadly speaking, the effect of s 8 is to deem a child born as a result of surrogacy arrangements or artificial conception procedures to be a child of a person (in the circumstances outlined) although there is no relevant biological connection with the child; and, further, to deem that child to be a child of a person and a spouse or de facto partner to the exclusion of anyone else. 92 Counsel for the Minister argued that a separate section addressing surrogacy and artificial conception procedures would be unnecessary if s 16(2) encompassed a conception of parenthood broader than the biological. We reject this submission. The issues that may arise from surrogacy arrangements and artificial conception procedures are especially complex. Moreover, they are new issues in the sense that they are the consequences of comparatively recent major developments in science and technology and have required clear and specific responses from Parliament to protect the rights of persons, particularly children born under these regimes. It is therefore unsurprising that Parliament has addressed these circumstances separately. 93 At most one might observe that Parliament's reference to "biological child" in s 8(1)(b)(ii) indicates that Parliament has turned its mind in this instance to the need to qualify a familial relationship in biological terms. It has not done so in the case of "parent" in s 16(2)(a). This may lend support to the contention that Parliament intended the word "parent" in s 16(2)(a) to be understood in its ordinary sense (what ever that may be), without any specific limitation of the kind for which the Minister contends. 94 Under s 13, a person is an Australia citizen if: (a) adopted under a law in force in a State or Territory; and (b) adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and (c) present in Australia as a permanent resident at that time. 95 Again, the Minister argued that this section would be superfluous if a broad understanding of "parent" were intended in s 16(2). We would reject this argument as well. Section 16(2) looks to the time of the birth of a person and treats this time as relevant for determining eligibility for citizenship by descent. In Australia a person is adopted after the time of birth, and usually well after this time: see Adoption Act 1993 (ACT); Adoption Act 2000 (NSW); Adoption of Children Act 1994 (NT); Adoption Act 2009 (Qld); Adoption Act 1988 (SA); Adoption Act 1988 (Tas); Adoption Act 1984 (Vic); and Adoption Act 1994 (WA). Section 13 recognises this, treating the time of the adoption as the relevant time for the purposes of eligibility for citizenship. 96 The Minister also relied on s 7(2) of the Citizenship Act, which provides that "the status of a parent of a person at the time of the person's birth, is, for a parent who died before the birth, taken to be the status of the parent when the parent died". This provision is silent about the need for biological connection; and is also consistent with the fact that the word is to be understood in its ordinary sense. Whether or not a person was a parent prior to birth is essentially a matter of fact to be determined in the ordinary way, by reference to the circumstances disclosed and the ordinary experience of a member of the Australian community. 97 One must conclude that there is little, if anything, in the text or structure of the Citizenship Act that would support the proposition that, in the specific context of s 16(2), the word "parent" only can mean biological parent, irrespective of the ordinary meaning of the word. 98 On the contrary, textual and structural considerations would support the proposition that the word "parent" in s 16(1)(a) bears its ordinary meaning and that it is essentially for the decision-maker to determine whether or not a person was a "parent" as ordinarily understood, having regard to the facts before him or her. 99 Counsel for Ms McMullen sought to support the Tribunal's understanding of "parent" in McMullen by reference to two other provisions. The first is consistent with her case, but the second can be put to one side. Counsel relied in this connection on s 47(2), invoking the principle that the same meaning should generally be given to the same word in different parts of a statute: see McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 ('McGraw-Hinds') at 643. Section 47(2) provides that where an applicant for citizenship is a child, the Minister satisfies the requirement that the Minister give notice of his or her decision on the application by giving notice to "a parent of the child". Counsel argued that this provision was difficult to square with a reading that limited "parent" in s 16(2) to biological parent. Notice to a biological parent, who had not accepted his parental status or, though accepting biological responsibility, had no other connection with the child would as a practical matter fail to meet the evident purpose of the provision. It is therefore probable that, if s 16(2) were interpreted as limiting "parent" to "biological parent", s 47(2) would need to be understood as using the same word with a different meaning. 100 This might be thought to indicate that the word "parent" is not used exclusively in the Citizenship Act to refer to a biological parent, although as the decision in McGraw-Hinds itself shows, "[t]he rule that the same words which occur in different parts of a statute have the same meaning is one which 'must yield to the requirements of the context'": McGraw-Hinds at 643 (Gibbs J, citing Madras Electric Supply Corp Ltd v Boarland [1955] AC 667 at 685). As noted, however, there is little indication in the context of the Citizenship Act that the word "parent" was intended to be understood in any specifically restrictive way. 101 Counsel for Ms McMullen also relied on the terms of s 36 of the Citizenship Act, pursuant to which the Minister might revoke a child's citizenship if his or her responsible parent ceases to be an Australian citizen: see s 36(1). Under s 36(2), however, s 36(1) will not apply to a child if, at the relevant time, the child has another responsible parent who is an Australian citizen. As noted above, a "responsible parent" is a defined term and, generally speaking, refers to a person having parental responsibilities towards a child. These provisions indicate that Parliament has not automatically tied the loss of citizenship by a child to the loss of citizenship by a biological parent; and indeed has allowed for the retention of citizenship that would otherwise be lost where the child retains a responsible (perhaps non-biological) citizen parent. Save at this very general level, these provisions do not, however, offer much assistance with the present question, because they depend on the defined expression "responsible parent" - an expression that is not used in s 16(2). 102 If these admittedly modest indications within the statute support the proposition that the word "parent" has the meaning assigned to it in everyday current usage, is there anything in the legislative history that casts more light on the question at issue? Both the Minister and the opposing parties referred the Court to this history, which is discussed in some detail hereafter.

Legislative history 103 The legislative history of citizenship in Australia is central to understanding the significance of the question raised in these appeals. This history clearly supports the following two propositions. (1) In Australia, the legal concept of citizenship is comparatively recent, having been introduced by Nationality and Citizenship Act 1948 (Cth) (later called the Australian Citizenship Act 1948 (Cth)). (2) Eligibility for citizenship has significantly altered over time in response to political and social changes, including the emergence of Australia as an independent national state, the recognition that men and women have equal legal status, and the recognition that the rights of persons should not depend on the marital status of their parents. 104 To these, we would add a third relevant proposition. (3) For the purposes of statutory eligibility, in relation to persons born outside Australia, there is little, if anything, to warrant the conclusion that the citizen parent (through whom the citizenship claim is made) can only be a person having a genetic connection with the claimant. 105 Citizenship is not a constitutionally-defined concept in Australia. As Gaudron J said in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 ('Lim') at 54: Citizenship, so far as this country is concerned, is a concept which is entirely statutory, originating as recently as 1948 with the enactment of what was then styled the Nationality and Citizenship Act 1948 (Cth). It is a concept which is and can be pressed into service for a number of constitutional purposes … But it is not a concept which is constitutionally necessary, which is immutable or which has some immutable core element ensuring its lasting relevance for constitutional purposes. (footnotes omitted) From time to time, other members of the High Court have made similar statements: see also Singh 222 CLR at 364 [96] (McHugh J) and DJL v The Central Authority (2000) 201 CLR 226 at 277-78 (Kirby J). Before the 1948 Act, people in Australia were, relevantly, either British subjects or aliens. As McHugh J noted in Singh 222 CLR at 364-5 [96]: The concept of the "natural born subject" was also recognised by the Australian colonies in the mid-nineteenth century in domestic naturalisation legislation. … [T]he natural born subject owed from birth permanent allegiance to the Crown. In turn, the Crown owed duties of protection to the subject. For the earlier history, see Singh at 359-63 [81]-[91] (McHugh J); 386 [164], 388-90 [170]-[174], 391-93 [178]-[181] (Gummow, Hayne and Heydon JJ); 405-6 [223]-[225] (Kirby J); and 425-28 [298]-[301] (Callinan J); and Re Patterson 207 CLR at 428-30 [114]-[116] (McHugh J) and 440 [148] (Gummow and Hayne JJ). 106 The Naturalization Act 1903 (Cth) was enacted by the Commonwealth Parliament shortly after Federation and came into force on 1 January 1904. The 1903 Act and its successor, the Nationality Act 1920 (Cth), were principally concerned with the naturalisation of persons as British subjects. There was no legal concept of citizenship. Under the 1903 Act, the Commonwealth assumed the exclusive authority to issue certificates of naturalisation, although persons previously naturalised under colonial or State law were "deemed to be naturalized" (ss 13, 4). The grant of a certificate of naturalisation assured the grantee "all political and other rights powers and privileges", and subjected him to all obligations, in the Commonwealth to which other natural-born British subjects were entitled or subject (s 8). However, "an aboriginal native of Asia, Africa, or the Islands of the Pacific, excepting New Zealand" was not eligible for a certificate of naturalization under the 1903 Act, as first enacted (s 5). The 1903 Act made particular provision for infants, stating (in s 10): An infant, not being a natural-born British subject - (a) whose father, or whose mother (being a widow or divorced), has obtained a certificate of naturalization; or (b) whose mother is married to a natural-born British subject or to a person who has obtained a certificate of naturalization; and who has at any time resided in Australia with such father or mother, shall in the Commonwealth be deemed to be naturalized and have the same rights powers and privileges, and be subject to the same obligations, as a person who has obtained a certificate of naturalization. 107 The Nationality Act 1920 (Cth) largely followed the British Nationality & Status of Aliens Act 1914 (UK). Under the 1920 Act, natural-born British subjects were deemed (by s 6) to be: (a) any person born within the dominions of the Crown; (b) any person born on board a British ship; and (c) any person born outside the Crown dominions: whose father was a British subject at the time of that person's birth and either was born within His Majesty's allegiance or was a person to whom a certificate of naturalization had been granted, or had become a British subject by reason of any annexation of territory, or was at the time of that person's birth in the service of the Crown. Provision for certificates of naturalisation continued to be made, but natives of Asia, Africa, and the Pacific Islands of the Pacific were no longer ineligible. Naturalisation certificates could not, however, be granted to a person "under a disability", an expression covering "the status of being a married woman, or a minor, lunatic or idiot" (ss 10 and 5). 108 As already stated, Australian citizenship was not a legally-recognized concept until it was introduced into Australian law by the Nationality and Citizenship Act 1948 (Cth), later renamed the Australian Citizenship Act 1948 (Cth), which took effect on 26 January 1949. The concept of Australian citizenship emerged as Australia moved to independent nationhood and, as will be seen, it also altered as social norms relevant to defining membership of the Australian body politic changed. 109 When first enacted, the 1948 Act (in s 10) provided a definition of an "Australian citizen" applicable to people born after the commencement of the Act. Broadly speaking, s 10 provided that a person born in Australia after the commencement date was an Australian citizen. There was transitional provision (in s 25) under which people who were British subjects immediately before that date could become Australian citizens. There was also provision for citizenship by naturalization (s 14) and loss of citizenship (ss 17-23). 110 Relevantly, pursuant to s 11, from 26 January 1949 to 30 April 1970, a person born outside Australia was an Australian citizen by operation of law if: at the time of birth the father was an Australian citizen; or at the time of birth the unmarried mother was an Australian citizen (or a British subject ordinarily resident in Australia or New Guinea); and the birth was registered at an Australian consulate within a year of the birth (or, in special circumstances, within such time as the Minister allowed). Only if born "out of wedlock" (see s 11) could a person's Australian citizenship derive from the mother's citizenship at the time of birth. 111 The 1948 Act was amended on a number of occasions, and the law regarding eligibility for citizenship for persons born overseas underwent various transformations. It is unnecessary to refer to amendments between 26 January 1949 and 30 October 1959. It suffices to note the effect of Citizenship Act 1969 (No 22 of 1969), with effect from 1 May 1970. By virtue of the amendments effected by this Act, persons born to married women who were Australian citizens at the time of their birth became eligible to acquire citizenship by registration. Notwithstanding its retrospective operation, persons who had turned 18 were unable to take advantage of this provision - a matter that was later remedied by s 10C. Thus, broadly speaking, from 1 May 1970 until 21 November 1984, a person born outside Australia (on or after 26 January 1949) was an Australian citizen by operation of law ( s 11(1)) if: (a) in the case of a person born in wedlock - at the time of the birth his father or mother was an Australian citizen; or (b) in the case of a person born out of wedlock - at the time of the birth his mother - (i) was an Australian citizen; or (ii) was, or had the status of, a British subject and was ordinarily resident in Australia or New Guinea, and, in either case, the birth was or is registered at an Australian consulate within five years after its occurrence or within such further period as the Minister allowed or allows. (Emphasis added) In effect, being born in or out of wedlock was a key criterion for determining eligibility from 26 January 1949 until 21 November 1984. Under the 1948 Act as originally enacted, save in unusual circumstances, a person born to a married woman would become an Australian citizen if her husband was an Australian citizen at the time of the birth: see [82] and following above. 112 The Australian Citizenship Amendment Act 1984 (Cth) ('the 1984 Act') further amended statutory eligibility for citizenship. Relevantly, s 11 of the 1948 Act was replaced by new s 10A, concerning citizenship by adoption, and new s 10B, addressing citizenship by descent. Before 1984, citizenship by descent for persons born outside of Australia was determined by reference to the citizenship of either the person's "father" or "mother" or both, depending on the circumstances. The new s 10B was the first time the term "parent", rather than "mother" or "father", was used in connection with citizenship for persons born outside Australia. The change was, however, relevantly, silent on the present question: the change reflected not only the recognition that men and women have equal legal status, but also that the rights of persons should not depend on the marital status of their parents. It was not directed to limiting the meaning of parentage, whether to biological parents or otherwise, a limitation that would, in any case, have been inconsistent with its other provisions: see [115]. 113 By virtue of s 10B persons born outside Australia acquired Australian citizenship by operation of law if: (1) their birth was registered at an Australian consulate within 18 years of birth; and (2) a parent "being a parent of the relevant person at the time of the birth" was an Australian citizen otherwise than by descent under s 10B (or under the former s 11). Where a parent was an Australian citizen by descent, the parent had also to have been present in Australia at any time before the registration of the name of the relevant person, "otherwise than as a prohibited immigrant, as a prohibited non-citizen, or in contravention of a law of a prescribed Territory". If one parent were not an Australian citizen at the time of birth, then there could be no registration under s 10B unless: (a) at least one person who is, at the time of the application, a responsible parent of the relevant child, was, at the time of the birth of the relevant child - (i) a parent of the relevant child; and (ii) an Australian citizen; or (b) a person who was, at the time of the birth of the relevant child - (i) a parent of the relevant child; and (ii) an Australian citizen, is dead. A responsible parent, in relation to a child, was defined in s 4(1) as: a person, whether or not a parent of the child, who, under a law in force in a foreign country or a law of the Commonwealth, a State or a Territory, whether by reason of adoption, operation of law, an order of a court or otherwise, has guardianship or custody of the child whether jointly or otherwise. 114 Section 10B introduced into the citizenship by descent provisions the notion of "responsible parent" as opposed to merely a "parent". The provision contemplated a distinction between "parent" and "responsible parent" - the later requiring no genetic connection to qualify as a "responsible parent". The provision made it clear that, where a person born outside Australia had living parents, only one of whom was a citizen parent, eligibility for citizenship required that the citizen parent was a citizen parent at the time of birth and a responsible parent at the time of application. 115 Elsewhere, the 1984 Act indicated that lack of genetic connection would not necessarily disqualify a person from parentage of a particular child and from conferring citizenship upon that child. Thus, a new s 6 provided that "[a] child born to a woman as a result of the carrying out, during the period in which the woman was married to a man, of a medical procedure in relation to that woman, being a child who is not biologically the child of that man, shall … be deemed to be a child of that man … if the medical procedure was carried out with the consent of that man". Under the Act as it stood then, in the circumstances with which s 6 is concerned, a person born outside Australia (having a citizen and non-citizen parent) might derive citizenship through such a man if he had Australian citizenship at the time of the birth and was a responsible parent at the time of application. 116 The 1948 Act was further amended in 1990 and 1991. These amendments were directed at remedying specific deficiencies in the Act as it then existed, but they also introduced for the first time the terms "natural mother", "natural child" and "natural parent". In particular, the Australian Citizenship Amendment Act 1990 (Cth) introduced a new s 11, which specifically provided for citizenship by descent for people born outside Australia or New Guinea before 26 January 1949 whose "natural mother" was an Australian citizen on 26 January 1949, either by birth or naturalisation. Section 11(2) permitted an applicant for citizenship under s 11(1) to include in the application "any natural child of the applicant, regardless of the child's age". Section 11(4) further provided that "[t]he applicant, and any natural child of the applicant included in the application" became Australian citizens on the day on which the applicant was registered as such. The Explanatory Memorandum to the Australian Citizenship Amendment Bill 1990 (Cth) circulated in the House of Representatives indicated (at [8]) that the term "natural children" was intended to signify "biological children, including children born out of wedlock, but not adopted children or step-children". Presumably, the term "natural mother" was intended to be understood in the correlative sense. See also the Minister's second reading speech, Australian Citizenship Amendment Bill 1990 (Cth), House of Representatives, 12 November 1990, at p 3756. 117 As Professor Kim Rubenstein explains in her book, Australian Citizenship Law in Context (Lawbook Co, 2002) p 97, there were significant practical difficulties for people seeking to rely on this new provision, which was introduced in the first place for a relatively straightforward reason - "to correct an anomaly, an inequity based on gender": see Jack Grossberg v Department of Immigration and Ethnic Affairs [1995] AATA 211 at [17]. The practical difficulties arose from the time requirements in s 11(3) and the relevant Regulations, together with relevant legislative commencement date. 118 The Australian Citizenship Amendment Act 1991 (Cth) added a new s 10C to overcome these timing difficulties. That is, s 10C was inserted to allow persons who had failed to be registered before turning 18, particularly those born to married parents, where the mother only was an Australian citizen, between 26 January 1949 and 30 April 1970: see Rubenstein op cit p 98. Section 10C provided for the acquisition of citizenship by operation of law by people over 18 years of age born on or after 26 January 1949 and 18 or over when s 10C commenced, who "failed for an acceptable reason to become registered as an Australian citizen" under s 10B or the former s 11 and were of good character. As with the earlier s 10B, eligibility was limited to person with a natural parent who was an Australian citizen at the time of birth and the time of application (or, if the parent was deceased, at the time of the parent's death). In his second reading speech, the Minister stated that he expected that the number of people obtaining citizenship under this provision would be small: see the Minister's second reading speech, Australian Citizenship Amendment Bill 1991 (Cth), House of Representatives, 7 November 1991, at p 2648. 119 As indicated at the start of these reasons, both the Minister and the opposing parties relied on the use of the terms "natural mother", "natural child" and "natural parent" in the 1990 and 1991 amendments. The Minister argued that the use of "natural parent" in s 10C favoured his construction. The Minister said that, since s 10C was intended as a remedy for individuals who had missed the opportunity to register as citizens under s 10B, if "natural parent" in s 10C were narrower in scope than "parent" in s 10B, then s 10C would not have had its intended remedial effect. Perhaps so, although this disregards the fact that the adjective "natural" was first introduced by s 10B. The opposing parties argued, on the other hand, that by using this term in ss 10B and 10C, Parliament showed that, if it wished to limit the "parent" and "child" relationship to a biological one, it would specifically do so. Since Parliament had omitted the limiting word "natural" from the current s 16(2), then, so the argument went, Parliament must have determined not to retain the biological limitation. 120 We would not accept either argument. The legislative history shows that Parliament adopted the adjective "natural" in s 10B (and later s 10C) to ensure that the rights conferred by statute were the same for persons born in wedlock and persons born out of wedlock. In seeking to remove parental marital status as a relevant criterion, Parliament introduced (briefly as it happened) an expressly biological qualification. Sections 10B and 10C were designed to remedy particular problems, which in the case of s 10C affected a small group of people. Bearing this in mind, not much can be read into the use of the qualifying "natural" other than an intention, as noted, to ensure that no distinction was drawn between persons born in or out of wedlock. Equally, one cannot read a great deal into the omission of the qualifying adjective in the current form of s 16, especially as, by the time the Citizenship Act commenced on 1 July 2007, discrimination based on whether a person was born in or out of wedlock was no longer a common feature of the law or society. In this context, all that can be inferred from the omission of the adjective is that Parliament intended that the word "parent" be accorded its ordinary meaning - a meaning that was to be consistent with contemporary social norms. That Parliament intended that this should be the governing approach to the new Citizenship Act is confirmed by the Minster's Second Reading Speech: see below at [121]. 121 The current Citizenship Act replaced the Australian Citizenship Act 1948 (Cth), with s 16 replacing the previous provisions of the 1948 Act dealing with eligibility for persons born outside Australia and claiming citizenship through a parent. The Revised Explanatory Memorandum that was circulated with the Australian Citizenship Bill 2005 explained that new Subdivision A of Division 2 of Part 2 "mirrors the provisions of the old Act", although comparison with the former legislation, especially the predecessor provisions to s 16, shows that this was not entirely true. Relevantly, for present purposes, the Minister's second reading speech emphasized that the new Act was intended to "deliver [a] better structured, clearer, more accessible law, drafted in the language of the 21st century" (emphasis added): see Parliamentary Debates, 9 November 2005, p 9. One cannot, of course, attach overly much significance to such a statement, although it apparently confirms that, where they appear in the Citizenship Act, words in ordinary English usage are to be understood to have their ordinary contemporary meaning.

Opening the floodgates? 122 The Minister argued that a reading of "parent" as extending beyond biological parentage would create "anomalous and indeterminate" and "arbitrary" results. We doubt that this would be the case. First, as emphasized already, s 16(2) contains a narrow time requirement: a claimant must show that, at the time of birth, he or she had a citizen parent. This inevitably circumscribes the field of eligibility. For example, even infant adoptees would be unable to satisfy this requirement. Secondly, judicial acceptance that parentage is not limited to a biological relationship in analogous provisions in citizenship statutes elsewhere has not had the consequences described by the Minister. 123 In the case of a child not born out of wedlock, the law in the United States does not require a blood relationship between a child born outside the country and the child's citizen parent in order for that parent to pass US citizenship to the child: see Scales v Immigration and Naturalization Service, 232 F.3d 1159 at 1161, 1166 (9th Cir. 2000) ('Scales'); and Solis-Espinoza v Gonzales, 401 F.3d 1090 at 1093 (9th Cir. 2005) ('Solis-Espinoza'). Only where a child is born out of wedlock and relies on the citizenship of his father does the law expressly require a "blood relationship" in order for a child born outside the country to obtain US citizenship through the child's citizen parent: see 8 U.S.C. s 1409(a)(1). In the absence of a similar requirement in the provisions applicable to children born of legally married parents (see 8 U.S.C. s 1401(c)-(e), (g)), courts in the United States have not read the term "parent" as limited to biological parent, and there is no requirement of a blood relationship between the child and the parent. 124 In Scales, the petitioner was born in the Philippines and his mother was a Philippine citizen. The man whom the petitioner knew as his father was a US citizen-serviceman stationed in the Philippines. He met and married the petitioner's mother while she was pregnant with the petitioner. This man had sworn an affidavit in which he stated that, although he was not the petitioner's biological father, he accepted him as his "own son in every legal sense permissible". The family moved to Texas together when the petitioner was two years old, and the court noted that there was "nothing in the record to indicate that [the man the petitioner knew as his father] ha[d] ever treated [the] [p]etitioner as other than his own son": Scales at 1162. Looking to state-law presumptions of legitimacy, the court found that the petitioner was not born "out of wedlock", and the provision requiring a "blood relationship" therefore did not apply. Under the applicable statute, the petitioner was a US citizen if he was "born . . . of parents one of whom . . . [was] a citizen of the United States" who met the applicable physical presence requirements: Scales at 1163. The petitioner thus acquired citizenship through his parent although that parent was not his biological father. 125 The situation in Solis-Espinoza was similar, with the difference that the non-biological citizen-parent was the mother, rather than the father, of a child born outside the United States. The facts as described by the court were as follows (Solis-Espinoza at 1091-92): Solis-Espinoza was born in Tijuana, Mexico in 1967. He was raised in the United States by his biological father, Refugio Solis, a Mexican citizen and lawful permanent resident of the United States, and his father's wife, Stella Cruz-Dominguez, a natural-born United States citizen. Solis and Cruz-Dominguez were married at the time of Solis-Espinoza's birth. Solis-Espinoza's biological mother was Maria Luisa Cardoza, a Mexican citizen, who abandoned him. Cruz-Dominguez accepted the infant as her own child, and the couple raised him to adulthood as part of their family. Indeed, Cruz-Dominguez is listed as Solis-Espinoza's mother on his birth certificate, although petitioner concedes that she is not his biological mother. 126 The court found that Ms Cruz-Dominguez, although not Mr Solis-Espinoza's biological mother, was his mother for purposes of the applicable citizenship provision, observing that "[the] result is logical. In every practical sense, Cruz-Dominguez was petitioner's mother and he was her son. There is no good reason to treat petitioner otherwise. Public policy supports recognition and maintenance of a family unit": Solis-Espinoza at 1094.

Bringing the threads together 127 There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the court to conclude that, in the specific context of s 16(2), the word "parent" only can mean biological parent. Indeed, these considerations indicate that the better view is that the word "parent" in s 16(2) has the meaning it bears in ordinary contemporary English usage. Indeed, legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word. 128 The word "parent" is an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognizes, not all parents become parents in the same way: see, e.g., s 8 of the Citizenship Act; H v J (2006) 205 FLR 464 at 466, citing Re Patrick (2002) 168 FLR 6 at [323], [325] (Guest J). This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do. 129 Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate and Territory laws such as the Status of Children Act 1974 (Vic). Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the "parents" of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one's own and treating him or her as one's own. 130 The ordinary meaning of the word "parent" is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant's birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant's parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent's conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word "parent" at the time of the birth. In the case of Ms McMullen, this was in substance the conclusion reached by the Tribunal with regard to Mr McMullen. The Minister has not shown any relevant error in the Tribunal's finding that Mr McMullen could qualify as Ms McMullen's Australian citizen parent for the purpose of s 16(2)(a) of the Citizenship Act. 131 We can discern no relevant justification for holding, as the Tribunal did in NWH's case, that a person can only be a "parent" within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant. If the Minister's argument in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on DNA test undertaken for other reasons, that under the law he is not and never was a citizen: see Citizenship Act, ss 16(2)(a), 17(1A), 19A. As a practical matter, we do not consider that Parliament would have intended the likely unfortunate results of the Minister's construction (see [79]). The practical effect of this construction would be to accord the science of genetics a status that Parliament has not given it.

DISPOSITION 132 For the reasons stated, the appeal in NSD 1320 of 2009 should be allowed, the decision of the Tribunal of 28 October 2009 set aside, and the matter be remitted to the Tribunal, differently constituted, to be heard and determined according to law. The Minister should pay the applicant's costs of and incidental to the appeal. 133 For the reasons stated, the appeal in VID 705 of 2009 should be dismissed. The Minister did not challenge the form of the directions made by the Tribunal in that case, although it would appear that further inquiry into Mr Davidson's citizen status at the time of Ms McMullen's birth may be unnecessary. The Minister should pay the respondent's costs of and incidental to the appeal. 134 As always, the Court expresses its gratitude to pro bono counsel. I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Kenny & Tracey.