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[2005] HCA 66
defendant. Both writs of summons were struck out and both actions dismissed. Each plaintiff was ordered to pay the costs of the summonses and the costs of the action.
McHugh J dismissed two challenges to Commonwealth citizenship and migration legislation. The statements of claim did not plead facts supporting the requested declarations, and their legal arguments did not establish an arguable case even on assumed facts similar to Singh. The judgment held that Parliament had power to legislate about citizenship, both because the Commonwealth is a national polity and because constitutional powers concerning aliens, naturalisation and immigration support that authority. It also explained that citizenship is a formal membership status on which other laws may confer consequences. Both actions were dismissed with costs.
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2,157 words · generated 05/10/2026
These joined proceedings concerned two infant plaintiffs, Bonnie Hwang and Roger Wenjie Fu, who brought actions against the Commonwealth of Australia and another defendant. The plaintiffs sought declarations about their Australian citizenship, the validity of Commonwealth citizenship legislation and whether the Migration Act 1958 (Cth) applied to them. McHugh J heard the defendants’ applications to strike out both writs.
10 cited instruments linked from this judgment.
The relief claimed in Hwang’s action included declarations that she acquired and retained Australian citizenship by birth, alternatively Australian nationality as a subject of the Queen, and that s 10(2) of the Australian Citizenship Act 1948 (Cth), or alternatively the Act as a whole, was beyond Commonwealth power. The claim also sought a declaration that s 198 of the Migration Act did not apply to her [1]. Fu sought corresponding relief.
The central difficulty was that the statements of claim did not set out supporting facts. McHugh J described them as containing “two conclusory ‘grounds’ of law” and particulars consisting of legal argument, rather than material facts [2]. Plaintiffs’ counsel accepted that facts relevant to the plaintiffs needed to be pleaded. For the strike-out application, counsel asked the Court to assume facts equivalent to those in Singh v The Commonwealth: a child born in Australia to non-resident alien parents [3].
The defendants argued that neither statement disclosed an arguable cause of action. McHugh J agreed. He ordered both writs struck out and both actions dismissed, with each plaintiff to pay the costs of the summonses and action [20; Order].
The reasons therefore address two connected matters. First, they explain why the legal challenges failed even on the assumed facts. Second, they make broader observations about the constitutional source of Commonwealth power over citizenship and the meaning of citizenship as a legal status.
The plaintiffs’ argument, as presented orally, was that the Commonwealth’s citizenship power did not exist at federation. They submitted that it arose only when Australia became an independent sovereign nation, and that because the power came from international law it was subject to international-law constraints. They relied particularly on Art 3(1) of the Convention on the Rights of the Child, which says that the best interests of the child must be a primary consideration in actions concerning children [6].
McHugh J rejected the proposed connection between international law and the source of legislative power. Even if the Commonwealth’s power to legislate about citizenship arose from Australia’s independence, he reasoned, the relevant source would be the fact of independent sovereignty and recognition by other nations, not the whole body of international law [8]. He then stated that Australia’s emergence as an independent sovereign nation was itself sufficient to authorise legislation about citizenship [9].
However, the judge did not rest the conclusion solely on sovereignty. He rejected the plaintiffs’ premise that the power did not exist at federation. In his view, the Commonwealth had always had power to define membership of the Australian community, deriving from express and implied constitutional powers [10]. He connected this authority with the Constitution’s references to “the people of the Commonwealth”, and with the Commonwealth’s express powers concerning aliens, naturalisation and immigration [11], [17]–[18].
The reasoning treats “the people of the Commonwealth” as closely corresponding to Australian citizenship. The Constitution’s text and historical context mattered: it repeatedly referred to the people, while s 44(i) referred to the citizenship or subject status of a foreign power [11]–[16]. McHugh J considered that the Commonwealth Parliament needed power to identify who belonged to the national community, alongside its powers to exclude certain people or admit others through immigration, aliens and naturalisation legislation [17]–[18].
The judge also rejected the proposition that Art 3(1) would invalidate the Migration Act. Even assuming that the provision constitutionally bound Parliament, it required only that the best interests of children be a primary consideration. It did not prohibit legislative bodies from enacting laws affecting children, including laws authorising deportation [7]. This was an alternative answer to the international-law argument, not a finding that the plaintiffs’ circumstances had been assessed under the Convention.
Finally, the pleadings failed at the level of procedure and substance. They alleged no facts to support the declarations, and the legal arguments did not establish an arguable claim even on the assumed Singh-like facts [2], [20]. The judge struck out the grounds and particulars as an abuse of process and dismissed the actions [2], [20].
The judgment presents its account of the law as confirming both an existing and a later source of Commonwealth authority. McHugh J said that the Commonwealth possessed power to legislate about citizenship at federation through express and implied powers. He also said that, at the latest from the adoption of the Statute of Westminster in 1942, the Commonwealth’s status as a sovereign independent nation supplied an additional basis for citizenship legislation [9]–[10].
The reasoning identifies several constitutional strands. One is the Parliament’s status as the national Parliament, entitled to define the people who make up the Australian community. Another is the express power over aliens and naturalisation, together with the immigration power. The judgment treats these powers as supporting legislation that defines conditions of membership [10], [17]–[18]. It does not describe citizenship as an unlimited power: McHugh J stated that Parliament could not declare that persons who were already among “the people of the Commonwealth” were not such people for any legal purpose [18].
The decision also distinguishes citizenship status from the rights and duties attached to it. The Australian Citizenship Act was described as concerned with “formal membership” of the Commonwealth community. Other Commonwealth or State legislation could then attach consequences to that status. The judgment gives the Migration Act, Commonwealth Electoral Act 1918 (Cth) and Australian Passports Act 2005 (Cth) as examples of legislation using citizenship or non-citizenship in this way [13].
The judgment refers to Singh as a decision in which the Court’s majority held that a child born in Australia, automatically entitled to Indian citizenship by descent, and whose parents were aliens, was herself an alien and liable to deportation under the Migration Act [3]. The present proceedings did not distinguish Singh on its facts. Instead, the plaintiffs raised arguments said not to have been made there, particularly about the source of citizenship power and international-law limits [3]. McHugh J rejected those arguments.
This is McHugh J’s judgment in the two strike-out proceedings. Its reasons should be read with that posture in view: it explains the constitutional basis for the challenged legislation and holds that the pleaded case was not arguable, but it does not provide a general account of every possible constitutional limit on citizenship laws.
At [9], McHugh J wrote that it was “hardly to be supposed” that an independent national government could not declare who its citizens were. In plain English, he considered identifying national membership to be a basic function of a sovereign national government.
At [10], he said that citizenship power existed independently of Australia’s later emergence as a sovereign nation. It arose, in part, from express and implied constitutional authority to identify the members of the Australian community. This matters because it rejects the argument that citizenship legislation depended entirely on international law or on a post-federation development.
At [13], the judge explained that the Citizenship Act did not itself create all rights, privileges, immunities and duties associated with citizenship. It created a legal status. Other legislation could use that status to determine who could vote, obtain a passport, or be treated as a non-citizen under migration law. This is a useful distinction between the legal label and the consequences that other statutes attach to it.
At [18], McHugh J described the limits of the power. Parliament could define conditions for membership, but could not simply declare that people already within the constitutional concept of “the people of the Commonwealth” were not members for any legal purpose. The judgment therefore did not characterise the power as boundless.
At [20], the judge concluded that the statements of claim disclosed no arguable cause even on counsel’s proposed factual assumptions. In plain English, the assumed facts did not rescue the legal claims as pleaded. The Court did not decide a trial on a fully pleaded factual record. It resolved the strike-out applications.
The decision is most directly relevant where a litigant challenges the Commonwealth’s authority to define Australian citizenship, particularly by arguing that no such legislative power existed at federation or that the power derives from international law. McHugh J’s answer is that the Commonwealth’s authority derives from its national character and constitutional powers, including powers concerning aliens, naturalisation and immigration [9]–[10], [17]–[19].
It is also relevant to arguments that citizenship is itself a complete bundle of rights. The judgment instead treats citizenship as formal community membership, with other legislation supplying particular legal consequences [12]–[13]. Where a statute distinguishes citizens from non-citizens, this conceptual distinction may help identify the legal question: whether the citizenship status is validly defined, and what the particular statute does with that status.
The procedural reasoning may be relevant where a claim seeks declarations but provides legal conclusions rather than facts supporting the relief. McHugh J treated the absence of supporting facts, and the use of legal argument as particulars, as a serious pleading defect and abuse of process [2]. The judgment also shows that assumed facts do not necessarily make a claim arguable if the legal grounds still fail [3], [20].
The reasons do not decide every possible claim concerning children, deportation or the Convention on the Rights of the Child. The discussion of Art 3(1) addresses the submission made in these proceedings and explains why that provision did not, in McHugh J’s view, prohibit legislation authorising deportation [7]. It does not record an individual assessment of the best interests of either plaintiff.
The judgment itself provides no account of later judicial treatment of Hwang or Fu. It was published on 28 October 2005, and the supplied text identifies no later cases applying, distinguishing, approving or questioning its reasoning. It would therefore be unsupported to state how subsequent courts have treated it based only on this judgment.
Within these reasons, the principal earlier authority discussed is Singh v The Commonwealth. McHugh J recounted the majority’s holding about a child born in Australia to alien parents and noted that the plaintiffs accepted that the present matters could not be distinguished from Singh on their facts [3]. He considered the additional arguments advanced in Hwang and Fu, but concluded they did not establish an arguable cause [20].
Other authorities appear as support for particular propositions, rather than as cases whose facts are analysed in detail. Burns v Ransley, R v Sharkey and Australian Communist Party v The Commonwealth are cited in connection with powers said to arise from the need to protect the nation against internal subversion [9]. Attorney-General (Vict) v The Commonwealth, New South Wales v The Commonwealth and Davis v The Commonwealth are cited concerning national status and the Commonwealth’s role as the polity that speaks for Australians [9]. Grannall v Marrickville Margarine Pty Ltd is cited for the proposition that a grant of legislative power carries authority over matters incidental or ancillary to its subject matter [18].
The judgment does not decide the validity of every possible statutory definition of citizenship. It expressly recognises limits, including that Parliament could not declare people who were constitutionally within “the people of the Commonwealth” not to be such people for any legal purpose [18]. The supplied reasons do not set out a comprehensive test for identifying when a citizenship law would cross that boundary.
Nor does the judgment decide the full relationship between Australian law and international obligations. It rejects the claim that the Commonwealth’s citizenship power derives from international law and says Art 3(1) does not prohibit deportation legislation [7]–[9]. It does not examine every possible way an international obligation might affect the interpretation or operation of a particular statute.
The judgment’s observations about citizenship as formal status leave open how particular legislation may define the rights and duties attached to that status. The examples identify areas where other statutes operate on citizenship, but do not decide the meaning or application of each statute [13].
Finally, the decision does not determine the plaintiffs’ factual circumstances at trial. The material facts were not pleaded, and the Court proceeded on the assumption counsel requested for the strike-out application [2]–[3]. The holding is that the claims as presented disclosed no arguable cause of action and that the asserted constitutional arguments failed; the text does not provide a fact-finding judgment about either child’s individual position.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
McHUGH J
Matter No S428/2005
BONNIE HWANG (AN INFANT BY HER
NEXT FRIEND LI XIA YU) PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ANOR DEFENDANTS
Matter No S498/2005
ROGER WENJIE FU (AN INFANT BY HIS
NEXT FRIEND HUI LING HUANG) PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ANOR DEFENDANTS
Hwang v The Commonwealth
Fu v The Commonwealth
[2005] HCA 66
Date of Order: 27 October 2005
Date of Publication of Reasons: 28 October 2005
S428 and S498/2005
ORDER
1. The writ of summons filed by the plaintiff, Bonnie Hwang, on 15 September 2005 is struck out and the action is dismissed.
2. The writ of summons filed by the plaintiff, Roger Wenjie Fu, on 11 October 2005 is struck out and the action is dismissed.
3. The plaintiff in each matter is to pay the costs of the summonses and the costs of the actions.
Representation:
B Levet for the plaintiffs in each matter (instructed by Michaela Byers)
A Markus for the defendants in each matter (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hwang v The Commonwealth
Fu v The Commonwealth
Constitutional law – Validity of Australian Citizenship Act 2005 (Cth) – Whether Constitution provides power with respect to citizenship – Whether such power arises from express or implied terms of Constitution – Whether power with respect to citizenship arises from status as independent sovereign nation.
Constitutional law – Citizen – Whether "citizen" is synonym for "the people of the Commonwealth" – Relationship between citizenship and alienage – Citizenship as status to which other rights attach.
Constitutional law – Relationship between Constitution and international law.
Australian Citizenship Act 2005 (Cth).
Migration Act 1958 (Cth).
Words and phrases: "the people of the Commonwealth", "alien", "citizen".
"1. Declaration that the Plaintiff acquired Australian Citizenship by birth in Australia and that he [sic] has retained Australian Citizenship since that date, alternat[iv]ely;
Declaration that the Plaintiff acquired Australian Nationality as subject of the Queen: by birth in Australian [sic] and that she retained such Australian Nationality since that date;
Declaration that section 10(2) of the Australian Citizenship Act 1948 (Cth) is beyond the power of the Federal Parliament, alternat[iv]ely the Australian Citizenship Act 1948 (Cth) is ultra vires the Constitution;
Declaration that section 198 of the Migration Act 1958 does not apply to the Plaintiff; and
Costs."
The statement of claim in each action does not plead any facts that would support the making of the orders sought. Instead, the statements of claim allege two conclusory "grounds" of law and 11 paragraphs of "Particulars" consisting of legal argument. The writs and statements of claim disclose no cause of action and are so defective that they constitute an abuse of process of the Court. It follows that the Grounds and Particulars must be struck out as an abuse of the process of the Court.
The question then arises as to whether I should dismiss the actions. Counsel for the plaintiffs conceded that the statements of claim need "to be amended to allege certain facts" relevant to the plaintiffs. In his written submissions, he contended that "[f]or the purpose of the application to strike out, the Court is asked to assume that the facts of this matter is [sic] the same as that which faced the Court in Singh v The Commonwealth1, namely that the plaintiff is a child born in Australia of non resident parents." In Singh, a majority of this Court held that a child under the age of 10 years who was born in Australia, who was automatically entitled to Indian citizenship by descent, and whose parents were aliens, was herself an alien and liable to be deported under the Migration Act 1958 (Cth) ("the Migration Act"). Despite the material facts of these two cases being assumed to be the same as the material facts in Singh, counsel for the plaintiffs contends that that decision does not authorise the deportation of the plaintiffs. In his written submissions he contends:
"Whilst the matter cannot be distinguished from Singh on its facts, there are issues of law here raised that were not argued in Singh:–
(a) Firstly it is asserted that the Commonwealth does not have any constitutional power over citizenship, and that in consequence section 198 of the Migration Act must fail;
(b) Secondly, if (as was asserted by Gleeson CJ in Singh) the Commonwealth has acquired a power over citizenship, it is a power which is subject to extra-constitutional international law obligations."
As par (a) of this submission implies, s 198 of the Migration Act is concerned with citizenship or, more precisely, non‑citizenship. Section 4(1) of the Migration Act declares that its object "is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens." Section 4(4) declares that to advance its object, the Migration Act "provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act." Section 198(1) imposes obligations on officers of the Commonwealth to remove from Australia "as soon as reasonably practicable an unlawful non‑citizen". Section 5 defines a "non‑citizen" as "a person who is not an Australian citizen." Section 13(1) declares that a "non-citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen". Section 14(1) of the Act declares that a "non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen."
Hence, the power conferred by s 198 to remove a person from Australia is conditioned upon that person, inter alia, not being a citizen as defined by the Australian Citizenship Act 1948 (Cth) ("the Australian Citizenship Act"). Relevantly, s 10 of that Act declares:
"(1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.
(2) Subject to subsection (3), a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if:
(a) a parent of the person was, at the time of the person's birth, an Australian citizen or a permanent resident; or
(b) the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia."
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
There is no substance in this submission. Even if the argument of counsel for the plaintiffs was accepted in its entirety, it is impossible to see how it could lead to the conclusion that s 198 of the Migration Act was invalid. If Art 3(1) constitutionally bound the Parliament of the Commonwealth, it would require no more of the Parliament as a legislative body than to make "the best interests" of children a primary consideration in determining whether it should enact legislation. Article 3(1) does not prohibit "legislative bodies" from enacting legislation that affect the interests of children including legislation that authorises their deportation.
Contrary to the submission of counsel for the plaintiffs, however, the power of the Parliament to make laws with respect to citizenship does not depend upon international law. If it arises simply from the emergence of Australia as an independent nation, it is because of the fact that it is an independent sovereign nation and that other nations recognise it as such. Hence, if the power of the Parliament to make laws with respect to citizenship arises only from its status as an independent sovereign nation, it is the fact of independent sovereignty and not the whole body of international law that authorises the Parliament to make such laws.
The indisputable fact that Australia has emerged as an independent sovereign nation is itself sufficient to authorise the Parliament to make laws with respect to citizenship. This Court has long recognised that, in addition to the legislative powers specifically conferred on the Parliament of the Commonwealth, it has legislative powers that arise from its nature and status as a polity. Some of those powers arise from the need to protect the nation against internal subversion2. Others arise from the national status of the Commonwealth as a sovereign body and as the polity who speaks to the world on behalf of Australians3. It is hardly to be supposed that the national government of an independent sovereign state such as Australia does not have the power to declare to the world who are the citizens of Australia. This is not a matter that concerns the States. They do not speak on behalf of Australia. If the Parliament of the Commonwealth does not have the power to declare who are the citizens of Australia, no Australian polity has the power. Subject to any constitutional prohibitions, every sovereign country has the undoubted right to determine who shall enter the country and who shall constitute the political membership of the community of that country. That is to say, within the limits of its constitutional powers, every sovereign country has the right to determine who are its citizens and to declare by legislation what are the rights, privileges, immunities and duties of members of that community. It is the Commonwealth that speaks to the world on behalf of the Australian community, and it is the Parliament of the Commonwealth that, subject to any express or implied constitutional prohibitions, has the power to determine who are its citizens. Since the adoption of the Statute of Westminster in 1942 at the latest, the power of the Parliament of the Commonwealth, arising from its status and existence as a national polity, has extended to making laws with respect to citizenship because Australia is a sovereign independent nation.
"A federation is, as we have already seen, defined by some authorities as a State having a dual system of government ... hence, in a federation it is said there is a dual citizenship. It follows that each natural-born or naturalized subject of the Queen permanently residing within the limits of the Commonwealth is entitled to be considered as a citizen of the Commonwealth, and, at the same time, a citizen of the State in which he resides."
"In one capacity such a person is described by the Constitution as one of 'the people of the Commonwealth;' in the other he is one of 'the people of a State.' From this dual citizenship, and, in order to assist in its preservation, every person living under such a form of government has a duality of political rights and powers. He is entitled, not only to assist in carrying on the government of his State, as a part of the Commonwealth, but to assist in the government of that wider organization of the nation itself. In the latter work, taken and considered by itself, he has also a dual right and power; viz, to join in returning members to the House of Representatives in which centralizing, consolidating, nationalizing, and progressive elements of the community are represented, and also to assist in returning members to the Senate, in which the moderating, restraining, conserving and provincial elements of the community are represented. The duty of a citizen having these dual functions, and of the Federal Parliament so dually constituted, will be to reconcile and harmonize all these apparently conflicting yet necessary and inevitable forces."
"[I]f by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted."
Similarly, s 127 of the Constitution (now repealed) provided that "[i]n reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."
Thus, the concept of "the people of the Commonwealth" – the citizens of the Commonwealth – was critical to the operation of the Constitution. Sections 25 and 127 of the Constitution made it plain that certain persons were excluded from membership of the Australian community. And it is not open to doubt that the power of the Parliament to make laws with respect to immigration7 and aliens8 enabled it to exclude certain persons from becoming members of the Australian community. Conversely, the power of the Parliament to make laws with respect to naturalisation9 enabled the Parliament to include certain persons among "the people of the Commonwealth". Why then should it be thought that at federation the Parliament of the Commonwealth had no power to declare the conditions upon which other persons who are not aliens or immigrants are to be numbered among the people of the Commonwealth? That is to say, to declare the conditions upon which persons living in or connected to the Australian community were citizens of Australia. It is not lightly to be supposed that at federation the national Parliament of Australia did not have the power to declare to the world who were the citizens of Australia. As I have indicated, this is not a matter that concerns or has concerned the States. Their constitutional concern is with the citizens of their respective States, not the citizens of Australia.
The power to make laws with respect to naturalisation and aliens may itself be sufficient authority for the enactment of a citizenship Act such as the Australian Citizenship Act. Every grant of legislative power carries with it "power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter"10 of the grant of power. In Singh11, this Court held that the Parliament has a wide discretion to declare who are aliens for the purpose of the power conferred by s 51(xix) of the Constitution. It must follow that the Parliament also has a wide discretion to determine the persons who are not aliens, which is simply a negative description of a person who is not a citizen of the country where that person is located12. But in any event, the Parliament has express power to legislate with respect to immigration, naturalisation and aliens. Those powers, together with the national status of the Parliament and the Constitution's insistence that the House of Representatives is to be chosen by the people of the Commonwealth, authorise the Parliament to define the conditions on which membership of the Australian community – that is to say, citizenship – depends. No doubt the Parliament does not have unlimited power to declare the conditions on which citizenship or membership of the Australian community depends. It could not declare that persons who were among "the people of the Commonwealth" were not "people of the Commonwealth" for any legal purpose. But it can declare, for example, in exercising the power conferred by s 30 concerning the qualification of electors of members of the House of Representatives, that persons such as infants are not "people of the Commonwealth" for the purpose of s 24 of the Constitution. And, as long as it does not exclude from citizenship, those persons who are undoubtedly among "the people of the Commonwealth", nothing in the Constitution prevents the Parliament from declaring who are the citizens of the Commonwealth, which is simply another name for the Constitutional expression, "people of the Commonwealth".
(2004) 78 ALJR 1383; 209 ALR 355. ↩
Burns v Ransley (1949) 79 CLR 101 at 116; R v Sharkey (1949) 79 CLR 121 at 148-149; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 187-188. ↩
Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 269; New South Wales v The Commonwealth (1975) 135 CLR 337 at 373-374, 388-389, 470, 505; Davis v The Commonwealth (1988) 166 CLR 79 at 94. ↩
Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 285. ↩
Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 449. ↩
Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 450. ↩
Section 51(xxvii). ↩
Section 51(xix). ↩
Section 51(xix). ↩
Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77. ↩
(2004) 78 ALJR 1383; 209 ALR 355. ↩
Hwang
Commonwealth [2005] HCA 66;
(2005) 222 ALR 83
(2005) 80 ALJR 125
(2004) 78 ALJR 1383
(1949) 79 CLR 101
(1949) 79 CLR 121
(1951) 83 CLR 1
(1945) 71 CLR 237
(1975) 135 CLR 337
(1988) 166 CLR 79
(1955) 93 CLR 55
Both writs of summons were struck out and both actions dismissed. Each plaintiff was ordered to pay the costs of the summonses and the costs of the action.
However, it is a mistake to think that the power of the Parliament of the Commonwealth to make laws with respect to citizenship did not exist at federation. For many years, the existence of United Kingdom legislation may have made it impossible, as a practical matter, for the Parliament to enact citizenship legislation. But, independently of Australia's emergence as a sovereign nation, the Parliament has and always has had the power to make laws with respect to citizenship. That power arises from the express and implied powers of the Parliament of the Commonwealth to declare who are the persons who are members of the Australian community. It arises partly by implication out of the Parliament's status as the national Parliament and its entitlement to define who are "the people" who make up the Australian community. And it arises partly out of its express power to make laws with respect to immigration, naturalisation and aliens.
The Constitution recognises that there is an Australian community of people by its reference to "the people" of the Commonwealth. And at federation, although the Constitution contained no express reference to the term "citizen" other than the reference in s 44(i) to "a citizen of a foreign power", there seems no doubt that being one of "the people of the Commonwealth" was recognised as synonymous with the concept of being a citizen of Australia.
When a legislature enacts laws conferring citizenship on members of the community, it gives individuals a legal status that entitles them to or denies to them rights, privileges or immunities or that imposes upon them legal obligations. The term "citizenship" has a number of diverse meanings, and an exhaustive definition is difficult – maybe impossible – to formulate. But in a legal context, it ordinarily defines the persons who are members of a particular community. It is therefore concerned with the legal status of those persons who are, temporarily or permanently, within that community. In many jurisdictions, citizenship automatically carries with it legal rights, privileges, immunities and duties. The Constitution itself recognises this in s 44(i) when it refers to any person who "is a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power".
As the preamble to the Australian Citizenship Act shows, however, that Act is concerned only with the "formal membership of the community of the Commonwealth of Australia". The Australian Citizenship Act is not itself concerned with creating rights, privileges, immunities or duties. It creates a status upon which other federal legislation, or for that matter State legislation, may operate to confer or deny rights, privileges, immunities or duties. Numerous federal statutes confer on citizens or deny to non-citizens such entitlements or obligations. The Migration Act, the Commonwealth Electoral Act 1918 (Cth) and the Australian Passports Act 2005 (Cth) are prominent examples.
Throughout the Constitution, there is frequent reference to "the people" of the Commonwealth. In its context, it is a synonym for citizenship of the Commonwealth. The first preamble of the Constitution refers to "the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania" agreeing "to unite in one indissoluble Federal Commonwealth". Quick and Garran, in their monumental work on the Constitution, declare4 that the words of the first preamble "proclaim that the Constitution of the Commonwealth of Australia is founded on the will of the people whom it is designed to unite and govern." Covering cl 5 of the Constitution declares that the Constitution is "binding on the ... people ... of every part of the Commonwealth". Section 24 of the Constitution declares that the House of Representatives shall be "composed of members directly chosen by the people of the Commonwealth". Quick and Garran took the view that the expression "the people of the Commonwealth" was equivalent to citizenship of the Commonwealth. In discussing s 24 of the Constitution, the learned authors state5:
The Australian Citizenship Act has stood for over 50 years. This is the first time that a party has persisted in a challenge to its validity. In Singh13, a challenge to its validity was withdrawn. The failure of any interested party to challenge its validity over such a long period of time is not relevant in determining whether it is a valid enactment of the Parliament of the Commonwealth. If the Australian Citizenship Act was invalid when it was enacted, delay in challenging its validity cannot alter that condition. But in my opinion, is not open to doubt that that Act is a valid Act of the Parliament of the Commonwealth. It is authorised by the legislative power inherent in the Commonwealth as a sovereign, independent nation. Furthermore, for the reasons I have given, independently of Australia's emergence as such a nation, it was authorised by the express and implied powers of the Commonwealth that existed at federation and continue to exist today.
It follows that the statements of claim filed in the present proceedings do not raise an arguable cause of action even on the assumptions of fact which counsel for the plaintiffs has asked me to assume. The writs of summons must therefore be struck out and the actions dismissed. The plaintiffs must pay the costs of the summonses and the costs of the actions.
The Macquarie Dictionary defines "alien" as "1. one born in or belonging to another country who has not acquired citizenship by naturalisation and is not entitled to the privileges of a citizen ... 4. residing under another government or in another country than that of one's birth, and not having rights of citizenship in such a place of residence." ↩
(2004) 78 ALJR 1383; 209 ALR 355. ↩