Ground 3: Decision allegedly beyond power
52 Since 1984, the Migration Act has relied upon the aliens power expressed in s 51(xix) of the Constitution for its constitutional foundation: Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33 at [34]. By its long title, it is an Act relating to the entry into, and presence in, Australia of aliens and the departure or deportation from Australia of aliens and certain other persons. Its objects include regulating the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object, the Act provides for and intends visas to be the only source of the right of non-citizens to so enter or remain: s 4(2). A person who is reasonably suspected of being an unlawful non-citizen must be detained and unless that person establishes that he or she is a citizen or is granted a visa must be removed from Australia as soon as reasonably practicable: s 189, s 191, s 196 and s 198.
53 The Migration Act uses the term 'unlawful non-citizen' to refer to a person who is not a citizen, who is within Australia (excluding its seas) and who does not hold a visa: s 13 and s 14.
54 A child may be a citizen of Australia by birth only if born in Australia: Australian Citizenship Act 1948 (Cth), s 10 and Australian Citizenship Act 2007 (Cth), s 12. A child born in Australia who has one parent who is an Australian citizen or Australian permanent resident is a citizen. A person may also become an Australian citizen by descent if a parent was an Australian citizen at the time of their birth and the person makes application and is registered as a citizen. If a child is born in Australia to parents who are both non-citizens then the child is taken to have been granted a visa of the same kind as any visa held by the parent of the child: s 78.
55 Ms Logan was granted an entry permit at Perth Airport upon her arrival in Australia. As has been noted, by operation of the Migration Reform (Transitional Provisions) Regulations her entry permit continued in effect on and after 1 September 1994 as a permanent visa.
56 A visa ceases to be in effect on cancellation: s 82.
57 By ground 3 of her application, Ms Logan does not claim that the statutory provisions relied upon by the Minister are invalid. Rather, she claims that they do not apply to her because she is neither citizen nor alien. Although it is accepted that Ms Logan is a citizen of the United Kingdom and is not a citizen of Australia, she claims not to have the constitutional status of an alien in Australia. Therefore, she says that a law made in the exercise of a constitutional head of power that concerns aliens does not extend to her in its application.
58 The foundation for the claim by Ms Logan that she is not an alien is expressed in the following terms in her written submissions:
The Applicant has been recognised as a belonger.
She has lived all her life in Australia, except for the first 2 years. Her Mother was an Australian citizen when the applicant was born and remained so throughout the Applicant's life. The Applicant's father became an Australian citizen in 2007. The applicant has two children aged 29 and 24, and four grandchildren aged between 2-11. All of her siblings, children and grandchildren were born in Australia and are Australian citizens.
The Applicant has never owed allegiance to any foreign power since arriving in Australia in 1970.
The Applicant has been regarded as part of the Australian political community by government. As noted above she has received Centrelink payments for a lengthy period; she has been identified as Australian by the WA Department of Corrective Services; she has been accepted as Australian by the HECS scheme.
At the time of her birth the Applicant was eligible to apply for and be granted Australian citizenship under s11 of the Australian Citizenship Act 1948.
Drawing on the above indicia about the Applicant it would be an unfortunate triumph of form over substance to find that she is an alien for the purposes of s 51(xix) of the Constitution.
59 The Minister did not challenge the factual matters relied upon by Ms Logan to support ground 3 of her application.
60 Before the decision in Love, it was settled that individuals who entered Australia as young children and, within the relevant constitutional terminology, as aliens did not change that status by reason of their personal history as lived in Australia. For that reason, it was accepted by counsel for Ms Logan that if the authorities before Love were to be applied then ground 3 would be dismissed.
61 It was also accepted that Ms Logan was a citizen of the United Kingdom and not of Australia. There was no challenge to the legality of the provisions of Australian Citizenship Act 2007 (Cth) as they applied to Ms Logan.
62 Rather, the submission advanced was that some members of the High Court in Love had recast the approach to the interpretation of the aliens power in a manner that required a factual inquiry to determine whether a law that relied upon the aliens power could validly extend to a particular person. Further, it was an inquiry to be undertaken at the time that an issue arose as to the application of the Migration Act and not when the person first entered Australia. In the present circumstances the relevant time was said to be, in effect, when Ms Logan came to be detained on the basis that she was a non-citizen who did not hold a visa.
63 In effect, the claim made was that there was no jurisdiction for the Minister to make the decision because Ms Logan was not an alien and therefore could not be made subject to provisions of the Migration Act that rested upon that power. However, the claim was more fundamental in character. It went beyond the validity of the Minister's decision not to exercise the power conferred by s 501CA(4) and questioned whether the Migration Act could apply to Ms Logan at all. Leaving to one side the question whether an application to set aside the decision was the appropriate procedural means to raise a claim of that kind, for the following reasons it is a claim that should not be accepted.
64 The decision in Love was concerned with the status of the Aboriginal peoples of Australia and whether the constitutional concept of alien included an Aboriginal person who was born outside of Australia and for that reason was a non-citizen according to legislation enacted to define citizenship.
65 In Love each member of the High Court delivered separate reasons. For present purposes, it is necessary to focus upon the extent to which their Honours stated new principles that may be seen to depart from previous authority in a manner that supports the claim by Ms Logan that, in her particular circumstances she has the status of a non-citizen, non-alien.
66 Kiefel CJ referred to the existing state of authority, observing that there have been a number of cases in which it has been argued unsuccessfully that a person's strong connection to Australia and its community takes a non-citizen out of the operation of the Migration Act: at [17]. Her Honour noted that it had been observed that, as a matter of etymology, 'alien' means belonging to another place. However, that language was characterised as 'not a reference to perceptions' but a description of 'a person's lack of formal legal relationship with the community or body politic of the country with which they contend to have a connection': at [18]. It was noted that the plaintiffs did not challenge those decisions, but sought to 'distinguish their circumstances from the plaintiffs in those cases by reference to the special connection which they, as Aboriginal persons, have to Australia': at [20]. Her Honour did not accept that claim.
67 Bell J described the issue in the case as being 'whether, as the plaintiffs assert, Aboriginal Australians are persons who cannot possibly answer the description of "aliens" in the ordinary understanding of the word': at [51]. Her Honour then reasoned that: 'Recognition that, in some circumstances, an attempt by the Parliament to ascribe the status of alien to a person would be beyond power allows of the possibility that a person may not hold Australian citizenship and yet not be an alien': at [64]. Further, that it does not follow that the possession of foreign citizenship necessarily brings a person within the scope of the aliens power: at [66]. In finding for the plaintiffs, her Honour said at [73]-[74]:
… It is not offensive, in the context of contemporary international understanding, to recognise the cultural and spiritual dimensions of the distinctive connection between indigenous peoples and their traditional lands, and in light of that recognition to hold that the exercise of the sovereign power of this nation does not extend to the exclusion of the indigenous inhabitants from the Australian community.
The conclusion is not to deny that an attribute of every sovereign state is the power to decide whether an alien is admitted to membership of the community and to expel an alien whom it chooses not to suffer to remain. As Gleeson CJ observed in Te, the exercise of the power is vital to the welfare, security and integrity of the nation. The position of Aboriginal Australians, however, is sui generis. Notwithstanding the amplitude of the power conferred by s 51(xix) it does not extend to treating an Aboriginal Australian as an alien because, despite the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place.
(footnotes omitted)
68 Gageler J found that there was no constitutional category of 'non-citizen non-aliens': at [132]. The plaintiffs did not claim that the Australian Citizenship Act 2007 (Cth) was invalid as to its operation: at [111]. In those circumstances, the power conferred upon Parliament to lay down criteria for determining with specificity which persons were and which persons were not to have the legal status of members of the politic of the Commonwealth of Australia had been expressed: at [94]. Accordingly, by reason of not having the status of an Australian citizen according to criteria of general application prescribed by legislation validly enacted under s 51(xix) of the Constitution, each of the plaintiffs is an alien within the meaning of that provision: at [141].
69 Keane J noted that the requirements of citizenship are currently to be found in the Australian Citizenship Act 2007 (Cth) and the plaintiffs did not challenge its validity or the proposition that they have not been naturalised as citizens under that Act: at [165]. The aliens power has outer limits which mean that Parliament could not invent its own peculiar definition of alien to include persons who could not possibly fit the description 'alien': at [168]. In dismissing the particular claim by the plaintiffs based on this, his Honour reasoned at [177]:
Alienage or citizenship is a status created by law. That status is a relationship between an individual and the sovereign nation. It is not a relationship between an ethnic group and the nation. Nor is it a relationship between an individual and an ethnic group. Australian law does not recognise an entitlement to membership of the Australian body politic independently of the satisfaction of the ordinary legal requirements and qualifications for Australian citizenship.
(footnotes omitted)
70 Nettle J summarised the relevant legal position in the following way at [236]:
Section 51(xix) of the Constitution empowers the Commonwealth Parliament to make laws with respect to 'naturalization and aliens'. The word 'aliens' is not, however, defined in the Constitution. Rather, the wide power conferred by s 51(xix), construed with all the generality that its terms permit, has been held to include the power to determine who shall be treated as an alien. That power may be exercised by creating and defining a concept of Australian citizenship and attaching incidents of alienage to persons who are not 'Australian citizens'. But it is subject to the limitation recognised in Pochi v Macphee: that the Parliament may not determine to treat as an alien a person who could not possibly answer the description of 'alien' according to the ordinary understanding of the word.
(footnotes omitted)
71 His Honour restated the question for consideration as being 'whether it is within the legislative competence of the Parliament under s 51(xix) of the Constitution to treat either plaintiff as an "unlawful non-citizen" (within the meaning of s 14(1) of the Migration Act), and thus to detain and possibly to deport him under ss 189, 196 and 200 of the Migration Act': at [241]. As to that question, his Honour found that 'once it is accepted, as it must be, that the aliens power is not entirely untrammelled, it necessarily follows that some individuals would not be aliens even if denied Australian citizenship by statute': at [252]. However, his Honour then went on to conclude at [254]:
Hence, as a general proposition, there is no difficulty in describing a child who is born outside Australia and who is a citizen of a foreign country as an 'alien' within the ordinary understanding of that word - even if one of his or her parents is an Australian citizen. Generally speaking, Parliament has power under s 51(xix) of the Constitution to provide, as it has done, that such a person is and will remain a non-citizen, and so liable to treatment as an alien, unless and until that person is granted Australian citizenship under s 16 of the Australian Citizenship Act 2007.
72 Thereafter, his Honour dealt with the more particular question 'whether Aboriginal descent, self-identification as a member of an Aboriginal community and acceptance by such a community as one of its members constitute such a relationship with the Crown in right of Australia as to put a person beyond the reach of that legislative power': at [254]. His Honour found for the plaintiffs as to the answer to that question by reasoning that depended entirely upon the unique status of Aboriginal peoples in Australia.
73 Gordon J framed the question in the following manner (at [294]):
The specific question before the Court - whether Aboriginal Australians, born overseas, without the statutory status of Australian citizenship and owing foreign allegiance, are aliens within the meaning of s 51(xix) - has not arisen before. No previous Australian court has considered that question. There is no binding authority.
74 As to the concepts of alienage and citizenship, her Honour reasoned at [304]:
Non-citizenship does not equate, in all cases, with alienage. It may be that, in most cases, someone who does not hold Australian citizenship is within the reach of the aliens power in s 51(xix) of the Constitution. It is settled that merely living in Australia for a long period does not convert someone from an alien to a non-alien, if they have not taken the step of acquiring citizenship. But the synonymy of the concepts of alien and non-citizen in most cases should not distract attention from the fact that the overlap is less than complete.
(footnotes omitted; original emphasis)
75 Her Honour then found that neither birthplace nor allegiance could be determinative of alienage. Further, that Parliament could not determine the breadth of its own power to make laws with respect to aliens. Her Honour then said that whether the plaintiffs were alien or non-alien was 'fundamentally a question of otherness': at [333]. Then her Honour reasoned that Aboriginal Australians 'occupy a unique or sui generis position in this country such that they are not aliens', being a connection with the land or waters that was not just ancestry or place of birth or even both: at [333], [373]. The connection meant that Aboriginal Australians are not foreigners within the constitutional concept of alien: at [374].
76 Edelman J stated the central question before the Court as being 'whether an Aboriginal person, identifying and accepted by their community as such, with a genealogy tied to the Australian land for tens of thousands of years, is an "alien" in Australia within the application of s 51(xix) of the Constitution': at [391]. As to that question, his Honour reasoned at [394]:
It is an error of principle to define 'alien' not as a foreigner to the Australian political community but instead, at a level of greater specificity, as depending upon the requirements that exist from time to time for statutory citizenship. A definition at that level of greater specificity would give 'alien' an essential meaning that fluctuated, evolving with changes to citizenship laws enacted by the British Parliament around the time of Federation and which would have been expected to evolve further. To tie the essential meaning of 'alien' to the transient concept of whatever the Commonwealth Parliament chooses it to be would also contradict the repeated denials by this Court that the Commonwealth Parliament has power to deem people to be aliens if they could not possibly answer the description of 'aliens' in the ordinary understanding of the word. The antonym of an alien to the community of the body politic cannot be a 'citizen'. It is a 'belonger' to the political community.
(footnote omitted)
77 In the course of further reasoning by reference to matters of principle, his Honour characterised the proposition that absorption into the political community may be sufficient to establish that a person was not an alien for the purposes of the constitutional head of power as being a large step to take that would involve re-opening the Court's decision in Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, a course that the plaintiffs did not invite: at [421]. Therefore, the decision does not rest upon any such broad proposition.
78 Therefore, Love did not seek to revisit the correctness of earlier authority that applies to a person in the circumstances of Ms Logan. The case was put and considered on the basis that it raised a novel question concerned with the particular status of the Aboriginal peoples who were the country's original inhabitants and who, by a series of High Court decisions concerned with native title, had been found to have a spiritual or metaphysical connection with the land. It was not argued on the basis of any challenge to the correctness of previous High Court authority. There is no majority reasoning which could provide a foundation for a conclusion that there had been some implied over-ruling or qualification of earlier authority. Therefore, according to binding High Court authority, ground 3 must be dismissed.