respondent. Application dismissed. No order as to costs. French J held that Long was within the constitutional scope of the visa-cancellation and detention powers ([41]).
Key principles
French J treated Re Patterson; Ex parte Taylor as not establishing a binding principle that assisted Long, because the majority reasons did not disclose a common ratio on the...
French J adopted what he considered the minimum position supported by McHugh J in Re Patterson: the division between the Queen of the United Kingdom and the Queen of Australia,...
On that approach, Long, who first arrived in Australia in 1975, was an alien for constitutional purposes despite his later absorption into the Australian community. The...
Issues before the court
Was Long an alien within the meaning of s 51(xix) of the Constitution, such that the Migration Act powers to cancel his visa and detain him could...
Did Re Patterson bind the Federal Court to hold that a British subject who arrived before 1 May 1987 and was absorbed into the Australian community...
Could the Court determine Long's other administrative-law grounds concerning the Minister's decision?
Plain English Summary
Long had lived in Australia for many years and was treated as part of the community, but he was a British subject and had not become an Australian citizen. French J considered the High Court's divided decision in Re Patterson and found no binding majority rule that protected Long. He adopted a narrower view under which the relevant change occurred in 1973, before Long arrived in Australia. The Court therefore held that the Minister's powers could constitutionally apply to him and dismissed his application.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,201 words · generated 01/10/2026
What happened
Brian Long was born in Liverpool in 1963 and was a citizen of the United Kingdom. He first came to Australia in March 1975, aged 11, with his parents and sisters. The family returned to the United Kingdom later that year, came back to Australia in 1977, and returned to England again in 1979. Long subsequently chose to return to Australia and arrived on 24 March 1981, aged 17. He had lived continuously in Australia since then, except for a holiday in the United Kingdom in 1986-1987 ([2]-[5]).
Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1422 | Case summary | Zoe
Cited legislation
7 cited instruments linked from this judgment.
Long married Ann Long in 1983, and they had four children. He worked in Australia, was enrolled on electoral rolls after turning 18, and voted except when in prison. He did not become an Australian citizen ([1], [4]-[5]). French J noted that the parties accepted he had been absorbed into the Australian community and was no longer an immigrant for the purposes of the immigration power ([11]).
The judgment sets out an extensive criminal history, including convictions for heroin-related offences, armed robbery, and later stealing offences. The Minister cancelled Long's visa on 24 January 2002 under s 501(2) of the Migration Act 1958 (Cth). The Minister's recorded decision referred to an assessment under the character test and the exercise of discretion to cancel the visa ([6]-[8]). Long was then detained as an unlawful non-citizen.
Long's central argument was constitutional. He said he was neither an immigrant nor an alien, and that the Commonwealth therefore lacked power to cancel his visa and detain him pending removal. The Court treated alienage as the decisive issue. Long also raised administrative-law grounds, but the parties accepted that those grounds could not succeed in light of the Full Court's decision in NAAV and Migration Act s 474 ([11]-[13]).
French J dismissed the application on 19 November 2002. The Court made no order as to costs, noting the uncertainty in the law and the test-case character of the proceeding ([41]).
Why the court decided this way
The constitutional question was whether Long was an “alien” within s 51(xix) of the Constitution. The Minister's powers to cancel the visa and detain Long derived from Migration Act s 501 and ss 189 and 198. As French J explained, those powers could only be exercised within the limits of the constitutional heads of power, including the aliens and immigration powers ([11]).
The fact that Long was no longer an immigrant did not resolve whether he was an alien. The judgment treats those as distinct constitutional categories. It referred to Pochi v MacPhee, where the High Court had held, among other things, that ceasing to be an immigrant did not mean that a person ceased to be an alien. Pochi also supported the proposition that British subject status did not necessarily prevent a person from being an alien under the Constitution ([22]-[23]). Nolan applied that approach to a British subject who had arrived as a child and lived in Australia for many years. The High Court in Nolan held that the person remained within the reach of the aliens power ([23]-[25]).
The complication was Re Patterson; Ex parte Taylor. There, a High Court majority held that a British subject who had arrived in Australia as a child and become absorbed into the community was not an alien. But the judges making up the majority gave different reasons. French J examined those reasons and found at least two possible approaches: one associated with Gaudron, Kirby and Callinan JJ, and another expressed by McHugh J. The former could support a wider position for British subjects absorbed into the community before May 1987. McHugh J's reasoning focused on British subjects living in Australia at the time of the Royal Style and Titles Act 1973 ([26]-[34]).
French J concluded that there was no clear common ratio in Re Patterson establishing that every British subject who arrived before May 1987 and was later absorbed into the community was not an alien. He therefore considered that the broader proposition was not binding on the Federal Court in Long's case ([35]-[38]). The judgment also referred to the High Court's later decision in Te and Dang, noting that it revealed continuing disagreement about what could be extracted from Re Patterson ([39]).
For Long, the decisive point was that he first arrived in Australia in 1975, after the 1973 Act. French J adopted what he called the “minimum position” associated with McHugh J: the 1973 Act made clear the division between the Queen of the United Kingdom and the Queen of Australia and, on that approach, the constitutional status of British subjects who were not Australian citizens ([40]). French J considered this the most conservative reading of Re Patterson, disturbing the earlier law only to the least extent he thought necessary.
Applying that approach, French J concluded that Long was an alien and within the constitutional scope of the statutory powers. The Court consequently dismissed the application ([40]-[41]). This explains why Long's lengthy residence and absorption into the community did not determine the outcome: on the reasoning adopted, his arrival after the 1973 dividing point was critical.
Before and after state of the law
Before Re Patterson, the judgment describes Pochi and Nolan as supporting the proposition that a person could be a British subject and still be an alien for constitutional purposes. Pochi separated immigrant status from alien status. It also rejected the proposition that a British subject under United Kingdom law could not be an alien under s 51(xix) ([22]-[23]). Nolan applied those propositions to a British subject who arrived in Australia as a child and was not naturalised ([23]-[25]).
Re Patterson unsettled that position. A majority held that Mr Taylor, a British subject who had arrived in Australia as a child and become absorbed into the Australian community, was not an alien. However, the judges' explanations did not produce an agreed rationale on the precise reach of the decision. French J identified approaches which could support protection for some British subjects arriving before 1987, but found that the majority did not establish a binding general rule on that basis ([26]-[38]).
The judgment’s “after” position is the rule French J applied in this case, not a definitive resolution of the wider question. He selected a 1973 dividing point based on his reading of McHugh J's reasoning in Re Patterson. On that basis, Long, who arrived in 1975, was an alien despite his later absorption into the community ([34], [40]).
French J also described the law as uncertain. He noted that the High Court had revisited the aliens power in Te and Dang, but that the judgments there showed continuing differences about the significance and reach of Re Patterson. He expected further clarification from the High Court ([39]-[40]). The judgment does not establish what later courts ultimately decided, so it cannot ground a claim about subsequent developments beyond the material it records.
Key passages with plain-English translation
At [11], French J states that the Minister's powers “can only be exercised within constitutional limits.” In plain English, a power granted by the Migration Act is not enough by itself: it must also be supported by the Constitution. The parties agreed that the key constitutional question was whether Long was an alien.
At [22]-[23], the judgment explains that being no longer an immigrant does not mean a person is no longer an alien. In ordinary terms, having become settled in Australia can matter to the immigration power without necessarily answering whether the separate aliens power applies.
At [34], French J identifies different possible readings of Re Patterson. The passage matters because the decision in that case did not, in his view, yield one agreed rule covering all British subjects who arrived before 1987. This was not merely a choice between two dates: it was a question about what principle could properly be attributed to a divided majority.
At [38], French J says Re Patterson was not binding authority for the proposition that a British subject who arrived before 1 May 1987 and was absorbed into the community was not an alien. In plain English, he did not consider himself required to apply the wider interpretation Long relied on.
At [40], French J adopts the 1973 position. He reasons that the separation between the Queen of the United Kingdom and the Queen of Australia had become clear by the enactment of the Royal Style and Titles Act 1973. Since Long first arrived in 1975, French J treated that timing as placing him on the alien side of the line he adopted.
At [41], the Court states its conclusion: Long fell within the scope of the powers to cancel his visa and detain him. The application was dismissed, but no order as to costs was made because of the uncertainty and test-case character of the matter.
What fact patterns trigger this precedent
The judgment is most directly relevant to a constitutional argument involving a person who is a British subject, is not an Australian citizen, and arrived in Australia after the 1973 Royal Style and Titles Act. It is especially relevant where the person argues that long residence or absorption into the Australian community removes them from the reach of the aliens power. In Long's case, the Court accepted the absorption point but still found the person to be an alien on the approach it adopted ([11], [34], [40]).
The decision also matters where the argument depends on the precedential effect of a divided High Court judgment. French J carefully distinguished between the result in Re Patterson and the possibility of extracting a common legal principle from the separate reasons. He did not treat the wider pre-1987 proposition as binding because he considered that no common ratio had been established ([35]-[38]).
The judgment does not decide every possible British-subject scenario. It does not decide the position of a British subject who arrived before 1973, nor does it resolve the broader question of the status of all British subjects who arrived before 1987. French J's reasoning is explicitly grounded in his view of the minimum position from Re Patterson and in Long's 1975 arrival ([34], [40]). The judgment also does not determine whether a person who became an Australian citizen, or arrived under different circumstances, would be treated in the same way.
How later courts have treated it
The judgment itself refers to one later High Court decision, Re Minister for Immigration & Multicultural Affairs; Ex parte Te and Dang, decided on 7 November 2002. French J said that the case revisited the aliens power and showed that significant differences remained among High Court Justices about what Re Patterson had decided ([39]). The judgment records views expressed in Te and Dang, including that McHugh J saw no ratio on the aliens power in Re Patterson, while other Justices expressed different understandings of its authority.
That discussion is relevant to the reasoning in Long because it supports French J's view that Re Patterson did not offer a single, settled rule he was bound to apply. It also explains why he chose what he regarded as a conservative, limited approach rather than treating the broader pre-1987 proposition as conclusive ([39]-[40]).
The text provided does not describe any subsequent treatment of Long by later courts. It would therefore be unsupported to state how later courts applied, followed, distinguished or rejected Long. The judgment's own account is time-specific: French J anticipated further clarification by the High Court, rather than claiming the question had been finally settled ([40]).
Still-open questions
The central open question within the judgment is the precise precedential reach of Re Patterson. French J considered its reasoning divergent and found no binding common principle that resolved Long's case ([35]-[40]). The judgment does not reconcile all the different approaches taken by the High Court Justices in that case.
A related issue is the correct dividing point for British subjects who were not Australian citizens. French J adopted 1973 for Long's circumstances, while discussing a competing approach that could extend the relevant date to 1987. He expressly described the law as uncertain and anticipated further High Court consideration ([34], [40]).
The reasoning also leaves questions about the constitutional significance of residence, absorption into the community, and allegiance when those factors occur at different times. Long was accepted to have been absorbed into the Australian community, but French J treated his arrival after 1973 as decisive under the approach selected ([11], [40]). The judgment does not establish how those factors would combine in cases involving different arrival dates, citizenship histories, or other factual circumstances.
Finally, although the judgment records that the other administrative-law grounds were precluded in light of NAAV, it does not decide their merits. Nor does it determine the general validity or application of those grounds outside the posture described in this case ([12]-[13]). These limits matter when using the decision: its holding should be understood as the Court's resolution of Long's constitutional alienage argument, on the particular reasoning it adopted in the unsettled state of authority then described.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment (3 paragraphs)
[1]
REASONS FOR JUDGMENT
Introduction
1 Brian Long came to Australia from the United Kingdom as a child in 1975. Although he has returned to England with his family on two occasions since then, he has lived continuously in Australia since 1981. He has married here and had children. But he never took out Australian citizenship. Because of serious criminal offences for which he was convicted and sentenced to terms of imprisonment, the Minister for Immigration and Multicultural and Indigenous Affairs has cancelled his visa and he is now being detained as an unlawful non-citizen. Long challenges the cancellation and his detention on the basis that they are beyond power because he is neither immigrant nor alien but a British subject who is part of the Australian community. As will be seen, the sole question in this case is whether he is an alien and therefore within the reach of the powers which the Minister has exercised against him.
Factual History
2 Brian Edward Long was born in Liverpool in the United Kingdom on 11 October 1963. He is a citizen of the United Kingdom. He came to Australia as an 11 year old on 24 March 1975 with his parents and three sisters and was granted a BF Transitional (Permanent) Visa. The family returned to the United Kingdom in December 1975 and remained there until 21 March 1977 when they travelled back to Australia. Long was then aged 13. In June 1979, the family again returned to England, save for one of Long's sisters who had married and remained in Western Australia.
3 After completing his schooling in England, Long wanted to return to Australia. He persuaded his parents to let him come back and live with his sister. He arrived back in Australia on 24 March 1981 and has resided in this country ever since. He was then aged 17. Some six months later, his parents made their final decision to live in Australia and returned with his two remaining sisters. The family has resided in Western Australia since that time.
4 Following his return to Australia in March 1981, Long was determined to make it his permanent home. He began work as Trades Assistant for a welder and did this for about a year. He then worked as an apprentice roof carpenter for about six months and then as a roof carpenter for about four years until late 1985.
5 He had met his wife, Ann Long, in England in 1980. She came to Western Australia on a visit in September 1981. They decided they would marry and that she would become a permanent resident. They married on 1 May 1983. They have four children:
Brian Anthony Long born on 5 February 1983
Daniel James Long born on 1 June 1988
Chelsea Maria Long born on 29 July 1990
Elyce Tanika Long born on 28 April 2000
Long and his wife visited the United Kingdom on a holiday for about two months between 9 December 1986 and 10 February 1987. He has not left Australia since his return in February 1987. He has been enrolled on both State and Federal Electoral Rolls since he turned 18 and has voted in Federal and State elections, save for the times that he has served in prison.
6 Unfortunately, both as a juvenile and following his marriage, Long has been in trouble with the law. Relevantly for present purposes he was sentenced on 5 November 1987 in the District Court of Western Australia on two counts of possession of heroin with intent to sell or supply. On the first count he was sentenced to two years imprisonment and on the second to imprisonment for twelve months. On 11 February 1992, he was convicted on six counts of the manufacture of heroin and given two years probation. However, on 22 October 1992, he was sentenced to twelve months imprisonment on each of those counts concurrently for breaching his probation. On 28 March 1994, he was convicted of the offence of robbery while armed and in company. He was sentenced in the Supreme Court of Western Australia to imprisonment for seven years. On 7 July 2000, he was sentenced in the District Court on five counts of stealing and two counts of stealing a motor vehicle. The combined cumulative and concurrent sentences amounted to a total of five years imprisonment.
7 These offences may be put into the perspective of his overall criminal history which is as follows:
"Date Conviction Sentence
Under 18 years of age
18.10.1977 no MDL 12 mths probation
disq obtain MDL 3 mths
18.10.1977 unauthorised driving of a 12 mths probation
motor vehicle disq obtain MDL 3 mths
18.10.1977 break and enter 12 mths probation
18.10.1977 break and enter and steal 18 mths probation
06.03.1979 aiding a ward of the CWD $200 fine
to escape
Over 18 years of age
27.01.1983 speeding 82/60km zone $70 fine
04.03.1983 cannabis smoked/used $30 fine
04.03.1983 possess smoking implement $20 fine
31.03.1983 failing to wear seatbelt $30 fine
02.09.1983 no MDL $50 fine
02.09.1983 cannabis possess qty $200 fine
intent sell/supply
02.09.1983 cannabis sell/supply $100 fine
02.09.1983 possess smoking implement $100 fine
02.09.1983 resist arrest $30 fine
03.11.1983 break and enter and steal $100 fine, $120
restitution
02.01.1985 hinder police $100 fine
03.10.1985 cannabis possess qty $200 fine
03.10.1985 possess smoking implement $100 fine
06.05.1986 receiving $750 fine
05.11.1987 heroin possess qty 2 yrs imprisonment cum
intent sell/supply
05.11.1987 heroin sell/supply 12 mths imprisonment
11.02.1992 heroin manufacture (x 6) 2 yrs probation, 200 hrs
CSO
09.06.1992 no MDL $100 fine
31.08.1992 cannabis possess qty $350 fine
01.09.1992 heroin manufacture $500 fine
01.09.1992 hinder police $200 fine
22.10.1992 breach of probation (x 6) 12 mths imprisonment
each charge conc
28.03.1994 robbery whilst armed in 7 yrs imprisonment
company violent offence
04.08.1994 contravene red traffic light $120 fine
04.08.1994 no MDL $120 fine
10.04.1997 no MDL $200 fine susp, MDL disq
9 mths cum
23.12.1998 cannabis cultivate $500 fine
18.06.1999 breach of bail $300 fine
18.06.1999 no MDL $1000 fine, MDL disq
12 mths cum
18.06.1999 false name and address $250 fine, MDL disq
3 mths conc
01.07.1999 stealing (x 2) 4 mths imprisonment susp
for 18 mths
13.08.1999 no MDL 6 mths imprisonment,
MDL disq 18 mths cum
13.08.1999 false name and address $100 fine
13.08.1999 susp imp sentence 6 mths imprisonment
breached
09.11.1999 careless driving $200 fine
09.11.1999 failing to supply particulars $200 fine
after accident
09.11.1999 no MDL $100 fine
09.11.1999 wilfully mislead a police
officer $400 fine
07.07.2000 stealing a motor vehicle 2 yrs imprisonment
(x 2)
07.07.2000 stealing (x 5) 1. 12 mths imprisonment
cum
2.2 yrs imprisonment cum
3-5. 2 yrs imprisonment
conc each charge"
8 On 24 January 2002, the Minister for Immigration and Multicultural and Indigenous Affairs cancelled Long's visa. The decision is recorded at the end of a minute to the Minister from the Department dated 22 January 2002 and entitled "CONSIDERATION OF LIABILITY FOR CANCELLATION OF Brian Edward LONG's VISA UNDER S 501(2) OF THE MIGRATION ACT 1958". The record of the Minister's decision appears on p 16 of the Minute. On that page he was offered a number of alternative decisions and the record of the decision made, disregarding deleted options, reads as follows:
"PART E: DECISION
[59] I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Brian Edward LONG's comments, and have decided that:
…
(d) I reasonably suspect that Mr Brian Edward LONG does not pass the character test and Mr Brian Edward LONG has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.
Phillip Ruddock
Minister for Immigration, Multicultural and Indigenous Affairs
Date: 24.1.02"
History of these Proceedings
9 On 22 February 2002, Long filed an application in this Court for an order of review of the Minister's decision. The application, evidently prepared and signed by him, disclosed no grounds of the application other than the words "UNJUST DEPORTATION". No relief was specified. On 28 February 2002, Messrs. Christie & Strbac, Solicitors filed a notice that they were acting for Long in the matter. A proposed substituted application was filed and a motion for interlocutory relief by way of a stay order restraining the Minister from removing Long from Australia.
10 On 19 June 2002, Nicholson J dismissed an interlocutory motion seeking orders that the Minister be restrained from removing Long from Australia and from detaining him and that the decision to cancel his visa be stayed. It is not necessary now to revisit the content and circumstances of that decision. His Honour noted at the time of the decision that there was an undertaking not to remove Long from Australia pending final determination of his substituted application. Further interlocutory proceedings were initiated, but in the event the substantive application was set down for hearing and was heard on 21 October 2002. The application seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Court has no jurisdiction under the later Act to review decisions under the Migration Act 1958 (Cth).
11 The powers to cancel Long's visa and to hold him in detention thereafter as an unlawful non-citizen derive from s 501 and ss 189 and 198 of the Migration Act respectively. They can only be exercised within constitutional limits. The relevant constitutional limits are defined by the heads of constitutional power which support these provisions. They are the powers of the Commonwealth, under the Constitution, to make laws with respect to:
"Naturalization and aliens (Constitution s 51(xix));
Immigration and emigration (Constitution s 51(xxvii))."
It is common ground that Long has been absorbed into the Australian community so that he is no longer an immigrant - Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36. It is not in dispute that the cancellation of his visa pursuant to s 501 and his detention pursuant to ss 189 and 198 of the Migration Act are valid only if he is an "alien" within the meaning of s 51(xix) of the Constitution. He challenges the decision and his detention on the basis that he is not an alien.
12 Long also challenges the Minister's decision on grounds which might loosely be described as traditional judicial review grounds. It was conceded that review on any of these grounds is precluded by operation of the privative clause, s 474 of the Migration Act, as construed by the Full Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, in which decision that provision was also held to be constitutionally valid. It was accepted that having regard to the decision of the Full Court, this Court could not determine these other grounds in Long's favour. Special leave to appeal to the High Court is being sought in respect of three of the five appeals dealt with in the NAAV case. The High Court has also reserved its judgment on an unrelated matter in which the constitutional validity of s 474 has come under challenge.
13 The present application, heard on 21 October 2002, is formulated in the terms of an amended substituted application, substituted by order of Nicholson J on 4 April 2002. The first ground of the application, which contends that Long is not an alien and therefore outside the limits of ministerial and official powers exercised against him was in the following terms:
"a) In purporting to apply the provisions of s501 and by making his decision to cancel the Applicant's BF Transitional (Permanent) Visa and in taking the Applicant into detention for the purposes and with the intention of removing the Applicant from Australia, the Respondent has acted unlawfully and beyond the powers of the Commonwealth.
Particulars
i. The Applicant was born in Great Britain on 11 October 1963 and at all material times has been a British subject and a citizen of the United Kingdom.
ii. The Applicant first arrived in Australia as a child on 24 March 1975 and has thereafter being (sic) a permanent resident of Australia, subject only to being absent from Australia between 29 December 1975 and 21 March 1977, between 22 June 1979 and 24 March 1981 and between 9 December 1986 and 10 February 1987.
iii. The Applicant has been absorbed into the Australian Community and is no longer a migrant to Australia.
iv. The Applicant is not and never has been "an alien" within the meaning of s 51(xix) in the Constitution.
v. The Commonwealth Parliament has no power to legislate to remove the Applicant from Australia or to hold him in detention pending such removal.
vi. The Applicant is not subject to the power purported to be exercised by the Respondent under s501(2) of the Migration Act.
vii. The Decisions made to cancel the Applicant's visa and thereafter to take the Applicant into detention were decisions which were not capable or reasonably capable of reference to the power given to the Respondent under ss189, 196 and 501 of the Migration Act as the Respondent's power did not extend to persons in the position of the Applicant.
viii. The Respondent has no power to remove the Applicant from Australia or to hold the Applicant in detention."
The other administrative law grounds may be stated without reference to their particulars:
"b) If the Applicant is subject to the power to cancel the Applicant's visa which was purported to be exercised by the Respondent, which is denied, the Respondent did not make a bona fide attempt to exercise his power pursuant to s501 of the Migration Act.
c) The decision made was made without jurisdiction and was not authorised by the Migration Act and is accordingly void and of no effect.
d) The decision was made in breach of the rules of natural justice in that the Respondent did not have regard to the best interests of the Applicant's children and did not inform the Applicant or the Applicant's children that he did not propose to have regard to the children's best interests."
It may be noted that ground b) as particularised, did not in terms raise a bad faith argument which might have brought it within the exception to the application of s 474 as enunciated in NAAV and deriving from Re Hickman Ex parte Fox and Clinton (1945) 70 CLR 598. The relief sought is by way of prohibition, certiorari, injunction and declaration.
The Power to Make Laws with Respect to Aliens
14 The aliens power did not attract any substantive discussion at the Convention debates. It was included from the outset in the 1891 draft Bill as cl 52(xix) and agreed to without discussion in Sydney on 3 April 1891 (Conv Deb Syd 3.4.1891 p 701). By the time of the 1897 Convention debate in Sydney, cl 52(xix) had become cl 50(xxi). Clause 50, importing the legislative powers, was agreed without discussion of subs (xxi) (Conv Deb Syd 22.9.1897 p 1077). It was not discussed at the 1897 Adelaide Convention, nor at the 1898 Sydney Convention. The subject matter description of the head of power was the same as the description of the like power conferred on the Dominion Government of Canada by the British North America Act 1867 - s 91(xxv). In that case the power was exclusive. The power conferred by s 51(xix) is not exclusive to the Commonwealth. This is so notwithstanding the obvious criticism that "naturalization of aliens, which is undoubtedly a matter of national concern in which the whole Commonwealth is politically and socially interested, and which, consistently with the whole purport and character of the Constitution of the Commonwealth, ought to be exclusively regulated by Federal legislation" - Inglis-Clark, Studies in Australian Constitutional Law (1901 ed) Legal Books (1997) p 96-97.
15 The power is plenary - Robtelmes v Brenan (1906) 4 CLR 395 at 404 (Griffiths CJ), 415 (Barton J) and 420-421 (O'Connor J); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 25-26 (Brennan, Deane and Dawson JJ), 44 (Toohey J), 64 (McHugh J) cf 55 (Gaudron J). Unlike the many cases in which the scope of the power is debated, the present case concerns the question whether a British subject, living in Australia since 1975 (or alternatively 1981) is to be regarded as an "alien" for the purposes of the power. It is helpful in that connection to look to the essential elements of the term "alien" in s 51(xix) and how the High Court has interpreted that term in recent times.
16 The concept of "alien" under the common law of England was one born "out of the ligeance of the King", "ligeance" or "allegiance" being "… the true and faithful obedience of a liegeman or subject to his liege lord or soveraigne" - Coke's Institutes of the Laws of England Pt 1 Sect 198 [129.a]. A person might be borne out of the realm of England but if, for example, in Ireland, Jersey or Guernsey, would not be borne out of the allegiance of the King and therefore not be an alien: op cit Pt 1 sect 198 [129.b]. Blackstone states:
"Natural born subjects are such as are born within the dominion of the crown of England, that is within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen which binds the subject to the king, in return for that protection which the king affords the subject."
Bl Comm Bk 1 p 354
17 The rule by which aliens were defined at common law had two limbs. The first was that a child born within any territory subject to the King of England was a natural born subject of the King. So much was established by Calvin's case (1609) 7 Co Rep 1. A child born in Scotland after James VI became James I was no alien in England. The other rule was that, subject to certain exceptions, a child born elsewhere was an alien irrespective of the nationality of its parents - see generally Pollock and Maitland, The History of English Law, Vol 1 p 418.
18 Quick and Garran's discussion of the aliens power dealt at some length with the concept and disabilities of aliens. They referred to the English law under which an alien could variously be defined "as a person who owes allegiance to a foreign state, who is born out of the jurisdiction of the Queen, or who is not a British subject". The jus soli or territorial test of nationality was that every person born out of the British Dominions and every person born within the British Dominions was a British subject.
19 At the time of federation the identity of aliens and British subjects was governed by the common law. There was no Australian nationality in a constitutional sense. In Attorney-General for the Commonwealth v Ah Sheung (1907) 4 CLR 949 at 951, Griffith CJ on behalf of himself, Barton and O'Connor JJ said:
"We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, so that, while the term "immigration" as used in sec 51 of the Constitution admittedly includes the power of exclusion of British subjects in general, it would not extend to persons of Australian nationality, whatever that may mean."
To the extent that the concept of aliens depended upon allegiance to the Crown it was affected by changes to the nature of the Crown for the purposes of the Australian Constitution. Related to this was the evolution of Australia to independent nationhood, a somewhat debated and uncertain process in constitutional discourse. Initially the Commonwealth was a self-governing colony within the British Empire - China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 211 (Stephen J, Barwick CJ and Aickin J concurring), cf Murphy J at 236-237. It was not legislatively independent being still subject to paramount British legislation pursuant to the Colonial Laws Validity Act 1865. This remained the position until its adoption in 1942, retrospective to 1939, of the Statute of Westminster 1931 (UK). Executive independence in the conduct of foreign relations was recognised by all Dominions at the Imperial Conference in 1926. The 1930 Imperial Conference completed the acquisition of that independence by its resolution that advice to the King on the appointment of a Dominion Governor-General would come only from Dominion Ministers - Winterton, The Evolution of a Separate Australian Crown (1993) 19 Monash University Law Review 1 at 8-12. And see generally on the evolution of Australian independence - Winterton, The Acquisition of Independence (Paper presented at September 2001 National Conference of Australian Association of Constitutional Law, Perth). The final severance of legislative dependence on the United Kingdom is reflected in the Australia Act 1986 (Cth).
20 Also relevant is the concept of Australian citizenship which does not appear in the Commonwealth Constitution, but was introduced in 1948 by the Nationality and Citizenship Act 1948 (Cth). Similar legislation was passed in the United Kingdom and other Commonwealth countries to give effect to the principle that their peoples would enjoy separate citizenships but a common status as British subjects. That Act conferred the status of Australian citizen on persons born in Australia (excepting certain categories relating to the children of diplomats and enemy aliens). It also conferred such status by descent upon children born outside Australia to certain categories of Australian citizen (ss 10 and 11). An Australian citizen by virtue of the Act was also a British subject (s 7). The Bill, as Arthur Calwell said in the Second Reading Speech, was "not designed to make an Australian any less a British subject". Nor would it disadvantage British subjects in Australia who were not Australian citizens:
"British subjects, whether they are now in this country or enter it in future, will continue to be free from the disabilities and restrictions that apply to aliens. They will qualify for the franchise and have the right to become members of Parliament or to enter the public services." Parl Deb 30.9.48 pp 1060-1062
Section 5 of the Act contained a definition of the term "alien" thus:
""alien" means a person who is not a British subject, an Irish citizen or a protected person".
The Act also made provision for citizenship by naturalisation of aliens or protected persons (s 14). The definition of "alien" was not removed from the Act until 1 May 1987 when the Australian Citizenship Amendment Act 1984 (Cth) came into force.
21 The enactment of the Royal Style and Titles Act 1973 constituted the assent of the Commonwealth Parliament to the adoption, by the Queen, of the style and title, "Elizabeth the Second, by the Grace of God, Queen of Australia and Her Other Realms and Territories, Head of the Commonwealth". At the same time as the enactment of the Royal Style and Titles Act 1973, the Citizenship Act 1948 was amended by the Australian Citizenship Act 1973. This introduced a new form of oath and affirmation of allegiance to the Queen as Queen of Australia. The Crown was already divided before this time but the designation "Queen of Australia" made plain the separation of allegiance between the Queen of the United Kingdom on the one hand, and the Queen of Australia on the other. That separation allowed for the argument that a British subject could also be an alien.
22 The overlap of the categories of British subject and alien and the separation of the categories of immigrant and alien for constitutional purposes was established in Pochi v MacPhee (1982) 151 CLR 101. Gibbs CJ (Mason and Wilson JJ agreeing) there held, inter alia, that:
1. It is not correct that a person who is a British subject under the law of the United Kingdom cannot be an alien under s 51(xix).
2. The Parliament can treat as an alien any person who was born outside Australia, whose parents were not Australian and who has not been naturalised as an Australian.
3. The fact that a person ceases to be an immigrant for the purposes of s 51(xxvii) does not mean that he or she ceases to be an alien for the purposes of s 51(xix).
23 On the third of the above propositions, Gibbs CJ said:
"The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person's nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national. There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia. The Australian Citizenship Act validly so provides." (111)
The above propositions were followed in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178. That case concerned a British subject who came to Australia with his family at 10 years of age in 1967. He was not naturalised and there was no suggestion he had ever become an Australian citizen. His deportation was ordered in 1985 on the basis of criminal convictions, he having spent more than nine of his eighteen years in Australia serving prison terms in respect of them. He was held to have remained within the reach of the aliens power.
24 The joint judgment of Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ in Nolan looked to the etymology of "alien". It was held to mean "as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state'" - at 183 citing Milne v Huber (1843) 17 Fed Cas 403 at 406 (US). The Justices noted that the word could not have been used in 1900 to draw a distinction between British and Australian subjects of the Crown. Even after Federation Australia did not immediately enjoy the international status of an independent nation. But the emergence of Australia as an independent sovereign nation changed its relationship to the United Kingdom and "rendered obsolete notions of an indivisible Crown":
"The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject or a subject of the Queen by reason of his birth in another country could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an 'alien'." (184)
Reference in the Constitution to "the Crown of the United Kingdom" in the preamble and to "subject of the Queen" could not alter or avoid the consequences of the emergence of Australia as an independent nation, the acceptance of the divisibility of the Crown which was implicit in the development of the Commonwealth as an association of independent nations and the creation of a distinct Australian citizenship.
25 Nolan was followed in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (supra). See also Kenny v Minister for Immigration and Ethnic Affairs (1993) 115 ALR 75 (Gummow J). If Nolan's case were good law, then Long would be regarded as an alien and within the reach of the statutory provisions in issue in this case.
The Decision in Re Patterson
26 The recent decision of the High Court in Re Patterson; Ex parte Taylor (2001) 182 ALR 657 was at the centre of the argument in the present case. Mr Taylor was born in the United Kingdom and came to Australia as a child in 1966. He resided continuously in this country thereafter. In 2000 his visa was cancelled pursuant to s 501 of the Migration Act on account of his criminal convictions. On application to the High Court for relief under s 75(v) of the Constitution, one of the points he took, was that he was not an "alien" within the meaning of s 51(xix). It was not in dispute that he, like Long in the present case, had been absorbed into the community and was beyond the reach of the immigration power. The Court upheld his contention that he was not an alien by a majority of four comprising Gaudron, McHugh, Kirby and Callinan JJ. Gleeson CJ, Gummow and Hayne JJ dissented. The majority overruled Nolan v Minister for Immigration and Ethnic Affairs.
27 The formal outcome of the case was the issue of a writ of certiorari which quashed the Minister's decision cancelling Mr Taylor's visa. Prohibition also issued prohibiting the Minister from further proceeding on the cancellation decision. Gaudron J held that, upon his arrival in Australia in 1966, Mr Taylor was a British subject for the purposes of the Naturalisation and Citizenship Act 1948, later known as the Australian Citizenship Act 1948. He was then "a migrant but not an alien as defined in s 5 of the Citizenship Act". The effect of the deletion of the definition of "alien" which came into effect on 1 May 1987, according to her Honour, was:
"… either to confirm Mr Taylor's membership of the body politic constituting the Australian community by virtue of his status as a British subject or, if the point had then been reached when Australia might treat British subjects as aliens for constitutional purposes, to confer non-alien status upon him - in effect, to naturalise him and all other British citizens in the same position. Either way, Mr Taylor was not, for constitutional purposes, an alien at any time prior to 1987." [44]
In reaching this conclusion her Honour held that Nolan was wrongly decided.
28 McHugh J found for Mr Taylor on administrative law grounds and so did not need to decide the constitutional points raised in the case. He noted nevertheless that other members of the court had expressed their views on those issues and were equally divided on the aliens question [88]. In the circumstances he thought it necessary to express a view on that question. His Honour, like Gaudron J, held that Nolan was wrongly decided. In his Honour's opinion, the joint judgment had overlooked two significant matters. The first was that, if the emergence of Australia as an independent nation had made Australians, who were subjects of the Queen of the United Kingdom, subjects of the Queen of Australia, there was no constitutional reason for distinguishing their position from that of British-born subjects of the Queen of the United Kingdom living in Australia. Logically, the evolutionary process that converted persons born in Australia into subjects of the Queen of Australia must also have converted British-born subjects living in Australia into subjects of the Queen of Australia. The second point was that, while the joint judgment in Nolan had referred to s 117 of the Constitution, it had failed to acknowledge and give effect to its implications and the light that they threw on who was an "alien" for the purposes of s 51(xix). His Honour then said:
"For these reasons, the decision in Nolan should be overruled. The applicant and all other British subjects, born in the United Kingdom, who were living in Australia at the commencement of the Royal Style and Titles Act 1973 (Cth) and who have continued to reside here are subjects of the Queen of Australia, even if they are also subjects of the Queen of the United Kingdom. They are not and never have been aliens. They cannot be deported under the aliens or immigration powers conferred on the parliament by s 51 of the Constitution." [91]
29 In further analysis later in his reasons his Honour identified as the critical question whether Mr Taylor was a person who was resident in an Australian state when the evolutionary process was completed. That question involved identifying when the Queen in right of the United Kingdom became the Queen of Australia. His Honour referred to academic commentary that Australia became an independent nation in 1931 on the enactment of the Statute of Westminster. Accepting that this was the relevant date no attempt was made to assert the sovereignty of the Queen of Australia until the passing of the Royal Style and Titles Act 1973. His Honour said:
"Until the commencement of that Act - and maybe later- all British subjects resident in Australia, whether born here or overseas, owed their allegiance to the Queen of the United Kingdom. That being so, those British subjects, born in the United Kingdom, who were living in Australia at the commencement of the Royal Style and Titles Act 1973 became subjects of the Queen of Australia as well as subjects of the Queen of the United Kingdom. Accordingly, they were not and did not subsequently become aliens within the meaning of s 51(xix) of the Constitution." [135]
30 It is also of importance to mention a further paragraph in the judgment of McHugh J where his Honour considered the contention advanced by the Minister that the aliens power could not be confined to common law notions of allegiance and that it was open to the Parliament to treat as an alien any person who is not an Australian citizen. He also considered the Minister's contention that it was open to the Parliament to confer Australian citizenship only on those who were born in Australia or descended from or adopted by an Australian citizen and those who are granted Australian citizenship. His Honour then said:
"That contention may be true as a general proposition. But in my view the terms of the Constitution make it clear that, at least until the passing of the Royal Style and Titles Act 1973 (Cth), a person, living in Australia, who owed allegiance to the Queen of the United Kingdom was not and is not an alien within the meaning of the Constitution." [121] (emphasis added)
31 Kirby J held that a person who arrived in Australia as a British subject at a time when that status was accorded constitutional and statutory equivalence to Australian nationality, was beyond the operation of the naturalisation and aliens power. He said of Mr Taylor:
"He never was an 'alien' for the purposes of the Constitution. At least in his case, when the attempt was made to treat him as an "alien" … he had been absorbed into the people of the Commonwealth. Once so absorbed he could not ex post facto be deprived of his nationality status as a non-alien. In particular, he was not subject to legislative or executive power to order his deportation, any more than this could be done in the case of another Australian whose nationality status is now that of a citizen." [304]
In 1900 it was incontrovertible that, in the case of British subjects, there was no distinction between those born overseas and those born in Australia, or descended from or adopted by, natural born Australians. The question was whether that situation changed at some time in the ensuing century, in a way that made a person such as Mr Taylor an alien when he arrived in 1966 or susceptible to being retrospectively rendered so at some later time. Although the court in Nolan had considered that such a change had occurred, the majority did not explain when or how the change had come about. His Honour held that British subjects who arrived in Australia before 1987 and became permanent residents of Australia were entitled to conclude that it was not necessary for them to seek naturalisation as Australian citizens:
"Once, after their arrival, they were absorbed into the Australian community they could not, retrospectively, be reclassified as 'aliens' for constitutional purposes. They were not only beyond the operation of the immigration power. They were also then beyond the aliens power. To the extent that Nolan decides otherwise, it should be overruled."[308]
32 Kirby J was prepared to accept that citizens of the United Kingdom coming to Australia after May 1987 might be treated as "aliens" for constitutional purposes, after notions of Australian citizenship had replaced references to British subjects. At that time the special privilege accorded to British subjects to be enrolled as electors was also terminated. The notion of what amounted to Australian nationality under the Constitution had altered. [312]
33 Callinan J agreed, for the reasons expressed by McHugh J, that Nolan should be overruled. The reasons of McHugh J, with which his Honour expressly agreed, included par [91] in McHugh J's judgment set out above. His Honour also expressly agreed with those paragraphs in the reasoning of Kirby J in which it was accepted that citizens of the United Kingdom coming to Australia after May 1987 might be treated as "aliens" for constitutional purposes. See [377] and footnote 420.
34 Within the majority judgments in Re Patterson there are at least two views supporting the conclusion that Mr Taylor was not an alien when his visa was cancelled in 2000. The first view, associated with the judgments of Gaudron, Kirby and Callinan JJ, is that British subjects who were absorbed into the Australian community prior to May 1987 could not be treated as aliens for the purposes of s 51(xix). The second view expressed by McHugh J was that until the commencement of the Royal Style and Titles Act 1973 "and maybe later" British subjects owed their allegiance to the Queen of the United Kingdom. Those British subjects born in the United Kingdom who were living in Australia at the commencement of the Royal Style and Titles Act 1973 became subjects of the Queen of Australia as well as subjects of the Queen of the United Kingdom. Accordingly, they were not and did not subsequently become aliens within the meaning of s 51(xix) of the Constitution. The latter reasoning does not expressly address the position of a British subject who arrived in Australia after the commencement of the Royal Style and Titles Act. Indeed, in par [121] his Honour stated that a British subject living in Australia was not an alien within the meaning of the Constitution "at least until the passing of the Royal Style and Titles Act 1973(Cth)". This and the "maybe later" reference appears to leave open the question whether a British subject who came to Australia after 1973, as did Long in this case, and subsequently became absorbed into the community, is to be treated as an alien. It suggests however at least a provisional view that 1973 represented a cut off point.
35 Absent a clear common ratio on the part of the majority in Re Patterson on the question of the aliens power, the extent to which, and the principles for which, it can be regarded as binding authority are debatable. The Minister has submitted that in Re Patterson, a majority of the Court, partially overruled Nolan holding that there is a category of former "British subjects" who are "non-citizens" but not "aliens". Re Patterson it was said, did not otherwise disturb the authority of either Pochi or Nolan. Moreover there was no common view amongst the majority as to precisely which British subjects fall within the category of "non-citizens" who are not "aliens". The Minister submitted formally that Re Patterson was incorrectly decided and that the minority view of Gleeson CJ, Gummow and Hayne JJ is correct, notwithstanding that the decision is binding on the Court.
36 It was further submitted that Long does not come within the class of British subjects that, following Re Patterson, fall outside the constitutional definition of "alien". In the absence of any common view among members of the majority, the decision in Re Patterson on the aliens point should be treated as turning on the approach of McHugh J. His Honour's approach, it was said, represented the narrowest basis for the difference between the majority and the minority and the overruling of Nolan. His Honour had made it clear that he only chose to express his view because the court in Re Patterson was otherwise "equally divided" on the point. Without the expression of that view, Re Patterson would have established no principle or precedent having the authority of the High Court. The case ought to be treated as authority only for the proposition that s 501 of the Migration Act does not validly apply to a British subject born in the United Kingdom who was living in Australia and who owes allegiance to the Queen of the United Kingdom at the time of the enactment of the Royal Style and Titles Act in 1973. The applicant, having arrived in Australia for the first time in March 1975, had never owed allegiance in the relevant sense to the Queen of Australia and was therefore, it was said, an "alien" on the approach of McHugh J.
37 Counsel for Long agreed that three of the majority judges had held that British subjects arriving to reside in Australia prior to 1 May 1987 were not aliens at the time of their arrival and did not then become aliens. Counsel's submissions characterised the judgment of McHugh J as tending towards 1973 being the relevant date but leaving the issue open. The reasoning of the three judges, who formed part of the majority of four "whilst not wholly binding", was so highly persuasive that it ought to be followed unless the Court is otherwise bound.
38 The decision in Re Patterson is not binding authority for the proposition that a British subject arriving in Australia before 1 May 1987, who had been absorbed into the community, is not an alien. It is therefore not open to this Court simply to apply the principle enunciated by Gaudron, Kirby and Callinan JJ on the basis that it is bound to do so. The question is whether it is appropriate, at first instance in this Court, to apply that principle.
39 In a judgment of the High Court given on 7 November 2002, Re Minister for Immigration & Multicultural Affairs; Ex parte Te and Dang [2002] HCA 48 the aliens power was revisited in relation to the cancellation of visas of persons who, although absorbed into the Australian community, were not British subjects and had not become Australian citizens. The outcome was adverse to the applicants who were unable to invoke whatever benefit could be derived from Re Patterson as they were never British subjects. They had arrived in Australia as aliens. It is clear from the judgments in that case that there remain significant differences among the Justices of the High Court concerning the propositions for which Patterson is authority. McHugh J said that "… no ratio decidendi with respect to the aliens power can be extracted from the reasoning in Re Patterson". He accepted however that it had precedential authority in respect of circumstances not reasonably distinguishable from those which gave rise to the decision. In the context of the particular case before him his Honour said:
"There is nothing in the majority judgments in Re Patterson that overrules the general proposition that in most cases Parliament may treat any person who is not an Australian citizen as an alien. The majority Justices in Re Patterson overruled Nolan to the extent that it purported to state an exclusive test of alienage. It overruled that case to the extent that its general proposition applied to certain non-citizen British subjects - those born in the United Kingdom who were living in Australia as part of the Australian body politic or owing allegiance to the Queen of Australia some time before 1987." [89]
His Honour in Re Patterson had said nothing concluded about the position of British subjects in Australia after the Royal Style and Titles Act 1973. Gleeson CJ referred to what he called "the current inconclusive, state of authority" following Re Patterson. Gummow J, adverting to the divergent reasoning concerning invalidity in Re Patterson, described attempts to discern a ratio decidendi in relation to invalidity as doomed. Gaudron and Kirby JJ were of the view that Patterson clearly held that provisions of the Act permitting the detention and removal of non-citizens were invalid in their application to a person who had been born in the United Kingdom and entered Australia before the coming into effect, in 1987, of the Australian Citizenship Amendment Act 1984 (Cth) and had been absorbed into the Australian community but had not taken out Australian citizenship [160] and [174]. Callinan J simply observed that Re Patterson did not assist the applicants in the later case.
40 In my opinion, there is no binding principle in Re Patterson which assists me to a decision in this case. I consider that I should not apply to this case the proposition that British subjects living in Australia were not to be regarded as aliens until after 1987. In my opinion the appropriate position to take is the minimum position adverted to by McHugh J (although not definitively). On that position the division of allegiances between the Queen of the United Kingdom and the Queen of Australia became clear and the status of British subjects who were not Australian citizens also became clear as aliens for the purpose of the Constitution in 1973 upon the enactment of the Royal Style and Titles Act 1973. This approach is the most conservative approach to the decision in Re Patterson which, having regard to its divergent reasoning, should be seen as disturbing pre-existing law to the least extent necessary consistent with the outcome. That position is reached by following the reasoning of McHugh J and treating it as definitive. I have no doubt that the matter will receive further clarifying attention by the High Court in cases now pending before it. I would add the observation that the more recent the date upon which it was possible for a person who was not an Australian citizen to be other than an "alien" for constitutional purposes, the more recent the date upon which it would have to be said that Australia had not achieved independent nationhood in all its aspects.
Conclusion
41 For the preceding reasons, I conclude that Long was within the scope of the power to cancel his visa and to detain him accordingly. The application will therefore be dismissed. Having regard to the uncertainties attending the law in this case, which is in the nature of a test case, I do not consider it appropriate to order costs against him. There will therefore be no order as to costs.
I certify that the preceding forty one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.
[2]
Counsel for the Respondent: Mr DMJ Bennett QC SG and Mr PR Macliver
[3]
Solicitor for the Respondent: Australian Government Solicitor
Parties
Applicant/Plaintiff:
Long
Respondent/Defendant:
Minister for Immigration & Multicultural & Indigenous Affairs
Application dismissed. No order as to costs. French J held that Long was within the constitutional scope of the visa-cancellation and detention powers ([41]).