EDELMAN J.
Introduction
The central question in each of these special cases is 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. The "most important difference" between aliens and non-aliens is the liability of aliens to exclusion from the Australian community and deportation from Australia without the ability to return. Throughout history, the lives of dispossessed and exiled persons and their descendants have been sustained, and their identities shaped, by the hope of returning to their places of belonging. The identity of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia. It is that identity which constitutes them as members of the Australian political community. At Federation that identity limited the reach of the aliens power in s 51(xix) of the Constitution, preventing the fragmentation of the political community and the stripping of that Aboriginal identity. It would be bizarre if the evolved application of the aliens power could do so today.
At Federation, the essential meaning of an alien, as a foreigner to a political community, was understood and applied in racial terms. Persons who were described as members of the Asiatic or Indian races were considered to be aliens on arrival in Australia, even if they were also British citizens. Yet Aboriginal people were not considered to be aliens. The Aboriginal inhabitants of Australia had community, societies and ties to the land, now recognised as a "connection to country", that established them as belonging to Australia and therefore to its political community. Whatever the other manners in which they were treated, as Willis J said in a different context in 1841 Aboriginal people were not "considered as Foreigners in a Kingdom which is their own". To adapt the remarks of Lord Brougham, delivering the advice of the Privy Council in 1837, to have concluded at Federation that an Aboriginal person was an alien would be "almost as inconsistent with common sense as it would have been to hold the English inhabitants aliens under James I".
The application of the essential meaning of an alien as a foreigner to the Australian political community evolved in the post-Federation jurisprudence of this Court away from an application which focused heavily upon conceptions of race, as then understood. However, unlike the approach to the immigration power, it was not sufficient to give rise to non-alienage under the evolved application for a person to have been integrated into the community, although it has been suggested that in a modern nation state defined by territory this might have been a "satisfying rationale". Instead, since citizenship is a clear marker of membership of the Australian political community, the evolved application generally asked whether the person was a citizen of the polity. On this evolved application, the Commonwealth Parliament has great latitude to shape the constituent membership of, and alienage from, what is now the Australian political community. It does so by defining who is a citizen.
However, the essential meaning of a constitutional term should not be confused with its common application. 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.
The Solicitor-General of the Commonwealth accepted at the first hearing of these special cases that the purported denial by Parliament of statutory citizenship to a child born in Australia to two parents who were citizens of Australia could not make the child an alien, even if the child (and presumably also a parent) were a foreign citizen although only due to a foreign law that conferred "foreign citizenship across generations for people who were not continuing to reside in or be born in the foreign country". The essence of this submission was repeated by the Solicitor-General of the Commonwealth at the second hearing of this matter. No party, or the intervener, disputed it. No member of this Court questioned it. The submission is entirely correct. It recognises that the Commonwealth Parliament does not have an unlimited ability to recite itself into a constitutional head of power ("aliens") by legislation with respect to a closely related but distinct subject matter ("citizens"). The submission does not confuse the essential meaning of alien with the common application of the concept to statutory citizens. And it is consistent with the application of the essential meaning of an alien as a person who does not belong to the Australian political community since the child is, without more, tied to the Australian political community by bonds of birth and parentage that the Commonwealth Parliament cannot legislate to sever by a denial of citizenship. The child is beyond the scope of the aliens power in s 51(xix) of the Constitution.
No Australian court has ever considered whether Aboriginal people or, by parity of reasoning although not the focus of these cases, Torres Strait Islanders are also beyond the scope of the aliens power. Since settlement, Aboriginal people have been inseparably tied to the land of Australia generally, and thus to the political community of Australia, with metaphysical bonds that are far stronger than those forged by the happenstance of birth on Australian land or the nationality of parentage. When the post-Federation application of membership of the political community moved away from issues of race, this did not strip non-citizen Aboriginal people of their status as belongers to the Australian political community by denying their identity and thus permitting an approach that would treat them as doomed "to an institutional status of permanent inferiority". Instead, legal events following Federation reduced the scope for discrimination without destruction of the one thing that is essential to real community: difference. The legal recognition of the powerful ties between Aboriginal people and Australian land would not have been possible if the membership of a political community involved a lockstep of such stifling homogeneity as could make Aboriginal people aliens within the meaning of s 51(xix) of the Constitution.
The issue in these special cases arises because Mr Love and Mr Thoms are non-citizens. Following the sentencing of Mr Love and Mr Thoms in 2018 for offences against the Criminal Code (Qld), a delegate of the Minister for Home Affairs cancelled their visas. Each plaintiff was taken into immigration detention, purportedly under s 189 of the Migration Act 1958 (Cth), on suspicion of being an unlawful non-citizen with the potential consequence of removal from Australia. Mr Thoms remains in immigration detention. Mr Love was subsequently released from immigration detention and the decision to cancel his visa was revoked. However, the validity of the initial decision to cancel Mr Love's visa is a relevant issue in proceedings brought by Mr Love that allege false imprisonment by the Commonwealth.
The Commonwealth relies upon the aliens power in s 51(xix) of the Constitution to support the validity of the Migration Act in its application to Mr Love and to Mr Thoms. But an Aboriginal person cannot be an alien to Australia. Aboriginal people belong to Australia and are essential members of the "community which constitutes the body politic of the nation state". Insofar as the Migration Act purports to apply to Aboriginal people of Australia, such as Mr Love and Mr Thoms, as aliens, it must be disapplied.
The essential meaning of alien at the time of Federation
The essential meaning of alien
To accept that the application of "alien" can change over time does not mean that the word has no essential meaning. The Constitution is not merely a jumble of letters capable of being given entirely new essential content at different times like alphabet soup. The essential meaning, or "prime essential", is the "limit ... fixed beyond legislative control". Putting to one side the effect of precedent, the essential meaning of the words of the Constitution, which instantiates their purpose, cannot change. However, although the Constitution was intended to be enduring it was also intended to be flexible. The essential meaning is usually intended to apply to new circumstances and in different ways as time passes. The scope for that application will depend upon the level of generality at which essential meaning is intended to be characterised. It is therefore vital that essential meaning be characterised at the proper level of generality.
The identification of the essential meaning of a constitutional term at the proper level of generality can sometimes be a difficult exercise. The generality of the words themselves might afford some indication of the level of abstraction that was intended. As Dixon CJ observed, "the fewer the words in which the subject matter of a constitutional power is expressed the more extensive sometimes may be the field laid open to a generous interpretation". However, the abstract meaning of words is only one indicator of the level of generality of essential meaning. In the context of the head of power in s 51(xxi) of the Constitution, concerning the "recognized topic of juristic classification" of "marriage", Windeyer J said in Attorney-General (Vict) v The Commonwealth that the scope of constitutional powers is "not to be ascertained by merely analytical and a priori reasoning from the abstract meaning of words". His Honour continued, saying that the interpretation is also "affected by established usages of legal language". To this can be added that interpretation is controlled by the established purpose of the provision; and it is affected by the established context in which the words appeared, particularly where established uses of legal language were in flux at Federation.
In The Commonwealth v Australian Capital Territory, this Court approved the approach of Windeyer J but expressly recognised the danger of relying too heavily upon established uses of legal language at Federation where that usage was in flux. This Court rejected the characterisation of "marriage" advanced by Quick and Garran at a level of specificity, based on established usages of legal language in 1900, that included within the "essence" of its meaning a union between a man and a woman. After referring to the "long and tangled development" of the social institution of marriage, including substantial changes in the latter half of the nineteenth century before Federation, this Court held that "marriage" in s 51(xxi) had an essential meaning at a higher level of abstraction as a "consensual union formed between natural persons in accordance with legally prescribed requirements", an essential meaning that recognised a union that the law "intended to endure and be terminable only in accordance with law" as well as "a union to which the law accords a status affecting and defining mutual rights and obligations". Although "marriage" in s 51(xxi) was characterised at a higher level of generality than the prevailing legal usage, this Court was not suggesting that its essential meaning included anything that Parliament declares to be a marriage. It would not extend, for example, to a union of corporations. "Marriage", as a topic of juristic classification, states a "subject[] for legislation, not [a peg] on which the Federal Parliament may hang legislation". So too with "aliens" in s 51(xix). "Aliens" is not a peg on which the Commonwealth Parliament may hang any legislation concerning citizens according to its own definition.
If the essential meaning of alien were to be characterised at a low level of generality, such as by reference to established common law rules underlying the recognition of citizenship and allegiance, then it would have fixed in place norms that were continually evolving, particularly around the time of Federation. Those norms had a long history of evolution at common law and by statute, particularly from the start of the seventeenth century in Calvin's Case. That common law history was discussed in detail by McHugh J in Singh v The Commonwealth from feudalism through the restatement in Calvin's Case, the union of the thrones of England and Scotland, the loss of the United States colonies, the development of international law in the nineteenth century, and the Royal Commission into naturalisation and allegiance established in 1868. In Singh v The Commonwealth, McHugh J relied upon that history to characterise the essential meaning of an alien in s 51(xix) of the Constitution at a low level of generality as a person who did not owe permanent allegiance to the Crown, such allegiance arising by the location of birth subject to three exceptions. That was a minority view.
In Singh v The Commonwealth, a majority of this Court characterised the essential meaning of an alien at a higher level of generality. As Gleeson CJ observed, the difficulty with characterising the meaning of alien at a low level of generality in an instrument of government that was intended to endure was that "questions of nationality, allegiance and alienage were matters on which there were changing and developing policies". In a joint judgment, Gummow, Hayne and Heydon JJ also referred to the numerous legislative interventions on the subject of aliens which had left "one feature about the use of the word that was constant". That feature, at Federation as it is now, is "wholly unambiguous and clearly understood by all, lawyers and laymen alike". The feature, which has been repeatedly reiterated in this Court, is that "alien" in its commonly understood etymology, from "Latin alienus through Old French", means "belonging to another person or place". With this "broad" characterisation of the essential meaning of "alien", the majority held that Ms Singh was an alien within the meaning of s 51(xix) of the Constitution. She was not an Australian citizen. And although she had been born in Australia, her parents were both of Indian nationality and she had taken Indian citizenship at birth. Gleeson CJ, expressing agreement with Gummow, Hayne and Heydon JJ, said that despite Ms Singh's birth in Australia, "there was in 1900 no established legal requirement that she be excluded from the class of aliens".
The application of the essential meaning of alien at Federation
The most basic power over an alien is the power of exclusion and expulsion: "[t]he right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, [is] an inherent and inalienable right of every sovereign and independent nation". In the period leading up to Federation the essential meaning of "alien", a foreigner to a political community, was thought to apply in racial terms, driven by a concern for a power to expel. Section 15(i) of the Federal Council of Australasia Act 1885 (Imp) gave legislative authority to the Federal Council of Australasia in relation to various matters including the "naturalisation of aliens", a conferral of power that presaged s 51(xix) of the Constitution. After reference from the legislatures of the colonies of Victoria and Queensland, the Federal Council of Australasia passed The Australasian Naturalisation Act 1897, concerning the "naturalisation of aliens of European descent". Section 3 of that Act defined a person of European descent as "any person who by lineage belongs exclusively to any of the European races".
The slight change to the wording chosen for the aliens power in the Constitution, "naturalization and aliens", was important for the recognition of a general power with respect to aliens that was not limited to naturalisation. However, this did not affect the racial lens through which the meaning of the word "alien" was thought to apply. As Dr Prince explains, in an apparently unpublished doctoral thesis from the Australian National University, at the Constitutional Conventions the debate over the aliens power in s 51(xix) was closely associated with issues concerning the race power in s 51(xxvi) of the Constitution. In discussion of the race power, the delegates to the 1898 Convention also spoke interchangeably of "foreign races", "alien races", "Asiatic alien" and "aliens".
The application of the aliens power and the race power was generally understood to be complementary. The aliens power and the immigration power in s 51(xxvii) included a concern with the conditions of admission to Australia of those who were considered as members of foreign races. The race power was concerned with the treatment of the people considered to be members of those foreign races "who are in the Commonwealth [of Australia]" even if they were granted citizenship. Mr Symon spoke of the admission of "the coloured races - those whom we describe as aliens - to the full advantage of the citizenship of Australia". Sir Samuel Griffith said of the race power that "[t]he intention of the clause is that if any state by any means gets a number of an alien race into its population, the matter shall not be dealt with by the state, but the commonwealth will take the matter into its own hands".
The generally understood application of the aliens power as concerned with those people considered to be from foreign races, rather than foreign citizens, was also apparent from the view that 150 million British citizens living in India were considered to be aliens. Although, in Potter v Minahan, Isaacs J referred to "the right unrestricted at common law of all British subjects wherever born outside Australia to enter the Commonwealth", the application of the aliens power was seen as a means of applying a disability to those considered to be members of foreign races holding British citizenship. In the context of debate about a proposed citizenship power, which was ultimately rejected, Mr Kingston said:
"It would be simply monstrous that those who are born in England should in any way be subjected to the slightest disabilities … but, on the other hand, we must not forget that there are other native-born British subjects whom we are far from desiring to see come here in any considerable numbers. For instance, I may refer to Hong Kong Chinamen."
Similar statements were made in relation to the provision that became s 117 of the Constitution, where references were made to "alien races" and to the "power of excluding Chinese, Lascars, or Hindoos who happened to be British subjects", and concerns were expressed that "simply because a man was born under British rule in India, China, or elsewhere, therefore, of necessity, on arriving in one of these colonies, he could claim citizenship of the Commonwealth".
Consistently with the application of the meaning of "alien" in the Convention debates based on what was then understood as "racial" distinctions, the race power, s 51(xxvi), also applied the meaning of "the people of any race" to people of any "alien race", namely "races" outside the Australian political community. Those "alien races" might have been British citizens of India or Hong Kong. They need not have been migrants and "they could well be born in Australia".
Even with racial application, alien was not applied to persons described as members of the Aboriginal race
In its literal terms, the race power could have applied to all "races" since, as Professor Sawer observed, there is difficulty in seeing why the race power should not be "applicable to the majority 'race' - every person, say, of 'Caucasian origin'". It was effectively the concept of political community, which included Aboriginal people, that limited the application of the race power to "alien races". Hence, even without an express exclusion from the meaning, Aboriginal people would probably not have been within the application of the race power. The express exclusion of them from the meaning of s 51(xxvi) was thus, unsurprisingly, not the subject of debate: "it was simply taken for granted that they should be excluded". There was, however, no need, even for clarity, for the same exclusion from the meaning of s 51(xix), which did not mention race. Aboriginal people simply did not fall within the application of "alien", a foreigner to the political community.
Upon settlement of Australia all Aboriginal people became British subjects. From that time, as Professor Sawer said, "every aboriginal native of Australia born in Australia ... became a British subject by birth; his race was irrelevant, and there were no other circumstances capable of qualifying the allegiance". But, as I have explained, merely having British citizenship would not have prevented Aboriginal people of Australia from being characterised as aliens on the race-based application of "alienage" at the time of Federation. Nor, according to the decision of the majority in Singh v The Commonwealth, would birth in Australia have been sufficient to prevent an Aboriginal person from being characterised as an alien. Instead, the reason Aboriginal people were not aliens was that they were members of the political community.
In 1903, the Commonwealth Parliament enacted the Naturalization Act 1903 (Cth), which provided, in s 5, for the power of a Commonwealth resident, not being a British subject, to apply for a certificate of naturalisation. However, a person who was "an aboriginal native of Asia, Africa, or the Islands of the Pacific" was expressly excluded from the class of persons permitted to apply for a certificate. No such exception was provided in relation to the Aboriginal people of Australia. There was no exception because they were members of the political community, albeit with fewer rights than others in the community.
In 1901, s 127 of the Constitution provided that "[i]n reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted". Mr Barton said that the reason for this clause was that in counting the whole population of a State "it would not be considered fair to include the aborigines". The fairness to which he referred may have been a reference to the unreliable counts of the Aboriginal population and gross underestimates of their probable numbers then available. In contrast with this treatment of Aboriginal people, the Convention rejected a proposed amendment by the Legislative Councils of New South Wales and Tasmania to exclude also from the count "aliens not naturalized". The premise of the inclusion of aliens but the exclusion of Aboriginal people is another indication that Aboriginal people were not considered aliens despite the racial terms for application of the meaning of "alien".
The different treatment of Aboriginal people within the political community was generally thought to be a matter for local laws. In contrast with Canada, where, separately from the power over "Naturalization and aliens" in s 91(25) of the British North America Act 1867 (Imp), there existed in s 91(24) a power over "Indians, and lands reserved for the Indians", the treatment of Aboriginal people in other colonies was not considered to be a matter for the central authority. Following conflict between Aboriginal people and settlers, in 1837 in Great Britain the Parliamentary Select Committee on Aborigines expressed a strong view that powers concerning Aboriginal people be vested in the executive rather than the legislature. The Committee reported that:
"The protection of the Aborigines should be considered as a duty peculiarly belonging and appropriate to the executive government, as administered either in this country or by the governors of the respective colonies. ... In the formation of any new colonial constitution, or in the amendment of any which now exist, we think that the initiative of all enactments affecting the Aborigines should be vested in the officer administering the government; that no such law should take effect until it had been expressly sanctioned by the Queen, except in cases of evident and extreme emergency".
In 1929, a majority of the Royal Commission recommended against amending s 51(xxvi) of the Constitution on the basis that the States were still better placed than the Commonwealth to legislate in relation to Aboriginal people.
The evolved application of the essential meaning of alien
Although the application of membership of a political community was seen by the founding fathers through a racial lens, after Federation it was not always applied in that way, although it has been persuasively argued by Dr Prince that some early cases implicitly applied criteria based upon racial perceptions. The removal of the racial lens for application of the essential meaning of alien as a foreigner to the political community avoids the problematic characterisations of "race" in s 51(xix) that still permeate s 51(xxvi). However, no single test has been accepted for the application of alienage under s 51(xix). Importantly, neither of two possible tests of application has been accepted as conclusive of non-alienage: (i) absorption into the Australian community; or (ii) statutory citizenship and the associated allegiance to the sovereign of Australia. The first has not been held to be sufficient. The second is not necessary.
Absorption into the political community is not sufficient
One approach to membership of the Australian political community might have been to treat the aliens power in the same way that the immigration power in s 51(xxvii) of the Constitution had come to be treated. In Potter v Minahan, Isaacs J, in dissent on this point, adopted a test for the immigration power which considered:
"[t]he ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people.
Nationality and domicil are not the tests; they are evidentiary facts of more or less weight in the circumstances, but they are not the ultimate or decisive considerations."
That approach was later adopted and applied to determine that people could not be deported from Australia under this power if, having entered Australia with the intention to settle, they "have become members of the Australian community". Since "[t]he right to deport is the complement of the right to exclude", an approach to the aliens power which focused upon whether a person had become integrated into the Australian political community might have had the merit of this symmetrical treatment of the immigration and aliens powers. In relation to British subjects who migrated to Australia prior to 1987, Kirby J said of the absorption rule that he could "see no reason of principle why a less protective rule should be applied".
Such an approach, as a conclusive test of alienage, was rejected by this Court in Pochi v Macphee. Gibbs CJ, with whom Mason and Wilson JJ agreed, thought that the argument was "impossible to maintain". The integration approach was rejected because, as Gibbs CJ considered, it would amount to an impermissible conferral of citizenship by naturalisation without an Act of Parliament. However, it does not appear to have been argued in Pochi v Macphee that a constitutional non-alien is a different concept from a naturalised citizen or that constitutional concepts operate upon a different plane from legislative ones. The description of a person as a constitutional non-alien means only that the person is beyond the reach of the Commonwealth power over aliens. It does not mean that the person has become naturalised and entitled to all the privileges that citizenship brings.
A different reason for rejecting the absorption approach was given by Gummow and Hayne JJ, in dissent on this point, in Re Patterson; Ex parte Taylor: the concept of integration is not easy to apply and would turn details of the lives of individuals into "constitutional facts". However, the immigration power has been applied for many decades in this manner without great difficulty and it may be that legislation could create a workable general test that could operate as an easy discrimen in most cases. In any event, as Gleeson CJ, Gummow and Hayne JJ, with whom Heydon J agreed, said in Shaw v Minister for Immigration and Multicultural Affairs, the ordinary understanding of the term "alien" is one that "must have regard to the circumstances and conditions applicable to the individual in question".
A further explanation given by Gleeson CJ and McHugh J in separate judgments in Re Minister for Immigration and Multicultural Affairs; Ex parte Te was that, unlike a person's status as an immigrant, once a person is determined to be an alien then the loss of that status is a matter for the Commonwealth Parliament. But, with respect, that explanation depends upon the reason that the person is an alien in the first place. If, as Gaudron J thought in the same case, the reason is a criterion of birth outside of Australia then there would be substantial differences from the immigration power. But birth outside Australia was rejected as the test for alienage in Singh v The Commonwealth. In contrast, if the criterion for being an alien were a lack of membership of the Australian political community then absorption into the community might indeed change that status.
It is not necessary to consider further whether a single test for non-alienage could be developed based upon absorption into the political community. That would be a large step for this Court to take. The plaintiffs did not seek leave to reopen Pochi v Macphee. Their submissions were more cautious. The plaintiffs, with the support of submissions from the State of Victoria intervening, relied upon the facts of the absorption into the Australian community of Mr Love and Mr Thoms merely as matters to be considered alongside the plaintiffs' identity as Aboriginal people of Australia rather than as a single determinative test. That approach is consistent with the approach of Kirby and Callinan JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Te, who, in separate judgments, whilst not adopting an absorption test as a conclusive criterion for loss of alien status, expressed doubts whether the aliens power would necessarily extend to non-citizens who were "very long term residents of Australia".
Statutory citizenship is not the exclusive test for membership of the political community
The application of statutory citizenship as the exclusive test for the essential meaning of an alien as a member of the political community involves errors in both fundamental dimensions of constitutional law: authority and principle.
Authority has not applied statutory citizenship as a test for non-alienage
In Nolan v Minister for Immigration and Ethnic Affairs, a majority of six members of this Court held that a citizen of the United Kingdom who came to Australia in 1967, but who was not naturalised, was an alien. The majority upheld the validity and application of s 12 of the Migration Act, which permitted the deportation of Mr Nolan. The majority was careful to note that the definition of "alien" in the Australian Citizenship Act 1948 (Cth) did not confine either "the meaning or [the] denotation of the word in s 51(xix) of the Constitution".
In dissent in the result in Nolan v Minister for Immigration and Ethnic Affairs, but not inconsistently with the general approach of the majority on this point, Gaudron J also spoke of citizenship only as a criterion of application "for most purposes" of determining the membership of a political community. Her Honour said:
"An alien (from the Latin alienus - belonging to another) is, in essence, a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined. For most purposes it is convenient to identify an alien by reference to the want or absence of the criterion which determines membership of that community. Thus, where membership of a community depends on citizenship, alien status corresponds with non-citizenship; in the case of a community whose membership is conditional upon allegiance to a monarch, the status of alien corresponds with the absence of that allegiance. At least this is so where the criterion for membership of the community remains constant."
In Re Patterson; Ex parte Taylor, a majority of this Court overruled Nolan v Minister for Immigration and Ethnic Affairs. Mr Taylor, a citizen of the United Kingdom who had been "completely absorbed into the Australian community", was held not to be an alien within the aliens power. The majority comprised Gaudron J, who had dissented in Nolan v Minister for Immigration and Ethnic Affairs, as well as McHugh, Kirby and Callinan JJ. Gaudron J reiterated that the application of alienage does not merely require an absence of citizenship or foreign citizenship, stating that a person who would have been disqualified from election under s 44(i) of the Constitution "is not necessarily excluded from membership of the Australian community by reason of his or her being a citizen of a foreign power". Kirby J also described as a "basic flaw" the treatment of alien and non-citizen as synonymous.
In Shaw v Minister for Immigration and Multicultural Affairs, a majority of this Court departed from the different strands of reasoning of each of the judges in the majority in Re Patterson; Ex parte Taylor concerning United Kingdom citizens. The approach of the majority in Nolan v Minister for Immigration and Ethnic Affairs was reinstated. It was held that a citizen of the United Kingdom who arrived in Australia in 1974 was an alien. Again, however, the majority was careful not to conflate the concepts of non-citizen and alien. Gleeson CJ, Gummow and Hayne JJ said that the ordinary understanding of the term "alien" is one that in its application "must have regard to the circumstances and conditions applicable to the individual in question". The fourth member of the majority, Heydon J, questioned the assumption that from 1 January 1901 all British citizens were not aliens.
There are, however, statements of some members of this Court in Shaw v Minister for Immigration and Multicultural Affairs and later cases that "citizenship may be seen as the obverse of the status of alienage" or that alien "means, as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state'" or that Parliament can treat as an alien "a person born in Australia with a foreign citizenship derived from that of the parents of that person". Three points should be made about these statements. First, these passages, whilst appearing to be absolute statements, must be understood against the background of the authority described above. Secondly, the statements must be understood against the undisputed authority, discussed below, that the Commonwealth Parliament cannot treat as alien, by excluding from citizenship, those persons who could not possibly answer the description of "aliens" in the ordinary understanding of the word. In other words, the application of the essential meaning of a constitutional word must remain consistent with that essential meaning. Thirdly, and in any event, it is plain beyond peradventure that their Honours were not, in any of those passages, seeking to answer the question whether Aboriginal non-citizens could be aliens.
Authority has not applied allegiance as a test for non-alienage
As Quick and Garran observe, in the middle ages allegiance and subjection were "then the test of membership of a political community". An allegiance is "the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives". The difference between citizenship and allegiance is "largely, but not entirely, a terminological one": all citizens owe allegiance but a non-citizen, such as resident aliens or temporary visa holders, might also owe a temporary or local allegiance.
There may be difficulty with the use of allegiance or the lack of it even as one factor in a test for non-alienage. Allegiance is a consequence of an event such as citizenship rather than a test for membership of a political community. Allegiance, etymologically from ligare (to tie), is the consequence of an event that leads to "as it were a tying together of minds, just as a ligament is a connection of limbs and joints". As Wishart has observed, the existence of allegiance "does not answer the questions of when is a person a member and why does that person owe political obligations". This reasoning is not inconsistent with the description of allegiance in the joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame as a "defining characteristic" of alienage or the description of allegiance by Gummow, Hayne and Heydon JJ in Singh v The Commonwealth as a "central characteristic" of alienage. The use of "characteristic" as a descriptor is telling. A central characteristic of an elephant might be its tusks, but the presence or absence of tusks is not a conclusive basis for classification by any competent naturalist.
Allegiance to the local sovereign cannot be a test for membership of a political community because even resident aliens can owe local allegiance; indeed the obligation of allegiance can sometimes even persist after deportation. As Gleeson CJ, Gummow and Hayne JJ said in Shaw v Minister for Immigration and Multicultural Affairs: "[a]llegiance and alienage are not mutually exclusive". Indeed, it has been said that the concept of allegiance was, by the enactment of the Nationality and Citizenship Act 1948 (Cth), "altogether swept away, together with all other rules of the common law respecting nationality". Moreover, owing a foreign allegiance is not sufficient for alienage because an Australian citizen who becomes a dual citizen is not an alien, at least while the person remains an Australian citizen. Although, in Singh v The Commonwealth, Gummow, Hayne and Heydon JJ said that "'aliens' included those who owed allegiance to another sovereign power", their Honours could not have meant that every person who owes allegiance to another sovereign power is, without more, an alien within s 51(xix).
A lack of foreign allegiance is also not sufficient for a person to be characterised as a non-alien. A characteristic of an alien includes those "who, having no nationality, owed no allegiance to any sovereign power". In Koroitamana v The Commonwealth, two children who were born in Australia were held to be aliens within the meaning of s 51(xix) even though they had not been registered as Fijian citizens and therefore owed no foreign allegiance. In that case, Gummow, Hayne and Crennan JJ spoke of the Fijian nationality of the children's parents as a "relevant characteristic".
Statutory citizenship is not the test for non-alienage as a matter of principle
Although a statutory citizen will be a member of the political community, and will therefore not be an alien, there are four reasons of principle why statutory citizenship cannot be the test for non-alienage.
First, in a passage later described as plainly correct, Gibbs CJ, with whom Mason and Wilson JJ agreed, said in Pochi v Macphee that "Parliament cannot, simply by giving its own definition of 'alien', expand the power under s 51(xix) to include persons who could not possibly answer the description of 'aliens' in the ordinary understanding of the word". This proposition has been repeatedly iterated in this Court. The proposition means that the power of the Commonwealth Parliament to confer or deny citizenship is not co-extensive with a power to confer or deny non-alienage. Parliament "cannot enlarge its powers by calling a matter with which it is not competent to deal by the name of something else which is within its competence". Indeed, the power to make laws in relation to citizens derives, at least in part, from the aliens power. The scope of the aliens power could not itself be conclusively determined by those citizenship laws that it empowers the Parliament to make. The class of "alien" must be determined "not by a boundary line without, but by a central point within".
Secondly, treating citizen as the antonym of alien introduces further uncertainty due to the lack of a clear meaning of "citizen". A constitutional alien is a binary concept: a person is either an alien or not. But citizenship might involve a spectrum of rights. Professor Rubenstein has treated citizenship as "the collection of rights, duties and opportunities for participation that define the extent of socio-political membership within a community". Indeed, at the Constitutional Convention in 1898, the delegates rejected cl 110, as it had been proposed to be amended by Dr Quick, which concerned the rights and privileges of citizenship. A primary reason for the rejection may have been racist concerns. But another was uncertainty about the concept of Commonwealth citizenship. As Mr Kingston said, there was a need for citizenship to be "defined in the Constitution, or else we ought to give power to the Federal Parliament to define it". Mr O'Connor later said that Dr Quick had not explained what would be meant by citizenship:
"Does he mean only the political rights which you give to every inhabitant of a state who is qualified to vote, or does he go beyond that ... and describe every person who is under the protection of your laws as a citizen? The citizens, the persons under the protection of your laws, are not the only persons who are entitled to take part in your elections or in your government, but every person who resides in your community has a right to the protection of your laws and to the protection of the laws of all the states, and has the right of access to your courts."
Thirdly, the ordinary concepts of citizenship and consequential allegiance are not antonyms of alien. Although Dicey treated the categories of citizen and alien as exhaustive, this feat could only be accomplished by forcing square pegs into round holes. For example, a denizen is not an alien. A denizen is neither a citizen nor an alien. Denizenship, created by letters patent, is "in a kind of middle state between a natural-born subject and an alien, and partakes of both of them". The same might be true of the inhabitants of some British mandated territories, trust territories, protected states and Special Administrative Regions.
Fourthly, there is grave danger in what Professor Bickel described as the "symmetrical thinking" of treating citizenship as the exclusive tie between the government and the governed in a political community, and hence treating citizenship as the sole test for non-alienage. The Constitution did not create a concept of local citizenship. It refers instead in s 24 to the "people of the Commonwealth" and, in the preamble, to the "people" who ultimately did "unite in one indissoluble Federal Commonwealth". The danger of shifting from the language of the "people of the Commonwealth" to the language of the "citizens of the Commonwealth" is that, as Professor Bickel observed, it "has always been easier, it always will be easier, to think of someone as a noncitizen than to decide that he is a non-person, which is the point of the Dredd Scott case". Whatever might have been the reasons for the treatment of Aboriginal people as non-persons for the purposes of s 127 of the Constitution, the effect of that repealed provision should not be generalised by using the less overt language of statutory citizenship to treat Aboriginal non-citizens as though they were non-persons, cast out from the political community of the "people of the Commonwealth" to which they had belonged since its establishment at Federation.
The constitutional meaning of an alien, as a "foreigner" to the Australian political community, was, and therefore remains, the essential meaning of alien in s 51(xix) of the Constitution. The antonym of an alien in s 51(xix) is not a statutory citizen. It is a person who is a belonger to the Australian political community. Nevertheless, as explained below, a person who is a statutory citizen will belong to the Australian political community. This is because that community is powerfully shaped by citizenship laws.
Citizenship laws and the political community
A political community is not a thing that exists in space. It is a metaphysical construct that describes a group of people who belong to a defined place or territory, here the land of the Australian state, and who are to be regulated as such belongers. A political community of an independent body politic therefore includes the intertwined dimensions of territory, permanent population, and government.
Since legislation is one of the defining formal acts of a political community, it is natural that legislation should shape the membership of the political community. It does so by establishing norms from which a person's membership of the Australian political community can be determined. Thus, although it cannot directly control the constitutional meaning of an alien, Commonwealth legislation is a central, but not exclusive, source of the norm from which a political community is determined. The same is true of judicially created norms, which can be closely related to statutory developments, including by interpretation of statutory provisions or by influence of common law norms, such as ius soli or ius sanguinis, on the development of legislation. In instances of both judicial and statutory norms, the legal and political considerations of political community have always been heavily influenced by metaphysical ties to physical territory. For instance, the common law and legislative concept of ius soli is concerned with citizenship based upon birth in a physical territory.
The most significant legislative power to shape the membership of the political community is the power to determine the citizenship of the polity. In Potter v Minahan, Griffith CJ said that "every human being (unless outlawed) is a member of some community, and is entitled to regard the part of the earth occupied by that community as a place to which he may resort when he thinks fit". Laws that determine the conditions of citizenship affect the membership of the community because they involve an explicit statement of an "absolute and unqualified right" that "a citizen cannot be either deported or denied reentry". By shaping the content of the political community in this way, citizenship legislation is therefore a cogent source from which outsiders or foreigners to the political community can be identified.
Over the decades, the fluctuating definition of a citizen has also caused fluctuating norms that govern the application of the power in s 51(xix) of the Constitution to make laws with respect to aliens. Putting to one side citizenship by naturalisation or registration, which might also be seen as shaping norms concerning integration into the Australian community, the Nationality and Citizenship Act provided that Australian citizenship was acquired: (i) by birth in Australia ("citizenship by birth"); (ii) upon the registration of their birth, by a person whose father was an Australian citizen or, if the person was born out of wedlock, a person whose mother was an Australian citizen or British subject ordinarily resident in Australia or New Guinea ("citizenship by descent"); or (iii) upon declaration by the Governor-General, by the people in a territory that is incorporated within Australia, "by reason of their connexion with that territory" ("citizenship by incorporation of territory").
Over the next 36 years, the Nationality and Citizenship Act was amended to provide, among other things: (i) that citizenship by descent could be acquired through married parents if either the mother or father was an Australian citizen; (ii) for the presumed citizenship of children found abandoned in Australia unless and until the contrary was proved; (iii) for the avoidance of statelessness, that a person born in Australia who had never been a citizen of any country could apply for and was to be granted citizenship; (iv) for citizenship to be acquired by a person adopted by an Australian citizen, provided that person was, at the time of adoption, a permanent resident; (v) for the removal of distinctions between people born within or outside of marriage for the purpose of citizenship by descent; (vi) for citizenship by descent, a requirement that, if the relevant parent is themselves a citizen by descent, they had been lawfully present in Australia for at least two years at any time prior to seeking to register the child as a citizen; and (vii) for the conferral of citizenship by descent on the children of women who met the requirements of the transitional provisions in s 25(1)(a)-(c) of the Nationality and Citizenship Act. In 2007, the Australian Citizenship Act 1948 (Cth), as the Nationality and Citizenship Act had by then become, was repealed. The Australian Citizenship Act 2007 (Cth), which was passed in its place, retains the core concepts of citizenship by birth, by adoption, by abandonment in Australia, by incorporation of territory, and by descent, as well as secondary concepts like the power to grant citizenship to prevent statelessness, among others.
Despite the fluctuation, two central matters that have remained among the norms of political community have been the traditional factors of place of birth (ius soli) and citizenship of a parent or parents (ius sanguinis). At Federation, English and United States common law placed most emphasis on the place of birth. But many nations of Continental Europe, including France and Prussia, focused more heavily upon descent. In 1862, Dr von Bar argued that "by the laws of all nations", nationality was "closely dependent on descent". This rule was, Dr von Bar said, the "correct canon, since nationality is in its essence dependent on descent".
As explained in the introduction to these reasons, the Solicitor-General of the Commonwealth submitted that one limit to legislative power to alter the content of political community lay in the combination of the central norms of birth and descent. Apparently drawing upon, and making more extreme, an example from Gaudron J, the Solicitor-General of the Commonwealth accepted that a person could never be an alien if the person satisfied the tests of ius soli and ius sanguinis by birth in Australia to two parents who were solely Australian citizens and the person had not renounced their allegiance. No explanation was given for why the combination of birth and descent was, or should be, the only indelible example of membership of the political community that is beyond legislative power with respect to aliens.
The reason that the combination of birth and descent is a norm of political community that is indelible subject only to renunciation is that these factors evince fundamental norms of attachment to country. Of the two factors, the common law placed great emphasis upon the birth of a child in the country as establishing the necessary attachment to country. But the emphasis of the common law upon birth rather than parentage was sometimes doubted. In 1869, the Lord Chief Justice of England wrote extra-judicially that, "in the vast majority of instances", a child left to their own choice between nationality based on parentage or place of birth would choose the former. He continued:
"And the reason is obvious. Personal attachments are stronger than local ones. The place of birth is an accident; the associations connected with it are fleeting and uncertain; while the domestic ties and the relations of family and kindred are powerful and enduring. ... The impression thus produced in early youth remains, and strengthening with advancing years develops itself into the national attachment which we designate by the term of patriotism.
Descent, therefore, affords the true rule for determining nationality."
The Lord Chief Justice acknowledged, however, that there was "general agreement" as to two related exceptions to nationality based on parentage which also illustrate the centrality of attachment to country: (i) where the child was raised in a country in which their parents had become domiciled but which was different from the country of the parents' nationality; and (ii) where for two generations the ancestors of a person have been domiciled in a foreign country.
Indigenous persons and the Australian political community
Indigenous non-citizens, with their powerful personal attachment to land, fall within the same intermediate region of "non-citizen, non-alien" as denizens and other protected persons. As Professor Volpp observed of the members of the "Indian Tribes", described in Art I, s 8, cl 3 of the United States Constitution, "key concepts" such as "citizen" and "alien" cannot "address the actual relationship between the nation-state and indigenous peoples. [American] Indians have been considered citizen and alien, as well as neither citizen nor alien".
The legal position of American Indians cannot be directly compared with Aboriginal and Torres Strait Islander people of Australia. Even before the uniform grant of their United States citizenship in 1924, American Indians were expressly given legal recognition as "distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the soil" when they "live together as a distinct community, under their own laws, usages and customs". Nevertheless, the basic difficulty involved in characterising American Indians as aliens is the same as that for Aboriginal people of Australia: "[w]e call an alien a foreigner, because he is not of the country in which we reside".
Professor McHugh has observed that in Australia, unlike New Zealand and North America, "both law and practice revealed scant, indeed a virtually non-existent, recognition of the reality of Aboriginal political organization, so blind were the settlers to it". Yet, despite the limited understanding and recognition of Aboriginal society at Federation, the Aboriginal people in Australia were not regarded as aliens to the political community. It would be an astonishing result if, on the one hand, Aboriginal people were a necessary part of the "people of Australia" and the Australian political community in 1901 despite the exclusionary nineteenth century racial application of the aliens power and despite the scant recognition of the reality of Aboriginal community ties to Australia, and yet, on the other hand, Aboriginal people were to fall outside the same political community upon a more sophisticated, inclusive concept of community that has been shaped by legislative and judicial developments following the recognition of the realities of Aboriginal society and the effect upon it of the acts of Parliament and the executive.
Significant legislative and judicial developments since Federation have been premised upon recognition of Aboriginal community in Australia. As Brennan J said in Mabo v Queensland [No 2], "it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination". There, the law developed to recognise the reality that the indigenous inhabitants of Australia lived in societies in accordance with laws and customs that required the recognition of their entitlements to land. The powerful spiritual and cultural connection that Aboriginal people have with the land - the "religious relationship" - is, by definition, a powerful spiritual and cultural connection with the defined territory of Australia. Just as the attachment to country that arises from citizenship of parents and birth in the defined territory can be an underlying basis for membership of political community independent of citizenship legislation, so too are the powerful spiritual and cultural connections between Aboriginal people and the defined territory of Australia.
Native title rights and interests require a continuing connection with particular land. However, underlying that particular connection is the general spiritual and cultural connection that Aboriginal people have had with the land of Australia for tens of thousands of years. In other words, underlying a connection to any particular land is a general, "fundamental truth ... an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole". Sometimes events, including the cessation of the existence of a particular Aboriginal society, cause the loss of native title rights to land. But the loss of those rights to, and the relationship with, particular land, or even the effluxion of particular Aboriginal societies, does not extinguish the powerful spiritual and cultural connections Aboriginal people have generally with the lands of Australia. Those connections are inextricably part of Aboriginal identity as members of the broader community of the first people of the Australian land generally. The very words "Aboriginal" and "indigenous", ab origine or "from the beginning", enunciate a historical, and original, connection with the land of Australia generally. The sense of identity that ties Aboriginal people to Australia is an underlying fundamental truth that cannot be altered or deemed not to exist by legislation in the same way that changing legislative definitions of citizenship cannot alter the fundamental truth underlying identity that is shaped by the core combined norms that metaphorically tie a child to Australia by birth and parentage.
Legislative developments since Federation have expanded the rights and treatment of Aboriginal people towards equality with other members of the Australian political community, including by the enactment of the Racial Discrimination Act 1975 (Cth). The same expansion occurred in relation to the federal franchise. Shortly after Federation, s 4 of the Commonwealth Franchise Act 1902 (Cth) excluded Aboriginal people of Australia and various other nations from the federal franchise, unless entitled to vote under State laws as preserved by s 41 of the Constitution. Further exceptions to the exclusion were introduced, including for Aboriginal people of Australia who were entitled to vote under State laws, without resort to s 41 of the Constitution, or who were or had been members of the Defence Force. In 1962, s 2 of the Commonwealth Electoral Act 1962 (Cth) gave all Aboriginal people the right to enrol and, by removal of an exemption, in 1984 they had the duty to enrol.
The Commonwealth effectively submitted that this movement towards equality before the law requires Aboriginal non-citizens to be stripped of their membership of the Australian political community in order to ensure that they are treated equally with other, non-Aboriginal non-citizens. In other words, the expansion of Aboriginal rights has assimilated Aboriginal people within a unitary, homogenous political community that is defined almost entirely by legislative norms of citizenship. This view reflects a human inclination toward homogeneity which Hume described as the "narrowness of soul" which makes people prefer that which is more proximate over that which is more remote. It also misunderstands the concept of equality before the law. To treat differences as though they were alike is not equality. It is a denial of community. Any tolerant view of community must recognise that community is based upon difference. As Professor Detmold has written:
"Suppose I see only green and you see only red. Do we have community in this simple matter of our example? No, because I live in a green world and you live in a red one - two worlds, not a common (communal) world. But when we recognise each other's difference then and only then is there a common world as the foundation of a community between us ... For one of us to impose their view on the other (in our example, one of us insisting that it is the other who is colour-blind) is a denial of respect for the other, and therefore a denial of our community."
In any event, the expansion of Aboriginal rights by Commonwealth legislation does not require an identical treatment of Aboriginal and non-Aboriginal people in the shaping of the political community. In the Native Title Act 1993 (Cth), the Commonwealth Parliament recited that "[t]he people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands." Our legal system would involve a hopeless and incoherent contradiction if it were simultaneously: (i) to recognise and implement this recitation; and (ii) to conclude that those same descendants, identifying and recognised as such, have now become foreigners to the Australian political community.
Absurd consequences?
The Solicitor-General of the Commonwealth submitted that a consequence of treating Aboriginal persons as beyond the reach of the aliens power was that a 60 year old foreign citizen who had lived overseas all of their life could move to Australia and, by being accepted into an Aboriginal community, lose their status as an alien. It might be doubted that there are significant numbers of foreign sexagenarians awaiting their acceptance as indigenous by Aboriginal communities in Australia. This is the type of "exercise in imagination", "extreme example", "absurd possibility" or "distorting possibility" about which this Court has repeatedly warned in constitutional interpretation, including in relation to the aliens power.
The interpretation of s 51(xix) of the Constitution is also not assisted by the submission that Aboriginal people who moved overseas and whose families lived overseas for multiple generations might claim to be non-aliens. Again, it might be seriously doubted whether there are significant numbers of Aboriginal people who have lived overseas for generations, maintaining mutual recognition and Aboriginal identity.
A final submission by the Commonwealth was that the consequence of treating Aboriginality as a status of non-alienage is that the power of the Commonwealth Parliament to legislate would depend upon the "choices or views of individuals". The immediate answer to this submission is that a determination of the application of the concept of "alien" remains a matter for the courts even if one factor to be taken into account is the views of individuals. The same point can be made about s 51(xxvi) of the Constitution. It might be doubted whether the application today of the difficult concept of "race" could be confined to matters of physical characteristics or genetics without any role for the views of individuals. In any event, there is no basis for the underlying assumption that the application of constitutional concepts is fixed in time so that Aboriginal identity in the Constitution, whether for the purposes of s 51(xix) or s 51(xxvi), could only be determined by physical characteristics or genetics. Further, unless "alien" means whatever the Commonwealth Parliament says that it means, the power of the Commonwealth Parliament to legislate will always depend upon exogenous matters such as the choices or views of individuals. A child born in Australia to parents who are solely Australian citizens is only outside the scope of s 51(xix) due to the choices of the child's parents, including their choices to apply for and obtain Australian citizenship before the birth of their child, in some cases, and to give birth in Australia.
Mr Love and Mr Thoms
In Mabo v Queensland [No 2], Brennan J said that "[m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people". This tripartite test was neither new nor novel. It was similar to the approach taken in s 4(1) of the Aboriginal Land Rights Act 1983 (NSW) and the approach of Deane J in The Commonwealth v Tasmania (The Tasmanian Dam Case). The tripartite test was applied in Mabo [No 2] as a means to identify those members of a particular sub-group of indigenous people who enjoy continuing connection with particular land. It can be usefully applied in this case. However, it is not set in stone, particularly as an approach to determining Aboriginality as the basis for those fundamental ties of political community in Australia which are not dependent upon membership of a particular sub-group.
Although Mr Love is a citizen of Papua New Guinea, having been born there in 1979 after independence of that country from Australia in 1975, his identity as an Aboriginal man is based upon: (i) his paternal great-grandparents, who were descended "in significant part from people who inhabited Australia immediately prior to European settlement"; (ii) his self-identification as a descendant of the Kamilaroi tribe; and (iii) his recognition as such a descendant by an elder of that tribe.
Although Mr Thoms is a citizen of New Zealand, having been born there in 1988, the parties agree that he is an Aboriginal man. He identifies, and is accepted by other Gunggari People, as a member of the Gunggari People. As a Gunggari man he is a holder of native title. The native title determinations that recognised the rights of the Gunggari People quoted from a report that said:
"Despite the odds, determined efforts on the part of the Gunggari to maintain knowledge of country, of kin and countrymen, and of Gunggari law and custom - both on country and at a remove - ensured the survival of Gunggari society. Present Gunggari society may be seen as substantially continuous with that existing at presovereignty."
As to whether Mr Love and Mr Thoms meet the tripartite test for recognition as members of an Aboriginal community, it is unnecessary to descend to the detail of any inferences that can be drawn from the agreed facts. At one point in oral submissions, the Solicitor-General of the Commonwealth accepted that Mr Love and Mr Thoms were Aboriginal, properly adding that the Commonwealth was "conscious of the historical difficulties that have attended questions of definition in relation to Aboriginal persons" and saying that the case had therefore been approached at a higher level of principle. The Commonwealth's position was clarified in a written response to the Senior Registrar of this Court after the first hearing in which it was explained that "the Commonwealth prefers not to take a position on the state of the agreed facts". In short, the Commonwealth has never disputed that the agreed facts might be sufficient for the plaintiffs' asserted conclusion that both men are Aboriginal.
The process of agreeing the facts of a special case to be presented to this Court takes place against the background of the issues understood to be in dispute. A plaintiff needs to introduce sufficient facts to satisfy the Court, but that sufficiency can be shaped by the matters in dispute. The position in relation to Mr Thoms is plain. It is an agreed fact that Mr Thoms is an Aboriginal man. As for Mr Love, the lack of any dispute about the sufficiency of recognition of him as a member of an Aboriginal community means that there has been no contest against which to consider issues that might surround the application of the tripartite test, including: (i) whether the tripartite test, developed in the context of native title, and involving issues of recognition by sub-groups of Aboriginal people, should be adapted in the context of application of provisions such as s 51(xix) or s 51(xxvi); (ii) whether the limbs of the tripartite test are each part of a continuum from weakness to strength; and (iii) whether the limbs are interrelated so that a weaker factual basis in one limb could be compensated for by a stronger factual basis in others. In the absence of any contest on this point, and in circumstances in which there is force in each of the three propositions above and in which it is plainly open to treat Mr Love as Aboriginal, the assumption upon which the agreed facts proceeded, namely that Mr Love is Aboriginal, should be accepted.
As mentioned earlier in these reasons, each plaintiff also relied upon numerous facts whose relevance was to show the integration of each plaintiff into the Australian community. For instance, in relation to Mr Love these facts include: his paternal grandfather served with Australian military forces; his father was born an Australian citizen in the Territory of Papua; his mother lived in Australia for 19 years until she died; he arrived in Australia 34 years ago with his parents and has lived in Australia continuously since then on either a permanent residency visa or a BF transitional (permanent) visa; he was married to an Australian citizen; and he has five children, who are Australian citizens. In relation to Mr Thoms the facts include: his maternal great-grandparents and grandparents were born in Australia and lived their lives in Australia (his grandmother continues to live in Australia); his mother was born in Australia, married his father, a New Zealand national, and has resided permanently in Australia with his father since 1994; his father became an Australian citizen in 2009; and Mr Thoms himself has resided in Australia since 1994, as, it seems, has his brother, and, since their respective dates of birth, his sister (an Australian citizen) and his child (also an Australian citizen).
Ultimately, it is unnecessary to consider the effect of the absorption of Mr Love and Mr Thoms into the Australian community upon the application of norms of political community. As I have explained, although absorption into the community might be a relevant factor, the course of authority in this Court denies that it is sufficient. The sufficiency of the plaintiffs' identity as Aboriginal people makes it unnecessary to explore this issue further.
It is also unnecessary to consider the circumstances in which an Aboriginal person might become an alien. It is possible for a person who is a non-alien to become an alien. In relation to non-Aboriginal people, one obvious manner in which this can occur is by renunciation of citizenship. So too, the renunciation of Aboriginal identity by a non-citizen might transform the status of that person from non-alien to alien. Other circumstances need not be considered because they do not arise here. The Commonwealth did not suggest that Mr Love or Mr Thoms had engaged in any conduct, or was the subject of any circumstance including de-identification or non-recognition from his Aboriginal community, that could alter his status from non-alien to alien.
Conclusion
A premise of the submissions of all parties and the intervener to these special cases, consistently with the same premise in previous cases in this Court, solidly based upon repeated statements in this Court, is that the constitutional concept of an alien is not co-terminous with any persons whom the Commonwealth Parliament chooses to make statutory citizens. That long-standing assumption is correct. Political community is not a concept that is wholly a creature of legislation. For example, a child born in Australia to two parents who have only Australian citizenship is not an alien. The metaphysical ties between that child and the Australian polity, by birth on Australian land and parentage, are such that the child is a non-alien, whether or not they are a statutory citizen. The same must also be true of an Aboriginal child whose genealogy and identity includes a spiritual connection forged over tens of thousands of years between person and Australian land, or "mother nature".
This conclusion could only be avoided by denying its premise, so that the children in both scenarios are capable of being aliens according to the definition of citizen chosen by the Commonwealth Parliament. That approach would be contrary to the essential meaning of s 51(xix), which is not tied to the state of legislation. It would deny the long-standing existence of a category of persons who are non-citizens and non-aliens. It would effectively allow the Commonwealth Parliament to recite itself into power. To the extent that such an approach might be said to be based upon a concern for equality within the political community, it would involve a misunderstanding of both equality and community. And, by denying the unquestioned premise and authority upon which every party and the intervener proceeded in these special cases, it would deny Aboriginal people the essence of their identity without giving any party or the intervener, or any of the population of more than half a million Aboriginal or Torres Strait Islander people or their representative bodies, the opportunity to be heard on the point.
I would answer the questions in each special case as follows:
Question: Is the plaintiff an "alien" within the meaning of s 51(xix) of the Constitution?
Answer: No.
Question: Who should pay the costs of the special case?
Answer: The defendant.