Nolan v Minister for Immigration & Ethnic Affairs

On 22 September 1985, the then Minister of State for Immigration and Ethnic Affairs ("the Minister") purported to make an order, pursuant to the provisions of s. 12 of the Migration Act 1958 Cth ("the Act"), for the deportation of the plaintiff from Australia. By that date, the plaintiff had resided continuously in Australia for almost eighteen years. Of that period, more than nine years had been spent in prison pursuant to sentences imposed for criminal offences of which he had been convicted.

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) at the time of the commission of the offence the person -

(ii) had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year,

the Minister may order the deportation of the person. For the purposes of the Act, a "non-citizen" is "a person who is not an Australian citizen". At relevant times, s. 14A(1) of the Act provided: Where a person has been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 12 and sub-section 14(1), the length of time that that person has been present in Australia as a permanent resident. Disregarding a minor amendment to s. 14A(1), both s. 12 and s. 14A(1) remain in the above form.

It is common ground that, at the time of the making of the purported deportation order, the plaintiff was a "non-citizen" who had been convicted in Australia of an offence for which he had been sentenced to imprisonment for a period of not less than one year and that, at the time of the commission of the offence, he had, if periods of confinement in prison be disregarded in accordance with the provisions of s. 14A(1), "been present in Australia as a permanent resident for a period of less than 10 years". That being so, the requirements of s. 12 were, if the words of the section be read literally, satisfied in relation to him.

By statement of claim filed in proceedings instituted in the original jurisdiction of this Court against the Minister and the Commonwealth, the plaintiff challenged the validity of the deportation order. In essence, the statement of claim attacks the validity of the deportation order on three distinct grounds, namely, (i) that s. 12 of the Act is either beyond the legislative competence of the Parliament or is inapplicable (as a matter of legislative competence) to authorize the making of a deportation order in respect of the plaintiff; (ii) that, as a matter of construction, s. 12 does not apply to authorize the making of a deportation order in respect of the plaintiff; and (iii) that the deportation order is invalid by reason of a failure on the part of the Minister to comply with relevant requirements of natural justice. The defendants demurred to those parts of the statement of claim which are directed to grounds (i) and (ii).

Upon the hearing of the demurrer, the defendants have, in relation to ground (i) (i.e., legislative competence), relied upon the legislative powers conferred upon the Parliament by sub-ss. (xix) and (xxvii) of s. 51 of the Constitution, that is to say, the legislative powers of the Parliament with respect to "Naturalization and aliens" (sub-s. (xix)) and "Immigration and emigration" (sub-s. (xxvii)). The primary submission on behalf of the defendants is that the provisions of s. 12, being confined in their application to "non-citizens", come within the power of the Commonwealth to make laws with respect to "aliens": sub-s. (xix). For the plaintiff, it is submitted that that legislative power cannot validly extend to a person, like himself, who is a subject of the Queen for the reason that such a person is not an "alien" for the purposes of the Constitution regardless of his origins, nationality or citizenship or of the capacity in which the Queen holds his allegiance as a subject.

As a matter of etymology, "alien", from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person's lack of relationship with a country, the word means, as a matter of ordinary language, "nothing more than a citizen or subject of a foreign state": Milne v. Huber [1] . Thus, an "alien" has been said to be, for the purposes of United States law, "one born out of the United States, who has not since been naturalized under the constitution and laws" [1] . That definition should be expanded to include a person who has ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage. Otherwise, it constitutes an acceptable general definition of the word "alien" when that word is used with respect to an independent country with its own distinct citizenship. The word could not, however, properly have been used in 1900 to identify the status of a British subject vis-à-vis one of the Australian or other colonies of the British Empire for the reason that those colonies were not, at that time, independent nations with a distinct citizenship of their own. At that time, no subject of the British Crown was an alien within any part of the British Empire. Even after federation, Australia did not immediately enjoy the international status of an independent nation. The terms "British subject" and "subject of the Queen" were essentially synonymous. The British Empire continued to consist of one sovereign State and its colonial and other dependencies with the result that there was no need to modify either the perception of an indivisible Imperial Crown or the doctrine that, under the common law, no subject of the Queen was an alien in any part of Her Majesty's dominions: see, e.g., Co. Litt. 129a, 129b; Bract. 427b; Blackstone's Commentaries, 8th ed., vol. 1, p. 366.

1. (1843) 17 Fed. Cas. 403, at p. 406 (U.S.). 2. (1843) 17 Fed. Cas. 403, at p. 406 (U.S.).

The transition from Empire to Commonwealth and the emergence of Australia and other Dominions as independent sovereign nations within the Commonwealth inevitably changed the nature of the relationship between the United Kingdom and its former colonies and rendered obsolete notions of an indivisible Crown. A separate Australian citizenship was established by the Nationality and Citizenship Act 1948 Cth, now known as the Australian Citizenship Act 1948. That Act and statutes of other Commonwealth countries, particularly the British Nationality Act 1948 UK, reflected and formalized the diminished importance of the notion of "British subject". It became accepted as a "truism" that, although "there is only one person who is the Sovereign , in matters of law and government the Queen of the United Kingdom is entirely independent and distinct from" the Queen of (e.g.) Canada or Australia: per May L.J., Reg. v. Foreign Secretary; Ex parte Indian Association [2] . 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". It is not that the meaning of the word "alien" had altered. That word is and always has been appropriate to describe the status, vis-à-vis a former colony which has emerged as an independent nation with its own citizenship, of a non-citizen who is a British subject by reason of his citizenship of a different sovereign State. But the word is not and never has been appropriate to describe within any part of the territory (whether colonial or otherwise) of a single sovereign State the status of a person who is one of the subjects of that particular State.

So much was recognized by this Court in 1982 in Pochi v. Macphee [3] . In that case, an attack was made on the validity of the then s. 12 of the Act. For present purposes, the important differences between the provisions of the Act in the form under consideration in Pochi and the provisions under consideration in this case are that the section then applied to an "alien" as distinct from a "non-citizen" and that the Migration Act contained (at the time of the decision in Pochi) a definition of "alien" which excluded, among others, persons who had the status of "a British subject". Persons having "the status of a British subject" were, however, defined (by the combined operation of the Act and the Australian Citizenship Act) in a way which produced the result that the word "alien" included, for the purposes of the then s. 12, citizens of some countries (particularly the Solomon Islands) who were British subjects (and also subjects of the Queen). It was argued that such persons could not be "aliens" for the purposes of the legislative power conferred by s. 51(xix) and that, severance being allegedly impossible, the then s. 12 was invalid. That argument was rejected by the Court in plain and unambiguous words. The leading judgment was that of Gibbs C.J. His Honour, having traced the alteration in the concept of "British subject" and the development of Australian citizenship, concluded that the plaintiff's argument was "based on a false assumption and must fail" for the reason that, pursuant to the legislative power granted by s. 51(xix) with respect to "aliens", "the Parliament can treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian" [4] (emphasis added). Two of the other three members of the Court in Pochi, Mason and Wilson JJ., concurred in the judgment of Gibbs C.J. It follows that the basis of the decision in Pochi is inconsistent with the plaintiff's argument in the present case to the effect that he is beyond the reach of the legislative power of the Commonwealth with respect to aliens notwithstanding that he was and is, in the words of Gibbs C.J., a "person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian" [4] .

1. (1982) 151 C.L.R. 101. 2. (1982) 151 C.L.R., at pp. 109-110. 3. (1982) 151 C.L.R., at pp. 109-110.

It was submitted on behalf of the plaintiff that the references to the "Crown of the United Kingdom" in the preamble and (in an expanded form) in covering cl. 2 of the Commonwealth of Australia Constitution Act 1900 Imp. and to "subject of the Queen" in the Constitution itself (see ss. 34(ii) and 117) were inconsistent with the notion that any subject of the Queen, be he citizen of the United Kingdom or of some other country of the Commonwealth which recognizes the Queen as Head of State (e.g., Canada, Jamaica or Mauritius), could be an "alien" in so far as this country is concerned. It is unnecessary to pursue that point beyond saying that those references cannot 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. Those developments necessarily produced different reference points for the application of the word "alien". Inevitably, the practical designation of the word altered so that, while its abstract meaning remained constant, it encompassed persons who were not citizens of this country even though they might be British subjects or subjects of the Queen by reason of their citizenship of some other nation. We would add that, to the extent that there would otherwise be inconsistency in the use of the words "subject of the Queen" in the Constitution, it should be resolved by treating those words as referring, in a modern context, to a subject of the Queen in right of Australia: cf. Royal Style and Titles Act 1973 Cth.

It was also submitted on behalf of the plaintiff that the fact that, at the time the deportation order was made, the Australian Citizenship Act included a definition of "alien" which excluded most British subjects, including the plaintiff, indicating that the word "alien" in the Constitution should not be construed as applying, at that time, to such British subjects. There are two answers to that submission. The first is that a corresponding definition of "alien" had, at that time, been deliberately removed from the Act and that the Australian Citizenship Amendment Act 1984 Cth, providing for the removal of the definition from the Australian Citizenship Act, had already been enacted and was awaiting the proclamation of a commencement date. The second is that the definition of alien in the Australian Citizenship Act did not, particularly in the light of the decision in Pochi, confine the meaning or denotation of the word in s. 51(xix) of the Constitution.

While the plaintiff did not formally seek to reopen the decision in Pochi [5] , the effect of the argument advanced on his behalf was, as has been seen, to attack the correctness of the decision. It should be apparent from what we have said that, in our view, that attack has not been made good. To the contrary, we agree with the decision in Pochi and with the reasoning of the majority of the Court upon which it was based. It follows that the provisions of s. 12 of the Act and their application to the plaintiff are within the legislative competence of the Parliament under s. 51(xix) of the Constitution. It is unnecessary to consider whether the provisions of the section and their application to the plaintiff are also within the legislative competence of the Parliament pursuant to the legislative power with respect to "Immigration and emigration": s. 51(xxvii).

There remains for consideration on the demurrer the plaintiff's argument that, as a matter of statutory construction, s. 12 did not authorize the making of the deportation order in the present case. It is not submitted that, as a matter of ordinary language, the words of s. 12 do not extend to the plaintiff. The argument is that s. 12 should be construed as not applying to the plaintiff for the reason that, at the time the section was amended to apply to "non-citizens", the plaintiff had become "immune from deportation" under the then existing law. That being so, s. 12 should not (according to the argument) be construed as intended to deprive the plaintiff of that "immunity".

Whatever force this argument might have as an appeal to notions of fairness, and we express no view in that regard, it is without legal merit. The words of s. 12 are plain and unambiguous. The intended width of their operation is underlined by the fact that the deportation power which they confer expressly extends to a "non-citizen" who " before or after " the commencement of the section in its present form has committed an offence of the kind and in the circumstances designated by the section. In our view, the section reveals a clear legislative intent that its provisions should extend to any "non-citizen" who otherwise comes within its words regardless of whether he was, at the time of commencement of the section in its present form, within the reach of the section in its earlier form. There is no overriding rule of construction, statutory or otherwise, which can be applied to defeat that clear legislative intent.

In the result, the defendants' demurrer to the statement of claim must be upheld. There remains outstanding the plaintiff's attack on the deportation order on the ground that it is invalid by reason of an infringement of applicable rules of natural justice. It is common ground between the parties that the matter should be remitted to the Federal Court of Australia for the determination of that outstanding issue.

On 22 September 1985, an order was made for the deportation of Mr. Therrance Nolan, the plaintiff in the present proceedings. The order was made pursuant to s. 12 of the Migration Act 1958 Cth which provided as follows:

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) at the time of the commission of the offence the person -

(ii) had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year,

the Minister may order the deportation of the person. Section 14A of the Migration Act provided that any period during which a person is confined in prison for an offence of which that person has been convicted is disregarded in determining whether a person has been permanently resident in Australia for the ten year period by reference to which s. 12 operates.

Mr. Nolan is a non-citizen. He came to this country in 1967. He was then approximately ten years of age and was a British subject. He has not since left Australia. It is not in dispute that Mr. Nolan was sentenced to imprisonment for a period of not less than one year in respect of an offence committed when, disregarding periods of confinement as required by s. 14A of the Migration Act, he had not been continuously resident in Australia for a period of 10 years. He is thus a person falling within the literal operation of s. 12.

The primary question arising in the present proceedings is whether s. 12 of the Migration Act is a valid enactment of the Parliament of the Commonwealth or whether it is valid in its application to the plaintiff. If this question is answered in favour of the defendants a further question arises as to whether s. 12 should be construed so as to exclude from its operation persons who had become immune from deportation prior to its coming into force on 2 April 1984. If these questions are answered adversely to the plaintiff, he seeks to argue that the deportation order is invalid on the basis that the first defendant failed to comply with the requirements of natural justice. It is agreed that should the latter issue need to be decided the matter should be remitted to the Federal Court of Australia.

The primary or constitutional question arises because the Australian Constitution does not, in terms, confer power upon the Parliament of the Commonwealth to legislate with respect to non-citizens. However, the defendants assert that the powers conferred by s. 51(xix) (the power to make laws with respect to "Naturalization and aliens") and s. 51(xxvii) (the power to make laws with respect to "Immigration and emigration") are sufficient to support s. 12 of the Migration Act, both generally and in its application to the plaintiff. The defendants rely primarily on the power with respect to aliens, arguing that alien status corresponds with the status of non-citizen. The plaintiff, on the other hand, contends that as a matter of constitutional interpretation, a British subject stands outside the concept of alien in s. 51(xix) of the Constitution. The plaintiff further contends that s. 12 is not a valid law with respect to immigration. Alternatively, it is argued that it is not a valid law in so far as it applies to persons who had become absorbed into the community prior to its coming into force on 2 April 1984.

For the purposes of the early common law of England alien status was identified as absence of allegiance to the Crown: see, e.g., Calvin's Case [6] ; Blackstone's Commentaries, 8th ed., vol. 1, p. 366. Allegiance to the Crown became synonymous with being a British subject. The status of British subject served as a useful point of identification during the days of the Empire when the status in English law of persons resident in the colonies was in question: see In re Johnson; Roberts v. Attorney-General [7] ; Gavin Gibson & Co. Ltd. v. Gibson [8] . Whether it would have served with equal utility to identify, after federation, the status in Australian law of persons resident in some other part of the Empire must be open to doubt. However, there can be no doubt that the status of British subject no longer serves as the point of distinction between aliens and non-aliens in Australian law, for, as was pointed out by Gibbs C.J. in Pochi v. Macphee [9] , with the coming into force of the British Nationality Act 1981 U.K. the status of British subject is restricted to a narrow group, and if that status serves to distinguish between aliens and non-aliens in Australian law "almost all Australian citizens, born in Australia, would be aliens".

1. (1609) 7 Co. Rep. 1a [ 77 E.R. 377]. 2. [1903] 1 Ch. 821. 3. [1913] 3 K.B. 379. 4. (1982) 151 C.L.R. 101, at p. 109.

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.

There is no specific criterion identified for membership of the community constituting the Australian body politic. By various steps, largely coinciding with the transformation of the Empire into the British Commonwealth of Nations constituted by sovereign and independent nation states, the statutory description of members of the Australian community has been changed from "British subjects" to "Australian citizens". Until the concept of citizenship was introduced by the Nationality and Citizenship Act 1948 Cth, later known as the Australian Citizenship Act 1948 Cth ("the Citizenship Act"), membership of the community of the body politic of Australia coincided with possession of the status of British subject, at least if the person concerned was resident in Australia. That situation continued after the coming into force of the Citizenship Act, for, although the Act introduced the concept of Australian citizenship and prescribed the method of its acquisition (including by naturalization) by s. 7(1), an Australian citizen was also a British subject. Following amendments in 1969, an Australian citizen was described as having the status of a British subject. After the Citizenship Act was proclaimed, Australian citizens acquired their status as British subjects by virtue of their Australian citizenship. However, the Act continued to accord a special position (to which more detailed reference will hereafter be made) to British subjects who were not Australian citizens. By amendment in 1984 (taking effect from 1 May 1987) all reference to the "status of British subject" and to the special position of British subjects was removed from the Act, and Australian citizenship became the sole statutory description of membership of the Australian nation.

Neither the Citizenship Act nor the Migration Act, in terms, makes Australian citizenship the exclusive criterion for admission to membership of the community constituting the body politic of Australia. However, given that no other criterion is supplied, either by the general law or by statute, and that (as from its amendment in 1984) s. 12 of the Migration Act posits the deportation only of persons who are non-citizens, it must be accepted that the intendment of s. 12 of the Migration Act, when viewed in the context of the amendments made to the Citizenship Act, was that Australian citizenship should be (or perhaps, should become) the criterion for admission to membership of the community constituting the body politic of Australia.

There can be no doubt as to the power of the Parliament to enact laws prescribing the conditions currently prescribed by the Citizenship Act for the acquisition of citizenship and treating non-citizens thereafter entering Australia as aliens, at least if then entering Australia for the first time. But s. 12 of the Migration Act goes further. It deals with non-citizens who entered Australia at any time, provided that they have not been permanently resident for ten years, or ten years when periods of imprisonment are disregarded. Because of its scope s. 12 can only be supported as a valid exercise of legislative power with respect to aliens if all persons who fall within its ambit were at all times aliens within the meaning of that expression in s. 51(xix) of the Constitution, or, if not having been aliens, it is within legislative power to transform their status from non-alien to alien by reason of their not having become Australian citizens.

When the plaintiff entered Australia in 1967 a British subject was excluded from the definition of an alien appearing in s. 5 of the Citizenship Act. That exclusion continued until 1 May 1987, when the 1984 amendments to the Citizenship Act came into force. Of course, the statutory definition of "alien" cannot control the constitutional meaning of "alien" as a person not a member of the community constituting the body politic of Australia. Nevertheless, the statutory definition does illustrate the historical and legal fact that until the 1984 amendments to the Citizenship Act, a British subject occupied a special position in the Australian community. That "special position" survived the introduction of citizenship consequent upon the enactment of the Citizenship Act in 1948, and is further illustrated by reference to the Commonwealth Electoral Act 1918 Cth which, by s. 39(1) (until its amendment in 1984) accorded the right to vote to British subjects who had been permanently resident in Australia for six months. It is hard to conceive that persons who were excluded from the statutory definition of alien by virtue of their being British subjects, and who were entitled (subject to a six month residence qualification) to participate in the election of the government of the day, were aliens in the sense of not being members of the community constituting the body politic of Australia. However, it seems to me that that is not the critical consideration.

As at 1967 (and at least for some time thereafter) persons resident in Australia were, as a matter of law, members of the community constituting the body politic of Australia by virtue of their allegiance to the Crown i.e. by virtue of their being British subjects. At that stage no legislative distinction was made by reference to the several and distinct capacities of the Queen as Head of State of several and distinct sovereign nations: allegiance to the Crown was allegiance to the Crown and not simply to the Crown in right of Australia. It may be that since amendment in 1973 that distinction is to be found in the Oath of Allegiance contained in Sched. 3 of the Citizenship Act. However, even if the distinction was then made, that distinction did not effect any immediate change to the special position statutorily accorded to British subjects.

It is unnecessary to identify precisely when the criterion for admission to membership of the community constituting the body politic of Australia changed from allegiance to the Crown to citizenship involving allegiance to the Crown in right of Australia. Certainly it did not occur prior to 1973. Because the plaintiff, as a British subject, came to and took up residence in Australia prior to 1973, he was, in my view, not then an alien. It remains to be considered whether it is within legislative power to transform a non-alien person into an alien by reason of that person not having acquired citizenship.

The power to legislate with respect to naturalization and aliens seems necessarily to carry with it a power to revoke the grant of naturalization and a power to define the circumstances in which a non-alien may become an alien. However, those powers are not at large. In Pochi [10] Gibbs C.J., with whom Mason and Wilson JJ. agreed, observed that "the 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". Nor, in my view, can the Parliament expand the power by constituting a non-alien an alien if there has not been some relevant change in the relationship between that person and the community constituting the body politic of Australia, including, e.g., the abandonment of membership of the community, or the acquisition of membership of some other nation community. It seems to me that such was the condition which the common law attached to the transformation from non-alien to alien status: see Thomas v. Acklam [11] ; Auchmuty v. Mulcaster [12] . However, the condition did not necessarily involve any positive act on the part of the person concerned. In In re Stepney Election Petition; Isaacson v. Durant [13] , e.g., the status of Hanoverians resident in England was altered by operation of different laws of succession (rather than by choice of the individuals concerned) when, after the death of William IV, different monarchs succeeded to the thrones of England and Hanover. As Lord Coleridge C.J. said [14] : "[t]he Hanoverian by birth who had needed no naturalization in the lifetime of William IV needed it when the Hanoverian heir and successor of that monarch was no longer the sovereign of these islands He became an alien because the sovereign to whom his allegiance was due was a foreign sovereign; and the person to whom his allegiance had been due was dead leaving an heir. The Crowns had by accident been united in one person, but when the union of the Crowns came to an end the union of allegiance ceased."

1. (1982) 151 C.L.R., at p. 109. 2. (1824) 2 B. & C. 779 [107 E.R. 572]. 3. (1826) 5 B. & C. 770 [108 E.R. 287]. 4. (1886) 17 Q.B.D. 54. 5. (1886) 17 Q.B.D., at pp. 59-60.

As the transformation from non-alien to alien requires some relevant change in the relationship between the individual and the community, it is not, in my view, open to the Parliament to effect that transformation by simply redefining the criterion for admission to membership of the community constituting the body politic of Australia. Nor, in my view, does a mere failure on the part of a non-alien to acquire citizenship involve any fundamental alteration of his or her relationship with that community. Of course, it might be otherwise if citizenship were offered and refused in circumstances such that refusal could properly be seen as a revival of an earlier allegiance to some other nation or as an abandonment of allegiance to Australia. But mere inactivity in the face of legislative change (perhaps not understood by, or not known to, the person concerned) cannot, in my view, transform a non-alien into an alien. It follows that s. 12 of the Migration Act cannot be upheld as a valid exercise of the power to legislate with respect to aliens in so far as it operates with respect to persons who were non-aliens prior to its coming into operation.

The view which I have expressed is to some extent at variance with the statement by Gibbs C.J. in Pochi [15] that "the Parliament can treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian". However, it may be questioned whether that statement was intended to encompass persons who, although answering that description, had acquired non-alien status before Parliament so acted. Moreover, that statement needs to be read in the context of his Honour's earlier acknowledgment that the extent of Parliament's power to define an alien had not been fully explored in argument.

I turn now to consider whether s. 12 of the Migration Act, in so far as it is not a valid exercise of the power to legislate with respect to aliens, is able to be characterized as a law with respect to immigration. The fact that an immigrant is a British subject has always been irrelevant for the purposes of the power to legislate with respect to immigration: R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly [16] .

The defendants argue that s. 12 of the Migration Act is a valid exercise of the legislative power with respect to immigration either because it controls the absorption of immigrants into the Australian community or because with "the development of the status of Australian citizenship, and the assimilation of the status of British subject to the status of alien there now is no place for the concept that the reach of the immigration power does not extend to the case of an immigrant who, whilst not an Australian citizen, has become in some way factually absorbed into the community".

The first argument may be disposed of shortly. Certainly, s. 12 of the Migration Act may operate to control the absorption into the Australian community of migrants who were not already absorbed when the section came into operation in 1984. If it has such an operation, it does not necessarily follow that the section makes absorption into the Australian community conditional upon the acquisition of citizenship. However, the section purports to operate irrespective of whether the person in question was or was not then in fact so absorbed. To the extent that it operates with respect to migrants who had been absorbed into the community before it came into operation, s. 12 is not a law controlling absorption into the community, and cannot on that basis be said to be a law with respect to immigration.

The second argument made on behalf of the defendants posits that the scope of the power with respect to immigration is controlled by the extent to which the power with respect to aliens is exercised. It may be that the practical relevance of the immigration power will vary depending upon the extent to which the power with respect to aliens is exercised. That, however, is an entirely different proposition from the argument advanced on behalf of the defendants. The exercise or non-exercise of one head of legislative power cannot control - much less expand - the ambit of some other head of legislative power.

The scope of the immigration power is a matter upon which differing views have from time to time been expressed by the members of this Court. There is, however, clear authority for the proposition that the power will not support a law authorizing the deportation of a person who has been absorbed into the community. As Isaacs J. stated in Potter v. Minahan [17] , the scope of the immigration power is limited by whether the person to whom it is addressed "is or is not at that time a constituent part of the community known as the Australian people": see also, Ex parte Walsh and Johnson; In re Yates [18] per Knox C.J.; per Higgins J. [19] ; per Starke J. [20] ; Koon Wing Lau v. Calwell [21] per Dixon J.; per Williams J. [22] ; Reg. v. Director-General of Social Welfare (Vict.); Ex parte Henry [23] per Gibbs J. and Jacobs J. [24] . In Ex parte Henry [23] , Gibbs J. put the matter this way:

I consider that a person who has immigrated into Australia will pass beyond the range of the power when the act of immigration is at an end - i.e., when that person has become a full member of the Australian community. It may well be, with the coming into force in 1987 of the 1984 amendments to the Citizenship Act, that a situation has evolved such that persons who had not been absorbed into the community could only thereafter be absorbed upon the acquisition of citizenship. Perhaps also the situation had evolved with the coming into force of s. 12 of the Migration Act in 1984 that persons not then absorbed into the community would not, acquisition of citizenship apart, become absorbed unless between then and the coming into force of the 1984 amendments to the Citizenship Act, they completed a period of permanent residence of ten years, disregarding periods of confinement in prison: s. 14A. Even allowing, however, that such changes may have taken place, that says nothing of the position of persons who were absorbed into the community prior to the coming into operation of s. 12 of the Migration Act. A law providing for the deportation of such persons cannot, in my view, be supported as a valid exercise of the power to legislate with respect to immigration. Although it is beyond question that Parliament has power to pass retroactive legislation (see R. v. Kidman [25] ; Millner v. Raith [26] ), it cannot make such laws operate over persons who are beyond the range of that power prior to the enactment of the retroactive law because, as Starke J. stated in relation to the immigration power in Ex parte Walsh [20] , "[t]he law is not then a law with respect to immigration, but a law for bringing again within the field of immigration persons who have passed, and were allowed by law to pass, beyond its borders". 1. (1908) 7 C.L.R. 277, at p. 308. 2. (1925) 37 C.L.R. 36, at pp. 62-65. 3. (1925) 37 C.L.R., at pp. 109-110. 4. (1925) 37 C.L.R., at p. 137. 5. (1949) 80 C.L.R. 533, at pp. 576-577. 6. (1949) 80 C.L.R., at pp. 587-588. 7. (1975) 133 C.L.R. 369, at p. 373. 8. (1975) 133 C.L.R., at p. 383. 9. (1975) 133 C.L.R. 369, at p. 373. 10. (1915) 20 C.L.R. 425. 11. (1942) 66 C.L.R. 1. 12. (1925) 37 C.L.R., at p. 137.

For the purposes of this case my conclusion may be simply stated: section 12 of the Migration Act is invalid in so far as it purports to operate with respect to non-alien British subjects who had been absorbed into the Australian community prior to the section coming into operation in 1984. Applying s. 15A of the Acts Interpretation Act 1901 Cth the section should be read down accordingly: see Pochi [27] .

The demurrer should be overruled. It should be noted that the defendants agreed that the demurrer should be determined on the basis that the statement of claim contained an assertion that the plaintiff had been absorbed into the community prior to the coming into force of s. 12 of the Migration Act. To the extent that it is necessary to raise that matter the plaintiff should have leave to amend his statement of claim. The question whether or not he was so absorbed is a question of fact: Kuswardana v. Minister for Immigration and Ethnic Affairs [28] per Deane J. That question and other outstanding issues should be remitted to the Federal Court of Australia for determination.

1. (1981) 54 F.L.R. 334, at pp. 351-352; 35 A.L.R. 186, at pp. 202-203.