Nolan v Minister for Immigration & Ethnic Affairs

Nolan v Minister for Immigration & Ethnic Affairs - [1988] HCA 45 - HCA 1985 case summary — Zoe

[17]

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] .

[43]

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."

[52]

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.

At a glance

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Decision date

Before

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Judgment (55 paragraphs)

Parties