Singh v Commonwealth [2004] HCA 43;

Singh v Commonwealth [2004] HCA 43; - HCA 2004 case summary — Zoe

[14]

I have previously stated my view that, subject to a qualification, Parliament, under pars (xix) and (xxvii) of s 51, has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode[1]. In that regard, Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration[2], that the effect of Australia's emergence as a fully independent sovereign nation with its own distinct citizenship was that alien in s 51(xix) of the Constitution had become synonymous with non-citizen. The qualification is 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 Constitution[3]. Within the class of persons who could answer that description, Parliament can determine to whom it will be applied, and with what consequences. Alienage is a status, and, subject to the qualification just mentioned, Parliament can decide who will be treated as having that status for the purposes of Australian law and, subject to any other relevant constitutional constraints, what that status will entail.
Everyone agrees that the term "aliens" does not mean whatever Parliament wants it to mean. Equally clearly, it does not mean whatever a court, or a judge, wants it to mean. When a judicial decision is made in the course of judicial review of legislative action, for the purpose of determining constitutional validity, it is made by reference to a standard other than current public opinion. In a representative democracy, the will of Parliament is the most authentic and legitimate expression of public opinion. It may be imperfect, but it is through the political process, culminating in legislative action, that public policy is formed and imposed. It is not the role of the judiciary to give effect to an understanding of public opinion in opposition to the will of Parliament. When a law enacted by Parliament, which represents, or purports to represent, current community values, is declared unconstitutional and invalid, the judicial arm of government is imposing a restraint upon the power of a democratically elected legislature by reference to a written instrument, the Constitution. The source of the restraint is the legal effect of the instrument; not the will of the judiciary. The legal effect of the instrument is determined by the meaning of the text.
It is in the nature of law that rules laid down in the past, whether the past be recent or distant, bind conduct in the future[4]. It is in the nature of a written, federal Constitution that a division of governmental power, necessarily involving limitations upon such power, agreed upon in the past, binds future governments. That the terms of the agreement were to have that future operation is a matter relevant to an understanding of their meaning, but the role of a court is to understand and apply the meaning of the terms, not to alter the agreement. Respect for the constitutional settlement is the primary obligation of a constitutional court. The source of this Court's power is the Constitution itself. There is no other. The role of the Court stems from the meaning and effect of the terms of that instrument. The stream of judicial review cannot rise above its source.
The power of judicial review, which is inherent in the structure of a federal union, was treated as axiomatic by the framers of the Australian Constitution[5]. The decision in Marbury v Madison[6] was 100 years old when this Court was established. Furthermore, as Alfred Deakin reminded Parliament when the Bill for an Act to establish this Court was being debated, the legislatures in the Australian colonies were all of limited power, and colonial courts were accustomed to declaring those limits[7]. The historical context is critical to the existence of a power of judicial review. The legitimacy of judicial review depends upon adhering to a technique of deciding the meaning, and therefore the legal effect, of the Constitution that is consistent with the nature of the power being exercised. Judicial review of the validity of legislative action by reference to the Constitution is conducted upon the hypothesis that the terms, express and implied, of a written instrument, brought into existence more than a century ago, bind present and future parliaments, and courts. That instrument cannot be amended by Parliament, or by a simple majority of Australian voters, or by a court. Its meaning controls the exercise of governmental power. In some respects that meaning is clear. In some respects it is contestable. What the Constitution does not say may be as significant as what it says. On any view, it is a legal instrument written in the past that controls the exercise of power in the present, and (subject to the possibility of amendment in accordance with its own terms) in the future.

[20]

The Australian Constitution contains many terms that have a legal meaning, and that are naturally understood and applied by courts with reference to their legal meaning. To confine attention to s 51, they include bounties, insurance, bills of exchange, promissory notes, bankruptcy, insolvency, copyrights, patents of inventions and designs, trade marks, naturalization, aliens, corporations, trading corporations, marriage, divorce, matrimonial causes, custody and guardianship of infants, service and execution of process, and conciliation and arbitration. The concepts which those terms signify, in the context of the Constitution, can only be identified by reference to legal usage and understanding. Thus, when a dispute arose as to whether an incorporated local government authority that sold electrical appliances was a "trading corporation" within the meaning of s 51(xx), the question was not resolved by consulting a dictionary, and looking up the meaning of the noun "corporation", and the verb "to trade". This Court held that, although the authority in question was a corporation, and although it traded, it was not a trading corporation[11]. In reaching that conclusion, the Court looked to the history of the development of corporations law, and noted that, at and around the time of Federation, legal authorities treated trading corporations and municipal corporations as entities of a different kind[12]. The relevance of contemporary legal usage was that it formed part of the context in which the expression "trading corporations" was adopted, and an understanding of the context was necessary to a conclusion about the constitutional meaning of the expression. Furthermore, as Gaudron and Gummow JJ said in Re Refugee Tribunal; Ex parte Aala[13], some expressions used in the Constitution, such as "a writ ... of prohibition", or "patents of inventions", have no meaning other than as technical legal expressions. A knowledge of the law, including legal history, is indispensable to an appreciation of their essential characteristics.
When a word is used to signify a concept, the process involves both inclusion and exclusion. The argument for the plaintiff in this case amounts to the proposition that the meaning of "aliens" in s 51(xix) excludes someone who was born in Australia, regardless of other circumstances and characteristics such as those which apply to the plaintiff. The plaintiff contends that it is an essential characteristic of aliens referred to in s 51(xix) that they were born outside Australia. If that is right, then the power conferred upon the Parliament by s 51(xix) is restricted by that limitation upon the meaning of "aliens". People born in Australia are excluded from the concept, and legislation about such people is not supported by the power to make laws with respect to naturalization and aliens.

[21]

Meaning is always influenced, and sometimes controlled, by context. The context might include time, place, and any other circumstance that could rationally assist understanding of meaning. I referred above to the meaning of "aliens" in s 51(xix). That is a brief description of the immediate context in which "aliens" appears, but the context is much wider than that. It includes the whole of the instrument, its nature and purpose, the time when it was written and came into legal effect, other facts and circumstances, including the state of the law, within the knowledge or contemplation of the framers and legislators who prepared the Constitution or secured its enactment, and developments, over time, in the national and international context in which the instrument is to be applied. Reference was made earlier to what was said in Chu Kheng Lim about such developments affecting s 51(xix). Another example is Sue v Hill[14].
In Jago v District Court (NSW)[15] it was necessary to apply Magna Carta and the Habeas Corpus Act 1679 (UK), 31 Car II c 2 for the purpose of deciding whether there existed, in New South Wales in 1988, a right to a speedy trial. Both in the Court of Appeal of New South Wales, and in this Court, there was a detailed examination of the meaning of the texts by reference to wider contextual factors, including, of course, history. The words of Magna Carta and the Habeas Corpus Act were read through modern eyes, but modern eyes were not blind to their historical context.
Many examples could be given of the Court's reliance upon the historical context in which the Constitution was written as an aid to its interpretation. Two provisions that have given rise to notorious difficulties of interpretation are ss 90 and 92. The leading authorities which state the current jurisprudence in relation to both provisions rely strongly on history. In Ha v New South Wales[16], Brennan CJ, McHugh, Gummow and Kirby JJ said that "it is necessary to see the provisions of ss 90 and 93 in the context of Ch IV of the Constitution and to understand the operation which Ch IV was designed to have at the time of Federation". They referred[17] to the review by Dixon J in Matthews v Chicory Marketing Board (Vict)[18] of the history of the word "excise" in order to consider whether, according to any established meaning, "an essential part of its connotation is, or at any time was," such as to exclude taxes of a certain kind. They also considered whether there was any common use of the term "excise" in the Convention Debates which might illuminate its meaning[19]. The dissenting members of the Court, Dawson, Toohey and Gaudron JJ, similarly examined the historical context, although they drew different conclusions from it. In an earlier decision on s 90, Hematite Petroleum Pty Ltd v Victoria[20], Deane J laid much emphasis upon the European, as well as the colonial, experience prior to Federation, which, he said, formed the context in which the framers of the Constitution saw the relationship between duties of customs and excise. In Cole v Whitfield[21], in which the Court reconsidered a long line of conflicting interpretations of s 92, extensive reference was made to the history of s 92. It will be necessary to return to what was said in that case as to the utility of such reference. Consideration of the history of the Constitution is not for rhetorical purposes, invoking the past when it is convenient, and ignoring it when it is inconvenient, but for the purpose of understanding its meaning, which is related intimately to context.
Sometimes the problem of meaning lies, not in understanding the concept that a particular word or expression signifies, but in understanding the relationship between a number of concepts referred to in the Constitution. A well-known difficulty exists in the relationship between s 122, which confers upon the Parliament a general power to make laws for the government of territories (which includes a power to set up territorial courts), and Ch III, which deals with the Judicature. Not all aspects of that relationship have been finally worked out. An important aid to deciding what the Constitution means on this matter is an understanding of the disparate nature of territories with which the realities of government and administration must cope, including what was in the contemplation of the founders as to the variety of circumstances governing external and internal territories in the future.
One consideration of special importance to the meaning of a constitutional instrument is its general nature and purpose: an instrument of government, expressed in broad and general terms, designed to speak to a future that, as the founders well understood, was in many respects beyond their capacity to foresee. In his speech on the Judiciary Bill, Alfred Deakin said[22]:

[25]

Acknowledging that "[i]ntention of the Legislature" is a "very slippery phrase"[24], courts, and Parliament itself, refer to "intention" or "intent" in stating rules and principles of statutory interpretation. For example, a principle of interpretation, referred to by this Court in several recent judgments, is that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language[25]. The Acts Interpretation Act 1901 (Cth) sets out various rules of interpretation of statutes which apply "unless the contrary intention appears"[26]. Questions of statutory interpretation are commonly formulated, and answered, by reference to legislative intention. For example, where a statute imposes a duty, the question whether a breach of the duty will give rise to an action for damages at the suit of an injured victim "depends upon the intention to be extracted from the statute when read as a whole, having regard to its general scope and purview as well as to its particular provisions"[27]. In Sovar v Henry Lane Pty Ltd[28], Kitto J warned that the intention that such a private right shall exist is not conjured up by judges to give effect to their own ideas of policy, and then imputed to Parliament. "The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation ... . It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances." In Wilson v Anderson[29], I sought to explain the objectivity of the concept of intention, comparing the position with respect to construction of a contract, and stressing that the exercise is not formal or literalistic but demands consideration of background, purpose and object, surrounding circumstances, and other matters which throw light on the meaning of unclear language. The danger to be avoided in references to legislative intention is that they might suggest an exercise in psychoanalysis of individuals involved in the legislative process; the value of references to legislative intention is that they express the constitutional relationship between courts and the legislature. As Kitto J said, references to intention must not divert attention from the text, for it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred. The words "intention", "contemplation", "purpose", and "design" are used routinely by courts in relation to the meaning of legislation. They are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked.
Principles of purposive construction, and the provisions of the Acts Interpretation Act, dictate that regard be paid to purpose and object. Section 15AA of the Acts Interpretation Act provides that, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. Section 15AB permits consideration of extrinsic material in the interpretation of an Act "if [the] material ... is capable of assisting in the ascertainment of the meaning of [a] provision", in order to confirm that the meaning is the ordinary meaning conveyed by the text "taking into account its context in the Act and the purpose or object underlying the Act", or to resolve ambiguity or obscurity, or to determine the meaning of a provision when the ordinary meaning of the text leads to manifest absurdity or unreasonableness. A non-exhaustive list of potentially available extrinsic materials, including parliamentary records, is set out in s 15AB(2). That brings me to the Convention Debates, there being no reason to doubt that interpretative principles of the same kind as those set out in s 15AB are also relevant to the Constitution, making due allowance for the nature of the Constitution as an instrument of government and not an ordinary statute.

[26]

The public record of the Convention Debates is evidence of what some people, involved in the framing of the Constitution, said about various drafts of the instrument. It is a partial record of the drafting history of most of the provisions of the Constitution. It reveals what some people understood, knew, believed, thought, or intended about the proposed instrument, and the circumstances surrounding some of the events involved in its preparation. For the reasons already given, what the record shows about the subjective beliefs or intentions of some people may be interesting but, of itself, is not a relevant fact. Many people, in Australia and the United Kingdom, were involved, directly or indirectly, in decisions about the form of the Constitution. Not all of them participated in the Convention Debates. Furthermore, as at all gatherings of lawyers or politicians, those who had the most to say were not necessarily the best informed or the most influential. A search for the collective, subjective intention of the framers of the Constitution would be impossible, and the individual subjective intention of any one of them, if it could be established, would not be relevant, because it would not advance any legitimate process of reasoning to a conclusion about the meaning of the text. Nevertheless, the drafting history of the Constitution, including the record of the Convention Debates, may be capable of throwing light on the meaning of a provision. Whether this will be so depends upon the nature of the problem of interpretation that arises, the nature of the information that is gained from the drafting history, and the relevance of that information to the solution of the problem. Whether information is capable of assisting in the rational solution, by a legitimate process of reasoning, of a problem about the meaning of the text, depends upon the nature of the problem, and the nature of the information.
An example is given in Cheng v The Queen[30]. In the course of a debate, on 4 March 1898, there was an exchange between Mr Barton and Mr Isaacs concerning the drafting of what is now s 80, relating to trial by jury. The exchange was helpful in the resolution of the question considered in Cheng, not because it revealed what Mr Isaacs and Mr Barton believed the clause meant, (their belief was a legally irrelevant fact), but because it threw light on the purpose and object of the provision, a matter of importance to the process of legal interpretation. What was involved was a commonplace exercise in purposive construction. The record of what occurred was regarded, as long ago as 1901[31], as capable of assisting the ascertainment of the meaning of s 80. Earlier inhibitions about taking advantage of that assistance have now been abandoned. Reference to the record may be made, not for the purpose of seeking the subjective intention of people involved in the drafting, "but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation"[32]. The reference, in Cole v Whitfield[33], to "identifying the contemporary meaning of language used", that is, its meaning at the time of the Convention Debates, directs attention to the historical context in which language, the subject of a problem of interpretation, was used. For the reasons already given, an understanding of that context is often a valuable, and sometimes necessary, aid to deciding meaning. To deny the relevance of the contemporary meaning of the language used in 1900 would not only be contrary to what was said in Cole v Whitfield, it would be contrary to one of the most elementary principles of legal interpretation, which is that a text must be understood in its context.
It is useful to consider the question that arises in the present case by reference to the interpretative approach taken in Cheatle v The Queen[34].

[27]

Cheatle was a unanimous decision of the Court. The reasons were given in a joint judgment of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The background to the case was that, at the time (1993), the States of South Australia, Western Australia and Tasmania, and the Northern Territory, like the United Kingdom, had legislation providing for the taking of majority verdicts in criminal trials. By contrast, in New South Wales, Queensland and, at the time, Victoria, jury verdicts at criminal trials were required to be unanimous. (Since then, Victoria has legislated for majority verdicts.) Section 80 of the Constitution requires the trial on indictment of an offence against any law of the Commonwealth to be by jury. Under ss 68 and 79 of the Judiciary Act 1903 (Cth), federal offences are frequently dealt with by State courts, following State procedures. The appellants were tried in South Australia for an offence against a law of the Commonwealth. They were convicted following a majority verdict of a jury. This Court upheld their submission that, by virtue of s 80 of the Constitution, the convictions were nullities.
The requirement of s 80 was that the trial "shall be by jury": no more, and no less. The appellants were tried, before a judge and jury, according to the practice and procedure then current in South Australia, and in a number of other comparable jurisdictions. It is now the procedure current in most Australian jurisdictions. If, in 1993, and without reference to the Constitution, one were to ask, as an abstract question, whether trial by jury could include provision for majority verdicts, the answer would have been yes. If, today, one were to ask the same question, relating it to modern practice in Australian jurisdictions, the answer would be the same. Indeed, if progress were equated with change, the progressive view would surely be that the practice of trial by jury can accommodate majority verdicts. That is the modern trend, and there has been pressure for change even in those jurisdictions that retain a requirement for unanimity. If the words "trial on indictment ... shall be by jury" were taken out of their context, including their historical context, and considered solely in the light of current community values as reflected in legislation, it is difficult to see how the words could be understood as denying the possibility of majority verdicts. Why the values reflected in the legislation of, say, New South Wales and Queensland, would prevail over those reflected in the legislation of Victoria and South Australia, is not apparent. To make that the test, however, would involve a cardinal error, as this Court held. There is a further difficulty to be addressed. Trial by jury is a procedure that has evolved, and continues to evolve. Some aspects of jury trial that applied in the nineteenth century, such as property qualifications of jurors or exclusion of women, no longer apply. No one supposes that s 80 requires that, in the case of persons charged with federal offences, jury trial must have all the characteristics of jury trial in 1900. The procedure is not frozen as at that date. Yet one aspect of the procedure, unanimity, was held to be immutable. In reaching that conclusion, the Court took account of three considerations: history; principle; and judicial authority. Those factors were taken into account in deciding whether "the requirement of unanimity is an essential feature of the institution of trial by jury adopted by s 80"[35]. To describe the requirement of unanimity as "an essential feature" of the procedure of trial by jury referred to in s 80 is to say that the meaning of "trial by jury" in that context excludes the possibility of majority verdicts. It is obvious that the meaning of trial by jury in other contexts does not, in 2004, exclude that possibility; and it did not exclude that possibility in 1993. Yet it did so, and continues to do so, in the context of s 80. As to history, the Court said[36]:

[30]

The argument for the plaintiff depends largely upon the proposition that the legal and historical context at the time of the drafting of the Constitution supports such a meaning. The argument fails, not in the major premise as to the relevance of the legal and historical context, but in the minor premise. The context, properly understood, does not support the conclusion for which the plaintiff contends. Rather, it supports the opposite conclusion.
In 1900, the major legal systems of the Western world adopted different approaches to the concept of alienage, and to correlative concepts of citizenship or allegiance. Broadly, the two leading theories were one which attached controlling importance to descent, and one which attached controlling importance to place of birth. The common law of England adhered to the second theory, but by 1900 the United Kingdom Parliament had intervened to modify the common law in significant respects. The questions of nationality, allegiance and alienage were matters on which there were changing and developing policies, and which were seen as appropriate for parliamentary resolution. The complex racial circumstances that resulted from Imperial expansion complicated the issues even further. The reasons of Gummow, Hayne and Heydon JJ demonstrate that, in the case of someone such as the plaintiff, an Indian citizen, born in Australia of Indian citizens, there was in 1900 no established legal requirement that she be excluded from the class of aliens. At the least, it was a matter appropriate to be dealt with by legislation. In Grain Pool of Western Australia v Commonwealth[38] the joint judgment, referring to "cross-currents and uncertainties" in the law relating to patents and registered designs at the time of Federation, said "it plainly is within the head of power in s 51(xviii) to resolve them". It seems to me that, given the legal context in which the Constitution was written, it is equally plain that it was within the head of power given by s 51(xix) for Parliament to decide whether a person such as the plaintiff should be treated as an alien. To state the position negatively, the legal context does not support or require a conclusion that "aliens" in s 51(xix) excludes the plaintiff.
It was argued that the record of the Constitutional Debates concerning a failed proposal to include in what is now s 51 a power to make laws with respect to Commonwealth citizenship in some way supports the plaintiff. The first thing to be noted is that there were two alternative, and inconsistent, proposals. In 1898, the chief proponent of the inclusion of a citizenship power, Dr Quick, said that he wanted to see either a definition of citizenship in the Bill or a power conferred on the Parliament to define citizenship[39]. The debate that followed related to both alternatives. A number of speakers raised various objections. Some regarded a definition of citizenship as unnecessary[40]. Some saw the proposal as cutting across the concept of state citizenship[41]. Mr Isaacs thought that "all the attempts to define citizenship will land us in innumerable difficulties"[42]. He expressed concern that the proposed amendment might deprive Parliament of the power of excluding people of certain specified races "who happened to be British subjects"[43]. The subject of race was of great concern to the framers, and their views on that matter were quite different from those which now prevail. To put the point at its lowest, a purpose of limiting Parliament's power to legislate for exclusion is not apparent. It is impossible to discern in the record of the Convention Debates any specific reason for the rejection of Dr Quick's ambiguous proposal. The discussion throws no light on the purpose or object of s 51(xix), except to the extent that it suggests that a broad, rather than a narrow, power with respect to aliens was in contemplation.

[31]

The argument for the plaintiff has not been made out. She is a citizen of a foreign state, the child of foreign citizens and, although born in Australia, she is an alien.
The first question in the case stated should be answered, "Yes". The second question does not arise. The third question should be answered, "The plaintiff".
McHUGH J. Is a child born in Australia an alien simply because the child's parents are aliens? That is the principal issue in these proceedings, brought on behalf of Ms Tania Singh, who was born in Australia but whose parents are "aliens" within the meaning of s 51(xix) of the Constitution. For her, the answer to this question is of momentous importance. If it is answered in the affirmative, the Minister for Immigration and Multicultural and Indigenous Affairs may proceed with her intention to deport her. Further, Ms Singh would have no legal or constitutional right to enter Australia in the future. Entry would be subject to the discretion of the Minister.
In my opinion, a person born in Australia is not, never has been and, without a constitutional amendment, never could be an alien unless that person falls within one of three categories. None of those categories applies to Ms Singh. Over 200 years ago, Sir William Blackstone said[44] that "[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." Eight years after the colonies of Australia federated, Griffith CJ, Barton, O'Connor, Isaacs and Higgins JJ made the same comment about a person born in this country in a case where the father was a Chinese alien[45]. Ms Singh is a natural born "subject of the Queen" of Australia for the purpose of s 117 of the Constitution and, unlike an alien, entitled to its protection. If she is a natural born subject of the Queen of Australia, I do not see how anyone could find that she is an alien for the purpose of the Constitution. Furthermore, subject to presently irrelevant exceptions, birth in Australia made her a member of the Australian community and one of "the people of the Commonwealth" to whom the Constitution refers. The Minister has no power to deport Ms Singh. She is not an alien. The Minister has no power to act as if Ms Singh were not a member of the Australian community.
Section 51(xix) of the Constitution empowers the Parliament of the Commonwealth to make laws with respect to "aliens". By necessary implication or assumption, that grant of power recognises that an alien is a person who can be identified by reference to some criterion or criteria that exists or exist independently of any law of the Parliament or indeed of the Constitution itself. It is a corollary of that implication or assumption that the Parliament of the Commonwealth cannot itself define who is an alien. Thus, s 51(xix) implies or assumes that an alien can be defined - but not by the Parliament.
It must follow, then, that that paragraph also implies or assumes that, when the Constitution was enacted in 1900, the term had a meaning that would be understood objectively by the Australian people. The persons who fall within or outside that meaning may change over the years. Australia's evolving independence from the United Kingdom, its steps towards becoming a sovereign nation, the acceptance of the divisibility of the Crown and the evolution of the Crown from an Imperial to a national office have led to changes in the denotation of the term "aliens". Hence, a person born in the United Kingdom who is resident in Australia may now be regarded as an alien in Australia for constitutional purposes even though such a person would not have been regarded as an alien in 1900. It may even be that experience of political or social developments has given or may give insights that lead later generations of Australians to define the constitutional term "aliens" itself in a way that does not fully accord with its perceived meaning in 1900. But if the persons who fall within the denotation of the term change or the connotation of the term changes, it will be because of events that occur independently of laws made by the Parliament. To deny that proposition is to deny the binding effect - indeed the legitimacy - of the Constitution itself.
In the Australian colonies in 1900, the essential meaning - the connotation - of the term "alien" was a person who did not owe permanent allegiance to the Crown. And, subject to three exceptions, in 1900 and now, birth in Australia, irrespective of parentage, gave and still gives rise to an obligation of permanent allegiance to the sovereign of Australia. Even if it is permissible in 2004 to give the constitutional term "aliens" a meaning different from that which it had in 1900 - itself a contestable proposition - the Commonwealth has referred to no circumstance external to the Constitution which demonstrates that the essential meaning of the term in 1900 no longer applies. Indeed, even under a "progressivist" theory of constitutional interpretation, it is hard to conceive of the essential meaning of a constitutional term being entirely displaced and another meaning substituted for it[46].
Under the law of India at the time of her birth, Ms Singh acquired Indian citizenship at birth because her parents are Indian citizens. However, it is of no relevance in determining the meaning of the constitutional term "aliens" that, under the law of another country, a person, born in this country, may be a citizen of, and owe obligations of allegiance to the sovereign of, the foreign country. Equally irrelevant to determining the meaning of "aliens" in s 51(xix) are concepts of nationality and citizenship. Discussion of those concepts in this constitutional context merely invites error. What was, and is now, central to the meaning of the constitutional term "aliens" is the existence of an obligation of permanent allegiance to our sovereign - once the Queen of the United Kingdom but now, according to the doctrine of this Court, the Queen of Australia. Because the Commonwealth contends that Ms Singh is an alien - and therefore within the operation of s 51(xix) - it must show that upon her birth, she came under no obligation of permanent allegiance to the Queen of Australia. Not only has the Commonwealth failed to show that that is the case, it has not attempted to, nor could it, do so.
The unanswerable logic of Ms Singh's claim that she is not an alien can be seen in the following polysyllogism[47]:

[51]

Under the Migration Act, a person in Australia who is not a citizen and who does not hold a visa that is in effect is an "unlawful non-citizen"[51]. Under s 198 of that Act, an officer must remove such a person "as soon as reasonably practicable". If Ms Singh is an unlawful non-citizen within the meaning of the Migration Act, the Minister and her officers have a duty to remove her from Australia. Whether they can do so depends on whether the Parliament of the Commonwealth has the constitutional power to declare that a person, born in this country, is an unlawful non-citizen and to order the removal from Australia of such a person. In my opinion, neither the aliens power under s 51(xix) of the Constitution nor any other legislative power of the Commonwealth permits either step to be taken.
The defendants contend that the Parliament has a wide power to make laws "with respect to" "aliens". That contention is correct. But its limits are found in the constitutional term "aliens". A corollary of the implication that the power to make laws with respect to "aliens" necessarily assumes that the status of alienage can be identified objectively, that is, without reference to any federal law or to the Constitution, is that the Federal Parliament cannot itself define who is an alien[52]. Section 51(xix) therefore assumes that in 1900 the term "aliens" had an objective meaning that was understood by the Australian people. In that respect, the constitutional term "aliens" is like the constitutional term "marriage". It is for this Court and other courts exercising the judicial power of the Commonwealth to define the term. To hold that the Parliament of the Commonwealth can treat a child, born in Australia, as an alien can be justified only by resort to the erroneous view that somehow in some way Parliament has power to define the constitutional term "aliens". Acting under the aliens power, the Parliament can say that persons who are aliens are not aliens for the purpose of federal law. But it cannot say that they are not aliens for the purpose of the Constitution any more than it can say that people who are not aliens are aliens. Further, Parliament can say that aliens are to have the same rights and privileges as natural born Australians. Indeed, it can make any law "with respect to" "aliens". It is for the courts exercising the judicial power of the Commonwealth, however, to determine who is an alien for the purpose of the Constitution. The fallacy that runs throughout the submissions of the Commonwealth in this case is the notion that the Parliament can define the term "aliens" by picking and choosing among various jurisprudential theories concerning the indicia of nationality and alienage.
What, then, is the meaning of the term "aliens" in s 51(xix) and how is it to be ascertained?

[53]

There is no consensus as to any single approach to the interpretation of the Constitution. Commentators on the constitutional jurisprudence of this Court claim that all the methodologies that it has used are subject to criticism[53]. Current High Court jurisprudence on constitutional interpretation favours some form of textualism[54]. The basic premise of a textualist approach is that the text has ultimate primacy, although history and extrinsic materials may be relevant to explain the meaning of the text.
Because the Constitution is contained in a statute of the Imperial Parliament and the people of the Commonwealth have agreed to be governed under the Constitution, it seems obvious that the best guides to its interpretation are the general rules of statutory interpretation[55]. The fundamental rule of statutory interpretation is that the meaning of an enactment is the meaning that its makers intended. Intention in the context of statutory interpretation is "an obvious fiction"[56]. But it is "a useful judicial construct because the judge is required to make the choices that best express the statutory text's meaning."[57] In the case of the Constitution, the intention is that of those who framed it[58]. Their intention is determined objectively. Their subjective beliefs and assumptions as to its meaning are irrelevant[59].
In applying the rules of statutory construction to the Constitution, Justices of this Court have always taken into account that it is no ordinary statute[60]. They have recognised that it is an instrument difficult to amend, designed for the ages and intended as the blueprint for governing a federation consisting of a central and six regional governments as well as a number of territories. The makers of the Constitution and the people of the Australian colonies who approved the Constitution laid down a blueprint for the government of the nation for the indefinite future, subject to the power of the people to consent to its amendment under s 128 of the Constitution. The Constitution must be interpreted with that fundamental premise in mind. Because that is so, its provisions must not be interpreted pedantically or narrowly[61]. They must be interpreted flexibly and purposively and, subject to the text and structure, in the manner best fitted to the contemporary needs of a federal system[62]. Many provisions of the Constitution are framed in terms wide enough to allow this to be done. Dixon J recognised this in Australian National Airways Pty Ltd v The Commonwealth when he said that[63]:

[58]

A most striking example of background throwing light on the meaning of a constitutional provision is the decision in Cole v Whitfield[71]. In Cole, the Court used history to read down the words in s 92 of the Constitution that "trade ... among the States ... shall be absolutely free" to cover cases only where interstate trade was burdened by laws that were discriminatory in a protectionist sense. In a line of cases dealing with "trial ... by jury" in s 80 of the Constitution[72], the Court used history to look for the "essential" characteristics of a jury as they were understood at common law in 1900. The Court identified these essential features by considering the historical evolution of juries in the United Kingdom and Australia before and around 1900 and the purpose of the relevant section of the Constitution. The Court then considered these "essential" aspects in their historical context.
When those who framed the Constitution included the term "aliens", they did so against a background of British and colonial history that, for at least six centuries, had regarded an alien as a person who did not owe permanent allegiance to the Crown. The makers of our Constitution enacted s 51(xix) knowing that the principle that a person who did not owe permanent allegiance to the Crown was an alien was an entrenched rule of the common law, a rule as central to the unwritten constitution of the United Kingdom and its colonies as could be found. They also knew that, upon birth in any part of the Crown's dominions, the new born child immediately owed permanent allegiance to the Crown and was entitled to claim a reciprocal duty of protection on the part of the Crown, unless the child fell into one of three categories to which I shall later refer. In 1900, no-one in Australia who knew anything about the subject would think for a moment that a person, born in any part of the Crown's dominions, was an alien unless the child fell into one of the three categories.
It is a mistake to think that in 1900 an alien was simply a person who was not a British subject. In the then structure of the Empire, a person who was not a British subject was an alien. Nevertheless, "non-British subject" was not the "essential meaning" of the term "alien" in 1900. If it were, the term would have that meaning until amended under s 128 of the Constitution. Most Australians would now be aliens. It is more accurate to say that in 1900 an alien was a person who was not a "subject of the Queen"[73]. The essence of the term "alien" was the lack of permanent allegiance to the Crown. While the Crown remained indivisible, a British subject was outside the denotation of the term "alien". However, when the Crown divided, so to speak, the denotation of the term "subject of the Queen" changed. As a result, British subjects no longer owed permanent allegiance to the Queen of Australia and became "aliens" in Australia.
Against this background, the inevitable conclusion is that in s 51(xix) of the Constitution the term "aliens" means persons who do not owe permanent allegiance to the Queen of Australia. It is only a half-truth to say that an alien is a person who owes permanent or even temporary allegiance to another country. Indeed, in the case of a stateless person, it is not even a half-truth. The meaning of "aliens" in the Constitution does not turn on whether under the law of another country the person in question owes a duty of allegiance to that country. It turns on whether that person owes a duty of permanent allegiance to the Queen of Australia. The history of the concepts of aliens and alienage in England and Australia shows why this is so. To that history, I now turn.

[61]

English common law traditionally distinguished between "natural born subjects", "alien subjects" and "aliens". Under the English common law, all persons within the dominions of the monarch were either "natural born subjects" or "alien subjects". A subject was literally a person subjected to the dominion or laws of the monarch. An alien was a person outside the dominions of the monarch who was not a "natural born subject".
The status of subjects of the Crown and aliens derives from English medieval common law and the feudal system[74]. Feudalism was based on concepts of territory and person. Under the feudal system, all rights and duties were "bound up with and dependent upon the holding of land, and there [was] a personal tie of fealty between the tenant [or vassal] and his lord."[75] Fundamental to the concept of the "subject" in the common law was the English feudal notion of allegiance. Ideas of territory and person were behind the doctrine of allegiance. Sir William Blackstone described the twin concepts underlying the doctrine of allegiance as "land" or "territory" and personal "fealty"[76]. During the medieval period, all persons within the King's dominions owed a duty of allegiance to the King. Fealty was the feudal obligation of fidelity and obedience that was owed by a vassal to his or her lord together with the reciprocal duty of protection and guardianship which the lord owed to the vassal[77]. As Sir William Holdsworth noted, the doctrine of allegiance "has its roots in the feudal idea of a personal duty of fealty to the lord from whom land is held"[78].
In his Commentaries on the Laws of England, Sir William Blackstone described allegiance as "the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject."[79]
The common law recognised the sovereign as the supreme feudal lord of the people as well as the land. Subjects owed the King the same duties of fidelity and obedience as vassals owed to their lord, for the King was their sovereign lord. "Allegiance" referred to the obligations owed by subjects to the King; "fealty" referred to the obligations owed by vassals to their lord. (The ideas of territory and person were modified in order to apply to the relationship between the King and his subjects, because this relationship was not based on tenure.) Subjects were ad fidem regis ("in the faith of the king")[80]. In early feudal times the territorial element was the more important element of allegiance.
English common law distinguished between natural born subjects and alien subjects according to the nature of the allegiance owed by each. Sir William Blackstone observed that the principle of allegiance was the distinguishing feature between natural born subjects, alien subjects and aliens. He said[81]:

[71]

Coke CJ explained that the requirement of "actual obedience" refers to birth within the sovereign's dominions at the time when the sovereign is in "actual possession" of that territory[99]. He cited France as an example: although the King of England had absolute right to the kingdom of France, persons born in France were not natural born subjects of the King of England if the King was not in actual possession of France at the time of their birth. The requirement that the place of birth be within the King's dominions refers to the place of birth within the sovereign's territories being under the actual control (dominion) of the sovereign at the time of birth. Coke CJ noted that "any place within the King's dominions without obedience can never produce a natural subject."[100] Thus, if any part of the sovereign's dominions ceased to be within the sovereign's possession - for example, if a castle was overrun by enemy aliens - any children born within that territory during the time when that territory was outside the sovereign's possession was not a natural born subject. Coke CJ noted that the time of birth "is of the essence of a subject born" and that a person "cannot be a subject to the King of England, unless at the time of his birth he was under the ligeance and obedience of the King."[101]
Calvin's Case also recognised two exceptions to the common law rule that a person acquired the status of a natural born subject at birth, if the place of the person's birth, at the time of the person's birth, was under the actual dominion of the sovereign. The first exception was that the children of the King's ambassadors and their English wives were recognised as natural born subjects, notwithstanding that they were born outside the sovereign's dominions[102]. The second exception was that the children of enemy aliens born within the sovereign's territory were not regarded as natural born subjects, if at the time of birth the territory in which the child was born was not under the King's ligeance or obedience[103].
Calvin's Case also emphasised that allegiance was a personal bond between the King and the subject. The bond was not between the King in his capacity as a "corporation sole" because this concept existed only in English law. The bond was between the subject and the natural person of the King. All persons within the King's dominions recognised the natural person of the King, regardless of whether their law (eg, Scottish or Welsh law) recognised the political entity of the King[104].
The effects of the decision in Calvin's Case were significant. The first and most important effect was that the case laid down a general common law rule for the acquisition of the status of a natural born subject, a rule that applied to all persons born within the King's dominions. Thus, the decision secured a uniformity of status for natural born subjects. The second effect of the decision was that it laid down definite rules for the acquisition of the status of a natural born subject. In this context, Sir William Blackstone later observed[105] that "[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." The third effect of the decision was that it accepted that the status of the subject was "indelible" and that, if the King lost any of his territories, persons born in those territories while those territories were within the King's possession retained their status as natural born subjects of the King[106]. Sir Matthew Hale accepted this third principle[107], and it was applied in Aeneas Macdonald's Case[108] in 1747. The court of the King's Bench in that case stated[109]:

[127]

One of the problems confronting the makers of the Constitution was the issue of categorisation, in particular, the effect of defining "citizen" as a "subject of the Queen". Under the common law, "subject of the Queen" included all "natural born subjects" born in any part of the British Empire. This included colonies such as Hong Kong. Some delegates were concerned not only that Chinese people from Hong Kong would be treated differently from those born in other parts of China, but also that they would be able to claim citizenship of the Commonwealth[164]. Dr John Cockburn, a South Australian delegate, emphasised[165]: "We desire always to deal with Asiatics on broad lines, whether they are subjects of the Queen or not; and in South Australia, and, I believe, other colonies, those lines of distinction are obliterated."
Accordingly, the legislative power of the Commonwealth in s 51(xix) was confined to the making of laws with respect to "naturalization and aliens". The Convention Debates suggest that the paragraph was enacted because delegates feared that, if the Parliament had power to legislate with respect to citizenship, it could exercise the power to deprive a person of his or her citizenship, a concept that was treated as identical with "subject of the Queen", that is to say, a person born within the dominions of the Queen or a person who had been naturalised under a law of a colony.
The Constitution refers variously to "subject of the Queen", "subject", and "citizen" in ss 117, 44(i) and 34(ii). Section 117, which deals with discrimination against interstate residents, refers to a "subject of the Queen, resident in any State". Section 44 refers to persons who are "incapable of being chosen or of sitting as a senator or a member of the House of Representatives." Section 44(i) describes one category as any person who "is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power". Section 34(ii) addresses the qualifications for membership of the House of Representatives. To be eligible a person:

[181]

Ms Kim Rubenstein has correctly characterised[210] these changes in the application of the term "aliens" as changes in its denotation. Hence, while the meaning (or connotation) of "aliens" has remained constant, the classes of persons falling within that meaning have changed. As Windeyer J noted in Ex parte Professional Engineers' Association[211]: "Law is to be accommodated to changing facts. It is not to be changed as language changes."
Rightly or wrongly, this Court took the bold step in Nolan of holding that, in light of the developments described above, a natural born British subject (that is, a person born in the United Kingdom) may be regarded as an alien in Australia for constitutional purposes. However, cases such as Nolan, Re Patterson and Shaw concerned persons born in the United Kingdom who had not become naturalised as Australian citizens. Once it is accepted that after 1948 such persons were the subjects of a foreign power and not subjects of the Queen of Australia, those decisions are not open to criticism. But they do not address the position of persons born in Australia of alien parents. Such persons are subjects of the Queen of Australia. They are qualified to stand for the House of Representatives unless they fall within the terms of s 44(i) of the Constitution. By force of s 117 of the Constitution, while resident in any State, they cannot be subjected "in any other State to any disability or discrimination which would not be equally applicable to [them] if [they] were a subject of the Queen resident in such other State." Upon birth, like the children of native born Australian parents, they come under an obligation of permanent allegiance to the Queen of Australia and a duty to obey the law, including the law of treason. Moreover, because they are "subjects of the Queen", they are members of the Australian community and among "the people of the Commonwealth". The "essential meaning" of the term "aliens" in 1900 and now does not include a person born in Australia who owes permanent allegiance to the Queen of Australia. For that reason, Ms Singh is not an alien.
The Constitution avoids references to "citizenship" in relation to the powers of the Commonwealth. This was a deliberate omission of those who made the Constitution. That omission and the discussion at the 1898 Convention lead to the irresistible conclusion that the Constitution does not confer on the Parliament of the Commonwealth a broad power concerning citizenship and nationality. Instead, the Constitution has given the Parliament of the Commonwealth a limited specific power to control the entry of persons into Australia and to regulate the rights and privileges of aliens in Australia. However, the so-called implied nationhood power[212] seems extensive enough to give the Parliament some modest power over citizenship and nationality generally. It must be implicit in the Constitution that the Parliament of the nation can define who are the citizens or nationals of the Commonwealth and, subject to the Constitution, prescribe what conditions must exist for citizenship. It is a matter that is the concern of the Commonwealth rather than the States. The "external affairs" power (s 51(xxix)) is another potential source of power for federal laws concerning citizenship and nationality. In 1937, Australia ratified the Convention on Certain Questions Relating to the Conflict of Nationality Laws[213]. Article 1 of that Convention declared that it was "for each State to determine under its own law who are its nationals." It is unnecessary in this case to determine whether Australia's accession to the Convention authorises the Citizenship Act or part of it.
Whatever the source of that Act may be, it cannot be forgotten that those who made the Constitution refused to give the Commonwealth powers concerning citizenship, because they feared that the Commonwealth could deprive a person of the citizenship that was acquired by birth in a State. In addition, assuming that the implied nationhood power extends to making laws concerning citizenship or that the external affairs power is the source of such laws, those powers cannot extend to removing the citizenship or nationality that arises from being born in Australia. As O'Connor J pointed out in Potter, birth within Australia makes a person a member of the Australian community who comes under an obligation to obey its laws and is correlatively entitled to all the rights and benefits which membership of the community involves. The implied nationhood power cannot be used to deprive a person of his or her membership of the Australian community acquired by birth[214].
Many would argue that the makers of the Constitution erred in failing to give the Parliament of the Commonwealth specific powers over citizenship and nationality. One reason is that during the 20th and 21st centuries, the movement of people between nations has increased significantly. Some of this movement has resulted from voluntary migration; some of it is a result of conflict or persecution. Developments in aviation have also facilitated the international movement of people. Australia has experienced several waves of immigration. Australia also has obligations under the Convention relating to the Status of Refugees[215]. The increased movement of people and populations has exacerbated perceived problems in the rules governing the acquisition of nationality by birth, particularly where those rules are based on principles of jus soli. Many nations have adopted the principles of jus sanguinis (or some variation thereof) as the basic rule governing the acquisition of nationality by birth. Even the United Kingdom has departed from the principles of jus soli in a number of significant respects (see, eg, British Nationality Act 1981 (UK), under which a person born within the United Kingdom of alien parents does not automatically acquire British citizenship at birth).
There is also an increasingly sophisticated and nuanced discourse in relation to the concept of Australian "citizenship" and what it means to be a member of the Australian community. A plenary power over citizenship and nationality seems a necessity for any national government.
No doubt the makers of the Constitution would respond to criticism of their omission to give the Parliament a citizenship power by arguing that the Parliament has all the power it needs to deal with relevant issues of citizenship. They would say that, subject to the well‑known exceptions, all persons born in this country are members of the Australian community and constitutional "citizens" and that the naturalisation power authorises the Parliament to make laws about the citizenship status of aliens.
The Citizenship Act seeks to deal with some of the changes that have occurred since 1900. Whether all or most of it is within the power of the Parliament is not relevant in the present case. Only the application of s 10 of that Act to Ms Singh is in issue. The first difficulty that faces the Commonwealth in respect of that section is that it deals with citizenship, a subject that is not within any head of federal legislative power conferred by the Constitution. The second difficulty is that s 10(2) declares that a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986:

[201]

These reasons seek to demonstrate that a central characteristic of the status of "alien" is, and always has been, owing obligations to a sovereign power other than the sovereign power in question. The plaintiff has that characteristic. The problem to which Gibbs CJ adverted in Pochi[224] and Fullagar J adverted in the Communist Party Case[225] does not arise and s 198 of the Migration Act can be supported in its operation with respect to the plaintiff as a law with respect to naturalization and aliens.
As was pointed out in the joint reasons in Grain Pool of Western Australia v Commonwealth[226], the general principles which are to be applied to determine whether a law is with respect to a head of legislative power are well settled. For present purposes, it is enough to draw attention to two of those well‑settled principles. First, the constitutional text is to be construed "with all the generality which the words used admit"[227]. Secondly, as was pointed out as long ago as Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ("the Engineers Case")[228], once the true meaning of a legislative power is ascertained, it is not to be further limited by the fear of its abuse. As the Court has said on a number of occasions, the meaning of a power given by s 51 is "not to be given any meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application in some future law"[229].
Next, the plaintiff's argument, that at federation "aliens" had a known and fixed legal meaning, which excluded persons in the plaintiff's position, invites attention to another aspect of the principles governing constitutional interpretation.
The plaintiff's contention that "aliens" had a fixed legal meaning at federation assumed not only that this meaning was to be ascertained by reference to the common law but also that the meaning, once ascertained, defined the outer limits of the power of the Parliament. These reasons will seek to demonstrate that, at federation, "aliens" did not have a fixed legal meaning ascertained by reference to the common law. What had been the common law at the time of Calvin's Case had been overtaken by statute and by subsequent developments of legal thought in England and in Europe. It is as well, however, to go on to say something further about the second of the assumptions just identified - that a meaning ascertained in the way for which the plaintiff contended defined the outer limits of the constitutional power.
To say of a constitutional expression, like "aliens", that its content is "immutable" invites controversy which may be more remarkable for its heat than for the light shed on the underlying issue. The relevant question is not whether the meaning of "aliens" is immutable, it is whether, as a matter of construction, the law now in question (here s 198 of the Migration Act) can be supported in its operation with respect to the plaintiff as a law with respect to naturalization and aliens.
In undertaking that question of construction, to identify the meaning conveyed, at the time of federation, by the words used in the Constitution is more than a matter of historical interest[230]. It is an essential step in the task of construction. That is not to say, however, that seeking an understanding of the meaning of a constitutional expression like "aliens", when used at the time of federation, permits or requires searching for the subjective intention of the framers. It does not. Metaphorical references to "the founders' intention" are as apt to mislead in the constitutional context as are references to the intentions of the legislature when construing a statute[231] or references to the intentions of the parties to a contract[232] when considering its construction. Rather, the question is one of construing the relevant constitutional provisions. That task of construction cannot be undertaken without knowing what particular constitutional expressions meant, and how words were used, at the time of federation. But the task does not end with the results of that inquiry. Always, the Constitution is to be construed bearing steadily in mind that it is an instrument of government intended to endure[233].
Numerous cases decided by this Court reveal that constitutional expressions may have a different operation 50 or 100 years after federation from the operation they would have had in 1901. Sue v Hill[234], and its consideration of whether Great Britain is now to be regarded as a foreign power, and Grain Pool of Western Australia v Commonwealth, with its discussion of whether legislation concerning the grant of plant variety rights was a law with respect to copyrights, patents of invention and designs and trademarks, are but two recent examples.
It may be that tools like the distinction between connotation and denotation[235] or the distinction between concepts and conceptions[236] are thought to be useful in understanding or explaining decisions like Sue v Hill. There is at least a risk, however, that using such tools directs attention to their content and to their utility rather than to the analytical task they are being used to undertake.
For present purposes, all that need be noted are two related points. First, to require the identification of the historical meaning of constitutional terms does not confine the operation of the Constitution to the applications which those who wrote it may have had in mind. To confine it in that way would be to fall into the error of seeking the subjective intention of the founders. Secondly, the identification of the historical meaning of a constitutional term like "aliens" is not complete if all that is done is to give a list of the particular circumstances to which the word was applied at federation. Yet that is essentially what the plaintiff's contention requires.

[208]

Using the concept "allegiance" to distinguish between British subjects and aliens invites attention to what is meant by "allegiance" in this context. Pointing to its root in the feudal idea of a personal duty of fealty to a lord from whom land is held does little to identify the content of the term. Plainly it is a term which connotes duty or obligation, but what exactly are the duties or obligations embraced by the word? These duties or obligations, whatever their content, are said to be due to the Crown in the "politic" not the "personal capacity" of the sovereign[242]. Sometimes they are spoken of as being duties or obligations of "fidelity"[243] or "loyalty"[244] but again those words reveal little about the content of the duties or obligations. What is clear is that the obligations of a non‑alien who owes allegiance are more than the obligation to obey the law. A resident alien, being bound to obey the law, is said to owe "local and temporary" allegiance to the monarch but that implies, of course, that the non‑alien (or subject) owes larger duties and obligations than the alien. The content of those duties or obligations is not spelled out. That may be because "allegiance" and "loyalty" are terms that point to a political or social relationship yet in this context are being used to describe a legal status.
Moreover, the relationship between sovereign power and the person who is a non‑alien (that is, in Australia, the relationship between Crown and non‑alien) is mutual. The Crown owes obligations to the non‑alien. But again those obligations are described only in abstract terms like a "duty of protection"[245]. Their content is not spelled out, although it may very well be that these obligations find expression in Australia's exercise of its right, but not duty, in international law to protect its nationals[246], and even, perhaps, in what the Court said[247] was "[t]he right of the Australian citizen to enter the country [which] is not qualified by any law imposing a need to obtain a licence or 'clearance' from the Executive". Further, the relationship between the Crown and a resident alien is also mutual and is not necessarily limited to such time as the alien remains in Australia. "The protection of the laws of Australia which is the counterpart of a local allegiance due from a resident alien" may continue despite departure from Australia[248].
The second of the points to be noted about Quick and Garran's commentary on "aliens" is the contrast drawn between "aliens" and "British subjects".

[217]

Enacting legislation extending the classes of persons entitled to the benefits and subject to the obligations of being a British subject was, and is, consistent with identifying birth within the dominions of the Crown as generally sufficient both to qualify for the status of British subject and to deny identification as an alien. But the statutory modification of the law made by the Naturalization Act 1870 was radically different. It abandoned the principle that being a natural‑born British subject was an indelible status. Further, it abandoned that principle because the common law doctrine was "at variance with those principles on which the rights and duties of a subject should be deemed to rest". That is, the change made to the law denied the validity of the natural law justification given in Calvin's Case for the consequences said to follow from birth within the dominions of the Crown.
The Naturalization Act 1870 was later understood[258] as not introducing a new or a revived system of Imperial naturalization. Section 16 of the Act expressly saved "[a]ll laws, statutes, and ordinances which may be duly made by the legislature of any British possession for imparting to any person the privileges ... of naturalization, to be enjoyed ... within the limits of such possession ...". Questions of Imperial naturalization were examined at the Colonial Conference of 1902 and again at the Imperial Conferences of 1907 and 1911[259]. The deliberations at these Conferences culminated in the British Nationality and Status of Aliens Act 1914 (Imp). The operation in a self‑governing dominion of Pt II of that Act, which concerned naturalization, depended upon the enactment of legislation by the dominion[260]. The legislative and other consequences of that Act in Australia were discussed in Re Patterson; Ex parte Taylor[261] and Shaw[262].
For present purposes, two points are important. First, the subjects of naturalization, indelibility of allegiance, nationality and alienage were matters of lively controversy in Britain during the latter part of the 19th century. Secondly, and no less importantly, that led to legislative change. (It is not necessary to stay to examine whether, as Sir Francis Piggott later wrote[263], "the Act of 1870 was, by common consent, the worst drafted piece of legislation that had ever found its way on to the Statute Book".)
Due account of the existence of this controversy, and of developments in British statutory law on the subject, must be taken in considering the meaning to be given to "aliens" in s 51(xix). Both the existence of the controversy, and the developments in British statutory law, at the very least tend to deny that in 1901 there was an accepted fixed legal meaning to the term derived from the common law as understood in Calvin's Case. Moreover, in attempting to identify how the word "aliens" was understood at the time of federation, it would be wrong to confine attention to Britain. The subjects of nationality, naturalization and related matters were subjects of lively consideration throughout Europe during the 19th century. It is necessary, therefore, to say something more about some developments in other legal systems which occurred during the 19th century.

[232]

The plaintiff placed some emphasis on the specific rejection at the Australasian Federal Convention of a proposal to give the Federal Parliament power to make laws with respect to citizenship. At the Third Session of the Convention held in Melbourne in 1898, Dr Quick proposed that the federal Parliament be given power to make laws with respect to "Commonwealth citizenship"[283]. The proposal failed. When asked, in the course of debate, to define citizenship, Dr Quick said[284] that "a reasonably approximate definition would be ... to the effect that all persons resident in the Commonwealth, being natural‑born or naturalized subjects of the Queen, and not under any disability imposed by the Federal Parliament, should be citizens of the Commonwealth".
Debate at the Convention focused upon the ambit of the proposed power. As the plaintiff pointed out in argument in the present matter, statements were made in debate by, for example, Mr Symon (later Sir Josiah Symon)[285] and Mr O'Connor (later O'Connor J)[286], which can be read as suggesting that they opposed the proposal on the basis that the federal Parliament should not have power to determine who is a citizen of Australia. Read as a whole, however, the debate about the proposal demonstrates the difficulty of distilling from debate a single proposition, or even series of propositions, as the reason or reasons which underpinned the ultimate rejection of the proposal. Some speakers[287] opposed the proposal because it might empower the federal Parliament not only to define who is a citizen, but also to define the rights attaching to citizenship in ways amplifying the reach of powers otherwise to be conferred on the federal Parliament. Mr Barton[288] also emphasised the importance to be attached to the status of subject of the Queen suggesting, in effect, that the injection of a new concept of "citizenship" was unnecessary. In the end, little is to be gained from the Convention Debates on this proposal except for the obvious fact that it was considered and rejected. It is, in these circumstances, unnecessary to examine the principles which are to be applied in deciding the use to which statements in the Convention Debates may properly be put[289].
That is not to say, however, that the absence of an express power with respect to citizenship is not significant. If the plaintiff is right in submitting that any person born in Australia (other than the child of a foreign diplomat or occupying force) cannot fall within the expression "alien" when used in s 51(xix), there is a considerable fetter on the power of the federal Parliament to identify those who are to be treated, whether for domestic or international purposes, as nationals of Australia.
It must be noted that the powers to make laws with respect to immigration and emigration, and with respect to external affairs, may well be engaged in various ways in connexion with that general subject. So, for example, enacting a law to give effect to a treaty dealing with the subject of dual nationality would, on its face, appear to be a law with respect to external affairs. And it may be argued that a law providing for the removal of the dependent children of persons not permitted to immigrate to Australia is a valid law with respect to immigration. These questions need not be resolved now.
Whatever may be the outcome of debate about the validity of laws alleged to depend upon other powers given to the federal Parliament, it is central to the plaintiff's argument that the constitutional word "aliens" has a meaning which cannot include a person born within Australia. If that is the proper construction of "aliens" the result would be that, through the exercise of the naturalization aspect of the power conferred by s 51(xix), the class of persons born outside Australia who otherwise would be aliens can be altered or reduced by valid federal legislation, but the class of non‑aliens contains an irreducible core. Understood in that way, the naturalization and aliens power would provide a one‑way street: empowering legislation permitting persons to become non‑aliens but not empowering legislation that would affect the status of a person born in Australia, regardless of that person's ties to other sovereign powers.

[233]

These reasons have hitherto focused on the meaning to be given to the word "aliens". It is necessary to recall, however, that the power is to make laws with respect to "naturalization and aliens". The power to make laws with respect to naturalization plainly extends to making a law prescribing the circumstances in which, and the procedures by which, an alien ceases to hold that status and becomes "naturalized".
Argument in the present matter proceeded on the footing that the power also extends to making a law identifying the circumstances in which, and the procedures by which, a person who is not an alien may sever the ties of allegiance to Australia. (We leave aside any examination of what assumptions may be implicit in describing that as renouncing citizenship, renouncing allegiance, or ceasing to be a national of Australia.) Given the state of British law at the time of federation, and in particular the provisions of the Naturalization Act 1870 permitting renunciation of allegiance[290], it would be surprising if the power with respect to naturalization and aliens did not extend this far. But, if the power extends to regulating renunciation of allegiance, the power extends, at least in this respect, to altering the criteria which are to determine whether the necessary connexion between the individual and (to personify the concept) the Crown exists. Yet it is central to the plaintiff's case that, at least in the case of a person born in Australia, this criterion of connexion is to be unalterable. That is, it is central to the plaintiff's case that the status flowing from birth within Australia cannot be altered except at the will of the individual, but then only if and to the extent that the Parliament permits the individual to take that step.
This understanding of the power treats the subject‑matter (whether it is described as alienage, nationality, or citizenship) as a status describing a bilateral relationship (between sovereign power and individual) which is a status alterable only by the unilateral act of the person whose status is in issue. That one‑sided understanding of the power sits uncomfortably with any notion of allegiance that is bilateral. In particular, it is a view of the power that presents great difficulty in accommodating political changes like the changes in the relationship between the United Kingdom and Australia since federation, or the changes in relationship between Australia and what now is the Independent State of Papua New Guinea.

[234]

The plaintiff alleges that because a person in her circumstances would have fallen outside the class identified by British law in 1901 as "aliens" the federal Parliament has no power, under the naturalization and aliens power, to make a law, the application of which to the plaintiff depends, as s 198 of the Migration Act does in its operation with respect to "non‑citizens", upon her parents not being natural‑born or naturalized citizens of Australia. Identification of membership of the class described as "aliens" in 1901 depended in Britain not only upon common law rules, but also upon the application of particular statutory modifications of those rules. To say, then, as the plaintiff does, that "aliens" is a word that had an accepted and fixed legal meaning in 1901 would be accurate only if it were to be understood as saying no more than that resort to the then applicable law in Britain would have revealed whether or not an individual fell within the reach of that term.
To understand the constitutional reference to "aliens" as confined to those who, in 1901, by then existing British law, would have been treated by a British court as an alien would be to confine the meaning of the word too narrowly. It would be to give meaning to the word by listing those to whom it could then have been applied rather than by identifying the characteristics of the legal status to which the word refers. The central characteristic of that status is, and always has been, owing obligations ("allegiance") to a sovereign power other than the sovereign power in question (here Australia). That definition of the status of alienage focuses on what it is that gives a person the status: owing obligations to another sovereign power. It does not seek to define the status, as the plaintiff sought to submit, by pointing to what is said to take a person outside its reach.
That owing obligations to a sovereign power other than Australia is the central characteristic of what is meant by "aliens" can be illustrated by reference to the law that had developed about enemy aliens. For most, if not all, practical purposes, by 1900 friendly aliens were "treated in reference to civil rights as if they were British subjects"[291]. The position with enemy aliens was different.
An enemy alien not present in Britain and under the protection and by permission of the Crown had no civil rights or privileges[292] and could maintain no real or personal action in the courts[293]. In 1802 it was held[294] that whether a person was barred from maintaining a suit on the ground of being an enemy alien depended upon that person's place of residence or business, not upon whether the person was a natural‑born subject of the Crown. This rule invited attention to the obligations that the person owed as a result of residing and doing business in the country concerned. As Lord Lindley later said[295], "when considering questions arising with an alien enemy, it is not the nationality of a person, but his place of business during war that is important"[296]. Just as an alien friend resident in Britain owed a temporary and local allegiance to the Crown, so too the British subject, voluntarily resident in the territory of a nation at war with Britain, came under obligations to the country of residence of a kind sufficient to classify that person as an enemy alien. Those obligations were voluntarily assumed by choosing to reside in the enemy territory. The obligations which friendly aliens owe to their respective sovereign powers may not be assumed voluntarily. But what is important, as the case of the British subject voluntarily resident in an enemy State reveals, is that each owes obligations (allegiance) to another sovereign power. Owing allegiance (even temporary and local allegiance) to a sovereign power other than the Crown brought the person within the concept of alienage.
The previous decisions of the Court do not require the conclusion that those born within Australia who, having foreign nationality by descent, owe obligations to a sovereign power other than Australia are beyond the reach of the naturalization and aliens power. Observations in Potter v Minahan[297], a case ultimately about the meaning of "immigrant" in a statute, concerning the consequences of birth in Australia were not directed to the present problem, and took no account of the question whether the defendant owed allegiance to any foreign power[298]. In Pochi[299], Gibbs CJ said that Parliament could "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". Mr Pochi met all three of these conditions. It would be wrong, however, to take what was said by Gibbs CJ as necessarily treating a person born in Australia as beyond the reach of the aliens power. That question did not arise and was not decided in Pochi.
Nor has the question arisen since. Thus, although references may be found, for example, in Patterson[300] to "[b]irth within the sovereign's territories [being] the criterion by which the common law distinguished the subject of the sovereign from the alien" it is to be recalled that Patterson, Te[301] and Shaw[302] all concerned the status of persons born outside Australia. The status of those born within Australia did not fall for decision in those cases.
Rather, the meaning of "aliens" was conveniently described in the joint reasons of six members of the Court in Nolan v Minister for Immigration and Ethnic Affairs[303] where it was said that "alien" "[u]sed as a descriptive word to describe a person's lack of relationship with a country ... means, as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state'[304]". It was common ground that the plaintiff is a citizen of India. She is, therefore, a citizen of a foreign state. She is a person within the naturalization and aliens power.

[238]

Before the passage of the Nationality and Citizenship Act 1948 (Cth), later renamed the Citizenship Act 1948 (Cth) ("the Citizenship Act"), the concept of nationality within Australia was substantially subsumed, so far as the law was concerned, in that generally operating throughout the British Empire[313]. Australians were identified as having the status of "British subject"[314]. Following the introduction of the statutory concept of citizenship[315], the status of "British subject" was retained until 1 May 1987, alongside that of "Australian citizen"[316]. The Citizenship Act from 1948 provided that a person born in Australia was an Australian citizen, provided that his or her father (later "parent") was not a foreign diplomat or enemy alien, in the latter case where the birth occurred in a place at the time under occupation by the enemy[317]. These notions had particular meanings[318]. In substance, the original scheme of the Citizenship Act was designed to reflect the common law.
In 1986, the Citizenship Act was changed to introduce one of the provisions, the validity of which as it affected the plaintiff was initially challenged in these proceedings. Section 10 of the Citizenship Act was amended to provide that a person born in Australia after 20 August 1986 became an Australian citizen by virtue of such birth if, and only if, a parent of the person was at the time of the person's birth an Australian citizen or permanent resident[319] or "the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia"[320]. The change to the Citizenship Act removed the former statutory exception in the case of a child of foreign diplomats[321]. However, the exception for a child of an enemy alien was maintained[322]. Special provision exists in relation to a child found abandoned in Australia[323] and for a child born in Australia to persons who are stateless[324]. There is no other special provision for a child who is stateless according to the municipal law of the country of the nationality of her parents and according to Australian law.
By s 198 of the Migration Act, provision is made for the removal from Australia "as soon as reasonably practicable" of an "unlawful non-citizen". Clearly, this provision is intended to be read with the provisions of the Citizenship Act defining who is a "citizen" of Australia. In terms of the latter, the plaintiff is not an Australian citizen despite her birth in Australia. This is so because she does not satisfy either of the additional conditions of citizenship stated in the Citizenship Act, s 10(2).
Although it appeared that, pending the resolution of the parents' proceedings in the courts, the plaintiff may have been entitled to a "visa" preventing her deportation as an "unlawful non-citizen", the plaintiff defensively sought protection against the possibility of involuntary removal. She sought clarification of her status. In argument, her counsel accepted that she was not a "citizen" of Australia within that statutory concept as defined by the Citizenship Act[325]. However, he contended that neither was she an "alien". As such, whether as a "subject of the Queen"[326] or simply as a non-"alien" within the Constitution, born in Australia, she was not liable to be removed from the country involuntarily. Whatever the Citizenship Act or the Migration Act provided, the plaintiff claimed protection by appeal to a higher law, namely the Constitution, and the limited powers that it affords to the Federal Parliament to enact a law for the removal from the Commonwealth of a person like herself.
The plaintiff's only experience of a country, since her birth, has been of Australia. Initially, I inclined to the view that she was not an "alien" in terms of the Constitution and could not be made so involuntarily (nor otherwise rendered liable to deportation) pursuant to valid federal law. However, ultimately, I have reached the opposite conclusion. I will explain the arguments upon which the plaintiff relied, for they are not without persuasive force. But I will then explain the more persuasive reasons that bring me to the contrary result.

[239]

Constitutional text and citizenship: The starting point for the plaintiff's arguments was that the Constitution contains no express authority to make laws with respect to citizenship, and specifically for depriving nationality (called "citizenship") from a "natural born" Australian, that is, someone born on Australian soil.
The word "citizen" appears in the Constitution. It does so by way of contrast to "subject"[327] and apparently by way of contrast to the stated obligation that every member of the House of Representatives[328] and the Senate[329] was obliged to be "a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State"[330]. This latter provision, together with a protection expressed for the rights of residents in different States in terms of their position as a "subject of the Queen"[331], both still in force, make it clear that the nationality status, and the only such status, envisaged at the time the Constitution was made, was that of British subject. Considerations of history and politics at that time confirm this view.
According to the plaintiff, even if this interpretation of the Constitution seems old-fashioned, or anomalous to modern eyes (or to eyes fixed on the present federal statute book)[332], it was the only such status provided in the Constitution. On this argument, no invocation of other legislative powers, dealing in general terms with other subject matters, nor of the incidental power afforded by or under the Constitution[333], could permit the taking away of the one form of nationality for which the Constitution makes express provision. Even if it seemed anomalous to some, it was the duty of the Court to give effect to it, for its source was the express provision of the constitutional text. Alteration of that text was not the province of the Court but of the electors in accordance with the provisions of the Constitution governing formal amendment[334].
Birthright and the Constitution: The plaintiff elaborated this idea by reference to what she said was the "core" concept of nationality accepted in the common law at the time the Australian Constitution was adopted and long before[335]. This was nationality by birthright ("jus soli", literally "right of the soil"). As Professor Pryles puts it[336]:

[245]

This was not simply local obedience, of a transient kind attaching to those temporarily within the Crown's dominions[341]. Such temporary allegiance was to be distinguished from that with which this case was concerned. According to the plaintiff, the constitutional text made it clear that nationality contained an enduring notion of allegiance to the monarch. When the Australian Constitution referred to the matter, it did so reflecting the long-established rule of the common law. Other countries might since have changed their law of nationality, but, according to the plaintiff, the text of the Australian Constitution demanded continued fidelity to the principle of nationality as a birthright.
Constitutional role of the Crown: In support of this view of nationality, in the text of the Australian Constitution, the plaintiff pointed to the centrality of the role of the Crown (concededly now personified in the role of the Queen as Queen of Australia) throughout the text of the Constitution.
From the opening words of the Preamble declaring the Commonwealth to be a federal polity "under the Crown" to the scheduled oath and affirmation of officers appearing at the end of the text (providing for a promise to be "faithful and bear true allegiance" to the monarch) the Constitution reflects a conception of constitutional monarchy. Such a system might be changed in constitutional ways. But whilst it endures, so the plaintiff submitted, it preserves the reciprocal relationship between the Queen of Australia and the people of the Commonwealth who owe her allegiance. Whatever changes statutes may introduce, the Constitution, according to this argument, remained grounded in a traditional view of Australian nationality based on the idea of personal allegiance to the monarch as provided in the Constitution.
To those who complained about the feudal history lying at the heart of this birthright idea, the plaintiff simply pointed to the character of the Constitution. Until the text was validly changed, she argued, it was binding on "the courts, judges, and people of every State and of every part of the Commonwealth"[342]. The birthright principle, according to the plaintiff, was subject to well-settled exceptions recognised in the common law at the time of the Constitution's making[343]. These extended to a child born in the Crown's dominions to a foreign monarch; to an accredited diplomat; or to an enemy alien[344]. Furthermore, it was subject to the extensions established by imperial statutes before 1901, including the recognition by statute, enacted as early as 1351, of the nationality of children born abroad to English parents who were entitled to be considered as subjects from birth, despite being born outside the kingdom[345].
Save for these few exceptions, well established when the Constitution was made and reflected in its textual references to "subject of the Queen", the plaintiff would admit to no power in the Parliament to alter such "core" constitutional notions. They were part of the fixed connotation of the idea of Australian nationality. No meaning could be given to any other constitutional word, such as "alien", that contradicted that connotation[346]. To attempt, by statute, to vary the meaning of "alien" from its essential connotation would be to attempt to change the "bedrock of principle" upon which the Constitution was founded[347].
Convention debates: To strengthen these arguments, the plaintiff invoked the course of the debates at the Constitutional Conventions which substantially determined the text of the Constitution endorsed at the pre-Federation referenda[348].
At the third session of the Conventions (Melbourne, 1898) Dr John Quick argued that the Constitution should[349]:

[248]

In this way, the notion of "birthright" was, according to the plaintiff, entrenched in the conception of nationality adopted by the Constitution. To this extent, the plaintiff argued that the history of its drafting confirmed the inferences to be drawn from the language of its text. Any change belonged not to the Parliament or to courts but to the people of the Commonwealth as electors.
Aliens and statutory citizens: The plaintiff acknowledged that the Citizenship Act had made particular provisions in relation to the status of citizenship. However, lacking an express constitutional source, this status was "entirely statutory"[352]. Although there were judicial suggestions of a dichotomy between citizenship and alienage[353], the plaintiff submitted that such suggestions were fundamentally inconsistent with the constitutional text. She pointed to numerous observations of the Court to the effect that the Parliament could not declare anyone it wished to be an "alien"[354]. By this logic, the Parliament could not, by adopting a statutory definition of citizenship, and attaching powers of deportation to those not conforming, take away rights that attached by the Constitution to the status of non-"alien" or a "subject of the Queen".
It was thus possible, according to the plaintiff, that somewhere between persons who were, and were not, citizens according to statute, lay an intermediate category of non-citizen non-aliens. This possibility was inherent in the deliberate omission from the Constitution of a provision to empower the Parliament to make laws on citizenship. It might be hoped that the clarification of the meaning of "alien" (and hence of the status of non-aliens) would lead promptly to federal legislation to regularise this intermediate class. But if it did not, it would remain for this Court to defend non-aliens from exclusion from the polity of the Commonwealth and from ministerial deportation only because they were, in terms of statute, "non-citizens".
Judicial references to birth: In proof of the deeply entrenched notion of a "birthright", deriving from birth on Australian soil, the plaintiff pointed to numerous judicial observations about the constitutional idea of alienage in terms excluding persons born in Australia[355]. It was conceded that these references were not essential to the decisions then in question. In none of the cases was the person concerned born in Australia. The problem now presenting was therefore not specifically addressed.
Nevertheless, the plaintiff submitted that the idea of "birthright" ran very deep in the nationality notions of English-speaking democracies. At least it did so in settler societies. Thus, to this day, in the United States of America[356], Canada[357] and New Zealand[358], birth on the soil of each country remains sufficient to attract the local right of citizenship or nationality. Although since 1981, this has been changed by statute in the United Kingdom[359], along lines not dissimilar to those now appearing in the Citizenship Act, s 10(2), the plaintiff asserted that such change was irrelevant. Although the United Kingdom was subject to the obligations of the European Convention for the Protection of Human Rights and Fundamental Freedoms[360] and now to the Human Rights Act 1998 (UK), its Parliament was not subject to a written constitution reflecting notions of nationality formed in earlier times. It could change such notions as it pleased whereas, so the plaintiff said, the Federal Parliament in Australia could not. For a change to be effected in Australia, the plaintiff argued, it was necessary to contemplate formal constitutional amendment such as has recently been adopted in the Republic of Ireland to abolish express birthright entitlements[361] formerly appearing[362].
Practical considerations: The plaintiff denied that the arguments that she advanced, defensive of her status, caused any significant practical problem for the operation of the Australian Constitution. Her counsel submitted that the fact that at her birth, by Indian law, she enjoyed the status of a citizen of India was irrelevant. By inference, if the amendments to the Citizenship Act 1955 (India) are in force, the same argument would apply to any present right of the plaintiff to Indian citizenship by registration of her birth or by the exercise of administrative discretion. According to the plaintiff, it remained for this Court to determine whether she had rights to Australian nationality in accordance with Australia's Constitution and laws. Such rights could not be governed by, nor could they depend upon, the law of India. The earlier approach of international law generally unfavourable to dual nationality[363] had, in any case, lately given way to numerous instances of dual citizenship. This movement is now reflected in both Australian and Indian citizenship legislation[364].
The plaintiff conceded that the mere fact that she might have rights as a non-"alien" to nationality or other status in Australia would not assure her parents of a right to remain in this country[365]. Although the plaintiff's rights as a non-alien, who could not be deported involuntarily, would require consideration by officials deciding whether or not to deport her parents[366], the latter's legal entitlements were separate from her own. Even if, as a matter of practicality, the plaintiff departed with her parents and brother (if, as aliens, they were removed from Australia during her minority), her constitutional "birthright" might later be claimed if she were to seek to return to Australia. The plaintiff urged the consideration of her case in accordance with her rights conforming to the Constitution, separate from those of her parents. She was entitled to point to the fact that the number of individuals in her position was hardly a flood. An official report in 1986, commenting on the amendment to s 10(2) of the Citizenship Act proposed at the time, suggested that the number affected was extremely small[367].
Dangers of statutory definition: The plaintiff also pointed to what she said was the danger of opening up departures from the birthright nationality of persons born on Australian soil. She referred, fairly, to the sorry history of the deprivation of nationality rights in a number of countries in recent, and not so recent, years[368]. Once the Parliament was afforded the power to provide for the deportation ("removal") of persons born in Australia, it was impossible, according to the plaintiff, to draw an incontestable line that would prevent others, universally hitherto regarded as Australians, from being defined out of Australian nationality by legislation and subjected to the risk of removal. Like concerns have been voiced in this Court in Re Patterson; Ex parte Taylor[369], Re Minister for Immigration and Multicultural Affairs; Ex parte Te[370] and Shaw v Minister for Immigration and Multicultural Affairs[371].
The plaintiff rejected assurances given for the Commonwealth suggesting that children born in Australia, one of whose parents was an Australian citizen, could not possibly be "removed" by valid legislation against their will[372]. She submitted that the history of ethnic prejudice in many countries necessitated an attitude of high vigilance to any interpretation of the Constitution that would enlarge governmental powers of expulsion by redefining notions of citizenship, alienage and nationality. Maintenance of the principle accepted at the time when the Constitution was made, defensive of nationality as "birthright", was the one stable and certain means of preventing legislative and administrative misuse of the power of expulsion[373]. On this footing alone, the plaintiff argued, a heavy burden of justifying a change in the constitutional notion of alienage rested on those who propounded it.
The plaintiff also submitted that an instance of the arbitrariness of statutory definitions was already to be seen in the adoption of the criteria expressed for citizenship in s 10(2) of the Citizenship Act. If the Parliament could provide, alternatively, that one parent of a person born in Australia must be an Australian citizen or permanent resident[374], it could, by amendment, provide that additionally a parent, or both parents or grandparents and possibly great-grandparents had themselves to have been Australian citizens. Similarly, if the Parliament could provide, alternatively, that a person claiming citizenship, although born in Australia, must have been "ordinarily resident" in the country throughout a period of ten years, it could abolish that alternative. It could increase the precondition of lawful residence from ten years to twenty, fifty or even more years and narrow still further the notion of "ordinarily resident".
According to the plaintiff, these were the dangers of shifting from the bedrock constitutional notion of Australian nationality by birthright and permitting the Parliament, contrary to the decision of the delegates at the Conventions when the Constitution was adopted, to substitute its views of nationality that might reflect passing prejudices not present in the objective common law doctrine of birthright reflected in the constitutional text.
I acknowledge the power of the plaintiff's arguments. I also confess to sympathy for the plaintiff's plight as a young girl who was born in Australia and who has been educated here and has known no other country. If I were a legislator, I would not favour a law depriving her of Australian nationality and providing for her involuntary removal. However, my function is to give meaning to constitutional concepts. I must do so in a way that is consistent with my notion of how the Constitution must be interpreted when it refers to a word such as "aliens". For me, that word, like every other word in the Constitution, is not frozen in whatever meaning it may have had in 1901. Thus, for me, this case is primarily about the proper approach to constitutional construction.

[249]

The parliamentary power over "aliens"

Approach to constitutional interpretation: The starting point for resolving the primary issue in this case is the approach that should be taken to construing the legislative powers afforded to the Federal Parliament by the Constitution, primarily the power to make laws with respect to "aliens".
For the reasons explained by all members of this Court in Grain Pool of WA v The Commonwealth[375], it is inconsistent with the function of constitutional interpretation to give the text "the same meaning and intent with which [the Constitution] spoke when it came from the hands of its framers, and was voted on and adopted by the people"[376]. Those were the words of Taney CJ in the unfortunate decision of the Supreme Court of the United States in Dred Scott v Sandford[377] which concerned the citizenship of people in the United States originally of African descent.
From its earliest days[378], and throughout its history[379], this Court has ordinarily observed[380] a different approach. It is one that recognises that, of its nature, a national constitution must operate "indefinitely, and from age to age, [affording] authority to the Federal Parliament to make laws responding to different times and changing needs"[381].
Regard may certainly be had to the framers' intentions, as in affording legislative power with respect to "naturalization and aliens"[382]. However, whilst the task of interpretation remains anchored to the text of the Constitution, the ambit of the power is not limited by the wishes, expectations or imagination of the framers. They did not intend, nor did they enjoy the power, to impose their wishes and understanding of the text upon later generations of Australians[383]. Intention is a fiction often used in explaining contested questions of interpretation. It is an objective, not subjective concept[384].
In elucidating its meaning, different judges of this Court have made different use of the understandings of the framers and of the constitutional text, viewed from the perspective of 1901[385]. All accept that these are relevant considerations. None pretends that they are the only relevant factors. No clearer instance of the capacity of the constitutional text to accommodate radical changes in the world, and in the nation, can be seen than in Sue v Hill[386]. There can be little doubt that, at the Conventions and in 1901, the reference in the Constitution[387] to the disqualification from election to the Federal Parliament of "a subject or a citizen … of a foreign power" would not have been understood to include disqualification of a subject or citizen of the United Kingdom. Quite the contrary. Yet by 1999 this Court concluded that it did. Such had been the change of the world to which the Constitution speaks and in which its text must now operate and be understood.
It follows that the legislative power afforded to the Parliament to make laws with respect to "aliens" is capable of application to a larger, contemporary, condition of things beyond what might have been the generally accepted meaning of the word at the time of Federation. Observance of a consistency of approach requires that this Court construe this power with all the generality that the words used in the Constitution admit, as those words are understood today[388]. This does not mean that the meaning of the word is wholly open-ended. Or that the meaning is entirely a matter for the Parliament to determine. The ultimate responsibility of expounding the meaning of a constitutional word belongs to this Court. However, the notion that the meaning of such a word or phrase is fixed forever by reference to understandings that existed in 1901 is not the accepted constitutional doctrine in Australia.
Dual theories available: Once the foregoing approach is adopted it must be acknowledged that, even in 1901, there were two major legal theories concerning the legal status of "aliens", in the sense of "belonging to" another place or person[389].
The birthright or jus soli theory was traditional at that time in common law countries. However, in countries of the civil law tradition, the derived nationality or jus sanguinis ("right of blood") usually recognised that membership of a nation passed by descent[390]. Given the existence of these two legal systems, vying for acceptance amongst the nations of the world in 1901, it is unconvincing to suggest that the Federal Parliament in Australia was forever to be limited to the approach of birthright.
Why could the Parliament not adopt, wholly or in part, elements of the alternative legal approach to the issue of alienage accepted by many legal systems of the world? After all, each approach was an endeavour to identify the feature of a relationship between the individual and a nation on the basis of which loyalty and membership could generally be imputed and demanded[391]. Further, the common law rule of birthright had already admitted its own exceptions, namely for the children of a foreign monarch, diplomats and enemy aliens. Why, of its nature, could more exceptions never develop around the notion of "aliens"? From medieval times, the English Parliament provided particular derogations from birthright in favour of the principle of descent. Why, as a matter of constitutional principle, should further exceptions be forbidden to the Australian Parliament[392]? Why should it be forbidden in the absence of a clear indication that such was the purpose of those who made the Constitution and designed its basic notions[393]?
In the nineteenth century, in the United Kingdom, enquiries had been launched relating to the need to modify the birthright rule[394]. If this was in the contemplation of the generation that adopted the Constitution, why did the use of the word "aliens" forbid any further movement if later generations were convinced that movement was warranted? Within limits set by the unchanging, essential elements of the word "aliens", it has been conventional in our constitutional law to acknowledge a large power on the part of the Parliament to give meaning to the language of the Constitution, subject always to consideration by the courts, which, in this respect, have the last say[395].
Changes in operation: One functional reason for avoiding a rigid approach to the meaning of a word like "aliens" lies in changing perceptions of what the word means and changing circumstances in which the word must operate.
Alienage is a status. Of their nature, notions of status tend to change over time, especially in periods of rapid social evolution such as the last century witnessed. The global circumstances of alienage have also changed. The word must respond to the disappearance from the Australian context of the British Empire. It must respond to the advent of aviation and other modes of rapid transport that make possible, in ways unthinkable in 1901, adventitious arrivals of parents, with confinement and birth arranged within the receiving country. The word should also be capable of adapting to the circumstances involving large scale global immigration and contested claims of asylum that have replaced the British settler migration to Australia of earlier times.
Because the Constitution, of its function and character, adapts to such changes[396], there is no reason why the word "aliens" should not be capable of responding to such new circumstances. There is every reason why it should[397].
International law: International law has long recognised, and still recognises, the right of each nation state to determine its own nationality laws and principles. As a general rule, questions of nationality fall within the domestic jurisdiction of each nation state[398]. Consequently, international law recognises nationality by birthright, by descent and by variants of the two systems. Thus, the interpretation of the Constitution urged by the Commonwealth would involve no relevant inconsistency with international law[399]. Further, since international law permits dual nationality[400], it would not contravene international law for Australia's legislation to lead to the possibility that a person may become capable of obtaining nationality in two states.
Because the Constitution must operate in the environment of international law, and because the general notion of alienage adapts to that environment, it would be astonishing if, without clearer language, Australia's constitutional power to enact federal legislation with respect to "aliens", as broadly defined, were closed off and confined, in this respect, to specific nineteenth century notions that have been altered in several countries where they previously prevailed[401].
The United States model: This last point is also reinforced by recalling that the Constitutional Conventions that drafted the provision including the legislative power with respect to "aliens" had before them a model, and a text, that could have been adopted to provide the nationality rights of "natural-born" Australians but was not.
By the Fourteenth Amendment to the United States Constitution[402], it is expressly provided that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside". That provision was adopted in the United States of America in 1868. Although there was specific debate in the Australian Conventions of the 1890s about notions of nationality and citizenship, the Australian Constitution did not enshrine concepts similar to those then so recently adopted in the United States. Instead, it left the legal regulation of alienage (and of its counterpart, Australian nationality) to the Federal Parliament armed with relevant legislative powers expressed in terms of great generality. Deliberately, it omitted an express guarantee similar to that adopted in the United States.
It would be contrary to the normal canons of constitutional interpretation, for this Court now to insert an equivalent guarantee as implicit in the word "aliens" which the Founders refrained from expressing.
The Crown in the Constitution: In response to the suggestion that the role of the Crown in the Constitution necessarily endorsed a type of feudal notion of allegiance, subservience and duty implicit in the approach of birthright to nationality[403], there are many answers.
From the start, the relationship with the Crown in Australia has been a comparatively light burden, if burden at all. It was freely adopted and retained in the Constitution. It has adapted in its Antipodean environment to the needs of this country[404]. The adaptation of the Constitution to the practical and statutory change in the position of the Queen as Queen of Australia has been recognised in many cases[405]. These cases, in turn, demonstrate the capacity of the Constitution to move with international and national realities[406].
Constitutional notions of membership of the Australian community, and of who constitute the "people of the Commonwealth", have kept pace with these changes[407]. It is unrealistic, indeed highly artificial, to conceive of such membership today in feudal terms. The constitutional text does not require it. Legal principle and historical independence deny it. By parity of reasoning, the word "aliens" adapts as the counterpart to modern notions of Australian nationality. These changes permit enlargement of the federal power to make laws with respect to "aliens" beyond that which would generally have been accepted at the time the Constitution came into force.
Consistency with recent decisions: It is also desirable that the decision of this Court in this case should take into account, and conform to, the course of recent decisions concerned with the "aliens" power. A minority of this Court favoured a view that a residual category existed of non-citizen, non-alien British subject[408]. That view has not prevailed. Yet even within the minority view[409], it was accepted that, by 1986, the position of British subjects, accepted by the minority as Australian nationals without the need of citizenship, had become anomalous and must be taken to have terminated. The majority regarded the termination as happening decades earlier. On both views, by a given time, non-citizens in Australia were treated as "aliens" although they might be "subjects of the Queen" in some other dominion of the Crown.
The recognition of this change in the notion of alienage is only consistent with an acceptance of the fact that the ambit of the word "aliens" was not closed at the time of Federation. It was not a word devoid of meaning. But neither was its meaning fixed by what the word would have meant to lawyers, or the laity, in 1901 or even 1980. Addressing as it does a status, defined by reference to the relationship between the Australian people and each other as well as with the people of the rest of the world, it is inevitable that geo-political, technological and other developments will have an impact on the contemporary understanding of the meaning of "aliens" and that appreciation of the meaning of that word will change over time.
Dealing with abuse: Given recent history in many parts of the world, the dangers of a misuse of a legislative power over "aliens", referred to by the plaintiff, cannot be lightly dismissed. Nor can concessions made for the Commonwealth in the present case[410] necessarily be taken as binding future governments or parliaments. Recent decisions show how the Executive Government sometimes presses forward extensions of its powers, expanding past exceptions into new and controversial constitutional doctrine[411].
Whilst it is true that Australian constitutional interpretation cannot take place in an environment in which horrible and extreme instances are imagined to frighten the decision-maker[412], it is obviously useful to test propounded interpretations against their possible consequences[413]. Normally, if the consequences may be seriously inimical to freedom, that interpretation will not be imputed to the Constitution of the Commonwealth of Australia. At least, this will not happen unless the language is very clear[414].
Should some future Parliament attempt to push the "aliens" power into extreme instances, so as to deem a person born in Australia an "alien" despite parental or grand-parental links of descent and residence, this Court can be trusted to draw the necessary constitutional line. Doing so is inherent in the task of constitutional interpretation. To avoid such dangers, it is not necessary to embrace a rigid, and now outmoded, meaning of a contested constitutional word.
If the present case is taken as an instance, the operation of the provisions of s 10(2) on the plaintiff cannot be viewed as "extreme", whether tested against developments of alienage in our own law or in the law of other nations as recognised by international law.
Even if, as is theoretically possible, Australian law in combination with the nationality law of a child's parents left a child born in Australia a stateless person, this is an incident of the intersection of the two legal systems. It cannot limit or restrict the Australian head of legislative power, nor control its meaning. It might be a consideration affecting the right of removal[415] and the exercise of the powers of the Minister under the Migration Act. But it cannot impose an artificial construction on the Australian Constitution. To hold otherwise would be to subject this country's basic law to the chance provisions of the statute laws of other countries. That is obviously an unacceptable proposition.
The plaintiff's birth in Australia was an incident of her parents' resort to this country with her older brother. If the applicant's parents can establish an entitlement to a protection visa, that visa will extend to the plaintiff[416]. If they cannot, it is open to the Parliament to provide by statute, in effect, that her desire for Australian nationality under the Constitution must take its place with that of other would-be migrants. By our Constitution, she enjoys no separate Australian nationality, whether as a "subject of the Queen" or otherwise. Like any other temporary member of the community, she owes local allegiance whilst in Australia[417]. However, at this time, the Citizenship Act denies her Australian citizenship. That provision of the Citizenship Act is valid; based on the aliens power. In consequence, the Migration Act may make provision for her removal as an alien "non-citizen".

[251]

The plaintiff's parents were both born in Delhi, India, in 1969. Her brother, who is 10 years of age, was also born in Delhi. They are Indian citizens who entered and have remained in Australia since 22 April 1997.
The plaintiff was born in Australia on 5 February 1998 and has remained in this country with her parents and brother since that date.
On 9 July 1997, the plaintiff's father lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs, as it then was. The plaintiff's mother and brother were included in the application.
On 26 November 1997, a delegate of the second defendant Minister refused the application. The plaintiff's father sought a review by the Refugee Review Tribunal ("Tribunal") of the delegate's decision.
On 20 August 1998, the Tribunal affirmed the delegate's decision. On 24 April 2001, the plaintiff's father, mother and brother were joined as represented applicant parties to proceedings titled Lie v Refugee Review Tribunal and Ors and numbered S89 of 1999 ("the representative proceedings"), which were then pending in this Court.
On 29 May 2003, the plaintiff's father, mother and brother commenced proceedings in this Court pursuant to s 75(v) of the Constitution, seeking prerogative relief in respect of the Tribunal's decision. Pursuant to orders made by a Justice of this Court on 25 November 2002, the representative proceedings were remitted instanter to the Federal Court of Australia. They have not yet been resolved.
The plaintiff is a citizen of India by descent pursuant to s 4 of the Citizenship Act 1955 (India) which provided, at the time of her birth, that a person born outside of India on or after the commencement of the Citizenship (Amendment) Act 1992 (India) shall be a citizen of India if either of his or her parents is a citizen of India at the time of birth[420]. In December 2003, the Citizenship Act 1955 was amended by the Citizenship (Amendment) Act 2003 (India). As a result, the plaintiff's Indian citizenship may be lost if her parents do not register her birth at an Indian consulate within one year of the commencement of the Citizenship (Amendment) Act 2003[421].

[280]

There are compelling reasons why recourse to the debates is permissible and will usually be helpful. Courts and judges may speak of the changing meaning of language but in practice substantive linguistic change occurs very slowly, particularly in legal phraseology. When change does occur, it generally tends to relate to popular culture rather than to the expression of fundamental ideas, philosophies, principles and legal concepts. Judges should in my opinion be especially vigilant to recognise and eschew what is in substance a constitutional change under a false rubric of a perceived change in the meaning of a word, or an expression used in the Constitution. That power, to effect a Constitutional change, resides exclusively in the Australian people pursuant to s 128 of the Constitution and is not to be usurped by either the courts or the Parliament. In any event, I am not by any means persuaded that an actual change in the meaning of a word or a phrase, if and when it occurs, can justify a departure from its meaning at the time of Federation. The constitutional conservatism of the Australian people reflected in the failure of so many referenda[432] cannot justify a supposed antidote of judicial "progressivism". This is not to say that adherence to 19th century meanings which have become archaic will always be obligatory. But it is to say that instruments, including constitutional ones are still basically to be construed by reference to the intentions of their makers objectively ascertained. Examination of the circumstances which formed the background to the making of the Constitution assists in this examination. In my opinion Convention materials showing what the founders deliberately discarded may be especially illuminating in the same way as evidence of what parties to a contract deliberately excluded negates the implication of a term of a contract to the effect of what was excluded[433].
This approach is not inconsistent with recent authority of this Court, an example of which is Cheatle v The Queen[434]. There, recourse to legal history resulted in the attribution to the words "trial by jury" used in s 80 of the Constitution, a similar meaning to the one they bore in 1900 immediately before Federation[435]. It is true that an identical meaning might not have been able to be given to those words, for example, trial by [a] jury [as constituted in 1900] that is, [entirely by men], but the substance and the essence of the concept of trial by jury remain unchanged. The decision of this Court in Grain Pool of Western Australia v The Commonwealth[436] compels no different an approach. The special nature of the property rights with which the Court was concerned there, intellectual property, involving as it does innovation and its potential utility to humankind, necessarily looks to, and accepts, indeed embraces change, not so much in meaning as in scope. It would have been antithetical to this special nature to confine what was patentable, and therefore within the meaning of the term "patent" in the Constitution to the intellectual and prophetic horizons of 1900. Indeed it would have been absurd to do so and courts strive, in construing instruments, to avoid absurdities.

[309]

Parliament cannot define the scope of alienage for constitutional purposes. It was because of the risk that a power to define it presented, that the proposal of Dr Quick that the Constitution refer to and define "citizenship" foundered, and provoked the spirited opposition of Mr O'Connor[458] and Mr Symon[459] which carried the day.
It is necessary to say something about some of the defendants' other submissions. Correctly, they accept that Australian citizenship is a statutory concept[460], first established by the Nationality and Citizenship Act 1948 (Cth), and that there is no constitutional entitlement to "citizenship". The conclusion which they seek to draw from that however does not follow, that a person born in Australia will only become an Australian citizen by virtue of a statute conferring that status, if, as the defendants contend, only citizens [by statute] can have a status other than of alien. The argument is circular. It assumes, wrongly, that there is a constitutional power to define the constitutional term "alien" by an enactment, the effect of which, according to the defendants, is to define a "citizen" and to provide that a person who is not a citizen must in consequence be an alien. The Court's task of finding the meaning of s 51(xix) cannot be constrained by a legislative construct of the Parliament, the obverse of which, it is contended, is to supply it.
The fact that the acquisition of Australian citizenship has statutory consequences under several Commonwealth enactments[461] is not to the point. The defendants' next submission is substantially correct, that the statutory conferral of citizenship does not give rise to any direct rights or entitlements under the Constitution[462]. Nor can it however, define by exclusion, who is an alien. A person who is not an alien cannot possibly be enacted to be one, and cannot be treated by, or pursuant to an enactment for any purpose as if he or she is one.
It is not possible to give "citizen" a constitutional meaning except under and as required by s 44. Citizenship is not otherwise a term of necessarily fixed meaning. It may include more than one category of people. As Mr Symon pointed out during the Melbourne Convention[463]:

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