Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ; Deane J; Gaudron J; and McHugh J. They must now be taken as representing the view of the Court.'
32 In XYZ v The Commonwealth (2006) 80 ALJR 1036 the High Court considered the validity of provisions of the Crimes Act 1914 (Cth) which made it an offence for a person defined as an Australian citizen or a resident of Australia while outside Australia to engage in sexual intercourse with a person under 16 years of age, or to commit an act of indecency on a person under 16 years of age. By a majority of five to two, the Court held that the legislation was valid under the external affairs power. Of the majority, Gleeson CJ and Kirby J each wrote separate judgments and Gummow, Hayne and Crennan JJ prepared joint reasons. Callinan and Heydon JJ dissented.
33 Gleeson CJ referred to the plaintiff's argument to the effect that the external affairs power was limited to a power to make laws with respect to relations between Australia and other countries. He said that to accept that argument would involve overruling the decision in Polyukhovich.Gleeson CJ held that Polyukhovich had been correctly decided and he said (at [10]) (footnotes omitted):
'For this argument to succeed, it would be necessary for the Court to depart from the decision in Polyukhovich v The Commonwealth, and to decide that the construction placed upon s 51(xxix) by every member of the Court in that case was wrong. In my view, the Court, upon reconsideration, should hold that Polyukhovich was correctly decided insofar as the decision bears upon the question of construction that arises in this case. Insofar as the decision goes beyond that, and bears, for example, upon Ch III of the Constitution, it is not presently relevant and it is unnecessary and inappropriate to say anything further about it. There was a difference between the view of s 51(xxix) taken by Mason CJ, Deane J, Dawson J, Gaudron J and McHugh J, on the one hand, and the views of Brennan J and Toohey J on the other. That difference does not affect the point presently in issue. Polyukhovich held that the external affairs power covers, but is not limited to, the matter of Australia's relations with other countries. It also includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of, that is, external to, Australia. That conclusion represents the current doctrine of the Court on the external affairs power, and should be maintained because it is correct.'
34 Gummow, Hayne andCrennan JJ said (at [30]) that the modern doctrine of the scope of the power was as expressed by Dawson J in Polyukhovich (at 632).
35 Kirby J identified what he considered to be a number of difficulties with the 'geographical externality principle' and therefore put it to one side. He decided the case by reference to whether the laws were laws with respect to a 'matter of international concern' [66]-[117].
36 It is well established that the grant of legislative power with respect to external affairs, as with other heads of power, should be construed with all the generality that the words admit.
37 The issue before me is whether s 21A as extended by s 4(6)(a) is a law with respect to a person outside the geographical limits of Australia within the statement of principle referred to above. The respondent submitted that it clearly is because it operates with respect to a person not ordinarily resident in Australia. The applicant submits that it is not because the true character of the relevant sections is that they constitute a law with respect to the acquisition of property in Australia and they lack a sufficient element of 'externality' to bring them within the external affairs power. In fact, the applicant went further and submitted that the relevant sections did not constitute a law with respect to external affairs because they did not 'deal entirely with places, persons, matters or things which are external to Australia, but rather regulate conduct within Australia'.
38 There are two important aspects to s 21A(4) as extended by s 4(6)(a) and they are first, a natural person not ordinarily resident in Australia, and secondly, the acquisition of Australian urban land. The statutory definition of Australian urban land is land situated in Australia that is not used wholly and exclusively for carrying on a business of primary production. If those two matters are present then the Treasurer's power to make a divestiture order is enlivened if he or she is satisfied the acquisition is contrary to the national interest.
39 The statement by Dawson J in Polyukhovich refers, among other things, to persons outside the geographical limits of Australia.
40 Clearly, a person not ordinarily resident in Australia might come to Australia from time to time, but I do not think that that means the concept of not being ordinarily resident in Australia lacks an element of externality. To say that a person is not ordinarily resident in Australia means that ordinarily that person is outside the geographical limits of Australia.
41 It follows that one matter, namely, a person not ordinarily resident in Australia, is a matter geographically external to Australia and the other matter, namely, the acquisition of Australian urban land is a matter geographically internal to Australia.
42 The question which arises is whether s 21A(4) and s 4(6)(a) must relate only to matters external to the geographical limits of Australia in order to fall within the external affairs power. If so, this law would fail to meet that test because it only operates when conduct is carried out in Australia, namely, the acquisition of urban land in Australia. The applicant submitted that Polyukovich was authority for the proposition that to fall within the external affairs power a law must deal 'entirely' or 'wholly' with a place, person, matter or thing geographically external to Australia. She referred to the reasons for judgment of Dawson J (at 641) and Gaudron J (at 695). The law in Polyukovich did deal entirely or wholly with acts, matters and things geographically external to Australia and it was held to be within the external affairs power. Their Honours' observations are to be read in that context and they are not authority for the proposition that a law only falls within the external affairs power if it deals entirely or wholly with a place, person, matter or thing geographically external to Australia.
43 I do not think the mere fact that the law is only engaged if conduct occurs within Australia of itself disqualifies the law from being a law with respect to external affairs. There seems to be no reason to say that simply because the law also relates to conduct in Australia or produces a certain result or effect in Australia that it is not a law with respect to external affairs. I reject the applicant's submission that s 4(6)(a) is invalid because it does not deal entirely with places, persons, matters or things outside the geographical limits of Australia.
44 The applicant submits in the alternative that the relevant provisions are not a law with respect to external affairs because the element of geographical externality is insufficient and because the pith and substance of the relevant provisions is conduct in Australia.
45 The question raised by that submission is not an easy one. It requires a characterisation of the relevant provisions. In Polyukhovich, Deane J said (at 602):
'Whatever may have been the position before the emergence of Australia as a fully independent sovereign State, it should now be accepted that any law which can properly be characterized as a law with respect to any matter, thing or person occurring or situate outside Australia is a law with respect to "External affairs" for the purposes of s 51(xxix). In referring to "a law with respect to any matter ... occurring ... outside Australia", I intend to include, among other things, what Jacobs J described (see above) as "any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth". As has been mentioned, that broad view of the scope of the power conforms with settled principles of constitutional construction.'
46 The relevant provisions only operate in relation to a class of persons who are geographically external to Australia. I think this can be said even though the actual criterion is that the person is not ordinarily resident in Australia. They are the only persons affected by the relevant provisions. The location of the class of persons affected by the relevant provisions is an important characteristic of them, albeit that another feature of them is conduct within Australia, that is to say, the acquisition of Australian urban land. In my opinion, for the purposes of determining whether the relevant provisions are a law with respect to external affairs, it is sufficient that the relevant provisions apply only to a class of persons geographically external to Australia.
47 In my opinion, the relevant provisions are a valid exercise of the external affairs power.
48 Even if I am wrong, and the relevant provisions are not a valid exercise of the external affairs power, I am of the opinion that so much of s 4(6)(a) as applies to non-citizens is a valid exercise of the Federal Parliament's power to make laws with respect to aliens and that s 4(6)(a) can be read down accordingly.
49 In Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 Gleeson CJ, Gummow and Hayne JJ (Heydon J agreeing at 87 [190]) said (at 35[2]) (footnote omitted):
'The power conferred by s 51(xix) supports legislation determining those to whom is attributed the status of alien; the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons. On the other hand, by a law with respect to naturalisation, the Parliament may remove that status, absolutely or upon conditions. In this way, citizenship may be seen as the obverse of the status of alienage.'
50 In Cunliffe v The Commonwealth (1994) 182 CLR 272 (at 315-316) Brennan J (as he then was) made the following observations as to the aliens power (at 315-316) (footnotes omitted):
'The power to make laws with respect to aliens, unlike the majority of the powers conferred by s 51 of the Constitution, is not a power to make laws with respect to a function of government, a field of activity or a class of relationships: it is a power to make laws with respect to a class of persons. If, in its operation, a law affects a class of persons with respect to whom there is a power to make laws, the law may have the character of a law with respect to persons of that class. But it is neither necessary nor sufficient that the law should change, regulate or abolish the rights, duties, powers and privileges of the relevant class treated merely as members of the general public or of a substantially wider class than the class of persons who constitute the subject matter of the power. For example, a law which requires notification of symptoms of a disease after entry to Australia by aliens and citizens indifferently is not a law with respect to aliens - though it may be a law with respect to quarantine. But if and to the extent that the law discriminates between the public at large and the relevant class of persons (whether textually or in its operation), there is an indicium that the law is a law with respect to persons of that class. That indicium may suffice to give the law the character of a law with respect to persons of that class and, if the discrimination is in a matter peculiarly significant to that class, the law will bear that character. In this respect, the aliens power is similar to the corporations power considered in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd. In that case, s 45D(1)(b)(i) of the Trade Practices Act 1974 (Cth), which protected the businesses of trading corporations was held to be supported by s 51(xx) of the Constitution as a law with respect to trading corporations.'
51 A narrower view of the aliens power has been taken on occasion (see Gaudron J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 57) but I am satisfied that the views expressed by Brennan J in Cunliffe v Commonwealth (supra) are the principles binding on me. The applicant argued the matter by reference to those principles.
52 In my opinion s 4(6)(a) applies to natural persons who are citizens of Australia and those who are not. The applicant asked me to draw that conclusion and, in that context she referred me to regulation 3(k) of the Foreign Acquisitions and Takeovers Regulations 1989. That regulation was made under s 12A(8) of the Act and provides that the Act does not apply to an acquisition of Australian urban land by a foreign person who is an Australian citizen not ordinarily resident in Australia. The regulation cannot be used to construe the Act, but it is of no moment because, in my opinion, it is clear that s 4(6)(a) applies to both natural persons who are Australian citizens and those who are not.
53 I have no doubt that had s 4(6)(a) been expressed so as to apply only to natural persons who are not Australian citizens, or had it been drafted so as to deal separately with natural persons who are not Australian citizens, then the section insofar as it applied to non‑citizens would be a valid exercise of the aliens power. The question is whether s 4(6)(a) can be read down so as to apply only to non-citizens not ordinarily resident in Australia.
54 Section 15A of the Acts Interpretation Act 1901 (Cth) provides as follows:
'Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.'
55 I was referred to the authorities which have considered the circumstances in which a legislative provision which is partially invalid will be read down: Pidoto v The State of Victoria (1943) 68 CLR 87 per Latham CJ at 108-111; Victoria v The Commonwealth (supra) per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 501-503. But for s 5A there might have been some difficulties in the way of reading down s 4(6)(a) so that it applied only to non-citizens not ordinarily resident in Australia. For example, there would be the difficulty of a law expressed in general terms and arguably no clear guide as to Parliament's intention as to an appropriate limitation. However, I do not think that those types of difficulties arise here, because by providing in s 5A what is in effect a statutory statement or definition of non‑citizens who do and do not fall within the definition of natural persons caught by s 4(6)(a) the Federal Parliament has sufficiently revealed an intention that that subsection should operate in relation to non-citizens even if it is otherwise invalid. Section 4(6)(a) insofar as it applies to non-citizens is a valid exercise of the aliens power.
56 The applicant made reference to the Federal Parliament's power to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws (s 51(xxxi)). Initially, the applicant contended that ss 4(6) and 21A of the Act could not be justified by reference to this head of power because, first, the acquisition was not for any purpose in respect of which the Parliament had power to make laws, and secondly, the acquisition of property was not on just terms. At the hearing, counsel for the applicant said that he was prepared to concede for the purposes of the argument that if there was an acquisition of property it was on just terms. The respondent contends first that ss 4(6) and 21A stand outside the scope of s 51(xxxi) and, secondly, that in any event, there was no acquisition of property within the terms of s 51(xxxi). In my opinion, both of the respondent's submissions should be accepted.
57 Certain laws have been held to fall outside s 51(xxxi) and within another supporting head of power. Examples include laws which impose a fine or penalty or laws effecting or authorising seizure of the property of enemy aliens or the condemnation of prize. The test for determining if a law falls outside the scope of s 51(xxxi) has been variously stated. In Mutual Pools and Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 Brennan J said (at 179‑180):
'Although s 51(xxxi) abstracts from other heads of power the power of acquisition which that paragraph itself confers, it does not thereby abstract the power to prescribe the means appropriate and adapted to the achievement of an objective falling within another head of power where the acquisition of property without just terms is a necessary or characteristic feature of the means prescribed.