FEDERAL COURT OF AUSTRALIA

Long v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA  1422

CONSTITUTIONAL LAW – aliens – British subject – arrived in Australia 1975 – resided continuously since 1981 - absorbed into community – no longer immigrant – criminal record – cancellation of visa – detention – whether alien – whether cancellation and detention within constitutional limits upon statutory power

Judiciary Act 1903 (Cth) s 39B

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Migration Act 1958 (Cth) s 189, s 198, s 501

Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36 cited

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 cited

Re Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

Robtelmes v Brenan (1906) 4 CLR 395 cited

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 cited

Attorney-General for the Commonwealth v Ah Sheung (1907) 4 CLR 949 cited

China Ocean Shipping Co v South Australia (1979) 145 CLR 172 cited

Pochi v MacPhee (1982) 151 CLR 101 cited

Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 discussed

Re Patterson; Ex parte Taylor (2001) 182 ALR 657 discussed

Kenny v Minister for Immigration and Ethnic Affairs (1993) 115 ALR 75 cited

Commonwealth v Tasmania (1983) 158 CLR 1 cited

Koowarta v Bjelke-Petersen (1982) 153 CLR 168 cited

BRIAN LONG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO W61 OF 2002

FRENCH J

19 NOVEMBER 2002

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     Brian Long came to Australia from the United Kingdom as a child in 1975.  Although he has returned to England with his family on two occasions since then, he has lived continuously in Australia since 1981.  He has married here and had children.  But he never took out Australian citizenship.  Because of serious criminal offences for which he was convicted and sentenced to terms of imprisonment, the Minister for Immigration and Multicultural and Indigenous Affairs has cancelled his visa and he is now being detained as an unlawful non-citizen.  Long challenges the cancellation and his detention on the basis that they are beyond power because he is neither immigrant nor alien but a British subject who is part of the Australian community.  As will be seen, the sole question in this case is whether he is an alien and therefore within the reach of the powers which the Minister has exercised against him.

Factual History

2                     Brian Edward Long was born in Liverpool in the United Kingdom on 11 October 1963.  He is a citizen of the United Kingdom.  He came to Australia as an 11 year old on 24 March 1975 with his parents and three sisters and was granted a BF Transitional (Permanent) Visa.  The family returned to the United Kingdom in December 1975 and remained there until 21 March 1977 when they travelled back to Australia.  Long was then aged 13.  In June 1979, the family again returned to England, save for one of Long’s sisters who had married and remained in Western Australia. 

3                     After completing his schooling in England, Long wanted to return to Australia.  He persuaded his parents to let him come back and live with his sister.  He arrived back in Australia on 24 March 1981 and has resided in this country ever since.  He was then aged 17.  Some six months later, his parents made their final decision to live in Australia and returned with his two remaining sisters.  The family has resided in Western Australia since that time. 

4                     Following his return to Australia in March 1981, Long was determined to make it his permanent home.  He began work as Trades Assistant for a welder and did this for about a year.  He then worked as an apprentice roof carpenter for about six months and then as a roof carpenter for about four years until late 1985. 

5                     He had met his wife, Ann Long, in England in 1980.  She came to Western Australia on a visit in September 1981.  They decided they would marry and that she would become a permanent resident.  They married on 1 May 1983.  They have four children:

1.         Brian Anthony Long born on 5 February 1983

2.         Daniel James Long born on 1 June 1988

3.         Chelsea Maria Long born on 29 July 1990

4.         Elyce Tanika Long born on 28 April 2000

Long and his wife visited the United Kingdom on a holiday for about two months between 9 December 1986 and 10 February 1987.  He has not left Australia since his return in February 1987.   He has been enrolled on both State and Federal Electoral Rolls since he turned 18 and has voted in Federal and State elections, save for the times that he has served in prison.  

6                     Unfortunately, both as a juvenile and following his marriage, Long has been in trouble with the law.  Relevantly for present purposes he was sentenced on 5 November 1987 in the District Court of Western Australia on two counts of possession of heroin with intent to sell or supply.  On the first count he was sentenced to two years imprisonment and on the second to imprisonment for twelve months.  On 11 February 1992, he was convicted on six counts of the manufacture of heroin and given two years probation.  However, on 22 October 1992, he was sentenced to twelve months imprisonment on each of those counts concurrently for breaching his probation. On 28 March 1994, he was convicted of the offence of robbery while armed and in company.  He was sentenced in the Supreme Court of Western Australia to imprisonment for seven years.  On 7 July 2000, he was sentenced in the District Court on five counts of stealing and two counts of stealing a motor vehicle.  The combined cumulative and concurrent sentences amounted to a total of five years imprisonment. 

7                     These offences may be put into the perspective of his overall criminal history which is as follows:

“Date                          Conviction                              Sentence

Under 18 years of age

18.10.1977                  no MDL                                   12 mths probation

                                                                                    disq obtain MDL 3 mths

18.10.1977                  unauthorised driving of a       12 mths probation

                                    motor vehicle                          disq obtain MDL 3 mths

18.10.1977                  break and enter                       12 mths probation

18.10.1977                  break and enter and steal       18 mths probation

06.03.1979                  aiding a ward of the CWD      $200 fine

                                    to escape

Over 18 years of age

27.01.1983                  speeding 82/60km zone           $70 fine

04.03.1983                  cannabis smoked/used                        $30 fine

04.03.1983                  possess smoking implement    $20 fine

31.03.1983                  failing to wear seatbelt           $30 fine

02.09.1983                  no MDL                                   $50 fine

02.09.1983                  cannabis possess qty               $200 fine

                                    intent sell/supply                    

02.09.1983                  cannabis sell/supply                $100 fine

02.09.1983                  possess smoking implement    $100 fine

02.09.1983                  resist arrest                             $30 fine

03.11.1983                  break and enter and steal       $100 fine, $120

                                                                                    restitution

02.01.1985                  hinder police                           $100 fine

03.10.1985                  cannabis possess qty               $200 fine

03.10.1985                  possess smoking implement    $100 fine

06.05.1986                  receiving                                 $750 fine

05.11.1987                  heroin possess qty                   2 yrs imprisonment cum

                                    intent sell/supply                    

05.11.1987                  heroin sell/supply                    12 mths imprisonment

11.02.1992                  heroin manufacture (x 6)        2 yrs probation, 200 hrs

                                                                                    CSO

09.06.1992                  no MDL                                   $100 fine

31.08.1992                  cannabis possess qty               $350 fine

01.09.1992                  heroin manufacture                $500 fine

01.09.1992                  hinder police                           $200 fine

22.10.1992                  breach of probation (x 6)        12 mths imprisonment

                                                                                    each charge conc

28.03.1994                  robbery whilst armed in          7 yrs imprisonment

                                    company violent offence

04.08.1994                  contravene red traffic light     $120 fine

04.08.1994                  no MDL                                   $120 fine

10.04.1997                  no MDL                                   $200 fine susp, MDL disq

                                                                                    9 mths cum

23.12.1998                  cannabis cultivate                   $500 fine

18.06.1999                  breach of bail                          $300 fine

18.06.1999                  no MDL                                   $1000 fine, MDL disq

                                                                                    12 mths cum

18.06.1999                  false name and address           $250 fine, MDL disq

                                                                                    3 mths conc

01.07.1999                  stealing (x 2)                           4 mths imprisonment susp

                                                                                    for 18 mths

13.08.1999                  no MDL                                   6 mths imprisonment,

                                                                                    MDL disq 18 mths cum

13.08.1999                  false name and address           $100 fine

13.08.1999                  susp imp sentence                   6 mths imprisonment

                                    breached                                

09.11.1999                  careless driving                       $200 fine

09.11.1999                  failing to supply particulars    $200 fine

                                    after accident

09.11.1999                  no MDL                                   $100 fine

09.11.1999                  wilfully mislead a police

                                    officer                                      $400 fine

07.07.2000                  stealing a motor vehicle          2 yrs imprisonment

                                    (x 2)

07.07.2000                  stealing (x 5)                           1. 12 mths imprisonment

                                                                                    cum

                                                                                    2.2 yrs imprisonment cum

                                                                                    3-5. 2 yrs imprisonment

                                                                                    conc each charge”

8                     On 24 January 2002, the Minister for Immigration and Multicultural and Indigenous Affairs cancelled Long’s visa.  The decision is recorded at the end of a minute to the Minister from the Department dated 22 January 2002 and entitled “CONSIDERATION OF LIABILITY FOR CANCELLATION OF Brian Edward LONG’s VISA UNDER S 501(2) OF THE MIGRATION ACT 1958”.  The record of the Minister’s decision appears on p 16 of the Minute.  On that page he was offered a number of alternative decisions and the record of the decision made, disregarding deleted options, reads as follows:

“PART E:       DECISION

[59]  I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Brian Edward LONG’s comments, and have decided that:

…

(d)       I reasonably suspect that Mr Brian Edward LONG does not pass the character test and Mr Brian Edward LONG has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.

Phillip Ruddock

Minister for Immigration, Multicultural and Indigenous Affairs

Date: 24.1.02” 

History of these Proceedings

9                     On 22 February 2002, Long filed an application in this Court for an order of review of the Minister’s decision.  The application, evidently prepared and signed by him, disclosed no grounds of the application other than the words “UNJUST DEPORTATION”.  No relief was specified.  On 28 February 2002, Messrs. Christie & Strbac, Solicitors filed a notice that they were acting for Long in the matter.  A proposed substituted application was filed and a motion for interlocutory relief by way of a stay order restraining the Minister from removing Long from Australia.

10                  On 19 June 2002, Nicholson J dismissed an interlocutory motion seeking orders that the Minister be restrained from removing Long from Australia and from detaining him and that the decision to cancel his visa be stayed.  It is not necessary now to revisit the content and circumstances of that decision.  His Honour noted at the time of the decision that there was an undertaking not to remove Long from Australia pending final determination of his substituted application.  Further interlocutory proceedings were initiated, but in the event the substantive application was set down for hearing and was heard on 21 October 2002.  The application seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).  The Court has no jurisdiction under the later Act to review decisions under the Migration Act 1958 (Cth).

11                  The powers to cancel Long’s visa and to hold him in detention thereafter as an unlawful non-citizen derive from s 501 and ss 189 and 198 of the Migration Act  respectively.  They can only be exercised within constitutional limits.  The relevant constitutional limits are defined by the heads of constitutional power which support these provisions.  They are the powers of the Commonwealth, under the Constitution, to make laws with respect to:

“Naturalization and aliens (Constitution s 51(xix));

Immigration and emigration (Constitution s 51(xxvii)).”

It is common ground that Long has been absorbed into the Australian community so that he is no longer an immigrant – Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36.  It is not in dispute that the cancellation of his visa pursuant to s 501 and his detention pursuant to ss 189 and 198 of the Migration Act are valid only if he is an “alien” within the meaning of s 51(xix) of the Constitution.  He challenges the decision and his detention on the basis that he is not an alien. 

12                  Long also challenges the Minister’s decision on grounds which might loosely be described as traditional judicial review grounds.  It was conceded that review on any of these grounds is precluded by operation of the privative clause, s 474 of the Migration Act, as construed by the Full Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, in which decision that provision was also held to be constitutionally valid.   It was accepted that having regard to the decision of the Full Court, this Court could not determine these other grounds in Long’s favour.  Special leave to appeal to the High Court is being sought in respect of three of the five appeals dealt with in the NAAV case. The High Court has also reserved its judgment on an unrelated matter in which the constitutional validity of s 474 has come under challenge.

13                  The present application, heard on 21 October 2002, is formulated in the terms of an amended substituted application, substituted by order of Nicholson J on 4 April 2002.  The first ground of the application, which contends that Long is not an alien and therefore outside the limits of ministerial and official powers exercised against him was in the following terms:

“a)      In purporting to apply the provisions of s501 and by making his decision to cancel the Applicant’s BF Transitional (Permanent) Visa and in taking the Applicant into detention for the purposes and with the intention of removing the Applicant from Australia, the Respondent has acted unlawfully and beyond the powers of the Commonwealth.

Particulars

            i.          The Applicant was born in Great Britain on 11 October 1963 and at all material times has been a British subject and a citizen of the United Kingdom.

            ii.         The Applicant first arrived in Australia as a child on 24 March 1975 and has thereafter being (sic) a permanent resident of Australia, subject only to being absent from Australia between 29 December 1975 and 21 March 1977, between 22 June 1979 and 24 March 1981 and between 9 December 1986 and 10 February 1987.

            iii.        The Applicant has been absorbed into the Australian Community and is no longer a migrant to Australia.

            iv.        The Applicant is not and never has been “an alien” within the meaning of s 51(xix) in the Constitution.

            v.         The Commonwealth Parliament has no power to legislate to remove the Applicant from Australia or to hold him in detention pending such removal.

            vi.        The Applicant is not subject to the power purported to be exercised by the Respondent under s501(2) of the Migration Act.

            vii.       The Decisions made to cancel the Applicant’s visa and thereafter to take the Applicant into detention were decisions which were not capable or reasonably capable of reference to the power given to the Respondent under ss189, 196 and 501 of the Migration Act as the Respondent’s power did not extend to persons in the position of the Applicant.

            viii.      The Respondent has no power to remove the Applicant from Australia or to hold the Applicant in detention.”

The other administrative law grounds may be stated without reference to their particulars:

“b)      If the Applicant is subject to the power to cancel the Applicant’s visa which was purported to be exercised by the Respondent, which is denied, the Respondent did  not make a bona fide attempt to exercise his power pursuant to s501 of the Migration Act.

c)         The decision made was made without jurisdiction and was not authorised by the Migration Act and is accordingly void and of no effect.

d)         The decision was made in breach of the rules of natural justice in that the Respondent did not have regard to the best interests of the Applicant’s children and did not inform the Applicant or the Applicant’s children that he did not propose to have regard to the children’s best interests.”

It may be noted that ground b) as particularised, did not in terms raise a bad faith argument which might have brought it within the exception to the application of s 474 as enunciated in NAAV and deriving from Re Hickman Ex parte Fox and Clinton (1945) 70 CLR 598. The relief sought is by way of prohibition, certiorari, injunction and declaration.

The Power to Make Laws with Respect to Aliens

14                 The aliens power did not attract any substantive discussion at the Convention debates.  It was included from the outset in the 1891 draft Bill as cl 52(xix) and agreed to without discussion in Sydney on 3 April 1891 (Conv Deb Syd 3.4.1891 p 701).  By the time of the 1897 Convention debate in Sydney, cl 52(xix) had become cl 50(xxi).  Clause 50, importing the legislative powers, was agreed without discussion of subs (xxi) (Conv Deb Syd 22.9.1897 p 1077).  It was not discussed at the 1897 Adelaide Convention, nor at the 1898 Sydney Convention.  The subject matter description of the head of power was the same as the description of the like power conferred on the Dominion Government of Canada by the British North America Act 1867 – s 91(xxv).  In that case the power was exclusive.  The power conferred by s 51(xix) is not exclusive to the Commonwealth.  This is so notwithstanding the obvious criticism that “naturalization of aliens, which is undoubtedly a matter of national concern in which the whole Commonwealth is politically and socially interested, and which, consistently with the whole purport and character of the Constitution of the Commonwealth, ought to be exclusively regulated by Federal legislation” – Inglis-Clark, Studies in Australian Constitutional Law (1901 ed) Legal Books (1997) p 96-97. 

15                 The power is plenary - Robtelmes v Brenan (1906) 4 CLR 395 at 404 (Griffiths CJ), 415 (Barton J) and 420-421 (O’Connor J);  Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 25-26 (Brennan, Deane and Dawson JJ), 44 (Toohey J), 64 (McHugh J) cf 55 (Gaudron J).  Unlike the many cases in which the scope of the power is debated, the present case concerns the question whether a British subject, living in Australia since 1975 (or alternatively 1981) is to be regarded as an “alien” for the purposes of the power.  It is helpful in that connection to look to the essential elements of the term “alien” in s 51(xix) and how the High Court has interpreted that term in recent times. 

16                  The concept of “alien” under the common law of England was one born “out of the ligeance of the King”,  “ligeance” or “allegiance” being “… the true and faithful obedience of a liegeman or subject to his liege lord or soveraigne” – Coke’s Institutes of the Laws of England Pt 1 Sect 198 [129.a].  A person might be borne out of the realm of England but if, for example, in Ireland, Jersey or Guernsey, would not be borne out of the allegiance of the King and therefore not be an alien: op cit Pt 1 sect 198 [129.b].  Blackstone states:

“Natural born subjects are such as are born within the dominion of the crown of England, that is within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.  Allegiance is the tie, or ligamen which binds the subject to the king, in return for that protection which the king affords the subject.”

Bl Comm Bk 1 p 354

17                  The rule by which aliens were defined at common law had two limbs.  The first was that a child born within any territory subject to the King of England was a natural born subject of the King.  So much was established by Calvin’s case (1609) 7 Co Rep 1.  A child born in Scotland after James VI became James I was no alien in England.  The other rule was that, subject to certain exceptions, a child born elsewhere was an alien irrespective of the nationality of its parents – see generally Pollock and Maitland, The History of English Law, Vol 1 p 418. 

18                  Quick and Garran’s discussion of the aliens power dealt at some length with the concept and disabilities of aliens.  They referred to the English law under which an alien could variously be defined “as a person who owes allegiance to a foreign state, who is born out of the jurisdiction of the Queen, or who is not a British subject”.  The jus soli or territorial test of nationality was that every person born out of the British Dominions and every person born within the British Dominions was a British subject.

19                  At the time of federation the identity of aliens and British subjects was governed by the common law.  There was no Australian nationality in a constitutional sense.  In Attorney-General for the Commonwealth v Ah Sheung (1907) 4 CLR 949 at 951, Griffith CJ on behalf of himself, Barton and O’Connor JJ said:

“We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, so that, while the term “immigration” as used in sec 51 of the Constitution admittedly includes the power of exclusion of British subjects in general, it would not extend to persons of Australian nationality, whatever that may mean.”

To the extent that the concept of aliens depended upon allegiance to the Crown it was affected by changes to the nature of the Crown for the purposes of the Australian Constitution.  Related to this was the evolution of Australia to independent nationhood, a somewhat debated and uncertain process in constitutional discourse.  Initially the Commonwealth was a self-governing colony within the British Empire – China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 211 (Stephen J, Barwick CJ and Aickin J concurring), cf Murphy J at 236-237.  It was not legislatively independent being still subject to paramount British legislation pursuant to the Colonial Laws Validity Act 1865.  This remained the position until its adoption in 1942, retrospective to 1939, of the Statute of Westminster 1931 (UK).  Executive independence in the conduct of foreign relations was recognised by all Dominions at the Imperial Conference in 1926.  The 1930 Imperial Conference completed the  acquisition of that independence by its resolution that advice to the King on the appointment of a Dominion Governor-General would come only from Dominion Ministers – Winterton, The Evolution of a Separate Australian Crown (1993) 19 Monash University Law Review 1 at 8-12.  And see generally on the evolution of Australian independence – Winterton, The Acquisition of Independence (Paper presented at September 2001 National Conference of Australian Association of Constitutional Law, Perth).  The final severance of legislative dependence on the United Kingdom is reflected in the Australia Act 1986 (Cth).

20                  Also relevant is the concept of Australian citizenship which does not appear in the Commonwealth Constitution, but was introduced in 1948 by the Nationality and Citizenship Act 1948 (Cth).  Similar legislation was passed in the United Kingdom and other Commonwealth countries to give effect to the principle that their peoples would enjoy separate citizenships but a common status as British subjects.  That Act conferred the status of Australian citizen on persons born in Australia (excepting certain categories relating to the children of diplomats and enemy aliens).  It also conferred such status by descent upon children born outside Australia to certain categories of Australian citizen (ss 10 and 11).  An Australian citizen by virtue of the Act was also a British subject (s 7).   The Bill, as Arthur Calwell said in the Second Reading Speech, was “not designed to make an Australian any less a British subject”.  Nor would it disadvantage British subjects in Australia who were not Australian citizens:

“British subjects, whether they are now in this country or enter it in future, will continue to be free from the disabilities and restrictions that apply to aliens.  They will qualify for the franchise and have the right to become members of Parliament or to enter the public services.”  Parl Deb 30.9.48 pp 1060-1062

Section 5 of the Act contained a definition of the term “alien” thus:

““alien” means a person who is not a British subject, an Irish citizen or a protected person”.

The Act also made provision for citizenship by naturalisation of aliens or protected persons (s 14).  The definition of “alien” was not removed from the Act until 1 May 1987 when the Australian Citizenship Amendment Act 1984 (Cth) came into force. 

21                  The enactment of the Royal Style and Titles Act 1973 constituted the assent of the Commonwealth Parliament to the adoption, by the Queen, of the style and title, “Elizabeth the Second, by the Grace of God, Queen of Australia and Her Other Realms and Territories, Head of the Commonwealth”.   At the same time as the enactment of the Royal Style and Titles Act 1973, the Citizenship Act 1948 was amended by the Australian Citizenship Act 1973.  This introduced a new form of oath and affirmation of allegiance to the Queen as Queen of Australia.  The Crown was already divided before this time but the designation “Queen of Australia” made plain the separation of allegiance between the Queen of the United Kingdom on the one hand, and the Queen of Australia on the other.  That separation allowed for the argument that a British subject could also be an alien.

22                  The overlap of the categories of British subject and alien and the separation of the categories of immigrant and alien for constitutional purposes was established in Pochi v MacPhee (1982) 151 CLR 101.  Gibbs CJ (Mason and Wilson JJ agreeing) there held, inter alia, that:

1.         It is not correct that a person who is a British subject under the law of the United Kingdom cannot be an alien under s 51(xix). 

2.         The Parliament can treat as an alien any person who was born outside Australia, whose parents were not Australian and who has not been naturalised as an Australian.

3.         The fact that a person ceases to be an immigrant for the purposes of s 51(xxvii) does not mean that he or she ceases to be an alien for the purposes of s 51(xix). 

23                  On the third of the above propositions, Gibbs CJ said:

“The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person’s nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national.  There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia.  The Australian Citizenship Act validly so provides.” (111)

The above propositions were followed in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178.  That case concerned a British subject who came to Australia with his family at 10 years of age in 1967.  He was not naturalised and there was no suggestion he had ever become an Australian citizen.  His deportation was ordered in 1985 on the basis of criminal convictions, he having spent more than nine of his eighteen years in Australia serving prison terms in respect of them.  He was held to have remained within the reach of the aliens power.

24                  The joint judgment of Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ in Nolan looked to the etymology of “alien”.  It was held to mean “as a matter of ordinary language, ‘nothing more than a citizen or subject of a foreign state’” – at 183 citing Milne v Huber (1843) 17 Fed Cas 403 at 406 (US).  The Justices noted that the word could not have been used in 1900 to draw a distinction between British and Australian subjects of the Crown.  Even after Federation Australia did not immediately enjoy the international status of an independent nation.  But the emergence of Australia as an independent sovereign nation changed its relationship to the United Kingdom and “rendered obsolete notions of an indivisible Crown”:

“The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject or a subject of the Queen by reason of his birth in another country could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an ‘alien’.” (184)

Reference in the Constitution to “the Crown of the United Kingdom” in the preamble and to “subject of the Queen” could not alter or avoid the consequences of the emergence of Australia as an independent nation, the acceptance of the divisibility of the Crown which was implicit in the development of the Commonwealth as an association of independent nations and the creation of a distinct Australian citizenship. 

25                 Nolan was followed in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (supra).   See also Kenny v Minister for Immigration and Ethnic Affairs (1993) 115 ALR 75 (Gummow J).  If Nolan’s case were good law, then Long would be regarded as an alien and within the reach of the statutory provisions in issue in this case.

The Decision in Re Patterson

26                  The recent decision of the High Court in Re Patterson; Ex parte Taylor (2001) 182 ALR 657 was at the centre of the argument in the present case.  Mr Taylor was born in the United Kingdom and came to Australia as a child in 1966.  He resided continuously in this country thereafter.  In 2000 his visa was cancelled pursuant to s 501 of the Migration Act on account of his criminal convictions.  On application to the High Court for relief under s 75(v) of the Constitution, one of the points he took, was that he was not an “alien” within the meaning of s 51(xix).   It was not in dispute that he, like Long in the present case, had been absorbed into the community and was beyond the reach of the immigration power.  The Court upheld his contention that he was not an alien by a majority of four comprising Gaudron, McHugh, Kirby and Callinan JJ.  Gleeson CJ, Gummow and Hayne JJ dissented.  The majority overruled Nolan v Minister for Immigration and Ethnic Affairs.

27                  The formal outcome of the case was the issue of a writ of certiorari which quashed the Minister’s decision cancelling Mr Taylor’s visa.  Prohibition also issued prohibiting the Minister from further proceeding on the cancellation decision.  Gaudron J held that, upon his arrival in Australia in 1966, Mr Taylor was a British subject for the purposes of the Naturalisation and Citizenship Act 1948, later known as the Australian Citizenship Act 1948.  He was then “a migrant but not an alien as defined in s 5 of the Citizenship Act”.  The effect of the deletion of the definition of “alien” which came into effect on 1 May 1987, according to her Honour, was:

“… either to confirm Mr Taylor’s membership of the body politic constituting the Australian community by virtue of his status as a British subject or, if the point had then been reached when Australia might treat British subjects as aliens for constitutional purposes, to confer non-alien status upon him – in effect, to naturalise him and all other British citizens in the same position.  Either way, Mr Taylor was not, for constitutional purposes, an alien at any time prior to 1987.” [44]

In reaching this conclusion her Honour held that Nolan was wrongly decided.

28                  McHugh J found for Mr Taylor on administrative law grounds and so did not need to decide the constitutional points raised in the case.  He noted nevertheless that other members of the court had expressed their views on those issues and were equally divided on the aliens question [88].  In the circumstances he thought it necessary to express a view on that question.  His Honour, like Gaudron J, held that Nolan was wrongly decided.  In his Honour’s opinion, the joint judgment had overlooked two significant matters.  The first was that, if the emergence of Australia as an independent nation had made Australians, who were subjects of the Queen of the United Kingdom, subjects of the Queen of Australia, there was no constitutional reason for distinguishing their position from that of British-born subjects of the Queen of the United Kingdom living in Australia.  Logically, the evolutionary process that converted persons born in Australia into subjects of the Queen of Australia must also have converted British-born subjects living in Australia into subjects of the Queen of Australia.  The second point was that, while the joint judgment in Nolan had referred to s 117 of the Constitution, it had failed to acknowledge and give effect to its implications and the light that they threw on who was an “alien” for the purposes of s 51(xix).  His Honour then said:

“For these reasons, the decision in Nolan should be overruled.  The applicant and all other British subjects, born in the United Kingdom, who were living in Australia at the commencement of the Royal Style and Titles Act 1973 (Cth) and who have continued to reside here are subjects of the Queen of Australia, even if they are also subjects of the Queen of the United Kingdom.  They are not and never have been aliens.  They cannot be deported under the aliens or immigration powers conferred on the parliament by s 51 of the Constitution.” [91]

29                  In further analysis later in his reasons his Honour identified as the critical question whether Mr Taylor was a person who was resident in an Australian state when the evolutionary process was completed.  That question involved identifying when the Queen in right of the United Kingdom became the Queen of Australia.  His Honour referred to academic commentary that Australia became an independent nation in 1931 on the enactment of the Statute of Westminster.  Accepting that this was the relevant date no attempt was made to assert the sovereignty of the Queen of Australia until the passing of the Royal Style and Titles Act 1973.  His Honour said:

“Until the commencement of that Act – and maybe later- all British subjects resident in Australia, whether born here or overseas, owed their allegiance to the Queen of the United Kingdom.  That being so, those British subjects, born in the United Kingdom, who were living in Australia at the commencement of the Royal Style and Titles Act 1973 became subjects of the Queen of Australia as well as subjects of the Queen of the United Kingdom.  Accordingly, they were not and did not subsequently become aliens within the meaning of s 51(xix) of the Constitution.” [135]

30                  It is also of importance to mention a further paragraph in the judgment of McHugh J where his Honour considered the contention advanced by the Minister that the aliens power could not be confined to common law notions of allegiance and that it was open to the Parliament to treat as an alien any person who is not an Australian citizen.  He also considered the Minister’s contention that it was open to the Parliament to confer Australian citizenship only on those who were born in Australia or descended from or adopted by an Australian citizen and those who are granted Australian citizenship.  His Honour then said:

“That contention may be true as a general proposition.  But in my view the terms of the Constitution make it clear that, at least until the passing of the Royal Style and Titles Act 1973 (Cth), a person, living in Australia, who owed allegiance to the Queen of the United Kingdom was not and is not an alien within the meaning of the Constitution.” [121] (emphasis added)

31                  Kirby J held that a person who arrived in Australia as a British subject at a time when that status was accorded constitutional and statutory equivalence to Australian nationality, was beyond the operation of the naturalisation and aliens power.  He said of Mr Taylor:

“He never was an ‘alien’ for the purposes of the Constitution.  At least in his case, when the attempt was made to treat him as an “alien” … he had been absorbed into the people of the Commonwealth.  Once so absorbed he could not ex post facto be deprived of his nationality status as a non-alien.  In particular, he was not subject to legislative or executive power to order his deportation, any more than this could be done in the case of another Australian whose nationality status is now that of a citizen.” [304]

In 1900 it was incontrovertible that, in the case of British subjects, there was no distinction between those born overseas and those born in Australia, or descended from or adopted by, natural born Australians.  The question was whether that situation changed at some time in the ensuing century, in a way that made a person such as Mr Taylor an alien when he arrived in 1966 or susceptible to being retrospectively rendered so at some later time.  Although the court in Nolan had considered that such a change had occurred, the majority did not explain when or how the change had come about.  His Honour held that British subjects who arrived in Australia before 1987 and became permanent residents of Australia were entitled to conclude that it was not necessary for them to seek naturalisation as Australian citizens:

“Once, after their arrival, they were absorbed into the Australian community they could not, retrospectively, be reclassified as ‘aliens’ for constitutional purposes.  They were not only beyond the operation of the immigration power.  They were also then beyond the aliens power.  To the extent that Nolan decides otherwise, it should be overruled.”[308]

32                  Kirby J was prepared to accept that citizens of the United Kingdom coming to Australia after May 1987 might be treated as “aliens” for constitutional purposes, after notions of Australian citizenship had replaced references to British subjects.  At that time the special privilege accorded to British subjects to be enrolled as electors was also terminated.  The notion of what amounted to Australian nationality under the Constitution had altered. [312] 

33                  Callinan J agreed, for the reasons expressed by McHugh J, that Nolan should be overruled.  The reasons of McHugh J, with which his Honour expressly agreed, included par [91] in McHugh J’s judgment set out above.  His Honour also expressly agreed with those paragraphs in the reasoning of Kirby J in which it was accepted that citizens of the United Kingdom coming to Australia after May 1987 might be treated as “aliens” for constitutional purposes.  See [377] and footnote 420.

34                  Within the majority judgments in Re Patterson there are at least two views supporting the conclusion that Mr Taylor was not an alien when his visa was cancelled in 2000.  The first view, associated with the judgments of Gaudron, Kirby and Callinan JJ, is that British subjects who were absorbed into the Australian community prior to May 1987 could not be treated as aliens for the purposes of s 51(xix).  The second view expressed by McHugh J was that until the commencement of the Royal Style and Titles Act 1973 “and maybe later” British subjects owed their allegiance to the Queen of the United Kingdom.  Those British subjects born in the United Kingdom who were living in Australia at the commencement of the Royal Style and Titles Act 1973 became subjects of the Queen of Australia as well as subjects of the Queen of the United Kingdom.  Accordingly, they were not and did not subsequently become aliens within the meaning of s 51(xix) of the Constitution.  The latter reasoning does not expressly address the position of a British subject who arrived in Australia after the commencement of the Royal Style and Titles Act.  Indeed, in par [121] his Honour stated that a British subject living in Australia was not an alien within the meaning of the Constitution “at least until the passing of the Royal Style and Titles Act 1973(Cth)”.  This and the “maybe later” reference appears to leave open the question whether a British subject who came to Australia after 1973, as did Long in this case, and subsequently became absorbed into the community, is to be treated as an alien.  It suggests however at least a provisional view that 1973 represented a cut off point.   

35                  Absent a clear common ratio on the part of the majority in Re Patterson on the question of the aliens power, the extent to which, and the principles for which, it can be regarded as binding authority are debatable.  The Minister has submitted that in Re Patterson, a majority of the Court, partially overruled Nolan holding that there is a category of former “British subjects” who are “non-citizens” but not “aliens”.  Re Patterson it was said, did not otherwise disturb the authority of either Pochi or Nolan.  Moreover there was no common view amongst the majority as to precisely which British subjects fall within the category of “non-citizens” who are not “aliens”.  The Minister submitted formally that Re Patterson was incorrectly decided and that the minority view of Gleeson CJ, Gummow and Hayne JJ is correct, notwithstanding that the decision is binding on the Court. 

36                  It was further submitted that Long does not come within the class of British subjects that, following Re Patterson, fall outside the constitutional definition of “alien”.  In the absence of any common view among members of the majority, the decision in Re Patterson on the aliens point should be treated as turning on the approach of McHugh J.  His Honour’s approach, it was said, represented the narrowest basis for the difference between the majority and the minority and the overruling of Nolan.  His Honour had made it clear that he only chose to express his view because the court in Re Patterson was otherwise “equally divided” on the point.  Without the expression of that view, Re Patterson would have established no principle or precedent having the authority of the High Court.  The case ought to be treated as authority only for the proposition that s 501 of the Migration Act does not validly apply to a British subject born in the United Kingdom who was living in Australia and who owes allegiance to the Queen of the United Kingdom at the time of the enactment of the Royal Style and Titles Act in 1973.  The applicant, having arrived in Australia for the first time in March 1975, had never owed allegiance in the relevant sense to the Queen of Australia and was therefore, it was said, an “alien” on the approach of McHugh J.

37                  Counsel for Long agreed that three of the majority judges had held that British subjects arriving to reside in Australia prior to 1 May 1987 were not aliens at the time of their arrival and did not then become aliens.  Counsel’s submissions characterised the judgment of McHugh J as tending towards 1973 being the relevant date but leaving the issue open.  The reasoning of the three judges, who formed part of the majority of four “whilst not wholly binding”, was so highly persuasive that it ought to be followed unless the Court is otherwise bound. 

38                  The decision in Re Patterson is not binding authority for the proposition that a British subject arriving in Australia before 1 May 1987, who had been absorbed into the community, is not an alien.  It is therefore not open to this Court simply to apply the principle enunciated by Gaudron, Kirby and Callinan JJ on the basis that it is bound to do so.  The question is whether it is appropriate, at first instance in this Court, to apply that principle.

39                  In a judgment of the High Court given on 7 November 2002, Re Minister for Immigration & Multicultural Affairs; Ex parte Te and Dang [2002] HCA 48 the aliens power was revisited in relation to the cancellation of visas of persons who, although absorbed into the Australian community, were not British subjects and had not become Australian citizens.  The outcome was adverse to the applicants who were unable to invoke whatever benefit could be derived from Re Patterson as they were never British subjects.  They had arrived in Australia as aliens.  It is clear from the judgments in that case that there remain significant differences among the Justices of the High Court concerning the propositions for which Patterson is authority.  McHugh J said that “… no ratio decidendi with respect to the aliens power can be extracted from the reasoning in Re Patterson”.  He accepted however that it had precedential authority in respect of circumstances not reasonably distinguishable from those which gave rise to the decision.  In the context of the particular case before him his Honour said:

“There is nothing in the majority judgments in Re Patterson that overrules the general proposition that in most cases Parliament may treat any person who is not an Australian citizen as an alien.  The majority Justices in Re Patterson overruled Nolan to the extent that it purported to state an exclusive test of alienage.  It overruled that case to the extent that its general proposition applied to certain non-citizen British subjects – those born in the United Kingdom who were living in Australia as part of the Australian body politic or owing allegiance to the Queen of Australia some time before 1987.” [89]

His Honour in Re Patterson had said nothing concluded about the position of British subjects in Australia after the Royal Style and Titles Act 1973.  Gleeson CJ referred to what he called “the current inconclusive, state of authority” following Re Patterson.  Gummow J, adverting to the divergent reasoning concerning invalidity in Re Patterson, described attempts to discern a ratio decidendi in relation to invalidity as doomed.  Gaudron and Kirby JJ were of the view that Patterson  clearly held that provisions of the Act permitting the detention and removal of non-citizens were invalid in their application to a person who had been born in the United Kingdom and entered Australia before the coming into effect, in 1987, of the Australian Citizenship Amendment Act 1984 (Cth) and had been absorbed into the Australian community but had not taken out Australian citizenship [160] and [174].  Callinan J simply observed that Re Patterson did not assist the applicants in the later case. 

40                  In my opinion, there is no binding principle in Re Patterson which assists me to a decision in this case.  I consider that I should not apply to this case the proposition that British subjects living in Australia were not to be regarded as aliens until after 1987.  In my opinion the appropriate position to take is the minimum position adverted to by McHugh J (although not definitively).  On that position the division of allegiances between the Queen of the United Kingdom and the Queen of Australia became clear and the status of British subjects who were not Australian citizens also became clear as aliens for the purpose of the Constitution in 1973 upon the enactment of the Royal Style and Titles Act 1973.    This approach is the most conservative approach to the decision in Re Patterson which, having regard to its divergent reasoning, should be seen as disturbing pre-existing law to the least extent necessary consistent with the outcome.  That position is reached by following the reasoning of McHugh J and treating it as definitive.   I have no doubt that the matter will receive further clarifying attention by the High Court in cases now pending before it.  I would add the observation that the more recent the date upon which it was possible for a person who was not an Australian citizen to be other than an “alien” for constitutional purposes, the more recent the date upon which it would have to be said that Australia had not achieved  independent nationhood in all its aspects.

Conclusion

41                  For the preceding reasons, I conclude that Long was within the scope of the power to cancel his visa and to detain him accordingly.  The application will therefore be dismissed. Having regard to the uncertainties attending the law in this case, which is in the nature of a test case, I do not consider it appropriate to order costs against him.  There will therefore be no order as to costs. 

Acting Associate:

Dated:              19 November 2002