Did the appellant's failure to apply to become an Australian citizen by registration under the Nationality and Citizenship Act, 1948 (Cth) mean he was and remains an alien within the terms of s 51(xix) of the Constitution?

Chetcuti v Commonwealth of Australia [2021] HCA 25 (12 August 2021)

Intro:-

This is an appeal as of right from a final judgment given by Nettle J after a trial on agreed facts in a proceeding in the original jurisdiction of the High Court in which the appellant challenged his detention under the Migration Act 1958 (Cth) on the ground that he is not within the reach of the legislative power with respect to aliens conferred by s 51(xix) of the Constitution. His Honour concluded that the appellant is within the reach of that power and so gave judgment for the respondent.

Facts:-

The appellant was born on 8 August 1945 in Malta, then still a Colony of the United Kingdom. By virtue of his birth in Malta, the appellant had from birth the status of a British subject under the British Nationality and Status of Aliens Act 1914 (UK) and from 1 January 1949 the status of a citizen of the United Kingdom and Colonies under the British Nationality Act 1948 (UK). At the commencement of the Malta Independence Act 1964 (UK) on 21 September 1964, the appellant ceased to have the status of a citizen of the United Kingdom and Colonies, and acquired in its place the status of a citizen of the State of Malta under the Constitution of Malta. When the State of Malta became the Republic of Malta on 13 December 1974, he continued to have the status of a Maltese citizen under Maltese law.

The appellant arrived in Australia on 31 July 1948.

At the time of his arrival in Australia, the appellant had the status of a British subject under the Nationality Act 1920 (Cth) by virtue of his birth "within His Majesty's dominions and allegiance"[2]. At the commencement of the Australian Citizenship Act 1948 (Cth)[3] on 26 January 1949, the appellant had the status of a British subject under that Act by virtue of his citizenship of the United Kingdom and Colonies. Cessation of that citizenship on 21 September 1964 resulted in simultaneous cessation of that status.

The appellant appears to have regained the status of a British subject under the Australian Citizenship Act on 15 January 1965. From then he appears to have retained that status until abolition of that status altogether on the commencement of relevant provisions of the Australian Citizenship Amendment Act 1984 (Cth) on 1 May 1987.

Following a trial by jury in the Supreme Court of New South Wales, the appellant was convicted in 1993 of murder and sentenced to a term of imprisonment of 24 years.

At the commencement of relevant provisions of the Migration Legislation Amendment Act 1994 (Cth) on 1 September 1994, the appellant was taken to be granted an Absorbed Person visa under the Migration Act.

In 2017, by reference to the appellant's conviction in 1993, the Minister for Immigration and Border Protection made a decision to cancel his Absorbed Person visa under the Migration Act. The appellant was soon afterwards taken into detention under the Migration Act. There he remains.

The initial decision to cancel the appellant's visa was set aside by consent on judicial review by the Federal Court, following which the Minister for Immigration and Border Protection immediately made another decision to cancel the visa. That further cancellation decision was upheld at first instance on judicial review by the Federal Court in 2018 but set aside on appeal to the Full Court of the Federal Court in 2019. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs then immediately made yet another decision to cancel the visa. That further cancellation decision was at the time Nettle J gave judgment the subject of an undetermined application to the Federal Court for judicial review.

Seeking to build on the recognition by the majority in Love v The Commonwealth of an exception in respect of a person who is an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2], the appellant argues for recognition of a further exception. The further exception is in respect of a person who was a natural born British subject and who commenced residing permanently in Australia before 26 January 1949. The appellant argues that the status of a non-alien attaches indelibly to a person in that category either by reason of the person having been born within the allegiance of an as yet undivided Imperial Crown or by reason of the Parliament having once and for all determined the person not to be an alien under the Nationality Act.

Issue:-

Is the appellant an alien within the meaning of s 51(xix) of the Constitution?

Analysis:-

The answer to the appellant's argument is to be found in the reasons for judgment of the majority in Shaw v Minister for Immigration and Multicultural Affairs, from which the holding of the majority in Love v The Commonwealth does not depart except in respect of an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2].

The conclusion of the majority in Shaw was confined in its terms to a determination that "the aliens power has reached all those persons who entered this country after the commencement of [the Australian Citizenship Act] on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised". The reasoning employed by the majority to reach that conclusion nevertheless equally supports the conclusion that the aliens power has reached all those persons who entered this country before 26 January 1949 who did not then or did not afterwards become Australian citizens.

Essential to the reasoning of the majority in Shaw were the propositions that: (i) "[t]here never was a common law notion of 'British subject' rendered into an immutable element of 'the law of the Constitution'"[; (ii) the Commonwealth Parliament exercised the aliens power in establishing by the Australian Citizenship Act the status of an Australian citizen on and from 26 January 1949; (iii) on and from which date persons who have not had the status of Australian citizens have been aliens, persons having the status of British subjects but not the status of Australian citizens forming a class of aliens on whom special privileges were for some time afterwards conferred; and (iv) by which date the development of Australian sovereignty had been such that the constitutional term "subject of the Queen" could no longer be taken to refer to a subject of an Imperial Crown but to a subject of the Crown in right of Australia, being an Australian citizen.

Part II of the Australian Citizenship Act provided for the status of British subject to be conferred on and from 26 January 1949 on an Australian citizen as well as on a person who "by an enactment for the time being in force" in a specified country was a citizen of that country. The countries specified were some (but not all) of the Members of the Commonwealth of Nations. They included "the United Kingdom and Colonies", which were "deemed to constitute one country". The term "alien" was relevantly defined to mean a person who was not a British subject.

Part III of the Australian Citizenship Act provided for the acquisition of Australian citizenship on and from 26 January 1949 to be by birth, by descent, by registration or by naturalisation. On and from 26 January 1949 a citizen of a specified country who was thereby a British subject could become an Australian citizen on application through registration, generally after residing in Australia for a period of five years. But an alien who was not a British subject could become an Australian citizen only through naturalisation.

The Australian Citizenship Act did not ignore the position of persons who had been British subjects under the Nationality Act and who had resided in Australia before 26 January 1949. Part IV was headed "Transitional Provisions".

Within Pt IV, s 24 provided:

"In this Part, 'British subject' includes a person who was, immediately prior to the date of commencement of this Act, entitled in Australia or a Territory to all political and other rights, powers and privileges to which a natural-born British subject was then entitled."

Section 25(1) went on to provide:

"A person who was a British subject immediately prior to the date of commencement of this Act shall, on that date, become an Australian citizen if –

(a) he was born in Australia and would have been an Australian citizen if ... this Act had been in force at the time of his birth;

(b) ...

(c) he was a person naturalized in Australia; or

(d) he had been, immediately prior to the date of commencement of this Act, ordinarily resident in Australia ... for a period of at least five years."

No less than Pts II and III, Pt IV of the Australian Citizenship Act was enacted in the exercise of the aliens power. The power that supported the creation of the new status of an Australian citizen to be conferred prospectively by reference to legislatively established criteria supported as well the transitional conferral of that new status by reference to essentially the same criteria.

The following statement of the majority in Nolan v Minister for Immigration and Ethnic Affairs[59] was restated by the majority in Shaw:

"The transition from Empire to Commonwealth and the emergence of Australia and other Dominions as independent sovereign nations within the Commonwealth inevitably changed the nature of the relationship between the United Kingdom and its former colonies and rendered obsolete notions of an indivisible Crown. A separate Australian citizenship was established by the ... Australian Citizenship Act ... 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'."

The final sentence of that statement is as much applicable to a person who entered Australia before 26 January 1949 and who on 26 January 1949 failed to meet the criteria for the acquisition of Australian citizenship set out in s 25(1) of the Australian Citizenship Act as it is applicable to a person who entered Australia on or after 26 January 1949 and who then and thereafter failed to meet the criteria for the acquisition of Australian citizenship set out in Pt III of the Australian Citizenship Act.

The appellant missed out on becoming an Australian citizen on 26 January 1949 through operation of s 25(1)(d) of the Australian Citizenship Act only because, having arrived in Australia on 31 July 1948, he had then been ordinarily resident in Australia for a period of less than five years. His position, however, was not irremediable. After he had resided in Australia for a period of five years – that is, after 31 July 1953 – it was open to him under the Australian Citizenship Act by virtue of his new citizenship of the United Kingdom and Colonies to apply to become an Australian citizen by registration. That course of action remained available to him until the provision for obtaining Australian citizenship by registration was removed from the Australian Citizenship Act at the commencement of relevant provisions of the Australian Citizenship Act 1973 (Cth) on 1 December 1973. His problem is that he did not take that available course of action.

The conclusion that the appellant was and remains within the reach of the aliens power can therefore be arrived at, as in Shaw, without need to explore common law notions of allegiance and alienage and without attempting to pinpoint the precise time prior to 26 January 1949 when there emerged a distinct Crown in right of Australia. There is also no need to explore the position before 26 January 1949, touched on in Shaw, of a person not born within the dominions and allegiance of the Imperial Crown who acquired under local naturalisation legislation in one part of the British Empire the status of a British subject not recognised in other parts. Even less is there need to re-examine the present position of an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2], recently examined in Love v The Commonwealth.

Conclusion:-

The appeal is to be dismissed with costs.