MEMBERSHIP IN THE AUSTRALIAN COMMUNITY: SINGH
V THE COMMONWEALTH AND ITS CONSEQUENCES FOR
AUSTRALIAN CITIZENSHIP LAW
Michelle Foster∗
I
INTRODUCTION
In Singh v Commonwealth ('Singh'),1 the High Court was presented with the question
whether a person born in Australia can be considered an 'alien' for the purpose of
s 51(xix) of the Constitution ('naturalization and aliens'). In a 5:2 decision the Court
rejected the plaintiff's argument that birth in Australia necessarily accorded her the
status of non-alien and thus a constitutional nationality which could not be displaced by
legislative reliance on other heads of power. The decision is important, both for its
elucidation of Parliament's scope to regulate Australian citizenship — the subject of a
series of important cases over the last two decades involving strong dissents and two
reversals in approach2 — and for its consideration of principles of constitutional
interpretation.
Central to the decision in Singh was the extent to which the Commonwealth
Parliament's power to pass laws with respect to a status such as 'alien' includes the
power to define that status. That is, in the present context, if the constitutional status
'alien' is merely the antonym of citizen — itself a statutory concept — Parliament is
essentially able to define the extent of its power. Such an outcome is of course
inconsistent with established doctrines of constitutional interpretation;3 indeed, with
the very notion that the Constitution (interpreted by the High Court) defines
Parliament's power. However, delimiting the constitutional scope of legislative powers
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∗
BComm (Hons) LLB (UNSW), LLM SJD (Michigan), Senior Lecturer, University of
Melbourne. I am grateful for the comments of Kim Rubenstein, Simon Evans, Graeme Hill
and the anonymous reviewer for the Federal Law Review on an earlier draft of this paper.
1
Singh v Commonwealth (2004) 209 ALR 355.
2
See Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, Re Patterson; Ex
parte Taylor (2001) 207 CLR 391, and Shaw v Minister for Immigration and Multicultural Affairs
(2004) 203 ALR 143.
3
As Fullagar J explained in Australian Communist Party v Commonwealth (1951) 83 CLR 1, 258:
'A power to make laws with respect to lighthouses does not authorize the making of a law
with respect to anything which is, in the opinion of the law-maker, a lighthouse'. This
quote was cited by Gummow, Hayne and Heydon JJ in Singh v Commonwealth (2004) 209
ALR 355, 402 [153], where their Honours stated that '[i]t is nonetheless important to
emphasise the point made by Fullagar J … by reference to the metaphor that a stream
cannot rise higher than its source'.
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which refer to a legal category or status in an 'objective' or 'independent' manner that
does not merely reflect the legislative definition or meaning attributed to such category
or status is not a straightforward issue, as is evidenced in the case of other heads of
power such as marriage,4 copyrights, patents and trade marks,5 and bankruptcy and
insolvency.6
Thus, one unresolved issue following Singh is the extent to which Parliament's
power with respect to aliens, while clearly wide, is limited. Is there remaining scope
for establishing a constitutional category of non-alien (who may or may not be entitled
to the statutory right of citizenship)? Further, is there any scope for finding a
constitutional right of nationality (which is again wider although perhaps not
completely unrelated to the question of statutory citizenship)? Implicit in each of these
issues is the fundamental question of the extent to which Parliament may legislate to
exclude particular groups of persons from the benefit of Australian (statutory)
citizenship — either by altering the rules regarding acquisition of nationality or by
legislating to remove citizenship previously acquired (the converse of 'naturalization').
The decision in Singh, and in particular the touchstone for identifying an 'alien'
formulated by the joint judgment (and affirmed by six judges in a subsequent
decision), also leaves open its application to and ramifications for various categories of
people, including stateless persons and those with dual nationality.
This case note assesses the methodology and reasoning of each of the judgments in
Singh and considers the implications of the decision for Australia's citizenship laws. It
begins with an overview of the background and issues in Singh and then proceeds to
an analysis of the judgments before turning to a consideration of the ramifications of
the decision.
II
BACKGROUND AND ISSUES
Tania Singh was born in Mildura, Victoria on 5 February 1998, the daughter of two
Indian citizens who had arrived in Australia in April 1997. Although Kirby J expressed
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4
See the Australian Constitution, s 51(xxi). In Singh, McHugh J noted the similarity between
the aliens power and marriage power in this respect: Singh v Commonwealth (2004) 209 ALR
355, 371 [49]. As Brennan J noted in Fisher v Fisher (1986) 161 CLR 438, 455: 'Although the
nature and incidents of a legal institution would ordinarily be susceptible to change by
legislation, constitutional interpretation of the marriage power would be an exercise in
hopeless circularity if the Parliament could itself define the nature and incidents of
marriage by laws enacted in purported pursuance of the power. The measure of the
legislative power cannot be determined by reference to the occasions of its purported
exercise'. This passage is cited in Dan Meagher, 'The Times are they A-Changin'? — Can
the Commonwealth Parliament Legislate for Same Sex Marriages?' (2003) 17 Australian
Journal of Family Law 134, 152, in which the author discusses the difficulty in defining the
marriage power.
5
Australian Constitution, s 51(xviii): 'Copyrights, patents of inventions and designs, and trade
marks'. For recent High Court authority on interpreting this provision, see Grain Pool of
Western Australia v Commonwealth (2000) 202 CLR 479.
6
Australian Constitution, s 51(xvii). See Storey v Lane (1981) 147 CLR 549 for discussion of
Parliament's power to extend the ambit of bankruptcy legislation, especially at 558 (Gibbs
CJ).
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Singh v The Commonwealth
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some uncertainty as to whether the plaintiff was a citizen of India,7 the other judges
proceeded on the basis that she was a citizen of India by descent.8 Despite her birth
and continuous residence from birth in Australia, Singh was not eligible to apply for
Australian citizenship pursuant to the Australian Citizenship Act 1948 (Cth) because she
was unable to satisfy either of the requisite conditions, namely that one of her parents
was at the time of her birth an Australian citizen or permanent resident, or that she had
been ordinarily resident in Australia for a period of ten years.9 It is important to note
that while birth in Australia had previously been sufficient to attract Australian
citizenship,10 the Australian Citizenship Act was amended in 1986 to prevent 'migration
laws [from being] circumvented through the acquisition of Australian Citizenship
status by children born in Australia to temporary or illegal entrants.'11 As a
consequence Singh was a non-citizen of Australia. Since she had no substantive visa
(her parents' application for a protection visa having been rejected), she was liable to
removal from Australia under s 198 of the Migration Act 1958 (Cth) as an 'unlawful
non-citizen'.
The plaintiff filed a writ of summons in the High Court seeking a declaration that,
inter alia, s 198 of the Migration Act was incapable of being validly applied to her.12 The
key issue was whether s 198, in its application to the plaintiff, was validly made
pursuant to the power to make laws with respect to 'naturalization and aliens'
(Australian Constitution s 51(xix)). The plaintiff contended that, by virtue of her birth in
Australia, she was not an alien within the meaning of s 51(xix). Kirby J subsequently
stated a case for the consideration of the Full Court. The (amended) questions for
consideration were (relevantly) as follows:
1. Is the plaintiff an alien within the meaning of s 51(xix) of the Constitution?
2. If the answer to (1) is 'No', is s 198 of the Migration Act 1958 (Cth) capable of
valid application to the plaintiff?13
At the outset it is important to be clear about the relevant terminology engaged in
this context. Unlike the United States Constitution, the Australian Constitution does not
contain any provision conferring Australian citizenship;14 nor does it expressly
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7
Singh v Commonwealth (2004) 209 ALR 355, 417 [210]–[211]. Kirby J pointed to a 2003
amendment to the Citizenship Act 1955 (India) which would have affected Singh's Indian
citizenship, however it was not clear whether the amendment had been passed at the
relevant time.
8
Singh v Commonwealth (2004) 209 ALR 355, 356 [2] (Gleeson CJ); 400 [142] (Gummow,
Hayne and Heydon JJ); 433 [283] (Callinan J). I note that McHugh J did not appear to refer
to this issue.
9
Australian Citizenship Act 1948 (Cth), s 10(2).
10
Rubenstein explains that s 10 of the Australian Citizenship Act 1948 (Cth) previously
provided that 'people born in Australia between 26 January 1949 and 20 August 1986 were
Australian citizens provided their father (later parent) was not a diplomat' or enemy alien:
Kim Rubenstein, Australian Citizenship Law in Context (2002) 90.
11
Australian Citizenship Council, Australian Citizenship for a New Century (2000) 40, cited in
Rubenstein, ibid 93.
12
Singh v Commonwealth (2004) 209 ALR 355, 370 [43] (McHugh J).
13
Ibid 370 [44] (McHugh J).
14
Compare the 14th Amendment to the United States Constitution which relevantly provides:
'[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof,
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empower the Parliament to make laws with respect to citizenship.15 Indeed, the only
reference to the concept of 'citizen' in the Constitution appears in s 44(i), which provides
that a citizen of a foreign power is incapable of standing for Parliament. Rather,
phrases such as 'people of the Commonwealth'16 and 'subject of the Queen'17 are
engaged, reflecting (particularly in the case of the latter phrase) the 'political realities'
at federation.18 As a consequence, the concept of citizenship in Australian law is a
purely statutory one, having been introduced in 1948.19 In light of this, the primary
issue for the judges in Singh was not whether Singh was a 'citizen' of Australia (she
was clearly not a citizen within the Australian Citizenship Act), but rather whether she
held the constitutional status of non-alien, thus taking her outside the purview of the
aliens power.
As the majority of the Court answered 'Yes' to question 1, it was unnecessary for the
majority judgments to consider other possible heads of power (such as 'immigration
and emigration'20 or 'external affairs'21) which may have authorized s 198 in its
application to the plaintiff. However, having found that the legislation could not be
upheld under s 51(xix), McHugh and Callinan JJ in (separate) dissenting judgments
necessarily had to consider the relevance of other heads of power, which raised the
broader question not only of whether Singh was a non-alien but whether she was
entitled to some kind of constitutional nationality which was unable to be displaced by
otherwise relevant heads of power.
III
THE JUDGMENTS IN SINGH
The principal argument of the plaintiff was that both the Convention Debates and
common law history established that, at federation, the term 'aliens' would clearly not
have encompassed persons born in Australia. It was submitted that the traditional
common law position that citizenship (or, more accurately, the status of 'subject of the
Queen') is governed by jus soli ('right of the soil') as opposed to jus sanguinis ('right of
descent') — more commonly adopted in civil law countries — was well understood by
the drafters of the Australian Constitution. The common law position articulated in
Calvin's Case in 160822 was based on the notion that all those owing allegiance to the
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are citizens of the United States and of the State wherein they reside': United States
Constitution amend XIV, § 1.
15
However, the Australian Citizenship Act 1948 (Cth) is said to be supported by various
powers, including 'naturalization and aliens' and an 'implied nationhood power': see
Rubenstein, Australian Citizenship, above n 10, 71–74. For the most recent judicial exposition
of the basis of the Citizenship Act 1948 (Cth), see Hwang v Commonwealth; Fu v
Commonwealth (2005) 222 ALR 83, 86 [9], 89 [18] (McHugh J).
16
See the Australian Constitution, s 24. See also s 7 ('people of the State').
17
Ibid s 117.
18
Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 480 (Kirby J).
19
See Australian Citizenship Act 1948 (Cth).
20
Australian Constitution s 51(xxvii).
21
Australian Constitution s 51(xxix).
22
The common law position was said to have been restated and explained in Calvin's Case
(1608) 7 Co Rep 1a; 77 ER 377 in which Coke CJ 'applied the common law rule that a person
cannot be a natural born subject unless the place of his or her birth, at the time of his or her
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Singh v The Commonwealth
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Crown were British subjects and that all those born within the sovereign's territory
owed allegiance to the Crown.23 The plaintiff argued that the Australian Constitution
'preserves the reciprocal relationship between the Queen of Australia and the people of
the Commonwealth who owe her allegiance', and thus Parliament cannot legislate to
remove this constitutional nationality.24 Indeed, the plaintiff contended that the
Convention Debates reveal that a key reason for declining to confer legislative power
on the Commonwealth with respect to citizenship was the concern that Parliament
might use this power to remove the common law 'birthright' of those born on
Australian soil.
The Commonwealth disputed the usefulness of the Convention Debates in resolving
the precise issue before the Court, and also cast doubt upon the clarity of the common
law position at federation. In particular, the Commonwealth pointed to 19th century
legislative changes which suggested that the traditional British preference for jus soli
had undergone significant amendments prior to federation. These changes in part
reflected even more dramatic developments in the citizenship laws of European states
throughout the 19th century, which had produced the result that while citizenship by
birth (jus soli) was the general rule at the beginning of the 19th century, the rule of
descent or blood (jus sanguinis) was the 'leading principle in Europe' by the turn of the
20th century.25
In oral argument significance was also placed on the correct approach to
constitutional interpretation. The plaintiff engaged the Convention Debates and
common law history in support of a position that essentially established a fixed
meaning of 'alien' in 1900, thereby restricting Parliament's powers and providing a
broad scope of protection for non-statutory citizens who can be categorized as nonaliens. By contrast, the Commonwealth emphasized the contemporary circumstances
(ease of air travel, globalization)26 which support the need for a broad view of
Parliament's power to formulate appropriate citizenship laws for Australia.27 Whether
or not this difference in interpretative approach was ultimately determinative will be
considered below.
The majority judgments
Gleeson CJ began by setting out his Honour's previously expressed view that ss 51(xix)
and (xxvii) ('immigration and emigration') of the Constitution authorize the Parliament
to 'create and define the concept of Australian citizenship, to prescribe the conditions
on which such citizenship may be acquired or lost, and to link citizenship with the
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birth, was within the King's dominions': Singh v Commonwealth (2004) 209 ALR 355, 378 [71]
(McHugh J).
23
See Singh v Commonwealth (2004) 209 ALR 355, 419–20 [219]–[224] (Kirby J).
24
Ibid 421 [227].
25
Ibid 409 [178]–[179]. See also Transcript of Proceedings, Singh v Commonwealth (High Court
of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10
February 2004) 43.
26
See Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ,
McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 41–2.
27
See also ibid 57, where the Commonwealth criticized the plaintiff's submission which was
said to depend upon the term 'alien', 'being frozen in 1900'.
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right of abode'.28 His Honour adopted the statement by Brennan, Deane and Dawson JJ
in Lim that 'alien' in s 51(xix) has 'become synonymous with non-citizen'.29 However,
as alluded to above, the ability of Parliament to define the scope of its legislative power
must be limited. Accordingly, Gleeson CJ conceded that '[e]veryone agrees that the
term 'aliens' does not mean whatever parliament wants it to mean'.30 That is, to adapt
an oft cited statement of Gibbs CJ from Pochi v Macphee, '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'.31
However, having acknowledged Parliament's limits, Gleeson CJ did not attempt to
define those limits or to give content to the term 'alien' by reference to a set of criteria
that would provide guidance as to what could and 'could not possibly answer [that]
description'.
How then did Gleeson CJ reach the conclusion that Singh was properly considered
an alien? Responding to the plaintiff's arguments regarding historical materials,
Gleeson CJ found that contrary to the unified and clear picture of the state of the
common law depicted by the plaintiff, in 1900 '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'.32 That is, while jus soli
had been the governing approach for centuries, the British Parliament had intervened
in the latter half of the 19th century to amend this position in 'significant respects'.33
Given that the law was in a state of flux at the time of drafting, the legal context did
'not support or require a conclusion that "aliens"…excludes the plaintiff.'34
Turning to the Convention Debates, Gleeson CJ noted that in 1898 Dr Quick had
proposed that the delegates either insert a definition of citizenship in the draft Bill or
confer a power on the Parliament to define citizenship. After reviewing the Debates,
his Honour concluded that they were not able to throw light on the purpose or object
of s 51(xix), since it is impossible to discern any specific reason for the rejection of
Quick's 'ambiguous proposal concerning citizenship.'35 As a result, the plaintiff's
argument was not made out.
The joint judgment of Gummow, Hayne and Heydon JJ ['the joint judgment'] was
the only judgment of the majority to grapple with the content of 'alien' status, or in
other words its 'core' or essential features or characteristics. Their Honours' reasoning
can be encapsulated in the following syllogism:
An alien is a person who owes allegiance to a foreign state.
Ms Singh owes allegiance to a foreign state (by virtue of her Indian citizenship).
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Singh v Commonwealth (2004) 209 ALR 355, 357 [4], citing Re Minister for Immigration and
Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, 173 [31].
29
Ibid, citing Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1, 25.
30
Ibid 357 [5].
31
Ibid 357 [4], emphasis added, citing Pochi v Macphee (1982) 151 CLR 101, 109.
32
Ibid 366 [30].
33
Ibid.
34
Ibid.
35
Ibid 367 [31].
28
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Singh v The Commonwealth
167
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Ms Singh is an alien.36
Their Honours derived the key criterion of owing 'allegiance to a foreign state' by
reference to pre-federation history. This historical assessment revealed that, as Gleeson
CJ had found, by the end of the 19th century the word 'aliens' no longer had the fixed
legal meaning established in Calvin's Case in 1608. However, what did remain
unaltered, according to the joint judgment, was that 'aliens' included 'those who owed
allegiance to another sovereign power, or who, having no nationality, owed no
allegiance to a sovereign power.'37 This was said to focus correctly on what
characteristic or element gives a person the status of 'alien', namely, owing obligations to
another sovereign power, rather than seeking to define the status descriptively by
reference only to the list of persons to whom it applied in 1900.38 Or, to use
terminology engaged in previous jurisprudence, the joint judgment sought to identify
the connotation of the word 'alien' by reference to its central characteristic.39
The joint judgment rather cursorily dismissed dicta from previous High Court
authority, particularly the early decision of Potter v Minahan, in which the Court had
stated that 'every person becomes at birth a member of the community into which he is
born, and is entitled to remain in it until excluded by some competent authority'.40
This and other more recent dicta relied upon by McHugh J in dissent,41 which appear
to assume that birth in Australia takes a person outside the aliens power, were said not
to be binding since none of those cases concerned the precise issue before the Court in
Singh.42
The final majority judge, Kirby J, departed from the other majority judgments with
respect to the question of constitutional interpretation in that his Honour eschewed
reliance on historical materials (including both common law and the Convention
Debates) as supporting the ossification of the constitutional meaning of 'aliens' as at
1901.43 Rather, consistent with his well established contemporary approach to the
meaning of constitutional terms, Kirby J approached the key issues on the supposition
that the legislative power 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'.44 Notwithstanding this, his
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36
Their Honours did not set out their reasoning as a syllogism; however, their reasoning is
encapsulated in summary form at ibid 400 [144] and 416 [205].
37
Ibid 412 [190].
38
Ibid 414 [200].
39
In this respect it should be noted that the joint judgment appeared to call into question the
utility of engaging tools such as connotation/denotation or concepts/conceptions. Their
Honours stated that while such tools might be thought useful, '[t]here 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': ibid 404 [161].
40
Potter v Minahan (1908) 7 CLR 277, 289 (Griffith CJ); see also 293 (Barton J) and 304–5
(O'Connor J).
41
Singh v Commonwealth (2004) 209 ALR 355, 389–95 (McHugh J).
42
For example Potter v Minahan (above n 40) involved the immigration power: ibid 415 [203].
43
After setting out the plaintiff's arguments based on historical materials, Kirby J concluded
that, '[f]or me, that word [aliens], 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': ibid 426 [243].
44
Ibid 427 [249].
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Honour conceded some role for consideration of the 'framers' intentions', and in this
regard noted that at federation there were two primary theories — jus soli and jus
sanguinis — 'vying for acceptance amongst the nations of the world in 1901'.45
Moreover, while jus soli had traditionally been the theory favoured by the common
law, it had already admitted significant exceptions by 1900. Thus, Kirby J concluded
that it was unconvincing that the federal Parliament 'was forever to be limited to the
approach of birthright'.46 On the contrary, according to Kirby J, a status such as
alienage of its nature evolves over time, and must be capable of responding to
contemporary challenges such as the impact 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'.47
Despite envisaging a wide scope for legislative power pursuant to 'naturalization
and aliens', Kirby J was careful to reserve the ability of the Court to impose limits on
Parliament's power so as to guard against future abuse of the 'aliens' power. However,
like Gleeson CJ, his Honour did not attempt to delimit the power or provide content to
the meaning of 'alien' by reference to defining factors or characteristics. Rather, Kirby J
emphasized that 'this court can be trusted to draw the necessary constitutional line' if
Parliament attempts 'to push the "aliens" power into extreme circumstances'.48 In this
case, the operation of the law on the plaintiff could not be viewed as 'extreme'; thus the
plaintiff failed. While Kirby J's judgment provides some insight into the types of cases
which might be considered extreme (that is, if the Parliament were to deem a person
born in Australia an alien 'despite parental or grand-parental links of descent and
residence'49), it gives at most a descriptive list of persons who might fall outside the
term 'alien', but no conceptual basis for distinguishing aliens from non-aliens.
The dissents
The most extensive and strongly worded judgment in dissent is that of McHugh J. As
in the joint judgment, McHugh J's reasoning is evidenced in a (poly)syllogism: 50
An alien is a person who does not owe permanent allegiance to the Queen of Australia.
A person who is born in Australia owes an obligation of permanent allegiance to the
Queen of Australia.51
Therefore, a person born in Australia is not an alien.
Ms Singh was born in Australia.
Therefore, Ms Singh is not an alien.
McHugh J derived the above criterion, like the joint judgment, from pre-federation
sources which he relied upon to identify the connotation of 'aliens' in 1900.52 His
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45
Ibid 427 [251].
46
Ibid.
47
Ibid 428 [255].
48
Ibid 431 [269].
49
Ibid.
50
Ibid 369 [40]. It should be noted that, unlike the joint judgment, McHugh J's reasoning is
explicitly expressed as a polysyllogism.
51
McHugh J acknowledged that this is a result of evolution, that is, when the Crown
'divided', 'the denotation of the term "subject of the Queen" changed' so as to refer to the
Queen of Australia: ibid 375 [57].
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Honour surveyed the history of the status of 'subjects of the Crown' and 'aliens'
respectively, from their origins in medieval common law and the feudal system,
through to the restatement of the law in Calvin's Case, which established the common
law rule that all persons 'born within the King's dominions' acquired the status of a
natural born subject.53 His Honour emphasized that at common law a natural born
subject 'owed from birth permanent allegiance to the Crown'.54 His Honour
acknowledged the common law exceptions which had developed over time, and the
legislative changes in the late 19th century relied upon by the majority judgments, but
concluded that they did not change the essential position that in 1900 persons within
British dominions were either 'natural born subjects' or 'alien subjects'.55 Thus, the
'irresistible conclusion' was that 'in 1900, those who made the Constitution understood
that at common law, a person born within the dominions of the British Crown was a
"natural born British subject", who owed permanent allegiance to the British Crown
and was not an alien.'56
In his Honour's view, the Convention Debates support these conclusions as they
reveal that the failure to confer on the Federal Parliament power to make laws with
respect to citizenship was a conscious decision of the delegates designed to protect
against a future Parliament depriving 'a person of his or her citizenship — a concept
that was treated as identical with "subject of the Queen"'.57
McHugh J was particularly critical of an approach which declined to provide a
definition of 'alien'. His Honour noted that Gibbs CJ's assurance, that Parliament could
not expand the aliens power so as to include persons 'who could not possibly answer
the description of "aliens" in the ordinary understanding of the word',58 provides no
assistance in determining the meaning of the constitutional term 'aliens'. As his
Honour explained, '[t]o apply this statement, one has to know what is "the ordinary
understanding of the word"… [t]hat is to say, one must have a definition of "aliens"'.59
A significant feature of McHugh J's judgment is that it suggests that not only is a
person born in Australia outside the purview of the 'aliens' power, but that such a
person acquires constitutional nationality or citizenship which protects against
Parliament's ability to remove or otherwise impair such citizenship by reliance on
other heads of power.60 However, while it is clear that, according to McHugh J,
Parliament could not deprive a person of this nationality, it is not evident what other
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52
Ibid 369 [38].
53
Ibid 379–80 [75].
54
Ibid 387 [96].
55
Ibid.
56
Ibid 387 [99].
57
Ibid 389 [105].
58
Pochi v Macphee (1982) 151 CLR 101, 109.
59
Singh v Commonwealth (2004) 209 ALR 355, 393 [118].
60
His Honour explained that: '[N]one of the naturalization power, the implied nationhood
power or the external affairs power empowers the parliament to deprive a non-alien of her
constitutional citizenship by an enactment such as s 10 [of the Citizenship Act]': ibid 399
[139].
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rights, protections or liabilities might flow from recognition of this status. In other
words, what would be the content of the concept of constitutional nationality?61
The other judge in dissent, Callinan J, focused at length on the correct approach to
constitutional interpretation. Taking the converse approach to Kirby J, Callinan J
expounded a theory of constitutional interpretation which almost entirely restricts the
exercise to one of construing 'the intentions of [its] makers objectively ascertained'.62
Accordingly, his Honour proceeded to consider the common law history and
Convention Debates, and concluded that the common law position persisting at
federation was that children of foreign parents, born 'within the dominions of the
Crown'63 were British subjects, and that this was 'the contemporary legal position with
which the founders were familiar'.64 Thus, the term alien did not at federation
encompass children born on Australian soil; nor had the meaning of the word altered
since that time.65
Importantly, Callinan J did not merely conclude that the plaintiff was not an alien in
the constitutional sense, but went further in holding that, as a person born in Australia,
she was entitled 'as of right to be regarded as a national of [Australia], and in substance
as a citizen, albeit not as a citizen for the purposes of the Citizenship Act'.66 Thus, like
McHugh J, Callinan J held that there is a status of constitutional citizen or national of
Australia. Further, his Honour concluded that there seems to be 'no reason why the
plaintiff should not continue to have that right unless and until she renounces it or
makes an acknowledgement inconsistent with it.'67 Whether the voluntary assumption
of another nationality, for example, would suffice to constitute an 'acknowledgement
inconsistent with it' is unclear.
IV
ANALYSIS AND IMPLICATIONS OF SINGH
A
Constitutional interpretation — theory and methodology in Singh
As alluded to above, principles of constitutional interpretation were considered
important by all of the judgments in Singh, and in two judgments in particular
differences in approach were thought to be determinative.68 One of the key issues was
the use of historical materials in interpreting constitutional terms. The Commonwealth
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61
McHugh J stated that, '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': ibid 398 [135].
However, it is by no means clear that this would equate a constitutional citizen to a
statutory citizen, since much legislation confers particular benefits on statutory citizens
only. For a description of such legislation, see Rubenstein, Australian Citizenship, above
n 10, Chapter Five.
62
Ibid 436–37 [295].
63
Ibid 440 [304], citing 'Report of the Royal Commissioners for Inquiring into the Laws of
Naturalization and Allegiance (1869)' in Reports from Commissioners, 1868–69, vol 14, 607,
614–15.
64
Ibid.
65
Ibid 440 [304]–[305].
66
Ibid 444 [317].
67
Ibid.
68
Ibid 426 [243] (Kirby J) and 436–437 [295]–[296] (Callinan J).
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questioned the appropriateness of taking into account the Convention Debates in this
context,69 which precipitated some lengthy consideration by a number of the judges
about the role of the Debates (and other historical references such as the state of the
common law at federation) in construing a Constitution 'intended to endure'.70
None of the judgments took the position that historical materials, such as the
Convention Debates, are irrelevant. Rather, consistent with previous authority, it was
reiterated that reference to the public record of the Convention Debates 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.'71 Even Kirby J acknowledged that '[r]egard may
certainly be had to the framers' intentions'.72
The key difference in approach was rather in respect of the extent to which the
inquiry ends once the framers' (objective) intentions have been ascertained. Kirby J
undoubtedly advocated a contemporary or evolutionary approach in the clearest
terms.73 However, the joint judgment, as well as those of Gleeson CJ and McHugh J,
_____________________________________________________________________________________
69
It is not clear what were the exact arguments of the Commonwealth in this respect. In oral
argument, Kirby J asked the Solicitor-General for the Commonwealth whether he persisted
with his objection to the use of the Convention Debates, to which the Solicitor-General
replied that objection was 'too strong a word' and that the submission was merely that the
material did not assist the Court and is not 'within the range of material that the Court is
assisted by in looking at the debates to construe the Constitution': Transcript of Proceedings,
Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan, Heydon JJ, 10 February 2004) 60. It seems likely that the objection was
directed to the fact that, since the plaintiff sought to rely on the Convention Debates to
establish that at least some delegates were against the insertion of a specific citizenship
power because, 'the parliament could [then] legislate to deprive a person of his or her
citizenship', (Singh v Commonwealth (2004) 209 ALR 355, 388 [103] (McHugh J); Transcript of
Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh,
Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 11–12), this effectively
involved 'substituting for the meaning of the words used the scope and effect…which the
founding fathers subjectively intended' — an inappropriate use of the Convention Debates:
Cole v Whitfield (1988) 165 CLR 360, 385.
70
Singh v Commonwealth (2004) 209 ALR 355, 403 [159] (Gummow, Hayne, Heydon JJ). See
also 363–6 (Gleeson CJ), 374–5 (McHugh J) and 435–7 (Callinan J).
71
Ibid 36 [22] (Gleeson CJ), citing Cole v Whitfield (1988) 165 CLR 360, 385. See also Singh v
Commonwealth (2004) 209 ALR 355, 374 [54] where McHugh J explained that the Debates
may be relied upon to 'identify the mischief to which the words of the Constitution were
directed, to identify the purpose of the relevant constitutional concept or to determine the
specialized meaning of constitutional terms'. Similarly, the joint judgment emphasized that
the task of construction cannot be undertaken 'without knowing what particular
constitutional expressions meant, and how words were used, at the time of federation': ibid
403 [159]. See also ibid 436 [294] (Callinan J), citing Cole v Whitfield (1988) 165 CLR 360, 385.
72
Singh v Commonwealth (2004) 209 ALR 355, 426 [247].
73
His Honour explained: '[T]he 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':
ibid 426 [247]. Rather, the Court 'should construe this power [naturalization and aliens]
with all the generality that the words used in the Constitution admit, as those words are
understood today': ibid 427 [249].
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acknowledged that consideration of historical material is not sufficient. For example,
the joint judgment explained that while identifying the meaning of constitutional terms
at federation is an 'essential step in the task of construction',74 the 'task does not end
with the results of that inquiry'.75 Rather, '[a]lways, the Constitution is to be construed
bearing steadily in mind that it is an instrument of government intended to endure'.76
In fact, the only real disagreement in this regard is with respect to Callinan J's clear
preference for an originalist approach and concomitant rejection of an attempt to pay
deference to evolving language and contemporary meaning of constitutional terms. In
his Honour's view, in practice 'substantive linguistic change occurs very slowly' and,
'[w]hen change does occur, it generally tends to relate to popular culture rather than to
the expression of fundamental ideas, philosophies, principles and legal concepts.'77
Thus, judges should 'be especially vigilant to recognize 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.'78 More fundamentally,
however, given that power to amend the Constitution 'resides exclusively in the
Australian people pursuant to s 128', Callinan J questioned whether, even if there were
a change in the meaning of a word or phrase, the Court can 'justify a departure from its
meaning at the time of Federation.'79 Thus, constitutional instruments 'are still basically
to be construed by reference to the intentions of their makers objectively ascertained'.80
On the basis of this outline of theoretical position, we might expect to observe quite
divergent reasoning as between Callinan J on the one hand, and the remainder of the
Court on the other. However what is perhaps most interesting about this apparent
disagreement is the extent to which the judgments declined to implement in practice
their preferred theoretical approach. In particular, despite the fact that both the joint
judgment and that of McHugh J (the only two judgments to develop a criterion of
'alien') stated respectively that the 'Constitution is to be construed bearing steadily in
mind that it is an instrument of government intended to endure',81 and that the
Constitution should be interpreted keeping in mind the fundamental premise that the
makers 'laid down a blueprint for the government of the nation for the indefinite
future';82 in fact both judgments rely solely on historical materials in developing their
respective formulations of the key element of the term 'aliens'.83 Indeed, in neither
_____________________________________________________________________________________
74
Ibid 403 [159].
75
Ibid.
76
Ibid. See also ibid 360 [12] where Gleeson CJ states that context includes, 'developments,
over time, in the national and international context in which the instrument is to be
applied'. Further, his Honour explained that: 'Changing times, and new problems, may
require the court to explore the potential inherent in the meaning of the words, applying
established techniques of legal interpretation': ibid 362 [18]. See also ibid 373 [53]
(McHugh J).
77
Ibid 436 [295].
78
Ibid.
79
Ibid.
80
Ibid 437 [295] (emphasis added).
81
Ibid 403 [159] (Gummow, Hayne and Heydon JJ).
82
Ibid 373 [53] (McHugh J).
83
In this respect the reasoning is similar to that adopted by the Court in Cheatle v The Queen
(1993) 177 CLR 541 regarding unanimous jury verdicts in the context of s 80 of the
Constitution. Indeed in Singh, Gleeson CJ reiterated the importance of the Cheatle approach
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judgment is the key characteristic, allegiance, as derived from historical sources,
considered in light of its continuing appropriateness and relevance for contemporary
conditions in Australian society. Thus, we may wonder what it means to say that the
'task does not end with the results of [the historical] inquiry'.84
A number of the judgments acknowledged the feudal origins of the concept of
allegiance between a subject and a sovereign power. As the joint judgment explained,
the concept has its root 'in the feudal idea of a personal duty of fealty to a lord from
whom land is held'.85 It was this history which prompted Gleeson CJ to observe in oral
argument that part of the disagreement in Singh, and in previous decisions of the High
Court with respect to the 'aliens' power, relates 'to whether or not the concept of
alienage is tied to the feudal concept of subjection to a monarch or whether it is related
to questions of citizenship and membership of the community.'86 Indeed, the joint
judgment noted Gummow J's warning in a previous decision that care is required in
'treating what Holdsworth wrote of the position in England centuries ago respecting
allegiance to the Crown as supplying in modern times a sufficient and adequate
discrimen between subjects or citizens and aliens.'87 Yet their Honours nonetheless
concluded that, since history demonstrates that by the end of the 19th century 'aliens'
included those who owed allegiance to another sovereign power, 'allegiance to a
foreign power' is today the discrimen of 'aliens' in the Australian Constitution.88
Consideration of this historical position in light of the question whether the
constitutional expression 'alien' has 'a different operation…100 years after
_____________________________________________________________________________________
of identifying an 'immutable' characteristic by reference to historical materials: Singh v
Commonwealth (2004) 209 ALR 355, 364–6 [24]–[27].
84
I note that other writers have also observed that differences in approaches to constitutional
interpretation do not necessarily lead to differences in result in particular cases: see Graeme
Hill, '"Originalist" vs "Progressive" Interpretations of the Constitution — Does it Matter?'
(2000) Public Law Review 159.
85
Singh v Commonwealth (2004) 209 ALR 355, 405 [165]. During the medieval period, as
McHugh J explains, 'all persons within the King's dominions owed a duty of allegiance to
the King': ibid 376 [61]. This was because the common law 'recognized the sovereign as the
supreme feudal lord of the people as well as the land': ibid 376 [63]. Thus, '[s]ubjects owed
the King the same duties of fidelity and obedience as vassals owed to their lord, for the
King was the sovereign lord': ibid. See also at 404–5 [164] (Gummow, Hayne and
Heydon JJ), reciting essentially the same history; and at 421 [228] and 430 [262]–[264] (Kirby
J).
86
Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ,
McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 11 February 2004) 4.
87
Singh v Commonwealth (2004) 209 ALR 355, 405 [164] (emphasis added), citing Re Minister
for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, 196–9. Indeed, I
note that in Ex parte Te, Gummow J stated that allegiance 'supplies no such discrimen
[between subjects and aliens] in modern times': 212 CLR 162, 196 [121].
88
It should be emphasized that Gummow J in Ex parte Te (and the joint judgment in Singh)
was criticizing the concept of allegiance in the context of the argument that an alien should
be defined as a person who does not owe allegiance to the Crown. However, relying on
allegiance to a foreign power as the discrimen is equally open to the criticism that it relies
on feudal notions of allegiance to a sovereign entity; rather than for example membership
of or connection to Australia.
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federation',89 may well have yielded a different conception of the key characteristic of
'alien'. It is clear that, by the end of the 19th century, British law had not satisfactorily
accommodated the notion of dual nationality.90 Yet, multiple nationality is now a
widespread and well accepted phenomenon.91 The number of individuals holding
multiple nationalities has continued to grow in recent decades internationally,92 and
an estimated 4.4 million Australian citizens today are able lawfully to possess more
than one citizenship.93 Indeed, the 2002 decision to repeal s 17 of the Australian
Citizenship Act 1948 (Cth), which had provided that Australian citizens lost that status
on acquiring a foreign nationality,94 reflected the view that this policy had become
'outmoded and discriminatory' and that, '[i]n a world of increasing mobility, it was
_____________________________________________________________________________________
89
Singh v Commonwealth (2004) 209 ALR 355, 404 [160] (Gummow, Hayne and Heydon JJ).
Their Honours explained that: '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', citing Sue v Hill (1999) 199 CLR 462 and
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 as examples.
90
Ibid 383 [83] (McHugh J). See also ibid 410 [181] where it is noted by Gummow, Hayne and
Heydon JJ that despite acknowledgement of the problem in the 19th century, 'the wider
problems of dual or multiple nationality remained unresolved.' It is also interesting to note
that the problem of the 'foreign allegiance' criterion vis-à-vis dual nationality was
acknowledged in oral argument. For example, Hayne J noted that if the focus is on
'whether allegiance is owed…to the foreign state', then 'we begin to get into difficulties, one
when we introduce more modern concepts of dual nationality': Transcript of Proceedings,
Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan, Heydon JJ, 11 February 2004) 10. As his Honour noted, 'the duality of
obligation is something that was not countenanced': ibid.
91
While there were early (failed) attempts in international law to discourage or abolish
multiple nationality, it now recognized to be 'a fact of international life': John R Dugard,
International Law Commission, First Report on Diplomatic Protection, [121]–[122], UN Doc
A/CN–4/506 (2000). For example, the attitude of European states in the 1960s was that
multiple nationality should be discouraged, since cases of multiple nationality 'are liable to
cause difficulties' and thus 'joint action to reduce as far as possible the number of cases of
multiple nationality […] corresponds to the aims of the Council of Europe': Preamble to the
Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of
Multiple Nationality, ETS 43 (entered into force 28 March 1968). However, 30 years later, the
1997 European Convention on Nationality, ETS 166 (entered into force 3 January 2000) not
only permits contracting states to provide for multiple nationality but also positively
requires recognition in certain closely circumscribed cases.
92
Aleinikoff and Klusmeyer for example note that 'there is no denying that its [multiple
nationality] incidence is widespread and growing', citing recent studies which reveal the
extent of the increase in the phenomenon of multiple nationality internationally: T
Alexander Aleinikoff and Douglas Klusmeyer, 'Plural Nationality: Facing the Future in a
Migratory World' in T Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship
Today: Global Perspectives and Practices (2001) 63.
93
Australian Citizenship Council, Australian Citizenship for a New Century (2000) 60–61.
94
Section 17 of the Act provided that an Australian citizen aged 18 or over who does 'any act
or thing, the sole or dominant purpose of which and the effect of which is to acquire the
nationality or Citizenship of a foreign country shall…cease to be an Australian citizen': ibid
60. Section 17 was repealed by the Australian Citizenship Legislation Amendment Act 2002
(Cth).
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considered anachronistic'.95 Moreover, it was acknowledged that there are many
reasons why Australian citizens may wish to retain or acquire a foreign citizenship, for
example for nostalgic reasons, or for practical considerations such as the existence of
property rights in a foreign country,96 none of which necessarily cast doubt on a
person's commitment to or connection with Australia.97 In light of these developments,
the notion that foreign citizenship is the defining criterion of alienage for constitutional
purposes does not arguably accord with modern realities.98 An approach which
focused instead on the degree of membership or connection with the Australian
community might have embodied a more modern conception of citizenship (or, to be
more accurate, non-alienage).99
_____________________________________________________________________________________
95
This was the view of the Joint Standing Committee on Migration (Parliament of the
Commonwealth of Australia, Joint Standing Committee on Migration, Australians All:
Enhancing Australian Citizenship (1994)), as cited in Rubenstein, Australian Citizenship, above
n 10, 142. These criticisms also related to the fact that prior to the amendment, persons born
with another citizenship but who acquired Australian citizenship could retain both
nationalities; but once a person was an Australian citizen, he/she could not acquire another
citizenship: see Rubenstein, Australian Citizenship, above n 10, 142.
96
Australian Citizenship Council, above n 93, 61.
97
As the Australian Citizenship Council stated: 'The law and practice of most countries with
which Australia likes to compare itself permits citizens of those countries to obtain another
citizenship without losing their original citizenship…These countries simply recognize that
they have an internationally mobile population and that they can retain connection with
this population even if another citizenship is acquired': ibid 65, cited by Rubenstein,
Australian Citizenship, above n 10, 142.
98
This was implicitly acknowledged by Kirby J in Singh v Commonwealth, although in the
context of responding to the plaintiff's argument that 'alien' should be interpreted as a
person who does not owe allegiance to the Queen of Australia. His Honour noted that:
'Constitutional notions of membership of the Australian community, and of who constitute
the "people of the Commonwealth", have kept pace with these [international and national]
changes. It is unrealistic, indeed highly artificial, to conceive of such membership today in
feudal terms': Singh v Commonwealth (2004) 209 ALR 355 at 430 [264].
99
Gaudron J conceived the resolution of the scope of the aliens power to involve questions of
'membership of the community constituting the Australian body politic': Nolan v Minister
for Immigration and Ethnic Affairs (1988) 165 CLR 178, 189. In Taylor she reiterated that, 'an
alien is "a person who is not a member of the community which constitutes the body politic
of the nation state from whose perspective the question of alien status is to be determined"':
Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 407. See also Kim Rubenstein, 'Meanings of
Membership: Mary Gaudron's Contributions to Australian Citizenship', (2004) 15 Public
Law Review 305, 306. Of course, Gaudron J's approach has never been accepted by a
majority of the Court. I note that at one stage of the oral argument in Singh, the
Commonwealth submitted that the power to pass laws with respect to 'aliens' means the
power to pass laws about people who do not have 'the necessary relationship with the
polity to be members of it': Transcript of Proceedings, Singh v Commonwealth (High Court of
Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 11 February
2004) 11. It is also interesting that the concept of citizenship or nationality has been
similarly conceived by the International Court of Justice: 'nationality is a legal bond having
at its basis a social fact of attachment, a genuine connexion of existence, interests and
sentiments, together with the existence of reciprocal rights and duties': Liechtenstein v
Guatemala ('Nottebohm Case') [1955] ICJ 4, 23, as cited in Sykes v Cleary (1992) 176 CLR 77, 107
(Mason CJ, Toohey and McHugh JJ).
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It is also difficult to reconcile this approach with other decisions of the High Court
which have considered the notion of 'allegiance' to a foreign power. In Singh, the
criterion of 'allegiance to another sovereign power' was applied to the plaintiff in a
fairly mechanical manner. That is, the mere fact of her Indian citizenship, conferred on
her automatically at birth by operation of law, was considered sufficient by the joint
judgment to establish her foreign allegiance, and thus alien status.100 However, in
Sykes v Cleary, the High Court held that the mere fact of 'continuing to possess a
foreign nationality' does not disqualify an Australian citizen for election to Parliament
under s 44(i) of the Constitution (notwithstanding that s 44(i) provides that a citizen of a
foreign power 'shall be incapable of being chosen as a member of Parliament'), as long
as that person has taken 'all reasonable steps to renounce that nationality'.101 This
implicitly assumes that the mere possession of a foreign nationality does not
necessarily involve 'allegiance' to that foreign power.102 In reaching that conclusion in
Sykes, Mason CJ, Toohey and McHugh JJ interpreted s 44(i) in light of the fact that it
'finds its place in a Constitution which was enacted at a time, like the present, when a
high proportion of Australians, though born overseas, had adopted this country as
their home'.103
B
Constitutional limits on the aliens power?
As explained above, it is well established that there must be some limit on the
Commonwealth's ability to determine the scope of its own power by deciding who
falls within the status 'alien'. In Singh, the Commonwealth sought to define such limits
by identifying the 'core' of the notion of alienage, or, to be more accurate, non-alienage,
which would be outside Commonwealth power.104 The argument was made that once
such a 'core' could be identified, the 'penumbra' — or outer limits of the concept —
would be within Parliament's power to regulate.105
The Commonwealth conceded in oral argument that such a core (of non-alienage)
would include, 'at least people who are born in Australia to parents who are Australian
_____________________________________________________________________________________
100 As the joint judgment explained in summarizing their Honours' argument: 'As a citizen of
India the plaintiff has obligations, "owes allegiance", to a nation other than Australia. She
is, therefore, a person within the class referred to in s 51(xix) as "aliens"': Singh v
Commonwealth (2004) 209 ALR 355, 400 [144].
101 Sykes v Cleary (1992) 176 CLR 77, 107 (Mason CJ, Toohey and McHugh JJ); see also 113
(Brennan J), 131 (Dawson J).
102 For example, in Sykes v Cleary, Mason CJ, Toohey and McHugh JJ state that, 'it would be
wrong to interpret the constitutional provision in such a way as to disbar an Australian
citizen who had taken all reasonable steps to divest himself or herself of any conflicting
allegiance': ibid 107.
103 Ibid.
104 See Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ,
McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 43: 'there is a
limitation on that power where one trespasses on core concepts'.
105 This presumably draws on the work of legal theorist H L A Hart who observed that, in
legal interpretation, especially constitutional interpretation, '[t]here must be a core of
settled meaning, but there will be, as well, a penumbra of debatable cases in which words
are neither obviously applicable nor obviously ruled out': 'Positivism and the Separation of
Law and Morals' (1958) 71(4) Harvard Law Review 593, 607. Interestingly, however, he did
not use this dichotomy to explain the respective roles of court and legislature; rather to
explore the relationship between law and morality: see at 608.
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citizens, and it may well extend to people who are Australian permanent residents'.106
Thus, where conditions of both jus soli and jus sanguinis are present, a person
presumably 'could not possibly answer the description of "aliens"'.107 However, as
Kirby J observed in Singh, such concessions on behalf of the Commonwealth cannot
'necessarily be taken as binding future governments or parliaments'.108
Ultimately, as explained above, the joint judgment preferred to identify the 'central
characteristic' of the status alien by reference to foreign allegiance.109 While only three
of the five majority judges in Singh formulated a specific test or criterion for assessing
whether a person is properly within the 'aliens' power, in Re Minister for Immigration
and Multicultural and Indigenous Affairs; Ex parte Ame ('Ame'), handed down on 4
August 2005, a joint judgment comprising six judges held that the consequence of
Singh is that, 'the legal status of alienage has as its defining characteristic the owing of
allegiance to a foreign sovereign power'.110
The challenge is to ascertain how that determining characteristic assists in delimiting
the scope of Parliament's power. For example, what does the central characteristic of
'foreign alienage' tell us about whether or not the Commonwealth can legislate to alter
existing citizenship laws so as to provide that all persons born outside Australia
(regardless of parentage) are no longer capable of obtaining citizenship? Or, to use an
example which was far more troubling for a number of judges in oral argument in
Singh, can Parliament legislate to denationalize all Australian-born citizens who have
at least one foreign-born parent, grandparent or great grandparent? Would the answer
depend on whether there was a racial element to such a policy?
If citizenship is a mere statutory benefit, then, according to existing authority,
Parliament may legislate to withdraw it.111 On the other hand, if the conferral of
statutory citizenship also carries with it (either alone or in conjunction with other
indicia of connection to the Australian community) conferral of the status of non-alien,
and/or some kind of constitutional nationality, then Parliament's power to alter such
constitutional status (by amending the Australian Citizenship Act) may be limited. This
highlights the continuing importance of the question whether there is some
essential/core/immutable notion of alien (and its converse non-alienage) beyond that
identified in Singh. Two specific manifestations of this uncertainty, namely the
categories of stateless persons and dual citizens, will first be considered, before turning
to deprivation of citizenship more generally.
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106 Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ,
McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 44.
107 Pochi v Macphee (1982) 151 CLR 101, 109.
108 Singh v Commonwealth (2004) 209 ALR 355, 431 [267].
109 In particular, the joint judgment noted: 'It may be doubted whether metaphorical
references to the "penumbra" of the meaning of a constitutional expression or, as it was put
in oral argument, the "core" meaning of a constitutional expression, can be of great
assistance in any task of constitutional interpretation': ibid 401–2 [152].
110 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 218
ALR 483, 495 [35] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ)
(emphasis added).
111 Kartinyeri v Commonwealth (1998) 195 CLR 337, 355–356 [13], 375–376 [67]–[68] (cf 421–422).
See also ibid 509 [93] (Kirby J).
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Stateless persons
In principle, since a stateless person does not enjoy the citizenship or nationality of any
state, it is difficult to understand how such a person could be said to owe allegiance to
a 'foreign sovereign power'. However it is important to note that in the joint judgment
in Singh, their Honours concluded that what had remained unaltered throughout the
19th century was that 'aliens' included those who owed allegiance to another sovereign
power, 'or who, having no nationality, owed no allegiance to any sovereign power.'112
Further, it is implicit in Kirby J's decision in Singh that a stateless person also falls
within the aliens power, since, as mentioned above, his Honour found that it was
unclear that Singh had in fact acquired Indian citizenship.113
Notwithstanding this, it is still open to question whether Singh, on its proper
reading, can be said to foreclose an argument that a stateless person born in Australia
is outside the scope of the aliens power. The joint judgment in Singh sought to establish
'what it is that gives a person the status' of alien, and in doing so, emphasized
repeatedly that what gives a person that status is 'owing obligations to another
sovereign power'.114 As explained above, this essential characteristic was largely
derived from historical analysis which revealed that, by the end of the 19th century, the
one constant feature of the term 'aliens' was that 'the alien "belonged to another"'.115 It
is less clear whether historical analysis supports the view that the term also included
stateless persons, particularly given that, as Gummow J noted in Al-Kateb, the
phenomenon of stateless persons 'achieved significance only in the course of the
twentieth century'.116 The conclusion that the reference to stateless persons in Singh
thus constitutes obiter is strengthened when one considers that the joint judgment in
Ame confirmed that 'the legal status of alienage has as its defining characteristic the
owing of allegiance to a foreign sovereign power.'117
In a post-Singh decision which considered its application to stateless persons, the
Full Federal Court noted that the joint judgment in Singh 'concentrated on the central
_____________________________________________________________________________________
112 Singh v Commonwealth (2004) 209 ALR 355, 412 [190] (emphasis added).
113 Indeed, this authority was relied upon by Hayne J in a post-Singh decision dismissing an
application for order nisi by a stateless person otherwise in a similar situation to Singh. His
Honour acknowledged that the central characteristic of alienage was identified in Singh as
'owing obligations (allegiance) to a sovereign power other than the sovereign power in
question'; but reasoned that the fact of that 'central characteristic' does not 'deny the
proposition which otherwise underpinned the decision of at least a majority of the Court in
Singh that the aliens power' extends to stateless persons: Transcript of Proceedings,
Applicant A269/2003; Ex parte – Re Manager Baxter Immigration Detention Centre [2004]
HCATrans 570 (High Court of Australia, Hayne J, 13 December 2004) 19. It should also be
noted that Hayne J was not satisfied that the applicant in that case would, in any event, 'be
regarded by Afghani authorities as stateless': at 18.
114 Singh v Commonwealth (2004) 209 ALR 355, 414 [200]. See also at 402 [154]: 'These reasons
seek to demonstrate that a central characteristic of the status "alien" is, and always has
been, owing obligations to a sovereign power other than the sovereign power in question'
(Gummow, Hayne and Heydon JJ).
115 Ibid 412 [190].
116 Al-Kateb v Godwin (2004) 208 ALR 124, 146 [80].
117 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 218
ALR 483, 495 [35] (emphasis added).
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notion' of foreign allegiance.118 However, the Court took the view that there was
nothing in the joint judgment in Singh contrary to the proposition that a stateless
person is an alien.119 Significantly, the Court proceeded to explain that the applicant
was an alien, 'simply because, like a citizen of a foreign country, a stateless person lacks
any constitutionally significant relationship with Australia'.120 However, this appears to
depart from the reasoning in Singh, since none of the majority judgments purported to
define the status 'alien' by reference to a person's connection to or relationship with
Australia.121 The Full Federal Court's analysis suggests that one must identify a set of
positive features that constitute the core or essential characteristics of non-alien, that is,
the content of a 'constitutionally significant relationship', in order to ascertain whether
a person is outside the ambit of the aliens power. The fact that the Full Federal Court
adopted this approach may indicate the limitations of the 'foreign allegiance' criteria in
further defining the parameters of the aliens power. The referral of Koroitamana to a
Full Bench of the High Court indicates that serious questions remain concerning the
application of Singh to the category of stateless persons.122
Dual nationals
Another uncertain category following Singh is that of dual nationals, that is, those
Australian citizens who also 'owe allegiance to a foreign power'. Once an exclusive
criterion (owing allegiance elsewhere) rather than an inclusive criterion (owing
allegiance to Australia; membership of the Australian community) is adopted, the
mere fact of foreign citizenship would appear to render a person an 'alien' within the
meaning of the Constitution. Indeed, so much appears to have been confirmed by Kirby
J in Ame, where his Honour noted that once the plaintiff had become a citizen of a
foreign state (in that case Papua New Guinea):
in accordance with Singh, it was competent for the Australian Parliament…to provide for
the termination of the applicant's statutory status of Australian citizen…It did not have to
do so. It might have provided for dual citizenship (a later legal development in
Australia). But as a matter of constitutional power, the legal entitlement existed.123
The practical significance of this is that it would presumably be open to Parliament
to legislate for the automatic removal of Australian citizenship of all persons who have
or acquire a foreign nationality, regardless of the circumstances in which the foreign
citizenship was acquired, and regardless of the individual's ability to divest himself or
herself of that foreign nationality. It may be that a dual national who had a sufficient
connection with Australia (for example, who was born in Australia to Australian
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118 Koroitamana v Commonwealth of Australia (2005) 142 FCR 391, 392 [6].
119 Ibid.
120 Ibid (emphasis added).
121 I note that in Singh v Commonwealth (2004) 209 ALR 355, 430 [264] Kirby J made some
reference to '[c]onstitutional notions of membership of the Australian community, and of
who constitute the "people of the Commonwealth"'; however, as explained above, his
Honour does not purport to define 'non-alien'/'alien' by reference to such notions since he
did not in fact devise a core definition.
122 See Koroitamana & Anor v Commonwealth [2005] HCATrans 782 (30 September 2005)
(McHugh and Callinan JJ).
123 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 218
ALR 483, 515 [116] (Kirby J).
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parents) could be said to 'not possibly answer the description of alien';124 however this
would be difficult to elicit from the reasoning in Singh.
Deprivation of statutory citizenship
The Court was presented with the opportunity to consider, in the post-Singh context,
the scope of Parliament's power to withdraw statutory citizenship in Ame. The
background to the case was that following the achievement of Papuan independence in
1975, the Governor-General promulgated regulations, pursuant to s 6 of the Papua New
Guinea Independence Act 1975 (Cth), which provided that persons who became citizens
of the Independent State of Papua New Guinea on Independence Day ceased to be
Australian citizens.125
The applicant in Ame submitted that Parliament 'lacked the legislative capacity to
deprive the applicant of his Australian citizenship' in this manner. In particular, it was
argued that there is a limitation inherent in s 51 (xix) 'that prevents that power from
being applied unilaterally (that is, without the consent of the individual manifested by
renunciation or some similar act) to change a person's status' from non-alien to
alien.126 Further, it was submitted that all Commonwealth legislative powers were
constrained by a 'broader constitutional principle that prevented the Federal
Parliament and the Executive Government of the Commonwealth from depriving a
person such as the applicant of his fundamental constitutional status as an Australian
national ("citizen")'; a status described 'by reference to the provisions in the Constitution
referring to a "subject of the Queen" or the notion of the "people of the
Commonwealth".'127
The joint judgment (of six judges) focused on the asserted limitation on s 51(xix) and
emphasized that this issue did not directly arise since the Court was concerned only
with 'whether any such limitation exists in relation to the inhabitants of external
territories',128 that is, with s 122 of the Constitution. Thus, '[w]hat follows is to be
understood in that context'.129 Notwithstanding this caveat, however, the joint
judgment immediately noted that, '[i]n any event, no limitation of the kind proposed
applies to the power conferred by s 51(xix).'130 In particular:
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124 Pochi v Macphee (1982) 151 CLR 101, 109.
125 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 218
ALR 483, 489 [16] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ).
126 Ibid 495 [34] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ). I note that
in the reported version of this decision, the applicant's argument is framed as a limitation
'that prevents that power from being applied unilaterally (that is, without the consent of
the individual manifested by renunciation or some similar act) to change a person's status
from alien to non-alien': ibid, 495 [34]. However, this is a mistake, as the applicant's
argument was clearly that he had attained the status of non-alien (by virtue of being
accorded statutory citizenship at birth) which could not unilaterally be altered to alien.
127 Ibid 509 [92] (Kirby J).
128 Ibid 495 [34].
129 Ibid.
130 Ibid 495 [35].
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In Singh, a majority of the Court rejected the view that concepts of alienage and
citizenship describe a bilateral relationship which is a status, alteration of which requires
an act on the part of the person whose status is in issue.131
This would appear to be at least an implicit rejection of the view expressed by
Gaudron J in Taylor that the Parliament's power to deprive a person of Australian
citizenship can only be exercised 'by reference to some change in the relationship
between the individual and the community.'132 It is also a clear (although not
explicit)133 rejection of the US position which holds that the constitutional guarantee of
citizenship may be lost only where a person 'voluntarily relinquishes that
citizenship'.134
Justice Kirby agreed with the joint judgment in Ame as to the answers to the stated
questions in that case; however, his Honour was far more troubled by the question of
limits on Commonwealth power to withdraw citizenship. His Honour observed that:
The deprivation of nationality, including nationality by birth and especially in cases
affecting minority ethnic communities, has been such a common affront to fundamental
rights that I would not, without strong persuasion, hold it to be possible under the
Constitution of the Australian Commonwealth.135
Given the particular position of external territories in the constitutional structure, the
question of Parliament's broader power to withdraw citizenship for those in internal
territories, or indeed more generally, did not arise in that case.136 However, it is clear
from Kirby J's judgment that his Honour considers that there remains a concept of
constitutional nationality, since his Honour emphasized that the outcome in Ame
'affords no precedent for any deprivation of constitutional nationality of other
Australian citizens whose claim on such nationality is stronger in law and fact than that
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131 Ibid 496 [36].
132 Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 411. See also Gaudron J's views in Nolan v
Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, 193, where her Honour
stated: 'As the transformation from non-alien to alien requires some relevant change in the
relationship between the individual and the community, it is not, in my view, open to the
Parliament to effect that transformation by simply redefining the criterion for admission to
membership of the community constituting the body politic of Australia'. See also
Rubenstein, 'Meanings of Membership' above n 99, 307. It may be that the particular facts
in Ame can be reconciled with Gaudron J's views if her Honour can be assumed to have
used 'community' interchangeably with 'polity', since it could be argued that Papua New
Guinea’s independence constituted a change in the relationship between the individual
and the polity in that case. However, the broad language used by the Court in Ame appears
to go beyond the facts in that case to reject entirely the notion that citizenship 'describe[s] a
bilateral relationship which is a status, alteration of which requires an act on the part of the
person whose status is in issue': 218 ALR 483, 495 [36].
133 The joint judgment does not refer at all to the American authority.
134 Afroyim v Rusk, 387 US 253, 268 (1967). See also Vance v Terrazas 444 US 252 (1984). This
authority had been relied upon by the applicant in Ame, as providing appropriate
analogous principles notwithstanding the different constitutional context of the US:
Transcript of Proceedings, Re Minister for Immigration and Multicultural and Indigenous
Affairs; Ex parte Ame [2005] HCATrans 66 (High Court of Australia, Gleeson CJ, McHugh,
Gummow, Kirby, Hayne, Callinan and Heydon JJ, 3 March 2005) 52–53.
135 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 218
ALR 483, 510–11 [96].
136 Ibid 511–13 [101]–[106].
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of the applicant.'137 It is not clear precisely what this notion of constitutional
nationality would comprise. However, the emphasis on 'law and fact' and the fact that
Kirby J distinguished the 'fragile and strictly limited character of the "citizenship" of
Australia which the applicant previously enjoyed' (a limited form of citizenship that
did not even allow for automatic entry into Australia) from 'other circumstances of
local nationality having firmer foundations',138 suggests that identifying the content
would involve a qualitative assessment of the nature of a person's connection with
Australia, including (previously enjoyed) statutory rights. Similarly, it is not clear
precisely what the consequences would be of attaining such constitutional status,
although some indication is provided in the reference to 'rights of due process that
might arise' in cases of local nationality with former foundations.139 Ultimately
however we are left with the conclusion that while there are 'fundamental notions of
nationality, sufficiently expressed or necessarily implied, in the Australian Constitution',
the 'limited and special circumstances of the applicant's case do not require the
refinement of such limitations.'140
V
CONCLUSION
The recent High Court decisions in Singh and Ame address two of the most
fundamental questions pertaining to Australian citizenship law today. The first is the
criterion for defining the status 'alien' and in particular the degree to which the
Commonwealth's ability to define that status is 'at large'.141 This case-note has argued
that the formulation adopted by a majority of the Court is open to criticism on the basis
that it is derived solely from historical sources without regard to its contemporary
relevance, and that its practical application to various categories of persons remains
uncertain and problematic. The second question is whether, assuming there is a
constitutional category of non-alien, Parliament can unilaterally change a person's
status from non-alien to alien. Previous authority established that Parliament alone
retains the power to determine the conditions on which a person may be naturalized;
in other words that a person cannot change status from alien to non-alien merely by
'absorption' into the Australian community (without undergoing a process of
naturalization).142 However, following Ame, it remains unclear whether Parliament
enjoys an equally unilateral power to alter a person's status from non-alien to alien; or
whether some limitations exist to circumscribe Parliament's power. While these cases
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137 Ibid 516 [117] (emphasis added).
138 Ibid 516 [118].
139 Ibid.
140 Ibid 516–7 [120].
141 See Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143, 145
(Gleeson CJ, Gummow and Hayne JJ): 'The "ordinary understanding" of the term "alien",
correctly, is not said to be at large.'
142 See Pochi v Macphee (1982) 151 CLR 101, 111. This was affirmed in Re Minister for
Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, 171 [24] (Gleeson CJ),
179 [56] (Gaudron J), 188 [90] (McHugh J), 195 [119] (Gummow J), 219–20 [210] (Hayne J).
However, I note that Kirby J accepted that there might be 'extreme' cases in which 'noncitizens, who were long-term residents although never naturalized (often for legitimate
reasons) might exceptionally be regarded as outside the aliens power': 217–8 [200]. In
addition, Callinan J did not hold that an alien can never become a non-alien by absorption
–only that in this case no such absorption had occurred: 228 [227].
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have thus provided some insight into the nature and extent of Commonwealth power,
we must depend upon future jurisprudence to develop a coherent, contemporary
theory of constitutional membership in the Australian body politic.