BY ELISA ARCIONI AND RAYNER THWAITES

Introduction

The Chetcuti decision of 12 August 2021 is the High Court’s latest attempt to delineate a concept of constitutional membership. Here membership is understood as ‘non-alienage’; in practical terms, immunity to deportation. The question was whether Mr Chetcuti, a British subject who arrived in Australia before the advent of statutory citizenship in 1949, could be deported. He had never acquired Australian citizenship, but argued that he was a non-citizen non-alien. The majority in Shaw (2003) had held that ‘the aliens power has reached all those persons who entered this country after the commencement of the Nationality and Citizenship Act 1948 (Cth) on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised’ (at [32]). Chetcuti was addressed to the rarefied and declining class of pre-1949 arrivals. The implications of its reasoning are unlikely to be so confined, and help to chart the shifting terrain of constitutional membership, informing upcoming cases on citizenship and alienage, among them Alexander’s case on citizenship deprivation.

Facts and background

Frederick Chetcuti was born on 8 August 1945, in Mosta, present day Malta. He was born a British subject, the same legal status held by all Australians at federation. He was two when he arrived in Australia on 31 July 1948, six months prior to the commencement of the Nationality and Citizenship Act 1948. He has never held Australian citizenship. Apart from a period of approximately eight months spent in Malta between November 1958 and July 1959, Mr Chetcuti has remained in Australia. In 1964 he automatically acquired Maltese citizenship. He has voted in local, state and federal elections in Australia since at least 1970, as a British subject.

In 1993, Mr Chetcuti was found guilty of murder and sentenced to imprisonment for 24 years. The next year he was deemed to be granted an Absorbed Persons visa under s 34 of the Migration Act 1958 (Cth). In 2011 he was sentenced to two years imprisonment for assault of an inmate, the sentence to be served concurrently with his existing sentence. In 2017, shortly before his sentence came to an end, the Minister for Immigration and Border Protection purported to cancel his visa. On release from prison Mr Chetcuti was placed into immigration detention. This purported visa cancellation decision was the first of several – the first two quashed by orders of the Federal Court. His challenge in the High Court’s original jurisdiction, brought while a Federal Court challenge to a third visa cancellation decision was reserved, claimed his removal and detention were unlawful on the basis that the Migration Act did not apply to him – as he was a non-alien. Justice Nettle heard the case sitting alone. In his last judgment before retirement, Nettle J rejected Mr Chetcuti’s arguments, concluding that Mr Chetcuti was an alien, subject to immigration detention and deportation (see discussion in Elisa Arcioni, ‘Chetcuti v Commonwealth: Justice Nettle’s Last Words (2021) 32 Public Law Review). Mr Chetcuti then appealed to the Full Court of the High Court.

A new class of non-citizen non-aliens?

It was only in 1982 that the long-standing doctrinal assumption that a British subject could not be a constitutional alien was rejected. Writing in Pochi v McPhee (1982), Gibbs CJ stated that the assumption that ‘a person who is a British subject under the law of the United Kingdom cannot be an alien within s 51(xix) [the aliens power] is incorrect’. In support of this statement Gibbs CJ referenced changes indicating Australia’s independence and the severing of imperial ties. A consequence of this conclusion was that the aliens power could now be used to regulate the admission and removal of non-citizen British subjects from Australia. The immigration power in s 51(xxvii) was no longer needed to achieve that objective.

Pochi v McPhee catalysed a wider re-alignment in Australian statute law in the 1980s, in which the status of British subject was expunged from the citizenship and migration statutes. This shift put at issue the status of British subjects who had come to Australia in the window between the advent of Australian citizenship and the point at which the United Kingdom unequivocally became a foreign power, and who had never registered or naturalized as Australian citizens.

A trilogy of High Court cases – Nolan (1988), Patterson (2001), Shaw (2003) – concerned challenges to deportation orders against non-citizen British subjects. The litigants in these cases were British subjects who arrived and lived in Australia before the statutory changes in the mid-1980s referenced above. Their claim was that they enjoyed a special status as non-alien, non-citizen members of the Australian constitutional community.

The High Court’s response to an argument of this form fluctuated: a majority rejected the argument in Nolan, accepted it in Patterson, and ultimately rejected it in Shaw. In Shaw, the High Court rejected the existence of a category of non-citizen non-aliens constituted by British subjects who came to Australia in the transitional period. Shaw inaugurated a period in which citizen and alien were understood as antonyms. This understanding came to an end with Love (2020). In Love a majority of the High Court recognised the possibility of non-citizen, non-alien status with reference to a different class of persons; Aboriginal Australians without statutory citizenship.

The assumption that citizenship and alienage were antonyms was always attended by the Pochi exception. The Pochi exception is short-hand for Gibbs CJ’s oft-quoted comment that

[c]learly the Parliament cannot, simply by giving its own definition of “alien”, expand the power under s 51 (19) to include persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word (at 109).

The nature and extent of constitutional limits on legislative determination of alienage remained speculative until Love when Aboriginal Australians were held to be outside the category of ‘alien’. Mr Chetcuti made a claim for a second category of persons holding non-citizen non-alien status. This category was British subjects who had arrived in Australia before the advent of Australian statutory citizenship and remained in Australia without ever acquiring Australian citizenship.

The line drawn by the High Court in Shaw’s case was that the aliens power extended at least to British subjects who entered Australia after the introduction of Australian statutory citizenship on 26 January 1949. The issue for the Court in Chetcuti was whether the aliens power extended to six months before the introduction of Australian citizenship. More accurately, there were two questions before the Court: was Mr Chetcuti an alien on arrival in 1948, and if not, had he subsequently become one such that he could be deported in 2021?

The judgments in Chetcuti

A majority of six members of the Court held that Mr Chetcuti was an alien, such that the deportation power applied to him. Commonality of result covered marked divergence of reasoning between the majority judgments. There were joint reasons authored by Kiefel CJ, Gageler, Keane and Gleeson JJ, and concurring judgments from both Gordon J and Edelman J. Justice Steward wrote the sole dissent.

The joint reasons held that by 1948 Australia’s independence from Empire had progressed to the point where it was open to the Parliament, through the use of the aliens power, to treat statutory citizenship as determinative of constitutional membership; non-alienage. Parliament had availed itself of this opportunity by enacting the Nationality and Citizenship Act 1948, commencing on 26 January 1949. Mr Chetcuti was not in the category of those automatically converted from British subjects into Australian citizens by the Act (which included those British subjects born or naturalized in Australia, or who had been ordinarily resident for five years). The joint reasons emphasised that it had been within Mr Chetcuti’s power to rectify this state of affairs through naturalization. He had not done so. Accordingly, he was an alien and could be deported. He may not have been an alien when he arrived, but he became one following the introduction of Australian statutory citizenship.

The concurring judgments of Gordon J and Edelman J emphasised the inability of statutory concepts to determine constitutional membership. In this, they reinforced their respective reasoning in Love. Justice Gordon emphasised, as she had in Love, that Parliament’s ‘power to define, for some purposes, who are members of the Australian community does not constitute a power to define the scope of the alien’s power under s 51(xix)’ (at [37]). Citizenship was ‘relevant to’ but not ‘determinative’ of alienage (at [38]). Justice Edelman similarly emphasised that ‘the meaning of “alien” in the Constitution is not, and never has been, “any person who has not received Australian citizenship”’ (at [69]). In application to the facts, Gordon J concluded that Mr Chetcuti was an alien when he arrived in Australia. Justice Edelman held that the only question he needed to determine was whether Mr Chetcuti was an alien by 2017, which he held he was. Justice Edelman’s reasoning suggests that he thought the better view was that Mr Chetcuti became an alien at some point subsequent to his arrival in Australia.

In dissent, Steward J accepted, if reluctantly, that Shaw had drawn a ‘bright line’ as to when British subjects, not born in Australia, became aliens. That line was 26 January 1949, the date the Nationality and Citizenship Act 1948 entered into force (at [101]). This was a ‘necessary and convenient constitutional fiction’ by which he would abide (at [134]). He held that Mr Chetcuti was not an alien on his arrival six months before this ‘bright line’ in 1948 (at [135]). And that he had not subsequently become an alien (at [145]). Justice Steward’s reasoning on the latter point turned on the smooth transference of Mr Chetcuti’s allegiance from the Queen in right of the United Kingdom to the Queen in right of Australia.

Observations and looming cases

The wider significance of Chetcuti lies in how the various judgments speak to the constitutional bounds on membership. The constitutional limits on the legislative malleability of non-alienage will be an issue in coming cases. A challenge to citizenship deprivation powers has been filed with the Court in Alexander’scase. Mr Alexander was purportedly stripped of his Australian citizenship in July 2021, pursuant to the deprivation power in s 36B of the Australian Citizenship Act 2007 (Cth). He is currently in detention in a Syrian jail. Alexander, by his guardian, contends (among other matters) that in its purported application to him, s 36B is beyond the legislative competence of Parliament under the aliens power.

Questions of constitutional membership raise the nature of the relationship between statutory citizenship and constitutional non-alienage. One aspect of this has been the legal concepts that mediate this relationship. In earlier cases, notably Singh (2004) and Koroitamana (2006), the High Court drew on the concept of ‘allegiance’ for this role. Allegiance was also relied upon by the government to support the constitutionality of the new powers of citizenship deprivation introduced in 2015 – the subject of Alexander’s case. As the Minister noted in the second reading speech, the High Court ‘has found that an alien is a person who does not owe allegiance to Australia’. The deprivation measures seek to build on this by presenting deprivation as a consequence of disallegiant conduct (see s 36A of the Australian Citizenship Act 2007).

The concept of allegiance relied on for the deprivation powers is ‘thicker’; less formal than the concept employed in Singh and Koroitamana. In both of those earlier cases, allegiance was understood by the Court as a formal concept tied to and determined by statutory citizenship status. By contrast, the citizenship deprivation powers rely on a substantive concept of allegiance distinct from the possession or absence of statutory citizenship. Non-alienage is premised on statutory citizenship plus refraining from disallegiant conduct. That is, allegiance is additional to and distinct from (although it may impact upon) the formal statutory status of citizenship (see Helen Irving & Rayner Thwaites, ‘Comment: Australian Citizenship Amendment Act (Allegiance to Australia) Bill 2015 (Cth)’ (2015) 26 Public Law Review 143).

High Court comments in Chetcuti suggest allegiance has been demoted, at least for the majority. The joint reasons stated they could decide the case ‘without the need to explore common law notions of allegiance’ (at [34]) and quoted with approval an observation by Clive Parry from 1957 that the shift from subject to citizen saw the concept of allegiance ‘altogether swept away’ (at [21]). Justice Edelman expressly rejects the proposition that an alien should be defined as a person ‘not owing permanent allegiance to the Crown’ (at [61]) (cf Nettle J at first instance). Justice Edelman holds that the effect of allegiance on the constitutional concept of alienage ‘began to fade’ with the advent of statutory citizenship in 1949 (at [64] and [88]). He too quotes Clive Parry’s observation, noted above. The only judgment in which allegiance is central to the reasoning is that of Steward J, the sole dissent.

We do not take issue with the decision by most members of the Court to minimise the importance of allegiance. The concept did not contribute to analytic clarity in Singh or Koroitamana, and is arguably attended by ideas of obedience out of place in a democratic polity (see discussion in Rayner Thwaites & Helen Irving, ‘Allegiance, Foreign Citizenship and the Constitutional Right to Stand for Parliament’ (2020) 48 Federal Law Review 299). We simply observe that Chetcuti suggests a shift away from allegiance. It is not yet clear what will replace it. Any such shift will have implications for the legal theory the government has relied on for the constitutionality of powers to unilaterally deprive an Australian citizen of that status.

The judgments leave the authority of Love untouched. The joint reasons state that there is no need ‘to reexamine the present position of an Aboriginal Australian’ (at [34]). The various Justices show some constancy in their reasoning across the two decisions. The Chetcuti joint reasons are signed by the three dissents in Love, joined by Gleeson J (who joined the Court after Love). The reasoning in the joint judgment is consistent with treating statutory citizenship as determinative from its introduction. The insistence of Gordon and Edelman JJ in their respective concurring judgments that citizenship is relevant to, but not determinative of, alienage clearly aligns with their majority judgments in Love. Justice Steward, who joined the Court after Love, does not mention the decision.

Conclusion

The aliens power cannot be at large, and the restriction is to be found by identifying, by the appropriate method of constitutional interpretation, what class or classes of person could not answer that description – a long running issue. The High Court is yet to clearly coalesce around an interpretive approach that gives the constitutional dimension of membership; non-alienage, a solid foundation. Following Chetcuti, the relationship between statutory and constitutional status remains uncertain. In addressing the relationship the Court could do worse than consider the statement of Black J of the United States Supreme Court, regarding the constitutional limits on membership:

The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship’. (Afroyim v Rusk (1967) 387 US 253, 268).

Elisa Arcioni is an Associate Professor in Public Law at the University of Sydney.

Rayner Thwaites is a Senior Lecturer in Public and Administrative Law at the University of Sydney.

Suggested citation: Elisa Arcioni and Rayner Thwaites, ‘Chetcuti and constitutional membership: context, case and implications’ on AUSPUBLAW (13 October 2021) <https://auspublaw.org/2021/10/chetcuti-and-constitutional-membership-context-case-and-implications/>