BY GUY BALDWIN

Since the shift in focus for supporting Commonwealth migration legislation from the ‘immigration’ power under s 51(xxvii) of the Constitution to the ‘aliens’ power under s 51(xix) in the 1980s, there has been a great deal of litigation before the High Court about the scope of s 51(xix). Perhaps the most influential judicial dicta on the aliens power are those of Gibbs CJ in Pochi v Macphee in 1982 (with whom Mason and Wilson JJ agreed, comprising the majority in that case). His Honour said that ‘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 ordinary understanding of the word’, but that it could ‘treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian’ (at 109-110).

The High Court’s recent decision on s 51(xix) of Chetcuti v Commonwealth is the subject of an earlier AUSPUBLAW post on its implications for ‘[t]he constitutional limits on the legislative malleability of non-alienage’. I agree with Arcioni and Thwaites there that the aliens power ‘cannot be at large’, and requires constitutional limits. In this post, after briefly summarising the decision, I will focus on some particular difficulties with the approach of the plurality, comprising Kiefel CJ, Gageler, Keane and Gleeson JJ, concerning the relationship between the aliens power and citizenship. In particular, it is significant that the plurality did not fully quote the dicta from Pochi, omitting from consideration an important, settled limitation on the scope of the power to legislate with respect to aliens. Further, the plurality’s position that Australian citizenship legislation is enacted pursuant to the aliens power raises questions.

The decision

Frederick Chetcuti was born on 8 August 1945 in Malta, acquiring at birth the status of a British subject, and from 1 January 1949 the status of a citizen of the United Kingdom and colonies. He arrived in Australia on 31 July 1948. Malta became independent on 21 September 1964, at which date he lost the status of UK citizen and instead became a citizen of the State of Malta. In 1993, Mr Chetcuti was convicted of murder in Australia and sentenced to imprisonment for 24 years. In 2017, the Minister for Immigration and Border Protection cancelled his Absorbed Person visa (a class of visa extended to non-citizens who had ceased to be ‘immigrants’ before 2 April 1984, being the date from which the Commonwealth Parliament began relying on the aliens power for migration legislation) and he was taken into immigration detention. Mr Chetcuti challenged his detention on the basis that he was not within the reach of the legislative power with respect to aliens under s 51(xix). A 6-1 majority (Steward J dissenting) rejected this claim.

The plurality judgment placed emphasis on the enactment of the Australian Citizenship Act 1948 (Cth) (originally the Nationality and Citizenship Act 1948 (Cth)), which took effect on 26 January 1949 and created, for the first time, the concept of Australian citizenship. As the plurality explained it (at [32]),

[t]he appellant being a person born outside Australia whose parents were not Australians, it was open to the Parliament in the exercise of the aliens power through prescription of the criteria for the conferral of Australian citizenship set out in s 25(1)(d) of the Australian Citizenship Act to deny him the status of an Australian citizen and thereby to treat him as an alien in the transition that occurred on 26 January 1949.

Justice Gordon also concluded that the appeal should be dismissed, though with different reasoning. Her Honour emphasised that citizenship was a matter ‘relevant to alienage, but it is not determinative of alienage’ because ‘aliens’ was a constitutional term while ‘citizen’ was a ‘purely statutory concept’ (at [38]). Accordingly, it was ‘not the case that, on and from the commencement of the Australian Citizenship Act 1948 (Cth) on 26 January 1949, all persons who have not had the status of Australian citizens have been aliens’ (at [38]). However, her Honour found that ‘relevant constitutional and political changes’ had taken place ‘by 1948’ (at [44]-[45]). Thus, ‘[b]y 1948, “British subjects” were aliens in the constitutional sense; albeit a “class of aliens with special advantages in Australian law”’ (at [47]).

Justice Edelman was the final member of the majority. His Honour said that ‘[t]he unchanging, essential meaning of an “alien” in s 51(xix) of the Constitution is a foreigner to the Australian political community’ (at [53]). There was ‘some force’ in Mr Chetcuti’s submission that, in 1948, ‘he arrived in Australia as a British subject outside the constitutional conception of alien’ (at [53]). However, ‘the only question that needs to be decided is whether Mr Chetcuti was a constitutional alien at the time at which he is said to fall within the application of the Migration Act’ and ‘[i]n light of the many changes in political and social facts and circumstances since 31 July 1948, the contemporary application of the aliens power in s 51(xix) of the Constitution leads to the conclusion that Mr Chetcuti was within the scope of the aliens power at least from 2017’ (at [56]).

Justice Steward dissented. His Honour noted that it had been held in Nolan v Minister for Immigration and Ethnic Affairs (1988) that in 1900 ‘no subject of the British Crown was an alien within any part of the British Empire’ (at [97]). Thus, ‘[a]t some point following federation, British subjects, not born in Australia, became aliens of this country’ (at [100]). Although ‘[i]t is impossible to identify any bright line as to when this took place; in fact, it took place over time’, in Shaw v Minister for Immigration and Multicultural Affairs (2003), ‘a bright line was identified by this Court. A date was chosen. It was 26 January 1949’, being the date on which the Nationality and Citizenship Act came into effect (at [100]-[101]). Thus, ‘when Mr Chetcuti arrived in Australia, before 26 January 1949, he did so as a British subject and as a non-alien’, and he did not lose that status (at [135], [145]).

The significance of the entry into force of citizenship legislation

Both the plurality and Steward J placed importance on the date of entry into force of the Australian Citizenship Act. For the plurality, it appeared that from the date of entry into force of that legislation, those who did not hold Australian citizenship were capable of being treated as aliens (at [32]). However, for Steward J, the significance of the date was that those British subjects who arrived in Australia before it were not capable of being treated as aliens because ‘the plurality in Shaw drew a bright line by selecting 26 January 1949 as the date by which the Imperial Crown relevantly divided … British subjects who arrived in Australia after 26 January 1949 did so as aliens in the constitutional sense’ (at [134]).

Justices Gordon and Edelman, by contrast, placed less emphasis on the date of entry into force of that legislation. Justice Gordon doubted that it had ‘transformative effect’ in isolation, instead placing stress on earlier political developments (at [43]). Justice Edelman, similarly, said that ‘[t]here is no magic date when, like Cinderella at midnight, all British subjects who had no other connection to Australia which was capable of taking them outside s 51(xix) suddenly became capable of being treated as aliens in Australia’ (at [73]). Rather, the ‘legislative steps to complete independence were arguably not wholly concluded until the passage of the Australia Acts 1986 (Cth and UK)’ (at [78]).

In attributing special significance to 26 January 1949, the approaches of the plurality and Steward J both reflect the (four-judge) majority in Shaw, which, to a degree, shares the same emphasis on that date. But the plurality judgment also represents a significant further step beyond the holding in Shaw, despite the plurality’s statement that ‘[t]he answer to the appellant’s argument is to be found in the reasons for judgment of the majority in Shaw v Minister for Immigration and Multicultural Affairs’ (at [14]). In truth, as Steward J pointed out, Shaw only addressed the position of British subjects who arrived after 26 January 1949. Chief Justice Gleeson, Gummow and Hayne JJ explained this clearly in Shaw (at [32], emphasis added):

This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised. The scope of any earlier operation of the power does not fall for consideration. However, it may be observed that, like the other powers of the Parliament, s 51(xix) is not to be given any meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application in some future law.

Distinct from the other Justices, Edelman J addressed the position in 2017, at the time of cancellation of Mr Chetcuti’s visa. His Honour said that when British subjects could be treated as aliens by the Commonwealth Parliament within s 51(xix) ‘will depend upon the relevant facts and circumstances that exist at the time of application’, and ‘here, the time of application [was] the point at which Mr Chetcuti was detained under s 189 of the Migration Act following the cancellation of his visa in 2017’ (at [89]). In 2017, Mr Chetcuti’s ‘relevant circumstances were as follows: he was born outside Australia; he had no Australian parents; he was not an Australian citizen given that he had never been registered as an Australian citizen and had not been naturalised; and he was a citizen of a foreign country’; thus, ‘since at least 2017 … he was capable of being treated as an alien within s 51(xix)’ (at [94]).

That echoes the approach taken in Sue v Hill (1999) in the context of interpreting s 44 of the Constitution to determine if a citizen of the United Kingdom was a subject or citizen of a foreign power (and therefore ineligible for election to the Commonwealth Parliament). Finding that the United Kingdom had become a foreign power, Gleeson CJ, Gummow and Hayne JJ said that ‘because the question is whether, at the material time, the United Kingdom answered the description of “a foreign power” in s 44(i), it is not useful to ask whether that question could have been easily answered at some earlier time’ (at [49], emphasis added). Similarly, it is clear that by 2017, citizens of the United Kingdom were aliens (and in any event, Mr Chetcuti was not a citizen of the United Kingdom, having become a citizen of Malta). It may well have been unnecessary to identify the exact date at which his non-alienage was lost, because by the material time in 2017, Mr Chetcuti was an alien.

The aliens power and citizenship

In a key passage at [12], the plurality explained their view of the ‘settled understanding’ of the aliens power in what may be referred to as two propositions. The first is that

the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status.

The second is that

in determining who is and who is not to have the legal status of an alien, it is in general open to the Parliament to ‘treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian’.

Significantly, although the second proposition contains a quote from Gibbs CJ’s judgment in Pochi, their Honours omitted the other important quote from that judgment – which has been applied in later cases (for example, Shaw at [9], [22]) – that

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 ordinary understanding of the word.

The other three Justices all made reference to this limitation (at [37], [66], [104]).

In the next paragraph, the plurality referred to the ‘recognition by the majority in Love v The Commonwealth [and Thoms v The Commonwealth] of an exception in respect of a person who is an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2]’ and stated that ‘the appellant argues for recognition of a further exception’ (at [13]). But it seems surprising to describe the majority finding in Love (2020) as an ‘exception’. Neither plaintiff in that case even fell within the dictum their Honours quoted: they each had one Australian parent, and the dictum refers to those ‘whose parents were not Australians’, that is, parents in the plural. Moreover, the recognition by the majority in Love was made pursuant to the other dictum from Pochi – about persons who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word – that the plurality did not quote. It also may seem inapt to refer to the existence of constitutional non-aliens as an ‘exception’ when such a concept follows logically from the constitutional concept of ‘aliens’. That a head of legislative power has outer limits is not exceptional, but a normal feature of constitutionalism.

A further difficulty may arise from the plurality’s position that the ‘aliens’ power in s 51(xix) authorises the enactment of citizenship legislation. Referring to the Australian Citizenship Act, their Honours stated that the aliens power ‘supported the creation of the new status of an Australian citizen to be conferred prospectively by reference to legislatively established criteria’ and ‘supported as well the transitional conferral of that new status by reference to essentially the same criteria’ (at [29]). The plurality went on to apply this view in the key finding quoted above (at [32], emphasis added):

[t]he appellant being a person born outside Australia whose parents were not Australians, it was open to the Parliament in the exercise of the aliens power through prescription of the criteria for the conferral of Australian citizenship set out in s 25(1)(d) of the Australian Citizenship Act to deny him the status of an Australian citizen.

But if, say, those born in Australia to Australian parents cannot be treated as aliens, how is it possible that legislation granting citizenship to such persons is supported by the aliens power? That is not made clear, though perhaps the view is that the aliens power applies more broadly (to everyone) when Parliament is determining ‘who is and who is not to have the legal status of an alien’ through the enactment of citizenship legislation, and, for other purposes, such as deportation, it applies only to a narrower class of those who can be ‘treated’ as aliens. Whether such a tiered conception of the power is coherent seems uncertain. At a more basic level, it is counterintuitive that citizens from birth – who were never aliens – are granted citizenship pursuant to a power to legislate with respect to aliens.

The framers did not include a legislative power over citizenship in the Constitution, and indeed deliberately omitted a concept of citizenship from the document. One possibility that may be worth considering is that a power to enact citizenship derives from the concept of ‘naturalization’, also found in s 51(xix), rather than that of ‘aliens’. In Singh v Commonwealth (2004), McHugh J said that the term ‘aliens’ denotes a legal status, while ‘naturalization’ refers to a process (at [128]). Specifically, though, ‘naturalization’ refers to a process with an endpoint, which may imply the power to enact legislation for that endpoint, currently being citizenship. It is, after all, a peculiarity that the word ‘aliens’ has achieved its current degree of constitutional prominence. In the text of s 51(xix), ‘naturalization’ appears before ‘aliens’. Yet the ‘naturalization’ aspect of s 51(xix) has been treated as unimportant compared with ‘aliens’, which has been given increasingly far-reaching, and arguably unsuitable, work to do. Placing more emphasis on the word ‘naturalization’ as a basis for enacting citizenship legislation rather than ‘aliens’ may help to remedy this.

Conclusion

The need to find principled limits for the aliens power is an important issue for constitutionalism in Australia, since it cannot be the case that Parliament may define the ambit of its own legislative power under s 51(xix) through the notion of citizenship. Unfortunately, the judgment of the plurality in Chetcuti creates further confusion around the relationship between citizenship and alienage by omitting part of the relevant dicta from Pochi, which had placed an outer limit on legislative power in this area. The plurality judgment also raises difficulties about the suitable basis for enacting citizenship legislation, since conferral of citizenship in some circumstances – for example, upon those born in Australia to Australian parents – may not seem intuitively to fall within a power to make laws with respect to aliens. With Thoms returning to the High Court and the Commonwealth seeking an overturning of Love in the case of Montgomery, and the validity of citizenship stripping being challenged in Alexander, these issues are certain to remain significant.

Guy Baldwin is a PhD candidate at the University of Cambridge.

Suggested citation: Guy Baldwin, ‘Alienage and Citizenship after Chetcuti v Commonwealth’ on AUSPUBLAW (15 December 2021) <https://auspublaw.org/2021/12/alienage-and-citizenship-after-chetcuti-v-commonwealth/>.