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H v Minister for Immigration and Citizenship [2010] FCAFC 119 (15 September 2010)
Last Updated: 11 February 2011
FEDERAL COURT OF AUSTRALIA
H v Minister for Immigration and
Citizenship [2010] FCAFC 119
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Citation:
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Appeal from:
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Parties:
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NWH v MINISTER FOR IMMIGRATION AND CITIZENSHIP
and ADMINISTRATIVE APPEALS TRIBUNAL
MINISTER FOR IMMIGRATION AND CITIZENSHIP v VANESSA McMULLEN
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File number(s):
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NSD 1320 of 2009
VID 705 of 2009
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Judges:
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MOORE, KENNY & TRACEY JJ
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Date of judgment:
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Catchwords:
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STATUTORY INTERPRETATION –
Australian Citizenship Act 2007 (Cth) s 16(2) – whether
“parent” requires a genetic link – held: “parent”
used within the ordinary meaning
of the word – determination of ordinary
meaning of “parent” a matter for Tribunal
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Legislation:
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Cases cited:
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Place:
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Melbourne
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Division:
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GENERAL DIVISION
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Category:
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Catchwords
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Number of paragraphs:
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Counsel for the Applicant in NSD 1320 of 2009: |
Mr J A Gibson with Ms S Burchell (Pro Bono) |
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Counsel for the Respondent in NSD 1320 of 2009:
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Mr C Horan
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Solicitor for the First Respondent in NSD 1320 of 2009:
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Clayton Utz
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The Second Respondent in NSD 1320 of 2009 filed a submitting
appearance
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Counsel for the Applicant in VID 705 of 2009:
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Mr C Horan
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Solicitor for the Applicant in VID 705 of 2009:
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Clayton Utz
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Counsel for the Respondent in VID 705 of 2009
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Ms G Costello
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Solicitor for the Respondent in VID 705 of 2009
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Oboodi
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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ON APPEAL FROM THE
ADMINISTRATIVE APPEALS TRIBUNAL
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AND:
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MINISTER FOR IMMIGRATION AND
CITIZENSHIPFirst Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
- Leave
to amend the notice of appeal be granted.
- Ms
W be appointed as NWH’s next friend for the purpose of the appeal and the
formal requirements of O 43, including r 5(2),
of the Federal Court Rules be
dispensed with.
- The
appeal be allowed.
- The
decision of the Administrative Appeals Tribunal (“the Tribunal”) of
28 October 2009 be set aside and the matter be
remitted to the Tribunal,
differently constituted, to be heard and determined according to law.
- The
first respondent pay the applicant’s costs of and incidental to the
appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of
the Federal Court Rules.
The text of entered orders can be located using
Federal Law Search on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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GENERAL DIVISION
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VID 705 of 2009
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
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BETWEEN:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant
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AND:
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VANESSA McMULLEN
Respondent
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JUDGES:
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MOORE, KENNY & TRACEY JJ
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DATE OF ORDER:
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15 SEPTEMBER 2010
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WHERE MADE:
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MELBOURNE
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
- The
Minister for Immigration and Citizenship pay the respondent’s costs of and
incidental to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of
the Federal Court Rules.
The text of entered orders can be located using
Federal Law Search on the Court’s website
IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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GENERAL DIVISION
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NSD 1320 of 2009
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
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BETWEEN:
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NWH
Applicant
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AND:
BETWEEN:
AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant
VANESSA McMULLEN
Respondent
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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GENERAL DIVISION
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VID 705 of 2009
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
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BETWEEN:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant
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AND:
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VANESSA McMULLEN
Respondent
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JUDGES:
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MOORE, KENNY & TRACEY JJ
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DATE:
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15 SEPTEMBER 2010
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
THE COURT:
- These
two appeals from decisions of the Administrative Appeals Tribunal (‘the
Tribunal’) involve the construction of
s 16(2) of the Australian
Citizenship Act 2007 (Cth) (‘the Citizenship Act’), which
provides that a person born outside Australia on or after 26 January 1949
is
eligible to become an Australian citizen if, among other things, “a
parent of the person was an Australian citizen at the time
of the birth”.
In particular, in both these appeals under s 44(1) of the Administrative
Appeals Tribunal Act 1975 (Cth), the same fundamental question arises:
“Does ‘a parent of a person’ in s 16(2) of the Citizenship Act
mean
only a natural or biological parent of the person?”
- For
the reasons stated below, we conclude that the appeal in proceeding NSD 1320 of
2009 should be allowed, whilst the appeal in
proceeding VID 705 of 2009 should
be dismissed.
- Before
detailing the reasons for this conclusion, we outline the history of the appeals
and their factual backgrounds.
Procedural history
- At
the outset, it is important to note that these appeals are in the original
jurisdiction of the Court, being appeals brought under
s 44 of the
Administrative Appeals Tribunal Act 1975 (Cth). Section 44 provides for
appeals from the Tribunal to this Court “on a question of law”: s
44(1). Jurisdiction to hear and determine an appeal under s 44(1) is exercised
by this Court constituted as a Full Court if the Tribunal decision was that of a
presidential member and, after consulting
the Tribunal President, the Chief
Justice considers that it is appropriate for the appeal to be heard by a Full
Court: see s 44(3)(b). On 27 November 2009 and 3 December 2009, the Chief
Justice determined that these two appeals should appropriately be heard
by a
Full Court.
- Proceeding
NSD 1320 of 2009 is an appeal by NWH (an infant) against a decision of the
Tribunal, constituted by Deputy President Handley,
made on
28 October 2009, to affirm a decision by the Minister’s delegate
to refuse his application for Australian
citizenship: see NWH v Minister for
Immigration and Citizenship [2009] AATA 833 (‘H’). In
H, the Deputy President held that the child was not eligible to become an
Australian citizen under s 16 of the Citizenship Act because
he did not have a
biological parent who was an Australian citizen at the time of his birth. In
reaching this decision, the Deputy
President concluded that “the word
‘parent’ in s 16(2)(a) means biological parent”, adding
that:
This is consistent with the use of the word ‘descent’ in the heading
to Subdivision A of the 2007 Act, the relevant dictionary
meanings accorded to
the word ‘descent’, and with the structure and context of the 2007
Act, including, for example,
how provisions affecting adopted children are set
out.
- One
issue regarding the constitution of this appeal must be noted. NWH’s
citizenship application was completed on his behalf
by his mother, Ms W, as
provided for in the standard application form used by the Department of
Immigration and Citizenship. The
application form contains a declaration by
Ms W that she is a responsible parent of NWH. When the application
was denied,
Ms W, acting as NWH’s representative, commenced an appeal to
the Tribunal in NWH’s name. Ms W filed detailed written
submissions in
support of the appeal before the Tribunal. The present appeal was also
commenced by Ms W in NWH’s name,
although pro bono counsel has since
been obtained to represent him. Ms W has been actively involved in the case and
it is apparent
that she has consented to this representation. Ms W commenced
the appeal without first being appointed NWH’s next friend,
as O 43 r
1 of the Federal Court Rules contemplates and as the common law generally
requires. Nothing may, however, turn on this, and no point was taken by the
Minister.
Thus, in some cases, as for example, where a minor brings a
proceeding for judicial review of a decision of the Refugee Review Tribunal,
the
Court has held that the proceeding may be brought and continued without the
appointment of a friend or tutor: see Odhiambo v Minister for Immigration and
Multicultural Affairs [2002] FCAFC 194; (2002) 122 FCR 29; X v Minister for Immigration and
Multicultural Affairs [1999] FCA 995; (1999) 92 FCR 524; and Jaffari v Minister
for Immigration and Multicultural Affairs (2001) 113 FCR 10.
Contrast Akpata v Minister for Immigration and Multicultural and Indigenous
Affairs [2004] FCA 1619 at [24], [28]-[29], and also SZJXW v Minister for
Immigration and Citizenship [2008] FCA 143 at [10]- [11]. Where a friend has
not been appointed, the application is not void ab initio, but instead is
voidable: see R v Danaher; Ex parte Olzier Industries Pty Ltd [1969] VR
445 at 446. In the instant case, however, it is clear that Ms W is acting
on behalf of her son and it would probably be helpful
to regularise the
proceedings. Accordingly, an order should be made appointing Ms W as
NWH’s next friend for purpose of this
appeal and, to the extent necessary,
dispensing with any formal requirements of O 43.
- Two
months before the decision in H, on 27 August 2009, Deputy President
McDonald held that the word “parent” in s 16(2)(a) was not limited
to a biological parent and that Ms Vanessa McMullen could claim Australian
citizenship through either a biological
parent or a non-biological parent. As a
result, the Deputy President set aside the decision of the Minister’s
delegate refusing
Ms McMullen’s citizenship application and remitted the
matter with directions: see McMullen v Minister for Immigration and
Citizenship [2009] AATA 638 (‘McMullen’). Proceeding VID
705 of 2009 is an appeal by the Minister against this decision. The fact that
the Tribunal in McMullen identified two possible bases for citizenship
raises another issue, which is discussed further below.
Factual background
NWH
- NWH
is now about two years of age, having been born in China in September 2008. His
mother, Ms W, is a Chinese citizen. His putative
father, Mr H, is an Australian
citizen by birth. Ms W and Mr H married in China in June 2008.
- Ms
W lodged an application for Australian citizenship on her son’s behalf on
9 October 2008 at the Australian Consulate
in Shanghai. The application
named Mr H as her son’s father – a statement repeated in the
child’s birth certificate
accompanying his citizenship application. The
Minister’s delegate refused the application on 15 April 2009, on the
ground
that the child “is not descended from an Australian citizen parent,
and has no genetic link to an Australian citizen”,
noting
that:
The period when the child was conceived strongly appears to be during a time
when Ms W and Mr H were in different countries, and
thus the child, NWH, is not
the biological child of Ms W and Mr H.
When this office contacted [Ms W] about this, [Ms W] confirmed that Mr H is not
the biological father of the child, but that [Ms
W and Mr H] had met and married
in a ceremony in China prior to the birth of the
child.
On 19 May 2009, an application for review of the delegate’s decision
was filed in the Tribunal pursuant to s 52(1)(a) of the
Citizenship Act.
- As
already noted, relying on these somewhat sparse findings of fact, the Tribunal
upheld the delegate’s decision. In concluding
that the word
“parent” in s 16(2) of the Citizenship Act meant
“biological parent”, the Tribunal relied
particularly on the heading
“Citizenship by Descent”, which appears in front of Subdivision A of
Part 2 of the Citizenship
Act; the dictionary definitions of
“descent”; and the fact that the Citizenship Act has specific
provisions addressing
how various non-genetically related children of Australian
citizens, such as adopted children, can obtain citizenship. The Tribunal
noted
agreement with the view expressed in Kumar v Minister for Immigration and
Citizenship [2009] AATA 124; (2009) 107 ALD 178 at 202 [82] and indicated that it derived
little assistance from the Explanatory Memoranda preceding the enactment of the
Citizenship Act; or
from the provisions of the Family Law Act 1975 (Cth)
(‘the Family Law Act’) or the United Nations Convention on the
Rights of the Child, to which reference was made in the submissions filed on
behalf
of the child.
- On
18 November 2009, NWH (via Ms W) filed a notice of appeal from the
Tribunal’s decision. The notice of appeal was subsequently
amended. At
the hearing, counsel for NWH sought and was granted leave to amend his notice of
appeal in so far as necessary to raise
precisely the same question as that
raised by the Minister in the appeal from the decision in McMullen. The
single ground of appeal was that “the Tribunal erred in finding that
‘a parent of the person’ in s 16(2)(a)
of the [Citizenship] Act
means only a natural or biological parent of the
person”.
Vanessa McMullen
- Vanessa
McMullen is a citizen and resident of Fiji. Ms McMullen was born in Fiji on 11
December 1988. Her mother was a citizen
of Fiji.
- On
16 December 2008, Ms McMullen applied for Australian citizenship under s 16(1)
of the Citizenship Act. The application named
Mr Frederick McMullen as Ms
McMullen’s father, and indicated that Mr McMullen was an Australian
citizen by birth. On 22 December
2008, a delegate of the Minister refused the
application on the ground that Ms McMullen “did not have an Australian
citizen
parent at the time of birth”. The delegate’s letter of that
date further stated that: “DNA tests have shown that
the Mr Frederick
McMullen, nominated as the Australian citizen parent is not Vanessa’s
natural parent”. On 19 January
2009, Ms McMullen applied to the
Tribunal for review of the delegate’s decision. As noted earlier, in a
decision given
on 27 August 2009, the Tribunal set aside the delegate’s
decision.
- The
Tribunal heard oral evidence, on the applicant’s side, from Ms McMullen
and her mother in Fiji, Ms Akisi Dilagi; Mr Frederick
McMullen and his wife; and
Dr Simon Kennedy, a forensic psychologist. The Minister called no
witnesses.
- The
facts as found by the Tribunal were as follows:
(1) Ms McMullen is
the daughter of Ms Akisi Dilagi, a citizen of Fiji, and was born in Fiji.
During the time leading to Ms McMullen’s
conception, Ms Dilagi had
intimate relationships with both Mr Bill Davidson and Mr McMullen. Mr Davidson,
now deceased, is likely
to have been an Australian citizen. Mr McMullen is an
Australian citizen.
(2) In May 1988, Ms Dilagi, then residing in Fiji, informed Mr McMullen, then
residing in Melbourne, that she was pregnant with his
child. Mr McMullen
visited Ms Dilagi in Fiji several times during her pregnancy and again shortly
after the birth. He and Ms Dilagi
selected Vanessa McMullen’s name, and
her birth certificate states that Mr McMullen is her father. Around the
time of
the birth, however, Mr McMullen had some doubts as to whether he was in
fact Ms McMullen’s biological father. Shortly after
she was born, blood
tests were conducted. These tests established that Ms McMullen had a
different blood type from her mother
and the same blood type as Mr McMullen. Mr
McMullen’s doubts were resolved and he accepted that he was her biological
father.
(3) Before the birth, Mr McMullen purchased a house for Ms Dilagi and Ms
McMullen. He provided monetary support for Ms McMullen throughout
her
childhood. When she was three years old, Vanessa McMullen and her mother
visited Mr McMullen in Australia. Mr McMullen has
had regular telephone contact
with Ms McMullen and has visited her in Fiji at least once a year. In sum, Mr
McMullen “has
provided both material and emotional support to [Ms
McMullen] over the years and assumed as best he could . . . a father role to
[her]”. Ms McMullen regarded Mr McMullen as her father and he, after his
initial doubts, regarded her as his daughter. Ms
Dilagi too regarded Mr
McMullen and Ms McMullen as father and daughter. In addition,
Mr McMullen’s wife and the three
children of his marriage also
accepted Ms McMullen as Mr McMullen’s daughter. Mrs McMullen
referred to herself as Ms McMullen’s
step-mother.
(4) In 1999, a DNA test (conducted in connection with a previous Australian
citizenship application) indicated that Mr McMullen was
not Ms McMullen’s
biological father. Ms Dilagi considered the test mistaken, and Mr McMullen and
Ms McMullen accepted that
this was the case. In 2008, a further DNA test was
conducted in connection with Ms McMullen’s current citizenship
application.
The test confirmed that Mr McMullen was not Ms McMullen’s
biological father. In her evidence to the Tribunal, Ms Dilagi “maintained
that she had nominated Mr McMullen as Vanessa’s father because he had told
her, before Vanessa’s birth, he would look
after her, whatever
circumstances she faced” and that she “had accepted Mr McMullen as a
man of his word”. In
early 2009, after the receiving the results of the
second DNA testing, Ms Dilagi told Mr McMullen and Ms McMullen for the first
time
that Mr Davidson was Vanessa’s biological father. Ms
Dilagi’s statement “has not resulted in a change to
the existence or
closeness of the long established father/daughter relationship enjoyed between
Mr McMullen and [Ms McMullen]”.
- Based
on these facts, the Tribunal ultimately concluded that Ms McMullen had “a
biological father in the late Mr Davidson and
an accepted father in Mr
McMullen”. The Tribunal concluded that Ms McMullen’s relationship
with Mr McMullen satisfied
s 16(2)(a) of the Citizenship Act. In reaching this
conclusion, the Tribunal had regard to the expert evidence from Dr Kennedy,
forensic psychologist, who gave evidence “that a person who is not a
biological parent may assume the role of a parent for
a child by virtue of the
strength of attachment arising between the child and that other person”
and that “such a high
quality well [-]established relationship of the type
which arose where there was physical separation had occurred in the case of
Mr
McMullen and [Ms McMullen]”. Dr Kennedy said that “regular
telephone contact combined with irregular one to one contact
had resulted in a
very sound father/daughter relationship arising”.
- The
Tribunal also observed that the notion of parenthood was flexible and subject to
change “as science and the community changes”.
The Tribunal
rejected the submission that the term “parent” should be limited to
biological parentage. Describing the
facts as “unusual”, the
Tribunal found that there was a “father/daughter relationship”
between Mr McMullen
and the Ms McMullen, on the basis that he had believed
on reasonable grounds that he was her father, and had assumed that role over
an
extended period. Considering the nature of the relationship over time between
Mr McMullen and Ms McMullen, the Tribunal was of
the view that “it would
be unduly restrictive, unfair and unreasonable to determine in an administrative
sense [that the relationship]
was anything else other than a father/daughter
relationship”.
- In
the alternative, the Tribunal concluded that Ms McMullen’s citizenship
should be approved if her biological father, Mr Davidson,
was an Australian
citizen. The Tribunal stated: “While there is nothing raised by the
[Minister] to suggest otherwise than
Mr Davidson was at the time of [Ms
McMullen’s] birth an Australian citizen the Tribunal accepts that this is
something
which should be formally confirmed”. The Tribunal remitted the
matter with instructions:
to undertake the following procedure (if it becomes necessary to rely on ground
(b)) in the order stated:
(a) determine if Mr Davidson was an Australian citizen at the date of birth of
the applicant and if so accept him as being the applicant’s
father, or if
it transpires Mr Davidson is not an Australian citizen as at the date of
Vanessa’s birth, then
(b) accept Mr McMullen, an Australian citizen at the time of Vanessa’s
birth, as the applicant’s
father.
- On
1 December 2009, the Minister filed a notice of appeal from the Tribunal’s
decision. At hearing of the appeal, counsel
for the Minister confirmed that the
question of law, as set out in the notice of appeal, was intended to be
understood as asking
“Does a parent of a person in s 16(2) of the
Citizenship Act mean only a natural or biological parent of the
person?” Appeal Grounds (a)-(c) were directed to this question.
- Appeal
Ground (d) constituted a challenge to the finding that Mr Davidson was
Ms McMullen’s biological father, and asserted
that “[i]t was
not open on the evidence before the Tribunal to find that Mr Davidson was the
natural or biological father of
the applicant or that he was likely to have been
an Australian citizen at the time of the Respondent’s birth”. The
Minister
abandoned this ground on the hearing of the appeal. It may be doubted
that the ground raised any question of law, or that the Tribunal
made any
definitive finding regarding Mr Davidson’s citizenship.
- The
preferable course in these circumstances might have been for the Tribunal to
have determined the question of Mr Davidson’s
citizenship before
considering the more difficult question of Mr McMullen’s status. The
Minister has not, however, invited
the Court to remit the matter to the Tribunal
to make this determination at this stage; instead, the Minister has asked the
Court
to decide the question of law raised by the Tribunal’s finding that
Mr McMullen too is a “parent” within the
meaning of s 16(2)(a)
of the Citizenship Act.
- Though
no party pressed the point, in the appeal from the decision in McMullen,
the question whether the word “parent” in s 16(2)(a) is limited to a
biological parent is not an immediate one, at this
stage at least; and in these
circumstances it might have been thought that there was a question as to whether
the Court should proceed
to determine it: compare QBE Insurance (Australia)
Ltd v Tropical Reef Shipyard Pty Ltd [2009] FCAFC 161 at [26] (Kenny, Gordon
and Jagot JJ); Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135 at
[20] (Siopis J); [57]-[59], [69]-[70] and [92] (Tracey and McKerracher JJ); and
Australian Institute of Private Detectives Ltd v Privacy Commission
[2004] FCA 1440; (2004) 139 FCR 394 at 400-1 [22]- [28] (Sackville J). It must be borne in mind,
however, that, if the Tribunal’s decision stands, then Ms McMullen
satisfies the
factual criterion in s 16(2)(a), whether there is in fact any
further inquiry into Mr Davidson’s citizenship status and whether
in fact
Mr Davidson is shown to have had Australian citizenship at the relevant time.
On this analysis, the question of mootness
tends to fade away.
- In
any event, in the appeal against the decision in H, there is no such
complexity. Any eligibility for Australian citizenship through an Australian
citizen parent in this case depends
on whether Mr H could qualify as a
“parent” for the purposes of s 16(2)(a) and, at this stage of
the factual inquiry,
this depends on whether as a matter of law
“parent” in s 16(2)(a) is limited to biological parent. If it is,
then Mr
H cannot qualify as NWH’s parent, irrespective of any other facts
that might be found to support his parental status. Accordingly,
there is a
clear basis in the appeal in H for the Court to consider the question of
law with which the Court is presently concerned.
SUBMISSIONS OF THE PARTIES
- The
Minister’s contention in both appeals was that “parent” in s
16(2)(a) of the Citizenship Act meant only biological
parent, although the
Minister acknowledged in argument that, in the special case of artificial
conception, parenthood might not be
biological parenthood. Counsel for the
Minister defined biological parent during oral submissions as “a person
who supplied
the biological material, either the sperm or the ovum that produces
the child”.
- In
the McMullen appeal, the Minister argued that, in so far as the Tribunal
found that Mr McMullen was Ms McMullen’s parent because he was
her
accepted father, the Tribunal misconstrued s 16(2)(a) of the Citizenship Act, it
being common ground that he was not her biological
father. The Minister’s
argument was essentially the same in the H appeal, it having been
conceded by NWH’s mother that Mr H was not his biological father.
- The
Minister’s argument focussed in the first place on the ordinary meaning of
“parent”, which the Minister said
meant biological parent as
reflected in the Oxford English Dictionary. Opposing counsel submitted
that the ordinary meaning of the word “parent” was not so limited,
but neither counsel sought
to set out the precise boundaries of any broader
meaning. Indeed, counsel for Ms McMullen submitted that the word
“parent”
in s 16(2)(a) had “an ambulatory meaning adapting to
the realities of Australian families” and, on this basis, both Mr
McMullen
and Mr Davidson could properly be considered “parents” of
Ms McMullen within the meaning of the Citizenship
Act.
- Counsel
for Ms McMullen and for NWH relied on particular definitions in the Citizenship
Act itself, including definitions of “responsible
parent” and of
“child”, as supporting a broader meaning of the word
“parent” than the Minister would
allow. The Minister, on the other
hand, submitted that “responsible parent” was intended to be wider
in scope than “parent”,
and that to read “parent” in s
16(2)(a) as encompassing notions of parental responsibility would be to
improperly read
the definition of “responsible parent” into the
provision. Similarly, the Minister argued that the definition of
“child”
did not operate to extend the meaning of parent beyond
biological parent.
- The
parties also addressed their attention to timing considerations in s 16(2)(a);
the structure of Division 2, Part 2 of the Act,
including the structure of
Subdivision A; and the effect of provisions outside Subdivision A of Division 2,
Part 2. We address these
arguments in detail below.
- The
parties relied on a variety of other interpretive aids in support of their
positions, including legislative history. Essentially,
the Minister’s
contention based on legislative history was that provisions of the
Nationality and Citizenship Act 1948 (Cth), later renamed the
Australian Citizenship Act 1948 (Cth) (‘the 1948 Act’) from
which s 16(2) derived were “generally concerned with the status of a
person’s
biological parents at the time of his or her birth”, and
that there were no extrinsic material indicating a legislative intent
to depart
from this approach. The Minister contended that the 1948 Act should be
understood as adopting a combination of the international
law principles of
jus soli, under which nationality was determined by place of birth, and
jus sanguinis, under which nationality was determined by the nationality
of one’s parents: see generally Singh v The Commonwealth (2004)
222 CLR 322 (‘Singh’). The effect of the original
language of the 1948 Act was not, however, explored in any real depth; and, as
Singh itself demonstrates, Parliament no longer treats either of these
principles as immutable.
- In
discussing the legislative history of s 16 of the Citizenship Act, counsel for
NWH made a number of points, but it suffices to
note only two. Counsel
particularly referred to the use of “natural mother” and
“natural parent” in the
1990 and 1991 amendments to the 1984 Act,
which is discussed in detail below. Counsel argued that the subsequent omission
of the
qualifying word “natural” showed that Parliament had not
intended to limit “parent” in s 16(2)(a) to biological
parents. The
Minister argued, on the other hand, that the use of “natural parent”
in s 10C favoured the Minister’s
construction of s 10B (both
discussed below). The Minister argued that since s 10C (introduced in 1991) was
intended as a remedy
for individuals who had missed the opportunity to register
as citizens under s 10B, if “natural parent” in s 10C were
narrower
in scope than “parent” in s 10B, then s 10C would not have had its
intended remedial effect.
- Both
the Minister and counsel for NWH emphasised the importance of s 10B,
introduced by amendment in 1984 (discussed below).
The Minister relied on the
Revised Explanatory Memorandum for the Australian Citizenship Bill 2005
(Cth), which stated that Subdivision A in Division 2, Part 2 (of what is now the
Citizenship Act) “mirrors the provisions of
the old Act” and that s
16(2) “combines the descent sections 10B and 10C of the old Act”.
Thus, so the Minister
argued, s 16(2) should be understood as having the same
meaning as the equivalent provisions of the former Act, which, so the Minister
submitted, were limited to biological parents. The Minister argued that, if the
legislature had intended to expand the definition
of “parent” for
the purposes of citizenship by descent, this intent would have been reflected in
the extrinsic material,
and that there was no evidence of such an intent in this
material.
- Opposing
counsel contended that there was no biological limitation in
“parent” evident in the legislative history of
s 16(2) of the
Citizenship Act. We discuss this in more detail below. Counsel for NWH also
made particular reference to the Explanatory
Memorandum to the Australian
Citizenship Amendment Bill 1983-84, stating that the 1984 amendments (see
below) were designed, among other things, “to remove all discriminations
from the Australian
Citizenship Act 1948”, to support an argument that the
1984 amendments were intended to remove discrimination against children
such as
NWH. Since this argument distracts attention from the principal competing
considerations, we discuss it briefly at this
point in order to put it
aside.
- As
noted below, the discrimination with which the 1984 amendments were concerned
was discrimination on the basis of sex and marital
status. In his second
reading speech on the Australian Citizenship Bill 1983 (Cth), the
Minister said (see Parliamentary Debates, House of Representatives, p
3369):
The existing Act discriminates on the basis of sex and marital status. Mothers,
for example, do not have the same rights as fathers
in determining their
children’s citizenship. It has been decided to amend the Act to place
mothers and fathers on an equal
footing for all purposes related to citizenship,
and the citizenships of their children. All other discrimination on the grounds
of gender and marital status will be removed.
- The
new s 10B reflected this purpose. Prior to the 1984 amendment, the citizenship
of a child born overseas and out of wedlock could
be based on a citizen mother
but not a citizen father. This was so notwithstanding that, following the 1976
amendment the citizenship
of a child born overseas to a married woman could be
based on a citizen mother or citizen father. The new provision referred to
“a person, being a parent of the relevant person at the time of the birth
of the relevant person”, without reference
to gender or marital status,
thus eliminating these distinctions. One object of the amendment appears to
have been to enable illegitimate
children to obtain citizenship through their
“parents” – whatever the word meant – to the same extent
as
legitimate children. The fact that the amendment was concerned with
discrimination against illegitimate children does not say anything
about the
meaning of the word “parent”. That is, the discrimination with
which the 1984 amendments were concerned did
not include discrimination as
between biological or non-biological parents. Indeed, apart from removing
gender and martial status
as distinctions, these amendments did not mention
biological connection at all.
- The
parties also relied on the Family Law Act 1975 (Cth) (‘the Family
Law Act’) and certain state legislation, especially the Status of
Children Act 1974 (Vic), to support their competing arguments.
- The
Minister relied particularly on the presumptions contained in the Family Law Act
(particularly, as to parentage arising from
marriage (s 69P), as to paternity
arising from cohabitation (s 69Q), and as to parentage arising from registration
of birth (s 69R))
as well as the presumptions in the Status of Children Act
1974 (Vic) (ss 5, 8) and at common law, to support the contention that the
need for genetic testing would generally not arise if “parent”
in s
16(2) were limited to biological parent (although the Minister acknowledged that
s 19A of the Citizenship Act might present
difficulties for individuals in
particular cases if this construction were preferred). In this context too, the
Minister argued
that the same interpretative analysis should apply to s 12(1)(a)
(citizenship by birth). Reference in this connection was also made
to ss
17(4B), 19D(7), 24(4B) and 30(6).
- In
this context too, the Minister cited In the Marriage of CV and SL
Tobin (1999) 24 Fam LR 635, in support of the submission that
“parent” in s 16(2) of the Citizenship Act meant biological
parent.
In that case, the Full Court of the Family Court held (at 645 [45]) that
“[w]hile the term may be capable of being
used in different contexts to
include broader categories ... the natural meaning of the word [parent] in
context in Pt VII Div 7
[of the Family Law Act] . . . is the biological mother
or father of the child and not a person who stands in loco
parentis”. It is, however, apparent from the discussion in that case
that the Court reached this conclusion because of the specific
provisions in the
Family Law Act and the child support legislation. Thus, the decision does not
particularly assist in resolving the present question.
- Counsel
for Ms McMullen also relied on the attribution in the Family Law Act of parental
status to persons who were not biological parents. Reference was made to
numerous provisions, including s 64C (permitting a parenting order in favour of
parents or other persons), s 65C (setting out who may apply for a parenting
order), s 69R (see above), and s 69S (presumption of parentage arising from
findings of courts). Reference was also made to s 60F (certain children to be
children of a marriage) and s 60H (children born as a result of artificial
conception procedures). Counsel argued that the Citizenship Act and the Family
Law Act were essentially in pari materia, citing Dampier Salt
(Operations) Pty Ltd v Collector of Customs (1995) 133 ALR 502 at 509-10
(Lee J) (affirmed on appeal).
- It
is convenient to note briefly that we reject the submission that the two
statutes are appropriately described in this way since
they do not in truth deal
with the same subject matter. The subjects with which these statutes are
concerned are essentially different,
although at times certain discrete issues
arise that are the same or similar under both. Generally, in the latter case,
Parliament
has expressly stated when the provisions of the Family Law Act are to
operate in the context of the Citizenship Act. The fact that the Citizenship
Act expressly picks up and adopts provisions
in the Family Law Act does not
diminish the difference between the two subject matters. The Citizenship Act
picks up certain provisions of the Family Law Act for its own purposes, and
generally where it does so, it does so expressly.
- Ultimately,
the parties did not really explain how the provisions of the Family Law Act that
were not expressly picked up by the Citizenship Act could in law inform the
interpretation of s 16(2) of the Citizenship Act
and, unless indicated to the
contrary in what follows, we would not consider that they assist with the
present question.
- Counsel
for NWH also noted examples of state legislation in which the State Parliament
had not limited the word “parent”
to biological parent, referring
particularly to the Children, Youth and Families Act 2005 (Vic), s 3;
Family Violence Protection Act 2008 (Vic), s 4; and Victims of Crime
Assistance Act 1996 (Vic), s 3. These do no more than illustrate that a
legislature may choose to accord the word “parent” a wide meaning;
but it is
apparent that in each case the relevant legislature has specifically
defined “parent” having regard to the legislative
contexts in which
the word is to be used. These contexts are different from the present. These
specific legislative definitions
provide no guidance on the present
question.
- Finally,
both the Minister and the opposing parties relied on competing policy
considerations. We refer to the most significant
of them hereafter. However,
we mention one here because it seems to us that it may be put to one side
speedily. Counsel for Ms McMullen
relied on the principle that beneficial
legislation should be interpreted widely rather than narrowly, referring to
VFAY v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 14; (2004) 134 FCR 402 at 409 [23] and Bortolazzo v Comcare
(1997) 75 FCR 385 at 388. Counsel argued that the Citizenship Act was
“intended to benefit those people who seek
to be Australian
citizens”, and that any ambiguity in the Act should be resolved in favour
of such beneficiaries. The present
question is not, however, about resolving an
ambiguity, which is a common application of this principle. Nor is it remedial
in the
usual sense. It is true that s 16 of the Citizenship Act renders a
person who falls within its terms eligible for citizenship and
that this is a
benefit to him or her, the citizen parent or parents, and also presumably to the
Australian community (see the preamble
to the Citizenship Act). Equally,
however, the provision is not intended to benefit a person who does not fall
within s 16 and,
if a person does not have a citizen parent within the meaning
of the provision, then the benefit of the provision does not extend
to him or
her. That is, so far as the present question is concerned, the principle to
which counsel referred has no useful application.
CONSIDERATION
What is the question raised?
- As
will by now be plain enough, the parties are agreed that the question of law
raised by the appeals is whether the word “parent”
in s 16(2) of the
Citizenship Act means only a biological parent. The formulation of the question
in this way is, partly at least,
a consequence of the nature of the statutory
jurisdiction for these appeals; and, in answering the question, the nature of
this jurisdiction
has also to be kept in mind.
- As
noted already, the jurisdiction conferred by s 44(1) of the Administrative
Appeals Tribunal Act is a limited one, confined to a question of law. In order
for there to be a competent appeal under s 44(1), there must be a question that
is properly characterised as a question of law that is the subject of the
appeal; and, as this case
shows, what may be a question of law conceived in one
way is a question of fact when understood in another way. In a case such as
the
present, this is a consequence of the difficulty in the ready identification of
the distinction between questions of law, questions
of fact, and questions of
mixed fact and law. It must be kept in mind, however, that the competence of
the appeals depends on the
distinction.
- The
Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993)
43 FCR 280 (‘Pozzolanic’) at 287 set down five
general propositions for determining when a question is one of fact, law, or
mixed fact and law. Three
propositions assist in these appeals. First, the
ordinary meaning of a word is a question of fact. Second, the question whether
a word in an Act is to be given its ordinary meaning or some technical or other
meaning is a question of law: see also Collector of Customs v Agfa-Gevaert
Ltd [1996] HCA 36; (1996) 186 CLR 389 at 397. Third, whether the facts fully found fall
within the provision of a statutory enactment properly construed is generally
a
question of law. This last proposition can give rise to further difficulties,
some of which are discussed in Ergon Energy Corp Ltd v Commissioner of
Taxation [2006] FCAFC 125; (2006) 153 FCR 551 at 563-5 (Sundberg and Kenny JJ).
- Here
all the parties focussed a primary part of their argument on the ordinary
meaning of the word “parent”. Thus, the
Minister drew on a
dictionary definition to support his contention that the ordinary meaning of the
word “parent” was
biological parent, with the result that whether or
not a person was properly described as a “parent” in s 16(2)(a)
ultimately
depended on a DNA test known to the science of genetics. The
opposing parties, on the other hand, argued that the ordinary meaning
of
“parent” was broader than this, and signified a particular
socially-defined status held by one person (the parent)
in relation to another
person (a child of that person).
- The
contest about the ordinary meaning of “parent” is not at all
straightforward. In her preface to the scholarly publication
Parenthood in
Modern Society: Legal and Social Issues for the Twenty-first Century
(Martinus Nijhoff Publishers, 1993), edited by John Eekelaar and Petar Sarcevic,
Marie-Therese Meulders described the legal basis
and social significance of
parenthood as “one of the major and most complex issues throughout the
history of mankind”.
As Professor Meulders noted, looked at
superficially, the basis of parenthood might appear to be “blood ties
resulting from
procreation”. Considered more carefully, however, as
Meulders and other scholars acknowledge, it is clear that, over the ages
and in
different places, the status of being a parent has been socially defined in a
great variety of ways that do not always reflect
the biological facts. Certain
socially recognized facts have come to define the social status of a
“parent” in relation
to another person. Modern ethnology and
anthropology recognize as much. Historians have shown that family structures
and notions
of parent and child, marriage and descent have differed widely over
time and within a range of demographic, economic and cultural
frameworks
distinctive for each society: see, for example, Lawrence Stone, The Family,
Sex and Marriage in England 1500-1800 (Penguin, abridged version, 1979,
reprinted 1990), pp 22-29, 48, 80-86, 109; Rosemary O’Day, The Family
and Family Relationships, 1500-1900 (Macmillan 1994) pp 29, 127, 134;
Martine Segalen, Historical Anthropology of the Family (translated by JC
Whitehouse and Sarah Matthews; Cambridge University Press, 1986), pp 32-36, 173;
Michael Anderson, Approaches to the History of the Western Family
1500-1914 (Macmillan, 1980), pp 14, 41-2, 60; and Philippe Aries,
Centuries of Childhood (Jonathan Cape London, 1962). In essence, the
status of being a parent may imply physical procreation, the social assumption
of
a specific relationship to another (as the child of the parent) or both.
Comparatively recent developments in the biological sciences,
especially in
genetics, and the introduction of DNA testing, has highlighted the differences
between understanding “parent”
as a biologically defined status and
as a socially-defined one.
- Today,
perhaps, one assumes that when a person speaks of a “parent”, the
speaker is referring to a biological parent.
If, however, it is plain from the
context or from one’s knowledge of the speaker that the reference is not
to a genetic relation
but to someone who, for the speaker, performs the role
that society typically expects a parent to fulfil, then one accepts the
reference
to “parent” as apposite. Thus, in ordinary usage, the
word “parent” may be used without modifier to signify
a genetic or
non-genetic connection with another: compare Black’s Law Dictionary
(8th ed, 2004). Whilst often a person’s parents
will in fact be biological parents, ordinary usage does not limit the meaning of
parent in this way. Rather, the word “parent” is used today to
signify a social relationship to another person. Whether
or not this has always
been the case, this usage reflects a widespread contemporary awareness of
families that include non-biological
parent-child relationships.
- Whether
or not this exposition of the current ordinary meaning of the word
“parent” is accepted is, however, beside the
point on these appeals.
This is because, as already noted, a question as to the ordinary meaning of a
word such as this is a question
of fact, which cannot be dealt with on these
statutory appeals. No-one has suggested, however, that this Court lacks
jurisdiction
in the appeals because there is no question of law. How therefore
is the question to be understood, having regard to s 44(1)? If
the question
raised by the appeals is not one about the ordinary meaning of
“parent”, it must be about some particular
meaning of
“parent” in s 16(2) of the Citizenship Act. That is, the point at
issue on these appeals must be whether,
in the specific context of s 16(2), the
word “parent” can only mean biological parent, irrespective of the
ordinary meaning
of the word. The Minister would have the Court answer this
question in the affirmative. The argument for the opposing parties is
that the
word “parent” in s 16(2) is not to be so limited.
Approaches to construction
- In
construing s 16(2), the Acts Interpretation Act 1901 (Cth) must be kept
in mind. At the outset, we note that s 15AA of that Act requires that a court
construing federal legislation have regard to its purpose or object. Further, s
15AB permits reference
to a wide range of material not forming part of the
relevant Act. Moreover, as Brennan CJ, Dawson, Toohey and Gummow JJ said in
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCATrans 242; (1997) 187 CLR 384 at
408, “the modern approach to statutory interpretation (a) insists that the
context be considered in the first instance,
not merely at some later stage when
ambiguity might be thought to arise, and (b) uses ‘context’ in its
widest sense to
include such things as the existing state of the law and the
mischief ... the statute was intended to remedy”. The legislative
structure and history are also important parts of the context for the purposes
of interpretation: see also Newcastle City Council v GIO General Ltd
(1997) 191 CLR 85 at 112 (McHugh J). So too reports, parliamentary speeches and
explanatory memoranda may assist. Of course, contextual considerations
enhance,
rather than detract from, the necessary consideration of the actual statutory
text: compare Stevens v Kabushiki Kaisha Sony Computer Entertainment
[2005] HCA 58; (2005) 224 CLR 193 at 206 [30] (Gleeson CJ, Gummow, Hayne and Heydon
JJ).
- In
deciding the question raised by these appeals, the Court is obliged to consider
the object of the legislation and the text of
s 16 in its proper context, having
regard, where appropriate, to legislative structure, legislative history (here
considered in the
context of the common law and Australian constitutional
history), parliamentary speeches and explanatory memoranda. Consideration
of
these matters draws attention to the fact that the history of citizenship
legislation reflects underlying changes in the political
and social fabric of
the country. As Kitto J wrote in Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116
CLR 397 at 405 (in a passage cited by Gleeson CJ in Singh 222 CLR at 336
[19]):
The legitimate endeavour of the courts is to determine what inference really
arises, on a balance of considerations, from the nature,
scope and terms of the
statute, including the nature of the evil against which it is directed, the
nature of the conduct prescribed,
the pre-existing state of the law, and,
generally, the whole range of circumstances relevant upon a question of
statutory interpretation
... It is not a question of the actual intention of the
legislators, but of the proper inference to be perceived upon a consideration
of
the document in the light of all its surrounding
circumstances.
The legislative object
- The
primary object of the Citizenship Act is to define who is and who may become
formal members of the Australian body politic, with
such rights and obligations
as that status entails. These are the people who are, or are eligible to
become, Australian citizens.
Such is the effect of the preamble and the
provisions of the Act itself, although there is no express legislative statement
of objects.
Thus, the preamble states:
The Parliament recognises that Australian citizenship represents full and formal
membership of the community of the Commonwealth
of Australia, and Australian
citizenship is a common bond, involving reciprocal rights and obligations,
uniting all Australians,
while respecting their
diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy
these rights and undertake to accept these
obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of
Australia.
- Generally
speaking, the Citizenship Act does not identify the reciprocal rights and
obligations inherent in Australian citizenship.
This is left to other statutes,
such as the Australian Passports Act 2005 (Cth), s 7; the
Commonwealth Electoral Act 1918 (Cth), ss 93, 94, 94A, 95, 163; and the
Migration Act 1958 (Cth) (citizens enjoying a right of abode: see
generally Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (‘Re
Patterson’); Re Minister for Immigration and Multicultural Affairs;
Ex parte Te (2002) 212 CLR 162 at 173 [31] (Gleeson CJ); and Singh
222 CLR at 329 [4] (Gleeson CJ)). As Gaudron J said in Nolan v Minister
for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 at
190:
Neither the Citizenship Act nor the Migration Act, in terms, makes
Australian citizenship the exclusive criterion for admission to membership of
the community constituting the body
politic of Australia. However, given that
no other criterion is supplied, either by the general law or by statute, and
that (as
from its amendment in 1984) s 12 of the Migration Act posits the
deportation only of persons who are non-citizens, it must be accepted that the
intendment of s 12 of the Migration Act, when viewed in the context of
the amendments made to the Citizenship Act, was that Australian citizenship
should be (or perhaps,
should become) the criterion for admission to membership
of the community constituting the body politic of Australia.
- The
concept of citizenship, though not constitutionally defined, is therefore
central to the idea of the Australian body politic;
and to the way the
Australian community defines itself for the present and the foreseeable future.
As the legislative history (discussed
below) shows, just as
“[c]onstitutional notions of membership of the Australian community”
have changed with “international
and national realities”, so too
legislative notions of membership of the Australian community have altered to
keep pace with
changing social or cultural realities: compare Singh 222
CLR at 417 [263]-[264] (Kirby J). Unsurprisingly, the ancient principles of
jus soli and jus sanguinis to which the Minister referred no
longer much guide Parliament in determining membership of the Australian
community. Today, the
fundamental consideration in acquiring citizenship is the
strength of the connection between a person and Australia; it is this which
provides the basis for the “common bond” mentioned in the preamble.
Within this framework, there is, however, little
contextual support for the
proposition that the word “parent” has some restrictive meaning,
signifying only a biological
parent, as opposed to a parent, whoever that may
be, within ordinary meaning of the word. Biological parentage can scarcely be
the
sine qua non of a meaningful connection to the Australian community. A
claimant for citizenship under 16(1), with a biological at-birth
citizen parent,
can have no more connection with the country than a claimant for citizenship
also born outside Australia, with an
at-birth citizen parent who holds out the
person as his child from birth, treating the person as his child from that point
on, though
the genetic link is missing. Bearing this in mind, the more rational
approach is not to attribute some technical meaning to the
word
“parent” in s 16(2), but instead to attribute to the word its
ordinary meaning as evident in ordinary contemporary
English usage. Under the
present jurisdictional arrangement, it would then be a matter for the Tribunal
to determine whether, on
the facts as found, either claimant for citizenship
had, relevantly, a citizen “parent” within the ordinary meaning of
the word, as at the time of their birth.
The text of s 16
- We
commence with the text of s 16 of the Citizenship Act. Section 16(1) provides
that a person “may make an application to
the Minister to become an
Australian citizen”. Central to these appeals is s 16(2), headed
“Persons born outside Australia
on or after 26 January 1949”.
This reads as follows:
(2) A person born outside Australia on or after 26 January 1949 is eligible
to become an Australian citizen
if:
(a) a parent of the person was an Australian citizen at the time of the birth;
and
(b) if the parent was an Australian citizen under this Subdivision or
Subdivision AA, or section 10B, 10C or 11 of the old Act
[i.e., the
Australian Citizenship Act 1948 (Cth)] (about citizenship by descent), at
the time of the
birth:
(i) the parent has been present in Australia (except as an unlawful non-citizen)
for a total period of at least 2 years at any time
before the person made the
application; or
(ii) the person is not a national or a citizen of any country at the time the
person made the application and the person has never
been such a national or
citizen;
and
(c) if the person is or has ever been a national or a citizen of any country, or
if article 1(2)(iii) of the Stateless Persons Convention
applies to the person,
and the person is aged 18 or over at the time the person made the
application—the Minister is satisfied
that the person is of good character
at the time of the Minister’s decision on the
application.
- Section
16(3), headed “Persons born outside Australia or New Guinea before 26
January 1949”, has a similar form to s
16(2), providing that a person born
outside Australia or New Guinea before 26 January 1949 is eligible to become an
Australian citizen
if:
(a) a parent of the person became an Australian citizen on 26 January 1949; and
(b) the parent was born in Australian or New Guinea or was naturalised in
Australia before the person’s birth; and
(c) if the person is or has ever been a national or a citizen of any country, or
if article 1(2)(iii) of the Stateless Persons Convention
applies to the person
– the Minister is satisfied that the person is of good character at the
tine of the Minister’s
decision on the
application.
- The
word “parent” is not defined in the Citizenship Act, although the
Citizenship Act defines other familial relationships,
including
“responsible parent”, “step-child”, “de facto
partner” and “child”. Counsel
for Ms McMullen and NWH relied
on these definitions as explaining in some way what Parliament intended by the
word “parent”
in s 16(2)(a). For the reasons we are about to
give, however, almost all these definitions of other familial and related
relationships
throw little light on the question raised by the appeals.
- There
was substantial debate about the effect of the definition of “responsible
parent”. For this reason, we set the
definition out in full below.
- “Responsible
parent” is defined in s 6 of the Citizenship Act in the following way:
(1) For the purposes of this Act, a person is a responsible parent
in relation to a child if and only
if:
(a) the person is a parent of the child except where, because of orders made
under the Family Law Act 1975, the person no longer has any parental
responsibility for the child; or
(b) under a parenting order the child is to live with the person (whether or not
the person is a parent of the child); or
(c) under a parenting order the person has parental responsibility for the
child’s long-term or day-to-day care, welfare and
development (whether or
not the person is a parent of the child); or
(d) the person (whether or not a parent of the child) has guardianship or
custody of the child, jointly or otherwise, under an Australian
law or a foreign
law, whether because of adoption, operation of law, an order of a court or
otherwise.
(1A) In
paragraph (1)(a):
parental responsibility has the same meaning as in Part VII
of the Family Law Act 1975.
(2) Expressions used in paragraphs (1)(b) and (c) have the same meaning as
in the Family Law Act 1975.
- For
present purposes, two points regarding this definition are worth remembering.
First, within the definition in s 6(1) above, the expression “responsible
parent” is evidently wider that the word “parent”: that is, a
person can
be a responsible parent within this definition, whether or not a
“parent” of the child: see, for example, s 6(1)(c). Secondly, the
term “responsible parent” appears in two specific contexts: in a
fairly specific group of provisions (ss 25, 28, 36); and again in a separate
provision (s 46). Sections 25, 28 and 36 are not related in any direct way to s
16. Section 25(4) concerns Ministerial cancellation of an approval of
citizenship by conferral (applied for under s 21) in circumstances where a child
and his or her responsible parent(s) made application at the same time. Under s
25(4), if the Minister cancels approval of a child’s responsible
parents’ applications for citizenship by conferral, the Minister
must
cancel approval of the child’s application for citizenship by conferral.
Section 28(3)-(4) deals with the day upon which citizenship by conferral begins
in the case of a child who has sought citizenship at the same time
as the
responsible parent(s). Broadly speaking, under s 28, a child’s
citizenship by conferral commences on the day a responsible parent of the child
obtains citizenship by conferral.
Section 36 concerns the loss of citizenship
by children of responsible parents ceasing to be citizens by virtue of ss 33, 34
or 35. Again, broadly speaking, under s 36, a child ceases to be an Australian
citizen if the Minister revokes the citizenship of a responsible parent of the
child under ss 33, 34 or 35, unless another responsible parent of the child
remains an Australian citizen, or the revocation would cause the child to become
stateless. In the context of these provisions, the use of the expression
“responsible parent”, as opposed to “parent”,
whether
used in its ordinary sense or in some special way, is explicable by reference to
the matter with which the provisions deal,
especially their relation to
“citizenship by conferral”. This use does not really assist in
construing “parent”
in s 16(2).
- Section
46 is in a different class of provisions, being in Part 3 of the Citizenship
Act, entitled “Other matters”. Section 46(1)
provides that an
application under the Act must, amongst other things, “be on the relevant
form approved by the Minister for
the purposes of that provision” and
“contain the information required by the form”. Section 46(2) and
(2A) further
provide:
(2) The Minister may, by writing, approve one or more forms for the purposes of
a provision of this Act under which an application
may be
made.
Note: For example, there are 2 ways to become an Australian citizen by descent
under section 16. The Minister may approve 1 form
for the purposes of that
section or may approve 2 different forms.
(2A) An application under a provision of this Act by a child aged under 16 must
be set out:
(a) on a form that contains no other application; or
(b) on a form that also contains an application by 1 responsible parent of the
child.
This use of the expression
“responsible parent” throws little light on the meaning of
“parent” in s 16(2).
Interestingly, though perhaps of little moment
in construing s 16(2), we note that the “Form 118 for Application for
citizenship
be descent”, which was completed by or for both Ms McMullen
(then over 16) and NWH, provided for a declaration by a responsible
parent as to
his or her consent and the veracity of the information supplied.
- Counsel
for Ms McMullen also relied on the definition of “child” in the
Citizenship Act, which is as follows (s 3):
child: without limiting who is a child of a person for the
purposes of this Act, each of the following is the child of a
person:
(a) an adopted child, stepchild or exnuptial child of the person;
(b) someone who is a child of the person within the meaning of the Family Law
Act 1975.
- Section
4(1) of the Family Law Act 1975 (Cth), which defines words and
expressions within the Act, provides that:
child:
(a) in Part VII, includes an adopted child and a stillborn child; and
(b) in Subdivision E of Division 6 of that Part, means a person who is under 18
(including a person who is an adopted
child).
child: Subdivision D of Division 1 of Part VII affects the situations in
which a child is a child of a person or is a child of a marriage
or other
relationship.
Subdivision D of Division 1 of Part VII contains a number of provisions
dealing with issues of child–parent status. Section
60F provides that a
reference to a child of a marriage includes adopted and ex-nuptial children, as
well as a child who is, by virtue
of s 60H(1) or s 60HB, the child of the
husband and wife. Section 60H deals with the position of children born as a
result of artificial
conception procedures, providing, amongst other things,
that a child born to a woman as a result of such procedures is a child of
that
women, whether or not the child is biologically a child of that woman; and that
a child may be the child of a man, though not
biologically related to him.
Section 60HB contemplates that a child may be the child of one or more persons
under surrogacy arrangements
and that each of those persons may be a parent of
the child. Section 60HA deals with the position of children of de facto
partners.
- In
this connection too, counsel for Ms McMullen referred to the presumption of
parentage in s 69P, which, broadly speaking, provides
that a child born to a
married woman is presumed to be a child of the woman and her husband. Reference
was also made to the presumption
of paternity arising from cohabitation (s 69Q),
the presumption of parentage arising from registration of birth (s 69R), the
presumption
of parentage arising from court findings (s 69S), and presumption of
paternity arising from acknowledgments (s 69T).
- Counsel
for Ms McMullen submitted that because “parent” and “child (of
a person)” describe two sides of the
same relationship,
“parent” should be understood as having the same broad and inclusive
scope as the statutory definition
of “child”.
- We
accept that, where a child is said to be a child of a person, then that person
is ordinarily described as a parent of the child.
Where Parliament states in an
Act that a child is a child of a person, then, absent any contrary indication,
it is reasonable to
assume that Parliament intended that that person has the
status of parent of the child, if that status is relevant for the operation
of
the Act. We also accept that, having regard to the definition of
“child” in the Citizenship Act, the Act clearly
contemplates that,
at least for some purposes (including where the word “child” is
expressly used), the status of being
a parent is not limited to a biological
parent. However, the use of the words “parent” and
“child” in a
correlative sense may weaken, depending on the context
in which the words “child” (in the sense “child of a
person”)
or “parent” are used. Having regard to the absence
of the word “child” from s 16(2), the definition of that
term in s 3
does not greatly assist in answering the present question.
- Turning
from these statutory definitions to the precise words of s 16(2), the Minister
maintained that s 16(2)(a) requires that the
citizen parent is a parent of the
applicant “at the time of the [applicant’s] birth”. In other
words, the Minister
argued that, for purposes of s 16(2)(a), parenthood
must be established as at the time of the birth. That is, on this construction
of s 16(1)(a), “at the time of birth” qualifies both the status of
being a parent and the parent’s citizenship.
This was said to be the
natural effect of s 16(2)(a). If this were the correct construction, then, so
the Minister argued, his
argument as to the meaning of “parent” in s
16(1)(a) was strengthened.
- As
it happens, we accept the Minister’s submission as to timing, although we
reject the latter submission as to its consequential
support for his case.
Whilst commonly one may assume that a person accepting the status of a parent at
the time of a birth is in
fact a biological parent, human experience is that
this is not always so. Numerous cases in the history of the law illustrate that
the acceptance of parenthood at birth may be made in the absence of any relevant
biological relationship: see, for example, Magill v Magill [2006] HCA 51; (2006) 226 CLR
551. Indeed, the appeal in McMullen provides a further example.
Accepting that the Minister is correct on the timing issue, this does not favour
the limitation of parent
to biological parent only. Even on this construction s
16(2)(a) does not in terms preclude attributing parent status to a person
identified as a parent at the time of birth even though not a biological
parent.
- The
Minster’s construction as to timing might have been plainer if the phrase
“at the time of birth” had been placed
first, rather than last, in
the paragraph. As s 16(2)(a) is drafted, it is grammatically possible to
interpret “at the time
of the birth” as applying only to “was
an Australian citizen” and not to “a parent of the person”.
If this were correct, the provision could be seen as covering a person who was
an Australian citizen at the time an applicant was
born but who only became a
“parent” of the applicant at some point after the applicant’s
birth. Such a situation
could only occur, of course, if the Minister’s
submissions as to the meaning of parent were rejected.
- Having
regard to the legislative history of s 16 (which is discussed in detail below),
however, the construction as to timing advanced
by the Minister is to be
preferred. Having regard to that legislative history, the clear better view is
that s 16(2)(a) requires
that an applicant for citizenship have, at the time of
birth, a parent with Australian citizenship. The legislative history of s
16
shows that eligibility for citizenship under predecessor provisions has always
required a citizen parent at the time of birth.
As the Minister submitted,
there is no indication in the extrinsic materials that Parliament intended to
change this basic test.
This construction is also consistent with s 12(1),
according to which a person born in Australia is an Australian citizen in
certain
circumstances, including that “a parent ... is an Australian
citizen ... at the time the person is born”. Other provisions
that
support the Minister’s position on timing include ss 17(4) – (4B),
which address the national security exceptions
to the Minister’s
non-discretionary duty to approve the application of a person eligible for
citizenship under s 16. There
would seem to be no logical reason to limit
17(4B) to parents as at the time of birth if s 16(2) were not also so limited.
Similar
language appears in the context of national security exceptions to other
routes to citizenship: see ss 19D(7) (adoption under the
Hague Convention),
21(6) (citizenship by conferral) and 24(4B) (resumption of citizenship).
- As
we have explained, however, acceptance of this aspect of the construction of
s 16(2) still leaves open the question raised
by the appeals.
Structure of Part 2
- The
Minister properly drew attention to the structure of Part 2 of the Citizenship
Act and, in particular, to the heading of Subdivision
A of Division 2. The
Minister relied on the heading to Subdivision A of Division 2, Part 2 –
“Citizenship by descent”
– as indicating a biological
limitation for parenthood. A heading such as this is deemed by s 13(1) of the
Acts Interpretation Act 1901 (Cth) to be part of the Citizenship Act,
and, in the process of construction, can be taken into consideration in
determining the
meaning of a provision or its scope, although it cannot limit
the operation of a provision if its meaning is clear: see Silk Bros Pty v
State Electricity Commission (Vic) [1943] HCA 2; (1943) 67 CLR 1 at 16 (Latham CJ).
Citing The Macquarie Dictionary definition of “descent” as
“derivation from an ancestor; extraction; lineage”, the Minister
argued that this
heading to Subdivision A evinced an intent that
“parent” be understood as biological parent. In response, it was
said
that “[d]escent can apply to non-biological steps on a family
tree”, and that the use of descent in the heading was “meant
to
distinguish between those born in Australia and those not born in
Australia”.
- Not
much can be gleaned from the heading to Subdivision A of Division 2 of Part 2.
Like the word “parent”, the meaning
of the word
“descent” depends on the context in which it is used. A family
tree, which is designed to describe the familial
relationships of members of a
family or families, including descent, will ordinarily include biologically and
non-biologically related
individuals. The significance of a heading will, in
any event, depend a good deal on the provisions that it covers and the weight
of
other factors. Thus, in Chalmers v Thompson (1913) 30 WN (NSW) 161,
Harvey J was required to decide whether or not a non-adoptive father of a child
could be charged with breach of a provision relating
to ill-treatment of
children, even though the provision was headed “Adoption of
children”. Harvey J had regard to the
form of the Act prior to its
consolidation when it had no headings upon the basis that there was an
“ambiguity”, and
decided that the provision was intended to apply to
the parents of children generally and was not limited by the heading. See also
K & Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
[1985] HCA 48; (1985) 157 CLR 309 and Bevanere Pty Ltd v Lubidineuse [1985] FCA 134; (1985) 7 FCR 325 at
332. In these appeals, the significance of the heading “Citizenship by
descent” may perhaps be garnered from the
provisions covered by it or the
legislative history of the Citizenship Act (discussed in further detail
below).
- Today,
the heading to Subdivision A of Division 2 of Part 2 encompasses related
provisions that concern the eligibility for citizenship
of persons born outside
Australia claiming through a citizen parent. The reference to
“descent” in the heading is a reference
to the fact that the claim
for eligibility relies upon a citizen parent. However, there is nothing here to
indicate whether descent
and parenthood are exclusively biological. Moreover,
the fact that (save perhaps for s 13) Division 1 of Part 2, headed
“Automatic
acquisition of Australian citizenship”, is very largely
directed to the eligibility for citizenship of persons born in Australia
or
Australian territory (see especially s 12), whilst the remainder of Division 2
of Part 2, headed “Acquisition of Australian
citizenship by
application” deals almost entirely with the eligibility for citizenship of
persons born outside Australian (as
well as the resumption of citizenship)
indicates that the principal discrimen between Division 1 and Division 2 of Part
2 is between
persons born in Australia and persons born outside Australia.
- This
is in part confirmed by the legislative history of the provisions providing for
persons born outside Australia, discussed below.
Presently, it suffices to
observe that a heading of this kind first appeared in the Nationality and
Citizenship Act 1948 (Cth) as originally enacted, which divided the Act into
five parts, Part III dealing with “Australian Citizenship”.
Division 1 of Part III was entitled “Citizenship by Birth or
Descent”, the other Divisions being “Citizenship by
Registration”, “Citizenship by Naturalization” and “Loss
of Citizenship”.
- Broadly
speaking, this skeletal structure has remained the same though the body of
provisions has grown, with the result that today
Part 2 of the Citizenship Act
concerns Australian citizenship. Speaking very generally, as changes in
circumstances calling for
a legislative response have arisen, the legislature
has responded within a structure conceived under the 1948 Act. Part 2 now
provides
various ways in which persons may acquire Australian citizenship
– some being automatic and others requiring application to
the Minister
– generally depending on whether an applicant was born within or outside
Australia. Division 1 of Part 2 is
now entitled “Automatic acquisition
of Australian citizenship” and contains within it provisions for
citizenship by birth
(s 12), as well as modern provisions for citizenship by
adoption (s 13), citizenship by incorporation of Territory (s 15) and
citizenship
in circumstances where a person “is found abandoned in
Australia as a child” (s 14). Division 2 of Part 2 is entitled
now
“Acquisition of citizenship by application”. As noted, Subdivision
A is headed “Citizenship by descent”
and includes s 16. Subdivision
AA is headed “Citizenship for persons adopted in accordance with the Hague
Convention on Intercountry
Adoption” and contains provisions reflecting
Australia’s legislative implementation of international obligations under
this Convention, which Australia ratified on 25 August 1998. Subdivision B of
Part 2 is headed “Citizenship by conferral”,
and Subdivision C,
“Resuming citizenship”. It is true that other Divisions in Part 2
are not so greatly concerned with
the distinction between persons born in
Australia and persons born outside Australia, but these Divisions relate to
matters of concern
for persons in both classes. Division 3 of Part 2 now deals
with “Cessation of Australian citizenship”, Division 4,
with
“Evidence of Australian citizenship”, and Division 5, with
“Personal identifiers”.
- Before
leaving Subdivision A of Division 2 of Part 2, it is important to consider the
manner in which the provisions within it operate
together, particularly the
effect of s 19A.
- The
Minister’s decision to approve or refuse to approve a person becoming an
Australian citizen under Subdivision A, Division
2 of Part 2 of the Citizenship
Act is essentially non-discretionary. Once an application for citizenship is
made under s 16(1),
the Minister is required by s 17(1) to approve, or refuse to
approve, the person becoming an Australian citizen. The Minister must
not
approve an application under s 16(1) if the person is not eligible under s 16(2)
or 16(3): see s 17(1A). Conversely, the Minister
“must approve the person
becoming an Australian citizen” if the person is eligible to become an
Australian citizen under
s 16(2) or 16(3)” unless the Minister is not
satisfied of the person’s identity or certain national security exceptions
apply: ss 17(2)-(4A). Citizenship begins for a person on the day on which the
Minister approves the person becoming an Australian
citizen: see s 19. Section
19A further provides that:
Despite section 19, a person does not become an Australian citizen under this
Subdivision, even if the Minister approves the person
becoming an Australian
citizen, unless:
(a) if the person was born on or after 26 January 1949—a parent of
the person was an Australian citizen at the time of
the person’s birth;
or
(b) if the person was born before 26 January 1949—a parent of the
person became an Australian citizen on 26 January
1949.
- Section
19A may give rise to particular and possibly unintended difficulties for certain
individuals if the Minister’s construction
is preferred. Let it be
assumed that “parent” in s 16(2) is limited to a biological parent.
Let it also be assumed
that, acting under s 17(2), the Minister approved an
applicant becoming a citizen, on the basis that the applicant was eligible under
s 16(2), in circumstances that did not involve DNA testing. Typically, so
counsel for the Minister said, there would be no DNA testing
in circumstances
falling within a presumption of parentage in the Family Law Act or State
legislation (as, for example, s 5 of the Status of Children Act 1974
(Vic)). Let it also be assumed that the Minister so approved the applicant in
his infancy. The applicant grew up in Australia and
subsequently fulfilled the
obligations of citizenship. If, for some reason (medical or familial perhaps),
such a person in later
life were to be the subject of DNA testing from which it
appeared that his supposed citizen parent was not in fact his biological
parent,
then, on the Minister’s construction, such a person would never have
become an Australian citizen. (In some circumstances
a similar difficulty might
arise under s 12(1).) Further, without a visa, such a person would be an
unlawful non-citizen liable
to deportation under the Migration Act 1958
(Cth). Perhaps, he might be eligible for a visa under s 35 of that Act, but
eligibility for such a visa is limited and it would not permit re-entry to
Australia.
- These
difficulties would be unlikely to arise if “parent” in s 16(2) were
not limited to biological parent in the way
the Minister contends.
- It
will be seen from the foregoing that the Minister’s argument relied
heavily on the presumptions as to parentage in the Family Law Act and in State
legislation. These presumptions lay at the heart of the Minister’s
argument that his proposed construction meant
that s 16 of the Citizenship Act
operated fairly and efficiently, whilst the opposing parties’ construction
would operate inefficiently.
There is, however, no provision in the Citizenship
Act that permits the Minister to pick up and apply the specific presumptions
in
the Family Law Act in a general inquiry under s 16. On the contrary, where the
Citizenship Act picks up provisions of the Family Law Act (and through
the
Family Law Act, State legislative provisions), it does so expressly: see, for
example, Citizenship Act, s 8 and the definition of “child”
in s 3.
There is moreover nothing in the Family Law Act that indicates that its
provisions are generally applicable in other Commonwealth legislation (absent
express provision). It follows
therefore that these statutory presumptions have
no legal operation in settling a question of parenthood under s 16(2) of the
Citizenship
Act. Further, one may doubt whether the common law presumption of
legitimacy can properly be applied in determining a matter arising
under a
statute that no longer treats marriage as a relevant criterion in determining
eligibility for citizenship. If these presumptions
have no part to play in a
Ministerial decision under s 17, then a decision under s 17 must be made in the
ordinary way, including
by having regard to all the circumstances of the case
that are disclosed to the decision-maker and by reference to the ordinary
experience
of a member of the Australian community. In this case, none of the
constructions favoured by the parties would appear to have any
particular
advantage so far as efficiency and fairness are concerned.
- It
is convenient to note at this stage that both the Minister and the opposing
parties directed argument to the common law presumption
of legitimacy, under
which a child born in wedlock was presumed legitimate: see Cocks v
Juncken [1947] HCA 16; (1947) 74 CLR 277 at 285, 288 (Latham CJ), 292-93 (Starke J), 294
(Dixon J), 309, 311 (Williams J); also Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
at 572-73 [54], 885 [107]-[108] (Gummow, Kirby and Crennan JJ). In Cocks v
Juncken Dixon J said (at 294):
The law of to-day appears to me to provide a simple presumption of legitimacy
which applies to children born during a marriage, whether
conceived before or
after the marriage took place, and to children conceived during the marriage,
whether born before or after the
marriage is dissolved by the husband’s
death or otherwise.
The presumption is rebuttable in all these cases by proof that sexual
intercourse between the husband and the mother could not have
taken place or did
not take place at a time which would account for the pregnancy, having regard to
the date of the child’s
birth.
- Rebutting
the presumption required clear and convincing evidence that, in the natural
order of things, the husband could not have
fathered the child: compare Cocks
v Juncken at 284, 288 (Latham CJ), 290 (Rich J), 292 (Starke J), 294, 307
(Dixon J), and 311-312 (Williams J). Therefore, in ordinary circumstances,
if a
child was born to a married woman, then her husband was presumed the father of
the child.
- The
function of the presumption can only be understood be reference to its
historical origins. Historically, a biological connection
was insufficient to
establish parentage since at common law a child born outside wedlock was
filius nullius. In that instance, the biological father owed no legal
duties to his biological offspring. Nor had he any parental rights. Before
the
introduction of modern legislation designed to ensure that the legal rights of
children were not adversely affected by their
biological parents’ marital
status, the common law presumption of legitimacy was important in protecting
children’s rights,
particularly property rights of inheritance: see
Magill v Magill at 572-73 [54]; compare Status of Children Act
1974 (Vic), Status of Children Act 1974 (Tas), Family
Relationships Act 1975 (SA), Children (Equality of Status) Act 1976
(NSW), repealed and replaced by Status of Children Act 1996 (NSW),
Status of Children Act 1978 (Qld), Status of Children Act 1979
(NT), and Parentage Act 2004 (ACT). Whilst biological considerations
might operate to rebut the presumption, the presumption generally operated by
reference to
the social institution of marriage. This may be considered
illustrative of the proposition that in human societies over time parentage
is
what society understands it to be.
- An
incident of the protection afforded by the presumption was that the presumption
would generally have operated so as to ensure
that a child born to a married
woman outside Australia (and earlier the British Dominions) would ordinarily
acquire the status of
her husband as an Australian citizen (or earlier, British
subject): see the legislative history of the Nationality and Citizenship Act
1948 (Cth), discussed below, especially at [110]. As counsel for Ms
McMullen noted, at a time before DNA testing to establish paternity,
a person
might thereby acquire citizenship, whether or not the child was, genetically
speaking, the offspring of the husband.
Other provisions of the Citizenship Act
- The
Minister also relied on the specific language used in s 2A and on particular
provisions outside Subdivision A of Division 2 of
Part 2 to support his
submission that “parent” in s 16(2) of the Citizenship Act meant
biological parent. In this regard
the Minister made a number of points, none of
which, so it seems to us, greatly assist in answering the question raised by the
appeals.
- First,
the Minister relied, though relatively slightly, on s 2A, which in terms
provides a “simplified outline” of the
Act. Regarding
“citizenship by descent”, the outline states:
Generally, you would apply for this if you were born outside Australia and one
or both of your parents were Australian citizens when
you were born.
The Minister argued that the reference to “one or both of your
parents” supported a reading limiting s 16(2) to two biological
parents.
- Section
2A is part of the Citizenship Act and cannot be ignored in the process of
construction. Perhaps such an outline may help
resolve ambiguities in, or
doubts about the scope of, other provisions of the Act. Since it is only a
“simplified outline”,
however, it is improbable that s 2A would
alter the clear meaning of a provision or, indeed, resolve a constructional
issue of any
complexity.
- In
the present instance, considering that the provision offers only a
“simplified” outline and that that “outline”
is
relevantly qualified by “generally” (see the above quoted passage),
it is inappropriate to rely on the use of the
word “both” in the
phrase “one or both of your parents” to justify any particular
interpretation of the word
“parent” in s 16(2). In any case, the
outline is silent as to the basis of parental status; no mention is made of a
relevant biological connection.
- The
Minister also identified two other provisions said to indicate that, where
Parliament intended to address non-biological parents,
it did so by specific
provision. These provisions were s 8 dealing with artificial conception
procedures and surrogacy and s 13
concerning adoption.
- Section
8 is headed “Children born as a result of
artificial conception procedures or surrogacy arrangements” and
provides:
(1) This section applies if a child
is:
(a) a a child of a person under section 60H or 60HB of the Family Law
Act 1975; and
(b) either:
(i) a child of the person’s spouse or de facto partner under that
section; or
(ii) a biological child of the person’s spouse or de facto
partner.
(2) The child is taken for the purposes of this
Act:
(a) to be the child of the person and the spouse or de facto partner;
and
(b) not to be the child of anyone
else.
Broadly speaking, the effect of s 8 is to deem a child born as a result of
surrogacy arrangements or artificial conception procedures
to be a child of a
person (in the circumstances outlined) although there is no relevant biological
connection with the child; and,
further, to deem that child to be a child of a
person and a spouse or de facto partner to the exclusion of anyone else.
- Counsel
for the Minister argued that a separate section addressing surrogacy and
artificial conception procedures would be unnecessary
if s 16(2) encompassed a
conception of parenthood broader than the biological. We reject this
submission. The issues that may arise
from surrogacy arrangements and
artificial conception procedures are especially complex. Moreover, they are new
issues in the sense
that they are the consequences of comparatively recent major
developments in science and technology and have required clear and specific
responses from Parliament to protect the rights of persons, particularly
children born under these regimes. It is therefore unsurprising
that Parliament
has addressed these circumstances separately.
- At
most one might observe that Parliament’s reference to “biological
child” in s 8(1)(b)(ii) indicates that
Parliament has turned its mind
in this instance to the need to qualify a familial relationship in biological
terms. It has not done
so in the case of “parent” in s 16(2)(a).
This may lend support to the contention that Parliament intended the word
“parent” in s 16(2)(a) to be understood in its ordinary sense (what
ever that may be), without any specific limitation
of the kind for which the
Minister contends.
- Under
s 13, a person is an Australia citizen if:
(a) adopted under a law in force in a State or Territory; and
(b) adopted by a person who is an Australian citizen at the time of the adoption
or by 2 persons jointly at least one of whom is
an Australian citizen at that
time; and
(c) present in Australia as a permanent resident at that time.
- Again,
the Minister argued that this section would be superfluous if a broad
understanding of “parent” were intended
in s 16(2). We would reject
this argument as well. Section 16(2) looks to the time of the birth of a person
and treats this time
as relevant for determining eligibility for citizenship by
descent. In Australia a person is adopted after the time of birth, and
usually
well after this time: see Adoption Act 1993 (ACT); Adoption Act
2000 (NSW); Adoption of Children Act 1994 (NT); Adoption Act
2009 (Qld); Adoption Act 1988 (SA); Adoption Act 1988 (Tas);
Adoption Act 1984 (Vic); and Adoption Act 1994 (WA). Section 13
recognises this, treating the time of the adoption as the relevant time for the
purposes of eligibility for citizenship.
- The
Minister also relied on s 7(2) of the Citizenship Act, which provides that
“the status of a parent of a person at the time
of the person’s
birth, is, for a parent who died before the birth, taken to be the status of the
parent when the parent died”.
This provision is silent about the need for
biological connection; and is also consistent with the fact that the word is to
be understood
in its ordinary sense. Whether or not a person was a parent prior
to birth is essentially a matter of fact to be determined in the
ordinary way,
by reference to the circumstances disclosed and the ordinary experience of a
member of the Australian community.
- One
must conclude that there is little, if anything, in the text or structure of the
Citizenship Act that would support the proposition
that, in the specific context
of s 16(2), the word “parent” only can mean biological parent,
irrespective of the ordinary
meaning of the word.
- On
the contrary, textual and structural considerations would support the
proposition that the word “parent” in s 16(1)(a)
bears its ordinary
meaning and that it is essentially for the decision-maker to determine whether
or not a person was a “parent”
as ordinarily understood, having
regard to the facts before him or her.
- Counsel
for Ms McMullen sought to support the Tribunal’s understanding of
“parent” in McMullen by reference to two other provisions.
The first is consistent with her case, but the second can be put to one side.
Counsel relied
in this connection on s 47(2), invoking the principle that the
same meaning should generally be given to the same word in different
parts of a
statute: see McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1979) 144 CLR 633
(‘McGraw-Hinds’) at 643. Section 47(2) provides that where
an applicant for citizenship is a child, the Minister satisfies the requirement
that the Minister give notice of his or her decision on the application by
giving notice to “a parent of the child”.
Counsel argued that this
provision was difficult to square with a reading that limited
“parent” in s 16(2) to biological
parent. Notice to a biological
parent, who had not accepted his parental status or, though accepting biological
responsibility,
had no other connection with the child would as a practical
matter fail to meet the evident purpose of the provision. It is therefore
probable that, if s 16(2) were interpreted as limiting “parent” to
“biological parent”, s 47(2) would need
to be understood as using
the same word with a different meaning.
- This
might be thought to indicate that the word “parent” is not used
exclusively in the Citizenship Act to refer to a
biological parent, although as
the decision in McGraw-Hinds itself shows, “[t]he rule that the
same words which occur in different parts of a statute have the same meaning is
one which
‘must yield to the requirements of the context’”:
McGraw-Hinds at 643 (Gibbs J, citing Madras Electric Supply Corp Ltd v
Boarland [1955] AC 667 at 685). As noted, however, there is little
indication in the context of the Citizenship Act that the word
“parent”
was intended to be understood in any specifically
restrictive way.
- Counsel
for Ms McMullen also relied on the terms of s 36 of the Citizenship Act,
pursuant to which the Minister might revoke a child’s
citizenship if his
or her responsible parent ceases to be an Australian citizen: see s 36(1).
Under s 36(2), however, s 36(1) will
not apply to a child if, at the relevant
time, the child has another responsible parent who is an Australian citizen. As
noted above,
a “responsible parent” is a defined term and, generally
speaking, refers to a person having parental responsibilities
towards a child.
These provisions indicate that Parliament has not automatically tied the loss of
citizenship by a child to the
loss of citizenship by a biological parent; and
indeed has allowed for the retention of citizenship that would otherwise be lost
where the child retains a responsible (perhaps non-biological) citizen parent.
Save at this very general level, these provisions
do not, however, offer much
assistance with the present question, because they depend on the defined
expression “responsible
parent” – an expression that is not
used in s 16(2).
- If
these admittedly modest indications within the statute support the proposition
that the word “parent” has the meaning
assigned to it in everyday
current usage, is there anything in the legislative history that casts more
light on the question at issue?
Both the Minister and the opposing parties
referred the Court to this history, which is discussed in some detail hereafter.
Legislative history
- The
legislative history of citizenship in Australia is central to understanding the
significance of the question raised in these
appeals. This history clearly
supports the following two propositions.
(1) In Australia, the
legal concept of citizenship is comparatively recent, having been introduced by
Nationality and Citizenship Act 1948 (Cth) (later called the
Australian Citizenship Act 1948 (Cth)).
(2) Eligibility for citizenship has significantly altered over time in
response to political and social changes, including the emergence
of Australia
as an independent national state, the recognition that men and women have equal
legal status, and the recognition that
the rights of persons should not depend
on the marital status of their parents.
- To
these, we would add a third relevant proposition.
(3) For the
purposes of statutory eligibility, in relation to persons born outside
Australia, there is little, if anything, to warrant
the conclusion that the
citizen parent (through whom the citizenship claim is made) can only be a person
having a genetic connection
with the claimant.
- Citizenship
is not a constitutionally-defined concept in Australia. As Gaudron J said in
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs [1992] HCA 64; (1992) 176 CLR 1 (‘Lim’) at
54:
Citizenship, so far as this country is concerned, is a concept which is entirely
statutory, originating as recently as 1948 with
the enactment of what was then
styled the Nationality and Citizenship Act 1948 (Cth). It is a concept
which is and can be pressed into service for a number of constitutional purposes
... But it is not a concept
which is constitutionally necessary, which is
immutable or which has some immutable core element ensuring its lasting
relevance for
constitutional purposes. (footnotes
omitted)
From time to time, other members of the
High Court have made similar statements: see also Singh 222 CLR at 364
[96] (McHugh J) and DJL v The Central Authority (2000) 201 CLR 226
at 277-78 (Kirby J). Before the 1948 Act, people in Australia were, relevantly,
either British subjects
or aliens. As McHugh J noted in Singh 222 CLR at
364-5 [96]:
The concept of the “natural born subject” was also recognised by the
Australian colonies in the mid-nineteenth century
in domestic naturalisation
legislation. ... [T]he natural born subject owed from birth permanent
allegiance to the Crown. In turn,
the Crown owed duties of protection to the
subject.
For the earlier history, see Singh at 359-63 [81]-[91] (McHugh J); 386
[164], 388-90 [170]-[174], 391-93 [178]-[181] (Gummow, Hayne and Heydon JJ);
405-6 [223]-[225]
(Kirby J); and 425-28 [298]-[301] (Callinan J); and Re
Patterson 207 CLR at 428-30 [114]-[116] (McHugh J) and 440 [148] (Gummow and
Hayne JJ).
- The
Naturalization Act 1903 (Cth) was enacted by the Commonwealth Parliament
shortly after Federation and came into force on 1 January 1904. The 1903 Act
and
its successor, the Nationality Act 1920 (Cth), were principally
concerned with the naturalisation of persons as British subjects. There was no
legal concept of citizenship.
Under the 1903 Act, the Commonwealth assumed
the exclusive authority to issue certificates of naturalisation, although
persons
previously naturalised under colonial or State law were “deemed to
be naturalized” (ss 13, 4). The grant of a certificate
of naturalisation
assured the grantee “all political and other rights powers and
privileges”, and subjected him to all
obligations, in the Commonwealth to
which other natural-born British subjects were entitled or subject (s 8).
However, “an
aboriginal native of Asia, Africa, or the Islands of the
Pacific, excepting New Zealand” was not eligible for a certificate
of
naturalization under the 1903 Act, as first enacted (s 5). The 1903 Act made
particular provision for infants, stating (in
s 10):
An infant, not being a natural-born British subject –
(a) whose father, or whose mother (being a widow or divorced), has obtained a
certificate of naturalization; or
(b) whose mother is married to a natural-born British subject or to a person who
has obtained a certificate of
naturalization;
and who has at any time resided in Australia with such father or mother, shall
in the Commonwealth be deemed to be naturalized and
have the same rights powers
and privileges, and be subject to the same obligations, as a person who has
obtained a certificate of
naturalization.
- The
Nationality Act 1920 (Cth) largely followed the British Nationality &
Status of Aliens Act 1914 (UK). Under the 1920 Act, natural-born British
subjects were deemed (by s 6) to be: (a) any person born within the
dominions
of the Crown; (b) any person born on board a British ship; and (c) any
person born outside the Crown dominions:
whose father was a British subject at the time of that person’s birth and
either was born within His Majesty’s allegiance
or was a person to whom a
certificate of naturalization had been granted, or had become a British subject
by reason of any annexation
of territory, or was at the time of that
person’s birth in the service of the Crown.
Provision for certificates of naturalisation
continued to be made, but natives of Asia, Africa, and the Pacific Islands of
the Pacific
were no longer ineligible. Naturalisation certificates could not,
however, be granted to a person “under a disability”,
an expression
covering “the status of being a married woman, or a minor, lunatic or
idiot” (ss 10 and 5).
- As
already stated, Australian citizenship was not a legally-recognized concept
until it was introduced into Australian law by the
Nationality and
Citizenship Act 1948 (Cth), later renamed the Australian Citizenship Act
1948 (Cth), which took effect on 26 January 1949. The concept of Australian
citizenship emerged as Australia moved to independent nationhood
and, as will be
seen, it also altered as social norms relevant to defining membership of the
Australian body politic changed.
- When
first enacted, the 1948 Act (in s 10) provided a definition of an
“Australian citizen” applicable to people born
after the
commencement of the Act. Broadly speaking, s 10 provided that a person
born in Australia after the commencement date
was an Australian citizen. There
was transitional provision (in s 25) under which people who were British
subjects immediately before
that date could become Australian citizens. There
was also provision for citizenship by naturalization (s 14) and loss of
citizenship
(ss 17-23).
- Relevantly,
pursuant to s 11, from 26 January 1949 to 30 April 1970, a person born outside
Australia was an Australian citizen by
operation of law if:
- at the time of
birth the father was an Australian citizen; or
- at the time of
birth the unmarried mother was an Australian citizen (or a British subject
ordinarily resident in Australia or New
Guinea); and
- the birth was
registered at an Australian consulate within a year of the birth (or, in special
circumstances, within such time as
the Minister allowed).
Only if born “out of wedlock” (see s 11)
could a person’s Australian citizenship derive from the mother’s
citizenship at the time of birth.
- The
1948 Act was amended on a number of occasions, and the law regarding eligibility
for citizenship for persons born overseas underwent
various transformations. It
is unnecessary to refer to amendments between 26 January 1949 and 30 October
1959. It suffices to note
the effect of Citizenship Act 1969 (No 22 of
1969), with effect from 1 May 1970. By virtue of the amendments
effected by this Act, persons born to married
women who were Australian citizens
at the time of their birth became eligible to acquire citizenship by
registration. Notwithstanding
its retrospective operation, persons who had
turned 18 were unable to take advantage of this provision – a matter that
was
later remedied by s 10C. Thus, broadly speaking, from 1 May 1970 until 21
November 1984, a person born outside Australia (on or
after 26 January 1949) was
an Australian citizen by operation of law ( s 11(1))
if:
(a) in the case of a person born in wedlock – at the time of the
birth his father or mother was an Australian citizen; or
(b) in the case of a person born out of wedlock – at the time of
the birth his mother
–
(i) was an Australian citizen; or
(ii) was, or had the status of, a British subject and was ordinarily resident in
Australia or New
Guinea,
and, in either case, the birth was or is registered at an Australian consulate
within five years after its occurrence or within such
further period as the
Minister allowed or allows.
(Emphasis added)
In effect, being born in or out of
wedlock was a key criterion for determining eligibility from 26 January 1949
until 21 November
1984. Under the 1948 Act as originally enacted, save in
unusual circumstances, a person born to a married woman would become an
Australian citizen if her husband was an Australian citizen at the time of the
birth: see [82] and following above.
- The
Australian Citizenship Amendment Act 1984 (Cth) (‘the 1984
Act’) further amended statutory eligibility for citizenship. Relevantly,
s 11 of the 1948 Act was replaced
by new s 10A, concerning citizenship by
adoption, and new s 10B, addressing citizenship by descent. Before 1984,
citizenship by
descent for persons born outside of Australia was determined by
reference to the citizenship of either the person’s “father”
or “mother” or both, depending on the circumstances. The new s 10B
was the first time the term “parent”,
rather than
“mother” or “father”, was used in connection with
citizenship for persons born outside Australia.
The change was, however,
relevantly, silent on the present question: the change reflected not only the
recognition that men and
women have equal legal status, but also that the rights
of persons should not depend on the marital status of their parents. It
was not
directed to limiting the meaning of parentage, whether to biological
parents or otherwise, a limitation that would, in any case, have been
inconsistent
with its other provisions: see [115].
- By
virtue of s 10B persons born outside Australia acquired Australian citizenship
by operation of law if: (1) their birth was registered
at an Australian
consulate within 18 years of birth; and (2) a parent “being a parent of
the relevant person at the time of
the birth” was an Australian citizen
otherwise than by descent under s 10B (or under the former s 11). Where a
parent was
an Australian citizen by descent, the parent had also to have been
present in Australia at any time before the registration of the
name of the
relevant person, “otherwise than as a prohibited immigrant, as a
prohibited non-citizen, or in contravention of
a law of a prescribed
Territory”. If one parent were not an Australian citizen at the time of
birth, then there could be no
registration under s 10B
unless:
(a) at least one person who is, at the time of the application, a responsible
parent of the relevant child, was, at the time of the
birth of the relevant
child –
(i) a parent of the relevant child; and
(ii) an Australian citizen; or
(b) a person who was, at the time of the birth of the relevant child
–
(i) a parent of the relevant child; and
(ii) an Australian citizen,
is dead.
A responsible parent, in relation to a
child, was defined in s 4(1) as:
a person, whether or not a parent of the child, who, under a law in force in a
foreign country or a law of the Commonwealth, a State
or a Territory, whether by
reason of adoption, operation of law, an order of a court or otherwise, has
guardianship or custody of
the child whether jointly or otherwise.
- Section
10B introduced into the citizenship by descent provisions the notion of
“responsible parent” as opposed to merely
a “parent”.
The provision contemplated a distinction between “parent” and
“responsible parent”
– the later requiring no genetic
connection to qualify as a “responsible parent”. The provision made
it clear
that, where a person born outside Australia had living parents, only
one of whom was a citizen parent, eligibility for citizenship
required that the
citizen parent was a citizen parent at the time of birth and a responsible
parent at the time of application.
- Elsewhere,
the 1984 Act indicated that lack of genetic connection would not necessarily
disqualify a person from parentage of a particular
child and from conferring
citizenship upon that child. Thus, a new s 6 provided that “[a] child
born to a woman as a result
of the carrying out, during the period in which the
woman was married to a man, of a medical procedure in relation to that woman,
being a child who is not biologically the child of that man, shall ... be deemed
to be a child of that man ... if the medical procedure
was carried out with the
consent of that man”. Under the Act as it stood then, in the
circumstances with which s 6 is concerned,
a person born outside Australia
(having a citizen and non-citizen parent) might derive citizenship through such
a man if he had Australian
citizenship at the time of the birth and was a
responsible parent at the time of application.
- The
1948 Act was further amended in 1990 and 1991. These amendments were directed
at remedying specific deficiencies in the Act
as it then existed, but they also
introduced for the first time the terms “natural mother”,
“natural child”
and “natural parent”. In particular,
the Australian Citizenship Amendment Act 1990 (Cth) introduced a new s
11, which specifically provided for citizenship by descent for people born
outside Australia or New Guinea
before 26 January 1949 whose “natural
mother” was an Australian citizen on 26 January 1949, either by birth
or naturalisation.
Section 11(2) permitted an applicant for citizenship under s
11(1) to include in the application “any natural child of the
applicant,
regardless of the child’s age”. Section 11(4) further provided that
“[t]he applicant, and any natural
child of the applicant included in the
application” became Australian citizens on the day on which the applicant
was registered
as such. The Explanatory Memorandum to the Australian
Citizenship Amendment Bill 1990 (Cth) circulated in the House of
Representatives indicated (at [8]) that the term “natural children”
was intended to
signify “biological children, including children born out
of wedlock, but not adopted children or step-children”. Presumably,
the
term “natural mother” was intended to be understood in the
correlative sense. See also the Minister’s second
reading speech,
Australian Citizenship Amendment Bill 1990 (Cth), House of
Representatives, 12 November 1990, at p 3756.
- As
Professor Kim Rubenstein explains in her book, Australian Citizenship Law in
Context (Lawbook Co, 2002) p 97, there were significant practical
difficulties for people seeking to rely on this new provision, which was
introduced in the first place for a relatively straightforward reason –
“to correct an anomaly, an inequity based on
gender”:
see Jack Grossberg v Department of Immigration and Ethnic
Affairs [1995] AATA 211 at [17]. The practical difficulties arose from the
time requirements in s 11(3) and the relevant Regulations, together with
relevant legislative
commencement date.
- The
Australian Citizenship Amendment Act 1991 (Cth) added a new s 10C to
overcome these timing difficulties. That is, s 10C was inserted to allow
persons who had failed to be
registered before turning 18, particularly those
born to married parents, where the mother only was an Australian citizen,
between
26 January 1949 and 30 April 1970: see Rubenstein op
cit p 98. Section 10C provided for the acquisition of citizenship by
operation of law by people over 18 years of age born on or after
26 January 1949
and 18 or over when s 10C commenced, who “failed for an acceptable
reason to become registered as an Australian
citizen” under s 10B or the
former s 11 and were of good character. As with the earlier s 10B, eligibility
was limited to
person with a natural parent who was an Australian citizen at the
time of birth and the time of application (or, if the parent was
deceased, at
the time of the parent’s death). In his second reading speech, the
Minister stated that he expected that the
number of people obtaining citizenship
under this provision would be small: see the Minister’s second reading
speech, Australian Citizenship Amendment Bill 1991 (Cth), House of
Representatives, 7 November 1991, at p 2648.
- As
indicated at the start of these reasons, both the Minister and the opposing
parties relied on the use of the terms “natural
mother”,
“natural child” and “natural parent” in the 1990 and
1991 amendments. The Minister argued
that the use of “natural
parent” in s 10C favoured his construction. The Minister said that, since
s 10C was intended
as a remedy for individuals who had missed the opportunity to
register as citizens under s 10B, if “natural parent” in
s 10C were
narrower in scope than “parent” in s 10B, then s 10C would not have
had its intended remedial effect. Perhaps
so, although this disregards the fact
that the adjective “natural” was first introduced by s 10B. The
opposing parties
argued, on the other hand, that by using this term in ss 10B
and 10C, Parliament showed that, if it wished to limit the “parent”
and “child” relationship to a biological one, it would specifically
do so. Since Parliament had omitted the limiting
word “natural”
from the current s 16(2), then, so the argument went, Parliament must have
determined not to retain the
biological limitation.
- We
would not accept either argument. The legislative history shows that Parliament
adopted the adjective “natural” in
s 10B (and later s 10C) to ensure
that the rights conferred by statute were the same for persons born in wedlock
and persons born
out of wedlock. In seeking to remove parental marital status
as a relevant criterion, Parliament introduced (briefly as it happened)
an
expressly biological qualification. Sections 10B and 10C were designed to
remedy particular problems, which in the case of s
10C affected a small group of
people. Bearing this in mind, not much can be read into the use of the
qualifying “natural”
other than an intention, as noted, to ensure
that no distinction was drawn between persons born in or out of wedlock.
Equally, one
cannot read a great deal into the omission of the qualifying
adjective in the current form of s 16, especially as, by the time the
Citizenship Act commenced on 1 July 2007, discrimination based on whether a
person was born in or out of wedlock was no longer a
common feature of the law
or society. In this context, all that can be inferred from the omission of the
adjective is that Parliament
intended that the word “parent” be
accorded its ordinary meaning – a meaning that was to be consistent with
contemporary
social norms. That Parliament intended that this should be the
governing approach to the new Citizenship Act is confirmed by the
Minster’s Second Reading Speech: see below at [121].
- The
current Citizenship Act replaced the Australian Citizenship Act 1948
(Cth), with s 16 replacing the previous provisions of the 1948 Act dealing
with eligibility for persons born outside Australia
and claiming citizenship
through a parent. The Revised Explanatory Memorandum that was circulated with
the Australian Citizenship Bill 2005 explained that new Subdivision A of
Division 2 of Part 2 “mirrors the provisions of the old Act”,
although comparison
with the former legislation, especially the predecessor
provisions to s 16, shows that this was not entirely true. Relevantly, for
present purposes, the Minister’s second reading speech emphasized that the
new Act was intended to “deliver [a] better
structured, clearer, more
accessible law, drafted in the language of the 21st
century” (emphasis added): see Parliamentary Debates, 9 November 2005,
p 9. One cannot, of course, attach overly much significance
to such a
statement, although it apparently confirms that, where they appear in the
Citizenship Act, words in ordinary English usage
are to be understood to have
their ordinary contemporary meaning.
Opening the floodgates?
- The
Minister argued that a reading of “parent” as extending beyond
biological parentage would create “anomalous
and indeterminate” and
“arbitrary” results. We doubt that this would be the case. First,
as emphasized already,
s 16(2) contains a narrow time requirement: a claimant
must show that, at the time of birth, he or she had a citizen parent. This
inevitably circumscribes the field of eligibility. For example, even infant
adoptees would be unable to satisfy this requirement.
Secondly, judicial
acceptance that parentage is not limited to a biological relationship in
analogous provisions in citizenship
statutes elsewhere has not had the
consequences described by the Minister.
- In
the case of a child not born out of wedlock, the law in the United States does
not require a blood relationship between a child
born outside the country and
the child’s citizen parent in order for that parent to pass US citizenship
to the child: see
Scales v Immigration and Naturalization Service, 232
F.3d 1159 at 1161, 1166 (9th Cir. 2000)
(‘Scales’); and Solis-Espinoza v Gonzales, [2005] USCA9 177; 401
F.3d 1090 at 1093 (9th Cir. 2005)
(‘Solis-Espinoza’). Only where a child is born out of
wedlock and relies on the citizenship of his father does the law expressly
require a
“blood relationship” in order for a child born outside the
country to obtain US citizenship through the child’s
citizen parent: see 8
U.S.C. s 1409(a)(1). In the absence of a similar requirement in the provisions
applicable to children born
of legally married parents (see 8 U.S.C. s
1401(c)-(e), (g)), courts in the United States have not read the term
“parent”
as limited to biological parent, and there is no
requirement of a blood relationship between the child and the parent.
- In
Scales, the petitioner was born in the Philippines and his mother was a
Philippine citizen. The man whom the petitioner knew as his father
was a US
citizen-serviceman stationed in the Philippines. He met and married the
petitioner’s mother while she was pregnant
with the petitioner. This man
had sworn an affidavit in which he stated that, although he was not the
petitioner’s biological
father, he accepted him as his “own son in
every legal sense permissible”. The family moved to Texas together when
the
petitioner was two years old, and the court noted that there was
“nothing in the record to indicate that [the man the petitioner
knew as
his father] ha[d] ever treated [the] [p]etitioner as other than his own
son”: Scales at 1162. Looking to state-law presumptions of
legitimacy, the court found that the petitioner was not born “out of
wedlock”,
and the provision requiring a “blood relationship”
therefore did not apply. Under the applicable statute, the petitioner
was a US
citizen if he was “born . . . of parents one of whom . . . [was] a citizen
of the United States” who met the
applicable physical presence
requirements: Scales at 1163. The petitioner thus acquired citizenship
through his parent although that parent was not his biological father.
- The
situation in Solis-Espinoza was similar, with the difference that the
non-biological citizen-parent was the mother, rather than the father, of a child
born outside
the United States. The facts as described by the court were as
follows (Solis-Espinoza at 1091-92):
Solis-Espinoza was born in Tijuana, Mexico in 1967. He was raised in the United
States by his biological father, Refugio Solis, a
Mexican citizen and lawful
permanent resident of the United States, and his father’s wife, Stella
Cruz-Dominguez, a natural-born
United States citizen. Solis and Cruz-Dominguez
were married at the time of Solis-Espinoza’s birth. Solis-Espinoza's
biological
mother was Maria Luisa Cardoza, a Mexican citizen, who abandoned him.
Cruz-Dominguez accepted the infant as her own child, and the
couple raised him
to adulthood as part of their family. Indeed, Cruz-Dominguez is listed as
Solis-Espinoza’s mother on his
birth certificate, although petitioner
concedes that she is not his biological mother.
- The
court found that Ms Cruz-Dominguez, although not Mr Solis-Espinoza’s
biological mother, was his mother for purposes of
the applicable citizenship
provision, observing that “[the] result is logical. In every practical
sense, Cruz-Dominguez was
petitioner’s mother and he was her son. There
is no good reason to treat petitioner otherwise. Public policy supports
recognition
and maintenance of a family unit”: Solis-Espinoza at
1094.
Bringing the threads together
- There
is nothing in the legislative object, the legislative text, or the legislative
structure of the Citizenship Act that requires
the court to conclude that, in
the specific context of s 16(2), the word “parent” only can mean
biological parent. Indeed,
these considerations indicate that the better view
is that the word “parent” in s 16(2) has the meaning it bears in
ordinary
contemporary English usage. Indeed, legislative history confirms that
this approach is most in keeping with the development of citizenship
legislation
over time and with the spirit and intendment of the current Citizenship Act. No
sound reason has been advanced to warrant
a more limited reading of the word.
- The
word “parent” is an everyday word in the English language,
expressive both of status and relationship to another.
Today, as the
Citizenship Act itself recognizes, not all parents become parents in the same
way: see, e.g., s 8 of the Citizenship
Act; H v J [2006] FamCA 1398; (2006) 205 FLR 464 at
466, citing Re Patrick [2002] FamCA 193; (2002) 168 FLR 6 at [323], [325] (Guest J). This
is not to say that parents do not share common characteristics; everyday use of
the word indicates that they
do.
- Being
a parent within the ordinary meaning of the word may depend on various factors,
including social, legal and biological. Once,
in the case of an illegitimate
child, biological connection was not enough; today, biological connection in
specific instances may
not be enough: Citizenship Act, s 8 referring to
ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate
and Territory laws such as the
Status of Children Act 1974 (Vic). Perhaps in
the typical case, almost all the relevant considerations, whether biological,
legal, or social, will point
to the same persons as being the
“parents” of a person. Typically, parentage is not just a matter of
biology but of
intense commitment to another, expressed by acknowledging that
other person as one’s own and treating him or her as one’s
own.
- The
ordinary meaning of the word “parent” is, however, clearly a
question of fact, as is the question whether a particular
person qualifies as a
parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is
bound to determine whether
or not, at the time of the applicant’s birth,
he or she had a citizen parent. In deciding whether a person can be properly
described as the applicant’s parent, the Tribunal is obliged to consider
the evidence before it, including evidence as to the
supposed parent’s
conduct before and at the time of birth and evidence as to the conduct of any
other person who may be supposed
to have had some relevant knowledge. Evidence
as to conduct after the birth may be relevant as confirming that parentage at
the
time of birth. For example, evidence that a person acknowledged the
applicant as his own before and at the time of birth and, thereafter,
treated
the applicant as his own, may justify a finding that that person was a parent of
the applicant within the ordinary meaning
of the word “parent” at
the time of the birth. In the case of Ms McMullen, this was in substance
the conclusion
reached by the Tribunal with regard to Mr McMullen. The
Minister has not shown any relevant error in the Tribunal’s finding
that
Mr McMullen could qualify as Ms McMullen’s Australian citizen
parent for the purpose of s 16(2)(a) of the
Citizenship Act.
- We
can discern no relevant justification for holding, as the Tribunal did in
NWH’s case, that a person can only be a “parent”
within the
meaning of s 16(2) where it can be established that he or she has a relevant
genetic link to the applicant. If the Minister’s
argument in this case
were accepted, a person could be treated as a citizen from birth and believe
himself to be a citizen, only
to find years later, based on DNA test undertaken
for other reasons, that under the law he is not and never was a citizen: see
Citizenship
Act, ss 16(2)(a), 17(1A), 19A. As a practical matter, we do
not consider that Parliament would have intended the likely unfortunate
results
of the Minister’s construction (see [79]). The practical effect of this
construction would be to accord the science
of genetics a status that Parliament
has not given it.
DISPOSITION
- For
the reasons stated, the appeal in NSD 1320 of 2009 should be allowed, the
decision of the Tribunal of 28 October 2009 set
aside, and the matter be
remitted to the Tribunal, differently constituted, to be heard and determined
according to law. The Minister
should pay the applicant’s costs of and
incidental to the appeal.
- For
the reasons stated, the appeal in VID 705 of 2009 should be dismissed. The
Minister did not challenge the form of the directions
made by the Tribunal in
that case, although it would appear that further inquiry into Mr
Davidson’s citizen status at the time
of Ms McMullen’s birth may be
unnecessary. The Minister should pay the respondent’s costs of and
incidental to the appeal.
- As
always, the Court expresses its gratitude to pro bono counsel.
I certify that the preceding one hundred and
thirty-four (134) numbered paragraphs are a true copy of the Reasons for
Judgment herein
of the Honourable Justices Moore, Kenny & Tracey. |
Associate:
Dated: 15 September 2010
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