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Foster, Michelle --- "Membership in the Australian Community: Singh v The Commonwealth and its Consequences for Australian Citizenship Law" [2006] FedLawRw 6; (2006) 34(1) Federal Law Review 161

[∗] BComm (Hons) LLB (UNSW), LLM SJD (Michigan), Senior Lecturer, University of Melbourne. I am grateful for the comments of Kim Rubenstein, Simon Evans, Graeme Hill and the anonymous reviewer for the Federal Law Review on an earlier draft of this paper.

[1] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355.

[2] See Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, Re Patterson; Ex parte Taylor (2001) 207 CLR 391, and Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2004) 203 ALR 143.

[3] As Fullagar J explained in Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 258: 'A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse'. This quote was cited by Gummow, Hayne and Heydon JJ in Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 402 [153], where their Honours stated that '[i]t is nonetheless important to emphasise the point made by Fullagar J … by reference to the metaphor that a stream cannot rise higher than its source'.

[4] See the Australian Constitution, s 51(xxi). In Singh, McHugh J noted the similarity between the aliens power and marriage power in this respect: Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 371 [49]. As Brennan J noted in Fisher v Fisher [1986] HCA 61; (1986) 161 CLR 438, 455: 'Although the nature and incidents of a legal institution would ordinarily be susceptible to change by legislation, constitutional interpretation of the marriage power would be an exercise in hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power. The measure of the legislative power cannot be determined by reference to the occasions of its purported exercise'. This passage is cited in Dan Meagher, 'The Times are they A-Changin'? — Can the Commonwealth Parliament Legislate for Same Sex Marriages?' (2003) 17 Australian Journal of Family Law 134, 152, in which the author discusses the difficulty in defining the marriage power.

[5] Australian Constitution, s 51(xviii): 'Copyrights, patents of inventions and designs, and trade marks'. For recent High Court authority on interpreting this provision, see Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479.

[6] Australian Constitution, s 51(xvii). See Storey v Lane [1981] HCA 47; (1981) 147 CLR 549 for discussion of Parliament's power to extend the ambit of bankruptcy legislation, especially at 558 (Gibbs CJ).

[7] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 417 [210]–[211]. Kirby J pointed to a 2003 amendment to the Citizenship Act 1955 (India) which would have affected Singh's Indian citizenship, however it was not clear whether the amendment had been passed at the relevant time.

[8] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 356 [2] (Gleeson CJ); 400 [142] (Gummow, Hayne and Heydon JJ); 433 [283] (Callinan J). I note that McHugh J did not appear to refer to this issue.

[9] Australian Citizenship Act 1948 (Cth), s 10(2).

[10] Rubenstein explains that s 10 of the Australian Citizenship Act 1948 (Cth) previously provided that 'people born in Australia between 26 January 1949 and 20 August 1986 were Australian citizens provided their father (later parent) was not a diplomat' or enemy alien: Kim Rubenstein, Australian Citizenship Law in Context (2002) 90.

[11] Australian Citizenship Council, Australian Citizenship for a New Century (2000) 40, cited in Rubenstein, ibid 93.

[12] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 370 [43] (McHugh J).

[13] Ibid 370 [44] (McHugh J).

[14] Compare the 14th Amendment to the United States Constitution which relevantly provides: '[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside': United States Constitution amend XIV, § 1.

[15] However, the Australian Citizenship Act 1948 (Cth) is said to be supported by various powers, including 'naturalization and aliens' and an 'implied nationhood power': see Rubenstein, Australian Citizenship, above n 10, 71–74. For the most recent judicial exposition of the basis of the Citizenship Act 1948 (Cth), see Hwang v Commonwealth; Fu v Commonwealth [2005] HCA 66; (2005) 222 ALR 83, 86 [9], 89 [18] (McHugh J).

[16] See the Australian Constitution, s 24. See also s 7 ('people of the State').

[17] Ibid s 117.

[18] Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 480 (Kirby J).

[19] See Australian Citizenship Act 1948 (Cth).

[20] Australian Constitution s 51(xxvii).

[21] Australian Constitution s 51(xxix).

[22] The common law position was said to have been restated and explained in Calvin's Case (1608) 7 Co Rep 1a; 77 ER 377 in which Coke CJ 'applied the common law rule that a person cannot be a natural born subject unless the place of his or her birth, at the time of his or her birth, was within the King's dominions': Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 378 [71] (McHugh J).

[23] See Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 419–20 [219]–[224] (Kirby J).

[24] Ibid 421 [227].

[25] Ibid 409 [178]–[179]. See also Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 43.

[26] See Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 41–2.

[27] See also ibid 57, where the Commonwealth criticized the plaintiff's submission which was said to depend upon the term 'alien', 'being frozen in 1900'.

[28] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 357 [4], citing Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, 173 [31].

[29] Ibid, citing Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 25.

[30] Ibid 357 [5].

[31] Ibid 357 [4], emphasis added, citing Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, 109.

[32] Ibid 366 [30].

[33] Ibid.

[34] Ibid.

[35] Ibid 367 [31].

[36] Their Honours did not set out their reasoning as a syllogism; however, their reasoning is encapsulated in summary form at ibid 400 [144] and 416 [205].

[37] Ibid 412 [190].

[38] Ibid 414 [200].

[39] In this respect it should be noted that the joint judgment appeared to call into question the utility of engaging tools such as connotation/denotation or concepts/conceptions. Their Honours stated that while such tools might be thought useful, '[t]here is at least a risk, however, that using such tools directs attention to their content and to their utility rather than to the analytical task they are being used to undertake': ibid 404 [161].

[40] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, 289 (Griffith CJ); see also 293 (Barton J) and 304–5 (O'Connor J).

[41] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 389–95 (McHugh J).

[42] For example Potter v Minahan (above n 40) involved the immigration power: ibid 415 [203].

[43] After setting out the plaintiff's arguments based on historical materials, Kirby J concluded that, '[f]or me, that word [aliens], like every other word in the Constitution, is not frozen in whatever meaning it may have had in 1901. Thus, for me, this case is primarily about the proper approach to constitutional construction': ibid 426 [243].

[44] Ibid 427 [249].

[45] Ibid 427 [251].

[46] Ibid.

[47] Ibid 428 [255].

[48] Ibid 431 [269].

[49] Ibid.

[50] Ibid 369 [40]. It should be noted that, unlike the joint judgment, McHugh J's reasoning is explicitly expressed as a polysyllogism.

[51] McHugh J acknowledged that this is a result of evolution, that is, when the Crown 'divided', 'the denotation of the term "subject of the Queen" changed' so as to refer to the Queen of Australia: ibid 375 [57].

[52] Ibid 369 [38].

[53] Ibid 379–80 [75].

[54] Ibid 387 [96].

[55] Ibid.

[56] Ibid 387 [99].

[57] Ibid 389 [105].

[58] Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, 109.

[59] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 393 [118].

[60] His Honour explained that: '[N]one of the naturalization power, the implied nationhood power or the external affairs power empowers the parliament to deprive a non-alien of her constitutional citizenship by an enactment such as s 10 [of the Citizenship Act]': ibid 399 [139].

[61] McHugh J stated that, 'birth within Australia makes a person a member of the Australian community who comes under an obligation to obey its laws and is correlatively entitled to all the rights and benefits which membership of the community involves': ibid 398 [135]. However, it is by no means clear that this would equate a constitutional citizen to a statutory citizen, since much legislation confers particular benefits on statutory citizens only. For a description of such legislation, see Rubenstein, Australian Citizenship, above n 10, Chapter Five.

[62] Ibid 436–37 [295].

[63] Ibid 440 [304], citing 'Report of the Royal Commissioners for Inquiring into the Laws of Naturalization and Allegiance (1869)' in Reports from Commissioners, 1868–69, vol 14, 607, 614–15.

[64] Ibid.

[65] Ibid 440 [304]–[305].

[66] Ibid 444 [317].

[67] Ibid.

[68] Ibid 426 [243] (Kirby J) and 436–437 [295]–[296] (Callinan J).

[69] It is not clear what were the exact arguments of the Commonwealth in this respect. In oral argument, Kirby J asked the Solicitor-General for the Commonwealth whether he persisted with his objection to the use of the Convention Debates, to which the Solicitor-General replied that objection was 'too strong a word' and that the submission was merely that the material did not assist the Court and is not 'within the range of material that the Court is assisted by in looking at the debates to construe the Constitution': Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 60. It seems likely that the objection was directed to the fact that, since the plaintiff sought to rely on the Convention Debates to establish that at least some delegates were against the insertion of a specific citizenship power because, 'the parliament could [then] legislate to deprive a person of his or her citizenship', (Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 388 [103] (McHugh J); Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 11–12), this effectively involved 'substituting for the meaning of the words used the scope and effect…which the founding fathers subjectively intended' — an inappropriate use of the Convention Debates: Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385.

[70] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 403 [159] (Gummow, Hayne, Heydon JJ). See also 363–6 (Gleeson CJ), 374–5 (McHugh J) and 435–7 (Callinan J).

[71] Ibid 36 [22] (Gleeson CJ), citing Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385. See also Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 374 [54] where McHugh J explained that the Debates may be relied upon to 'identify the mischief to which the words of the Constitution were directed, to identify the purpose of the relevant constitutional concept or to determine the specialized meaning of constitutional terms'. Similarly, the joint judgment emphasized that the task of construction cannot be undertaken 'without knowing what particular constitutional expressions meant, and how words were used, at the time of federation': ibid 403 [159]. See also ibid 436 [294] (Callinan J), citing Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385.

[72] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 426 [247].

[73] His Honour explained: '[T]he ambit of the power is not limited by the wishes, expectations or imagination of the framers. They did not intend, nor did they enjoy the power, to impose their wishes and understanding of the text upon later generations of Australians': ibid 426 [247]. Rather, the Court 'should construe this power [naturalization and aliens] with all the generality that the words used in the Constitution admit, as those words are understood today': ibid 427 [249].

[74] Ibid 403 [159].

[75] Ibid.

[76] Ibid. See also ibid 360 [12] where Gleeson CJ states that context includes, 'developments, over time, in the national and international context in which the instrument is to be applied'. Further, his Honour explained that: 'Changing times, and new problems, may require the court to explore the potential inherent in the meaning of the words, applying established techniques of legal interpretation': ibid 362 [18]. See also ibid 373 [53] (McHugh J).

[77] Ibid 436 [295].

[78] Ibid.

[79] Ibid.

[80] Ibid 437 [295] (emphasis added).

[81] Ibid 403 [159] (Gummow, Hayne and Heydon JJ).

[82] Ibid 373 [53] (McHugh J).

[83] In this respect the reasoning is similar to that adopted by the Court in Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 regarding unanimous jury verdicts in the context of s 80 of the Constitution. Indeed in Singh, Gleeson CJ reiterated the importance of the Cheatle approach of identifying an 'immutable' characteristic by reference to historical materials: Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 364–6 [24]–[27].

[84] I note that other writers have also observed that differences in approaches to constitutional interpretation do not necessarily lead to differences in result in particular cases: see Graeme Hill, '"Originalist" vs "Progressive" Interpretations of the Constitution — Does it Matter?' (2000) Public Law Review 159.

[85] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 405 [165]. During the medieval period, as McHugh J explains, 'all persons within the King's dominions owed a duty of allegiance to the King': ibid 376 [61]. This was because the common law 'recognized the sovereign as the supreme feudal lord of the people as well as the land': ibid 376 [63]. Thus, '[s]ubjects owed the King the same duties of fidelity and obedience as vassals owed to their lord, for the King was the sovereign lord': ibid. See also at 404–5 [164] (Gummow, Hayne and Heydon JJ), reciting essentially the same history; and at 421 [228] and 430 [262]–[264] (Kirby J).

[86] Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 11 February 2004) 4.

[87] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 405 [164] (emphasis added), citing Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, 196–9. Indeed, I note that in Ex parte Te, Gummow J stated that allegiance 'supplies no such discrimen [between subjects and aliens] in modern times': 212 CLR 162, 196 [121].

[88] It should be emphasized that Gummow J in Ex parte Te (and the joint judgment in Singh) was criticizing the concept of allegiance in the context of the argument that an alien should be defined as a person who does not owe allegiance to the Crown. However, relying on allegiance to a foreign power as the discrimen is equally open to the criticism that it relies on feudal notions of allegiance to a sovereign entity; rather than for example membership of or connection to Australia.

[89] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 404 [160] (Gummow, Hayne and Heydon JJ). Their Honours explained that: 'Numerous cases decided by this court reveal that constitutional expressions may have a different operation 50 or 100 years after federation from the operation they would have had in 1901', citing Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 and Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 as examples.

[90] Ibid 383 [83] (McHugh J). See also ibid 410 [181] where it is noted by Gummow, Hayne and Heydon JJ that despite acknowledgement of the problem in the 19th century, 'the wider problems of dual or multiple nationality remained unresolved.' It is also interesting to note that the problem of the 'foreign allegiance' criterion vis-à-vis dual nationality was acknowledged in oral argument. For example, Hayne J noted that if the focus is on 'whether allegiance is owed…to the foreign state', then 'we begin to get into difficulties, one when we introduce more modern concepts of dual nationality': Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 11 February 2004) 10. As his Honour noted, 'the duality of obligation is something that was not countenanced': ibid.

[91] While there were early (failed) attempts in international law to discourage or abolish multiple nationality, it now recognized to be 'a fact of international life': John R Dugard, International Law Commission, First Report on Diplomatic Protection, [121]–[122], UN Doc A/CN–4/506 (2000). For example, the attitude of European states in the 1960s was that multiple nationality should be discouraged, since cases of multiple nationality 'are liable to cause difficulties' and thus 'joint action to reduce as far as possible the number of cases of multiple nationality […] corresponds to the aims of the Council of Europe': Preamble to the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, ETS 43 (entered into force 28 March 1968). However, 30 years later, the 1997 European Convention on Nationality, ETS 166 (entered into force 3 January 2000) not only permits contracting states to provide for multiple nationality but also positively requires recognition in certain closely circumscribed cases.

[92] Aleinikoff and Klusmeyer for example note that 'there is no denying that its [multiple nationality] incidence is widespread and growing', citing recent studies which reveal the extent of the increase in the phenomenon of multiple nationality internationally: T Alexander Aleinikoff and Douglas Klusmeyer, 'Plural Nationality: Facing the Future in a Migratory World' in T Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (2001) 63.

[93] Australian Citizenship Council, Australian Citizenship for a New Century (2000) 60–61.

[94] Section 17 of the Act provided that an Australian citizen aged 18 or over who does 'any act or thing, the sole or dominant purpose of which and the effect of which is to acquire the nationality or Citizenship of a foreign country shall…cease to be an Australian citizen': ibid 60. Section 17 was repealed by the Australian Citizenship Legislation Amendment Act 2002 (Cth).

[95] This was the view of the Joint Standing Committee on Migration (Parliament of the Commonwealth of Australia, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994)), as cited in Rubenstein, Australian Citizenship, above n 10, 142. These criticisms also related to the fact that prior to the amendment, persons born with another citizenship but who acquired Australian citizenship could retain both nationalities; but once a person was an Australian citizen, he/she could not acquire another citizenship: see Rubenstein, Australian Citizenship, above n 10, 142.

[96] Australian Citizenship Council, above n 93, 61.

[97] As the Australian Citizenship Council stated: 'The law and practice of most countries with which Australia likes to compare itself permits citizens of those countries to obtain another citizenship without losing their original citizenship…These countries simply recognize that they have an internationally mobile population and that they can retain connection with this population even if another citizenship is acquired': ibid 65, cited by Rubenstein, Australian Citizenship, above n 10, 142.

[98] This was implicitly acknowledged by Kirby J in Singh v Commonwealth, although in the context of responding to the plaintiff's argument that 'alien' should be interpreted as a person who does not owe allegiance to the Queen of Australia. His Honour noted that: 'Constitutional notions of membership of the Australian community, and of who constitute the "people of the Commonwealth", have kept pace with these [international and national] changes. It is unrealistic, indeed highly artificial, to conceive of such membership today in feudal terms': Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355 at 430 [264].

[99] Gaudron J conceived the resolution of the scope of the aliens power to involve questions of 'membership of the community constituting the Australian body politic': Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, 189. In Taylor she reiterated that, 'an alien is "a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined"': Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 407. See also Kim Rubenstein, 'Meanings of Membership: Mary Gaudron's Contributions to Australian Citizenship', (2004) 15 Public Law Review 305, 306. Of course, Gaudron J's approach has never been accepted by a majority of the Court. I note that at one stage of the oral argument in Singh, the Commonwealth submitted that the power to pass laws with respect to 'aliens' means the power to pass laws about people who do not have 'the necessary relationship with the polity to be members of it': Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 11 February 2004) 11. It is also interesting that the concept of citizenship or nationality has been similarly conceived by the International Court of Justice: 'nationality is a legal bond having at its basis a social fact of attachment, a genuine connexion of existence, interests and sentiments, together with the existence of reciprocal rights and duties': Liechtenstein v Guatemala ('Nottebohm Case') [1955] ICJ 4, 23, as cited in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77, 107 (Mason CJ, Toohey and McHugh JJ).

[100] As the joint judgment explained in summarizing their Honours' argument: 'As a citizen of India the plaintiff has obligations, "owes allegiance", to a nation other than Australia. She is, therefore, a person within the class referred to in s 51(xix) as "aliens"': Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 400 [144].

[101] Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77, 107 (Mason CJ, Toohey and McHugh JJ); see also 113 (Brennan J), 131 (Dawson J).

[102] For example, in Sykes v Cleary, Mason CJ, Toohey and McHugh JJ state that, 'it would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance': ibid 107.

[103] Ibid.

[104] See Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 43: 'there is a limitation on that power where one trespasses on core concepts'.

[105] This presumably draws on the work of legal theorist H L A Hart who observed that, in legal interpretation, especially constitutional interpretation, '[t]here must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out': 'Positivism and the Separation of Law and Morals' (1958) 71(4) Harvard Law Review 593, 607. Interestingly, however, he did not use this dichotomy to explain the respective roles of court and legislature; rather to explore the relationship between law and morality: see at 608.

[106] Transcript of Proceedings, Singh v Commonwealth (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ, 10 February 2004) 44.

[107] Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, 109.

[108] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 431 [267].

[109] In particular, the joint judgment noted: 'It may be doubted whether metaphorical references to the "penumbra" of the meaning of a constitutional expression or, as it was put in oral argument, the "core" meaning of a constitutional expression, can be of great assistance in any task of constitutional interpretation': ibid 401–2 [152].

[110] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36; (2005) 218 ALR 483, 495 [35] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ) (emphasis added).

[111] Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 355–356 [13], 375–376 [67]–[68] (cf 421–422). See also ibid 509 [93] (Kirby J).

[112] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 412 [190] (emphasis added).

[113] Indeed, this authority was relied upon by Hayne J in a post-Singh decision dismissing an application for order nisi by a stateless person otherwise in a similar situation to Singh. His Honour acknowledged that the central characteristic of alienage was identified in Singh as 'owing obligations (allegiance) to a sovereign power other than the sovereign power in question'; but reasoned that the fact of that 'central characteristic' does not 'deny the proposition which otherwise underpinned the decision of at least a majority of the Court in Singh that the aliens power' extends to stateless persons: Transcript of Proceedings, Applicant A269/2003; Ex parte – Re Manager Baxter Immigration Detention Centre [2004] HCATrans 570 (High Court of Australia, Hayne J, 13 December 2004) 19. It should also be noted that Hayne J was not satisfied that the applicant in that case would, in any event, 'be regarded by Afghani authorities as stateless': at 18.

[114] Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 414 [200]. See also at 402 [154]: 'These reasons seek to demonstrate that a central characteristic of the status "alien" is, and always has been, owing obligations to a sovereign power other than the sovereign power in question' (Gummow, Hayne and Heydon JJ).

[115] Ibid 412 [190].

[116] Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124, 146 [80].

[117] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36; (2005) 218 ALR 483, 495 [35] (emphasis added).

[118] Koroitamana v Commonwealth of Australia [2005] FCAFC 61; (2005) 142 FCR 391, 392 [6].

[119] Ibid.

[120] Ibid (emphasis added).

[121] I note that in Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355, 430 [264] Kirby J made some reference to '[c]onstitutional notions of membership of the Australian community, and of who constitute the "people of the Commonwealth"'; however, as explained above, his Honour does not purport to define 'non-alien'/'alien' by reference to such notions since he did not in fact devise a core definition.

[122] See Koroitamana & Anor v Commonwealth [2005] HCATrans 782 (30 September 2005) (McHugh and Callinan JJ).

[123] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36; (2005) 218 ALR 483, 515 [116] (Kirby J).

[124] Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, 109.

[125] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36; (2005) 218 ALR 483, 489 [16] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ).

[126] Ibid 495 [34] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ). I note that in the reported version of this decision, the applicant's argument is framed as a limitation 'that prevents that power from being applied unilaterally (that is, without the consent of the individual manifested by renunciation or some similar act) to change a person's status from alien to non-alien': ibid, 495 [34]. However, this is a mistake, as the applicant's argument was clearly that he had attained the status of non-alien (by virtue of being accorded statutory citizenship at birth) which could not unilaterally be altered to alien.

[127] Ibid 509 [92] (Kirby J).

[128] Ibid 495 [34].

[129] Ibid.

[130] Ibid 495 [35].

[131] Ibid 496 [36].

[132] Re Patterson; Ex parte Taylor (2001) 207 CLR 391, 411. See also Gaudron J's views in Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, 193, where her Honour stated: 'As the transformation from non-alien to alien requires some relevant change in the relationship between the individual and the community, it is not, in my view, open to the Parliament to effect that transformation by simply redefining the criterion for admission to membership of the community constituting the body politic of Australia'. See also Rubenstein, 'Meanings of Membership' above n 99, 307. It may be that the particular facts in Ame can be reconciled with Gaudron J's views if her Honour can be assumed to have used 'community' interchangeably with 'polity', since it could be argued that Papua New Guinea’s independence constituted a change in the relationship between the individual and the polity in that case. However, the broad language used by the Court in Ame appears to go beyond the facts in that case to reject entirely the notion that citizenship 'describe[s] a bilateral relationship which is a status, alteration of which requires an act on the part of the person whose status is in issue': [2005] HCA 36; 218 ALR 483, 495 [36].

[133] The joint judgment does not refer at all to the American authority.

[134] Afroyim v Rusk, [1967] USSC 132; 387 US 253, 268 (1967). See also Vance v Terrazas [1980] USSC 40; 444 US 252 (1984). This authority had been relied upon by the applicant in Ame, as providing appropriate analogous principles notwithstanding the different constitutional context of the US: Transcript of Proceedings, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCATrans 66 (High Court of Australia, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 3 March 2005) 52–53.

[135] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36; (2005) 218 ALR 483, 510–11 [96].

[136] Ibid 511–13 [101]–[106].

[137] Ibid 516 [117] (emphasis added).

[138] Ibid 516 [118].

[139] Ibid.

[140] Ibid 516–7 [120].

[141] See Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 203 ALR 143, 145 (Gleeson CJ, Gummow and Hayne JJ): 'The "ordinary understanding" of the term "alien", correctly, is not said to be at large.'

[142] See Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, 111. This was affirmed in Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, 171 [24] (Gleeson CJ), 179 [56] (Gaudron J), 188 [90] (McHugh J), 195 [119] (Gummow J), 219–20 [210] (Hayne J). However, I note that Kirby J accepted that there might be 'extreme' cases in which 'non-citizens, who were long-term residents although never naturalized (often for legitimate reasons) might exceptionally be regarded as outside the aliens power': 217–8 [200]. In addition, Callinan J did not hold that an alien can never become a non-alien by absorption –only that in this case no such absorption had occurred: 228 [227].

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