Research Paper no. 3 200304
We are Australian–The Constitution and Deportation of Australian-born
Children
Peter Prince
Law and Bills Digest Group
24 November 2003
Contents
Possible Sources of Authority
1898 Constitutional Convention
Background: The High Court and the 'Army of Illegals'
Human Rights and the 1986 Amendment
Reaction to the 1986 Amendment
The Convention Debates and Constitutional Interpretation
Section 51(19): Naturalization
Nationhood Power
Section 51(27): Immigration and Emigration
Section 51(19): Aliens
Relevance of Ancient Common Law
'The Stream Cannot Rise Above its Source'
Local Allegiance of the Parents
East Timorese children
Children of other temporary visa holders
Children of 'unlawful non-citizens'
Alternatives
Membership of the Australian Community
Absorption and Alien Status
Difficulty with Alternatives
United States
United Kingdom
Canadian and New Zealand
Citizenship Acts
Canadian 'Aliens' Cases
Renouncing allegiance
Changing the Constitution
Minister's Directions and National Status of the Child
Avoiding Privative Clauses
Conclusion
Aren't all children born in Australia,
'Australian'? Not necessarily.
This used to be the case. Until 1986 every child born
in this country automatically became an Australian citizen at birthno
matter who the parents were. Only children of foreign diplomats and
'enemy aliens' did not become Australian citizens.
The High Court is shortly to hear the case of Plaintiff
S441/2003, in
which a five year old girl born in Sydney will challenge 1986 laws that
restricted the automatic right to citzenship at birth. The girl's parents
fled anti-Sikh persecution in India in 1997. She 'speaks with an Australian
accent and thinks Brett Lee is the best cricketer in the world'.(1)
But if her parents are denied refugee status they will be deported.
And as a 'non-citizen', their daughterdespite her birth in Australiawill
also have to leave.
Plaintiff S441/2003 involves fundamental
issues about Australian identity that the High Court has never had to
confront before. Most important is whether there is an Australian 'nationality'
protected by the Constitutionseparate from 'citizenship' under the Australian Citizenship
Act 1948which confers rights and freedoms
that Parliament cannot touch.
The Citizenship Act was amended in 1986 to remove automatic
citizenship at birth from children of 'illegal' immigrants and temporary
visa holders, including visitors and refugees. Now such children only
become citizens if they are 'ordinarily
resident' in Australia
for the first ten years of their lives.(2)
The High
Court has been asked to declare the 1986 amendment unconstitutional.
The outcome is not straightforward.
At the time of the 1986 amendment, there was anxiety
in the media about the number of illegal immigrants in Australia.(3)
There was also concern about 'contemptible queue jumping' by parents
who used the citizenship status of their Australian-born infants to
gain permanent residency and avoid deportation.
(4)
In Kioa (1985), the High Court noted that 'the
mere fact that prohibited immigrants have a child born to them in Australia'
did not entitle them to permanent residence.(5) It also rejected
the idea that the citizenship of Australian-born children gave them
a right to a separate hearing before their parents could be deported.
But 'the possibility that such an argument might one day be successful
was enough to encourage precautionary legislative change'.(6)
Also in 1985 the (then) Human Rights Commission condemned
the practice of expelling 'prohibited non-citizens' who had Australian-born and therefore, under the
law then in force, Australian
citizen children. This amounted to the 'de facto deportation' of
such children who were denied the 'human right' available to other Australian
citizens of growing up in the country of their birth.
The Commission said these concerns could be dealt with
by removing citizenship from such children.(7)
The Australian President of the International Commission
of Jurists and former leader of the New South Wales Liberal Opposition,
John Dowd,
disagreed:
If you're born in a country, it's surely a natural human
right that you be allowed to remain here They ought to realise that
you can't talk about human rights at the same time as you take them
away from children.(8)
Despite this, the Federal Government accepted the approach
of the Human Rights Commission in the 1986 amendment.(9)
In Plaintiff S441/2003 the High Court
will have to decide:
Whether the 1986 amendment to the Citizenship Act was authorised by
the Australian Constitution, and
Even if the 1986 change was valid, whether 'non-citizen' children born
in this country have Australian 'nationality', meaning they cannot be
forcibly detained and deported under the Migration Act.
The Australian Constitution authorises the Federal
Parliament to make laws with respect to various matters. Commonwealth
laws are only valid if they relate to one of these matters.
The Constitution gives the Federal Parliament power
to make laws about 'immigration and emigration'.(10) But
Australian-born children are unlikely to be 'immigrants' in the ordinary
meaning of that word. They have not 'migrated' to Australia,
having 'arrived' from within
this country rather than entering from
outside. So it is doubtful that the 'immigration and emigration'
power can authorise laws about children born in this country.
Parliament can make laws about 'naturalization',(11)
or the process of becoming a citizen. However, denying citizenship to
Australian-born children goes beyond the process of naturalization,
or even 'de-naturalization'.
The High Court has held that there is a 'nationhood
power' implied in the Constitution allowing the Commonwealth to legislate
for matters which are 'inherently national'.(12) It is unclear
whether this would authorise the 1986 amendment. On one view it is not
an inherent function of a national government to deny citizenship to
those born within its territory who would otherwise qualify as members
of the national community. On the other hand, it would be plausible
for the High Court to decide that an ability to withhold citizenship
from locally-born children of foreign nationals is a necessary part
of a general 'nationhood' power.
The central question in Plaintiff
S441/2003, however, is likely to be whether Australian-born children
of illegal immigrants and temporary visa holders can be 'aliens' in
the sense used in section 51(19) of the Constitution. If children born
in this country cannot be 'aliens' there will be no specific provision
in the Constitution on which the 1986 law can be based. The validity
of the 1986 change to the Citizenship Act would then depend on the untested
and uncertain scope of the 'implied nationhood' power. Moreover, if
such children are not 'aliens' (or 'immigrants'), the Commonwealth will
have no authority to forcibly remove them from Australia
under the Migration Act.
The record of the 1898 Constitutional Convention reveals
that the drafters of the Australian Constitution deliberately omitted
any authority for Federal Parliament to deny the 'birthright' of State
residents to membership of the new Commonwealth. A proposal to include
a general power over 'citizenship' in the Constitutionproviding a valid
basis for Parliament to grant or deny this status to whomsoever it pleasedwas
specifically rejected. Federal Parliament was only to have the power
to prevent immigrants or 'aliens' 'from
the outside world' becoming Australian nationals.(13)
There was no mention of any such issue in the debate
over the 1986 amendment to the Citizenship Act.
In Cole v Whitfield (1988), the High Court said
that records of the Convention debates could be used in interpreting
the Constitution. But the 'subjective intention' of the 'founding fathers'
could not replace the 'ordinary and natural' meaning of constitutional
terms such as 'aliens'.
The difficulty in the case of Plaintiff S441/2003 is that the 'ordinary and natural'
meaning of the word 'aliens' in the Constitution is far from clear.
The word 'alien' is not defined either in the Constitution
or in legislation. Under a former definition in the Citizenship Act,
it used to mean anyone who was 'not a British subject, an Irish citizen
or a protected person'. But this definition became out of date for an
independent Australian nation and was removed in 1987without being
replaced.
Plaintiff S441/2003 gives the High Court its first opportunity to consider
whether 'non-citizen' children born in Australia are 'aliens'
in the sense used in the Constitution. Until recently the accepted description
of an 'alien' under Australian law was that of Chief
Justice Gibbs in Pochi
(1982):
Parliament can treat as an alien any person who was
born outside Australia,
whose parents were not Australians, and who has not been naturalized
as an Australian. (emphasis added).(14)
In Taylor
(2001) and Te and Dang (2002),
three members of the current High Court (Chief Justice
Gleeson and Justices Gummow and Hayne)
said that Chief Justice Gibbs'
statement in Pochi remains good law for Australia.(15)
However, Chief Justice Gibbs'
description of who Parliament can treat as an 'alien' plainly did not
cover and left uncertain the status of non-citizens born
within Australia.
In Te and Dang
(2002), Justice McHugh
argued that Chief Justice Gibbs'
statement in Pochi (1982) meant that 'an alien is any
person who is a non-citizen'.(16) Similarly, in Lim (1992), Justices Brennan, Deane and Dawson
suggested that 'the word "alien" in s. 51(19) of the Constitution
had become synonymous with "non-citizen"'.(17)
But in Australian constitutional law 'the stream cannot
rise above its source', (18)i.e.
the Commonwealth Parliament cannot control the limits of its own power.
Its 'source' of power is the Constitution. 'Alien' cannot simply mean
'non-citizen' because this would allow Parliament through citizenship
legislation to determine the scope and extent of the 'aliens' power
in s. 51(19) of the Constitution. As Justice Gaudron
said in Lim (1992), 'Citizenship
is a concept which is entirely statutory (therefore) it cannot control
the meaning of "alien" in s. 51(19) of the Constitution.'(19)
It was not until the recent decisions in Taylor and Te and Dang that a majority of the High
Court tackled the false 'citizen/alien' dichotomy head on. In Taylor
(2001) four judges on the High Court (Justices Gaudron, McHugh, Kirby
and Callinan) found that a citizen of the United
Kingdom who migrated to this country
in the 1960s shared allegiance with Australians to a common monarch.
Despite never having become a citizen, Mr
Taylor was a subject of the Queen
of Australia and could not be an 'alien' for the purpose of this country's
deportation laws. Instead he belonged to a new class of Australian resident,
the 'non-alien non-citizen' (or 'non-removable non-citizen').(20)
Central to the High Court's interpretation of the 'aliens'
power in the Constitution is the distinction between 'aliens' on the
one hand, and 'natural-born' or naturalized 'subjects' on the other.
The authors of the Australian Constitution deliberately gave Federal
Parliament a lesser power over 'naturalization and aliens' instead of
a broader authority over 'citizenship'because, as South Australian
delegate to the 1898 Convention Charles Kingston said, 'it is impossible
to contemplate the exclusion of natural-born subjects' from membership
of the new Federation.(21)
In Pochi
(1982), Chief Justice Gibbs referred
to the long-standing common law rule that:
Natural-born subjects are such as are born within
the dominions of the crown of England;
that is, within the ligeance, or as it is generally called, the allegiance
of the king; and aliens, such as are born out of it.(22)
As Justice Kirby
said in Te and Dang (2002),
a key issue arising from Taylor (2001) is:
Who constitute the class of persons who are not citizens,
but are 'natural-born subjects' of the Crown in Australia,
like Mr Taylor,
who are not 'aliens' within the decision in that case?(23)
Based on ancient common law principles, provided a
child is born on Australian territory at a time when its parents are
within Australia's
jurisdiction, it will be a 'natural-born subject' of Australia.
In Calvin's Case (1608),(24)
Lord Coke said that
for a child to be a 'natural-born subject' at common law rule required:
1. That the parents be under the actual obedience of
the King. 2. That the place of his birth be within the King's dominion.(25)
Any person in Australia
on some form of temporary visa isas the conferral of the visa itself
indicateswithin Australia's
jurisdiction, i.e. under the 'actual obedience' of the Commonwealth.
Any child of such a person born on Australian territory will therefore
be a 'natural born subject' of Australia.
The same applies in the case of people in Australia
without a visa. Such people are within Australia's
jurisdiction and owe 'temporary or local allegiance' to the sovereign
authority of Australia,
whether or not they acknowledge this. This applies not only to unlawful
non-citizens in detention but to any person living illegally in this
country. The only exception in practice will be diplomatic and other
visa holders with immunity from Australian law.(26) In all
other cases, the parents will be under Australian jurisdiction while
in this country. Any children born here will therefore be 'natural-born
subjects' and outside the common law and constitutional meaning of 'alien'.
Other ways of defining 'non-aliens' for the purpose
of Australian constitutional law could be considered besides referring
to ancient common law. However it is doubtful whether it is open to
the High Court to abandon the common law distinction between 'aliens'
and 'natural-born subjects'. As the Court has itself emphasised, while
the practical application of constitutional terms such as 'aliens' can
vary from time to time, the 'abstract meaning' or 'fixed
connotation'(27) of such words must remain the same.
If this were otherwise, there would be little point having a Constitution
whose terms are protected against alteration by Parliament and which
can only be changed through a referendum of the people.
The 1898 Constitutional Convention and recent High
Court cases suggest that a distinction with 'natural-born' or 'Australian-born'
subjects is part of the 'fixed connotation' of the word 'alien' in its
constitutional context.
In Mabo v Queensland (No 2) (1992) Justice Brennan
emphasised the difficulty of moving away from common law concepts:
Although this Court is free to depart from English
precedent which was earlier followed as stating the common law of this
country, it cannot do so where the departure would fracture
what I have called the skeleton of principle.(28) (emphasis
added).
Ignoring the distinction with 'natural-born' subjects
would 'fracture the skeleton of principle' inherent in the meaning of
the word 'aliens' in section 51(19) of the Australian Constitution.
As in Australia,
United States
constitutional law on the issue of citizenship and nationality incorporates
and protects the English common law on 'alienage'. The Fourteenth Amendment
to the United States Constitutionintroduced after the US Civil Warguarantees
citizenship to anyone 'born in the United
States, and subject
to the jurisdiction thereof'. As the US Supreme Court explained,
this wording ensures that US
constitutional law on citizenship corresponds with common law notions
of 'aliens' and 'natural-born subjects'.(29) Only those beyond
US jurisdiction,
i.e. 'children born of alien enemies in hostile occupation, and children
of diplomatic representatives of a foreign State,'(30) are
denied automatic citizenship on birth in the United
States.
A 1997 proposal put to the United States Congress to
limit citizenship by birth to children of citizens or permanent residentsalmost
identical to Australia's
1986 amendmentlapsed because of its inconsistency with the common law
concepts enshrined in the US Constitution.(31)
Unlike the United States Constitution, the Australian
Constitution contains no guarantee of citizenship for those born in
this country. But by including a power over 'aliens' the Australian
Constitutionas in the United Statesspecifically
incorporates and protects common law concepts inherent in this term.
In the United Kingdom,
in contrast to the United States
and Australia,
there is no Constitution protecting key principles from amendment by
legislation. This has allowed the British Parliament to override the
common law right of any 'natural-born subject' of the United
Kingdom to British nationality. The
British Nationality Act 1981 is similar
to, and indeed appears to have been the model for, the 1986 amendments
to Australia's Citizenship Act, conferring citizenship on children born
in the United Kingdom only if one of their parents is a citizen or permanent
resident, or if they live in the United Kingdom for the first ten years
of their lives.(32)
Under Canada's
Constitution the national parliament of that country possesses the same
power to make laws concerning 'naturalization and aliens'(33)
as conferred on the Australian Parliament in section 51(19) of our Constitution.
It is relevant to Australia
that cases on this power in the early 1900s held that persons born within
Canada
to foreign parents were 'natural-born subjects' of the Crown and not
'aliens' under Canadian constitutional law.
If locally-born children such as the applicant in Plaintiff
S441/2003 are not 'aliens', there will be some important
consequences. Most significantly the purpose of the 1986 amendment to
the Citizenship Act will largely be negated. It may be that the amendment
itself is held to be invalid, returning citizenship to children born
in Australia
since that date to temporary visa holders and other non-permanent residents.
But even if the High Court decides that removal of citizenship from
'non-alien' children was constitutionally valid, they will remain 'non-aliens'.
Except in the very limited cases acknowledged by the common law, it
appears to be beyond the power of Parliament and the Commonwealth to
treat locally-born children as 'aliens' without an alteration to the
Constitution.
If Australian-born children of 'illegal' arrivals or
temporary visa holders are neither 'aliens' nor 'immigrants' in the
sense used in the Constitution, they cannot validly be subject to the
forcible detention and removal provisions in the Migration Act.(34)
The 'voluntary' detention and deportation of the children (at the request
of their parents) seems constitutionally valid. But if parents facing
deportation do not want their Australian-born children in immigration
detention, or if they are willing and able to leave them behind in this
country, the Commonwealth will be unable under the Migration Act to
detain or deport the children.
Forcible detention by the Commonwealth of children
who are not 'aliens' or 'immigrants' would also contravene the 'separation
of powers' doctrine. A power of imprisonment is conferred exclusively
on Australian courts under Chapter III of the Constitution. So any detention
not authorised by deportation provisions applying to 'aliens' and 'immigrants'
can occur only as a result of a court order. Such detention could not
validly occur because of an administrative order from an immigration
official or the Minister.
'Non-alien' status would also assist the parents of
Australian-born children. As Justice Gaudron
observed in Teoh (1995):
it is arguable that citizenship carries with it a
common law right on the part of children and their parents to have a
childs best interests taken into account, at least as a primary consideration,
in all discretionary decisions by governments and government agencies
which directly affect that childs individual welfare (35)
Current High Court authority accepts that in terms
of the common law, 'natural-born subjects' are, like citizens, members
of the Australian body politic.(36) It follows that if locally-born
children of non-permanent residents are 'natural-born subjects', they
share the common law (as against statutory) rights of citizens. This
includes the right to have their best interests taken into account as
a primary consideration in any administrative decision (i.e. by immigration
officials, tribunal or the Minister) concerning the fate of the families
to which they belong.
The Australian Government's official instructions on
deportation of parents reflect Justice Gaudron's
view that the best interests of Australian citizen children must be
considered. The various instructions direct immigration officials to
take into account the Australian citizen status of children when considering
the deportation of non-citizen parents.(37) If the High Court
decides that locally-born children are 'Australian-born
subjects' (or Australian 'nationals'), this should be reflected in the
official instructions regarding deportation of parents. Alongside citizenship
and permanent residency, immigration officials should be directed to
have regard to a child's constitutional nationality in deciding the
fate of parents. This should also be the case with the Minister's discretionary
power to intervene in deportation cases.(38)
Many decisions
under the Migration Act are deemed to be 'privative clause' decisions
which are 'final and conclusive' and cannot be challenged in any court.(39)
However 'privative clauses' banning further appeals are ineffective
where a tribunal or similar body has committed a 'jurisdictional error'(40)
or has exceeded 'constitutional limits'.(41) So the Migration
Act could not be used to prevent parents appealing to the Federal or
High Courts if the constitutional status of a child had been ignored
by a decision-maker.
Having a third national status to consider alongside
citizenship and permanent residency might be regarded as unwieldy.
If the High Court decides in Plaintiff S441/2003
that children born locally to non-permanent residents are citizens or,
if not citizens, 'natural-born subjects' and therefore Australian 'nationals',
there seems little point retaining the current legislation. Such a decision
by the High Court would mean that there is a form of Australian nationality
derived from the common law on 'alienage' and protected by the Constitution
that cannot be removed without approval by the people in a referendum.
The failure to discuss constitutional issues in 1986 might provide Parliament
with a reason to reconsider this issue.
A decision on whether Parliament should re-consider
the legal status of children born in Australia
would be assisted by accurate information on the 'migration consequences'
of a child's citizen status. As Justice Brennan and John Dowd pointed
out at the time of the 1986 amendment, having a child born in Australia
never entitled the parents to permanent residency or enabled them (without
more) to avoid deportation. Information on the number of people directly
affected would also assist any re-consideration. After the 1986 amendment
came into force, the Human Rights Commission, despite having recommended
such a change, queried whether it was really necessary to take citizenship
away from Australian-born children:
it is of the view that the risk can be over-stated. It
considers the suggestion that 'the floodgates' might be opened is without
foundation Allowing all of these persons to stay would hardly constitute
a trickle, let alone a flood.(42)
Australian Citizenship
Act 1948 (as amended)
|
Born in Australia
with at least one parent who is a citizen or permanent
resident |
Citizen |
|
Born in Australia
without a parent who is a citizen or permanent resident |
Non-citizen
(unless live in Australia till age ten) |
|
Adopted by Australian citizen
under law in force in State or Territory
when in Australia as permanent resident |
Citizen |
|
Born overseas
with a parent who is a citizen(43)
if register child before turns 18 |
Citizen |
|
Receive citizenship by grant (naturalisation)
if
permanent resident
over 18(44) |
Citizen |
|
Australian 'citizen' |
See Table 1. |
|
Australian 'national' |
Includes any 'citizen' and (arguably)
any 'non-alien non-citizen'. |
| Australian 'subject' |
A person who resides under the rule, control
and jurisdiction of the Australian government.
Involves 'allegiance' to the Queen of Australia (or
'the Crown in right of Australia').
Includes all 'citizens' and 'nationals'. |
|
Allegiance |
Obligation of faithfulness,
loyalty, and obedience to a state and its government. |
|
Alien |
A person with no relationship with the
state. |
The High Court has been asked to decide whether children
born in Australia
have a constitutional right to remain in this country. Not all such
children are Australian citizens. Children of temporary visa holders,
refugees and others without permanent residency do not receive citizenship
at birth and can be forcibly deported from Australia.
In September 2003 Justice
Kirby referred the case of Plaintiff S441/2003involving a five-year-old girl born in Australia
to asylum seeker parentsto the full High Court. Justice
Kirby explained that the central issue
is:
whether there
is a constitutional status of nationality quite apart from the statutory
status of citizenship and whether implied in that constitutional notion
of nationality being a subject of the Queen of Australia are certain
irreducible minimum protections.(45)
In late 2002 a group of East Timorese families who
had lived in Australia
for up to a decade were told they were to be deported.(46)
The group included over 200 children born in Australia
since the families arrived in the early to mid-1990s.(47)
Deportation orders were applied to the children without considering
their status under Australian constitutional law.
East Timor's new President
Xanana Gusmao
queried why, unlike East Timor, birth in Australia
conferred no legal right to remain in this country:
We have this law as a new nation If an Indonesian that
was born in East Timor wanted to come back into
the country, I cannot deny him access. It's a basic human right.(48)
Legislative changes in 1986 removed the automatic right
of anyone born in Australia
to live here. Amendments to the Australian Citizenship Act 1948
(the Citizenship Act) meant citizenship
was henceforth conferred only on children born in Australia
to citizens or permanent residents.
The amendment to the Citizenship Act in 1986 was specifically
targeted at people without permanent residency seeking a foothold in
Australia
through the birth of a child in this country. It had two main aims:
to prevent infant children 'sponsoring' their parents for permanent
residency and to stop parents using the fact that their citizen children
could not be expelled to prevent their own deportation.
The Minister for Immigration and Ethnic Affairs in
the then Labor Government, the Hon. Chris
Hurford MP, explained that:
Australia
is one of the few remaining countries which confers citizenship automatically
upon a child born here, unless one of its parents was at the time of
its birth a diplomat or a consular representative of a foreign country
or an enemy alien. This generosity in our law can be exploited by visitors
and illegal immigrants who have children born here in order to seek
to achieve residence in Australia.(49)
Under the amended
Citizenship Act, children born in Australia to someone who is not a
citizen or permanent resident are not regarded as citizens at
birth and only become Australian nationals if 'ordinarily resident'
in this country for the first ten years of their lives.(50)
As 'non-citizens' such children can be forcibly detained and deported
under the Migration Act 1958.(51)
The 1986 amendment was preceded by anxiety about the
cost to the community of the 'growing army of illegal immigrants' in
Australia.(52)
Prominent newspaper reports in 1985 referred to estimates of 50-60 000
'prohibited non-citizens' in this country.(53)
In the same context the media highlighted a High Court
case involving two-year old Australian-born Elvina
Kioa whose Tongan parents had overstayed
their temporary entry permits and faced deportation. The Sydney Morning Herald said that a 'crucial element [was] 'the weight
that should be given to their daughter, who was born here and is an
Australian citizen'.(54) The Kioas' lawyers argued that as
a citizen Elvina had a right to be heard on the matter of her parents'
deportation and to have her own interests taken into account.(55)
The High Court in Kioa
did not confer any additional rights on Australian-born children. Elvina's
status as a citizen did not entitle her to a special hearing beyond
the representations made on behalf of her parents.(56) The
child's citizenship was 'a relevant consideration militating against
the making of deportation orders'(57) but, as (then) Justice
Brennan pointed out, 'it is not suggested that the mere fact that
prohibited immigrants have a child born to them in Australia entitles
them to permanent residence in Australia'.(58)
Nevertheless, while the High Court rejected the idea
that the citizenship of Australian-born children entitled them to a
separate hearing before their parents could be deported, 'the
possibility that such an argument might one day be successful was enough
to encourage precautionary legislative change'.(59)
Strong criticism of the Federal Government's deportation
policies by the Human Rights Commission also contributed to the 1986
amendment.
In a series of reports in 1985,(60) the
Commission condemned the practice of expelling prohibited non-citizens
who had Australian-born and therefore, under the law then in force,
Australian citizen children. This amounted
to the 'de facto deportation' of such children 'who were forced in one
way or another' to go with their parents.(61)
The Commission said this contravened both the International
Covenant on Civil and Political Rights ('ICCPR') and the United Nations
Declaration of the Rights of the Child. The 'effective deportation of
the family' deprived Australian-born children 'of one of the principal
rights associated with [their] Australian nationality, namely, the right
to be brought up in the country of [their] birth'.(62)
The Commission said that only 'in extreme circumstances'
should an established family be 'broken by deportation of one of its
members, especially where there is an Australian born citizen member
child in the family.'(63) The Commission noted, however,
that 'nothing in the ICCPR or the Declaration of the Rights of the Child
requires the children of prohibited non-citizens to become Australian
citizens merely because they are born in Australia'.
To avoid treating Australian-born children 'as if, in effect, they were
not citizens, with the result that their human rights are denied', the
Commission said that 'it may be fairer to change the rule that birth
in Australia
automatically results in Australian citizenship for the children of
prohibited non-citizens.'(64)
The Federal Government adopted the Commission's recommendation
when introducing the 1986 amendment.(65) But the Government's
legislation went further, not only catching children of 'prohibited
non-citizens' but any child without a citizen or permanent resident
for a parent, whether or not the parents were legally in Australia at
the time of their child's birth.(66)
The 1986 amendment was enthusiastically endorsed by
the non-Government parties. According to the Opposition Spokesman for
Immigration and Ethnic Affairs, Liberal Alan
Cadman:
The Bill seeks to remove automatic citizenship for children
born in Australia of visitors, temporary entrants and prohibited non-citizens,
thus closing the loophole which has allowed infants to sponsor their
own parents There are instances of pregnant women coming from overseas,
having their child in Australia and of that child then sponsoring the
parent as a permanent resident [P]arents who were illegal immigrants
would resist deportation on the grounds that the child who had automatically
gained Australian citizenship, needed the parents' constant attention.(67)
Democrats leader, Senator Don Chipp,
also supported the change:
The conferring of citizenship by birth under the present
Australian Citizenship Act has been mercilessly exploited by illegal
immigrants and visitors who have deliberately had a child in Australia
so that those children may become permanent residents and the parents
can therefore become automatic citizens of this country.(68)
This loophole in our lawand this is what it isallows contemptible
queue jumping to the detriment of not only those who are waiting all
over the world to be processed for entry into Australia but also the
hundreds of thousands of people living in Australia who are desperately
seeking to bring their loved ones to this country.(69)
The Australian President of the International Commission
of Jurists and former leader of the New South Wales Liberal Opposition,
John Dowd,
was more critical. He queried whether the change was necessary from
a legal perspective, noting that 'having a child born here is not a
basis for staying here as a matter of law'. Instead it was merely an
argument that parents facing deportation could put to immigration officials.(70)
As for the suggestion that human rights concerns could
be ameliorated by changing a child's legal status, he said:
If you're born in a country, it's surely a natural human
right that you be allowed to remain here. The fact that your parents
may have immigration problems ought not to make the child the victim
of the dispute between the parents and the government they ought to
realise that you can't talk about human rights at the same time as you
take them away from children.(71)
Senator Chipp's hope that with the 1986 amendment 'the
string of claims from parents that they cannot be deported because their
children were born here and therefore they cannot be deported will
cease'(72) did not take into account the children's constitutional
position.
The Migration
Act 1958 'provides for the removal or deportation from Australia
of non-citizens whose presence in Australia
is not permitted by this Act'.(73) On the face of it, therefore,
a child who is born in Australia
but is not a citizen or permanent resident can be detained and deported
under the Migration Act.
However the Migration Actlike the Citizenship Act
and other Commonwealth legislationmust be linked to a source of power
in the Australian Constitution. The
Migration Act relies on the 'aliens' and 'immigration' powers in the
Constitution.(74) It follows that the Act cannot validly
apply to a person who is not an 'alien' or an 'immigrant'. In other
words, a person needs to be both a 'non-citizen' and either an 'alien' or an 'immigrant'
in a constitutional sense before they can be validly subject to the
detention and deportation provisions in the Migration Act.(75)
The debate in Parliament about the 1986 amendment to
the Citizenship Act made no reference to any such constitutional issue.
The Parliament appeared to assume that deeming certain Australian-born
children to be 'non-citizens' in itself enabled them to be deported,
and that this was sufficient to remove a key basis for appeals by the
children's parents against deportation.
Parliament's failure to discuss constitutional issues
when removing citizenship from some Australian-born children is all
the more surprising because the authors of the Australian Constitution
specifically intended that the Federal Government should not have the
power to pass any such law.
At the 1898 Constitutional Convention, Dr
John Quick
(responsible with Robert
Garran for the authoritative Annotated Constitution of the Australian Commonwealth)(76)
proposed that:
We ought either to place in the forefront of this Constitution
an express definition of citizenship of the Commonwealth, or empower
the Federal Parliament to determine how federal citizenship shall be
acquired, what shall be its qualifications, its rights, and its privileges,
and how the status may hereafter be lost (77)
Other delegates to the 1898 Convention were concerned,
however, that the new Federal Government could use a power over 'citizenship'
to deprive 'British subjects' from other parts of the Empire or residents
of particular Australian States of this status.
South Australian delegate Josiah
Symon was adamant that Federal Parliament
should not be given such a power, stating that this issue 'goes to the
very foundation of the Constitution which we are framing.' As he explained:
At the very root of the proposed Union is the invitation
to the citizens of the states to join the Federation, and to obtain,
as their reward, citizenship of the Commonwealth what this Convention
is asked to do is to hand over to the Federal Parliament the power
of taking away from us that citizenship in the Commonwealth which we
acquire by joining the Union.(78)
Symon said that if the Federal Government was given
such a power, 'then I should feel that it was a very serious blot on
the Constitution, and a very strong reason why it should not be accepted.'(79)
Richard
O'Connor from New
South Wales said the proposed powers over 'immigration
and emigration' and 'naturalization and aliens' provided more than sufficient
control over membership of the new Australian federation:
you have power to prevent any person from entering any
part of the Commonwealth, [so] you have also the power to prevent any
person from becoming a member of the Commonwealth community It appears
to me quite clear, as regards the right of any person from the outside
to become a member of the Commonwealth, that the power to regulate immigration
and emigration, and the power to deal with aliens, give the right to
define who shall be citizens, as coming from the outside world...(80)
Similarly, Edmund
Barton said that in giving the Federal
Parliament power over 'naturalization and aliens', 'we give them power
to make persons subjects of the British Empire.
Have we not done enough? We allow them to naturalize aliens.'(81)
Dr Quick's
proposal was defeated. No power to make laws in relation to 'citizenship'
was included in the Constitution approved by the Australian people in
a series of referendums over 1898 and 1899. Indeed the Constitution
contains no reference at all to the concept of Australian citizenship.(82)
The outcome of the 1898 Convention debate on 'citizenship'
is of more than historical interest.
In Cole v Whitfield (1988), the High Court declared
that the Convention debates could assist in constitutional interpretation:
Reference to the [Convention debates] may be made, not
for the purpose of substituting for the meaning of the words used [in
the Constitution] the scope and effectif such could be establishedwhich
the founding fathers subjectively intended the section to have, but
for the purpose of identifying the contemporary meaning of language
used, the subject to which that language was directed and the nature
and objectives of the movement towards federation from which the compact
of the Constitution finally emerged.(83)
As the statements of Symon and O'Connor
at the 1898 Convention indicate, a not unimportant element in the movement
of the Australian states towards federation was a guarantee of citizenship
in the new Commonwealth. The new federal government was not to have
the power to deprive State residents of such status. Under the immigration
and 'naturalization and aliens' powers, Federal Parliament could regulate
the rights of aliens 'coming from the outside world'including whether
such people could be 'members of the Commonwealth community' or citizens/subjects
of the new state. But the Commonwealth Parliament was denied a broader
power in relation to 'citizenship' generally. As Symon said:
the Commonwealth shall have no right to withdraw, qualify,
or restrict those rights of citizenship, except with regard to one particular
set of people who are subject to disabilities, as aliens, and so on.
Subject to that limitation, we ought not, under this Constitution, to
hand over our birth right as citizens to anybody, Federal Parliament
or any one else ...(84)
The possible sources of constitutional authority for
the 1986 legislation which deprived certain Australian-born children
of citizenship need to be considered in this context.
In relation to membership of the new Federation, the
Commonwealth was left with an express power in the Constitution over
'naturalization'.
Consistent with the principle in Cole v Whitfield, the Convention debates indicate
the subject matter to which the naturalization power was directed.
The debate at the 1898 Convention shows that the contemporary
meaning of 'naturalization' was the same as it is now, i.e. the 'process
of becoming a citizen'. The Citizenship Act is clearly valid to the
extent that it deals with this process. Moreover, as Justice
Gaudron pointed out in Nolan
(1988), 'the power to legislate with respect to naturalization seems
necessarily to carry with it a power to revoke the grant of naturalization'.(85)
So the Citizenship Act can provide validly for 'de-naturalization',
i.e. the removal of citizenship from naturalized Australians.(86)
However, denying citizenship to Australian-born children
seems to go beyond 'naturalization' or 'de-naturalization'. It appears
to involve exactly the kind of 'taking away' of citizenship from those
otherwise entitled by birth to this status that the framers of the Constitution
wished to avoid in restricting Parliament to the 'naturalization' power.
It seems unlikely therefore that the 1986 amendment
to the Citizenship Act could be validly based on the 'naturalization'
power in section 51(19) of the Australian Constitution.
The authors of the two leading texts on Australian
citizenship law, Michael Pryles and Kim Rubenstein, both refer to an
'implied nationhood power'(87) in the Constitution that may
give the Commonwealth authority to go beyond naturalization to determine
other aspects of citizenship, including who has Australian nationality.
As Pryles said:
it may be that the Commonwealth Parliament possesses
an inherent power to create an Australian national status (Australian
citizenship) and to determine who may hold that status Australia has
emerged from a federal colony to a sovereign nation State at international
law. It is arguable that there exists as an inherent attribute of that
position which Australia
now enjoys a power to create and define a national status for its citizens.(88)
Rubenstein notes that while it is 'not clear from judicial
authority' that the Commonwealth can use such a power to make laws about
nationality and citizenship, the High Court has endorsed the ability
of the Commonwealth to legislate for other matters which are 'inherently
national'.(89)
It would seem to be inherent in the powers of a national
government to decree that people born within the nation are formally
to be considered 'citizens'. It would also seem inherent in the functions
of a national government to decree that foreign nationals are not 'citizens'
and can only become citizens through a certain process. But it is doubtful
whether the inherent functions of a national government in relation
to citizenship are unlimited. It could be queried, for example, whether
the Australian Government inherently has the power to exclude persons
born within its territory
and who would otherwise qualify as members of the national community
from formal membership of the nation.
Using its power under the Constitution to make laws
in relation to 'immigration and emigration',(90) the Commonwealth
can validly prevent people who are still 'immigrants' (i.e. who have
arrived in Australia
but have not fully settled in or been absorbed into the Australian community)
from becoming citizens.
Can Australian-born children be 'immigrants' in the
sense used in the Constitution?
The High Court has said that words in the Constitution
are to be given their 'ordinary and natural' meaning.(91)
The 'ordinary and natural' meaning of 'immigration' is the process of
'entering a country for temporary or permanent purposes'.(92)
Therefore only people who have 'entered' Australia
can be 'immigrants' in a constitutional sense.
The Migration Act states that a child who was a non-citizen
when born in this country 'shall be taken to have entered Australia
when he or she was born'.(93) This appears to bring non-citizen
children born in this country within the constitutional definition of
'immigrants'. However, using the Migration Act to legislate that a person
has 'entered' Australia
through childbirth is a legal fiction inconsistent with the 'ordinary
and natural' meaning of the word. 'Entering' connotes coming from outside, whereas a child born in Australia
has 'arrived' from within
the country. So such a child cannot have 'entered' Australia
and cannot be an 'immigrant' in the normal sense of that word.
Consistent with Cole v Whitfield,
it is also relevant that the framers of the Constitution saw the subject
to which the 'immigration' power was directed as those 'coming from
the outside world' and that people born in Australia
would necessarily be beyond this power.
It is unlikely therefore that the 1986 amendment could
be validly based on the 'immigration and emigration' power in the Constitution.
The Constitution also gives the Commonwealth a specific
power to legislate in relation to 'aliens'.(94)
Those who carried the day at the 1898 Constitutional
Convention plainly intended that Federal Parliament should only have
the power to prevent 'aliens from
the outside world' becoming Australian nationals. But the rule in
Cole v Whitfield states that the 'subjective
intention' of the 'founding fathers' cannot be substituted for the 'ordinary
and natural' meaning of words in the Constitution such as 'aliens'.
In the case of the 'naturalization' and 'immigration'
powers, this is not an issue. The ordinary meaning of those terms is
clear. Reference to the Convention debates merely confirms the subjects
to which they were directed, in turn indicating the boundaries within
which those powers operate.
However the meaning of 'aliens' in Australian constitutional
law is far from plain. In recent cases the High Court has been unable
to agree on who comes within this term.(95) If the ordinary
meaning of 'aliens' can include Australian-born children, the 1986 amendment
will be constitutionally valid, notwithstanding the clear intention
of the authors of the Constitution that Parliament should have no authority
to pass such legislation. If,
on the other hand, children born in this country are not 'aliens' there
will be no specific provision in the Constitution on which the 1986
law can be based. The validity of the 1986 change to the Citizenship
Act would then depend on the untested and uncertain scope of the 'implied
nationhood power'.
Whether Australian-born children can be classed as
'aliens' within the meaning of that term in the Constitution is therefore
a critical factor both for the constitutional validity of action under
the Migration Act affecting such children and for the legality of the
1986 amendment itself. The next section looks more closely at this issue.
The term 'alien' in section 51(19) of the Constitution
is not defined either in the Constitution itself or in legislation.
A definition of 'alien' was originally included in the Citizenship Act
when it commenced in 1948, but was removed in 1987.(96)
The case of Plaintiff S441/2003 gives the High Court its first opportunity
to directly consider whether 'non-citizen' children born in Australia
are 'aliens' in the sense used in the Constitution. The various 'aliens'
cases the Court has decided to date have all involved people born overseas
arguing that they were nevertheless not 'aliens' under Australian constitutional
law.
Inherent in the High Court's understanding of the 'aliens'
power in the Australian Constitution is the ancient distinction between
'aliens' and 'natural-born subjects'. In Pochi
(1982), Chief Justice Gibbs referred
to the long-standing common law rule that:
Natural-born subjects are such as are born within
the dominions of the crown of England;
that is, within the ligeance, or as it is generally called, the allegiance
of the king; and aliens, such as are born out of it.(97)
In Te and Dang
(2002) Justice Gummow
cited as 'significant' the statement by Lord
Jowitt LC
in Joyce (1946) that 'the
natural-born subject owes allegiance from his birth, the naturalized
subject from his naturalization, the alien from the day when he comes
within the realm.' (98)
Justice Callinan explained
in Te and Dang that it was not citizenship but allegiance to the sovereignas
owed by a 'natural-born' or 'naturalized' subjectthat was the key to
membership of the Australian nation:
Although citizenship is a sufficient condition for
membership of the Australian body politic, it is not a necessary condition.
Judged from a constitutionalrather than a statutoryperspective, the
fundamental criterion of membership is allegiance to the Queen of Australia.(99)
Justice McHugh
in Taylor
(2001) stated a direct link between allegiance as a subject of the Queen
of Australia and non-alien status:
Once it is accepted that a person is the subject
of the Queen for the purpose of the Constitution, that person cannot
be an alien for the purpose of the Constitution. It is not a matter
of Australian citizenshipa term that the Constitution does not usebut
of the distinction that the Constitution draws between a subject of
the Queen and one who is not, that is to say, an alien.(100)
Using the language of the current High Court, if non-citizen
children born in this country are 'natural-born' (or 'Australian-born')
subjects of the Queen of Australia they cannot be 'aliens' in the sense
used in the Constitution. At first glance the use of ancient common
law concepts such as 'allegiance to the sovereign' and 'natural-born
subjects' to decide whether someone is an 'alien' or a member of the
national community seems out of place in 21st century Australia.
Yet as the above quotes show these concepts have been at the core of
recent High Court cases on the 'aliens' question. Perhaps this is only
because cases such as Taylor
centred on the legal status of long-standing British migrants who settled
in Australia
before a certain date.(101) But having endorsed such concepts
in recent casesincluding in Te
and Dang to conclude that two non-British
applicants were 'aliens' under Australian lawit seems difficult for
the High Court to deny their relevance in considering the constitutional
status of Australian-born children. As Justice Kirby
said in Te and Dang, a key
issue arising out of Taylor is:
Who constitute the class of persons who are not citizens,
but are 'natural-born subjects' of the Crown in Australia,
like Mr Taylor,
who are not 'aliens' within the decision in that case?(102)
It might be argued that the proper distinction is not
between 'aliens' and 'subjects of the Queen' (whether 'natural-born'
or 'naturalized') but between 'aliens' and 'citizens'.
In Te and Dang,
Justice McHugh argued
that the High Court in Pochi (1982) and Nolan (1988) 'held that
an alien is any person who is a non-citizen'.(103) And in
Lim (1992), Justices Brennan, Deane
and Dawson suggested that 'the word "alien"
in s. 51(19) of the Constitution had become synonymous with "non-citizen".'(104)
What the High Court said in Nolan,
however, was that the practical meaning of the word 'alien' had altered
with the emergence of Australia as an independent nation:
so that, while its abstract meaning remained constant,
it encompassed persons who were not citizens of this country even though
they might be British subjects or subjects of the Queen by reasons of
their citizenship of some other nation.(105)
Recognition that 'aliens' in modern Australia
could include British subjects who had not become citizens was not the
same, however, as saying that the term automatically applied to anyone
who was not a citizen.
Similarly, what the High Court actually said in Pochi (per Chief Justice
Gibbs) was that:
Parliament can treat as an alien any person who was
born outside Australia,
whose parents were not Australians, and who has not been naturalized
as an Australian.(106) (emphasis added).
This principle was endorsed by the High Court in Nolan, which noted:
That definition should be expanded to include a person
who has ceased to be a citizen by an act or process of denaturalization
and restricted to exclude a person who, while born abroad, is a citizen
by reason of parentage.(107)
In Taylor
(2001) and Te and Dang (2002),
three members of the current High Court (Chief Justice
Gleeson and Justices Gummow and Hayne)
said that Chief Justice Gibbs'
statement in Pochi remained good law for Australia.(108)
Chief Justice Gibbs'
statement about who Parliament can treat as an alienas modified by
the Nolan courtencompasses
most non-citizens. But this is far from establishing that in Australian
law the words 'alien' and 'non-citizen' are synonymous.
The Pochi/Nolan principle
plainly does not cover and leaves uncertain the status of non-citizens
born within Australia.
Moreover, as Justice Gaudron
said in Lim (1992), 'Citizenship
is a concept which is entirely statutory (therefore) it cannot control
the meaning of "alien" in s. 51(19) of the Constitution.'(109)
As Zines notes:
The power of the Commonwealth to confer authority on
members of the executive or administration is restricted by the Constitution
in two major respectsfirst, by the principle of the separation of powers,
and, secondly, by the doctrine that no law can give power to any person
(other than a court) to determine conclusively any issue upon which
the constitutional validity of the law depends. The second doctrine
is sometimes metaphorically summed up in the maxim 'the stream cannot
rise above its source' (110)
Blackshield and Williams specifically
link this doctrine to the scope of the 'aliens' power in the Constitution.
They explain that:
the Commonwealth Parliament cannot control the limits
of its own power. Its 'source' | 
