A judgment released late in 2002 in the
combined case of Ex parte Meng Kok
Te and Ex parte Dung Chi Dang(8)
revealed continuing disagreement on the 'aliens' issue between
members of the High Court.
In 1980 Te (aged 13) and Dang (aged 12) fled
with their families from Cambodia and Vietnam respectively. After a
period in transit camps in third countries, each was given a
permanent visa to enter Australia 'effectively as a refugee granted
asylum'.(9) Significantly, neither became an Australian
citizen. By the late 1990s both had spent periods in prison for
drug trafficking, as well as committing other offences, causing
Australian authorities to commence deportation proceedings under
the Migration Act.(10)
The decision in Te and Dang itself
was unanimous. The High Court decided 7-0 that despite having
resided in Australia for their entire adult lives, Te and Dang came
within the 'aliens' power under section 51 (19) of the Constitution
and could therefore validly be deported under the Migration
Act.
The legal status of British subjects was not
relevant to Te or Dang, both nationals of former French Indo-China
colonies. But the High Court used their case to debate whether its
2001 decision in Re Patterson; Ex parte
Taylor(11) a deportation matter involving a British
migrant who had lived in Australia since 1966 had changed the law
in relation to the aliens power in the Australian Constitution.
In Taylor, the High Court held that a
citizen of the United Kingdom who like Te and Dang came to
Australia as a child, did not become an Australian citizen and was
convicted of serious offences, could not be
deported.
In Te and Dang, the High Court agreed
that the word 'alien' was a constitutional not a legislative
concept, and that it was for the Court itself not Parliament to
define its meaning although Parliament could make laws prescribing
who would come within this term.(12) There was also
agreement on the basic dictionary meaning of 'alien', i.e. 'a
foreigner' or 'one born in or belonging to another country who has
not acquired citizenship by naturalisation and is not entitled to
the privileges of a citizen'.(13)
From that point, opinions diverged sharply
within the Court about the scope of the term 'aliens' in section 51
(19) of the Constitution.
Gleeson CJ, Gummow and Hayne JJ adhered to
their view in Taylor that the law on this matter remained
as stated by the High Court in Pochi (1982)(14)
and Nolan (1988).(15) In contrast, Gaudron and
Kirby JJ with some support from McHugh J argued that
Taylor had created new law on the 'aliens' issue. Callinan
J expressed no opinion on the effect of the Taylor
decision.
Gleeson CJ, Gummow and Hayne JJ maintained (in
Taylor and in Te and Dang) that the practical
operation of the term 'aliens' in section 51 (19) has evolved in
line with Australia's constitutional development to encompass all
non-citizens, including any British subject resident in this
country who has not been naturalised and who is not otherwise
entitled to the rights of Australian citizenship. This position is
consistent with their joint judgment in Sue v Hill
(1999),(16) where along with other members of the Court
they held that Britain was now a 'foreign power' for the purpose of
section 44 (i) of the Constitution.(17)
The three judges contend that while at the
time of Federation Britain was not a foreign power and British
subjects were not 'aliens' under Australian constitutional law,
this position did not survive Australia's emergence as an
independent sovereign nation. A common allegiance to the 'Imperial
Crown' in the early years of Federation, shared with the United
Kingdom and other dominions of the British Empire, prevented a
distinct international identity for Australia and its people. This
changed perhaps as early as the 1926 Imperial Conference, which
established 'equality of status from a constitutional as distinct
from a legal point of view between Great Britain and the
self-governing Dominions'.(18)
As Gummow and Hayne noted in Taylor,
legislation in both Australia and the United Kingdom after World
War II 'recognised that the metaphysical indivisibility of the
Imperial Crown no longer made constitutional or political
sense'(19) and that references in the Constitution to
Australian residents as 'subjects of the Queen' referred to 'the
Crown in its Australian politic capacity'.(20)
In Te and Dang, Gleeson CJ
reiterated(21) his support for the conclusion of the
Mason High Court in Nolan(22) that, as a result
of the emergence of Australia as an independent nation, the
acceptance of the divisibility of the Crown and the creation of a
distinct Australian citizenship in the Nationality and
Citizenship Act 1948 ('the Citizenship Act'):