Executive Summary
Deportation and the Migration Act
Te, Dang and Taylor
Aliens and British Subjects
'Non-alien' British Residents
New 'Aliens' Law?
My Grandmother is an Alien
The Empire Strikes Back
Can the Deportation Occur?
Absorption, Crime and Deportation
Absorption and 'Alien' Status
'Belonging to Another Place'
Conclusion: Aliens, Citizens and Membership of the Australian Community
Endnotes

Executive Summary

The High Court is divided about the status of many thousands of British nationals living in Australia who have not formally become citizens of this country.

At stake is the right of such people to freely remain in Australia. The Federal Government is currently attempting to deport a British migrant who has lived here since 1977. The issue is whether settlers from the United Kingdom (and perhaps other Commonwealth countries) who arrived in Australia by the 1970s or 1980s have constitutional protection against deportation, or whether like other foreign residents they are 'aliens' in a constitutional sense and can be expelled if, for example, convicted of serious crimes.

In June 2003 the High Court will again address this issue, with the newest addition to the bench, Justice Heydon, likely to have the casting vote.

In Taylor (2001)⁽¹⁾ and Te and Dang (2002),⁽²⁾ three judges maintained 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. Other judges argued that British subjects who settled in Australia by the 1970s or 1980s shared allegiance with Australians to a common monarch, and so could not be 'aliens' under Australian law. Instead they were part of a new category of 'non-alien non-citizens' outside the scope of the detention and deportation provisions in the Migration Act 1958 (Cwlth).

The aliens issue is central to membership of the Australian community. As recent cases show, the privileges accorded to various groups of citizens and non-citizens under Australian law vary, not necessarily in a logical or consistent way. In Taylor and Te and Dang a majority of the High Court gave greater rights to non-citizen British residents (even those convicted of serious crimes) than those enjoyed by some Australian citizens or some people born in this country

Deportation and the Migration Act

According to recent media reports the Federal Government intends to deport a 42 year old British migrant a resident of Perth since 1977 because of her conviction and imprisonment on drugs charges.⁽³⁾ This action will only be valid if she is an 'immigrant' or an 'alien' under the Australian Constitution. Someone outside these categories cannot legally be deported under the Migration Act 1958 (Cwlth).

The deportation provisions of the Migration Act rely on the Commonwealth's power to make laws with respect to 'naturalisation and aliens'⁽⁴⁾ and 'immigration and emigration'.⁽⁵⁾ People who have 'become absorbed into the Australian community' such as long-term residents have passed beyond the stage of being 'immigrants', and can be deported only if they remain 'aliens' under Australian constitutional law.⁽⁶⁾

The fate of the British migrant facing deportation could depend, therefore, on whether she is constitutionally an 'alien' under Australian law.

As Justice Kirby said in a recent judgment, the status of long-term British residents under the Australian Constitution has national significance:

Te, Dang and Taylor

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.

Aliens and British Subjects

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'):

In other words, while the concept of 'alienage' was once inconsistent with a person's status as a British subject, the constitutional position had changed over time. As Gleeson CJ, Gummow and Hayne JJ said in Sue v Hill:

Perhaps more significantly, as Gummow and Hayne JJ observed in Taylor, this means that 'persons may acquire the status or character of alienage by reason of supervening constitutional and political events not involving any positive act or assent on the part of the person concerned.'⁽²⁵⁾

So for three of the current members of the High Court an 'alien' for constitutional purposes is now simply a 'non-citizen', i.e. 'any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian'.⁽²⁶⁾ All overseas settlers whether from Britain or elsewhere, and regardless of the length of time spent in this country are 'aliens' for the purpose of this country's deportation laws, unless they have formally become Australian citizens or are entitled to citizenship because they have Australian parents.⁽²⁷⁾

'Non-alien' British Residents

In contrast to their three colleagues, Gaudron, McHugh, Kirby and Callinan JJ held in Taylor that a British person long-term resident in Australia was a subject of the Queen of Australia and therefore not an 'alien' for the purpose of this country's deportation laws.⁽²⁸⁾

Their reasons for reaching such a conclusion differed.

Gaudron J noted that when the Citizenship Act commenced in 1948, an 'alien' was defined as 'a person who [was] not a British subject, an Irish citizen or a protected person'. It was not until 1987 that an amendment removing this definition came into effect. So Mr Taylor was not an alien under this legislation when he arrived with his British migrant parents in 1966.⁽²⁹⁾ Gaudron J agreed that the definition in the Act could not control the meaning of 'alien' in section 51 (19) of the Constitution, but 'it could, until its repeal in 1987, serve to identify those whom the Parliament had legislated to recognise as members of the Australian community'. The effect was to 'naturalise' Mr Taylor 'and all other British citizens in the same position'. In other words, 'Mr Taylor was not, for constitutional purposes, an alien at any time prior to 1987'.⁽³⁰⁾ Moreover, while Parliament could legislate under the naturalisation and aliens power to deprive British subjects who arrived before 1987 such as Mr Taylor of their membership of the Australian community, it had not done so. Therefore Mr Taylor remained a non-alien under the Australian Constitution.⁽³¹⁾

Kirby J also regarded the changes to the Citizenship Act that came into effect in 1987 as critical, arguing that 'non-citizen British subjects' who settled in Australia before then were 'absorbed into the community and are members of the people, and electors, of the Commonwealth'.⁽³²⁾ Like Gaudron J, he said that while 'the privileged position' of British settlers was terminated from 1987 onwards, 'such termination did not operate retrospectively on the class of persons who arrived before that time'.⁽³³⁾

In contrast, McHugh J thought that the passing of the Royal Style and Titles Act 1973 was the critical event. For McHugh J, the distinguishing feature of an 'alien' was that he or she did not owe allegiance to the monarch of the country. In the Royal Style and Titles Act 1973 the Parliament had asserted that 'the Crown was no longer "one and indivisible throughout the Empire"'.⁽³⁴⁾ Until this time, Australian citizens and British settlers arriving in this country owed allegiance to the same sovereign. Furthermore:

Callinan J, in a short judgment, agreed with the reasoning of both McHugh J and Kirby J.⁽³⁶⁾

None of these judges perceived any inconsistency between their judgments and the High Court's decision in Sue v Hill that Britain was a 'foreign power' under the Constitution. According to McHugh J:

New 'Aliens' Law?

Gleeson CJ, Gummow, and Hayne JJ argued in Te and Dang that the divergent reasoning of the other four judges in Taylor meant that case had not established a precedent for a third category of Australian resident, namely a 'non-alien non-citizen'.⁽³⁸⁾

But other judges in Te and Dang were adamant that Taylor had created a new category of 'non-alien' resident in which long-term settlers from Britain were clearly included. Kirby J stated bluntly that:

Gaudron J expressed a similar opinion, noting that Taylor:

But as McHugh J said, 'the reasoning of none of the majority Justices had the support of four of the seven Justices'.⁽⁴¹⁾ Moreover, as Blackshield and Williams note, 'consideration of this issue [whether Taylor was an 'alien'] was not strictly necessary, since Taylor had succeeded' on other grounds in arguing that he could not legally be deported.⁽⁴²⁾

On this basis, contrary to the view expressed by Kirby and Gaudron JJ in Te and Dang, the judgments in Taylor do not alter the law regarding practical operation of the term 'aliens' in section 51(19) of the Constitution. However, if the constitutional status of long-term British settlers had been the central issue in Taylor, it seems likely that the clear cut 'citizen/alien' distinction set down in Pochi and Nolan would have been overturned. Four members of the High Court said specifically in Taylor or in Te and Dang that the decision in Nolan was flawed, should be disregarded or should be overruled.⁽⁴³⁾ As Gleeson CJ said in Te and Dang, 'that is the current, inconclusive, state of authority'.⁽⁴⁴⁾

My Grandmother is an Alien

The fate of the British migrant who has lived in Perth for the last 26 years will depend on the High Court's decision in several similar matters due to be heard in mid-2003.⁽⁴⁵⁾

These cases provide an opportunity to resolve the status of the many long-term British migrants in this country who for one reason or another have never formally become Australian citizens. It might be unsettling for such people, particularly the elderly, to discover they are 'aliens' under Australian law and the potential consequences of this legal status. In Te and Dang, Kirby J referred to the (theoretical) 'spectre of a ninety year old non-citizen, proposed for expulsion as an 'alien', although she had lived peacefully in Australia virtually all her life'.⁽⁴⁶⁾

The retirement of Gaudron J leaves the rest of the High Court evenly divided on the general issue of whether the Pochi/Nolan 'citizen vs alien' distinction remains the law, or whether a new category of 'non-alien, non-citizen' British migrant should now be formally recognised for the purpose of Australia's Constitution. It appears that the latest addition to the bench, Heydon J, may have the casting vote when this issue is again argued before the court.

The Empire Strikes Back

If the High Court decides in the forthcoming cases that British subjects who arrived before a certain date have special recognition under Australia's constitutional law,⁽⁴⁷⁾ two subsidiary issues should also be resolved.

The first issue is the particular cut-off date (1973 or 1987) for distinguishing 'non-alien' British migrants from 'alien' settlers. Two cases directly raise this issue.⁽⁴⁸⁾

The second issue is the class of people who could claim 'non-alien' status as a 'British subject'. In Te and Dang, Gaudron and McHugh JJ affirmed their view in Taylor that non-citizens 'born in the United Kingdom' who settled in Australia before the relevant date would qualify as 'non-aliens'.⁽⁴⁹⁾ But Kirby J also included anyone 'born in the dominions of the Crown other than Australia',⁽⁵⁰⁾ i.e. potentially the whole of the former British Empire. As his Honour observed in Taylor, at Federation:

Kirby J's argument has logic. If allegiance to the indivisible Imperial Crown determined 'alien' versus 'non-alien' status in the days of the British Empire, then until a certain point in the twentieth century nobody born in a British colony or dominion was an 'alien' from the Australian constitutional perspective. Moreover, based on the judgments of Gaudron, McHugh, Kirby and Callinan JJ in Taylor and Te and Dang, provided such people settled in Australia before either this country or their place of birth became constitutionally separated from the British Crown, they would remain 'non-aliens' under Australian law.

As Gleeson CJ said in Te and Dang:

So it appears the sun may not have entirely set on the British Empire in Australian constitutional law. This might be welcomed by those suffering from Imperial nostalgia, but could seriously complicate Australia's deportation laws. Apart from a constitutional exemption for long term UK migrants, settlers from any former British colony who arrived in Australia before a certain date might be able to escape deportation under the Migration Act. The relevant date would vary depending on when the potential deportee's country of origin became an independent sovereign nation or established allegiance to the Crown in its own right. Immigration officials and the courts would face the unwieldy and impractical task of analysing the constitutional history of every former British dominion to determine exactly who could validly be deported from this country.⁽⁵³⁾

One solution would be for the High Court to reach a clear-cut decision on the exact scope of the 'aliens' power in section 51 (19) of the Constitution. An alternative, as Gaudron J suggested in Taylor,⁽⁵⁴⁾ would be for Parliament to legislate retrospectively to clarify the legal status of long-term migrants from the United Kingdom and other parts of the former British Empire. Whether the latter option would be politically feasible, however, is another matter.

Can the Deportation Occur?

It is unclear, therefore, whether Australia's immigration officials have the power under section 51 (19) of the Constitution to deport the British migrant who has lived here since 1977. Had this person become an Australian citizen at some stage she would not now face the prospect of being deported. Nevertheless, Taylor and Te and Dang give her some hope of overturning the deportation order on the basis that she is a 'non-alien non-citizen' British subject.

However, a strict application of the different judgments in Taylor and Te and Dang does not bode well for a challenge to the deportation order.

Counsel for the Commonwealth could point to the contention of Gleeson CJ, Gummow and Hayne JJ in Taylor and Te and Dang that an 'alien' under Australian constitutional law is simply a 'non-citizen'. Opposing counsel could note the rejection of this general proposition by the other four judges in these cases. But this may not be enough to prevent deportation. While Gaudron and Kirby JJ declared in Taylor and in Te and Dang that 1987 (with the commencement of the Citizenship Act amendments) was the critical date after which British subjects settling in Australia would be within the class of 'constitutional aliens', McHugh J treated 1973 (and the passing of the Royal Style and Titles Act) as the proper demarcation point.

Since Callinan J agreed with both Kirby J and McHugh J, it is unclear which date he regarded as critical. However, if this particular British migrant arrived in Australia only in 1977, then – under a majority of the judgments in both Taylor and Te and Dang (i.e. those of Gleeson CJ, Gummow, Hayne and McHugh JJ) – she would be classed as an alien for the purpose of section 51 (19) of the Constitution, allowing her to be deported under the Migration Act.

Absorption, Crime and Deportation

In the event that the British migrant currently facing deportation is held to be a 'non-alien', this might not be the end of her worries. If a court found that despite her many years as an Australian resident she had not been 'absorbed' into the community and legally remained an 'immigrant', the Commonwealth could validly use its section 51 (27) 'immigration' power to deport her under the Migration Act.⁽⁵⁵⁾ Te and Dang suggests this is a possible outcome.

As Gummow J explained in Te and Dang:

Callinan J agreed, noting that:

In Taylor, notwithstanding Mr Taylor's conviction for serious child sex offences,⁽⁶⁰⁾ Callinan J held that 'the prosecutor has been absorbed into the community. He is beyond the reach of the immigration power conferred upon the Parliament by the Constitution'.⁽⁶¹⁾ Callinan J explained that in contrast to Te and Dang, Taylor had been in Australia 'a considerable time (15 years), sufficient for his absorption into the community, before the commission of the offences for which he was convicted'.⁽⁶²⁾ Kirby J noted more broadly that relevant factors in Mr Taylor's 'absorption' into the Australian community were:

While Kirby J said that the High Court 'has no power to review the merits of the Minister's decision'⁽⁶⁴⁾ (to deport Te and Dang), the comments above demonstrate that an assessment of 'absorption' necessarily involves examination of the merits of individual cases.

The case of the British migrant currently threatened with deportation falls somewhere between Taylor and Te and Dang. Like Te and Dang, she has been convicted on drugs and related charges. She has resided in Australia slightly longer than Te or Dang, but not nearly as long as Taylor. She has 'familial' connections with Australia (two children born here),⁽⁶⁵⁾ but so did Te and Dang (in the latter's case, a wife and baby son, as well as a large extended family).⁽⁶⁶⁾ It is unclear from media reports how long she had been in Australia before her initial conviction.

It is not self-evident why (as Callinan J said) criminal activities are 'incompatible with absorption into the community'. It is true, as Kirby J said, that such activities are a 'public renunciation of the norms of the community', but within every community there will be those who implicitly renounce the accepted values of a peaceful and ordered society by committing crimes. Society punishes them, but they are not outside the community or 'unabsorbed' simply because they commit such actions.

If crimes are relevant to the issue of absorption, to what extent is it sensible to distinguish between different offences and when they were committed? The applicant in Taylor 'pleaded guilty to serious offences involving sexual assaults upon children, for which he was sentenced to a minimum of three and a half years imprisonment',⁽⁶⁷⁾ yet the Commonwealth and the Court⁽⁶⁸⁾ accepted that 'Mr Taylor was completely absorbed into the Australian community'.⁽⁶⁹⁾ In contrast, the serious offences committed by the applicants in Te and Dang (in Dang's case involving a prison term of one year and eight months, substantially less than Taylor's sentence)⁽⁷⁰⁾ meant according to Kirby and Callinan JJ automatic exclusion from membership of the Australian community.

If the reason for this divergent treatment is not the different type of crime but the longer period Taylor spent in Australia before committing an offence, this seems inconsistent with the judges' argument that serious crime by its very nature amounts to a 'public renunciation' of community values and is 'incompatible' with membership of the Australian community.

Based on the above, there may be a role for Parliament in defining the relevance of criminal activities for the purpose of 'absorption' and deportation under the Migration Act.

Absorption and 'Alien' Status

In Taylor and Te and Dang, Kirby and Callinan JJ disagreed with the rest of the Court about whether absorption not only moved a person beyond 'immigrant' status but could also transform them into a 'non-alien'. The majority stated that alien status could only be lost through the formal process of becoming an Australian citizen and that absorption made no difference. 'Resident aliens may be absorbed into the community, but they are still aliens', said Gleeson CJ.⁽⁷¹⁾ Gaudron J explained that:

Kirby J warned against any such absolute rule, acknowledging the possibility of 'extreme' cases such as:

Callinan J seriously doubted whether absorption 'can put persons beyond the reach of the aliens power', but shared 'some of the concerns expressed by Kirby J with respect to very long term residents of Australia'.⁽⁷⁴⁾

Kirby J seemed to have a deeper fear, noting the argument that Australia could in theory reinstate discriminatory laws restricting who could become a citizen.⁽⁷⁵⁾ Such laws would then allow the arbitrary deportation of long-term Australian residents. As Kirby J said, 'similar laws have been given effect in other countries. The possibility is not therefore wholly theoretical'.⁽⁷⁶⁾

So Kirby and Callinan JJ left open the possibility that apart from existing citizens and British subjects who arrived before 1987, there may be others who could become 'non-aliens' through 'absorption' into the Australian community over a long period of time. In Te and Dang, however, Kirby J noted that if in exceptional circumstances losing alien status by absorption was possible, 'the facts of the applicants' cases fall so far short of such instances that it is unnecessary to canvass them further'.⁽⁷⁷⁾

'Belonging to Another Place'

While Kirby and Callinan JJ recognised that an 'alien' might become a 'non-alien' other than by formal naturalisation as an Australian citizen, they did not look beyond the concept of 'absorption' for how this might work in practice.

In Te and Dang, Kirby J (along with McHugh J) also observed that 'the term "alien" connotes "belonging to another person or place".'⁽⁷⁸⁾ However, there was no application of this to the practical circumstances of Te or Dang. Having escaped as refugees from the turmoil of Cambodia and Vietnam in 1980 at the age of 12 or 13, arguably neither could be regarded in 2002 as 'belonging' to their countries of birth in any real way. Te had never returned to Cambodia, yet faced deportation to what by now would be a completely unfamiliar land. Dang had briefly returned twice to Vietnam, more than 12 years ago. Te and Dang's counsel put to the Court the length of time both had been in this country,⁽⁷⁹⁾ but oddly did not raise other aspects of whether either really 'belonged' anywhere besides Australia.

If contrary to the views of the majority in Taylor and Te and Dang a 'non-citizen' can become a 'non-alien' other than by formal naturalisation, the notion of where such a person actually 'belongs' seems just as relevant as the extent to which they may or may not have been 'absorbed' into the Australian community.

Conclusion: Aliens, Citizens and Membership of the Australian Community

The aliens issue is central to membership of the Australian community. Rubenstein notes that:

Moreover, as Gaudron J said in Taylor:

But the power of the Federal Government to regulate and control 'aliens' is only part of the intricate and involved question of who is entitled to full rights as a member of the Australian community.⁽⁸²⁾

Recent examples illustrate the complexity of this broader issue.

In Minister for Immigration and Multicultural Affairs v Walsh⁽⁸³⁾ (full Federal Court 2002), the Court had to decide whether a person born in the Australian external territory of Papua in 1970, and therefore an Australian citizen by birth, retained her citizenship after Papua New Guinea became independent in 1975. Under the new PNG Constitution and Australian legislation,⁽⁸⁴⁾ Ms Walsh would remain an Australian citizen only if she had a right to permanent residence in mainland Australia. The Federal Court held that while she was an Australian citizen prior to PNG independence, she had not been absorbed into the Australian community (never having lived here), so she remained an 'immigrant' under Australian law with no automatic right of entry onto the mainland.

As Genevieve Ebbeck points out:

Walsh shows that distinguishing between 'citizens' on the one hand and 'aliens' on the other only partially determines membership of the Australian community. Ms Walsh was, at least until 1975, an Australian citizen and therefore not an 'alien', but clearly not a full member of the Australian community because she remained an 'immigrant'.

The Australian born children of temporary visa holders such as the 1,650 East Timorese refugees who have lived in this country since the early 1990s and are currently trying to avoid deportation⁽⁸⁶⁾ provide another example of the uncertainty about who receives full membership rights in the Australian community.

Most of the East Timorese refugees arrived in Australia between 1992 and 1994. Some now have children born in this country.⁽⁸⁷⁾ Despite being born here, the children are not Australian citizens.⁽⁸⁸⁾ However, under the Citizenship Act, they will become citizens on their tenth birthday if they continue to live in Australia.⁽⁸⁹⁾ According to the Commonwealth's official Citizenship Instructions, this provision applies 'regardless of the parent/s migration or citizenship status', and 'is an operation of law provision which does not require an application or decision'.⁽⁹⁰⁾

It is difficult to see why children born in Australia who have known no other country and who will automatically become Australian citizens when they turn ten are any more 'aliens' in a constitutional sense than overseas born 'non-citizens' who are entitled to citizenship because they have Australian parents.⁽⁹¹⁾ It is arguable that the Australian-born children of temporary visa holders such as the East Timorese refugees may also be part of a new constitutional category of 'non-alien non-citizens'. But similar to Australian citizens in the former territories of Papua and New Guinea prior to 1975, they will not be full members of the Australian community with the right to freely move in and out of the country.⁽⁹²⁾

It can be seen that the rights accorded to various groups of citizens and non-citizens as members of the Australian community vary, not necessarily in a logical or consistent way. In Taylor and Te and Dang, a majority of the High Court gave greater rights to non-citizen British residents even those convicted of serious crimes such as the applicant in Taylor than those enjoyed by some Australian citizens (e.g. Ms Walsh pre-1975) or people born in this country (children of temporary visa holders). In particular, British permanent residents in Australia who arrived before a certain date have freedom of movement (including protection against deportation), something not available to these other groups.

Putting legal considerations to one side, it is unfortunate from the perspective of Australia's national development that some members of the High Court allow discrimination in favour of 'British subjects' (whatever the exact extent of that phrase) in relation to 'alien' status. Apart from not becoming Australian citizens, Te and Dang made the mistake of being born outside the realm of the former British Empire. It could be argued that such a distinction based on what Gummow J described as 'medieval notions' of allegiance to the British Crown⁽⁹³⁾ is out of place in present day Australia.

Endnotes