citizenship issue 01

8/7/2019 Citizenship Issue 01

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Chapter 000X Page 1 CITIZENSHIP issues

If I were to assume that your motor vehicle belongs to me would you then readily give it up or would you rather hold that I can assume whatever I like but that doesnt make it legal?Well the same withy the correspondence below:

QUOTE 7-1-2010 CORRESPONDENCEAustralian Government

Department of the Prime Minister and Cabinet ONE NATIONAL CIRCUITBARTON

Reference: c09/54418

Mr Gerrit Schorel-Hlavka107 Graham RoadVIEWBANK VICTORIA 3084

Dear Mr Schorel-Hlavka

Thank you for your email of 24 October 2009 to the Prime Minister regarding theCommonwealths power to legislate over citizenship. I have been asked to reply on the PrimeMinisters behalf. I apologise for the delay in doing so.

Australian citizenship is defined in the Australian Citizenship Act 2007 . Ordinarily, theGovernment does not disclose its legal advice, including on constitutional issues, I refer you,however, to the following passage from paragraph 4,179 of the Final Report of theConstitutional Commission , 1988:

While the Federal Parliament has not been granted an express power to make laws withrespect to nationality and citizenship, it has been assumed that the Parliament doeshave such a power. The power is either implied in section 51(xix) [of the Constitution] or is one of the implied national powers. Its exercise by the Federal Parliament, byenactment of the Australian Citizenship Act 1948 has certainly not been called intoquestion in any case before the High Court of Australia.

Yours sincerely

Brendan MacDowellA/g Assistant SecretaryLegal Policy Branch7 January 2010

QUOTE 7-1-2010 CORRESPONDENCE.Within the framer work of the constitution there is nothing to indicate that some Royal Commissioncan amend or otherwise apply a different version of what the constitution actually stands for.

Hansard 2 March 1898 Constitutional Convention Debates

QUOTE

Mr. SYMON .-

Chapter 000X Page 1

INSPECTOR-RIKATI on CITIZENSHIP A book on CD about Australians unduly harmed. (ISBN 0-9580569-6-X prior to 1-1-2007) ISBN 978-0-9580569-6-0

PLEASE NOTE : You may order books in the INSPECTOR-RIKATI series by making a reservation, by fax 0011-61-3-94577209 or E-mail [email protected] See also www.schorel-hlavka.com
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I am not going to put that in the power of any one, and if it is put in the power of the FederalParliament, then I should feel that it was a very serious blot on the Constitution, and a verystrong reason why it should not be accepted. It is not a lawyers' question ; it is a question of whether any one of British blood who is entitled to become a citizen of theCommonwealth is to run the risk-it may be a small risk-of having that taken away ordiminished by the Federal Parliament! When we declare-"Trust the Parliament," I amwilling to do it in everything which concerns the working out of this Constitution, but I amnot prepared to trust the Federal Parliament or anybody to take away that which is a leadinginducement for joining the Union.

END QUOTE.

The following shows the usage of Australian citizen, citizen of the Commonwealth, dualcitizenship, etc. making clear that the constitutional term Australian citizenship has no suchmeaning of nationality and neither can be converted to this as to allow, so to say, theCommonwealth of Australia to unconstitutionally steal the legislative powers of the States todefine/declare citizenship.

13-02-1890 Re; Australian citizen

13-03-1891 Re; Australian citizens25-03-1897 Re; Australian citizensRe; dual citizenship

26-03-1897 Re; citizen of the Commonwealth29-03-1897 Re; Dual citizenship30-03-1897 Re; federal citizen

Re; dual citizenship31-03-1891 Re; Australian citizen

Re; citizen of the CommonwealthRe; dual citizenship

12-04-1897 Re; citizen of the Commonwealth

14-04-1897 Re; citizen of the Commonwealth15-04-1897 Re; Dual citizenship15-09-1897 Re; citizen of the Commonwealth

Re; Commonwealth citizenshipRe; dual citizenship

17-09-1897 Re; citizen of the Commonwealth24-01-1898 Re; Australian citizen28-01-1898 Re; Australian citizenship

Re; Commonwealth citizens04-02-1898 Re; citizen of the Commonwealth08-02-1898 Re; Australian citizenship

Re; Commonwealth citizenshipRe; citizen of the CommonwealthRe; federal citizenshipRe; dual citizenship

15-02-1898 Re; citizen of the Commonwealth23-02-1898 Re; citizen of the Commonwealth24-03-1898 Re; citizen of the Commonwealth01-03-1898 Re; Australian citizens

Re; citizen of the Commonwealth02-03-1898 Re; citizen of the Commonwealth

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Re; federal citizenshipRe; Commonwealth citizenshipRe; dual citizenship

03-03-1898 Re; citizen of the CommonwealthRe; federal citizenshipRe; Commonwealth citizenship

04-03-1898 Re; citizen of the Commonwealth10-03-1898 Re; Australian citizenship

.Talbot v. Janson, 3 U.S. 133 (1795)QUOTE

Yet, it is to be remembered, and that whether in its real origin , or in its artificial state,allegiance , as well as fealty, rests upon lands , and it is due to persons. Not so, with respectto Citizenship , which has arisen from the dissolution of the feudal system and is asubstitute for allegiance, corresponding with the new order of things. Allegiance andcitizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of compact; allegiance is the offspring of power and necessity. Citizenship is a political tie;allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a

badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship isfreedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive.Citizenship may be relinquished; allegiance is perpetual. With such essential differences,the doctrine of allegiance is inapplicable to a system of citizenship; which it can neitherserve to controul, nor to elucidate. And yet, even among the nations, in which the law of allegiance is the most firmly established, the law most pertinaciously enforced, there arestriking deviations that demonstrate the invincible power of truth , and the homage, which,under every modification of government, must be paid to the inherent rights of man.

END QUOTEAndTalbot v. Janson, 3 U.S. 133 (1795)

QUOTEThese are tacit acknowledgments of the right of expatriation, vested in the individuals; for,though they are instances of adopting, not of discharging, subjects; yet, if Great Britain would(ex gratia ) protect a Russian naturalized by service, in her fleet, it is obvious that she cannotdo so without recognizing his right of expatriation to be superior to the Empress's right of allegiance. But it is not only in a negative way, that these deviations in support of the generalright appear. The doctrine is, that allegiance cannot be due to two sovereigns; and takingan oath of allegiance to a new, is the strongest evidence of withdrawing allegiance from aprevious, sovereign.

AndTalbot v. Janson, 3 U.S. 133 (1795)

QUOTEThe power of naturalizing has been vested in several of the state governments, and itnow exists in the general government; but the power to restrain or regulate the right of emigration, is no where surrendered by the people; and it must be repeated, that, whathas not been given, ought not to be assumed. It may be said, however, that such a poweris necessary to the government, and that it is implied in the authority to regulate thebusiness of naturalization. In considering these positions, it must be admitted, thatalthough an individual has a right to expatriate himself, he has not a right to seduceothers from their country. Hence, those who forcibly, or seductively, take away a citizen,commit an act, which [p*143] forms a fair object of municipal police; and a conspiracy

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or combination, to leave a country, might, likewise be properly guarded against. Suchlaws would not be an infraction of the natural right of individuals; for, the natural rightsof man are personal; he has no right to will for others, and he does so, in effect,whenever he moves the mind of another to his purpose, by fear, by fraud, or bypersuasion.

END QUOTEAndTalbot v. Janson, 3 U.S. 133 (1795)QUOTE

But naturalization and expatriation are matters of internal police; and must dependupon the municipal law, though they may be illustrated and explained by the principlesof general jurisprudence. It is true, that the judicial power extends to a variety of objects; but the Supreme Court is only a branch of that power; and depends onCongress for what portion it shall have, except in the cases of ambassadors, &c.particularly designated in the constitution. The power of declaring whether a citizenshall be entitled in any form to expatriate himself, or, if entitled, to prescribe the form, isnot given to the Supreme Court; and, yet, that power will be exercised by the court, if they shall decide against the expatriation of Captain Talbot . Let it not, after all, be

understood, that the natural, loco-motive, right of a free citizen, is independent of everysocial obligation. In time of war, it would be treason to migrate to any enemy's countryand join his forces, under the pretext of expatriation. 1 Dall. Rep. 53 , and, even in timeof peace, it would be, reprehensible (say the writers on the law of nature and nations) todesert a country labouring under great calamities. So, if a man acting under theobligations of an oath of office, withdraws to elude his responsibility, he changes hishabitation, but not his citizenship. It is not, however, private relations, but publicrelations; private responsibility, but public responsibility; that can affect the right: for,where the reason of the law ceases, the law itself must, also, cease. There is not a privaterelation, for which a man is not as liable by local, as by natural, allegiance;--after, aswell as before, his expatriation: He must take care of his family, he must pay his debts,

wherever he resides; and there is no security in restraining emigration, as to thoseobjects, since, with respect to them, withdrawing is as effectual, as expatriating. Nor is itenough to impair the right of expatriation, that other nations are at war; it must be the countryof the emigrant. No nation has a right to interfere in the interior police of another: the rightsand duties of citizenship, to be conferred, or released, are matter of interior police; and yet, if a foreign war could affect [p*145] the question, every time that a fresh power entered into awar, a new restraint would be imposed upon the natural rights of the citizens of a neutralcountry; which, considering the constant warfare that afflicts the world, would amount to aperpetual controul. But the true distinction appears to be this:--The citizens of the neutralcountry may still exercise the right of expatriation, but the belligerent power is entitled to say,"the act of joining our enemies, flagrante bello , shall not be a valid act of expatriation." Bythis construction, the duty a nation owes to itself, the sacred rights of the citizen, the law of nations, and the faith of treaties, will harmonize, though moving in distinct and separatecourses. To pursue the subject one step further: A man cannot owe allegiance to twosovereigns. 1Bl. Com. He cannot be citizen of two republics. If a man has a right toexpatriate, and another nation has a right and disposition to adopt him, it is a compactbetween the two parties, consummated by the oath of allegiance. A man's last will , as tohis citizenship, may be likened to his last will, as to his estate; it supersedes every formerdisposition; and when either takes effect, the party, in one case, is naturally dead, in theother, he is civilly dead;--but in both cases, as good Christians and good republicans, itmust be presumed that he rises to another, if not to a better, life and country. An act of

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expatriation, likewise, is susceptible of various kinds of proof. The Virginia law hasselected one, when the state permits her citizens to depart; but it is not, perhaps, eitherthe most authentic, or the most conclusive that the case admits. It may be doneobscurely in a distant county court; and even after the emigrant is released fromVirginia , to what nation does he belong? He may have entered no other country, norincurred any obligation to any other sovereign. Not being a citizen of Virginia , he cannotbe deemed a citizen of the United States . Shall he be called a citizen of the world; ahuman balloon, detached and buoyant in the political atmosphere, gazed at wherever hepasses, and settled wherever he touches? But, on the other hand, the act of swearingallegiance to another sovereign, is unequivocal and conclusive; extinguishing, at once,the claims of the deserted, and creating the right of the adopted, country. Sir WilliamBlackstone , therefore, considers it as the strongest, though an ineffectual, effort to emancipatea British subject from his natural allegiance; and the existing constitution of France declaresit expressly to be a criterion of expatriation. The same principle operates, when thenaturalization law of the United States provides, that the whole ceremony of initiation shall beperformed in the American courts; and if it is here considered as the proof of adoption, shall itnot be considered, also, as the test of expatriation? If America [p*146] makes citizens in thatway, shall we not allow to other nations, the privilege of the same process? In short, to admit

that Frenchmen may be made citizens by an oath of allegiance to America , is, virtually, toadmit, that Americans may be expatriated by an oath of allegiance to France . After thisdiscussion of principles, forming a necessary basis for the facts in this case, it is insisted, 1st,That Talbot was a naturalized citizen of the French Republic at the time of receiving acommission to command the privateer, and of capturing the Magdalena . He left this countrywith the design to emigrate; and the act of expatriation must be presumed to be regular,according to the laws of France, since it is certified by the municipality of Point a Pitre , bythe French Consul, and by the Governor of Guadaloupe . 2d, That Redick was also, anaturalized citizen of the French Republic, when he purchased the vessel, and received acommission to employ her as a privateer.

AndTalbot v. Janson, 3 U.S. 133 (1795)QUOTE

Ballard was a citizen of Virginia , and also of the United States .

END QUOTE

Within the united States of America a person granted naturalization is also granted citizenship,where as the Commonwealth of Australia Constitution Act 1900 (UK) does not provide for this.

Section 51(xix) provides for naturalization.

.The Hansard records of the 2 March and 3 March 1898 Constitutional Convention Debates madeclear that naturalization powers would be transferred from the Colonies to the newly to be formedCommonwealth of Australia, as it would be approved by the British Parliament butCITIZENSHIP legislative powers would be retained by the States in the newly formedCommonwealth of Australia.

Mr Quick proposed to give the Commonwealth of Australia constitutional powers to define/declareCITIZENSHIP but this was defeated/refused by the Delegates!

QUOTE

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I took occasion to indicate that in creating a federal citizenship, and in defining thequalifications of that federal citizenship, we were not in any way interfering with ourposition as subjects of the British Empire. It would be beyond the scope of theConstitution to do that.

END QUOTE

Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to give any

legislative powers to the commonwealth of australia to interfere with the rights of any person as aBritish subject.

Hansard 2-3-1898 Constitution Convention Debates ;

QUOTE

Mr. BARTON .-I did not say that. I say that our real status is as subjects, and that weare all alike subjects of the British Crown.

Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, morecomprehensive, and nobler than that of the states, I would ask why is it not implanted in theConstitution? Mr. Barton was not present when I made my remarks in proposing the clause. Ithen-anticipated the point he has raised as to the position we occupy as subjects of the BritishEmpire. I took occasion to indicate that in creating a federal citizenship, and in definingthe qualifications of that federal citizenship, we were not in any way interfering with ourposition as subjects of the British Empire. It would be beyond the scope of theConstitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. I see therefore nothingunconstitutional, nothing contrary to our instincts as British subjects , in proposing to placepower in this Constitution to enable the Federal Parliament to deal with the question of federal citizenship . An objection has been raised in various quarters-as by the honorable andlearned members (Mr. O'Connor and Mr. Wise)-to the effect that we ought to define federalcitizenship in the Constitution itself. I have considered this matter very carefully, and it hasseemed to me that it would be most difficult and invidious, if not almost impossible, to framea satisfactory definition. There is in the Constitution of the United States of America acast-iron definition of citizenship, which has been found to be absolutely unworkable,because, among other things, it says that a citizen of the United States shall be a natural-born or naturalized citizen within the jurisdiction of the United States, and it has beenfound that that excludes the children of citizens born outside the limits of thisjurisdiction. That shows the danger of attempting definitions, and although I haveplaced a proposed clause defining federal citizenship upon the notice-paper, the subject,seems to me surrounded with the greatest difficulty, and no doubt the honorable andlearned members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be the first to

attack any definition, and would be able to perforate it. In my opinion, it would beundesirable to implant a cast-iron definition of citizenship in the Constitution, because itwould be better to leave the question more elastic, more open to consideration, and moreyielding to the advancing changes and requirements of the times.

Mr. SYMON .-I agree with the honorable member, and I also think it is unlikely that theCommonwealth will seek to derogate from it, but I will not place a power in the hands of theCommonwealth which will enable them to derogate from it, and if that is not done it will bemerely a dead letter. Is there any citizen of the Commonwealth who is not already a citizen of the state? State citizenship is his birthright, and by virtue of it he is entitled to the citizenshipof the Commonwealth. When you have immigration, and allow different people to come

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in who belong to nations not of the same blood as we are, they become naturalized, andthereby are entitled to the rights of citizenship.

Sir EDWARD BRADDON .-They are citizens if they are British subjects before theycome here.

Mr. SYMON .-That is a point I do not wish to deal with. But they become citizens of thestates, and it is by virtue of their citizenship of the states that they become citizens of the

Commonwealth. Are you going to have citizens of the state who are not citizens of theCommonwealth?

Mr. KINGSTON .-In some states they naturalize; but they do not in others.

Mr. WALKER .-Is not a citizen of the state, ipso facto , a citizen of the Commonwealth?

END QUOTE

And

Hansard 2-3-1898 Constitution Convention Debates ;QUOTE

Mr. SYMON .-The honorable and learned member is now dealing with another matter.Would not the provision which is now before us confer upon the Federal Parliament thepower to take away a portion of this dual citizenship , with which the honorable and learnedmember (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention is askedto do is to hand over to the Federal Parliament the power, whether exercised or not, of takingaway from us that citizenship in the Commonwealth which we acquire by joining the Union.I am not going to put that in the power of any one, and if it is put in the power of the FederalParliament, then I should feel that it was a very serious blot on the Constitution, and a verystrong reason why it should not be accepted. It is not a lawyers' question ; it is a question of whether any one of British blood who is entitled to become a citizen of theCommonwealth is to run the risk-it may be a small risk-of having that taken away ordiminished by the Federal Parliament! When we declare-"Trust the Parliament," I amwilling to do it in everything which concerns the working out of this Constitution, but I amnot prepared to trust the Federal Parliament or anybody to take away that which is a leadinginducement for joining the Union.

END QUOTEAnd


QUOTEMr. OCONNOR .-I have said that I do not see that such a trust in the Federal Parliament

would be effective. I sympathize with the honorable member's view, but I think it will becarried out by some kind of definition of citizenship , and I was pointing out the only aspect inwhich it appears to me it might be desirable to have some such definition, and that is, you arecreating new rights to citizens of the Commonwealth as citizens of the Commonwealth inregard to your courts. You establish courts for the Commonwealth, and every citizen of theCommonwealth is entitled to the use of those courts.

Mr. HIGGINS .-Who is he?

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END QUOTE

And


QUOTE

Mr. GLYNN (South Australia).-I shall have to oppose Dr. Quick's amendment, although Iwould really go further than he intends. His object is to have a common citizenship , and heproposes to define that in a proposed new clause, 120A, which reads as follows:-

All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen, and not under any disability imposed by the Parliament, shall be citizens of theCommonwealth;

and he now wants to give power to Parliament to vary that subsequently.

Mr. ISAACS .-It is not clause 120A that he is proposing now.

Mr. HIGGINS .-It is his amendment in clause 52-to insert "Commonwealth citizenship " asa new sub-section.

Mr. GLYNN .-I am quite aware of that, but what I want to understand is whether Dr. Quick will propose the insertion of clause 120A, and also put it in the power of the Parliament tovary the Commonwealth citizenship under clause 52? That is the point about which I amdoubtful. But I desire to point out that Dr. Quick is not going as far as they have gone inAmerica or Germany. There is a common citizenship both of the Commonwealth and of thestates in America. Citizenship of the Commonwealth carries with it citizenship of the states,and the Constitution provides that immunities and privileges enjoyed by the citizens of aparticular state shall be equally shared, when in that state, by the citizens of all the other states. Now, the German Constitution makes a declaration that there must be a commoncitizenship . It does not state that the Parliament of Germany will have the power of providingfor a citizenship of the empire, but that there must be a common citizenship of the wholeempire, and that the privileges which are given in one part of the empire would apply rightthrough the whole empire. That is to say, there is a Commonwealth citizenship and a statecitizenship running the one with the other-a perfect equality of rights. All that is done inGermany is that Article 3 of the Imperial Constitution declares that there shall be a commoncitizenship for all Germany, and that the rights of the individual citizens of any state must beextended to the individual citizens of any other state as long as they come within thejurisdiction of the former state; but the German Constitution also provides that Parliament-andhere is the distinction-may define what the conditions of that common citizenship are to be.

The Constitution declares that there must be a common citizenship , but it leaves thedetermination of the particular terms of that citizenship to the Parliament. That is differentfrom the proposal of Dr. Quick.

END QUOTE

And


QUOTE

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[start page 1761]

Mr. KINGSTON .-It was in the Bill.

Mr. OCONNOR .-There is no portion of the Bill which gives any right of citizenship , or points out what citizenship is.

Mr. HIGGINS .-The word " citizen " occurred in clause 110, although it is now struck out.

END QUOTE

And


QUOTE

Mr. OCONNOR .-The words in clause 110 do not define any right of citizenship ; theyprevent certain restrictions upon it. I would point out to Dr. Quick that he is proposing to givea power to regulate or describe rights of citizenship , when we really do not know at presentwhat is meant by a citizen. I confess I do not know what the honorable and learned member means by that term. Does he mean only the political rights which you give to every inhabitantof a state who is qualified to vote, or does he go beyond that, as the American decisions havegone, and describe every person who is under the protection of your laws as a citizen? Thecitizens, the persons under the protection of your laws, are not the only persons who areentitled to take part in your elections or in your government, but every person who resides inyour community has a right to the protection of your laws and to the protection of the laws of all the states, and has the right of access to your courts. If you are going to define citizenshipfor the purpose of giving these rights, you must say clearly what you mean by citizenship .You leave it to the Federal Parliament to say what citizenship is; and I think there is a greatdeal in what Mr. Glynn says, that we must not hand over to the Federal Parliament the power

to cut down the rights the inhabitants of these states have at the present time. If we do notknow what you mean by citizenship -

Mr. ISAACS .-Commonwealth citizenship .

Mr. OCONNOR .-Exactly. But if we do not know what you mean by citizenship -whether you mean to restrict it to political rights or to the right of protection under your laws, whichevery person, whether a naturalized subject or a person for the time being resident in one of these communities, possesses-we may drive the Federal Parliament into some difficulty, inwhich it is not at all unlikely that some cutting down of what we believe to be the rights of citizenship may take place. I would point out that under the Bill the power of dealingwith aliens and immigration gives an abundant right to the Commonwealth to protectitself, and, of course, the right of defining citizenship will have to be exercised with dueregard to any laws which might be made regarding the position of aliens. I would ask myhonorable friend (Dr. Quick) to say if he has considered how far he means the FederalParliament to go in the definition of citizenship , and what he means by citizenship ? Because, unless we have a clear idea of that, it seems to me that we are handing over to the FederalParliament something which is vague in the extreme, and which might be misused.

END QUOTE

And

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QUOTE

Mr. SYMON .-Very likely not. What I want to know is, if there is anybody who will comeunder the operation of the law, so as to be a citizen of the Commonwealth, who would notalso be entitled to be a citizen of the state? There ought to be no opportunity for suchdiscrimination as would allow a section of a state to remain outside the pale of the

Commonwealth, except with regard to legislation as to aliens. Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may be twomen-Jones and Smith-in one state, both of whom are citizens of the state, but one only isa citizen of the Commonwealth. That would not be the dual citizenship meant. What ismeant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship. Thatdoes not affect the operation of this clause at all. But if we introduce this clause, it is open tothe whole of the powerful criticism of Mr. O'Connor and those who say that it is putting onthe face of the Constitution an unnecessary provision, and one which we do not expect will beexercised adversely or improperly, and, therefore, it is much better to be left out. Let us, indealing with this question, be as careful as we possibly, can that we do not qualify the

citizenship of this Commonwealth in any way or exclude anybody [start page 1764] from it,and let us do that with precision and clearness. As a citizen of a state I claim the right to bea citizen of the Commonwealth. I do not want to place in the hands of theCommonwealth Parliament, however much I may be prepared to trust it, the right of depriving me of citizenship. I put this only as an argument, because no one would anticipatesuch a thing, but the Commonwealth Parliament might say that nobody possessed of less than1,000 a year should be a citizen of the Federation. You are putting that power in the hands of Parliament.

Mr. HIGGINS .-Why not?

Mr. SYMON .-I would not put such a power in the hands of any Parliament. We must restthis Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth shall haveno right to withdraw, qualify, or restrict those rights of citizenship, except with regardto one particular set of people who are subject to disabilities, as aliens, and so on. Subjectto that limitation, we ought not, under this Constitution, to hand over our birth right ascitizens to anybody, Federal Parliament or any one else, and I hope the amendment will notbe accepted.

END QUOTE

And


QUOTE

Mr. BARTON .-If the honorable member's exclamation means more than I have explained,then the best thing to do is to confide to the Commonwealth the right of dealing with the lives,liberty, and property of all the persons residing in the Commonwealth, independently of anylaw of any state. That is not intended, but that is what the expression "Trust the FederalParliament" would mean unless it was limited by the consideration I have laid down. I am sureDr. Quick will see that he is using a word that has not a definition in English constitutional

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law, and which is not otherwise defined in this Constitution. He will be giving to theCommonwealth Parliament a power, not only of dealing with the rights of citizenship,but of defining those rights even within the very narrowest limits, so that the citizenshipof a state might be worth nothing; or of extending them in one direction, and narrowingthem in another, so that a subject living in one of the states would scarcely knowwhether he was on his head or his heels. Under the Constitution we give subjects politicalrights to enable the Parliament to legislate with regard to the suffrage, and pending thatlegislation we give the qualification of electors. It is that qualification of electors which isreally the sum and substance of political liberty, and we have defined that. If we are going togive the Federal Parliament power to legislate as it pleases with regard toCommonwealth citizenship, not having defined it, we may be enabling the Parliament topass legislation that would really defeat all the principles inserted elsewhere in theConstitution, and, in fact, to play ducks and drakes with it. That is not what is meant bythe term "Trust the Federal Parliament."

Mr. HIGGINS .-You give the Federal Parliament power to naturalize.

Mr. BARTON .-Yes; and in doing that we give them power to make persons subjects of theBritish Empire. Have we not done enough? We allow them to naturalize aliens. That is a

power which, with the consent of the Imperial authority, has been carried into legislationby the various colonies, and, of course, we cannot do less for the Commonwealth than wehave done for the colonies.

Mr. KINGSTON .-Such legislation is only good within the limits of each state.

Mr. BARTON .-Yes; and here we have a totally different position, because the actualright which a person has as a British subject -the right of personal liberty and protection under the laws-is secured by being a citizen of the states. It must be recollected that theordinary rights of liberty and protection by the laws are not among the subjects confidedto the Commonwealth. The administration of [start page 1766] the laws regarding

property and personal liberty is still left with the states. We do not propose to interferewith them in this Constitution. We leave that amongst the reserved powers of the states, and,therefore, having done nothing to make insecure the rights of property and the rights of libertywhich at present exist in the states, and having also said that the political rights exercisable inthe states are to be exercisable also in the Commonwealth in the election of representatives,we have done all that is necessary. It is better to rest there than to plunge ourselves into whatmay be a sea of difficulties. We do not know to what extent a power like this may beexercised, and we should pause before we take any such leap in the dark.

END QUOTE

Again;


QUOTE

Mr. SYMON .-I would not put such a power in the hands of any Parliament. We must restthis Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth shall haveno right to withdraw, qualify, or restrict those rights of citizenship, except with regardto one particular set of people who are subject to disabilities, as aliens, and so on. Subjectto that limitation, we ought not, under this Constitution, to hand over our birth right as





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citizens to anybody, Federal Parliament or any one else, and I hope the amendment will notbe accepted.

END QUOTE

Also


QUOTE

The administration of [start page 1766] the laws regarding property and personal liberty is still left with the states.

END QUOTE

As was made clear by Mr Quick;


QUOTE

I took occasion to indicate that in creating a federal citizenship, and in defining thequalifications of that federal citizenship, we were not in any way interfering with ourposition as subjects of the British Empire. It would be beyond the scope of theConstitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.

END QUOTE

Therefore, the Constitution never provided any constitutional powers for the Commonwealth of Australia to legislate as to CITIZENSHIP .

As the Commonwealth of Australia was provided with powers within Subsection 51(xix) of theconstitution to naturalize aliens to become British nationals and the Nationalization Act was enacted after Federation then clearly the powers to naturalize an alien to become a Britishnational is not diminish. In 1948, the Federal parliament then replaced the Naturalization Act withthe Australian citizenship Act 1948 by this STEALING the legislative powers of the States statesin regard of citizenship by purporting that there was an Australian citizenship as an Australiannationality.

QUOTE

Barton J, the parliament cannot give the word a meaningnot warranted by s73 of the Constitution.

END QUOTECommonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272 .

If the Commonwealth of Australia never had any constitutional powers to declare/define citizenshipthen what is the meaning of the Certificate of Australian Citizenship realty? If Australian citizenship is purported to be Australian nationality then this must fail as Subsection51(xix) provided constitutional powers for the Commonwealth of Australia to naturalize aliens to





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become British nationals! Without any Section 128 referendum this cannot be changed to somepurported Australian nationality.We either have a Constitution or not! We use it as was intended by the framers of the Constitution,modified as have been provided for by the successful referendums or we have no constitution at alland no federation exist!

In view that the British parliament declared Australians to be foreigners can this then alter theapplication of the constitution, one may ask?

Constitutional law cannot be amended by mere implication but must be amended by appropriatelegislation. In the case of the Commonwealth of Australia Constitution Act 1900 (UK) Section 128exclude the British Parliament to amend the constitution as it can only be amended by the consentof the people, as expressed by a Section 128 referendum. Hence, regardless if the British parliamentdid or didnt pass legislation to declare Australians foreigners the only way to resolve the matter was and remains to have the Constitution amended to allow the Commonwealth of Australia tonaturalize aliens to become Australian nationals.

The following part of transcript indicates how the High Court of Australia itself is confusing

citizenship with nationality.

Dang, Ex parte - Re MIMA M118/2001 (18 April 2002)IN THE HIGH COURT OF AUSTRALIA

Office of the RegistryMelbourne No M25 of 2001

TRANSCRIPT OF PROCEEDINGSAT CANBERRA ON THURSDAY, 18 APRIL 2002, AT 10.17 AMQUOTE

KIRBY J: Your clients were not British subjects.MR MAXWELL: That is so. If I might move immediately to the question of what Pattersondecided. In our respectful submission, what Patterson decided was this, that allegiance, notcitizenship, is the touchstone for determining alien status.KIRBY J: There is only one reference to citizenship in the Constitution, is there not, and thatis the disqualification that was considered in Sue v Hill ? MR MAXWELL: Yes, your Honour.KIRBY J: There is no other reference to the concept and, indeed, we did not have aCitizenship Act until quite late in the history of the Commonwealth.MR MAXWELL: One of the critical aspects which comes through clearly in the judgments,both the dissenting and the majority judgments in Patterson , is the point your Honour has justadverted to: alien is a concept of our Constitution, citizenship is a concept of our statute law.Your Honours Justices Gummow and Hayne in the joint judgment put in these terms theproposition advanced by the prosecutor in Patterson , namely, at paragraph [223]:alienage and citizenship . . . do not occupy the relevant universe of discourse -That, we would respectfully adopt, though your Honours disagreed in the result, as being theproposition which the majority did endorse. That is to say, it does not follow that because aperson is a non-citizen he or she is, by definition, an alien because you must be one or theother.What Patterson held and why Nolan had to be overruled was that there is a category of non-citizen non-alien. That is what your Honours held by majority Taylor was. He was not acitizen and he was not an alien.





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GUMMOW J: I should make clear to you I do not regard that matter as closed.MR MAXWELL: I am indebted to your Honour.GUMMOW J: It seems to me absolutely fundamental.MR MAXWELL: It is absolutely fundamental and, in our respectful submission, there canbe no conclusion, with respect, other than that is what this Court found because Mr - - -GUMMOW J: I am not so sure about that. The Solicitor-General goes into all of this.MR MAXWELL: Your Honour, we note with some surprise that less than a year after thatdecision was handed down, the Commonwealth is inviting this Court to reopen it and overruleit if it says what we say it says.GUMMOW J: The question really is whether it should have overruled Nolan . Now, I willnot hold you up.MR MAXWELL: Your Honour, in our respectful submission, this Court did overrule Nolan .Four Justices of the Court addressed the question whether it should be overruled and each of them decided for reasons given that it should and it is no longer the law in this country, in our respectful submission, and we will go further and say that necessarily Pochi was at best leftunder a considerable cloud, if not necessarily overruled by that overruling.GUMMOW J: It seems to me what I was putting to you really can be put to one side becauseyou have to go further in this case, and that is the real point.

MR MAXWELL: Indeed, your Honour. Plainly enough - - -KIRBY J: As I understand your argument, it is that until Taylor there was clear authority thatthere was a simple clear criterion for alienage, non-citizen.MR MAXWELL: Exactly so.KIRBY J: After Taylor , whatever is the criterion, the base has shifted.MR MAXWELL: Yes, your Honour.KIRBY J: It did not have to shift further than British subjects to resolve the issue of Patterson .MR MAXWELL: That is so.KIRBY J: But you say, having shifted the basis, a new, stable basis must be found andtherefore this case presents the obligation to find that new, stable basis.

MR MAXWELL: Exactly so.GUMMOW J: And what is the stable basis?MR MAXWELL: The starting point is that the obligation of allegiance can come intoexistence between a person and the Queen of Australia otherwise than by the taking out of citizenship. The next question is, by what criteria is the establishment of that obligation to bedetermined - I am sorry, your Honour?GAUDRON J: You say "can". Did Patterson go further than say at a certain time it couldcome into operation by that method in respect of a certain category of people?MR MAXWELL: That is so, but - - -GAUDRON J: Yes. Well, you have to go beyond that to say that since, when? At all relevanttimes it has been possible and it continues to be possible?MR MAXWELL: Your Honour, all I need to establish is that at the date of the relevantdecisions the obligation of allegiance had been assumed by these individuals. It is quiteseparate, of course, from the discussion which was necessarily engaged in for Patterson aboutthe evolution of the Crown in right of Australia and its separation from Britain. These are,plainly, individuals who have never been British subjects. This is a different case. But as hisHonour Justice Kirby has put, we will be inviting the Court to explore this category of non - --GUMMOW J: We do not set off on exploration tasks. We respond to submissions and weare trying to find what your submission is.MR MAXWELL: Of course, your Honour.





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GUMMOW J: You can tantalise us with this notion of a stable basis. The question is: what isit?MR MAXWELL: In these cases - - -GUMMOW J: Bearing in mind that Patterson was, on one view of it, all about the changingnature of the British Commonwealth, to use that expression.MR MAXWELL: Your Honour, we put the stable basis on three bases in these cases as setout in our submission. First, we say that each of these individuals renounced his allegiance tohis country of birth by fleeing from a regime which could not guarantee him protection.GUMMOW J: How do notions of allegiance work with republican systems of government?As I understand it, the whole notion of citizenship dates back to the American and FrenchRevolutions, where they had to replace notions of allegiance which were monarchical withsomething else and they devised the notion of citizenship. These gentlemen never owedallegiance to any sovereign, did they?MR MAXWELL: No, though your Honour will - - -KIRBY J: Although they would have been born during the reign of Prince Sihanouk.Cambodia was not a separate colony of France; it was a protectorate. So I think that issomething we would not know without some detail.GUMMOW J: That is right.

MR MAXWELL: But, your Honour, in our respectful submission, as a matter of principlethis will not turn on whether a person came from a country which was a monarchy or arepublic. The concept of allegiance - - -GUMMOW J: The point I am trying to make to you is that notions of allegiance come out of English medieval feudalism. That is where it comes from - monarchical feudalism.MR MAXWELL: With respect, we fully appreciate that. As your Honours in the lengthyjoint judgment explained, the concept has developed very significantly since the originalnotion of personal loyalty to a lord. It became, and it was declared in the Court of Queen'sBench in the 1880s, as your Honours pointed out, that it changed from a personal obligationor an obligation to the sovereign in his or her personal capacity to an obligation to thesovereign in his or her political capacity. That is just one respect in which the discussion

about allegiance in the 21st century is a different discussion from that which it would havebeen under more confined notions.HAYNE J: And it is pointed up by your proposition that each renounced allegiance to thecountry of his birth because the regime of the day would not protect him.MR MAXWELL: Exactly so.HAYNE J: But is allegiance concerned with allegiance to the government? Is it moreabstracted a notion than allegiance to whatever regime is in power?GAUDRON J: There is a further question of course too and that is, by whose law is thisrenunciation to be determined? That was addressed in Sykes and the general principle of international law is that that is determined by the laws of the country of which the person wasa citizen or to which he or she owed allegiance.MR MAXWELL: Yes, your Honour.GAUDRON J: So it is not a simple question, I should have thought.MR MAXWELL: No, and it is not necessary for our argument, with respect, that there havebeen no renunciation.GAUDRON J: Well - - -MR MAXWELL: It is not. It happens to be the fact and it makes our cases a fortiori, butwhat is the critical question is whether it can be said of the person that he has assumed theobligation of allegiance and our submission puts it that it - - -GAUDRON J: And you put that as a one-way traffic as well.





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MR MAXWELL: Well, with respect, no we do not. We gratefully accept the analysis of their Honours in the joint dissenting judgment, which points out that changes in therelationship of allegiance can occur either by the joint act of the parties to it, the subject andthe sovereign, or by the unilateral act of either, which, apart from anything else, enables us toput to one side the old notion that allegiance was perpetual and the natural-born subject couldnever give it up. The concept of naturalisation scotched that notion 100 years ago. It can begiven up by a formal act. We submit that one would expect to find a parallel notion of renunciation by conduct, but we accept - and our learned friends say just because you haverenounced your citizenship of another country does not mean you have become a citizen of Australia. Well, we accept that. We do not assert that the renunciation somewhere else makesyou a subject of the Queen of Australia. There needs to be an act or a course of conduct of which it can be said that this person enjoys the protection of the Queen of Australia and owesher obligations of allegiance.GLEESON CJ: At which stage did your clients cease to owe allegiance to Cambodia or Vietnam respectively?MR MAXWELL: At the time they sought refuge in refugee camps or, alternatively, upon thegrant of permanent residence visas to each of them, enabling them to come from the refugeecamp to Australia. At that point, we have argued in our submission that the self-description as

a refugee is the explanation or the manifestation of the renunciation.GLEESON CJ: They are interesting alternatives, in practice, because if the former is correct,they would have been in the same situation even if they had been refused visas.MR MAXWELL: That is so. Again, they were granted visas and that means that - and wewill take your Honours in due course to the findings of fact in the Tribunal in each case - eachof these persons was a refugee at the time and, as I understand it, there is no dispute aboutthat. We do not say that an application for refugee status was made and determined inAustralia. There is no evidence that that occurred. Nor is there any doubt but that they wererefugees in the sense in which that term is understood - defined in the Convention. Your Honours will see in the material a question arises before the Tribunal "whether the protectionobligations which Australia owed under the Convention still obtained as at the date of the

Tribunal review?" Held: "No they don't. Conditions have changed in Cambodia or Vietnam.The protection obligation does not subsist."To come back to your Honour's question. The assertion of refugee status is the act of renunciation because it is a statement that, "I cannot rely on the sovereign government of mycountry to protect me." Indeed, that language is used in the Convention itself.GLEESON CJ: Why did they need visas? I wondered if it was because they were aliens.MR MAXWELL: Well, they otherwise had no right to enter Australia.GUMMOW J: You seem to be asserting they did. Of course the Constitution - - -MR MAXWELL: As a matter of international law - - -GUMMOW J: Forget about international law, because the Constitution operated in somemagical way.MR MAXWELL: No, your Honour. We conceded before Justice Hayne that these peoplehad not - I think we conceded they were aliens at the point of arrival. We will seek to qualifythat concession by the protection allegiance argument we have made in our reply. We startwith the proposition that Australia owed obligations of protection to these refugees under the1951 Convention. At that point there was an acceptance of what is described in the RefugeeConvention in these terms, and it is in the material, a person is, "unable or . . . unwilling toavail himself of the protection of that country".What is helpful in this analysis, in our respectful submission, is what Sir John Salmond, in theLaw Quarterly Review article that we will take your Honours to, and the House of Lords in



http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/mailto:[email protected]:[email protected]://www.schorel-hlavka.com/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/mailto:[email protected]://www.schorel-hlavka.com/


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Joyce refer to as "the reciprocal obligations of protection by the sovereign to the subject andallegiance by the subject to the sovereign."KIRBY J: Could I just ask a factual matter, that is partly a legal matter. Was there anyimpediment to your clients becoming naturalised Australian citizens?MR MAXWELL: Not that I am aware of, your Honour, no. No application was made. At acertain point they may have, by their criminal convictions, become unable to satisfy the "goodcharacter" requirement.KIRBY J: Does one draw any inference at all from the fact that in the interval between their arrival as children and their evictions, that they could have signified their allegiance to theQueen of Australia and the people of Australia by becoming citizens but omitted, failed,refused to do so?MR MAXWELL: In our respectful submission, no. One draws no inference because - andthis comes back to the fundamental point - the assumption of citizenship - we have put this interms in the outline - is a sufficient condition of allegiance but it is not a necessary condition,and that is what Patterson held. If that is correct, then the non-taking out of citizenship doesnot disqualify a person from being a subject of the Queen of Australia.GAUDRON J: But are we not a little bit off the track here? From a constitutional point of view we are concerned with aliens and non-aliens. At least in the case of persons who are not

and never have been British subjects is it not the case that it is well within the legislativepower of the Parliament to decide and define who are and who are not aliens?CALLINAN J: That is what Mr Justice Barton said in Ferrando v Pearce .GAUDRON J: But is that not the case, that it has legislative power to define who are andwho are not aliens?MR MAXWELL: Yes, but, with respect, to exclude from a statutory definition of aliens - letme put that differently - to include within a statutory definition of aliens someone who is notis beyond power.GLEESON CJ: But if granting a visa to someone produces the result that they are not analien, then the entire scheme of the Migration Act 1997 has miscarried, has it not? Its longtitle is it is "An Act relating to the entry into, and presence in, Australia of aliens, and the

departure or deportation from Australia of aliens". Visas can be cancelled, can they not?END QUOTE

By the reasoning of the Framers of the Constitution (the Delegates to the Constitution Conventions)a subject to the Crown was anyone who was subjected to the laws of the Crown regardless if theywere aliens or not.

Shaw v Minister for Immigration and Multicultural Affairs[2003] HCA 72

9 December 2003B99/2002QUOTE

10. However, contrary to the submissions for the applicant, the result of such a consideration of his position is his classification as an alien for the purposes of s 51 (xix) of theConstitution. Much of the applicant's argument proceeded from the premise that, becausethe expression "British subject" could be applied to him, he was not an alien. That premise isflawed. First, "British subject" is not a constitutional expression ; it is a statutoryexpression. Secondly, and more fundamentally, if "British subject" was being used as asynonym for "subject of the Queen", an expression which is found in the Constitution, thatusage would assume that there was at the time of federation, and there remains today, a



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constitutional and political unity between the UK and Australia which 100 years of historydenies.

END QUOTEHansard 2-3-1898 Constitutional Convention Debates QUOTE

Mr. BARTON .- I did not say that. I say that our real status is as subjects, and that we arealike subjects of the British Crown .

END QUOTEHansard 1-4-1891 Constitution Convention Debates QUOTE Mr. MUNRO:

. I am proud of being a citizen of the great British empire, and shall never fail to beproud of that position.

END QUOTE

Hansard 26-3-1891 Constitution Convention Debates

QUOTE Mr. HOLDER:

because I take it that the legal bonds which bind us to the mother-country, to the greatBritish Empire ,END QUOTE

Hansard 1-4-1891 Constitution Convention Debates QUOTE Mr. BARTON:

The association of the Queen with the action of the commonwealth is distinct, and isfirmly embedded in the whole bill. If that is done, there can be no association of the ideaof republicanism with this bill.

QUOTE

Hansard 2-3-1898 Constitution Convention Debates QUOTE

Mr. BARTON .-Yes; and here we have a totally different position, because the actual rightwhich a person has as a British subject-the right of personal liberty and protectionunder the laws-is secured by being a citizen of the States. It must be recollected that theordinary rights of liberty and protection by the laws are not among the subjects confidedto the Commonwealth .

END QUOTE

Hansard 2-3-1898 Constitution Convention Debates QUOTE Dr. QUICK.-

we were not in any way interfering with our position as subjects of the British Empire. Itwould be beyond the scope of the Constitution to do that. We might be citizens of a city,citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of theQueen.

END QUOTE

Hansard 3-3-1898 Constitution Convention Debates QUOTE Mr. BARTON .-





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We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is anundefined term, and is not known to the Constitution. The word "subjects" expresses therelation between citizens of the empire and the Crown.

Sir GEORGE TURNER .-Is a naturalized alien a subject?

Mr. BARTON .-He would be a citizen under the meaning of this clause .

Sir GEORGE TURNER .-Suppose you say "subject" without definition, would thatinclude naturalized aliens?

Mr. BARTON .-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth,either natural-born or naturalized subjects of the Queen, and if they are subject to nodisabilities imposed by the Parliament they shall be citizens of the Commonwealth. Why notuse the word "subject," and avoid the necessity of this definition?

END QUOTEAndHansard 3-3-1898 Constitution Convention Debates QUOTE

Mr. OCONNOR .-Exactly. It has two meanings, but we are only dealing now with theone meaning-the general meaning. Mr. Isaacs' reference shows the danger that might beincurred by using the word "citizen," because it might have the restrictive meaning thelast decision imposes. All we mean now is a member of the community or of the nation,and the accurate description of a member of the community under our circumstances isa subject of the Queen resident within the Commonwealth."

Mr. SYMON .-A person for the time being under the law of the Commonwealth.

Mr. OCONNOR .-A person for the time being entitled to the benefits of the law of theCommonwealth.


Mr. BARTON (New South Wales).-If it is a fact that citizens, as they are called, of eachstate are also citizens of the Commonwealth, there may be some little doubt as to whether thisis not providing for practically the same thing.

Mr. WISE .-No, there may be territories that is what I want to provide for.

Mr. BARTON .-In other portions of the Bill we use the words "parts of theCommonwealth" as including territories, so that the object of Mr. Wise would be met byusing the words "citizens of every part of the Commonwealth" or "each part of theCommonwealth."


Mr. BARTON .-

We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is anundefined term, and is not known to the Constitution. The word "subjects" expressesthe relation between citizens of the empire and the Crown.





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Sir GEORGE TURNER .-Is a naturalized alien a subject?

Mr. BARTON .-He would be a citizen under the meaning of this clause .

Sir GEORGE TURNER .-Suppose you say "subject" without definition, would thatinclude naturalized aliens?

Mr. BARTON .-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth,either natural-born or naturalized subjects of the Queen, and if they are subject to nodisabilities imposed by the Parliament they shall be citizens of the Commonwealth. Why notuse the word "subject," and avoid the necessity of this definition?

Dr. QUICK.-This definition does not interfere with the term "subject" in its wider relation asa member of the empire or subject of the Queen .

Mr. BARTON .-No, but the definition of "citizen" as a natural-born or naturalized subjectof the Queen is co-extensive with the ordinary definition of a subject or citizen in America.The moment be is under any disability imposed by the Parliament be loses his rights.

END QUOTE

AndQUOTE

Dr. QUICK.- The regulation would have to specify the ground of disability.

Mr. BARTON .-Yes; but my honorable friend says not under any disability imposed by theParliament. Would not the difficulty be that if he were under any slight disability for regulative purposes, all his rights of citizenship under the Commonwealth would be lost?

Mr. KINGSTON .-There might be a special disability on minors.

Mr. BARTON .-That might be one of the disabilities. Of course here the disabilities asto minors would not matter much , but I would like to put this consideration to Dr. Quick,that if we use the term "subject," or a person subject to the laws, which is a wider term, weshall avoid the necessity for a definition of "citizen." You might say a subject or residentbeing the subject of the Queen.


Mr. SYMON .-There is no man in Australia who is more profoundly versed in constitutionallaw than Mr. Isaacs, and he knows that every point and every question has been the subject of more or less debate and discussion, and will be until the end of time.

The words "subject," "person," and "citizen" can be made subjects of controversy at all times if occasion requires it. At the same time, it does not affect the principle thatthere should be a definition of "citizen," either in the form suggested by Dr. Quick or byMr. Barton.






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Mr. ISAACS (Victoria).-I am afraid that the amendment is far too wide, unless we say thatthe disabilities imposed by Parliament may extend to birth and race. This would,notwithstanding the rights conferred under clause 52, deprive Parliament of the powerof excluding Chinese, Lascars, or Hindoos who happened to be British subjects .

END QUOTEAndHansard 3-3-1898 Constitution Convention Debates

QUOTE Mr. GLYNN .-I would like to mention, in connexion with what Mr. Isaacs said as to aliens, that thisprovision would not interfere in the slightest degree in the way of preventing aliens fromcoming in, because it is only when the aliens get inside the Commonwealth that thisprovision is to apply to them. The decision of the Privy Council in the case of Ah Toy v.Musgrove was that an alien had no right to land here, but that decision does not affect hiscitizenship after he has landed.


Mr. WISE (New South Wales).-My mind has wavered very much during this debate. Ihave come to the conclusion that my original suggestion was wrong , that the best form of all in which the original amendment could be moved is [start page 1793] that in which it wasproposed by Mr. Symon, and that then no definition such as is suggested by Dr. Quick will bereally required, because, if we allow each state to make its own standard of citizenship, weshall reserve all the rights of the states, and obviate all the difficulties contemplated byMr. Trenwith, by retaining to each state the right to determine the qualification of itsown citizens. And then we will make a provision that is necessary as part of the FederalConstitution, that when a man has acquired citizenship in one state he shall be entitled to theright of citizenship in the other states.


Dr. COCKBURN (South Australia).- If the word "citizen" simply means resident orinhabitant, why should we go to all this trouble about it? If it means inhabitant, what isthe use of saying the inhabitant of one state going to another state shall be an inhabitantof that other state? It seems to me that if you are going to use the word "citizen" in thesense of being equal to resident or inhabitant, and it is to have no other meaning such ashas always been attached to it, we had better leave out the clause.


Mr. OCONNOR (New South Wales).-I would suggest that Mr. Symon should accept theamendment suggested by Mr. Barton, so that his clause shall read-

Every subject of the Queen resident in any state or part of the Commonwealth shall beentitled to all privileges and immunities of subjects resident in other states or parts of theCommonwealth.





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I am altogether in favour of the principle of Mr. Symon's amendment; but the word "citizen"creates a difficulty. If, instead of the word "citizen," we use the words "Every subject of theQueen resident in a state," it really means the same thing. The meaning to be given to theword "citizen" in Mr. Symon's amendment is not the narrow limited meaning of thecitizen who can exercise the franchise, but it is the broad general meaning which theword has been held to have under the United States Constitution. It has been decidedthere that the word "citizen" has, [start page 1796] in a general and wide sense, this meaning:-

In its broad sense the word is synonymous with subject and inhabitant, and is understood as conveying the idea of membership of the nation, and nothing more.


Dr. COCKBURN .-But the present proposal if carried would raise an initial difficulty inframing special laws. It might be urged that it was necessary to discriminate betweenresidents who are subjects of the Queen and those who are not, and the amendmentwould introduce an element which would give rise to a great deal of trouble in thefuture.

Mr. HIGGINS .-You want to keep both classes out.

Dr. COCKBURN .-We desire always to deal with Asiatics on broad lines, whether theyare subjects of the Queen or not; and in South Australia, and, I believe, other colonies,those lines of distinction are obliterated. In South Australia we make no differencebetween Chinese from Hong Kong and those from other parts of China. That, I think, isthe most effective way of dealing with this matter.

END QUOTEAgain;Hansard 3-3-1898 Constitution Convention Debates QUOTE

We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is anundefined term, and is not known to the Constitution. The word "subjects" expressesthe relation between citizens of the empire and the Crown.

END QUOTEClearly, the Framers made clear it is not the relationship between a subject and some Queen, butmore significantly the relationship between the subjects as citizens of the empire and the Crown.One must therefore be a citizen of the empire to have a relationship with the Crown.If one is not a subject of the Crown residing as a citizen in the empire then no relationship exist.

This, the High Court of Australia never addressed as such. It simply sought to bypass this kind of definition, being it unaware of it all together or not. But, the Queen of Australia is no Queenrecognised by the British Crown, or can be Queen of the Empire. It is a fictitious name and title thatcan hold no water, so to say, to issue proclamation in that title, as to do so would create a fictitiousappointment not worth the paper it is written upon.

Mr G. H. Schorel-Hlavka 2-3-2011



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citizenship issue 01

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