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IS IT CONSTITUTIONAL TO DENATIONALIZE A ‘TRUE BLUE
AUSTRALIAN’?
By
James D’Erinlea Graham
A thesis submitted in partial fulfillment for the award of
Bachelor of Laws Degree (Honours)
School of Law and Justice, Edith Cowan University
Date of Submission:
3 December 2008
I certify that the word count of this thesis is 13,543
ABSTRACT
This thesis argues that there is a class of Australians whom we will term: True Blue
Australians, who could not possibly answer the description of aliens per the limitation
expressed by Gibbs CJ in Pochi v Macphee (1982). Based on recent decisions of the High
Court of Australia in cases such as Koroitamana v The Commonwealth (2006), MIMIA; Ex
parte Ame (2005) and Singh v The Commonwealth (2004), it will be suggested that a
qualitative test of allegiance taking into account both allegiance to Australia and allegiance
to other nations is necessary to determine who can be classed as True Blue Australians.
If the Australian Government ever introduced harsher denationalization legislation in the
future, particularly in the name of national security, it is argued that section 51(xix) of the
Constitution (‘the Alien’s Power’) could not be relied on to support such legislation to the
extent it affects True Blue Australians, unless they have subsequently moved within the
scope of the Alien’s Power.
It will be argued that there is an implied limitation in the Australian Constitution which
restricts all express and implied powers other than the Alien’s Power from being used to
empower denationalization legislation to the extent it affects True Blue Australians. This
restriction has been likened in part to the Fourteenth Amendment of the United States
Constitution. Further, an implied limitation will be postulated in the Australian Constitution
based on the separation of powers doctrine which would declare such denationalization
legislation unconstitutional if it is used to achieve a punitive purpose. This limitation can be
likened to the Eighth Amendment of the United States Constitution.
Based on United States cases such as Vance, Secretary of State v Terrazas (1980), it will be
argued that the Alien’s Power of the Australian Constitution could only be relied on to
denationalize a True Blue Australian if it can be demonstrated by a ‘preponderance of
evidence’ that they intended to relinquish their existing or prospective Australian
citizenship.
ACKNOWLEDGEMENTS
I would like to begin by saying that, growing up, I had no ambition whatsoever to become a
lawyer, simply because I did not think I had the ability to do so.
For me, this thesis stands as evidence that anything can be achieved with persistence, vigor,
discipline and as my dad always says, ‘doing what you should be doing, when you should
be doing it.’
However, this thesis could not have been completed without the help and support of some
very special people.
I would firstly like to thank my entire family for their support since the beginning of the
degree. My dad in particular has made himself available when I needed his help the most
which has made a tremendous difference. His ability to listen to and duplicate the
difficulties I have faced and offer pinpoint solutions has been of immeasurable value.
Secondly, I would like to thank all of my lecturers and the support staff of ECU who have
worked tirelessly to make this new law degree a possibility. I would especially like to thank
Rupert Johnson for driving this Honours program into existence and supporting me since
the beginning of the degree.
My thesis supervisor, Michael Crowley, deserves special recognition for his ongoing
support throughout the degree and the development of this thesis. His support during the Sir
Harry Gibbs Mooting Competition 2007 played an important role in my life and helped to
fine tune my legal skills.
I would also like to thank Dr. Jo McFarlane for helping to develop my legal writing skills
throughout the degree, and for providing additional support with this thesis.
Now…let the thesis begin!
DECLARATION
I certify that this thesis does not, to the best of my knowledge and belief:
i. incorporate without acknowledgement any material previously submitted for a
degree or diploma in any institution of higher education;
ii. contain any material previously published or written by another person except
where due reference is made in the text; or
iii. contain any defamatory material.
Signature
Date
CONTENTS
Introduction
1
1. Denationalization
4
2. Australian Citizenship 10
2.1 Statutory Australian Citizenship 10
2.2 The Alien’s Power 12
2.3 The Alien/Citizen Dichotomy 13
2.4 The True Blue Australian 15
2.5 Qualitative Assessment of Allegiance to Australia 18
2.5.1 Jus Soli and Jus Sanguinis 18
2.5.2 Citizenship of Another Nation on Birth 21
2.5.3 Naturalized Australian Citizens 22
2.5.4 Citizens of External Territories Under the Power of Australia 23
3. Constitutional Restrictions on Denationalization
24
3.1 Restrictions on Powers Other than the Alien’s Power 24
3.1.1 Omission of an Express Power over Citizenship 26
3.1.2 Fundamental Notions of Nationality Expressed in the Constitution 27
3.1.3 Circuitous Device 31
3.2 Denationalization for a Punitive Purpose 32
4. Grounds for Denationalization 35
4.1 Express Words 35
4.2 Conduct 36
4.2.1 Providing Support to a Terrorist Organisation 37
4.2.2 Treason 40
4.2.3 Desertion of the Armed Forces During War Time 41
4.2.4 Dual Citizenship 42
4.2.5 Failure to Satisfy Procedural Requirements 45
4.2.6 Deprivation of Parents’ Citizenship 47
4.2.7 Failure to Apply for an Australian Citizenship 47
Conclusion
49
Bibliography 52
1
Introduction This thesis will begin with the contention that as part of the ongoing desire to protect
Australia’s national security interests, the potential for the Australian Government to enact
harsher denationalization legislation in the future is certainly conceivable. This argument is
based on the enactment and push to enact further denationalization legislation by the British
and United States Governments, which has been justified as necessary to protect their
people from further acts of terrorism. In particular, this thesis will focus on the
constitutionality of existing and potential denationalization legislation to the extent it
applies to what is termed for the purpose of this thesis as a True Blue Australian under the
Australian Constitution.1 Both denationalization in the national security context, and
grounds unrelated to national security will be considered. Denationalization in this sense
refers to the revocation of an existing or denial of a prospective Australian citizenship by
the Australian Government. The terms ‘Australian citizenship’ and ‘Australian citizen’ are
used in this thesis in relation to the ‘legal status’ of citizenship, which can be distinguished
from citizenship in the broader sense.2
Chapter 1 will explore what denationalization is and how it has been used in Australia, the
United States, and the United Kingdom, particularly since the events of 9/11 in 2001 and
the London Bombings in 2005. This Chapter will also discuss the factors which indicate a
potential willingness of the Australian Government to enact harsher denationalization laws
in the future.
Chapter 2 will discuss Australian Citizenship generally and explain the significance of the
alien/citizen dichotomy to the constitutionality of denationalization laws, in the sense that if
1 The Australian Constitution was enacted by the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9. 2 Australian Citizenship in the legal sense refers a citizenship obtained under the Australian Citizenship Act 2007 (Cth) or the now repealed Australian Citizenship Act 1948 (Cth); See, Linda Bosniak, ‘Citizenship Denationalized’ (2000) Indiana Journal of Global and Legal Studies 447, for an understanding of citizenship in the broader sense which includes ‘citizenship as a system of rights’, ‘citizenship as a form of political activity’ and ‘citizenship as a form of identity and solidarity.’
2
somebody is not an Australian citizen, they are then classed as an alien without any middle-
ground. It will be argued that if an Australian citizen could fall within section 51(xix) of the
Australian Constitution (‘the Alien’s Power’), then the potential exists for the government
to enact legislation providing for the revocation of their citizenship. An assessment of who
falls outside the Alien’s Power will be conducted in order to ascertain who, for the purpose
of this thesis, can be classed as a True Blue Australian. It will be proposed that the test for
whether somebody is a True Blue Australian depends on a qualitative assessment of the
person’s allegiance to Australia by taking into account both inclusive (owing allegiance to
Australia) and exclusive factors (owing allegiance elsewhere).
Chapter 3 will argue that there are implied limitations in the Australian Constitution which
prevent all express or implied powers other than the Alien’s Power from being used to
empower denationalization legislation, and prevent the use of denationalization for a
punitive purpose. It will be argued that these restrictions are similar to those found in the
Eighth and Fourteenth Amendments of the United States Constitution and therefore United
States cases on denationalization are highly persuasive when considering the
constitutionality of similar Australian denationalization legislation.
Chapter 4 will examine the constitutionality of various grounds for denationalization which
presently exist in Australia or, based primarily on United States precedent, could exist in
Australia. United States cases based on the Eighth and Fourteenth Amendments of the
United States Constitution considering various grounds for denationalization will be
examined to predict the potential for similar grounds to be held constitutional if enacted in
Australia. This Chapter will focus primarily on grounds for denationalization which are
related to the protection of Australia’s national security, because as argued in Chapter 1, the
potential for the enactment of such legislation in Australia is not unlikely. However, other
grounds for denationalization unrelated to the threat of national security will also be
considered. It will be argued that a True Blue Australian cannot be denationalized unless it
can be demonstrated by a ‘preponderance of evidence’ that their conduct indicates an
intention to relinquish their existing or prospective citizenship and the denationalization is
not for a punitive purpose. This contention will be based on United States cases considering
the Eighth and Fourteenth Amendments of the United States Constitution which as argued
3
in Chapter 3 are similar to protections which can be implied in to the Australian
Constitution.
4
CHAPTER 1 Denationalization
Australian Citizenship ‘connotes a bundle of rights and duties, obligations and privileges.’3
It has been described as ‘man’s basic right for it is nothing less than the right to have
rights.’4 From citizenship stem rights such as, for example, the right to vote, the right to
stand for Parliament, the right to heath care and the right to education.5 It has been argued
that at a bare minimum it grants one ‘the right to return and remain in Australia.’6
Many Australian citizens would assume the continued existence of their citizenship to be a
certainty unless they voluntarily chose to relinquish it. They would assume that they could
never be forcibly deported from Australia, held indefinitely in an Australian immigration
detention centre and denied each of the rights that flow from holding an Australian
citizenship. However, it may come as a surprise to many to find that Australian citizenship
is a statutory concept and, unlike the United States Constitution,7 it is not expressly
protected by the Australian Constitution. The potential therefore exists for such citizenship
to be revoked by an Act of Parliament at some point in the future.8
Denationalization can be defined as the deprivation ‘of national rights, scope or character’,9
or the ‘forcible divesture of an individual’s citizenship by the government.10 In this thesis
3 Patrick Birkinshaw, ‘Citizenship and Privacy’ in Robert Blackburn (ed), Rights of Citizenship (1993) 31, 31. 4 Perez v Brownell, 356 U.S. 44, 64 (SC, 1958) (Warren CJ). 5 For a comprehensive examination of legislation conferring rights and obligations on Australian Citizens, see especially, Kim Rubenstein, Australian Citizenship Law in Context (2002) 177-253; See also, Robert Blackburn (ed), Rights of Citizenship (1993). 6 This right is referred to as the ‘right of abode’; See, especially, Helen Irving, ‘Still Call Australia Home: The Constitution and the Citizen’s Right of Abode’ (2008) 30 Sydney Law Review 133, 146-147; See, Air Caledonie International v Commonwealth (1988) 165 CLR 462 in which an Australian citizen was held to not lawfully be denied entry to Australia. 7 United States Constitution amend XIV, § 1. 8 See, Chapter 2.2 below. 9 Thorndike-Barnhart (ed), The World Book Dictionary (1991).
5
the term is used to describe the involuntary revocation of an existing or denial of a
prospective Australian citizenship to somebody who could not possibly answer the
description of an alien: a True Blue Australian. As discussed in the following Chapters,
denationalization will only be constitutional under the Australian Constitution if the person
falls within the description of an alien and the denationalization is not for a punitive
purpose.
‘History, and not only ancient history, provides many examples of legislation depriving
individuals and minority groups of their nationality status.’11 ‘[T]he Nuremburg Laws of
September 1935’, for example, stripped ‘Germans of defined Jewish ethnicity’ of their
‘German nationality’ resulting in an onslaught of their fundamental human rights.12 In
Britain in 1870, British women who married alien men lost their status as British subjects
on the legislative assumption that their allegiance to the Crown had ceased.’13 In the United
States citizenship has previously been involuntarily revoked for a wide range of reasons
such as, marrying a foreigner, voting in a foreign election and avoiding military service.14
Under the 1948 Australian Citizenship Act,15 the Australian Federal Parliament previously
provided for the cessation of citizenship for an Australian citizen who acquired ‘the
10 Steven S. Goodman , ‘Protecting Citizenship: Strengthening the Intent Requirement in Expatriation Proceedings’ (1988) 56 George Washington Law Review 341, 344 n.14; International law relevant to, denationalization include the Universal Declaration for Human Rights art 15 which provides that (1) Everyone has the right to a nationality, and (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality, and the Convention on the Reduction of Statelessness which was signed on 30 August 1961 and entered into for Australia on 13 December 1975: [1975] ATS 46. 11 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at [49] (Kirby J); See, Koroitamana v The Commonwealth (2006) 227 CLR 31 at [38]; See generally, T. Alexander Aleinikoff, ‘Theories of Loss of Citizenship’ (1985-1986) 84 Michigan Law Review 1471; In relation to Soviet Union Denationalization in 1931, see McDougal, Lasswell & Chen, ‘Nationality and Human Rights: The Protection of the Individual in External Arenas’ (1974) 83 Yale Law Journal 900, 942. 12 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at [49] (Kirby J); See generally, Martin Dean, ‘The Development and Implementation of Nazi Denaturalization and Confiscation Policy up to the Eleventh Decree to the Reich Citizenship Law’ (2002) 16(2) Holocaust and Genocide Studies, 217-242; See, Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249. 13 See, John W Salmond, ‘Citizenship and Allegiance’ (1902) 18 Quarterly Review 49. 14 See generally, Nora Graham, ‘Patriot Act II and Denationalization: An Unconstitutional Attempt to Revive Stripping Americans of Their Citizenship’ (2004-2005) 52 Cleveland State Law Review 600. 15 Australian Citizenship Act 1948 (Cth).
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nationality or citizenship of a foreign country.’16 However, this section has now been
repealed partly due to the discrimination it caused to those who were able to acquire a dual
citizenship, but prevented from doing so because of the effect of this provision.17 Section
35 of the Australian Citizenship Act 2007 (Cth)18 provides for the revocation of the
Australian citizenship of anybody who ‘is a national of a foreign country’; and ‘serves in
the armed forces of a country at war with Australia.’ As discussed further in Chapter 4,
section 34 of the Citizenship Act also provides for cessation of citizenship for fraud in the
citizenship application process. Section 36 also provides for the deprivation of a child’s
citizenship where a responsible parent ceases to remain an Australian citizen, unless they
have a remaining parent with Australian citizenship or to deny the child’s citizenship would
render them stateless.
Under the proposed Patriot Act 2, discussed further in Chapter 4, the United States
Government seeks to alter its legislation to provide for the denationalization of an
American citizen, whether by birth right or naturalization, who provides material support to
a terrorist organisation if such an organisation is ‘engaged in hostilities against the United
States, its people, or its national security interests.’19 This proposed legislation is part of an
ongoing series of legislative amendments which the United States Government has justified
since the events of 9/11 as necessary to protect America’s national security. Australia has
already followed America’s lead in enacting significant anti-terrorism legislation20 since the
events of 9/11 and it is argued that the potential for future denationalization legislation
similar to that proposed by the Patriot Act 2 is certainly conceivable.
16 Australian Citizenship Act 1948 (Cth) s 17. 17 See, Department of Immigration and Multicultural Affairs, Loss of Australian Citizenship on the Acquisition of Another Citizenship, Discussion Paper on Section 17 of the Australian Citizenship Act 1948 (June 2001); See generally, Rubenstein above n 5, 144; For a discussion on Ron Castan QC’s advice on the constitutionality of this provision, see Commonwealth, Australian Citizenship Legislation Amendment Bill 2002: Second Reading, Senate, 14 March 2002, 788 (Senator Bolkus). 18 (‘the Citizenship Act’). 19 Section 501 of the Domestic Security Enhancement Act of 2003 seeks to amend section 349 of the Immigration and Nationality Act 8 U.S.C. 1481 to include a provision to this effect; See generally, Graham, above n 14. 20 See generally, Criminal Code (contained in the Criminal Code Act 1995 (Cth)) s 102.
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Shortly after the 2005 London bombings, the United Kingdom amended its Nationality Act
to permit the Secretary of State to deprive somebody of their citizenship status if they are
satisfied that such deprivation is ‘conducive to the public good.’21 The reference to
‘citizenship status’ includes those who have a connection to Britain by descent and/or birth
and is not limited to those who have become British citizens through the naturalization
process.22 The limitation on such deprivation of citizenship is that it cannot be ordered by
the Secretary of State if to do so would render the person ‘stateless’.23 This power to
deprive a person of citizenship could therefore potentially apply to the British equivalent of
those described in Chapter 2 as True Blue Australians who have a dual citizenship with
another nation.
It can be argued that if the governments of the United States and the United Kingdom are
willing to enact harsher denationalization legislation, particularly in the ongoing effort to
protect national security, then the possibility for Australia to follow a similar direction is
conceivable. Indeed, denationalization in the post-9/11 climate has already been considered
by the Australian Parliament. In 2005, former Prime Minister John Howard had reportedly
asked Attorney General Phillip Ruddock to ‘examine ways of revoking the citizenship of
anyone convicted of terrorist crimes.’24 Although provisions to this effect were excluded
from the new 2007 Citizenship Act, the Act did include a power for ASIO to veto an
Australian citizen application if the person is considered a threat to national security.25
An insight into Australia’s attitude toward the Australian citizenship of somebody involved
in terrorist activities can be gained from the David Hicks case. During Hicks’ detention in
21 Immigration, Asylum and Nationality Act, 2006 c. 13 § 56(1) (Eng.); See generally, Leti Volpp, ‘Citizenship Undone’ (2006-2007) 75 Fordham Law Review 2579, 2583; See also, Hina Majid, ‘Protecting the right to have rights: The case of section 56 of the Immigration, Asylum and Nationality Act 2006’ (2008) 22(1) Journal of Immigration Asylum and Nationality Law 27-44. 22 The British Nationality Act 1981 (c.61) s 40(1) states that a reference to a person’s citizenship status includes his status as –(a) a British citizen, (b) a British overseas territories citizen, (c) a British Overseas citizen, (d) a British National (Overseas), (e) a British protected person, or (f) a British subject. 23 British Nationality Act 1981 (c. 61) s 40(2). 24 Australia ‘May Deport Militants’ (2005) BBC <http://news.bbc.co.uk/1/hi/world/asia-pacific/4424506.st m> at 22 November 2008. 25 Australian Citizenship Act 2007 (Cth), s 24(4); See generally, Jospeh Kerr, Convicted Terrorists Will Keep Citizenship (2005) Sydney Morning Herald <http://www.smh.com.au/news/national/convicted-terrorists-will-keep-citizenship/2005/11/09/1131407700567.html> at 22 November 2008.
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Guantanamo Bay, it can be argued the Australian Government barely recognized him as an
Australian citizen by their notable lack of lobbying the American Government to have him
transferred to Australia. This in turn forced Hicks to obtain British citizenship with the
hope that the British Government would then obtain his release as they had done for other
British citizens.26 His British citizenship was then revoked by the British Government the
following day on the ground that it was ‘conducive to the public good’ using the newly
enacted provision of the Nationality Act.27 Considering the Australian Government already
barely recognized Hicks as an Australian citizen, the potential for them to follow the United
Kingdom and enact similar legislation to deprive him or somebody in a similar situation of
their citizenship is certainly conceivable.
A further insight into Australia’s view on the rights of Australian citizens versus the need to
protect national security can be gained from the Australian Government’s willingness to
grant an exemption from anti-discrimination legislation to allow Australian defence
companies to discriminate against Australian citizens who were born in another country.28
The requirement to discriminate is prescribed by the United States International Traffic in
Arms Regulations (‘ITAR Regulations’) which prevent certain people from working for
Australian defence companies based on their country of birth, despite their recognition as
Australian citizens.29 This has resulted in the denial of Australian citizens from being able
to work even in the factories of the defence companies because they were ‘born’ in other
countries.30
In one case a man who was a long-standing employee with high security clearances was
made redundant simply because he was born in Vietnam despite being adopted by an
26 Hicks was granted British citizenship by virtue of his mother’s British citizenship after a successful appeal to the British High Court; See, Volpp, above n 21, 2583; See generally, Guantanamo Detainee to Get British Citizenship (2005) TimesOnline <http://www.timesonline.co.uk/tol/news/uk/ article762250.ece> at 22 November 2008. 27 Immigration, Asylum and Nationality Act 2006 (UK) c. 13, § 56(1); See, Nicholas Blake QC, Why is There no song and dance about this Act? (2006) TimesOnline <http://business.timesonline.co.uk/tol/business/law/ar ticle10 82946.ece> at 22 November 2008; See generally, Volpp, above n 25, 2583. 28 See especially, Boeing Australia Holdings Pty Ltd (Anti Discrimination Exemption) [2007] VCAT 532. 29 Ibid. 30 See, Background Briefing, Defence and Discrimination (2008) ABC Radio National <http://www.abc.net. au/rn/backgroundbriefing/stories/2008/2339793.htm> at 22 November 2008.
9
Australian family at a young age, educated his whole life in Australia and even joining the
Royal Australian Air Force.31 In another case, a man’s job was significantly changed due to
his birth in a plane passing through Sudanese airspace which entitled him to citizenship per
Sudanese law, despite having Greek parents, and an Australian citizenship.32 It can be
argued that if the Australian Government is willing to discriminate against Australian
citizens based on their place of birth to enable defence companies to comply with American
legislation, then the possibility for them to attempt to revoke their Australian citizenship
altogether is not far-fetched and fanciful.
31 Ibid. 32 Ibid.
10
CHAPTER 2 Australian Citizenship
2.1 Statutory Australian Citizenship
The Australian Constitution does not contain an express power authorizing Parliament to
make laws with respect to citizenship. However, Parliament still has power to legislate over
citizenship and such power arises partly from its status as a national Parliament and partly
from its express power to make laws with respect to immigration, naturalization and
aliens.33 It is also well settled that Parliament may rely upon the Alien’s Power alone ‘to
create and define the concept of Australian Citizenship.’34
Australian Citizenship is statutory recognition of one’s membership of the Australian
community. References in the Constitution to ‘the people of the Commonwealth’,35 are in
their context used as a ‘synonym for citizenship of the Commonwealth.’36 The Preamble of
the Citizenship Act expressly states this recognition with the words:
The Parliament recognises that Australian citizenship represents full and formal
membership of the community of the Commonwealth of Australia, and Australian
citizenship is a common bond, involving reciprocal rights and obligations, uniting all
Australians, while respecting their diversity.
The Citizenship Act provides several different methods for the acquisition of an Australian
Citizenship:
33 Hwang v The Commonwealth; Fu v The Commonwealth [2005] HCA 66 at [10]. 34 Koroitamana v The Commonwealth (2006) 227 CLR 31 at [48] (Kirby J), and followed at [11] (Gleeson CJ and Heydon J), following Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162. 35 See, the preamble and section 24 and 25 of the Australian Constitution. 36 Hwang v The Commonwealth; Fu v The Commonwealth [2005] HCA 66 at [14].
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1. Citizenship by birth- ‘A person born in Australia is an Australian citizen if and only
if: (a) a parent of the person is an Australian citizen, or a permanent resident, at the
time the person is born; or (b) the person is ordinarily resident in Australia
throughout the period of 10 years beginning on the day the person is born’.37
2. Citizenship by adoption- A person is an Australian citizen if they are adopted by a
person who is an Australian citizen at the time of the adoption; the person being
adopted is present in Australia as a permanent resident at that time, and they are
‘adopted under a law in force in a State or Territory’;38
3. Citizenship for abandoned children- ‘A person is an Australian citizen if the person
is found abandoned in Australia as a child, unless and until the contrary is
proved.’;39
4. Citizenship by incorporation of Territory- A person can become an Australian
citizen by the incorporation of a Territory into Australia with which the Minister
determines they have a connection;40
5. Citizenship by descent- A person can apply to become an Australian citizen if a
parent of theirs was an Australian citizen at the time of their birth;41
6. Citizenship for persons adopted in accordance with the Hague Convention on
Intercountry Adoption- A person ‘may be eligible to become an Australian
citizen…if they are adopted outside Australia in accordance with the Hague
Convention on Intercountry Adoption by at least 1 Australian citizen’;42
7. Citizenship by conferral- A person may apply to become an Australian citizen in
seven situations including:43 they satisfy ‘the general eligibility criteria’;44 they
‘have a permanent or physical or mental incapacity’;45 they are ‘aged 60 or over or
have a hearing, speech or sight impairment’;46 they ‘are aged under 18’;47 they
37 Australian Citizenship Act 2007 (Cth) s 12(1). 38 Australian Citizenship Act 2007 (Cth) s 13. 39 Australian Citizenship Act 2007 (Cth) s 14. 40 Australian Citizenship Act 2007 (Cth) s 15(1). 41 Australian Citizenship Act 2007 (Cth) s 16(1). 42 Australian Citizenship Act 2007 (Cth) s 19B (simplified outline) and 19C. 43 Australian Citizenship Act 2007 (Cth) s 19G (simplified outline). 44 Australian Citizenship Act 2007 (Cth) s 21(2). 45 Australian Citizenship Act 2007 (Cth) s 21(3). 46 Australian Citizenship Act 2007 (Cth) s 21(4). 47 Australian Citizenship Act 2007 (Cth) s 21(5).
12
‘were born to a former Australian citizen’;48 they ‘were born in Papua’;49 or, they
‘are a stateless person’;50
8. Resumption of citizenship- A person may be eligible to become an Australian citizen
if they had previously ceased to be an Australian citizen.51
2.2 The Alien’s Power
Section 51(xix) of the Constitution, the Alien’s Power, is a plenary power which could
potentially be used to empower legislation to denationalize existing Australian citizens who
answer the description of aliens by revocation of their citizenship. As stated by McHugh J
in Re Patterson; ex parte Taylor,52 ‘as long as a person falls within the description of an
alien, the power of Parliament to enact legislation affecting that person is unlimited unless
the Constitution otherwise prohibits the making of the law.’53 In Chu Kheng Lim v Minister
for Immigration, Local Government and Ethnic Affairs,54 McHugh J stated that, ‘[s]ubject
to the Constitution, [section 51(xix)] is limited only by the description of the subject
matter.’55 His Honour continued with the view that, ‘[s]ubject to any relevant constitutional
prohibitions, Parliament can make laws imposing burdens, obligations and disqualifications
on aliens which could not be imposed on members of the community who are not aliens.’56
Recent High Court authority on the Alien’s Power indicate its scope to extend even so far
as to justify, for example, indefinite detention of aliens despite the inhumane conditions
faced in the immigration detention centres;57 deportation of an alien despite the risk that he
48 Australian Citizenship Act 2007 (Cth) s 21(6). 49 Australian Citizenship Act 2007 (Cth) s 21(7). 50 Australian Citizenship Act 2007 (Cth) s 21(8). 51 Australian Citizenship Act 2007 (Cth) s 29. 52 (2001) 207 CLR 391(‘Re Patterson’). 53Ibid, 424; McHugh J affirmed this view in Al-Kateb v Goodwin [2004] HCA 37 at [41]; 54 (1992) 176 CLR 1 (‘Chu Kheng Lim’). 55 Ibid, 64; McHugh J affirmed this view in Al-Kateb v Goodwin [2004] HCA 37at [41’. 56 Ibid, 64. 57 See, eg, Al-Kateb v Goodwin [2004] HCA 37.
13
could be killed as a result;58 deportation of young children who had lived their whole life in
Australia to a country they are unfamiliar with;59 and the revocation of the Australian
citizenship of inhabitants of Papua upon Papua New Guinea’s independence.60 Considering
this virtually unlimited scope of the Alien’s Power,61 it is clear that if an Australian citizen
could be classed as an alien, Parliament could potentially revoke their citizenship for the
purpose of denationalization. The concept that a person could be an Australian citizen at
one stage and then classed as alien for the purpose of denationalization later on certainly
appears anomalous. However, such a view overlooks the significance of the alien/citizen
dichotomy.
2.3 The Alien/Citizen Dichotomy
The alien/citizen dichotomy provides that Parliament has the power to decide who will be
formal members of the Australian community by virtue of their Australian citizenship and
who will be aliens.62 The essence of the alien/citizen dichotomy was encapsulated by
Gleeson CJ and Heydon J in Koroitamana v The Commonwealth63 when they said:
58 See, Applicant SZANA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1407, particularly at [17] where the appellant notifies the Federal Court of the likelihood he will be killed if deported to Turkey; His fear later became an actuality when he was killed in August earlier this year. See, Asylum Seeker Shot Dead, 6 years after deportation (2008) ABC News <http://www.abc.net.au/news/s tories/2008/08/02/2322154.htm> at 26 November 2008. 59 See, eg, Koroitamana v The Commonwealth (2006) 227 CLR 31 and Singh v The Commonwealth (2004) 222 CLR 322. 60 Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439. 61 Subject to the Constitution. 62 Cf, Peter Prince, ‘Mate! Citizens, aliens and ‘real Australians’ –the High Court and the case of Amos Ame’ (2005) Parliament of Australia: Research Brief, 10. In this research brief, Prince argues that the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 rejected the alien/citizen dichotomy. However, it can be argued that this view is misguided because Parliament is free to decide who are aliens, subject to the restriction that they cannot include as an alien somebody who could not possibly answer this description per the limitation expressed by Gibbs CJ in Pochi v Macphee (1982) 151 CLR 101, 109. However, in this case, the appellant clearly did fall within the description of an alien, because as explained in section 2.5.4 of this Chapter, he was an inhabitant of an external territory. 63 (2006) 227 CLR 31 (‘Koroitamana’).
14
The power conferred by s 51(xix) is a wide power, under which the Parliament has the
capacity to decide who will be admitted to formal membership of the Australian
community, which now means citizenship. Within the limits of the concept of “alien” in
s 51(xix), it is for Parliament to decide who will be treated as having the status of alienage,
who will be treated as citizens, and what the status of alienage, or non-citizenship will
entail.64
This controversial concept has received much debate in the High Court in recent years
because it provides that somebody is either an Australian citizen or they are an alien
without any middle-ground.65 In particular, it has resulted in people who have lived in
Australia for many years, yet not formally received a statutory Australian citizenship, being
classed as aliens for the purpose of deportation. In Re Patterson66 the High Court decided
by a 4:3 majority that long term British migrants who did not have a statutory citizenship,
could nonetheless fall within a ‘special class of non-alien non-citizens’.67 However, this
view was reversed in Shaw v Minister for Immigration68 in which the majority of the High
Court held that British settlers who did not have a statutory citizenship were therefore
aliens. In this sense the court adopted a ‘dichotomous approach to alienage and Australian
citizenship.’69
While it is clear that Parliament can legislate to decide who will be treated as citizens and
who will have the status of alienage, the potential for Parliament to class existing
64 Ibid at [11] (citations omitted) (Gummow, Hayne and Crennan JJ), affirming Singh v The Commonwealth (2004) 222 CLR 322 at [4]. 65 See, Prince, above n 62, 9; See generally, Johanna Lynch, Defining “Aliens”: Recent High Court Perspectives on the Constitutional Aliens Power (LLB Honours Thesis, University of Western Australia, (2004), Chapter 2. 66 (2001) 207 CLR 391 (‘Re Patterson’). 67 See, Prince, above n 62, 9. 68 (2003) 218 CLR 28 (‘Shaw’). 69 Ibid, 69 (Kirby J); This view was followed in Singh v The Commonwealth (2004) 222 CLR 322 at [4] by Gleeson CJ when he stated that ‘the effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship was that alien in s 51(xix) of the Constitution had become synonymous with non-citizen.’; See, Genevieve Ebbeck, ‘A Constitutional Concept of Australian Citizenship’ (2004) 25 Adelaide Law Review 137 for a discussion on whether citizenship is a constitutional as well as statutory concept based on these cases. However, this article was written prior to the discussion in Singh which provided greater clarity as to the scope of the Alien’s Power which is considered in Chapter 2.4 below.
15
Australian citizens as aliens is not without limitation. The oft cited exception was stated by
Gibbs CJ in Pochi v Macphee70 in which he said:
Clearly the Parliament cannot, simply by giving its own definition of ‘alien’, expand the
power under s 51 (xix) to include persons who could not possibly answer the description of
‘aliens’ in the ordinary understanding of the word. 71
The limitation will hereafter be referred to as the ‘Pochi Limitation’.
2.4 The True Blue Australian
For the purpose of this thesis, a True Blue Australian is somebody who could not possibly
answer the description of an alien in the ordinary understanding of the word per the Pochi
Limitation. It is this category of person whom it is argued in Chapter 4 cannot, without a
preponderance of evidence indicating an intention to relinquish their existing or prospective
citizenship, be classed by Parliament as an ‘alien’ for the purpose of denationalization.
Further, as will be discussed further in Chapter 3, if a True Blue Australian has not moved
within the scope of the Alien’s Power, then no other power may be used to denationalize
them. The methods by which a True Blue Australian may be able to move within the scope
of the Alien’s Power for the purpose of denationalization will be analyzed in detail in
Chapter 4.
The scope of the Alien’s Power has been considered recently in a string of High Court
cases.72 In Singh v The Commonwealth,73 Hwang v The Commonwealth74 and
70 (1982) 151 CLR 101(‘Pochi’). 71 Ibid, 109; Followed in Koroitamana (2006) 227 CLR 31 at [12] and Singh v The Commonwealth (2004) 222 CLR 322at [4] by Gleeson CJ. 72 See, Koroitamana (2006) 227 CLR 31; Hwang v The Commonwealth, Fu v The Commonwealth [2005] HCA 66; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439; Singh v The Commonwealth (2004) 222 CLR 322; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Shaw v Minister for Immigration (2003) 218 CLR 28. 73 Singh v The Commonwealth (2004) 222 CLR 322 (‘Singh’). 74 Hwang v The Commonwealth, Fu v The Commonwealth [2005] HCA 66 (‘Hwang’).
16
Koroitamana75 the High Court held that children who were born in Australia to non-
Australian citizen parents and lived their whole lives here were still aliens and liable to
deportation because they were not eligible to hold Australian citizenships. In Re Minister
for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame,76 the High Court
held that it was constitutional to revoke the Australian citizenship of a resident of Papua
upon the achievement of Papua New Guinea’s independence because despite holding a
statutory Australian citizenship, Mr Ame was still within the scope of the Alien’s Power.
As mentioned above, the decision in Shaw77 confirmed the controversial proposition that
British settlers were liable to deportation because they did not hold Australian citizenship.
While these decisions provide guidance as to who does fall within the scope of the Alien’s
Power, it is now necessary to outline who could not possibly fall within the scope of the
Alien’s Power per the Pochi Limitation,78 and therefore who for the purpose of this thesis
can be classed as a True Blue Australian. Each of the recent string of cases considering
those who fall within the scope of the Alien’s Power focused on the question of ‘allegiance’
when determining whether somebody claiming non-alien status could be considered an
alien.79
The importance of ‘allegiance’ to the question of how far the scope of the Alien’s Power
extends was considered in the majority joint judgment of Gummow, Hayne and Heydon JJ
in Singh.80 In this case the court was asked to decide whether a six year old girl (‘Tania’)
who had been born in and lived her whole life in Australia, whose parents were not
Australian citizens and through her parents had citizenship of India, could fall within the
Alien’s Power for the purpose of deportation. The joint judgment considered that Tania fell
within the Alien’s Power and therefore the provisions of the Migration Act81 requiring her
75 Koroitamana (2006) 227 CLR 31. 76 (2005) 222 CLR 439 (‘Ex Parte Ame’). 77 Shaw (2003) 218 CLR 28. 78 See, Chapter 2.3 above. 79 See, Koroitamana v The Commonwealth (2006) 227 CLR 31; Hwang v The Commonwealth, Fu v The Commonwealth [2005] HCA 66; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439; Singh v The Commonwealth (2004) 222 CLR 322; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Shaw v Minister for Immigration (2003) 218 CLR 28. 80 Singh (2004) 222 CLR 322. 81 Migration Act 1958 (Cth).
17
deportation to be valid because she was considered to ‘owe allegiance to another sovereign
power’, by virtue of her Indian citizenship. In particular they stated:
The central characteristic of that status is, and always has been, owing obligations
(allegiance) to a sovereign power other than the sovereign power in question (here
Australia). That definition of the status of alienage focuses on what it is that gives a person
the status: owing obligations to another sovereign power. It does not seek to define the
status, as the plaintiff sought to submit, by pointing to what is said to take a person outside
its reach.82
This reasoning applies an exclusive (owing allegiance elsewhere) rather than an inclusive
(owing allegiance to Australia) criterion for allegiance.83 However, their Honours further
stated that ‘by the end of the nineteenth century… “aliens” included those who owed
allegiance to another sovereign power, or who, having no nationality, owed no allegiance to
any sovereign power.’84 This obiter reference to an alien including a person ‘who, having
no nationality, owed no allegiance to any sovereign power’ indicates that the criterion for
deciding where allegiance is owed is not based purely on exclusive factors, but can also
take into account inclusive factors. This is because a stateless person does not owe
allegiance to Australia (inclusive) or elsewhere (exclusive).
This reasoning is supported by the decision in Koroitamana85 in which two children, who
were born in Australia to parents who were not Australian citizens, were considered to fall
within the Alien’s Power for the purpose of deportation. This was because at the time they
owed no allegiance to a foreign power despite their Fijian citizen parents having the right
under the Fijian Constitution to register them as citizens.86 The High Court of Australia
held that despite being born in Australia and having no other nationality, the children did
not owe allegiance to Australia and were therefore aliens. ‘The settled position now appears
to be that an alien is a person owing no allegiance to Australia, either by virtue of owing
82 Singh (2004) 222 CLR 322 at [200]. 83 Michelle Foster, ‘Membership in the Australian Community: Singh v The Commonwealth and its Consequences for Australian Citizenship Law’ (2006) 34 Federal Law Review 161, 179. 84 Singh (2004) 222 CLR 322 at [190]. 85 Koroitamana (2006) 227 CLR 31. 86 Ibid at [15] (Gleeson CJ and Heydon J).
18
foreign allegiance, or by owing no allegiance at all.’87 The following section seeks to
provide guidance on who can be said to owe a sufficient enough degree of allegiance to
Australia to be classed as outside the scope of the Alien’s Power.
2.5 Qualitative Assessment of Allegiance to Australia
Present authority does not draw a distinct line between who can be classed as an alien, by
having a lack of permanent allegiance to Australia and who can be classed as a True Blue
Australian.88 It can be argued that the test for whether somebody falls outside the scope of
the Alien’s Power depends upon a qualitative assessment of their allegiance to Australia.89
While it is difficult to formulate a conceptual basis for distinguishing aliens from those who
could not possibly answer this description, the following analysis aims to at least provide a
descriptive list of who falls into each category.
2.5.1 Jus Soli and Jus Sanguinis
In Singh,90 the majority held that ‘at the time the Constitution was written and thereafter’,
Parliament’s determination of who had Australian nationality and who was alien was made
up of a mixture of two criteria: jus soli (right of the soil; place of birth) and jus sanguinis
(right of descent).91 It can be argued that somebody who has a connection to Australia by
both place of birth and descent, and who has not done anything more to nullify their
allegiance to Australia, could not possibly answer the description of an alien and would
therefore be classed as a True Blue Australian. This view is supported by the following
87 Irving, above n 6, 150. 88 Sydney Tilmouth QC, ‘Citizenship as a Constitutional concept: Singh v Commonwealth of Australia and Rasul v Bush, President of the United States’ (2005) 26 Australian Bar Review 193, 193. 89 Foster, above n 83, 182. 90 Singh (2004) 222 CLR 322. 91 See, Koroitamana (2006) 227 CLR 31 at [62] (Kirby J) interpreting the ratio of the majority in Singh.
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statement by Gaudron J in Ex parte Te92 in which she said: ‘s 51(xix) of the Constitution
does not permit the Parliament to legislate so as to provide that a person born in Australia
to an Australian citizen is an alien.’93 This view was further supported in Singh94 by Kirby J
when he said:
Should some future Parliament attempt to push the ‘‘aliens’’ power into extreme instances,
so as to deem a person born in Australia an “alien” despite parental or grand-parental links
of descent and residence, this Court can be trusted to draw the necessary constitutional
line.95
It is clear from the decisions in Singh,96 Koroitamana97 and Hwang98 that being born in
Australia (jus soli) is not enough to bring one outside the reach of the Alien’s Power to be
classed as a True Blue Australian. In each of these cases the requirement for the person
born in Australia to be an Australian citizen only if a parent of the person was, at the time
of the birth, ‘an Australian citizen or permanent resident’, or if the person had been
ordinarily resident in Australia throughout a period of ten years commencing on the day the
person was born, was constitutional.99 The possibility for Parliament to increase the period
of years somebody born in Australia without links of jus sanguinis to Australia had to be
ordinarily resident in Australia was argued by the appellant in Singh.100 Kirby J made
reference to this argument when he said:
…if the Parliament could provide…that a person claiming citizenship, although born in
Australia must have been “ordinarily resident” in the country throughout a period of ten
years, it could abolish that alternative. It could increase the precondition of lawful residence
92 Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Te; Ex parte Dang (2002) 212 CLR 162 (‘Ex Parte Te’). 93 Ibid at [54]. 94 Singh (2004) 222 CLR 322. 95 Ibid at [269]. 96 Ibid. 97 Koroitamana (2006) 227 CLR 31. 98 Hwang v The Commonwealth, Fu v The Commonwealth [2005] HCA 66. 99 The newly enacted Australian Citizenship Act 2007 (Cth) maintains this criterion in section 12(1)(b). 100 Singh (2004) 222 CLR 322.
20
from ten years to twenty, fifty or even more years and narrow still further the notion of
“ordinarily resident”.101
Unfortunately, his Honour did not provide guidance as to whether Parliament could at a
later stage increase the number of years for a person born in Australia to be ordinarily
resident in Australia to twenty, fifty or more years to qualify for Australian citizenship.
Instead, he held that the current requirement for birth in Australia in addition to a
requirement to be ordinarily resident in Australia for a period of ten years was not
‘extreme’ and thereby constitutional.102
While both jus soli and jus sanguinis can be used by Parliament to decide who will be
recognized as Australian citizens, it is argued that jus sanguinis is more determinative than
jus soli and that jus sanguinis alone is sufficient. A connection to Australia by jus sanguinis
without jus soli is presently recognized by the Citizenship Act which provides that ‘[a]
person born outside Australia on or after 26 January 1949 is eligible to become an
Australian citizen if: (a) a parent of the person was an Australian citizen at the time of the
birth’.103 Although this reference to ‘a parent’ authorizes one parent to have been an
Australian citizen at the time of birth, it is unclear whether Parliament could at a future
stage require both parents to have been Australian citizens at the time of birth. This
possibility was raised by the appellants in Singh104 and paraphrased by Kirby J when he
said:
If the Parliament could provide…that one parent of a person born in Australia must be an
Australian citizen or permanent resident, it could, by amendment, provide that additionally
a parent, or both parents or grandparents and possibly great-grandparents had themselves to
have been Australian citizens.105
However, his Honour did not comment on whether this possibility for a stricter test of jus
sanguinis could potentially be constitutional. In any case, the possibility for a requirement 101 Ibid at [241]. 102 Ibid, at [270]. 103 Australian Citizenship Act 2007 (Cth) s 16(2). 104 Singh (2004) 222 CLR 322. 105 Ibid at [241] (citations omitted).
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that both parents have been Australian citizens at the time of birth or even grandparents or
great-grandparents appears unlikely. This view gains implicit support from Gaudron J in
her statement in Ex parte Te above,106 which required only one parent to be an Australian
citizen and Kirby J’s view in Singh107 that parental generally or even grand-parental links
of descent were sufficient to bring somebody outside the scope of the Alien’s Power.108
The Citizenship Act provides that a person born in Australia is an Australian citizen if ‘a
parent of the person is an Australian citizen, or a permanent resident, at the time the person
is born’.109 This criterion indicates that being born in Australia in addition to having a
parent who is a ‘permanent resident’ of Australia is enough to qualify as an Australian
citizen. It is not clear whether having a parent who is a permanent resident, without the
person being born in Australia, would be sufficient. The Act does not presently provide for
a person born outside Australia to an Australian permanent resident to be eligible for
Australian citizenship and this disqualification cannot be argued to be an extreme use of the
Alien’s Power.
2.5.2 Citizenship of Another Nation on Birth
Somebody who fits the description outlined above, by owing allegiance to Australia
through either jus soli, jus sanguinis or a combination of both, may also be a citizen of
another nation. For example, India grants citizenship automatically to children who have at
least one Indian parent110 and, as mentioned in Chapter 1 in relation to the ITAR
regulations, Sudan grants automatic citizenship to people born in Sudan, even if it is in an
aero plane in Sudanese airspace.111 It would be unjustifiable for these exclusive factors to
106 Ex parte Te (2002) 212 CLR 162 at [54]. 107 Singh (2004) 222 CLR 322. 108 Ibid at [269]. 109 Australian Citizenship Act 2007 (Cth) s 12(1)(b) (emphasis added). 110 See generally, Singh (2004) 222 CLR 322. 111 See, Background Briefing, Defence and Discrimination (2008) ABC Radio National <http://www.abc.net. au/rn/backgroundbriefing/stories/2008/2339793.htm> at 22 November 2008.
22
outweigh the inclusive factors indicating an allegiance to Australia when the person had no
control over their automatic acquisition of the other nation’s nationality. It is therefore clear
that automatic citizenship on birth in these circumstances alone is not enough to bring
somebody within the Alien’s Power and therefore prevent them from being classed as True
Blue Australians.
2.5.3 Naturalized Australian Citizens
‘Naturalization’ can be defined as the act of admitting a foreigner to citizenship.112 In this
sense, the word ‘foreigner’ is synonymous with the term ‘alien’ used in the Australian
Constitution. As confirmed by the High Court in Pochi,113 naturalization can only be
achieved by an Act of Parliament.114 An alien who has gone through the naturalization
process and become an Australian citizen could still potentially be within reach of the
Alien’s Power for the purpose of denationalization despite presently being considered a
non-alien. This view is supported by the following statement by Starke J in the 1920 case of
Meyer v Poynton115 which was cited with approval in Singh:
Under the Naturalization Act power is given to admit the nationals of other Powers to
Australian citizenship and thus confer upon them certain rights and privileges, and we
reserve ourselves, or rather to the Governor-General, the power to take away that
citizenship and those rights and privileges in certain cases. It is said that depriving a person
of citizenship so acquired is not a law relating to naturalization. I am quite unable to agree
with the contention, or to consider that point is susceptible of reasonable argument. It seems
to me that if the power given by the Naturalization Act to admit to Australian citizenship is
within the power to make laws with respect to naturalization, so must authority to withdraw
that citizenship on specified conditions be also within that power.116
112 Thorndike-Barnhart (ed), The World Book Dictionary (1991). 113 Pochi (1982) 151 CLR 101. 114 Ibid, 111. 115 (1920) 20 CLR 490. 116 Ibid, 440-1 (emphasis added); Singh (2004) 222 CLR 322 at [115]-[116] (McHugh J).
23
A similar view was expressed by Gaudron J in Nolan v Minister for Immigration and
Ethnic Affairs117 in which she said, ‘[t]he power to legislate with respect to naturalization
and aliens seems necessarily to carry with it a power to revoke the grant of
naturalization.’118 It is therefore clear that the present line of authority supports the
contention that a naturalized Australian citizen will always remain potentially within reach
of the Alien’s Power and therefore cannot answer the description of a True Blue Australian
for present purposes.
2.5.4 Citizens of External Territories Under the Power of Australia
It is also clear that inhabitants of external territories under the power of Australia such as
former territories, Papua and Fiji, do not form part of the ‘people of the Commonwealth’
and therefore cannot be classed as True Blue Australians. In Ex parte Ame,119 the High
Court held per curium that the Australian government was entitled to withdraw the
appellant’s (‘Mr Ame’) Australian citizenship upon the achievement of Papua New
Guinea’s independence. The joint judgment of Gleeson CJ, McHugh, Gummow, Hayne,
Callinan and Heydon JJ considered that any references to ‘people of the Commonwealth’ in
the Constitution120 did not operate to protect Mr Ame’s citizenship because ‘they do not
have the effect of binding Australia to any particular form of relationship with all
inhabitants of all external territories.’ 121
117 Nolan v Minister of State for Immigration and Ethic Affairs (1988) 165 CLR 178. 118 Ibid, 192. 119 Ex parte Ame (2005) 222 CLR 439. 120 Covering clause 3, covering clause 5 and section 24 of the Australian Constitution. 121 Ex parte Ame (2005) 222 CLR 439 at [30] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ).
24
CHAPTER 3 Constitutional Restrictions on Denationalization
With the guidance of who can be classed as True Blue Australian outlined in Chapter 2, it is
now necessary to consider the constitutional restrictions which operate to restrict the
circumstances in which a True Blue Australian can be denationalized. Namely, if they do
not subsequently move within the scope of the Alien’s Power then no other express or
implied power in the Constitution may be relied to enact legislation providing for their
denationalization. Further, denationalization will be unconstitutional if it is intended for a
punitive purpose.
3.1 Restriction on Powers Other than the Alien’s Power
The practical effect of the alien/citizen dichotomy122 is that if a True Blue Australian is
denied their existing or prospective Australian citizenship they would become an ‘alien’.
As the Pochi Limitation123 prevents this result from being achieved by the Alien’s Power, it
can be argued that no other express or implied Federal power in the Constitution may be
used to deny their existing or prospective Australian citizenship. This includes the
defence,124 external affairs125 and implied nationhood126 powers which the Australian
Government may seek to rely on to support denationalization in the pursuit of protecting
national security interests.
122 Explained in Chapter 2.3 above. 123 Ibid. 124 Australian Constitution s 51(vi). 125 Australian Constitution s 51(xxix). 126 See, Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 397.
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As examined in the following sections of this Chapter, this postulated implied limitation
arises from a combination of the following factors: the makers of the Constitution
deliberately omitted the inclusion of an express power over citizenship in the Constitution
and inserted the alien’s and naturalization power in the alternative because of the fear that
an express citizenship power could be used to unjustly deprive people of their citizenship;
there are fundamental notions of nationality expressed in the Constitution; and, a power in
the Constitution cannot be used to give a True Blue Australian alien characteristics as a
circuitous device to bring them within the scope of the Alien’s Power for the purpose of
denationalization.
This postulated implied limitation may be considered a variation on the Fourteenth
Amendment in the United States Constitution which provides that, ‘[a]ll persons born or
naturalized in the United States and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside.’127 This Amendment was construed in
Afroyim v Rusk128 by the United States Supreme Court to ‘protect every citizen of [the
United States] against a congressional forcible destruction of his citizenship, whatever his
creed, colour or race’ and it was held that every citizen has a ‘constitutional right to remain
a citizen…unless he voluntarily relinquishes that citizenship.’129 The possibility for an
implied equivalent to the Fourteenth Amendment in the Australian Constitution was
considered by Kirby J in Singh130 but ultimately rejected because the makers of the
Australian Constitution deliberately ‘omitted an express guarantee similar to that adopted
in the United States.’ 131 His Honour therefore considered it to be ‘contrary to the normal
canons of constitutional interpretation… to [now] insert an equivalent guarantee as implicit
in the word “aliens” which the Founders refrained from expressing.’ 132
It is conceded that to imply an equivalent to the Fourteenth Amendment in its entirety in to
the Australian Constitution would be inconsistent with ‘normal canons of constitutional
127 United States Constitution amend. XIV, § 1. 128 387 U.S. 253 (SC, 1967). 129 Ibid, 268 (emphasis added); Followed in Vance, Secretary of State v Terrazas 444 U.S. 252, 256 (SC, 1980). 130 Singh (2004) 222 CLR 322. 131 Ibid at [260]. 132 Ibid at [261].
26
interpretation’. The Fourteenth Amendment expressly protects people who have acquired
citizenship either by being ‘born’ in the United States, or through the ‘naturalization’
process from being denationalized without the citizen’s assent.133 This protection is clearly
different from the implied protection postulated to exist in the Australian Constitution
which operates to protect True Blue Australians from denationalization legislation. This is
because, as examined in Chapter 2 above, the status of True Blue Australian cannot be
gained through the naturalization process or through birth on Australian soil, without an
additional link to Australia through descent.
However, the implied protection advocated here could be considered a modified version of
the Fourteenth Amendment which only applies to the extent that it protects those who could
not possibly answer the description of aliens: True Blue Australians. Therefore, it can be
argued that the United States cases considering the restriction on denationalization imposed
by the Fourteenth Amendment are highly persuasive when considering the potential
constitutionality of various grounds for denationalization of True Blue Australians in
Chapter 4 below.
3.1.1 Omission of an Express Power Over Citizenship
The Constitution does not confer a ‘specific power on the federal Parliament to make laws
with respect to citizenship.’ 134 The inclusion of such a power was proposed by Dr. John
Quick and debated at the Melbourne Convention in 1898, but ultimately rejected by the
delegates. 135 In Singh,136 McHugh J considered the delegates’ reasons for not including the
express power over citizenship and concluded that they did not do so because ‘they feared
133 See Afroyim 387 U.S. 253 (SC, 1967). 134 Singh (2004) 222 CLR 322 at [45] (McHugh J). 135 Ibid; Official Record of the Debates of the Australasian Federal Convention (Melbourne), 2 March 1898, 1752. 136 Singh (2004) 222 CLR 322.
27
that the Commonwealth could deprive a person of the citizenship that was acquired by birth
in a State.’ 137
Instead of an express power over citizenship, the makers of the Constitution chose to
include the ‘naturalization and alien’s power’ under section 51(xix) which gave Parliament
power to determine who could be classed as aliens and to admit them to the ‘people of the
commonwealth’ through the naturalization process.138 By including a narrow power over
naturalization and aliens as opposed to a broader power covering citizenship generally, the
makers of the Constitution have given the Parliament of the Commonwealth a ‘limited
specific power to control the entry of persons into Australia and to regulate the rights and
privileges of aliens in Australia.’ 139 As stated by the Pochi Limitation,140 the Alien’s Power
cannot now be extended by Parliament to cover people who could not possibly answer the
description of aliens: True Blue Australians.
3.1.2 Fundamental Notions of Nationality Expressed in the Constitution
If the Alien’s Power cannot be used to denationalize a True Blue Australian, then it can be
argued that no other express or implied power may be used to achieve the same result. In
his dissenting judgment in Singh,141 McHugh J considered the applicant could not answer
the description of an alien because of her birth in Australia and therefore no other power
could be used to support a decision providing for her deportation. In particular he stated:
In addition, assuming that the implied nationhood power extends to making laws
concerning citizenship or that the external affairs power is the source of such laws, those
powers cannot extend to removing the citizenship or nationality that arises from being born
in Australia.142
137 Ibid at [105]. See also, [135]. 138 Ibid at [134] (McHugh J). 139 Ibid. 140 See, Chapter 2.3 above. 141 Singh (2004) 222 CLR 322. 142 Ibid at [135].
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Although the majority in this case rejected his Honour’s view that being born in Australia
entitled the appellant to a non-alien status which could not be deprived by the Alien’s or
other Federal powers, it can be argued that this reasoning still applies to the extent that it
prevents the deprivation of a True Blue Australian’s non-alien status. This is because, as
outlined in Chapter 2 above, while being born in Australia is not enough to satisfy the
proposed qualitative test of allegiance to Australia,143 the True Blue Australian by their
very nature does satisfy this test and his Honour’s reasoning survives to support an implied
limitation on powers other than the Alien’s Power to that extent. It can be argued that this
reasoning therefore takes precedence over other arguments concerning denationalization
based on the other powers such as, for example, the defence,144 implied nationhood145 and
external affairs146 powers.147
In Hwang,148 decided in 2005 the following year, the first case to challenge the validity of
the Australian Citizenship Act (1948),149 McHugh J again expressed support for an implied
limitation on the use of powers other than the Alien’s Power from being used to
denationalize those whom we refer to as True Blue Australians. In particular, he
acknowledged that it was within the power of Parliament to determine who were among the
people of the Commonwealth but considered that such power could not enable Parliament
to ‘exclude from citizenship, those persons who are undoubtedly among “the people of the
Commonwealth”.’150 It is clear that his Honour’s reference to people who are undoubtedly
‘people of the Commonwealth’ refers to those who cannot possibly answer the description
of aliens: True Blue Australians.
The judgment of Kirby J in Ex parte Ame,151 also decided in 2005, supports this contention.
Ex parte Ame concerned the revocation of the appellant’s Australian citizenship derived
143 See, Chapter 2.5 above. 144 Australian Constitution s 51(vi). 145 Australian Constitution s 51(xxix). 146 See, Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 397. 147 See, Castan QC above n 17, 793, as a source for alternative arguments based on the implied nationhood power. 148 Hwang [2005] HCA 66. 149 Ibid. at [19]. 150 Ibid at [18]. 151 Ex parte Ame (2005) 222 CLR 439.
29
from birth on Papua New Guinea’s (‘PNG’) independence in 1975. In this case, the
territories power (s 122 of the Constitution) was relied on to give effect to legislation
providing for PNG’s independence and therefore unilaterally provided that the applicant
owed allegiance to PNG rather than Australia. By using the territories power to give the
applicant alien characteristics, the Alien’s Power was then used to justify the revocation of
his Australian citizenship.152 In considering whether such revocation offended fundamental
notions of nationality expressed in the Constitution, Kirby J stated:
…it is unnecessary to consider the question whether the foregoing interpretation of the
specific heads of legislative power offends any fundamental notions concerning nationality,
expressed or implied in the Constitution, to which the specific legislative powers are
subject. I do not doubt that there are fundamental notions of nationality, sufficiently
expressed or necessarily implied, in the Australian Constitution. However, the limited and
special circumstances of the applicant’s case do not require the refinement of such
limitations.153
Therefore, although not applicable to the appellant in that case, his Honour acknowledged
that there are express fundamental notions in the Constitution which could operate to limit
the interpretation of powers other than the Alien’s Power in a suitable case. The express
‘fundamental notions’ in the Constitution to which his Honour referred, included references
to a ‘subject of the Queen’, or a member of the ‘people of the Commonwealth’.154
References to these phrases are found in covering clause 3, covering clause 5 and section
24 of the Constitution.155 It is necessary to note that while the territories power can be used
for the purpose of authorizing legislation providing for the revocation of the Australian
citizenship of an inhabitant of an external territory, the joint judgment of Gleeson CJ,
McHugh, Gummow, Hayne, Callinan and Heydon JJ made clear that it could not be used to
152 Ibid at [37] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ). 153 Ibid at [120] (emphasis added) (citations omitted). 154 Ibid. These references were contained the footnotes of the judgment; See, Castan QC, above n 17, 789-792 for an argument based on the same express references to the ‘people of the Commonwealth’ and ‘subjects of the Queen’ in the Constitution. 155 Ibid at [30] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ).
30
achieve the same purpose in relation to internal territories.156 The use of the territories
power therefore provides no threat to the True Blue Australian.
The judgment of Kirby J made clear that his decision supporting the revocation of
citizenship in that case, ‘affords no precedent for any deprivation of constitutional
nationality of other Australian citizens whose claim on such nationality is stronger in law
and fact than that of the applicant.’157 It can be argued that True Blue Australians, who by
their very nature satisfy the postulated qualitative test of allegiance to Australia, would
satisfy this test of having a claim to nationality which is strong in law and fact and thereby
have their Australian citizenship impliedly protected by the Constitution. This view is
further supported by his Honour’s judgment in Singh158 in which he said:
Should some future Parliament attempt to push the “aliens” power into extreme instances,
so as to deem a person born in Australia an ‘‘alien’’ despite parental or grand-parental links
of descent and residence, this Court can be trusted to draw the necessary constitutional
line.159
His Honour provided even further support for an implied restriction on the use of powers
other than the Alien’s Power being used to achieve denationalization in Ex parte Ame160
when he said:
The deprivation of nationality, including nationality by birth and especially in cases
affecting minority ethnic communities, has been such a common affront to fundamental
rights that I would not, without strong persuasion hold it possible under the Constitution of
the Australian Commonwealth. 161
In light of these judgments it can be argued that there is a strong and well founded case to
support the existence of an implied protection in the Constitution which prevents express or
156 Ibid. 157 Ibid at [117] (emphasis added). 158 Singh (2004) 222 CLR 322. 159 Ibid at [269]. 160 Ex parte Ame (2005) 222 CLR 439. 161 Ibid at [96].
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implied powers from being used to denationalize somebody who could not possibly answer
the description of an alien: The True Blue Australian.
3.1.3 Circuitous Device
Where a power other than the Alien’s Power cannot be used to denationalize somebody
who clearly does not answer the description of an alien, Parliament may try to use another
power to assign the person alien characteristics which in turn bring them within the
description of an alien to support denationalization legislation. As discussed above,162 this
possibility was explored in Ex parte Ame in which the appellant argued he was a person of
the Commonwealth and therefore the territories power could not be used to separate PNG
from Australia, which in turn would bring him within the Alien’s Power for the purpose of
revoking his Australian citizenship. This argument was rejected because as an inhabitant of
an external territory, the appellant never truly fell outside the definition of an alien, i.e. he
was never classed as a True Blue Australian.163
Although this argument did not succeed in Ex parte Ame it can be argued that it is still valid
to the extent it could apply to the True Blue Australian. Some of the powers the appellant
argued to be limited by this restraint were the territories power (s 122), ‘the implied
nationhood power, the external affairs, [and] any other sub-section of s 51’.164 As stated by
Kirby J:
In this respect, the applicant invoked the reasoning, adopted in another context, by which
the Court had declined to permit attempted circumvention of the “just terms” guarantee in
162 See, Chapter 3.12. 163 Ex parte Ame (2005) 222 CLR 439 at [119] (Kirby J), [37]-[38] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ). 164 Ibid, 443.
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s 51 (xxxi) of the Constitution by the adoption of a “circuitous device” of legislation relying
on some other, specific head of power to effect the acquisition.165
Therefore, it can be argued that Parliament could not bypass the Pochi Limitation166 by
using, for example, the external affairs power to sign an international agreement deeming
True Blue Australians to have a higher level of allegiance to another nation than Australia
for the purpose of classing them as aliens to support denationalization legislation.
3.2 Denationalization for a Punitive Purpose
There is a limitation inherent in the Australian Constitution which can be likened to the
Eighth Amendment of the United States Constitution which operates to prevent the
government from inflicting ‘cruel and unusual punishments’.167 The Australian
Constitution equivalent to this restriction arises from the separation of powers doctrine and
prevents the Australian Government from imposing penalties which are within the power of
the Judiciary. Chapter 4 of this thesis, which considers the constitutionality of various
grounds for denationalization, will therefore import the United States cases considering the
Eighth Amendment to argue whether denationalization in certain circumstances will most
likely be for a punitive or non-punitive purpose.
The separation of powers doctrine impacts upon the Alien’s Power because, although
plenary, it is still ‘subject to [the] Constitution’.168 As established in the joint judgment of
Brennan, Deane, Deane and Dawson JJ in Chu Kheng Lim,169 this means that no part of the
Judicial power in Chapter III of the Constitution can be conferred on the Executive
165 Ibid at [99] (citations omitted); The cases relevant to this argument were footnoted as, Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349 per Dixon J, and Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371-2. 166 See, Chapter 2.3 above. 167 United States Constitution amend. VIII; The Eighth Amendment states that, ‘Excessive bail shall be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.’ 168 Australian Constitution s 51. 169 Chu Kheng Lim (1992) 176 CLR 1.
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Government, and therefore the use of the Alien’s Power is restricted to this degree.170 It can
be argued that denationalization for a punitive purpose is a function to be exercised only by
the Judiciary. Therefore, even if a True Blue Australian has subsequently moved within the
scope of the Alien’s Power, as discussed in Chapter 4 of this thesis, if the Executive
Government denationalizes them for a punitive purpose, the decision will be
unconstitutional to the degree it offends Chapter III of the Constitution.
The separation of powers doctrine has recently been considered by the High Court of
Australia in several cases in the context of immigration detention of ‘aliens’ and whether
such detention was for a punitive or non-punitive purpose.171 It is conceded that not all
legislative provisions authorizing the Executive Government to act for a punitive purpose
violate the separation of powers doctrine and that whether a punishment can only be
ordered by the Judiciary will depend on the type of punishment and what it is for. For
example, the imposition of taxes by the government may be considered by many to be
punitive but its imposition is still constitutional because ‘[p]unishment, in the sense of the
inflicting of involuntary hardship or detriment by the state, is not an exclusively judicial
function.’ 172 On the other end of the spectrum, ‘deprivation of liberty’, for example,
‘usually (although not always) follows adjudgment of criminal guilt’ and in this sense is a
judicial function. 173
It can be argued that if ‘deprivation of liberty’ upon judgment of criminal guilt is a judicial
function, then the denial of citizenship for a perceived wrong doing is also a judicial
function. This is because deprivation of citizenship could potentially lead not only to
indefinite deprivation of liberty in an immigration detention centre on the ground that the
person is stateless,174 but the denial of virtually all rights associated with citizenship.
However, it is conceded that if a True Blue Australian has subsequently moved within the
170 Ibid at [26]-[27]. 171 See e.g., Al-Kateb v Goodwin [2004] HCA 37 and Re Woolley and Another; Ex parte APPLICANTS M276/2003 (by their next friend GS) [2004] HCA 49 (‘Re Woolley’). 172 Re Woolley [2004] HCA 49 at [17] ( Gleeson CJ). 173 Ibid at [17] (Gleeson CJ); Other examples include where detention is for a protective purpose such as involuntary mental health commitment; anti-terrorism control orders; and immigration detention . 174 See e.g., Al-Kateb v Goodwin [2004] HCA 37.
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scope of the Alien’s Power and the deprivation of citizenship is for a non-punitive purpose,
it will be constitutional unless it offends another limitation in the Constitution.
This proposition does not advocate a test of proportionality when determining whether the
denial of citizenship is for a punitive or non-punitive purpose, but rather argues that the
denial is either punitive and can only be exercised by the Judiciary or non-punitive in
which case it may be exercised by the Executive Government. 175 Further, a law authorizing
the denial of a True Blue Australian’s citizenship for a non-punitive purpose which goes
further than is necessary to achieve this purpose and becomes punitive will violate the
separation of powers doctrine.176 In ascertaining whether the purpose of the
denationalization is punitive or non-punitive, the court is concerned with the substance
rather than the form of the enabling provision.177
Further, while the adverse effect of the denationalization may provide a rebuttable
inference that it was done for a punitive purpose, the adverse effect alone is not indicative
of its purpose.178 Therefore, even though a True Blue Australian could potentially become
stateless on denationalization and subject to the grossly inhumane conditions of an
immigration detention centre indefinitely, this ‘effect’ of the denationalization does not
necessarily indicate it was done for a punitive purpose.179 As will be examined further in
the following Chapter, whether the denationalization is more likely to be considered for a
punitive or non-punitive purpose depends on the ground for revocation.
175 Re Woolley [2004] HCA 49 at [80] (McHugh J). 176 Ibid at [78] (McHugh J). 177 Ibid at [82] (McHugh J). 178 Ibid. 179 See e.g., Al-Kateb v Goodwin [2004] HCA 37.
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CHAPTER 4
Grounds for Denationalization
The following analysis will use the constitutional restrictions articulated in Chapter 3 of
this thesis to explore the constitutionality of various grounds for denationalization which
presently or could potentially exist in Australia. The analysis will primarily focus on
grounds which are likely to be justified by the Australian Government as necessary to
protect Australia’s national security interests. However, other potential grounds for
denationalization will also be considered. Primarily United States cases will be examined to
predict the constitutionality of such existing or potential future denationalization legislation
to the extent they could apply to a True Blue Australian. This is because the implied
restrictions in the Australian Constitution argued in Chapter 3 of this thesis are similar to
Amendments Eight and Fourteen which the United States Supreme Court has used to
restrict the circumstances in which denationalization legislation will be held constitutional.
4.1 Express Words
The term ‘expatriation’ refers to a citizen’s ‘voluntary relinquishment of nationality.’180
Section 33(1) of the Citizenship Act provides that ‘[a] person may make an application to
the Minister to renounce the person’s Australian Citizenship.’ It is clear that this provision
would be supported by the Alien’s Power because the person intends to give up their
allegiance to Australia which would in turn bring them within the definition of an alien.181
180 Goodman, above n 10, 344 n.14. 181 See Castan QC, above n 17, 794 for Parliamentary advice to this effect.
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4.2 Conduct
While express expatriation by the True Blue Australian indicating an intention to no longer
be a part of the Australian community would be supported by the Alien’s Power, whether
the government could legislate to withdraw the citizenship based on an ‘inference’ drawn
on their conduct is less clear. In contrast to expatriation, as stated above, denationalization
is the ‘forcible divestiture of an individual’s citizenship by the government.’182 However,
the government may ‘use the term expatriation for government actions that are actually
denationalization under the premise that deprivation of citizenship is merely a formalization
of an individual’s voluntary action to renounce citizenship.’183
Whether the denial of citizenship is denationalization or expatriation has been considered at
length in a series of United States cases.184 The current position in the United States has
been stated by the Supreme Court in Vance, Secretary of State v Terrazas185 in which it
confirmed that ‘every citizen has a constitutional right to retain his citizenship unless he
voluntarily relinquishes it.’186 The Court held that the requirement for ‘voluntariness’
requires ‘specific assent’ from the person whose citizenship is at issue.187 As will be
examined in more depth below, legislation often lists certain ‘expatriating acts’ which upon
performance are used as evidence of the person’s specific assent to relinquish their
citizenship. The Supreme Court in Terrazas held that ‘expatriating acts cannot be used as
conclusive evidence of specific intent and there can be no presumption that an act has been
performed with the intent to relinquish citizenship.’188 While the government can infer that
certain conduct indicates an intention on the part of the person to relinquish their
citizenship, it was clarified in Terrazas that, ‘[t]he burden is on the government to prove
182 Goodman, above n 10, 344 n.14. 183 Graham, above n 14, 597. 184 See, eg., Trop v Dulles 356 U.S. 86 (SC, 1958), Afroyim v Rusk 387 U.S. 253 (SC, 1967), Vance v Terrazas 444 U.S. 252 (SC, 1980); See, Aleinikoff above n 11, for a general discussion of these cases. 185 Vance, Secretary of State v Terrazas 444 U.S. 252 (SC, 1980) (‘Terrazas’). 186 Graham, above n 14, 604; See, Terrazas 444 U.S. 252 (SC, 1980), 259-260. 187 Graham, above n 14, 604; See, Terrazas 444 U.S. 252 (SC, 1980), 268. 188 Graham, above n 14, 604; See, Terrazas 444 U.S. 252 (SC, 1980), 261, 268.
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specific intent to relinquish citizenship by a preponderance of the evidence.’189 This test
will hereafter be referred to as the ‘preponderance of evidence test’.
Although this decision was based on the United States Constitutional protection of
citizenship for ‘citizens of the United States’ contained in the Fourteenth Amendment, it
can be argued that it is equally applicable to the Australian Constitution. This is because, as
discussed in Chapter 3.1 above, there is an implied restriction in the Australian Constitution
which operates to prevent the government from denationalizing a True Blue Australian
unless they have subsequently moved within the scope of the Alien’s Power. Based on the
decision in Terrazas, it can therefore be argued that a True Blue Australian can only move
within the scope of the Alien’s Power for the purpose of denationalization if it can be
inferred from express words, or a ‘preponderance of evidence’ that they intended to be so
classified and thereby relinquish their allegiance to Australia.
Although the decision in Terrazas concerned the revocation of an existing United States
citizenship, it can be argued that the reasoning in this case is equally applicable to the
denial of both an existing or a prospective Australian citizenship because in both cases
involuntary denationalization is achieved. In other words, to fall within the Alien’s Power
for the purpose of denationalization, it must be demonstrated by a ‘preponderance of
evidence’ that True Blue Australians intend to relinquish either their existing or prospective
Australian citizenship. The following analysis will therefore proceed on this basis.
4.2.1 Providing Support to a Terrorist Organisation
Since the events of 9/11, the Australian Federal Parliament has passed a wide range of anti-
terrorism laws. Under the Criminal Code190 there are now offences facing penalty of
imprisonment covering virtually every type of association with a terrorist organisation
189 Graham, above n 14, 604; See, Terrazas 444 U.S. 252 (SC, 1980), 268. 190 Contained in the Criminal Code Act 1995 (Cth) Schedule (‘Criminal Code’).
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including: to associate with a terrorist organisation;191 to be a member of a terrorist
organisation;192 to train or receive training from a terrorist organisation;193 to direct the
activities of a terrorist organisation;194 and, to recruit for a terrorist organisation.195 While
there has been some consideration by former Australian Prime Minister John Howard about
revoking the citizenship of naturalized citizens who have been involved in terrorist
activities, no formal statement to this effect has yet been released by the Federal
Government.196 However, as discussed in Chapter 1, the potential for the Australian
Government to enact further denationalization legislation for the protection of national
security is not unlikely.
In the United States the proposed ‘Domestic Security Enhancement Act of 2003’, loosely
called the ‘Patriot Act II’, seeks to enhance the existing anti-terrorism legislation by adding
a denationalization ground.197 Section 501 of the Act provides for the denationalization of
American citizens, whether naturalized or not, if they have joined or provided material
support to, a terrorist organisation, if the organisation ‘is engaged in hostilities against the
United States, its people, or its national interests.’198 Further, the Act justifies the
denationalization by covering it in the ‘expatriation’ cloak by entitling section 501
‘Expatriation of Terrorists’ and ‘declaring that involvement with a terrorist group would be
prima facie evidence of intent to relinquish citizenship.’199
It has been argued that section 501 violates both the Eighth and Fourteenth Amendments of
the United States Constitution by ‘reinstating the government’s power to denationalize
citizens as a punishment for involvement with alleged terrorist organisations regardless of a
person’s intent to relinquish citizenship.’200 By providing that involvement with a terrorist
group would provide prima facie evidence of intent to relinquish citizenship, the proposed
191 Criminal Code s 102.8. 192 Criminal Code s 102.3. 193 Criminal Code s 102.5. 194 Criminal Code s 102.2. 195 Criminal Code s 102.4. 196 Australia ‘May Deport Militants’ (2005) BBC <http://news.bbc.co.uk/1/hi/world/asia-pacific/4424506 .stm> at 22 November 2008. 197 See generally, Graham, above n 14, 595. 198 Section 501 of the Domestic Security Enhancement Act of 2003 seeks to amend section 349 of the Immigration and Nationality Act (8 U.S.C. 1481 to include a provision to this effect. 199 Graham, above n 14, 594-595. 200 Ibid, 595.
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Patriot Act II would justify involuntary denationalization as voluntary expatriation without
the government needing to be satisfied by a ‘preponderance of evidence’ that the citizen
intended to relinquish their citizenship. By providing for loss of citizenship in this way,
section 501 breaches the Fourteenth Amendment.201 Similarly, it can be argued that it
would breach the implied restriction on denationalization in the Australian Constitution202
because it does not provide a strong enough ground to satisfy the preponderance of
evidence test for an intention to relinquish one’s citizenship and, therefore, the Alien’s
Power could not be used to justify denationalization legislation on this ground.
Section 501 would breach the Eighth Amendment not only because denationalization has a
particularly harsh impact upon somebody’s life, but also because, ‘terrorism and providing
material support to terrorists are already crimes [in the United States] that are subject to
severe penalties.’203 Similarly, it can be argued that an Australian equivalent of section 501
would almost certainly be interpreted as having a punitive purpose and thereby
unconstitutional. Considering that providing support to a terrorist organisation is already an
offence in Australia punishable by life imprisonment,204 this legislation is likely to be
intended by the government as a way to increase this penalty further by potentially making
the person stateless. Further, if their citizenship can be revoked and the person subjected to
potentially indefinite detention, this would be a method by which the complexities of the
judicial process could be circumvented while still achieving the same result of
imprisonment.
Further, it is difficult to consider a provision of this nature as not going beyond what is
necessary to achieve the non-punitive purpose of, for example, protecting the public, when
one considers the range of other possibilities to provide such protection. Some of the
possibilities for protecting the public from somebody charged with a terrorist offence
include an almost unlimited variation of control orders, which have recently been held
constitutional by the High Court in Thomas v Mowbray.205 Some of the possible restrictions
201 See generally, ibid, 613. 202 See, Chapter 3.1 above. 203 See, 18 U.S.C. §§ 2332, 2339A (2003); Graham, above n 14, 616. 204 Criminal Code s 101.1(1). 205 (2007) CLR 307.
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include who the person can communicate with, places they can visit and a requirement that
the person wear an electronic tracking device.206
4.2.2 Treason
Whether treason can constitute a ground for denationalization will depend on how it is
defined. Section 35 of the Citizenship Act currently provides the following ground for
denationalization which has treasonous characteristics:
(1) A person ceases to be an Australian citizen if the person:
(a) is a national or citizen of a foreign country; and
(b) serves in the armed forces of a country at war with Australia.
(2) The person ceases to be an Australian citizen at the time the person commences to do
so serve.
This provision would almost certainly be supported by the Alien’s Power, because it is
fairly clear that any True Blue Australian who becomes a national or citizen of a foreign
country and then proceeds to serve in an army engaged in war with Australia, no longer
intends to be a part of the Australian community and as such owe allegiance to Australia.207
Since the events of 9/11, the offence of treason in section 80 of the Criminal Code has been
enhanced to include engaging in conduct that assists ‘(i) another country; or ii) an
organisation; that is engaged in armed hostilities against the Australian Defence Force’
(‘ADF’).208 This offence is punishable with life imprisonment. If the Australian
Government were to legislate so as to provide for denationalization for engaging in this
conduct, it can be argued that it does not necessarily provide a strong enough ground to
satisfy the ‘preponderance of evidence’ test that the Australian citizen intended to
relinquish their citizenship. Unlike the ground for denationalization above under section 35
of the Citizenship Act, the test for ‘conduct that assists’ is far too broad to demonstrate the
206 Criminal Code s 104.5(3). 207 For Parliamentary advice to this effect, see, Castan QC, above n 17, 793. 208 Section 80.1(1)(f) Criminal Code.
41
person’s intention to relinquish their citizenship. For example, it could include a wide range
of ‘assistance’ to the country or organisation engaged in hostilities with the ADF regardless
of the person’s intent and knowledge, such as donating money to a charity which acts as a
front for such a country or organisation.
In addition, such a potential ground for denationalization would almost certainly be for a
punitive purpose. The offence under section 80 seems broad enough to cover the situation
of somebody such as David Hicks who was captured in Afghanistan after allegedly fighting
for Al-Qaeda who was engaged in armed hostilities with the ADF. It is clear that the
possibility for the Australian Government to enact legislation allowing for the
denationalization of somebody in a similar situation is not too far-fetched. This is
particularly so considering, as discussed above in Chapter 1, the Australian Government’s
prior reluctance to lobby the United States Government to allow Hicks, as an Australian
citizen by virtue of both jus soli and jus sanguinis connections, to come back to Australia
from Guantanamo Bay where he alleges he was subjected to torture and other severe
denials of basic human rights.209
4.2.3 Desertion of the Armed Forces During War Time
In considering whether a True Blue Australian could be denationalized for deserting the
ADF in a time of war, it is appropriate to consider the case of Trop v Dulles210 which
considered United States legislation to this effect. In this case, the plaintiff’s ‘passport was
denied on the ground that under 401(g) of the Nationality Act of 1940, as amended, he had
lost his citizenship by reason of his court-martial conviction and dishonorable discharge for
wartime desertion.’211 The US Supreme Court held this provision to be unconstitutional on
the ground that it was a cruel and unusual punishment barred by the Eighth Amendment.212
In making their decision, the court examined whether the legislation had a punitive or non-
209 See generally, Guantanamo Detainee to Get British Citizenship (2005) TimesOnline <http://www.time sonline. co.uk/tol/news/uk/article762250.ece> at 22 November 2008. 210 356 U.S. 86 (SC, 1957) (‘Trop’). 211 Ibid, 86. 212 Ibid, 103 (Warren CJ).
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punitive purpose.213 In so doing the court stated that, ‘[i]f the statute imposes a disability
for the purposes of punishment - that is, to reprimand the wrongdoer, to deter others, etc. –
it [is] considered penal.’214 The court held that the purpose of taking away the convicted
deserter’s citizenship was ‘simply to punish him’ and, therefore, had a punitive purpose.215
In ascertaining the purpose of the legislation, the court stated that it is its substance, not
form that is determinative and a statute cannot avoid scrutiny simply because it is labeled as
non-penal.216
The Court in Trop considered the denationalization in this case to be a cruel and unusual
punishment in violation of the Eighth Amendment because it creates ‘the total destruction
of the individual’s status in organized society’.217 The Court further stated that ‘the
deprivation of citizenship is not a weapon that the Government may use to express its
displeasure at a citizen’s conduct, however reprehensible that conduct may be.’218 The same
reasoning is applicable under the Australian Constitution because somebody could choose
to desert the armed forces during wartime for any number of reasons without intending to
give up their Australian citizenship and therefore allegiance to Australia. Denationalization
for this reason would, therefore, almost certainly be for a punitive purpose and intended to
punish the citizen by destroying their status as an Australian.
4.2.4 Dual Citizenship
As discussed in Chapter 1, after the London Bombings in 2005, the United Kingdom
enacted legislation to deprive somebody of their British citizenship, regardless of whether
such citizenship was acquired by birth, descent, or naturalization, if the Secretary of State
considers such deprivation to be ‘conductive to the public good.’219 However, because of
213 Ibid, 95 (Warren CJ). 214 Ibid, 96 (Warren CJ). 215 Ibid, 97 (Warren CJ). 216 Ibid, 94-95 (Warren CJ). 217 Ibid, 101 (Warren CJ). 218 Ibid, 92-93 (Warren CJ). 219 British Nationality Act 1981 (c. 61)(Eng) s 40(2).
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the limitation that such deprivation cannot be ordered if to do so would render the person
‘stateless’, this provision only applies to dual citizens. In Australia, an Australian citizen
may hold a dual citizenship either from birth, or acquire one during their life.
As discussed in Chapter 1 of this thesis, the Australian Government has already shown a
willingness to discriminate against Australian citizens who hold a dual citizenship by virtue
of being born in another country for the purpose of supporting the compliance with
American ITAR legislation by Australian defence companies. One of the examples given in
Chapter 1 was of an Australian citizen who was born in a plane passing through Sudanese
airspace which therefore entitled him to a citizenship pursuant to Sudanese law.220
However, it can be argued that if the Australian Government ever sought to deprive such a
True Blue Australian of their Australian Citizenship on the ground that they obtained
citizenship of another country on birth, this ground would not be supported by the Alien’s
Power. This is because it is abundantly clear that it cannot be demonstrated by a
preponderance of evidence that they intended to relinquish their Australian citizenship
when they had no control over the ascertainment of the other country’s citizenship.
Section 17(1) of the Australian Citizenship Act 1948 (Cth) previously provided that:
A person, being an Australian citizen who has attained the age of 18 years, who does any
act or thing:
(a) the sole or dominant purpose of which; and
(b) the effect of which;
is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition,
cease to be an Australian citizen.221
It is clear that the mere acquisition of a dual citizenship alone is insufficient to satisfy the
preponderance of evidence test because there are many reasons why somebody may acquire
220 See, Background Briefing, Defence and Discrimination (2008) ABC Radio National <http://www.abc.net. au/rn/backgroundbriefing/stories/2008/2339793.htm> at 22 November 2008. 221 See, Minister for Immigration, Local Government and Ethic Affairs v Gugerli (1992) 15 AAR 483 which concerned the interpretation of this provision. However, this case did not consider the constitutional issues surrounding the revocation of citizenship; See generally, Srechko Kontelj, ‘Consequences of acquiring dual citizenship’ (1993) October Law Institute Journal 957.
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the citizenship of another nation without intending to give up allegiance to Australia. As the
world heads closer toward globalization, the desire for two or more citizenships is no doubt
going to increase. True Blue Australians may desire another citizenship for reasons such as:
to obtain business advantages in another nation; to avoid taxes imposed on foreigners in
another country; to obtain travel privileges, etc.222 The acquisition of citizenship for these
purposes does not necessarily indicate an intention to give up allegiance to Australia, but
may be viewed merely as ‘citizenships of convenience’.223 It is therefore argued that this
provision, if ever re-enacted in some form, to the extent that it applies to a True Blue
Australian, would not be supported by the Alien’s Power and thereby be unconstitutional.
The context of the Australian Constitution is also relevant to deciding the scope of the
Alien’s Power because ‘the Constitution itself contemplates the concept of dual
citizenship.’224 The Constitution does so in section 44 which ‘excludes from eligibility for
election to the Senate or the House of Representatives, those persons who are’:
…under any acknowledgement of allegiance, obedience or adherence to a foreign power, or
is subject or a citizen or entitled to the rights of privileges of a subject or a citizen of a
foreign power. 225
As held in Sykes v Cleary,226 this section ‘clearly distinguishes the question of eligibility for
election to the Senate or the House of representatives, from the question of eligibility to
vote.’227 As discussed above in Singh,228 the High Court considered at length the scope of
the Alien’s Power and did so with reference to the meaning of the word ‘aliens’ at the end
of the 19th century when the Constitution was made.229 When ascertaining who the makers
of the Constitution considered aliens at the end of the 19th century, it is material that
222 See generally, Mark Fritz, Pleading Multiple Allegiances (1998) Los Angeles Times <http:www.global policy.org/nations/sovereign/citizen/1998/multiple.htm> at 26 November 2008. 223 Ibid. 224 Castan QC, above n 17, 794. 225 Ibid. 226 (1992) 176 CLR 77. 227 Castan QC, above n 17, 794. 228 Singh (2004) 222 CLR 322. 229 Ibid at [190] (Gummow, Hayne and Heydon JJ).
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through the text of section 44 of the Constitution, they recognized dual citizens as people of
the Commonwealth who were entitled to vote.
4.2.5 Failure to Satisfy Procedural Requirements
It can be argued that the denial of a prospective Australian citizenship or revocation of an
existing citizenship on procedural grounds is constitutional to the extent it does not
permanently deprive a True Blue Australian of their status as a non-alien. As discussed in
Chapter 2, Parliament has ‘the power to make laws with respect to citizenship.’230 This
power therefore allows Parliament to impose procedural requirements on the attainment or
maintenance of an Australian citizenship. However, these procedural requirements cannot
be used to permanently deprive a True Blue Australian of their Australian citizenship
because to do so could be in breach of either the Pochi Limitation231 or the implied
limitation on the use of other express and implied powers for the purpose of
denationalization discussed in Chapter 3. The following considers the constitutionality of
two procedural grounds to the maintenance and attainment of an Australian citizenship.
Section 34(1) of the Citizenship Act empowers the Minister to revoke an Australian
citizenship obtained by descent if the person is convicted of one of a number of fraud
offences232 ‘in relation to the person’s application to become an Australian citizen’ or the
‘person obtained the Minister’s approval to become an Australian citizen as a result of
third-party fraud’,233 and ‘the Minster is satisfied that it would be contrary to the public
interest for the person to remain an Australian citizen.’ It is clear that this is a law ‘with
respect to citizenship’ and therefore prima facie constitutional. However, unless the True
Blue Australian has by other conduct moved within the scope of the Alien’s Power,
Parliament would need to in some way provide another opportunity for the person to gain 230 Hwang v The Commonwealth; Fu v The Commonwealth [2005] HCA 66 at [10]. 231 See, Chapter 2.3 above. 232 The Australian Citizenship Act 2007 (Cth) s 34(1)(b) includes as fraud, the giving of false or misleading information (Criminal Code s 137.1 and Australian Citizenship Act 2007 (Cth) s 50) and the giving of false or misleading documents (Criminal Code s 137.2). 233 The Australian Citizenship Act 2007 (Cth) s 34(1)(b)(ii).
46
citizenship to avoid breaching Pochi Limitation234 and the postulated implied protection of
their citizenship discussed in Chapter 3.1 above.
This reasoning is equally applicable to the denial of a prospective Australian citizenship to
somebody classed as a True Blue Australian by the imposition of requirements which have
the effect of permanently depriving them of Australian citizenship. Section 17(4) of the
Citizenship Act, for example, provides that the Minister must refuse to grant an application
for Australian citizenship of somebody who was not born in Australia, but has an
Australian citizen parent if at the time of the application:
an adverse security assessment, or a qualified security assessment, in respect of the person
is in force under the Australian Security Intelligence Organisation Act 1979 that the person
is directly or indirectly a risk to security.
The fact that a True Blue Australian has received an adverse security assessment does not
necessarily indicate by a ‘preponderance of evidence’ that they intended to give up their
allegiance and thereby prospective citizenship of Australia. If a True Blue Australian is a
threat to national security, this alone is not necessarily enough to bring them within the
scope of the Alien’s Power and it would therefore be unconstitutional to deny them an
Australian citizenship on this basis. Although it is acknowledged that the defence,235
implied nationhood236 and external affairs237 powers provide ample authority for the
imposition of such a requirement, as discussed in Chapter 3, these powers cannot be relied
on to empower legislation denationalizing a True Blue Australian.
234 See, Chapter 2.3 above. 235 Australian Constitution s 51(vi). 236 Australian Constitution s 51(xxix). 237 See, Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 397.
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4.2.6 Deprivation of Parents’ Citizenship
Section 36(1) of the Citizenship Act authorizes the Minister to deprive a child under 18 of
their Australian citizenship if their parent ceases to be an Australian citizen under one of
the cessation provisions of the Act. However, this provision does not apply where the child
has another responsible parent who is an Australian citizen at the time of the cessation238 or
the child would be stateless as a result of the deprivation of their citizenship.239 This
provision is clearly valid pursuant to the Alien’s Power to the extent that the child could
have been classed as an alien at the time of their birth. However, it can be argued that if the
child satisfied the qualitative test of allegiance to become a True Blue Australian at the time
of their birth then it would be unconstitutional to revoke their citizenship regardless of the
deprivation of their parent(s) citizenship because it cannot be shown by a preponderance of
evidence that the child themselves intended to relinquish their citizenship.
4.2.7 Failure to Apply for an Australian Citizenship
Somebody who is a citizen of another nation and has never acquired an Australian
citizenship could still potentially fall outside the description of an alien and classed as a
True Blue Australian. Such a person may have a parental connection to Australia through
jus sanguinis but, for example, been born in the United States, acquired United States
citizenship by birth right, and lived their whole life in the United States. At some point a
line must be drawn to prevent this person from remaining outside the scope of the Alien’s
Power and retaining status as a True Blue Australian. It is difficult to formulate a single all
encompassing test to determine where this line will be drawn and each case will of course
depend on its individual facts. However, for example, a United States citizen with a link to
Australia through jus sanguinis who has not applied for an Australian citizenship for, for
example, 50 years, voted in United States elections, worked in the United States, raised a
238 Australian Citizenship Act 2007 (Cth) s 36(2). 239 Australian Citizenship Act 2007 (Cth) s 36(3).
48
family there, etc., would almost certainly satisfy the ‘preponderance of evidence’ test for
giving up their right to a prospective Australian citizenship and thereby lose their status as a
True Blue Australian. Parliament could then use the Alien’s Power to support legislation
denying them an Australian citizenship upon application.
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Conclusion
The potential for harsher denationalization to be passed by the Australian Parliament,
particularly as part of the going movement to protect national security, is not inconceivable.
There is a sufficient grounding to support the proposition that only the Alien’s Power can
be used to support legislation providing for denationalization, whether by the revocation of
an existing or the denial of a prospective Australian citizenship. It has been argued that
there is a category of people who cannot possibly answer the description of aliens, per the
Pochi Limitation, and therefore legislation empowered by the Alien’s Power cannot be used
to achieve their denationalization. This group has colloquially been referred to as True Blue
Australians.
In ascertaining who falls within this category of True Blue Australians, it has been argued
that it is necessary to apply a qualitative test of allegiance to Australia which takes into
account both inclusive (owing allegiance to Australia) and exclusive (owing allegiance
elsewhere) factors. Through the application of this test it has been argued that the class of
True Blue Australians includes at least: people born in Australia with at least one parent
who is an Australian citizen and somebody who was not born in Australia but has both, or
perhaps only one, parent who was an Australian citizen at the time of their birth. Further,
this test has established that the following people are not within the category of True Blue
Australians: people who were born in Australia to non-Australian citizen parents and have
resided in Australia for less than ten, or possibly more years; naturalized Australian
citizens; and, citizens of Australian’s external territories.
It has been argued that there is sufficient authority to support the existence of an implied
limitation in the Australian Constitution which prevents all express and implied powers
other than the Alien’s Power from being used to empower denationalization legislation
against a True Blue Australian. Therefore, even though denationalization legislation may be
intended to, for example, protect national security, it could not gain support from the
50
defence, implied nationhood or external affairs powers. This implied limitation has been
likened to the Fourteenth Amendment of the United States Constitution to the extent that it
protects the citizenship of those who can answer the description of True Blue Australians.
Further, there is an implied restriction in the Australian Constitution which would deem
denationalization legislation unconstitutional if it were used for a punitive purpose. This
limitation can be likened to the Eighth Amendment of the United States Constitution.
Based on United States case law considering the impact of the Eighth and Fourteenth
Amendments on denationalization legislation, it has been argued the Alien’s Power could
only be used to empower legislation providing for the denationalization of a True Blue
Australian if it could be demonstrated by a ‘preponderance of evidence’ that they
personally intended to relinquish their existing or prospective Australian citizenship.
However, denationalization legislation which does not satisfy this test, or is intended to
achieve a punitive purpose will be unconstitutional. It has been argued that if a True Blue
Australian serves in the armed forces of a country at war with Australia, and they are a
national of that country, this would almost certainly demonstrate by a preponderance of
evidence that they intended to relinquish their Australian citizenship. However,
denationalization of a True Blue Australian on the ground that they have deserted the armed
forces during a time of war or supported a terrorist organisation will almost certainly be
intended to achieve a punitive purpose and thereby be unconstitutional.
Where a True Blue Australian gained an Australian citizenship based on fraud, it has been
argued that this citizenship can constitutionally be revoked because Parliament has the
power to make laws with respect to citizenship. However, to avoid breaching the Pochi
Limitation and the postulated implied restriction on having their citizenship denied
pursuant to legislation authorized by a power other than the Alien’s Power, Parliament
could not permanently deprive them of an Australian citizenship unless it can now be
demonstrated by a preponderance of evidence that they have chosen to give up such
prospective citizenship. Further, a prospective Australian citizenship cannot be denied to a
True Blue Australian on the basis that they received an adverse security assessment by
ASIO, and their citizenship cannot be revoked merely because one of their parents ceases to
be an Australian citizen. This is because in either of these cases it cannot necessarily be
51
demonstrated by a preponderance of evidence that they intended to relinquish their
citizenship. Further, whether somebody who answers the description of a True Blue
Australian can be refused a grant of Australian citizenship on the ground that they have
taken too many years to apply for one, could only be authorized under the Alien’s Power if
it can be demonstrated by a preponderance of evidence that the person has chosen to
relinquish their prospective Australian citizenship.
52
BIBLIOGRAPHY
1. Articles/Books/Reports
Aleinikoff, T. Alexander, ‘Theories of Loss of Citizenship’ (1985-1986) 84 Michigan Law Review 1471.
Blackburn (ed), Robert, Rights of Citizenship (1993). Blackshield, Tony and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2006).
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Ebbeck, Genevieve, ‘A Constitutional Concept of Australian Citizenship’ (2004) 25 Adelaide Law Review 137.
Foster, Michelle, ‘Membership in the Australian Community: Singh v The Commonwealth and its Consequences for Australian Citizenship Law’ (2006) 34 Federal Law Review 161.
Glass, Arthur, ‘Birthright non-alienage’ (2004) 6(4) Constitutional Law and Policy Review 80.
Goodman, Steven S., ‘Protecting Citizenship: Strengthening the Intent Requirement in Expatriation Proceedings’ (1988) 56 George Washington Law Review 341.
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Graham, Nora, ‘Patriot Act II and Denationalization: An Unconstitutional Attempt to Revive Stripping Americans of Their Citizenship’ (2004-2005) 52 Cleveland State Law Review 600.
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Air Caledonie International v Commonwealth (1988) 165 CLR 462.
Al-Kateb v Goodwin [2004] HCA 37.
Attorney-General (Cth) v Schmidt (1961) 105 CLR 361.
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Boeing Australia Holdings Pty Ltd (Anti Discrimination Exemption) [2007] VCAT 532.
55
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.
Hwang v The Commonwealth; Fu v The Commonwealth [2005] HCA 66.
Koroitamana v The Commonwealth (2006) 227 CLR 31.
Meyer v Poynton [1920] 27 CLR 436. Minister for Immigration, Local Government and Ethic Affairs v Gugerli (1992) 15 AAR 483.
Nolan v Minister of State for Immigration and Ethic Affairs (1988) 165 CLR 178. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249.
Perez v Brownell, 356 U.S. 44, 64 (SC, 1958).
Pochi v Macphee (1982) 151 CLR 101.
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439.
Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162.
Re Patterson; ex parte Taylor (2001) 207 CLR 391.
Re Woolley and Another; ex parte APPLICANTS M276/2003 (by their next friend GS) [2004] HCA 49.
Shaw v Minister for Immigration (2003) 218 CLR 28.
Singh v The Commonwealth (2004) 222 CLR 322.
Thomas v Mowbray (2007) CLR 307.
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Victoria v Commonwealth and Hayden (1975) 134 CLR 338.
56
3. Legislation/Constitutions/International Instruments
United States Constitution.
Australian Constitution (enacted by the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9).
Australian Citizenship Act 2007 (Cth).
Australian Citizenship Act 1948 (Cth).
British Nationality Act 1981 (c.61) (Eng).
Convention on the Reduction of Statelessness which was signed on 30 August 1961 and entered into for Australia on 13 December 1975: [1975] ATS 46.
Criminal Code (Included in the schedule of the Criminal Code Act 1995 (Cth)).
Domestic Security Enhancement Act of 2003.
Immigration, Asylum and Nationality Act, 2006 c. 13 § 56(1) (Eng.)
Immigration and Nationality Act 8 U.S.C. 1481 (Eng.).
International Traffic in Arms Regulations.
Migration Act 1958 (Cth).
Universal Declaration for Human Rights.
4. Other Sources
Asylum Seeker Shot Dead, 6 years after deportation (2008) ABC News <http://www.abc.n et.au/news/stories/2008/08/02/2322154.htm> at 26 November 2008. Australia ‘May Deport Militants’ (2005) BBC <http://news.bbc.co.uk/1/hi/world/asia-paci fic/4424506.stm> at 22 November 2008. Background Briefing, Defence and Discrimination (2008) ABC Radio National <http://ww w.abc.net.au/rn/backgroundbriefing/stories/2008/2339793.htm> at 22 November 2008.
57
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