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).

6

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.

7

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.

8

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].

11

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.

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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’).

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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).

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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.

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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.

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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).

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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).

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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].

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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.

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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.

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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).

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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.

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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

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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.

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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).

Birkinshaw, Patrick, ‘Citizenship and Privacy’ in Robert Blackburn (ed), Rights of Citizenship (1993) 31.

Bosniak, Linda, ‘Citizenship Denationalized’ (2000) Indiana Journal of Global and Legal Studies 447.

Commonwealth, Australian Citizenship Legislation Amendment Bill 2002: Second Reading, Senate, 14 March 2002, 788 (Senator Bolkus).

Dean, Martin, ‘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.

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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.

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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.

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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.

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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.

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