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British subject who entered Australia before Nationality and Citizenship Act 1948 (Cth) commenced can be treated as an “alien”, rules High Court - Administrative Law Bulletin

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The High Court ruled today that a British subject who arrived in Australia in 1948 can be considered an alien within the meaning of s 51(xix) of the Constitution. Justice Nettle delivered the judgment in Chetcuti v Commonwealth of Australia [2020] HCA 42.

Mr Chetcuti argued that as a British subject he “acquired the status of a non-alien” and remained outside the reach of s 51(xix) of the Constitution. He acknowledged that the meaning of alien has changed but since he arrived before "the sovereign of Australia and Britain ... [became] divisible ... he owed allegiance to the same sovereign" and cannot be regarded as an alien.

The Commonwealth argued that Parliament’s power to regard the plaintiff as an alien was not “frozen in time” but has evolved consequent on Australia becoming an independent sovereign nation. The defendant also argued in the alternative that when the plaintiff arrived in 1948, Australia had already emerged as an independent sovereign nation. The Commonwealth also submitted in the further alternative that from the time of Federation, Parliament could treat British subjects born abroad as aliens.

Justice Nettle did not accept the plaintiff’s argument that he acquired the status of “non-alien” on the commencement of the Nationality and Citizenship Act 1948 (Cth) which excluded British subjects from the statutory definition of “alien”, calling the argument “untenable”:

“As the plurality concluded in Shaw, although British subjects were thereby excluded from the definition of "aliens" for the purposes of that Act, they were nonetheless ‘a class of aliens with special advantages in Australian law’; and so, even then, conceived of as aliens in the ordinary understanding of the term,” said Justice Nettle at 53.

Justice Nettle considered the recent judgment of Love v Commonwealth at 38-42, finding a common element in each majority judge’s distinct opinion:

“But common to all was the essentiality of the common law's recognition of the membership of an Aboriginal society continuously united in their acknowledgment of their ancient laws and customs deriving from before the Crown's acquisition of sovereignty over the Australian territory, and the inherent inconsistency of that fact with the permanent exclusion from Australia of a member of such an Aboriginal society,” said Justice Nettle.

“By contrast, here, there is nothing about the common law of Australia that is inconsistent with Parliament treating as an alien a person born outside Australia, whose parents were not Australian citizens, who is a foreign citizen, and who has not been naturalised.”

The plaintiff was born in present day Malta in 1945 as a British subject, having arrived in Australia in 1948 and resided in the country on an Absorbed Person visa. He was convicted of murder in 1993 and sentenced to imprisonment for 24 years. In 2011, the plaintiff was convicted of assault occasioning actual bodily harm and sentenced to two years imprisonment to be served concurrently.

The plaintiff’s visa was cancelled by Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Alan Tudge, acting personally, as he did not pass the character test under s 501(7)(c) Migration Act 1958 (Cth).

The plaintiff’s claim was dismissed with costs.

Migration Act, Annotated contains comprehensive annotations to the Migration Act 1958, with commentary on key issues such as judicial review in migration law. It explains the scope and application of the Migration Act, is updated four times per year with legislation updated as amendments come into force, provides guidance on relevant case law and cross-refers to related instruments (Ministerial Directions and Legislative Instruments).

Organised by statute, Migration Act, Annotated is a full consolidated Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) with summaries of the relevant Schedules. Author, Ben Petrie, Senior Associate, works in Clayton Utz's commercial litigation and dispute resolution department. Author, Natasha Bosnjak, Senior Associate at Clayton Utz, conducts litigation in the High Court, Federal Court, Federal Magistrates Court, Supreme Court of Victoria, County Court of Victoria, Administrative Appeal Tribunal and Victorian Civil and Administrative Appeals Tribunal.

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