Common(wealth) Knowledge #10: 'Aliens' power exception revisited

We take another look at citizenship and non-citizens in Australia.

Back in Common(wealth) Knowledge #6, we discussed at the High Court of Australia decision in Love v Commonwealth (2020), where the court ruled 4:3 that Aboriginal and Torres Strait Islanders cannot be considered ‘aliens’ for the purposes of Section 51(xix) of the Australian Constitution. This sub-section allows the Commonwealth Parliament to regulate citizenship and non-citizens. Now, the Federal Court of Australia has re-examined the scope of that power, which we look at today.

The case in question is Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022], which was heard by the Federal Court of Australia Full Court. This means that it was heard by three judges, rather than just one, and is an appeal from the ordinary Federal Court of Australia, where a single judge heard the original case. Having three judges means that there is a better chance that the correct decision will be made, if the original decision was incorrect.

If you haven’t already read Common(wealth) Knowledge #6, I would highly recommend reading that before you keep reading this one. In summary, the High Court in Love v Commonwealth decided that the Commonwealth government cannot treat Aboriginal and Torres Strait Islander people, regardless of their citizenship status, as aliens, and therefore deport or detain them as aliens. This was based on their special connection to the country that was first recognised in Mabo v Queensland (No 2) (1992).

In this case, Julian Taylor was born in the UK, before coming to Australia with his family in 1969, at age 4. He started voting before 26 January 1984, and became a naturalised citizen, i.e. was granted citizenship, in 1988. He was allowed to vote before beinga citizen because of his status as a British subject because, before 26 January 1984, British subjects who weren’t citizens had voting rights, as a result of Australia’s position in the British Commonwealth of Nations. Although British subjects, who were not Australian citizens, were generally prevented from voting since 26 January 1984, Section 91(1)(b)(ii) of the Commonwealth Electoral Act 1918 (Cth) allows British subjects whose names were on the electoral role before that date to continue voting.

He was given an Australian passport in 1990, but renounced his citizenship in 1995, and so instead was granted a non-citizen visa. He has lived in Australia since then, except for between December 2012 and April 2015, and was given a returning resident visa in 2013. He has been in immigration detention since 2018, when his visa was revoked because he was convicted of crimes with a total sentence of 2 years and 11 months.

Under the Section 501C of the Migration Act 1958 (Cth), if an alien, i.e. a non-citizen, receives a prison sentence for committing a crime, the Minister for Immigration has the discretionary authority to revoke their visa. Then, Section 189 requires that they be held in immigration detention.

Taylor argued that his detention and the revocation of his visa were unlawful for two reasons. The first of these was that his renunciation of citizenship didn’t make him a non-citizen. Although not relevant for this article, I will note that this line of reasoning was rejected. His renunciation of his citizenship meant that he was now an alien. The court then turned to his second argument, that “he had the essential characteristics of a non-alien non-citizen,” due to his connection to Australia or status as a British subject..

Taylor argued that, given he was a British subject as of 26 January 1984, he could not be an alien. He also pointed to the ruling in Love v Commonwealth as evidence of the possibility for an exception to be found.

Although being a British subject is the reason he was enrolled on the electoral roll, this “privilege is liable to cancellation because he is an unlawful non-citizen,” as he was residing in Australia without a visa, due to his own criminal conduct, and was therefore an alien.

At paragraph [57], the court recognised his “familial connections” to Australia, as he had a daughter who was a citizen, and was long-term resident of Australia. However, the court affirmed the decision of Gibbs CJ in the High Court in Pochi v MacPhee (1982), at [12], where he said that an “acknowledgement of allegiance to the sovereign of Australia,” not “length of residence,” was the key factor in determining whether someone was a citizen or an alien.

Finally, the court came to the issue of a Love v Commonwealth-style exception. The court referred to the tripartite test from Mabo (No 2) in determining whether a person can claim the Aboriginal exception. The person must actually be an Aboriginal and Torres Strait Islander, and both they and their community’s elders must accept them as such. As Taylor obviously didn’t qualify for this, the court followed the High Court ruling in Chetcuti v Commonwealth (2021), and so did not grant this status to him.

This case affirms that the special status held by Aboriginal and Torres Strait Islanders, derived from their spiritual, cultural, and historical connection to the land, is the only exception to the aliens power. The only other way for non-citizens to be protected from the aliens power is to become a citizen. And it is this citizenship that Taylor rejected in 1995.

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

Sign up to our new free newsletter to catch up on all our original reporting you may have missed & to read the latest from the editor - click here.

Help support unbiased journalism & keep us independent: donate just $4 a month on Patreon & receive exclusive benefits.

Want to inform others? Share the link to this story on social media & with your family & friends using the buttons below.

---

Sources:

Chetcuti v Commonwealth (2021) 392 ALR 371; [2021] HCA 35.

Commonwealth Electoral Act 1918 (Cth).

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Love v Commonwealth (2020) 270 CLR 152, [2020] HCA 3.

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.

Migration Act 1958 (Cth).

Pochi v MacPhee (1982) 151 CLR 101; [1982] HCA 60.

Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 144.