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

The applicant was born in the United Kingdom and entered Australia in 1974. At the time of his  settlement in Australia with his parents, the applicant was a citizen of the United Kingdom and Colonies, a member of a class of persons who were “British subjects”, who were expressly excluded from the definition of “alien” for citizenship purposes. He had not left Australia since 1974, nor enrolled as an elector, applied for an Australian passport, or sought to become an Australian citizen.

The applicant was regarded by the Minister as the holder of a transitional (permanent) visa which, unless revoked according to law, permitted him to remain in Australia indefinitely. In July 2001, the Minister cancelled the applicant’s visa on the ground that he had a substantial criminal record and did not pass the character test as defined by s 501 of the Migration Act 1958.

The applicant contended that the provision had no application to him as a British subject, to authorise the cancelation of his visa and his deportment. In Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72, the court held that the correct date for the change in status of a subject of the Queen in Australia can be no earlier than the coming into force of the Australia Acts in 1986. Therefore the applicant was not an “alien” for the purposes of s 51(xix) of the Constitution, and section 501 of the Migration Act was not a valid exercise of the legislative powers of the Commonwealth under s 51(xix) in relation to him. 

Australians, and British citizens permanently residing in Australia once owed their allegiance to the “Crown of the United Kingdom of Great Britain and Ireland” and were subjects of the Queen of the United Kingdom of Great Britain and Ireland, for the purpose of s 117 of the Constitution. There was subsequently an evolutionary process by which the term “subject of the Queen” in s 117 of the Constitution became “subject of the Queen of Australia”, starting with the Nationality and Citizenship Act 1948, the Royal Style and Titles Act 1953 and 1973, and finalised with the Australia Acts 1986. British citizens permanently residing in Australia prior to 1986, became subjects of the Queen of Australia by the same evolutionary process that had transformed the Queen of the United Kingdom of Great Britain and Ireland into the Queen of Australia.

The Full Bench of the High Court agreed that the Australia Acts 1986, in its two versions, together with the State request and consent legislation, amounted to establishing Australian independence at the date when the Australia Act came into operation, 3 March 1986.

This was also the conclusion of the majority in Attorney-General (WA) v Marquet (2003) 202 ALR 233 but Kirby J. raised a dissent on several points. In Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72, he took a more comprehensive view. Kirby J. from 108:

“In Attorney-General (WA) v Marquet (2003) 202 ALR 233 I expressed my reservations about the validity of the relevant parts of the Australia Acts invoked in that case. I contested the proposition that, in 1986, the United Kingdom Parliament had any legislative power to enact a law with respect to Australia’s constitutional arrangements. Such power in my view belongs, and in 1986 belonged, only to the Australian people and their legislatures. So far as the federal Act is concerned, the stream could not rise higher than the source. It could not enlarge federal constitutional power or make it greater than it was. Nor, in my opinion, did s 51(xxxviii) of the Constitution provide a source for the validity of the federal Act. That Act was subject to the provisions of Chs III and V of the Constitution, including provisions with respect to the States and the requirements of s 128 concerning alteration of the Constitution.

However, in Marquet, my view was not adopted by the majority of this Court.  Pending a greater enlightenment, I must accept this Court’s holding that the Australia Acts are valid laws.  Unlike others, I will in this case abide by the recent majority holding of the Court. In his reasons in this case, Callinan J has adopted as determinative of the change of status of people in the applicant’s class 3 March 1986, being the date of the coming into force of the Australia Acts of that year by the Queen’s Royal Assent, signified by Her Majesty personally in Canberra on that day.  McHugh J has agreed in this conclusion.  It is appropriate for me to adopt the identical conclusion of McHugh J and Callinan J that the enactment of the Australia Acts in 1986 represented an important constitutional moment.

Thereafter, the special residual status for non-citizen British subjects born in the United Kingdom or elsewhere was anomalous and inappropriate, both as a matter of statute and constitutional law. It follows that, although I adhere to the opinion that I expressed in   Re Patterson; Ex parte Taylor (2001) 207 CLR 391, it is desirable that the unseemly persistence in challenges to this Court’s rulings upon this matter be brought to an end.  This reinforces my resolve to surrender my own opinion and agree in the date that McHugh J and Callinan J have adopted.  The difference in time reflected in the two views is trivial.  It is irrelevant to the facts of this case, given that the applicant arrived in Australia as an infant in 1974.

I therefore concur in finding the applicable date for the termination of the status of non-citizen British subjects as being 3 March 1986.  The process that had begun in the change in Australian nationality at an unspecified time after federation should be taken to have concluded on 3 March 1986.  Persons arriving as immigrants in Australia as “subjects of the Queen” on and before that date were not “aliens”.  They cannot be deported as such under laws made pursuant to the “aliens” head of constitutional power. Ultimately, only this Court can say when such a moment of constitutional change arrived.  The Parliament could not do so.  Nor did it purport to do so by introducing the statutory concept of citizenship.  Many more political, economic, social and legal changes had to occur before the constitutional notion of alienage would change in its content.  But change it eventually did.”

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