The High Court of Australia - Case Study Example

September 9, 2004 was an important day! Tania Singh was born in Australia in 1998. However she is not a citizen of Australia as her parents are not citizens of the country and were not permanent residents of Australia at the time of her birth. Sydney Tilmouth QC reports in ‘Citizenship as a Constitutional Concept: Singh v the Commonwealth of Australia and Rasul v Bush, President of the United States” that her case raised the question, ‘Is the plaintiff (Tania Singh) an alien within the meaning of s 51(xix) of the Constitution?’ On 9th September the ‘court by a majority of 5-2 answered in the affirmative.’ She is therefore considered an ‘alien’ and can be deported under the Migration Act (Cth) 1958. On the same day, 30 year old Peter Qasim completed 6 years in Australia as its longest serving immigrant detainee. Peter Prince (Law and Bills Digest Section, Dec 2004) in his research brief, titled ‘The High Court and indefinite detention: towards a national bill of rights?’, says that the court judgements in the Al-Kateb v. Godwin and Minister for Immigration and Multicultural and Indigenous Affairs v. Al Khafaji, declared that failed asylum seekers who have nowhere to go can be kept indefinitely in immigration detention.. This decision was made by the Australian High Court in August 2004 by a 4:3 majority. This is despite the immigrants having no criminal record and their posing no harm to the society. These cases are among the more recent ones in the long time debate over the issue of citizenship in Australia. Terms like non-citizen, alien, non- alien non-citizen and stateless persons have often been discussed. The first mentioned case deals with an ‘alien’ in Australia and the second case deals with ‘stateless persons’. The United Nations Convention on Stateless Persons held in 1954 defined a stateless person as ‘a person who is not considered as a national by any State under the operation of its law.’ An alien is usually referred to as a person who has no relationship with the state. The framers of the Australian constitution in 1901 did not define the term ‘citizen.’ The issue was addressed for the first time in 1948. According to the report, The Legal Status of Australian Citizen— Evolution of Law and Policy , the legal status of Australian Citizens came into effect on 26 January 1949 with the passage through Parliament of the Nationality and Citizenship Act 1948. This act, however, retained the term aliens to refer to ‘all those who are not British subjects, excepting Irish citizens and protected persons within the British Commonwealth’ The Commonwealth Parliament has ample grants of power contained within both sections 51 (xix) [Naturalization and aliens] and (xxvii) [Immigration and emigration] to define Australian citizenship. The deportation provision under the migration Act also relies on these powers granted to the commonwealth to make laws. These powers called ‘aliens powers’ have often been said to have an emphasis on the control of aliens. But who is an alien? In the case, Nolan v Minister for Immigration and Ethnic Affairs [303] [(1988) 165 CLR 178 at183.) “alien" was used as a descriptive word to describe a persons lack of relationship with a country which means, as a matter of ordinary language, nothing more than a citizen or subject of a foreign state. Peter Prince (Law and Bills Digest Section, April 2003) is his research paper titled ‘High Court and Deportation under the Australian Constitution’ says that the ‘alien issue is central to membership of the Australian community.’ He states that the privileges given to the various categories of citizens and non-citizens vary, and these variations are not always logical or consistent. He gives the example of the judgment released late in 2002 in the combined case of Ex parte Meng Kok Te and Ex parte Dung Chi Dang. In 1980, 13 year old Te and 12 year old Dang fled with their families from Cambodia and Vietnam respectively. They secured a permanent visa to enter Australia but never became citizens here. By the late 1990s both had spent periods in prison for drug trafficking, and had committed several other offences. Under the Migration Act, Australian authorities commenced deportation proceedings. The court decided 7:0 that they were aliens and could hence be deported. However in another case in 2001 involving, Ex parte, Taylor, he was a citizen of the United Kingdom who had come to Australia as a child. He had not become a citizen here and had committed some serious offences. Yet, the court decided that he could not be deported. One of the reasons quoted for this was the changes in the citizenship Act in 1987. As Peter Prince (Law and Bills Digest Section, Nov 2003) points out in his research paper titled, ‘We are Australian – The Constitution and Deportation of Australian-born Children’, “Until 1986 every child born in this country automatically became an Australian citizen at birth no matter who the parents were.” One of the reasons quoted by jury member in the Taylor case, Gaudron J, was that when Taylor came to Australia in 1966 he was not an ‘alien’ as per the Nationality and Citizenship Act 1948. He argued that while introducing changes to the citizenship act in 1987, the Parliament had not used their powers to deprive British Citizens like Mr. Taylor of their ‘non-alien’ status. Since it had not done so, Mr. Taylor could not be considered alien. (Peter Prince, April 2003). Ann-Mari Jordens, in Belonging and exclusion: national identity and citizenship, immigration and multiculturalism, states that Australia ‘has never known cultural and ethnic homogeneity, although many powerful institutions have worked to project an image of Australia as a white, Anglo-Celtic and Christian nation.’ Currently stateless persons or refugees in Australia are only granted temporary residence. Most such families, she says, receive only ‘minimal social services’ and ‘are living under the constant threat of deportation, and are forever denied the possibility of citizenship.’ Stateless perople are usually illegal migrants who have entered the Australian borders without the required authorization. Sections 189 and 196 of the Migration Act 1958 (Cth) “require the detention of almost all unauthorised arrivals, regardless of their individual circumstances.” According to the Human Rights and Equal Opportunities report on ‘Detention of Unauthorised Arrivals’ says that The Australian authorities have adopted a policy of failing to inform unauthorised arrivals of their legal rights. Also, Legal advisers, including HREOC itself, cannot initiate contact with detainees in ‘separation detention’ to inform them of their legal rights. The report also says that International Covenant on Civil and Political Rights (ICCPR) under article 2(1) mentions that, “States parties are obliged to guarantee ICCPR rights to all persons within their jurisdiction, without discrimination. Therefore, even unlawful aliens are entitled to protection of their ICCPR rights. ” In order to ensure that these aliens and stateless persons in Australia do not use their children to gain permanent residence in Australia, the Citizenship Act was amended in 1986. After this, children born to these settlers in Australia would not gain automatic citizenship and could be deported with their parents. Such children would have to spend 10 continuous years from their birth to qualify as a citizen or permanent resident. However, there are special provisions for children born to stateless citizens under article 23 D of the Australian Citizenship Act. They are generally children born in Australia and do not qualify for citizenship in any country and, in other words, are stateless. It can be said that both ‘aliens’ and ‘stateless persons’ in Australia broadly qualify as ‘non-citizens’ and are liable to deportation under the provisions of the Migration Act of 1958. Danielle Chifley’s report titled Statelessness’ and the Right to Nationality of Children Born into Immigration Detention in Australia which was submitted to the ‘National Inquiry into Children in Immigration Detention’ states that “Australian Citizenship Act 1948 appears to address Australia’s international obligations in respect of the right to nationality and statelessness, this is not the case in practice.” There has been some degree of arbitrariness in the treatment of aliens and stateless persons in Australia. For instance, following the judgements in the Al-Kateb v. Godwin and Minister for Immigration and Multicultural and Indigenous Affairs v. Al Khafaji cases Al Kateb and Al Khafaji were released from detention after they were issued ‘bridging visas.’ These bridging visas are issued to non-citizens to make their stay in Australia legal. This is usually a temporary visa and is valid until arrangements are made for the concerned person to leave the state. However several other detainees like Al Kateb and Al Khafaji were denied this visa. Hence, it can be said that the term aliens includes stateless persons to a large extent, the major distinction between them being that stateless persons would officially have no country to call their own. And, in several cases, these persons may have fled their home country and entered Australia without authorization. They are, therefore, liable to be placed under detention, until deportation. Reference: Bridging Visas , viewed on 23 September,2005, at http://www.immi.gov.au/allforms/bridging.htm Castan Centre for Human Rights Law, Faculty of Law, Monash University , Submission to the Senate Legal and Constitutional References Committee on Inquiry into the administration and operation of the Migration Act 1958, report prepared by Associate Professor Susan Kneebone with the assistance of Ms Edwina Howell, viewed on 23 September,2005, at www.law.monash.edu.au/castancentre/ publications/sub-admin-oper-migration-act.pdf Centre for Comparitive Constitutional Studies, University of Melbourne, Constitutional News, Singh v Commonwealth of Australia, viewed on 21 September at http://www.law.unimelb.edu.au/cccs/news/Constitutional%20News_current.html Charlesworth.H 2005, ‘The High Court on Constitutional Law: The 2004 Term’ at the Annual Constitutional Law Conference, UNSW Gilbert & Tobin Centre , viewed on 21 September at http://www.gtcentre.unsw.edu.au/publications/papers/docs/2005/5_hilaryCharlesworth.pdf. Department of Family & Community Services, Social Security(International Agreements)Act 1999, viewed on 21 September at http://www.facs.gov.au/ssia/ssiaac29.htm Department of Parliamentary Library, Research Paper 12 1996-97,The Need for a New Preamble to the Australian Constitution and/or a Bill of Rights , by Mark McKenna ,Law and Bills Digest Group. Viewed on 21 September 2005, at http://www.aph.gov.au/library/pubs/rp/1996-97/97rp12.htm Department of Parliamentary Library, (November 2003) Research Paper No. 3 200304, We are Australian–The Constitution and Deportation of Australian-born Children, by Peter Prince, Law and Bills Digest Group. Viewed on 21 September 2005, at http://www.aph.gov.au/library/pubs/rp/2003-04/04rp03.htm Department of Parliamentary Library, April 2003, Research Brief No. 26 2002–03, The High Court and Deportation Under the Australian Constitution , by Peter Prince, Law and Bills Digest Group.Viewed on 21 September 2005, at www.aph.gov.au/library/pubs/CIB/2002-03/03cib26.pdf Department of Parliamentary Library, November 2004, Research Brief No. 1 2004–05, The High Court and indefinite detention: towards a national bill of rights? by Peter Prince, Law and Bills Digest Group. Viewed on 21 September 2005, at http://www.aph.gov.au/library/pubs/rb/2004-05/05rb01.htm#minority Earnest DC, Voting Rights for Resident Aliens: Nationalism, Postnationalism and Sovereignty in an Era of Mass Migration, viewed on 21 September at http://home.gwu.edu/~earnest/abstract.htm#Top Eureka Street, Australias judicial isolation. Frank Brennan Viewed on 21 September 2005 at http://www.eurekastreet.com.au/articles/0503brennan.html High Court of Australia, (2003), Jason Shaw v Minister for Immigration and Multicultural Affairs, viewed on 21 September 2005 at www.hcourt.gov.au/media/Shaw.pdf Human Rights and Equal Opportunity Commission, Detention of Unauthorised Arrival, viewed on 21 September, 2005 at http://www.hreoc.gov.au/word/social_justice/submissions_un_hr_committee/7_unlawful_arrivals.doc Jordens, A.M, Belonging and exclusion: national identity and citizenship, immigration and multiculturalism, viewed on 21 September 2005 at http://www.manningclark.org.au/papers/belonging.htm Kirby,M, 2004, Do we have fundamental rights the government cant take away from us, viewed on 21 September,2005 at http://webdiary.smh.com.au/archives/000418.html Kirby.M, 2005 Stirring up the Australian Constitution, viewed on 21 September, 2005 at, http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_mar05.html Lawrence.C 2005, Indefinite detention, Cornelia Rau and the denial of mental illness, viewed on 21 September at http://webdiary.smh.com.au/archives/carmen_lawrence/000822.html National Archives of Australia, The Meaning of Citizenship, viewed on 21 September, 2005 at http://www.naa.gov.au/Publications/research_guides/guides/ctznship/pages/chapter1.htm Nationality and Citizenship Act 1948 (Cth) viewed on 21 September, 2005 at http://www.foundingdocs.gov.au/item.asp?dID=26 National Coalition Of Anti-Deportation Campaigns (NCADC) newszine,2004, aaPeter Qasims 2,191 stolen days, viewed on 21 September, 2005 at http://www.ncadc.org.uk/archives/filed%20newszines/newszine50/qasim.html National Council of Churches in Australia, Definitions & Terms, viewed on 21 September, 2005 at http://www.ncca.org.au/cws/rdp/education/definitions National Inquiry into Children in Immigration Detention, ‘Statelessness’ and the Right to Nationality of Children Born into Immigration Detention in Australia’ report by Danielle Chifley. Viewed on 21 September, 2005, at http://www.hreoc.gov.au/human_rights/children_detention/submissions/chifley.html Peters. N 2003, ‘From Aliens to Austr(aliens): a look at immigration and internment policies’ -paper presented at From Curtin to Coombs: war and peace in Australia seminar, Curtin University of Technology, 25 March 2003 . Viewed on 21 September at http://john.curtin.edu.au/events/seminar2003_peters.html Refugee Action Committee, Peter Qasim, Viewed on 21 September, 2005, at http://www.refugeeaction.org/policy/qasim.htm Rubenstein K, Citizenship as a Constitutional Concept; The Past and the Future. Viewed on 21 September, 2005, at www.gtcentre.unsw.edu.au/publications/ papers/docs/2002/87_KimRubenstein.pdf Scott.J, 1998, A Political Dreaming : Our Place Indigenous Aspirations for Constitutional Law Reform, viewed on 21 September 2005, at http://www.abc.net.au/civics/teach/articles/jscott/scotthome.htm Sydney Tilmouth QC, Citizenship as a Constitutional Concept: Singh v the Commonwealth of Australia and Rasul v Bush, President of the United States, viewed on 21 September 2005, at http://www.gtcentre.unsw.edu.au/publications/papers/docs/2005/5_SydneyTilmouth.pdf 1 The Age Online, 2004, Australian born child can be deported, viewed on 21 september,2005 at http://www.theage.com.au/articles/2004/09/09/1094530741070.html?from=storylhs The High Court of Australia Adelaide Office of the Registry, Supplementary submissions of the Human Rights and Equal Opportunities Commission, Intervening. Viewed on 21 September 2005, at http://www.humanrights.gov.au/legal/intervention/khafaji_supp.htm Thompson, GS, 2004, Citizenship and Australian Constitution, viewed on 21 September, 2005 at http://www.sauer-thompson.com/archives/philosophy/002271.html United Nations High Commissioner for Human Rights, Convention relating to the status of stateless persons, viewed on 21 September, 2005 at http://www.unhcr.bg/bglaw/en/convention_relating_s_stateless_persons_en.pdf. United Nations High Commissioner for Human Rights, Summary record of the first part of the 1858th meeting : Australia. 27/07/2000 at the International Covenant on Civil and Political Rights, Palais Wilson, Geneva, 21 July 2000. Viewed on 21 September at http://www.unhchr.ch/tbs/doc.nsf/0/f2c37408cb2ac8e8c12569310032f300?Opendocument Zifcak S. 2004, The forgetting of wisdom: the High Court and Mr Ahmed Al-Kateb, viewed on 21 September 2005, at http://www.newmatilda.com/home/articledetail.asp?ArticleID=317 Read More