20150614-G. H. Schorel-Hlavka O.W.B. To MR TONY ABBOTT PM-Re Removal of Citizenship-Etc

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WITHOUT PREJUDICE
Mr Tony Abbott PM
Cc:
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14-6-2015
C/o josh.frydenberg.mp@aph.gov.au
Bill Shorten Bill.Shorten.MP@aph.gov.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Senator George Brandis senator.brandis@aph.gov.au
George Williams george.williams@unsw.edu.au
Mr Clive Palmer Admin@PalmerUnited.com
Jacqui Lambie senator.ketter@aph.gov.au
Ref; 20150614-G. H. Schorel-Hlavka O.W.B. to Mr Tony Abbott PM-Re removal of citizenship-etc
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Tony,
as a CONSTITUTIONALIST my issue is always what is constitutionally appropriate and
permissible.
The Framers of the Constitution made clear that the Commonwealth of Australia could deny any foreign
coloured inferior race its citizenship.
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IT APPEARS TO ME THE LEVEL OF INTELIGENCED in the Parliaments is zero, this as where politicians refer
to CITIZENSHIP as a nationality then obviously they do not understand/comprehend the constitution.
.
Hansard 19-4-1897 Constitution Convention Debates
QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
QUOTE Mr. SYMON (South Australia).-
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That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton has
described, of choosing or setting up a code of laws to interpret the common law of England. This
Constitution we are framing is not yet passed. It has to be handed over not to a Convention similar to
this, not to a small select body of legislators, but to the whole body of the people for their acceptance or
rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and
it is the whole body of the people, the more or less instructed body of the people, who have to
understand clearly everything in the Constitution, which affects them for weal or woe during the whole
time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution is
commended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be
appreciated by the people.
END QUOTE
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Therefore any legislation enacted within the legislative powers provided for in the constitution
(The Commonwealth of Australia Constitution Act 1900 (UK) to which the States created
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Mr G. H. Schorel-Hlavka O.W.B.
INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0
PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by E-mail INSPECTORRIKATI@schorel-hlavka.com See also www.schorel-hlavka.com at blog Http://www.scribd.com/InspectorRikati
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within s106 are bound subject to this constitution then all and any meanings must be that an
unlettered person can understand it. Citizenship by the embedded legal principles in the
constitution is derived from a State and this automatically provides Federal citizenship. Nothing
to do with nationality.
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I have below also quoted various parts of my 19-6-2015 ADDRESS TO THE COURT in which
I after a 5 year epic legal battle (also having filed and served an s78B NOTICE OF
CONSTITUTIONAL MATTERS) comprehensively defeated the Commonwealth of Australia
and all other Attorney Generals without any one challenging my submission. Hence the issue
about citizenship versus nationality clearly was what I submitted.
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Full text of the Address to the court was published on 6-7-2006 (PRIOR TO THE COURT
HEARING) in:
INSPECTOR-RIKATI & What is the -Australian way of life- really?
A book on CD on Australians political, religious & other rights
ISBN 0-9751760-2-1 (prior to 1-1-2007) ISBN 978-0-9751760-2-3
See chapter NOT VOTING IN A BANANA REPUBLIC
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Therefore the wrongly named Citizenship Act is unconstitutional, this as it purports that
citizenship is a nationality which isnt. Every Australian who qualifies for state citizenship
and being of adult age has the Federal citizenship by s41 of the constitution other than any race
so denied by legislation automatically their citizenship.
Hence, Aboriginals cannot validly (that is constitutionally) be in the Federal Parliament (a
Member of Parliament) because s51(xxvi) legislation automatically disqualifies them from
citizenship. As shown in my submissions to the court, and not challenged by any of the AttorneyGenerals, once any legislation within s51(xxvi) is made against a particular race then it must
apply to all members of that race and all lose their citizenship automatically. This obviously so
they cannot vote down any legislation against them.
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As to the denial of dual nationality, I view that the Parliament is entitled to legislate to provide
the Minister with such powers as to making a political decision and as such cannot be reviewed
by the courts.
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.
QUOTE
Mr. ISAACS.-The court would not consider whether it was an oversight or not. They would take the
law and ask whether it complied with the Constitution. If it did not, they would say that it was invalid.
They would not go into the question of what was in the minds of the Members of Parliament when the law
was passed. That would be a political question which it would be impossible for the court to determine.
END QUOTE
HANSARD 25-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. SYMON.When we have done this it follows that as there is an element of policy, the existence of which no one
can deny, it will be even more necessary than in the case of the Federal High Court-which is not to deal
with matters of policy, or matters tainted with policy, to use the expression of another speaker-that the
tribunal which we are creating should be above the breath of political intrigue. To secure this, I think,
some provision should be inserted similar to the provisions which we have inserted in regard to the Judges of
the High Court. Whatever may have been the case as the Bill left us after the Adelaide session, it seems to be
imperative now, to give effect to what has already been done, that we should introduce into the Constitution
provisions binding the Federal Parliament to create an Inter-State Commission, and placing the Inter-State
Commission, when created, on a level which will raise it above the possibility of the suspicion that its
judgments or actions have been in any way influenced by political considerations.
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END QUOTE
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Where the Commonwealth of Australia relies upon certain details to make a political
decision then where the Parliament has provided the relevant Minister to exercise his
political decision in matters then I view it is beyond the High Court of Australia to get
involved in the matter.
QUOTE
Re: Is plan to strip Australian citizenship from terrorists unconstitutional?
Jim
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Today at 9:19 PM (14-6-2015)

To
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Gerrit,
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It seems that Mal has been paying attention to your constitutional literature. Good to
know others are reading your body of work and using it. If only this country's
politicians were that smart but I suppose it's too much to ask of academic and social
rejects. [grin]
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Jim
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----- Original Message ----From: CSGROUP

To: Jim
Sent: Sunday, June 14, 2015 9:08 PM
Subject: Re: Is plan to strip Australian citizenship from terrorists unconstitutional?
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No it is not un-constutional as there is no such thing in legal terms as an "Australian

citizen" according to the constitution we are "subjects of the Queen", people of the
Commonwealth, and People of the State. To change this a referendum is required as
it is outside of section 51.
Just ask Gerrit he will tell you at the moment in legal terms we are all Stateless.
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----- Original Message ----From: Jim

To: Undisclosed-Recipient:;
Sent: Sunday, June 14, 2015 4:51 PM
Subject: Is plan to strip Australian citizenship from terrorists unconstitutional?
news.com.au
AAP
June 13, 2015 6:48PM
Federal Immigration Minister Peter Dutton. Source: AAP
THE ABBOTT Governments plans to strip citizenship from dual nationals
involved in terrorism could be unconstitutional, the Australian Greens say.
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Greens senator Penny Wright says the proposed laws, which are expected to give
Immigration Minister Peter Dutton discretion to revoke citizenship of Australians
deemed to be working with terrorists, are a serious mistake.
The decision to remove a persons citizenship the most fundamental right of our
constitution must be based on decisions made by a court of law, Senator Wright
said on Saturday.
Her comments follow ABC reports that Solicitor-General Justin Gleeson SC has
declared the bill unconstitutional.
The government says the bill is being drafted and will be constitutionality sound.
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Concerns were also raised by Bret Walker SC, the former independent national
security legislation monitor.
He called for a system that gave central importance to the court not ministerial
discretion, The Australian reported.
They have to prove that you have done the thing, he told The Australian.
Upon that being done, the minister can then say, I see you have been convicted. I
say it is in the public interest that you lose your dual citizenship.
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Asked on Friday if he had sought advice about the constitutionality of the proposed
laws, Attorney-General George Brandis said he consulted his second law officer all the
time and never discussed their conversations.
Mr Dutton defended his potential power earlier this week, saying ministerial discretion
was already allocated for suspending and cancelling passports.
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He said he was open to sharing the power with other ministers. The proposed laws,
which could be introduced during the next fortnight, could also be based on an
incorrect reading of expert advice from former independent security legislation
monitor, Bret Walker SC, The Australian reports.
Mr Walker maintains he called for a system giving central importance to the courts,
with ministerial power only enacted if a person is convicted of a terrorism offence, it is
reported.
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The reports follow a leak from cabinet, detailing a rift between ministers over a
proposal to extend the new laws to sole nationals. The Citizenship Act requires
automatic revocation of citizenship if a person fights with an enemy nation at war with
Australia, with scope for the court to review a decision.
The attorney-generals department has been contacted for comment. AAP ejs/kds/goc/
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http://www.news.com.au/national/politics/is-plan-to-strip-australian-citizenship-fromterrorists-unconstitutional/story-fns0jze1-1227396369931
END QUOTE
QUOTE
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ADDRESS TO THE COURT, Part 2

County Court of Victoria, Case numbers T01567737 & Q10897630
STANDARDS OF BURDEN OF PROOF;
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In criminal matters, at least as I understand it, the

Prosecutor has the burden of proof of criminal standard
to prove not only his case but to disprove each and every
element of the excuses proffered by the accused, this,
while the defendant has the civil standard of proof.
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Therefore, if the Commonwealth Director of Public Prosecution is unable to prove beyond
reasonable doubt any of the excuses or reasons given by the Defendant then the Court
cannot convict, this as the criminal standards of proof requires that each and every element
of the Defendants case must be disproved. It is not good enough for the prosecutor to
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disprove 999 of a 1000 arguments put forwards by the Defendant, as a single argument
failing to be disproved is fatal to the prosecutions case to obtain a conviction.
END QUOTE
ADDRESS TO THE COURT

QUOTE
DESIRE to vote cannot be compulsory to vote!
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&
Section 245 CEA was and remains ULTRA VIRES at least since 4-12-2002 and for this also the 2004
FAILING TO VOTE charge has no legal foundation
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The Defendant has in fact refused to vote in recent State elections and no prosecutions for this followed,
where the Defendant advised to have objections to vote in State elections! As a matter of fact the State
Attorney-General himself advised that there is no State citizenship!
Without State citizenship there can be no Australian citizenship (Commonwealth citizenship) as both includes
franchise. It is because of Federation that the then Colonies transferred certain legislative powers from the
Colonies (now States) to the Commonwealth of Australia that by this obviously the right of a State citizen to
vote who shall be their legislators was partly transferred also to the Commonwealth of Australia by this,
hence, no state citizen could therefore be denied franchise in the Federal arena where such person had
obtained State franchise, as Section 41 of the Constitution protected that right.
At time of Federation and indeed at the time of the Commonwealth of Australia enacting legislation as to
voting, there was no general obligation for anyone to vote. The Commonwealth of Australia began to make
voting compulsory in 1911, this, even so it was not compulsory in the States. By this, the Commonwealth of
Australia unconstitutionally infringed upon the freedoms of the electors. In the error that it could do so
(legislate for compulsory voting) failing to be aware that it was bound by the liberties existing at the time the
Constitution was created, and that it could not diminish or reduce any rights and freedoms, regardless that
any State may have done so since for its own State elections. Subsequently States commenced to legislate
also to make voting compulsory.
END QUOTE

QUOTE
Because the Commonwealth Director of Public Prosecutions had been for several years aware of the
Defendants numerous objections, it was their duty to place before the Court a proper set out, and in writing,
why the Court could invoke jurisdiction. The concealment, as the Defendant views it, by the Commonwealth
Director of Public Prosecutions to do s itself may be deemed fraudulent conduct as it was tantamount to
deceiving the court in if it could invoke jurisdiction or not.
END QUOTE

QUOTE
What is clearly an issue in these proceedings by the defendant is that a State Court cannot be dictated by the
Commonwealth how it shall conduct proceedings and impose any penalty, conviction, etc.
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Yet, the Commonwealth Electoral Act 1918 pursues a fine of $50.00 for a conviction and as such is
unconstitutional as it seeks to interfere with the judicial digression judicial officers in State Courts have. In
particularly in regard of the so called first offenders.
In that regard, somehow a person convicted for FAILING TO VOTE could end up with a criminal record
and a $50.00 fine, where as someone committing a other criminal offence could be let of without conviction
recorded, etc.
Clearly, this also highlights that it is essential that this Court first address the constitutional standing of the
Commonwealth of Australia to dictate State Court judicial officers what they can or cannot do, which directly
interfere with the judicial independence of State Courts.
END QUOTE
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QUOTE
The mere fact that the State itself does not pursue to prosecute the Defendant for allegedly failing to vote in
State elections, and the Federal elections after all are of State interest as they are relating to electing
representatives to legislate under the referred powers to the Commonwealth of Australia, then it is also for
this questionable why on earth the Commonwealth Director of Public Prosecutions nevertheless pursued
charges against the Defendant.
The fact that the Defendant as one of his objections of voting in State elections had that he was not
constitutionally an Australian citizen, and challenged the validity of the Australian Citizenship Act 1948 to
purport otherwise, as he was never granted State citizenship, as the Attorney-General himself made clear that
it does not exist, then where the state has accepted this, the Commonwealth Director of Public Prosecutions
could not then circumvent the state acceptance of this as to then pursue the defendant for allegedly FAILING
TO VOTE in federal elections! After all, the elections for Senators are of State interest as it is to represent the
State in the Senate in the Federal Parliament, and as such any charge for allegedly FAILING TO VOTE in a
Senate election is a State issue, as it are State electoral provisions.
While the Commonwealth of Australia may have the operation of Senate elections they are and remain in
principle depending upon State Governors issuing writs! For this, the Commonwealth of Australia cannot
pursue a matter that is essentially a State issue.
The modus operandi might lie with the Commonwealth but it nevertheless in essential issue is a State issue.
As the State has refrained from making any charges against the Defendant as to an alleged FAILING TO
VOTE then the issue arises what are the charges about of allegedly FAILING TO VOTE? Is the
Commonwealth Director of Public Prosecution pursuing in Court, do they relate to either Senate or House of
Representative elections or both?
If the State of Victoria itself does not pursue any charges then can somehow the Director of Public
Prosecutions nevertheless pursue a charge in regard of Senate elections? Or is it just that the Commonwealth
director of Public Prosecutions himself is totally unable to explain what on earth the charges are really about?
END QUOTE
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QUOTE
The Defendants submits, that Australian citizenship can only be obtained by obtaining State
citizenship, as it is not a nationality, but has to deal with being a recognised State citizens where one
AUTOMATICALLY then obtain Australian citizenship (Commonwealth citizenship which includes
franchise. Because lawyers require to make an Oath of alliance when seeking to be admitted to the BAR to
practice, which now is to a LEGAL FICTIONAL Queen of Australia (as set out further in this
ADDRESS TO THE COURT), while being a Subjects of the British Crown, (as also set out further), then
there is a clear conflict for any judge to deal with this matter which would in effect involve his/her own
personal legal position if qualified to be a judge of this Court. Albeit judicial officers may not be aware that
their true constitutionally nationality is and remain to be British nationals and so any Oath of alliance to a
LEGAL FICTIONAL Queen of Australia would be a conflict. Where the High Court of Australia in Sue
v Hill ousted Heather Hill of being a member of parliament upon the basis that she was having alliance to a
foreign Queen, then as set out further in this ADDRESS TO THE COURT, the same applies to all other
persons, including judicial officers, who by birth (including all those persons born within the Commonwealth
of Australia) or by naturalization are in fact subjects of the British Crown.
END QUOTE

QUOTE
It is a matter of fact that I was issued with a Certificate of Australian Citizenship No. ME9401317C on
the 28th day of March 1994. I do not believe that the Commonwealth Director of Public Prosecutions contest
the issue of this certificate.
The certificate states;
QUOTE
COMMONWEALTH OF AUSTRALIA
Australian citizenship Act 1948
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Certificate of Australian Citizenship
GERRIT HENDRIK SCHOREL
Born on 7 th June 1947
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having applied for a Certificate of Australian Citizenship, having satisfied the conditions prescribed by the
Australian Citizenship Act 19448 for the grant of such Certificate
and having undertaken to fulfil the responsibilities of a citizen.
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I the Minister for Immigration and Ethnic Affairs,

Grant this Certificate of Australian citizenship to the abovenamed applicant who is
an Australian citizen on and after 28 th March 1994.
Issued by the authority
Of the Minister
For Immigration and
Ethnic Affairs.
END QUOTE
By marriage, on 28 March 2001, I became Gerrit Hendrik Schorel-Hlavka
Talbot v. Janson, 3 U.S. 133 (1795)
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Yet, it is to be remembered, and that whether in its real origin, or in its artificial state, allegiance, as
well as fealty, rests upon lands, and it is due to persons. Not so, with respect to Citizenship, which has
arisen from the dissolution of the feudal system and is a substitute for allegiance, corresponding with
the new order of things. Allegiance and citizenship, differ, indeed, in almost every characteristic.
Citizenship is the effect of compact; allegiance is the offspring of power and necessity. Citizenship is a
political tie; allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a
badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is freedom;
allegiance is servitude. Citizenship is communicable; allegiance is repulsive. Citizenship may be
relinquished; allegiance is perpetual. With such essential differences, the doctrine of allegiance is
inapplicable to a system of citizenship; which it can neither serve to controul, nor to elucidate. And yet,
even among the nations, in which the law of allegiance is the most firmly established, the law most
pertinaciously enforced, there are striking deviations that demonstrate the invincible power of truth,
and the homage, which, under every modification of government, must be paid to the inherent rights of
man.
And
These are tacit acknowledgments of the right of expatriation, vested in the individuals; for, though they are
instances of adopting, not of discharging, subjects; yet, if Great Britain would (ex gratia) protect a Russian
naturalized by service, in her fleet, it is obvious that she cannot do so without recognizing his right of
expatriation to be superior to the Empress's right of allegiance. But it is not only in a negative way, that these
deviations in support of the general right appear. The doctrine is, that allegiance cannot be due to two
sovereigns; and taking an oath of allegiance to a new, is the strongest evidence of withdrawing
allegiance from a previous, sovereign.
And
The power of naturalizing has been vested in several of the state governments, and it now exists in the
general government; but the power to restrain or regulate the right of emigration, is no where
surrendered by the people; and it must be repeated, that, what has not been given, ought not to be
assumed. It may be said, however, that such a power is necessary to the government, and that it is
implied in the authority to regulate the business of naturalization. In considering these positions, it
must be admitted, that although an individual has a right to expatriate himself, he has not a right to
seduce others from their country. Hence, those who forcibly, or seductively, take away a citizen,
commit an act, which [p*143] forms a fair object of municipal police; and a conspiracy or combination,
to leave a country, might, likewise be properly guarded against. Such laws would not be an infraction
of the natural right of individuals; for, the natural rights of man are personal; he has no right to will
for others, and he does so, in effect, whenever he moves the mind of another to his purpose, by fear, by
fraud, or by persuasion.
And
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But naturalization and expatriation are matters of internal police; and must depend upon the
municipal law, though they may be illustrated and explained by the principles of general
jurisprudence. It is true, that the judicial power extends to a variety of objects; but the Supreme Court
is only a branch of that power; and depends on Congress for what portion it shall have, except in the
cases of ambassadors, &c. particularly designated in the constitution. The power of declaring whether
a citizen shall be entitled in any form to expatriate himself, or, if entitled, to prescribe the form, is not
given to the Supreme Court; and, yet, that power will be exercised by the court, if they shall decide
against the expatriation of Captain Talbot. Let it not, after all, be understood, that the natural, locomotive, right of a free citizen, is independent of every social obligation. In time of war, it would be
treason to migrate to any enemy's country and join his forces, under the pretext of expatriation. 1 Dall.
Rep. 53, and, even in time of peace, it would be, reprehensible (say the writers on the law of nature and
nations) to desert a country labouring under great calamities. So, if a man acting under the obligations
of an oath of office, withdraws to elude his responsibility, he changes his habitation, but not his
citizenship. It is not, however, private relations, but public relations; private responsibility, but public
responsibility; that can affect the right: for, where the reason of the law ceases, the law itself must, also,
cease. There is not a private relation, for which a man is not as liable by local, as by natural,
allegiance;--after, as well as before, his expatriation: He must take care of his family, he must pay his
debts, wherever he resides; and there is no security in restraining emigration, as to those objects, since,
with respect to them, withdrawing is as effectual, as expatriating. Nor is it enough to impair the right of
expatriation, that other nations are at war; it must be the country of the emigrant. No nation has a right to
interfere in the interior police of another: the rights and duties of citizenship, to be conferred, or released, are
matter of interior police; and yet, if a foreign war could affect [p*145] the question, every time that a fresh
power entered into a war, a new restraint would be imposed upon the natural rights of the citizens of a neutral
country; which, considering the constant warfare that afflicts the world, would amount to a perpetual
controul. But the true distinction appears to be this:--The citizens of the neutral country may still exercise the
right of expatriation, but the belligerent power is entitled to say, "the act of joining our enemies, flagrante
bello, shall not be a valid act of expatriation." By this construction, the duty a nation owes to itself, the sacred
rights of the citizen, the law of nations, and the faith of treaties, will harmonize, though moving in distinct
and separate courses. To pursue the subject one step further: A man cannot owe allegiance to two
sovereigns. 1Bl. Com. He cannot be citizen of two republics. If a man has a right to expatriate, and
another nation has a right and disposition to adopt him, it is a compact between the two parties,
consummated by the oath of allegiance. A man's last will, as to his citizenship, may be likened to his
last will, as to his estate; it supersedes every former disposition; and when either takes effect, the party,
in one case, is naturally dead, in the other, he is civilly dead;--but in both cases, as good Christians and
good republicans, it must be presumed that he rises to another, if not to a better, life and country. An
act of expatriation, likewise, is susceptible of various kinds of proof. The Virginia law has selected one,
when the state permits her citizens to depart; but it is not, perhaps, either the most authentic, or the
most conclusive that the case admits. It may be done obscurely in a distant county court; and even
after the emigrant is released from Virginia, to what nation does he belong? He may have entered no
other country, nor incurred any obligation to any other sovereign. Not being a citizen of Virginia, he
cannot be deemed a citizen of the United States. Shall he be called a citizen of the world; a human
balloon, detached and buoyant in the political atmosphere, gazed at wherever he passes, and settled
wherever he touches? But, on the other hand, the act of swearing allegiance to another sovereign, is
unequivocal and conclusive; extinguishing, at once, the claims of the deserted, and creating the right of
the adopted, country. Sir William Blackstone, therefore, considers it as the strongest, though an ineffectual,
effort to emancipate a British subject from his natural allegiance; and the existing constitution of France
declares it expressly to be a criterion of expatriation. The same principle operates, when the naturalization
law of the United States provides, that the whole ceremony of initiation shall be performed in the American
courts; and if it is here considered as the proof of adoption, shall it not be considered, also, as the test of
expatriation? If America [p*146] makes citizens in that way, shall we not allow to other nations, the privilege
of the same process? In short, to admit that Frenchmen may be made citizens by an oath of allegiance to
America, is, virtually, to admit, that Americans may be expatriated by an oath of allegiance to France. After
this discussion of principles, forming a necessary basis for the facts in this case, it is insisted, 1st, That Talbot
was a naturalized citizen of the French Republic at the time of receiving a commission to command the
privateer, and of capturing the Magdalena. He left this country with the design to emigrate; and the act of
expatriation must be presumed to be regular, according to the laws of France, since it is certified by the
municipality of Point a Pitre, by the French Consul, and by the Governor of Guadaloupe. 2d, That Redick
was also, a naturalized citizen of the French Republic, when he purchased the vessel, and received a
commission to employ her as a privateer.
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And
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Ballard was a citizen of Virginia, and also of the United States.
Within the united States of America a person granted naturalization is also granted citizenship, where as the
Commonwealth of Australia Constitution Act 1900 (UK) does not provide for this.
Section 51(xix) provides for naturalization.
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As already extensively placed before the magistrates in previous proceedings (upon which I rely before this
Court also) some of the Colonies (now States) naturalized aliens and others didnt however each and
every Colony did have legislation in regard of citizenship and the rights to franchise.
The Hansard records of the 2 March and 3 March 1898 Constitutional Convention Debates made clear that
naturalization powers would be transferred from the Colonies to the newly to be formed Commonwealth of
Australia, as it would be approved by the British Parliament but CITIZENSHIP legislative powers would
be retained by the States in the newly formed Commonwealth of Australia.
Mr Quick proposed to give the Commonwealth of Australia constitutional powers to define/declare
CITIZENSHIP but this was defeated/refused by the Delegates!
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I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of
that federal citizenship, we were not in any way interfering with our position as subjects of the British
Empire. It would be beyond the scope of the Constitution to do that.
Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to give any legislative
powers to the commonwealth of australia to interfere with the rights of any person as a British subject.
Hansard 2-3-1898 Constitution Convention Debates;
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Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike
subjects of the British Crown.
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler
than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present
when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the position
we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal
citizenship, and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a
Commonwealth, but we would still be, subjects of the Queen. I see therefore nothing unconstitutional,
nothing contrary to our instincts as British subjects, in proposing to place power in this Constitution to
enable the Federal Parliament to deal with the question of federal citizenship. An objection has been raised in
various quarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the effect that we
ought to define federal citizenship in the Constitution itself. I have considered this matter very carefully, and
it has seemed to me that it would be most difficult and invidious, if not almost impossible, to frame a
satisfactory definition. There is in the Constitution of the United States of America a cast-iron definition
of citizenship, which has been found to be absolutely unworkable, because, among other things, it says
that a citizen of the United States shall be a natural-born or naturalized citizen within the jurisdiction
of the United States, and it has been found that that excludes the children of citizens born outside the
limits of this jurisdiction. That shows the danger of attempting definitions, and although I have placed
a proposed clause defining federal citizenship upon the notice-paper, the subject, seems to me
surrounded with the greatest difficulty, and no doubt the honorable and learned members (Mr. Wise,
Mr. O'Connor, and Mr. Symon) would be the first to attack any definition, and would be able to
perforate it. In my opinion, it would be undesirable to implant a cast-iron definition of citizenship in
the Constitution, because it would be better to leave the question more elastic, more open to
consideration, and more yielding to the advancing changes and requirements of the times.
Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the Commonwealth
will seek to derogate from it, but I will not place a power in the hands of the Commonwealth which will
enable them to derogate from it, and if that is not done it will be merely a dead letter. Is there any citizen of
the Commonwealth who is not already a citizen of the state? State citizenship is his birthright, and by virtue
of it he is entitled to the citizenship of the Commonwealth. When you have immigration, and allow
different people to come in who belong to nations not of the same blood as we are, they become
naturalized, and thereby are entitled to the rights of citizenship.
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Sir EDWARD BRADDON.-They are citizens if they are British subjects before they come here.
Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of the states, and it is
by virtue of their citizenship of the states that they become citizens of the Commonwealth. Are you
going to have citizens of the state who are not citizens of the Commonwealth?
Mr. KINGSTON.-In some states they naturalize; but they do not in others.
Mr. WALKER.-Is not a citizen of the state, ipso facto, a citizen of the Commonwealth?
And
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Mr. SYMON.-The honorable and learned member is now dealing with another matter. Would not the
provision which is now before us confer upon the Federal Parliament the power to take away a portion of this
dual citizenship, with which the honorable and learned member (Dr. Quick) has so eloquently dealt? If that is
the case, what this Convention is asked to do is to hand over to the Federal Parliament the power, whether
exercised or not, of taking away from us that citizenship in the Commonwealth which we acquire by joining
the Union. I am not going to put that in the power of any one, and if it is put in the power of the Federal
Parliament, then I should feel that it was a very serious blot on the Constitution, and a very strong reason why
it should not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood
who is entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of
having that taken away or diminished by the Federal Parliament! When we declare-"Trust the
Parliament," I am willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement for
joining the Union.
And
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Mr. OCONNOR.-I have said that I do not see that such a trust in the Federal Parliament would be
effective. I sympathize with the honorable member's view, but I think it will be carried out by some kind of
definition of citizenship, and I was pointing out the only aspect in which it appears to me it might be
desirable to have some such definition, and that is, you are creating new rights to citizens of the
Commonwealth as citizens of the Commonwealth in regard to your courts. You establish courts for the
Commonwealth, and every citizen of the Commonwealth is entitled to the use of those courts.
Mr. HIGGINS.-Who is he?
And
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Mr. GLYNN (South Australia).-I shall have to oppose Dr. Quick's amendment, although I would really go
further than he intends. His object is to have a common citizenship, and he proposes to define that in a
proposed new clause, 120A, which reads as follows:All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen, and
not under any disability imposed by the Parliament, shall be citizens of the Commonwealth;
35
and he now wants to give power to Parliament to vary that subsequently.

Mr. ISAACS.-It is not clause 120A that he is proposing now.
Mr. HIGGINS.-It is his amendment in clause 52-to insert "Commonwealth citizenship" as a new subsection.
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Mr. GLYNN.-I am quite aware of that, but what I want to understand is whether Dr. Quick will propose
the insertion of clause 120A, and also put it in the power of the Parliament to vary the Commonwealth
citizenship under clause 52? That is the point about which I am doubtful. But I desire to point out that Dr.
Quick is not going as far as they have gone in America or Germany. There is a common citizenship both of
the Commonwealth and of the states in America. Citizenship of the Commonwealth carries with it
citizenship of the states, and the Constitution provides that immunities and privileges enjoyed by the citizens
of a particular state shall be equally shared, when in that state, by the citizens of all the other states. Now, the
German Constitution makes a declaration that there must be a common citizenship. It does not state that the
Parliament of Germany will have the power of providing for a citizenship of the empire, but that there must
be a common citizenship of the whole empire, and that the privileges which are given in one part of the
empire would apply right through the whole empire. That is to say, there is a Commonwealth citizenship and
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a state citizenship running the one with the other-a perfect equality of rights. All that is done in Germany is
that Article 3 of the Imperial Constitution declares that there shall be a common citizenship for all Germany,
and that the rights of the individual citizens of any state must be extended to the individual citizens of any
other state as long as they come within the jurisdiction of the former state; but the German Constitution also
provides that Parliament-and here is the distinction-may define what the conditions of that common
citizenship are to be. The Constitution declares that there must be a common citizenship, but it leaves the
determination of the particular terms of that citizenship to the Parliament. That is different from the proposal
of Dr. Quick.
And
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[start page 1761]

Mr. KINGSTON.-It was in the Bill.
Mr. OCONNOR.-There is no portion of the Bill which gives any right of citizenship, or points out what
citizenship is.
Mr. HIGGINS.-The word "citizen " occurred in clause 110, although it is now struck out.
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And
Mr. OCONNOR.-The words in clause 110 do not define any right of citizenship; they prevent certain
restrictions upon it. I would point out to Dr. Quick that he is proposing to give a power to regulate or describe
rights of citizenship, when we really do not know at present what is meant by a citizen. I confess I do not
know what the honorable and learned member means by that term. Does he mean only the political rights
which you give to every inhabitant of a state who is qualified to vote, or does he go beyond that, as the
American decisions have gone, and describe every person who is under the protection of your laws as a
citizen? The citizens, the persons under the protection of your laws, are not the only persons who are entitled
to take part in your elections or in your government, but every person who resides in your community has a
right to the protection of your laws and to the protection of the laws of all the states, and has the right of
access to your courts. If you are going to define citizenship for the purpose of giving these rights, you must
say clearly what you mean by citizenship. You leave it to the Federal Parliament to say what citizenship is;
and I think there is a great deal in what Mr. Glynn says, that we must not hand over to the Federal Parliament
the power to cut down the rights the inhabitants of these states have at the present time. If we do not know
what you mean by citizenshipMr. ISAACS.-Commonwealth citizenship.
Mr. OCONNOR.-Exactly. But if we do not know what you mean by citizenship-whether you mean to
restrict it to political rights or to the right of protection under your laws, which every person, whether a
naturalized subject or a person for the time being resident in one of these communities, possesses-we may
drive the Federal Parliament into some difficulty, in which it is not at all unlikely that some cutting down of
what we believe to be the rights of citizenship may take place. I would point out that under the Bill the
power of dealing with aliens and immigration gives an abundant right to the Commonwealth to protect
itself, and, of course, the right of defining citizenship will have to be exercised with due regard to any
laws which might be made regarding the position of aliens. I would ask my honorable friend (Dr. Quick)
to say if he has considered how far he means the Federal Parliament to go in the definition of citizenship, and
what he means by citizenship? Because, unless we have a clear idea of that, it seems to me that we are
handing over to the Federal Parliament something which is vague in the extreme, and which might be
misused.
And
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Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the
operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a
citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a
state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual
citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen
of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all.
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10
But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those
who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not
expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this
Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision
and clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want
to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it,
the right of depriving me of citizenship. I put this only as an argument, because no one would anticipate
such a thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year
should be a citizen of the Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not?
15
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this
Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a
citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or
restrict those rights of citizenship, except with regard to one particular set of people who are subject to
disabilities, as aliens, and so on. Subject to that limitation, we ought not, under this Constitution, to hand
over our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the amendment
will not be accepted.
And
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Mr. BARTON.-If the honorable member's exclamation means more than I have explained, then the best
thing to do is to confide to the Commonwealth the right of dealing with the lives, liberty, and property of all
the persons residing in the Commonwealth, independently of any law of any state. That is not intended, but
that is what the expression "Trust the Federal Parliament" would mean unless it was limited by the
consideration I have laid down. I am sure Dr. Quick will see that he is using a word that has not a definition
in English constitutional law, and which is not otherwise defined in this Constitution. He will be giving to
the Commonwealth Parliament a power, not only of dealing with the rights of citizenship, but of
defining those rights even within the very narrowest limits, so that the citizenship of a state might be
worth nothing; or of extending them in one direction, and narrowing them in another, so that a subject
living in one of the states would scarcely know whether he was on his head or his heels. Under the
Constitution we give subjects political rights to enable the Parliament to legislate with regard to the suffrage,
and pending that legislation we give the qualification of electors. It is that qualification of electors which is
really the sum and substance of political liberty, and we have defined that. If we are going to give the
Federal Parliament power to legislate as it pleases with regard to Commonwealth citizenship, not
having defined it, we may be enabling the Parliament to pass legislation that would really defeat all the
principles inserted elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is
not what is meant by the term "Trust the Federal Parliament."
Mr. HIGGINS.-You give the Federal Parliament power to naturalize.
40
Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the British Empire.
Have we not done enough? We allow them to naturalize aliens. That is a power which, with the consent
of the Imperial authority, has been carried into legislation by the various colonies, and, of course, we
cannot do less for the Commonwealth than we have done for the colonies.
Mr. KINGSTON.-Such legislation is only good within the limits of each state.
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Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a
person has as a British subject-the right of personal liberty and protection under the laws-is secured by
being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by
the laws are not among the subjects confided to the Commonwealth. The administration of [start page
1766] the laws regarding property and personal liberty is still left with the states. We do not propose to
interfere with them in this Constitution. We leave that amongst the reserved powers of the states, and,
therefore, having done nothing to make insecure the rights of property and the rights of liberty which at
present exist in the states, and having also said that the political rights exercisable in the states are to be
exercisable also in the Commonwealth in the election of representatives, we have done all that is necessary. It
is better to rest there than to plunge ourselves into what may be a sea of difficulties. We do not know to what
extent a power like this may be exercised, and we should pause before we take any such leap in the dark.
Again;
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disabilities, as aliens, and so on. Subject to that limitation, we ought not, under this Constitution, to hand
over our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the amendment
will not be accepted.
Also
10
The administration of [start page 1766] the laws regarding property and personal liberty is still left
with the states.
As was made clear by Mr quick;
15
I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of
that federal citizenship, we were not in any way interfering with our position as subjects of the British
Empire. It would be beyond the scope of the Constitution to do that. We might be citizens of a city,
citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.
Therefore, the Constitution never provided any constitutional powers for the Commonwealth of Australia to
legislate as to CITIZENSHIP.
20
As the Commonwealth of Australia was provided with powers within Subsection 51(xix) of the constitution
to naturalize aliens to become British nationals and the Nationalization Act was enacted after
Federation then clearly the powers to naturalize an alien to become a British national is not diminish. In 1948,
the Federal parliament then replaced the Naturalization Act with the Australian citizenship Act 1948 by this
STEALING the legislative powers of the States states in regard of citizenship by purporting that there
was an Australian citizenship as an Australian nationality.
Barton J, the parliament cannot give the word a meaning

not warranted by s73 of the Constitution.
Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.
25
If the Commonwealth of Australia never had any constitutional powers to declare/define citizenship then
what is the meaning of the Certificate of Australian Citizenship realty?
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If Australian citizenship is purported to be Australian nationality then this must fail as Subsection 51(xix)
provided constitutional powers for the Commonwealth of Australia to naturalize aliens to become British
nationals! Without any Section 128 referendum this cannot be changed to some purported Australian
nationality.
We either have a Constitution or not! We use it as was intended by the framers of the Constitution, modified
as have been provided for by the successful referendums or we have no constitution at all and no federation
exist!
In view that the British parliament declared Australians to be foreigners can this then alter the application
of the constitution, one may ask?
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Constitutional law cannot be amended by mere implication but must be amended by appropriate legislation.
In the case of the Commonwealth of Australia Constitution Act 1900 (UK) Section 128 exclude the British
Parliament to amend the constitution as it can only be amended by the consent of the people, as expressed by
a Section 128 referendum. Hence, regardless if the British parliament did or didnt pass legislation to declare
Australians foreigners the only way to resolve the matter was and remains to have the Constitution
amended to allow the Commonwealth of Australia to naturalize aliens to become Australian nationals.
The following part of transcript indicates how the High Court of Australia itself is confusing citizenship
with nationality.
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Dang, Ex parte - Re MIMA M118/2001 (18 April 2002)

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M25 of 2001
55
TRANSCRIPT OF PROCEEDINGS
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AT CANBERRA ON THURSDAY, 18 APRIL 2002, AT 10.17 AM
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KIRBY J: Your clients were not British subjects.

MR MAXWELL: That is so. If I might move immediately to the question of what Patterson decided. In our
respectful submission, what Patterson decided was this, that allegiance, not citizenship, is the touchstone for
determining alien status.
KIRBY J: There is only one reference to citizenship in the Constitution, is there not, and that is the
disqualification that was considered in Sue v Hill?
MR MAXWELL: Yes, your Honour.
KIRBY J: There is no other reference to the concept and, indeed, we did not have a Citizenship Act until
quite late in the history of the Commonwealth.
MR MAXWELL: One of the critical aspects which comes through clearly in the judgments, both the
dissenting and the majority judgments in Patterson, is the point your Honour has just adverted to: alien is a
concept of our Constitution, citizenship is a concept of our statute law. Your Honours Justices Gummow and
Hayne in the joint judgment put in these terms the proposition advanced by the prosecutor in Patterson,
namely, at paragraph [223]:
alienage and citizenship . . . do not occupy the relevant universe of discourse That, we would respectfully adopt, though your Honours disagreed in the result, as being the proposition
which the majority did endorse. That is to say, it does not follow that because a person is a non-citizen he or
she is, by definition, an alien because you must be one or the other.
What Patterson held and why Nolan had to be overruled was that there is a category of non-citizen non-alien.
That is what your Honours held by majority Taylor was. He was not a citizen and he was not an alien.
GUMMOW J: I should make clear to you I do not regard that matter as closed.
MR MAXWELL: I am indebted to your Honour.
GUMMOW J: It seems to me absolutely fundamental.
MR MAXWELL: It is absolutely fundamental and, in our respectful submission, there can be no conclusion,
with respect, other than that is what this Court found because Mr - - GUMMOW J: I am not so sure about that. The Solicitor-General goes into all of this.
MR MAXWELL: Your Honour, we note with some surprise that less than a year after that decision was
handed down, the Commonwealth is inviting this Court to reopen it and overrule it if it says what we say it
says.
GUMMOW J: The question really is whether it should have overruled Nolan. Now, I will not hold you up.
MR MAXWELL: Your Honour, in our respectful submission, this Court did overrule Nolan. Four Justices
of the Court addressed the question whether it should be overruled and each of them decided for reasons
given that it should and it is no longer the law in this country, in our respectful submission, and we will go
further and say that necessarily Pochi was at best left under a considerable cloud, if not necessarily overruled
by that overruling.
GUMMOW J: It seems to me what I was putting to you really can be put to one side because you have to go
further in this case, and that is the real point.
MR MAXWELL: Indeed, your Honour. Plainly enough - - KIRBY J: As I understand your argument, it is that until Taylor there was clear authority that there was a
simple clear criterion for alienage, non-citizen.
MR MAXWELL: Exactly so.
KIRBY J: After Taylor, whatever is the criterion, the base has shifted.
KIRBY J: It did not have to shift further than British subjects to resolve the issue of Patterson.
MR MAXWELL: That is so.
KIRBY J: But you say, having shifted the basis, a new, stable basis must be found and therefore this case
presents the obligation to find that new, stable basis.
GUMMOW J: And what is the stable basis?
MR MAXWELL: The starting point is that the obligation of allegiance can come into existence between a
person and the Queen of Australia otherwise than by the taking out of citizenship. The next question is, by
what criteria is the establishment of that obligation to be determined - I am sorry, your Honour?
GAUDRON J: You say "can". Did Patterson go further than say at a certain time it could come into
operation by that method in respect of a certain category of people?
MR MAXWELL: That is so, but - - GAUDRON J: Yes. Well, you have to go beyond that to say that since, when? At all relevant times it has
been possible and it continues to be possible?
MR MAXWELL: Your Honour, all I need to establish is that at the date of the relevant decisions the
obligation of allegiance had been assumed by these individuals. It is quite separate, of course, from the
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discussion which was necessarily engaged in for Patterson about the evolution of the Crown in right of
Australia and its separation from Britain. These are, plainly, individuals who have never been British
subjects. This is a different case. But as his Honour Justice Kirby has put, we will be inviting the Court to
explore this category of non - - GUMMOW J: We do not set off on exploration tasks. We respond to submissions and we are trying to find
what your submission is.
MR MAXWELL: Of course, your Honour.
GUMMOW J: You can tantalise us with this notion of a stable basis. The question is: what is it?
MR MAXWELL: In these cases - - GUMMOW J: Bearing in mind that Patterson was, on one view of it, all about the changing nature of the
British Commonwealth, to use that expression.
MR MAXWELL: Your Honour, we put the stable basis on three bases in these cases as set out in our
submission. First, we say that each of these individuals renounced his allegiance to his country of birth by
fleeing from a regime which could not guarantee him protection.
GUMMOW J: How do notions of allegiance work with republican systems of government? As I understand
it, the whole notion of citizenship dates back to the American and French Revolutions, where they had to
replace notions of allegiance which were monarchical with something else and they devised the notion of
citizenship. These gentlemen never owed allegiance to any sovereign, did they?
MR MAXWELL: No, though your Honour will - - KIRBY J: Although they would have been born during the reign of Prince Sihanouk. Cambodia was not a
separate colony of France; it was a protectorate. So I think that is something we would not know without
some detail.
GUMMOW J: That is right.
MR MAXWELL: But, your Honour, in our respectful submission, as a matter of principle this will not turn
on whether a person came from a country which was a monarchy or a republic. The concept of allegiance - - GUMMOW J: The point I am trying to make to you is that notions of allegiance come out of English
medieval feudalism. That is where it comes from - monarchical feudalism.
MR MAXWELL: With respect, we fully appreciate that. As your Honours in the lengthy joint judgment
explained, the concept has developed very significantly since the original notion of personal loyalty to a lord.
It became, and it was declared in the Court of Queen's Bench in the 1880s, as your Honours pointed out, that
it changed from a personal obligation or an obligation to the sovereign in his or her personal capacity to an
obligation to the sovereign in his or her political capacity. That is just one respect in which the discussion
about allegiance in the 21st century is a different discussion from that which it would have been under more
confined notions.
HAYNE J: And it is pointed up by your proposition that each renounced allegiance to the country of his birth
because the regime of the day would not protect him.
HAYNE J: But is allegiance concerned with allegiance to the government? Is it more abstracted a notion
than allegiance to whatever regime is in power?
GAUDRON J: There is a further question of course too and that is, by whose law is this renunciation to be
determined? That was addressed in Sykes and the general principle of international law is that that is
determined by the laws of the country of which the person was a citizen or to which he or she owed
allegiance.
GAUDRON J: So it is not a simple question, I should have thought.
MR MAXWELL: No, and it is not necessary for our argument, with respect, that there have been no
renunciation.
GAUDRON J: Well - - MR MAXWELL: It is not. It happens to be the fact and it makes our cases a fortiori, but what is the critical
question is whether it can be said of the person that he has assumed the obligation of allegiance and our
submission puts it that it - - GAUDRON J: And you put that as a one-way traffic as well.
MR MAXWELL: Well, with respect, no we do not. We gratefully accept the analysis of their Honours in the
joint dissenting judgment, which points out that changes in the relationship of allegiance can occur either by
the joint act of the parties to it, the subject and the sovereign, or by the unilateral act of either, which, apart
from anything else, enables us to put to one side the old notion that allegiance was perpetual and the naturalborn subject could never give it up. The concept of naturalisation scotched that notion 100 years ago. It can
be given up by a formal act. We submit that one would expect to find a parallel notion of renunciation by
conduct, but we accept - and our learned friends say just because you have renounced your citizenship of
another country does not mean you have become a citizen of Australia. Well, we accept that. We do not
assert that the renunciation somewhere else makes you a subject of the Queen of Australia. There needs to be
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an act or a course of conduct of which it can be said that this person enjoys the protection of the Queen of
Australia and owes her obligations of allegiance.
GLEESON CJ: At which stage did your clients cease to owe allegiance to Cambodia or Vietnam
respectively?
MR MAXWELL: At the time they sought refuge in refugee camps or, alternatively, upon the grant of
permanent residence visas to each of them, enabling them to come from the refugee camp to Australia. At
that point, we have argued in our submission that the self-description as a refugee is the explanation or the
manifestation of the renunciation.
GLEESON CJ: They are interesting alternatives, in practice, because if the former is correct, they would
have been in the same situation even if they had been refused visas.
MR MAXWELL: That is so. Again, they were granted visas and that means that - and we will take your
Honours in due course to the findings of fact in the Tribunal in each case - each of these persons was a
refugee at the time and, as I understand it, there is no dispute about that. We do not say that an application for
refugee status was made and determined in Australia. There is no evidence that that occurred. Nor is there
any doubt but that they were refugees in the sense in which that term is understood - defined in the
Convention. Your Honours will see in the material a question arises before the Tribunal "whether the
protection obligations which Australia owed under the Convention still obtained as at the date of the Tribunal
review?" Held: "No they don't. Conditions have changed in Cambodia or Vietnam. The protection obligation
does not subsist."
To come back to your Honour's question. The assertion of refugee status is the act of renunciation because it
is a statement that, "I cannot rely on the sovereign government of my country to protect me." Indeed, that
language is used in the Convention itself.
GLEESON CJ: Why did they need visas? I wondered if it was because they were aliens.
MR MAXWELL: Well, they otherwise had no right to enter Australia.
GUMMOW J: You seem to be asserting they did. Of course HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution - - MR MAXWELL: As a matter of international law - - GUMMOW J: Forget about international law, because HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution operated in some magical way.
MR MAXWELL: No, your Honour. We conceded before Justice Hayne that these people had not - I think
we conceded they were aliens at the point of arrival. We will seek to qualify that concession by the protection
allegiance argument we have made in our reply. We start with the proposition that Australia owed obligations
of protection to these refugees under the 1951 Convention. At that point there was an acceptance of what is
described in the Refugee Convention in these terms, and it is in the material, a person is, "unable or . . .
unwilling to avail himself of the protection of that country".
What is helpful in this analysis, in our respectful submission, is what Sir John Salmond, in the Law Quarterly
Review article that we will take your Honours to, and the House of Lords in Joyce refer to as "the reciprocal
obligations of protection by the sovereign to the subject and allegiance by the subject to the sovereign."
KIRBY J: Could I just ask a factual matter, that is partly a legal matter. Was there any impediment to your
clients becoming naturalised Australian citizens?
MR MAXWELL: Not that I am aware of, your Honour, no. No application was made. At a certain point
they may have, by their criminal convictions, become unable to satisfy the "good character" requirement.
KIRBY J: Does one draw any inference at all from the fact that in the interval between their arrival as
children and their evictions, that they could have signified their allegiance to the Queen of Australia and the
people of Australia by becoming citizens but omitted, failed, refused to do so?
MR MAXWELL: In our respectful submission, no. One draws no inference because - and this comes back
to the fundamental point - the assumption of citizenship - we have put this in terms in the outline - is a
sufficient condition of allegiance but it is not a necessary condition, and that is what Patterson held. If that is
correct, then the non-taking out of citizenship does not disqualify a person from being a subject of the Queen
of Australia.
GAUDRON J: But are we not a little bit off the track here? From a constitutional point of view we are
concerned with aliens and non-aliens. At least in the case of persons who are not and never have been British
subjects is it not the case that it is well within the legislative power of the Parliament to decide and define
who are and who are not aliens?
CALLINAN J: That is what Mr Justice Barton said in Ferrando v Pearce.
GAUDRON J: But is that not the case, that it has legislative power to define who are and who are not aliens?
MR MAXWELL: Yes, but, with respect, to exclude from a statutory definition of aliens - let me put that
differently - to include within a statutory definition of aliens someone who is not is beyond power.
GLEESON CJ: But if granting a visa to someone produces the result that they are not an alien, then the
entire scheme of the Migration Act 1997 has miscarried, has it not? Its long title is it is "An Act relating to the
p17
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18
entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens".
Visas can be cancelled, can they not?
By the reasoning of the Framers of the Constitution (the Delegates to the Constitution Conventions) a
subject to the Crown was anyone who was subjected to the laws of the Crown regardless if they were aliens
or not.
Shaw v Minister for Immigration and Multicultural Affairs
HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/72.html"
9 December 2003
B99/2002
10
10.
15
20
[2003] HCA 72
However, contrary to the submissions for the applicant, the result of such a consideration of his position is
his classification as an alien for the purposes of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/num_act/c167/s51.html" s 51 (xix) of the Constitution. Much of
the applicant's argument proceeded from the premise that, because the expression "British subject" could be
applied to him, he was not an alien. That premise is flawed. First, "British subject" is not a constitutional
expression; it is a statutory expression. Secondly, and more fundamentally, if "British subject" was being
used as a synonym for "subject of the Queen", an expression which is found in the Constitution, that usage
would assume that there was at the time of federation, and there remains today, a constitutional and political
unity between the UK and Australia which 100 years of history denies.
Hansard 2-3-1898 Constitutional Convention Debates
Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are alike subjects of
the British Crown.
25
Mr. MUNRO:
. I am proud of being a citizen of the great British empire, and shall never fail to be proud of that
position.
30
Mr. HOLDER:
35
because I take it that the legal bonds which bind us to the mother-country, to the great British Empire,
40

Mr. BARTON:
The association of the Queen with the action of the commonwealth is distinct, and is firmly embedded in
the whole bill. If that is done, there can be no association of the idea of republicanism with this bill.
45
50
55

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a
person has as a British subject-the right of personal liberty and protection under the laws-is secured by
being a citizen of the States. It must be recollected that the ordinary rights of liberty and protection by the
laws are not among the subjects confided to the Commonwealth.
Dr. QUICK.we were not in any way interfering with our position as subjects of the British Empire. It would be
beyond the scope of the Constitution to do that. We might be citizens of a city, citizens of a colony, or
citizens of a Commonwealth, but we would still be, subjects of the Queen.
Mr. BARTON.We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined term, and
is not known to the Constitution. The word "subjects" expresses the relation between citizens of the empire
and the Crown.
Sir GEORGE TURNER.-Is a naturalized alien a subject?
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19
Mr. BARTON.-He would be a citizen under the meaning of this clause.
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that include
naturalized aliens?
10
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth, either natural-born
or naturalized subjects of the Queen, and if they are subject to no disabilities imposed by the Parliament they
shall be citizens of the Commonwealth. Why not use the word "subject," and avoid the necessity of this
definition?
And
Mr. OCONNOR.-Exactly. It has two meanings, but we are only dealing now with the one meaningthe general meaning. Mr. Isaacs' reference shows the danger that might be incurred by using the word
"citizen," because it might have the restrictive meaning the last decision imposes. All we mean now is a
member of the community or of the nation, and the accurate description of a member of the
community under our circumstances is a subject of the Queen resident within the Commonwealth."
Mr. SYMON.-A person for the time being under the law of the Commonwealth.
15
Mr. OCONNOR.-A person for the time being entitled to the benefits of the law of the
Commonwealth.
And
20
Mr. BARTON (New South Wales).-If it is a fact that citizens, as they are called, of each state are also
citizens of the Commonwealth, there may be some little doubt as to whether this is not providing for
practically the same thing.
Mr. WISE.-No, there may be territories that is what I want to provide for.
25
Mr. BARTON.-In other portions of the Bill we use the words "parts of the Commonwealth" as
including territories, so that the object of Mr. Wise would be met by using the words "citizens of every
part of the Commonwealth" or "each part of the Commonwealth."
And
Mr. BARTON.We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined
term, and is not known to the Constitution. The word "subjects" expresses the relation between
citizens of the empire and the Crown.
30
Sir GEORGE TURNER.-Is a naturalized alien a subject?

Mr. BARTON.-He would be a citizen under the meaning of this clause.
Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that include
naturalized aliens?
35
Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth, either natural-born
or naturalized subjects of the Queen, and if they are subject to no disabilities imposed by the Parliament they
shall be citizens of the Commonwealth. Why not use the word "subject," and avoid the necessity of this
definition?
Dr. QUICK.-This definition does not interfere with the term "subject" in its wider relation as a member of
the empire or subject of the Queen.
40
Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject of the Queen is
co-extensive with the ordinary definition of a subject or citizen in America. The moment be is under any
disability imposed by the Parliament be loses his rights.
And
Dr. QUICK.-The regulation would have to specify the ground of disability.
45
Mr. BARTON.-Yes; but my honorable friend says not under any disability imposed by the Parliament.
Would not the difficulty be that if he were under any slight disability for regulative purposes, all his rights of
citizenship under the Commonwealth would be lost?
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Mr. KINGSTON.-There might be a special disability on minors.
Mr. BARTON.-That might be one of the disabilities. Of course here the disabilities as to minors
would not matter much, but I would like to put this consideration to Dr. Quick, that if we use the term
"subject," or a person subject to the laws, which is a wider term, we shall avoid the necessity for a definition
of "citizen." You might say a subject or resident being the subject of the Queen.
And
Mr. SYMON.-There is no man in Australia who is more profoundly versed in constitutional law than Mr.
Isaacs, and he knows that every point and every question has been the subject of more or less debate and
discussion, and will be until the end of time.
10
The words "subject," "person," and "citizen" can be made subjects of controversy at all times if
occasion requires it. At the same time, it does not affect the principle that there should be a definition
of "citizen," either in the form suggested by Dr. Quick or by Mr. Barton.
And
15
20
25
30
35
Mr. ISAACS (Victoria).-I am afraid that the amendment is far too wide, unless we say that the disabilities
imposed by Parliament may extend to birth and race. This would, notwithstanding the rights conferred
under clause 52, deprive Parliament of the power of excluding Chinese, Lascars, or Hindoos who
happened to be British subjects.
And
Mr. GLYNN.I would like to mention, in connexion with what Mr. Isaacs said as to aliens, that this provision would
not interfere in the slightest degree in the way of preventing aliens from coming in, because it is only
when the aliens get inside the Commonwealth that this provision is to apply to them. The decision of the
Privy Council in the case of Ah Toy v. Musgrove was that an alien had no right to land here, but that
decision does not affect his citizenship after he has landed.
And
Mr. WISE (New South Wales).-My mind has wavered very much during this debate. I have come to the
conclusion that my original suggestion was wrong, that the best form of all in which the original
amendment could be moved is [start page 1793] that in which it was proposed by Mr. Symon, and that then
no definition such as is suggested by Dr. Quick will be really required, because, if we allow each state to
make its own standard of citizenship, we shall reserve all the rights of the states, and obviate all the
difficulties contemplated by Mr. Trenwith, by retaining to each state the right to determine the
qualification of its own citizens. And then we will make a provision that is necessary as part of the Federal
Constitution, that when a man has acquired citizenship in one state he shall be entitled to the right of
citizenship in the other states.
And
40
Dr. COCKBURN (South Australia).-If the word "citizen" simply means resident or inhabitant, why
should we go to all this trouble about it? If it means inhabitant, what is the use of saying the inhabitant
of one state going to another state shall be an inhabitant of that other state? It seems to me that if you
are going to use the word "citizen" in the sense of being equal to resident or inhabitant, and it is to
have no other meaning such as has always been attached to it, we had better leave out the clause.
And
45
Mr. OCONNOR (New South Wales).-I would suggest that Mr. Symon should accept the amendment
suggested by Mr. Barton, so that his clause shall readEvery subject of the Queen resident in any state or part of the Commonwealth shall be entitled to all
privileges and immunities of subjects resident in other states or parts of the Commonwealth.
50
55
I am altogether in favour of the principle of Mr. Symon's amendment; but the word "citizen" creates a
difficulty. If, instead of the word "citizen," we use the words "Every subject of the Queen resident in a
state," it really means the same thing. The meaning to be given to the word "citizen" in Mr. Symon's
amendment is not the narrow limited meaning of the citizen who can exercise the franchise, but it is the
broad general meaning which the word has been held to have under the United States Constitution. It
has been decided there that the word "citizen" has, [start page 1796] in a general and wide sense, this
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21
In its broad sense the word is synonymous with subject and inhabitant, and is understood as
conveying the idea of membership of the nation, and nothing more.
And
Dr. COCKBURN.-But the present proposal if carried would raise an initial difficulty in framing special
laws. It might be urged that it was necessary to discriminate between residents who are subjects of the
Queen and those who are not, and the amendment would introduce an element which would give rise
to a great deal of trouble in the future.
Mr. HIGGINS.-You want to keep both classes out.
10
15
20
25
30
35
Dr. COCKBURN.-We desire always to deal with Asiatics on broad lines, whether they are subjects of
the Queen or not; and in South Australia, and, I believe, other colonies, those lines of distinction are
obliterated. In South Australia we make no difference between Chinese from Hong Kong and those
from other parts of China. That, I think, is the most effective way of dealing with this matter.
Again;
We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined
term, and is not known to the Constitution. The word "subjects" expresses the relation between
citizens of the empire and the Crown.
Clearly, the Framers made clear it is not the relationship between a subject and some Queen, but more
significantly the relationship between the subjects as citizens of the empire and the Crown. One must
therefore be a citizen of the empire to have a relationship with the Crown.
If one is not a subject of the Crown residing as a citizen in the empire then no relationship exist. This, the
High Court of Australia never addressed as such. It simply sought to bypass this kind of definition, being it
unaware of it all together or not. But, the Queen of Australia is no Queen recognised by the British Crown,
or can be Queen of the Empire. It is a fictitious name and title that can hold no water, so to say, to issue
proclamation in that title, as to do so would create a fictitious appointment not worth the paper it is written
upon.
To get a bit of an understanding about internal affairs and external affairs the following may be
considered;
Dr. COCKBURN: I should like to justify the vote that I shall have to give on this matter, because it will be
rather dissonant with the votes I have been giving throughout the sittings of the Convention. I shall vote for
the clause as it stands, and also for the amendment intended to be proposed by the hon. member, Mr. Gordon,
because I take it to be essential to federation. It is the very definition of a federation that, as regards external
affairs, the federation shall be one state, and only have one means of communication, and in regard to internal
affairs the federation should be many statesMr. GORDON: These are not internal affairs!
40
45
Dr. COCKBURN: These are internal affairs, and it is one of the principles of federation that, in internal
affairs, there should be complete autonomy. In local affairs, why do you want to go outside the state at all?
For the alteration of the constitution of a state, why should you go outside the boundary of that state?
Effectively, external affairs referred to in the constitution deals with nations/territories not within the
Commonwealth of Australia and/or under the British parliament. The Delegates did refer to the Home
Office when referring to contact with the British government, as it is the home of the Commonwealth of
Australia, which exist only because of the States (formally colonies) being granted Letters Patents to have
their own limited self government under British law.
Mr. BARTON: The hon. member who is in the chair will be able to inform you. He said:
50
I do not think there is in this Convention a stronger advocate of State rights and State interests than I am; but
still I strongly support the clause as it stands, for it seems to me that one of the very fundamental ideas of a
Federation is that, so far an all outside nations are concerned, the Federation shall be one nation, that we shall
be Australia to the outside world, in which expression. I include Great Britain; that we shall speak, if not
with one voice, at all events, through one channel of communication to the Imperial Government; that is, as it
has been put, we shall not have seven voices expressing seven different opinions, but that Her Majesty's
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Government in Great Britain shall communicate to Her Majestys Government in Australia through one
channel of communication only.
Again;
5
Her Majesty's Government in Great Britain shall communicate to Her Majestys Government in
Australia
It is clear that the Framers of the Constitution referred to the one and only person and any purported title of a
legal fiction of Queen of Australia cannot amend or purport to amend the Constitution, or the application
of the Constitution.
10
15
20
25

Mr. BARTON (New South Wales).-The Drafting Committee could not interpret the intentions of the
Convention, excepting in so far as they found them expressed in the Bill, in the amendments, or in the
debates. We have endeavoured to give effect simply to what the Convention have said and done.
And
Sir RICHARD BAKER (South Australia).When we consider how vast the importance is that every word of the Constitution should be correct,
that every clause should fit into every other clause; when we consider the great amount of time,
trouble, and expense it would take to make any alteration, and that, if we have not made our intentions
clear, we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will
harass the people of United Australia and create dissatisfaction with our work, it must be evident that
too much care has not been exercised.
END QUOTE

30
QUOTE
Mr. SYMON:
There can be no doubt as to the position taken up by Mr. Carruthers, and that many of the rules of the
common law and rules of international comity in other countries cannot be justly applied here.
35
In the Shaw case the high Court of Australia stated;

42.
40
Jason Shaw, the applicant, migrated to Australia with his parents in 1974. He was then two years of age and
a citizen of the United Kingdom. Along with his parents, he was granted a permanent entry permit. Under
reg 4 of the Migration Reform (Transitional Provisions) Regulations (Cth), after 1 September 1994 the
permanent entry permit held by the applicant continued in effect as a transitional (permanent) visa that
permitted the applicant to remain in Australia indefinitely. He has never left Australia since arriving in 1974.
However, he has never become an Australian citizen.
Again;
However, he has never become an Australian citizen.
45
The judges simply seemed not to realize that they were talking about citizenship involving political rights
and not at all being about nationality.
Mr. SYMON.-
50
55
I am not going to put that in the power of any one, and if it is put in the power of the Federal Parliament,
then I should feel that it was a very serious blot on the Constitution, and a very strong reason why it should
not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood who is
entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of having
that taken away or diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am
willing to do it in everything which concerns the working out of this Constitution, but I am not prepared to
trust the Federal Parliament or anybody to take away that which is a leading inducement for joining the
Union.
Therefore, Mr Shaw was an Australian citizen the moment he entered the Commonwealth of Australia and
began to reside in a State by obtaining State citizenship! He remained for all purposes a subject of the
Queen and as the Commonwealth of Australia is a limited POLITICAL UNION and not a nation in its
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own rights one cannot have a nationality of being an Australian (as incorrectly referred to being Australian
citizenship) as no such nation exist!
To hold that the Commonwealth of Australia is an independent nation would mean to claim that the States
no longer exist as such. The federation then was a confederation!
5
For the extensive set out above, it is clear that Jason Shaw was an Australian citizen from the moment he
came to reside in a State in the Commonwealth of Australia.
The High Court of Australia has only constitutional powers to interpret the meaning of the Constitution
provisions by the intentions of the Framers and it has no constitutional powers to pursue to bring within the
meaning of constitutional provisions that were never intended by the Framers to be so!
10
Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
This court however must take the act as it finds it, and cannot do violence to its language in order to bring within
its scope, cases, which although within its mischief are not within its words.
15
The following ought to be applied perhaps to Shaw, Sue v Hill and the Sykes v Cleary cases, to mention a
few, this as those cases, in my view were based upon ill conceived reasoning, and not at all as to the
intentions of the framers of the Constitution;
20
Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)
That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was
very briefly, and I regret to say, insufficiently argued and considered on the last day of the Sydney sitting..... The
arguments which now commend themselves to me as conclusive did not find entrance to my mind. In my
judgement that case was wrongly decided, and should be overruled.
25
The Shaw case;

45.
30
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 HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 (6).
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html"
501 does not apply to British citizens who arrived in Australia before 3 March 1986
46.
There are only two heads of federal constitutional power that could arguably extend the operation of
HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 to a
person such as the applicant who is a British citizen and who arrived in Australia in 1974. The first is the
immigration power; the second is the aliens power HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn49" [50] . A long line of authority
establishes that the immigration power does not authorise the Parliament to make laws with respect to
persons who have immigrated to Australia, made their permanent homes here and become members of
the Australian community HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn50"
[51] . Accordingly, the immigration power did not authorise the enactment of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html" s 501 in so far as it purports to
apply to the applicant.
47.
The aliens power, however, gives the Parliament greater power over immigrants than the immigration
power. In Nolan v Minister for Immigration and Ethnic Affairs HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn51" [52] , this Court held that any immigrant
who has not taken out Australian citizenship is an alien for the purpose of HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s51.html" s 51 (xix) of the Constitution.
On that view of the aliens power, the Parliament can legislate for the deportation of persons who are
British citizens and have been permanent residents of Australia for many years. In Nolan, the Court
upheld an order of the Minister deporting Nolan, a citizen of the United Kingdom who had lived permanently
in Australia since 1967 but who had not taken out Australian citizenship.
48.
In Re Patterson; Ex parte Taylor HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l

"fn52" [53] , however, a majority of this Court held that Nolan should be overruled in so far as it held that
all British citizens living in Australia who had not taken out Australian citizenship were aliens for the
purpose of the Constitution. Taylor was a British citizen who had arrived in Australia in 1966 and had since
lived here permanently. However, he had not taken out Australian citizenship. A majority of the Court
35
40
45
50
55
Section
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held that HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html"
s 501 of HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/" the Act
could not constitutionally authorise the deportation of Taylor.
49.
10
15
20
As I pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte Te HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn53" [54] , Re Patterson has no ratio
decidendi. The four majority Justices were Gaudron, Kirby and Callinan JJ and myself. Gaudron J held that
Taylor was a member of the body politic that constituted the Australian community and that British
citizens who were members of that body politic and had been in Australia before 1987 HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn54" [55] , were not aliens within the
meaning of the Constitution. Kirby J held that Taylor was not an alien when he arrived in Australia, that he
"had been absorbed into the people of the Commonwealth" HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn55" [56] and that the Parliament could not
retrospectively declare him to be an alien. I held that British immigrants who settled in Australia before 1973
were subjects of the Queen of Australia and could not be "aliens" for the purpose of the Constitution. I
selected 1973 as the earliest date on which the constitutional power to legislate with respect to aliens
could apply to British immigrants. I did so because 1973 was the year in which the Parliament enacted
the HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/rsata1973258/" Royal Style and
Titles Act 1973 (Cth). But I expressed the view that the relevant date "maybe later" HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l "fn56" [57] . Callinan J agreed with the
reasoning of both Kirby J and myself.
While a judge of the High Court of Australia may elect judicial powers because of some HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/rsata1973258/" Royal Style and Titles Act 1973
(Cth). The truth is that this latter Act is irrellevant to the issue of constitutional powers regarding
citizenship.
25
Constitutionally,
Mr. SYMON.-
30
35
I am not going to put that in the power of any one, and if it is put in the power of the Federal Parliament,
then I should feel that it was a very serious blot on the Constitution, and a very strong reason why it should
not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood who is
entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of having
that taken away or diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am
willing to do it in everything which concerns the working out of this Constitution, but I am not prepared to
trust the Federal Parliament or anybody to take away that which is a leading inducement for joining the
Union.
END QUOTE

40
QUOTE
The term citizenship was not at all associated with nationality but rather covered any
subject of the Queen residing within the Commonwealth of Australia or for that the
continent Australia.
45
50
55
The terms Australian citizen, Australian citizens , Australian citizenship,

Commonwealth citizens, federal citizen, citizen of the Commonwealth were used
ongoing by the Framers of the Constitution, as shown below, and as such were terms not
as to nationality but in regard of citizenship as being a resident in the colonies (now
States) and the Commonwealth of Australia. Therefore any constitutionalist, as I am, is or
should be aware that the term Australian citizenship cannot be held to relate to
nationality. Neither that there can be an Australian nationality merely because some
judges happen to desire to make such a declaration as the proper powers to legislate for this
is to follow the procedures within Section 128 of the Constitution.
13-02-1890 Re; Australian citizen
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25
10
15
20
25
30
35
40
13-03-1891 Re; Australian citizens

Re; dual citizenship
26-03-1897 Re; citizen of the Commonwealth
29-03-1897 Re; Dual citizenship
30-03-1897 Re; federal citizen
Re; citizen of the Commonwealth
15-04-1897 Re; Dual citizenship
Re; Commonwealth citizenship
28-01-1898 Re; Australian citizenship
Re; Commonwealth citizens
Re; federal citizenship
END QUOTE

45
50
QUOTE
The Defendant submits, that for this also the Proceedings are permanently stayed, so the constitutional
issues are to be sorted out by the Commonwealth Director of Public Prosecutions as to if this Court can
invoke legal jurisdiction and if there is any judicial officer of any Court in the Commonwealth of Australia
who in fact is qualified to hear the case, or that by their Oath of alliance to the LEGAL FICTION
Queen of Australia they have all disqualified themselves from being a judicial officer to hear and
determine matters.
The Defendant submits, that the same applies to any lawyer seeking to prosecutor this case for the
Commonwealth Director of Public Prosecutions.
55
Those who did not make an Oath of alliance to the LEGAL FICTION Queen of Australia still have
the problem that they are faced with a Court system that now purportedly (Sue v Hill) operates under a
LEGAL FICTION Queen of Australia and as such the conflict remains to exist.
END QUOTE
60
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10
QUOTE
The Defendant submits, that any judicial officer who was natural born and/or naturalized was and remained
to be a British national with an alliance to the British Crown. And where such judicial officer made an oath of
alliance to the LEGAL FICTION Queen of Australia then this judicial officer has an purported oath of
alliance to two different monarchs and cannot be deemed to be a acceptable judicial officer for purpose to
make judicial determinations.
The Defendant submits, that as also further set out below, where any natural born and/or naturalized person
has made an oath of alliance to the LEGAL FICTION Queen of Australia, then this would be an act of
sedition.
The Defendant submits, that any natural born or naturalized person who made an oath of alliance to the
LEGAL FICTION Queen of Australia is by Section 44 of the Constitution disqualified from being a
Member of Parliament.
15
The Defendant submits, that because subsection 51(xix) of the Constitution provided for naturalization of
aliens to be granted British nationality then any notion by the ULTRA VIRES Australian Citizenship
Act 1948 legislation that they were granted Australian citizenship is NULL AND VOID in that the were
and remain to be actually made British nationals.
20
25
The Defendant submits, that because the Victorian constitution relied upon the ULTRA VIRES Australian
Citizenship Act 1948 for certain rights and so also further legislation demand certain government functions
that the person must be an Australian citizen then all such persons, being it police, judicial officers,
Members of State parliament, etc, all failing to have Australian citizenship as an ULTRA VIRES
legislation cannot be enforced, by this all are without legal right in their positions.
The Defendant submits, that by the ruling in Sue v Hill, that British nationals own alliance to a foreign
Monarch cannot hold a seat in Parliament, then for this also all natural born and naturalized persons who are
in fact British nationals by this ruling are disqualified from being a Member of Parliament.
30
The Defendant submits, that therefore the legal power of any judicial officer involved in this case to
adjudicate may be ULTRA VIRES, if this judicial officer made an oath of alliance to the LEGAL
FICTION Queen of Australia, and it would result that this Court then constitutes to be a STAR
CHAMBER COURT, referred to in the Act Interpretation Act 1980 (Vic).
35
The Defendant submits, that as the Framers of the Constitution stated, legislative powers as to
citizenship remains with the States and Australian citizenship is AUTOMATICALLY obtained when a
person obtains State citizenship.
40
The Defendant submits, that legislation enacted by any parliament, where persons failed to have Australian
citizenship as derived from having State citizenship then any such legislation is and remains ULTRA
VIRES, and any legal enforcement by the Court of such legislation that is ULTRA VIRES are NULL AND
VOID and so also without legal force.
END QUOTE
45
50
55
60
QUOTE
The Defendant submits, that the right of the Defendant, so any elector, to vote or not to vote for a certain
candidate is embedded in the Constitution, and cannot be enforced by any legislation in the Commonwealth
Electoral Act 1918;
Mr. SYMON: You limit the choice of the member; but you do not limit the choice of the electors. The
elected has to, say whether he will prefer the federal parliament with its wider scope of interest and
duty to the local parliament with its narrower scope.
And
Mr. SYMON:
But what I want hon. members to consider is whether it is not well for us not to say, "Let the electors reject
the men who are already in the local parliament, and who become candidates for the federal
parliament."
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Therefore the right to vote or not to vote for a candidate remains with the elector, and any obligation to vote
using the preference voting system would force an elector to vote for a candidate who he may not desire to
vote for and who may not be eligible to take a seat in the Parliament.
The Defendant understands that Kirby J of the High Court of Australia himself referred to these debates in
regard of the Sykes v Cleary matter and as such it one part of this debate was deemed relevant then the same
should apply to the rest of that debate. As a matter of fact while the High Court of Australia had ruled in the
Sykes v Clearly matter that holding state office of profit disqualify a person to be a candidate in a federal
election the truth is shown below of the same day of Debates Kirby J referred to;
10
Mr. SYMON: They would be eligible. This provision would not prevent their [start page 999] being
elected; it merely says that if elected they shall not hold the two offices!
And
15
The Hon. S. FRASER: They will be capable of being elected whilst holding the other position.
Mr. SYMON: Certainly!
The Hon. S. FRASER: I agree with the right hon. member, Mr. Kingston. I do not think that the
commonwealth interests and the state interests will clash. I see no reason why they should, and the federal
parliament can deal with this matter if it is found to be a drawback.
20
And also consider;

25
30
Mr. BARTON: Yes, it is; because it might otherwise be read to apply that way. The hon. member will well
remember the case of Sir Bryan O'Loghlen, whose election for County Clare was upset on the ground that,
while he was a Minister of the Crown in Victoria, he was holding an office of profit under the Crown.
That case shows the necessity of these exceptions. Then those are exempted who receive a new commission
in the Queen's navy or army, or an increase of pay on a new commission. That covers the case of those who
receive a fresh commission, who happen to have been a member of the Queen's army drawing pay, half-pay,
or pension, or who receive an increase of pay, supposing they are only in receipt of a half-pay or pension. But
they are still persons employed under the Government of the Queen, and not under the Government of the
Commonwealth. Then the remainder of the clause exempts anyone:
Who is in receipt only of pay as an officer or member of the military or naval forces of the Commonwealth,
and whose services are not wholly employed by the Commonwealth.
35
40
If he belongs to what is called the permanent force he will be disqualified, because he will be in receipt of
an ordinary office of profit under the Commonwealth. For instance, take the case Sir George Turner put,
of a general commanding the local forces. He has an Imperial commission, but beyond that he in receiving
pay from the Commonwealth, and would be ineligible. Take the officers of his staff, who are also
employed by the Commonwealth; they are ineligible. Take the men under them; they would be employed in
the regular forces, and would be in receipt of pay under the Commonwealth, and so ineligible. But as
regards the members of what is usually known as the volunteer, or the militia, or the partially paid forces,
it was considered reasonable in the 1891 Bill to exempt them, and I think it is reasonable to exempt them
now.
Sir GEORGE TURNER: No one objects to that.
45
50
Mr. BARTON: The main point is that we exempt persons in receipt of pay, half-pay, or pension, or
commission in the Queen's service, apart from the Commonwealth, on the ground that as they do not draw
their pay from the Commonwealth, they have no interest against the Commonwealth.
This makes it very clear that Mr Phil Cleary not having an office of profit under the Commonwealth, and
that as they do not draw their pay from the Commonwealth, they have no interest against the
Commonwealth. Then was entitled to be an elector and hold a seat in federal parliament. This the judgment
of the High Court of Australia never did bring out!
Therefore, electors are denied to vote for people who constitutionally are entitled to vote but are wrongly
excluded, being it Heather Hill, Phil Cleary and others. It is here that the Defendant as a constitutionalist
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can show that FREE elections are undermined by the fact that judges appointed on recommendation by a
Government appear to the Defendant to be political bias and by this willing to hand down judgments which
no impartial Court would have as such handed down. It is by this also that the Defendant takes the position
that the citizenship issue cannot be trusted to be decided without bias by the High Court of Australia but
requires a Privi Council decision, as the judges are bias or can be perceived bias, this also because for the
High court of Australia to make a ruling against the Australian Citizenship Act 1948, declaring it to be
ULTRA VIRES for so far it purports to define/declare citizenship and purports there is a LEGAL
FICTION of Australian nationality, then effective this may place in question their own personal standing to
be judges in the High Court of Australia.
Indeed, the Hansard 21-9-1897 Constitution Convention Debate shows;
The Hon. E. BARTON (New South Wales)[8.3]: I should like to say, without detaining hon. members,
that having spoken on this matter, and having expressed the strong opinion that there ought to be some
limitation that would prohibit any person from being a member of the state parliament and at the
same time a member of the commonwealth parliament, I adhere to that opinion, but nevertheless that I
have been convinced by the arguments I have heard that this matter is not a subject for incorporation
in a document of this kind.
This underlines that the constitution never intended to deal with this, contrary to what the High Court of
Australia in Sykes v Clearly made it out to be.
And;
I do not want any absolute prohibition. I want to give the electors as free a hand as possible, and
experience will tell us which is the best course. I shall vote against the proposed prohibition.
And
The Hon. I.A. ISAACS: It does not prevent such a person from being elected!
As such, the holding of a seat rather then the right to be elected was the issue and only regarding a candidate
who was having a disqualification in that regard.
As they also stated;
30
Mr. SYMON: They would be eligible. This provision would not prevent their [start page 999] being
elected; it merely says that if elected they shall not hold the two offices!
The Hon. S. FRASER: Men holding certainties are not likely to give up those certainties.
Mr. SYMON: They are not asked to give them up until the other is made a certainty!
The Hon. S. FRASER: That removes part of my objection certainly.
35
The Hon. R.E. O'CONNOR: They are not to come under this provision until they have been elected and
have a right to sit in the federal parliament!
The Hon. S. FRASER: They will be capable of being elected whilst holding the other position.
Mr. SYMON: Certainly!
40
Therefore, it is beyond question that Section 44 of the Constitution did not deny a person to stand for election
and be elected but only be prevented from taking up the seat if for some reason this person is under a
disability unless the disability is disposed of prior to taking up the seat.
END QUOTE
Hansard 2-3-1898 Constitution Convention Debates;
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Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike
subjects of the British Crown.
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler
than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present
when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the position
we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal
citizenship, and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the scope of the
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Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a
Commonwealth, but we would still be, subjects of the Queen.
10
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25
Again;
we were not in any way interfering with our position as subjects of the British Empire. It would be
beyond the scope of the Constitution to do that.
The High Court of Australia deriving its judicial powers within the Constitution (Commonwealth of
Australia Constitution Act 1900 (UK)) cannot go beyond what is embedded in the Constitution, hence the
constitutional problem exist that judicial officers are constitutionally (by birth or naturalization) subjects of
the British Crown but wrongly excluded by the Sue v Hill decision as being deemed to be by this having
alliance to a foreign Monarch.
In view that by the Sue v Hill ruling the effect is that all judicial officers within the Commonwealth of
Australia then are having alliance to a foreign Monarch then none of the judicial officers (including those of
the High Court of Australia) could possibly determine their own status as only the Privi Council could do so.
As set out further in this document Subsection 51(xix) of the Constitution was provided for by the British
Parliament to naturalize aliens to become British nationals, and it never included any purported
Australian nationality. The High Court of Australia has no constitutional powers to amend the
Constitution as to purport this subsection 51(xix) has a different meaning then intended by the Framers of the
Constitution, and hence all persons born in the Commonwealth of Australia and those naturalized are and
remain subjects of the British Crown with their alliance to the British Monarch. As also set out
extensively further in this ADDRESS TO THE COURT, no one can have alliance to two Monarchs and
therefore any Oath that purports to be to a Queen of Australia is a disqualification to serve as a judicial
officer. With laws (legislation) now being enacted under the name of Queen of Australia then all laws so
enacted are constitutionally ULTRA VIRES and so without legal force. This applies also to Proclamations
and writs.
30
35
40
It must be clear that the terminology used by the Framers of the Constitution are; British
subject, to make persons subjects of the British Empire., with the consent of the
Imperial authority, What is meant is a dual citizenship in Mr. Trenwith and myself. That
is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the
dual citizenship., we are all alike subjects of the British Crown. We have a High Court of
Australia that appears to me being political motivated to try to alter the Constitution by stealth
by endorsing a substitute Constitution! The question is if the judges of the High Court of
Australia committed TREASON?
HANSARD 15-4-1897 Constitution Convention Debates
QUOTE
45
III. Who is attainted of treason, or convicted of felony or of any infamous crime:

shall be incapable of being chosen or of sitting as a member of the Senate or of the House of Representatives until
the disability is removed by a grant of a discharge, or the expiration or remission of the sentence, or a pardon, or
release, or otherwise.
50
Mr. GORDON: I should like to ask Mr. Barton whether there is anything in this point: A number of
German fellow colonists may have taken the oath of allegiance to a foreign power, especially those who have
served in the ranks in Germany. Would it not be necessary to add after "power" in line 27 the words "or who
has not since been naturalised as provided in clause 30"?
Mr. GLYNN: You cannot have two, allegiances.
Mr. BARTON: No; a man might have to go out of our Parliament to serve against us.
55
Sir GEORGE TURNER: He may be Minister of Defence.

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Mr. CARRUTHERS: I would like to put a case to Mr. Barton. It may happen that treaties may be in force
between say England and Japan. There is a treaty almost in operation on the very lines I am citing that will
give to a British subject travelling in Japan practically the same rights and privileges as he would enjoy as a
citizen of his own country. Surely it is never intended that by a person travelling in another country, who
becomes entitled to privileges conferred on him by a treaty between two high powers, he should be
disqualified from holding a seat in the Federal Parliament. Our members of Parliament who are hardworked
take their summer trips, and it may be that some of them may come back and find they have lost their seats as
a result of this clause.
Clause as read agreed to.
10
END QUOTE
15
Hansard 15-9-1897 Constitution convention Debates (Official Record of the Debates of the National
QUOTE
Mr. SYMON: We are the one country of freemen on the continent!
20
25
Mr. TRENWITH: I thank my hon. and learned friend for that term. There is one colony of freemen on
the continent. Why? Because every voter in South Australia has equal power with every other voter. We are
now going to create another form of citizenship, and we must create it under conditions that will
maintain freedom to the citizens of the nation, as South Australia has obtained freedom for the citizens
of the state. Therefore, I am justified in saying that we have a right to consider the people of the larger
states must and will consider whether we shall hand to posterity a heritage of slavery or of freedom. If we
vote for equal power to every citizen, we shall be making free people of the future Australians; if we
vote for greater power for one citizen than for another, we shall be putting chains upon the legs of the
citizens in the larger states of this commonwealth.
END QUOTE
30
.
HANSARD 8-02-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-It is as follows:-
35
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States, nor shall any state deprive any person of life, liberty, or property without due process of law,
nor deny to any person within its jurisdiction the equal protection of the law.
Sir EDWARD BRADDON.-That is the Tasmanian amendment.
40
45
50
Mr. ISAACS.-Yes, it has been adapted by than Tasmanian Assembly to suit our altered circumstances but I
want to point out that it only became necessary to pass that 14th amendment in the United States in order to
provide in the Constitution for the change that was wrought by the Civil War. The rights of citizenship for the
blacks and the abolition of slavery had been won by hard fighting, and this Article 14 had to be rammed down
the throats of the Southern States by the military provision which I referred, to in Sydney. This, together with
the 15th article, which goes with it, had to be passed. The object of it was as I have stated, and that was
recognised by the United States courts in the case of Strauder v. West Virginia, 100 United States Reports,
page 303. We can understand that a Constitution should say who shall be citizens of the United States or
citizens of the Commonwealth. We can also understand that having constituted a citizenship of the
nation, no state should be permitted to abridge that citizenship, and take away any of the privileges or
immunities pertaining to citizens. What are these privileges and immunities? That very question was dealt
with in what are known as the Slaughter House cases in 1872,16 Wallace, 36, and in certain other cases. This
is what the court saidThe right of a citizen of this great country, protected by the implied guarantees of its Constitution, to
come to the seat of government to assert any claim he may have upon the Government, to transact any
business he may have with it, to seek its protection, to share its offices, to engage in administering its
functions, free access to its sea ports through which all operations of foreign commerce are conducted, also to
the sub-treasuries, land offices, and courts of justice of the several states. Another privilege of a citizen of the
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United States is to demand the care and protection of the Federal Government for his life, liberty, and
property when on the high seas, or within the jurisdiction of a foreign country; the right to peaceably
assemble and petition for redress of grievances; the privilege of the writ of habeas corpus; the right to use the
navigable waters of the United States, however they may penetrate the territory of the several states, and all
rights secured to our citizens by treaties with foreign nations; and the right of a citizen of the United States
of his own volition to become a citizen of any state of the Union by bona fide residence therein.
END QUOTE
10
Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE
Mr. GLYNN.-That amendment must be read with Article 4, Section 2.
Mr. ISAACS.-That article is as follows:-
15
The citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several
states.
Mr. GLYNN.-That is not in our Bill.
Mr. ISAACS.-It really is there, because our Bill provides that the state shall not make or enforce any law
abridging any of the privileges or immunities of the citizens of the other states. At all events, the 14th
amendment is the one under which these decisions were given.
20
Mr. HOLDER.-We have no definition of citizen.

Mr. ISAACS.-No, not of the Federation. The question of the citizenship of a state is one that will have
to be worked out. It might be held to be an ordinary member of the state, and it might not be confined
to naturalized persons.
Mr. GORDON.-It might be a question of domicile.
25
30
Mr. ISAACS.-Yes. It is not wise to use the word "citizen" without any definition. They took care to define
it in the United States. We might use a term that would be found to be of wider import than was intended, but,
however that may be, it seems to me that it is illogical to [start page 670] provide that a state should not make
or enforce any law abridging any privilege or immunity of citizens of other states. We ought to take out the
words "other states," and say that no state should abridge any privilege or immunity of any citizen of the
whole Commonwealth.
Mr. WISE.-That is not the object. This clause has no connexion whatever with the amendment of the
United States Constitution.
Mr. REID.-Will you tell us the object?
Mr. ISAACS.-I will wait to hear what the honorable member has to say.
35
Mr. REID.-Can the state laws affect any one not in the jurisdiction of the state?
Mr. ISAACS.-It is puzzling to me why a restriction has been made in this way, that the state is not to be at
liberty to abridge the privileges or immunities of the citizens of other states.
Mr. SYMON.-It is the essence of the Constitution that the state shall have that power within its
legislative jurisdiction. Every state can do that.
40
Mr. ISAACS.-Yes, within its legislative jurisdiction, and that consideration gives immense force to what I
said at starting, and what Mr. Trenwith said. We are giving to the Federation certain powers of legislation,
and we are reserving all others to the states. If the Federation chooses to exercise its legislative powers
within its sphere, it can over-ride anything a state does.
Mr. SYMON.-There is no object in the limitation of the federal jurisdiction.
45
Mr. ISAACS.-None whatever; and if the state is to have reserved to itself all other powers, I cannot
understand the bearing of it. I thought it my duty, therefore, to bring under the notice of the Convention the
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reason why it was introduced into the American Constitution. It was to cut down the powers of the state as
exercised by refusing citizenship to the blacks. There have been quite a number of decisions on the subject,
but it would be profitless to refer to them further. I have endeavoured to point out as briefly as I can how this
matter stands, and I think it will be found in the end, subject to anything that Mr. Wise may have to say, that
the basis of it all is the 14th amendment of the United States Constitution.
Mr. WISE (New South Wales).-I do not like to speak with any confidence after such a strong expression of
opinion from one so well qualified to give an opinion as the Attorney-General of Victoria, but my
recollection of the reasons which led to the first part of the clause being inserted in the Draft Bill of 1891
leads me to say that the words were intended to limit the legislative jurisdiction of the states by such
necessary restrictions as were thought desirable to give the Federation power to settle disputes between states
arising from the exercise of the legislative authority within each state. I very much regret that Mr. Clark's
memorandum, a portion of which I read yesterday, has not been returned. In the concluding part of that
memorandum he draws special attention to these words, and points out that they were a necessary
complement to the implied surrender of the right to claim redress by diplomatic or other means which was
made by every state when it entered into an equal federation with other states. He lays down in express terms
the principle which Judge Shipman used as the basis of his judgment in the case I cited yesterday from 22
Blatchford, 131, that is to say, if a state passes a law the effect of which is to injure the territory or property of
persons outside the state-that may not be the intention, but if the direct effect is to inflict injury upon the
territory or property of citizens in another state-then that law, although in so far as it only affects citizens
within the state that passes it, it is intra vires of the Constitution, it becomes ultra vires in so far as it inflicts
injury on the inhabitants of another state. That, I believe, was the intention, although I feel some diffidence in
insisting upon it. This was the view which formed the basis of the judgment of Mr. Justice Shipman.
[start page 671]
25
The state of Connecticut had authorized certain works which injured property in the adjoining state of
Massachusetts, and it was held that that was a matter in which the Federal Court, in the interests of the
Federation, was entitled to exercise jurisdiction.
Mr. ISAACS.-Every text-book writer ignores that case; I cannot find it anywhere.
30
Mr. WISE.-The object of this was by no means to deal with a set of circumstances such as have arisen in
the United States, which could not have arisen here, but to deal with other matters; and it seems to me that the
clause as it stands would be a powerful instrument to prevent an abuse of powers by a state, not for the
purpose of injuring the citizens of that state, but for the purpose of injuring the citizens of other states.
Mr. ISAACS.-Can you give a concrete case?
Mr. WISE.-Well, take the case of imposing a poll tax on citizens passing from one state to another. Such a
law as that would at present be within the competency of the legislation of any colony.
35
40
Mr. SYMON.-Not if this Constitution becomes law.

Mr. WISE.-It might be dealt with by another clause, and would also be dealt with by this clause 110. I am
not dealing now with the latter part of the clause, because I admit that that is open to other objections. I am
confining my attention to the first portion. The instance I have given is of course an extreme one, but it is
such cases as that which, according to my recollection, it was intended should be dealt with by the first
portion of this clause. I very much regret that Mr. Clark's memorandum is not in the hands of honorable
members, because it deals with the first part of this clause and shows what importance Mr. Clark attaches to it
as one of the draftsmen of the Bill of 1891.
Mr. ISAACS.-How would the entry into one state by a citizen of another state be an immunity or a
privilege of that citizen?
45
Mr. WISE.-Let me give another illustration. Suppose an extra probate duty were imposed on Victorians
who had property in New South Wales, or vice versa.
Mr. REID.-Or an absentee tax.
Mr. WISE.-Yes, or an absentee tax.
Mr. SYMON.-It would be competent for the states to do that.
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Mr. WISE.-No; I mean an absentee tax making those who reside in one part of the Union pay higher-say
pay a higher probate duty or legacy duty-than those who reside within the state imposing the tax.
Mr. ISAACS.-How could that be a privilege or immunity of the citizens of the other states?
Mr. WISE.-It would be putting an exceptional disability upon the citizens of another state, to which the
citizens of the state imposing the tax were not subject.
Mr. ISAACS.-But how is it a privilege or immunity of the citizens of another state that they should not be
taxed as absentees by a particular state?
Mr. WISE.-It is an immunity at present.
Mr. ISAACS.-Then you can never tax a man living in another state?
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25
30
35
40
Mr. WISE.-You cannot impose exceptional treatment upon the citizens of another state; that applies
to everything. It is difficult to contemplate a concrete case, but that the words themselves have a definite and
clear meaning any one can see; and whether that clear power should be taken away or not is a matter of very
serious consideration. It does appear to me that this clause is a powerful instrument in the hands of the federal
authority to prevent any state acting in an overt manner, permitting overt acts of hostility against citizens
outside its jurisdiction. For that reason I hope that the clause will be allowed to stand.
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs) is I think
correct in the history of this clause that he has given, and this is [start page 672] one of those instances
which should make us very careful of following too slavishly the provisions of the United States
Constitution, or any other Constitution. No doubt in putting together the draft of this Bill, those who
were responsible for doing so used the material they found in every Constitution before it, and
probably they felt that they would be incurring a great deal of responsibility in leaving out provisions
which might be in the least degree applicable. But it is for us to consider, looking at the history and
reasons for these provisions in the Constitution of the United States, whether they are in any way
applicable; and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should
be very careful of every word that we put in this Constitution, and that we should have no word in it
which we do not see some reason for. Because there can be no question that in time to come, when this
Constitution has to be interpreted, every word will be weighed and an interpretation given to it; and by
the use now of what I may describe as idle words which we have no use for, we may be giving a
direction to the Constitution which none of us now contemplate. Therefore, it is incumbent upon us to
see that there is some reason for every clause and every word that goes into this Constitution. Now, I
agree with Mr. Isaacs, that the 14th amendment of the United States Constitution was directed entirely
to the question of the citizenship of negroes who were freed men, and it was necessary to implant
something of that kind in the American Constitution, because of the fever heat which had been excited,
and which was then subsiding, over the war which had convulsed the country. But how can that
condition of things, or that necessity which arose then, have any hearing on our position? I take it that
the best way to look on this matter is to try and forget all about the 14th amendment of the United
States Constitution, and regard it as though we were framing this Constitution without any knowledge
of any such provision. It seems to me that the first portion of the amendment of the United States
Constitution, which deals with citizenship, is not in any way necessary. Surely every person who has
the suffrage-the right to vote within the Commonwealth-and who lives within the Commonwealth, is a
citizen of the Commonwealth, and entitled to all its privileges, including the right to take part as the
Commonwealth provides in the framing of the laws.
Mr. HIGGINS.-They have declared that in the amendment of the Constitution of the United States; but we
have not got it here.
45
50
Mr. ISAACS.-That shows the history of it.

Mr. OCONNOR.-That shows the history of it, as Mr. Isaacs suggests. I am pointing out that there is no
necessity for it in our Constitution-no necessity to point out that every person in the states is a citizen of the
Commonwealth. There is no necessity for it, because citizenship follows from the rights you give every
person in every portion of the Commonwealth under the Constitution. Now, is there any right which it is
necessary to state that you give? I see that this provision that we are discussing now makes some reference to
privileges or immunities of citizens. Quite sufficient has been pointed out to show that that might work in an
exceedingly complicated way-in a way we have no conception of at the present time-if it is inserted in its
present form. The only possible differences or disabilities in the states now, as affecting different classes of
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citizens, are those which exist in regard to aliens and coloured races. But already in clause 52 we have
agreed to the insertion of a sub-section which enables the Commonwealth to deal with that matter, and
there can be no question about it that in course of time the different laws that exist in the states dealing
with such coloured races will be similar, and that such races will be dealt with uniformly, so that
whatever privileges [start page 673] or disabilities exist in one state with regard to these people will
exist in another state. There is only one portion of the Tasmanian amendment which I think should be
preserved, and I prefer it in the form in which it stands as submitted by the Legislative Assembly of
Tasmania. I think that the only portion of it which it is necessary to preserve is this-altering the wording
slightly so as to make it read as I think it should readA state shall not deprive any person of life, liberty, or property without due process of law, or deny to
any person within its jurisdiction the equal protection of its laws.
So that any citizen of any portion of the Commonwealth would have the guarantee of liberty and safety in
regard to the processes of law, and also would have a guarantee of the equal administration of the law as it
exists. I think Mr. Isaacs will bear me out, that in the United States it has been decided that the title to equal
treatment under the law does not mean that you cannot make a law which differentiates one class of the
community from another; but, as has been decided, it means that in the administration of the laws you have
made, all the citizens shall be treated equally. And that should be so. Whatever privilege we give to our
citizens, the administration of the law should be equal to all, whatever their colour. The case I refer to is
one of the Chinese cases-I forget the name of it.
Mr. ISAACS.-The case of Yick Wo v. Hopkins.
END QUOTE
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QUOTE
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the
operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a
citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a
state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual
citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen
of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all.
But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those
who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not
expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this
Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision and
clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to
place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the
right of depriving me of citizenship. I put this only as an argument, because no one would anticipate such a
thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year should
be a citizen of the Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not?
disabilities, as aliens, and so on.
END QUOTE

QUOTE
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Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a
case which is extremely unlikely to occur-prohibit a citizen of the neighbouring colony
from acquiring property in the legislating colony, or only allow him to acquire it under
adverse conditions? But why not? The whole control of the lands of the state is left in that
state. The state can impose what conditions it pleases-conditions of residence, or
anything else-and I am not aware that a state has surrendered the control of the
particular administration of its own lands, or of anything that is left to it for the
exercise of its power and the administration of its affairs. I would much prefer, if there
is to be a clause introduced, to have the amendment suggested by Tasmania, subject to one
modification, omitting the words-"and all other persons owing allegiance to the Queen."
That would re-open the whole question as to whether an alien, not admitted to the
citizenship here-a person who, under the provisions with regard to immigration, is
prohibited from entering our territory, or is only allowed to enter it under certain
conditions-would be given the same privileges and immunities as a citizen of the
Commonwealth. Those words, it seems to me, should come out, and we should confine the
operation of this amendment so as to secure the rights of citizenship to the citizens of the
Commonwealth. I think, therefore, that with some modification the amendment suggested
by Tasmania would be a proper one to adopt.
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END QUOTE
.

QUOTE
25
Mr. SYMON (South Australia).-I think the honorable member (Mr. Wise) has expanded the spirit of
federation far beyond anything any of us has hitherto contemplated. He has enlarged, with great emphasis, on
the necessity of establishing and securing one citizenship. Now, the whole purpose of this Constitution is
to secure a dual citizenship. That is the very essence of a federal system. We have debated that matter again
and again. We are not here for unification, but for federation, and the dual citizenship must be recognised as
lying at the very basis of this Constitution.
30
END QUOTE
35
.
QUOTE Mr. BARTON.
If we are going to give the Federal Parliament power to legislate as it pleases with regard to
Commonwealth citizenship, not having defined it, we may be enabling the Parliament to pass
legislation that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact,
to play ducks and drakes with it. That is not what is meant by the term "Trust the Federal
Parliament."
40
END QUOTE
.
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QUOTE
Mr. SYMON.-The honorable and learned member is now dealing with another matter. Would not the
provision which is now before us confer upon the Federal Parliament the power to take away a portion of this
dual citizenship, with which the honorable and learned member (Dr. Quick) has so eloquently dealt? If that is
the case, what this Convention is asked to do is to hand over to the Federal Parliament the power, whether
exercised or not, of taking away from us that citizenship in the Commonwealth which we acquire by joining
the Union. I am not going to put that in the power of any one, and if it is put in the power of the Federal
Parliament, then I should feel that it was a very serious blot on the Constitution, and a very strong reason why
it should not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood
who is entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of
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36
having that taken away or diminished by the Federal Parliament! When we declare-"Trust the
Parliament," I am willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement for
joining the Union.
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60
END QUOTE
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE Mr. OCONNOR (New South Wales).But let us take first his position in regard to the Commonwealth. Under the power which you have
given to the Federal Parliament to make laws regulating immigration and aliens, you embrace every
possible set of circumstances under which any person may enter the bounds of the Commonwealth. As
you have power to prevent any person from entering any part of the Commonwealth, you have also the
power to prevent any person from becoming a member of the Commonwealth community. There is no
territorial entity coincident with the Commonwealth. Every part of the Commonwealth territory is part
of the state, and it is only by virtue of his citizenship of a state that any person within the bounds of the
Commonwealth will have any political rights under the Constitution. Of course, when I speak of a state,
I include also any territory occupying the position of quasi-state, which, of course, stands in exactly the
same position.
Mr. WISE-Is that clear?
[start page 1754]
Mr. OCONNOR.-If the territory does not stand in the same position as a state, it is admitted to
political rights at the will of the Commonwealth, and upon such terms as the Commonwealth may
impose. Every person who has rights as a member of the Commonwealth must be a citizen either of
some state or some territory. It is only by virtue of his citizenship of a state or of a territory that he has
any political rights in the Commonwealth.
Mr. WISE.-Before the 14th amendment was passed it was very much questioned whether a citizen of
Washington had any rights at all, because Washington was only a territory.
Mr. OCONNOR.-Yes; but what the honorable and learned member says really supports my
argument. The thirteen original states occupied a very small portion of the area now forming the
United States of America, and of course the question might arise as to what the position of a person
who is not resident of or a citizen of any state, but a resident of a territory, might be in relation to the
Commonwealth. But I do not think that that question will arise here, because we cannot imagine, I
think, any portion of the Commonwealth becoming a territory now, unless it has been a state at one
time-unless it is some portion of a state which has been ceded to the Commonwealth, and in the cession
to the Commonwealth there is no doubt that care will be taken to define what the rights of the residents
of the territory would be in regard to the political rights of the Commonwealth. It appears to me quite
clear, as regards the right of any person from the outside to become a member of the Commonwealth,
that the power to regulate immigration and emigration, and the power to deal with aliens, give the right
to define who shall be citizens, as coming from the outside world. Now, in regard to the citizens of the
states-that is, those who are here already, apart from these laws-every citizen of a state having certain
political rights is entitled to all the rights of citizenship in the Commonwealth, necessarily without a
definition at all.
END QUOTE
QUOTE
Mr. KINGSTON.-How would you define the word "citizen"?
Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one who
is entitled to the immunities of citizenship. In short, a citizen is a citizen. I do not think you require a
definition, of "citizen" any more than you require a definition of "man" or "subject."
Mr. ISAACS.-Would you include a corporation in the term "citizen"?
Mr. SYMON.-Why not?
Mr. ISAACS.-Well, in America they do not.
Mr. SYMON.-I do not see why a corporation existing in one colony should not have the rights of a
corporation in another colony. Otherwise you defeat the objects of this Constitution.
[start page 1783]
Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a corporation.
Mr. SYMON.-Well, in my opinion it should. I
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37
END QUOTE
.

5
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QUOTE
Dr. QUICK (Victoria)-I do not propose to be as severe in my criticism of the provision of
the honorable and learned member (Mr. Symon) to-day as he was in his determined
opposition to my proposed clause yesterday. I would point out, however, two difficulties in
the way of adopting his provision. The first is that there is no definition of the status of
"citizen." The clause does not say whether a citizen is a ratepayer of a state, an adult
male, or any member of the population of a state-men, women, children, Chinamen,
Japanese, Hindoos, and other barbarians. Who are the citizens of a state?
Mr. SYMON.-That depends upon the law of the state upon the subject.
Dr. QUICK.-So far as I am aware, there is no law in any colony defining colonial
citizenship or state citizenship. I am merely adopting the line of argument which my
honorable and learned friend adopted yesterday, in taking advantage of technical
points.
Mr. SYMON.-That was not my line of argument.
END QUOTE
.
QUOTE
Sir JOHN FORREST.-What is a citizen? A British subject?
Mr. WISE.-I presume so.
Sir JOHN FORREST.-They could not take away the rights of British subjects.
Mr. WISE.-I do not think so. I beg to move- That the words "each state" be omitted, with the view of
inserting the words "the Commonwealth."
I apprehend the Commonwealth must have complete power to grant or refuse citizenship to any citizen
within its borders. I think my answer to Sir John Forrest was given a little too hastily when I said that every
citizen of the British Empire must be a citizen of the Commonwealth. The Commonwealth will have power
to determine who is a citizen. I do not think Dr. Quick's amendment is necessary. If we do not put in a
definition of citizenship every state will have inherent power to decide who is a citizen. That was the
decision of the Privy Council in Ah Toy's case.
Sir JOHN FORREST.-He was an alien.
Mr. WISE.-The Privy Council decided that the Executive of any colony had an inherent right to
determine who should have the rights of citizenship within its borders.
Mr. KINGSTON.-That it had the right of keeping him out.
END QUOTE
.
QUOTE
Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject of the Queen is
co-extensive with the ordinary definition of a subject or citizen in America. The moment be is under any
disability imposed by the Parliament be loses his rights.
Dr. QUICK.-That refers to special races.
END QUOTE
.
QUOTE
Mr. SYMON.-There is no man in Australia who is more profoundly versed in
constitutional law than Mr. Isaacs, and he knows that every point and every question has
been the subject of more or less debate and discussion, and will be until the end of time.
The words "subject," "person," and "citizen" can be made subjects of controversy at
all times if occasion requires it. At the same time, it does not affect the principle that
there should be a definition of "citizen," either in the form suggested by Dr. Quick or
by Mr. Barton. I will be quite content. The principle is what I am contending for: The
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principle that our labours will be incomplete unless we make the rights of citizens or
subjects in one state to extend to the citizens of another state who may go from one state
to another. There ought to be no possibility of any state imposing a disqualification on a
person in the holding of property, or in the enjoyment of any civil right, simply
because be happens to belong to another state. That would not give us the uniformity of
citizenship we all desire, and therefore I am willing that the word "citizenship" should be
defined as Dr. Quick suggests, with perhaps some modification. I also support the
suggestion from the Chair that the two propositions might be considered together. The
clause would do something to meet the difficulty, not perhaps finally or conclusively, as
Mr. Isaacs, said, but at any rate to a large extent and almost completely.
[start page 1788]
END QUOTE
.
QUOTE
Mr. HIGGINS.-That is the question-are those dangers non-existent?
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Mr. BARTON.-I do not think the fact that we may be held by law to be a Christian community is any
reason for us to anticipate that there will be any longer any fear of a reign of Christian persecution-any fear
that there will be any remnant of the old ideas which have caused so much trouble in other ages. The whole
of the advancement in English-speaking communities, under English laws and English institutions, has shown
a less and less inclination to pass laws for imposing religious tests, or exacting religious observances, or to
maintain any religion. We have not done that in Australia. We have abolished state religion in all these
colonies; we have wiped out every religious test, and we propose now to establish a Government and a
Parliament which will be at least as enlightened as the Governments and Parliaments which prevail in various
states; therefore, what is the practical fear against which we are fighting? That is the difficulty I have in
relation to this proposed clause. If I thought there was any-the least-probability or possibility, taking into
consideration the advancement of liberal and tolerant ideas that is constantly going on of any of these various
communities utterly and entirely retracing its steps, I might be with the honorable member. If we, in these
communities in which we live, have no right whatever to anticipate a return of methods which were practised
under a different state or Constitution, under a less liberal measure of progress and advancement; if, as this
progress goes on, the rights of citizenship are more respected; if the divorce between Church and State
becomes more pronounced; if we have no fear of a recurrence of either the ideas or the methods of former
days with respect to these colonies, then I do suggest that in framing a Constitution for the Commonwealth of
Australia, which we expect to make at least as enlightened, and which we expect to be administered with as
much intellectuality as any of the other Constitutions, we are not going to entertain fears in respect of the
Commonwealth which we will not attempt to entertain with respect to any one of the states. Now, we have
shown that we do not intend these words to apply to our states by striking out clause 109. That might be a
provision that might be held to be too express in its terms, because there may be practices in various
religions which are believed in by persons who may enter into the Commonwealth belonging to other
races, which practices would be totally abhorrent to the ideas, not only to any Christian, but to any
civilized community; and inasmuch as the Commonwealth is armed with the power of legislation in
regard to immigration and emigration, and with regard to naturalization, and also with regard to the
making of special laws for any race, except the aboriginal races belonging to any state-inasmuch as we
have all these provisions under which it would be an advisable thing that the Commonwealth, under its
regulative power, should prevent any practices from taking place which are abhorrent to the ideas of
humanity and justice of the community; and inasmuch as it is a reasonable thing that these outrages on
humanity and justice (if they ever occur) should be prohibited by the Commonwealth, it would be a
dangerous thing, perhaps, to place in the Bill a provision which would take out [start page 1772] of their
hands the power of preventing any such practices.
Mr. HIGGINS.-Do you think that the Commonwealth has that power under the existing Bill?
Mr. BARTON.-I am not sure that it has not. I am not sure that it has not power to prevent anything
that may seem an inhuman practice by way of religious rite.
Mr. HIGGINS.-I want to leave such matters to the states.
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END QUOTE
I trust that this to some extent limited set out nevertheless will ensure that you and others will
give sufficient consideration to the matters set out in this correspondence.
I look forwards to your reply addressing the issues I raised.
This document is not intended and neither must be perceived to refer to all details/issues.
10
MAY JUSTICE ALWAYS PREVAIL

Our name is our motto!)
(
Awaiting your response,
G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)
p39
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20150614-G. H. Schorel-Hlavka O.W.B. To MR TONY ABBOTT PM-Re Removal of Citizenship-Etc

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Ref; 20150614-G. H. Schorel-Hlavka O.W.B. to Mr Tony Abbott PM-Re removal of citizenship-etc

Today at 9:19 PM (14-6-2015)

----- Original Message ----From: CSGROUP

No it is not un-constutional as there is no such thing in legal terms as an "Australian

----- Original Message ----From: Jim

ADDRESS TO THE COURT, Part 2

In criminal matters, at least as I understand it, the

ADDRESS TO THE COURT

ADDRESS TO THE COURT

ADDRESS TO THE COURT

ADDRESS TO THE COURT

I the Minister for Immigration and Ethnic Affairs,

and he now wants to give power to Parliament to vary that subsequently.

[start page 1761]

Barton J, the parliament cannot give the word a meaning

Dang, Ex parte - Re MIMA M118/2001 (18 April 2002)

KIRBY J: Your clients were not British subjects.

Hansard 1-4-1891 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

Sir GEORGE TURNER.-Is a naturalized alien a subject?

Hansard 16-3-1898 Constitution Convention Debates

ADDRESS TO THE COURT

In the Shaw case the high Court of Australia stated;

The Shaw case;

In Re Patterson; Ex parte Taylor HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/" \l

ADDRESS TO THE COURT

The terms Australian citizen, Australian citizens , Australian citizenship,

13-03-1891 Re; Australian citizens

ADDRESS TO THE COURT

And also consider;

Hansard 2-3-1898 Constitution Convention Debates;

III. Who is attainted of treason, or convicted of felony or of any infamous crime:

Sir GEORGE TURNER: He may be Minister of Defence.

Mr. HOLDER.-We have no definition of citizen.

Mr. SYMON.-Not if this Constitution becomes law.

Mr. ISAACS.-That shows the history of it.

Hansard 2-3-1898 Constitution Convention Debates

Hansard 8-2-1898 Constitution Convention Debates

Hansard 8-2-1898 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

Hansard 3-3-1898 Constitution Convention Debates

MAY JUSTICE ALWAYS PREVAIL

G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

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