Editors --- "Ability to Deport British Subjects" [2004] AdminRw 13; (2004) 56 Admin Review 63

• Ability to deport British subjects

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Ability to deport British subjects

In Shaw v Minister for Immigration and Multicultural Affairs^[1] the High Court again considered whether a person could be classified as an ‘alien’, and therefore be liable to be deported, in the context of a factual situation bearing many similarities to that in Re Patterson; ex parte Taylor.^[2]

The applicant in Shaw arrived in Australia from the United Kingdom in 1974 at the age of 18 months but had never applied for Australian citizenship. His visa was cancelled in 2001 and moves were made to deport him on the basis of his criminal record. The prosecutor in Patterson had arrived in Australia from the United Kingdom in 1966 as a young child and his visa had been cancelled on the same basis.

A four–three majority in Patterson held that British subjects who came to Australia before a certain date were not aliens, even though they were also not citizens. The majority in that case disagreed as to the relevant date, but because it was either 1973 or 1987 the distinction was not relevant to the outcome.

The majority in Shaw—consisting of Gleeson CJ and Gummow, Hayne and Heydon JJ^[3]—ruled that any person entering Australia after the commencement of the Australian Citizenship Act 1948 who had not been naturalised was an alien for constitutional purposes and thus able to be deported. They regarded citizenship as the obverse of alienage and considered that the decision in Patterson had not established a clear principle.

The dissenting judges in Shaw—McHugh, Kirby and Callinan JJ^[4]—held that British subjects who arrived before 3 March 1986, when the Australia Act 1986 came into force, were not aliens.

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^[1] [2003] HCA 72.

^[2] [2001] HCA 51.

^[3] Gleeson CJ and Gummow and Hayne JJ were the three dissenting judges in Patterson. Heydon J was not a member of the High Court at the time of the Patterson decision.

^[4] These judges were all members of the majority in Patterson.