22 P a g e Nick Jackman Sem 1 2014 b BUT that its discretion is limited by the
22 p a g e nick jackman sem 1 2014 b but that its
School Macquarie University
Course Title LAWS 807
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Nick Jackman Sem 1 2014 b. BUT that its discretion is limited by the constitutional concept of alienage. b.i. Next page Singh at 203: 1. The previous decisions of the Court do not require the conclusion that those born within Australia who , having foreign nationality by descent, owe obligations to a sovereign power other than Australia are beyond the reach of the naturalization and aliens power. 2. Observations in Potter v Minahan , a case ultimately about the meaning of "immigrant" in a statute, concerning the consequences of birth in Australia were not directed to the present problem, and took no account of the question whether the defendant owed allegiance to any foreign power. 3. In Pochi , Gibbs CJ said that Parliament could "treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian". Mr Pochi met all three of these conditions. It would be wrong, however, to take what was said by Gibbs CJ as necessarily treating a person born in Australia as beyond the reach of the aliens power. That question did not arise and was not decided in Pochi . At 205: 1. Rather, the meaning of "aliens" was conveniently described in the joint reasons of six members of the Court in Nolan v Minister for Immigration and Ethnic Affairs where it was said that "alien" 2. "[u]sed as a descriptive word to describe a person's lack of relationship with a country ... means, as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state. It was common ground that the plaintiff is a citizen of India. She is, therefore, a citizen of a foreign state. She is a person within the naturalization and aliens power As to the limited discretion of Parliament to set criteria for 'alien 1. Cth parliament cannot itself define who is an alien: [36] in Singh 2. It is for the courts exercising the judicial power of the Cth, however, to determine who is an Alien for the purpose of the Const : [49] 3. Adapting the famous quote about the lighthouse power not authorising laws with respect to anything which the law-maker thinks is a lighthouse in ACP v Cth : 23 | P a g e
Nick Jackman Sem 1 2014 o To adapt that dictum to the present case, a power to make laws with respect to aliens does not authorise the making of a law with respect to any person who, in the opinion of the Parliament, is an alien – 153 4. Within limits set by the unchanging, essential elements of the word "aliens", it has been conventional in our constitutional law to acknowledge a large power on the part of the Parliament to give meaning to the language of the Constitution, subject always to consideration by the courts, which, in this respect, have the last say: [253] Recent HCA Decision: Plaintiff s156/2013 v Minister for Immigration & Border Protection [2014] HCA 22  Two provisions in Migration Act as well as two decisions made under those provisions by the Minister both valid.
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TAGS Law, Power, Constitutional Law, Sula, High Court of Australia, Australian constitutional law, Nick Jackman Sem, Nick Jackman
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