Shaw Vs Australia Case Study

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Arguments:

A) The ratio in Shaw should not be overulled because;

a.i) CJ French in Wurridjal V Commonwealth [2009], stated [70] that the courts take a cautionary approach to overruling cases. Such an approach requires examination of factors. These factors include; if the decision is done in isolation, if the decision affirms the stream of authority and if the overruling would disrupt the law.

A.ii) Shaw’s decision was not done in isolation. In Nolan v Minister for Immigration and Ethnic Affairs (1988). The majority held that anyone not a citizen of Australia is an Alien under section 51 (xix). In Re Patterson Ex Parte Taylor (2001) the court held that Taylor was not an alien. Nolan was reaffirmed by Meng Kok Te (2002) and Singh (2001); both stating that aliens were non-citizens. Therefore, the decision in Taylor can be construed as being done in isolation. …show more content…

The result of the overruling would create inconsistency within the law.

b) Brett Walsh is an alien, as absorption into community is not a valid method of gaining Australian Citizenship, because;

b.i) He is not a citizen under the Binary approach (Shaw v Minister for Immigration and Multicultural Affairs (2003). The Binary approach states that a person is either an alien (non-citizen) or a non-alien (citizen). Walsh is an alien (non-citizen) as he never applied for citizenship.

B.ii) The idea of absorption is weak law. It was only a dissent in Patterson, with no clear ratio. Furthermore, J Gaudron in Re Patterson ex parte taylor (2001) stated that although Taylor has been absorbed into the Australian Community, he can still be

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