Ame, Ex parte - Re Battersby & Ors

[2004] HCATrans 400

[2004] HCATrans 400

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M146 of 2004

In the matter of -

An application for Writs of Habeas Corpus, Prohibition, Certiorari, Mandamus and a Declaration against RICHARD BATTERSBY, THE DIMIA MANAGER OF THE VILLAWOOD DETENTION CENTRE

First Respondent

GREG HOWDEN, THE GENERAL MANAGER OF GLOBAL SOLUTIONS LIMITED

Second Respondent

SENATOR THE HONOURABLE AMANDA VANSTONE, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

Ex parte –

AMOS BODE AME

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 11 OCTOBER 2004, AT 9.32 AM

(Continued from 21/9/04)

Copyright in the High Court of Australia

__________________

MS K. RUBENSTEIN:   Your Honour, I appear with MR C.J. HORAN for the applicant.  (instructed by Clothier Anderson & Associates)

MR G.R. KENNETT:   May it please the Court, I appear for the respondents.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, I have looked at the draft case that was sent on Friday last.  May I raise a number of questions about it with counsel.  First, I assume that the facts which found the case stated are to be treated as agreed facts, agreed at least for the purposes of the case stated.  Is that so?

MS RUBENSTEIN:   Yes, your Honour.

HIS HONOUR:   Yes.  Second, can I deal with two questions that may bear upon the substance of the case stated before we come to some relatively minor drafting issues which are more readily accommodated.  The issue that is sought to be raised by question 3) concerning the (Australian Citizenship of Young Persons) Regulations finds only inferential reference in the body of the case stated.

It occurs to me that if we are to state any question about that – and there remains in my mind a real question about whether it is appropriate to state a question about that aspect of the matter – it would be necessary, or at least desirable, to include, most probably after paragraph 7 of the present draft, first a paragraph which read something along the lines of “The Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations, made on whatever date it is in 1980, provide” and then perhaps set out the text of Regulation 2, if that is sufficient, or

Regulations 2 and 3, if both are thought necessary, but then to add a further paragraph, which brings me to the question about the appropriateness of including this in the case stated, as that further paragraph would, I assume, read something along the lines that “at the time of the making of that regulation or immediately after the regulation was made” – I leave aside which is the preferable time to pick – “the applicant (a) was under 19 years of age”, a fact which seems to engage Regulation 2A, but then what is said to be the fact or combination of facts that would engage Regulation 2B cast, as it is, in the negative?

MS RUBENSTEIN:   Your Honour, in my interpretation of it, it would be the same issue as we are raising in question 1) in terms of the rights of residents associated with Australian citizenship, so that the legal issue underpinning this regulation is, in fact, similar to the legal issue underpinning question 1) as a matter of construction.

HIS HONOUR:   Is a way of dealing with it – and this is a pure question, not a statement in the form of a question – to adopt a formula like the applicant contends and the respondent denies that, here insert the controverted issue of fact, because it seems to me that there is at least advantage in identifying the way in which it is said that this regulation is engaged and it being, so you tell me, identical with the legal issue that engages question 1), making that plain so that the Court is not, when reading the case, wondering what is the further point or what is the further issue that is raised.

Now, how do you articulate the assertion that the applicant makes which would lead to the engagement of Regulation 2B?  I am not concerned to hold you immediately to the drafting on the run, but could you articulate for me the essence of the point that you would seek to make in this regard.

MS RUBENSTEIN:   Your Honour, I would articulate it in the fashion that the applicant as an Australian citizen or a non‑alien was entitled to residence in any part of Australian territory and was not bound by the Migration Act 1958.

HIS HONOUR:   Now, that articulation – which may be right, it may be wrong – seems to me to roll together a couple of disparate elements.  First, the statutory concept of citizenship, the significance of which is significance that is to be given to any statutory status, if it is a pure statutory status, presumably that which Parliament gives, Parliament may remove, but it also rolls up with it this question which seems to be one of power about ambit of the aliens power and it rolls up also the concept of entitlement. 

Now, unadorned “entitlement” simply invites the further question:  well, why?  It seems to me that the articulation of the proposition is at the very least a desirable step in the formulation of the case.  My present inclination is to think it is indeed a necessary step, but further, I do invite attention to whether rolling statutory concepts together with constitutional concepts and questions of power is desirable or is simply an invitation to error of analysis.

If we are to have any question about the operation of Regulation 2, it would seem to me that we need to amplify the facts in the manner I have described.  If we are to have that amplification in connection with the operation of Regulation 2B, it does not seem to me inevitably to follow that it is desirable that there be a mirror articulation in connection with question 1).  It does rather invite attention to what is underpinning question 1) and what scope for debate remains after the Court’s decision in Singh.  Now, that is one of the two issues which I would regard as in the nature of substantive issues.  The other is this:  why do we ask question 4)?

MS RUBENSTEIN:   Your Honour, in the original order nisi application there is a declaration sought that the applicant be ‑ ‑ ‑

HIS HONOUR:   I understand that, but do we need to ask question 4) of the Full Court?  If the answers given to what presently constitute questions 1), 2), 3) and 5) fall out in a particular way, then it may be that the single Justice to whom a case were remitted would find himself bound by the outcome, but do we add anything by asking question 4)?

MS RUBENSTEIN:   Well, it seeks, your Honour, to clarify one of the underpinning legal issues and I accept your Honour’s suggestion that if the outcome of the answers is in the applicant’s favour in essence of those 1), 2) and 5), then in essence the result of question 4) will be answered.

HIS HONOUR:   If question 1) is answered no, which is, I understand, the contention you make, you would say, I assume, that that is an end of the case.  You would not even get on to question 5), would you?  I assume the answers you would be propounding would be, answer 1), no; 2) to end, unnecessary to answer.

MS RUBENSTEIN:   Indeed, your Honour.

HIS HONOUR:   Yes.  I am not presently minded to state question 4) as a separate question.  If there is anything further you wanted to say in support of it, I will, of course, hear what you say about that, but there we are.  May I then take up what I think are little more than drafting questions which, in another life, I used to tell juniors indicated simply that I had read the document.  The only attachment at the moment that is proposed is paragraph 5, the attachment, what, of the whole of the Constitution?  I do not suggest you should not.  I can see advantage in attaching the whole but it is a fairly bulky document.  Is that the intention?

MS RUBENSTEIN:   Yes, it was, your Honour.

HIS HONOUR:   Yes, that is fine.  If we are to go down the path of considering the Young Persons Regulations, if I can abbreviate it in that way, is there advantage in annexing those just for ease of reference?  It occurs to me that there may be some advantage.

MS RUBENSTEIN:   Certainly, your Honour.

HIS HONOUR:   Paragraph 6, “during that period”, the last three words of paragraph 6, it may be there is some ambiguity about that.  Is it enough to say he did not apply for and was not granted any right to enter and to remain in Australia under the Migration Act 1958 (Cth) before Independence Day? Is that the factual point that is being made? If it is, then it may be simpler.

MS RUBENSTEIN:   Thank you, your Honour.

HIS HONOUR:   Paragraph 8, do we need to have, is it desirable that we have, any of the bridging visas or further identification of the nature of the bridging visas, that is to say bridging visa class whatever?  It occurs to me that there may be some slight advantage in indicating the class of visa that is being spoken of lest somebody inquire, “Well, you say granted a further substantive visa expiring on 3 November.  Does anything turn on that?  What was the content of it?” just for the avoidance of doubts and difficulties.  Paragraph 8(f), the second line, “bridging visa, as he was in criminal detention, and this ceases” – I assume that is “ceased”.

MS RUBENSTEIN:   Indeed, your Honour.

HIS HONOUR:   Paragraph 11, the detention is, I think, immigration detention, is it not?  That may be of advantage to identify that.  Then as to the questions, my remaining uncertainty about this is this Young Persons Regulation question because I do not yet understand, if he did cease to be an Australian citizen at Independence, what is the factual base upon which he would reacquire.  You tell me that it is the same ultimate legal underpinning.  As I understand it, that underpinning is that he had a right to enter and to remain in any part of Australia.  The content of that right I leave to you to amplify, but if that were so, does that not mean, on your contentions, that question 1) is answered no? 

What I do not grasp is why we would ever get to what is presently proposed as question 3).  That may very well be my lack of understanding of the case, but that is the problem.  You can either answer it now – if there is an immediate answer that will lighten my darkness, let me be lightened, but it is a question which I think, unless there is an immediate answer to, you may perhaps give some further thought to because at the moment it seems to me the relevant questions are 1) and 2) and 5) and 6).

MR KENNETT:   Your Honour, could I say my understanding of the case is similar, I think, to your Honour’s in that the answer to question 3) will probably emerge – firstly, the relevance and, secondly, the answer to question 3) will probably emerge from the answer to question 1). 

HIS HONOUR:   Yes.

MR KENNETT:   The reason question 3) is in there is that it seemed to be one of the gates that needed to be closed, as it were, in order to reach a positive view one way or the other about the applicant’s present citizenship status.

HIS HONOUR:   I understand that, but if the same legal proposition underpins both questions and we identify in the course of this unduly protracted series of directions hearings that that is so, then, yes, the problem can simply be put to one side and the Full Court not troubled by it.

MR KENNETT:   Yes.  It may be, I suppose on reflection, that it would be something that the single Judge could work out on the basis of answers to the earlier questions given ‑ ‑ ‑

HIS HONOUR:   And the way in which these debates have been occurring, that unless the applicant can demonstrate that there is a separate question, I will not state it.

MR KENNETT:   Yes.

HIS HONOUR:   And the absence of demonstration of separateness would lead to, I would have thought, were you to succeed on the case stated, inevitable consequences on remitter to a single Justice.

MR KENNETT:   Yes.  My friend thinks there may be a separate question.

HIS HONOUR:   Yes.

MS RUBENSTEIN:   Your Honour, may I seek to articulate it.  It involves the intricate relationship between the Papua New Guinea Constitution and the Australian Citizenship Regulations as they were introduced.  The Australian Citizenship Regulations of 1975 state that if a person becomes a Papua New Guinea citizen they lose their Australian citizenship.  Our argument is that the applicant did not lose his Australian citizenship because he maintained his right to permanent residence.  If we are correct on that legal principle, there is still the problem that by virtue of the Papua New Guinea Constitution by being under 19 he was deemed a Papua New Guinea citizen regardless of his Australian citizenship which was the reason ‑ ‑ ‑

HIS HONOUR:   Why was that so?  Where does the PNG Act ‑ ‑ ‑

MS RUBENSTEIN:   It is actually going back to the Papua New Guinea Constitution section 64(2) which is on page 3 of our case stated which states that:

Subsection (1) does not apply to a person who has not yet reached the age of 19 years ‑ ‑ ‑

HIS HONOUR:   Yes.

MS RUBENSTEIN:   So that even if we are correct that he maintained his Australian citizenship by virtue of our constitutional principle, there is an argument that by virtue of section 64(2) of the Papua New Guinea Constitution he lost his Australian citizenship by virtue of their deeming him to be a Papua New Guinea citizen irrespective of his Australian citizenship.

HIS HONOUR:   What Papua New Guinea would treat him as is not relevant, is it, to us, except to the extent that the Australian Parliament or the regulations made under legislation have identified the relevant consequences?  Let it be assumed that he either has dual citizenship or PNG regards him even as stateless, so be it. 

MS RUBENSTEIN:   I accept that part of your argument, your Honour, and would probably be using that in ‑ ‑ ‑

HIS HONOUR:   It is not my argument, yes.

MS RUBENSTEIN:   Well, that explanation, your Honour, in relation to our argument in relation to his Australian citizenship, but there is the 1975 statutory rules 4B, that a person on Independence Day who becomes a citizen of the independent state of Papua New Guinea ceases on that day to be an Australian citizen.  So there are, in effect, two provisions for someone under the age of 19 that the applicant’s argument has to deal with.  So that, in essence, anyone under the age of 19 at the time of Independence who became a Papua New Guinea citizen needs to deal with the 1980 regulations in relation to their application to that person.

HIS HONOUR:   Let me see if I understand it.  The Australian regulation turned upon becoming a citizen of PNG.  That is step one.  Step two, an available understanding of the PNG Constitution is that persons under 19 who were Australian citizens at time of Independence did not become PNG citizens because of the operation of section 64.  That is step two in what you are putting, is it not?

MS RUBENSTEIN:   Correct, your Honour.

HIS HONOUR:   Step three is that the 1980 Young Persons Regulations were intended to deal, for Australian purposes, with persons who fell in that class or group and the last step in your argument is that because he had what you call a right to enter Australia and remain in any part of Australia Regulation 2, what, deemed him to have reacquired?  But your hypothesis is he never lost it.

MS RUBENSTEIN:   The terminology is that they shall be deemed ‑ ‑ ‑

HIS HONOUR:   Well, that is where I am stumbling.

MS RUBENSTEIN:   Your Honour, the first part of the question deals with all persons born in – the application of the principle would cover all persons born in Papua before Independence Day regardless of their age and it links to section 64(4) of the Papua New Guinea Constitution.  By virtue of his age, there is the extra requirement of dealing with what is, in essence, section 64(2).

HIS HONOUR:   But how is 64(2) relevant in light of 64(4)?  Section 64(4) excludes from the class of persons described as having a “real foreign citizenship” and it excludes those who, before Independence were an Australian citizen by virtue of “birth in the former Territory of Papua”.  Those persons fall outside 64(1) then, do they not?

MS RUBENSTEIN:   Yes, your Honour. 

HIS HONOUR:   Well, 64(2) is a qualification to 64(1).  Look, I know I am being slow about this.  I know I am being no doubt obtuse about it, but the bottom line is this.  I am not going to state a case to the Full Court until we have the questions and the facts right.  Now, drafting in committee never works.  It just makes everybody irritable.  It leads to the designing of camels.  Do you want to come back at 2.15?  Do you want to come back at a later day?  What do you want to do?

MS RUBENSTEIN:   We would like to try and do it today, your Honour, so 2.15 would be suitable.

HIS HONOUR:   Let me adjourn until 2.15.  If you can get to a new draft before then that I can look at, there is evident advantage.  Would it be better if I said 3 o’clock to enable you to ‑ ‑ ‑

MS RUBENSTEIN:   We are able to come back at 2.15, your Honour.

HIS HONOUR:   All right.  When can I see the redraft?

MS RUBENSTEIN:   Before lunch, your Honour.

HIS HONOUR:   After lunch is not going to be much good to me.  Can we have it up here by 12.30?  If you are hitting a hurdle, ring the Registrar and I will put it over until 3.

MS RUBENSTEIN:   Thank you, your Honour.

HIS HONOUR:   I am not quite so hidebound yet – 2.15.

AT 10.03 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.15 PM:

HIS HONOUR:   Yes.

MS RUBENSTEIN:   Your Honour, further to your guidance this morning and further deliberation between the parties we have submitted to the Court an amended version of the case stated.

HIS HONOUR:   Yes.

MS RUBENSTEIN:   Would your Honour like me to just refer to the specific paragraphs where the sections have been amended?

HIS HONOUR:   I read the marked up draft.  I see that working backwards what were questions 4) and 5) of the draft are taken out.  Is there now no separate point of the application of the Young ‑ ‑ ‑

MS RUBENSTEIN:   Former questions 3) and 4) have been ‑ ‑ ‑

HIS HONOUR:   Questions 3) and 4).

MS RUBENSTEIN:   Yes, that is right, your Honour.

HIS HONOUR:   Yes. No separate question about the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations is now tendered?

MS RUBENSTEIN:   That is correct, your Honour.

HIS HONOUR:   Yes, and then I see what has been done about the various other amendments that have been made.  Is there anything else that either party wishes to raise about the form of the case?

MS RUBENSTEIN:   No, your Honour.

HIS HONOUR:   Well, once the parties have engrossed a case stated in this form to which there is attached the relevant attachment – I think there is only the one attachment, is there not – I will sign that case stated and the matter will be entered for hearing when the Court is in a position to do that.  I cannot for the moment say to the parties when that will be.  Is there anything other than to reserve the costs of today and certify for counsel that needs be done?

MS RUBENSTEIN:   No, your Honour.

MR KENNETT:   I do not think so, your Honour.

HIS HONOUR:   Then I will indicate that I will state a case substantially in the form submitted to me.  I will reserve the costs of the application and certify for the attendance of counsel.

AT 2.18 PM THE MATTER WAS CONCLUDED