Cowgill, Ex parte - Re MIMIA

[2003] HCATrans 601

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P100 of 2002

In the matter of -

An application for Writs of Prohibition and Certiorari against THE HONOURABLE PHILIP RUDDOCK, the Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

Ex parte –

SCOTT ERIC COWGILL

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 MARCH 2003, AT 11.32 AM

Copyright in the High Court of Australia

MR M.J. HAWKINS:   If it please your Honour, I appear for Mr Cowgill.  (instructed by Law Access)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia:   If your Honour pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Solicitor, what is the state of progress?

MR BENNETT:   Your Honour, we have prepared a draft case stated.

HIS HONOUR:   Yes.  Has Mr Hawkins seen that?

MR BENNETT:   I am not sure what ‑ ‑ ‑

MR HAWKINS:   Yes, your Honour, I saw the most recent draft this morning.

HIS HONOUR:   Yes.

MR BENNETT:   This draft does not raise, and we intend not to raise by it, the cancellation of the visa issue.  There is a minor issue which arises this way, that there is a complexity as to what class of visa is held by what people from New Zealand who came to Australia at different periods as a result of different regulations at different times.  There is a suggestion that the visa referred to in the document that went to the Minister was not the correct type and there are two issues:  did the Minister cancel the right visa?  We say the order the Minister made was simply cancellation of the visa, which answers that.  The second question is:  is there an error of law which vitiates the decision because of the reference to the wrong class?  We say there is no material difference which would affect that, therefore there is not.

HIS HONOUR:   They would be issues which had in mind the keeping back.

MR BENNETT:   Yes, that is our approach, your Honour.  If the result of the hearing is that the matter proceeds, then it can be remitted to determine that question.

HIS HONOUR:   Yes.

MR BENNETT:   There is also, I think, a question about the way the interests of the children were taken into account which similarly ‑ ‑ ‑

HIS HONOUR:   Yes.  What is the position of the mother of the children?  There is nothing in there about that at the moment.

MR BENNETT:   She is deceased, your Honour, as I understand it.

HIS HONOUR:   I see.  Is that your understanding, Mr Hawkins?

MR HAWKINS:   Yes.  The mother has died and the grandmother is looking after the children.

HIS HONOUR:   Right.  Then there had just better be some addition to paragraph 16 to indicate that the mother of the children – do we know the year of her death?

MR HAWKINS:   Yes, we do.

HIS HONOUR:   Yes.  What is it?

MR HAWKINS:   I cannot recall it at the moment but, yes, we do know the year of her death.

HIS HONOUR:   Well, a sentence to that effect had better be put in in paragraph 16.

MR BENNETT:   I can have that done.

HIS HONOUR:   Were they married?

MR HAWKINS:   No, it was a de facto relationship.

HIS HONOUR:   That had better be indicated too, I suppose, and the fact of the mother’s death.

MR BENNETT:   Yes, I will have that done, your Honour.  I should tell your Honour the status of other matters.  There is a matter in this Court’s list of Shaw ‑ ‑ ‑

HIS HONOUR:   That is right.  The Chief Justice is minded at the moment to list that in the middle of the year and it would be to the Court’s advantage and everyone’s advantage if this case were listed with it.

MR BENNETT:   We would so submit, your Honour.

HIS HONOUR:   Now, the question then is:  how soon can this draft case stated be in final form?

MR BENNETT:   Within a week, your Honour.

HIS HONOUR:   What is your position, Mr Hawkins?

MR HAWKINS:   If your Honour is minded that the interpretation of the decision itself made by the Minister is not for the High Court to consider ‑ ‑ ‑

HIS HONOUR:   No, not at the moment.

MR HAWKINS:   ‑ ‑ ‑ then the draft can be agreed today.

HIS HONOUR:   Yes, very well.  You are right in your assumption as to that which I think should be kept back at the moment from the Full Court.  All I think that should go forward is the general thrust of this case stated.  Can I just indicate, gentlemen, just looking at the draft, at paragraph 3, is that instrument available?

MR HAWKINS:   Yes, it is.

HIS HONOUR:   That should be annexed, I think.  Paragraph 12, that decision is documented, is it not?

MR HAWKINS:   Yes, that has been documented and is available to be annexed.

HIS HONOUR:   Yes, that should be annexed too.  The criminal record is annexed already I see to 13.

MR BENNETT:   And it is set out in the document which the Minister ‑ ‑ ‑

HIS HONOUR:   Which will go in in the Minister’s document.

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   Yes.  Then there is the addition to 16.

MR BENNETT:   Yes.

HIS HONOUR:   If that can be got in order, I will make that necessary order for stating the case.

MR BENNETT:   Yes.  I should tell your Honour there is a third matter which involves this question of the arrival between the two dates.

HIS HONOUR:   The two dates being?

MR BENNETT:   Being the date of the Royal Style and Titles Act in 1973 and the date of the amendments to the Australian Citizenship Act in 1987, that being the difference between Justice McHugh and the other three members of the majority.

HIS HONOUR:   Yes.

MR BENNETT:   There is a case called Long in which Justice French held that the view of Justice McHugh represented the lowest common denominator of the majority and, therefore, should be followed, there being no other binding ratio that could be devised from Patterson’s Case.  An appeal against that to the Full Federal Court was heard last week in Perth.  The difficulty is that involved an administrative law question as well.  If that issue is decided adversely to the Commonwealth, it may be they will not decide the constitutional issue.

HIS HONOUR:   Yes, I understand that.

MR BENNETT:   It is not proposed to remove that as well or join it with these two cases.  There are also two cases which raise a slightly different question which it may be sought to try and have heard with this, and that is cases involving people who arrive before 1973 but have gone back and the issue whether, while outside Australia, they can rely on Patterson to demand re‑entry, in effect.  That is an issue which is closely associated with these issues and may be convenient to decide at the same time, though, of course, your Honour need not decide that today.

HIS HONOUR:   How close are they to maturity?

MR BENNETT:   One, I think, is already in this Court, that is the matter of Burgess, and one is before the Full Federal Court at the moment and I think has not yet been decided.  That is being heard by the Full Federal Court later this month in Perth.  It is a matter of Hollis.  Now, whether we seek to get either Burgess or Hollis heard with these two is a matter which I simply foreshadow as a possibility at this stage but obviously it will depend on when these matters can be listed and how soon ‑ ‑ ‑

HIS HONOUR:   Yes.  The proposal at the moment I think is June, one day in the June sittings.

MR BENNETT:   Yes.  It should not take more than a day, your Honour.

HIS HONOUR:   No.

MR BENNETT:   It is really just a matter of analysing Patterson, hearing our application for the Court to declare and to follow Patterson and to accept the minority decision.  If the Court refuses that, there are some interesting arguments about how one determines ratio decidendi.

HIS HONOUR:   Yes, I understand that.

MR HAWKINS:   Your Honour, may I mention some other aspects of this particular application, please?

HIS HONOUR:   Yes, of course.

MR HAWKINS:   The first is that one of the reasons there has been a bit of toing‑and‑froing with the case stated is that we have requested informal discovery from the Commonwealth.  We understand there are microfiche records that exist that cover the arrival of Mr Cowgill in Australia and we would prefer to see those before we signed off on the case stated. 

The second aspect is that Mr Cowgill’s period of detention through sentencing in Western Australia expired on August 2002 and we have asked the Commonwealth if the Commonwealth will agree to Mr Cowgill being released.  We say it is not appropriate that he be held in detention until such time as the Commonwealth attempts to persuade the Court that Patterson should not be followed.

MR BENNETT:   Your Honour, both those matters are matters for instructions as to which I have no instructions today, but we will of course ‑ ‑ ‑

HIS HONOUR:   Yes.

MR HAWKINS:   The third aspect is the question of English and New Zealand legislation as to the Royal Titles – technically speaking, they are facts and perhaps should be stated as part of the case stated, but certainly we would have no objection to the Acts themselves going in as an annexure or as part of submissions.

HIS HONOUR:   What is silent at the moment is the situation in New Zealand law as to Royal Style and Titles in 1975, I suppose.

MR BENNETT:   Yes.  There is an Act around the same time as ours which says more or less the same thing, your Honour.

MR HAWKINS:   Yes, it is the 1974 Act.  I apologise, your Honour, that you do not have before you a copy of the draft that Law Access had prepared for Mr Cowgill.  In paragraph 9 of that draft it summarised the

legislation in New Zealand and Australia and of Western Australia in terms of the way in which the Queen was referred to and described.

MR BENNETT:   I have no objection to that being included in the proposed stated case, your Honour.

HIS HONOUR:   Yes, that would go in probably 1(a), somewhere in there.  Now, are there any other points about the draft case stated?  It is in your client’s interests to get this case decided.  I am here, the Solicitor‑General is here, we must progress ‑ ‑ ‑

MR HAWKINS:   Yes.  The last aspect was – and this may perhaps be relevant.  In Mr Cowgill’s draft there was greater detail about the children and the situation with the children, but that would depend on the Court being prepared to hear an argument about whether or not the Minister had failed to take into account the interests of the children.

HIS HONOUR:   No, those administrative law issues are being held back, Mr Hawkins.  I tried to make that clear.

MR HAWKINS:   Yes, I understand that.  They are the only matters that I wish to raise, your Honour.

HIS HONOUR:   Yes, thank you.  Then just going back to the draft, the legislation of New Zealand referred to touching Royal Style and Titles should go in somewhere after paragraph 1.  I do not think there is any objection to that by the Commonwealth.  The instrument referred to in paragraph 3 should be annexed.  Likewise, the Minister’s decision at paragraph 12 should be annexed and paragraph 16 should be supplemented to indicate the position respecting the mother of the two children.

Just looking at paragraph 2 for a minute, at that time pursuant to the British Nationality and New Zealand Citizenship Act 1948 he was a citizen of New Zealand – I understand that – and pursuant to the British Nationality Act 1948 (UK) he was also a citizen of the United Kingdom and colonies and a British subject.  Is that stating a conclusion as to the effect of the 1948 UK Act as a matter of UK law or New Zealand law?

MR BENNETT:   Yes, your Honour.  It is because his father was a United Kingdom citizen and that ‑ ‑ ‑

HIS HONOUR:   That is because both parents were citizens – I see.  They were both born in the United Kingdom, were they?

MR BENNETT:   Yes, your Honour, as I understand it.

HIS HONOUR:   Is that agreed, Mr Hawkins?

MR HAWKINS:   Yes.

HIS HONOUR:   Your client’s parents were both born in the United Kingdom?

MR HAWKINS:   Yes, they are my instructions.

HIS HONOUR:   Yes.  I think the last sentence of 2 should make that clear.

MR BENNETT:   Yes, if your Honour pleases.

HIS HONOUR:   His parents were also both born in and citizens of ‑ ‑ ‑

MR BENNETT:   Yes.

HIS HONOUR:   All right.  Is there anything else?

MR BENNETT:   No, your Honour.

HIS HONOUR:   If that case stated can be got in proper shape and finally engrossed and submitted to me in chambers, I will make the order in chambers without any need for further attendance.  If there cannot be agreement, of course it will have to be relisted.  So all I need to do this morning is make costs of this morning, costs, what, of the cause in this Court?

MR HAWKINS:   Yes, I have no objection to that.

HIS HONOUR:   Yes, and certify for counsel.  I should indicate that if the case stated is finalised promptly, this matter plus the matter of Shaw can hopefully be listed in June together on the same day.  Is there anything else?

MR BENNETT:   No, your Honour.

HIS HONOUR:   Anything else, Mr Hawkins?

MR HAWKINS:   No, thank you.

HIS HONOUR:   Very well, I will now adjourn.

AT 11.49 AM THE MATTER WAS CONCLUDED