Koroitamana & Anor v Commonwealth of Australia & Anor

[2005] HCATrans 782

[2005] HCATrans 782

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S225 of 2005

B e t w e e n -

LOMANI JOEY KOROITAMANA (AN INFANT BY HER NEXT FRIEND SEREANA NAIKELEKELE)

First Applicant

MEREANI DIVOLOVOLI (AN INFANT BY HER NEXT FRIEND SEREANA NAIKELEKELE)

Second Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 SEPTEMBER 2005, AT 11.52 AM

Copyright in the High Court of Australia

__________________

MR R.C. KENZIE, QC:   May it please the Court, I appear with my learned friend, MR S.E.J. PRINCE, for the applicants.  (instructed by Michaela Byers)

MS M.A. PERRY, QC:   If it pleases the Court, I appear for the respondents.  (instructed by Australian Government Solicitor)

MR KENZIE:   Your Honours, before going to the substance, we do require an extension of time to file the applications that are revealed on page 24 of the book.

McHUGH J:   Yes.

MR KENZIE:   That is not contested.

McHUGH J:   No.  Well, proceed with your ‑ ‑ ‑

MR KENZIE:   Thank you, your Honour.  Your Honour, this is a case which, so far as we can see from the materials filed by the Commonwealth, there does not appear to be any contest that the matter is of sufficient importance in itself to justify a determination by the Court, nor does there appear to be any issue that the limited and clear factual matrix does anything other than provide a suitable vehicle for the Court.  It was a case stated.  The facts have been agreed, there is no issue about them.

McHUGH J:   If the matter was at large you could not have got a better Bench for a special leave application.

MR KENZIE:   I was just thinking that, your Honour.

McHUGH J:   But, really, does not Singh cover this case?  How could you succeed consistently with Singh?

MR KENZIE:   Your Honour, could I come to that question, which is ‑ ‑ ‑

CALLINAN J:   I am unrepentant but bound, Mr Kenzie.

McHUGH J:   So am I.

MR KENZIE:   I understand, your Honours.  We need to demonstrate that the way in which the matter was dealt with in Singh, and indeed the way in which earlier matters have been resolved, including Al-Kateb which dealt with stateless persons, do not foreclose the arguments in this case, and that is the issue to which we need to go.

Now, your Honours, the question raised in the application, the overall question of course, is whether a person who was born in Australia, who owes no allegiance to any foreign power, thereby differentiating the persons from those in Singh, and who is not a citizen within the meaning of the Australian Citizenship Act, is caught by section 51(xix).  That is, we do respectfully submit, an important question.

The question of whether such a person is a person who would be caught by the language in the joint judgment in Singh – and if I can give your Honours a reference to paragraph [190] of the joint judgment.  The question of whether a person is caught by the language of section 190 being – and I am coming to the end of paragraph [190] where in the joint judgment three members of the Court said:

But what did remain unaltered was that “aliens” included those who owed allegiance to another sovereign power –

leave aside those words –

or who, having no nationality, owed no allegiance to any sovereign power.

McHUGH J:   That is what you want to challenge, is it not?

MR KENZIE:   Your Honour, we ‑ ‑ ‑

McHUGH J:   You have to challenge it, do you not?

MR KENZIE:   We do not need to challenge that, your Honour.

CALLINAN J:   Because of the different Fijian provisions from the Indian provisions, is that right?

MR KENZIE:   Yes, your Honour.  We do not come here to contest the position which appears to have been generally accepted, since at least the time of Al-Kateb, that a person who is stateless has no nationality and who arrives in Australia, having had no prior contact with Australia, like Mr Al‑Kateb, is a person who can be regarded constitutionally as an alien.

McHUGH J:   Yes, what you seek to say is that it makes a big difference if you are born in Australia.

MR KENZIE:   Absolutely.  We say that the question that requires to be addressed before our clients can be grafted on to paragraph [190] is whether they are to be regarded as in this obiter category, that is people who could generally be regarded as aliens.  Your Honour, Singh does not foreclose this issue by any means, in our respectful submission.  There are a number of reasons, your Honour.

Firstly, the first issue is whether positive characteristics are required to be identified in order to constitute a person born in Australia, though not a citizen of Australia, as a constitutional alien.  I will come in a moment to the way in which the court dealt with the question of characterisation.

Your Honour, that is an important question. So is the question of what is or are the characteristics, if any, other than allegiance to a foreign power which would constitute a person born in Australia but not an Australian citizen a constitutional alien. If that characteristic, your Honours, is statelessness or the characteristic identified in paragraph [190] of the joint judgment, then if it is, are all stateless persons in that character constitutional aliens? If so, whether Australian-born persons, not being citizens of Australia within the meaning of the Citizenship Act and not owing allegiance to a foreign power, are to be regarded as persons who fall within this category.

Now, your Honours, what happened in Singh was this.  Your Honours, in dissent, addressed broadly the question of whether a person born in Australia was excluded from the concept of “constitutional alien”, as you were asked to do by the applicant, and the fact that that negative approach was taken was commented on by the majority.  Your Honours did not address, and did not have to address, the question of whether allegiance to a foreign power or some other additional characteristic came into play because your Honours said that birth in Australia was birth in Australia.  But other members of the Court that constituted the majority, other than Justice Kirby, did.

The way in which they went about this can be demonstrated, and if I may commence really at the end.  In the joint judgment, in paragraph [200], three members of the Court discussed how you would go about the exercise.  Having rejected the notion that birth in Australia was the end of the section, the joint judgment said – and I am coming really to halfway down the paragraph:

The central characteristic of that status is, and always has been, owing obligations (“allegiance”) to a sovereign power other than the sovereign power in question (here Australia).  That definition of the status of alienage focuses on what it is that gives a person the status:  owing obligations to another sovereign power.  It does not seek to define the status, as the plaintiff sought to submit, by pointing to what is said to take a person outside its reach –

criticising the exclusionary approach of the applicants.  The characteristic of that approach is that there needs to be, unsurprisingly, an identification of the characteristic or characteristics that constitute a person a constitutional alien.  Unsurprising.

McHUGH J:   Yes, but the majority judgments in Singh really deny any link between birth in Australia and alien or non‑alien status, do they not?

MR KENZIE:   Not so, in our respectful submission, your Honour.  The focus of the joint judgment – and if one goes to paragraph [154], the joint judgment commences with the words:

These reasons seek to demonstrate that a central characteristic of the status of “alien” is, and always has been, owing obligations to a sovereign power other than the sovereign power in question.

Earlier, in paragraph [144], their Honours, in dealing with the stated case, said, and I am reading again towards the end of the paragraph:

She is, therefore, a person within the class referred to in s 51(xix) as “aliens” –

that is, a person who owes a foreign allegiance –

As will be apparent from what has just been said, the plaintiff does not fall into that class simply because her parents do so.

What they then went on to do was to determine what the positive characteristics of alienage were and then, far from rejecting basally what your Honour Justice McHugh had gone to in paragraph [133] of your Honour’s own judgment where your Honour identified what birth in Australia gave rise to in terms of section 117 - section 34 I think of the Constitution, in paragraph [203] the joint judgment picked up, as your Honour did, Potter v Minahan which dealt with that subject, referred to Potter v Minahan.

They asked the question of whether any earlier decisions of the Court required a different conclusion, referred to Potter v Minahan and said that that case, which they did not otherwise criticise, took no account of the question whether the defendant owed allegiance to any foreign power.  Then, at the end of the reasoning, before the conclusion and orders, said in paragraph [205]:

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.

His Honour the Chief Justice said something a little different by way of conclusion in paragraph [32], but consistently his Honour said:

The argument for the plaintiff has not been made out.  She is a citizen of a foreign state, the child of foreign citizens and, although born in Australia, she is an alien -

an alien because she bore those characteristics that required identification.

Now, the question that requires analysis and which, with respect, has never been analysed in this case, is this.  Accepting clearly that the Court has rejected that birth in Australia is not, as was contended in Singh, a guarantee of immunity from classification of alienage, what is the characteristic, or what are the characteristics that constitute a person born in Australia who has no foreign allegiance, an alien?

CALLINAN J:   Mr Kenzie, at page 17 about line 6, the Full Court says:

like a citizen of a foreign country –

this was apparently the Solicitor‑General’s argument –

a stateless person lacks any constitutionally significant relationship with Australia –

and that is said to follow from Singh at [205], citing Nolan.

MR KENZIE:   Yes.

CALLINAN J:   What is “a constitutionally significant relationship with Australia”?

MR KENZIE:   Well, if one takes a stateless person, in the position of Mr Al-Kateb ‑ ‑ ‑

CALLINAN J:   Take a person who is not an alien.  What is the constitutionally significant relationship with Australia that makes a person a non‑alien, if you like?

MR KENZIE:   A person who is in the position of the applicants in this case, who has perhaps been here for nine years and 364 days, is a person who answers the description and has the relationship with Australia that is discussed by Justice McHugh in ‑ ‑ ‑

CALLINAN J:   It is really a question I should ask Ms Perry I think.

MR KENZIE:   My answer is paragraph [133], your Honour, in any event.  Now, the question that requires answering and must be answered, in our respectful submission, is what are the characteristics?  If birth was the beginning and the end of the question, and if birth just was irrelevant, then there would have been no need.

McHUGH J:   But arguably you are starting at the wrong end here, are you not?  Is not the true question of the effect of 189 and 198 of the Evidence Act as to whether it is within the power of the Parliament to apply the term “unlawful non‑citizen” to children in the position of your client?

MR KENZIE:   Your Honour, that is a question, but the starting point ‑ ‑ ‑

McHUGH J:   That is the starting point, I appreciate that.  But you start from the other end and in effect say, “Well, the Parliament can’t reach them”.

MR KENZIE:   I do.  That is a basis for the same argument that was advanced and considered in Singh.  If birth was the end of the question, in Singh why did the Full Court and why did his Honour the Chief Justice go on and consider what were the characteristics that gave rise to alienage?  The answer would have been simple.  You would not have had the debate at all.  What they did – with respect, your Honour, the judgment in a sense recognises the constitutional difficulty, mentioned by your Honour Justice Callinan in your Honour’s judgment, of accepting citizenship as a constitutional line of distinction.

CALLINAN J:   A constitutional head of power and it is not mentioned anywhere.

MR KENZIE:   You cannot do it.

CALLINAN J:   But the argument has been lost, I am afraid.

MR KENZIE:   Your Honour, if it was as simple as that.  Singh was a non‑citizen, there was no doubt about that.

McHUGH J:   And so is your client.

MR KENZIE:   Yes, your Honour, and if it was simple as that then the debate in Singh was arid.  But what the Court did was to go on and consider what a person who was a non‑citizen, admittedly a non‑citizen, whether a person like that was an alien.  What the majority did was to say, “That person is an alien because we can identify characteristics of alienage.”

CALLINAN J:   They rejected it.  The founders rejected citizenship as I remember in the debates.  The courts found it was a head of power, but anyway it has been lost.

MR KENZIE:   Yes, your Honour.  The tension in the cases appears to be this, with respect.  It has been said that the force of Patterson was lost with Shaw, so that there was a reversion to the notion in Nolan that there was a distinction; aliens on one side and citizens on the other, but strict acceptance of that dichotomy gets you to the question of whether citizenship has relevant constitutional significance. Other than section 44, it is not mentioned in the Constitution, as your Honour pointed out again, it does not ‑ ‑ ‑

McHUGH J:   Those at the Convention specifically refused to have a provision concerning citizenship, for the reasons I gave in my judgment.

MR KENZIE:   So it is not as simple as asking the question, “Is this person a citizen?  If you’re not a citizen you’re an alien”, and Singh is exhibit A, your Honour, in that regard.  You need to go further and say, “What is it that turns you into an alien if you were born in Australia?”

CALLINAN J:   Everything you say makes me feel better about my judgment, but I do not think it gets you home, Mr Kenzie.

MR KENZIE:   Well, your Honour, there has to be an explanation as to why the joint judgment and the Chief Justice were seeking the characterisation of alienage, and it did not arise simply by rejecting the argument that your Honour has accepted; there was another step.  That is the step that Singh was engaged in at the end of the day, and it is the question that begs to be answered here.  What is it about our clients that

compels the view that they be grafted onto paragraph [190]?  What characteristics do they have that constitutes them stateless persons?

McHUGH J:   Well, the majority in Singh would say they are just not citizens.

MR KENZIE:   That is not what the majority in Singh said, with respect, your Honour.  The character of the judgment of the majority in Singh was not that.  The character of the judgment in Singh was that it was a search for the central characteristic of alienage.  Your Honour, if we are wrong about that – and that appears to be clear enough from paragraph [200] – then we fall to the ground, as it were.  I have to say that your Honour’s approach seems to have commended itself to Justice Hayne in the case that is relied on by the Commonwealth, where his Honour ‑ ‑ ‑

McHUGH J:   What, Re Manager, Baxter Immigration Detention Centre?

MR KENZIE:   Yes, your Honour.  That was a case of course where the applicants came along and sought to persuade the Court that the person, the young person who was in a similar position to our clients, was to be added to the group of stateless people, was in fact stateless.  His Honour rejected that on the evidence and then said obiter, “Well, I think the flavour of Singh suggests that I shouldn’t grant a rule nisi in any event.”  I accept that.  That, in our respectful submission, flows from something other than the language in Singh because there is nothing in Singh at all that shows that the Court went anywhere near examining the position of a person born in Australia who did not have the positive characteristics that were identified in Singh, your Honour.

We have of course never sought to argue in this matter that paragraph [190] is wrong, that stateless people are, contrary to Al-Kateb and the like, to be excluded from alienage.  We simply submitted that we were not stateless, we are not in that category, not a person who had no nationality.  We are persons who have a relevant connection with Australia, having been born here.  Our defining positive characteristic is that.  We are not to be characterised by other negative characteristics.  That is our defining characteristic.  So grafting us onto that obiter needs explanation – never been done – and requires explanation, your Honours.  That is what makes this case an important one, and one that is not foreclosed by Singh.  If it please your Honours.

McHUGH J:   Thank you, Mr Kenzie.  Yes, Dr Perry.

MS PERRY:   Thank you, your Honour.

CALLINAN J:   Ms Perry, I wanted to ask you about the passage to which I drew Mr Kenzie’s attention on page 17 of the book.

MS PERRY:   Yes.

CALLINAN J:   What is “a constitutionally significant relationship with Australia” that makes a person, if you like, a non‑alien?

MS PERRY:   Your Honour, it is difficult on the state of authorities to give a positive answer to that question, but a negative answer I think is one which can be given.  It is clear, we would say, from the reasons of the majority in Singh’s Case that birth is not in itself, or does not in itself establish, a constitutionally significant relationship with Australia.

CALLINAN J:   Did the majority – just remind me.  Birth plus what would give you a constitutionally significant relationship?  Obviously birth is not irrelevant.

MS PERRY:   No, birth combined with other factors may ‑ ‑ ‑

McHUGH J:   The majority seem to say it is irrelevant, do they not?

MS PERRY:   But the majority say that in itself it has no significance ‑ ‑ ‑

CALLINAN J:   Why am I a citizen of Australia? I was born in Australia. Why am I a citizen of Australia? Because the Citizenship Act says I am. Is that the reason?

MS PERRY:   Your Honour, we would say yes, that is so, because what the head of power has done is to leave it open to the Parliament to determine who is and is not an alien ‑ ‑ ‑

CALLINAN J:   Which head?  The aliens power?

MS PERRY:   Yes, the aliens power.

CALLINAN J:   The aliens power, which is a power to decide, no matter where you are born, that you are or are not a citizen.

McHUGH J:   This is the loose-leaf theory of the Constitution.

CALLINAN J:   Exactly.

McHUGH J:   That Parliament can just make it up as it goes along.

CALLINAN J:   And I must say, for my own part, I found it rather unconvincing to say that because there had been legislative intrusions upon 300 years of common law, that birth conferred citizenship, if you like, that because there had been some legislative intrusions that would not have been the understanding of the founders.

MS PERRY:   Well, I think that ‑ ‑ ‑

CALLINAN J:   Which is contrary of course to the Convention debates anyway, do not worry about that.

MS PERRY:   Be that as it may, nonetheless of course the majority were of a different view and they considered that that with other factors established that there was ‑ ‑ ‑

CALLINAN J:   But it comes down to that, does it?  That the constitutionally significant link which is sufficient requires one, birth plus falling within some legislated designation, is that right, or simply legislated designation without birth?

MS PERRY:   Your Honour, it is accepted of course that there are limits.

CALLINAN J:   What are they?

MS PERRY:   Well, the limit in a sense is that those who could not possibly answer the description of alien are obviously people who Parliament could not legislate into being aliens.  Now, the precise extent of that concept is not one which has been explored in the authorities to date.  It may be a line that is drawn when one is born in Australia of Australian citizens, but it is a battle which is one which remains open to be fought on another day.  For present purposes ‑ ‑ ‑

McHUGH J:   My grandparents were born in Northern Ireland.  Because of that, could the Federal Parliament declare me an alien?

MS PERRY:   Well, fortunately, that is not a question we have to decide because I might run into difficulties myself.  It is, as I think the Full Court ‑ ‑ ‑

CALLINAN J:   Why not?

MS PERRY:   I think it really is a question of how the issue is approached.  The joint judgment in Singh made it very clear that the only way in which to deal with this head of power to consider it was in its application to a particular set of circumstances, and they were not seeking necessarily and exhaustively to define the metes and bounds of the constitutional concept of an alien.

McHUGH J:   That might make this a special leave case then.  It might be a very narrow view in Singh.

MS PERRY:   It would, had not the joint judgment really, we say, dealt the death knell to the proposition that birth itself could establish a sufficient relationship.  Now, if that is in fact, as we say, clearly the result of the reasons of the joint judgment, then the only point that is said to differentiate this case from that in Singh is that here the applicants would be stateless but for, in effect, a qualified form of the rule in Calvin’s Case stepping in and clothing them with a natural born status.

The statelessness, however, is not a concept which in itself establishes a relationship with any State.  In fact, it is a denial of a relationship.  But what I should also make clear is that statelessness here is being used in a particular way.  The Full Court specifically found, and I do not understand that there is really any question about it, that there was a right to apply for Fijian citizenship through registration, and that is a process of course which is not an uncommon one.

So we are not dealing with the kind of situation which, for example, section 23D of the Australian Citizenship Act deals with, with someone who falls completely through the net and has no entitlement to citizenship elsewhere in the world.  We are dealing instead with a situation where parents have made a particular decision, as is clear from the case stated, that they did not intend to apply to take advantage of those provisions of the Fijian Constitution and to apply to have their children registered.  So it is in that factual context that these issues arise.

The most significant point is that if birth is not sufficient, as really is very clear we say from the majority’s reasons in Singh, then clearly statelessness cannot establish some further relationship with Australia which increases the claim to, in effect, acquire a permanent form of allegiance other than the temporary or local form of allegiance which might otherwise be owed.

I can, if your Honours wish, take your Honours through those parts of the judgment where we say it is very clear from Singh’s Case that they do reject the view that birth can constitute a sufficient relationship to found a form of permanent allegiance.

CALLINAN J:   Well, that must be so from the result anyway.

MS PERRY:   Yes, we would say it is very clearly so.  The other point that we would make is that what is postulated here is in effect a new rule.  Although the applicants seek to rely on the rule in Calvin’s Case to say that birth can establish this, or create this form of permanent allegiance, in fact they put a proposition in a qualified form for which Calvin’s Case would not assist, and that of course is that it is a natural born subject who also lacks a citizenship of another State or lacks allegiance to another State.

Now, that is not a category, as I have said, which receives support or a principle which receives any support from Calvin’s Case.  It is not a principle ‑ ‑ ‑

CALLINAN J:   You do not need it, do you?  You do not need it on the application of Calvin’s Case, do you?

MS PERRY:   No.

CALLINAN J:   If you are not the child of a foreign ambassador or a child within two other categories and you are born in a country, that is enough, you do not need anything more.  Is that not right on Calvin’s Case?

MS PERRY:   If that were the rule, yes.  If that were so, but the way that the applicants put it is a denial of that general rule.  They have to deny that general rule because they are seeking to distinguish Singh’s Case.  So instead they have put a different rule.

CALLINAN J:   Calvin’s Case is really rejected by Singh.  That is what I think.

MS PERRY:   It is rejected.  The difficulty that they then run into is finding any historical support at all for this reformulated or new rule, and there is none that they have been able to point to in their submissions and there is no authority, we would say, which assists them to establish the proposition that as at Federation those persons who were born here and who lacked allegiance elsewhere necessarily acquired a permanent allegiance to Australia.

CALLINAN J:   Calvin’s Case would have applied at the time of Federation, unless ‑ ‑ ‑

MS PERRY:   No.

CALLINAN J:   Why not?

MS PERRY:   Well, simply because ‑ ‑ ‑

CALLINAN J:   It was the law unless there was legislative contradiction of it, was it not?

MS PERRY:   Whether or not it was the common law rule, and I think it is fair to say that really the majority’s decision is inconsistent with it being the common law rule ‑ ‑ ‑

CALLINAN J:   No, all the majorities say, as I read it – and you may be able to correct me – that there were legislative interventions to alter or effectively to legislate it out of existence.  But to the extent that that had not occurred, it was good, current common law.  It certainly could not have occurred in respect of Australia at 1901.

McHUGH J:   The leading constitutional lawyer at the time, namely Albert Venn Dicey, would have had no doubt that Calvin’s Case applied to the Australian Constitution.

MS PERRY:   I think that the reasoning of the majority really involves a number of aspects.  The first is to look at whether or not that remained a common law rule as at the time of Federation, and I think it is fair to say that they did not consider it did, but irrespective of that they also looked – they were not simply trying to ascertain what the common law was.  What they were trying to do was to interpret the term “aliens” in its historical context.  Part of that involved looking at the common law position, but part of it also involved looking at developments in legal thinking and looking at these legislative developments.

CALLINAN J:   Is this the gravitational pull argument, is it?

MS PERRY:   Well, it is an argument that says that the constitutional concept is not one which is necessarily tied to the common law ‑ ‑ ‑

McHUGH J:   But it really goes beyond that, does it not?  It really says that aliens has no content other than what Parliament gives to it, and they say – and this was said in Nolan’s Case, “Well, there are extreme cases” but we are not told how you identify the extreme case that is outside it.

MS PERRY:   We have not had a case yet which has fallen within that extreme case yet.

McHUGH J:   This seems pretty extreme.

MS PERRY:   Your Honour, we would say no more extreme than in Singh’s Case.

CALLINAN J:   Say these children did not have sufficient mental capacity to make an application for citizenship in Fiji.  They just never have any state at all, is that right, unless you could be satisfied that that could be done by some next friend or somebody like that, but subject to that?

MS PERRY:   Certainly until they are 21 the application for registration is made by their parents or guardian.  One would assume that if there were evidence that they lacked mental capacity that there would be some provision ‑ ‑ ‑

CALLINAN J:   I am not suggesting they do.  I am positing a possible case, that is all.

MS PERRY:   Yes.

CALLINAN J:   But there may be people who, for various reasons at various times, may not be capable of actually making application for statehood to another State.

McHUGH J:   Would not a jurisprude try to work out the ratio decidendi of Singh, say that what it establishes is that birth is insufficient to make you a non‑alien when you have foreign allegiance.

MS PERRY:   Your Honour, that may be the strict ratio of the decision.  Certainly, the fact that foreign allegiance was owed was a matter that the Court regarded as very significant and it provided in effect a short answer to the case but the Court did not stop at that point.

CALLINAN J:   That was a curious result too because the Court was really giving effect to an Indian statute that was not proved, or its application was not proved.

MS PERRY:   Yes, it did lead to ‑ ‑ ‑

CALLINAN J:   A bit of a curious result in a way.

MS PERRY:   Yes.

McHUGH J:   See you have a negative factor in foreign allegiance which cut down the allegiance which flowed from birth, but why in a case where you only have birth and you have no foreign allegiance cutting down the consequences of birth, why does that not make you a non‑alien?

MS PERRY:   I think really, first – there are two answers I would give to that.  The first is that in paragraph [190] of the joint judgment their Honours made it quite clear that they would include within those class of persons who were aliens as at Federation persons who were stateless, and that was also a point made by his Honour Chief Justice Gleeson at paragraph [1] in Al-Kateb and I think also by your Honour Justice Callinan in the same decision.

McHUGH J:   Well, that is easily acceptable in a case where people are born out of a country, but what about the people who are born here?

MS PERRY:   One must look in a sense for some anchor historically to hang that principle on.

McHUGH J:   That is not a bad start.

MS PERRY:   I think – well, one must read – I did put that inelegantly.

CALLINAN J:   My citizenship is very flimsy.  I am starting to get worried.

MS PERRY:   So the first point, as I have said, is that at least as far as the statelessness is concerned it does not add to the strength of the claim.  Now, the second point is that we would say the reasons in Singh were clear, that section 51(xix) did not have a fixed legal meaning which was ascertained by reference to the common law.  In so holding, and the reasons that they gave for reaching that view, are reasons which would deny any controlling aspect of the old common law rule in Calvin’s Case to the constitutional concept of an alien.

McHUGH J:   But it must come to this, must it not, on the majority judgment?  Parliament can make anybody a non‑citizen, including everybody born in this country.

MS PERRY:   We certainly would not put the proposition that highly, your Honour.

McHUGH J:   But is that not the logical consequence of it?  The Act says if you were born here but you have not been here 10 years, then you are a non‑citizen.  Why can they not say if you have not been here 70 years you are a non-citizen even though you were born here, which would just catch me.

MS PERRY:   Your Honour, I cannot really say much more than I have.  We know there is a limit.  We do not know exactly when it would apply.  One can postulate that a person who is born here, has lived here all their life, has parents who are citizens, may well be a person who could not possibly answer the description of an alien.  That may be the kind of category that would satisfy ‑ ‑ ‑

McHUGH J:   You say this class of case falls within what Lord Simonds said in Chapman v Chapman:  “I may not know when night begins or when it ends but I know when it’s midnight”?

MS PERRY:   Precisely, your Honour.

CALLINAN J: Like the evolutionary theory of Australian nationhood. But you do not need anti-terror laws; you just pass an amendment to the Citizenship Act and you deport anybody.

MS PERRY:   That seems, I suppose, taking us rather away from the facts of this case.  I suppose that all that I would say to add to the points that I have made is that in construing the constitutional concept of an alien in section 51(xxxi), the Court placed particular emphasis on the fact that there were competing and different principles by which aliens were to be identified at the time of Federation.  So it was not simply a question of whether or not there was still some vitality in the old common law rule but it was also very much a question of taking account of the existence of these different and competing views.  The same considerations were not only present in the joint judgment but also were central to the reasons of Chief Justice Gleeson and also Justice Kirby.

McHUGH J:   What would you say about adjourning this application into the Full Court to be considered by the whole Court?

MS PERRY:   Your Honour, our submission is that the matter lacks sufficient prospects of success to warrant that course being taken for the same reasons that we say it lacks sufficient prospects to warrant a grant of special leave.

CALLINAN J:   It is very important in the interests of justice for these applicants because I think the siblings are Australian citizens, are they not?

MS PERRY:   Three of the siblings are, your Honour, yes.

CALLINAN J:   It is an anomalous result that two children who were born here and who have siblings, if they have an arguable case, it seems to me to be in the interests of justice in the individual case it might be desirable that the matter be entertained.

MS PERRY:   Your Honour, we really rely on Singh’s Case.

CALLINAN J:   I understand that.

MS PERRY:   If there are any other matters.

McHUGH J:   Thank you.  Yes, Mr Kenzie.

MR KENZIE:   When your Honour made the same suggestion about removal into the Full Court in Jarratt’s Case where the Bench I think was the same and I was there, your Honour Justice Callinan suggested to the applicant that he should say “Thank you very much”, as I recall it.

CALLINAN J:   I do not know whether it is an intimation we are going to do that.  We are considering it.

MR KENZIE:   No, your Honour, but that would be our response, in any event.  Very briefly, firstly we generally submit that the issues that have been developed during the brief submission have demonstrated that there are a number of significant issues that require address.  Your Honour asked about the ratio of Singh.  Singh demonstrates that birth is not enough.  It is capable of leaving you in a situation where you are an alien if you identify other ‑ ‑ ‑

CALLINAN J:   Other factors, and another factor might well be a negative.

MR KENZIE:   And in Singh’s Case that other factor was allegiance to a foreign power.

McHUGH J:   Foreign allegiance was a factor that negated the consequence of a ‑ ‑ ‑

MR KENZIE:   A trump, if you like.

McHUGH J:   Yes, a trump.

MR KENZIE:   Yes, but you identify that factor and it says your birth, which is not irrelevant – no one says it is irrelevant – is outweighed, or at least you have a characteristic which you can then apply 59 – 129 to and say that is you, that is the character.  The question in this case is when you are absent the character dealt with in Singh, what is the characteristic that allows the same result?  That is the question, your Honours, and it is an important one, in our respectful submission, and it requires address.

I only need to add this.  There has been some discussion about statelessness and its relationship to the constitutional power and what was said about the matter at the time of Federation.  It is clear what was said in section 190 and if the joint judgment was talking about statelessness there as opposed to nationality if there is a difference, the interesting feature is that in Al-Kateb Justice Gummow examined the concept of statelessness and made it quite clear that statelessness as a concept was a post‑Federation

phenomenon and the rubberiness of section 51(xxix) nonetheless could accommodate the later development of the recognition of statelessness.  That much is tolerably clear, your Honours.  Those are the matters.

McHUGH J:   Yes, in this matter we think that the present application should be adjourned to be heard by the Full Court of the High Court.  It raises some important questions and the parties should be ready to argue it as if on an appeal, although of course it will be a matter for the Full Court as to whether or not it simply treats the matter as a special leave application or hears the matter as a Full Court appeal.

Accordingly, the order that we would make is that the application is adjourned into the Full Court of the High Court and the costs of today shall be costs in the application.

The Court will now adjourn until 10.15 am on Tuesday, 4 October in Canberra.

AT 12.37 PM THE MATTER WAS CONCLUDED