Macabenta v Min for Immigration

[1999] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S5 of 1999

B e t w e e n -

MARIA MACABENTA

Applicant

and

MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 1999, AT 9.31 AM

Copyright in the High Court of Australia

MR G.A. FLICK, SC:   If your Honours please, I appear with MS C. RONALDS for the applicant.  (instructed by Parish Patience)

MR J BASTEN, QC:   I appear with MR A.S. BELL for the respondent. (instructed by the Australian Government Solicitor)

MR FLICK:   Your Honours, the facts of this case are very simple.  In 1997, by way of regulation, an entitlement was conferred upon persons who held passports from specified countries and who arrived in Australia before certain dates, to apply for permanent residence.

GUMMOW J:   Now the criterion, as I understand it, was whether the individual, at the time of entry, held a valid passport of a specified country.

MR FLICK:   Yes.  The regulation specified passport and specified date.

GUMMOW J:   And country.

MR FLICK:   And country. The specified countries and dates appear in the application book at page 35. What the applicant claims in this case is that that entitlement which is conferred upon persons who, for example, held a passport from, to pick the first one in the list, “Iraq”, the applicant claims that that conferred a right upon a person. They claim that the applicant did not have that right and they say that that is a violation of section 10 of the Racial Discrimination Act.

GUMMOW J:   If one goes to section 10, how does it operate on the words of section 10?

MR FLICK: Section 10 appears relevantly ‑ ‑ ‑

KIRBY J:   It is on page 4 and the words are “national origin”.

MR FLICK:   Yes.

KIRBY J:   The question is whether, because the national state is referred to, that implies national origin.  But not everybody from a state, and Australia illustrates this most vividly, is a person of that national origin.  So that is the problem.

MR FLICK:   Yes. To answer Justice Gummow’s questions, your Honour, section 10 requires that there be, by reason of a law, a person of a particular national origin enjoys a right which a person of a different national origin does not.

GUMMOW J:   Yes, that was what Justice Kirby was putting to you.

MR FLICK:   Yes.

KIRBY J:   The word a “particular national origin”, given that national origin does not necessarily coincide with nationality, how can one say that this is a breach of section 10?

MR FLICK:   We say that we fall within section 10 in either of two ways. One is to say that the phrase “by reason of” does not mean that the law itself seize upon as the discrimen, to use that expression, national origin. There is no requirement in section 10 that a law of the Commonwealth use as its operative feature in the legislation as a jurisdictional fact, or as the fact upon which it operates, national origin.

HAYNE J:   What then does the expression “by reason of” do in section 10? What is its operational meaning?

MR FLICK:   What its operational meaning is, your Honour, is to invite a factual inquiry such that you look at a law of the Commonwealth, in this case the regulation, you look at whether, by reason of the operation of that law, persons of a particular national origin enjoy a right. If we are right in that construction, the regulation in this case confers a right upon persons holding particular passports. There is no requirement in section 10 that the regulation itself says “national origin”. It can say whatever it wants to say.

HAYNE J:   Therefore does it apply to a case where, under federal legislation, a person aged more than 65 years is entitled to an age pension, on satisfaction of means test? Can a person of one national origin under a particular age, 60, say, “Because a person of a different national origin of age more than 65 is entitled, I am therefore the beneficiary of some rights under section 10”? It would be a very quaint result.

MR FLICK:   If the result of the factual inquiry is that persons of a particular national origin possess a right which is denied to others, the answer is yes.  In the facts of this case, to test it by way of an example, all persons of Chinese nationality all were Chinese national origins.  So in the case of Iraq ‑ ‑ ‑

GUMMOW J:   I am not sure about that.  I do not think that is a very good example, actually.

KIRBY J:   Because there is more of Chinese people - there are plenty in Singapore and other countries, so they do not necessarily coincide. This is the point. But do you say that, even be that so, in applying section 10, to go behind the passport and look to whether, in the particular case, the persons are persons of the national origin?

MR FLICK:   Yes.

KIRBY J:   I suppose in the world 98 per cent of people are of the national origin of their nationality and therefore there is a high degree of coincidence between the two. It is not high in countries like Australia, but in most countries it is. You say, to apply section 10, you have to go behind the passport and look to whether, in the particular case, the person - is this particular applicant of that national origin?

MR FLICK:   No, Filipino.  But your Honour Justice Kirby is right.

KIRBY J:   Born as well as nationality?

MR FLICK:   Yes. The way in which your Honour Justice Kirby has put it, we would embrace, namely, that you go behind what the citizenship or nationality is, you go behind the passport and see the way in which this law operates. If the way in which this law operates is to confer a right discriminately between different classes of people of different national origins, then section 10 operates so as to confer the same rights upon all.

KIRBY J:   It has a pretty unfortunate consequence, if it is correct.  For example, it would not have been possible for Australia to give special beneficial treatment to the Kosovars.  You have to face up to that.  The world tends to have crises from time to time in particular places, particular nations, and these visas are special ones, as we saw a couple of weeks ago, for example, in Sri Lanka.  That is a highly beneficial and humanitarian thing to do.  Your theory of the Act will prevent Australia being in a position to do that.

MR FLICK:   Your Honour raised the same concerns in the application in de Silva. If we are right in this primary construction of section 10, what it means is that by way of regulation, the Australian Government can confer rights upon refugees, to use that as a convenient expression, to apply for permanent residence, but it cannot pick and choose between those refugees that it wants to confer the benefits upon. It cannot say, “By way of regulation we will confer a benefit upon people from Sri Lanka or Kuwai ‑ ‑ ‑

KIRBY J:   Kosovo.

MR FLICK:    - - - but not Irian Jaya.”

KIRBY J:   It may be what the Act requires, but it is a rather unfortunate consequence, whereas the construction given below does not involve that consequence.

MR FLICK:   No, but that would be the consequence of what we are putting to your Honour on that construction of the Act.  I put to your Honours a moment ago that there were two ways in which we construe ‑ ‑ ‑

GUMMOW J:   Yes.  Just before you leave that, do you seek some support from the United States Supreme Court decisions?  They are not all that readily distilled, I think, as to what they are saying.

MR FLICK:   We would not disagree with that assessment.

GUMMOW J:   Right.

MR FLICK:   There are observations of the United States Supreme Court which do equate nationality and national origin.  It is obviously in a statutory context in which it arises, but it is not easy to distil.

GUMMOW J:   All right.  Now the second matter.

MR FLICK:   The first way seizes upon the phrase “by reason of” and looks at the way in which the Act operates and assumes that national origin does have a meaning different from nationality.

KIRBY J:   Your problem with that, though, is that “by reason of” requires you to focus on causation and if the causation is the passport and nationality, that is not necessarily coincident with national origin.  That is the other argument.  It is pretty clear that that is the choice and there is a lot of English authority that supports what has been done below.

MR FLICK:   Yes.  The question there would be, without canvassing it too much is, is the causative inquiry, which your Honour contemplates, a causative inquiry which stops at the words of the law itself and stops at the discrimen used by the law, in this case passport or nationality, or is the causative inquiry one which goes beyond the law and looks to the operation of the law?  We say the latter.  The alternative construction is the former.

The other way of approaching section 10 is to not focus upon the words “by reason of” for this argument, but to focus upon the phrase “national origin”. It is undoubtedly the case that Ealing’s Case and the decisions of the Federal Court draw a very clear distinction between nationality, on the one hand, which is the current passport, and the original origin or the national origin that a person may have.  A person may be originally French but hold present Australian nationality.  Ealing’s Case supports that distinction.

The alternative view, and the one which we contend is correct, is that in the context of section 10 that approach is wrong, and that what the Act is doing is attempting to give content to the word “race”. It is an Act intended to avoid racial discrimination. Each of the words in section 10 are but an attempt to provide indicia as to the way in which racial discrimination may be effected. Therefore the phrase “national origin” is not to be construed as something completely the dichotomy of nationality. It is in that context, that we look to the United Nations convention debates. What we say they demonstrated was the attempt to give content to the word “race”, debate as to the word “nationality”, debate as to the word “national origin”. Undoubtedly in those debates one can find convention delegates, such as that from the United States, urging the very distinction embraced by Ealing and embraced by the Full Court.  You can also find other delegates there saying, “We do not understand what is meant by ‘nationality’, we do not understand what is meant by ‘national origin’, the concepts overlap and there is no necessary overlap between the two”.

KIRBY J:   There are some States which I do not think allow you to surrender your national origin.

MR FLICK:   Precisely.

KIRBY J:   And there are quite a few Australians who are subject to military service obligations if they go back to their country of birth.

GUMMOW J:   Or their parents’ country of birth, in some cases.

MR FLICK:   Your Honours, before the Full Court I used some expressions which, in another context, could have been said to be attempting to excite their Honours, namely the phrases which appeared on page 45 of the application book.  But it does encapsulate the view that we put, namely, when you are construing a Commonwealth statute, is it permissible to have a look at the international conventions and the debates which go behind it when you are construing a Commonwealth Act which is attempting to give force to an international convention, an international convention which obviously reaches beyond Australia, beyond England?

GUMMOW J:   That is not a controversial proposition, is it?

MR FLICK:   No, of course not.

KIRBY J:   It should not excite anybody.

MR FLICK:   There is an observation of Justice McHugh which queries whether you can do it.

KIRBY J:   But this Court has done it many times and recently.

MR FLICK:   But if you are construing it in that context, should you give the word “national origin” an Anglo‑Saxon meaning consistent with Ealing’s Case?

GUMMOW J:   That is the problem.  One understands that because the people gathered together were of various legal traditions.

MR FLICK:   And the two support ‑ ‑ ‑

KIRBY J:   But it is in a statute of this country but presumably one which is designed to give effect to an international convention.

MR FLICK:   The two planks that we have on this second argument, that nationality and national origin are not to be contrasted one with the other, but may overlap, the two planks we have ‑ ‑ ‑

GUMMOW J:   There is no reference here to domicile, for example, so the common law has lost out.

KIRBY J:   Perhaps for good reason given the law of domicile.

GUMMOW J:   That is right.
]
MR FLICK:   As we saw yesterday, domicile changes.  But the two planks we have on this second argument, your Honours, are simply that they are words attempting to give content to race and, secondly, they are words which are to be construed, we would contend, by reference to the international context in which they appear, albeit in a Commonwealth statute.

HAYNE J:   With what consequence?  You say give content to race, to be construed in that context, with what consequence?

MR FLICK:   With the consequence that national origin should not be construed in an Anglo‑Saxon way as the dichotomy of nationality.  National origin ‑ ‑ ‑

HAYNE J:   But should be construed as?  What is the positive rather than the negative?

MR FLICK:   Should be construed as national origin or nationality.  The phrase itself was not intended to be contrasted with another phrase.  It was an all embracing phrase.

KIRBY J:   You say was not intended to be a passport holder in the context of a convention on race, a statute on race, it was intended to deal with the problem of race.  People mask their decisions of a racial kind, discriminatory kind, under different heads, and the convention was designed to get around that problem.

MR FLICK:   Yes.  Two things on that, your Honour.  One is that as the Full Court have expressed here, and as we repeat, there is no attack upon the integrity of the way in which the regulations were framed, but just mere consequence.

KIRBY J:   How many people will be affected by this case?  Do you have any conception?

MR FLICK:   The number of people in the representative action that Ms Macabenta brings is, I think, 690.

KIRBY J:   And would it be inconsistent with this Court granting special leave in this case, to have refused it in that case?

MR FLICK:   No.

KIRBY J:   Was not the same principle involved?

MR FLICK:   No.  The regulations that your Honour has called for in de Silva operated by reference to residence.  The second matter, if I may put it briefly, your Honour, is ethnic origin does invite a factual inquiry that we have just urged upon your Honour, as expressed in Mandla v Lee.  So we say, why have the Anglo‑Saxon approach in Ealing’s Case to national origin and a factual inquiry of ethnic origin in Mandla v Lee.  They are the submissions in support, your Honour.

GUMMOW J:   Thank you.  Mr Basten.

MR BASTEN:   Your Honours, the principle underlying the Racial Discrimination Act is that equal treatment of people requires one to ignore irrelevant differences and that race is, generally speaking, an irrelevant difference.  But that is not always the case.  It was not irrelevant in Nazi Germany, and it is not irrelevant in Milosevic’s Yugoslavia. 

GUMMOW J:   We have diplomatic relations with that country.

MR BASTEN:   We do, your Honour.

GUMMOW J:   I do not think we should use it as a matter of disparagement, in relation to any country with which this country  ‑ ‑ ‑

KIRBY J:   We do not know the full details.

MR BASTEN:   I do not intend to say any more than that we have ‑ ‑ ‑

GUMMOW J:   It is much better to stay in history, I think.

MR BASTEN:   I am happy to accept that, your Honour.  A mention was made earlier of the arrangements which had been made to accept Albanian Kosovars into this country, and it was said that that could not stand, in the light of my friend’s argument.

GUMMOW J:   Yes.

MR BASTEN:   The point that I was seeking to make was  ‑ ‑ ‑

GUMMOW J:   That can be said without disparaging anybody.

MR BASTEN:   I will leave the individuals to one side.  The point that I seek to make is that there is a difference between people who come from a war-torn country to this country and who, under humane considerations, should not be returned to their country, the only country where they have a right of residence, and those who come from New Zealand or Canada, or somewhere with a stable background.  For present purposes, that includes the applicant who comes from the Philippines.  It would be a subversion of the principles underlying the Racial Discrimination Act if we were unable to take account of a difference which is relevant.

KIRBY J:   But may it not be that the basis of special leave is, the issue is an important one for Australian law and international law, that the question affects, potentially, a very large number of people who are in a disadvantageous position and that for 98 per cent of the world, nationality and national origin are exactly the same and that, therefore, it is at least worth our while looking at it, given that there are some observations of Justice Brennan in the Supreme Court of the United States that suggests that a different view may be taken in that country.  They are the matters they are affecting me.

MR BASTEN:   With respect, your Honour, we say in the written submissions at page 67 that the authority in the United States is supportive of the position we take rather than against it.  I do not hear my friend to rely upon any passage in a judgment of the United States which positively supports his argument as to how one should interpret the Racial Discrimination Act or the Civil Rights Act in the American context.

The first question your Honour asked, though, is perhaps the more important one.  It is undoubtedly true to say that if my friend’s arguments are correct, a huge number of people will be affected and it will not be possible for the government to discriminate between those who arrive in this country and find they have come from a country now degenerating into civil war, and those who do not.  The fortuitous circumstance of arrival would, on their interpretation, give a huge number of people a right to apply for a visa. 

KIRBY J:   But if that is the consequence of the law, then that is the consequence of the law, Mr Basten.

MR BASTEN:   I am accepting, your Honour, that if they are right there is a huge public interest.

KIRBY J:   It certainly is inconvenient and, in some cases, would be anti‑humanitarian, but if that is what the law requires then it has to be upheld.

MR BASTEN:   The point I was seeking to make, your Honour, was that that consequence is palpably wrong and that there is not sufficient doubt attending the analysis in the judgments below for this Court to wish to consider a matter which albeit might raise a matter of great public importance if the argument were correct, in circumstances where the argument does not have merit.

KIRBY J:   The argument on the other side for principle is that if you were, say, a person who was a refugee wanting to get into Australia and knocking on the door in a country of great trauma, and you saw that a special visa arrangement had been made for X, Y and Z but not for the country in which you lived, you could say that you believe that this is a matter of racial discrimination, that it has been giving special advantage to countries A, B and C, but not, as it happens to you, and that is because Australians are racially discriminating in favour of European-type people rather than, say, people from other countries closer to home which are very indiscriminatory.

MR BASTEN:   Your Honour that might well raise a circumstance which would excite the interest of this Court.  That is not this case.  There was no shred of evidence put ‑ ‑ ‑

KIRBY J:   But the principle is raised by this case.

MR BASTEN:   No, your Honour, not at all.  There was no shred of evidence put before the Federal Court to suggest that the Philippines was in the same category as Iraq, Sri Lanka, Kuwait.

KIRBY J:   Of course not.  But the question of nationality and national origin, which is raised by the issue of principle, is presented by this case simply because this is a person with a Filipino passport.

MR BASTEN:   With respect, we say, no.  The point that your Honour raises is one where the government discriminates between people who come from similar backgrounds, namely countries subject to civil war, and prefers to grant humanitarian consideration to some, but not others.  That is not this case.  There is no suggestion here that the applicant represents a group of people from countries who are torn by a civil war to whom humanitarian concern has not been granted.  Her case is that, although no humanitarian concern could reasonably be granted to her application, nevertheless she has a right, simply because she is of a different national origin.  With respect, we say that argument does not have merit.  The argument your Honour puts might have some significant basis for support.  That is not this case.

Your Honours, if I might just return to the point I was seeking to make before, there would be innumerable cases in which, if an argument were correct, it would have great consequences and the more bizarre the argument, the greater the consequence for the law of this country.  The mere fact that, if correct, it would be a matter which would have great consequence does not make it a matter which this Court should entertain if satisfied that the judgments below are not attended by significant doubt.  Our primary position is that four members of the Federal Court have considered this and they have unanimously rejected the argument put and we would say correctly, in principle, when one takes into account the nature of the Racial Discrimination Act and its intended purpose.

We argued below, and we would argue again if it were the subject of consideration in the Supreme Court, that the Racial Discrimination Act does not give a right in respect of beneficial discrimination, to take account of legitimate difference.  The special measures provision ‑ ‑ ‑

GUMMOW J:   That would be a notice of contention point, would it?

MR BASTEN:   Yes it would, your Honour.  It might be a cross‑appeal in relation to the special measures argument which arises under section 8 of the Act, which excludes from the operation of sections 9 and 10, a special measure.  In relation to benign discrimination which, we say, falls outside the Act, it would be a notice of contention point.  But both those arguments, we say, would have good prospects of success and would be a sufficient

reason for this Court not to grant special leave to the applicants.  Those are our submissions.

MR FLICK:   Nothing in reply.

GUMMOW J:   We will take a short adjournment.

AT 9.58 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.03:

GUMMOW J:   The Court is of opinion that special leave should be refused.  The majority of the Court is of the view that the decision of the Full Federal Court is not attended by sufficient doubt to warrant such a grant of leave.  All members of the Court consider that this is not an appropriate vehicle to consider the questions of the kind raised in the course of argument this morning.  Accordingly, special leave is refused.

Is there any application for costs?

MR BASTEN:   Costs, your Honour.

MR FLICK:    It is not resisted, your Honour.

GUMMOW J:   Refused with costs.

AT 10.04 AM THE MATTER WAS CONCLUDED