Minister For Immigration And Multicultural And Indigenous Affairs and Sebastian James Taurino

[2003] HCATrans 257

[2003] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Brisbane  No B28 of 2003

In the matter of -

An application for Writs of Certiorari and Prohibition and an Injunction against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

SEBASTIAN JAMES TAURINO

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

IN CANBERRA ON MONDAY, 4 AUGUST 2003, AT 2.12 PM

(Continued from 27/5/03)

Copyright in the High Court of Australia

MR P.L.G. BRERETON, SC:   May it please your Honour, I appear for I think it is properly at this stage called the applicant.  (instructed by Mallesons Stephen Jaques) 

MR H.C. BURMESTER, QC:   May it please your Honour, I appear for the respondent.  (instructed by Australian Government Solicitor) 

HIS HONOUR:   Yes, Mr Brereton. 

MR BRERETON:   Your Honour, there was faxed to the Court this morning – I do not know if your Honour received it – an amended version of the draft case stated.  We received some comments, I think about 23 July, from the Australian Government Solicitor on the previous draft.  I think all of those comments have been addressed in the revised draft.  My learned friend has had a look at that and has a few drafting matters which I can see some potential merit in, which I am sure we can resolve without having to trouble your Honour. 

HIS HONOUR:   Yes.  Well, two things have happened.  The first one is the special leave application in Walsh – are you aware of that? 

MR BRERETON:   Vaguely, your Honour. 

HIS HONOUR:   It was heard in Brisbane by Justice McHugh and myself on 25 June. It was matter No B41 of 2002. It refused special leave from a Full Federal Court decision in the same matter, which is reported in 189 ALR 694. That is the first thing that has happened. The second thing that has happened, of course, is argument has taken place in Shaw, and I suspect that if some of the Minister’s arguments in that case were accepted, that might have an impact on your position in this matter. 

MR BRERETON:   It might well, your Honour. 

HIS HONOUR:   What is the substance of your argument? 

MR BRERETON:   That Mr Taurino was ‑ ‑ ‑

HIS HONOUR:   He was born in 1980 ‑ ‑ ‑

MR BRERETON:   In New Guinea, and came to Australia effectively in 1982. 

HIS HONOUR:   Now, Mrs Walsh was born in PNG in 1970. 

MR BRERETON:   Yes. 

HIS HONOUR:   That is to say before independence. 

MR BRERETON:   Yes.  Well, this was unquestionably after independence. 

HIS HONOUR:   Your client was post‑independence. 

MR BRERETON:   Yes.  So my client is in very much the same plight as Mr Shaw, except that he is a citizen of a Commonwealth country, rather than a citizen of the United Kingdom itself.  That is the principal distinction between the facts of this case and the facts in Shaw.  So this would effectively involve extending Shaw, if the ratio was in some way limited to the United Kingdom, to New Guinea. 

HIS HONOUR:   Yes.  Now, last time I was looking at the matter, something seemed to turn, and it seems to be reflected in the draft case, on the Royal Style and Titles in New Guinea.  I cannot quite see ‑ ‑ ‑

MR BRERETON:   I am not sure that anything really turns on that, your Honour.  I think the answer is that nothing really turns on the New Guinea Act – on the Style and Titles Act. 

HIS HONOUR:   No.  That is why I think maybe the case has to be looked at again.  I know you have just come into it.  There are some conclusionary statements, for example, in a legal form.  Take paragraph 4:  “his status as a British subject”.  That seems to assume that there is a constitutional notion of British subject, rather than a legislative description, from time to time.  You see what I mean? 

MR BRERETON:   Yes, your Honour. 

HIS HONOUR:   So to put it shortly – to put it the other way around, I suppose – why would he not be an alien?  Born in PNG in 1980.  It is a country that has the same head of state and is a member of the British Commonwealth, but what else? 

MR BRERETON:   Because in 1980, he was, according to our law, a subject of the Queen.  When he came to Australia in 1982, he was a subject of the Queen, and if the three Justices of the four who found in favour of Mr Patterson on the alien point be correct, then, on our argument, he would fall in the same class as being pre‑1987. 

HIS HONOUR:   So the crucial thing is he was born before 1987 ‑ ‑ ‑

MR BRERETON:   Yes. 

HIS HONOUR:   ‑ ‑ ‑ and the removal of the notion of status of “British subject” from the Australian legislation, is that the point, or a point?

MR BRERETON:   Yes. 

HIS HONOUR:   All right.  I really think it had better await the outcome in Shaw.  I have no objection if the stated case can – I think you had better look at it again, Mr Brereton. 

MR BRERETON:   I will certainly do that, your Honour. 

HIS HONOUR:   If you and Mr Burmester can look at it again, I have no objection to stating the case, but getting it on is another question. 

MR BRERETON:   I think the applicant is due to be released from custody in September of this year. 

HIS HONOUR:   That is right.  What date?  Just a minute.  I think it might be mentioned here, actually. 

MR BRERETON:   My learned friend says paragraph 14 – yes, “will be eligible for parole on 20 September”. 

HIS HONOUR:   Yes.  Does that mean that he will be paroled on 20 September, or that it is going to happen unless something stops it happening, or it will only happen if something happens? 

MR BRERETON:   I am not quite sure what happens in Queensland in these things, your Honour. 

HIS HONOUR:   Neither am I. 

MR BRERETON:   I can easily find that out.  Our concern obviously would be that we would not want him to be held in immigration detention, so to speak. 

HIS HONOUR:   Yes, I understand that.  What is that date, again? 

MR BRERETON:   20 September, your Honour. 

HIS HONOUR:   It may be that Shaw is ready in the September sittings, or it may be it is not ready until the sittings commencing on the 29^th.  I think if we get nearer the 20^th and nothing has happened, you had better reply to me.  Does that seem the right way to do it, Mr Burmester? 

MR BURMESTER:   Yes, your Honour, I am happy with that. 

HIS HONOUR:   Because, on the authority of Patterson ‑ ‑ ‑

MR BURMESTER:   I read with interest the transcript in Shaw, as your Honour can imagine. 

HIS HONOUR:   Well, there may be at least enough for an order nisi for him at that stage to hold the situation.

MR BURMESTER:   I understand that.  The ideal would be not to have to make these decisions until the Shaw decision was handed down ‑ ‑ ‑

HIS HONOUR:   It would, yes. 

MR BURMESTER:   ‑ ‑ ‑ but I understand the difficulties if, come the end of September, we still do not know. 

HIS HONOUR:   Yes. 

MR BURMESTER:   Even settling a case stated, in a sense – it would be better to know the reasons, of course. 

HIS HONOUR:   It would.

MR BURMESTER:   We are happy to work on the minor changes we still think would be desirable. 

HIS HONOUR:   I think that is right, Mr Brereton.  I am perfectly happy to look at a draft that you and Mr Burmester produce as the product of your interim labours, if that is what you wish, but it may be futile, in a way, if it has to be looked at again, depending how Shaw falls out. 

MR BRERETON:   Yes, that must be right. 

HIS HONOUR:   It only exaggerates costs, that is all. 

MR BRERETON:   Then perhaps what we ought to do is my learned friend and I ought to try to take the stated case as far as we can at this stage.  I accept that there are a couple of drafting matters in there which could be more felicitously handled, and we will attend to that.  What concerns me is that even if Shaw is delivered early in September, there is not going to be a hearing of this matter, if it is not set down now, until the end of the year, presumably. 

HIS HONOUR:   I think that is going to have to be this case, anyway. 

MR BRERETON:   Which means ‑ ‑ ‑

HIS HONOUR:   So it is going to depend on interim relief. 

MR BRERETON:   Yes. 

HIS HONOUR:   That is right. 

MR BRERETON:   So there is going to have to be an interim application sooner or later. 

HIS HONOUR:   There is, I think.  Now, let me just think.  Perhaps I could list it in Sydney for one day in the week of 15 September.  If there has to be an interim hearing, it can be held then. 

MR BRERETON:   That would be most convenient, your Honour. 

HIS HONOUR:   Does that seem satisfactory, Mr Burmester? 

MR BURMESTER:   Of course.  Yes, your Honour. 

HIS HONOUR:   Monday the 15^th?  Have you got your diary? 

MR BURMESTER:   No, your Honour.  I am sure Monday the 15^th will be as convenient as any other day that week will be. 

HIS HONOUR:   9.30? 

MR BURMESTER:   Yes. 

HIS HONOUR:   All right.  Well, the only order I need to make is to certify for counsel, I suppose, and to stand the application over to Monday, 15 September at 9.30 before me in Sydney. 

MR BURMESTER:   May it please your Honour. 

HIS HONOUR:   Is there anything else? 

MR BRERETON:   No, your Honour. 

HIS HONOUR:   Thank you, gentlemen.  I will now adjourn. 

AT 2.24 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 15 SEPTEMBER 2003