Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery

[2022] HCATrans 51

[2022] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S192 of 2021

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Appellant

MINISTER FOR HOME AFFAIRS

Second Appellant

and

SHAYNE PAUL MONTGOMERY

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 6 APRIL 2022, AT 10.02 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honours, I appear with MR C.L. LENEHAN, SC, MR P.M. KNOWLES and MS Z.C. HEGER for the appellants, and for the Commonwealth Attorney‑General intervening.  (instructed by Australian Government Solicitor)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR P.G. WILLIS, SC, MR M.L.L. ALBERT and MS E.R. TADROS for the respondent.  (instructed by Russell Kennedy Lawyers)

Your Honours, could I indicate the respondent would have been before the Court, but I am instructed he is unwell, that is why he is not here.

MS R.J. ORR, QC, Solicitor‑General for the State of Victoria:   If the Court pleases, I appear with MR T.B. GOODWIN and MR R.A. NANTHAKUMAR for the Attorney‑General for the State of Victoria.  (instructed by the Victorian Government Solicitor’s Office)

MR B.W. WALKER, SC:   May it please the Court, I appear for the National Native Title Council, intervening by leave.  (instructed by National Justice Project)

MR S.J. KEIM, SC:   May it please the Court, I appear with my learned junior, MS C.G. WINNETT, for the Australian Human Rights Commission intervening.  (instructed by Australian Human Rights Commission)

MR S.A. GLACKEN, QC:   If the Court pleases, I appear with MS S. ZELEZNIKOW for the Northern Land Council intervening.  (instructed by Northern Land Council)

KIEFEL CJ:   Thank you.  The record should show that Justices Edelman and Steward are sitting remotely.  I have the running order of addresses from the parties.  Tomorrow the Court will sit until 1.00 pm and resume at 2.00 pm so that the Court will be able to rise by 3.45 pm.

MR DONAGHUE:   If the Court pleases.

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, in the decision under appeal, Justice SC Derrington ordered that the respondent be released from immigration detention, notwithstanding the undisputed facts that he is not an Australian citizen and that he does not hold a visa.  Those two undisputed facts mean that in its terms, section 189 of the Migration Act both authorised and required his detention.

Notwithstanding those two undisputed facts, Justice Derrington held that this Court’s decision in Love v Commonwealth had the consequence that section 189 of the Act authorised and required the respondent’s attention only if the officer who detained him reasonably suspected not just that he was an unlawful non‑citizen ‑ that is, a suspicion that the Act requires ‑ but also that he was a person who did not satisfy the tripartite test articulated by Justice Brennan in Mabo and endorsed by the majority in Love.

As it happens, the detaining officer did hold such a suspicion.  She accepted that the respondent satisfied the second and third limbs of the tripartite test, but she suspected that he did not satisfy the first limb, the limb that requires biological descent.  The detaining officer specifically considered whether cultural adoption pursuant to traditional laws and customs would be sufficient to satisfy that limb, but she thought that it was not.

For reasons that I will come to very shortly, Justice Derrington held that the officer’s suspicion, while subjectively held, was not objectively reasonable and, having regard to her view that Love required 189 to be read down in the manner I have just identified, she granted habeas, the practical result of which is that the respondent is presently in the community.

The Commonwealth proposes to structure its oral submissions in support of the appeal in six parts.  First, I will take the Court to the judgment under appeal to identify the dispositive reasoning and the facts on which it was based.  Second, I will develop our submission that Love lacks a ratio and our alternative submission that if leave to reopen is required, it should be granted.  Third, I will address why we submit that Love should be overruled.  Fourth, I will address two discrete hurdles that the respondent contends stand in the way of the determination of the appeal, first the objection to competency and second the argument that leave to appeal is required and should be refused.

Having dealt with those matters, I will then hand to Mr Lenehan who will, fifth, on the assumption that Love is correct, address our main alternative submission, being that it was on the facts reasonable to suspect that the respondent was an alien because he did not satisfy the biological limb of the tripartite test – that is grounds 1.b.i and ground 2 – and sixth and finally, Mr Lenehan will address the notice of contention.

EDELMAN J:   Mr Solicitor, it is a matter entirely for you, but I find it a little curious that you would leave until right towards the very end of your submissions the issue which goes to the very competence of this Court to hear the appeal and about which Justice Isaacs has said few cases of greater importance have ever occupied the attention of this Court, echoing what Lord Halsbury had said earlier that there was probably no more important or serious question ever to come before their Lordship’s house.

MR DONAGHUE:   Your Honour, I appreciate that the point is an important one but, in my submission, for the reasons that I will develop, it does not pose a threshold obstacle to the Court determining the matter, and with the Court’s permission I would prefer to deal with it after I have dealt with the other matters in the structure I have just outlined.

EDELMAN J:   Certainly, but at least on my part I would appreciate if the submission were not dealt with in a cursory way when we are dealing with at least 400 years of authority.

MR DONAGHUE:   Your Honour, I have no intention of being cursory with it.  When I get there, I will give it a full treatment, as long as I can manage my time appropriately, but that is my intention, your Honour.

Can I ask your Honours then to start with the primary judgment which your Honours will find at page 5 of the cause removed book, with the reasons commencing on page 10.  The basic facts are not in dispute and they are summarised at a high level but accurately in paragraphs 1 through 5 that your Honours see on page 10.  So, in paragraph 1, the respondent is a citizen of New Zealand who arrived in Australia as a 15‑year‑old.  He was born in New Zealand, which your Honours see at paragraph 26, but you do not need to go there.

In paragraph 2 you see recorded that his visa was the subject of mandatory cancellation under section 501(3A) of the Act.  That was as a result of convictions for offences of aggravated burglary and commit offence in a dwelling.  The details of the offending are at 27 to 29 of the judgment, but again I do not need to take your Honours to it.

Having served his criminal sentence and being taken into immigration detention, the respondent subsequently sought orders for his release from detention.  You see the basis for that summarised in paragraphs 4 and 5 of the judgment:

Mr Montgomery claims to be an Aboriginal Australian.  He says he is a Mununjali man and does not need to have a biological Aboriginal ancestor to be Aboriginal according to the traditional laws and customs of the Mununjali People . . . The Minister accepts that Mr Montgomery identifies as an Aboriginal Australian –

That is limb 2:

has been accepted and recognised as a Mununjali man by persons enjoying traditional authority amongst that society –

That is limb 3.

GLEESON J:   Mr Donoghue, does Mr Montgomery also claim to be a Maori?

MR DONAGHUE:   I do not know that he claims that.  That is his descent through his father.  His father is undoubtedly a Maori.

GLEESON J:   Thank you.

MR DONAGHUE:   So, having accepted the second and the third limb, as is recorded in paragraph 4, the Minister did not accept that Mr Montgomery was:

an Aboriginal Australian because he is unable to point to any Aboriginal ancestor to whom he is biologically related.

Then, in paragraph 5, Justice Derrington records that he seeks:

habeas corpus on the basis that, as an Aboriginal Australian, his detention is unlawful under s 189 of the Migration Act because he is a ‘non‑citizen non‑alien’. 

That is, he sought habeas on what is, evidently, a constitutional basis – that he fell within the constitutional class of non‑citizen non‑alien, as identified in Love, despite the fact that he did not have biological descent.  

The orders that Justice Derrington made you will see if you just go back one page, to page 9.  The relevant orders that are under appeal in this Court are orders 3, 4 and 5:

A writ of habeas corpus issue.

An order in the nature of habeas corpus be made.

The applicant be released from detention forthwith.

GORDON J:   Does order 4 add anything to order 3?

MR DONAGHUE:   Not as far as we can tell, your Honour.  There was a debate, as your Honour would know, in the Federal Court about ‑ ‑ ‑

GORDON J:   There was a long time ago.  I am asking you what the Commonwealth’s position is.  Does it add anything to order 3?

MR DONAGHUE:   Your Honour, only potentially this – that it seems that one of the bases upon which our friends might seem to distinguish cases upon which this Court has heard appeals in habeas might be because those orders were sought.

GORDON J:   I see.

MR DONAGHUE:   We say you cannot distinguish it in that way because if it made a difference, the order is there.  But, beyond that, no, your Honour.  So, there were also orders made in relation to judicial review grounds.  They were not appealed, and they are not before your Honours.  So, your Honours are concerned only with the habeas issue.  The reasons that her Honour made those orders, relevantly commence on page 20 of the book.

GORDON J:   Sorry, I just have one more question about the basis of the claim.  The respondent contends that on, I think, 9 October – sorry, I withdraw that – 19 October 2021, there was a further amended application filed in which Mr Montgomery did not contend that he was, in fact, an Aboriginal Australian but sought to put the claim on a different basis.  Do you wish to deal with that now or later?

MR DONAGHUE:   Your Honour, the procedural history of this matter is unhappy.  But, for the reasons that I am about to turn to ‑ ‑ ‑

GORDON J:   That is all right.

MR DONAGHUE:   ‑ ‑ ‑ what happened was that her Honour made a ruling based on a constitutional argument and that was the ground for the orders that we are seeking to challenge.  So, I was not going to develop anything arising from that amended application because, as a matter of substance, whatever the right or wrongs of it might be, what happened was habeas was issued on constitutional grounds and we are challenging that order.

EDELMAN J:   But we need to know the facts, Mr Solicitor, upon which we are dealing, do we not?

MR DONAGHUE:   That is what I am taking your Honours to right now.  I am going to take your Honours to why the order was made and what facts were relied upon in getting it.  That is exactly what I am endeavouring to do.

So, if your Honours go to page 20, paragraph 46, you will see there is a heading on the previous page:

HABEAS CORPUS

Then, after a quotation demonstrating the undoubted importance of the Court’s jurisdiction in relation to the loss of liberty, her Honour says, at paragraph 46:

The approach and principles relevant to an application for an order in the nature of habeas corpus in the context of immigration detention of an Aboriginal Australian under the Migration Act have been explained by the Full Court in McHugh –

And her Honour then goes on to summarise them, and I will come to them in a moment.

I should, though, say something about McHugh before I do that.  McHugh is now reported in 283 FCR 602. I do not need to take your Honours to it now, but it is recorded by the Chief Justice of the Federal Court at paragraphs 50 to 52 that there was no full argument on the constitutional issues in that case, and for that reason his Honour preferred not to finally decide them. So, the Court expressed some views about how the law in this area works, but they were evidently obiter views in part because there was no full argument on the point.

His Honour also analysed Ruddock v Taylor at paragraph 49, in a way that we respectfully contend is not correct for reasons that I developed at length a few weeks ago in the argument in this Court in Thoms.  More generally in Thoms, the Commonwealth put the submissions as to the way that it contends Love interacts with section 189 of the Migration Act on the footing that Love is correct and that statement of argument is, in material respects, different from what the Full Court held to be the position in McHugh.

The Commonwealth did not – and I say this because we apprehend our friends might be placing some reliance on McHugh – did not seek special leave to appeal in McHugh for two reasons.  One, for the reason I have just given, the constitutional reasoning is obiter – expressly obiter.  And two, without taking your Honours to it, that at paragraphs 61, 76, and 332 to 334, it is plain that the Commonwealth lost in part because it had failed to lead any evidence that in the 18 months leading up to the time of the order for habeas in that matter, an officer held the reasonable suspicion required by the Act in its terms.  That is, there was no evidence during the 18‑month period leading up to release that an officer reasonably suspected that Mr McHugh was an unlawful no‑citizen. 

So, if one forgets all about the constitutional issues, the Commonwealth was going to lose appeal in that case; it was not a good vehicle to raise the constitutional questions because your Honours could quite properly have said to me on a special leave application, how do we ever get to the constitutional questions in circumstances where you had no evidence of the statutory suspicion?

So, all of that really is just to explain that while we do not criticise her Honour for applying the reasoning in McHugh, that the errors in McHugh are not essential for the argument I am going to develop, we do submit that there are relevant respects in the analysis that I am about to take your Honours to which should not be taken to be uncontroversial, and indeed that we have controverted in the arguments put in Thoms.

So, her Honour’s summary of the relevant legal principles in paragraph 46, the critical ones are paragraph 3, or point 3:

The question for consideration in the application is whether the detention is and was at all times justified by s 189 –

It is certainly correct to say the issue is whether the detention is justified by 189; it is probably not correct to say that it was at all times because habeas is a remedy concerned with the justification at the point in time when the order is made, but nothing turns on that issue.  Then her Honour says in paragraphs 4 and 5:

Sections 13 and 14 of the Migration Act must [however] be read down and construed so as not to exceed legislative power:  15A –

and some citations to Love:

Sections 13(1) and 14(1) must be taken to be construed as directed only to non‑citizens who are not Aboriginal Australians ‑

So, her Honour has taken Love as requiring the reading down of the Migration Act with the reading down of section 13 and 14 of the Migration Act so as not to extend to people who satisfy the tripartite test.  That, your Honours will recall, we submit, is wrong.  The proper analysis is a partial disapplication analysis, and I do not understand our friends in this appeal to be taking issue with that so I will not say anything more about that unless that understanding turns out to be wrong, in which case I can come back to it in reply.  Then, most critically, at paragraph 6:

In order to continue to detain a person, an officer must continue to have a reasonable suspicion that the person is an unlawful non‑citizen –

A statutory suspicion:

and is not an Aboriginal Australian –

relying on McHugh.  So, the reading down is said to add an additional suspicion that needs to be held – a suspicion that the person is not an Aboriginal Australian.  That, we also respectfully submit, is wrong.  But, as a matter of substance, it does approximate the question that an officer would properly ask themselves in an attempt to mould their behaviour so as not to exceed the limits of Commonwealth power.

So, the Act does not require that question to be asked but an officer can properly ask themselves that question – and here, as I will come to in a moment – the officer did ask themselves that question and answered it:  I do suspect that the person is not an Aboriginal Australian because of the absence of biological descent.  It is because the officer went through that process that I do not need to directly challenge McHugh in order to succeed.  Your Honours see there – particularly in paragraphs 4, 5 and 6 – that the Migration Act is read down by reference to Love.  At paragraph 47, her Honour then says the resolution of the application for habeas:

depends solely on the question of whether a relevant officer ‘knows or reasonably suspects’ that Mr Montgomery ‘is an unlawful non‑citizen’.

That is true but her Honour is clearly using the words “unlawful non‑citizen” there as read down in the way that she has just described, in paragraphs 46, sub 4 through 6.  If there would be any doubt about that, if your Honours jump forward to the next paragraph, 48, and read from the second line, her Honour says:

As observed above, ss 13 and 14 must be read down and construed so as not to exceed legislative power: s 15A of the Acts Interpretation Act1901 (Cth). This is because, in Love ‑

et cetera.  So, when her Honour says the question is, is Mr Montgomery an unlawful non‑citizen, she is saying that in the sense that that inquiry includes an inquiry as to whether or not a person satisfies the tripartite test.

In 48, your Honours will see in the first two sentences that it was uncontroversial that, in its terms, section 189 applied.  There was no dispute that Mr Montgomery is not a citizen, and also no dispute that he did not hold a visa.  In its terms, literally, 189 was recognised as requiring detention and the only issue – as one sees when reading the balance of 48, 49 and 50 – was whether the added words that the officer also had to suspect that the person did not satisfy the tripartite test, were met or not.  That was what was being litigated in the court below.

In the balance of 48, there is an explanation of Love and the limits on the reach of the aliens power.  The ratio of Love is said to be the tripartite test.  The tripartite test is quoted in paragraph 49 and at 50, her Honour says:

Thus, for a person to establish that he or she is an Aboriginal Australian pursuant to this test, the person must satisfy each of three elements ‑

that her Honour then sets out.  So, the whole framework for debate about whether or not detention was or was not authorised was a framework that involved the idea that the officer had to have a reasonable suspicion about satisfaction of each of the three limbs in Love.

GORDON J:   I am sorry, Mr Solicitor, I have misunderstood this reasoning then, because I had thought that by her Honour setting out at paragraph 46, subparagraphs 7 and 8, this was a question about burden and onus, and that if you read 7 and 8 and then read what followed, giving rise to 49, 50 and then 51, there was a question about whether or not the threshold had been met.  Am I wrong about that?

MR DONAGHUE:   Your Honour, when I get to the conclusion of the reasoning, in our submission, her Honour will find that the detaining officer accepted satisfaction of the limbs 2 and 3, had a suspicion – subjective suspicion – that the first limb was not met but found that that was unreasonable.  It was her finding that the suspicion was objectively unreasonable that caused her to conclude that the Commonwealth had not discharged its burden of proving that detention was unlawful.

GORDON J:   So, I am right about the way I read paragraph 46, subparagraphs 7 and 8 with what follows.

MR DONAGHUE:   Certainly, the Commonwealth had a burden to be discharged, but the reason it did not discharge the burden was because it was ultimately found that the evidence that went to that point did not satisfy the constitutional requirement as her Honour apprehended it.

GORDON J:   Is that what 51 says, that an actual question of fact was not before the court?

MR DONAGHUE:   Well, in 51 the ultimate question of fact – does Mr Montgomery meet the tripartite test – was not before the court.  That had been removed into this Court.  There was a claim for declaratory relief to that precise effect.  It had been removed into this Court and our friends then discontinued it.  So, all that was before the Court was the question of the objective reasonableness of the suspicion that Mr Montgomery did not satisfy the tripartite test.  That is all your Honours have before you.  In our submission, her Honour erred in finding that it was not open to the officer reasonably to suspect that Mr Montgomery was an alien because her Honour erred in finding that it was not open to suspect that he failed to meet the first limb.

EDELMAN J:   Just so I understand, Mr Solicitor, your submission is that this Court needs to consider, either in the context of the notice of contention or in the context of the submissions generally, the question of whether the suspicion was reasonable, but that we need to do so without any findings or facts that concern the underlying question of whether Mr Montgomery was an Aboriginal Australian.

MR DONAGHUE:   In my submission, what the appeal puts in issue is the correctness of Justice Derrington’s finding, which was the finding that led to release, that 189 did not authorise detention because it was not objectively open to suspect that Mr Montgomery was an alien, and your Honours need to decide that on the basis of the material that was before the court when her Honour made that order.  So, your Honours look at what Justice Derrington had before her and say:  was her finding in error in saying that that suspicion was objectively unreasonable? 

If our friends had wanted your Honours to decide the question of status – does he actually meet the tripartite test – they had a proceeding in this Court with the special case substantially agreed which put that very issue before your Honours, and we told them before they discontinued it that we were appealing Justice Derrington’s ruling because we apprehended that they might want your Honours to decide that.  So, if that question had been a question that our friends really wanted decided, they should not have discontinued the proceeding and your Honours could have decided the whole lot. 

But having made that forensic choice, your Honours are left with the question, well, did Justice Derrington err on the material that she considered in holding that the suspicion was objectively unreasonable, and we submit, notwithstanding the submissions that our friends and some of the intervenors made, there is no way of avoiding that issue because her Honour actually made an operative order that overrode the apparent terms of the Migration Act to release Mr Montgomery and our submission on appeal is that there was no proper basis for her to do that.  So, we are right, or we are wrong about that, but the appeal squarely raises that issue, to be determined on the facts that her Honour had before her.

GORDON J:   Not the issue about the actual fact; the issue about whether or not Justice Derrington erred in concluding that the suspicion was not reasonably ‑ ‑ ‑

MR DONAGHUE:   That issue, exactly, your Honour.

GORDON J:   So, we are talking about what material was before her Honour and we are talking about whether or not her Honour was right to conclude that it was not objectively reasonably open?

MR DONAGHUE:   Yes.  Your Honour – and obviously a reasonable suspicion is a different standard to objective correctness.

GORDON J:   Which is the reason why I took you back to subparagraphs 7 and 8 of 46.

MR DONAGHUE:   So, your Honours could find for us on this appeal on the basis that you would conclude that Justice Derrington erred in saying that it was not reasonable for this officer on the material before her to suspect that Mr Montgomery was an alien.  You could find for us and Mr Montgomery would presumably be redetained, and if he then brings a declaratory proceeding saying, “Actually I am not an alien”, it would be logically consistent with that judgment for him to ultimately win if your Honours were to find on a final basis on all of the evidence about traditional adoption and all of the other material that would have been before you if the other part of the case had not been discontinued.  That is theoretically possible, because all we are putting in issue – all that we can put in issue on this appeal is the suspicion question, as your Honour Justice Gordon puts to me.

Now, Justice Derrington had, relevantly to the exchange I have just had with your Honours, material before her that included a detailed affidavit from the respondent himself, and her Honour summarises that in paragraph 53 of her reasons.  Can I highlight a few aspects of that summary?  So, all of these references I am about to give, the paragraph numbers are within paragraph 53.  So, at (c), Mr Montgomery said:

‘I identify as Aboriginal and have been accepted as such by the Mununjali clan –

So, self‑identification and acceptance.  In (d) he deals with his biological ancestry:

‘I was born in Auckland –

to his mother, and father are identified – his father, further to your Honour Justice Gleeson’s question, is identified as being from a:

tribe of the Maori people of New Zealand and my mother is Australian.  My mother’s lineage goes back a long way in Australia as she has told me that her family arrived in Australia in around the 1830s on some of the first convict boats.  My mother does not know if she has an Aboriginal ancestor.

‘I did not grow up with my Maori side of the family and do not know much about my Maori heritage.  All I know is that my father and grandmother were Maori.  My grandmother told me that their Ngapuhi ancestors married into an Australian Aboriginal clan and that I have Aboriginal ancestors within my family.  I do not know if I am directly descended –

So, there was a suggestion that there was a connection between the Ngapuhi ancestors and Aboriginal Australians at some point, but no claim to be directly connected to them.

We will come back to some evidence about biological descent in a moment, but if your Honours, staying with the order, go to paragraph (l), after the applicant came to Australia, in effect he offended and was placed in a youth detention centre called Dundalli House, where he starts to associate with other Aboriginal boys.  That resulted in a process of initiation which was not the initiation into the Mununjali, on different lands, by different people, but the elders who were involved in that have this recorded at paragraph (l):

took me to Centrelink because I was on youth allowance and they changed my allowance so that I received Abstudy –

So, there was some evidence as to how the appellant first came to receive Commonwealth benefits, and it was not evidence that suggested that there was some secret further store of knowledge about biological descent, it was evidence that he was taken to ABSTUDY by some Aboriginal elders and they helped him change over to be recognised.  He was then initiated, and this is into the relevant Mununjali lands, you see, at paragraph (p), in:

Beaudesert and spent about 3 months there living on country . . . not long after my 18th birthday.

If you then go down to paragraph (v), Mr Montgomery returns to interviews about the question of his biological descent.  He says:

‘I can’t remember the exact dates, but I was interviewed three times in the middle of February in 2020 by detention officers.  They wanted to know about my biological parents –

And he explains first that in subparagraph (a) his mother:

might be Aboriginal but she does not know whether she has a biologically Aboriginal ancestor.

I told them that my biological father might have Aboriginal ancestors.

And then (c):

I told the officers at the interviews that I was unsure whether I have ancestors who are biologically Aboriginal.  They kept asking me whether I knew for sure . . . I tried to gather more information for them but I couldn’t find any further information.

Now, your Honours have the departmental records of those interviews in the appellant’s book of further materials, and could I ask your Honours to go briefly to that, and when you have it, to turn to page 18.  Page 18 is an exhibit to the affidavit of Mrs McBroom, who was the detaining officer, so this was before the court below, the document I am taking your Honours to.  At page 18 you will see some case notes that have been extracted from one of the departmental record‑keeping systems.  I will not take your Honours through the first half of that page, but you will see there are a number of entries on 11 February 2020.

That is the day Love was handed down.  So, judgment was given in Love on the 11th, and the Department was immediately making inquiries about biological descent, and it got some answers that your Honours can see there.  It came back to the topic in more detail with an interview a couple of days later on the 14th.  In the first part you will see that the applicant was making some inquiries of his family, his mother in particular.  In the second half, on the 14th, an officer spoke with Mr Montgomery and he advised that:

he is not aware of being related to anyone on his mother’s side who is/was an Australian Aboriginal or might be a biological descendant of an Australian Aboriginal.

And on the paternal side:

Mr Montgomery confirmed his father is a New Zealand citizen by birth.  He has no evidence of any biological links to an Australian Aboriginal and is not aware of any relative/individual in his father’s family who is either an Australian Aboriginal or a biological descendent of an Australian Aboriginal.

Returning to the judgment, just after the paragraph I was reading, paragraph (v), you then see in paragraph (w) and (x) quotes from the last two paragraphs of Mr Montgomery’s affidavits – these are quotes from paragraphs 110 and 111 of his affidavit.  In both of them, what he says is:

‘You don’t [need] to be biologically born Aboriginal to call yourself Aboriginal –

I will not read all of that to your Honours.  But, in my submission, what that evidence – on a reasonable reading of it – shows was that there was no claim, on the most recent information provided to the Department on 14 February, to be biologically descended from any indigenous person.  His argument was, as recorded at the conclusion of his affidavit, it did not matter.  So, Justice Derrington, when she summarised the claim in that way at paragraph 4, was summarising it completely accurately.  The argument was:  I can be a non‑alien even if I do not have biological descent.

So that was his evidence – Mr Montgomery’s evidence.  Then, at paragraph 56, her Honour turns to the Minister’s evidence, the affidavit of Mrs Shelley McBroom, who was the detaining officer.

GORDON J:   You take no issue with the conclusion at 55?

MR DONAGHUE:   No, I do not.  This affidavit was led in order to discharge that burden.  Your Honours will see at the end of 56, her Honour records that:

Mrs McBroom was an impressive witness who answered the questions put to her directly and with apparent care.

If your Honours then go to paragraph 58, you will see that – if I can take this in two halves – if we look at the first half, first:

Mrs McBroom’s evidence that she was satisfied that Mr Montgomery is not and never has been an Australian citizen was uncontroversial, as was her evidence that Mr Montgomery does not currently hold a visa –

That evidence is then summarised in 59(1) below.  But the point is that, even though our friends wanted to have a trial before Justice Derrington on the question of whether the relevant reasonable suspicion was held, they did not put in issue the suspicion that the statute requires.  It was uncontroversial that he was a non‑citizen without a visa.  What was controversial – as your Honours see in the second half of 58 – the challenge concerned Mrs McBroom’s evidence concerning:

her state of satisfaction as to whether Mr Montgomery is an unlawful non‑citizen for the purposes of s 189 . . . because she suspected that he is an alien, by virtue of not being an Aboriginal Australian.

So, what this evidential fight was about was about the read‑down version of section 189 – read‑down because of Love.  There, the evidence is summarised in the next paragraph, at 59(2).  The way Justice Derrington summarises it is by saying the detaining officer had read Love, had:

attended Departmental training on the decision . . . was satisfied that Mr Montgomery meets the second and third limbs . . . but suspected that he did not satisfy the first limb.  Mrs McBroom deposed to her current understanding of the first limb of the tripartite test to be that a person ‘must show biological descent and therefore adoption is not sufficient to satisfy the first limb.

Your Honours have, again in the appellant’s book of further material, the actual affidavit evidence that Justice Derrington was referring to there.  It is on page 8 of the book of further materials, in paragraph 13.  In 13.1, Mrs McBroom deposed that:

I suspect that Mr Montgomery does not meet the first limb of the tripartite test.  That is because I am not satisfied that Mr Montgomery has any Aboriginal Australian amongst his ancestors.  That is, I am not satisfied that Mr Montgomery has any biological descent from any Aboriginal Australian. 

She notes that he had:

on a few occasions claimed to have such biological descent –

But then says in light of the more detailed subsequent claims, she discounted them.  Then she says in the last two lines:

My current understanding of the first limb of the tripartite test is that you must show biological descent and therefore adoption is not sufficient to satisfy the first limb.

Then, in paragraph 15, Mrs McBroom explains that in forming that view, she had regard to various things, including Mr Montgomery’s affidavit, his mother’s affidavit, 15.3 ‑ the departmental records – which are the records I have already shown your Honours summarising the interviews – and, 15.4, legal advice over which the Department did not waive privilege.

So, the question was whether or not that suspicion was shown to be objectively unreasonable.  Justice Derrington held that it was, and that is the conclusion that we challenge.  Why did Justice Derrington hold that it was unreasonable?  Well, for a combination of reasons that, with respect to her Honour, are in some respects a little unclear, but it is relevantly in paragraph 61 through to about 64.

At 61, there is a reference to an exchange of correspondence, just post‑Love – very shortly after the decision in Love – so in April 2020, the AGS wrote a letter to Mr Montgomery’s representatives.  That letter did not suggest that there was any doubt as to the meaning of the first limb of the tripartite test.  But, in response to that letter, Mr Montgomery’s representatives – and you see this at the end of the paragraph – asserted that there was:

uncertainty of the boundaries of the ratio in Love ‑

and says that this was:

squarely put to the Minister ‑

So, I will park that point for a moment and come back to it.  But it was not an AGS or a Commonwealth view as to uncertainty that this evidence was disclosed, as it was a claimed uncertainty from his own representatives.  Then in 62, there is a reference to the:

relative uncertainty of the precise boundaries ‑

but it said:

Mrs McBroom is not to be criticised for adhering to her view that she was, in effect, bound to take the ratio of Love at face value ‑

But, her Honour continues:

at face value which, to her mind, meant that Mr Montgomery needed to ‘meet the lineage of Aboriginal bloodlines’.  Nevertheless, the justification for Mr Montgomery’s detention depends on proof of his detainer’s state of mind judged reasonably.

And then – and this is the first sort of operative conclusion, it seems:

[She] must be taken to have had access to the correspondence from AGS . . . and so to have understood at least that there was a view ‑ ‑ ‑

the respondent’s view:

that Love might not be confined to her narrow understanding of the first limb of the tripartite test.

So, that seems to be one of the bases upon which it was suggested that it was unreasonable.  Even though Mrs McBroom is not to be criticised for taking Love at face value, her suspicion is said to be unreasonable because of a claim made by Mr Montgomery’s lawyers as to uncertainty.  In our submission, quite evidently, the existence of some uncertainty does not preclude a suspicion from being reasonable.  It is quite possible to have a reasonable suspicion even if there were to be some uncertainty, as had been put by the respondent’s representative.

Then, in paragraph 63, her Honour refers to the evidence about being aware of some claims of descent:

but was unaware of any additional evidence ‑

and records correctly that Mrs McBroom:

did not accept those claims to be accurate in light of subsequent and more detailed accounts of his ancestry.

And then says:

Whilst it seems unlikely that further evidence as to Mr Montgomery’s ancestry may be uncovered, the time for him to be put to proof on that question has not yet arrived.

Now, if by that her Honour means the time for there to be final determination of status had not yet arrived, then that is true.  But if her Honour means that the time to judge the issue for the purpose of habeas and the reasonableness of a suspicion had not yet arrived, then it is obviously not true.

GORDON J:   That is a reference though to the claim pending in this Court at the time, is it not?

MR DONAGHUE:   Likely yes, likely it is.  But the relevant question for her Honour’s purposes was not the final determination of the issue, it was whether she could properly hold that Mrs McBroom’s suspicion was unreasonable in circumstances where Mrs McBroom did have the evidence I have shown your Honours about biological descent and her Honour accepted that it was unlikely that any further evidence would be obtained.

EDELMAN J:   Mr Solicitor, do you derive any support from the line of authorities culminating in cases like Kable (No 2) which conclude that a detainer - or that the lawfulness of detention where it depends upon acts by a detainer is to be judged by reference to the test at the time, not, for example, how one of the limbs of the test might be developed in the future?

MR DONAGHUE:   Certainly, your Honour, I would rely on that insofar as it – and Ruddock v Taylor is another one in that line, where it cannot be shown that someone acted unreasonably by acting on the law as it was understood to be at the time.  I do rely upon it for that purpose.  But in my submission – so, if your Honours were, for example, in this case, to say, well, we are going to reopen Love and say there does not need to be a biological descent limb, I would certainly say to your Honour in that circumstance that would not prove an unreasonable suspicion.

EDELMAN J:   It goes further, though, does it not?  When one is assessing the lawfulness, not just the reasonableness but the lawfulness of a particular act, as in a case like Kable (No 2), one asks whether the actor acted according to the state of the law at the time.

MR DONAGHUE:   Your Honour, I am hesitating slightly because as I recall Kable (No 2) there is a complexity there in that the order in question was an order of a superior court that had not been set aside so that even though the law had changed, the justification for the act that had occurred was a judicial order that was actually valid at the time that the behaviour occurred.  So, I am cautious about translating that into an administrative context, but I do not think I am disagreeing with your Honour that one certainly does – where there question is one of a reasonable suspicion, it is judged according to what is reasonably capable of being known at the relevant time.  I certainly do put that.

In my submission, the possibility that inquiries could have been made, which her Honour accepted were unlikely to produce anything further, is not a reasonable foundation for a conclusion that – sorry, is not a proper basis for a conclusion that Mrs McBroom’s suspicion was somehow unreasonable.  Finally, your Honours, in paragraph 64 it is recorded that there might be room for some debate as to what is referred to as the:

relevant normative standard or standards –

by which:

biological descent is to be assessed . . . there is likely to be no universal and inevitable answer –

to that question.  But again, it seems, in our respectful submission, to be that her Honour has taken the fact that there might be an argument advanced in this Court as to these questions as a basis for concluding that a suspicion based upon taking Love at face value, as her Honour put it, was unreasonable, and again we respectfully contend that none of those matters really went to the question of the reasonableness of the state of mind that Mrs McBroom held.  You then get to the conclusion at paragraph 68, where, in summarising the basis for the order for habeas, it is said:

Mr Montgomery claimed to be an Aboriginal man, a Mununjali.  It was accepted by the Minister that he had been adopted by the Mununjali People.  Mr Montgomery made representations that the decision in Love did not foreclose a finding that he was a biological descendant of Aboriginal people by traditional law and custom.

So that is an adaptation or modification of the first limb:

He had been provided with access to social security benefits . . . In these circumstances, the suspicion held by the relevant officer . . . is not reasonable.

That is, it held, subjectively, but not reasonable, and thus, to come back to your Honour Justice Gordon’s point at the end of paragraph 68:

The Minister has failed to discharge the onus of proof that an officer held the reasonable suspicion that Mr Montgomery is an alien by not being an Aboriginal Australian.

So, in our submission, it is just impossible to contend, particularly when one – all of those passages, but if you just look at the end of paragraph 68, the conclusion is expressed in terms that directly depend upon the effect that Love is said to have had in confining the operation - the textual, the ordinary textual operation of 189 in circumstances where her Honour records that it was not even suggested that 189 did not apply in accordance with its literal terms.

So that the contention that seems to be put against us that your Honours somehow do not need to reach the issues that we raise about Love cannot be right.  Love was determinative of the order that was made that we challenge, so that if Love was incorrectly decided or if the biological descent limb of Love was incorrectly understood and that error caused the finding that the suspicion was objectively unreasonable, then the appeal should be allowed. 

Your Honours, that is what I wanted to say by way of submissions about the judgment itself.  Can I move then to the second part of our argument ‑ ‑ ‑ 

EDELMAN J:   Before you do, Mr Solicitor, can I just ask you about one of the premises of that last submission, which is that a decision that is made about whether lawfully to detain someone, putting aside the questions of reasonableness, must be a decision that is made not according to the law at the time but according to what some later court might declare the law to be.

MR DONAGHUE:   Your Honour, I was hoping my earlier answer to grapple with that, but I understand what your Honour is putting to me, and can I answer it in this way.  If Love was incorrectly decided then there was no basis to partially disapply 189 of the Migration Act.  As a matter of constitutional law, 189 would have been supported by 51(xix) always, at all relevant times because we are not here dealing with an order of a superior court in relation to the detaining officer’s decision.  There is nothing that is valid until set aside.  That Act either required detention or it did not. 

If Love were to be overruled then, on the unchallenged evidence before the detaining officer and in the proceeding before Justice Derrington, there would have been no possible basis to say anything other than that Mr Montgomery had to be detained because 189 just mandated that answer.  So, while it is true that an officer’s suspicion cannot retrospectively become unreasonable because of a change in the law, a change in the law that shows that there was actually no limit of a kind that was thought to exist might mean that whether or not – just means, in my submission, that conduct cannot be found to be unlawful if a statute required it. 

That is a complicated way of saying, your Honour, that, in my submission, there being no discretionary process here, if your Honours conclude that Love was wrong or that – if your Honours conclude that Love was wrong, then habeas cannot possibly have been properly issued because it cannot have been lawful to release someone from detention that an Act requires. 

EDELMAN J:   If that is right, Mr Solicitor, then the effect of that is that a later decision of a court can retrospectively deprive someone of their liberty to which, on the previous state of the law, they would otherwise have been entitled and, if that is correct, then why would not one – and you may wish to deal with this later – treat the questions of competency of an appeal from habeas in exactly the same way as questions of competency of an appeal from an acquittal where one would lose one’s liberty by reference to a retrospective change in the law?

MR DONAGHUE:   Well, your Honour, in my respectful submission, in the event that Love were to be overruled, one would be in a situation where 189 of the Act applies in accordance with its terms, and there is no retrospective change in the law.  There is a recognition that to the extent that it might have been thought that provision could not lawfully apply in accordance to its terms, that was wrong.  So, what would be being removed is a limit on an Act.  It would be recognised that a statute is not limited in the way that it was previously thought to have been limited. 

GORDON J:   Is that not just to say though – consistent with what Justice Edelman just put to you, it is not a question about appealing.  It is a question of – and maybe this goes to the issue that you are going to address later – but that there may be a fresh basis for detention under 189.  In other words, 189 now bites, if you are right, as at whatever date today is, whatever date the order is made.

MR DONAGHUE:   Yes.  Well, at least that, your Honour, but in my submission ‑ ‑ ‑

GORDON J:   Well, that is the question.

MR DONAGHUE:   But because this Court has rejected ‑ ‑ ‑

GORDON J:   These submissions seem to me to be inconsistent with what you put in Ruddock.

MR DONAGHUE:   No, with respect, your Honour, because all I am putting here is that this Court, having rejected any notion of prospective overruling in a constitutional context in Ha, if your Honours were to overrule Love you would not be overruling it prospectively.  It would never have been a correct statement of the law.  If that be right, then 189 has always required Mr Montgomery’s detention, so it cannot ‑ ‑ ‑

EDELMAN J:   Mr Solicitor, that is just the fairy tale view of the law that Lord Reid rejected in 1972.  Of course, the law applies retrospectively, and decisions here would apply retrospectively, but that does not mean that the law was always whatever it is later declared to be.  As a matter of fact, a person who was on the factual state of the law entitled to their liberty will lose their liberty because of a later prospective change to the law that applies retrospectively.

KEANE J:   But is not the prospect of the loss of Mr Montgomery’s liberty, if you succeed, not because of a retrospective change in the law but simply that section 189 as it is properly understood now will apply to require his detention.

MR DONAGHUE:   Yes, your Honour.

GORDON J:   You just rejected that when I put that to you.  You said that was not the only basis upon which ‑ ‑ ‑

MR DONAGHUE:   I said it was not the only basis.  Going forward, that will certainly be ‑ ‑ ‑

GORDON J:   So why is that not the only basis?

MR DONAGHUE:   Well ‑ ‑ ‑

GORDON J:   This is quite important.

MR DONAGHUE:   I appreciate that, your Honour.  There are a few dimensions to it.  One is that – so I am not misunderstood, one of our arguments, the arguments that Mr Lenehan will be developing, is that even if Love is not overruled because it was expressed in terms of a tripartite test which, in our submission, Mr Montgomery did not meet, that his detention even on the basis that Love was right was lawful at all times, and if that argument were to succeed then the concerns that your Honours Justice Edelman and Justice Gordon are putting to me would never be reached.  So, the issue that your Honours are raising with me would only ever arise if we lose on the biological descent limb of the case because that part of the case says her Honour just erred in understanding what Love required, so there would be no question of retrospectivity. 

If we were to lose that part of the case but Love were to be overruled, then I think it is sufficient for me to say that what Justice Keane said will resolve the matter because it would be clear that Mr Montgomery would no longer be entitled to be at liberty and there is no issue in this case about the lawfulness of past detention.  There is no false imprisonment claim here, so I do not need to go into the whole question about what the lawfulness of the detention would have been in the interim period.  I think I am probably thinking further about what your Honour Justice Gordon put to me, that is a battle I do not need to have for the purposes of a habeas appeal.

Can I ask your Honours to go to Love and address what, in my submission, must be the obvious starting point in considering what Love decided, which is paragraph 81 in the judgment of Justice Bell.  Love is in volume 8, tab 49. It is a 2020 decision in 270 CLR 152. Paragraph 81 appears at the end of Justice Bell’s judgment on page 192 and, as your Honours know, in that paragraph her Honour said that she was:

authorised by the other members of the majority to say that although we express our reasoning differently, we agree that Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution.  The difference with respect to Mr Love is a difference about proof, not principle.

In our submission, from the perspective of – just as a matter of logic – from the perspective of each member of the majority who authorised Justice Bell to make that statement, we respectfully contend that your Honours must each have thought that each of the other three members of the majority in their separate judgments agreed with your Honours’ own statements of principle.  That is, your Honours must – all four members of the majority who authorised that statement to be made must have thought that the other three members of the Court agreed with them, because otherwise the statement does not make sense.

And if that be right, logically, which we submit that it is, it is helpful, analytically ‑ and this is what I propose to do ‑ to start by focusing upon what Justice Nettle understood the principles to be, what his Honour must have understood the other members of the majority to have agreed with.

KIEFEL CJ:   Is it right to approach it that way, through the lens of the judge agreeing with a statement which you would not take to be definitive of what the ratio is in any event?

MR DONAGHUE:   No, no ‑ ‑ ‑ 

KIEFEL CJ:   Would you not just concentrate on, we express our reasoning differently, and on your submissions, identify whether there was something integral to the reasoning in each of the – or one or more of the judgments, which was different?

MR DONAGHUE:   Well that, your Honour, as a matter of substance, is what I am going to do.  But insofar as it is put against us that I am not entitled to do that because Justice Nettle authorised ‑ amongst the other members of the majority, he expressed his – or authorised Justice Bell to make that statement on his behalf, I ‑ ‑ ‑ 

KIEFEL CJ:   But the question of whether or not the statement carries weight as to whether it is ratio or not just stands as a matter of principle, does it not, about precedential value and what statements can or cannot have to say about whether something is a ratio or not?

MR DONAGHUE:   When read with the actual reasons that the judge gave ‑ ‑ ‑ 

KIEFEL CJ:   Your argument is that you look at the reasons closely.

MR DONAGHUE:   Absolutely.  Absolutely, and I do not in any way resile from that; I agree.  So, if I could ask your Honours to start with Justice Nettle and turn to paragraph 246 of his Honour’s reasons, you will see that his Honour, in marked contrast to the other three members of the majority – this is under a heading “Alienage” that appears on the previous page – expresses himself in terms that give great attention to the notion of permanent allegiance.  At 246, in the first line, his Honour says:

In common law systems, alienage was and remains about the want of a permanent allegiance to the sovereign in question.

Citing Calvin’s case so going back a long way.  And in the paragraphs that follow, and I will not read them to your Honours, but in 246, 247, 248 – so 248, for example:

In the decades leading up to Federation, judicial statements in England, the United States, Canada and the Australian colonies confirmed that the essence of alienage was the want of permanent allegiance to the sovereign –

And one sees the same emphasis on want of permanent allegiance in 249, in 251, and at 252 where his Honour concludes that, in giving content to what I will call the Pochi limit, if your Honours will forgive me for that shorthand, concludes that that limit is engaged, in 252, because some people:

have so strong a claim –

This is five lines down in 252:

so strong a claim to the permanent protection of – and thus so plainly owe permanent allegiance to – the Crown in right of Australia that their classification as aliens lies beyond the ambit of the ordinary understanding of the word.

So that was his Honour’s lens for getting to the question of whether or not Aboriginal Australians, understood in accordance with the tripartite test, were or were not aliens.  It is not a lens or a form of reasoning that finds any expression in the determinative reasoning of any of the other members of the majority.  I will come back to the significance of that later, but for the moment, if your Honours could then turn on a few pages to 262 where, having rejected some other possible bases for finding that Aboriginal Australians are – or for finding that the Pochi limit was engaged, his Honour’s critical reasoning commences.  At 262, under the heading “Aboriginality”, his Honour says:

Different considerations apply, however, to the status of a person of Aboriginal descent who identifies as a member of an Aboriginal society and is accepted as such by the elders or other persons enjoying traditional authority among those people ‑

That is the language of the tripartite test up to the words where I just stopped – at “people” ‑ and that is the language that reflects the endorsement in paragraph 81.  But his Honour continues, so:

elders or other persons enjoying traditional authority among those people under laws and customs deriving from before the Crown acquired sovereignty over the territory of Australia.

So, his Honour has added those words to the tripartite test as an explanation of the meaning of the third limb.  We are talking about elders or other persons with traditional authority, he explains that that traditional authority must be under laws and customs of a particular kind.  That language is drawn directly from the explanation of what is required for laws and customs to be traditional in the native title context, and your Honours see that Yorta Yorta, which I do not need to go, but at paragraphs 87 to 89 in Yorta Yorta that language is the language given to explain when laws and customs will be traditional laws and customs.

His Honour’s use of those words was, in our submission, plainly not inadvertent; he uses them repeatedly in the paragraphs that follow.  So, I am going to take your Honours to some of these, but you find that same phrase in paragraph 270 and 271, 278, and 280 and 282 and 284.  He uses it all the time.

So, in my submission, it was evidently not a slip by his Honour and, indeed, those words are the words that explain why there was not able to be agreement between the majority in the case of Mr Love in the answer given to the question because there were no facts in the special case that went to the – whether there were laws and customs deriving from before the Crown acquired sovereignty.  So, Justice Nettle could not answer the question because he did not have any facts going to those additional words, whereas the other members of the majority, for reasons I will develop, did not emphasise those words and so the absence of facts going to that question did not matter. 

Going forward a few pages in the judgment, at 268 – which is on page 252 – his Honour refers to Mabo [No 2] and native title law, the kind of connection recognised to have an interest in lands or waters that gives rise to native title, but his Honour then shifts focus at 269 to a “logically anterior” and “more fundamental” form of recognition, which his Honour identifies as the:

common law’s recognition of the Aboriginal societies from which those laws and customs organically emerged.

And his focus thereafter is on the society, the Aboriginal society, and how it is established.  He quotes from Yorta Yorta in 269, and then at 270:

Hence, as that passage conveys, under the common law of Australia, an Aboriginal society retains an identifiable existence so long as its members are “continuously united in their acknowledgement of laws and observance of customs” deriving from before the Crown’s acquisition of sovereignty ‑

So, he is talking about a particular kind of Aboriginal society, one continuously united under traditional  law.  And it is that kind of society that then explains 271, which is one of the critical paragraphs in his Honour’s reasons.  So:

Axiomatically, a person cannot be a member of an Aboriginal society –

Again, “continuously united” under the “laws and customs”:

unless he or she is resident in Australia.  Nor can a person be a member of such an Aboriginal society –

So, having the same characteristics:

unless he or she is accepted as such by other members of the society according to the traditional laws and customs deriving from before the Crown’s acquisition of sovereignty over the Australia territory.  Thus, for present purposes, the most significant of the traditional laws and customs of an Aboriginal society are those which allocate authority to elders and other persons to decide questions of membership.

Then his Honour says, coming back to the tripartite test:

Acceptance by persons having that authority, together with descent (an objective criterion long familiar to the common law –

So, his Honour obviously viewed descent as important, limb one:

and self‑identification (a protection of individual autonomy) –

Limb 2:

constitutes membership of an Aboriginal society ‑

So, his Honour needs all of those – descent, self‑identification and recognition by elders under laws or customs continuously observed…..for the acquisition of sovereignty.

GLEESON J:   Mr Donaghue, can I ask a quick question at this point?

MR DONAGHUE:   Of course.

GLEESON J:   Am I right to understand that the majority’s use of the tripartite test involves the identification of a legal status at common law and that is the legal status of being an Australian Aboriginal.  That is then applied to the interpretation of the constitutional term of “alien”?

MR DONAGHUE:   Your Honour, in my submission, that is not the legal pathway that is followed.

GLEESON J:   Before you answer that, let me just ask my second question – I am just focusing on that first sentence axiomatically – does that entail the idea that a person in Mr Montgomery’s position – as a person who spent the first 15 years of his life outside Australia - was not an Aboriginal – did not have the status of Australian Aboriginal – until such time as he arrived in Australia?  In other words, is this saying that this is a status that will come and go depending on your location?

MR DONAGHUE:   It must be, your Honour, and, indeed, even later than when he arrived in Australia because when he arrived in Australia he had never even heard of the Mununjali people and he did not come into contact with them for a couple of years.  So, he did not self‑identify as a member and he had not been accepted by elders enjoying traditional authority because he did not come – so, on this view of the world, he must have been an alien when he arrived and at some point subsequently when he came to satisfy the limbs of the tripartite test, he ceased to be.

GLEESON J:   Then this comes back to my question, which is about what is the legal pathway to this change of legal status?  Is it something that is a matter of common law or is it something else?

MR DONAGHUE:   I think, in our submission, your Honour, it is something else.  It is a limit on legislative power.  So, that the common law, as explained in Mabo – and I think not disputed by our friends – was agnostic as to Aboriginal status.  If you were in Australia when the Crown acquired sovereignty, or if you were born in Australia thereafter, as a matter of common law you were a British subject.  You did not need some special rule of status – that was the law of status.

What the tripartite test does, in our submission, is identify as a category of persons who meet the Pochi limit, so it is said – and because that category meets the Pochi limit, they are as a matter of constitutional – whether one calls it interpretation or implication – beyond the reach of one particular head of Commonwealth legislative power.  It is a constitutional proposition rather than a common law status, but it is a constitutional proposition that limits the power of the Commonwealth to determine the question of status.

Here – as I will come to shortly – the legislation would say your status is alien.  But the answer that is put against us is do not worry about the legislation, the legislation cannot validly attribute to you that status because of the Pochi limitation identified by reference to the tripartite test.  I think that is ‑ ‑ ‑

GORDON J:   Parliament cannot legislate itself into power is the argument put against you.

MR DONAGHUE:   Yes.  Parliament cannot give the person legislative power by attributing the status of alien to someone who is beyond the reach of 51(xix) – I think that is the legal framework we are in.

GLEESON J:   I do not want to hijack your time but one of the things I am trying to understand here is the nature of the legislative power and it occurs to me that the nature of the aliens power is something that is informed by what was the position at common law prior to Federation - and that is why I am struggling with the idea that this could have nothing to do with the common law.

MR DONAGHUE:   Your Honour, I am going to come to the nature of the legislative power and, to some extent, its intersection with the common law, in the third part of my submissions when I come to addressing why we submit that Love is wrong.  So, it may be that I will try to address what your Honour is putting to me then, if that is convenient.

GLEESON J:   Perhaps if I could just – so that you understand ‑ ‑ ‑

MR DONAGHUE:   Of course, your Honour.

GLEESON J:    ‑ ‑ ‑what I am trying to understand is what limit, if any, was there upon the Crown to legislate in relation to aliens prior to Federation?

MR DONAGHUE:   On the British Crown, your Honour?

GLEESON J:   Yes.  I understand that that was a very, very different framework but is the idea here that, prior to Federation, the legislative power was constrained in some way so that the Crown, in conferring legislative power, could not have – its sovereign power to control its borders was informed by some kind of sovereignty that Australian Aboriginals had.

MR DONAGHUE:   Yes.  It is certainly, your Honour, being put against that that is so.  So, our friends expressly say – by reference, I think, to Robtelmes v Brenan – they say if you put yourself back in time, that law is invalid.  You could not have treated Aboriginal Australians as aliens at that point and we join issue on that proposition for some of the reasons that your Honour has just identified.  Your Honour, I note the time.

KIEFEL CJ:   You see the time, yes.  The Court will adjourn for 15 minutes.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, can I ask you to take up Love again, and your Honours will recall I had just taken you through paragraph 271 and Justice Nettle’s identification of the content of the limit in terms that includes acceptance by members of society according to traditional laws and customs derived from before the acquisition of sovereignty. 

Can I divert from analysis of Justice Nettle for one moment to take up a submission that is put against us by the National Native Title Council reflecting an understanding of the Commonwealth submissions and Justice Nettle’s judgment, expressed by Justice Mortimer in a case called Helmbright. 

If your Honours have the National Native Title Council’s submissions, they spend quite some time, particularly from paragraphs 37 through to paragraph 49, attacking the idea or developing the idea that the tests for native title and non‑alienage are not the same so that it is possible to be a non‑alien even if you do not hold native title.  We completely agree with that submission.  So, it has sometimes been said that Justice Nettle’s formulation equates having native title with being a non‑alien.  In our submission, that is a misunderstanding of what Justice Nettle found.

GORDON J:   His Honour recognises, as the other majority does, that native title is a legal consequence following from the recognition 30 years ago of connection to land, and then seeks to apply it, as Griffiths did, in a different context, and then seeks to apply it again in a different context to the constitutional meaning of the term “aliens”.

MR DONAGHUE:   Indeed.  Justice Nettle does not make that error and we do not, respectfully, make that error either.  What Justice Nettle does, however, do - and if your Honours have the National Native Title Council’s submissions, at paragraph 48 you will see, on page 16 of their submissions, you will see that there is a quote from Justice Mortimer in Helmbright, an understanding of what is said to be the correct position, and we respectfully agree with the law as stated there, which means that, while one does not need to have native title, clearly does not need to have native title, there does need to be an Aboriginal society in existence of a kind that would be capable of holding native title but for some act of extinguishment.

GORDON J:   Not necessarily.  That is what Mabo describes.  Mabo says you can have connection to land, as recognised in subsequent authorities, including in Griffiths, and yet it may not, for a whole range of reasons, give rise to native title under the statute.

MR DONAGHUE:   Your Honour, I accept that that is so, but my submission is that, for Justice Nettle, in his identification of – in the paragraphs I have just been to, in 271 but also in the earlier paragraphs I have been through, I will not go back to them – his Honour is identifying a feature of an Aboriginal society which has to be a society continuously united by laws and customs deriving from pre‑sovereignty.  That is not itself enough to get you native title under the Native Title Act or under the common law, but you do need a society that has that characteristic before native title can exist.

Justice Nettle takes a society with those characteristics and says if you are a member of that society you are a non‑alien.  He does not take the further steps of saying, and you also need to establish a connection to lands and waters that has not been extinguished, but he does borrow from native title law to the extent of identifying a traditional society.  One of the points I am going to come to is that, in my submission, your Honour Justice Gordon and your Honour Justice Edelman in particular did not have that additional requirement there, so that that is a difference.

GORDON J:   What additional requirement did we not have?

MR DONAGHUE:   A requirement that there be an Aboriginal society continuously united by observance of laws and customs traceable to pre‑sovereignty.

GORDON J:   I put the proposition to you that I think that, with respect, you may be misreading Justice Nettle, but I could have it wrong of course because in at least I think 268 his Honour is recognising that these things do not exist in a vacuum.  He recognises that they are, quoting from Chief Justice Gleeson, Justice Gummow and Justice Hayne in Yorta Yorta, accepting that it is dealing with native title, but deals with it in an organic sense:

arise out of and, in important respects, go to define a particular society . . . united in and by its acknowledgment and observance of a body of law and customs”.

So, he is recognising that there is a broader concept.

MR DONAGHUE:   In my submission, your Honour, if one juxtaposes 268 and 269, in 268 there is a native title law concept, then in 269 and following there is a broader concept of an Aboriginal society, that the broader concept of an Aboriginal society as you see particularly in 270 and 271 has to be a society that remains in existence continuously united under laws and customs.

GORDON J:   Yes, but it changes.  It recognises there could be changes ‑ ‑ ‑

MR DONAGHUE:   It might have evolved ‑ ‑ ‑

GORDON J:   It evolves, it recognises that there are changes both nationally and culturally and that it is not a static operation.

MR DONAGHUE:   I am not saying it is frozen in time, but that there must be a society that has a link to traditional laws and customs in that way, and the reason I make that point, your Honour – so it is not requiring of native title, but it has the consequence that his Honour then articulates at 278 and 282.  So, at 278 – and the introductory words stress the point, “So long as”, so it must:

So long as [the] society which enjoyed a spiritual connection [since] before the Crown’s acquisition of sovereignty has, since that acquisition of sovereignty, remained continuously united in and by its acknowledgment and observance of laws and customs deriving from before the Crown’s acquisition of sovereignty –

Then, not reading it all, “the unique obligation of protection” will be owed.  So, it is only so long as a society that meets those conditions ‑ ‑ ‑

GORDON J:   Sixty‑five thousand years?

MR DONAGHUE:   Since sovereignty.

GORDON J:   But existed before sovereignty.

MR DONAGHUE:   Existed before but must have continued to exist.

GORDON J:   And evolve.

MR DONAGHUE:   And evolve but must have continuously - accepting some evolution is possible - continuously observed and recognised the laws.  That means – and his Honour recognises this expressly at 282 – that means that his Honour’s category of “non‑alien” does not include all Aboriginal people.  It subdivides Aboriginal people by reference to those who meet the requirement that they are members of a society of that kind, and those who do not.  His Honour says at 282 the Commonwealth made that point.  We made the submission that it would have the invidious consequence that:

there would be two classes of resident non‑citizen persons of Aboriginal descent:  those identifying and accepted as members of an Aboriginal society . . . continuously observed since before the Crown’s acquisition of sovereignty; and those who are not.

His Honour says, well, that is unfortunate, but if “Parliament regards it as ‘invidious’” it can fix it, presumably by a law under the race power.  So, his Honour was accepting that his test, because it requires an Aboriginal society to have had continuous observance, will draw a line within the group of people who might otherwise be identified as Aboriginal Australians.

EDELMAN J:   But the tripartite test itself draws a line between the group of people who might be Aboriginal Australians.  If people will meet the third limbs, but not the first limb, that will draw a line.  All these distinctions that you are identifying between the judgments in Love, these are distinctions that go to degrees of application of the test, but not at a higher level of generality any agreement between the judges in the majority.

MR DONAGHUE:   Your Honour, in my submission, they go to the definition of the class of non‑alien.  If as a matter of constitutional interpretation or implication there is a constitutional category of non‑alien, it must have a definition.  It must be possible to note who is in it and who is outside it and my submission is that Justice Nettle defines that class differently than the other three members of the majority because ‑ ‑ ‑

GORDON J:   Can I take you to 284, picking up what Justice Edelman just put to you:

non-citizen of Aboriginal descent who identifies and is accepted as a member of an Aboriginal society according to traditional laws and customs continuously observed –

which you accept is subject to modification, change over time, which arose:

before the Crown’s acquisition of sovereignty -

I do not know what else that leaves but the tripartite test set out in paragraph 81.

MR DONAGHUE:   Your Honour, can I put it this way?  Can I ask your Honours to compare what you see at 282 and 284 to Justice Edelman’s paragraph 451 – which appears on page 314.  At the start of that paragraph, Justice Edelman accepts that native title rights and interests require continuing connection to land, but then says:

However, underlying that particular connection is the general spiritual and cultural connection that Aboriginal people have had with the land of Australia –

So, a wider connection than the particular land that is subject to native title, and the reference to the “fundamental truth” and “an unquestioned scheme”.  That there is a quote from Milirrpun v Nabalco which does, in its terms, refer to a connection to particular land.  But, leaving that aside for a moment, following (783), Justice Edelman says this:

Sometimes events, including the cessation of the existence of a particular Aboriginal society, cause the loss of native title rights to land.  But the loss of those rights to, and the relationship with, particular land, or even the effluxion of particular Aboriginal societies, does not extinguish the . . . connections Aboriginal people have generally with the lands of Australia.

In my submission, Justice Nettle expressly says that so long as there is a society united by continuous observance in existence and that continuously observes since before sovereignty, you are in his class.  Justice Edelman says, in paragraph 451, it does not matter even if the society has ceased to exist.  So, in my submission, you cannot get ‑ ‑ ‑

EDELMAN J:   I am not sure I do say that it does not matter if a society ceased to exist.  I am talking about the effluxion of particular Aboriginal societies.  If the society ceased entirely to exist, it would be bizarre that I would be suggesting that the tripartite test in Mabo could be adopted because the tripartite test requires recognition by members of the Aboriginal society – including the elders.  I could not possibly be taken in 451 to be rejecting that.

GORDON J:   That is what is addressed at 281 and 282 – I withdraw that – 284 of Justice Nettle.

MR DONAGHUE:   Your Honours, if it be the case that all members of the majority in Love accept “the invidious consequences” that Justice Nettle identified at 282, so that one can only satisfy the tripartite test if there is biological descent, self‑identification and recognition by elders or others with traditional authority under laws:

continuously observed since before the Crown’s acquisition of sovereignty –

If all four members of the majority embraced that proposition, then I would accept that Love has a ratio.

GORDON J:   It depends what you mean by “continuously observed”.  This is why we are back to this thing.  If you mean continuously observed and subject to evolution – which all four judgments recognise – then you have the tripartite test and you have 284 sitting with 451 and 452.  This comes back to whether or not - what you mean by a “ratio”.  If it is a principle ‑ ‑ ‑

EDELMAN J:   It is levels of generality, Mr Solicitor.  At the higher level of generality, there is complete agreement but just in the application at some levels of specificity there might be disagreement. 

MR DONAGHUE:   But it is a question of what – in my submission it is an issue of what question 1 is asking.  So, if one takes the Yorta Yorta people, this Court has held, in relation to that group, that there was not continuous observance of traditional laws and customs since before the acquisition of sovereignty.  On Justice Nettle’s analysis, therefore, Yorta Yorta people – who, for most purposes would obviously be described as Aboriginal people – would not fall within his class of non‑aliens.  As we read your Honour Justice Edelman and your Honour Justice Gordon, you would not have accepted that proposition.  Hence, there is a different class.

GORDON J:   I do not think Justice Nettle accepts it either because you misread “continuously observed”.  He recognises changes.  He recognises that it can evolve. 

MR DONAGHUE:   But, your Honour, there is a difference between changes and evolution and a break in continuous observance. 

GORDON J:   There may be in terms of specificity and that is a separate question of fact.  But he starts Yorta Yorta.  He explains – uses the concept in Yorta Yorta and the evolution of Yorta Yorta as a fundamental – at least, as I read it – limb in his analysis.

MR DONAGHUE:   In an analysis that is drawing a distinction within Aboriginal societies because his Honour’s concept of protection and reciprocal obligations of allegiance is a society that was there at the time of the acquisition of sovereignty that has continuously existed – yes, with some evolution but with no break in the acceptance of traditional laws and customs.

So, for his Honour, there is a potential invidious consequence, because one does not just look for traditional law - for recognition by elders or others with authorities under traditional law and custom as it now exists, one has to link it back, whereas our friends put against us, expressly, in terms, they say in 94 of their submissions, you do not need traditional law and custom, it is just whatever the indigenous community’s laws are now for membership of the community, is the meaning of the third test.

EDELMAN J:   Mr Solicitor, it is all what is meant by “continuity”.  I mean, there are undoubtedly slight differences between the judgments as to how the notion of continuity is applied.  Does continuity require particular continuous recognition of particular laws?  Does it require something less than that?  But that is common in many, many cases where there are multiple judgments.  As soon as you descend to levels of specificity you get differences between the judgments.  Identifying a ratio, since first‑year law school, is about finding a level of generality at which all of the judges are agreed.

GORDON J:   Can I say in response to that also, Mr Solicitor, one only has to look at the decision of this Court in Griffiths, which I accept was dealing with compensation for extinguishment of native title rights and interests, to recognise, as this Court did, that there are a range of ways in which connection to land arises and it is destroyed, and the analogy we use is like holes in a painting.  There is going to be no one question, no one set of rules that are going to apply across the board.  It may be that the connection will vary.  It may be that the connection will be in respect of some aspect of traditional laws and customs and not all of them. 

This black and white analysis is just so – as Mabo has recognised, Griffiths has recognised, Yorta Yorta has recognised, Love and Thoms recognised, it is just so inappropriate to dealing with the First Nations people of this country.

MR DONAGHUE:   But, your Honour, it does depend why one is asking the question.  For very many purposes I would entirely agree with everything that your Honour just said, but in the Love and Thoms context, one is defining a limit on a Commonwealth legislative power ‑ ‑ ‑ 

GORDON J:   We are.

MR DONAGHUE:   ‑ ‑ ‑ and it cannot be left vague.

GORDON J:   Well, it is not vague ‑ ‑ ‑ 

MR DONAGHUE:   You need to know who is or is not within the category.

GORDON J:   It is not vague.  It is not vague.  You have a test, which the courts have applied.  We have now seen the courts below apply it, with not any great difficulty.  Some people will fall in, some people will fall out.  At the moment, I think, as I read somewhere, there are either 16 or 18 people who have been the subject of this ruling, and there has not been a difficulty.

MR DONAGHUE:   Released, and there have been over 100 assessed against it ‑ ‑ ‑ 

GORDON J:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ but the Commonwealth has to decide whether to release people from detention ‑ ‑ ‑

GORDON J:   And they have been doing it.

MR DONAGHUE:   ‑ ‑ ‑ knowing what this test means and, in my submission, your Honours, on a fair reading of your Honour’s judgment and Justice Edelman’s judgment, the connection to land, or the connection to Australia that is identified is a connection that your Honours both identify as a deeper or fundamental truth between First Nations people and the country as a whole.  That then comes through very strongly in both of your Honours’ reasons in particular, but in my submission, for Justice Nettle, it is much more particular.

In my submission, that is not a difference that can be dismissed as a difference just about level of generality, because it is definitional of the group of people who are constitutional non‑aliens or not, and without an answer, do we look at it at the level of a particular Aboriginal society that still exists, continuously united by laws and customs, or do we look at it at the level of the deeper truth to the whole of the area of Australia?  You get different people.  You get different answers.

GORDON J:   Well, no, I think you misunderstand the “deeper truth”.  The way in which it is put in Mabo and picked up in later authorities is a deeper truth which is specific to the person who is claiming to fall within the tripartite test.  The way the tripartite test works is that it is the three limbs, which include acceptance and acknowledgment – I withdraw that - by reference to particular traditional laws and customs which necessarily are tied to, often, either sometimes a region or otherwise.  I think it overstates it to say that it is at the level of generality that you would put at least my judgment.

KIEFEL CJ:   Mr Solicitor, in any event, your alternative position is that leave to reopen Love should be granted ‑ ‑ ‑ 

MR DONAGHUE:   It is, your Honour.

KIEFEL CJ:   ‑ ‑ ‑ regardless of whether there is a ratio.

MR DONAGHUE:   Your Honour anticipates exactly what I was about to say.  I think I have put that submission as high as I can put it.

KIEFEL CJ:   Yes.

MR DONAGHUE:   If I could go then to that alternative proposition and ask your Honours to – really for a convenient statement of the principles – turn up Wurridjal v Commonwealth (2009) 237 CLR 309, which is in volume 15, tab 81, in the judgment of then Chief Justice French. When your Honours have that, on page 350, just above 65, there is a heading, “Overruling a previous decision of the Court”, where Chief Justice French records that:

The Court accepted not long after its establishment that it could overrule its own decisions.  Isaacs J put it thus . . . 

Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all . . . It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right.

His Honour then records that there was a view for a while in this Court that the test was one of manifest error, is the decision:

manifestly wrong -

but that the Court then departed from that, Justice Dixon having said in Tramways – sorry, in Perpetual Trustees – that there was:

“no very definite rule –

There were some factors listed in the Second Territory Senators Case by Justice Aickin and one then gets, in paragraph 69, a statement of the John v Federal Commissioner of Taxation criteria, with which your Honours are all familiar, and which are the usual lens through which the Court now looks at questions of reopening – and that is the lens that I propose to adopt in a moment.

At paragraph 70, you will see the Chief Justice emphasising that the application of this – the question of reopening is not to be answered by the application of:

such visceral criteria as “manifestly” or “clearly” wrong.  Rather it requires evaluation –

It is an evaluative judgment in favour of reopening, accepting that there is a “strongly conservative cautionary principle” – so that one does not, as his Honour explains in paragraph 71, need to make a finding of error, let alone manifest error.  The evaluation of factors might call for reopening without any such conclusion.

His Honour also records in paragraph 68 – which I just skimmed over – but particularly in the context of constitutional cases, there is the further consideration that legislative rectification is not available and also that the point in issue might be of a fundamental character, as we submit that it is here, which perhaps points towards a slightly lower standard for reopening.

As to the application of the factors, given timing constraints, I might be brief in this regard.  Point 1, does the earlier decision rest on a principle carefully worked out in a significant succession of cases, in our submission, clearly not here.  Indeed, Justice Nettle at 273, Justice Gordon at 294 and Justice Edelman at 396 all emphasised that this question was novel in Love – that it had not been decided before.  In that way, their Honours were able to put aside cases that the Commonwealth submitted did govern because they reflected what we submitted – and still submit – is a settled understanding of the operation of the aliens power.  So, one way or the other, Love was novel.  Point 2:

Whether there was a difference between the reasons of the Justices constituting the majority –

I have already probably said most of what I would seek to say about that.  Can I emphasise the difference I have already touched on between allegiance and permanent protection as the lens of analysis for Justice Nettle and connection to lands and waters of Australia in the reasons of the other members of the majority.

There was also a difference as to what I will call the settled understanding of the aliens power in that Justices Gordon and Edelman and Bell – for reasons I will develop in a moment – all identified an essential meaning of the word “alien” as outsider, or belonger or foreigner.  We submit that that is intention with what I will call the settled understanding for reasons I will develop in just a moment and a difference, again, between their Honours and Justice Nettle.

There was also a difference as to whether the tripartite test is a necessary condition to be a non‑alien or just a sufficient condition.  For Justice Nettle, at 262 and 271, and Justice Gordon at 367, it was expressly said that satisfaction of all three limbs is necessary to fall within the non‑alien class.  Justice Bell at 80 and Justice Edelman at 458 said they were sufficient conditions but left open whether they were necessary – so that is another divergence – so that there were significant differences.

As to point 3, whether earlier decisions have:

achieved a useful result or caused considerable inconvenience –

we have said quite a bit about this in writing.  Our friends join issue on it.  Really, I think all I would seek to add orally is that the particular problem that confronts detaining officers under section 189 is a difficult one in that they are confronted on the one hand with the statutory duty to detain, and on the other hand, with the possibility that if they detain they will falsely imprison or unlawfully imprison the person detained.  Sitting on that knife edge, they have to decide how to behave based upon principles of constitutional law drawing on native title ideas and varying between traditional Aboriginal societies by reason of the content of their law and customs.  It is a difficult position that they confront, where there is unlawfulness on either side of the way that they may act ‑ ‑ ‑ 

EDELMAN J:   Mr Solicitor, it may be that that exercise is actually a lot easier than the exercise that has been undertaken for more than half a century in relation to the immigration power, which is whether someone has assimilated into the community or absorbed into the community.

MR DONAGHUE:   But, your Honour, it is the very uncertainty of that test that led to the shift in the foundation of the Migration Act from the immigration power to the aliens power, where there is no concept of absorption – in 1984.  That is why it was done, to produce greater clarity as to status. 

GAGELER J:   Mr Solicitor, my question is, I think, somewhat related.  If you are looking at the third of the John criteria applied in a constitutional context about – here we are concerned with the scope of legislative power of the Commonwealth - is it correct to test the inconvenience by reference to the operation of the constitutional doctrine on one existing legislative provision?  Do you not need to stand back from it a little and look at it more systemically, about legislative options, about possible executive action?

MR DONAGHUE:   Your Honour, I accept that that is properly open as part of the inquiry, and perhaps we have drilled down too much to the micro in the practical problems that it causes, but there is - at that more fundamental level one has, in my submission, as a result of Love, departed from a world in which precise clarity of legal status can be achieved by the exercise of the aliens power to identity a binary distinction by formal legal recognition through the Citizenship Act to a situation in which the answer to that binary statutory inquiry now leaves open a question of status for the undefined or that residual third category, and that that has ramifications of a wider kind across – certainly across the range of laws that may be enacted in reliance on the aliens power.

GORDON J:   What does that mean, Mr Solicitor?

MR DONAGHUE:   Well, it might mean, and our friends vigorously resist this, but it might mean that, depending on how your Honours hold that the limit works, that the aliens power does not extend to regulating the entry or exit of non-aliens through the grant of visas.  If it means that, then it creates practical uncertainty in the operation of the border controls for the Australian community because one can only avoid that if one says, even though tripartite test people are non-aliens they are are still subject to the aliens power for the purpose of visas, even if they are not for the purpose of detention.  So that is another example.

EDELMAN J:   Mr Solicitor, that uncertainty arises on any situation that is beyond what you described as the Pochi limit. There is an easy way of avoiding that uncertainty, and that is just read section 51(xix) of the Constitution as if it says an alien is anyone that Parliament considers to be an alien.  But absent that heretical view of constitutional interpretation, there is going to be uncertainty in the application no matter what.  The certainty that Parliament was searching for in 1984 is illusory unless one adopts a brand‑new method of constitutional interpretation. 

MR DONAGHUE:   Your Honour, there will only be uncertainty if the Parliament ever attempts through the exercise of the first aspect of the aliens power to treat people as aliens who cannot possibly answer that description and happily Parliament has never attempted to do that and there is no reason to think that Parliament will ever attempt to do that. 

In my submission, Parliament has only ever exercised that power to treat people who, as a matter of common law or longstanding international practice, particularly European practice, can be treated as aliens, so that it is not – the Pochi limit is there because it stops Parliament legislating itself into power, to borrow Justice Gordon’s words earlier, and if Parliament were – and this example might be illustrative – if Parliament were ever to say people who satisfy the tripartite test are aliens, I would concede the invalidity of that law.

GORDON J:   You would what, sorry?

MR DONAGHUE:   I would concede the invalidly of that law.  Parliament could not say, “If you are a person who satisfied the tripartite test, you are an alien”, because that would be to treat a large number of people who could not possibly be aliens as if they were aliens by reference to a criteria that would have no historical underpinning.  But that is not what Parliament has ever done. 

These cases – Love and Thoms and this case – are not about a law that erects a criterion that says if you satisfy the tripartite test you are an alien.  It is about a criterion that says if you are born outside of Australia and you have not ever registered as a citizen, then you are an alien, and that is a totally different law.  It easily, in our submission, survives testing against the Pochi limit because it reflects a common law understanding.

Your Honour Justice Gleeson asked me what the relationship between the common law and the aliens power is.  Well, one relationship is that if the common law tells you something about alienage, then Parliament can reflect that in laws passed under the first aspect of the aliens power, and that is what it has done.

GORDON J:   But it flows both ‑ ‑ ‑

EDELMAN J:   Mr Solicitor, can you just explain to me who are the large number of people that you accept would, in the ordinary meaning of the word “alien”, fall outside the aliens power if Parliament were to pass a law that said that anyone who satisfied the tripartite test was still an alien?

MR DONAGHUE:   Your Honour, there would be many, many people who satisfy the tripartite test who were born in Australia to two Australian parents who are not foreign citizens and who have not renounced their allegiance.

GLEESON J:   Well, it would be most of what we would in lay terms identify as the Aboriginal communities within Australia.

MR DONAGHUE:   Overwhelmingly so.  So, all of those people would be people who would be beyond the reach of the aliens power, but some people who satisfy the tripartite test do not have all of those characteristics.  Some of them are born overseas, as Mr Montgomery, and Mr Love and Mr Thoms were, and it is that fact – nothing about the tripartite test – it is that fact that means that the Pochi limit is not engaged by a law that says well, if you are born outside of Australia you are an alien unless you register.

GORDON J:   You may come to this, Mr Solicitor, but I would be very grateful to know what are the bounds - so far as you are concerned - of the Pochi limit.  I ask that for this reason.  Is it possible on your analysis for Parliament to choose one of those criteria?  Does it have to have all three?  Can it choose one of them as being sufficient to constitute being an alien within the constitutional limit you have accepted exists?  Is it - I think Justice Gleeson wanted to ask a question.

GLEESON J:   I am sorry, I also have a question about the Pochi limit, and I am sorry for cutting you off, Justice Gordon.  I am interested to understand what is the principle of constitutional interpretation that explains the Pochi limit.

MR DONAGHUE:   I will try to answer both of those questions together.  We accept that for Parliament to have an entirely untrammelled power to define a person as an alien - any person as an alien by reference to any criteria, would be self‑levitating.  Parliament would be able to legislate itself into power, and that is why Chief Justice Gibbs in Pochi and this Court many times since has said the Commonwealth cannot just by treating anyone as an alien.  But the way that his Honour formulated it there was cannot treat as an alien someone who cannot possibly answer that description on the ordinary understanding of the word. 

Now, that formulation, which the Court has adopted many times since, is perhaps not one that lends itself to precise definition as to exactly who is within it.  But in our submission, it has always been enough for the Commonwealth to say, at least within people who can possibly answer the description according to the ordinary understanding of the word, are people who were able to be treated as aliens or who were, under one of the laws that the Court explained in Singh and since, were in a state of flux at the time of Federation governing status.

So, it was because it was not clear at the time of Federation who was an alien or who was not, or it was because – I should not say that.  It was not because it was not clear, there was a clear common law rule that governed who was a British subject and who was not, but Parliament in the UK was changing it, other countries in the world had different rules, those rules were evolving as the world became a more global place and people started immigrating from one country to another.  So, there were different ideas in play, and it was because of that state of flux that Parliament was given a power to crystallise the rules.

So, our submission is that as long as you are within the realm of people who, under any of those rules that existed in the world at the time of Federation, you will be within the Pochi limit.  Maybe one can go a bit further, but at least if you are within those rules – so a person born outside the country is an alien on the jus soli law of the common law, an alien for 400 years - so that, your Honour Justice Gordon, by itself would be enough – or birth outside Australia.

GORDON J:   I need to deal with the premise from which you are working, but I will let you finish.

MR DONAGHUE:   A person born to foreign parents would be an alien according to the jus sanguinis view of the world, and so if Parliament wanted the jus sanguinis view of the world to be the view that controlled status under Australian law, that would be within the Pochi limit.  Some combination of the two of those, which is what has existed in Britain since 1870 and in Australia always, is also open within the Pochi limit.

But the selection of a criteria that does not have that historical underpinning, which would be what would be involved in a law that said if you are an Australian Aboriginal you are an alien – now, that would obviously be an offensive law for the Parliament to pass, and it is an extreme example, but if Parliament did that, it would not be drawing upon an historical criteria of those different kinds and it would be capturing people who, on both of those theories, were not able to be considered alien, and that is why I give the example that I do.

GORDON J:   I just want to test this out.  Does that mean that it is open for Parliament to pass a law which says, including the person naturally born in Australia, you are an alien if you, for example, do not provide a pledge of allegiance, if you do not register to vote, if you do not meet a statutory requirement.

MR DONAGHUE:   Well, your Honour, I think those examples – your Honour is putting to me cases where criteria are adopted that are not of the historical kind that I have identified for alienage and asking could they be a determinant of it.  I would very much prefer not to answer that question in the abstract, your Honour, because we never had a law of any of those kinds, and it is not in play here as a limit on power.  Whether you could make a pledge of allegiance a requirement is an interesting question, but your Honours do not need to decide, and in my submission, should not decide.

EDELMAN J:   To use one of the examples that you have given, then, a person who is born as a dual citizen because of the citizenship of one of their parents, or possibly even a grandparent, that person who has lived, let us say, in Australia, as a citizen, for 60 years, served in the military, voted and fulfilled every civic duty of Australia, it is open for Parliament to treat that person as an alien, and that falls within the ordinary meaning of the word?

MR DONAGHUE:   Yes, subject to this qualification, your Honour.  There might, at some point, particularly with dual citizens, if their Australian citizenship were to be removed, be a question of a kind not the same as, but analogous to the Canavan sort of issue about constitutional imperative that your Honours identified there, that said, well, we are not going to visit a constitutional disqualification upon someone by reason of the direct operation of foreign law if there is nothing that the person can do about it.

So there might be a boundary line to be drawn which says, well, foreign law cannot have determinative status for the operation of the Australian Constitution, but if the Commonwealth were to say, in an increasingly uncertain and difficult world – and again, this is an extreme example your Honours are asking me to grapple with - there is, politically, the idea that the Commonwealth would strip Australian citizens, dual citizens, of their Australian citizenship, is so unlikely that, in my submission, it constitutes an extreme example, but ‑ ‑ ‑ 

EDELMAN J:   But it is not that it is an extreme example, it is testing the limits of what the ordinary meaning of the word “alien” is, because if your submission is right, and the Pochi limits are so far out, then that means that almost half of Australians who are permanent residents are capable of being treated as aliens.  It is a remarkable way of saying that is the ordinary meaning of the word “alien”.

MR DONAGHUE:   Well, your Honour, six members of this Court in Nolan said:

as a matter of ordinary language –

“alien” means nothing other than subject of another country.  That is what the Court said as an ordinary meaning of the language it meant.  Foreign citizenship is a relevant factor indeed.  In some cases that your Honour Justice Gageler has criticised, in Singh and Koroitamana, it was said to be the determinative or essential characteristic.  I do not go that far, but I do say that it is relevant to the reach of the aliens power.  But, your Honours, I also say this discussion – I accept your Honours are testing with me the limits – but the fact of the matter, in my submission, is that in Chetcuti’s Case, your Honour the Chief Justice, Justices Keane, Gageler and Gleeson said it was the settled understanding of the power that it could be used to define status, and also – this is paragraph 12 of that judgment:

it is in general open to the Parliament to “treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized –

That is the respondent.  The respondent falls within the settled understanding, having been born outside Australia, so that Love needs to trump that settled understanding of the aliens power for the result in Love and Thoms and the result here to be that a person who satisfies the tripartite test just cannot be treated as an alien. 

I do not need to go to the more difficult questions around dual citizenship, because here the relevant factor is birth outside of Australia.  That is what brings, what means, in our submission, that the Pochi limit has no relevance to the status or to the capacity of Parliament to govern the status of Mr Montgomery.

The effect of the settled understanding, in our submission, is that unless Parliament has enacted criteria that contravene the Pochi limit, and in my submission there is no suggestion that they have ever done that, an alien is no more and no less than a person who is not a formal member of the community according to the prevailing test for membership that Parliament has described.  So, you cannot answer the question is someone an alien or not just by direct application of the Constitution.  You cannot say the essential meaning of alien is X without looking at the legislation, because that ‑ ‑ ‑ 

GORDON J:   Just the same way you cannot look at an impugned law and say, Parliament said X and therefore that is the criteria which is available without actually stopping and asking yourself, what is the essential meaning of the head of power as you would with any other analysis of a legislative head of power.

MR DONAGHUE:   Well, two points ‑ ‑ ‑ 

GORDON J:   One does not start with a blank page, one starts with something which says, what is this head of power and what is the connection?

MR DONAGHUE:   But one applies ‑ ‑ ‑ 

GORDON J:   One cannot – Parliament cannot, in a sense, “I would have chosen criteria, therefore”.

MR DONAGHUE:   No.  In my submission, Parliament can say “I have chosen criteria, therefore”, as long as the criteria are not contrary to the Pochi limit.  So, the Pochi limit bites at the evaluation of the criteria Parliament has chosen.  It does not bite at the individual facts and circumstances of the person, and it does not mean that one can bypass the law, the criteria set in law, and go straight to an answer about alienage irrespective of the way that Parliament has treated the person.

GLEESON J:   Would one way of looking at this question of essential meaning be less about looking at the essential meaning of the word “aliens” and looking more at the essential meaning or concept of giving a legislative power with respect to aliens and naturalisation, and by that what I mean is that the essential meaning of the power might be to give effect to the right of a sovereign state to control who and what enters the sovereign country?

MR DONAGHUE:   One could - if one wanted to say, well, the essential meaning of the power is to allow Parliament to determine who will be members of the Australian community and who will not, subject to some limits, then that is the effect of the settled understanding of the power that I am putting to your Honour, very much that.

KEANE J:   It certainly would be a preferable approach than leaving the question as to who are the members of the Australian political community to the Court.

MR DONAGHUE:   Yes, or indeed to the elders of a traditional community – both of those things.  All of that is connected, I think, with the proposition that status determining powers such as the aliens power are in common with other categories of juristic application as was explored by your Honour Justice Gageler in Love at paragraphs 84 to 88, I think, and also by this Court in the Same Sex Marriage Case.  It is not heretical to allow Parliament some leeway to define the content of these legal constructs, including formal membership of the Australian community.

GORDON J:   My only problem with that is this, Mr Solicitor.  Take the marriage.  We now know that as a result of the Same Sex Marriage Case it is a union between two people.  It evolved.  But it has a core meaning, and the core meaning is identified.  The question here is whether the same approach is to be adopted here, and that is the issue. 

MR DONAGHUE:   But it does not have a core meaning that the Court can determine independently of the law that Parliament has passed. 

GORDON J:   Well, that is the question.  The question is whether or not Parliament can dictate the content of it subject to the Pochi limit, and the question is how you give metes and bounds and give some meaning to that Pochi limit.  You say it is identifiable by reference to – as I understand your submission – tests which existed at the time of Federation and someone – somehow one picks up one or more of those, and that is sufficient to justify or attach the impugned law to the head of power?

MR DONAGHUE:   I say that the ordinary understanding includes at least those things, yes.

GORDON J:   The only question here is whether or not the position of the First Nations people in this country is also to be picked up by reference to the analysis that was undertaken by the majority in Love and Thoms to be another category of test available to take them outside the aliens power. 

MR DONAGHUE:   Which, in my submission, has to be applied at the level of saying that Parliament’s decision to treat people born outside of Australia as aliens, unless they apply to register under one of the various pathways made available, was a decision that took it outside – that treats as people – treats as aliens people who could not possibly answer that description.  So, it requires acceptance of the proposition that adoption of criteria that were used by the common law for hundreds of years was adoption of something that could not possibly answer the description.  That is, in our submission, why Love was wrong, with respect. 

Your Honours will have noted in our friend’s submissions, particularly – this is the respondent’s submissions – particularly at paragraphs 70 and 71, a direct attack on the settled understanding as articulated in Chetcuti, that is, they say statutory citizenship is not the determinant of alienage.  In our submission, that attack rather highlights the tension between the majority approach to Love and the settled understanding in Chetcuti, which was building – Chetcuti at 12 was building on Shaw and Te and Nolan. 

GLEESON J:   Mr Donaghue, would you agree that Justice Bell – Justice Bell’s reasons reflected that settled understanding?

MR DONAGHUE:   Justice Bell’s reasons – Justice Bell and Justice Nettle’s reasons were, in my submission, closer to acceptance of the settled understanding and applying the Pochi limit to the criteria.  I think that that is – Justice Gordon and Justice Edelman at – I will just give your Honours references given the time – but Justice Gordon at 300 to 305, and 325 to 334, and Justice Edelman at 394 and 433 to 437, directly criticised the idea that statutory citizenship has a bearing or controls the meaning of the word “aliens” to alienage status, in my submission – and that is the line that our friends for the respondents develop. 

The contrary understanding is articulated by your Honour the Chief Justice at paragraphs 5 and 10, in particular Justice Keane at paragraphs 166 and 172 and Justice Gageler at the greatest length at 184 to 194, 100, and especially at 131 to 132.  Could I just take your Honours to that last passage that I mentioned – Justice Gageler at 131 to 132. 

EDELMAN J:   Just while you do, Mr Solicitor, can I just understand that you are saying that the statutory concept can control the constitutional concept?

MR DONAGHUE:   If the statute is valid, it controls.  So, one tests the validity of the criteria setting law against the Pochi limit and if the statute is valid, it controls.

EDELMAN J:   But, if the statute is valid, it does not need to control.  If the statute is valid, it is valid.  The only question is whether or not the statute falls within the head of constitutional power.  To use your example of marriage, for example, if Parliament purported to pass a law saying that marriage is now for a period of one year or that a person can marry a corporation or a non‑human animal, it is very difficult to say that would be consistent with the marriage case – that that law would be within a head of power.  Your starting point is whether the law is valid.

MR DONAGHUE:   But, your Honour, the marriage case accepted that that that same‑sex marriage was within the reach of the marriage power but did not have the consequence that the Court could itself have decided that a same‑sex marriage was a valid marriage.  All it did was decide a question as to the ambit of the legislative power and the content of marriage within that depended on the judgment that Parliament had made as to how marriage was to be defined.  So, the definition – the parliamentary definition – was critical to the meaning of the legal status even though this Court policed the boundaries or identified the boundaries of the phrase.  The aliens power is the same, in my submission.

EDELMAN J:   Yes.  I do not think any of the judgments in Love were saying anything different from that.

MR DONAGHUE:   With respect, your Honour, in judgments that say we will focus on a question of the ordinary meaning of the term and ask, is a person who satisfies the tripartite test a belonger or an outsider, or foreigner for the political community, that is a question that applies the constitutional term to determination of status in a fairly direct way, rather than by saying, has Parliament impermissibly adopted – or has adopted criteria that cannot, on the ordinary understanding of the word, be met. 

In my submission, that difference is a critical one because when one looks at the law that Parliament has passed to determine status – the Citizenship Act – no one suggests that its criteria are outside the ordinary understanding of the word. Our friends do not attack those criteria. They want instead to carve out particular people from Parliament’s general determination of status. In my submission, that is what cannot be done because the Pochi limit is not a limit of that kind.

KIEFEL CJ:   What you are saying, I take it, Mr Solicitor, is that the Court does not state the constitutional question of what is - a constitutional question, probably not the correct one – what is an alien and answer it for itself?

MR DONAGHUE:   Precisely.  It asks can Parliament treat this category of people as an alien and if the answer is it can, then their status depends totally on Parliament’s judgment to Parliament’s choice – as long as you are within that limit.

GAGELER J:   It seems to me, Mr Solicitor, that that is exactly what Chief Justice Gibbs was talking about in Pochi v MacPhee.  He was talking about the limits of the legislated criteria.

MR DONAGHUE:   Yes.

GAGELER J:   He was not talking about some independently existing class of persons able to be determined quite separately from the application of the common law or some applicable legislation.

MR DONAGHUE:   Your Honour, I entirely agree with that.  I absolutely agree with that.  Equally, in my submission, the analysis and the references I just gave earlier, but, particularly, your Honour Justice Gageler at 131 and 132 are to exactly that effect and we respectfully adopt the analysis there.

I have failed in my time management, your Honours, so I might – with reference to our oral outline – largely rely upon, or just rely upon our written submissions and the pinpoint references that I have given in the oral outline with respect to the points made in paragraphs 9, 10 and 11 – which is not to downplay the significance of those points.  Can I say something brief about 12 – which is this.  Our friends have, we respectfully submit, correctly acknowledged in paragraph 75 of their written submissions, in footnote 140:

It is inimical to modern sensibility to make distinctions based on ‘race’, but it has to be recognised s 51(xxvi) and the repealed s 127 both referred to race in connection with Australian Aboriginals.

We respectfully agree that, notwithstanding the evident difficulties attending the concept of race, it is a constitutional concept.  It is there in the head of power in section 51(xxvi).  It is plain from the decisions of this Court, including the Native Title Act Case, that the Aboriginal people of Australia are, for constitutional purposes – or 51(xxvi) purposes – a race.  That was the basis upon which the Native Title Act was upheld.

Indeed, the whole point of the amendment in 1967 excluding words from section 51(xxvi) was to empower the Parliament to make laws with respect to Aboriginal people – the tripartite test, as Justice Deane first articulated in Tasmanian Dams being an attempt to define the ambit of the race power.

That matters in this case for a textual constitutional interpretation reason, which is that once it is recognised that people who meet the tripartite test endorsed in paragraph 81 of Love are a race for the purposes of 51(xxvi) of the Constitution, it must logically follow that to exclude those very same people from the reach of section 51(xix) is to introduce a limitation on legislative power that is at least partly based on race.

EDELMAN J:   Mr Solicitor, you are going to have to tell us what “race” means then.  In the context of 51(xxvi) it may be a very difficult concept to understand, now that we have moved away from understandings in 1901, but if you are going to make the submission in relation to Aboriginal people that those people are a race, you will have to tell us what “race” means.

MR DONAGHUE:   Your Honour, with respect, in my submission, I do not need to take on quite that task.  All I need to do is to say that, because the Native Title Act has been upheld, in part on the basis of the race power, as a mechanism for granting various statutory rights to people who include people who satisfy the tripartite test identified by Justice Brennan in Mabo, those people must be a race – whatever the outer boundaries of “race” mean.  It just follows from that case that that definition must identify people who are people of a race for constitutional purposes.  The textual point we make is that to use the same criteria as a limit on 51(xix) is therefore at least in part to reintroduce a limit on power of the very kind that the people of Australia removed in the 1967 referendum.

Now, it may well be the case that the tripartite test is not, as your Honour Justice Gordon explained in Love, at 370, not just about race, it is also perhaps about other things.  But, in our submission, the effect of the 1967 referendum was to remove a limit on 51(xxvi) with the consequence that it was within the power of the Parliament to make a racially‑based law if it chose to do so, although of course the Parliament in doing that is subject to the constraints of the political process. 

It is quite a different thing, in our submission, for this Court – by a process of judicial implication or interpretation – to introduce into the Constitution a limitation of that kind, particularly when an equivalent exclusion from legislative power was removed.  So, in our submission – and this is a point that your Honour Justice Gageler made in, we respectfully submit, very strong terms in paragraphs 126 and 133 of Love, and your Honour the Chief Justice at paragraph 44, and your Honour Justice Keane at 147, 177, 210 picked up that theme, and we submit that those observations point powerfully against a process of constitutional interpretation that limits Commonwealth legislative power in the way that I have just described.

Conscious of the time, your Honours, and my undertaking to deal properly with competency of the appeal, can I turn to that question. The respondents, as your Honours will have seen in writing, rely upon an English common law rule to the effect that there can be no appeal from the grant of a writ of habeas corpus unless it is granted in the clearest terms and then they say section 24 of the Federal Court of Australia Act is not sufficiently clear, and because section 24 is not sufficiently clear they say the appeal to the Full Federal Court was incompetent and therefore because what is now before your Honours is a removed appeal from the Full Federal Court, this hearing is itself incompetent. That is the chain of reasoning.

If the point is good, then there have been a considerable number of high profile and very hotly‑fought cases over the last 20 years that were actually incompetent.  So most recently in this Court they include Commonwealth v AJL20 where, just like in this case, the primary judge had released someone on habeas, the Minister had appealed to the Full Federal Court, the appeal was removed into this Court, so exactly the same procedural pathway, and in that matter my learned friend, Mr Gleeson, and his then team did not take a competency point.

Similarly, though some 20 years ago, in a companion case to Al‑Kateb – Al Khafaji, which I will not take your Honours to, but it is volume 9, tab 52 – so in the context of the Al‑Kateb issues litigation there was a case – an appeal to the Full Federal Court that would have been incompetent if our friend’s argument is good.  The Tampa litigation culminating in the Full Court’s judgment in Ruddock v Vadarlis would have been incompetent.  The Full Federal Court’s decision in Al Masri, an appeal from a grant of habeas, would have been incompetent. 

Now, it is true that it does seem, as our friends say, that it does not appear that an objection to competency was taken in any of those cases or raised by the Court hearing any of those cases.  So, it is true strictly that they are not authorities against the correctness of the point raised against us.  But, in my submission, your Honours would not likely conclude that all of those cases were decided without jurisdiction despite the fact that this Court, the Full Federal Court, the very competent counsel arguing all of those cases, did not take the point. 

That is particularly so when one recognises that a cursory examination of the leading texts on habeas corpus identifies the cases our friends rely on, and we have given your Honours the references to that in footnote 35 of our reply.  Indeed, in this case it took about a day or two for our friends to allege that our appeal here was incompetent. 

So, it is not hard to find the authorities and yet the point has not been taken. Why is that? Well, in our submission, it is because it is a bad point for three reasons. First, it is very clear that section 73 of the Constitution conferring a right of appeal to this Court does include jurisdiction to appeal against an order granting habeas corpus.  That was decided in a case I will ask your Honours to go to very briefly in volume 4, tab 27, Attorney‑General (Cth) v Ah Sheung (1906) 4 CLR 949. It was a case where habeas had been granted by Justice Cussen in the Supreme Court of Victoria as a result of someone who had been an Australian national – I withdraw that – a long‑term Australian resident who had gone back to China, came to Australia and was administered the dictation test which he failed to pass and he was detained and Justice Cussen ordered his release, and there was then an appeal against the order releasing him. Justice Griffith said, at 951, for the Court:

We have no doubt as to the jurisdiction of the High Court to entertain this appeal. The jurisdiction conferred by the Constitution extends to all decisions of the Supreme Courts of the States with such exceptions as may be made by Parliament, and no exception is made by the Judiciary Act in cases of habeas corpus.

So, this is after Cox v Hakes was decided – the main UK case our friends rely on.  That case was followed by the High Court on numerous occasions in the decades that followed. 

EDELMAN J:   It was very carefully confined in Wall [No 1] though, was it not, and in circumstances where the case was – it is about a constitutional provision.  It is not just a grant of power.  It is also a grant of jurisdiction.

MR DONAGHUE:   Your Honour, can I come to Wall in a minute - I am about to come to Wall. In my submission, the significance of section 73 is that it is a critical contextual factor in the interpretation of section 24 of the Federal Court Act, because the moment one accepts – and I think our friends do not deny, they distinguish the section 73 cases, they do not challenge them – the moment one accepts that there is a right of appeal under section 73 from a grant of habeas it becomes impossible to contend that the existence of such an appeal is an affront on the liberty of the subject because there is an appeal. Section 73 of the Constitution gives you one. 

The question is about which court hears the first appeal. Does this Court hear the first appeal under section 73 or does the Federal Court hear the first appeal and then it comes up through the hierarchy? The existence of section 73 means that is the issue. The fundamental premise for Cox v Hakes where the court said it would – in that case Lord Halsbury said that to allow an appeal would suddenly reverse the policy of centuries.  Our submission is, well, that is just not true in Australia.  It might have been true in the UK in 1890 but it is not true in Australia.  It was not true in Australia when the Federal Court of Australia Act was enacted because there had been an appeal against the grant of habeas, at least to this Court, for 70 years at the time that section was enacted.

KIEFEL CJ:   Cox v Hakes concerned the power – the jurisdiction of the Court of Appeal.

MR DONAGHUE:   Yes.

KIEFEL CJ:   Justice Isaacs in Lloyd v Wallach explains it on the basis that there was some limitation on – expressed in the statute itself on the jurisdiction of the Court of Appeal.

MR DONAGHUE:   That is so.  I think O’Brien’s Case subsequently – which our friends also rely on – was the House of Lords version of it. But all of those appeal statutes do tend to use wide language of similar kind to the kind one sees in section 73 of the Constitution, and section 24 of the Federal Court Act uses almost the same words as section 73 of the Constitution used. 

The point in Cox v Hakes really was to say those general very wide words which, on their face, are capable of catching habeas do not capture habeas just as a matter of judicial policy.  The words were not clear enough to override what we would now call a principle of legality‑type argument.

My first answer to the objection to competency is to say whatever force that might have had in 1890, once one concedes the existence of an appeal to this Court under section 73, the whole basis for an application of the principle of legality evaporates because there is a right of appeal and we just have to say is it to the Federal Court or to the High Court and that is not ‑ ‑ ‑

EDELMAN J:   Yet, Mr Solicitor, you see Justice Isaacs who has been reaffirming for about a decade this notion of…..section 73, including an appeal from a grant of habeas corpus, saying in Wall [No 2] that O’Brien’s Case and Cox v Hakes remain fundamentally important law and represent 300 years of law.

MR DONAGHUE:   Yes.  So, your Honour, can I come then to Wall, which is in volume 12, tab 75, which is at the heart of our friend’s case on the objection to competency.

EDELMAN J:   My reference is to Wall [No 2], not Wall [No 1].

MR DONAGHUE:   I am sorry, your Honour.  I might need to come back to Wall [No 2].  Can I come back to that after the luncheon adjournment, your Honour.  If I could ask your Honours to go to Wall [No 1] first, which is the case upon which our friends expressly rely in their notice of objection to competency and ask your Honours to turn to page 249 in the judgment of the plurality. 

If your Honours can see there that what this case concerned was an appeal from the Northern Territory Supreme Court which had granted habeas requiring the release of a Mr Kim Won following its conclusion that he was not a prohibited immigrant under the Immigration Act.  That is what the Northern Territory Supreme Court had found.  So, habeas had been ordered and an appeal was brought to this Court, which is recorded at the top of 250, and an objection to competency was taken based on O’Brien’s Case, which is the House of Lords decision that approved Cox v Hakes.

The first point we note about Wall is that at the time that Wall was decided, it was thought – the jurisprudence of this Court was that Territory courts did not exercise federal jurisdiction.  That is the understanding expressed in cases such as Spratt v Hermes and Capital TV was the understanding, so in this context this was thought to be an appeal – or seems to have been thought to be an appeal where the Court was not exercising federal jurisdiction. 

If it had been exercising federal jurisdiction, then an appeal would have lain to this Court under section 73, because section 73 confers a right not just from the Federal Court or a State Supreme Court, but from any other court exercising federal jurisdiction. So, if the Northern Territory Supreme Court had been thought to be exercising federal jurisdiction, the lens would have been a section 73 lens, and Ah Sheung would have governed. 

But, because it was thought at the time that Territory courts did not exercise federal jurisdiction, 73 was not engaged, and that explains why in the middle of page 250 the focus is not on section 73 but on the Supreme Court Ordinance 1911, which was thought to be the relevant law that conferred the right of appeal, and it did it in broad terms – apparently broad terms.

But because the Court was not, as it understood it at that time, in a constitutional context, it proceeded on the basis – and you can see this at about point 5 on the page – that it was bound by the rule laid down by the House of Lords to find that a provision couched in the terms of Ordinance No 10 did not confer a right of appeal.  So, that was what happened in Wall, and when you go to the top of the next page at 251, or the last line of that page:

In the next place the appellant relied on a case in this Court, Attorney‑General v. Ah Sheung -

which had been followed in Lloyd v Wallach, approved by Justice Isaacs in subsequent cases, and it was said:

It is enough to say that Ah Sheung’s Case dealt with the judicial power of this Court under Chapter III of the Constitution, and with that power only.

So, the High Court cases are set aside on the basis that, well, this case, Wall, is not about federal jurisdiction, and so section 73 did not apply directly and it did not apply contextually, it just did not apply, as the Court understood it.

We make two points arising from that.  First, in this case, obviously Justice Derrington was exercising federal jurisdiction - she was in the Federal Court.  Wall (No 1) is distinguishable on the basis that this case did involve an exercise of federal jurisdiction, and so section 73 was contextually engaged, and the question was just do you go directly to this Court under 73 or do you go via the Full Federal Court under section 24? So, Wall is distinguishable for that reason alone.

The second point, though, is that this Court’s jurisprudence about Territory courts and the exercise of federal jurisdiction has evolved so that the Court now recognises that even though Territory courts do not only exercise federal jurisdiction, they can exercise federal jurisdiction, and because Wall was a case about the Commonwealth Immigration Act, it was a case which the Court would now analyse consistently with cases such as Bradley and GPAO and Eastman as a case involving federal jurisdiction so that, in our submission, Wall would not be decided in the same way as it was decided there now, because it has been overtaken by this Court’s understanding of the federal jurisdiction exercised by Territory courts, which means that the very basis at 251 that Ah Sheung was distinguished, it was said, well, this is not a case about Chapter III, that would now be seen to be wrong.  It was a case about Chapter III, it should have been understood as a case about Chapter III.  So, your Honours cannot safely apply it.

GAGELER J: Mr Solicitor, I may be misunderstanding your submission, but are you saying that an appeal would lie directly from the decision of Justice Derrington under section 73 of the Constitution?

MR DONAGHUE: Unless excluded – and this is a point I am going to come to in a moment – unless excluded as an exception or regulation under the opening words of section 73, it would.

GAGELER J: Yes, it would, but for, perhaps, section 33 of the ‑ ‑ ‑

MR DONAGHUE: I know I need to deal with section 33, but ‑ ‑ ‑

GAGELER J: ‑ ‑ ‑ which is part of the context in which section 24 has to be considered.

MR DONAGHUE:   Quite so, your Honour, but in this way, though, that if one reads 24 and 33 together, prima facie, if our friends are right, the consequence is that by enacting the Federal Court Act, Parliament was seeking to take away a right of appeal that had existed since Ah Sheung up to the enactment of the Federal Court Act, because there could have been appeals against grants of habeas, at least from the start, according to Ah Sheung, and then it would be said by enacting these general provisions in the Federal Court Act, that right of appeal was excluded.  So that you can get cases like Justice Derrington in this case, or Justice Bromberg in AJL20, deciding points of constitutional law that cannot be appealed anywhere.  They can never come to this Court.

GAGELER J:   Mr Solicitor, when you come to this, I would be assisted by your views on Davern v Messel and the way in which section 24 was confined in a way that section 73 would not be confined.

MR DONAGHUE:   I appreciate that our friends are relying on Davern v Messel and Thompson against us and I will deal with that after the break.

GORDON J:   Do you propose to come back to the 24/33 problem?

MR DONAGHUE:   I do. 

GORDON J:   So, I think there are three questions that I have – the two raised by Justice Gageler – that is 24 and the 33 and the Davern question.  Secondly – and it may be that the third question is subsumed by the first – and that is this idea that there is some direct right of appeal under 73 – which is the way I had understood that you are putting ‑ ‑ ‑

MR DONAGHUE: Your Honour, in my submission, if there was no section 33 – and our friends are right about section 24 – there would be a direct right of appeal because ‑ ‑ ‑

GORDON J:   I would like to understand that because I do not understand that either.

MR DONAGHUE:   Yes, okay.  Your Honours, I have not tracked as well as I would have liked. 

KIEFEL CJ:   I think that is understandable, Mr Solicitor.

MR DONAGHUE:   If your Honours were prepared to start 15 minutes earlier, I would be grateful for that but, I will try and catch up the time, if not.

KIEFEL CJ:   Yes, I think in the circumstances we should do that.

MR DONAGHUE:   Thank you, your Honour.

KIEFEL CJ:   The Court adjourns until 2 o’clock.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:    Thank you, your Honour.  Your Honours, can I conclude my submissions on the objection to competency by dealing with the three matters raised by your Honours with me before lunch, before making some very brief submissions about leave to appeal and then handing to Mr Lenehan. 

Can I start, in responding to the questions about 33 of the Federal Court Act, by inviting your Honours to take up that Act, and to turn first to section 24? The Federal Court Act is in volume 1, tab 5. Your Honours will appreciate that ultimately at the heart of the objection to competency the Court is confronted with the question as to the interpretation of section 24 – does section 24 confer a right of appeal to the Full Federal Court or not?

The submissions that I have made so far about section 73 of the Constitution were directed to suggesting that section 73 provides a powerful contextual factor relevant to the interpretation of section 24 that is not present in the United Kingdom, because it means that there is a source of appeal subject to statutory exclusion whether or not section 24 includes an appeal of the kind now in question.

EDELMAN J: Although section 24 borrows the words of the Judicature Acts, and not the words of the Constitution. 

MR DONAGHUE: Your Honour, section 24 uses the word “judgment” and the word “judgment” is defined in section 4 to mean:

(a)      a judgment, decree or order, whether final or interlocutory; or

(b)      a sentence -

So, it borrows the words of section 73 when that definition is read into section 24. When one goes to section 24, you see in 24(1), you see in the most general of terms a conferral of jurisdiction on the Federal Court to hear:

(a)appeals from judgments –

as defined:

of the Court constituted by a single Judge exercising the original jurisdiction of the Court - 

With those words in mind, if your Honours then go on a few pages to section 33 of the Act, dealing with appeals to this Court, there is a recognition in subparagraph (1) of the:

jurisdiction of the High Court to hear and determine appeals from judgments of the Court . . . subject to the exceptions and regulations prescribed by this section.

So, what one sees in the balance of section 33 are exceptions or regulations of the kind permitted by the opening words of section 73 of the Constitution.  The first of those exceptions:

an appeal shall not be brought to the High Court from a judgment of the Court constituted by a single Judge exercising the original jurisdiction of the Court.

That is, mirroring words to the language of the conferral of appellate jurisdiction on the Full Court by section 24(1)(a). It is exactly the same language.

So, in our submission, what one sees in the scheme of those two provisions read together is a grant of a particular category of appellate jurisdiction to the Full Court, that being appeals from exercises of original jurisdiction by judges in the Federal Court, and a subtraction of that same appellate jurisdiction from the jurisdiction of this Court with the practical result that one has a pathway of appeal from a single judge in the Federal Court via the Full Court in that 33 prevents you leapfrogging the Full Federal Court by excluding the appellate jurisdiction of this Court under 73 so that the practical effect is that you have to go to the Full Court under 24, and then you can go to this Court under 73, in that way avoiding the exclusion in subparagraph (2), because subparagraph (2) is just about excluding appeals from original jurisdiction. 

What our friends invite by the objection to competency is a construction of the Act whereby more is taken away than is granted.  They invite your Honours to say 24(1)(a) does not include appellate jurisdiction against a grant of habeas, but the same words in 33(2), seemingly, do exclude an appeal in respect of habeas with the result that, instead of an enactment of the Federal Court Act re‑routing appeals through a newly‑created mechanism, the Full Court of the Federal Court, one ends up with the situation where the ultimate appellate jurisdiction of this Court is less than it was before because while before the enactment of the Federal Court Act we know from Ah Sheung that you could bring an appeal to this Court from a grant of habeas, it said that by interposing the Federal Court into the equation, you end up with the situation where appeals of that character can no longer be brought to this Court because they start with a single judge in the Federal Court and then they cannot go anywhere else.  There is no appeal to the Full Court – because of 24(1)(a) – say our friends – and there is no appeal to this Court, because of 33(2).

So, the apex position of the Court created by section 73 to determine amongst other things important constitutional issues of the kind raised by this appeal and of the kind raised by AJL is lost.  You can never bring a constitutional case to this Court if the constitutional case happens to be a habeas case.

That is a possible outcome that Parliament could have achieved but, in our submission, there is nothing at all in the text of the Act – or in its extrinsic materials – that would suggest that the creation of the Federal Court and the appellate structure that you there see was intended to take something away from this Court.  Rather, one sees instead ‑ ‑ ‑

EDELMAN J:   Does that mean, Mr Solicitor, that a right to appeal from an acquittal has not been taken away?

MR DONAGHUE: No, your Honour, that is the other point I need to come to. Sorry, I think that the correct answer to your Honour’s question is this Court has said that – your Honour says the right to appeal instant acquittal – it is not clear that there is any such right, separately from section 73. Section 73 has been interpreted as extending to such a right but then this Court has stated a prudential rule that it would only be in the most extraordinary circumstances that that would be allowed to occur.

So, in that respect – and I am going to come to this when I come to Davern in just a minute – we submit that the position on appeal against acquittal is quite different from appeals against habeas because while appeals against acquittals were unknown, appeals against habeas were not.

The first point I really wanted to make by reference to section 33 is that because the effect of 33(2) will be inconsistent with the apex role of this Court in, amongst other things, constitutional cases, that is a reason not to interpret 24(1)(a) restrictively, but instead, recognising that it uses – when you pick up the definition of “judgment” – the same language as section 73, it should instead be interpreted as co‑extensive with section 73 with the practical result that appeals against habeas must go first to the Federal Court before they can come to this Court, rather than as preventing an appeal to any court ever. That is my first submission.

Can I then deal with the question I was asked before lunch about Davern v Messel (1984) 155 CLR 21 and ask your Honours to take up that case, which is in volume 7, tab 41. This is a case, as your Honours may recall, where the majority of this Court held that the same provisions with which your Honours are now conferred, 24(1), did confer on the Federal Court power to hear and determine an appeal by the Crown from a decision given by a Supreme Court of a Territory quashing a conviction on appeal – that is, it conferred a right of second appeal.

So, the rule against double jeopardy, which is understood as preventing a first appeal against an acquittal absent a sufficiently clear intention, applies. Section 24(1) does not confer a right of first appeal of that kind – that is Thompson v Mastertouch – but it does confer a right of second appeal.  In the course of so holding, if your Honours could turn first to page 33 of the judgment in the judgment of Chief Justice Gibbs, his Honour’s analysis – having discussed Thompson v Mastertouch – recognised that:

If Mastertouch is wrong –

I am reading about five lines down on page 33:

it would seem to follow that s. 24 would give an unqualified right of appeal to the Federal Court from a judgment of acquittal based on a jury’s finding of not guilty . . . that would be an unprecedented legislative innovation, at least in England or Australia. I accordingly respectfully agree with the conclusion of Deane J. in Thompson –

That, no doubt, is true in relation to appeals against acquittals by a jury. But it is not true of appeals against habeas. It would not have been an unprecedented legislative innovation to confer a right of appeal of that kind. To the contrary, not only were they well known under section 73, for the reasons I have already canvassed, but they had existed in the United Kingdom for over 15 years under UK legislation. They existed in New South Wales under New South Wales State legislation. We have given your Honours the reference to provisions in our reply in footnote 31 to the provisions that granted statutory appeals of that kind.

GORDON J:   Mr Solicitor, is that not because the statutes expressly addressed that very question?  Does that not work against your argument?  In other words, if you take the 24 language being general, as you have submitted, is it not that the provisions which you identify – both in relation to the United Kingdom as also New South Wales – recognise that you actually needed positive legislation to deal with the issue.

MR DONAGHUE:   Certainly, your Honour, it is true that those acts did expressly confer rights of appeal of that kind.  I accept that that is so.  But, in my submission, when your Honours are confronted with – there cannot, in my submission, be any doubt that just, as a matter of general language, 24 is wide enough to include an appeal against a grant of habeas.  So, the question is whether you apply a principle of legality‑type idea to that wide language to confine it.  In Mastertouch, one of the reasons it was confined was that it was said if you do not confine it, you would be granting an appeal of a kind unknown to the law.

EDELMAN J:   But, Mr Solicitor, the appeals from habeas – an appeal from a grant of habeas, historically, was effectively – an application to review a grant of habeas was effectively an appeal from an acquittal because the habeas order was the way in which a conviction was reviewed before appellate courts existed.

MR DONAGHUE:   Yes, your Honour.

EDELMAN J:   That is why all these immigration cases that involve appeals from habeas cases are also appeals from acquittals.

MR DONAGHUE:   Your Honour, one of the problems with relying on the old cases is that I think – your Honour may know better than me – but I think it was in 1907 that the criminal appeal legislation first commenced, and one had a statutory regime replacing the old procedural mechanisms by which convictions could be reviewed.  One had, in that context then, questions as to the extent of the right that had been conferred and how these common law rules were to interplay with that. 

Here, we are concerned with an act that was passed in 1976 and the legislative context in 1976 was far removed from the legislative context in 1890 when it was possible to say these appeals are unknown.  In respect of appeals against acquittals, the same kind of remark as was made in Cox v Hakes could still be made – as it was in Davern v Messel.  But it could be made about habeas because, by that point in time, whatever the historical position might have been, legislatures had recognised that in appropriate circumstances there could be an appeal against ‑ ‑ ‑

EDELMAN J:   But legislatures have done that for just as long in relation to appeals against acquittals.  There have been appeals against acquittals by magistrates, there have been appeals against acquittals in certain limited circumstances, but the rule that has existed for 200 years is a rule which says you do not read those general words as getting rid of appeals against grants of liberty.

MR DONAGHUE:   Well, your Honour, my submission in that respect is that that rule has existed for a long time in England.  It was the rule that was relied upon in Ah Sheung to say that section 73 did not extend to an appeal against a grant of habeas, and the Court said we have no doubt that section 73 does, that is, the general language of section 73 did extend.

Now, that being so, the landscape was fundamentally changed from the common law that existed in the UK before that time, and here my submission is that what one saw in Mastertouch and Davern was a recognition that there was still, even in much more modern times, an unprecedented – it would be unprecedented to allow not an appeal against magistrates’ findings or matters of the kind your Honour Justice Edelman puts to me, but an appeal from a judgment of acquittal based on a jury’s finding.  That was the thing that would be unprecedented. 

Mastertouch and Davern, and you see this particularly, for example, in Justices Mason and Brennan’s judgment at page 55, was expressly based upon, it is said - at page 55, about six or seven lines down:

The main foundation for the principle as it has been expressed is the rule against double jeopardy –

and Justice Murphy said something similar at 62.  In our submission, the explanation for these cases is that, bearing in mind that they are based upon principle of double jeopardy, it is the appeal itself, the right of appeal itself, that is understood as infringing that principle, a right of an appeal against acquittal, and so, there being a substantive principle of law against double jeopardy, the law that might remove that principle, that is, the law that confers jurisdiction to appeal, is the law that needs to be subjected to scrutiny against a principle of legality‑type standard.  You ask, is this statute clear enough to override the substantive rule or right in question?  Here, the principle against double jeopardy.

You cannot apply that analysis to habeas, because of course liberty is an important interest, obviously so, but the point that the principle of legality has implied is engaged in respect of the liberty interest is the point of the law that deprives a person of liberty, here, 189.  Of course the statute must be sufficiently clear to effectively deprive a person of their liberty read against principle of legality, but if it is sufficiently clear to deprive a person of their liberty, as we submit 189 is, then it goes too far to say that even if a court releases a person contrary to the requirements of that very clear law that authorises the deprivation of liberty, even if a court incorrectly applies that law, the liberty of a person who should not have been at liberty, had the law been correctly applied, has to be protected by preventing the correction of that error.

That is, it is a double application of the principle of legality and it is one that has the result of protecting a liberty interest that should not exist, had the law been properly applied.  That kind of analysis or discussion just has no mirror or reflection in Mastertouch or Davern because there, there is a substantive principle against double jeopardy that has no analogy here.

KIEFEL CJ:   Mr Solicitor, looking at the decision itself to grant habeas, does it matter if the decision made in the federal jurisdiction granting habeas is affected by jurisdictional error?  Does it alter the debate at all?

MR DONAGHUE:   If it were, your Honour, it would, because one could come directly to this Court under section 75(v), so had Justice Derrington made a jurisdictional error then the competency question could have been sidestepped ‑ ‑ ‑ 

KIEFEL CJ:   Does it not follow from, at least part of your argument, that her Honour did?

MR DONAGHUE:   Well, yes, your Honour, that may be so, I suppose.  We did not procedurally frame the proceeding ‑ ‑ ‑ 

KIEFEL CJ:   It is not an argument you have developed ‑ ‑ ‑ 

MR DONAGHUE:   No.

KIEFEL CJ:   ‑ ‑ ‑ but it is just theoretically possible.

MR DONAGHUE:   It is theoretically possible, and the point your Honour makes I would respectfully adopt in that it is a further contextual reason in this constitutional scheme to say that decisions of this kind just are not immunised for review when one looks at the constitutional context in which they are made.  Your Honours, can I very briefly deal with the last question that I need to address, which is the leave to appeal question.

STEWARD J:   Mr Solicitor, I am so sorry, just before you move on.  Does section 40, the removal power, have any role to play on this question of competency and, in particular, section 40(3)?

MR DONAGHUE:   If your Honour would give me one moment.

STEWARD J:   I am also thinking of the decision of this Court in O’Toole v Charles David where the Court said that this Court would have jurisdiction even if the point was it could not be subject of a valid appeal.

MR DONAGHUE:   Your Honour, I might need to give that more thought.

STEWARD J:   Sure, of course.

MR DONAGHUE:   In respect of section 40(3), it appears to be concerned with ensuring that this Court has jurisdiction in respect of a matter removed into it under subsection (2), which is necessary because the Court might not otherwise have jurisdiction co‑extensive with the jurisdiction of the lower court exercising federal jurisdiction.  Here, we removed under 40(1), a matter arising under the Constitution, and there was a grant of original jurisdiction under, I think, section 30 of the Judiciary Act.  So, we would not need that additional grant of jurisdiction.

I confess, we have been analysing this on the basis that I think is the premise for our friend’s argument, that if the matter could not properly have been appealed into the Federal Court then we could not have removed the appeal.  I would like to reflect on whether the cases that your Honour mentions have a bearing on that implicit concession.

STEWARD J:   Very well, then.  Thank you.

MR DONAGHUE:   On the leave to appeal question, this arises because our friends assume that the order granting habeas was an interlocutory order.  There are certainly cases in the Federal Court that would support that assumption, that there are some statements in the authorities that would point otherwise, including Chief Justice Gleeson in Al‑Kateb at paragraph 26, who speaks there of the order that the High Court was asked to make as a final order granting the liberty of the subject.

With many issues thrown up by the case we have not invited your Honours to plunge into the weeds of that because, in my submission, there are two more straightforward paths home.  The first is that even on the assumption that the order is an interlocutory order and is therefore subject to the requirement in 24(1A) that there needs to be leave, that section is itself subject to 24(1C) that says leave:

is not required for an appeal from a judgment . . . that is an interlocutory judgment:

(a)      affecting the liberty of an individual –

There is authority, Full Court authority in the Supreme Court of Victoria, which we have given your Honours – it is Ryan v Attorney‑General (1998) 3 VR 670 in volume 18, tab 115, where Justice Ormiston and Justice Phillips both gave some attention to a Victorian Supreme Court provision in relevantly the same terms. If your Honours could go very briefly to Ryan, you will see first at page 672 - and most of the discussion on 672 and the top of 673 is relevant to this question. You can see there is the Supreme Court provision that is the equivalent of 24(1C) set out or paraphrased by his Honour at about point 4 of the page. He says just under that paraphrasing that he would give the ex pression “as broad a meaning as practicable”, and then at about point 7 there is a – well, I will not read it all to your Honours – he refers to:

direct incarceration or otherwise or where the order authorises the deprivation of a person’s liberty –

There is then a reference to an earlier judgment in Marriner v Smorgon which is distinguished on the basis that there it was said – and I am looking here only about five lines up from the bottom of the page:

Murphy J. was able to say that he was “not imprisoned, nor is he under threat of imprisonment, by reason of the warrant” . . . Moreover, as was said in the same judgment at 505, the expression must “be construed to encompass only cases where the personal liberty of a natural person is to be affected by the outcome of the appeal”.

In our submission, this is a case where by this appeal the respondent is under threat of imprisonment and his liberty may be affected by the outcome of the appeal, because if the appeal is allowed he will be re‑detained.  Justice Phillips was even clearer that the section goes both ways in effect, that is, that something affects the liberty of the subject, whether it is an appeal against the grant of habeas or an appeal against its refusal.  At 681, about point 4, his Honour says:

Clearly the order of confirmation which was made by the judge did not, in terms, deal with the appellant’s liberty; by that order his liberty was not, in terms, either granted or withheld.

So, his Honour Justice Phillips plainly considered that either the granting or withholding of liberty would engage the exception.  For that reason, we say we do not need leave.  In the alternative, if leave is needed, in our submission this is clearly a case where it should be granted.  It is a matter where, for the reasons I have already developed, the decision under appeal is attended with sufficient doubt to warrant its reconsideration.  The appeal raises questions of wide public importance.  It has been fully argued or will have been by the conclusion of the appeal, including by relevant interveners and, in our submission, substantial injustice would result if leave is refused, it being sufficient to make that good that the intention of the Parliament that all unlawful non‑citizens be detained would have been frustrated by the order that was made.  So, if leave is needed, in our respectful submission, it should be granted. 

Unless the Court has any questions, I would ask Mr Lenehan to address your Honours on the balance of the appeal.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.

MR LENEHAN:   Your Honours, in addressing ground 1b and 2 of the notice of appeal, we of course proceed on the basis that, contrary to the submissions that the Solicitor‑General has just made, Love was correctly decided, and in addressing our grounds on those points I am essentially going to be making five propositions. 

The first is that there is no universal, call it “one size fits all” test of aboriginality and it follows from that that a test appropriate in some contexts may be entirely inappropriate in others.  The second point follows from the first, that is, the reasoning of the majority in Love is therefore not correctly understood as seeking to identify universally applicable or essential characteristics of Aboriginal people.  We say it is better understood through the lens of Pochi as a means of defining a class of persons who could not possibly come within the ordinary meaning – ordinary understanding of the word “alien”.

The third point is that that test in that context properly, we say, imposes a requirement for biological ancestry from the people who inhabited the Australian continent prior to British sovereignty.  Then the fourth point is that none of that, because of what I have said about no universal test, does any violence to the law of native title or to other areas of the law where the question of Aboriginal identity is in issue.  

The fifth point is if biological descent is, for the reasons that I am about to develop, an essential requirement, it follows on the facts that Mr Montgomery’s detention was authorised by section 189 of the Migration Act.

Now, can I start with my main point, which is the point that I mentioned first, that is, no single and universally applicable definition of who is an Aboriginal Australian.  We put that at the outset because much of the criticism that is made against us on this branch of the case seems to involve two propositions.  The first is that our proposed understanding of the tripartite test does in fact involve an attempt to identify the thing that I have said is not possible, that is, a universally applicable definition, and it is said that we are attempting to impose one that is unduly narrow and which if accepted will therefore have deleterious effects on other areas of the law.

The second related criticism is that we are guilty of overlooking what seems to be said to be the true or the preferable test, which is said by our friends to require more attention to the norms and the customs of the Aboriginal community concerned.  In contrast, as I have already intimated, we say the search for any universal test is futile because, as a legal question, this kind of inquiry has always been context specific, heavily dependent upon the particular purpose and made in that inquiry. 

Can I invite your Honours to go to a useful article by Chief Justice French writing extrajudicially, which your Honours have in volume 22, tab 157.  It is entitled Aboriginal Identity – The Legal Dimension.  When your Honours have that, starting at 8528, and in the right‑hand column, and the last paragraph on the page, you will see that his Honour first makes the point that:

The non‑Indigenous comprehension of Aboriginal identity is limited.  Complete definition is elusive. 

He then develops a number of reasons for that, and amongst other things, that is because for some Aboriginal people their identity will be a product of a complex diversity of matters, some of which are obviously very personal or private.  So, towards the end of that paragraph, his Honour makes this point:

The difficulty of pinning down any single concept of Aboriginal identity across this diversity is evident.

He nevertheless goes on to refer to the idea that:

common threads of identity lie across it and are frequently expressed by Aboriginal leaders.

That is the kind of idea that your Honour Justice Gordon had in mind in Love in referring to the difference between legal concepts of aboriginality as opposed so social concepts.  If your Honours then turn the page to 8529, you will see about line 12 his Honour goes on to say:

Courts of law are not good places to decide whether a particular person or group of people answer the description ‘Aboriginal’. 

He goes on to give – to discuss some of the early statutory definitions and their interpretation, which are some of the definitions that your Honours will have seen are discussed by John McCorquodale – the 66 different definitions of Aboriginal identity.  What his Honour then says at about line 32 is that:

The interpretation of statutory Aboriginality has varied according to the context and purpose of the statute in question.  That proposition reflects an approach taken to the word ‘Indian’ in United State statutes –

referring to Vialpando, where the:

Supreme Court of Wyoming said that ‘[t]he definition of an “Indian” usually depends upon the purpose for which a distinction is made. As regards entitlements the definition of an Indian includes more people than for some other purposes.’

In the pages that follow there has been a helpful discussion of some of the Australian authorities, including his Honour’s own decision in Wouters, which I am going to come to.  But then at 8532, at about line 5, he summarises that discussion by saying this:

If one broad conclusion can be drawn from this discussion, it is that statutory concepts of Aboriginality are always going to be troublesome in terms of the challenge they pose to courts interpreting them and the reduction of a complex, multi‑dimensional human reality –

The sort of thing that his Honour talks about on the first page:

to words on paper in statutes or other legal texts.

Now, I mentioned his Honours decision in Wouters.  Your Honours have that in volume 16 and tab 84.  Could I ask you to take that up?  It is at 5906.  The full name of the case is Attorney‑General of the Commonwealth v Queensland.  The context for this decision is an issue arose as to whether the term “Aboriginal” in the Letters Patent for the Royal Commission into Aboriginal Deaths in Custody included a young man who had died in custody and had biological Aboriginal ancestry but did not identify as Aboriginal.  The primary judge accepted an argument put by Queensland essentially concluding that he was not caught by that term because he did not meet Justice Deane’s tripartite test from Tasmanian Dam.

If your Honours move in the report to 5926, which is in Justice French’s reasons, you will see under the heading “The meaning of “Aboriginal” in the Letters Patent”, his Honour traces both dictionary definitions of the term “Aboriginal” and also some of the earlier case law such as Muramats that he deals with in the article that I took your Honours to before.  Then, if you go over the page to 5937, and it is in the second‑last paragraph on that page where his Honour is discussing Muramats, he says:

In different contexts the class of persons covered by the word “Aboriginal” may expand or contract according to the purpose of the statute or instrument under consideration.

He then goes on to make a similar observation by reference again to Vialpando that your Honours saw in the article that I showed you before.  There is then a helpful discussion in what follows about the way in which that sort of contextual approach applies here, and if you go to 5928 at about line 25, you will see he is talking about:

The evolving social perception of what constitutes membership of the group called by the word “Aboriginal” and the varying contexts in which it may be used indicate the need for caution in applying interpretations adopted in all context and for one purpose to a different context or purpose.

It then refers to the ALRC report that your Honours actually have in the materials, that is at tab 126 in the joint bundle, and notes by reference to that report:

The development from early restrictive tests based on “quantum of blood” to the genetic and social indices propounded by Deane J in Commonwealth v Tasmania case is outlined.  But –

referring to his Honour Justice Deane’s test, his:

definition in that case should not be seen as representing the contemporary content of the word “Aboriginal” irrespective of context or purpose.

Now, he further develops that idea over the page on 5929 towards the end of the first full paragraph on that page, where he says:

The approach taken by Deane J may be understood as serving a broad concept of the constitutional power to make laws for the members of the Aboriginal race.

But then, for reasons that he gives in the earlier part of that paragraph, it was an inappropriate approach to apply here.  Now, the reason applying that kind of purposive approach that he said it was inappropriate was that he noted, amongst other things, that there were people of Aboriginal biological descent, like Mr Wouters, who lacked any satisfactory sense of identity and may never have been accepted as members of either community, things which his Honour thought may well arise for consideration as issues in the inquiry.  That then leads to his ultimate conclusion, which is the paragraph at about line 20 on that page:

For the purposes of the Letters Patent, the better view is that Aboriginal descent is a sufficient criterion for classification as Aboriginal.  That proposition must be read subject to the right of the Commissioner to decline to inquire into a case where the Aboriginal genetic heritage is so small as to be trivial or of no real significance –

His Honour then left open the question of whether a person with no Aboriginal genetic heritage may be regarded as Aboriginal by reason of self‑identification and communal affiliation.

The point that his Honour makes about context and the difficulties – the profound difficulties – that have attended this entire area reflect what we say is a deeper historical truth and that is the sharp separation between the indigenous and the non‑indigenous populations in this country that existed as at 1788 has long since ceased to exist. 

On the one hand today – as a matter of social reality – the distinction between Aboriginal and non‑Aboriginal people is a significant one in many contexts and for many purposes.  For example, in developing legislative responses to historical disadvantaged – the kind of situation that Vialpando plainly had in mind.

On the other hand, as a matter of practical reality, the indigenous and the non‑indigenous peoples of Australia have long since ceased to be two completely discontinuous populations.  So, we say any test whose purpose is to draw a line that separates people into those two binary categories – Aboriginal and non‑Aboriginal – is going to involve what I will call a degree of stipulation – that is, adopting certain criteria that, in some cases, will be appropriate and in other cases, inappropriate.

Can I illustrate that point by noting that every one of the elements in the tripartite test might be regarded as appropriate for defining Aboriginal identity in some contexts but not in others.  The first may well be an inappropriate element in legislation seeking to protect against discrimination – particularly discrimination on the ground of characteristics imputed to a group on the basis of some sort of collective identity.  That is the kind of case that his Honour Justice Richardson in King‑Ansell had in mind.  That is cited by our friends for Victoria at footnote 93 and by our friends from the Northern Land Council in footnote 38 of their submissions.  It is not in the joint bundle.

The second limb is patently inappropriate in the context of, say, laws pertaining to the adoption of Aboriginal children who may be too young to identify as an Aboriginal person.  That is the kind of case discussed in Hackett – which your Honours have in the joint bundle at volume 17, tab 96. I do not need to take your Honours to that.  The third limb may well be inappropriate in a case like Wouters – the situation that I have just taken your Honours to. 

So, we would take from all of that – and this is my overall point on my first proposition – that it is an error to assume that the tripartite test from Mabo (No 2) – or, for that matter, any legal test – is a definition that should, or does, capture the essential meaning of the concept of aboriginality for all purposes. 

Indeed, to make an obvious point, Justice Brennan’s tripartite test in Mabo (No 2) was not and did not purport to be a test for aboriginality.  It was a test for, of course, a native title holding group that was then found useful in Love. 

Then turning to my second point, what I want to say about Love and Pochi, we say that those observations are how your Honours should then understand how it was that the majority approached Justice Brennan’s tripartite test in that case. In adopting or adapting that test to the context of section 51(xix), a number of members of the majority were plainly aware of the point that I have just made about the difficulty in developing any universal test.

That is why – in the passage that I referred to before from your Honour Justice Gordon’s reasons – your Honour made the point that the tripartite test was addressed to the legal conception of aboriginality and immediately went on to distinguish that from the idea of social concepts – which your Honour specifically said may differ or may be broader.

Your Honour Justice Edelman at paragraph 458, likewise saw the tripartite test as a test that could be usefully applied in this context – expressly stating that the test was not set in stone.  We say that that indicates that the point being made by their Honours was not to seek to identify the essential characteristics of Aboriginal people in a universal fashion.  The point was, rather, to identify a particular class of persons who lay beyond the Pochi limit. 

So, we say the tripartite test in this context is to be understood as a statement of criteria which be, if your Honour Justice Gordon and Justice Nettle were necessary criteria – see paragraphs 271 and 367 – how those were to be applied to identify a class of persons who Parliament cannot treat as aliens.  I will come back to the significance of that in a moment.

Can I first say something more about the word “biological” and make the obvious point that first the compound phrase “biological descent” is clear and unambiguous.  We say it requires that the person in question be a biological ancestor from another person and so that, we say, is a narrower concept than ideas which your Honours will see in both Hackett and the ALRC report of social descent – a different concept which has in mind that one can incorporate people through social means, including by adoption.

We say those two things are different.  We accept that the tripartite test as adopted, or adapted, in Love does not require only biological ancestry from the people who inhabited the Australian continent prior to British sovereignty – that was a point that your Honour Justice Gordon specifically made in Love at paragraph 346 – but it does require some biological ancestry from those people.

That we say is clear not only from the word “biological”, it is also clear from the fact that you have a three‑limbed test and those three limbs are analytically distinct.  Understood in that way, the notion of cultural adoption, we say, properly goes to the third limb, and how a person, according to traditional law, may come to be identified by people with appropriate authority – elders – as a member of the group.  But the first limb is then to be given a distinct and separate operation and you do not collapse the two – which is what we say our friends do.

Now, returning to my point about Pochi then, the imposition of a requirement for biological descent aligns with the point that the Solicitor‑General made before regarding the nature of the Pochi limit.  To recap, it is a limit on the power of Parliament to define the criteria governing the status of aliens – the first aspect of the aliens power.  It is concerned with cases where Parliament stipulates criteria for alienage that are simply outside the range of available meanings.

Understood in that context, what was done by the majority in Love was to select the criteria for a particular group of people – Aboriginal Australians – understood in accordance with the tripartite test – who lay outside that range.  How that should then be understood is in this way.  The majority was seeking to identify a class of people who could not possibly come within the ordinary understanding of the word “alien”. 

The words “could not possibly” indicate that that class of case would be comparatively, stringently defined.  Your Honours have seen from the cases that both parties and the interveners cite that in other contexts, including in Wouters, Shaw v Wolf, Gibbs v Capewell, where it has been thought necessary for the law to specify criteria to identify Aboriginal people, descent has ordinarily been treated as a necessary and sometimes – see Wouters – sufficient characteristic for those kinds of test.  We say similarly the approach taken by the majority in Love was to define the Pochi limit on the basis that the class of Aboriginal Australians who cannot possibly come within the ordinary meaning of “alien” is limited in that way to those who can show biological descent.

Now, can I immediately accept that that then means that there are some people who meet the various broader definitions of Aboriginal Australian using different contexts that that will exclude.  But that reflects the fact that the class of persons who could not possibly come within the description “alien”, in the ordinary understanding of the word – that is a test identifying a limitation on legislative power that should be construed with all the generality that its words admit – that, as one would expect, is a narrower class than perhaps the widest definition that may be appropriate in other contexts – any discrimination law or social security legislation being obvious examples.

Now, our friends of course say either that your Honours should conclude that the term “biological descent” includes people who form part of Aboriginal society by adoption, or that alternatively that the first limb should be, they use the word “supplemented”, to extend to that situation.  We say your Honours would dismiss the first idea that “biological” does not mean what it says without giving it too much further analysis.  We say the argument then that they must make, supplementation, seems to involve the consequence that they too seek to revisit what was expressed at paragraph 81 of Justice Bell’s reasons in Love.

Now that, we say, raises a number of specific difficulties.  First, picking up the point that I made before about the structure of the test, that approach tends to collapse the first limb into the third limb, and in this context, that raises more acutely the difficulty that we have relied on in seeking to overrule Love, that is, the notion that that is – conceding the capacity to decide who is and who is not an alien to traditional societies, the point noted by a number of the members of the minority in Love.

But we say, on this view of the world, that difficulty is more acute for two related reasons.  The first reason is that exercise of authority would then become the exclusive determinant of that question, and then the second point is, because of that, the class of persons potentially included in that class of non‑aliens would be much wider.  It is not limited to persons who can demonstrate biological descent, it would potentially include any person.  Indeed, as the Solicitor‑General noted in his address this morning, on our friend’s submission, that potential class is not even limited by a requirement that such decisions be made in accordance with traditional laws and customs.  You see that point made in Mr Gleeson’s submissions at paragraph 94. 

Now, if that is right, and we say it is not, the correlative limitation on the power of the Australian Parliament to determine who will be admitted to the membership of the Australian body politic would be significantly expanded, and we say your Honours should not countenance that possibility.

EDELMAN J:   Is that right, Mr Lenehan?  Are there significant numbers of members of the community who are being culturally adopted into Aboriginal societies?

MR LENEHAN:   Your Honour, I misspoke.  I am talking about the potential, I am not seeking to quantify that.

GAGELER J:   Mr Lenehan, could we just step back a little?  As I understand the way you were putting this branch of your argument, we are somehow reading the tripartite test as an explanation of the ordinary understanding of the word, or as what is not within the ordinary understanding of the word “alien”?

MR LENEHAN:   Yes.

GAGELER J:   Is that all that we are talking about - ordinary understanding – or it would be contemporary understanding, I suppose, you mean, but are there other factors or values or considerations or aspects of traditions or history that bear upon this analysis?

MR LENEHAN:   Well, your Honour, I am dealing with the holding in Love, and I am seeking to offer an explanation of what that means by reference to Pochi.  We, of course, say that Love was wrongly decided, but assuming that it was not, then this is an attempt to offer a workable way of understanding the limit that was identified there.

GAGELER J:   So, it is the workability that you are mainly concerned with.

MR LENEHAN:   Yes.

GAGELER J:   All right.

MR LENEHAN:   Yes, it is.

GAGELER J:   Thank you.

MR LENEHAN: On that point, and the second – really, related aspect that we identify then, is how that expanded – I will call it “expanded” – constraint upon power would operate because - and your Honours have seen this in our written submissions - we say that if the limitation on section 51(xix) is made subject to a requirement for biological descent, then it means that the constraint is determined by reference to what Justice Nettle described as an objective criterion, and your Honours have seen that we say that in many cases the application of that criterion will be straightforward and perhaps applicable as a threshold criterion. For example, in this kind of case non‑satisfaction of that criterion would confirm without the need for further inquiry that the Migration Act can safely be applied according to its terms.

Now, that is obviously not so in our friend’s approach which, as I say, effectively collapses the first limb into the third.  We say those difficulties of workability are made even more problematic because it is unlikely that there will be any uniform laws and customs of Aboriginal adoption across the many different Aboriginal groups, and even within groups.  So, it becomes – getting back to your Honour Justice Gageler’s point – very difficult to state the scope of the limit with any precision.  We say those two points are points in support of our suggested insistence upon biological descent as an aspect of the test.

EDELMAN J:   Mr Lenehan, I understood the first part of your submission which effectively is that the notion of who is an Aboriginal Australian can be answered differently in different circumstances and given that a line needs to be drawn somewhere this is a line that has been drawn.  But what I do not understand is this second aspect of the submission which somehow suggests that because of difficulties in application that should dictate what the test should be.  Constitutionally, there are many, many examples of constitutional tests that are extremely difficult to apply – the implied freedom of political communication is one example.  But it is very rare to see reasoning backwards to say, well, because something is difficult to apply, therefore the doctrine needs to change.

MR LENEHAN:   Your Honour, that is obviously so, and your Honour this morning made the point about the immigration power and absorption.  The answer that I will give is the answer that the Solicitor‑General gave your Honour – that is, this power has been understood to be one that is capable of precise definition and that is how we say it should be approached.  So that is why I call in aid precision and difficulties of application.

Can I then move to a significant theme which your Honours find in both Mr Gleeson’s submission and perhaps in an even more pronounced way in the submissions of the interveners.  That is that your Honours should take something to the contrary of what I have just been putting from the native title cases. 

There are a number of important things to note about that body of law.  The first point, returning to the point that I made at the outset, is that the context of those authorities is obviously particular to now the statute, and we say different, and that then casts doubt on the analogies that the respondent and the interveners seek to draw with the native title authorities.

Your Honours will have seen that both the respondent and a number of the interveners refer to the Full Federal Court’s decision in Ward, which your Honours have in volume 20, tab 124.  I do not need to take your Honours to it.  Can I say the way the argument is put against us and then say why it is wrong?  Our friends effectively say that one takes from that that Justice Brennan did not impose an invariable requirement that there be strict biological descent, but the question in the Federal Court in Ward was whether there was a sufficient degree of ancestral connection between a collective group of pre‑sovereignty native title holders and the present group living on the same country, notwithstanding that some of the claimants trace their ancestry to members who had been incorporated by adoption.

You will recall again the point that I made before about Justice Brennan’s test being addressed to the membership of a native title holding group, not aboriginality.  In that matter then Western Australia put the somewhat extreme submission that that process of adoption had severed the requisite connection for the entire group of people.  The Full Court rejected that somewhat adventurous submission because there remained what the Full Court described as – this is at paragraph 232:

A substantial degree of ancestral connection between the original native title holders and the present community –

which the Full Court said was both necessary and sufficient.  So, the fact that the group also included adopted members who were also Aboriginal people did not sever that connection at the level of the group.  That question is entirely different to the question that arises here of whether cultural adoption is a circumstance that means that a particular individual could not possibly answer the description of an alien. 

The second point to note about the native title cases is that none of the cases that our friends have pointed to and none that we are aware of deal expressly with the situation where a person who has no Aboriginal biological descent is adopted by an Aboriginal group and your Honours would understand that quite different issues may arise where a person with biological ancestors from one traditional group or society becomes through a process of cultural adoption a member of a different group or society.  That is in fact what happened in Ward. 

The third point to note is that reference to authorities considering the statutory concept of native title are even less likely to be of any assistance in determining the extent of the constitutional limit on power and your Honours will have seen that our friends from the Northern Land Council seek to make something of the statute suggesting that our position jars with what is said to be the accepted position under the Native Title Act that the traditional titles of Aboriginal people to country derive from wider principles of descent, and I have already noted by reference to Ward that that is somewhat overstated.

Our friends then make the further point that the definition of “native title” in section 233 of the Act, which your Honours would be well familiar with, does not in terms require a biological link between the claimants and the holders of native title.  Now, that is so, but that definition in turn refers to the communal group of individual rights and interests of Aboriginal peoples and Torres Strait Islanders, and then “Aboriginal peoples” is in turn defined in section 253 of the Act to mean “peoples of the Aboriginal race of Australia”.

We say that suggests that those sorts of issues may well require consideration of whether that definition requires Aboriginal descent.  That definition in section 253 has an obvious affinity to the statutory definitions that I mentioned before, including in Gibbs and Shaw v Wolf.  It is not a question that needs to be determined here and nor does anything that I am putting bear at all on that large question because – and this is my overarching theme – the contexts are simply different. 

So, as the Solicitor‑General mentioned this morning, for all of those reasons we accept entirely everything that is put by Mr Walker and Mr Crowley’s client, being that an Aboriginal Australian is not necessarily synonymous with being a native title holder, but that in fact indicates that we are engaged in quite a different field of discourse and the analogies that our friends are seeking to have your Honours draw with the native title cases are unhelpful.

There were a number of other responses that are put to our argument.  In the interests of time I will leave most of those for reply to the extent that they are developed.  Can I just mention one point that is a theme in a number of the sets of submissions, and that is that our approach is said to create either an impossible evidential hurdle or a requirement for some evidence of genetic testing.  You see that in Mr Gleeson’s submissions at paragraph 86, in Victoria’s submissions at paragraph 45, in the Northern Land Council’s submissions at paragraph 34. 

Can I take the latter point first.  To be clear, we do not suggest that there is any requirement on our approach for genetic testing.  We do not suggest that such a test would yield any useful result.  Your Honours can see that in both the 2003 ALRC report that your Honours have in the material and also the helpful paper prepared by Dr De Plevitz.  What is required is a biological link to a person who inhabited the country before the acquisition of sovereignty and, as I have said before, the law has commonly attributed significance to such a link without this being sought to create an impossible requirement.

For a recent example where that was so in this area, see Helmbright, which your Honours have behind tab 100 - again, I am not taking your Honours to it, but can I just say this about that case?  In that case, archival evidence and oral history was able to demonstrate, with comfortable certainty, biological descent from an Aboriginal woman living in the early 1800s in circumstances where biological descent was the principal criterion applied by the Aboriginal group in question.

Now, our friends for the Northern Land Council cite the example of Shaw v Wolf, which again your Honours have in volume 19, tab 117, and I am still not going to take your Honours to it, as a case where that kind of approach was unsatisfactory.  You see that in footnote 72 of their submissions.  It is true that in that case that Justice Merkel made some observations about the requirement for descent, but notably his Honour nevertheless resolved contested questions of descent in favour of almost all of the persons claiming to be Aboriginal persons in that case.

The second point to note from Shaw v Wolf is that a large part of the contentiousness concerned not the descent limb but matters arising from the third limb of the tripartite test, formulated in that case in a similar way to Justice Deane’s wider Tasmanian Dam test.  Those sorts of difficulties do potentially involve the kind of problem that I identified before, in that case, a subjective and impressionistic series of questions as to what is the test for defining, for example, the requisite Aboriginal community and once that community is identified, how to resolve the existence of conflicting views within it.

We take from all of that that these sort of legal tests for aboriginality all have the potential to be difficult and fraught, Justice French’s point, and they all have the consequence of excluding some people who may claim to be included on a wider understanding of Aboriginal identity.  So, we accept that a person may well fail to demonstrate descent in a particular case, but those sorts of possibilities were recognised and acknowledged by members of the majority in Love, see paragraph 281 in the reasons of Justice Nettle and paragraph 368 of your Honour Justice Gordon’s reasons.

It means only that some people – and this was my point before, asserting the relevant status, that is, an Aboriginal person understood according to the tripartite test in Mabo (No 2) may fail in their claims, but those contests ‑ ‑ ‑ 

EDELMAN J:   Mr Lenehan, what do you say is the purpose of a biological link in ascertaining whether someone is an Aboriginal Australian within the Mabo (No 2) approach?

MR LENEHAN:   Your Honour, in this context, because you are talking about the Pochi limit and people who could not possibly come within the ordinary understanding of “alien”, you are looking for, as I have said before, a stringently‑defined class.  It is really that idea that we say animates the requirement for descent.

EDELMAN J:   But that could animate any idea.  I mean, that could provide any very stringent – could justify any stringent limit.  Why choose, in addition to community and self‑recognition, why choose a requirement based in biology?  What is its ultimate purpose other than, perhaps, showing strength of family ties?

MR LENEHAN:   Your Honour – and this is a point that I made before – the fact that that reflects an ordinary understanding of who are the Aboriginal people is demonstrated by the series of cases in which that has found to be either a necessary or sufficient requirement, the cases that are cited by both parties.

GLEESON J:   Mr Lenehan, do we have any information about the extent to which Aboriginal groups themselves identify biological descent as a marker of aboriginality?

MR LENEHAN:   Well, your Honour, I mentioned before that Helmbright is one example.  I am not aware, but I will have this checked as to whether there is material that we can provide the Court that would answer your Honour’s question.

GLEESON J:   As I understand it, the test was originally – or was first articulated in a Law Reform Commission report, but I am not clear about the origin of the test.

MR LENEHAN:   Your Honour, it has a slightly longer history as a test applied by the Commonwealth Executive in the wake of the removal of the limit on the races power, and the realisation that it was necessary to have a definition that included matters wider than descent.

GLEESON J:   So, it was originally devised by a public servant or a group of public servants?

MR LENEHAN:   Yes, your Honour.  Some of the history is traced, for example, by the Law Reform Commission, including in the early report, which – maybe I will just identify where that is.  You find some of that in volume 21 and 7854.  There is also a helpful discussion in the Parliamentary Library report by Mr Gardiner‑Garden which your Honours find from 8153 and following.  But a number of the reports involving papers in 21 and 22 deal with that history, your Honour.  I am sorry, did I answer your Honour’s question?

GLEESON J:   I was trying to find out to what extent it is possible to be clear about the basis on which the public servant or group of public servants devised the test.  Was it because they thought it would be an easy test to apply?  Was it because Aboriginal groups said that it was a good way of identifying themselves?  I take it that that was not the way it was done.

MR LENEHAN:   Yes.  Your Honour, I am not sure that it is quite recorded with that degree of precision – why the test was formulated in that way.  But, as I understand the history, it was to move away from the earlier notions which did focus almost exclusively on descent.

Now, in my remaining time, that then leads to my final point which is that if biological descent is an essential requirement, it follows on the facts that detention was authorised here by section 189 of the Migration Act.  Without taking your Honours back to the sections in the judgment that the Solicitor‑General identified this morning, you will recall that the evidence accurately summarised by the primary judge was that neither Mr Montgomery nor his mother knew whether he was the biological descendant of an Aboriginal person.  Mr Montgomery also gave evidence to the effect that he could not find any further information about his ancestors. 

So, at its highest, his evidence was that he did not know one way or the other whether he was the biological descendant of an Aboriginal Australian.  Instead – and your Honours saw this at paragraph 53(w) and (x) of the primary judge’s judgment – his claim was that he did not need to have a biological Aboriginal ancestor to be an Aboriginal.

The detaining officer, Mrs McBroom’s evidence then was this.  She had read – your Honours saw this this morning – both Mr Montgomery’s affidavit and she had also read his mother’s affidavit.  She can therefore be taken to be aware of the matters from that affidavit material – which is then summarised by the primary judge at paragraph 53, which is essentially what I have just identified before, and what you were taken to this morning.  She was not satisfied that Mr Montgomery met the biological descent requirement because of her understanding that adoption is not sufficient to satisfy the first limb.  On those facts, Justice Derrington found that it was not objectively reasonable to suspect that Mr Montgomery was an alien. 

Now, that is the conclusion that we say is wrong.  We say the significance of the evidence that I have just summarised again is not that the officer’s suspicion is in any way legally important.  That follows from the partial disapplication argument that the Solicitor‑General put to your Honours in Thoms, and which he said he would address again in reply if necessary, because at the moment we do not understand that that is contested. 

To recap briefly, officers are, of course – this is what the Solicitor‑General put to you in Thoms – mould their conduct by reference to their assessment of what a court would decide about the limits of Commonwealth power.  That is a notion that the Solicitor‑General put by reference to Re Adams, which is a decision that your Honours all heard a lot about in the Citta proceeding. 

But once it is realised that constitutional overreach is avoided by partial disapplication pursuant to section 3A of the Act, in the sense identified by your Honour Justice Edelman in Clubb, and your Honour Justice Gageler and Justice Gordon use the term “severance” for a similar idea, it follows that the officer’s suspicion is not legally important because if the court considers that it is reasonably open to suspect that a person is an alien, then section 189 authorises, and indeed requires, detention irrespective of any suspicion of the officer about alienage. 

So, the significance of Mrs McBroom attempting to mould her conduct here to those notions is legally unimportant.  It so happens that below Justice Derrington approached this idea by asking whether Mrs McBroom’s suspicion was reasonable, and that, as we say, is an approach that largely resembles the partial disapplication test. 

Either way it is the conclusion that her Honour came to that the suspicion was not objectively reasonable that we challenge.  We say, on the facts as I have summarised them, and on a correct understanding of the law, the point that I have made about biological descent, it simply was not open to her to do anything except conclude that the suspicion was reasonable. 

If that is right, then no partial disapplication was required because in its operation with respect to Mr Montgomery, section 189 had a sufficient connection to 51(xix), and it follows that it applied in accordance with its terms to authorise and require his detention. 

That is really also how we analyse the separate aspect of ground 2, and your Honours will recall that her Honour also made the finding regarding reasonable suspicion on the basis of Goldie and the notion that Mrs McBroom had failed to make inquiries of Centrelink and other government departments.  That is because, as I have just said, her subjective suspicion – Mrs McBroom’s subjective suspicion as to those matters is irrelevant. 

Again, the question is whether the court was satisfied on the information that is known or was reasonably capable of being known by the officer at the time that it was objectively reasonable to suspect that Mr Montgomery was an alien.  We say the primary judge ought to have concluded that it was because – and this is the point that the Solicitor‑General made this morning – as her Honour accepted, it was unlikely that any further inquiries of that nature would have uncovered any further evidence of Mr Montgomery’s ancestry. 

The reason that is so is explained further in paragraph 62 of our written submissions in‑chief and that is because Mr Montgomery’s affidavit explained in some detail the circumstances in which he came to be registered for ABSTUDY.  Essentially that was because the elders who conducted his first initiation took him to Centrelink.  Those were not circumstances that created any reason to think that Centrelink had been given any information about his biological descent that differed from the information which your Honours find in his affidavit and the affidavit of his mother. 

Now, turning to the last part of my submissions, that then leads me to the notice of contention and, your Honours – the notice of contention itself is found in the case removed book at page 134.  The essential point is said to be that there is something that flows from Mrs McBroom’s failure to consider the report of Dr Powell – which your Honours have in Mr Gleeson’s book of further materials at page 28.  We say, whether Mrs McBroom did or did not consider that report or did or did not mould her conduct by reference to it, again is simply irrelevant to the question of partial disapplication.

GORDON J:   May I ask a factual question?

MR LENEHAN:   Yes.

GORDON J:   I could not work out the dates.  Is it the position that the report was before the decision‑maker?

MR LENEHAN:   Your Honour, I believe it was certainly in the possession of the Department and that was the point that our friends relied upon.

GORDON J:   I see, thank you.

MR LENEHAN:   We say the more important point really is this.  That material could not possibly have affected – this is our partial disapplication point – the court’s consideration of whether it was reasonable to suspect that Mr Montgomery was an alien for essentially the reasons that are given by her Honour the primary judge at paragraph 66 of the reasons – which your Honours find in the cause removed book at page 30 – that is, that report did not independently investigate Mr Montgomery’s biological heritage.  It was instead based on assumptions drawn from the statement of Mr Montgomery, his mother and other Mununjali elders.  The report itself took the issue no further.  We say, accordingly, that material could have no relevant bearing on the issue that confronted the court on the partial disapplication approach. 

Those are the submissions that the appellant seeks to make, your Honours, unless your Honours have any further questions.

KIEFEL CJ:   Thank you, Mr Lenehan.  Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  Could I just say something about the issues as they come together – which your Honours will see from our outline – because the presentation we had this morning does not really come to grips with what happened in this case.  What happened was that the proceeding before her Honour – as you will see from the cause removed book at page 12 – originally had within it grounds 8 and 9, where Mr Montgomery sought habeas corpus upon the basis that he was not an alien because he was an Aboriginal Australian. 

Now, the case was almost about to go to hearing before her Honour on all issues – including that issue – including the judicial review ground – when the Attorney‑General exercised the right under section 40(1) of the Judiciary Act – not section 42, as has been recognised – to remove into this Court the pure constitutional issues.  The two issues removed were, firstly, the attempt to have the Court overturn Love and, secondly, if Love was not overturned, have determined that this gentleman was not an Aboriginal Australian within the Love principle – which, in turn, would get into biological descent, adoption and a raft of factual matters.

Her Honour was perfectly correct in paragraph 14 to record that his application for habeas, on those substantive grounds, was not before her and in paragraph 15, all that was before her was a much narrower question of whether he could get habeas based upon the lawfulness of detention.  That concerned the reasonable suspicion question. 

For that reason, there is an important paragraph that has been overlooked this morning which is paragraph 23 of the reasons – which is that, in terms of the evidence, the only evidence Mr Montgomery was allowed to read – apart from his solicitor’s affidavits and the affidavit of Jacqueline Montgomery – was his own affidavit.  The rest of his evidence that he had ready for trial – both lay evidence – including persons such as Athol Goltz – who is referred to as “Uncle Athol” – who is one of the elders who had significant roles in his initiation and adoption, and the other people there – who were very important in the community – and, most importantly, his anthropologist, Dr Powell, was all read under a section 136 order.

Now, the effect of that seems to have been that, for the purpose of the limited habeas application before her Honour, he was permitted to tell the court that he had evidence of this character.  He was not permitted to read his case because his case was going to be left for this Court.  So what happened ‑ your Honour Justice Keane will recall some of this history – what happened was that when it was removed into this Court, instead of all that evidence being read as evidence there was an attempt to agree a special case, which was largely advanced but incomplete.

When her Honour came to rule on habeas she was ruling upon the relatively narrow question whether the Commonwealth had discharged the onus of showing that his detention was lawful at that time and in those circumstances, not that he was entitled to liberty for all time because that would depend upon what happened under the removed case.

So, in the paragraphs 61 to 68 ‑ which the appellants now criticised and I will have to defend those paragraphs if the appeal is competent and allowed – her Honour looked at the very narrow question whether, in the circumstances before her which included that Love, by definition, was binding on her, which included that the role of adoption under the tripartite test could not be decided until this Court heard the removed issues, and where he was not permitted to read most of his evidence, then had the appellants established the suspicion that he was not an Aboriginal Australian, and therefore was an alien, was reasonable.

Now, her Honour found, as you know, first there was a judicial review error, and that part of the case has gone back to the Minister, and the position on that ‑ if I could just mention in terms of the future disposition of this matter – in the happy event that the Minister accedes to Mr Montgomery’s submissions before this Court delivers judgment in the matter we would wish to then argue that this entire matter is moot because he now has his liberty restored under a visa.  We are not at that point yet, but if we were we would raise it.

But leaving that aside, what her Honour did by virtue of orders 3, 4 and 5, was grant habeas on the very limited basis I have identified.  Your Honour Justice Gordon asked about order 4.  We think it is strictly unnecessary.  As the matter has played out, it was perhaps belts and braces given views that might be taken on whether the Federal Court had power to grant habeas corpus.  The Commonwealth has told you, I think, today that they accept that the Federal Court had power to grant orders 3 and 5, which are traditional habeas orders, and they are the orders which found our competency objection.

Now, after those orders were made, the position was that Mr Montgomery was restored to liberty, but he was restored to liberty upon the very particular basis I have mentioned, that the appellants had not discharged the onus on the circumstances that then existed.  He was not discharged to liberty on a basis that had not yet been determined, which is his ultimate claim under grounds 8 and 9.

Restored to liberty he was entitled to, if he wished, seek to discontinue the proceedings that were in this Court.  Some suggestion was made this morning that somehow he is to be criticised for discontinuing that proceeding.  In fact, the very reverse.  He was at liberty and he was not obliged to continue that proceeding.  What ought to have happened in this case ‑ had the Commonwealth really wanted to achieve its two objectives, the two big objectives, get rid of Love and, if not, make sure that adoption can never be recognised within Love, what ought to have happened was the Commonwealth needed to start a suit in this Court to have those questions determined.

They could then be determined on evidence, and we submit it is not old fashioned to suggest that a question as important as whether a person qualifies as an Aboriginal person for any legal purpose – in this case for the purpose of constitutional protection – ought to be decided in a case where there is the evidence considered by that person – controverted if the Commonwealth wishes to controvert it – as to his membership of the community. 

You see, what not a word has been said about this afternoon by Mr Lenehan when he tells you that you must leave adoption out of this constitutional principle, not a word has been said about the evidence which Mr Montgomery has available but has not yet been tested. 

What that evidence shows, and I will come to it in more detail tomorrow, when it comes to be tested, is that within the Mununjali community, consistent with norms of a number of Aboriginal societies in south‑east Queensland, and consistent with the writings of learned anthropologists as to more general practice, there is a system under traditional law and custom whereby persons who are, in his case, abandoned – he was abandoned when he came to Australia, which was why he was in the boys’ home – are welcomed into Aboriginal families by an elder and then, after that process of welcoming in, an elder may or may not select the person for initiation.

KIEFEL CJ:   Mr Gleeson, forgive me for interrupting you, but I was trying to follow what fell from the basis upon which this matter had been brought into the Court and what that meant, from our point of view.

MR GLEESON:   Yes, what it means for your point of view, your Honour, is ‑ ‑ ‑ 

KIEFEL CJ:   But in particular, are you saying that it presents some kind of bar to considering Love – not the objection to competency, but just the way in which it was brought up into this Court?

MR GLEESON:   Yes, your Honour.  Yes.  There is a double bar.  The first bar is – I did not have the pleasure of being here for Thoms (No 2) but I understand that you heard a large argument from the Commonwealth about Ruddock v Taylor ‑ ‑ ‑ 

KIEFEL CJ:   Yes.

MR GLEESON:   ‑ ‑ ‑ the effect of which is that if you are judging the lawfulness of the detention based on reasonable suspicion, you look at the matters known and capable of being known at the date of the detention.  In that case, the Commonwealth relies upon that to say, at the time that Mr Thoms was detained, Love itself had not emerged, so the officer…..was reasonable. 

The same principle, if that is correct, must apply in reverse.  If we are trying to assess the reasonableness of Mrs McBroom’s suspicion – and it is her suspicion, not some court suspicion that Mr Lenehan is talking about – it has to be at a time when Love was decided, was binding upon her, was correct.  There was a possibility that, if it ever came to this Court, something might happen to it, but it was correct. 

So, one thing that has gone wrong is this attempt to get rid of Love has all the problems of retrospectivity about it.  What they are trying to do is to say, if we can get this for you in some sort of removed appeal and persuade you to jettison Love then, retrospectively, we can show that her Honour erred in granting habeas.  But it could never – that part could never affect the quality of her Honour’s judgment ‑ ‑ ‑ 

KIEFEL CJ:   But is there not a difficulty with that argument, and that is that, on the Commonwealth’s argument, unless your client obtains an extension, in effect, of the principle in Love, the decision in Love itself is not enough?

MR GLEESON:   Your Honour, that is the second part.  I am just taking it in two steps, if I can.  The first step is the whole argument you have heard today that Love should be reopened, consigned to history, et cetera, forget it is in volume 270 of the Law Reports, it was a terrible mistake – that whole argument, that has the problem of retrospectivity about it, and could never come up in a habeas appeal because those issues were not there at the time.  The second part, your Honour, is a separate issue, and I accept that.

KIEFEL CJ:   I am sorry, it was just on that point, are you suggesting it is in a similar position to what happened after Patterson and Taylor?

MR GLEESON:   Yes.  That part is there and that is why I say ‑ ‑ ‑ 

KIEFEL CJ:   The decision stood ‑ ‑ ‑ 

MR GLEESON:   Yes, it stood.

KIEFEL CJ:   It was not reliable for precedential value, but it stood for other purposes.

MR GLEESON:   Yes.  So, there is quite a cunning little intertwining of the knots here.  In an attempt to say we are removing a habeas appeal, the Commonwealth is trying to overturn law – which of course under the declaratory theory will mean the law was always different to what it was thought – but therefore, under that guise, say there was error in that part of Justice Derrington’s order.  So, just on that part, we say that could never justify error and that is why you should not be hearing any argument about the correctness of Love.  If the Commonwealth wants to do that – bring a separate suit against whoever – and that can be done.  The second part, your Honour, does raise ‑ ‑ ‑

EDELMAN J:   It is the sauce rule, Mr Gleeson – what is sauce for the goose is sauce for the gander.

MR GLEESON:   Yes, and what the learned Solicitor said this morning was, no, he does not resile from his proposition in Thoms (No 2) and in that case that can give him a victory – Mr Thoms was lawfully detained – but in this case he can persuade you today to overturn Love and then he can say – he can overturn Justice Derrington’s orders. 

Now, that we submit just has a basic problem the whole way through it and that is why, when your Honours look at this matter – apart from competency – we submit you will find the entire proceeding is misconceived.  This is not the way the Commonwealth lawfully can achieve – and procedurally achieve its objective.

GLEESON J:   But you are asking us to look at Love and Thoms again too.

MR GLEESON:   That is the second part.  I am taking them in two steps.  The second step is, if an appeal is competent, looking at the matter at the date that her Honour was coming to the judgment, what her Honour had was Love and Thoms and she had paragraph 81 and she had biological descent and those things – and on that part of the case I am going to have to defend what her Honour has done between paragraphs 61 to 68, and say there were sufficient reasons of doubt – both as a matter of law and as a matter of fact – when one actually understood the sort of evidence Mr Montgomery had – that this adoption was central to the laws and customs of the society that – to come back to your Honour Justice Gordon’s question this morning – the Commonwealth had not discharged the onus.  It is a very narrow argument just based on what we had. 

Now, that is an argument I have to make tomorrow and I have to succeed on in order to defend her Honour’s orders.  But what cannot be done, with respect, is what Mr Lenehan has done this afternoon.  What he has said is, instead of focusing on that narrow question, what should the officer have reasonably suspected, you as a Court, can now decide on a final basis that adoption – he also used a broader term this afternoon, you may recall it – any form of social incorporation can never satisfy the tripartite test or whatever test is used for this part of constitutional law.  He wants you in effect as a matter of law to rule that, no matter how good ‑ ‑ ‑

KIEFEL CJ:   Now, I follow that what you are saying is this Court would not have the evidence – it would not have any of those matters.

MR GLEESON:   You have nothing.

KIEFEL CJ:   So, the matter is not in a form where we could possibly deal with it finally.  But, Mr Lenehan’s argument was based upon the premise that Love was correct.  My concern is how – you seem to be saying that not only is Mr Lenehan’s argument not available, you seem to be saying that the argument that Love was not correct is not available either, or am I misunderstanding you?

MR GLEESON:   No, I am saying that it is not available in this removed appeal.  It is available in a separate suit because it simply does not connect with – it is the Ruddock v Taylor point – it is sauce for the goose, sauce for the gander.  It does not connect with the issues which her Honour had to deal with.  It can never demonstrate error in what her Honour did.

GAGELER J:   Mr Gleeson, can we just step through what is involved here.  We have a detaining officer who had a suspicion that Mr Montgomery was a non‑citizen – now that was a reasonable suspicion.  The same officer had a suspicion that he did not have a visa – again a reasonable suspicion.  On the argument put against you, that was enough to make his detention lawful under section 189.

MR GLEESON:   Well, if that is the argument, that is wrong, because at the time that was being considered by the officer, Love had been decided and was binding, stare decisis, and so an officer who only formed those two suspicions in the face of a person claiming to be an Aboriginal Australian and claiming to take the benefit of the Love principle, would inevitably be acting unreasonably in forming that suspicion. 

Now, this notion of partial disapplication that you keep hearing little about – once Love is there and until Love is overturned, if there is to be a reasonable suspicion, and if the person makes a claim of aboriginality, it has to be dealt with in a reasonable fashion.  That is the critical element that is missing in the entirety of this approach. 

So, our concern with Mr Lenehan is, he comes and says you without facts, you – apparently some articles in volume 22, some people have written about it – you will give the judgment which will be binding by stare decisis on every judge below as to whether adoption can ever satisfy the first limb for this test.  So, if I achieve ‑ ‑ ‑ 

GORDON J:   But that is your second complaint; that is your second hurdle ‑ ‑ ‑ 

MR GLEESON:   Yes.

GORDON J:   We are talking about the first hurdle for the moment.  The first hurdle is a hurdle, as I understand it, which you say, we are dealing with judicial review – we are not doing the judicial review – we are dealing with the assessment of someone’s suspicion at a particular time on particular facts and a particular state of the law. 

MR GLEESON:   Yes, and the state of the law at the time was Love binding on everyone.  So, one does not come along later and allege error in what Justice Derrington did by saying she did not anticipate a later change in the law.  That is all I am putting on that point.  So, your Honours, I just wanted to say ‑ ‑ ‑ 

GORDON J:   There are two aspects, are there not? It is not just anticipation of a later change in the law.  You say that – as I understand the argument – you have a set of facts and a set of legal principles which applied to her Honour.  She applied them, there is no error.

MR GLEESON:   There is no error and, therefore, had the matter still been in the Full Federal Court, if the appeal had been competent, the answer would have been no error – as long as I can defend paragraphs 61 to 68.  So, your Honours, in terms of our outline, that is what I want to say on point 1.  I want to now move to competency. 

GAGELER J:   Mr Gleeson, I really just do not understand that. 

KIEFEL CJ:   Neither do I.  I am sorry, Mr Gleeson. 

GAGELER J:   The whole nature of an appeal is we are concerned with the correctness of what her Honour did at the time she did it, according to the law as we declare it.  Am I missing something?

MR GLEESON:   Well, your concern with whether her Honour was correct to find the Commonwealth had failed to discharge the onus of showing that the officer had a reasonable suspicion that Mr Montgomery – leave aside unlawful – leave aside non-citizen no visa – that Mr Montgomery was not an Aboriginal Australian and in assessing that question, one of the circumstances that was before the officer and therefore considered by her Honour, was that Love was binding and correct.  That is all we are saying on that. 

KEANE J:   And that her Honour was therefore obliged to read section 189 down. 

MR GLEESON:   Yes.

KEANE J:   If that was an error that was an error – because her Honour was only obliged to read 189 down if Love correctly stated the law. 

MR GLEESON:   Your Honour, I think the bit that I am not communicating to your Honours – the fault is mine – is that because it is the reasonable suspicion layer in the middle ‑ ‑ ‑ 

KEANE J:   But we are not talking about the exercise that the Commonwealth officer performs in applying 189.  We are talking about her Honour’s analysis of whether 189 could lawfully be applied in its terms.  Her Honour erred, so it is said against you, in concluding that it could not be for the reason that Love meant it could not be applied in accordance with its terms.

GLEESON J:   But also, we are dealing with an appeal from an order, not an appeal from the reasons.

MR GLEESON:   Well, your Honours, to bring together what I am putting, I am certainly putting that the argument that you should set in stone biological descent so that it never includes adoption as a matter of law is an argument that you cannot and should not receive in this case.

KIEFEL CJ:   I think we understand that part of it. 

MR GLEESON:   So that is part of the case.

KIEFEL CJ:   It is the first part we are troubled with.

MR GLEESON:   All right, on the first part I have put what I can put.  So, your Honours, what I propose to do is to deal with the competency of the appeal, which is point 2.  In terms of the leave under point 3 I will show your Honours, if I might, that the expression “affecting the liberty of the subject” which dispenses with the need for leave has always been understood to be the case where it is the subject who is affected by an adverse order and wishes to get into a higher court. 

It has never been the case that the detainer who has been resisted in its objectives by the law can through this device get an appeal as of right, and Bowden v Yoxall indicates that, Hastwell v Gunning indicates that, and the Victorian Court of Appeal case cited is not inconsistent with that.

Then under point 4 I will deal with what I call the narrow point, which is whether there was error in the grant of habeas corpus on the assumption at that point that Love remains intact, bearing in mind what your Honours have said.

Then under point 5 I will put our substantive submissions that you should not reopen Love, that it does have a ratio, that leave to reopen should be refused, and then tomorrow I will put our submissions that if you reach the point, Love was correctly decided.

Proposition 5(d) is the one I have made this afternoon, that you should not reach the question whether Mr Montgomery qualifies under Love and, if we are correct on that, you will not need to hear much from us on proposition 5(e) because that is the point you simply should not and cannot reach.

I will need in the course of those submissions to show you at least a little of what the evidence is that Mr Montgomery has available to be tested at the right time to at least be able to make good my submission that these are are real, substantial issues of fact and of law as to how the first limb should be conceived and any approach from the Commonwealth that adoption can be excluded as a matter of law from this test should be rejected by the Court, simply not entered on at this point in time.

Your Honours, on competency the starting point is Wall v The King, which is volume 12, case 75, page 4678.  This is Wall v The King [No 1].  Your Honours should now also have perhaps separately with the associates Wall v The King [No 2] 39 CLR 267. The critical passage was read to you this morning from page 250 and it is important that it is not simply Cox v Hakes, but it is also the then recent decision of the House of Lords in Home Affairs v O’Brien [1923] AC 603 which, as the learned Solicitor has said, is at the level of the House of Lords, establishing the proposition that according to the law of England:

no appeal lies from an order of a competent Court for the issue of a writ of habeas corpus discharging a prisoner from custody unless an appeal is specifically given by the Legislature –

That is the first part of it.  The second part:

and that the Courts should not hold that such an appeal is given merely because of general words in their natural meaning sufficient for such a purpose.

The text of the Northern Territory ordinance is then summarised.  They are general words.  They have the generality of the Judicature Act provisions considered in the United Kingdom. They have the generality of section 24 of the Federal Court Act and it was held that under such words they do not avail the subject of:

an ancient and universally recognized constitutional right.

Now, the possibility that there could be an appeal to this Court under section 73 in a habeas case is recognised at the top of page 251 based on Ah Sheung, followed without argument in Lloyd v Wallach and by Justice Isaacs in subsequent cases.  But that is distinguished as resting on the nature and function of the Constitution of the Commonwealth.

So, what was there being said was that when one was dealing with a constitutional grant of jurisdiction – including, one might observe, the word “any” in section 73 – appeal from “any” judgments, and so on – different principles had been treated by this Court as applying, although, as has been observed – at least in the area of acquittals – because the appeal has been subject to special leave, the practice has been rarely to grant such leave in order to respect the fundamental principle.

KEANE J:   Mr Gleeson, it is probably pedantry on my part but 73 actually provides for “hear and determine appeals from all judgments”.

MR GLEESON:   With respect, I would never accuse your Honour of pedantry.  It is not – because when Justice Deane looked at this matter in Mastertouch and it was then approved in Davern v Messel, the two reasons he gave for treating 73 are different.  Firstly, that one – that the word “any” – as part of this constitutional grant of jurisdiction – means what it says.  It is quite significant that ‑ ‑ ‑

KEANE J: Section 73 says “all judgments”.

MR GLEESON:   “All”, yes, “all”. That is what Justice Deane said was one of the two planks for saying – means what is says but, of course, it gives the Parliament the power to accept and regulate. You do not see that word in section 24 of the Federal Court Act. You do not see it in the Judicature Act provision.  You do not see it in the Northern Territory ordinance. 

That was absolutely central to Justice Deane’s reasoning as to why the section 73 cases could be put to one side. Because it is constitutional, the Parliament can regulate. Because there is special leave, the Court can exercise a strong hold over what cases it allows to come before it – which would either be appeals against acquittals or appeals against habeas – they are the two main areas where the fundamental right is involved. With respect, your Honour Justice Edelman is correct – that traditionally was often habeas related to an acquittal. So, the two were completely bound up together. So, that is the reason ‑ ‑ ‑

KEANE J:   If they are bound up together and if we regard this rule as being a product of the idea of a habeas being used to give effect to an acquittal, is not then the rationale for the rule notions of double jeopardy?  If the basis of the rule is double jeopardy, it does not apply in a case like this.

MR GLEESON:   With respect, your Honour, it includes double jeopardy.  I will show there is actual reference to that in some of the other cases – including Wall (No 2).  But, it also includes a more general habeas proposition – expressed by Justice Isaacs in Wall (No 2) – that once there has been the grant of liberty from a court of competent jurisdiction – which is the reason he dissented in (No 1) – what that has done is closed for all time, in all places, the person’s right to liberty based upon the cause – based upon that which the detainer was asserting as the reason for the deprivation of liberty.  That is why, at the outset, I attempted – perhaps unsuccessfully – to distinguish the small habeas case that was before her Honour and the big habeas case that has still not yet been heard in respect of Mr Montgomery.

GLEESON J:   But one of the important differences here is that the officer still has a duty to detain.

MR GLEESON:   No doubt that is true.  But what we submit Justice Derrington’s order has done – beyond challenge – is close the question of whether he was entitled to liberty based upon the matters as they stood at the date of the deprivation of liberty.  That is why I said to your Honour, we could not object to a separate, properly constituted suit in which the questions were raised because that may create a different factual situation.  But in terms of what has been closed – what has been closed is the cause which was being argued.  Could I just show your Honours in Justice ‑ ‑ ‑

GORDON J:   Is that any more to say that ‑ at least some of us in dissent said in AJL20 that there may be a new set of facts that would give rise to a detention?

MR GLEESON:   That is all it is saying, yes.  So, your Honours, in Justice Isaacs’ judgment – still in [No 1] – at page 253, about line 15, he distinguishes the:

appeal under the Judiciary Act, involving the amplitude of the ordinary constitutional power of the Commonwealth . . . the exercise of which Parliament may limit at its discretion –

He then goes on to say that he follows Cox v Hakes and his point then of dissent starts at about line 35, which is he did not regard it as a court of competent jurisdiction.

KIEFEL CJ:   Mr Gleeson, Justice Isaacs appears in more judgments probably than others dealing with this point that seems to have interested him, in particular R v Snow 22 CLR 315, and there his Honour focuses upon the reference in section 73 to “all judgments” and says, in effect, that unless it is cut down by Parliament, “all” means all without qualification, and Justice Higgins said to the same effect, both of them taking up the point in Ah Sheung. Now, that is section 73. We do not seem to be focusing much on the constitutional context and the words of the Constitution.

MR GLEESON: That has been said in the section 73 case ‑ ‑ ‑

KIEFEL CJ: Your argument is to put section 73 to one side, whereas what is put against you is that is all it is about.

MR GLEESON: Well, section 73 is there.

KIEFEL CJ:   Yes.

MR GLEESON: The ultimate argument that is put against us is that, although we have the generality of section 24, which is the same language of the Judicature Act, Northern Territory ordinance, and is not the language of section 73, which would seem to get us going somewhere on this argument that we have forgotten – we have forgotten that you have got section 33(2) over there, which has said that, under section 73 you cannot go straight from a single judge of the Federal Court to the High Court, and so the effect of our argument is that if you are in our category, which is habeas, or the exact same would apply for acquittal, the fundamental common law principle has in fact been eroded by the otherwise general words of section 24, because we have forgotten section 33.

The basic problem with that argument is that it is completely inconsistent with Thompson, and it is inconsistent with this Court’s decision in Davern, because section 33(2) was in the Federal Court Act from the outset. At the time Thompson was decided, which I will come to almost next, the provision is not seen to have been adverted to, but if section 33(2) is a reason to say that the generality of section 24 in fact has eroded these two fundamental constitutional principles, Thompson must be wrong and Davern must be wrong to have proved Thompson.  That is a very large step.

Of course, Thompson is not wrong, Davern is not wrong, the point is 33(2) is simply saying if we are over here dealing with the section 73 jurisdiction, this is the form of regulation that Parliament has decided to put on that jurisdiction from time to time and they can change it from time to time.

So, it actually says nothing to read down the generality of the words of section 24. That is our ultimate argument. The way it can be tested is it can be changed by Parliament from time to time, and in fact your Honours know that there is now provision in the Federal Court Act section 21A which allows the original jurisdiction to be exercised by a Full Court. So, there is a ‑ ‑ ‑

KIEFEL CJ:   The difficulty I am having, though, is that in Davern v Messel, and on your argument, the provision, sections 24 and 33 of the Federal Court Act are not seemingly being read in the context of section 73, and what it means for this Court to be able to exercise jurisdiction on appeal, having regard to other courts exercising federal jurisdiction.

MR GLEESON: Yes. I appreciate the concern your Honour is raising. Where we submit it comes together is that section 33 is not saying anything about the scope of section 24. It is saying something directly about the scope of the section 73 jurisdiction. When the Parliament put section 33(2) in the Act in 1976, it was a deliberate design choice which was different to the position of appeals from the States and Territory courts which under section 35 and then 35AA of the Judiciary Act, you can appeal from any decision of a State court or a Territory court in federal jurisdiction with leave.

So, some different design choice was made, but the critical question is, can you infer from that design choice that these two fundamental principles, that there should be no appeal from habeas and no appeal from acquittal without clear words, were they being swept away under section 24? That is the issue where the parties join. We submit they were not. But if the Commonwealth’s argument is correct, it can only run on the basis that the fundamental principle of no appeal against acquittals has also been swept away by section 33(2).

So, I then add to that that it is entirely a matter of parliamentary design what to do with section 33, and in fact it has ameliorated section 33 because section 21A now says the Chief Justice can direct any matter in original jurisdiction to be heard by a Full Court in which a venture can get to this Court by leave.

So as the scheme currently stands today, if a matter is important in original jurisdiction, there is a means in the Federal Court, taken before a Full Court, come to this Court by leave.  So, the scheme does work.  It is slightly different to what happens at Sate and Territory level, but it works, and nowhere in that is there manifest an intention to destroy the fundamental principle of no appeal against an acquittal, no appeal against habeas.  That is how our submission comes together, your Honours.

GAGELER J:   Mr Gleeson, can I just ask about the structure that underlies the decision‑making that occurred at first instance.  Was the jurisdiction of the court section 39B(1) and (1A) of the Judiciary Act and then was the order that was made in the nature of habeas corpus simply made under section 33 of the Federal Court Act?

MR GLEESON:   There was no precise identification to the source of it.  They were the orders that were presented, but that is a good candidate for where it was made.

GAGELER J:   Well, is there somewhere else it could come from?

MR GLEESON:   Well, not that I am aware of, your Honour.

GAGELER J:   No.  Okay, thank you.

MR GLEESON:   So, your Honours, the balance of the authorities.  You should now have Wall v The King (No 2), and Justice Isaacs’ concurring judgment is in its purple passages which commence at page 272 over to page 274, if anything, stronger than the statements of the majority in the (No 1) Case or the plurality in the (No 2) Case, and we would urge your Honours to consider all of them, including, on page 273, that:

The success of the Crown in this appeal –

This is at point 3:

would confer upon this case the unique distinction of being the first occasion on record, at least for 300 years –

and so on, and his Honour regards it as most:

dangerous to liberty –

and directly cites O’Brien as the high‑water mark.  So, the principles are very dear to his Honour, and clearly expressed in that judgment.  If your Honours then have ‑ ‑ ‑ 

KEANE J:   Mr Gleeson, that passage at 273, that is the language of double jeopardy, it is the language of the judgments in Davern v Messel, is it not?  Is it not affirming that the existence of the substantive entitlement not to be put in jeopardy again is a rule of substantive law that is not affected, that is not abrogated - that substantive entitlement is not abrogated by a general provision for appeals because a general provision for appeals does not purport to abrogate that substantive entitlement?

MR GLEESON:   Your Honour, as I put before, it is often linked to double jeopardy, but it is not only double jeopardy.

KEANE J:   Well, here ‑ ‑ ‑ 

MR GLEESON:   Can I just explain why, your Honour?  In this case, as your Honour knows from the facts, the reason the problem came about was there was the grant of habeas, the High Court said you cannot appeal the grant of habeas, then something proceeded to happen in the criminal trial – which, it turned out was wrong in law – and then there was an attempt to appeal that.  It was the two of them bound together where the Court said you cannot do either.  So, this case in fact involved the two bound together.  But, if your Honour looks at the passage on page 272, at about point 6 through to point 9, we would submit that it is the more general conception of the role of habeas corpus as ‑ ‑ ‑

EDELMAN J:   Mr Gleeson, why would you not regard both of them as being underpinned by considerations of double jeopardy, at least to the extent that double jeopardy – as two members of this Court put it in R v Carroll – is concerned with protecting against the exposure to loss of liberty twice?  So, for example, in the Lim decision, members of this Court in passages which this Court has been taken to many, many times recently have said that the questions – when one is considering imprisonment or detention – are considered as a matter of substance and not with regard to whether or not the reason for the detention might be a criminal offence or some other reason.

MR GLEESON:   Yes, your Honour, that is consistent with what both Justices Deane and Murphy said in Mastertouch and in Davern v Messel – and if one treats double jeopardy in that broader sense then I have no difficulty saying it has that general family resemblance to it.  I was concerned your Honour Justice Keane’s question was focusing on a narrower sense of double jeopardy as only about ‑ ‑ ‑

KEANE J:   Well, in the sense in Wall [No 2] at 272 in the joint judgment, at about point 8:

The informations laid against the prosecutors will never, we should think, be again proceeded with ; if they are, the personal freedom of the prosecutors, in our opinion, will not be in jeopardy.

They are talking in terms, are they not, of a substantive entitlement not to be put in jeopardy of conviction – or not to be put in jeopardy of a loss of liberty.

MR GLEESON:   Of a loss of liberty on what it caused and on page 276, where his Honour restates in the middle paragraph:

That principle stated in legal form is that every person illegally imprisoned may by habeas obtain from a competent Court his prompt and permanent deliverance from imprisonment for that cause.

That is what I have sought to put to your Honour earlier that it is for that cause – one needs to identify what is the cause which has been advanced for the imprisonment.  If that cause is unjustified in law, the person is freed – that is closed – that issue – in that sense, you are free from double jeopardy of being in prison for the same cause.  Then each case requires attention to what that cause is.

On the facts of this case, if your Honour delves into the detail, the cause that was closed in the first grant of habeas was a final determination as to whether the person was an unlawful alien.  So, it was the broader cause than in our case.  That is what enabled the Court to say that cannot be reopened again by way of a challenge to the criminal proceedings because they depend upon exactly the same cause.

Your Honours, could I go to Thompson, please, which is volume 19, case 122, page 7539. Page 411 indicates that Justice Deane did consider the context of section 73 and referred to Wall v The King and explained the two reasons why it produced a different result, the first being it was a constitutional provision, and secondly the word “all”. At 412 to the top of 413, his Honour gave his primary reasoning in respect of section 24, and this is essentially pure Cox v Hakes, Home Secretary v O’Brien and the like, in the context of an acquittal there being the:

fundamental principle of the common law -

there shall be no acquittal.  Then, importantly, at page 413 in the large paragraph, his Honour regarded the considerations as the same as those recognised in Wall v The King and Home Secretary v O’Brien, and as it is there expressed, his Honour says, between lines 30 to 40:

The common law principle and the common law right under consideration in the present matter –

that is not to have an acquittal taken from you:

are at least as well established in Australia as the principle and right in question in that case.  Indeed, as has been seen, Dixon C.J. seemed to assimilate the two principles to some extent –

and then there is a reference to The King v Wilkes.  So, the assimilation is that they are two fundamental principles.  Each is about the deprivation of liberty, and if the person has been restored to liberty, there shall be no appeal without clear words.  Your Honours, could I go to Davern v Messel, which is at volume 7 ‑ ‑ ‑ 

GAGELER J:   Mr Gleeson, in Thompson, was there any identification precisely of what jurisdiction Justice Franki was exercising at first instance?  It seems to have been a criminal jurisdiction conferred ‑ ‑ ‑ 

MR GLEESON:   It was a criminal jurisdiction, your Honour.

GAGELER J:   Conferred by the Trade Practices Act itself, was it?

MR GLEESON:   Most probably, your Honour.

KIEFEL CJ:   I think it was section 79, which was the criminal – it was an offence punishable on conviction.

GAGELER J:   Thank you.

KIEFEL CJ:   Section 79 – I am just reading from the headnote:

provided that a person who contravened the provisions of, inter alia, s. 59 was “guilty of an offence ‑ ‑ ‑

MR GLEESON:   Yes.  Your Honours, in Davern, which is volume 7 case 41, page 2208, Thompson is expressly approved for the rule it states, namely section 24 through its generality does not allow an appeal against an acquittal. That is Chief Justice Gibbs, page 32, lines 20 to 30 and over to page 33, lines 1 to 15. Then Justices Mason and Brennan, at page 46, refer to Mastertouch being consistently followed and they deal with the section 73 issue at page 53, lines 15 to 30 and say that section 73 is:

not subject to the common law principles of interpretation, though the Court will, in deciding whether to grant or refuse special leave –

that it is:

a judgment of acquittal as a factor favouring the refusal of special leave.

Justice Dixon said leave would be:

“a rare thing”.

At 54, lines 10 to 20, they expressly approved Justice Deane distinguishing section 73 on the two grounds, constitutional and:

“all judgments -

Now, that language is simply not in section 24. In Justice Murphy at page 62, lines 10 to 20, his Honour dealing with the rule of no appeal against acquittals notes that it has been long recognised including in “ancient times” and “civilisations”, and:

often been associated with habeas corpus.  Both are vital to the protection of personal freedom -

So, he draws the link between the two, but he certainly does not collapse the habeas corpus fundamental principle to cases where there is a criminal conviction involved, and Justice Deane deals with the matter at page 69, lines 25 over to page 70.

KEANE J:   Justice Murphy does say at 62 that the principle is confined to acquittals – it is at 62, about point 7. 

MR GLEESON:   With respect, your Honour, at that point he is talking about one of the two principles.  He has earlier told us, at line 10, it is often associated with the habeas corpus principle.  Both are vital to protection of person freedom.  Then he is dealing with the particular one about acquittals, as we would read it. 

Your Honours, I notice the time.  The only other point we were going to make on this topic can be made in one sentence.  If the point was not taken in the Tampa Case or AJL20, it also was not considered by the Court in those cases to not stand as authority one way or the other on the question.  There are, in fact, points of distinction between the cases.  It was overlooked today – for example, that in AJL20, there was a separate appeal against an order for damages for wrongful imprisonment.  That order could never be the subject of the preclusion principle we are relying upon.  So, AJL20 could always have got before this Court on the substantial issue.  So, that is a point of distinction. 

The Tampa Case came on very quickly, Federal Court.  At that time, it was not known whether the Federal Court could even grant habeas corpus – Justice Beaumont.  So, your Honours, with respect, would not reject our point on that ground.  Is that a convenient time?

KIEFEL CJ:   Yes, thank you, Mr Gleeson.  The Court will adjourn until 9.15 am tomorrow for the pronouncement of orders and otherwise until 9.45 am.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 7 APRIL 2022