Re MIMIA; Ex Parte Ame
[2005] HCATrans 66
•3 March 2005
[2005] HCATrans 066
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M146 of 2004
In the matter of -
An application for Writs of Prohibition, Mandamus and a Declaration against SENATOR THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Ex parte –
AMOS BODE AME
Applicant/Prosecutor
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 3 MARCH 2005, AT 10.05 AM
Copyright in the High Court of Australia
__________________
MS K. RUBENSTEIN: If it pleases the Court, I appear with my learned friend, MR G.J. WILLIAMS, for the applicant. (instructed by Clothier Anderson & Associates)
MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friends, MR G.R. KENNETT and MR G.A. HILL, for the respondent. I understand she was originally the third respondent, but is now the sole respondent. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Ms Rubenstein.
MS RUBENSTEIN: Your Honours, I propose to present the oral argument on the following aspects of the applicant’s submission in answering the case stated questions for this Court’s consideration. First, the construction issue, that the applicant maintained his Australian citizenship by virtue of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975, which I will continue to refer to as “the regulations”. Second, in the alternative, that the validity of those regulations, in light of the Papua New Guinea Independence Act, is that they are invalid. Third, again in the alternative, regarding the case stated question concerning the constitutional validity of the regulations, I will address your Honours on the submissions concerning section 51(xix), the aliens head of power.
My colleague, Mr Williams, will then address the Court on the remaining constitutional propositions raised in the applicant’s submissions concerning the limitations inherent in section 51(xix) extending to the exercise of other Commonwealth legislative power, and, finally, the broader constraints on altering the constitutional status of an individual.
Your Honours, if the submissions to any of those questions are answered in favour of the applicant, then we would argue that in relation to the case stated question regarding the application of the Migration Act to Mr Ame, that the answer is that he is not bound by those specific provisions listed.
Finally, your Honours, I will seek your directions as to whether you wish to heard submissions on the question of costs at the end of my initial submissions, or at the end of my reply to the respondents.
GLEESON CJ: At the end of your initial submissions.
MS RUBENSTEIN: Thank you, your Honour. First, your Honours, can I take you to this first question of construction. In doing so, I wish to remind the Court that Papua and New Guinea were distinct territories prior to Papua New Guinea independence. As the applicant’s submissions set out in detail in paragraph 15 to 20 on page 5 of the applicant’s submissions, Papua was a part of the Commonwealth of Australia. New Guinea ‑ ‑ ‑
KIRBY J: First of all, there is the provision in the Constitution for the Crown to provide for the governance of another territory and for the Commonwealth to accept it. Was that done with anticipation that that would happen to Papua? What was the history? Was there discussion before the Federation?
MS RUBENSTEIN: Yes, your Honour. The history is actually set out in the applicant’s submissions. If I turn you to the third part of the discussion in relation to the people of the Commonwealth on page 15 of the submissions, there is quite a bit of detailed information held in Australian archives relating to the history of Papua at paragraph 76. Indeed, we go back to the 1880s where the colony of Queensland encouraged England to annex the region because of the concern by the colonies that another major power may indeed establish a colony.
GUMMOW J: They went off and annexed it themselves, did they not?
MS RUBENSTEIN: They did, and it was repudiated ‑ ‑ ‑
GUMMOW J: Then it was disavowed by ‑ ‑ ‑
MS RUBENSTEIN: Indeed, and then had to gather funds in order to get the agreement by the United Kingdom in order to accept it as part of the Crown, all of that assisting in making the clear distinction between Papua and New Guinea for the purposes of this matter.
KIRBY J: Is that really true, that the Federation star was gazetted to reflect the incorporation of Papua? I always thought the extra star was for the Commonwealth.
MS RUBENSTEIN: According to this material that we relied on as a source from the Government Department of Administrative Services, that is the reason that is indicated as the prompting for that star. Perhaps there were other parties that were encouraged to be on board for that addition.
KIRBY J: Fiji is specifically mentioned I think in the Constitution, is it not, in one of the covering clauses or somewhere?
MS RUBENSTEIN: Yes, in the covering clauses ‑ ‑ ‑
KIRBY J: Maybe not. Anyway, it is not relevant. There was a contemplation I think that Fiji might add yet a further star in our Crown.
MS RUBENSTEIN: Thank you, your Honour. Can I take your Honours then, in establishing that distinction, to the material that we need to look at in order to decide this construction question, which is the relationship between regulation 4 of the regulations and the Papua New Guinea Constitution.
HAYNE J: Just before you do that, I think you said that Papua was part of the Commonwealth.
MS RUBENSTEIN: Indeed.
HAYNE J: How does that fit in with the covering clauses, particularly covering clause 6?
MS RUBENSTEIN: If we look at covering clause 6, we see a definition of “the Commonwealth” which says that:
“The Commonwealth” shall mean the Commonwealth of Australia as established under this Act.
We then need to refer back to covering clause 5 to understand what that means.
HAYNE J: I would have thought covering clause 3 would be where you would go rather than 5, but perhaps not.
MS RUBENSTEIN: Can I take your Honours first then to covering clause 5 to explain the relationship between them, where we are told that:
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth –
which indicates that the Commonwealth is larger than just the States. If we do turn back to in fact earlier than covering clause 3, to the preamble setting up those clauses, in those first two paragraphs we see, of course, the reference to the people agreeing “to unite in one indissoluble Federal Commonwealth” and, immediately following, stating:
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen.
So that Papua is included in the Commonwealth by virtue of those covering clauses. I do have a specific argument in relation to how that impacts on this matter further in my submissions.
HAYNE J: The second paragraph of the recitals may find reflection particularly in section 121, “New States”, but covering clause 3, read with covering clause 6 with its reference to “South Australia, including the northern territory of South Australia”, seemed at first blush to be referring to what became the States and at first blush seemed not to immediately encompass the second class of territory with which section 122 deals. It would encompass the first class of territory, namely, “any territory surrendered by any State to and accepted by the Commonwealth”, but why would it extend to the second class of territory, “territory placed by the Queen under the authority of”?
MS RUBENSTEIN: With respect, your Honour, we would argue that they are not mutually exclusive, that they are indeed both acceptable, in the sense that those parts of the States that became territories were part of the Commonwealth, but that does not deny that other forms of territory are also part of the Commonwealth. Perhaps to assist on this point ‑ ‑ ‑
GUMMOW J: This expression “the Commonwealth” is used in various senses in the Constitution. It is used geographically and it is used politically, so where does all this go?
MS RUBENSTEIN: Your Honours, can I take you on that specific point of Justice Gummow to the decision of Spratt v Hermes & Anor (1965) 114 CLR 226.
GUMMOW J: What will that tell us that we need to know?
MS RUBENSTEIN: That will add support to the argument of the applicant that Papua is part of the Commonwealth of Australia. In setting that up, it assists in the argument that the applicant could not have been an immigrant for the purposes of the Migration Act 1975 and that is important, because in looking at the relationship between regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations and section 65 of the Papua New Guinea Constitution, which is the construction point that we have at hand, the Court needs to determine whether Mr Ame had a right of residence in Australia. In answering that, the nature of what Australia is for the purposes of the Migration Act is fundamental to the making of that determination, so Chief Justice Barwick’s decision in Spratt v Hermes assists the Court in identifying Papua as part of the Commonwealth.
GUMMOW J: You go to page 246, do you?
MS RUBENSTEIN: At the bottom of page 246, going over to the top of page 247, where he makes that point that your Honour just made:
It may be granted that the word “Commonwealth” is used in the Constitution sometimes geographically, as in part of covering cl 5 where it speaks of “every part of the Commonwealth”, and sometimes as a reference to the political entity which the Constitution created, as in other parts of that covering clause.
He then goes on to talk about the powers that flow as a result of that, but ends off with a very important statement towards the end of that same paragraph at the top of 247:
The difference in the quality and extent of the powers given to it introduced no duality in the Commonwealth itself. The undoubted fact that the Commonwealth emerged from a federal compact or that that compact is reflected in the limitations placed upon some of the powers of the Commonwealth or that the new political entity derived from a union of the peoples of the former colonies does not deny the essential unity and singleness of the Commonwealth.
Therefore, your Honour, that supports the notion that by being part of the Commonwealth there is no distinction between the territories for the purpose of the meaning of “the Commonwealth of Australia” as a constitutional term, and assists the applicant in arguing that he was not an immigrant for the purposes of the Migration Act.
KIRBY J: Do you draw a distinction in that submission between Papua and New Guinea? Both were governed under our territories power, although New Guinea was so governed as a mandated and then trusteeship territory.
MS RUBENSTEIN: Your Honours, we say that is an essential distinction. That means that New Guinea is not part of the Commonwealth.
KIRBY J: But it was governed under our territories power, and, therefore, so far as it may not have been viewed as part of the Commonwealth by the United Nations or the League of Nations before it, so far as our Constitution was concerned, our only power to govern it was, was it not, the territories power, maybe together with the external affairs power in respect of the mandated territory.
MS RUBENSTEIN: Yes indeed, your Honour, although there may be some contention as to the validity of that. But even accepting section 122 as a source of power, this judgment by Chief Justice Barwick indicates that there might be circumstances where it might be appropriate to deal with different parts of the territory differently in terms of the exercise of legislative power.
KIRBY J: He was of course dealing with the Australian Capital Territory in Spratt v Hermes.
MS RUBENSTEIN: He was indeed, yes, the exercise of judicial power.
KIRBY J: There were earlier cases, were there not, about Papua?
MS RUBENSTEIN: Yes.
KIRBY J: Is there any light thrown in them on this issue?
MS RUBENSTEIN: No, your Honour. All they do affirm is that section 122 was the head of power that the Commonwealth relied upon in incorporating that territory, but there is nothing further from those cases that assists in this specific matter.
KIRBY J: It is an odd result that you argue for then, is it not, that if you happen to be born in the Papua part of Papua and New Guinea, you have certain rights, but if you happen to be born a little bit north just across the border in the New Guinea part, you do not have those rights.
MS RUBENSTEIN: With respect, your Honour, “odd” may not be the appropriate term. There is a reason for that distinction by virtue of the connection between the individuals and those governing that territory historically, and within any nation there can be differences in terms of their relationships with governance, and of course the history of Australia shows that by virtue of the nature of the different colonies and the nature ‑ ‑ ‑
KIRBY J: Not usually in matters of nationality though. Nation and nationality are normally coextensive. But it may be that that is simply an historical accident and in any case, it is enough for you to establish Papua to win.
MS RUBENSTEIN: And not only that your Honour, but it also was carried through in terms of the status of those individuals up until 1975 in that Papuans were Australian citizens right from the start. People from New Guinea never were given that status. They had the status of protected persons, which was ‑ ‑ ‑
GUMMOW J: When you say right from the start, do you mean from 1906?
MS RUBENSTEIN: Well, they could not have been Australian citizens from 1906; from the beginning of Australian citizenship in – from the implementation of the Act on 26 January 1949, they were Australian citizens with all other Australian citizens who had formerly been British subjects. So they had been British subjects, which was the full status of nationality up until that point in time and then together and in unity, we would argue, with the rest of the Australian people who transformed into Australian citizens, so too did they, whereas the people from New Guinea never did, so that also ‑ ‑ ‑
KIRBY J: Citizenship though is purely a statutory construct in this country, unlike the United States. You have to find an anchor in the Constitution in the notion of nationality, to use a better term.
MS RUBENSTEIN: Yes, your Honour, and we would argue and shall when looking at the aliens head of power that the statutory status of citizenship has become significant in relation to the constitutional status of non-alien. To continue with this point of construction therefore, your Honour ‑ ‑ ‑
KIRBY J: At some stage you will have to deal with the point that if we now treat all those nearly a million non-citizen British subjects from the United Kingdom who came on assisted passage as aliens, how it happens that we cannot also treat as aliens people in Papua because the former are in our midst and have voted in our elections, voted in our referenda, took part in our military, yet they are now treated by the decision of the Court as aliens.
MS RUBENSTEIN: With respect, your Honour, there is a significant difference in relation to this case and that is that the Papuans have always been Australian citizens, have always been recognised as part of that community that the Australian people determined as a form of representation ‑ ‑ ‑
KIRBY J: Citizenship, I repeat, is a statutory construct. If ever anybody was part of our community, it was the British subjects who came here, lived amongst us and voted with us and took part in our wars and otherwise participated. However, I will not appear to be bitter about this, I will simply allow you to develop your argument. I just draw attention to the fact that you will need to address that issue at some stage.
MS RUBENSTEIN: Certainly, your Honour. Can I take your Honours to the relationship between regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 and the Papua New Guinea Constitution because it is for that reason that we have been traversing the notion of Commonwealth of Australia. On page 6 of the applicant’s submissions there is an extract of regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975. It states that:
A person who-
(a) immediately before Independence Day, was an Australian citizen within the meaning of the Act; and
(b) on Independence Day becomes a citizen of the Independent State of Papua New Guinea by virtue of the provisions of the Constitution of the Independent State of Papua New Guinea,
ceases on that day to be an Australian citizen.
Your Honours, that requires the Court then to look at the Papua New Guinea Constitution because it is by virtue of those provisions that individuals lost their Australian citizenship.
GUMMOW J: What was the source of power in Australia to make regulation 4?
MS RUBENSTEIN: That is indeed part of the question in terms of the constitutionality of it. We would submit that the aliens power is ‑ ‑ ‑
GUMMOW J: It was section 6 of the Independence Act, was it?
MS RUBENSTEIN: Yes, so the territories power is another section that would be a source of power.
GUMMOW J: No, I am talking about statutory source. What was the statutory source of the power to make these regulations?
MS RUBENSTEIN: The Papua New Guinea Independence Act.
GUMMOW J: Section 6?
MS RUBENSTEIN: Section 6, yes, your Honour.
KIRBY J: There is no argument that it is within the statutory source of power as distinct from the constitutional source of ‑ ‑ ‑
MS RUBENSTEIN: Yes, there is, that is the second argument, your Honour, as to whether it is within that power.
KIRBY J: Of course, this is simply shuffling the deck cards of citizenship, which is just a statutory construct. It is not dealing with nationality. It just says if they were citizens, something we gave under our power as a statutory right, then we take it away.
MS RUBENSTEIN: With respect, your Honour, it does involve that but the practical application to Mr Ame is whether he can stay in this country because the Migration Act applies to non-citizens. In this first argument we are actually saying he is still an Australian citizen and the Migration Act, therefore, does not have application to him and he cannot be removed from Australia on the basis of that status.
KIRBY J: But if citizenship is just a statutory construct, what we give and call “citizenship”, why can it not be taken away? It is different from taking away – at least as I see it – Australian nationality, which is a constitutional construct.
MS RUBENSTEIN: Your Honour, I will address those issues in relation to the constitutionality of the provisions in arguing that there are limitations under the aliens head of power that have an impact on Parliament’s power to strip a person of their statutory status of citizenship.
GUMMOW J: Are the recitals to the Independence Act important for us to understand?
MS RUBENSTEIN: We would not have referred your Honours to them in any significant way, because the recitals ‑ ‑ ‑
GUMMOW J: In particular, the last recital.
KIRBY J: They trace the history, do they not? They trace how it came in and how it was then amalgamated, and then how it moves out.
MS RUBENSTEIN: It asserts the independence of the state of Papua New Guinea.
KIRBY J: They are very nicely drawn, if I can say so. I see the hand of Mr John Ewens there. He was first parliamentary counsel.
MS RUBENSTEIN: Your Honours, can I take you to page 43, which is the Part IV citizenship.
GUMMOW J: I know you do not want to look at it, but the significance of the last recital is that all this was coming about because Papua and New Guinea, which had been administered in the one administrative union, was to become an independent state.
MS RUBENSTEIN: Yes, your Honour. We would be submitting that that does not have any impact on the arguments that we are putting ‑ ‑ ‑
GUMMOW J: It suggests arrangements were contemplated that this new independent state would have its own citizenship laws.
MS RUBENSTEIN: Yes, your Honour, and that still is not inconsistent with the individual’s citizenship of another country.
GUMMOW J: Well, that brings you to Singh, I think.
MS RUBENSTEIN: It does, your Honour.
KIRBY J: In fact now, under our citizenship law, you can have dual citizenship.
MS RUBENSTEIN: Well, and not only ‑ ‑ ‑
KIRBY J: And not only in this country but in many countries now.
MS RUBENSTEIN: Indeed. What your Honour is referring to is the repeal of section 17 of the Australian Citizenship Act, but that in fact extended an already existing dual citizenship right of those who were born in another country who, on taking up their Australian citizenship, always had the option of maintaining their former citizenship. In fact it was part of the encouragement to the repeal of Section 17 to encourage an equality between all Australian citizens to that entitlement of dual citizenship. It is a very important point in relation to addressing the issues from Singh that I will happily return to.
In setting up the relationship between the Australian regulations, which is what we are seeking to argue maintain Mr Ame’s Australian citizenship, we need to look at section 65 of the Papua New Guinea Constitution, which is on page 43. The heading can be found at line 33. Section 65 states “Automatic citizenship on Independence Day” and states under subsection (1) ‑ ‑ ‑
GUMMOW J: Have you got the full text of this Constitution?
MS RUBENSTEIN: The full text of the Constitution is appended to the case stated, your Honour.
GUMMOW J: Yes, that is right.
MS RUBENSTEIN: It states that:
(1) A person born in the country before Independence Day who has two grand‑parents who were born in the country or an adjacent area is a citizen.
As the case stated agreed facts determine, Mr Ame certainly fell under section 65(1). However, that needs to be read in conjunction with subsection (4), over the page at line 8, which says:
(4) Subsections (1) and (2) do not apply to a person who—
(a) has a right (whether revocable or not) to permanent residence in Australia; or
(b) is a naturalized Australian citizen; or
(c) is registered as an Australian citizen under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; or
(d) is a citizen of a country other than Australia,unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with Subsection (5).
Each of those first three subheadings, (a), (b) and (c) of subsection 4, refer to the different ways in which Papuans and New Guineans – and I will come back to the New Guineans in a moment - had a connection to Australia. The first is what we refer to as citizenship by birth. The second is by naturalisation, the third is by registration.
The distinction in (a) for Papuans and New Guineans is in line with the argument that we are presenting to the Court, which is that all Papuans by virtue of their birth in the Commonwealth of Australia and of their immediate status as citizens of Australia had a right to permanent residence in Australia by virtue of that status.
GLEESON CJ: That means then that this applied to all Papuans upon independence.
MS RUBENSTEIN: Correct, your Honour.
GLEESON CJ: So that they needed to renounce their Australian citizenship, otherwise they did not get the benefit, if “benefit” is the appropriate term, of automatic citizenship of Papua New Guinea.
MS RUBENSTEIN: Yes, indeed, your Honour, and we would submit that that is in accordance with international principles of choice involved when there is a change as fundamental as a change of a person’s status, so ‑ ‑ ‑
HAYNE J: And prima facie under subsection (5) they had two months to do it.
MS RUBENSTEIN: Correct, although there was an option for them to apply for a further period of time. So it created a context which recognised the difference between Papuans and New Guineans.
GLEESON CJ: So the object of this regulation was to give everybody in Papua a choice between becoming a citizen of Papua New Guinea or remaining a citizen of Australia.
MS RUBENSTEIN: Yes, your Honour, that would be our submission, that in order to interpret the relationship between the two to be consistent with notions of the fundamental status of Australian citizenship.
GLEESON CJ: What steps were taken at the time to enable them to exercise this choice?
MS RUBENSTEIN: None, your Honour.
GLEESON CJ: There would have been a number of people in Papua who were perhaps not au fait with some of these choices they were being offered.
MS RUBENSTEIN: Your Honour ‑ ‑ ‑
KIRBY J: They did not sit up in bed reading the Commonwealth Gazette or the equivalent.
MS RUBENSTEIN: No, indeed, your Honour and in fact, those issues are relevant to our discussion about the constitutionality of the ‑ ‑ ‑
GLEESON CJ: Are they not also relevant to the construction of the regulations? Do not these regulations ‑ ‑ ‑
HAYNE J: This is the Constitution of the new state.
GLEESON CJ: And the Constitution too, yes.
HAYNE J: Why would one read a Constitution of a new state in that fashion?
MS RUBENSTEIN: Because, your Honour, they relate specifically to rights of people and the wording refers to rights of Australian law, so that the Court has a responsibility in interpreting that provision in light of the fact that it is incorporated into the regulation consistently.
GLEESON CJ: But this forms an important part of the context, does it not, of this Constitution, and I am just interested in that aspect of the context in 1975, relevant to the awareness of people in Papua of the fact that they had to choose within two months whether they were going to be citizens of Papua New Guinea or citizens of Australia. Do we have any information that throws any light on that aspect of the context of the Constitution?
MS RUBENSTEIN: The applicant has not any before it, but the respondent being ‑ ‑ ‑
HAYNE J: Do we not? Do we not go for a start to the recitals to the Constitution of PNG at page 11 and following? And do we not there find in the recitals a series of statements which do not sit readily with the notion that a part of the new nation, a significant portion of its people, is within two months to make a choice about something as fundamental as membership of the new nation?
MS RUBENSTEIN: With respect, your Honour, that information can assist the Court, but the more fundamental question for this Court is the impact on those individuals’ Australian citizenship, which is what the Court has a responsibility of interpreting in light of those regulations. So, whilst their practical context is useful, ultimately it would be our submission that the Court is still bound by principles of Australian law in interpreting those provisions. The key words are whether the person:
has a right (whether revocable or not) to permanent residence in Australia ‑ ‑ ‑
HAYNE J: It seems strange to begin the Constitution “WE, THE PEOPLE OF PAPUA NEW GUINEA” when you read on into the Constitution in section 2, page 16, “The area of Papua New Guinea” is, not surprisingly, the geographic area concerned. Now, “We the people of that area, in effect, give ourselves the following Constitution”, why should one read that and say, “Those of Papua are to choose whether they are to become part of this new nation”?
MS RUBENSTEIN: Because, your Honour, it recognises and respects the fact that they had a different historical history. They had a different historical experience in relation to the development of that new nation state.
GLEESON CJ: In construing section 65 of the Papua New Guinea Constitution, are we entitled to take account of what we know about the geographical and social circumstances of Papua at the time?
MS RUBENSTEIN: Your Honour, that would be information that may assist the Court but it is not determinative. We would submit, your Honour, that in fact in looking at that information, it may assist the Court in providing the context but that ultimately it is still bound by an interpretation of that terminology which specifically links back to rights in Australia.
KIRBY J: It must have been hard for all those politicians and so on in the early days of the Australian Commonwealth so full of notions of White Australia to have incorporated Papua in the Commonwealth and to have contemplated full equality in the Commonwealth for all those people in Papua who were not “white”.
GLEESON CJ: That seems to assume the basis of the White Australia Policy was racial rather than economic. Perhaps they were not seen as potential competitors for jobs.
KIRBY J: Or perhaps, even if it was racial, they were seen as a useful security protection for the nation, but that is relevant to what you will come to in due course of the suggested need of such people for a permit to enter the Commonwealth which would not normally have been a requirement of Australian nationality, but was, it is said, in the case of so‑called citizens from Papua and New Guinea.
MS RUBENSTEIN: Yes, indeed, your Honour. It is the respondent’s submission that those Papuans did need an entry permit to arrive in Australia at any time before Papua New Guinea became independent on the basis that at that time there was an administrative process that did distinguish on the basis of race for the purposes of entry. But it is our submission that, whilst that may have been an administrative practice, it was not a legal administrative practice, it was unconstitutional by virtue of ‑ ‑ ‑
KIRBY J: I think I have taken you off your track. It is better that you deal with these things as they come up in the logical argument.
MS RUBENSTEIN: Thank you, your Honour, but it does in fact flow on from the submissions that I am making in that in looking at subsection (4)(a) we do need to move to a question of whether the applicant was someone who was bound by the Migration Act in 1975 because it was the Migration Act framework where that notion of rights to permanent residence in Australia was practised. It is the respondent’s submission, which we would argue is incorrect, that the Migration Act properly governed those Papuans at that time and therefore they were not caught within subsection (4)(a).
In response, the applicant’s submission is that the applicant could not have been an immigrant for the purposes of the Migration Act 1975 and so could not have been regulated legally by the Migration Act because he was not an immigrant to the Commonwealth of Australia, his entire life had been spent in the Commonwealth of Australia, he had made no attempt to leave it and return to it, he continued for all of that time until 1975 to hold that permanent right of residence.
KIRBY J: I want to go back, if I may, to the question Justice Hayne raised because it took you to the opening clauses and Justice Gummow raised it earlier too. On the face of the Constitution of the independent state of Papua New Guinea a new polity in international law was created, a new nation, and they gave themselves their Constitution. It was not in the former manner of the British Empire given to them by us and it asserts the foundation in the people of Papua New Guinea, a dignity which we as a foreign nation should respect. There must have been many cases in constitutional history – and I do not recall reading of it in the written submissions – where nations have split, Ireland from the British dominion and then the British Crown, Pakistan in its two sections, and there must be principles whereby ultimately national constitutional law bends to the reality of large political facts.
The applicant is appealing to our constitutional law but, ultimately, when you are faced with a document such as on page 11, one would think there would be principles for reading our national Constitution in the light of the judicial knowledge of the large constitutional developments that have led to the separation of different states. It must have happened many times, including in common law countries and including in former British dominions. At some stage I think we really need some assistance on how – if any principles of international law have come to light that help in the reading of national Constitutions so that they do not get into a disharmony between the international realities and their own text written on the basis of earlier facts.
MS RUBENSTEIN: Yes, your Honour. In a preliminary way may I suggest that part of the response of the Bench in relation to that matter is reflective of a notion of allegiance, of sole allegiance, and that it precludes an acceptance of the fact that individuals can be connected to more than one nation state without that undermining the sovereignty of either of those states.
GLEESON CJ: Does section 64 of the Papua New Guinea Constitution throw any light on that consideration?
MS RUBENSTEIN: Section 64 assists in determining that for Papuan law they requested those individuals to make a determination and so for that state there was a desire not to have more than one citizenship or a citizenship beyond Papua New Guinea citizenship.
GLEESON CJ: Section 64 is opposed to the idea of dual citizenship, is it not?
MS RUBENSTEIN: Correct, your Honour, but that still does not preclude an Australian citizen from choosing - Mr Ame had to make a choice as to whether he would take up the sovereignty of his new nation and be part of that new nation, or whether he wanted to maintain his Australian citizenship. That is consistent with the notion of a democratic polity that is being started in relation to the links between the individual and the state.
Can I make one further point that might also assist the Court in relation to Australia’s own beginnings. The Commonwealth of Australia Constitution was drafted by the Australian people and was a document that set up for the beginnings of independence in terms of the legislative, executive and judicial functions of the Commonwealth but we retained a connection to a broader notion than just the Australian state. It is not inconsistent with international law for individuals to have more than one connection to sovereign independent states. In fact, the underlying principle in international law regarding nationality is that each state can make its own determination regarding nationality. The end result is that it is possible for two nations to see their individuals connected to those nations as being properly connected and that does not undermine international law.
GLEESON CJ: One of the things that is interesting about section 64 is that if you look at the early provisions of the Constitution declaring rights, they are called rights of citizens and the rights are related to citizenship.
MS RUBENSTEIN: Indeed, your Honour. It therefore sets up clearly in their source document, compared to the Australian Constitution, a clear notion of citizenship as the full status of membership of the community, whereas in the Australian Constitution we have had to deal with the question that Justice Kirby has been raising at the beginning, of the links between a statutory notion and a broader notion.
GLEESON CJ: I was just wondering whether the emphasis they place upon citizenship as a source of rights and their dislike of dual citizenship, as reflected in section 64, has any bearing on the question of construction of section 65 that we are talking about.
MS RUBENSTEIN: With respect, your Honour, we would submit that it does not, because the Court has a responsibility to look at the impact upon the Australian citizen status, and, in looking at the regulation itself, to be interpreting it in light of the consequences for that individual’s nationality.
GLEESON CJ: Yes, but you have raised a question of interpretation of section 65 of the Papua New Guinea Constitution.
MS RUBENSTEIN: Yes, your Honour, and we are submitting that it should be interpreted in a way that is consistent with maintaining principles that underpin the Australian constitutional system.
HAYNE J: Why?
MS RUBENSTEIN: Because if there is an opportunity to preserve an individual’s rights that flow from their status as a full member of the Australian community, at the same time it is fully giving them an option to take up or choose to renounce that. That is the ultimate protection that one can give. So it is the interpretation that provides for consistency with both Australian law and one that still respects the relationship between the individual and Papua New Guinea, because of that option.
HAYNE J: Now, the hinge about which this part of the argument turns is 65(4)(a).
MS RUBENSTEIN: Yes, your Honour.
HAYNE J: Is light shed on the meaning to be given to that expression by the provisions of 64(4), particularly (4)(b)?
MS RUBENSTEIN: First of all, it is clearly an independent section in terms of dual citizenship. To the extent that it is useful, it refers back to that notion of being granted a right to permanent residence.
HAYNE J: But treats that as separate from and additional to the requirement spoken of in subsection (4)(a); that is, it is treated as something separate from the consequence to be attributed to being an Australian citizen by virtue of birth in the former territory.
MS RUBENSTEIN: Your Honour, it uses different terminology, terminology that is unclear on its face. “Real foreign citizenship” is, with respect, an uncertain and ‑ ‑ ‑
HAYNE J: Yes, the expression “real foreign citizenship” is given some content by subsection (4), but the point to which I draw your particular attention is that it seems to me that section 64(4) treats a right, revocable or not, to permanent residence as something separate from and additional to the consequence attached to holding citizenship by birth.
MS RUBENSTEIN: Yes, your Honour. I would submit that it is consistent with paragraphs (1) and (2) by emphasising the fact that there were differences in Papua and New Guinea. It is our submission that those distinctions were crucial – those distinctions are made under section 64(4). Those distinctions underpin section 65(4)(a), because there were some New Guineans who were given those entry permits. A few of them who were given those entry permits to Australia, who were then entitled to take advantage of that in making the choice between choosing to maintain their full membership by virtue of that permanent resident status, which would have then entitled them to be – subparagraph (b) – at some stage a naturalised Australian citizen.
GLEESON CJ: This is an interesting document. It does not just declare fundamental rights, it also declares fundamental obligations.
MS RUBENSTEIN: It does, your Honour. Your Honours, with those arguments in mind, it is the submission of the applicant that he falls within subsection (4)(a) by virtue of the fact that he could never have been an immigrant to the Commonwealth of Australia for the purposes of the Migration Act of 1975, and those ‑ ‑ ‑
KIRBY J: Now, can I just ask you to pause for just one moment for a little footnote. It says in our regulation – because he is appealing to Australian courts and Australian law, and we ultimately will pay great respect to the Papua New Guinea Constitution, but, unless it is incorporated, we apply Australian law here.
MS RUBENSTEIN: Yes, your Honour.
KIRBY J: The regulation 4 talks of:
A person who –
. . .
(b) on Independence Day becomes a citizen of the Independent State –
and there is a provision here for a transitional position of disclaimer.
MS RUBENSTEIN: Yes, your Honour.
KIRBY J: Can I put that out of my mind as not relevant? The criterion adopted by Australian law is what happens on Independence Day of Papua New Guinea.
MS RUBENSTEIN: Yes, your Honour.
KIRBY J: Now, there is no problem in the facts of this case of the fact that, apparently, certain people who were Australian citizens in Papua were given a lead time to elect whether or not they would come into Australian citizenship or become citizens of Papua New Guinea under its constitution.
Can we ignore that in the facts of this case? Is Independence Day the moment of significance both for Papua New Guinea and by regulation 4(b) for Australia?
MS RUBENSTEIN: Yes, it is, your Honour. Independence Day is the day that we need to look at and we look at the provisions within the Papua New Guinea Constitution in ‑ ‑ ‑
KIRBY J: You seem to be wanting to elevate Australian citizenship to some sort of protected national status, whereas, as far as I am concerned, it is simply a statutory status. What is given can be taken away, subject to questions of due process and so on, as distinct from a constitutional status of nationality, which cannot be taken away – the matter debated in Singh.
MS RUBENSTEIN: Yes, your Honour. Your Honour, if I pursue the path that you are taking me down, of ignoring the broader constitutional issues and looking at it purely as a statutory right, then your Honour’s judgment in Re Patterson; Ex parte Taylor, referring to, in Mr Taylor’s case where he had been a non‑alien, issues to do with rights and procedural process, would become relevant.
KIRBY J: Well, that is at the last of your arguments and, anyway, Taylor is water under the bridge, Ms Rubenstein.
MS RUBENSTEIN: Indeed, your Honour, and does not do harm to the applicant in his submissions today. For the purposes of interpreting this section, we would be arguing, consistent with our latter arguments in relation to the constitutional issues, that that statutory status still has an important constitutional consequence, and for that reason, in interpreting these provisions in the Australian legal system, the courts must take those matters into account in its interpretation.
KIRBY J: But how can citizenship have constitutional status? We elected deliberately not to follow the United States Constitution and include the notion of citizenship in our Constitution at the time, as is evident in many judgments of this Court. The notion of nationality was to be a subject of the Queen – a matter referred to in the Constitution – or of the Empire. That was the way people looked on their nationality.
MS RUBENSTEIN: In 1901, and as the Court determined in Singh, we are not wedded to the meaning of “alien” in 1901 to this very day. The submission of the applicant is that the evolution of our understanding of the term “alien” has incorporated the significance of the statutory status of citizenship to the extent that it is fundamental that the Court, in looking at the deprivation of such a status, must take into account its consequence in a constitutional context.
GLEESON CJ: Ms Rubenstein, have the courts of Papua New Guinea ever had to determine the question whether Papuans who did not within two months opt to become citizens were citizens of Papua New Guinea? Has that question not arisen for judicial determination there?
MS RUBENSTEIN: I do not know the answer to that, your Honour. In our research we did not determine that this had been a matter determined in Papua New Guinea, but I can take it on notice.
GLEESON CJ: I would be obliged if you would. It would be a considerable indiscretion on our part if we did not at least look for that.
MS RUBENSTEIN: Indeed, your Honour. The respondent has confirmed that they have looked for it and there is not any authority.
GLEESON CJ: I cannot help being struck by a reading of the preliminary parts of the Constitution by the importance they attach to the difference between citizens and non-citizens themselves and they seem to be very sensitive to the position of what they describe as “non-citizens carrying on economic activities in or from our country”.
MS RUBENSTEIN: Yes, your Honour, but it would still be the submission of the applicant that having created that status did not deny him the possibility of choice in that process and that, given he had a former citizenship or status as a member of another community, that there was an opportunity for that individual to make that choice.
GLEESON CJ: And your argument is it is not just a matter of choice, it is a matter of election, is it not?
MS RUBENSTEIN: Correct.
GLEESON CJ: He had to elect within two months whether to be a member of the Papua New Guinea community or to remain a member of the Australian.
MS RUBENSTEIN: That is the framework within which the Papua New Guinea Constitution established it. The broader principle, I am submitting, your Honour, is that this in fact is consistent with principles that recognise the sovereign rights of each state to determine who its nationals are and so that the individual who is previously a national of another state can, if he or she so chooses, he in this instance, to maintain it.
GUMMOW J: But it is a consequence of your submissions, is it not, that a large segment of the population of PNG are not PNG citizens because they did not go through this procedure?
MS RUBENSTEIN: Yes, your Honour, that is indeed correct.
GUMMOW J: That seems an alarming state of affairs.
MS RUBENSTEIN: Your Honour, first of all “large” is proportional in the sense if we look at those issues, Papuan population was smaller than New Guinea but, with respect, your Honour, the Court in making its decision should not be influenced by the ‑ ‑ ‑
GLEESON CJ: Why? You mean we should not hesitate to declare most of the people who live in Papua are not citizens of Papua New Guinea? Do we happen to have any information about how many people did make the election that you say was necessary to make within two months?
MS RUBENSTEIN: No, your Honour, we do not have that information. The respondent may have that by virtue of the fact that Papua was part of the Australian Commonwealth and all of the material in relation to Papua ‑ ‑ ‑
GUMMOW J: This is just not an intellectual game, you know.
MS RUBENSTEIN: With respect, your Honour, that is right. Mr Ame here is seeking to remain in Australia and we are, as his advocates, seeking to persuade the Court that there is a real consequence for him.
GLEESON CJ: There seem to be a great many other people affected by your argument.
MS RUBENSTEIN: Yes, your Honour, and, with respect, the Court has a responsibility in interpreting the rights of Australian citizens in light of the constitutional parameters that this Court is seeking to administer and interpret. In interpreting the Australian Constitution its first responsibility is to the Australian people rather than necessarily to the comity between nations.
Your Honours, to conclude this aspect of the discussion, may I also seek to draw attention to two authorities that the respondent placed in their submissions regarding a proposition that Australian citizens could in fact come within the scope of the Migration Act.
HAYNE J: Is this a point about construction? Is it a point about validity? What is the point now being made, that the Migration Act did not on its construction have some consequence, or is it a point about validity?
MS RUBENSTEIN: Your Honour, it is within the context of construction because in construing the relationship between the regulations and the Constitution, it requires us to interpret the meaning of “permanent residence in Australia”. It therefore requires the Court, in that process of construction, to determine whether Mr Ame was a person who was bound by the Migration Act and so it takes us down to a constitutional issue in resolving that construction point.
HAYNE J: But was “permanent residence” a statutory term found in the Migration Act at the time of PNG independence?
MS RUBENSTEIN: The relevant sections of the Migration Act are found in the respondent’s submissions at page 24. At the bottom of that page, in the interpretation of the Migration Act, there is a reference to the term “immigrant”.
KIRBY J: Which section is this? Because I have a print which begins at page 771. Is that the wrong print?
MS RUBENSTEIN: I am referring to the extract of the Act that is found in the respondent’s submissions.
GUMMOW J: Yes, I know. We are referring to the statute of which you have a copy.
MS RUBENSTEIN: Page 24 of the respondent’s submissions, where section 5 of the Migration Act is extracted. The definition of “immigrant” that is extracted at the bottom of that page:
includes a person intending to enter, or who has entered, Australia for a temporary ‑ ‑ ‑
GUMMOW J: Now, where do we get the meaning of “Australia”?
MS RUBENSTEIN: The Act itself does not define Australia.
GUMMOW J: Yes, what did the Interpretation Act say at that time?
MS RUBENSTEIN: The Acts Interpretation Act sought to exclude the external territories from the meaning of “Australia”.
HAYNE J: That was section 17(a) of the Acts Interpretation Act.
Australia or the Commonwealth means the Commonwealth of Australia and, when used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.
MS RUBENSTEIN: Correct, your Honour. So there was an attempt by Parliament to exclude Papuans from ‑ ‑ ‑
GUMMOW J: I thought we were dealing with construction at the moment.
MS RUBENSTEIN: We are, your Honour, but in doing that ‑ ‑ ‑
GUMMOW J: So the construction is “immigrant” had that meaning in reference to Australia, is that right?
MS RUBENSTEIN: Correct, your Honour, but in terms of determining the term “permanent residence in Australia” for the purposes of the relationship between the Papua New Guinea Constitution and the Australian regulations, this Court has to determine who was entitled to permanent residence in ‑ ‑ ‑
GUMMOW J: We have to construe the Act first. We have to construe the legislation first, then we see if it is invalid.
MS RUBENSTEIN: Correct, your Honour.
GUMMOW J: I thought we were at step one.
MS RUBENSTEIN: Step one is determining whether the Act sought to apply to him, and the respondent’s submissions are that it did, by virtue of section 17 of the Acts Interpretation Act and by virtue of section 5(4)(b) when it refers to someone returning to Australia “without having entered any country other than a Territory outside Australia”. So the applicant ‑ ‑ ‑
KIRBY J: First of all, would one normally interpret the definition of “immigrant”, referring to a person intending to enter who is a citizen? I would not normally read that as referring to a citizen. Normally, a citizen as such is not an immigrant. A citizen is a member of the polity.
MS RUBENSTEIN: Indeed, your Honour. That is also part of our argument in relation to the application of the Migration Act to Mr Ame.
KIRBY J: Depending upon what rights are given to citizens.
MS RUBENSTEIN: Citizenship, correct.
KIRBY J: Because that is not a constitutional construct. It is what Parliament says, so long as it is within power.
MS RUBENSTEIN: Your Honour, it would be our submission that Mr Ame, as a citizen of Australia, was not an alien and therefore could not be regulated by the Migration Act by virtue of his non‑alien status ‑ ‑ ‑
KIRBY J: No, but “citizen” is just a statutory status. It is not a constitutional status. So why can it not be regulated?
MS RUBENSTEIN: Because, your Honour, in addition to that notion that I will seek to develop in relation to the relationship between the statutory status and the constitutional status, is also the notion of “immigrant”. At this stage it is clear that the Migration Act was enacted under the immigration power, and, whether one is concerned about the statutory relationship between citizenship and alien, by virtue of his citizenship he had always lived in the Commonwealth of Australia. It is a point that my colleague, Mr Williams, will also develop in relation to people of the Commonwealth.
GLEESON CJ: Your argument, as I understand it, is that Mr Ame is a citizen of Australia and not a citizen of Papua New Guinea. Like most Papuans, he is not a citizen of Papua New Guinea. That is your argument.
MS RUBENSTEIN: Indeed, your Honour.
GLEESON CJ: Tell me, do you need to be a citizen in order to be able to vote in Papua New Guinea?
KIRBY J: Yes, there are certain provisions that I saw that are limited to citizens, one of which is voting.
GLEESON CJ: I was only wondering whether you were inviting us to disenfranchise most of the residents of Papua.
KIRBY J: Section 50.
MS RUBENSTEIN: Your Honour, I am asking the Court to not be concerned with the implications for Papua, because it is an independent sovereign state ‑ ‑ ‑
GLEESON CJ: When we are construing the Constitution of Papua New Guinea we should not, you say, be concerned with the implications for Papua?
MS RUBENSTEIN: Your Honour, the submission would be that you should not be dictated to by virtue of that fact, that it is possible for an outcome to be reached whereby Mr Ame is still a citizen and entitled to the rights that flow from his membership of the Australian community. For Papua, as an independent state, it can choose how it would respond to the fact that Australia recognises him still as an Australian citizen.
KIRBY J: Section 56(1) is the section that I was referring to:
Only citizens may –
(a) vote in elections for, or hold, elective public offices; or
(b) acquire freehold land.
GLEESON CJ: So your argument is that your client does not have the right to vote in Papua New Guinea and does not have the right to acquire freehold land?
MS RUBENSTEIN: It is not for this Court to determine his rights in Papua New Guinea, it is for this Court to determine his rights in Australia, your Honour.
KIRBY J: But you understand that when a court has a duty to interpret a document it does not generally adopt an interpretation which is so grossly inconvenient and even absurd that it would dismember and wound the parties to the document, in this case, the independent state of Papua New Guinea. It is such an unlikely consequence that one then says, well, is there an ambiguity? Is there some other interpretation that one can give to the document?
MS RUBENSTEIN: With respect, your Honour, that is in balancing with the rights of the individual before this Court in terms of his rights to be present in the country of his citizenship. There is a responsibility, similarly, in construing any statute to interpret it in a way that does not strip an individual of fundamental rights that are associated with that status.
KIRBY J: Well, the Commonwealth says in its written submissions that that is begging the question. You are saying he has the right, as a citizen, and the question is whether your construction of the Papua New Guinea Constitution and our law, including the regulation, requires such a grossly inconvenient result for Papua New Guinea, or whether there is some other interpretation that does not have that apparently absurd consequence that many people in Papua New Guinea, who are apparently citizens, are not citizens, cannot vote and cannot hold freehold land. What a disruption that would cause.
MS RUBENSTEIN: With respect, that is the Court’s view of it being absurd. There would be many individuals in Papua who would not necessarily find that absurd. If we look at the greater political context, there is an entire movement in Papua of Papuans who assert their Australian citizenship.
HAYNE J: Can I take you back to this question of the construction of the Migration Act. It is asserted against you that on its true construction the Migration Act would have treated Mr Ame as an immigrant. Do you dispute that that is the proper construction of the Act?
MS RUBENSTEIN: Your Honour, there is a first point that Justice Kirby raised in terms of the meaning of “immigrant” possibly including “citizen”. The applicant does not dispute that the words of the Act sought to require him to have an entry permit to enter.
GUMMOW J: And where do we see that, looking at the Migration Act?
MS RUBENSTEIN: The definition of “Territory” under subsection (4)(a) refers to people returning to Australia “without having entered any country other than a Territory outside Australia”, and so the respondent would be submitting that he by virtue of his birth had entered a territory outside Australia.
HAYNE J: No. Look, can we grapple with the words. Subsection (4):
a person shall not be deemed –
amongst other things –
to enter . . . Australia –
That is of significance for the definition of “immigrant” appearing earlier:
a person shall not be deemed to . . . enter or re-enter Australia, where, having left Australia –
that is, having left that geographic area which excludes the external territories, that person returns without having entered anything other than an external territory.
MS RUBENSTEIN: Yes, your Honour.
HAYNE J: Now, is not the consequence of reading the definition of “immigrant” in the light of subsection (4) the consequence that in its terms, the Migration Act would have treated Mr Ame as an immigrant?
MS RUBENSTEIN: In its terms on its face, yes, your Honour, the applicant does not dispute that. What the applicant submits is that the Migration Act in referring to Australia constitutionally must have meant the Commonwealth of Australia, because the consequence is that Parliament has the capacity to excise, as it currently does, any part of the Australian territory for the purposes of the Migration Act. The consequence of this approach would be that any part of Australia could be excised for the purpose of the Migration Act in order to make people in that excised territory immigrants for the purposes of the Migration Act. So it would give Parliament the power to regulate non-aliens under the immigration power, which the applicant submits is not consistent with the notions underpinning those heads of power.
Therefore, in interpreting the Migration Act in light of its Constitution source, “Australia” for the purposes of the Migration Act must be the Commonwealth of Australia, and the applicant had never left the Commonwealth of Australia. He had been born in ‑ ‑ ‑
GUMMOW J: No, the Migration Act 1958 as it then stood was based on the immigration power.
MS RUBENSTEIN: Correct, your Honour.
GUMMOW J: And there was an assumption that the immigration power operated in respect of external territories, no more. You want to say that there was some terrible threat about internal passports inside mainland Australia, but that was not the assumption of all this.
MS RUBENSTEIN: No, your Honour.
GUMMOW J: The assumption was that external territories were in some special class and that the migration power applied.
MS RUBENSTEIN: Which, your Honour, we would submit is inconsistent with the terms of the Constitution in terms of the covering clauses that we began with and the judgment in Spratt v Hermes. So we are saying that it would be beyond the power to treat the external territories as separate for the purposes of the immigration power.
GUMMOW J: So you say these sections are invalid?
MS RUBENSTEIN: Correct, your Honour, or must be read down in a way that is consistent with the Commonwealth Constitution so that Mr Ame ‑ ‑ ‑
GUMMOW J: I do not know how they can be read down.
MS RUBENSTEIN: Read down to be Australia as the Commonwealth of Australia, as opposed to any part of Australia that the Parliament chooses for the purposes of the Migration Act.
KIRBY J: You say that the Commonwealth cannot use the migration power to regulate the movement to and from Australia of nationals for the purpose of the Constitution?
MS RUBENSTEIN: Correct, your Honour.
KIRBY J: And that for this purpose, apart from their being citizens, Papuans were nationals. Is that what you are saying?
MS RUBENSTEIN: Yes, your Honour, and it is the point that Mr Williams will be continuing with, that they were people of the Commonwealth.
GUMMOW J: It might have shocked the founding fathers, I think.
MS RUBENSTEIN: There is probably a lot about the Constitution today that would shock the founding fathers in the interpretation. That should not be the basis for the way the Court here interprets that section.
GUMMOW J: That is irrelevant.
MS RUBENSTEIN: It is not irrelevant, your Honour, but it is not the determinative factor.
KIRBY J: I can understand the contention that – “migration” one thinks of as coming from outside into your community. That seems to be notion.
MS RUBENSTEIN: Correct.
KIRBY J: Now, the question is whether it is consistent with that notion, which, in a sense, protects all Australians, so that you cannot simply say, well, people in the Northern Territory, we are going to say, “Really, you have to be migrants and you have to go through a special barrier and so on”. You can test it, in a sense, that way.
MS RUBENSTEIN: Correct.
KIRBY J: If you cannot do that, the question then becomes, can you, however, say that certain external territories are in a different class? Is that constitutionally competent?
MS RUBENSTEIN: Then we would argue that the answer is no, by virtue of those provisions in the Constitution earlier referred to, the covering clauses and the statements of the Court in relation to section 122, which refer to the nation as “one” and that something as fundamental as the right to be part of the nation is at the very essence of that union.
GUMMOW J: All of this links back, does it not, into your argument about the Papua New Guinea Constitution and this phrase in section 65(4):
has a right (whether revocable or not) to permanent residence ‑ ‑ ‑
MS RUBENSTEIN: Correct.
GUMMOW J: The Chief Justice invited your attention to 64(4)(b):
was never granted a right (whether revocable or not) to permanent residence ‑ ‑ ‑
MS RUBENSTEIN: It is different terminology.
GUMMOW J: Is not that the sort of right that is being talked about in 65 and is that not a statutory right? That is what they were thinking about.
MS RUBENSTEIN: It would be in relation to the New Guineans and this is where that distinction becomes important, because New Guineans, as not being members of the Commonwealth ‑ ‑ ‑
GUMMOW J: No, you do not understand what I am putting to you. The PNG Constitution, when it talks about “permanent residence in Australia”, was drafted on the basis that the then Australian Migration Act was valid.
MS RUBENSTEIN: And if it is not, your Honour, then it cannot guide the Australian court in interpreting the regulations that it is interpreting there.
GUMMOW J: No. The factum on which it operated was the Australian statute as it stood in the statute books. That is what I am putting to you, and that surely accords with the common sense of it.
MS RUBENSTEIN: But it does not deny the applicant’s argument, your Honour, with respect, that in interpreting the regulation in Australia and then looking at that the responsibility of the Court is to weigh those matters, which are not determinative, with fundamental matters to do with the status of Mr Ame here as an individual in Australia.
Your Honours, my concluding point in relation to this construction argument is in relation to that underpinning constitutional issue in relation to his right to permanent residence at 1975. The respondents refer to two High Court decisions in support of the Full Federal Court decision of Minister for Immigration v Walsh, which had interpreted that section in a way consistent with the respondent’s submissions. It is the applicant’s submission that those cases that are relied upon are distinguishable from this case. One is O’Keefe v Calwell (1949) 77 CLR 261, where Chief Justice Latham, in dissent, appeared to propose that someone who is a citizen could be regulated under the immigration power. As I said, he was in dissent, and the matter is distinguishable on the basis of Mrs O’Keefe, citizen ‑ ‑ ‑
GUMMOW J: What is the particular passage in Chief Justice Latham?
MS RUBENSTEIN: The respondents refer to (1949) 77 CLR 276 to 277. In those passages which they refer to, there is a discussion about who could be controlled under the immigration power, and Ms O’Keefe – this case was within two months of the Naturalisation Act – the Nationality and Citizenship Act, as it was then called - coming into force. Most of the attention was in relation to her status as someone who had been prevented before that status had been bequeathed upon her with a temporary right, and by virtue of her marriage to a British subject she was transformed into a British subject and then, by virtue of the Act two months earlier, became a citizen. Not as much attention was given to that notion of citizenship as has the Court since that date.
The other case that the respondents refer to is the case of Donohue v Wong Sau, which is a 1925 decision that was before the Nationality and Citizenship Act came into being. So the discussion was about whether someone was a constituent part of the Australian community. In that case the Court looked at the circumstances of Mr Wong Sau in determining whether that person had been a constituent part of the community. If we apply that to Mr Ame, he was always part of the Australian community by virtue of his birth in Australian territory and his citizenship as an Australian citizen.
Therefore, in conclusion on this point, your Honours, it is the applicant’s submission that given he did fulfil section 65(4)(a) of the Papua New Guinea Constitution, he did not become a citizen of Papua New Guinea and he did not, as the case stated sets out, at any stage renounce his Australian citizenship. So he remains to this day an Australian citizen by virtue of section 10 of the Australian Citizenship Act and, therefore, in relation to the case stated questions, he is not bound by the Migration Act and the Commonwealth does not have the power to remove him under the sections indicated for consideration.
KIRBY J: Is there anything in the Papua New Guinea texts on their Constitution as to what was meant by “has no real foreign citizenship”? One would read that to mean, “Well, we know that Australia pretended that we were their citizens, but we weren’t their real citizens because you needed a permit to enter their country and therefore we’re not fooled any more. We will say that was not real citizenship”. Is that what it means?
MS RUBENSTEIN: Your Honours, even if the respondent suggests that that is the meaning, it is the applicant’s submission that that notion of “real citizenship” is not an illegal notion.
GUMMOW J: But it is a defined term.
KIRBY J: Well, it is a legal notion. It is in the Constitution.
MS RUBENSTEIN: In Australian law.
GUMMOW J: It is a defined term in section 64(4). That explains what it means in 64(1), does it not?
MS RUBENSTEIN: Yes, your Honour.
GUMMOW J: That is why I took to section 64(4)(b).
MS RUBENSTEIN: But the underpinning argument of the applicant is that in interpreting the Australian regulation that links back to this Constitution, the Court is under a duty to interpret this Constitution in a way that is consistent with the protection of the Australian citizen’s rights. So that even if the intention was as Justice Kirby has just stated, there is still the responsibility on this Court to find an interpretation that is consistent with protecting the rights of the individual before it.
KIRBY J: That is so, but at least one interpretation of regulation 4 is that Australia was also dropping the pretence and was saying that “We know we’ve had this pseudo citizenship before, but we have it no longer because if the person on Independence Day becomes a citizen of the independent state of Papua New Guinea, by our law he ceases on that day to be an Australian citizen”.
MS RUBENSTEIN: Which then takes me to the constitutional point, your Honour.
KIRBY J: If that is valid, then that is reasonably clear. You would not want to have a law that allowed the Parliament or even a lawmaker under a law of the Parliament to strip Australians of their citizenship too lightly. There has been a lot of law in the Supreme Court of the United States but that is because citizenship is a specific status in the United States Constitution and not in ours.
MS RUBENSTEIN: Your Honour, you are drawing me to those arguments which I am happy to pursue and, indeed, all our time so far has been spent on this construction point. We have alternative arguments if the Court is not persuaded by those and I am happy to continue with those two alternative arguments.
GLEESON CJ: Go ahead.
MS RUBENSTEIN: The second argument is in relation to the regulation being invalid as beyond section 6 of the Papua New Guinea Act. It is the applicant’s alternative argument that section 6 of the Papua New Guinea Independence Act 1975 did not authorise regulation 4 of the Papua New Guinea Regulations. As your Honours can see in paragraph 39 of the applicant’s submissions on page 8, section 6 of the Papua New Guinea Independence Act, the source of the regulations, stated that:
The Governor-General may make regulations making provision for or in relation to matters arising out of or connected with the attainment of the independence of Papua New Guinea, including regulations making modifications or adaptations of any Act.
Your Honours, this section is a section that is often described as a “Henry VIII clause”, a statute giving the delegate, here the Governor-General, the apparent unfettered power to subvert the delegating Act or another Act by subordinate legislation. In order to protect against the dangers of such clauses and in the interpretation of this particular section, it is the applicant’s submission that the Court should adopt your Honour Chief Justice Gleeson’s approach in the case of Singh v The Commonwealth (2004) 209 ALR 355 at 362.
KIRBY J: Which paragraph?
MS RUBENSTEIN: At paragraph [19], his Honour stated:
Acknowledging that “[i]ntention of the Legislature” is a “very slippery phrase”, courts, and parliament itself, refer to “intention” or “intent” in stating rules and principles of statutory interpretation. For example, a principle of interpretation, referred to by this court in several recent judgments, is that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language.
The applicant’s rights as a citizen or as a non-alien or as a person of the Commonwealth were indeed fundamental. They constituted his very right to be present in the country of his birth and to be protected from deportation. Moreover, if one views the right as a pure statutory right, it is a statutory right, as I have said earlier, that impacts upon his constitutional status and so fits squarely with the concepts of fundamental rights that your Honour Chief Justice Gleeson stated the Court seeks to protect.
As section 6 was not explicit about depriving him of this status, its scope must be read down, so that regulation 4 is not authorised by this section and it is invalid. The respondents seek to argue that section 6 is clear in its intention to deprive Australian citizens of their status because they argue that the future status in Australian law of the persons who lived in the new nation was – and I quote from their submissions:
clearly a matter arising out of or connected with the attainment of the independence of Papua New Guinea –
We would argue that this is not the case, and indeed, as I have mentioned earlier, can be refuted by looking at Australia’s own Constitution. Australia’s Constitution was a document and is a document that reflects steps towards independence from the United Kingdom, but the clarity of the status of members of the new Australian community and their relationship to the United Kingdom was not made clear in our foundational document.
Rather, the Constitution was set up to establish frameworks for the legislative, executive and judicial functions of the new Commonwealth of Australia.
So, too, we would argue that section 6 is confined, in the regulations that flow from it, to matters to do with the transferral of independence in relation to those very fundamental aspects of governance, legislative, executive and judicial functions, and that if the intention had been to change the fundamental status of Australian citizens, more words, specific words, needed to be included.
Your Honours, that completes my submissions regarding that second issue, and I now wish to move onto the third aspect of my oral argument. If these two previous submissions are not ‑ ‑ ‑
KIRBY J: Just pause there, because section 6(1), which relates to the regulations, the regulation‑making power, is in very – the words are quite broad:
matters arising out of or connected with the attainment of the independence of Papua New Guinea –
The Papua New Guinean people, through their constituent assembly, had given themselves a constitution. The constitution contained many provisions – I counted about five or six – that are posited on citizenship, and the dual citizenship notion had not, as it were, been embraced at that time. So, given that background, why would it not be a correct interpretation of section 6(1) to say that such a matter is one:
arising out of or connected with the attainment of the independence of Papua New Guinea –
as we meant it by that subsection, and as Papua New Guinea itself contemplated in the document which had been presented before the Papua New Guinea Independence Act 1975 of Australia was enacted by our Parliament?
MS RUBENSTEIN: Your Honour, it would be our submission that whilst that may be an interpretation, it is one that the courts have to impute, and that, given its strong and fundamental consequences on the Australian citizenship of the individuals, that is one that should be resisted. To return to the broader point that I am about to address in relation to the aliens head of power, there is nothing inconsistent with Australia recognising those individuals as Australian citizens, and, as a matter of international law, for the Papuans, for their own purposes, to continue to recognise those individuals as Papuans, Papua New Guineans.
May I turn then to the third argument, which is the first part of the constitutional argument. As I indicated earlier, I will deal with that first part in relation to whether section 6 is constitutionally valid in light of section 51(xix) of the aliens power. My colleague, Mr Williams, will then look at the question of whether the implications drawn from the aliens head of power can then impact on other heads of power to constrain those other heads of power that may have been sought by the respondent to be relied upon for section 6.
GUMMOW J: But does not section 122 imply a negative as well as the positive? That is what is said against you. Territory is acquired. Does it not carry with the negative that they may have to be divested?
MS RUBENSTEIN: Yes, your Honour, but that does not still preclude an interpretation ‑ ‑ ‑
GUMMOW J: Is there not a head of legislative power then in respect of the divestment?
MS RUBENSTEIN: We would submit, your Honour – and Mr Williams will ‑ ‑ ‑
GUMMOW J: Quite apart from anything in section 51.
MS RUBENSTEIN: We would submit, your Honour, there is a broader principle quite apart from section 51, that is the final part of our submission, that as a person who is a “people of the Commonwealth” there are constraints within any of the legislative powers exercised, whether they be section 51 or section 122, that constrain the Parliament in relation to the deprivation of that status of “people of the Commonwealth”.
GLEESON CJ: That is Mr Williams’ argument.
MS RUBENSTEIN: That is. Your Honours, it is the applicant’s submission that section 51(xix), the aliens and naturalisation power, contains a limitation that prevents that power from being applied to unilaterally change a person’s status from non‑alien to alien; that is, in order to be within the head of power the change must involve the consent of the individual either through voluntary renunciation or through some action that shows a clear intention to no longer be a member of the Australian community.
To persuade the Court of this limitation, I will take your Honours to some accepted principles established by this Court. Australian citizenship as a statutory legal status has, despite Justice Kirby’s reminders this morning, been accepted on numerous occasions by the majority of this Court as providing a framework for understanding the meaning of “non‑alienage” or “full membership” for the purposes of the Australian Constitution. As this Court most recently determined in Singh v The Commonwealth, the term “alien” is not wedded to its common law meaning in 1900. So that a person who is not an Australian citizen is an alien for the purposes of the Constitution.
Can I take your Honours to Chief Justice Gleeson’s statement in Singh v The Commonwealth 209 ALR 355 at page 357 paragraph [4]. Your Honour stated:
I have previously stated my view that, subject to a qualification, parliament, under paras (xix) and (xxvii) of s 51, has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode. In that regard, Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, that the effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship was that alien in s 51(xix) of the Constitution had become synonymous with non-citizen.
Your Honours, this reliance on the statutory concept of citizenship has been central to the decisions concerning British subjects who were not Australian citizens. While this is not the concern of the matter before us, as Mr Ame was, from the time of his birth, an Australian citizen, its importance for the applicant is through the significance attributed by this Court to the statutory status of citizenship as a measure of determining who is not an alien for the purposes of section 51(xix) of the Constitution.
KIRBY J: I think all members of the Court in Patterson and in Singh, certainly, in Patterson, said that the notion of Australian nationality was an evolving one. At the beginning of the century, at Federation, everybody regarded themselves as a British subject and a subject of the Empire. Somewhere between then and the end of the century, people regarded themselves as an Australian national and that was defined in Australian citizenship. The debate was about when that happened and how it happened, but I do not think there is a dispute within the Court that that change occurred. That change is founded on facts, constitutional facts and reality.
MS RUBENSTEIN: Yes, your Honour, and it is those facts and reality, it is that change in Australian nationhood and the Court’s acceptance of the changed meaning of “alien” to take into account the changing ‑ ‑ ‑
GUMMOW J: This case is all about the development of the Papua New Guinea nationhood. That is the political fact. I know you keep saying it is not, but it is.
MS RUBENSTEIN: Your Honour, it is a case that is dealing with the citizenship status of a person before the Court and so fundamentally is dealing with the capacity of Parliament to deprive a person of their status as a member of the community. That underpins the approach that we submit the Court must take into account in interpreting the facts before it, rather than being only concerned with what the Court has been asking questions ‑ ‑ ‑
GUMMOW J: Do you say it was beyond the power of the Parliament, at the time of independence of PNG, to validly legislate a situation whereby there was any result other than that there was a closed class – people born before the Independence Act came into force – and that class remained and until they died off there would be Australian citizenship and, tough, they could not also acquire PNG citizenship?
MS RUBENSTEIN: No, indeed, we are not, your Honour. We are not saying that it is beyond Parliament’s power to deprive it, but that there are constraints.
GUMMOW J: Unless, you would say, there was some individual assent.
MS RUBENSTEIN: Involvement. Correct, your Honour, or some action by the individual which evidences a desire to no longer be a member of that community. So, for instance, if Mr Ame had independently taken up Papua New Guinea citizenship with the knowledge that it meant that he would lose his Australian citizenship, then that would be – if that had been built into the regulations clearly, that the individual made that choice, then that clearly would be within the power, because the argument that the applicant is submitting is that this evolving notion of membership of the community is a more democratic notion that requires consensuality rather than a unilateral, absolute decision made by those in power, which is more akin to notions of allegiance that have been accepted by this Court to have been outdated.
Indeed, your Honour Justice Gummow, together with Justice Hayne, in Re Patterson referred to the fact that allegiance is not the concept that this evolved notion of membership of the community uses as a framework for determining membership, yet ‑ ‑ ‑
GUMMOW J: I am worried about the territories power, Ms Rubenstein. Everyone seems to be fixated on section 51. I am worried about section 122 and the restraints you would place on the powers under 122 to deal with territories that have been “otherwise acquired by the Commonwealth”.
MS RUBENSTEIN: Can I leave, your Honour, my learned colleague Mr Williams to address your concern.
GUMMOW J: Yes, all right.
MS RUBENSTEIN: Can I continue with this argument and conclude by saying that in various statements, those that I have just indicated, moreover Justice Gaudron in Re Patterson; Ex parte Taylor recognise that there is a power and the applicant is not denying that the Parliament has a power to deprive a person of their citizenship. Section 21, for instance, of the Citizenship Act deprives the person of their citizenship if they have gained it by fraud. Section 19 ‑ ‑ ‑
GUMMOW J: You may be right about all of that, I will not say it again, and I can understand the force of some of that. We know what has happened in various totalitarian states about stripping their people of their citizenship and so on, but you do not need to get into that if you get into Commonwealth power through section 122, and I will not say any more about it.
MS RUBENSTEIN: Your Honours, we would submit that the change in Territory of Papua New Guinea becoming an independent state was not in and of itself enough to deprive Mr Ame of his Australian citizenship. There had to be some further requirement in the Australian regulations to bring it within the aliens power that recognised that he was involved in the decision of changing from non-alien to alien which, your Honour Justice Kirby, is consistent with the broader principle that you have been advocating in relation to the case of British subjects. That is, membership and a change of membership requires some involvement by the individual concerned, but in the matter before us Mr Ame does not fit into that category. He fits into the category that the Court has acknowledged is an evolved category that fits with the notion of non-alien as a citizen. So in legislating within that head of power, which is the only one I am addressing at the moment, there is a constraint that was not taken into account and as such the regulation is constitutionally invalid.
KIRBY J: You would have to be just a little careful in so construing section 122 as to disjoin it from the Constitution in a way that would permit on that theory the Parliament to take away the citizenship of Australians who live in the Australian Capital Territory or in the Northern Territory of Australia. I think in Newcrest and in other cases the Court has said that you have to read section 122 in the context of the Constitution as a whole.
MS RUBENSTEIN: Indeed, and in that extract that I read from Spratt v Hermes, Chief Justice Barwick was saying that you do not look at section 122 as a complete section, that there is a context that one has to consider in its application, and that it is not sufficient, and Mr Williams will continue in developing much more ‑ ‑ ‑
KIRBY J: There is a limit to the Engineers’ Case.
MS RUBENSTEIN: There is your Honour, but Mr Williams will deal with that also.
KIRBY J: This is, after all, a Federal Constitution for the whole Australian nation.
MS RUBENSTEIN: Indeed, your Honour. In conclusion, your Honours, the most significant restraints in this submission ‑ ‑ ‑
KIRBY J: But why would it be outside the aliens power for the Parliament of Australia in the context of the development of one of its external territories to entire full nationhood to use that power to recognise the readjustment of the citizenship of people who had been called citizens but were subject to various disqualifications and thereby, as it were, to regulate the transfer from our polity to a new polity. Why is that outside the aliens power?
MS RUBENSTEIN: Because, your Honour, even within that context of the change of territory, the notion of non-alien or member of the community has imported, by virtue of this evolution to citizenship as the framework for thinking about that, a more democratic notion that involves the individual. So the applicant is not submitting that he was beyond power in its entirety but that there are limitations on the way in which that transfer needed to be fulfilled. One of those limitations is the involvement of the individual of either making a decision to renounce his citizenship or some clear acknowledgement in action that he no longer was going to be a member of the Australian community. And that did not occur by virtue of regulation 4, and so to that extent ‑ ‑ ‑
GUMMOW J: No, but the Act was careful to recite the institution of the House of Assembly in New Guinea, elections had taken place, there was a resolution to adopt this new constitution, all very democratic in PNG.
MS RUBENSTEIN: Your Honour, that leads me to an important point to conclude, which is that the decision in Singh raises a very interesting consequence for the Australian people. The decision in Singh, your Honour’s and Justices Heydon’s and Hayne’s decision appears to state that a person who owes allegiance to another country becomes an alien for the purposes of the aliens head of power. Now, as I mentioned earlier, for a very long time there have been individuals who have held both citizenship of another country and Australia. So the Court has said ‑ ‑ ‑
GUMMOW J: There is no reason why legislation cannot – it is a law with respect to aliens to say you can have two citizenships. What is the problem?
MS RUBENSTEIN: The consequence, your Honour, is that you are both an alien and a non‑alien at the same time, because as a citizen ‑ ‑ ‑
GUMMOW J: No, the Citizenship Act, as it did to certain Irish people after 1949, permits them to be Australian citizens.
MS RUBENSTEIN: The Citizenship Act, as it currently presents, allows individuals to hold more than one citizenship.
GUMMOW J: Yes, that is right.
KIRBY J: Apart from the anomalous case of the Irish, that is a relatively new development, is it not?
MS RUBENSTEIN: Well, your Honour, no, it is not, because of the reality since the early period of Australian citizenship where, by virtue of international law, in fact, Australia could not require an individual to give up their former citizenship.
KIRBY J: I thought that people who were naturalised had to renounce their other citizenship, until quite recently.
MS RUBENSTEIN: There was a statement up until 1966, a formal statement, but, as Sykes v Cleary established, that could not have an impact on the way that country viewed their citizenship. So making a statement in Australia was not sufficient to necessarily deprive that individual, and the realities of international law are that individuals can be members of more than one state.
KIRBY J: I thought the Act was only changed within the last two or three years to permit dual citizenship.
MS RUBENSTEIN: For Australian‑born citizens to take up a new citizenship.
GUMMOW J: Yes, it is the “Rupert Murdoch” amendment, is it not?
MS RUBENSTEIN: It does not, in fact, assist Rupert Murdoch in any way, because it is not retrospective. It is for those individuals who take up a new citizenship and part of the motivation, your Honour, in introducing it was to make it consistent. There was a whole group of Australian citizens who were entitled to a dual citizenship by virtue of their being citizens by naturalisation, but birthright citizenships had been precluded from that very same right.
KIRBY J: But the Commonwealth, in its written submission, says that these may be good or bad things, but they are not constitutional. The Parliament is not required to do these things. It can do them within a power broadly construed, but it is not obliged to do that and it is not obliged to give due process and fair procedures, because otherwise there would be lots of laws that would be changed that would require giving notice.
MS RUBENSTEIN: Yes, your Honour, but the fundamental point in this part of the submission is that, within the aliens power, choice by an individual, or the bestowal of citizenship of another country by an individual, is not enough to deprive that person of their non‑alien status, because within the constraints of what Parliament can legislate under that power there must be some involvement by the individual.
KIRBY J: Why? Normally, we do not give individuals a right of veto as against the Parliament of the nation.
MS RUBENSTEIN: Your Honours, the submission is that this status of non‑alien is foundational to membership of the Australian community, a point that will be developed in a more broad sense, but, in the context of section 51(xix), it is that in determining membership of the community it has evolved from what has been referred to as an archaic notion of allegiance, and sole allegiance, to one of membership of a community or a body politic, as words of Justice Gaudron, but membership that has a more democratic foundation. As part of the evolution of that term, that notion is consistent with the individual having a role in that process of changing that fundamental status.
KIRBY J: If you incorporate this democratic notion, what is your answer to the point that the way this democratic notion was to be played out in the case of Papua New Guinea, after independence, was under the constitution and laws of that country and that that was the way in which democracy was respected by the Australian Parliament within its powers?
MS RUBENSTEIN: The answer is, your Honour, that according to established principles of sovereignty of nations, that it is entirely possible for Australia and this Court to determine that Mr Ame is an Australian citizen by virtue of the limitations on the aliens power and this regulation not having the effect that it intended, and a separate Papuan court, with the responsibilities that are bestowed upon it under its own Constitution, to determine what, if any, impact that has because of its own separate democratic system.
KIRBY J: But as Justice Gummow pointed out, the recitals in the Independence Act of Papua New Guinea seem to, as it were, state the public facts of the gradual evolution from part of our community to complete
independence. Just as during the last century very many countries gained their independence from Britain, why should our Parliament not have a similar power to give and recognise and carry through the independence of a country which briefly was part of its responsibility?
MS RUBENSTEIN: Your Honours, we are not denying it has that power, but that it is still constrained by the notion of the impact on those citizens; that is, that the individual must have some say. It cannot be something that is bestowed upon him without any choice or inability to make a choice. Your Honours, that concludes my submissions.
GLEESON CJ: Thank you very much, Ms Rubenstein.
MS RUBENSTEIN: Would you like me to address the issue of costs now or perhaps at the end of Mr Williams’ ‑ ‑ ‑
GLEESON CJ: We will do it now to save you coming back.
MS RUBENSTEIN: Your Honours, as a brief point in relation to the respondent’s submissions in which it raises the case of Oshlack v Richmond River Council regarding the duty of the Court, the Court is not bound to have parties bear their own costs in relation to matters of public interest. I would like to refer the Court ‑ ‑ ‑
KIRBY J: What order are you actually seeking; that each party bears its own costs?
MS RUBENSTEIN: We are seeking that each party bear its own costs, and that the Court should be mindful of the fact that this matter began as a habeas application, and that whilst Mr Ame is able to be in Court today by virtue of a bridging visa, the outcome of this case will lead to, if he is not successful, a bridging visa that entitles him to only remain for no more than 28 days in the country, and if he were to remain he would be detained. It speaks to fundamental issues of the liberty of the individual within this country and, as such, by virtue of that, an individual should not be discouraged from coming to the Court to seek and protect his liberty.
GLEESON CJ: Thank you. Yes, Mr Williams.
MR WILLIAMS: If the Court pleases, I have two submissions to make on the validity of regulation 4. The first relates to the general limitation that Ms Rubenstein has said arises out of the aliens power. My argument is that that limitation applies also to other heads of power in section 51 and also to bind any use of section 122.
The second argument is independent of the arguments put to date, and that is that there arises a more general limitation out of the Constitution that prevents legislative power from being applied to remove a person from being a member of the people of the Commonwealth. We recognise that there is some role for Parliament in undertaking a removal, but argue that that can only occur in very limited circumstances and, as an implication or indeed something based directly on the text of the Constitution, is something that is capable of binding any head of legislative power.
The only part of that second argument that does depend upon the submissions put to this point is that it would only operate if Papua is found to be part of the Commonwealth for the purposes of the Constitution. If that is not the case, the argument obviously does not work. If it is the case, that is the only point that I would rely upon.
KIRBY J: Is part of the Commonwealth or was at one stage part of the Commonwealth?
MR WILLIAMS: Was at least at the relevant point, that being from the birth of the applicant in 1967 through to the date of independence in 1975.
KIRBY J: You are not contending that it is still is and that the notion of independence is incompetent to the Parliament?
MR WILLIAMS: No. We would accept that it is possible to recognise the creation of sovereign states. We are merely using the concept here in terms of gauging its impact upon an individual’s rights that arises out of the concept of people of the Commonwealth.
KIRBY J: It must have arisen in the Quebec Separation Case as to whether, within your own constitution, you can accept the severance. Could we accept the severance of Western Australia, for example? That could, in some future time, be quite an important question. It is something where we would have to tread with some degree of care.
GLEESON CJ: On the other hand, we could probably fairly safely accept the severance of Christmas Island.
MR WILLIAMS: Turning first to the case of Western Australia, the Court might be influenced by words such as “one indissoluble Federal Commonwealth” ‑ ‑ ‑
KIRBY J: “Under the Crown”, Mr Williams, “under the Crown”.
MR WILLIAMS: Under the Crown, of course. In terms of a territory such as Christmas Island, or other territories, we would recognise, like in the case of Papua, that it is possible through an evolutionary process for external or other territories to have nationhood recognised. But as part of that process we would make submissions about how the individual rights to nationality or citizenship or whatever words they may be given in place of “people of the Commonwealth” are dealt with, and that the dealing with those rights must be consistent with what arises from the text of the Australian Constitution.
KIRBY J: It is awkward, because it shows how constitutional law is ultimately founded in reality and facts, because one would, one would think, approach differently the question of the exercise of the territories power under section 122 in relation to Papua New Guinea with its different history in relation to the Commonwealth than, say, in relation to the Northern Territory of Australia with its different history, again. It just demonstrates that ultimately constitutional law does not get too far away from the moorings of facts.
MR WILLIAMS: That is certainly true, and, of course, here also the different histories of Papua and New Guinea, we suggest, lead to different outcomes. There are other considerations as well that arise when individual rights are at stake, where those are secured in the text of the Constitution, such as the people of the Commonwealth. If I can come back to that submission, because I think it is particularly important to start with the text of the Constitution to demonstrate that argument.
CALLINAN J: Sir Robert Menzies said constitutional law was politics, history and statutory interpretation. There are politics and history here.
MR WILLIAMS: That is an obvious truth, but it is also a matter of ultimately deriving principles from the text of the Constitution, and where, as we suggest here, there are clear textual inferences relating to the people of the Commonwealth that have not, to this point, been fully illuminated by this Court, that is something that will become part of that text, politics, history and other matters.
CALLINAN J: I would certainly put statutory interpretation at the forefront.
MR WILLIAMS: I have no quibble with that. Indeed, the approach that I will take to the text of the Constitution is entirely orthodox in seeking to develop a textual principle that limits the power of the Federal Parliament in terms of how it deals with membership of the group, the people of the Commonwealth.
HAYNE J: But is the end point a point of saying that independence can be given to an external territory, but there can be no complete severance of its people?
MR WILLIAMS: The entry ‑ ‑ ‑
GUMMOW J: Without individual assent.
MR WILLIAMS: Our submission is that individual assent would be required, or acts on the part of the individual would be required, that would amount to ‑ ‑ ‑
GUMMOW J: Express or implied individual assent.
MR WILLIAMS: That is correct, and that is exactly the position that the United States Supreme Court has taken. I recognise there are differences, but I will take the Court to that as well.
GUMMOW J: It was not the position in 1783, was it?
MR WILLIAMS: No, and indeed the doctrines of the US Supreme Court are more recent doctrines, but, of course, the Fourteenth Amendment was not in place until 1868, that being the relevant date to assess the development of that principle.
If I can take the Court perhaps more briefly to the first submission, there are two points I make here. The first is that the limitation that arises out of the aliens power that my friend has suggested, that is, that there is some limitation upon the change of status from non‑alien to alien is a general limitation that does bind other powers. The second principle I wish to put to the Court is that that also binds section 122 of the Constitution, but both of those principles need to be made out for this argument to succeed.
The general rule, of course, is that one head of power does not limit the scope of another head of power, but there are two exceptions or categories to this general rule. The first, of course, are heads of power that contain express textual limitations such as “banking, other than State banking” or “medical and dental services” ‑ ‑ ‑
GUMMOW J: We know all that, but what are we coming to?
MR WILLIAMS: The second category are powers – and the example here is section 51(xxxi) that does not contain an express textual limitation, but has been held by this Court nonetheless to contain an importance safeguard, restriction or qualification that because of its nature, particularly a safeguard in that case, should be held to be a more general limitation upon other powers.
The argument we put is that this limitation, a safeguard arising from the aliens power, is an example of a like safeguard that also binds other heads of power, in that any law with respect to the transfer of the status of a non‑alien to alien must be valid under the aliens power or not at all. It is important, we would argue, to recognise ‑ ‑ ‑
KIRBY J: How does that work in with the immigration power, which overlaps, to some extent, the aliens power? Is it the same principle that you are urging?
MR WILLIAMS: We are urging the same principle, and the principle essentially is that there arises from the aliens power this limitation in change of status from non-alien to alien. That binds both the aliens power and the immigration power. Indeed, it may be it also arises from the immigration power, but we are saying it is a general limitation.
KIRBY J: The very word “immigration”, as Chief Justice Latham suggested, contemplates somebody – he used the word “settler”, because that is what was thought of at that time, but it was somebody outside your community coming into your community, or, having come in, deciding to stay in your community, seeking to stay. And if you define your community differently, well, it is an awkward idea to say that some part of your community, whom you have called citizens, become immigrants.
MR WILLIAMS: That may be, your Honour, and I should say that it is quite a specific point I am trying to argue here. It is not about the broader ambit of the immigration power and, indeed, some of the matters that my friend has alluded to. It is very specifically about a limitation that arises from the transferral of a person’s status from being non‑alien to alien. The analogy that ‑ ‑ ‑
CALLINAN J: Mr Williams, could I ask you a question. Is the land mass of Papua and New Guinea an island of the Pacific? I am thinking, of course, about 51(xxx) of the Constitution.
MR WILLIAMS: I am not aware of any case law on that point, but I would have to say I have not researched that point.
CALLINAN J: Well, it is an island and it is in the Pacific.
MR WILLIAMS: It is an island – well, I would also need to look carefully at the exact geographical definition of “Pacific” perhaps, at the time of 1901, to determine whether that has changed over time. I can look that answer up for your Honour and provide an answer, but I do not have that at my fingertips.
CALLINAN J: What I am really asking is, is any of the legislation that you would attack legislation with respect to the relations of the Commonwealth with Papua New Guinea as an island of the Pacific?
MR WILLIAMS: It may well be. In fact, that power is largely subsumed by the external affairs power in any event, but our argument is that even if it could be covered by that power ‑ ‑ ‑
GUMMOW J: Well, the notion was that there were some islands in the Pacific, viz, Fiji, which were possessions of the Crown, and therefore not within the reach of the external affairs power.
MR WILLIAMS: That is correct and, indeed, there are a number of cases dealing also with the particular status of New Guinea ‑ ‑ ‑
GUMMOW J: Given the imperial control of external affairs, et cetera.
MR WILLIAMS: Our point is a different one. Our submission is that irrespective ‑ ‑ ‑
CALLINAN J: But there was other history, and that was in relation to the repatriation of labour and the influx of Pacific Islander labour. It was not simply the fact of British possession of some of the islands that influenced the insertion of that provision.
MR WILLIAMS: Well, of course, the territories power also lurks here as a very relevant power. But our point is that there are particular exceptions to the general rule that one power does not bind another, and those exceptions mean that something like acquisition of property can only be undertaken under that head of power. Our argument is that the particular change of status is a fundamental safeguard like that providing for just terms, and as a result ‑ ‑ ‑
KIRBY J: That is the only one, really, is it not? Apart from express qualifications, the only one where the Court has said there is an implied qualification is in 51(xxxi), is it not?
MR WILLIAMS: It is the only one so far, your Honour, but yes. It is the only one this Court has identified that is implied rather than express, and the underlying point we would take from that, particularly from Chief Justice Dixon’s judgment in Attorney‑General v Schmidt (1961) 105 CLR 361 at 371 to 372 – I will not read out that passage, but the point we take from Chief Justice Dixon’s discussion of that power at point 9 on that page is that it is an express power that builds in “a safeguard, restriction or qualification”. That, we would argue, suggests a more general approach that may be applicable in other limited circumstances where powers give rise to such a safeguard.
KIRBY J: Did not Justice Gummow and I say something in Newcrest about how you had to read the territories power, contrary to Teori Tau, in such a way as to respect, for example, section 116 and other provisions of the Constitution. You have to read the Constitution as a whole. I thought in Newcrest both Justice Gummow and I said something to that effect, perhaps Justice Gaudron, too.
MR WILLIAMS: Well, perhaps I can turn to Newcrest, because that is the key decision for the second part of our argument on this point. Newcrest Mining (1997) 190 CLR 513 provides two different avenues, according to the majority, upon which a general limitation arising from a section 51 head of power might bind the exercise of the territories power. Indeed, we do not put submissions here in opposition to the respondent on the point of whether the territories power could so be used, except to the extent that we say it is limited by virtue of the Newcrest approach.
The two different alternatives to bind section 122 are, firstly, what we say is the better approach, that it is directly bound by the limitation, and, of course, that would have been the approach according to Justices Gaudron, Gummow and yourself, Justice Kirby, to overrule Teori Tau in that case to make the acquisition of property power apply to section 122. We would argue that in this case the limitation ‑ ‑ ‑
GUMMOW J: Do not forget Newcrest was about an internal territory.
MR WILLIAMS: That is correct, and the argument here does also depend upon the construction that my friend has put with regard to Papua, that it was part of the Commonwealth of Australia at the relevant time.
The reason we would say it should be seen as directly applicable is that it makes no sense that any limitation upon the loss of non-alien status applies to protect someone living, for example, in New South Wales, but not someone living in the Australian Capital Territory or the Northern Territory, and, indeed, at the relevant time, Papua, as we have submitted, was part of the Commonwealth.
We would also point your Honours to dicta such as that of Justice Kitto, quoted by Justices Brennan, Deane and Toohey in Capital Duplicators (1992) 177 CLR 248 at 272, where those judges, adopting Justice Kitto, talk about the need for:
“an interpretation which will treat the Constitution as one coherent instrument for the government of a federation, and not as two constitutions, one for the federation and the other for its territories” –
a point that relates to the earlier Spratt v Hermes quote referred to, that there ought not to be seen a “duality” when we look at the territories as opposed to the States. Here we would say that ought to apply, given it makes no sense in the context of this particular limitation.
KIRBY J: Just remind me, Justice Toohey was inclined to the same view as the three Justices you have mentioned, but held back from overruling Teori Tau, did he not?
MR WILLIAMS: That is correct. Teori Tau is still good law, but there is no authority, of course, on whether the limitation that I am referring to binds section 122. The approach taken by Justice Toohey, along with the other judges in the majority, was the alternative approach that comes from Newcrest as to how such a limitation might bind the territories power. That alternative approach is that where a law might be characterised as having two purposes, both a purpose falling under section 122 and a purpose that falls under a section 51 head of power, that the section 51(xxxi) acquisition of property limitation does therefore apply. That actually formed the ratio of that case, in that it was the principle that the majority Justices Toohey, Gaudron, Gummow and yourself, Justice Kirby, applied to determine that the acquisition of property power did apply to a law that could otherwise be enacted under the territories power.
We would argue that that second alternative approach could be applied here as an alternative to the first on the basis, indeed, perhaps of comments put by Justice Callinan or other judges that this law could be seen as equally valid under other section 51 heads of power, whether that be external affairs, Pacific Islands or immigration power, as referred to in respondent’s submissions. If it turns out that it can have that dual purpose, we would argue that the ratio from the Newcrest Case provides a basis upon which to determine that the territories power is bound by the limitation arising out of section 51(xix).
KIRBY J: Why is not the proper interpretation, keeping in mind the recitals to the Independence Act, that the people of New Guinea and also the people of Papua were always, vis-a-vis Australia, aliens? For a little time, we pretended that they were citizens if they were Papuans, but even then we required them to get permits to come into Australia, something you do not normally do to your own citizens, and that all we did in 1975 was to use the aliens power to regularise what had been an artificial and untrue arrangement, which we had adopted solely by our legislation.
MR WILLIAMS: There are two answers to that contention, your Honour, and the first answer is the particular history of Papua as contrasted to New Guinea, from 1906 to 1975 it was part of the Commonwealth of Australia. For all intensive purposes it had a similar legal status in the particular context I am talking about to other Australian territories. The second answer is that there are particular exclusions that the Constitution achieves with regard to the people of the Commonwealth, for example, racial qualifications relating to the counting of people up until 1967 in section 127 of the Constitution. Section 25 provides that particular people of the Commonwealth can be excluded from voting on account of their race. What it means is that the concept that we are talking about here is not necessarily a clear and unified concept, but we are arguing that with regard to Papua being part of the Commonwealth that it applies in the particular way we are suggesting.
KIRBY J: But if they are part of the Commonwealth, how come they never had a right to vote in our elections?
MR WILLIAMS: Well, of course, that was never tested constitutionally, but Aboriginal people were denied the right to vote until 1962 and, indeed, other classes of people were also denied the right to vote. It may be that “the people of the Commonwealth” at relevant times assumes different meanings. It is clear according to the Constitution that certain people of the Commonwealth can be excluded from voting on account of their race. Section 25 provides for that. It does not mean they are not part of the people of the Commonwealth, it simply provides an answer as to how you can have discriminatory treatment and still fall within the general concept.
KIRBY J: They were not excluded; they simply were never included.
MR WILLIAMS: We would submit they were included. As from 1906 they became ‑ ‑ ‑
KIRBY J: …..in voting. I am not answering your principal submission, I am reflecting on the fact that – it is hard to say they are part of the Commonwealth if they never took part in our political life as voters. At least those non – the British subjects did take part in voting and ‑ ‑ ‑
MR WILLIAMS: Well, women were unable to vote in the first general election. Aboriginal people were denied the vote until 1962, yet we would submit both classes of people were clearly part of “the people of the Commonwealth”.
GUMMOW J: This is an incantation, this phrase, “the people of the Commonwealth”. What is the effect of it?
MR WILLIAMS: Perhaps, your Honour, I can answer that by going directly to my second argument.
GUMMOW J: What is the legal content of it?
MR WILLIAMS: I can answer that in two ways. One is by establishing the concept exists and, second, that there are a number of rights and duties the Constitution particularly imposes upon the people of the Commonwealth that gives that concept meaning and affects the legality of citizenship laws as passed by the Federal Parliament.
HAYNE J: That seems to me to be a different set of words having no connection with the question asked, which was, “What do you mean by the expression ‘part of the Commonwealth’?”
MR WILLIAMS: If I am understanding your question correctly ‑ ‑ ‑
HAYNE J: It is your expression, Mr Williams, it is oft repeated. What do you mean by it?
MR WILLIAMS: By the expression “people of the Commonwealth”, if I can take your Honours to two sections of the Constitution to start with which refer directly to that provision, and then I will explain the meaning, but I think the meaning can only be determined from its textual context. The word “people”, for example, appear in the preamble to the Constitution, “Whereas the people”. In that context and in a later context that I will refer your Honours to, it refers to the community of the people ‑ ‑ ‑
GUMMOW J: No, it says “have agreed”. That means they voted at referenda, does it not?
MR WILLIAMS: Yes, that is the ‑ ‑ ‑
GUMMOW J: And we all know that that was much less than the adult population.
MR WILLIAMS: That is correct, but “the people of the Commonwealth” is like many other terms which change over periods of time, and a good example of that is section 24 of the Constitution.
GUMMOW J: Anyhow, you started off in the preamble. That does not give you much help now. Where do you go after that?
KIRBY J: I am not so sure that I do not think that the preamble is relevant.
MR WILLIAMS: The full words I wanted to refer to in the preamble:
Whereas the people -
and then they refer to the different States -
have agreed to unite -
and then it goes to talk about the -
indissoluble Federal Commonwealth under the Crown -
If I can also in going through these provisions refer the Court to Quick and Garran because it throws light on the contemporary meaning of these provisions. Quick and Garran, of course, is the 1901 annotated version of the Constitution. At page 285 in Quick and Garran, the authors there explain the significance of these words, of course, the historical significance being the vote that was cast by the people of the colonies. Under the heading ‑ ‑ ‑
GUMMOW J: Not the people of the colonies, some people of the colonies.
GLEESON CJ: Some of the male people of the colonies.
MR WILLIAMS: That is correct. The male people. In some cases indigenous peoples were disenfranchised as part of those electoral systems but at the time those were the people who were commonly accepted as being entitled to vote and, of course, as this Court has said in a number of decisions, that concept changes over time such that particular exclusions such as property, ownership of property that may have been considered appropriate or relevant or valid at one time, may no longer be valid.
KIRBY J: That is why the anchor in “the people” is a very important anchor for our Constitution because, though its content has changed and changed very rapidly with the accession of women to vote, it still is the concept that our Constitution is anchored in the people of the Commonwealth.
MR WILLIAMS: And it is a concept that members of this Court have referred to ‑ ‑ ‑
GUMMOW J: But you said it was anchored in the text. It is not anchored in the preamble and it is not anchored in section 3, right?
KIRBY J: Well, it is there at the very beginning of the preamble.
GUMMOW J: “The people of Western Australia have agreed”. We all know what happened over there.
MR WILLIAMS: The concept I am referring to comes in many different forms. I am using the form “the people” ‑ ‑ ‑
GUMMOW J: Well, we need to know what they are. We have to write a judgment. It is not a….. It has to be specific.
MR WILLIAMS: If I can take your Honour specifically through the different provisions. I start at the preamble simply because they are the opening words of the Constitution. If I can quickly take you to the reference I was going to refer to.
GUMMOW J: Well, do you rely on covering clause 3:
the people of Western Australia have agreed ‑ ‑ ‑
MR WILLIAMS: That is correct, and the operative words in covering clause 3 are those people including the people of Western Australia:
shall be united in a Federal Commonwealth -
That goes beyond the preamble which refers to agreement into actually making it clear that it is the group of the people who are the ones who are united in the new body politic that is the Federal Commonwealth. They are the ones that constitute the nation. They are the ones that as a result of contemporary echoes in recent decisions ‑ ‑ ‑
GUMMOW J: Now, some of them were voters and some of them are not, right?
MR WILLIAMS: Well, the people of the Commonwealth must all be voters under section 24 of the Constitution.
GUMMOW J: No, we are looking at covering clause 3, and I will give up in a minute. It follows that some of the people you are talking about in the first reference to people in covering clause 3 are not voters. You have to say that, do you not?
MR WILLIAMS: That is correct. At the time of Federation some did not vote in those referendums but it does not specifically refer to those referendums there.
GUMMOW J: Just a minute. I will give up in a minute if you do not want to help me. How does one then define these people? They are not the voters, you say. What are they - residents, British subjects?
MR WILLIAMS: The approach that Quick and Garran takes to defining these terms ‑ ‑ ‑
GUMMOW J: Friendly aliens?
MR WILLIAMS: - - - is to use the concept of citizenship, which might be referred to as nationality, or other terms might be used.
GUMMOW J: It did not exist, the…..covering clause 3.
MR WILLIAMS: No, it did not exist but nonetheless it is the term that was used in the contemporary documents by Quick and Garran and by other writers because citizenship was something that connoted membership of a political community. It applied to all Australians at that point ‑ ‑ ‑
GUMMOW J: What does “all Australians” mean?
MR WILLIAMS: We would submit that it means all of the people who enjoyed citizenship rights, that being British subjects, at that time who were part of the geographical entity defined as the Commonwealth.
GUMMOW J: What does that mean, “part of a geographical entity”?
MR WILLIAMS: Well, the Commonwealth ‑ ‑ ‑
GUMMOW J: Other than resident.
MR WILLIAMS: The Commonwealth includes all of the original States. It also includes certain territories, including, we would say, Papua, for the reasons put by my friend.
KIRBY J: These are arguments that are reminiscent of what Mr Brereton was arguing in Ex parte Taylor. One of his arguments was that Mr Taylor was protected because he was a member of the community, part and one of the people of the Commonwealth. So it is not unfamiliar territory, and there are dicta in Taylor that refer to this argument. What are the other provisions? Can you just identify the other provisions of the Constitution?
MR WILLIAMS: If I can perhaps just give you the provisions and give you also the references to Quick and Garran without taking you through them all, except the key ones.
GUMMOW J: Well, I want to know all of them.
MR WILLIAMS: Moving on from the preamble then ‑ ‑ ‑
GUMMOW J: Not just the key ones.
MR WILLIAMS: ‑ ‑ ‑ and covering clause 3, which refers to “The people . . . shall be united in a Federal Commonwealth”, the Quick and Garran reference there is to page 332, which explains the significance of “shall be united” in a way that also sheds light on the meaning of the term “of the people”. At page 332, under the heading 26, they say:
The formative words in this clause are more forcible, striking, and significant that those of the corresponding parts of the Constitution of the United States and of Canada; they indicate the fundamental principle of the whole plan of government, which is neither a loose confederacy nor a complete unification, but a union of the people considered as citizens of various committees whose individuality remains unimpaired, except to the extent to which they make transfers to the Commonwealth.
GUMMOW J: What about the distasteful subject of Kanakas?
MR WILLIAMS: Indeed, section 25 ‑ ‑ ‑
GUMMOW J: Are they part of these people of Australia?
MR WILLIAMS: It would depend upon the individual status of those people, but to the extent that they were considered British subjects in Australia at the relevant time, then yes, they would have been part of the people of the Commonwealth.
GUMMOW J: Then they were deported.
MR WILLIAMS: That is correct, and, of course, there were no decisions at that time ‑ ‑ ‑
GUMMOW J: One of the first acts of the Parliament. They ceased being part of the people, presumably.
MR WILLIAMS: There are different ways of answering this. I am answering it from the context of a contemporary view of these provisions, but ‑ ‑ ‑
GUMMOW J: I thought we were beginning with the text.
MR WILLIAMS: I am beginning with the text, but, in terms of how the text applies, the Court has recognised that that changes over time. The answer today I would say is clearly, yes, people, irrespective of race, who fit into the category of being British subjects in Australia at the relevant time were part of the people of the Commonwealth, but a court at an earlier stage may well have taken a different view.
KIRBY J: The test is not today, the test is 1975, is it not?
MR WILLIAMS: That is correct.
GUMMOW J: What other sections?
MR WILLIAMS: The next section I move to is covering clause 5. It is part of a series of sections that refer to the rights and duties that are applicable to “the people”, as referred to in the Constitution. Covering clause 5 refers to the fact that the law:
shall be binding on the courts, judges and people of every State and of every part of the Commonwealth –
Section 7 is the next provision which contains a relevant reference. It refers to the Senate being “chosen by the people of the State”, and, of course, as this Court has determined, that does not include the people of the territories undertaking that choice, by virtue of section 122. Perhaps most importantly, section 24 says:
The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth –
It is the clearest example of a right or duty being imposed upon that group of people, who need to be determined for constitutional purposes, if only to ascertain whether the Electoral Act at any particular time is consistent with the Constitution in ensuring that the franchise is consistent with the words “people of the Commonwealth”.
GUMMOW J: It has to be read with section 30, has it not?
MR WILLIAMS: It has to be read with the full context.
GUMMOW J: “Until the Parliament otherwise provides”.
MR WILLIAMS: That is correct, and that refers to the qualification of members ‑ ‑ ‑
GUMMOW J: And it has provided by permitting certain British people, who, on one view, would be aliens, to vote.
MR WILLIAMS: That is correct, but there will always be questions as to whether something amounts to a valid qualification under section 30.
GUMMOW J: No one suggests that they are to be disenfranchised.
MR WILLIAMS: The other relevant provision, of course, is section 25 as well, which refers to, quite explicitly ‑ ‑ ‑
GUMMOW J: We seem to reach the situation that the House of Representatives can be directly chosen by the people of the Commonwealth within the meaning of section 24, even though some of the electors are not Australian citizens.
MR WILLIAMS: Your Honour, it is also subject to the principle developed by this Court in the McKinlay Case and the McGinty Case.
GUMMOW J: I am just trying to get from you what the content is of 24, the chameleon phrase, “the people”.
MR WILLIAMS: It is a phrase that this Court itself has never defined, and in attempting to derive it from first principles that is why I am trying to go through the complete context.
GUMMOW J: Yes, all right. Section 24. What else?
MR WILLIAMS: Section 34(ii) refers to “subject of the Queen”, which also refers to a group of people in a particular context. Section 117 also refers to “A subject of the Queen”. There are also particular constitutional implications that this Court has discovered that refer particularly to the rights of the people or of the people of the Commonwealth. The best example of that for present purposes is in the decision of R v Smithers; Ex parte Benson (1912) 16 CLR 99, an early decision of this Court, which fixes particularly upon the concept of citizenship and the concept of people to find that those people are entitled to particular rights.
KIRBY J: Would citizenship have been in existence back in 1913?
MR WILLIAMS: Citizenship was not in existence.
KIRBY J: But it was used as a synonym for British nationality, was it?
MR WILLIAMS: It depended on the context. Citizenship, of course, is a slippery term and it depends very much on the context, but the reason citizenship is so often referred to is exactly the difficulty that I am having in giving precise answers to his Honour Justice Gummow, in that “the people of the Commonwealth” is not specifically defined in the Constitution.
KIRBY J: That is all because there was absolutely no doubt whatsoever in these early days that Australian nationality was being a British subject who was in this country.
MR WILLIAMS: That is correct.
KIRBY J: No doubt whatsoever, it is just that some people find it embarrassing to acknowledge that that was the case. But it is there in section 117, anyway.
MR WILLIAMS: The decision in Smithers led two of its Justices, Chief Justice Griffith and Justice Barton – Chief Justice Griffith on page 108 – to adopt the United States decision in Crandall v State of Nevada in referring to the particular rights that accrue to a person who is a person of the Commonwealth. At about point 5 on page 108 in the Smithers Case, Chief Justice Griffith says:
After referring to the right of federal officers to free access to, and transit through, the States for federal purposes –
the court in Crandall proceeded –
“But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it” –
Then the quote goes on to illustrate other rights. Over on page 109, at the top of that page, he continues:
In my opinion, therefore, the former power of the States to exclude any persons whom they might think undesirable inhabitants is cut down to some extent by the mere fact of federation –
Justice Barton begins his judgment at the bottom of page 109 also by referring to Crandall v State of Nevada and at the fifth line he refers to that decision as being:
as cogent in relation to the Constitution of this Commonwealth, as it was when applied to the Constitution of the United States. The whole of that memorable judgment is instructive upon the rights of the citizens of a federation. The reasoning shows that the creation of the federal union with one government and one legislature in respect of national affairs assures every free citizen the right of access to the institutions, and of due participation in the activities of the nation. In my opinion the reasons for the decision are conclusive as to all parts of Australia.
The particular rights that the two Justices identify in that case, freedom of movement to some extent, access to government, are rights that they identify as being held by citizens, a concept that we say in that context is synonymous with the concept of “the people”. It is the appropriate delineating point to determine which Australians are entitled to that movement right, which Australians are entitled to the free access right. It is an example through implication of the work that such a concept must do. If the concept the people of the Commonwealth, the people the subject of the Queen, constitutionally speaking, is not created, we simply lack the concept that is necessary to give meaning to sections such as 24 to this implied right and indeed also to statements relating to other implied rights such as freedom of political communication which has a particular relevance and resonance only to those people of the Commonwealth entitled to vote under section 24.
KIRBY J: You might be right that that is the way the notion evolved over time but I would have real doubts that in Smithers’ Case they had the concept that you are urging because they would not, I think, have included non-settlers. As late as the 1930s and 1940s Justices of this Court were referring to settlers, so they had in mind white people.
MR WILLIAMS: That is correct and it is very clear that they did so if you also turn to the Convention debates and the language used at that point in the context of the Constitution. Our argument depends upon ‑ ‑ ‑
GUMMOW J: Anyhow, your last specific section is 117, is it?
MR WILLIAMS: That is correct. It does refer only to “A subject of the Queen” in a State, so it is limited in that context.
GUMMOW J: Benson was a British subject. He was born and lived in Victoria.
MR WILLIAMS: And two of the other Justices, Justice Isaacs and Higgins in that case, did not rely upon the implication, they relied upon section 92 and also, to a lesser extent I think, section 117. It could have been decided on other grounds but it is also clear that two of the four Justices did decide the matter on this ground and it is a decision that has been cited repeatedly by this Court in earlier decisions dealing such as with the implied freedom of political communication as establishing certain rights which also now can be found in the form of that implied right of freedom of political communication.
KIRBY J: I just have a problem with where this is leading us because up until 1974 territories were not represented in the Federal Parliament, let alone an overseas territory, and then in 1975 comes the axe and Papua New Guinea goes its own way, so that certainly as at that time, the time we are talking of, the notion that they were members of our polity, people of the Commonwealth, full participants in our nation, though non-settlers and though in a peculiar state and a very peculiar state in respect of New Guinea, is really hard to accept as a constitutional fact. They never voted, they did not take part in our referenda, they were not liable to the National Service Act, they were not liable to be called up here as jurors and they did not really take part in our polity as elements of the political nation of Australia, of the Commonwealth.
MR WILLIAMS: With respect, neither did Aboriginal people in 1960.
KIRBY J: Yes, well, that was a particular exception, but we are talking about this territory off our coast in respect of which they were not originally part of the Commonwealth and then in their different ways, they became part of the Commonwealth. It is just a little hard to say that at any time when they were in that relationship with us, Australians would have said they are people of the Commonwealth.
MR WILLIAMS: And of course, the relevant determination is not a popular determination, it is as you have suggested, to look at the facts in context at the time, and for this Court to determine I think firstly whether the geographical area is part of the Commonwealth, and indeed I began by saying that this argument depends upon the Court finding that it was. If it was part of the Commonwealth, our submission would be that those people in that area who were Australian citizens under our law and also received other rights that related to that were part of the people. They were geographically part of the Commonwealth, they were the people living in that area, they were Australian citizens. We say that means at that time they were also entitled to these rights. We are not saying necessarily they were entitled to all of the rights because, as I have suggested, the Court itself has recognised that people can be people of the Commonwealth without necessarily being able to vote, without necessarily being able to access all of the rights and duties that the Constitution refers to.
The second part of this argument, your Honours, is that if it is accepted that there is a constitutional concept known as “the people of the Commonwealth” which has certain rights and duties attached to it by the Constitution, that that concept ‑ ‑ ‑
GUMMOW J: Wait a minute, what are these rights and duties? Who in 1975 constituted this class? You cannot slide away.
MR WILLIAMS: The class in 1975 would have been those people who were members of the Australian community through their ‑ ‑ ‑
GUMMOW J: No. No, that is not a legal expression. What do you mean by “Australian community”?
MR WILLIAMS: Perhaps I can start that answer differently.
GUMMOW J: It is not a constitutional expression.
MR WILLIAMS: The first stage, we would say, is to determine the ambit of the Commonwealth. It is the people of the Commonwealth, after all. We have submitted that the Commonwealth did include Papua at the relevant time.
GUMMOW J: Geographically.
MR WILLIAMS: And constitutionally.
GUMMOW J: Obviously.
MR WILLIAMS: We would say that the reference in the covering clauses to the States and other parts of the Commonwealth is a reference that enables the territories to be included. Also the reference in the preamble assists the interpretation of that to indicate that possessions of the Crown can become part of the Commonwealth after the fact of Federation, and we would say that in 1906 that occurred with respect to Papua. Indeed, it was recognised even symbolically through the addition of the star on the Australian flag, and at that time through fully until 1975, as recognised through the Australian Citizenship Act and other developments, that the people in this area were both, constitutionally speaking, part of the Commonwealth and, constitutionally speaking, part of the people of that group.
GUMMOW J: They are just words.
MR WILLIAMS: Well, they are words that have a particular meaning. It also means ‑ ‑ ‑
GUMMOW J: Well, we need to know the content.
MR WILLIAMS: Well, the context here is that that has implications ‑ ‑ ‑
GUMMOW J: The content.
MR WILLIAMS: One of the important aspects of content is that the power of the Parliament to deal with those people in terms of revoking their membership of that group is limited and that is the argument that we put here, that indeed the Parliament is largely unable, except with an exception that I will come to, to determine the membership of that group because it is that group that constitutes the nation, as set out in the covering clauses, through uniting in the nation ‑ ‑ ‑
KIRBY J: That did not help Mr Shaw, whose family were settlers.
MR WILLIAMS: Well, that may well be. But in this particular case we attach particular significance to the status of Papua as we say was part of the Commonwealth and also the status of those people in their nation.
GLEESON CJ: Mr Williams, one of the things we know about the history of Papua I think is that it had its own quite distinctive, and I think very significant, immigration. I mean immigration into Papua of people who played an important role in the economy of Papua. I presume that from about 1906 to 1975 that immigration was regulated by the Australian Government, was it?
MR WILLIAMS: We believe the answer is yes ‑ ‑ ‑
GLEESON CJ: That, I surmise, is one of the reasons you find so much attention to the distinction between citizens and non-citizens in the Constitution of Papua New Guinea, and the reference to non-citizens with economic power, as it were. What about people who immigrated to Papua New Guinea from elsewhere? Were they part of the people of the Commonwealth also?
MR WILLIAMS: Not necessarily, in the same way that people who immigrated to Australia do not automatically become part of the people of the Commonwealth. All we rely upon here is that the applicant was born in Papua in 1967. He was not an immigrant, so no issue arises in terms of absorption into the community, but we would say whether it is in Australia – any part of Australia – that it is not automatic membership through immigration, that the context needs to be looked at and, indeed, in such cases there may be very difficult dividing lines, as often arise in some of the immigration power cases.
The point that I would like to put in the second part of this argument is that federal power is limited with respect to determining the constitution of this group ‑ ‑ ‑
GUMMOW J: Now, can I ask a question about section 122, and it pertains to this, I think. It contains this expression “or otherwise acquired by the Commonwealth”. Now, we know that in 1898 Britain had acquired a 99‑year lease of the New Territories in Hong Kong. Would this notion of lease be accommodated by “otherwise acquired”? It would have to be, would it not? That would have to become a territory.
MR WILLIAMS: I hesitate to give a definite answer to that, because surely a lot must depend upon the substantive terms of the lease, and I think that is also – you can see, for example, differences between Papua New Guinea. The nature of the acquisition is very important. A trust territory under the UN system, we would say, is very different from a possession of the Crown. A trust territory may be a territory that simply does not fit into this category.
GUMMOW J: Does this inhibition you want to place on the power under 122 apply differentially then, according to the nature of what has been acquired, the legal characteristics of the acquisition?
MR WILLIAMS: We would say the relevant determinant is whether an area has become part of the Commonwealth. It does not matter how it was acquired ‑ ‑ ‑
GUMMOW J: What does this expression “part of the Commonwealth” then mean in terms of a 99 year lease on the same terms as those between Britain and the Empire of China, which was a one‑page letter if you look at it?
MR WILLIAMS: A 99 year lease may be a very good indication, depending on the exact terms, of something that does not become part of the Commonwealth because it is for a limited period of time, but in 1906 there was no indication that Papua was being colonised for a limited period of time.
GUMMOW J: We are trying to construe section 122. It is no good answering that by just focusing on this case. Why do you say the New Guinea mandate was in a different position? Is that part of the Commonwealth?
MR WILLIAMS: No.
GUMMOW J: Why?
MR WILLIAMS: It is not part of the Commonwealth. It was a trust territory ‑ ‑ ‑
GUMMOW J: I know it was a trust territory in international law, but was it part of the Commonwealth?
MR WILLIAMS: It is a fundamentally different relationship with Australia. People in New Guinea were never given Australian citizenship. It was put under Australian management. You could imagine that other nations might at different times come under the management of Australia to assist them to achieve democratic governments. That is fundamentally different, we would say – that trustee system – from a possession of the Crown becoming part of Australia.
CALLINAN J: The definition section of the Australian Citizenship Act makes the distinction. Section 5 defines Australia to include “the Territories that are not trust territories”.
MR WILLIAMS: That is right. It was recognised there, though, of course, that must be compliant with the Constitution. But yes, there are many distinctions ‑ ‑ ‑
GUMMOW J: What I am trying to get out of you is that it has still been acquired by the Commonwealth, for the purposes of 122. Is that right?
MR WILLIAMS: That is right, and we would say that nothing hangs on those words.
HAYNE J: But a lot hangs on this expression you keep trotting out at us, “part of the Commonwealth”. What do you mean by it?
MR WILLIAMS: The initial difficulty, of course, is that the Constitution does not itself define the concept. It can only be approached in the context in which it is used. We would say “the Commonwealth” refers to those areas – you would start with the original States, you would then also add other parts, as referred to in the covering clauses, that have become part of Australia through – sorry, one element that may be useful is also accepting the sovereignty of the Crown. You would also have to look to the actual context in which that territory became part of the nation, such as, what rights were conferred upon those people?
You would also need to look at the context in terms of, for example, was it a temporal acquisition or was it something that had no apparent limitation to it? You would need to look at the history and context to determine how it occurred and whether the connection was sufficiently close in terms of being able to ascertain that this became part of the political entity ‑ ‑ ‑
HAYNE J: The one thing you have not answered, Mr Williams, is what the criterion is. You have told me I have to look at a lot of things, and you have told me I can get differential answers to a lot of things, but the one thing you have not told me is what the content of this term is. Come back to it later if you wish, but, at the moment, there is no content, just a lot of words.
MR WILLIAMS: Perhaps if I can leave that question then, and confer with my friend, and we will provide a precise answer to that in our reply.
GLEESON CJ: Is that a convenient time?
MR WILLIAMS: It is a convenient time.
GLEESON CJ: We will adjourn until 2.00 pm. I presume, Mr Solicitor, that you and your opponents can divide the remaining time between 2.00 pm and 4.00 pm between you on an equitable basis.
MR BENNETT: An equitable basis, your Honour? My opponents having had two‑and‑half‑hours, it would not be satisfied by giving me all of that time.
GLEESON CJ: Well, you have followed the course of argument.
MR BENNETT: Yes.
GLEESON CJ: We will resume at 2.00 pm.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.03 PM:
GLEESON CJ: Yes, Mr Williams.
MR WILLIAMS: If the Court pleases, we have discussed the issue of time and I will seek to finish my submissions in 15 minutes with the Solicitor‑General seeking an hour and a half which would leave us 10 minutes for our reply, but I would also indicate that, with the Court’s wishes, we would be willing to put our reply in writing if that would assist the Court in finishing the matter today.
GLEESON CJ: All right.
MR WILLIAMS: His Honour Justice Gummow asked just before we broke if I could develop criteria to determine the membership or meaning of the term “people of the Commonwealth”. In doing so, what I have sought to do is put together several factors based upon the submissions that we have developed to this point.
GUMMOW J: I think Justice Hayne participated too.
MR WILLIAMS: The factors that we would suggest are relevant for determining membership of that group are not necessarily an exhaustive list in the same way that definitions of judicial power and other concepts depend upon a variety of criteria. We would say that “people” for the purposes of people of the Commonwealth refer to people born in a particular area or people who have arrived some time later who have taken positive steps to become naturalised or to achieve whatever other status the law has accepted as signifying membership of the group that constitutes the nation. We would also say an additional relevant factor for determining the people would be the extent to which a particular person is subject to the laws and authority of the nation.
In terms of the meaning of the word “Commonwealth”, we would initially direct your Honours to the quote that my friend has read from Spratt v Hermes where Chief Justice Barwick refers to the fact that it has both a geographical and political connotation. We would say that it clearly includes the original States plus any new States plus, based upon the interpretive words in the preamble, “possessions of the Crown admitted into the Commonwealth”. We would also say, however, that ‑ ‑ ‑
KIRBY J: Where does that leave territories?
MR WILLIAMS: What we would say is that where those possessions are admitted into the Commonwealth as territories, you would need to look, in substance, at the admission of those territories to determine the intentions at the time. In this case you would look to the 1905 Papua Act, which refers to the acceptance by Australia of Papua into the Commonwealth as a territory and also indicates the acceptance and – sorry, the authority of the Commonwealth as extending to that new territory as part of that possession of the Crown becoming part of the Commonwealth.
KIRBY J: Well, you are focusing, naturally enough, on territories accepted into the Commonwealth, but there is quite a lot of writing on the question of whether territories more generally are part of the Commonwealth because of the difficulty that arose in limited tenure, judicial offices in territories and – I mean it is not a blank page.
MR WILLIAMS: No, it is not a blank page but ‑ ‑ ‑
GUMMOW J: Admit to the Commonwealth looks forward to section 121, does it not? It means the States.
MR WILLIAMS: That is correct. That is certainly one way new States can become part of the Commonwealth, through being admitted as States, but we would also submit that territories can ‑ ‑ ‑
GUMMOW J: You referred to the preamble, and what they are talking about in the second paragraph of the preamble looks forward to section 121, does it not?
MR WILLIAMS: With respect, your Honour, we would say that is one possible way that areas can become part of the Commonwealth but is not an exhaustive ‑ ‑ ‑
GUMMOW J: Whereas 122 talks about “territory”, “accepted”, “surrendered” , “acquired” and “placed”, et cetera – under the control of the Commonwealth. They are not part of it. It runs them.
MR WILLIAMS: We submit that this is an instance where the nature of the way in which this Territory was created indicate that it went beyond control into actually becoming part of the Commonwealth itself. The final submissions that I wanted to make in this area of the argument relate to the limited nature of Commonwealth power, federal parliamentary power, to be specific, to regulate “the people of the Commonwealth”, as so defined.
The essential submission that we wish to make here is that that power is limited as it is with respect to any constitutional concept. We recognise, however, that there is some power of the Parliament to regulate membership of the group. Of course, that is provided for explicitly by the process of naturalisation as set out in section 51(xix). However, we would also say it is significant that there is no explicit reference to a process of denaturalisation and we would say that that is a relevant criterion to take into account in determining the limits of federal parliamentary power.
The test that we would put forward to determine the limits of the Federal Parliament’s power to deprive a person of their Australian citizenship, that being synonymous for most constitutional purposes with the membership of people of the Commonwealth, is that that citizenship can only be deprived in circumstances where it is with the assent or consent of the person or where they have undertaken actions that can be seen as being inconsistent with their continuing membership of that group.
Both of those things are currently provided for by the Australian Citizenship Act. There is a process of renunciation in that Act. There is also in provisions such as section 19 recognition that if someone engages in armed hostilities against the Australian nation, that that is the type of action that can lead to the deprivation of citizenship.
The test that we put forward is a similar test to that developed in the United States in a trilogy of cases. It is not exactly the same test; in fact, the US test is more stringent in terms of requiring a more definite intention on the part of the person. We would say, irrespective of the intention, certain acts would be sufficient to indicate an inconsistent action that leads to the loss of citizenship.
KIRBY J: Is this affected by the fact that the United States Constitution has the specific constitutional status of citizen?
MR WILLIAMS: It is. The Fourteenth Amendment to the US Constitution refers to people born in the United States or naturalised being citizens. However, when their relevant US decisions are read, it is very clear that those decision start from the proposition that there is that recognition of citizenship, but it says nothing about the deprivation of citizenship.
GUMMOW J: What did it say about the Filipinos?
MR WILLIAMS: Is there a particular one of the cases you mean by that?
GUMMOW J: No, I am just wondering.
MR WILLIAMS: I do not know the answer to that off the top of my head, but I can look that up.
GUMMOW J: At some stage, the Philippines was divorced from the United States in the same way as Papua New Guinea was divorced from us in the late 1940s. How do these theories arise? I do not think the people of the Philippines one by one volunteered to lose whatever rights they had in relation to the United States.
MR WILLIAMS: I think the answer to that question is that the doctrine that I am referring to was not actually developed until the mid-1960s, so there is not any case law that I am aware of that deals with that issue. The three cases that I would refer the Court to ‑ ‑ ‑
GUMMOW J: Were they treated as born in the United States for the purpose of the United States constitutional protections?
MR WILLIAMS: I think the answer to that is, indeed, the definition of the United States did not include the Philippines.
GUMMOW J: Exactly.
MR WILLIAMS: The three cases that I will refer your Honours to are, firstly, Perez v Brownell 357 US 44 (1958), which actually held by a 5:4 vote that the US was able to denationalise American citizens in very broad circumstances. The significance of that case is the dissent of Chief Justice Warren, which I refer the Court to at pages 64 to 66. I will not take the Court to those passages, but they contain a very similar argument to the one I am developing here; that is, quite independently of the Fourteenth Amendment, there exists, by virtue of references to the people who constitute that nation, certain implications that limit the capacity of Congress to remove citizenship.
The dissent of Chief Justice Warren was vindicated in Afroyim v Rusk 387 US 253 (1967). That case held, by relying in part on the Fourteenth Amendment, that the constitutional right to remain a citizen is held unless a person voluntarily relinquishes that citizenship. That quote comes from page 268. The third case is Vance v Terrazas 444 US 252 (1984), which went into some detail in dealing with the issue of when an intention to relinquish citizenship might actually be made out. In that case it was held that intent needs to be expressed in words or found as a fair inference from the conduct of the person. The analogy we would draw with the United States cases is that the United States ‑ ‑ ‑
KIRBY J: All of that is very understandable, where the Constitution has the specific provision of a constitutional status of citizenship, but we do not have that.
MR WILLIAMS: We do not have that, but we have the use of the term “people of the Commonwealth” in many different contexts as creating rights and liabilities. We would say that that term must be coextensive with citizenship as created by statute law to the extent that citizenship is the median through which those rights are actually granted under statute law. If citizenship law is not in accord with the meaning of “the people of the Commonwealth” for electoral and other related purposes, then citizenship itself is invalid, or the acts that rely upon that concept will be invalid to the extent of the inconsistency. So it is a situation where citizenship is clearly a statutory concept, but it has become so enmeshed with the constitutional handing out of rights and duties that they are inseparable for this purpose.
We, of course, recognise the significant textual difference in the United States Constitution. We would merely point out the similarities, that we do have a textual basis for references to “people of the Commonwealth”. Those references themselves give certain rights, liabilities and other duties. We would also point to the fact that Australia, like the United States, contains in its Constitution an express power of naturalisation, but not the converse. That was a significant factor, in Chief Justice Warren’s dissent, for limiting that power in the hands of Congress.
GUMMOW J: I think, for this United States material to be useful, you have to concentrate on their relations with their external territories, which is not an entirely happy one, from some people’s point of view.
MR WILLIAMS: Unfortunately, your Honour, I would have to say that those three cases do not deal with that issue.
GUMMOW J: Of course they do not.
MR WILLIAMS: It is because, in the example of the Philippines or other examples, it has not arisen before the Supreme Court. We have certainly searched the authorities for that. All we have is the statement of principle here. They have not been applied to that situation.
GUMMOW J: There was a great debate as to the extent to which the Bill of Rights applied in the external territories, was there not?
MR WILLIAMS: That is correct, and in fact, of course, Guantanamo Bay and other examples show the very strict limits of such concepts.
GUMMOW J: There were rebellions in the Philippines put down with great violence and not a great deal of observance of the Bill of Rights.
MR WILLIAMS: The Philippines was not seen as being part of the United States. We would distinguish it on the basis that perhaps in this case the word “external territory” is not useful in referring to Papua, because of the particular way in which it was accepted into the Commonwealth in 1905 and that that actually made it part of the Commonwealth, which may well be very unusual for territories of this kind.
KIRBY J: There may be some cases from Puerto Rico or Palau or some of the other island territories of the United States.
MR WILLIAMS: We have certainly searched to try and ascertain whether there are cases that deal with citizenship in that context.
GUMMOW J: I think there is a lot of writing on this subject. It is something of a political hot potato and it has been for a long while.
MR WILLIAMS: It has been, but in terms of the Supreme Court doctrine, in the time that I have, the Supreme Court doctrine itself does not deal with that issue in terms of the revocation of citizenship.
KIRBY J: You will not forget my request to see whether any cases in Pakistan or some of those other countries which have divided. This problem is a very common problem. It would have arisen in Yugoslavia, for example, following the dissolution of that country.
MR WILLIAMS: In fact, your Honour, we have been preparing a handout on exactly that and we will either address that in reply or, if we end up providing that with written submissions, we will provide that information in that form.
The only other submission that I would make is that if the Court accepts the proposition that there are limits upon the Parliament’s power to deprive people of citizenship in a way that removes them from the group of people of the Commonwealth, regulation 4 is invalid for going beyond the reasonable scope of the Federal Parliament’s power. It is invalid because it unilaterally deprived the applicant of his constitutional status as an Australian citizen and, thus, as one of the people of the Commonwealth. It did so without his consent or knowledge and not due to any act on his part. If the Court pleases, they are the submissions of the applicant.
GLEESON CJ: Thank you, Mr Williams. Yes, Mr Solicitor.
MR BENNETT: Your Honour, I will deal with the various matters raised in the same order, the first in relation to the construction argument based on the Papua New Guinea Constitution. My learned friend’s argument is that the provisions of the Migration Act which required Australian citizens born in Papua to be treated as immigrants were invalid, and he says, by taking the sentence in the Air Caledonie Case, that as an Australian citizen the people concerned had a right to enter Australia.
That argument can be answered at a number of levels. The simplest level is the level your Honour Justice Gummow hinted at in argument, and that was that the Papua New Guinea Constitution takes the Migration Act and what Australia was doing as the factum, whether or not it is shown 30 years later to be constitutionally doubtful. The fact was, as seems to be common ground, the Migration Act and, certainly, those administering it required that people coming from Papua to Australia be treated as immigrants and required entry permits and so on.
KIRBY J: Even as citizens?
MR BENNETT: Even as citizens, yes, your Honour.
KIRBY J: So it was not really citizenship. It seems a very curious doctrine that you can require citizens. Could the Parliament enact such a law within Australia?
MR BENNETT: Yes, your Honour. Parliament passed a law saying if an Australian citizen lives overseas for more than three years he or she needs an entry permit to return. That would be a valid law. Let me take that in stages. Certainly we could do that in relation to an Australian citizen born overseas of Australian parents. Such a person who comes to Australia comes as an immigrant. They may not be what would have been thought of as a settler by the founding fathers, but the concept to immigration encompasses that. The dictum in Air Caledonie was not a statement of constitutional principle but simply a statement of what the law in fact provided at the time, there being no prohibition, no requirement for a visa on an Australian citizen entering Australia, the Australian citizen has a right to do so. One has a right to do what is not prohibited and the Act merely prohibited people who were not Australian citizens coming without visas.
KIRBY J: We do not really have to resolve it in this case, but I really doubt that you could impose a duty on any Australian citizen to get a visa or something, some permission to get back into Australia because they are just not immigrants. They are not within the immigration power.
MR BENNETT: Your Honour, if one looks at the cases like Potter v Minahan and Donohoe v Wong Sau, the early cases, the test they adopt for whether it is immigration is whether one is returning to one’s home. In defining that they specifically eschew, or Justice Isaacs specifically eschews in both cases, the relevance of nationality or domicile. In Potter v Minahan (1909) 7 CLR 277 at 308, his Honour said this, and he cited it again in Donohoe v Wong Sau (1925) 36 CLR 404 at page 407:
The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people.
Nationality and domicil are not the tests; they are evidentiary facts of more or less weight in the circumstances, but they are not the ultimate or decisive considerations.
GUMMOW J: He is talking in an era of British subjects, is he not, particularly, coloured British subjects.
MR BENNETT: Yes, in the context of that case, yes.
GUMMOW J: You might be able to win this case without enticing us into what seems to me rather dangerous waters. You will be advocating a system of internal passports next.
MR BENNETT: Your Honour, there might well be problems with that, not the least of which would be section 92 in the intercourse limb. There would be difficulties in saying that there was a concept of immigration from an internal territory to the rest of Australia. But, in relation to an external territory, we would submit that the effect of section 128 is that Parliament can define the terms on which that territory is treated and for what purposes it will be treated as part of Australia like any other part and for what purposes it will be differentiated.
GLEESON CJ: Presumably, the expression “external territory” means external to Australia.
MR BENNETT: It means external to the area of the original six States, yes, your Honour. We have at the moment three internal territories and two former internal territories.
GUMMOW J: But the internal territories were parts of States, parts of colonies that became States.
MR BENNETT: They all were and there are 10 external territories and three former external territories. It is in relation to those, it is open to the Parliament, if Australia sends an expeditionary force to conquer Ruritania and make Ruritania a territory of Australia, the Parliament can define whether Ruritanians become Australian citizens, whether they have the right to come to Australia or be treated as immigrants. It is simply an aspect of the working out of the territories power the extent to which territory is treated in the same way as the rest of Australia or as distinct from it.
One sees that with Papua and New Guinea. Although there is a historical difference, as my learned friend has indicated, one would not detect that difference other than in the preambles from the language of the Papua Act or the New Guinea Act. The initial Acts before they were administered jointly were in very similar terms and both provided that Acts of the Australian Parliament would not apply to the territory unless expressed to do so. That enabled the Parliament subsequently to say in effect that so far as citizenship was concerned, Papuans were citizens and New Guineans were not. And so far as immigration was concerned, both were treated as places from which one was an immigrant when one came to Australia. They were both workings out under section 122 of the status of those two areas and neither is in any way inconsistent with the general provisions of the Constitution about the people of Australia.
KIRBY J: Now, the Constitution talks only of territories; it does not draw a distinction between internal and external territories.
MR BENNETT: No, it does not, your Honour.
KIRBY J: I accept what you say, that there might be difficulties. I think there would be difficulties in providing for limitations on movement from one territory to another, or treating them as requiring immigration requirements. But if that is so in respect of the Australian Capital Territory and Jervis Bay and the Northern Territory, why is it different in respect of an external territory? What constitutional principle permits one to distinguish between the two classes?
MR BENNETT: Your Honour, there are a number of matters. The first is that to the extent that one is looking at constitutional principle from the covering clauses, there does seem to be a distinction between the areas which were part of the six States which joined and formed the Commonwealth, and one includes in that areas added under section 121, although there have not been any. Section 121 incidentally uses the phrase:
The Parliament may admit to the Commonwealth or establish new States –
“establish” probably relates to the subdivision of a State, an existing State, and “admit to the Commonwealth” relates to some other area which becomes a State. But the phrase “admit to the Commonwealth” is not used in section 122. What appears there is:
a territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth –
It is the language of possession rather than the language of becoming part of.
GUMMOW J: Yes, and there is a discussion of what “acquired” means in Fishwick v Cleland 106 CLR 186 at 197 to 198, and it is clear from what the Court says there that this word “acquired” would include all sorts of arrangements, and I mentioned the Hong Kong one.
MR BENNETT: Yes.
GUMMOW J: There is a reference to Hall’s Foreign Powers and Jurisdiction of the British Crown which I think would include treaty ports in China and all that sort of thing.
MR BENNETT: Yes, the passage ‑ ‑ ‑
GUMMOW J: But these are wide words.
MR BENNETT: Yes.
It is not used in a proprietary sense and in a constitution intended to endure and apply to changing conditions . . . to include the acquisition of the power of government over the Territory contemplated by the mandate and the Trusteeship Agreement.
It is a wide phrase which contains a range of options.
There is no doubt that on the construction of the Migration Act with the Acts Interpretation Act someone coming from Papua to Australia was an immigrant. We know from the judgments in Donoghue v Wong Sau and Potter v Minahan that you can be an immigrant although you are a citizen. I cite the obvious example. Take the child born overseas to an Australian parent who first comes to Australia at the age of 40. Now, such a person is an Australian citizen but clearly would be an immigrant in every sense of the word. That is what Justice Isaacs meant when he said that nationality was not a decisive consideration. It may well be relevant.
GUMMOW J: The nationality was British nationality, as we have said to you before.
MR BENNETT: Yes, it was, your Honour, of course, but the question asked in those early cases when people left Australia and returned many years later was, “Were they returning home?”, not “Were they returning as British nationals or people with any other specific nationality?”
KIRBY J: In those early days, home was England.
MR BENNETT: Yes, it was using “home” in a different sense to that, your Honour.
GUMMOW J: The second home.
MR BENNETT: It was more in a sense of “home and away”. I do stress that so far as the Papua New Guinea Constitution is concerned it would not matter if the provisions of the Migration Act at the time were now held to be invalid in their application to Papua. That would not affect the construction of the New Guinea Constitution. We have handed up to your Honours some additional materials and your Honours will see that all the articles and books discussing the PNG Constitution all make the point, which was clearly a notorious point, that people born in Papua had no right to enter Australia.
If your Honours go to tab 3, the book by John Goldring entitled, The Constitution of Papua New Guinea in Chapter 13, “Citizenship”:
Before Independence, most Papua New Guineans had no “real” citizenship. Those born in Papua were technically Australian citizens, but they had no right to enter or remain in Australia, or even to leave their own country.
The same point is made in tab 4 in a book called Twenty Years of the Papua New Guinea Constitution edited by Anthony Regan. Again, in the first paragraph in the introduction, having referred to various general matters, in the sixth line he says - this is Graham Hassall who wrote this article:
Inhabitants of the Territory of Papua and New Guinea did not have status as citizens as such: Papuans had the international status of Australian citizens (but without the right to residence in Australia), and New Guineans had the status of Australian protected persons (without the right to residence in Australia).
These matters were quite notorious and were picked up, we would submit, by the Papua New Guinea Constitution. It is important to note when one looks at that Constitution - and it is in the case stated book, as your Honours would be aware - your Honours will notice a number of features of it. The most important for present purposes is section 64 which contains an exclusion in relation to persons who have “a real foreign citizenship”, which is then defined.
It is obvious that what they mean by the phrase “real foreign citizenship” is very much in accord with the observations that fell in argument this morning from Justice Kirby about this rather artificial and technical citizenship that people born in Papua had. They certainly did not regard it as real foreign citizenship. It was real foreign citizenship if you were in various other categories, and they are set out, but if you were one of the mass of people born in Papua and that was your own – and thereby got Australian citizenship, that was just some funny technical thing which the Australians liked to call citizenship. It has never mattered. In my respectful submission, the phrase “no real foreign citizenship” – an unusual phrase in the Constitution – is in fact a very accurate one.
Now, when they define “no real foreign citizenship”, what is interesting is that one of the categories is a person who was an Australian citizen by virtue of birth in the former Territory of Papua who was never granted a right, revocable or not, to permanent residence in Australia – not who never had a right to permanent residence. It is assumed that a right to permanent residence in Australia had to be granted. So even if the situation was, as my learned friend has submitted, that a Papuan with a bright constitutional lawyer who had come to Australia in 1974 might have persuaded this Court that he or she had a right to enter Australia notwithstanding the Migration Act, even if that is correct, such a person was never granted a right to permanent residence; that is the criterion.
So it is perfectly clear that there – and we would submit also in section 65 – the reference to a right to permanent residence in Australia is an acceptance of the factum of what was done in those days validly or invalidly. The consequence, as has been pointed out in my learned friend’s argument, would be absurd. It would mean that – I am not sure what the proportion of population is between Papua and New Guinea in the new State. I am told it was approximately 25 per cent in Papua, but that is my learned friend’s – that comes from the Official Yearbook of Australia 1974, which sets out the populations of Papua New Guinea. The total population of Papua then is 692,000 and of New Guinea, 1.787 million.
GLEESON CJ: You will find what they meant by “real foreign citizenship”, will you not, by looking at paragraphs 32 and 33 of the Final Report of the Constitutional Planning Committee, which is behind tab 1, and it relates to the matter mentioned earlier of the history of immigration to Papua.
MR BENNETT: Yes. They knew who the foreigners were and who were not.
GLEESON CJ: And there were a group of people they did not want to have to accept as automatically entitled to their citizenship.
MR BENNETT: Yes.
GLEESON CJ: Because, as they said in the report, they were not responsible for bringing those people to Papua.
MR BENNETT: Yes.
GLEESON CJ: It was the foreign power that brought them to Papua.
MR BENNETT: Yes. Your Honour, there is simply no doubt that the effect of section 65 was that if a person had two grandparents who were born in the country or an adjacent area, then, subject to limited exceptions, naturalised Australian citizens; registered Australian citizens – that is people from the UK and places like that who were able to register as Australian citizens already having British nationality; was a citizen of a country other than Australia; and then this fourth category, persons who had a right to permanent residence in Australia. These are special categories excluded from the otherwise general rule that if you have two grandparents born in the territory, that was sufficient.
So whichever way one approaches the problem, it is clear that my learned friend’s submission that everyone born in Papua is a person who did not become a citizen of the independent state of Papua New Guinea simply cannot be right.
In relation to this Court construing the Constitution, may I simply remind your Honours of – I think we have handed up copies of this, it is Bowden Bros & Co v Imperial Marine & Transport Insurance Co (1905) 5 SR (NSW) 614. That is one of the few cases one can find which expressly stated the proposition that foreign law is presumed to be the same as Australian law unless one proves the contrary. That was quite a strong case for that rule. It was an action against a Japanese insurance company which had changed its name, and the court, without any evidence of the law of Japan, said, “Well, in Australia, when a company changes its name, it is the same company and it has the same rights and obligations, and we will assume that Japanese law is the same”.
Now, we would submit that particularly where one has a common law country such as Papua New Guinea, there is no reason why we cannot assume, in the absence of evidence to the contrary, that rules of legal interpretation and rules even of constitutional interpretation are the same as ours, and the ‑ ‑ ‑
HAYNE J: There is, I think, a single Justice decision of Justice Kitto to the effect of the proposition you advance.
MR BENNETT: Well, your Honour, it is something I have looked for on other occasions and been unable to find. Armed with that information, I will have another try at finding it.
GLEESON CJ: You have checked, have you, or those instructing you have checked, to see that there is no decision of the courts of Papua New Guinea on the question discussed this morning about citizenship, dual citizenship and the need to make a positive election?
MR BENNETT: Yes. What I am told ‑ ‑ ‑
HAYNE J: As to that, you might usefully go to tab 1, paragraph 20, and the view of those who had something to do with the drafting of the Constitution.
MR BENNETT: Yes, that is the paragraph I would take your Honour to.
GUMMOW J: Paragraph 22 as well.
MR BENNETT: Yes.
GLEESON CJ: It would be very embarrassing for us to say anything about this if there has already been something said about it in Papua New Guinea, and we do not mention that.
MR BENNETT: Well, your Honour, what I am told is, there are one or two cases discussing the special provisions about children, which are referred to in some of the submissions but which do not arise in this case, but that there are no cases which contain any useful discussion of the issues before the Court. I have not myself looked at those cases, but I will do so and confirm what I have been told.
GLEESON CJ: But, as this report also shows, when they were saying the vast majority of inhabitants will become citizens as of right, a group of people they did not intend to become citizens as of right were what I might call expatriate Australians.
MR BENNETT: Yes, although, if they had been there for two generations, that would then involve the various questions we are debating in relation to their status as Australians.
GLEESON CJ: People who own plantations, for example.
MR BENNETT: Yes. Paragraph 20 would simply not be correct, if my learned friend’s argument were correct. It would be an absurd consequence, in my respectful submission, and one which, as a matter of reading the words, simply cannot be reached. There is a discussion of that issue in a decision of the Full Federal Court in MIMIA v Walsh (2002) 125 FCR 31, the decision of Justices Heerey, Mansfield and Hely, which reversed a decision of Justice Dowsett.
The issue there was a slightly different one. The respondent there was a person who had been born in Papua. Her father was Australian, her mother was an indigenous Papuan, and the question was whether citizenship by descent could apply to a person who was born in Papua. The argument that was accepted was that because citizenship by birth, by descent, by naturalisation, and so on, are mutually exclusive, and worded in such a way to be mutually exclusive, a person born in Papua could not be an Australian citizen by descent, and, therefore, she lost her citizenship on independence.
GLEESON CJ: There seems, in the Papua New Guinea Constitution and in this report, to be a fastening on the significance of having grandparents who were born in Papua.
MR BENNETT: Yes, that is in the Constitution, itself, your Honour, in section 65. That is the primary definition of a person who, on Independence Day, becomes a citizen of the new nation: a person who has two grandparents born in the geographical area in question, subject to a string of exclusions.
GLEESON CJ: Once again, it is probably a reflection of their own immigration history.
MR BENNETT: Yes. It is also interesting to note that Papua and New Guinea had different colonial histories, one being British, one being German, and that was the historical reason for the separation. There was no local ethnic division between those two areas. There were, of course, individual tribal differences in particular areas, but the line was simply a line drawn on a map in Europe, like lines drawn in Africa. The distinction between Papua and New Guinea was not one which had any significance to the local inhabitants other than that which was imposed by the colonial powers. Indeed, the word “Papua” comes from a Malay word, not from a local word.
So for those reasons we submit that the first argument simply fails and that as a matter of construction on independence the prosecutor ceased to be an Australian citizen. The remaining arguments concern the validity of that provision.
My learned friend’s second argument was the argument based on it being beyond the regulation-making power. Our argument there is a very short and simple one. Your Honours have a bundle which is entitled “UK Independence Acts”. What this seeks to demonstrate is that virtually identical provisions to the one appearing in the regulations have been enacted as Britain divested itself of its colonial empire in relation to virtually every place. For example, the first one – they are in alphabetical order – is Aden, Perim and the Kuria Muria Islands. Your Honours will see, again:
1. (1) Except as provided by the following provisions . . . any person who . . .
(a) in consequence of his connection with a territory designated by the order –
it pertains to specified nationality –
(b) immediately before that date is a citizen of the United Kingdom and Colonies,
shall on that date cease to be a citizen of the United Kingdom and Colonies.
Then one sees the same thing with Bahamas, Barbados, Botswana, and they go through for pages and pages.
Cyprus is interesting in that it is done by subordinate legislation, but nothing in particular turns on that, and your Honours see pages of these. Now, we have not ‑ ‑ ‑
KIRBY J: But there is a difference, is there not? These people were not made British citizens; they were British subjects, which is a duty owed by them. They did not enjoy the status of citizen, which carries rights that are accorded ‑ ‑ ‑
GLEESON CJ: They must have, must they not ‑ ‑ ‑
MR BENNETT: They did, your Honour.
GLEESON CJ: ‑ ‑ ‑because this is about ceasing to be a citizen.
MR BENNETT: They were citizens of UK and colonies, your Honour.
GLEESON CJ: But this legislation you are showing us only deals with people who are citizens of the United Kingdom and the provision is that they cease to be a citizen.
MR BENNETT: Yes. The phrase used was “citizen of the UK and colonies”.
KIRBY J: Well, the British Nationality Acts originally referred, did they not, to being a British subject.
MR BENNETT: Originally yes, your Honour.
GUMMOW J: That went in 1948, did it not?
MR BENNETT: Yes, there used to be a distinction between nationality and citizenship, which has become totally obsolete of course. It was a distinction which probably only existed in Commonwealth countries.
GLEESON CJ: As I understand it, all this legislation you are showing us deals with people who by hypothesis were before the legislation citizens of the United Kingdom and by virtue of this legislation ceased to be citizens.
MR BENNETT: Yes, your Honour, precisely. Now, we have not researched what happened in Yugoslavia or Czechoslovakia or what happened when Texas became independent of Mexico and later joined the United States or what happened as Alsace-Lorraine went backwards and forwards between France and Germany.
KIRBY J: Actually, the Philippines example Justice Gummow raised is perhaps the most analogous.
MR BENNETT: Yes. Now, if your Honours would be assisted by some research in that direction I can have that done.
GUMMOW J: There is the United States decision to which Justice McHugh referred, called Hooven & Allison v Evatt 324 US 652 (1944), but that would need to be taken further after World War II.
MR BENNETT: Yes, we will have a look at that.
KIRBY J: There is of course a difference with the United Kingdom, that they do not have a written Constitution, they do not have the rigidities that that involves, they do not have the constant problem of going back and finding power for legislation that they enact. They do have the European Convention on Human Rights of course.
MR BENNETT: Yes. It would also be interesting to see what happened when Bangladesh achieved independence from Pakistan, and when Hong Kong was ceded by Great Britain to China. Those are examples which might well have provisions of the same nature. I would seek leave to see if we can collate some information about some or all of those examples, but I would be surprised – if I can anticipate it – if in some or all of those cases there was not some sort of law similar to this.
We have pointed out in relation to the Philippines, in paragraph 50 of our submissions, that unincorporated territories are not treated as part of the United States for the purposes of the Fourteenth Amendment, and we have cited some cases establishing that in footnote 72. For example, people born in the Philippines while it was a United States territory were not born in the United States for the purposes of the Fourteenth Amendment, and that is Rabang v INS 35 F.3d 1449 (9th Cir. 1994).
There may be a difference with Puerto Rico, and in a sense that is a good example of something analogous to what happens under section 122, where, to put it bluntly, there were territories and there were territories. Many of the American States are former territories. Your Honours may recall there was litigation in 1964 when Goldwater stood for the presidency of the United States, where it was suggested that he was not an American‑born citizen because he was born in the Arizona territory, which subsequently became part of the United States. The argument was rejected. There are different categories of territories in the United States, as there are and can be in Australia.
KIRBY J: You were dealing with the regulation‑making power.
MR BENNETT: Yes, and what we get from this bulk of legislation is that having a provision like this, when an area over which one exercises control as a territory or colony or whatever becomes an independent state, is the most natural thing in the world. It is always done. It is normally done in this sort of form. It is just an obvious thing to do and it would fall squarely within the regulation‑making power. It is just the sort of thing one would do. It is obviously necessary. One has a new country, that new country is going to have its own citizenship, the area is severing its relationship with the former governing country, and, naturally, one will have adjustments to citizenship of some kind.
KIRBY J: At this stage of the argument, I understood that what was being put was, for something so serious as to deprive a person of a right of citizenship which you have conferred, one would expect it would be spelt out in express terms and not left to general provisions.
MR BENNETT: Well, your Honour, our answer to that is that the mere fact that it is important, and the mere fact that it is important to the individual, is not a reason for reading down the regulation‑making power to exclude something that would be the first thing one would think of as being included, working out the precise adjustments in relation to citizenship. It is just an obvious thing that has to be done when a place becomes independent.
KIRBY J: It seems a rather casual way to divest oneself of one’s citizens, though.
MR BENNETT: Well, your Honour, it is ‑ ‑ ‑
KIRBY J: I mean, we have to test these propositions by what happens in future cases. As we have seen in Canada, there have been real questions as to whether a part can secede and what happens then. You just have to look down into the future in these cases.
MR BENNETT: It is hard to see how there could be any doubt that, under the implied nationhood power, if a State were to be permitted to secede and the necessary constitutional amendments were made, one would assume that a necessary and normal and natural part of that process would be divesting people who went with it of their Australian citizenship.
GUMMOW J: The constitutional amendment which we are postulating would provide for it, I suppose.
MR BENNETT: Yes.
KIRBY J: That is the point at this stage of the argument that is put against you, that one does not expect to see this in a regulation. One expects to see it spelt out in terms, because a nation’s own dignity is wrapped up in divesting itself of its citizens. That is the argument.
MR BENNETT: Your Honour, there is no principle which says, because something is of transcendental importance, one cannot do it by regulation. The answer is as simple as that.
KIRBY J: Well, there is a principle that if you are taking away important civic rights, you expect that it will be done expressly and by clear language, not within a general provision such as exists in section 6. That is the argument.
MR BENNETT: That is the argument.
KIRBY J: We have to deal with the argument one way or the other. It may be a bad argument, but it has to be dealt with.
MR BENNETT: Your Honour, one can understand that there may be cases where the divestment of the fundamental right is so divorced from the general subject matter that one would expect to find it spelt out, but our proposition is very simple. When you give up a territory, of course, the people stop being Australians. It is as simple as that. It being as simple and obvious as that, it can be done in a casual way. That is the way we put it. It is always done, and here is this long list of cases doing it.
GLEESON CJ: It may not be quite as simple as that. It might depend on the terms on which you give it up and on which they acquire nationhood, but here one of the terms on which they acquired their own independence and sovereignty was that they, according to their Constitution, set their faces against dual citizenship and they confined the rights declared by their Constitution to citizens. So that, in that context, the corollary of retaining their rights as Australian citizens would have been divesting them of their rights as citizens of Papua New Guinea.
MR BENNETT: Yes, your Honour.
HAYNE J: And all this in the further context where, in PNG, apparently, the “two grandparent rule” was a matter of considerable controversy – see tab 4 of the respondent’s materials at pages 256 to 257 of the work extracted there – the “two grandparent rule” apparently having the effect that some prominent figures of the day were excluded from citizenship by this rule.
MR BENNETT: Yes. And, your Honour, of course, the precise definition and the precise way it was done, even at the Australian end, might involve some detailed working out. In fact, it was done in a fairly simple and sweeping way, saying, “Well, if you get citizenship of the new country, you lose citizenship of the old country”. Our submission is that whereas even accepting for the moment that the significance of citizenship is such that one would not normally deal with it as a side wind, it is so incidental and obvious in relation to a situation like this that you have to do it, that it does not fall into that category here. It is simply part of the fact of giving independence to these two former territories. That was the important decision. That was the decision which required enormous consideration of the interests involved and what was to happen and so on.
KIRBY J: You make Australian citizenship seems such an unimportant and insignificant thing.
MR BENNETT: No, your Honour, I do not do that. What I do say is when a territory hives off and has a new citizenship, and obviously one has to have something under which the people there becomes citizens of the new place, not the old place, the precise boundaries of how you define that are a matter of detail, not because citizenship is unimportant but because it just follows as the night the day.
KIRBY J: It is fair to you to say that in a number, though not all, of the instances in the schedule you handed up the United Kingdom Parliament dealt with it by Orders-in-Council. It provided that the detail could be worked out and spelt out in Orders-in-Council.
MR BENNETT: Yes, and one can understand why. There are so many categories of people who might ‑ ‑ ‑
KIRBY J: And so many different principles. For example, Tanzania had a two-father or grandfather rule as distinct from parent, those unenlightened days.
CALLINAN J: And the winds of change were blowing so strongly.
MR BENNETT: Yes, they were.
KIRBY J: Trinidad and Tobago also had father and father’s father.
MR BENNETT: There would obviously be different political considerations and different categories of people to be taken into account and, classically, there is no reason why one cannot do that by regulation so that it could be worked out, no doubt, and enacted quickly with the assistance of the authorities in the new country to fit in with the grant of independence. In my respectful submission, there is simply no reason why it could not be done in the way in which it was done.
The third matter of concern was the issue of validity. If one accepts the test which was suggested by Justice Gaudron in Patterson, which is in a sense the high‑water mark of what my friend seeks to contend for, what one has to do is to ask whether there was some overall change in the relationships which required the divestiture. To use the phrase Justice McHugh used in that case, did a bell ring. One could hardly imagine a louder bell ringing in the sense used by your Honour than rang in 1975. No one had his or her citizenship removed by stealth. What happened was the country with which the person concerned was associated became independent and developed a new citizenship.
GLEESON CJ: At a time and in circumstances where, as Justice Hayne pointed out earlier, the report shows that this issue of citizenship and the rejection of dual citizenship was an enormously contentious political issue in connection with independence.
MR BENNETT: Yes, very much so. One asks rhetorically if not then, when; if not in such circumstances, when could one do it? That must be the classic case for doing it.
In paragraph 55 of my learned friend’s submissions, they cite the 1933 Convention on Nationality, signed at the Seventh Inter-American Conference. That may sound of great international importance until one realises, as we have pointed out in our submissions in paragraph 46.1, that that was a convention which applied only as between Chile, Ecuador, Honduras, Mexico and Panama. It does not represent customary international law. Indeed, it is described in one textbook we have cited on international law as a “deviation” from the general principle. The general view, we would submit, is that expressed by Professor Brownlie, that the evidence is overwhelmingly in support of the view that the population follows the change of sovereignty in matters of nationality.
Now, as I have indicated, I will try to obtain some material for your Honours about Hong Kong and Bangladesh and European countries, but it is ‑ ‑ ‑
KIRBY J: That may well be so in 1933, but since then we have the United Nations Charter and two international covenants, both of which, in their common first article, refer to the rights of peoples to self‑determination, so there may be a different principle. But I suppose you could say that the independence of Papua New Guinea was the grant of self‑determination on the constitution that they themselves adopted, and, therefore, it is not a derogation from self‑determination, but a fulfilment of it.
MR BENNETT: The right of self‑determination, your Honour, does not extend to allowing Prince Leonard of Hutt to say, “I am an independent country and I am not a citizen of Australia”.
KIRBY J: No, it belongs to peoples in international law.
MR BENNETT: Precisely, your Honour. It is a general international matter, rather than, as my learned friends would have it, some individual right to elect in every case.
GUMMOW J: Anyhow, our withdrawal from the trusteeship arrangement involved the United Nations, as the recital shows to the Australian statute.
MR BENNETT: Yes.
GUMMOW J:
the General Assembly of the United Nations on 13 December 1974 noted that resolution –
of the PNG House of Assembly –
and resolved that, on the date on which Papua New Guinea became independent, the Trusteeship Agreement would cease to be in force.
MR BENNETT: Yes, and there is ‑ ‑ ‑
KIRBY J: You would not know, but we went through all this in the Nauru Case.
MR BENNETT: Yes, well, the analogy in relation to the territories power, I suppose, would be, had I been there to put the argument, that ‑ ‑ ‑
KIRBY J: It was not the Court’s discouragement to you, Mr Solicitor.
MR BENNETT: I am aware of what was said, your Honour. But the territories power would include, at least as incidental, the delivery of what one might call “after sales service” to former territories, and that would bring it squarely within the territories power, what was done there, and that would, of course, have taken it out of Wakim. But I was not there to put the argument and the Court has given its decision, of course, although not its reasons.
We would submit it is clearly within the territories power – and this is so obvious it goes without saying – to make provision for the divestment of territories and to make provisions designed to promote the ability of the former territory to become an independent country, and that is what was done here in relation to citizenship, where there was the local objection to dual nationality ‑ ‑ ‑
KIRBY J: I understand how you put that and I understand the argument, but the problem I have is how that squares with doing exactly what was done in respect of Papua New Guinea and the citizenship granted by our statute to them, and doing the same thing, which I certainly would not feel could be done, to an Australian internal territory and to the citizenship of the people of Australia in those territories. How does one then justify the one, but not the other, except on political facts?
MR BENNETT: Your Honour, there might be questions of nexus. We accept that the aliens power may not extend to a wholesale alienisation of a group of the population without some sort of constitutional justification.
KIRBY J: The Court has said many times that an alien is not simply what Parliament says is an alien.
MR BENNETT: Yes. Well, in defining who starts off being an alien, the Court has said that one cannot define as an alien a person who by no stretch of the imagination could be an alien, nor can one define as a non‑alien a person who by no stretch of the imagination could be a non‑alien. That is the current status of Pochi, Shaw and Singh. Although the judgments in Singh eschewed the use of the word “penumbra”, that is the effect of it, that it is open to the Parliament to define who will be regarded as members of the Australian community within certain limits. One could not say, “No Aboriginal will be a member of the Australian community and be a citizen”, one could not say, “All the people in the electorate that voted for the Opposition in the last election will become aliens”. There are clearly restrictions of that type.
Where something is clearly both within the territories power and contemplated as a matter of course, we would say, when a territory becomes independent – bearing in mind the history we have taken your Honour to – there is simply no difficulty in saying, “Well, under the territories power, part of what one must do is deal with the citizenship of people associated with the new nation”.
Now, my learned friend says the aliens power is like the compulsory acquisition power or the banking and insurance powers, in that it subtracts from other powers. It is quite clear when one looks at the cases on those powers, including the case cited by my learned friend on section 51(xxxi), that the reason for that rule is that there is an exception or qualification. If a power has an exception or qualification, then, clearly, that exception can be read so as to take away from other powers. There are some questions about that under the banking power, as to the extent to which one can, under the corporations power, deal with State banking and so on, but I will not take your Honours to that. There has been some discussion of that in a recent case, which is on its way here, in relation to the insurance power.
It is trite law that where one has an exception, qualification or limitation on a power expressed in that power, one might be able to read other powers in relation to it; particularly in relation to compulsory acquisition, where compulsory acquisition is something which is normally done for the purpose of one of the other powers. The qualification would be meaningless if one could simply avoid it by saying, “I’m acquiring this land for a lighthouse under the lighthouses power, not the compulsory acquisition power”.
The aliens power is simply not in that category. It deals with a separate subject which may on occasions have some interception with other powers, particularly the immigration power and the territories power and one can imagine intersections with the defence power and perhaps other powers, although other powers are less likely. If one had a law saying one was taking away citizenship from all bankrupts, there might well be a question of whether there was sufficient nexus with the bankruptcy power to do it under that power and it would involve other problems under ‑ ‑ ‑
GUMMOW J: I do not think you are going to draw me into a discussion of all this, Mr Solicitor. You can trail your coat as much as you like.
MR BENNETT: What I am seeking to do, your Honour, is to rebut the suggestion ‑ ‑ ‑
GUMMOW J: Yes, I appreciate that.
MR BENNETT: ‑ ‑ ‑that the aliens power, because it contains some sort of implied limitation that excludes making people into aliens, that therefore it subtracts from every other power. That would have the consequence, for example, that it would not be open to the Commonwealth Government in wartime to have legislation under the defence power making a traitor into a person who was an alien, taking away Australian citizenship from a traitor or a person who fought against Australia in a war, pursuant to the defence power.
There is simply no reason why one should limit the defence power in that way. The aliens power may contain some limitations in relation to how it can be used but where there is another power which operates in a broad way which happens to intersect with it, there is no reason for limiting it. My learned friend concedes the general proposition which is referred to in a number of cases and which probably has its origins as early as Engineers that one does not normally read one power down by reference to another power. What my learned friend is seeking to do is without the presence of any express limitation or exclusion to read other powers down by reference to the implied exclusion which they contend exist.
KIRBY J: The argument, good or bad, is that the one thing that is peculiar about the word “aliens” is that it is a status. It is not like most of the powers which are things or subjects. It is a status and there is, of course, the reference to the influx of criminals which is also a status, but generally the heads of power, marriage, divorce, pensions and so on. Now, what is said is that that provides a footing for saying alien, and by inference non‑alien, are a status which is something serious in the Constitution and therefore that you cannot just pick up the territories power and take it away from people or give it to people.
MR BENNETT: The same could be said, your Honour, of marriage and bankruptcy and possibly even immigration. All those are statuses which carry with them certain constitutional consequences in relation to the ability to pass types of legislation.
KIRBY J: But it is not alienage, it is aliens, people, human beings, creatures that breathe and live and exist.
MR BENNETT: Yes.
KIRBY J: The suggestion is that that is an opposite to “the people of the Commonwealth”.
MR BENNETT: Your Honour, it is placed, of course, in conjunction with the abstract now in naturalisation which again is something which like marriage or bankruptcy confers a status. The power to make laws defining who is in the category is, of course, a circumscribed power, as has been pointed out, but it nevertheless is, subject to that, a plenary power.
The aliens power enables the Parliament to determine who will be members, who will be citizens, who will be members of the variously described people of Australia, body politic or whatever phrase one wishes to use, and it involves, we would submit, where appropriate and in certain circumstances, the power to take that away. If it does not, if there is a limitation on that – and, as I have said, there may be a limitation in relation to some types of case and I have given extreme examples – that does not mean that there is any exception (a) in relation to something squarely within section 122, or (b) something squarely within the type of principle referred to in the judgment of Justice Gaudron in Patterson v Taylor, namely, a change in the relationship between the individual and the state caused by something like a change of control of an area.
Your Honour Justice Gummow referred to this in a passage cited in my learned friend’s submissions in paragraph 90 in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 237 and your Honour gives the very example of this case as a striking example of loss of citizenship by reason of constitutional changes. My learned friends take a nitpicking point that your Honour used the words “New Guinea” and therefore was not referring to Papua. We would submit your Honour is using the words “New Guinea” in the geographical sense, meaning the island of New Guinea and surrounding islands, rather than ‑ ‑ ‑
GUMMOW J: The next sentence makes that relatively clear, I would have thought.
MR BENNETT: We would submit that the comment made in paragraph 91 is simply wrong. My learned friend seeks to reach the same sort of result by taking a concept, which is found in a few sections in the Constitution and a few of the covering clauses, of “the people of Australia”, and seeks to draw some sort of syllogism by saying that if people are granted citizenship then they are in that category, and then there is some special constitutional doctrine invoked.
We would submit one simply cannot do that. The grant of citizenship, whether under the aliens power or the territories power or a combination of them, can be done on any of a number of bases, two different groups. What the Parliament can give, the Parliament can take away. That was established in the Hindmarsh Island Bridge Case – I think it is Kartinyeri.
KIRBY J: Yes, it is Kartinyeri.
MR BENNETT: Yes, 195 CLR 337. Once there is an area in relation to which the Parliament can define who is to be a citizen and who is not, that can be repealed, and what is granted can be taken away. That is discussed in many of the fishing rights cases, and there are other examples.
KIRBY J: Again, whether it is a good or bad argument, as I understand it, the suggestion is that the notion of Australian nationality has been affected by the development of Australian statutory citizenship, and I think all members of the Court have said that. The question has been at what point you, as it were, looked to the statutory citizenship to define when a person is an Australian national. Justice Gaudron, Justice McHugh, Justice Callinan and I took a view that it came later, it came in the 1980s or 1990s, and the other members of the Court took a view that it came earlier. But the development of statutory citizenship was a relevant indicium.
MR BENNETT: Yes. And I think Justice Heydon has ‑ ‑ ‑
KIRBY J: Therefore it is said that by granting citizenship, even if we did not really mean to do so, we gave this aspect of our nationality to the people of Papua, and hence to the present applicant.
MR BENNETT: Yes. Well, your Honour, it was – but, as has been said, was it real Australian citizenship or was it just a special sort of statutory thing, which existed for various reasons, which is real in one sense, but, we would submit ‑ ‑ ‑
KIRBY J: Was that ever dealt with in the legislation that extended it to Papua? Was there a second reading speech? Was there ever any explanation of why this was done, why they did not, for example, treat them as protected persons in an external territory as they did with New Guinea people? I mean, presumably, the practical problem arose that people were asking for passports to get on planes and go overseas. Now, some identity document had to be given to them; therefore something was done to say, “Well, we’d better treat these people as citizens”. Was that ever explained by a Minister, do you know, or could that be looked at?
MR BENNETT: I am not aware that it was, your Honour, but I will have that checked.
KIRBY J: At the point when that was introduced, there might have been something said in the Parliament.
MR BENNETT: Yes.
GLEESON CJ: Is there some Commonwealth yearbook, perhaps around 1975, to which we can look to find a description of what might be called the state of social development of Papua?
MR BENNETT: There is a yearbook which I was shown a few minutes ago in relation to the population. It is called The Official Yearbook of Australia, No 60 of 1974, but the ‑ ‑ ‑
GLEESON CJ: It just occurred to me that it might be useful to have some description, for example, of the state of development of the population or the majority of the population; a context against which we can measure the submission that they were each put to their individual election on the matter of citizenship.
MR BENNETT: Your Honour, I will see if I can have something found. The document I have merely has a page headed “Population of External Territories” and it was from that that I was reading earlier.
KIRBY J: There is a three volume encyclopaedia of Papua New Guinea. It has a green cover and, unless you have any objection, I intend to have a look at what it says about citizenship.
MR BENNETT: There was mention made of the power in relation to islands of the Pacific. We would submit that that power, although it is, as has been said, largely subsumed in the external affairs power, would no doubt extend to New Guinea, which certainly in its eastern edge and maybe as to the whole of it could be described as being an island of the Pacific. Certainly, Bougainville could be so described.
HAYNE J: That seems to be the view of Quick and Garran, who refer, amongst other things, to the Pacific Islands Protection Acts of 1872 and 1875 which did extend to the eastern coast of New Guinea, and it was those Acts that had some relationship with the events in which Queensland acted purporting to annex New Guinea and the like. Certainly, the eastern part of New Guinea was seen as falling within 51(xxx).
MR BENNETT: It does not really affect the argument, because we rely primarily on the territories power and we have no need to go further to other powers on which one could draw. My learned friend’s argument would no doubt apply equally, to the extent that it is capable of operating at all, to something done under that power.
My learned friend, when he answered after lunch the question asked before lunch about his definition of the people of the Commonwealth, included – and this is just an illustration of the difficulty of defining it – as
one group that was within it those who are born here. We know from a recent decision of this Court that that is not a universal definition.
It is hard to find, we would submit, today any meaning other than a coincidence with citizenship, and so much seems to be, at least in part of my friend’s argument, common ground between them and us. Those are our submissions, subject to the matters which we will prepare something for your Honours on. It will be interesting to see what happened in Czechoslovakia and Yugoslavia and Alsace‑Lorraine, but, as has been said, the more important examples for our purposes are Pakistan and Bangladesh, the United States and the Philippines, which has already been dealt with, and perhaps Hong Kong.
GLEESON CJ: Thank you, Mr Solicitor.
MR BENNETT: If the Court pleases.
GLEESON CJ: Yes, Ms Rubenstein.
MS RUBENSTEIN: Your Honours, I have four simple points to present in my reply, the first in relation to the construction issue and in particular the documentation provided to the Bench in relation to the interpretation of the Papua New Guinea Constitution. Can I draw your Honours’ attention to page 4/2 in the first tab, paragraph 18, which states that:
The citizenship laws of a number of other countries – including Australia – also make it difficult to implement the single citizenship principle in Papua New Guinea. Australian citizens, for example, cannot give up their citizenship rights completely. Although they may formally renounce their present citizenship rights in order to take up Papua New Guinean citizenship, the way remains open to them to return to live in Australia and to easily regain their Australian citizenship. We have to bear this fact in mind when making our recommendations as to the qualifications for naturalization.
Your Honour, the point I wish to make from addressing that section is to acknowledge the underlying point of the applicant’s submission that it is up to each country to determine its own citizenship, and that in interpreting ‑ ‑ ‑
GLEESON CJ: What do you say about paragraph 88 on page 4/12?
MS RUBENSTEIN: The notion of a commitment to single citizenship is a choice by Papua New Guinea in terms of making that decision, but, in the interpretation that we have presented to the Court, that individual had the capacity to make that choice, to either renounce their Australian citizenship or take up their Papuan citizenship. It is not inconsistent with the reality of dual citizenship of Papua New Guinea.
GLEESON CJ: Is not your client trying to stand in two canoes?
MS RUBENSTEIN: Your Honour, all our client is seeking to say to this Court is that he is still an Australian citizen. It would be up to a Papua New Guinea court to determine whether or not he is a Papua New Guinea citizen. He is not presenting to this Court that he is both.
GLEESON CJ: What do you say? Do you say he is not a Papua New Guinea citizen?
MS RUBENSTEIN: Correct, your Honour. We say that he is in fact an Australian citizen. Can I also refer your Honours to paragraph 20 back at ‑ ‑ ‑
GLEESON CJ: Just a minute. The reason you say he is not a Papua New Guinea citizen is because he has not renounced his Australian citizenship.
MS RUBENSTEIN: Correct, your Honour, but he continues ‑ ‑ ‑
GLEESON CJ: On that basis, the majority of people in Papua New Guinea are not Papua New Guinea citizens.
MS RUBENSTEIN: According to Australia’s interpretation of its law. It would be up to Papua New Guinea to then determine what the consequences of that were for Papua.
In paragraph 20 your Honours, there was reference just within that recent discussion about “The vast majority of the inhabitants of Papua New Guinea” becoming citizens of Papua New Guinea as of right. Well, with respect to the numbers that were presented to the Court just in relation to the 1974 yearbook, we were told that 75 per cent of the population were New Guineans. That is consistent with our argument that the vast majority of Papua New Guineans would become automatically by virtue of the majority of them being New Guineans. If Papuans only constituted 25 per cent, the proposition is not as preposterous as has been alleged by the respondents.
KIRBY J: A case of this kind is not determined on numbers. It is determined on principle.
MS RUBENSTEIN: No, your Honour, but, in using this material to assist the Court in achieving an interpretation that is consistent with Australian law and mindful, as the Court has been at pains to point out, of the independence of Papua New Guinea, the proposition is not inconsistent with that statement.
KIRBY J: You are trying to de‑frighten us.
MS RUBENSTEIN: Indeed, your Honour. In relation to the second point of the source Act not providing sufficient power to enable those regulations, as your Honour Justice Kirby pointed out, each of those Acts listed in the handout presented by the respondent are in fact source legislation as opposed to delegated legislation, and that does not directly address the issue as raised. Moreover, your Honours, I would like to ‑ ‑ ‑
KIRBY J: But they do in many cases, the Cyprus Case, for example – I think the Cyprus Case, an Order‑in‑Council, and other ‑ ‑ ‑
MS RUBENSTEIN: The Cyprus Act of 1960, yes.
KIRBY J: ‑ ‑ ‑ cases do contemplate that there will be follow up subordinate legislation, so it is not completely unusual, apparently, on the United Kingdom side, to deal with these matters by subordinate legislation as distinct from the Act itself.
MS RUBENSTEIN: Your Honour, it is the applicant’s submission that it is more complicated than the table that was presented to the Court. We do have a table that was prepared – and I have given it to the respondents – that I would like to hand up for the Bench.
GLEESON CJ: Thank you.
MS RUBENSTEIN: Your Honours, this table shows that it is a much more complicated scenario than that necessarily presented by looking at those specific pieces of legislation. It is broader in its scope, in that it includes, beyond the British Empire, the countries that are now foreign countries, such as Bahrain, Burma and Hong Kong, for instance. But just in the key, and just highlighting the key – I will leave it for the Bench to look at more closely – it shows that the notion of membership was a much more complicated notion. There were British subjects, there were Commonwealth citizens, there were British subjects without citizenship, there were citizens of the UK and colonies, there were citizens of the UK and colonies who were born, as opposed to naturalised, and the list goes on, in showing that there is not one singular picture.
Moreover, in the intensity of the table, there shows that there are differences in terms of choice involved on the parties, and that it is not just a matter of it being imposed on the individuals who were subject to that territorial change.
The final point is in relation to the broader issue of other countries. The respondent has undertaken to get more information for your Honours in relation to other international scenarios, but can I refer your Honours to the International Law Commission draft of 1999, which the respondents, of course, raised in their response to their concern about the convention and treaty that had been included in our original submissions. In particular, in our submissions in reply, paragraphs 24 through to 28 emphasise the fact that these draft articles were developed indeed to deal with change in territory, so that we can look to that as a source of principle in international law.
GUMMOW J: As at 1974?
MS RUBENSTEIN: No, your Honour, this is a 1999 ‑ ‑ ‑
GUMMOW J: I realise that.
MS RUBENSTEIN: It is responding to changes that have occurred over time, setting up basic principles, and was presented by the respondents as reflective of the current state of international legal principles.
GLEESON CJ: Did you say paragraphs 24 to 28?
MS RUBENSTEIN: Of the applicant’s submissions in reply.
GLEESON CJ: I am sorry, thank you.
GUMMOW J: It displays an anxiety that persons should not be left stateless.
MS RUBENSTEIN: It does, indeed, but it also reflects and refers to a notion of arbitrary change of nationality, and it also refers to choice and the involvement of the individual concerned. That completes the points that I seek to make in reply.
GLEESON CJ: Thank you. We will reserve our decision in this matter, and we will adjourn until 9.15 am tomorrow morning in Canberra, and 9.30 am tomorrow morning in Sydney.
AT 3.42 PM THE MATTER WAS ADJOURNED
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