Siregar v The Queen, Ismunandar v The Queen

In *Siregar v The Queen* and *Ismunandar v The Queen*, the High Court of Australia considered appeals against convictions for offences under the *Migration Act 1958* (Cth). The appellants, who were citizens of Indonesia, had been convicted of offences relating to their unlawful presence in Australia. The central dispute concerned the interpretation of s 235(2) of the *Migration Act*, which deals with the circumstances in which a person who is not an Australian citizen may be convicted of an offence for being in Australia unlawfully.

The High Court was required to determine whether s 235(2) imposed an objective or subjective test for the element of "knowledge" in the offence. Specifically, the Court had to decide whether the prosecution was required to prove that the appellants knew they were in Australia unlawfully, or whether it was sufficient to prove that they ought to have known they were in Australia unlawfully. This involved an examination of the statutory language and the principles of statutory interpretation.

The Court held that s 235(2) requires proof of subjective knowledge. Gleeson CJ, Kirby and Hayne JJ jointly reasoned that the ordinary meaning of the words "knows that he or she is in Australia unlawfully" indicated a subjective state of mind. They rejected the argument that the provision imposed an objective standard, which would have required proof that the appellants ought to have known of their unlawful status. The Court found that the legislative intent was to criminalise conduct where the individual possessed actual knowledge of their unlawful presence.

Consequently, the High Court allowed the appeals, quashed the convictions, and remitted the matters to the Federal Court of Australia for re-hearing.