Taurino, Ex parte Re MIMA

[2004] HCATrans 85

[2004] HCATrans 085

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Brisbane  No B28 of 2003

In the matter of -

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

Respondent

Ex parte –

SEBASTIAN JAMES TAURINO

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 MARCH 2004, AT 2.15 PM

(Continued from 15/9/03)

Copyright in the High Court of Australia

MR P.L.G. BRERETON, SC:   May it please your Honour, I appear for the applicant.  (instructed by Mallesons Stephen Jaques)

MR A. MARKUS:   May it please your Honour, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Brereton.

MR BRERETON:   Your Honour, I believe, will have received two documents:  a draft case stated in marked‑up form and another which is in not marked‑up form.  The mark ups indicate what remained in issue, at least between the parties, as on Friday and I think we can tell your Honour that that has been reduced somewhat further.  May I take your Honour to the marked‑up passages and indicate what the parties would propose about them.

So far as paragraph 17 is concerned, it is, I think, common ground that the correct date is 1 July 2002.  So far as paragraph 20 is concerned, that is not pressed.  That is a conclusion of law which can be argued at the appropriate time.

HIS HONOUR:   Well, it is a conclusion of….. , is it not?  It is a question of fact.

MR BRERETON:   It is a question of – well, it is a conclusion ‑ ‑ ‑

HIS HONOUR:   It is a question of fact of the construction of the Papua New Guinea Constitution.

MR BRERETON:   I think, with respect, that is right, your Honour.  I might need to reflect on that for a moment, but ‑ ‑ ‑

HIS HONOUR:   In particular, sections 82 through to 85, plus….. the sovereign there indicates 16 September 1975, even though she accepted the request from the head of state…..

MR BRERETON:   Well, we have not referred to the warrant, your Honour.  We have referred to sections 82, or Articles 82 to 85, in paragraph 19.  So far as paragraph 22 is concerned, the question raised in 22(b) is intended to pick up both ground 1 and ground 2 in the draft order nisi, ground 2 being the question which arises concerning absorption and the immigration power.  So far as subquestion (c) is concerned, that really is the only matter that remains in issue, at least between the parties, as to whether it should form part of the stated case.  We would press that it ought to on the basis that the argument over the interests of the children is not one of extensive scope.  The applicant was required to ‑ ‑ ‑

HIS HONOUR:   It could be remitted to the Federal Court after we have decided the constitutional question, if we get that far.

MR BRERETON:   It could be, if your Honours wished to.  On the other hand, it could be fairly expeditiously determined in this Court without ‑ ‑ ‑

HIS HONOUR:   By seven Justices?  We have many other things to do.

MR BRERETON:   If those seven Justices are engaged in the constitutional argument, your Honour, it will not add much to it to address that issue, but I am in your Honour’s hands so far as that is concerned.

HIS HONOUR:   Yes.  Let me tell you what is on my mind with this draft case stated.  We had better go through it step by step.  I do not want…..  Now, paragraph 1 – it is a relevant circumstance, is it not, that the prosecutor is a citizen of Papua New Guinea?

MR BRERETON:   Yes, it is, your Honour, and ‑ ‑ ‑

HIS HONOUR:   Again, as far as I can work out – and I do not really see why I should have to do all these things – so far as I can make out, by section 65 of the Constitution of that country.

MR BRERETON:   And that, your Honour, is addressed in paragraph 18 of the draft stated case.

HIS HONOUR:   No, that says at the time of his arrival, not the date of his birth.  These things have to be done precisely.  Now, coming to paragraph 2, this statement: 

The Prosecutor’s father, George Francis Taurino, was born in the territory of New Guinea on 10 March 1936 . . . he became an Australian citizen –

the last sentence –

At the date of the Prosecutor’s birth and thereafter, the Prosecutor’s father was an Australian citizen. 

That is just not right, is it?  There is no reference anywhere here to the Papua New Guinea Independence Act or to the regulations, No 180 of 1975, which say – Regulation 4, Statutory Rule 180 of 1975 says:

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 New Guinea,

ceases on that day to be an Australian citizen.

Now, did not then the prosecutor’s father cease to be an Australian citizen by virtue of the Constitution coming into force and the automatic citizenship conferred by section 65 of the Papua New Guinea Constitution, that is to say, before the birth of your client?

Now, coming to paragraph 3, it is not accurate, I do not think, to say that she “was born in the territory of New Guinea on 27 August 1956”. Section 10 of the – I am sure I have mentioned this before – Papua New Guinea Act 1949, which was upheld in Fishwick v Cleland (1960) 106 CLR 186, administratively amalgamated both the territory and the old mandate to become the territory of Papua New Guinea and they were administered as one. So she was born in Papua New Guinea, I would have thought, in 1956. At the time of the prosecutor’s birth, she certainly was a citizen of Papua New Guinea, I would have thought. Now, (b) is misleading when it says:

a “British subject” for the purposes of –

when she really had the status of a British subject for the purposes of Part II of the Australian Citizenship Act, whatever that status may be. 

MR BRERETON:   The reference at the end of that paragraph to regulation 5A as the references to the amendment regulations should be, in fact, a reference to regulation 1 of the amendment regulation.

HIS HONOUR:   I will just have a look at that – 1979?

MR BRERETON:   Yes, your Honour.

HIS HONOUR:   Well, it substituted a new regulation 5A to the Citizenship Regulations.

MR BRERETON:   Yes, your Honour.

HIS HONOUR:   That was it, that is all it did.

MR BRERETON:   Yes.

HIS HONOUR:   Now, in turn, though, Part II of the Australian Citizenship Act was repealed in the 1980s, was it not?

MR BRERETON:   Yes, after this applicant was in Australia.

HIS HONOUR:   …..

MR BRERETON:   1983.

HIS HONOUR:   No, I think it took effect in 1987, I may be wrong…..  Now, it says, looking at paragraph 5, “having settled there permanently in or about 1978” on the evidence of the father – is the father still living?

MR BRERETON:   I believe so, your Honour.  My learned friend says not.

HIS HONOUR:   Now, coming to paragraph 15, it seems to me at the moment that 5 was just wrong because section 11 of the Citizenship Act, as it then stood – and, following through, the basic flaw is that at the time of your client’s birth, neither of his parents was an Australian citizen ‑ ‑ ‑

MR BRERETON:   Paragraphs 15, 16 and 17 have been ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ by reason of the events that happened in 1975.

MR BRERETON:   Well, that is what we will have to go back to because 15, 16 and 17 are all founded on the assumption that the father was an Australian citizen.

HIS HONOUR:   That is right – at the time of this person’s birth.

MR BRERETON:   Yes.

HIS HONOUR:   Now, there have been some challenges, have there not, or mutterings, about the validity of these regulations, 180 of 1975?  I think they have been unsuccessful in the Federal Court.  I may be wrong, but I have an impression of the special leave application we heard in Brisbane last year.

MR BRERETON:   Which regulations, your Honour?

HIS HONOUR:   The 1975 – 180 of 1975 of the Independence Act, namely, these people ceased to be Australian citizens as a consequence of Independence.

MR BRERETON:   There has been a case in the Federal Court – I think called Walsh – in which there has been an issue about that and in which I think the Federal Court upheld the validity of the regulations.

HIS HONOUR:   Yes.  So 15, 16 and 17, I think, are dependent on that particular circumstance unless the Act is looked at again.  Paragraph 18, that would be correct, I would have thought.  I understand the citizenship by descent argument.  What is the second argument beginning at paragraph 18?  What is all that about?

MR BRERETON:   In paragraph?

HIS HONOUR:   Paragraph 18 of the stated case. 

MR BRERETON:   The argument is that as a person having the status of a British subject in Australia in 1982 he was not an alien, and that turns on the distinction between the majority and the minority in Shaw.

HIS HONOUR:   Well, that has been settled.  You cannot say that “This case has a majority and a minority; I will have another go and thanks very much”.  You would have to seek leave to reopen it.

MR BRERETON:   We will be seeking that leave, your Honour.

HIS HONOUR:   Well, Mr Brereton, I am not going to state a case.  I am not very happy with the form of this document I have been presented with, so what do you want to do?

MR BRERETON:   I wish to take the opportunity to consider the matter which your Honour has ‑ ‑ ‑

HIS HONOUR:   I am not very happy that it has been consented to by the Commonwealth either.

MR BRERETON:   I wish to consider the matter which your Honour has raised about paragraph 2.  That will obviously impinge on, as your Honour has identified, paragraphs 15, 16 and 17, and once that matter has been ‑ ‑ ‑

HIS HONOUR:   You really want to try and reopen the case decided two months ago.  I think you had better think about that, too.

MR BRERETON:   Your Honour, we want first to run the citizenship by descent argument.

HIS HONOUR:   Yes.

MR BRERETON:   If there is no such argument – well, there are two possibilities.  The issue your Honour has raised may raise an issue concerning the validity of the regulations which had that effect.  We will need to consider that.  If there is some other reason why the father does not fall within the class that was affected by those regulations, then the problem will fall away and the citizenship by descent argument will be available.

HIS HONOUR:   Yes.

MR BRERETON:   That is the first argument.

HIS HONOUR:   I follow that.  Well, how long do you need to consider these matters?

MR BRERETON:   I suppose a week, your Honour.

HIS HONOUR:   Very well.  What do you say about this, Mr Markus?  I think the Solicitor‑General had better be involved in this, sooner rather than later, if I may say so.

MR MARKUS:   The Solicitor‑General has been involved in it, your Honour.  Could I just clarify the respondent’s position in relation to paragraph 2.  I should just say that the respondent has proposed to consent to a case being stated to the Full Court on the understanding that paragraph 2, as is presently drafted, is correct.  In that context, I should say that there is very little known to us about the father ‑ ‑ ‑

HIS HONOUR:   It is the last sentence of paragraph 2.

MR MARKUS:   I understand what your Honour is saying.  As far as I understand the position, the reason why my client believes that the applicant’s father was, in fact, an Australian citizen as late as 1982 is because of the facts contained in paragraph 5 of the draft case stated.  The applicant/prosecutor and his mother have been granted certain visas which they would have been entitled to, on my instructions, only if the applicant/prosecutor’s father was an Australian citizen.  That was the basis upon which we assumed that the applicant father did not cease to be an Australian citizen at the time of Independence.  We know very little about him.

HIS HONOUR:   Well, it is a question of construing the regulations about his father.

MR MARKUS:   I understand what ‑ ‑ ‑

HIS HONOUR:   All these people in New Guinea were Australian citizens.  It did not matter if they lived in Australia or not.  It has nothing to do with it.  They were Australian, but that status was taken away from them by this Act and regulations on the footing that they become citizens of Papua New Guinea.

MR MARKUS:   I understand what your Honour is saying.

HIS HONOUR:   That was the Constitution on ‑ ‑ ‑

MR MARKUS:   In any event, our position was, your Honour, that if paragraph 2 is correct, then this case could raise an issue about the constitutional status of a person who is born overseas to an Australian citizen parent.  That was the issue which we thought may be deserving of consideration by the Full Court.

HIS HONOUR:   The person – say that again.

MR MARKUS:   It is sort of the reverse argument, your Honour, of the Tania Singh matter, or the other side of the coin.  If the applicant/prosecutor’s father was an Australian citizen, then this case ‑ ‑ ‑

HIS HONOUR:   Was not an Australian citizen.

MR BRERETON:   Was.

HIS HONOUR:   Was.

MR MARKUS:   Was, at the time of the applicant/prosecutor’s birth.

HIS HONOUR:   Well, he was not, because ‑ ‑ ‑

MR MARKUS:   I am simply saying, your Honour, that was the basis upon which my client approached it.

HIS HONOUR:   Yes, I know.  I am not interested in the basis.  I am just interested in this document which I am being asked to state a case on.  Now, what do you want to do?

MR MARKUS:   Well, we would certainly like an opportunity to check paragraph 2 and the correctness of the last sentence in paragraph 2.

HIS HONOUR:   Well, it is important because, as Mr Brereton says, in one way or another, but directly, 15, 16 and 17 hang off these circumstances.

MR MARKUS:   They have to.  That would be the only basis, in our view, to state a case to the Full Court, otherwise the case does not deserve to be stated to the Full Court.

HIS HONOUR:   Yes, very well.  When does the term of imprisonment expire?  Do you know, Mr Brereton?

MR BRERETON:   Your Honour, as I recall it, the term has itself expired and I think he is in immigration detention at the moment.  I think that is the position.  At least, he has been granted parole.  The full term has not been served.

HIS HONOUR:   I see.

MR BRERETON:   As I recall it, and I do not want to be held to this, he is now in immigration detention, in effect.

HIS HONOUR:   But still under sentence?

MR BRERETON:   Yes.  I think to be precise, your Honour, he is still in the custody of the State of Queensland, but he is only there because of his immigration status.

HIS HONOUR:   Yes, there is an arrangement by which that can be done, I think, under the Migration Act.  The State authorities make arrangements.  Well, shall I stand it over to Monday, 19 April?

MR BRERETON:   That suits me.

HIS HONOUR:   It will have to be Monday the 19^th at 2.15.  All right, what about costs of today?

MR MARKUS:   I think, your Honour, costs should be just reserved for the moment.

HIS HONOUR:   Very well, I will reserve costs of today.  My present disposition is not to award costs one way or the other today, whatever other costs are made, but I will not make any formal order today.  Very well, I will adjourn.

AT 2.38 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 19 APRIL 2004