Taurino, Ex parte - Re MIMIA

[2003] HCATrans 722

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Brisbane  No B28 of 2003

In the matter of -

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

Respondent

Ex parte –

SEBASTIAN JAMES TAURINO

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON TUESDAY, 27 MAY 2003, AT 2.14 PM

Copyright in the High Court of Australia

MR M.J. HAWKINS:   Your Honour, I appear for the prosecutor.  (instructed by Mallesons Stephen Jaques)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   Your Honour, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Mr Hawkins, is there a problem with time in this matter?  You seek certiorari, I think.

MR HAWKINS:   Yes.

HIS HONOUR:   There is a six‑months limit in Order 55 rule 17.  It is expressed as “six months after the date of the judgment, order, conviction or other proceeding”.  What is the relevant date here?

MR HAWKINS:   The Minister’s reasons for decision were given to the prosecutor on 15 April 2003.

HIS HONOUR:   Yes, quite recently, but the decision seems to be much earlier, does it not?

MR HAWKINS:   Yes, the decision itself, as I recall, was made in November 2002.

HIS HONOUR:   On 1 November.

MR HAWKINS:   Yes, the decision is dated 1 November and it was sent to the correctional centre on 13 November.

HIS HONOUR:   Right.  That would take us outside six months, would it not?

MR HAWKINS:   I am looking to see when the application itself was lodged.  It seems to have been lodged 28 April.  I received the papers an hour ago, your Honour.

HIS HONOUR:   28 April.  Yes, that would seem to be within time, would it not?

MR HAWKINS:   Yes.

HIS HONOUR:   So I think that problem has disappeared.  Yes, thank you.  Before you sit down, can I ask you, the draft order nisi, grounds 1 and 2 might be called constitutional grounds.  Ground 3 is not though.  Would that be pressed?

MR HAWKINS:   We would not want him removed and then brought back.

HIS HONOUR:   Yes.

MR HAWKINS:   As you may recall, I made a similar application in relation to Mr Cowgill.

HIS HONOUR:   Yes.

MR HAWKINS:   Sorry, that was for an order for release.  This is one that he not be removed from Australia, so it is a different situation in Cowgill.

HIS HONOUR:   No, I am talking about the grounds.

MR HAWKINS:   I am sorry, I was looking at the orders.

HIS HONOUR:   Yes.  No, the grounds.

MR HAWKINS:   Yes, I agree with that, your Honour.  It is not a constitutional question.

HIS HONOUR:   Yes, but would it be pressed?  Is it to be pressed?

MR HAWKINS:   Not as part of the case stated.

HIS HONOUR:   No, but it would remain behind, would it?

MR HAWKINS:   Yes.

HIS HONOUR:   You would still want to rely on it if need be.

MR HAWKINS:   If need be.

HIS HONOUR:   Yes, all right.  Now, the Registrar was supplied this morning with a draft of a case stated.  Have you seen this, Mr Hawkins?

MR HAWKINS:   Yes, I received it this morning.  I understand there are some points that the Commonwealth wants to check on.

HIS HONOUR:   I would think so.  Let me ask the Solicitor.

MR BENNETT:   Your Honour, it is always useful to have a second string to one’s bow in these cases, as was shown by Cowgill dropping out.

HIS HONOUR:   Yes.

MR BENNETT:   But there are problems with this case being ready in time.

HIS HONOUR:   I think so.

MR BENNETT:   There is no particular urgency because he is serving a prison sentence at the moment, as I understand it.

HIS HONOUR:   When does it expire?

MR BENNETT:   Some time next year, I understand, your Honour.

HIS HONOUR:   Is that so, Mr Hawkins?

MR HAWKINS:   I will just check the date.  I thought it was either November 2003 or 2004, but I will check to see.

HIS HONOUR:   Yes.

MR BENNETT:   Yes.  As we would see it, there is no issue raised by this case different from Shaw.  This case involves New Guinea and Shaw involves the United Kingdom, but on each of the three possible reasonings in Patterson there would be no difference, as we understand that.

HIS HONOUR:   Yes.

MR BENNETT:   There might be a difference on the reasoning of Justice McHugh in relation to the question of the nature of the monarchy in Papua New Guinea and the nature of citizenship but it is ‑ ‑ ‑

HIS HONOUR: That is right. I think there needs to be some further attention paid to the terms of the Constitution.

MR BENNETT:   We have provided to the applicant’s solicitors yesterday a list of comments on the stated case.  There are a number of matters in it which are incorrect, there are a number of questions of law which need investigation and a number of factual issues which we need to investigate.

HIS HONOUR:   Yes, I would think so too.

MR BENNETT:   Now, in Shaw, your Honour, the prosecutor’s or appellant’s submissions are due on Friday and ours on Wednesday of next week.  So it is a fairly tight schedule.

HIS HONOUR:   Yes.  I do not think myself it is practicable to have this ready for the June date.  What would your preferred course be?

MR BENNETT:   Perhaps to adjourn it, your Honour, so that the stated case can then be sorted out and agreed and the matter can be proceed in the normal way, if necessary.  It is likely that the result in Shaw will determine the result one way or the other in this case, although it may not totally because of the non‑constitutional grounds.

HIS HONOUR:   I am not sure about that, yes, because of the particular relationship with PNG.

MR BENNETT:   Yes.  There is possible ‑ ‑ ‑

HIS HONOUR: I note, for example – I do not know how relevant it is – that there is an assertion that the father of the prosecutor was born in the Territory of New Guinea in 1936. At that stage the relevant statute would have been the New Guinea Act 1920 and there would be a League of Nations mandate, would there not? It was separately administered from Papua.

MR BENNETT:   Yes, and people born in Papua were Australian citizens; people born in New Guinea were not prior to independence.

HIS HONOUR:   That is what I am wondering about, yes.

MR BENNETT:   Yes, but I think he was born after independence, your Honour.

HIS HONOUR:   Yes, but his father was born ‑ ‑ ‑

MR BENNETT:   His father was not.

HIS HONOUR:   ‑ ‑ ‑ yes – in 1936 so it is said and something is said to flow from that.  I think at the moment the best thing I can do is to stand the application over to be restored to me on a Monday in Canberra on a date to be fixed – of a sittings week in Canberra on a date to be fixed.

MR BENNETT:   If your Honour pleases.

HIS HONOUR:   You have heard what I have said, Mr Hawkins.

MR HAWKINS:   Yes, your Honour.

HIS HONOUR:   Is there any other view you would want to put?

MR HAWKINS:   I hear and I understand the difficulties with getting the stated facts finalised.  We say it is a question here ‑ ‑ ‑

HIS HONOUR:   It is not just the facts.  It is the legal structure as well.

MR HAWKINS:   Yes, but we say that the question here is subtly different to Shaw and Cowgill in that both of those men were British citizens ‑ ‑ ‑

HIS HONOUR:   You may be right about that.

MR HAWKINS:   ‑ ‑ ‑ whereas Mr Taurino was never a British citizen but was a British subject, so there is that small difference.

HIS HONOUR:   That is right.  I understand that.  But I just do not think it can be ready by a suitable time in advance for submissions and so on to be ready for the June sittings.  So I think I should follow that course I have indicated.

MR HAWKINS:   Yes.

HIS HONOUR:   For example, I think there is a reference in the PNG Constitution stating that references to the Queen are references to the sovereignty in the right of the United Kingdom.  I may be wrong about that, but I think it is there somewhere.

MR BENNETT:   Sections 82 to 85.

HIS HONOUR:   Now, the Australian statutory basis on which Mr Taurino was enrolled and voted, that presently does not appear very clearly.  So there are various matters to be looked at.

MR HAWKINS:   Yes.  We understand that possibly he just ticked a box on a form and then said he was a citizen of Australia when he enrolled.  Having come here at 15 months old, I could understand why he thought that.

HIS HONOUR:   Yes, you may be right, but we cannot act on that footing unfortunately.

MR HAWKINS:   But having voted, it does raise the question of whether that means he has lost his citizenship in Papua New Guinea.

HIS HONOUR:   I see that, yes.  I do not think we can determine that.

MR HAWKINS:   No, but it would have an effect as a stateless person on to where he should be deported.

HIS HONOUR:   Yes, very well. 

MR HAWKINS:   Your Honour, the provision you had in mind regarding the Queen might be section 83 of the constitutional laws and documents ‑ ‑ ‑

HIS HONOUR:   Yes.  What does that say?

MR HAWKINS:  

The provisions of this Constitution referring to the Queen extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom of Great Britain and Northern Ireland.

And in section 84 there was a provision as to precedence.

HIS HONOUR:   Yes, but not in the sovereignty of Australia, is there?

MR HAWKINS:   No.  It is in section 82:

(1)  Her Majesty the Queen—
…
(b)  having graciously consented so to become, is the Queen and Head of State of Papua New Guinea.

HIS HONOUR:   Yes, and they have a position for the election of Governor‑General, I think, by the Parliament.  Now, is there any point, gentlemen, to be served by standing it over to a specific date, namely Monday, 4 August in Canberra at 2.15?

MR HAWKINS:   I see nothing wrong with that.  Your Honour, the draft order nisi asked that the matter be listed in the list in Brisbane in June but I understand the June list may be full.

HIS HONOUR:   It will not be ready for that either, no.

MR BENNETT:   Yes, that is a sitting week, I take it.

HIS HONOUR:   It is, yes.

MR BENNETT:   Yes.

HIS HONOUR:   Hopefully the case stated can be sorted out by that date.

MR BENNETT:   There is also an application, I am instructed, in the Federal Court, your Honour, by the ‑ ‑ ‑

HIS HONOUR:   Yes.  What is happening about that, Mr Hawkins?

MR HAWKINS:   I have been told that an undertaking will be given to discontinue the Federal Court proceedings if the matter proceeds in the High Court.

HIS HONOUR:   Well, it is now here, so you should give that undertaking.

MR HAWKINS:   Yes, I will do that.

HIS HONOUR:   I will need to be notified with some supporting material on 4 August that that has happened, namely there has been a discontinuance.

MR HAWKINS:   Yes, thank you.

HIS HONOUR:   Well, the application in the matter of Taurino is stood over until Monday, 4 August at 2.15 in Canberra before me and costs of today will be reserved.

MR BENNETT:   If the Court pleases.

HIS HONOUR:   Is there anything else?

MR BENNETT:   No, your Honour.

HIS HONOUR:   Thank you, gentlemen.

MR HAWKINS:   Thank you.

HIS HONOUR:   I will now adjourn.

AT 2.28 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 4 AUGUST 2003