Taylor, Ex Parte Patterson S165/2000
[2000] HCATrans 737
•6 December 2000
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S165 of 2000
In the matter of –
An application for Writs of Certiorari, Habeas Corpus and Prohibition against SENATOR THE HONOURABLE KAY CHRISTINE LESLEY PATTERSON, PARLIAMENTARY SECRETARY TO THE MINISTER FOR FOREIGN AFFAIRS AND PARLIAMENTARY SECRETARY TO THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Ex parte –
GRAHAM ERNEST TAYLOR
Applicant/Prosecutor
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 6 DECEMBER 2000, AT 10.02 AM
(Continued from 5/12/00)
Copyright in the High Court of Australia
_________________________
GLEESON CJ: Yes, Mr Brereton.
MR BRERETON: May it please the Court, what I propose to do in the shortest possible time this morning is to address the fourth issue, then to revisit shortly some of the questions I was asked yesterday and those answers which we deferred giving in respect of them and finally to address the issue your Honour Justice Kirby raised yesterday about the possibility of any interlocutory relief.
So far as the fourth point is concerned, that is the submission that if contrary to my primary submission the respondent was the Minister acting personally for the purposes of section 501, then she impermissibly took into account an irrelevant consideration, namely the wishes and preferences of Minister Ruddock. That submission proceeds in this manner: first, if she were the Minister personally, then obviously enough the respondent was bound to make the relevant decision for herself exercising her own discretion and judgment both as to the national interest issue, that is, as to whether the 501(3) as opposed to the 501(2) route should be followed, and also as to the exercise of discretion to cancel the visa generally.
Secondly, it goes practically without saying that a discretionary decision exercisable by a decision maker must be made having regard only to relevant considerations on the facts and merits of the case and not according to private opinion, whim or personal preference. If any authority be needed for that fundamental proposition, although it is often attributed to Justice Kitto in Reg v Anderson; Ex parte Ipec-Air (1965) 113 CLR 177 at 189, in fact, although his Honour did not attribute it, they were the words of Lord Halsbury in Sharp v Wakefield (1891) AC 173 at 179. A discretionary power to do something means:
that that something is to be done according to the rules of reason and justice, not according to private opinion; according to law, and not humour.
That means that, obviously enough, the respondent could not take into account her private opinion, her private feelings, on the matter. If she could not take into account private opinion as distinct from the facts of the case, then even less could she take into account the mere opinion of someone else as to what should be done. In that respect there is a distinction between a submission and an opinion. If some departmental official put before the respondent an argument that for these reasons, having regard to these facts of the case, you should cancel his visa, she would most certainly be entitled to take into account that submission for the facts and reasons on which it relied.
But if all that she was told and asked to take into account was what the Minister wanted without reference to the facts and reasons upon which that opinion or preference relied, then that was entirely and utterly irrelevant, even more irrelevant than what she wanted, apart from the facts and circumstances of the case.
KIRBY J: I understand that submission but it seems a little unrealistic. Consistency in decision making is, if lawful, a desirable attribute of decision making and, therefore, if it is permissible to have a Minister and an assistant Minister is it not desirable that the person who is, as it were, stepping into the shoes and doing a particular decision should be able to be alerted to the way in which the ordinary decision maker decides similar cases.
MR BRERETON: For several reasons, no, your Honour. The first is that although it is not completely clear, the best inference as to why Minister Ruddock stepped aside and said this should be dealt with by the Parliamentary Secretary was that the Minister had already made a decision the first time round. It might be thought that if he dealt with the same matter the second time round he could be accused of having prejudged it. In those circumstances, it behoved him to keep completely out of it and not pass on his preference at all. So, that is one reason.
KIRBY J: Well, in fairness, he did keep completely out of it. His official who drew the assistant Minister’s attention to his desire which apparently had been expressed to the official.
MR BRERETON: That may well be so, your Honour, but that is one reason why no regard at all should have been had to the Minister’s preference. But, secondly, while consistency in decision making is desirable, that is achieved administratively, as it is judicially, by having regard to prior decisions and seeing what the pattern of consistent decision making is, rather than going to some other decision maker and saying, “What would you do in the facts of this case?”. What some other decision maker expresses an opinion as on a particular case is not the first decision maker exercising her discretion, but if not, subordinating it to the other decision maker, at least taking into account the preference of her political superior when, if she was the Minister personally, that was completely irrelevant.
HAYNE J: But what do you mean “take into account the preference expressed”? If it is not dictation, what is it? What is meant by “take account of the preference”?
MR BRERETON: Having regard to that preference as one of the factors upon which the decision was made. An illustration of that is the case on the list of authorities of Singer v Statutory and Other Offices Remuneration Tribunal (1986) 5 NSWLR, a decision of the Court of Appeal of New South Wales constituted by Sir Lawrence Street, your Honour Justice Kirby, and Mr Justice Hope, I think. That was a case in which the Tribunal was required to consider what compensation should be paid to an officer upon cancellation of his appointment as a referee of the Consumer Claims Tribunal. The Premier had written to the Tribunal saying that, as a matter of policy, the government takes the view that no compensation should be paid in this type of case.
At page 650F of the report that letter is set out and it concluded:
It is appreciated that any final determination…..will, of course, remain with the…..Tribunal –
So it was an expression of policy but it did not purport to dictate to the Tribunal what it had to do.
KIRBY J: The Premier did not write it. It was written by an official expressing the Premier’s request that certain matters be drawn to notice.
MR BRERETON: Yes, and then at G:
The Tribunal correctly recognised that it was not bound by this policy but…..acknowledged that it had “taken account of” –
and then, as your Honour Justice Kirby, as President then, showed at page 654, the Tribunal concluded in paragraph 20 of its reasons:
In the light of the foregoing, the Tribunal considers that Dr Singer is not entitled to any compensation.”
Your Honour then identified that the “light of the foregoing” boiled down to three matters and that is at the same page, 654F:
Three “foregoing” considerations are specified…..The first is a reference to what is described as “Government policy”…..The second is the conclusion –
about –
fair play…..The third is the holding that s 7(3) of the Act did not abrogate or contradict the common law rule that the Crown could dismiss its servants at pleasure –
and your Honour concluded from that that the Tribunal must have taken into account, that is, given some weight and not rejected as irrelevant, the statement of government policy.
GUMMOW J: The statement of government policy was unlawful, was it not?
MR BRERETON: It was contrary to the intent of the Act. The Act provided that compensation could be paid; the government ‑ ‑ ‑
GUMMOW J: Yes, it is a Hatfield-type Case.
MR BRERETON: Yes, exactly, your Honour – the government said compensation ought not be paid.
GUMMOW J: Is that this case?
MR BRERETON: No, it is not, your Honour, but the purpose of this case, or the purpose of my reference to it now, is to illustrate how something can be taken into account without it being a dictation. This was a case in which the Tribunal’s decision miscarried, because it took into account a policy without that being a matter of dictation.
HAYNE J: That is to say, it took into account a view of the Act which was not right. Now, that is not this case. How does the parliamentary secretary being invited to take account of the Minister’s opinion, wish, preference, amount to taking account of an irrelevant consideration?
MR BRERETON: Because the Minister’s ‑ a whim, a wish or a preference ‑ is not a fact of the case which is relevant to the decision to be made. The decision has to be made not having regard to the private opinion, whim or preference of the decision maker, but according to the facts of the case. Now, if it cannot be made according to the private opinion of the decision maker, a fortiori, it cannot be made according to the whim, preference or private opinion of someone else, namely the Minister, and let me show how that happened in this case, at application book page 120.
This was the first submission that went to the parliamentary secretary at page 119. It informed the parliamentary secretary, as we saw yesterday, page 119 to 120 of the previous proceedings, albeit in a less than accurate way. It then, at paragraph 9 on page 120, informed the parliamentary secretary that the Minister had been asked:
to indicate if he wished another submission –
under section 501, and then the Minister had indicated that a:
submission to consider possible cancellation.....under subsection 501(3) of the Act should be prepared and that the matter ought to be considered by you.
And then at 10:
Although Minister Ruddock has indicated that consideration should be given to cancelling Mr Taylor’s visa under subsection 501(3), you are not bound to follow that course.
Having said it, you are entitled to take into account his preference.
Now, nowhere there is any fact, circumstance or matter which explains why the 501(3) course is appropriate set out. All that is set out is that that is what the Minister’s preference is. The minute then goes on to set out the two alternative routes, 501(2) and 501(3), and, as we saw yesterday, in a manner which, in effect, tells the Parliamentary Secretary, “The only difference is if you go down the 501(3) route, you have got to give them a hearing afterwards rather than before you have made the initial decision”, which does not really accurately summarise the differences, particularly in their application to this case.
So the only basis before the Parliamentary Secretary for making the decision to go down the 501(3) route was twofold. You have two routes, either of which you may follow. Under one you have got to hear him first, under the other you have got to hear him afterwards. The Minister prefers you to go down the other route. You are not bound by that but you can take it into account. She is not given a single fact in that minute on which to base the decision to go down the 501(3) route other than the Minister’s preference.
So the only sensible inference is that she took into account the Minister’s preference and acted on it because it was the only matter put before her to choose that route. That, in my submission, was not the basis upon which to decide to follow the national interest route. One had to look at the facts of the case to see whether the case was one which warranted such a decision in the national interest.
McHUGH J: One thing that troubles me about this submission, and it has been made quite regularly, why should we assume that the submission was acted on by the Minister?
MR BRERETON: Because it was the only matter put before the Parliamentary Secretary to support the course she took.
McHUGH J: She might have come to that conclusion herself.
MR BRERETON: The other reason, of course, is that she was required to give her reasons, ultimately under 501C(3), and what she served was this brief and nothing more, so the inference is that her reasons are to be found in what was provided by way of reasons.
HAYNE J: Does it matter that at 121 we do not see any decision on that particular submission? What are we to make of that fact?
MR BRERETON: If your Honour goes to 107, paragraph 3 records that the 121 submission, that is the 26 June submission:
was put to you. On 28 June 2000, you indicated that a submission to consider possible cancellation of Mr Taylor’s visa is required and that the submission should be under section 501(3) ‑ ‑ ‑
HAYNE J: Thank you.
MR BRERETON: Now, that is, unless there are any other matters on that subject on which I can be of assistance, what I want to say about the fourth point. Can I now return to some of the outstanding issues and correct one or two things that I said yesterday and answer some of the outstanding questions.
By way of correction, I was asked by your Honour Justice Kirby whether the National Service Act was still in force and said that I thought it was. It was in fact repealed in 1992. Your Honour Justice Gummow drew my attention more than once to Sue v Hill. Sue v Hill of course was concerned with whether the respondent in that case was disqualified from election for being a citizen of a foreign power, and the effect of that decision was that the Court held that Britain is now a foreign power and accordingly that the respondent was indeed disqualified from nomination and election.
But Sue v Hill in fact is, in my submission, strongly in our favour for this reason: on no view of it could the respondent in Sue v Hill have been an alien. Even if the citizen/non‑citizen dichotomy be the correct dichotomy of alienage, the respondent in Sue v Hill was an Australian citizen. Her problem was that she was also a citizen of the United Kingdom and therefore a citizen of a foreign power, but on no view of Pochi or of Nolan could she be said to have been an alien; she was an Australian citizen. That powerfully demonstrates that in truth the citizen/non‑citizen dichotomy is not the test of alienage under our Constitution and it is supportive of the view that one can be a citizen of a foreign power but not an alien. Indeed, one can be a citizen of a foreign power and, at that time, an Australian citizen. That, in my submission, and consistent with ‑ ‑ ‑
GLEESON CJ: That just demonstrates that there can be dual citizenship, but what does “alienage” in the current Australian context mean except lack of citizenship?
MR BRERETON: One who is not one of the people of the Commonwealth, namely, one of the people who has been recognised by the Commonwealth Parliament as forming the body politic from whom the House of Representatives is to be chosen.
KIRBY J: I am just a little disquieted by this idea that it depends on “recognised by the Parliament”. It is a constitutional status. It may be that parliamentary legislation can help to fill it in, but the concept is constitutional.
MR BRERETON: Parliamentary legislation can expand it from time to time.
CALLINAN J: Mr Brereton, can I ask you something in relation to that. If you take, for example, section 8 of the Constitution:
Qualification of electors
8. The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament –
Is it your argument that section 93 of the Commonwealth Electoral Act is prescriptive within the meaning of section 8 of the Constitution of who can be an elector of senators, for example, and that that provision has the effect of legislating with respect to aliens – and legislation in respect of aliens is within power – to make them electors and people of Australia and therefore no longer aliens; that is to say, by virtue of a provision enacted pursuant to section 8 of the Constitution and to be found in section 93 of the Commonwealth Electoral Act and that provision being inconsistent with their subsequent treatment as aliens.
MR BRERETON: Your Honour has put it by reference to section 8 of the Constitution in a way in which I have not previously thought of putting it.
CALLINAN J: It may give you a constitutional basis for it, but then it is not a question of the legislation supplementing the Constitution. It is a question then whether that legislation gives effect to a specific constitutional provision.
MR BRERETON: Yes, in my submission, your Honour, it does through section 8 and I respectfully adopt that.
CALLINAN J: It is an alternative argument that you would put.
MR BRERETON: As an alternative argument, I embrace it, your Honour.
McHUGH J: Mr Brereton, Sir William Holdsworth thought that it was the duty of allegiance owed by the subject to the Crown which differentiated the subject from the aliens. Why is that not a good workable test of whether or not a person is an alien? And having regard to the developments in Australia, why cannot one now take the view that a citizen of Great Britain, a non‑Australian citizen, owes allegiance to a different sovereign and is, therefore, an alien for the purposes of our Constitution?
MR BRERETON: The problem with that, with respect, is the historical origins of the Constitution and that originally the Crown was indivisible. At the outset there was no difference between the subjects of the Queen in Australia and the people of the Commonwealth. They were one and the same thing. When the Crown became divisible, the subject of the ‑ ‑ ‑
KIRBY J: No, that is not quite true. The subjects of the Queen – I am sorry, in Australia were.
MR BRERETON: Yes, and the people of the Commonwealth were one and the same thing. I use the concept of evolution, not with trepidation but with reservation for the very reasons that Justice Callinan advanced in Sue v Hill, but as things have evolved and as the divisibility of the Crown was recognised, no longer are the people of the Commonwealth and the subjects of the Queen in Australia necessarily the same thing if they are subjects of the Queen in right of the United Kingdom or Canada or whatever.
HAYNE J: But nor were they in the 1918 Electoral Act. The 1918 Electoral Act did not take “subject of the King” as the relevant criterion. It took as the criterion for entitlement those who have lived in Australia for six months continuously and who are natural born or naturalised subjects of the King.
MR BRERETON: That is rather different to the later legislation in 1973.
HAYNE J: Just so, but in 1918 it was a rather more complex concept, perhaps. Now, natural born or naturalised subjects of the King – I am not sure what geographic concept, if any, is tied up in that, but if we are going to look to evolution I think we have to take account of that.
MR BRERETON: Because by 1973 it was “who have lived in Australia for six months continuously and who are British subjects”.
HAYNE J: Which perhaps, I do not know, may be a reflection of what happened in 48, may it not?
MR BRERETON: Yes.
GAUDRON J: Is it not a reflection of the English legislation rather than ours?
MR BRERETON: Your Honour Justice Gaudron I think is, with respect, right.
GAUDRON J: Let us assume a child born tomorrow in Australia who thereby becomes an Australian citizen, what makes her a subject of the Queen now?
MR BRERETON: A child of Australian parentage?
GAUDRON J: Whatever. She becomes an Australian citizen on birth.
MR BRERETON: I am sorry, your Honour, I did not pick up all of the facts ‑ ‑ ‑
GAUDRON J: Well, I want to know what now makes her a subject of the Queen.
MR BRERETON: Born in Australia?
GAUDRON J: Born in Australia, here in Canberra, of parents who we can assume were at some stage subjects of the Queen by reason of their history. But what makes that child a subject of the Queen now?
MR BRERETON: She is a subject of the Queen in right of Australia by birth.
GAUDRON J: Is that stated in the Citizenship Act?
MR BRERETON: No, she is an Australian citizen by birth by the Citizenship Act.
GAUDRON J: And is it stated in the Constitution?
MR BRERETON: It is not expressly so stated.
KIRBY J: Well, it is implied in section 117.
MR BRERETON: It is implicit.
KIRBY J: The Queen is the Head of State ‑ ‑ ‑
MR BRERETON: His Honour beat me to it, but it is implicit.
GAUDRON J: It is implicit.
GUMMOW J: Well, the expression “Head of State” is a slippery one, is it not? The Crown fulfils roles in Chapter I and Chapter II; Chapter I in respect of executive power and Chapter II in respect of legislative power. The expression “Head of State” is some popular notion, I think.
KIRBY J: Well, leave aside Head of State, the Queen is still the monarch.
MR BRERETON: Yes.
KIRBY J: Monarchs have subjects.
MR BRERETON: And those born within the realm ‑ ‑ ‑
GAUDRON J: If she is the monarch of Australia under the Royal Style and Titles Act, is there something in that Act that says we are her subjects? Or, is it perhaps the case that citizenship has, for practical purposes, at least prospectively, replaced the notion of subject of the Queen?
MR BRERETON: In circumstances where, by referendum, the people of the Commonwealth have chosen to remain a monarchy, for the time being at least, that reflects a situation where it is not possible to say that things have evolved so far that there is no longer a concept of being a subject of the monarch.
GLEESON CJ: My memory may be playing tricks with me, Mr Brereton, but I thought in Sue v Hill we noticed that there were some changes in the United Kingdom also that moved in the direction of citizenship rather than subjection.
MR BRERETON: It is certainly correct that in the United Kingdom the concept under current legislation is that of British citizen, rather than British subject, and ‑ ‑ ‑
GLEESON CJ: What is the point of that change?
MR BRERETON: Probably to use a term which is recognised internationally.
KIRBY J: This is supplementary, is it not? This is no doubt the result of Britain’s joining the European Union, that there they have citizenships of their different member countries. But this is all supplementary; citizenship is not in the Constitution except in the one particular, it is supplementary. The status cannot be other than subject as is indicated by section 117.
MR BRERETON: With respect, exactly, your Honour, and whilst citizenship may be conferred, that does not replace the idea of being a subject; I adopt, with respect, the concept that it is in addition to it.
GAUDRON J: Well, when people are naturalised as Australian citizens?
MR BRERETON: They swear an oath of allegiance and they become a subject.
KIRBY J: I am not sure that they now swear ‑ ‑ ‑
GAUDRON J: I think they now swear an oath of allegiance to the Constitution and the laws of Australia.
MR BRERETON: A Constitution by which the Head of State is the monarch.
GAUDRON J: And their naturalised papers, I think, do not tell them that they are a subject of the Queen.
KIRBY J: There are an awful lot of Australians who swore an oath of allegiance to the Queen.
GAUDRON J: The only point of this is, really, to say, is it sufficient to define an alien as one who is not under allegiance to the Queen?
MR BRERETON: My learned friend kindly draws my attention to section 23C of the Australian Citizenship Act, which provides that:
An Australian citizen who is required to state or declare his or her national status may state or declare himself or herself to be an Australian citizen and his or her statement or declaration to that effect is a sufficient compliance with the requirement.
In other words, it recognises that citizenship is one sufficient way of declaring your national status, but not necessarily the entire way of doing so and, indeed, the full description of the national Australian status is subject of the Queen in right of Australia and Australian citizen, the first being the constitutional part and the second being the supplementary statutory one.
GAUDRON J: And that is section 23C?
MR BRERETON: Section 23C, yes, your Honour.
GAUDRON J: The full title is.
MR BRERETON: No, the full title is what I just ‑ ‑ ‑
GAUDRON J: But it is not in the statute?
MR BRERETON: It is not in the statute, no, your Honour. In my submission, that is the correct legal full title; what the Act recognises is that it is enough to use the short title of Australian citizen.
GLEESON CJ: What, on your argument, is citizenship?
MR BRERETON: It is full membership of the body politic constituted by a nation State.
HAYNE J: Full membership seems to inject a qualification which leads to difficulties with people such as those under age, those under disability ‑ ‑ ‑
MR BRERETON: Yes, because they are not necessarily, well ‑ ‑ ‑
KIRBY J: Is it not a civil status provided by legislation to which is accorded all of the benefits and obligations that, by legislation, attaches to that civil status? It is a legislative provision; it is not a constitutional one.
MR BRERETON: On a quick look, there is no definition helpful or otherwise in the Act. I adopt, with respect, that it is a statutory status and not a constitutional one and maintain the position that the constitutional status is twofold: subject of the Queen in right of Australia and there is the additional constitutional status of one of the people of the Commonwealth, which distinguishes, and has always distinguished, those from by the House of Representatives is chosen from the rest of the world.
KIRBY J: You do not like the word “evolution” but in truth history requires us to acknowledge that what began as “subjects of an international monarchy”, became over time “subjects of a monarchy in Australia”, became called over time “citizen”, “subject” dropping out of regular use, but hidden away there in the Constitution, both in the nature of our polity and in section 117, is a status and it just will not be expunged unless the electors of the Commonwealth expunge it.
MR BRERETON: Yes, your Honour, and that is the reservation that I have about the word “citizenship” and, as I say, it is a reservation which derives from what Justice Callinan said in Sue v Hill. It is not so much to deny that things have changed over time. We all have to recognise that, but if the status of someone is to be changed from that of “subject” to “alien” or from “one of the people of the Commonwealth” to “alien”, then that is not something which can be left to a process of evolution. There has to be an end date, a formal legal Act which brings the one status to an end and substitutes another status.
As I read what Justice Callinan was saying in Sue v Hill, that was the concern which your Honour was expressing there, that it is unreasonable to leave to human beings the risk that their status as a citizen, as a member of the Commonwealth, as a subject of the Queen in right of Australia, will not be known and depends on when this Court declares that the evolutionary process has reached a certain point rather ‑ ‑ ‑
GLEESON CJ: But a relevant change in status that has occurred is a change in the status of Australia, and the change in the status of Australia cannot be disregarded in considering the status of the people of the Commonwealth.
MR BRERETON: I accept that, your Honour, but the change in the status of Australia is one in which the governing body of the Australian people has continued to accept amongst the people of the Commonwealth a certain category of British subject, which category includes Mr Taylor. That is what has not changed. That then conveniently probably brings me ‑ ‑ ‑
GUMMOW J: Just before you leave that, do you say that the power to make laws with respect to aliens does not extend to a law permitting aliens to vote? I say that to you bearing in mind the approval by Quick and Garran of the United States decision in Lanz v Randalls 14 FC 1131 which the Solicitor‑General relies on, which asks: why not? Unless you can deny that proposition, it seems to me that is one footing that supports section 93 with section 8. Aliens were given all sorts of rights. In some countries they could not own land and it required legislation to permit that, and so on and so forth. In the United States the position was taken that they could be enfranchised – still aliens though. It could be taken away from them.
MR BRERETON: To put section 93 on that footing would be not to recognise a process of evolution in the relationship between Britain and Australia from what was conceived by the founders when the Constitution was drafted to the present but to completely stand on its head what was originally contemplated by supporting a law ‑ ‑ ‑
GUMMOW J: It is not a question of what was contemplated. If you can find any ground of power, even if Parliament did not think about it and did not talk about it, that is enough. Sir Hayden Starke said that 80 years ago. That is just fundamental doctrine.
CALLINAN J: Mr Brereton, in relation to that, do you not have to look at – and I do not know what the answer is, but you do not just look at section 8, you also have to look at section 30 and section 24.
MR BRERETON: Yes.
CALLINAN J: Section 30 provides that:
Until the Parliament otherwise provides, the qualification of electors of members ‑ ‑ ‑
MR BRERETON: Shall be as per the States.
CALLINAN J: Yes.
MR BRERETON: Yes.
CALLINAN J: Now, I suppose the Electoral Act is provision otherwise?
MR BRERETON: Yes.
CALLINAN J: But, then, if a person becomes, by virtue of a provision otherwise under section 30 or prescriptively under section 8 an elector, then he becomes – he must be embraced within the notion of one of the people of the Commonwealth within the meaning of section 24. Is that not the argument? I do not know whether it is right but that is the argument, is it not?
MR BRERETON: That is exactly the argument, your Honour, and that indicates that section 93(b), I think, of the Electoral Act is supported by those provisions of the Constitution and not by the alien power.
CALLINAN J: Well, perhaps by the alien power as well. The power to legislate with respect to aliens would include, would it not, a power to change their status from “alien” to “a person”, “elector” of Australia?
MR BRERETON: Yes, but having done that that person would no longer be an alien and would then be ‑ ‑ ‑
CALLINAN J: Exactly.
GUMMOW J: Why?
MR BRERETON: Because having become a person of the – a person of the Commonwealth, one of the people of the Commonwealth is the personal components ‑ ‑ ‑
GUMMOW J: But pursuant to a law which can be repealed.
MR BRERETON: That brings me to McGinty ‑ ‑ ‑
GUMMOW J: You have to get yourself within the minority, I think, in Kartinyeri in some branches of your argument.
MR BRERETON: That brings me to McGinty v Langer. Now, McGinty v Langer ‑ ‑ ‑
McHUGH J: Before you come to McGinty v Langer, I asked you a question about allegiance. You were interrupted. I am still waiting for the answer.
MR BRERETON: I am sorry, your Honour. I started. I have got a note down here about Justice Kirby’s first question. I was immediately interrupted by someone else. I then got to Justice Hayne’s question about the 1918 Act and ‑ ‑ ‑
KIRBY J: Please do not complain.
McHUGH J: Why is not allegiance to the subject – the allegiance of the subject to the Crown a workable test of alien and now, having regard to the evolutionary framework of the Constitution, your client is an alien.
MR BRERETON: The short answer to that is Quick and Garran’s answer that the Constitution has chosen to denote the members of the Commonwealth by using the phrase “people of the Commonwealth” rather than “subject of the Queen” and the constitutional basis of membership or the constitutional description of membership of the nation is that of people of the Commonwealth rather than allegiance to the Queen. That having been done, the dichotomy is between those who are people of the Commonwealth and aliens rather than those who owe allegiance to the Queen and aliens.
Now, this discursus began with your Honour Justice Kirby asking me or expressing concern with the concept of Parliament being able to recognise people as people of the Commonwealth, that being a constitutional status. Justice Callinan in the question which immediately followed has, with respect, provided part of the answer to that: there is a constitutional basis for Parliament to do it. The original basis upon which I had advanced that argument was the dictum of Sir Edmund Barton in Ferrando v Pearce, to which I referred yesterday.
Your Honour Justice Hayne was asking me about the 1918 Act and drawing attention to the descriptor of electors there and what I did not completely recall from what your Honour said was whether that was the naturalised ‑ ‑ ‑
HAYNE J: Natural born or naturalised subjects of the King, an expression that, no doubt, has to be read also against the background of the 1903 Commonwealth Naturalisation Act.
MR BRERETON: But a natural born or naturalised subject of the King would not be limited, at least at that stage of our evolution, to the King in right of Australia and that would have caught all British subjects, not just those born in Australia or naturalised under the Australian laws. That would still be a significantly wider concept.
On concluding the point on which I began with Sue v Hill, that Sue v Hill demonstrates that citizenship of a foreign power is not inconsistent with being one of the people of the Commonwealth is not surprising, consistent with our submission that citizenship is not the constitutional descriptor of membership of our body politic, rather people of the Commonwealth is.
Now, that then brings me to McGinty 186 CLR 140 and Langer in the same volume at page 312. These cases are important in answer to your Honour Justice Gummow’s question to the effect such legislation having been passed by Parliament it can be repealed. Those cases illustrate that the concept of the people of the Commonwealth who choose the House of Representatives may change from time to time as part of the evolutionary process, not just in the relationship between this nation and Britain, but in the evolution of parliamentary democracy and responsible government.
GUMMOW J: It indicates the latter. It is talking about the latter, not the former. You seek to invert it.
MR BRERETON: Your Honour is quite right.
GUMMOW J: Yes.
MR BRERETON: Equally, Cheatle v The Queen (1993) 177 CLR 541 at 560 showed that such evolutionary concepts meant that a jury could no longer be limited by qualifications as to the sex of jurors or as to the property qualifications of jurors. Similarly, the people of the Commonwealth, because of the developments which have taken place under enactments of Parliament, can no longer, consistent with the Commonwealth, given modern meaning, be limited to exclude people upon whom rights of full membership, such as women and those without property, have now been conferred. Those rights having been conferred, that membership having been conferred, cannot now be taken away because of the manner in which membership of the Australian body politic has evolved since 1900.
Now, it is but a small step from there to say that the manner in which, even since 1984, the rights of British subjects who were already on the electoral roll then have been recognised and preserved so that their rights have now been recognised and preserved for a century, it is just too late to pretend that that class of British citizen is not or do not come amongst and count amongst the people of the Commonwealth. I think I used the word “citizen”. That class of British subject do not count amongst the people of the Commonwealth.
It is too late now to pretend that they are not part of us any more than it could be pretended that women are not part of us and those who do not have property are not part of us. We have recognised their status for too long to take that away. But, even if I am wrong about that proposition and your Honour Justice Gummow’s question to the contrary be right, and even if that status could be taken away, the short answer in this case, which I apologise for repeating ad infinitum, is it has not been done and, if it has not been done, it does not matter. That is ‑ ‑ ‑
GAUDRON J: I am just wondering this: I can conceive circumstances in which citizenship, I will say, or status as a member of the Commonwealth, could be taken away, but I am just thinking, I wonder if they can take it away wholly by legislative means. I am wondering if it is not the taking away of a right that necessarily invokes the exercise of judicial power, leaving aside abandonment. I mean, there may be cases of abandonment ‑ ‑ ‑
MR BRERETON: Or repudiation of a sort.
GAUDRON J: Or repudiation. But I am just wondering, absent clear repudiation, why would that not necessarily be the taking away of a right that could only be done in the exercise of judicial power?
MR BRERETON: I have not thought that through, your Honour, but I will give that ‑ ‑ ‑
KIRBY J: There are cases in the United States, are there not – I think I referred to this on the return of the order nisi – where the United States Supreme Court suggested there were limitations on the power of Congress to take away citizenship rights?
MR BRERETON: Your Honour referred to that on the order nisi, and I have to say that we ‑ ‑ ‑
KIRBY J: You forgot it immediately.
MR BRERETON: No, we have not, and Mr Ash has diligently been trawling the cases ‑ ‑ ‑
KIRBY J: I will find it.
MR BRERETON: ‑ ‑ ‑ to try to find them and we had rather hoped that your Honour had found it because we could not.
KIRBY J: I thought having raised it, it would be found by counsel. It is there. There are cases.
MR BRERETON: We have been looking diligently but we cannot find it and that is why we have not referred to it. If I can just come back to where I was a moment ago. Even if it could be taken away legislatively, it has not been, and that is the clearest possible instance of what your Honour Justice Callinan referred to in Sue v Hill as the need for clear posts in this process, to paraphrase what I think your Honour was saying, so that people in Mr Taylor’s position are not left to guess when they have lost their status.
CALLINAN J: “Destination markers”, I think was the expression I used.
MR BRERETON: A much better phrase than “clear posts”.
GUMMOW J: Yes, and the majority judgment says the destination post is the Australia Act.
MR BRERETON: But that cannot be a destination post so far as those people who are still electing a House of Representatives are concerned.
GUMMOW J: Well, that is the question. I put to you again, why cannot aliens become electors and still be aliens?
MR BRERETON: There are two questions in that, with respect, your Honour. It may well be that they can become electors but, once they become electors, they are by that same process made people of the Commonwealth. Having become people of the Commonwealth, they lose their alien status because that is the dichotomy. They cannot be alien and a member of the body politic.
GUMMOW J: Why?
MR BRERETON: Having become a member of the body politic, they lose their alien status and pass beyond the alien power.
McHUGH J: Does that mean that if one the States passes a law that says no alien shall be admitted as a barrister or solicitor, as legislation did at one stage, would that person be outside the State law?
MR BRERETON: If the person was an elector of the Commonwealth, that person would not be an alien for the purposes of the State law but a member of the body politic.
KIRBY J: I think, in fact, there the problem was presented by people having to take an oath to the Queen and that would not present a difficulty in the case of a person who was already a subject of the Queen in some other realm, one would think.
GAUDRON J: Mr Brereton, is there not a difficulty in your answer to Justice Gummow in this sense? Your answer assumes that the person concerned was at some point not an alien, whereas Justice Gummow’s question assumes that the person was always an alien. Is there not that difficulty about it?
MR BRERETON: No, with respect, your Honour. My answer is consistent with someone who has always been an alien up until the time that he or she becomes an elector. Once he or she becomes an elector, by that same Act under section 8, section 30, in the context of section 24 of the Constitution, that person becomes one of the body politic and ceases to be an alien. That answer does not depend on the person not having at all times previously been an alien. They lose alien status on becoming a member of the body politic by being given the right ‑ ‑ ‑
GAUDRON J: I suppose you say it is the only relevant right in this case. But that assumes, does it, the possibility that your client was an alien until the day he got onto the electoral roll?
MR BRERETON: It would be consistent with that, your Honour, but we know that, in fact, under the law as it then stood that he was not. It would cover the situation that he was not, but that is not necessary to this case because we know that from the moment he arrived in Australia under the then prevailing laws, he was not an alien.
Can I turn then to the Minister question. Yesterday your Honour Justice McHugh asked me a question to the effect: what about if you transpose paragraphs 1 and 2 in the notice of appointment at application book page 189? I gave an answer to that then but there is a further answer that, consistent with section 4 of the Ministers of State Act, you cannot.
Section 4, in effect, requires that the designation of Parliamentary Secretary accompany the appointment as a Minister. One can be appointed as a Minister without being designated a Parliamentary Secretary but one cannot under that Act be designated a Parliamentary Secretary without first being appointed a Minister. So the ministerial appointment, the appointment to administer a department, has to come first and the designation then has to accompany it. So that is a further answer to your Honour’s question.
Your Honour Justice Gummow yesterday drew attention to Kendle v Melsom (1998) 193 CLR 46. Relevantly in the judgment of your Honour and of your Honour Justice Kirby at page 61 paragraph 34, it was said that there are some offices which are susceptible of one appointee and others to which joint appointments can be made. Two old English cases were cited as an example. One of them was Jones v Pugh. That, contrary to my submission yesterday, I am bound to draw attention to the Court, involved a judicial appointment as Vicar-General and it was held that a joint appointment could be made to that judicial office, but, interestingly enough, that when one of the two judexes died, the other’s appointment thereupon came to an end, it being a joint appointment.
GUMMOW J: I mentioned it because ‑ and I do not know quite what comes out of this – the advice that Senator Patterson has that is set out at page 122 as to what is involved in her office, the advice from the AGS, in a way skirts around but does not really grapple with the question of whether they are joint or several.
MR BRERETON: Yes, exactly, your Honour. The advice proceeds on the basis really that it is a several appointment and that she can do everything in her own right without consultation and not acting jointly at all and, in our submission, that is just not right, and if two people are appointed to the one office, it must be joint or ‑ ‑ ‑
GUMMOW J: Well, it is said against you that there are two offices. I am not sure that is what the advice is saying, actually.
MR BRERETON: I think that then leads in to the next point, which is a question, I think, from your Honour Justice Hayne yesterday, why could the Governor‑General not appoint the whole ministry to administer all of the departments? The answer to that is that, as I put at one stage yesterday, responsible government has twin pillars of individual and collective responsibility, the collective responsibility of the government as a whole for its administration, but the individual responsibility of individual Ministers of the Crown, for those departments which those Ministers administer. That reflects the situation in Westminster and it reflects section 64 and 65 of our Constitution, which are said to recognise the concept of responsible government.
It is illustrated by what was said by Sir Owen Dixon and Mr Justice Evatt in Radio Corporation Pty Ltd v The Commonwealth (1938) 59 CLR 170 at 192, and at the top of that page their Honours say:
Under our system of government the Minister of State is not merely a member of the Executive Council upon whose advice the power to prohibit is exercisable; he is that member through whom in matters of customs.....the Executive Government acts.
And that is an illustration of how individual responsibility is coupled with collective responsibility. The idea was also referred to in Egan v Willis.
GUMMOW J: Can I just ask you this, is it a consequence of your submissions, Mr Brereton, that Senator Patterson is incapable of sitting under section 44?
MR BRERETON: It may well be, your Honour. I do not have to go that far, but it may well be that she and all the parliamentary secretaries have now become incapable of sitting.
GUMMOW J: Why would that be?
MR BRERETON: If in fact ‑ ‑ ‑
HAYNE J: What would be the office of profit which she holds?
GAUDRON J: On your argument, she would hold no office.
HAYNE J: There is no office.
GAUDRON J: She may have obtained profit, but she holds no office.
MR BRERETON: She holds no office under the Crown, I think that is right, with respect, your Honour.
GUMMOW J: So she may be liable to repay the profit.
MR BRERETON: Yes.
GUMMOW J: But that would be it, would it not?
MR BRERETON: Yes, your Honour. The office contemplated by section 64 of the Constitution is that of office administering the department of matches or boxes or whatever, and on appointment to that office, the officer thereby becomes one of the Queen’s Ministers of State. Your Honour the Chief Justice put to me yesterday the proposition that these appointees under section 64 were conducting the administration on behalf of the Governor‑General. If that means that they are, in effect, the agents of the Governor‑General in respect of those departments, that, with respect, fails to recognise the concept of responsible government inherent in sections 64 and 65 because they are answerable for their administration of that department, not directly to the Governor‑General, but, as your Honour also put to me yesterday, to the lower House of Parliament.
GLEESON CJ: When you say “answerable”, what do you mean by that? What are the consequences of failing to make a satisfactory answer? What is the sanction for losing the confidence of the popularly elected House?
MR BRERETON: The sanction is that they are required to resign or are removed ‑ ‑ ‑
GLEESON CJ: Now, how do you resign, and how are you removed?
MR BRERETON: You resign by tendering a resignation ‑ ‑ ‑
GLEESON CJ: To whom?
MR BRERETON: The Governor‑General, and you are removed, I suppose, by withdrawal of your commission.
GLEESON CJ: By whom?
MR BRERETON: By the Governor‑General. But it is, with the greatest respect, an oversimplification to say that they are administering just on behalf of the Governor‑General because that disregards the role of the lower House and the concept of the Minister being responsible to the lower House for his administration, and the Governor‑General acting ultimately upon the advice of those in whom the lower House has confidence.
GLEESON CJ: I thought the proposition that was put to you was slightly different, which was that in administering, they are exercising the power reposed in the Governor‑General by section 61.
MR BRERETON: I do not disagree with that proposition, with respect, your Honour. At one stage, I think it was your Honour Justice Hayne, although I might be mistaken – perhaps it was your Honour Justice Gummow – asked me, well, why is not the third subparagraph of section 64 enough to secure responsible government, that is, the requirement that the Minister be a member of the House? The answer to that ‑ ‑ ‑
GUMMOW J: It is then from time to time for the respective Houses by their own orders to regulate their affairs as to what follows from the circumstance that ministers are members.
MR BRERETON: The answer to the question is that, from the perspective of individual responsibility, that is, the division of segments of the government’s administration for which individuals are responsible, the first couple of sentences of section 64 are essential, because it is those sections which create the basis, or recognise the basis for individual responsibility by allowing the allotment of segments of responsibility to individuals amongst the departments.
Can I now return, I think, finally on this point, to an issue which was raised by your Honour Justice Hayne concerning the intent behind section 44(iv) coupled with sections 64 and 65. From Quick and Garran, amongst other sources, it appears that the intent was that the Queen’s Ministers of State under section 64 be the equivalent of the Ministers of the Crown in the Westminster system as distinct from the junior Ministers in the Westminster system.
Coupled with section 64(4), that means that the intent was that only the Ministers of the Crown, the ministerial heads of department, would be on the Crown payroll and that the government could not create junior Ministers and put them on the Crown payroll. The very good reason for that is that which your Honour Justice Hayne mentioned at one point yesterday: to prevent the executive dominating Parliament by putting large numbers on the Commonwealth payroll by creating large numbers of junior Ministers as well as the ministerial heads of department for that purpose.
That result is both desirable to prevent executive domination of Parliament and not inconvenient from an administrative point of view, not inconvenient because the last hundred years have shown us many ways in which ministerial assistance can be provided, either by members of Parliament being appointed, junior Ministers or assistant Ministers but not paid by the Crown, or by them being appointed to smaller departments and giving them roles of assisting Ministers of larger departments.
So, the result is not inconvenient and the result of avoiding executive domination of Parliament is desirable but, ultimately, the intent, in my submission, is quite clear. It is to recognise that only those who in Westminster were Ministers of the Crown and heads of the department would be Queen’s Ministers of the State and eligible to hold a seat in Parliament and be paid by the Crown under our system.
Your Honour Justice Gummow yesterday referred to the final report of the Constitutional Commission of 1988 and we have provided copies of the relevant parts of that to the Court this morning. The issue is dealt with at paragraph 5.73 on page 327 through to paragraph 5.75 and there is – apart from there being anything in there inconsistent with our submissions that, in effect, supports our submissions and suggests that constitutional amendment is required if junior Ministers are to be appointed and paid.
Can I turn very briefly to the question of unreasonableness? Your Honour Justice Hayne taxed me yesterday for not having advanced a comprehensive definition of the concept of “national interes”. At its lowest, the national interest in the context in which it appears in section 501(3) must mean something more than mere failure to pass the character test.
The second reading speech, in conjunction with the dichotomy between national interest and denial of natural justice shows that, at least, some such emergency which justifies depriving a human being of a right to be heard before he is taken into custody and his visa cancelled, is in play. It bespeaks a sense of urgency. On the facts, the Minister’s reasons which he was required to give to say why he acted identify nothing of that sort, so she simply could not have formed that opinion.
Finally, may I turn to the question of interlocutory relief which your Honour Justice Kirby raised yesterday. The relief which we seek in this Court could not all be given by the Federal Court. Because we rely on unreasonableness and because we rely on an irrelevant consideration, the decision, although it is judicially reviewable under the Migration Act by the Federal Court, is not reviewable on those grounds.
GUMMOW J: Query whether you really rely on unreasonableness for starters. You are relying on non‑satisfaction of a jurisdictional precondition.
MR BRERETON: Yes.
GUMMOW J: That is not what is being talked about in 476. What is the other point that makes this so that it cannot be done in the Federal Court?
MR BRERETON: Irrelevant consideration. With the greatest respect, I am on pretty safe ground there, your Honour – 476(3)(d). In any event, even if it could be done in the Federal Court, the point is that some of what I seek could be addressed by the Federal Court in its jurisdiction under section ‑ ‑ ‑
GUMMOW J: Just before you leave 476, are you not really saying 476(3)(b) to some extent?
MR BRERETON: Yes. I accept that some of what I am seeking could be done in the Federal Court, your Honour, and this is ‑ ‑ ‑
GUMMOW J: It assists in clarifying your argument really. You say (3)(b) applies, do you?
MR BRERETON: Yes, (3)(b) applies and (3)(c) applies in the sense that we say the Act does not extend to a non‑alien.
GUMMOW J: This is “rule or policy without regard to the merits”. Do you rely on that? I am just trying to find out, that is all.
MR BRERETON: I have put it as an irrelevant consideration, which is (3)(d), your Honour, and that excludes it from (1)(b). My point is this, that some of the grounds upon which I rely in this Court could be argued in the Federal Court under section 476, though not all of them. Were the application made in the Federal Court under section 476, then the Federal Court would have jurisdiction under section 482 to make an order under subsection (3):
staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or a part of that decision.
As this Court is seized of the whole matter in the accrued jurisdiction sense and in the Chapter III sense, the jurisdiction of the Federal Court in respect of those parts of the matter which would be within the jurisdiction of the Federal Court accrue to this Court.
KIRBY J: Given that Parliament has conferred them on a specific repository of power, namely, the Federal Court of Australia, how do we get it?
MR BRERETON: Because this Court, once seized of a matter, is seized of the jurisdiction to deal with the whole matter and not just a divisible part of the matter.
KIRBY J: I can understand that we are seized with whatever power the Constitution gives us but I do not see how we are seized with the power which the Migration Act gives to the Federal Court of Australia.
MR BRERETON: What I was going to come to is – to put, in fairness, the argument against me on this - that in Smith v Smith [No 3], I think it was, this Court considered that where power was expressly conferred on the Supreme Court of New South Wales to approve or release under the family provision Act, the Supreme Court of New South Wales was not the Family Court of Australia and so the power to approve such a release did not accrue to the Family Court of Australia.
McHUGH J: That case is far removed from this, is it not? Was it not a ground of the decision that it was a condition precedent to obtaining any relief that you have the consent of the Supreme Court of New South Wales and, therefore, although the Family Court had jurisdiction in respect of the matter, it had no jurisdiction in respect of that? Is that not the case?
MR BRERETON: I must say I did not understand that to be the ground of the decision, your Honour. The Court left open whether ‑ ‑ ‑
McHUGH J: But, in any event, it turns on the application of section 79 of the Judiciary Act, and that is not the question here, is it?
MR BRERETON: No, your Honour.
HAYNE J: Is not the hurdle you have to surmount 189?
MR BRERETON: Absolutely, your Honour, and what I am seeking in response to the Court’s, or Justice Kirby’s invitation yesterday to turn our minds to this question, the best we have been able to do is to suggest that notwithstanding section 189, section 482 would authorise an order staying the effect of the Minister’s decision and if it stayed the effect of the Minister’s decision then Mr Taylor would no longer be an unlawful non‑citizen for the purposes of section 189 and he would not be required by section 189 to be held in custody.
GUMMOW J: That is the question.
KIRBY J: Does the Minister have the power of the Minister’s own volition to release the prosecutor pending the determination of the case?
MR BRERETON: I do not think so. I think the answer to that is no, your Honour.
GUMMOW J: Any how, you are not making an application, are you? I mean, this is all very interesting, but are you or are you not making an application at this stage, to a Full Court?
GAUDRON J: I suppose you might look at section 33 of the Judiciary Act.
GUMMOW J: If you want to defer making up your mind, well, maybe you should do that.
MR BRERETON: I think the prudent thing to do is to ask if I might defer the question of making such an application. I will reflect on that for a few moments. The position is, obviously, that we had decided that there was no legal basis for such an application. Having been invited to reconsider that, we have done so and identified what seems to us to be at least an arguable basis for it. Might I think about that while our learned friends address the Court?
GUMMOW J: If you are going to make an application it is totally inappropriate to make it before a Bench of seven judges. I have never heard of the like before.
KIRBY J: But it would be appropriate to make it as quickly as possible, if you are making an application.
GLEESON CJ: Yes, thank you, Mr Brereton.
CALLINAN J: Mr Brereton, just before you sit down, there is one matter I want to ask you about.
MR BRERETON: Yes, your Honour.
CALLINAN J: The propositions I put to you before: is Nolan’s Case a problem in respect of them, a decision in Nolan’s Case? It seems that there was absolutely no reference to sections 8, 24 or 30 of the Constitution in argument or in the judgment, so far as I can see.
MR BRERETON: Nor to the effect of the Electoral Act on that class of person. In our submission, the point just was not addressed in Nolan’s
Case. There is nothing in the reasoning in Nolan’s Case which would preclude such a result in this case. On its facts, the decision in Nolan’s Case would be inconsistent with the result, but there is nothing in the reasoning or the ratio which precludes such a result in this case.
CALLINAN J: Or in any of the arguments, so far as I can see.
MR BRERETON: So far as I can see, your Honour. The only reference that we have been able to find is that passage in Justice Gaudron’s judgment to electors to which I referred the Court yesterday.
GUMMOW J: Could both do it?
MR BENNETT: The word is designed to exclude delegation under the sections in the part immediately preceding this following section 497.
KIRBY J: This is delegation to officers of the department?
MR BENNETT: Yes, your Honour. Other powers can be delegated, this one cannot.
GLEESON CJ: Now, that brings you to the fourth of Mr Brereton’s arguments is that right?
MR BENNETT: Yes, it does, your Honour.
GLEESON CJ: Perhaps we will adjourn now.
GAUDRON J: Mr Solicitor, the Chief Justice says I may ask you this question. Would you make the assumption that there is nothing upon which one could conclude that the prosecutor had become an alien prior to the end of 1972, that is that he was not an alien at the end of 1972. What legislative Act or what acts or events or concatenation of acts and events would convert him into an alien after 31 December 1972?
MR BENNETT: Yes, I had partially addressed that, but I will answer that precisely in the morning.
GAUDRON J: Yes, but it is the specifics I thought you had not dealt with.
GUMMOW J: It may be very important, I think.
GAUDRON J: You had not dealt with it by reference to – and let me tell you why I have selected 1972.
MR BENNETT: The Royal Style and Titles.
GAUDRON J: Not simply that. As best I understand it, the definition of “alien” – and I know it cannot control the meaning of alien as such, but that definition may have had the effect of naturalising people. In a Citizenship Act I would not discount the possibility that the presence of that definition operated to naturalise them, without conferring citizenship, and that nothing thereafter changed before the end of 1972.
MR BENNETT: I will answer that in the morning.
GAUDRON J: But what did change, I think, relative to the Royal Style and Titles Act was the oath of allegiance in 1973 of persons becoming naturalised.
MR BENNETT: Yes.
KIRBY J: Can I ask you, you indicated that you were going to say something very briefly on the liberty of this prosecutor. I know we have been dealing with great issues here, but behind those issues is a person who has served a sentence and who is paying for the pleasure of waiting whilst these issues are resolved. What were you going to say about that question? Traditionally, it has been a matter of importance to the law.
MR BENNETT: Yes. Only this, that no application was made. One would have thought the appropriate course would have been an application in the inherent jurisdiction under section 75(v) for a stay or other appropriate interlocutory order, pending the final decision.
KIRBY J: A stay is not a remedy here, because that merely stays something. You have got to actually order release, would you not.
MR BENNETT: Well, your Honour, probably not. We have not, of course – we have discussed it briefly, but not in detail. But, your Honour, if there were a stay of the cancellation, he would still have a visa. He would then not be a person who was in the category liable to migration detention and, no doubt, temporarily, during the period of the stay, and no doubt consequences would follow, but no such application ‑ ‑ ‑
KIRBY J: But that was you were going to say. You indicated you were going to say something, but you did not.
MR BENNETT: That was all I was going to say, your Honour.
KIRBY J: Yes, thank you.
GLEESON CJ: We will adjourn until 10.15 tomorrow morning.
AT 4.21 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 7 DECEMBER 2000
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