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] HCA 27; (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 1948 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 [1996] HCA 48; 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] HCA 44; (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] HCA 13; (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] HCA 9; (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.

CALLINAN J: Which is also consistent with your argument, completely consistent.

MR BRERETON: Indeed, your Honour. May it please the Court, I am sorry that I have taken so much longer than anticipated, but those are my submissions.

GLEESON CJ: Thank you, Mr Brereton. Yes, Mr Attorney.

MR WILLIAMS: Can I take your Honours to sections 64 and 65 of the Constitution. It is those sections alone, we say, that place limitations on the appointment to and holding office as a Minister of State. The structure of section 64 is that it provides for the establishment by the Governor-General of departments of State, for the appointment by the Governor-General of officers to administer those departments. I pass over the reference to the officers being members of the Federal Executive Council. They hold office during the pleasure of the Governor-General and, in consequence of all those, they hold office as Ministers of State, and it is for the Parliament or for the Governor-General to direct what offices they hold. An overriding condition is that they must be at least subject to a three-month exclusion, a senator or member of the House of Representatives.

KIRBY J: You say that it is for the Parliament to specify the conditions on which they will hold office, and that must undoubtedly be in part true, but there must be some concept in that notion "shall be the Queen's Ministers of State for the Commonwealth". It would have been possible for the section to have finished at "Executive Council", but instead they are given this, what is obviously designed to be a constitutional status of a particular kind.

MR WILLIAMS: Very much so. It is not the conditions of office that the Parliament determines, it is the office itself, "such offices as the Parliament prescribes". But in general terms, Parliament has not prescribed. In some legislation you get references to people like Treasurers and Attorneys-General, but that is not, in some sense, a prescription contemplated by section 65.

Now, in our submission, there is no warrant for reading into section 65 any limitation on the designation or the description of the offices that the Parliament may prescribe, or that the Governor-General may direct be held. They can and, in fact, are described otherwise than by reference to the administration of a particular department. If it were necessary to identify them by reference to a department, the second part of section 65 would have no purpose.

GAUDRON J: But in this case the instruments of appointment do refer to a particular department.

MR WILLIAMS: They do, yes.

GAUDRON J: The question is, having so referred to a particular department, should the relevant office be seen as the office of administering that department?

MR WILLIAMS: The question is actually answered, in our submission, by the appointment to administer the department, an unqualified one.

GAUDRON J: It is an office? You accept it is an office?

MR WILLIAMS: It is one of the 42 offices exercising constitutional power the legislature has prescribed as the number.

GAUDRON J: But for the purposes of section 64 you accept that it is "an office"?

MR WILLIAMS: Well, what section 64 does is to authorise the Governor-General to establish departments and then to appoint offices to administer them.

GAUDRON J: And they are to hold office?

MR WILLIAMS: They hold office.

GAUDRON J: Yes. Now do you accept that there is, at least, an office of Minister of State for the Commonwealth administering the Department of Immigration and Multicultural Affairs?

MR WILLIAMS: In the sense that the - - -

GAUDRON J: In a sense that 64 uses the word "hold office".

MR WILLIAMS: Well implicit in your Honour's question I think is the assumption that there is only one - - -

GAUDRON J: No, I said at least one. I was then going to ask you, do you say there are now two separate offices or do you say - there were going to be a series of questions, Mr Attorney, in fairness - but do you accept that there is at least an office, currently, of Queen's Minister of State for the Commonwealth administering the Department of Immigration and Multicultural Affairs?

MR WILLIAMS: Well, I would answer that by saying that there is more than one Minister of State appointed to administer the Department of Immigration and Multicultural Affairs.

GAUDRON J: I am worried about who is holding office under section 64? That is the purpose of my question.

MR WILLIAMS: There are 42 people holding office under section 64.

GAUDRON J: Holding 42 separate offices?

MR WILLIAMS: There are 42 separate officers and each of them has different responsibility.

GAUDRON J: Do each of the 42 hold a single office?

MR WILLIAMS: Each of them - - -

GAUDRON J: In which event one would assume you could not sack a Minister, but you would have to sack the lot. I do not want to be difficult about this, but for me the words "hold office" indicate that somewhere underlying something, there is at least one office, maybe, as you say, 42.

MR WILLIAMS: Well there are 42 officers appointed to administer the departments. Each of them has been given by the Governor-General an office in the terms of the commission.

GAUDRON J: Does each of them hold an office or do all of them hold the one office? Does each of them hold a separate office? I suppose there are several, on your submissions. Perhaps we will start this way. Do all of them occupy the one office?

MR WILLIAMS: They all occupy an office of Minister of State for the Commonwealth.

GAUDRON J: You do not say there is a single office known as the Queen's Ministers of State for the Commonwealth?

MR WILLIAMS: I am sorry, I do not understand that question.

GAUDRON J: I am just looking at the terms of section 64, Mr Attorney:

Such officers shall hold office -

You can forget the rest of it really from the point of view of my question. It is a fairly innocent question, although it does certainly have implications. Now, I want to know did they all hold - are the 42 of them, on your submission, the holders of a single office or, on your submission, do 42 of them each hold a separate office, or do you contend for some position in between?

MR WILLIAMS: They are all of the class Ministers of State of the Commonwealth but the responsibilities given to them are different because they are appointed to administer different departments.

GLEESON CJ: Could I ask you a question, Mr Attorney, about the relationship between 64 and 65? Under 65 it is for Parliament to determine the number of offices. Is that right?

MR WILLIAMS: Yes.

GLEESON CJ: And Ministers "hold such offices as the Parliament prescribes". There seems to be some kind of interaction or interrelationship between the power of the Governor-General to appoint officers to administer departments and the power of Parliament in 65. I am just not entirely clear how those two sections interact at the moment.

MR WILLIAMS: In a sense the power under section 65 carries with it the power of Parliament to determine what departments of State there would be and what officers would administer them.

GLEESON CJ: So it is Parliament who decides that there will be a treasurer.

MR WILLIAMS: No, in fact, it is not, except in minor ways like recognition of existing departments in legislation Parliament has not provided - the departments are effectively determined by the Governor-General and the practice is that it occurs after each election so that the departments change regularly. It is the Governor-General exercising the power under section 65 rather than the Parliament that does it.

GLEESON CJ: But if Parliament wanted to exercise the power, could Parliament determine that there had to be a department of insolvency?

MR WILLIAMS: Implicitly it could do that because of the power to appoint offices, that you could have a Minister for Insolvency, and to have a Minister for Insolvency you have to establish a department for an appointment at section 64.

GLEESON CJ: All that is puzzling me at the moment is this: I understand how that part of the power given to Parliament by section 65 to prescribe the maximum number of Ministers of State works. I am just at the moment not entirely sure I understand how the power given to Parliament to prescribe which offices shall be, as it were, available works.

MR WILLIAMS: To my knowledge it has never been done, but I assume that Parliament could determine that there will be 30 Ministers and then determine the offices 30 Ministers would hold. It is just not done.

GUMMOW J: You say section 65 is concerned with number in essence?

MR WILLIAMS: The two principal purposes of it are for Parliament to determine the number, which it has done from time to time, and - - -

GUMMOW J: The first paragraph, 64, has two relevant functions: firstly, the Governor-General appoints. That is back to front really. First, the Governor-General establishes a department and then he or she appoints, and the number is found at 365.

MR WILLIAMS: Yes.

GAUDRON J: If you look at the proviso to section 64, it does seem fairly clear that there is more than one office, that there are several offices and not a single office of the Queen's Ministers of State for the Commonwealth, does it not?

MR WILLIAMS: As I said before, there is a class of those Ministers, each of whom has different responsibilities conferred on them.

McHUGH J: But the office that the Parliamentary Secretary holds in this particular case, or in any case, must by definition be a different office from that held, for example, by the Minister, Mr Ruddock in this particular case.

MR WILLIAMS: For constitutional purposes, our submission is that they are not different. They have a different designation, but the authority conferred by the Governor-General on the Minister to administer the department and on the Parliamentary Secretary to administer the department is identical.

McHUGH J: But it is a long established common law principle which is recognised by this Court in Herscu's Case that a person holding office is under an obligation to perform all the duties of the office. We know both from the second reading speech and from the standing orders of the House that the duties which attach to the office held by Senator Patterson are different from the duties which must be carried out by Minister Ruddock.

MR WILLIAMS: The appointment of an officer to administer a department and the concurrent appointment of another officer to administer the department has to be reflected in those principles. In this case, in our submission, it simply is that either officer can administer the department, can take the same decisions and, as between them, they are able within the executive to make arrangements as to how they will work.

GLEESON CJ: Does it work in this way, that Parliament under section 65, in effect, says to the Governor-General, "You may have a team of 42"?

MR WILLIAMS: Yes.

GLEESON CJ: And the Governor-General, working with that equipment, exercises a power under section 64 to appoint members of that team to administer such departments as the Governor-General may establish.

MR WILLIAMS: Yes. What those officers agree, or determine between themselves, or have determined for them, is a matter between themselves.

McHUGH J: I am not sure that can be right as a matter of public law. I mean, after all to fail to carry out the duties of a public office was, at common law, an indictable offence, and probably still is an indictable offence. So, what troubles me is whether or not the word "administer" in the commission of Senator Patterson is not being used in some sense other than the constitutional sense. I mean, one can talk about the secretary administering the department but, in the constitutional sense, it seems to point to the person who has ultimate control over the department. The whole notion of a parliamentary secretary and the terms of the commission rather indicate that parliamentary secretary does not have that role, but answers or take directions from the Minister.

MR WILLIAMS: The constitutional authority of the two are identical. Although one has a title which suggests subordination, the constitutional authority is not in any way subordinate thereby.

McHUGH J: I have no problem with this idea of joint administration, nor do I have any problem with the labels, you call one parliamentary secretary and the other one the Minister, as long as they jointly administer the department. But what concerns me at the moment, Mr Attorney, is whether or not that is the true intention both of the Parliamentary Secretaries Act and these appointments.

MR WILLIAMS: The Parliamentary Secretaries Act, it is now the Ministers of State Act, just designates the number and distinguishes between titles that ministers will have. There will be ministers and there will be those designated - - -

McHUGH J: I appreciate that, but that in itself is suspicious in a sense, that you feel necessary to draw a distinction. It has been done for some purpose to distinguish one class of ministers from another, and one asks why? Of course, the answer is because of the presence of section 44 in the Constitution. That may not lead anywhere adversely to your proposition, but it does indicate that these "ministers" are somewhat difference from an ordinary Minister of State, if I could use that.

MR WILLIAMS: They are not different in any way in the authority that they can exercise, except by arrangements between themselves.

HAYNE J: But when you add that that identifies, perhaps, the problem illustrated by asking the question, "To whom would mandamus go? To whom would mandamus issue to compel performance of some relevant function or power under the Act?".

MR WILLIAMS: The prosecutor in this case seeks prerogative relief against the Parliamentary Secretary who took the decision.

HAYNE J: In the form of prohibition, but if there were no ministerial decision emerging from the department, if I can use those loose terms, who would application for mandamus be made against, one, according to the administrative arrangements that they may have chosen to form between them, to both, would mandamus go to directing both to perform the duty? How would it work?

MR WILLIAMS: Each of them has constitutional authority to perform - - -

GAUDRON J: To what?

MR WILLIAMS: - - - an act relevant to the mandamus.

GAUDRON J: Each of them, it seems to me, has constitutional authority to administer, relevantly, the Department of Immigration and Multicultural Affairs. That is the authority that they have got by virtue of 65.

MR WILLIAMS: Yes, and in that case mandamus could go to each of them or either of them.

GAUDRON J: Would it have to go to each of them is the question?

MR WILLIAMS: No, I am sorry. It could go to either of them because each has the constitutional authority to perform the relevant act.

GAUDRON J: Then, you say, and you have to come to this, do you not, that each has an office of Minister of State for the Commonwealth to administer the department - - -

GUMMOW J: I think you have to say that because you have to get yourself within the - not you, but one has to get these people within the concluding paragraph of section 44 and that depends upon whether they hold the office of any of the Queen's Ministers of State, because otherwise they are in the invidious position of holding an office of profit, a new species of office of profit.

MR WILLIAMS: I agree.

GAUDRON J: So each of them holds a separate office, though, or the same office now?

MR WILLIAMS: Each of them holds an office as Queen's Minister of State for the Commonwealth. Each of them has such responsibilities as the Governor-General confers on them in respect of the administration of a department.

GAUDRON J: He has conferred on each of them the responsibility of administering this particular department. As Justice McHugh points out, each is therefore under a constitutional duty to perform all the duties involved in administering the department.

GUMMOW J: Now, the reference to Herscu is [1991] HCA 40; 173 CLR 276, particularly at 281, which approved and set out a judgment of Justice McHugh in GJ Coles 7 NSWLR 503 and 504, which has been referred to on other occasions, I think, in this Court:

By accepting appointment to the office, he undertakes to perform all the duties associated with that office and, so long as he remains in office, he must perform all its duties -

That is the basic position, I think, for which one would start, and then there is the constitutional intervention here on top of that.

MR WILLIAMS: The constitutional dimension does change things somewhat, but even the common law rules have to take into account that there can be joint office holders and joint and several office holders.

GAUDRON J: Do you say they are joint office holders?

MR WILLIAMS: No. I am just referring to that in the common law context. But here we have a constitutional officer who was a Minister of State appointed by the Governor-General to administer a department of State. Now, they are subject to the responsibilities imposed on them under the Constitution.

GAUDRON J: That would seem to be that each of them has the duty to perform all the duties of office and it would seem, realistically, that they would have to do it jointly, not severally.

MR WILLIAMS: Take the case where a Minister failed to perform a duty. In this particular case there would be an opportunity for a citizen affected to bring mandamus proceedings and in this case - - -

GAUDRON J: Against both you say?

MR WILLIAMS: Yes.

GAUDRON J: And it would have to be against both, would it?

MR WILLIAMS: No. I did not say - I am sorry, I said against either.

GAUDRON J: Yes.

HAYNE J: But that may present the difficulty. Let it be assumed there is a public duty imposed by an Act on the Minister to decide a question and, for whatever reason, the Minister does not. Mandamus is brought. There are two persons who have the obligations to perform all the duties relevantly including the duty to make a decision. The person affected finds the decision is made by Minister one. On this analysis, cannot the person affected nevertheless say, "Well, Minister two has a duty to consider this decision also. I'll have mandamus against Minister two. I might do better with Minister two than I did with Minister one". Now, that sort of tension underlying it is what troubles me.

MR WILLIAMS: There is no duty on Minister two to exercise that power because there is already an exercise of the power.

GUMMOW J: But can I add to that there may be the further problem that Minister one is not to direct Minister two and if Minister one directed Minister two that might be a ground of review. You see what I mean.

HAYNE J: And Spenlow and Jorkins are starting to stalk the stage, that "I would love to help you but my partner, Mr Jawkins, will not allow me."

GAUDRON J: And you might also consider, Mr Attorney, the possibility of injunctions. Certainly under 75(v) this Court can issue an injunction against an officer of the Commonwealth. Let it be assumed that what was in issue was the issue of an injunction to prevent the deportation of someone. That would have to go to both Ministers, I should think, would it not, because on your argument either Minister could sign the deportation paper and, I suppose on your argument, either of them could decide as between themselves from day to day what duties they will perform.

MR WILLIAMS: If you are seeking to prevent the exercise of a power, then the proper way to do it would be to prevent anybody who is able to exercise the power from exercising it. The facts of life in government, of course, are slightly different to that.

GAUDRON J: So it looks very like, on that analysis, two people are occupying the one office of administering the Department of Immigration and Multicultural Affairs?

MR WILLIAMS: Yes. They are occupying Ministers of State offices and they are both authorised to administer the department.

McHUGH J: But the whole purpose of section 64 is to make the Minister administering the department responsible and answerable to Parliament and yet we know the Parliamentary Secretary is not answerable to Parliament in any relevant sense.

MR WILLIAMS: She is answerable to Parliament. She is a member of the Senate.

McHUGH J: But she cannot be asked questions, can she?

MR WILLIAMS: She could be. The only thing that is stopping her being asked questions at the moment are resolutions of the Senate and resolutions of the House of Representatives and they are resolutions that the Parliament itself could change. It is for the convenience of the parliamentary processes that the limitation on the level of the accountability of the Parliamentary Secretary is restricted.

McHUGH J: I follow the force of that, Mr Attorney, but when you look at the second reading speech, and one tries to get an understanding of what the status of the Parliamentary Secretary was, then I think you are entitled to take that into account in determining what is the status and that these parliamentary secretaries are, in effect - and I say it respectfully - an inferior type of Minister.

MR WILLIAMS: Constitutionally they are not inferior at all. They have exactly the same authority. What has happened in practice, over many years, is that within the executive arrangements are made for the sharing of responsibility and it means that the first person to go to, in that respect, is the person who is designated as having that particular responsibility. In the case of Ministers and what are referred to as junior Ministers, there is generally an allocation of responsibility within the portfolio. If you want to see an example of that, Foster's Case sets out in some detail the arrangements that were made between myself as Attorney-General and the Minister for Justice.

McHUGH J: But the Commission in this case states that the Senator is to hold the office of Parliamentary Secretary to the Minister, and that implies subordination, so that, in the end, one gets the impression from the appointment that the Minister's view must prevail in the end. They may have their arrangements, but in the end it is the Minister's view which prevails.

MR WILLIAMS: That implication is not really open, except from looking at, what you put to my learned friend, was merely a label. It is only a label in that sense. Accountability to the Parliament remains in full measure for both officers, but arrangements are made within the executive and arrangements are made within the Parliament for the convenience of the executive and the Parliament as to how responsibility is to be shared.

McHUGH J: But if there is a disagreement between the Minister and the Parliamentary Secretary about some matter, whose view is to prevail? Do you contend that neither view prevails? That seems a large proposition from what we know about the relationship between the two.

MR WILLIAMS: The responsibility to Parliament obviously rests with each individual Minister or parliamentary secretary. If they are offering conflicting opinions, that is a matter to be worked out either within the executive or within the Parliament as appropriate.

GAUDRON J: Who is going to administer the department in the meanwhile if they have conflicting opinions? That is the question. The constitutional duty is to administer the department.

MR WILLIAMS: If that becomes an issue before a court, I think we have the spectre then of judges walking into the Cabinet room, into the Parliament and into the party room.

GAUDRON J: No, you have the spectre of this Court determining from the constitutional provisions whether two people may occupy the one office other than jointly where they jointly have to do things.

MR WILLIAMS: Two people may have the same responsibilities and would be accountable at law.

GAUDRON J: No, we are talking about an office.

McHUGH J: They may, but the critical question at the moment to my mind is: where does the buck stop, to use President Truman's phrase? Who ultimately has the say? Is it the Minister or the Parliamentary Secretary or neither?

MR WILLIAMS: That is a matter for the executive to work out.

McHUGH J: It cannot be a matter for the executive because, to see whether there has been compliance with sections 64 and 65 of the Constitution, we must be able to look at some indicium of administration. You point to the appointment, but to my mind there is some ambiguity about that. I think you yourself tended to concede it has the appearance of subordination but you say that is not the reality of the matter. Do you say that neither has the ultimate say in the administration of the department? I know you keep saying they both have responsibilities to administer but that does not seem to me to answer the vital question. Who ultimately administers, given a division of opinion?

MR WILLIAMS: Each has a responsibility to administer the department. To administer means to manage. If they have concurrent responsibilities, it is for them to work out how it should work. If one takes action for which someone has a grievance, that can be taken to the courts. If another takes a decision which is objected to, that can be taken to the courts under appropriate process.

HAYNE J: Can we test the proposition that the Minister and the Parliamentary Secretary may divide responsibility, which, as I understand it, is the proposition just advanced, by asking whether section 64 would permit the Governor-General to appoint a person to administer such aspects of the department identified as are specified in the schedule to the appointment. Would that be a valid appointment under section 64 if the Governor-General said, "You, Minister X, are appointed to administer the following specified aspects of the work of the Department of Immigration", say?

MR WILLIAMS: Well, to my knowledge that has not happened so it is really a question for another day. It has not happened in this case.

HAYNE J: Yes, that was why I asked it, because it was hypothetical and intended perhaps to help shed a little light on it, perhaps it does not, Mr Attorney, I just do not know. Because if the Governor-General cannot do it, then the notion that the ministers could, to put it pejoratively, by private arrangement do it, seems less likely.

MR WILLIAMS: What they are doing is sharing responsibilities. They are not shedding a constitutional authority. I would not want to concede that the Governor-General cannot appoint someone to administer a part of a department, but I do not want to get into that issue. The way it is done at the moment, the Governor-General appoints the person to administer a department and then, by the Administrative Arrangements Order, an example of which is in application book page 191, the Governor-General determines, in effect, what are the responsibilities of the department. Now, what happens after that is that those responsible for administering the department then determine who will deal with what. But in doing that, they do not, in any way, release themselves from a constitutional authority.

McHUGH J: But could the Minister in this case - leaving aside the earlier history of this case - have said to Senator Patterson, "You are not to sign a 501 order, or make a decision in this case", and the senator went on and did it? Did she have authority to do it or does the Minister's view prevail? It may have implications in other fields. Supposing, in defiance of the Minister for Defence, the Parliamentary Secretary signs a contract for Defence for billions of dollars, whose view prevails?

MR WILLIAMS: If the person taking the decision or doing the act has the authority to do it, then it happens.

GAUDRON J: So Senator Patterson could declare war, could she, if she were - no, she is the Minister for Foreign Affairs, but if she were the Parliamentary Secretary to the Minister for the Army, or Defence, could she declare war?

MR WILLIAMS: In theory, a person appointed to administer a department has the authority to do whatever has to be done - - -

GAUDRON J: Yes, well, at the moment she could recognise any country she wants to, and no matter what the person designated Minister for Foreign Affairs says.

MR WILLIAMS: By having the authority to do what the Minister can do, in theory, yes, but there are so many safeguards within the executive to prevent that sort of thing happening.

McHUGH J: But that is the problem. One has the feeling that it has all been dressed up to present a constitutionally impeccable State affairs but the reality is that that is not the way it works.

MR WILLIAMS: The reality is a matter for the executive in the context of the government.

McHUGH J: Yes.

GLEESON CJ: The scheme of Chapter II seems to be that it divides people into Ministers of State and, to use the expression of section 67, "all other officers of the Executive Government". In other words, under section 67, the Governor-General appoints all "officers of the Executive Government" other than those that have been appointed under section 64. The ones who were appointed under section 64 are Ministers of the State and the ones who were appointed under section 67 are the rest. Now presumably, if the argument against you is correct, the consequence is that Senator Patterson falls under section 67 and not under section 64 for some reason but the Governor-General appoints all officers of the Executive Government.

GAUDRON J: Before you accede to that, if you accede to that proposition that Senator Patterson was appointed under section 67, she is out of Parliament.

GLEESON CJ: No, I said that is the argument against you, is it not?

GAUDRON J: Yes.

MR WILLIAMS: Yes. She has not been appointed under section 67. She has been appointed under section 64. Prior to March this year, the parliamentary secretaries were not appointed under section 67. They were appointed under the Parliamentary Secretaries Act by the Prime Minister.

GAUDRON J: Now, is there a statutory office of Parliamentary Secretary? I see there is independent of Minister to administer a department of State. There is no Act that creates such an office is there?

MR WILLIAMS: Only implicitly in the Minister of State Act which refers to the designation of Parliamentary Secretary. Our submission is really that where management or administration is shared between a number of persons there is no practical reason why the functions of the management or administration might not occur on the basis of arrangements between them and those arrangements between them could be based, for example, on seniority and that is, in fact, the practice within the executive.

GUMMOW J: But they are not public, are they?

MR WILLIAMS: Yes, they are. We have arranged to provide copies of the - - -

GUMMOW J: But they are not necessarily public. There is nothing that requires them, is there?

MR WILLIAMS: There are some fairly strong reasons why the public should be informed as to who is administering the departments of State.

GLEESON CJ: I do not know whether it operates in the Commonwealth, but certainly in some State jurisdictions there is actually an Act of Parliament talking about administrative arrangements so that if you want to know who is the Minister referred to in a particular piece of legislation you consult this Act and that will tell you who he or she is.

GUMMOW J: I understand what is set out at 191. That is the section 64 administrative arrangements. I understand that, but is there any executive instrument which specifies, as within this portfolio, what the division is. That is left to fluctuate, is it not?

MR WILLIAMS: There is no executive instrument in the main. The practice is simply that, either in consultation or by direction of the Prime Minister or as between the office holders within the portfolio, there is a division of responsibility determined and generally that is published, as is evident in the case of the Attorney-General and the Minister for Justice in Foster's Case.

GLEESON CJ: You were going to show us something a moment ago.

MR WILLIAMS: I was only going to refer to the administrative arrangements order itself. Yes I was. We have provided copies of the announcement of the third Hawke ministry and the current Howard ministry. In the third Hawke ministry in 1987 there was introduced for the first time what were referred to then as mega portfolios, although some of them were bigger than the others, but the concept of junior Minister, who was a Minister of State, was first introduced. It is referred to in the extract from Barlin, which is appended.

You will see that there are Ministers who have Cabinet rank and other Ministers, virtually in all portfolios, and we have appended an example of the appointments of those Ministers. The appointment of Mr Dawkins as the Minister of State for Employment, Education and Training and the appointment of Mr Holding as the Minister of State for Employment Services and Youth Affairs, but in each case, to administer the Department of Employment, Education and Training.

Now, what occurred then is very similar to what occurred this year, in respect of parliamentary secretaries, the same principles applied, and in each of the ministries since then, the 1990 Hawke ministry, the 1991 and 1993 Keating ministries and the 1996 and 1998 Howard ministries, the same process has been followed. Until this year the parliamentary secretaries, who are identified in the list, have been appointed under the Parliamentary Secretaries Act.

The difference from March this year is that the parliamentary secretaries have been appointed in the same way that the non-Cabinet Ministers have been appointed. Now, within the ministries you get a range of different set ups. In some cases you have one Cabinet Minister, one non-Cabinet Minister and one parliamentary secretary. In some cases you have two Cabinet Ministers, Minister of Foreign Affairs and the Minister of Trade share the one department. Now, that has been going on since 1987.

GAUDRON J: Why do we worry about Cabinet? We are concerned about administration of a department.

MR WILLIAMS: Cabinet does not really enter into the section 64 issue because it is not identified.

GAUDRON J: There does not even have to be a Cabinet, does there, under the Constitution, or does there?

MR WILLIAMS: I think probably not. I do not think it is mentioned but the Constitution is written against - - -

GAUDRON J: What there have to be, though, are officers who administer the departments of State.

MR WILLIAMS: Yes.

GAUDRON J: From my point of view, Mr Attorney, it ultimately comes down to the question whether you can have several persons holding the one office severally.

MR WILLIAMS: I have given my answer to that.

GLEESON CJ: Mr Attorney, I want to understand a little better than I do the front sheet of this document you handed to us. In relation to the Prime Minister's Department, in bold type there is an identification of the Prime Minister and Senator Ryan. Do you see that?

MR WILLIAMS: Yes.

GLEESON CJ: Then in brackets two other persons are named, and that scheme is followed all the way through.

MR WILLIAMS: They are the representatives of that Minister in the other House.

GLEESON CJ: I follow, thank you.

MR WILLIAMS: Under the arrangements that applied before the Ministers of State Amending Act this year, parliamentary secretaries did not have ministerial status but they were not, by resolutions of the House, entitled to answer questions seeking information which is under the standing orders, but otherwise they were entitled to exercise the responsibility of the Ministers. Since March there has been no change in the House. In fact the Speaker has particularly addressed that issue to the House. In the Senate the situation is somewhat similar. Prior to March this year parliamentary secretaries were not permitted to answer questions seeking information under the Senate standing orders, whether on notice or without notice, and they were also not entitled to represent departments before legislation committees considering estimates, what are known as estimates committees. We have provided copies of the resolutions of the House and resolutions of the Senate are available for the Court.

KIRBY J: It seems a little unreal to suggest that if the senator and assistant Minister are sitting in the chamber that if it really wanted it, that the House of Parliament could not render that person accountable to it. This was suggested to us in Egan v Willis and I think this Court firmly hit that theory on the head, that if the Minister is sitting in the chamber and the chamber wants it, the Minister has to account.

MR WILLIAMS: The practice is that Ministers account in their respective Houses.

KIRBY J: And that would include assistant Ministers if the chamber really wanted it.

MR WILLIAMS: Well, you are referring to non-Cabinet ministers as assistant ministers; they answer questions on notice, they represent departments before estimates committees, there is no limitation on their responsibility.

KIRBY J: What is the area of limitation then? What is the residual limitation that is left?

MR WILLIAMS: It is merely a practical one. Under an arrangement where, for example, Attorney-General's matters are referred to the Attorney-General, justice matters are referred to the Justice Minister. The Justice Minister exercises complete responsibility - - -

KIRBY J: Well, that is entirely internal to the executive, what I am thinking about is accountability to the Parliament.

MR WILLIAMS: In terms of accountability to the Parliament, it is published for the benefit of members of Parliament what the responsibilities of the ministers and the non-Cabinet ministers are. They are accountable for their actions in each House.

GUMMOW J: What is it that brings about the situation where you have a representative in the Senate, for example?

MR WILLIAMS: I do.

GUMMOW J: Is that mandated by any orders within each chamber or is it merely an executive concession, to put it perhaps pejoratively, that there is a representative of each minister in the other chamber?

MR WILLIAMS: I could not rule out that there is some recognition of that in the standing orders by the House of the Senate, but I am not aware of it. It is simply a practice - - -

GUMMOW J: It seems to be a practice that started a hundred years ago.

MR WILLIAMS: Well, I think, if you read some of the material provided by the prosecutor and by us in relation to what occurred in the United Kingdom - - -

GUMMOW J: No, I mean in Australia, in our Parliament, it seems to have started with Federation. It has always been so, has it not?

MR WILLIAMS: I have not made a particular study of it, but I would be surprised if it had not occurred right from the start.

HAYNE J: Can I just follow out something that emerges from this list of the second Howard ministry that you supplied us with, Mr Attorney. Look at the position of the Department of Foreign Affairs and Trade, where you have a separate Minister for Trade, and a separate Minister for Foreign Affairs. Is each of those ministers appointed to administer the Department of Foreign Affairs and Trade?

MR WILLIAMS: Yes.

HAYNE J: So you have two persons designated as ministers appointed to administer one department.

MR WILLIAMS: The only difference between that department and most of the others where there are two ministers in a department is that this is, I think, the only department where there are two ministers in Cabinet. But Cabinet is not particularly relevant to that issue.

HAYNE J: Yes.

GAUDRON J: So, if one wished to enjoin the officer - and I say "the" because that seems to be what is required by section 75(v) - administering the Department of Trade and Foreign Affairs, how does one do it under section 75(v)?

MR WILLIAMS: I think there are probably two ways of doing it. One would be to say that each of those having authority to administer the department should be injuncted to prevent - - -

GAUDRON J: In their own names.

MR WILLIAMS: In their own names, or, alternatively - - -

GAUDRON J: But, traditionally, we have just sent it to the Minister, have we not?

MR WILLIAMS: I am sorry?

GAUDRON J: What I am really putting to you, Mr Attorney, is in the context of 75(v) of the Constitution, there are very good reasons for construing section 64 on the basis that only one officer is to administer a department of State. Because 75(v) contemplates an officer, not the holders of an office.

MR WILLIAMS: This is not an uncommon problem. If you wanted to injunct the Australian Federal Police from doing something, there are many police officers with independent authority to do what you might want stopped.

GAUDRON J: But you would know who they were.

MR WILLIAMS: You would not normally seek an injunction against several hundred police officers.

HAYNE J: Well, to restrain execution of a warrant directed to any constable of police of the Australian Federal Police the injunction might be directed to the Commissioner and all other officers, may it not? You would have to cope with it by some such expedient, would you not?

MR WILLIAMS: Or else what I suspect most people do in practical terms is rely on the subordinate officers not acting in contempt of, or appearing to act in contempt of the Commissioner's injunction.

HAYNE J: Knowing breach.

MR WILLIAMS: That, I suspect, is what has occurred since 1987 in respect of any injunctions against Ministers. I have not made a particular study of it, but normally an injunction against the senior Minister is effective. The notion of having more than one Minister administering a department is not new and, as I have said, there is plenty of material, and it is also the practice in a number of other jurisdictions. I invite your Honours' attention to the United Kingdom practice before 1900 described in the book by Parris referred to in footnote 52 of our submissions.

We also have to take into account the practice of appointing - and it is a very longstanding practice - having Commonwealth departments administered by another officer, for example, when a Minister is ill, indisposed, overseas or on holidays. There are three cases referred to in the submissions there. A very early case, again, involving an Attorney-General, was R v Judd when Sir Littleton Groom, as a Minister of Munitions, issued some criminal process acting for and on behalf of the Attorney-General.

In the prosecutor's submissions - I take your Honours to the reply. It conveniently sets out a basis upon which the prosecutor seeks to challenge the validity of the appointment of the Parliamentary Secretary. In the second paragraph of the reply submissions it is said that:

Contrary to the Respondent's Submissions the Prosecutor does not assert that the word "administer" considered in isolation necessarily connotes exclusivity; rather the Prosecutor's contention is that the whole concept of officers administering such Departments of State as the Governor General and Counsel may establish authorises the appointment only of persons who in fact and substance are to have the overall supervision and direction of a Department.

Now, what we say to that is that what the prosecutor seeks to do is to look to practice and to facts in order to challenge a legal authority. It just cannot hold water. There is no basis for saying that because someone is authorised to do something and does not do it that their authority is thereby limited or nonexistent.

The other thread through the prosecutor's submissions related to the description of the nature of the administration. My learned friend referred to overall superintendence and direction and the overall supervision, a number of expressions used. The expression in the Constitution is simply "administer" and as we have said there is no reason why more than one person cannot administer, no reason why more than one person cannot manage and they can both be accountable, they can both have authority but some division of the responsibilities is a practical way of approaching the problem and does not involve any breach of duty or excess of authority.

It is said that it was not intended that the Parliamentary Secretary have the overall supervision and direction of the department. It may well have been intended that the arrangements between those appointed to administer one department would involve that one would have greater responsibilities than another, but that does not mean to say that their legal authority to do the relevant acts is in any way limited.

Now, I am minded to go back to her Honour Justice Gaudron's point about the office. We, for our part, submit there is no single office of a minister administering a department and that has been the view that has been taken by successive governments, as I have pointed out, for some time. If two ministers are appointed to administer the one department, each holds a separate office. Each is an officer appointed to administer a department and each holds the office designated by the Governor-General in the appointment and we saw that in the case of Mr Dawkins and Mr Holding, where they were given different titles, as is common in a situation where there is both a Cabinet Minister and non-Cabinet Minister appointed to one department.

Now, could I refer to something mentioned by your Honour Justice McHugh yesterday? Your Honour raised the question of the significance of the words in section 64 that the officers appointed to administer departments "shall be the Queen's Ministers of State". In our submission, those words do not imply a particular concept of responsibility and, in that sense, do not in any way restrict the concept of administration contemplated by section 64.

I would invite the Court's attention to the Convention Debates in Sydney in 1891 where a Mr Wrixon sought to introduce a reference to the ministers being appointed under what was to become section 64 being responsible ministers. There was a debate that involved Sir Samuel Griffith and Sir Alfred Deakin and the particular passage to which I draw your attention is the proposed amendment at page 767 about point 8 in the first column. The response of Sir Samuel Griffith at the bottom of that column and over to the next, and then the contribution by Sir Alfred Deakin at page 769, and the outcome, which appears at page 776, was that the proposed amendment was withdrawn and a new amendment was agreed to. Now, Sir Samuel Griffith, in particular, drew attention to the prospective loss of office as being a key element of the notion of responsibility as he saw it.

Now, your Honour Justice Hayne and, I think, your Honour Justice Gummow raised with my learned friend yesterday the purpose served by section 44. I think attention was drawn to a passage in Sykes v Cleary where the mischief to which section 44(iv), in particular, is directed is being the elimination or reduction of Crown or executive influence over the House.

Our response to that is to say that this is achieved by the Parliament, in the case of Ministers of State, by its power to limit the number of ministers who can be appointed. There is also a further leg to this in that under section 66 it is the Parliament which, in effect, has power over the salaries to be paid to ministers.

HAYNE J: Mr Attorney, can I just see if I understand where these submissions would leave the position. As I understand it, important to your submission is the proposition that each person appointed has responsibility for the office to which he or she is appointed, notably political responsibility in whatever fashion either of the Houses may or does chose to exact it.

MR WILLIAMS: And within the executive.

HAYNE J: Yes. The second aspect is that the appointment of two, leave aside to one office, several offices, but the appointment of two, may be thought to present difficulties of two kinds: first, difficulties as between them and, secondly, difficulties as between them or either of them and a third party. As to the former kind of difficulty, I understand your answer to be that that is a problem that is resolved politically; that the respective division of what they do is a political matter resolved by agreement between them and not in any other way.

MR WILLIAMS: Can I just interpolate there. The difficulties between them may arise either within the executive or within the Parliament and each has separate processes for dealing with it, but it is a matter for them to sort out within that context.

HAYNE J: And so far as difficulties in dealings with third parties are concerned, I would understand there to be perhaps three, perhaps only three, kinds of issue that might arise: the question about who exercised a power; that is a question of fact that can be resolved in the ordinary way; the question about who should exercise a power, I understand your answer to be, both may, one must, and who does is to be resolved at the political level. The last area of these three, at least, which might arise, is the possibility of difficulty because of some conflicting exercise of power, authority, discretion, whatever, I understand that you say is resolved at the level of identifying first, exercise of the power, exercise by one exhausting the power. But is that last limb the way in which you put it or is there some variant or further aspect of it that ought to be taken note of?

MR WILLIAMS: I was responding to a particular situation that was put to me when I made that answer.

HAYNE J: I understand that.

MR WILLIAMS: I think there could be a range of responses dependent upon what the powers were and how they were exercised. You might have a legal answer to it, you might have a political response through action within the executive.

HAYNE J: But this last area for debate, at least to my mind at the moment, is necessarily provoked in this area by consideration of 75(v) and inevitably it is the kind of question that demands a curial answer in some circumstances. In addressing the problem, we need to be conscious of 75(v) and that it is insufficient to deal with this aspect of the matter by saying those are political matters that can be resolved by political means. They are not. At least in one aspect, they are legal matters.

MR WILLIAMS: Again, there is a range of situations in which this situation might arise and it may be that if you are looking at a third party citizen who has had two decisions of a conflicting nature from two persons appointed to administer the same department, you might have a legal response to it, which would be to say, "Well, in law, which prevails?". There may be a simple legal answer to that, like it is the most recent one. There may be an executive response where the two officers resolve it between themselves or there is an intervention at a higher level within the executive. But there must always be an answer.

GAUDRON J: Who is the higher level? By saying the first decision in point of time should prevail - - -

MR WILLIAMS: No, I did not say that.

GAUDRON J: You said the second?

MR WILLIAMS: No, I am saying it may be that a legal response to two different decisions would result in the last one prevailing. It may be that the first decision would render the possibility of a subsequent decision impossible. It depends on the factual situation.

GAUDRON J: Unless you can ground it in something like estoppel, I do not see any legal basis on which you can say one prevails over another.

HAYNE J: A Minister signs a deportation order; the other Minister declines to. Which operates?

MR WILLIAMS: It depends what is done after each order. If a police officer arrests somebody and another police officer releases them, you have the same sort of problem. It is a practical problem in most respects to which there may need to be a legal response, and in many situations will not need to be a legal response. Operation at Minister of State level presents the same sort of practical problems that operation at any other level presents. In this context, Mr Solicitor draws my attention to paragraph 33(3) of the Acts Interpretation Act. Unless there are any further questions.

GLEESON CJ: Thank you, Mr Attorney. Yes, Mr Solicitor.

MR BENNETT': If the Court pleases. Your Honours, we adopt the submissions of the Attorney intervening in relation to the section 64 question. I propose to address in this order: the aliens question, the unreasonable question and the irrelevant consideration question. At the very end I will just say a few words about interlocutory orders.

In relation to the aliens power, the starting point is this, that one must distinguish between two things in relation to any power. The old phrase was - well, there are various phrases, there is concept and conception, denotation and connotation.

Can I just demonstrate the problem with my learned friend's submissions this way. I am asking your Honours to look first at the bankruptcy power. Bankruptcy has a meaning. One could not pass a statute defining bankruptcy as having an excess of assets over liabilities of over one million dollars, as a matter of definition. That on its own certainly could not constitute, on any view of it, bankruptcy. An Act which did that and tried thereby to bring within the Commonwealth power a subject matter not within Commonwealth power, would clearly be invalid.

In the same way, if, under the aliens power, one said, "All people who drive on public roads are deemed to be aliens", that would not entitle the Commonwealth under the aliens power to control driving on public roads. So one cannot obviously define something into or out of constitutional power.

On the other hand, when one has a constitutional power which involves, unlike the corporations power under the present law, power to create the particular status or activity or state of affairs, then legislation can deal with it. Legislation can say, "In certain circumstances, a person becomes a bankrupt", and then that person is subject to the bankruptcy power, as is, of course, the act of making the person a bankrupt. The same with the naturalisation and aliens power. It is even clearer with the naturalisation and aliens power because that expressly refers in one of its two limbs, to the process, to the process of conversion of someone from one status to the other.

In my respectful submission, it is quite clear, both on authority and substantially by concession as well in this case, that there is power to make someone into an alien, as there is power to make a person into a non-alien.

GAUDRON J: I do not understand that to have been conceded and if it was so conceded, it is not a concession I would act on.

MR BENNETT: Your Honour, in that case I will address that then.

GAUDRON J: You would have to limit it precisely as to - in my view - as to - well, as I presently think of it, you would have to limit it to the nature of the circumstances which might justify that course and, having thought about it, I wonder if it does not necessarily - if the turning of a non-alien into an alien can be done by anything other than in the exercise of judicial power by specified criteria which relate to the status of alien.

MR BENNETT: I will address both issues of your Honour's question. On the second issue could I just say this, that is not an issue which is raised by the order nisi, the question of judicial power in relation to process.

GAUDRON J: No, but we have got to write a judgment about it.

MR BENNETT: Your Honours, with respect, have to write a judgment on what is before your Honours. In my submission, it is if there were, and we do not for a moment accept there is, some such restriction of the type your Honour refers to, that would simply not be before your Honours in this case. It has not been raised by this order nisi and it just does not arise. It is something, of course, on which we would wish to have prepared very detailed submissions if it were raised, but may I just say this about it, very briefly, that it is not something which, as at 1900, was regarded as being the subject of judicial power.

It is not something which historically has been treated as a subject of judicial power and the mere fact that it is something important and something which affects a person in an important way is not alone a sufficient criterion to bring it within the area of what is required to be judicial power.

GAUDRON J: And is it taking away of rights?

MR BENNETT: Many things are the taking away of rights, which are not so much of judicial power. There are many decisions made by administrators every day which impose rights or take away rights. There may or may not be a means of judicial challenge; normally there is one under section 75(v) and it is hard to imagine a case where there would not be, unless perhaps it was done legislatively.

GAUDRON J: But you say it was done legislatively here and therefore there is no challenge.

MR BENNETT: Yes, your Honour, it was ultimately. And to some extent, of course, your Honour's question involves the whole question which was in part left open in Kable about bills of attainder.

GAUDRON J: Yes, exactly.

MR BENNETT: That is one of the reasons I said that if that issue were before the Court, it is something we would wish to have the opportunity of preparing careful submissions on, and not answering, as it were, on the run.

KIRBY J: Just leaving aside that question for the moment, it surely would not be competent to the Parliament to determine that any person would be an alien and has become by its legislation an alien. For example, to say, all Aboriginal Australians will be treated as aliens; surely that would not - I mean, there is a kernel of an idea in the word that cannot be intruded upon by legislation.

MR BENNETT: I have to give your Honour a number of answers to that question; it is one which is not totally straightforward. The first proposition is this, that there is authority in this Court in Pochi and in Nolan to the effect that where certain conditions are present the Parliament may convert someone into an alien.

GAUDRON J: I do not think they said that. They said that they may treat as an alien - - -

MR BENNETT: Treat as an alien, yes.

GAUDRON J: - - -and it is not clear, at least in Pochi, or perhaps it is, I am sorry. Is it clear that in Pochi they were talking about somebody who had at some stage not been an alien?

MR BENNETT: In Pochi it was someone who at all times had been an alien.

GAUDRON J: And Nolan, there was no decision as to whether he, except in terms of what I said, I think, had at any stage been a non-alien.

MR BENNETT: Your Honour, except that it was clear that he had been from the facts that we know. Would your Honour permit me before answering your Honour's question to complete answering Justice Kirby's question, because I will return to it and I will take your Honours to Pochi and Nolan and the cases we have referred to?

GAUDRON J: Yes.

MR BENNETT: But the second aspect is this, your Honour. There are, of course, limitations on what can be done and there are a number of them. The first is that one could not convert people into aliens to such an extent that it ceased to be a meaningful exercise in relation to the word "alien". If one said, for example, "all Australians are hereby declared to be aliens" the phrase would lose meaning and would lose constitutional meaning.

So there certainly is a point at which the characteristic ceases to be a characteristic in the same way as a statute which said anyone who has an excess of assets over liabilities of over $1 million is declared to be a bankrupt would not be within the bankruptcy power because one would simply be going too far.

The second limitation is that there may be - I do not concede this - but there may be, and one does not have to determine it in this case, a "blue-eyed baby's exception" of the type referred to in a recent decision in England, the case involving the British Indian Ocean territories, which your Honours are no doubt familiar with.

GUMMOW J: Well, we are, but I for myself am not very happy with it.

MR BENNETT: No, and that is why I carefully - and one day, no doubt, I will be arguing that the case should not be followed here. But, for the purpose at the moment of testing how far this power goes or what exceptions there are, I simply say there may be, if there is a blue-eyed baby principle behind the Constitution which ultimately prevails, that may be a limitation. Your Honour's example must come close to that.

KIRBY J: Why does not the example of hundreds of thousands, if it be that, certainly many thousands, of people who have lived their lives peacefully, honourably and lawfully in this country - take the present prosecutor's mother, living quietly in a country town, suddenly she finds she is an alien. If she leaves and goes overseas, she can be denied re-entry to this country, though in every way she has become associated with this country and its people. That gets close, in my view, to blue-eyed babies; I have to tell you.

GUMMOW J: Well, she has not become associated in every way because she has not taken out citizenship.

MR BENNETT: That is one aspect of the answer. The other aspect is - - -

KIRBY J: Yes, but citizenship is a creature of statute. I have to keep reminding this debate about that. We are talking here about something which Parliament has just created; it is not something which is in the Constitution.

MR BENNETT: Unless one has a blue-eyed baby principle, the answer is that is a matter for the Parliament, and it is a matter for the Parliament to determine which people, having some relevant connection with the concept of alien - to put it neutrally - are to be aliens.

GAUDRON J: Well, that, I think, takes - it depends on a view of constitutional interpretation, which I should have thought was not acceptable. If you turn to 51, it has been pointed out many times there are different categories of subjects of power. The people of any race, to take another one, is one I would have thought in this category.

MR BENNETT: That is a slightly different example, your Honour, because - - -

GAUDRON J: It is talking about people and so are aliens talking about people.

MR BENNETT: Yes.

GAUDRON J: It seems to me that there are and it has always been the view that you have first got to find you are people of a race or you are alien, or - - -

MR BENNETT: Precisely, your Honour, and the example - - -

GAUDRON J: But it is not simply a question of a blue-eyed baby exception, is it?

MR BENNETT: Your Honour, it depends whether one is talking, I suppose, about the expulsion or about the declaration of status. The declaration of status on its own may seem far more innocent than the expulsion context in which Justice Kirby puts to me in his question. When one is talking about a blue-eyed baby principle, one has to know which one is talking about. But so far as the concept of alien - - -

GAUDRON J: That is a meaningless notion, really, is it not, the blue-eyed principle? In this context, one has to ask this, "What is meant by the word "alien" in the Constitution?". That has to be the start.

MR BENNETT: Yes, your Honour.

GAUDRON J: You do not start by saying, which your argument seems to do, alien is anybody that the Parliament defines as an alien, subject to limitations about making the power meaningless or blue-eyed baby exceptions. That is to turn the approach to constitutional interpretation on its head.

KIRBY J: The only thing I would say is that many of the people who have been made aliens probably did begin life as blue-eyed babies. I mean, that is the reality taken this group.

MR BENNETT: Yes. I used the phrase "blue-eyed baby", of course, as a convenient phrase. It is more accurate to refer to it as the peace, order and good government principle, and whether that limits or does not limit - - -

KIRBY J: No, that is a separate issue. That is a formula in the Constitution. The blue-eyed baby is something outside and above and at the foundation of the Constitution.

MR BENNETT: Your Honour, that is a principle which may have to be debated one day. It does not, in my respectful submission, arise in this case.

McHUGH J: What do you say about - when I put to Mr Brereton about what Sir William Holdsworth said that it was the duty of allegiance owed by the subject to the Crown which differentiated the subject from the alien.

MR BENNETT: That was the original view, your Honour.

McHUGH J: Why is that not the - - -

MR BENNETT: The word "citizen" was originally the word used in relation to republics from the French Revolution. It is interesting, if one looks at some of the American cases about the status of people who had been born to English parents in America just before or just after the revolution, and there were cases in England about their rights to inherit feudal property and so on. There were treaties on the subject between Britain and America and those treaties talked about citizens of the United States and subjects of England, or actually of the King.

But the distinction was not one of meaning as much as the one word was appropriate in a monarchy and the one word was appropriate in a republic. Today that usage has been blurred of course, because we have started to use the word "citizen" in statutes and - - -

McHUGH J: I know you do, but it is not a term that appears anywhere in the Constitution, is it, apart from sections 44 and...... Sir William Holdsworth's definition might work hardship on a group of people today, but it is a workable test which has powerful historic antecedents and is very easy to apply.

MR BENNETT: Your Honour, we would not dispute the test ultimately. The point is one must not confuse the issues of what is an alien within the meaning of the power, or what is the power over aliens, on the one hand with the ability of the Parliament to make people into or not into aliens. If one takes the medieval example, the classic of course is banishment where a person was said to lose his country, which presumably meant he lost his allegiance.

McHUGH J: But so did the outlawry.

MR BENNETT: Outlawry and attainder. It did not matter very much with attainder because one did not live long enough for it to be meaningful.

McHUGH J: Well except there can be a free pardon, I suppose.

MR BENNETT: Yes, and then there was a question as to what the effect of it was. All that shows is that the concept of your nationality, citizenship, allegiance, subject, nature, your feudal status, being taken away from you, is not a concept unknown to the common law.

GAUDRON J: I do not think that is the question that is presented in this case, Mr Solicitor. I think the question that is presented is not what Parliament has defined or not defined as an alien because it has not purported to do that. The question is whether an unlawful non-citizen - I think that is the expression, is it - is an alien for constitutional purposes, because the Parliament simply has not addressed who may take it away.

CALLINAN J: Is he a non-citizen - he is not unlawful, is he; is he not deemed to have an "absorbed person" visa under section 34?

MR BENNETT: Yet his visa has been cancelled, your Honour.

CALLINAN J: Yes, but subject - - -

MR BENNETT: Subject to the cancellation.

GAUDRON J: But does one not have to go back before that question then. Perhaps we have not gone through the Act with sufficient thoroughness. You do not say he was an alien while he was in gaol serving his sentence or do you?

MR BENNETT: Yes.

GAUDRON J: He was always an alien, you say?

MR BENNETT: He was an alien from 1987, your Honour.

CALLINAN J: You say he was an alien because he was a non-citizen and he is a non-citizen by definition under the Naturalisation Act.

MR BENNETT: Yes, your Honour.

CALLINAN J: And that that term, "non-citizen", is imported into the Migration Act. Is that what you are saying?

MR BENNETT: Yes, your Honour.

CALLINAN J: He is a non-citizen who is deemed to have an absorbed person visa under section 34 of the Migration Act. Is that so?

MR BENNETT: As well as the other type of visa, the transitional permanent visa. He has both visas.

CALLINAN J: What is the other one?

MR BENNETT: A transitional permanent visa.

CALLINAN J: Right. Firstly, Mr Solicitor, just before I forget about it, has anybody found that Assistant Migrant legislation that I asked for yesterday.

MR BENNETT: We have made some inquiries, your Honour. We have some materials I can give your Honour during the afternoon. It was not done legislatively. It was done administratively.

McHUGH J: Can I ask you this as well? You might have a look and find out for me over lunch. Would this applicant ever have been given a visa or had to apply for one or is it all a matter of deeming?

MR BENNETT: It is all deeming, your Honour. The nearest thing to it is the stamp on his father's passport which was the entry permit granted when his father came to Australia and he was on that passport.

KIRBY J: So he was not an alien for many years and suddenly became an alien.

MR BENNETT: Yes, your Honour.

GAUDRON J: He became an alien on 1 January 1987 but not by any law that said he was an alien but by an evolutionary process which took place on 1 January 1987 by which non-citizens became equated with aliens for the purposes of 51(xix). Is that correct?

MR BENNETT: No, your Honour, for a number of reasons I would have to - there are two or three reasons why that would - - -

GUMMOW J: It seems to me he became an alien probably, if we have to fix a date, on 3 March 1986 when the Australia Acts commenced. That was the culmination of the constitutional situation.

MR BENNETT: Yes.

GUMMOW J: What the legislation then does is another matter but he then becomes an object of the aliens power.

MR BENNETT: Yes, that may well be correct.

GUMMOW J: That follows from Sue v Hill. I kept trying to dissuade Mr Brereton what he says - - -

KIRBY J: Do you accept that? Do you accept that proposition? Do you embrace that proposition? Are you referring to that foreign Act, the English Act, the British Act?

MR BENNETT: No, I think it is an Australian one, your Honour.

GUMMOW J: No, I am referring to the Acts construed in Sue v Hill.

KIRBY J: What power did the Parliament have to raise its powers over the Constitution?

MR BENNETT: Well, your Honour, there were eight Acts - - -

KIRBY J: That does not matter. They cannot rise above the Constitution. They are Acts of Australian Parliaments.

MR BENNETT: I am content to argue the validity of the Australia Act if I need to do so. The inhibitions on it are: (a) whether it arises in this case; (b) the preparation for putting those arguments - - -

KIRBY J: I am not asking you to do so, and your written submissions do not do so, but I am just anxious to know whether you rest on that argument.

GUMMOW J: This man was not an alien. The relevant Australia Act is an Act of the Parliament, the polity under which he had this allegiance.

MR BENNETT: Certainly we would say it happened under the Australia Act, but I do not need to support that in this case because, on any view of it, it happened on 1 January 1987.

GAUDRON J: I am sorry, Mr Solicitor, but on my analysis thus far it may be very important to know when you say he became an alien. I could understand if you said he was always an alien.

MR BENNETT: No, I do not say he was always an alien.

GAUDRON J: Well, from my point I want to know when you say, and by what process he became an alien.

KIRBY J: And would that not have to be done very clearly by the Parliament, being a very important alteration in his status and his rights? That would have to be said in terms, "Before this, you were not an alien, indeed, you were and still are, an elector of the Commonwealth and a member of the polity of the people of the Commonwealth, but now we say you are an alien".

MR BENNETT: Your Honour, it happened to the Hanoverians in - - -

KIRBY J: It might have happened to them. We are talking about our Constitution. We are not talking about the 17th century.

MR BENNETT: Well, your Honour, it is the 19th. The Stepney Election Petition, which certainly is a case which would have been known to the framers of the Constitution, was an example of a situation where a whole group of people in England suddenly ceased to be subjects of the - - -

KIRBY J: People in this country shelter under our Constitution. They are not just to be pushed around.

MR BENNETT: No, your Honour, but the Constitution does not give any express right in relation to remaining in Australia or in relation to not being subject to the aliens power to any person.

McHUGH J: I suppose, Mr Solicitor, you can say that Sue v Hill shows that there may have been a number of members of Parliament who at some date went from being non-adherence to a foreign power to adherence to a foreign power and were disqualified under section 44 of the Constitution.

MR BENNETT: That may well be so, your Honour, and it probably is so.

GLEESON CJ: Mr Solicitor, is that a convenient time?

MR BENNETT: Yes, your Honour.

GLEESON CJ: We will adjourn until 2 pm.

MR BENNETT: May I say this before your Honours adjourn, in fairness to other people, there is a significant chance, in view of the way the argument is going that I will not finish this afternoon.

GLEESON CJ: We will adjourn until 2 pm.

AT 1.03 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: Your Honours, I need to start by addressing a number of matters raised with me this morning. I was asked about the Assisted Migration Scheme. We have not been able to get documentation which gives any great detail of it together in the time available. That can be done, if your Honours wish. So far as we can see at the moment, we understand that it was done entirely administratively. There would have been, no doubt, a line item in budgets about it, but other than that, it seems to have been administered as an administrative matter and not under any legislative program.

KIRBY J: Well you could start with the first fleet, I suppose.

MR BENNETT: Well, your Honour, that was a benign form of trans-shipment, but we can give your Honours that material if your Honours wish it, but as I say, it is not unfortunately available to day. Secondly, there were two questions I was asked before lunch as to which the answers need qualification; in one case, severe qualification. I answered your Honour Justice Gaudron when your Honour asked me the question, was the applicant always an alien or did he ever cease to be an alien? Our argument is put in the alternative in two halves and this is made clear in the submissions. As to one half, the primary submission, we say he was always an alien; as to the other half we say, if he was not, we do not have to put certain dates as to when he ceased to be an alien, and it is in that context that my answer to your Honour should be understood, and I will come back to those dates, of course, when I get to it.

KIRBY J: That is a complete and radical re-expression of your argument.

MR BENNETT: No, your Honour.

KIRBY J: You told me, specifically, that he became an alien, that he was not when he first arrived and that he became an alien. Now the Commonwealth is now retreating from that proposition, is it?

MR BENNETT: It was an answer I gave too quickly. Our argument has always been in two halves. Half of it is to submit that he was always an alien. The other half is to submit that, if he was not, he became one, and my mind was focused on the second argument which, of course, makes the assumption against us and, in that respect, I answered the question too quickly, for which I apologise.

CALLINAN J: Why was he always an alien?

MR BENNETT: That, your Honour, requires 15 minutes which I will come to in a moment and I will answer that question when I have just finished dealing with these two matters. The other question - your Honour Justice McHugh asked me about the Holdsworth view. We accept that, but with some qualifications as to the meaning of the word in the modern context and we would say it means what, since at least 1948, has been Australian citizenship. That is the modern application of the Holdsworth principle, but subject to that I adhere to the answer I gave your Honour.

GAUDRON J: Could I clarify that? Does that mean that Australian citizenship is synonymous with "a subject of the Queen in right of Australia" since 1948 or do you say "a subject" is irrelevant now?

MR BENNETT: It is irrelevant. That phrase, your Honour, is synonymous with Australian citizens since 1948.

KIRBY J: How can it be irrelevant if it appears in section 117 of the Constitution, which has not been altered by the electors?

MR BENNETT: I am sorry, your Honour. What is irrelevant is the distinction. There is no distinction since 1948 between the concept of citizenship and the concept of subject of the Queen in right of Australia. The word "citizenship" has been, since 1948 if one likes, corrupted from its original meaning of citizen of a republic and taken to extend to a subject in a monarchy. So since 1948 those concepts are the same. That is not the same, of course, as subject of the Queen which, as we will see, has had a different meaning and been the subject of different definitions.

KIRBY J: So that really amounts to a rejection of Holdsworth's definition, does it not, because you have shifted the focus from allegiance to the monarch to citizenship of the country?

MR BENNETT: No, your Honour, because that citizenship is synonymous with allegiance to the monarch in right of Australia. As long as one adds those words, there is no problem. The problem arises at the time when the Crown was seen, for various purposes, as indivisible.

KIRBY J: I find this very puzzling because the Citizenship Act was enacted in 1948. The Queen's Royal Style and Title was not changed until 1953, I think it was, and, therefore, until that time, there was no separate, or, at least arguably, there was no separate Australian monarch.

MR BENNETT: Well, your Honour, even at the beginning of this century and, for that matter, at the end of the last century, citizens of colonies, or people who owed allegiance as British subjects in colonies, were not necessarily seen as having the same nationality or citizenship for all purposes. There were cases in England dealing with that. The issue is discussed in Dr Pryles' book, Australian Citizenship Law, at pages 35 and following. There were, in the early part of this century, a number of conventions which discussed the problem, and the problem of the extent to which people in one Commonwealth country were seen as citizens by others and so on.

It arose in Australia in relation to a man called King O'Malley, who attained high political office in Australia, who alleged during his life, and after his death it has been suggested that it was not true, that his mother travelled from the United States to Canada for his birth and then travelled back. If that allegation had not been made and accepted, he would not have been eligible to be a member of Parliament, both in South Australia before Federation and in the Commonwealth after Federation.

KIRBY J: Sue v Hill, he would not be eligible now - - -

MR BENNETT: That would depend whether he had renounced his former citizenship. Sue v Hill is a slightly different context because that concerned owing allegiance to a foreign power which, of course, a person, as we know from that case, who is a dual national can do. So there is nothing inconsistent with citizenship or nationality in Sue v Hill. In any event, there were a number of conventions on the subject around the Commonwealth, ultimately the Statute of Westminster was passed and then the legislation in England and in Australia in the 1940s.

It is important to bear in mind that the Australian Citizenship Act of 1948 did a number of things. It had two sections: Part II was called the Status of British Subjects, and Part III was Australian Citizenship, and it dealt with them separately. As your Honour Justice Kirby pointed out to my learned friend yesterday, all passports issued to people who were natural born Australians for many years said "a British subject and Australian citizen", and drew a distinction between the two concepts, a distinction which might well have been lost on a Frenchman or a citizen of the United States.

KIRBY J: When was the first Citizenship Act enacted for Australia?

MR BRERETON: I think it was the 1948 Act, your Honour.

McHUGH J: That was it.

MR BENNETT: It would have been after the Statute of Westminster came into force in Australia, which was 1941.

CALLINAN J: It was my recollection - I may be wrong - that when people were naturalised, they were naturalised as British subjects and that they could become Australian citizens, but that was optional. Is that right?

MR BENNETT: That is not my understanding, your Honour, but I may stand corrected.

HAYNE J: It seems not to be what was contemplated by the Naturalization Act of 1903.

MR BENNETT: No. Also there was certainly a practice for a period under which people who came from the United Kingdom to Australia did not go through naturalisation ceremonies but could apply for and obtain Australian citizenship.

CALLINAN J: That might be what I was thinking about, Mr Solicitor, and they got a certificate, as I recollect.

MR BENNETT: Yes, it was a certificate of registration as an Australian citizen. I would have brought mine, your Honour, if I had appreciated that the question was to be asked. It is a certificate of registration because the theory was that one changed one's citizenship but not one's nationality. The phrase "nationality" was sometimes used as a synonym for being a British subject and it was that distinction which existed for a time.

KIRBY J: So such persons did not have to take a new oath of allegiance?

MR BENNETT: No, your Honour, there was no new oath of allegiance.

KIRBY J: So this prosecutor would not have had to take a new oath of allegiance? In Holdsworth's term, he still owed his allegiance.

MR BENNETT: This changed later, your Honour. Whether the practice changed after not taking part in naturalisation ceremonies if one was British - when that changed I do not know. I can find that out.

KIRBY J: I think that changed quite recently.

MR BENNETT: I will have to find that out.

KIRBY J: I would think you should check that because I do not think that would have affected this applicant. In Holdsworth's term, if that is the test, he would be deemed to continue his allegiance to the Queen, albeit in a different right.

MR BENNETT: Yes.

HAYNE J: The 1903 Act again distinguished naturalisation under Australian law and naturalisation under the law of the United Kingdom. The operative provision, section 5, dealt with persons "resident in the Commonwealth, not being a British subject" and certain other exclusions, who either had resided for a period or had:

obtained in the United Kingdom a certificate of naturalization or letters of naturalization,

may apply to the Governor-General for a certificate of naturalization.

But naturalisation in the UK was not seen as having any automatic consequence in Australia. There was the further step required.

MR BENNETT: Yes, precisely.

GUMMOW J: Nor, as I understand it, was it the situation that naturalisation under the Commonwealth Act of 1903 was accepted in Britain.

MR BENNETT: Precisely. There were cases in England which had - - -

GUMMOW J: That is right. They had a statute called the British Nationality and Status of Aliens Act 1914, an imperial Act, to deal with the situation. The imperial authorities did not like all these subordinate bodies going round naturalising people.

MR BENNETT: No. Your Honour, as I will show in a moment, when one looks at the Australian Citizenship Act in the parts of that Act dealing with the status of British subjects section 7 provided this:

A person who, under this Act, is an Australian citizen or -

under a Commonwealth country's law:

is a citizen of that country has.....the status of a British subject.

There was then a list of Commonwealth countries, a very long list, most of them in Africa and the West Indies. Now, if my learned friend were right all of those people would not have been subject to the alien's power. In other words, a citizen of Uganda who had never left Uganda would not be subject to the alien's power in Australia.

KIRBY J: There are other ways of keeping them out of Australia and if they got into Australia and lived here peacefully for decades, what is so shocking about that?

MR BENNETT: Your Honour, I am not suggesting there is anything shocking about it. What I am suggesting is that it would be surprising if the definition of "alien" in the Constitution were such that it excluded all Commonwealth citizens who were not subject to the aliens power. That would be surprising.

GAUDRON J: I do not think that is what was put against you. I think what was put against you was subjects of the King or Queen, resident in Australia, fall back position, subjects of the King or Queen, resident in Australia and absorbed into the Australian community.

MR BENNETT: My friend's submission, of course, depended largely on the right to vote which I will have to come to, but the point I am making at the moment is that for the purpose of the aliens power, if one reads the Australian Citizenship Act 1948 it is the part dealing with Australian citizens which is relevant rather than the part dealing with British subjects.

GAUDRON J: But, it does not go on to say "and everybody else is an alien" does it?

MR BENNETT: It has a definition of "alien" which we would submit is not the constitutional definition.

GAUDRON J: Where is that?

MR BENNETT: That is in section 5 which says, "alien means a person who does not have the status of a British subject and is not an Irish citizen or protected person".

McHUGH J: That is interesting, is it not? Perhaps it did meet the constitutional meaning at the time.

MR BENNETT: Our submission is that it did not, that so far as the aliens power is concerned it is a power under which one could dealt with people who were not in a relationship to the Australia polity which was narrower than the relationship of British subject.

McHUGH J: But your argument is notwithstanding the definition in the legislation, although they were not aliens for the purpose of that Act, they were aliens for the purpose of the constitutional power.

MR BENNETT: Yes, your Honour, nothing surprising about that.

McHUGH J: Well, I know there is nothing surprising about it, but it is a little unusual. But can I ask you this, supposing one takes Holdsworth's view and says, well, on any view this man was not an alien when he first arrived but at some stage by process of evolution the indivisibility of a Crown came to an end, but since he was here, why should not one attribute to him the allegiance to the Queen in right of Australia? After all, he owed allegiance to the Queen immediately before this evolutionary process came to an end, why should not you continue it on in that fashion? Supposing he had adhered to the Queen's enemies in Australia, I would assume the prosecuting authorities would have had no hesitation prosecuting him for treason.

MR BENNETT: That would apply equally to a Greek who did that, your Honour, who was resident in Australia. Joyce's Case makes it clear that the umbrella of allegiance for that purpose is considerably wider and, of course, there were degrees of allegiance.

In British Nationality Law by Mervyn Jones at page 57, there is a reference to Coke distinguishing four types of allegiance and they were: ligeantia naturalis, which is allegiance by birth; ligeantia acquisita, which is the acquired allegiance; ligeantia localis, which is the obedience because one is under the temporary protection while being there; and legal obedience, which is the extent of the ability of the laws to control you. Joyce, of course, was a person who was under the umbrella of protection because he had applied for a passport and hence could be guilty of treason.

McHUGH J: Remember yesterday I said my recollection was that a person who was here, an alien who was here, nevertheless owed allegiance. Was I wrong or right in that?

MR BENNETT: Your Honour was right, but it is the lower class of allegiance.

McHUGH J: I see.

MR BENNETT: The last two of those four classes would clearly be within the aliens power. The second one, if Nolan and Pochi are correct, is within the aliens power. The first, on an extended view, may be within the power, and I will come to that later on when I get to the question of removing non-alienage.

The relevance of the Australia Acts and Sue v Hill, and the relevance of the 1987 legislation, only arises if your Honours are against me on the primary question of whether he was always a person who was covered by the aliens power, and the reason I stressed the Australian Citizenship Act and the provisions of section 7, is that if one says that a person who owes allegiance to the Queen in any right is thereby not an alien prior to the 1980s, it would follow that every Commonwealth citizen and every citizen of the United Kingdom would be someone not subject to the aliens power, and that would be a surprising consequence.

GLEESON CJ: Has section 21 of the Australian Citizenship Act been in the same form since 1948?

MR BENNETT: That is deprivation?

GLEESON CJ: Yes.

MR BENNETT: It was substituted in 1958, amended in 1969 and amended in 1973.

GLEESON CJ: It is a provision that enables the Minister by order to deprive a person of Australian citizenship if that person has:

been convicted of an offence against a law.....of the Commonwealth, a State or Territory for which the person has been sentenced to.....imprisonment for life or for a period of not less than 12 months-

MR BENNETT: Yes. That only applies - certainly in the version I have - to:

a person who is an Australian citizen by virtue of a certificate of Australian citizenship -

GLEESON CJ: Yes.

GAUDRON J: Is that synonymous with naturalisation?

MR BENNETT: I am sorry, your Honour.

GAUDRON J: Is a certificate of Australian citizenship synonymous with naturalisation?

MR BENNETT: Yes, your Honour, as I understand that, yes.

GLEESON CJ: So that is legislative denaturalisation?

MR BENNETT: Yes. I notice that in the earlier version which my learned friend has just given me, that begins with the words, "Where the Minister is satisfied that an Australian citizen who is such by registration or is a naturalised person", so registration would be the British subject who becomes registered as an Australian citizen. A naturalised person is the person who is not a British subject who becomes an Australian citizen.

GLEESON CJ: Now, what is the legislative power that is supported in section 21 of the Australian Citizenship Act 1966 ?

MR BENNETT: We would submit the aliens power, your Honour. It is a power which deals with naturalisation and aliens and naturalisation, in the relevant sense, would include making someone an Australian citizen. It should be noted that so far as we are aware, apart from the references in Pochi which, of course, do not involve England or the Commonwealth, Nolan which was after the Australia Acts and Sue v Hill which was after the Australia Acts, there does not seem to have been any occasion for this Court to address the distinction between being a British subject and being an Australian citizen, which was set out by the Citizenship Act.

GLEESON CJ: If the prosecutor in the present case had, in fact, applied for Australian citizenship, for example during that period between 1984 and 1987, would he have been an Australian citizen by virtue of a certificate of Australian citizenship?

MR BENNETT: Yes, your Honour.

GLEESON CJ: So that if he had become an Australian citizen, what has been done to him in the present case could have been done to him under section 21 of the Citizenship Act. Is that right?

MR BENNETT: Yes, your Honour.

KIRBY J: That is assuming that section to be valid.

MR BENNETT: Yes.

GAUDRON J: Does not the:

being an offence committed.....before the grant of the certificate -

I think one has to - - -

MR BENNETT: The sections had different forms at different times.

GLEESON CJ: I am talking about section 21(1)(a)(ii).

MR BENNETT: Yes. I now have three forms of it in front of me.

GAUDRON J: I read the "being an offence committed at any time" before the grant of the certificate.

MR BENNETT: The current version - - -

GAUDRON J: We may have different Acts.

MR BENNETT: The current version refers to:

an offence against section 50 in relation to the application -

that is, I assume, a full statement on application. That would, no doubt, in practice include a prior offence, because no doubt the question is asked - - -

GLEESON CJ: You have to read this with section 13(11), which prohibits the Minister from granting a certificate of Australian citizenship to certain persons. Is that not so?

MR BENNETT: Yes, it does.

KIRBY J: They include a person, looking at paragraph (c), who:

during the period of 2 years after the expiration -

of a certain time, was convicted of certain offences. So, you cannot become a citizen if you have been convicted of certain kinds of offence.

MR BENNETT: For two years.

KIRBY J: For two years.

MR BENNETT: Yes. May I return then to the word "alien" in the power, naturalisation and aliens. We stress that what the power is talking about is conferring on the Commonwealth the power to determine the limits of citizenship or, if one likes at the time, being a subject of the monarch in the relevant sense.

GAUDRON J: But has the Parliament done that?

MR BENNETT: I would be submitting yes, your Honour, but I will come to that. It is, in a sense, something which one would expect to be almost implied in the implied nationhood power if it was not there. It is something which is clearly essential when one is setting up a new polity, that the polity is able to define for various purposes its members. And to have - - -

KIRBY J: It was not thought to be so in 1900. We did not have a Citizenship Act for half of the century.

MR BENNETT: No, your Honour, but the - - -

KIRBY J: So, it was not thought to be necessary for our polity, and if we apply a 1900 criterion, then it is not part of the Constitution.

MR BENNETT: No, your Honour. But what the power was there for was so that the new polity would be able to draw the line. Now, in any situation where a polity has to define the people having connections with it, it has to do so for a number of purposes. My learned friend's submissions make that very clear because he has shown how there are requirements in relation to the right to vote, there are requirements in relation to the concept of the people of the Commonwealth, there are requirements in relation to military service, and there are matters such as deportation under the aliens power. There were all sorts of purposes, and the law of treason may be another one. All those may require different definitions. What this power enables one to do is to have different definitions for different purposes. One could say in an Act if one wished that there shall be four different words, which we will call A, B, C and D, rather than trying to put names on them. One is the criterion for voting, one is the criterion for deportation, one is the criterion for military service, one is the criterion for treason and one is the criterion for getting an Australian passport.

One could use the word "non-alien", one could use the word "national", one could use the word "subject", one could use the word "citizen" and one could use something else. This is the power that enables the government to confer a status for which the convenient word, the negative word, "alien" is used and say that the Commonwealth is given control over people within Australia who are not within that status, however defined.

GLEESON CJ: The preamble to the Australian Citizenship Act says that:

Australian citizenship represents formal membership of the community of the Commonwealth of Australia -

Was that in there from the beginning?

HAYNE J: It is in 1993, I think.

MR BENNETT: I think not, your Honour. It certainly is not in the earlier one I have.

GAUDRON J: When did the definition of "alien" go?

MR BENNETT: I do not know, your Honour. It was there in 1973. It was probably in the 1984 legislation but that is a guess rather than a verified answer. That would be when one would have expected it to have gone. It may have gone with the Royal Style and Titles Act but I do not think so.

When one looks at my learned friend's submissions, his primary submission depends upon the significance of the right to vote. He points to various references in the Constitution. One can say a number of things about those. The two obvious things have been said in the course of argument. One is that there are many people who were, on any view of it, not aliens who did not have the right to vote and many who still do not, the obvious one being minors, but that is the least controversial perhaps. They are certainly part of the phrases used, "the people of the Commonwealth" and so on.

It may well be that the phrase "the people of the Commonwealth" in section 24 and in the other electoral sections which refer to it is little more than a neutral phrase designed to avoid having to define what one is talking about, because how it is determined for the relevant purpose is then described. One does not need to treat the words "the people of the Commonwealth" in section 24 as if they had some sort of special significance in their own right. They should not, in my submission, be treated that way.

Also, of course, there have been historically and have been in Australia, as we know, people who are aliens who have the right to vote. It has been common in the United States and there is no necessary reason why citizenship or nationality should coincide with the right to vote. An enlightened community may well say if a person lives in this community for a long time, that person will have the right to vote, as it may say if a person leaves the community for a long time, although retaining nationality or citizenship, that person loses the right to vote. There is nothing surprising about either proposition.

That was known in the last century in the United States, which is a short and very, very clear decision which might well have been written in answer to my learned friend's submissions and that is the decision of Justice Miller in the Circuit Court in Lanz v Randall (1875) 4 Dill.

GUMMOW J: It is 14 Fed Cas, it is.

MR BENNETT: Is it, your Honour?

GUMMOW J: Yes, 14 Fed Cas 1131.

MR BENNETT: I apologise for that. We took the reference from Quick and Garran and did not check whether there was a better reference. Lanz v Randall was a case where a person who was a citizen of Mecklenburg had moved to Minnesota and because of the length of his residence was entitled, under Minnesota law, to vote. He was a party to litigation and he sought to remove that litigation to the Federal Court on the basis that he was an alien. That was opposed by the other party, which argued that he was not an alien because he had the right to vote. At page 429, in the middle of the page, his Honour says that:

no state -

as opposed to the federation -

can make the subject of a foreign prince a citizen of the state -

that is because it is a federal matter. His Honour goes on to say:

But I do not place the decision of the present case on that ground.

So he comes to the ratio.

The state of Minnesota has not attempted to make the plaintiff a citizen of that state, nor do the provision of her constitution.....The error has arise from the same confusion of ideas which induced the advocates of female suffrage to assert, in the supreme court, the right of women to vote. that assertion is based upon the proposition that citizenship and the right to vote are inseparable -

and so on -

that was overruled by this court. The present case is based upon the same idea, that citizenship and the right to vote are inseparable, and as the constitution of Minnesota gives the plaintiff the right to vote, therefore he is a citizen of the state. But the proposition on which both arguments are based is wholly unsound.

There is no necessary or uniform relation between citizenship and the right to vote.

Then he gives the various examples. He gives the example of children, the example of women, the example of States which allow aliens to vote, and so on. He then says at point 6:

These observations show that citizenship is not a sole criterion of the right to vote, and still more clearly that the right to vote may exist without citizenship. This latter is precisely the case in Minnesota. That state, by a wise policy, has invited an industrious and useful population from abroad to occupy her vacant territory, and, as an inducement, has said, "You need to wait till you are naturalized and become citizens to exercise the elective franchise, and to become eligible to office."

et cetera. Now, that - - -

KIRBY J: But how can you possibly draw an analogy between a person who was a citizen or subject in the State of Mecklenburg and the United States, and somebody who was a subject of the Queen in the United Kingdom and came to Australia? I mean, the relationship between the two is just absolutely different.

MR BENNETT: I do not need to draw the analogy, your Honour.

KIRBY J: This is the rewriting of history.

MR BENNETT: I do not need to draw the analogy, your Honour. All I need to do is, to the extent that the case, of course, is persuasive, is refer to it for the proposition that there is no necessary relationship between the right to vote and being a citizen, and that that distinction was well recognised in the last century. That is all I use it for, in rebuttal of my learned friend's submission that, quite independently of his argument about the Queen and about status, my friend says, "Oh, he could vote, therefore he is not an alien". It is that that I am seeking to rebut.

KIRBY J: It is a very odd notion to say that a person who is an elector of the Commonwealth, takes part in our elections, chooses the government that you represent and takes part in our referenda, is an alien. I mean, it is a very peculiar notion.

MR BENNETT: It was a notion that the United States had no trouble with, with Mecklenburg.

KIRBY J: But they had no similarity in their historical - they had a severance. We had a continuity and an evolution.

MR BENNETT: But there is no reason why an Australian State could not have said we will allow aliens who have lived within our borders for a certain period to vote.

KIRBY J: But that is not this case. This case is a person who is a British subject.

MR BENNETT: Your Honour, this does not govern this case, but it rebuts the proposition my learned friend puts and that is all I am using it for. My friend puts the proposition that there is a relationship between the two. We put the submission that there is no relationship between the two. There is a later case, which I will not take your Honours to - I have given your Honours copies of it - which refers to it and approves it and says it has been accepted as good law. It is the case of City of Minneapolis v Reum (1893) 56 F 576, the Eighth Circuit Court.

GUMMOW J: Now, it might be noted that Justice Miller is a Justice of the US Supreme Court. This is at an era when they used to go on circuit.

MR BENNETT: Yes, that is so, your Honour.

GUMMOW J: Quite a considerable figure.

MR BENNETT: Yes, your Honour, that is so. Now, that brings me to the question of cancellation and the scope of the power in relation to cancellation. If your Honours are with me on the proposition that the applicant was always an alien and always, therefore, subject to the aliens power - - -

GAUDRON J: Can I make it clear in my mind why you say that is so? That is because he came here after the Australian Citizenship Act.

MR BENNETT: Yes, your Honour. He never became an Australian citizen.

GAUDRON J: But it would have been different, I take it on your argument, if he had arrived in this country in 1945 or about the time you did.

MR BENNETT: No, your Honour, it was later than that. If he had arrived in the country in 1945, his status would have depended on an argument which no court has ever had to consider which is, in a sense, the resolution of the matter discussed at the various conferences in the early part of the century as to whether, even as early as that, there was some different status. It would depend on those English cases that have been referred to.

GAUDRON J: Now, Mr Solicitor, we need not pursue that for my purposes but, as at the date when he did arrive in Australia, how was "alien" defined in the Citizenship Act? As you have indicated earlier?

MR BENNETT: Yes, your Honour.

GAUDRON J: So by statutory definition he was not an alien at that stage?

MR BENNETT: For certain purposes under that statute, yes, your Honour, that is so.

GAUDRON J: One does not know what the purposes of that statute are. I mean, that statute might be purely descriptive and not really serve any - - -

MR BENNETT: Your Honour, that statute did this: it defined "Australian citizenship" in ways which did not include the applicant. It defined "British nationality" in ways which did include the applicant. It had a definition of "alien" which was relevant for certain purposes in the Act which - - -

GAUDRON J: Did it say so? I do not have what the Act said when this gentleman arrived in - what year was it?

MR BENNETT: , your Honour. He was born in 1959 and arrived here in 1966. As at that time the Act had a definition of "alien" which excluded British subjects.

GAUDRON J: Did that definition say it was for certain purposes or was it - - -

MR BENNETT: Like all definitions, your Honour, it was in this Act unless the contrary intention appears.

GAUDRON J: That is right, so it is very difficult to take from that, is it not, that there was a legislative intent by the Australian Citizenship Act 1948 to identify persons of the class in which this man found himself as an alien?

MR BENNETT: We would submit the mere fact that the Act uses a word has no necessary relationship to the meaning of that word in the Constitution.

GAUDRON J: No, what I am coming back to, which is what I need to understand, is whether you say the Parliament legislated in such a way as to define "alien" as anybody not having British citizenship. This seems to me to be somewhat important if one is to proceed on a presumption I would make that the Parliament would not readily be taken to have legislated to turn a non-alien into an alien even in 1948 if it did not say so quite unambiguously. If it says to the contrary, it seems to me for practical purposes it may have been an exercise of the aliens power just to say these people are not aliens.

McHUGH J: Interestingly, Mr Solicitor, the 1948 Nationality and Citizenship Act was Act No 83 of 1948 and the next Act was the Aliens Deportation Act, No 84 of 1948. It was an Act to provide for the deportation of certain aliens. An "alien" was defined to mean a person who was an alien within the meaning of the Nationality and Citizenship Act.

MR BENNETT: Yes. At that time, your Honour, it was not sought to exercise those powers in relation to certain classes of people. That is all one really gets from that. But it would have been open to Parliament at that time to define "alien" differently.

KIRBY J: But Justice Gaudron's point still remains that you have to answer that in order to do that by ordinary principles of statutory construction, one would expect that Parliament would do so very, very clearly, saying "Those who were not aliens before we now make aliens". It is a very serious thing. You are disturbing the quiet of thousands of people who live here as loyal and good Australians.

MR BENNETT: Your Honour, there was a difference - - -

CALLINAN J: You say they did that by legislating to make them non-citizens, do you not, under the Citizenship Act?

MR BENNETT: Yes, there is a distinction between - - -

CALLINAN J: But do you say that? Is your submission that non-citizen is synonymous with alien?

MR BENNETT: Yes, your Honour.

GAUDRON J: And has been since 1948.

MR BENNETT: Since at least that; the word "citizen" was not used earlier. What it comes to is this - if I can answer the two questions in turn. The first point is that there is a distinction between passing a law such as the body of the aliens Act, providing for removal from Australia of certain people, with all the effects that has and the seriousness in which that has to be taken on the one hand, and the determining of who is to be subject to a constitutional power on the other. There is nothing surprising in reading these two Acts as meaning, or having the effect, that people who were not Australian citizens but who were British subjects, who are therefore not aliens under the Act, would nevertheless continue to be regarded as people who were aliens in the constitutional sense of the word.

GAUDRON J: But that happened - I am sorry; then you may have to go back to tell us when these people became aliens, because there may be a question of the validity of the 1948 Act. If you say that the effect of the 1948 Act was not to change people who had not been aliens into aliens, that is all right. You keep saying at least since 1948.

MR BENNETT: Yes, we do, your Honour, because one does not want to - - -

GAUDRON J: That is right. Perhaps the real thing is you have to point to a legislative provision somewhere which said these people are no longer non-aliens.

MR BENNETT: Well, it would have been open to Parliament in 1901, on the first day of Federation, to have said people who were not born in one of the colonies, even if they are British subjects, shall be treated as aliens unless and until they take certain steps. That would have been a valid Act under the aliens power.

HAYNE J: But it invites attention to treat it as aliens in what respect, for what purpose? That is to say that the inquiry posed simply as "When did he become alien?", may require further elucidation, "An alien, for what purpose and in what respect?"

MR BENNETT: Yes, and again, one also has to distinguish between people who are within the scope of the constitutional power as those who can be made aliens and those who already are, but the point I am making is very simply that one does not necessarily answer the question by the use of the word in a definition in an Act. If one did, this Act would not do it because this Act says the opposite, but what the Act does do is define Australian citizenship. It also defines being a British subject which extends to every citizen of every Commonwealth country, including the United Kingdom, who has never been to Australia and says, "For Australian purposes we say that person is a British subject".

Now, that cannot have been talking about the use of the word in the constitutional sense. It is inconceivable that even in 1948 it would have been thought that someone residing happily in another Commonwealth country was other than an alien for the purposes of the aliens power.

KIRBY J: But I think in the euphoria at the success of the war, just like the euphoria of 1900, the thought that people who had been fighting together, undifferentiated, taken their oaths of allegiance together, were aliens would have just not occurred to them - just not occurred to them.

MR BENNETT: Your Honour, even if it had not, and indeed the fact that it may not have occurred to them may be the reason why the definition is different to the constitutional meaning.

KIRBY J: Would it be a trouble to trace that definition and how it moved in and out of the Act?

MR BENNETT: I will have that traced, your Honour. I will have that traced.

GUMMOW J: The 1948 Act followed considerable negotiations amongst a million ministers.

MR BENNETT: Yes, following the conventions to which I have referred in the early part of the century.

GUMMOW J: Yes. Led by the Canadians.

MR BENNETT: Yes. The British Nationality Act was 1948. It was the same year. That set out the new scheme. That is why we say that at least since 1948 one looks to the citizenship rather than the status of being a British subject for the purpose of the constitution.

GLEESON CJ: On your argument, does it make any difference in the present case that the prosecutor came here from England, as distinct from Hong Kong?

MR BENNETT: No, your Honour, none at all. It would make no difference. May I turn now to the question of conversion of someone into an alien and the short point is that when one looks at the power, naturalisation and aliens, there is a verb and a noun and the verb includes the reverse of the verb, or at least extends to the reverse of the verb. Naturalisation and aliens includes a power of denaturalisation. That raises the question which I now have to address as to whether one can only denaturalise where one has naturalised or whether one can denaturalise, in any event.

Now, the authorities start with Meyer v Poynton [1920] HCA 36; (1920) 27 CLR 436, a decision of Justice Starke. That was a deportation case. There was this very short point. At the bottom of page 440 his Honour said this:

The Judiciary Act 1912 makes it undesirable for any single Justice to declare an Act of the Federal Parliament unconstitutional. Such a decision ought to be obtained in the Full Court, and if the matter appeared to me of any substance, or was even faintly arguable, I should be prepared to refer it to the Full Court. But the matter seems to me to be clear and without doubt. Under the Naturalization Act 1984 power is given to admit the nationals of other Powers to Australian citizenship and thus confer upon them certain rights and privileges, and we reserve to ourselves, or rather to the Governor-General, the power to take away that citizenship and those rights and privileges in certain cases. It is said that depriving a person of citizenship so acquired is not a law relating to naturalization. I am quite unable to agree with the contention, or to consider that the point is susceptible of reasonable argument.

Then he says what you can give you can take away. There was a sort of an early shade of Kartinyeri in the way it is put. The only other case - - -

KIRBY J: And, you might say of Langer and a few other cases.

MR BENNETT: Yes.

KIRBY J: Do not just pick on Kartinyeri.

MR BENNETT: Yes, I am sorry. The other one is Ferrando v Pearce [1918] HCA 47; (1918) 25 CLR 241 which my learned friend referred to. I only refer to it because my learned friend stopped reading at a point and I wanted to take the next two sentences - I do not suggest deliberately.

GAUDRON J: I take it you go so far as to say that one can, by a stroke of an administrative pen, render a person, at least a person who has been naturalised, wholly stateless?

MR BENNETT: Yes, your Honour, if that is the consequence, that is the consequence.

GAUDRON J: By the stroke of an administrative pen.

MR BENNETT: Yes. There are, in fact, provisions in legislation which deal with that.

GAUDRON J: Yes.

MR BENNETT: Yes, that is the effect of it, your Honour.

GAUDRON J: You do not limit it to saying that they can specify the circumstances in which denaturalisation will occur, it being up to the courts to determine whether those circumstances have been met. You just say, well, there is no limit on the power of denaturalisation, at all?

MR BENNETT: That is so, your Honour. If it is done under statute, of course it has to be done within the four corners of the statutory power and section 75(v) - - -

GAUDRON J: Yes, but it could be an administrative pen, by statutory authorisation?

MR BENNETT: Yes, your Honour.

McHUGH J: It is in section 21, is it not, subject to you having the convictions for - - -

MR BENNETT: Yes, it was in the case I have just taken your Honours to. Ferrando v Pearce was a case involving the statutory power. At page 253 in the judgment of Justice Barton, his Honour at about line 8 says:

It is trite law that any community is entitled to determine by its Parliament of what persons the community is to be composed.

My friend relied on that for a different purpose. But it goes on:

Hence subsection (xix) of section 51 of the Constitution. But it is scarcely necessary to call that power in aid of the power conferred by subsection (vi) of the same section.

That, of course, is the defence power.

It is obvious that deportations must in many cases be expedient with a view to public safety and defence. That they are capable of being so is enough. Being thus capable, whether they are so in fact is a matter which legislative authority, or authority delegated by the Legislature, alone can determine.

So certainly he was talking about two powers, but it is again, we would submit, clear that the power can be applied in reverse. Now the question was referred to by Justice - - -

GAUDRON J: Can I explore that. The power in question is a power to legislate relevantly with respect to aliens. What does the exercise of the power in reverse mean?

MR BENNETT: Making someone into an alien, your Honour; determining who is to be an alien - - -

GAUDRON J: And again, that is subject, in your submission, only to the two legislative exceptions that you identified before.

MR BENNETT: Yes, your Honour.

GAUDRON J: So again you would say a statute could be passed so that by the stroke of a legislative pen any number of people who are presently Australian citizens, including by birth, could be rendered stateless.

MR BENNETT: Your Honour says "including by birth" That involves a conflation of the next two of my arguments. I was going to show your Honours - - -

GAUDRON J: Well is there a limitation?

MR BENNETT: - - -what was said in Pochi and Nolan, which would not include "by birth" and your Honours do not need to decide in this case whether it goes beyond that.

GAUDRON J: But we do need to know what your argument is, because we would need to know how to deal with it.

MR BENNETT: Yes.

KIRBY J: I think there is a provision in the Migration Act that children born in migration detention in Australia are not entitled to Australian citizenship.

MR BENNETT: And there are provisions about children of diplomats too, for different reasons.

KIRBY J: I see.

MR BENNETT: In fact, I am not sure about children of people on tourist visas, but certainly there are certain limitations in relation to people born in Australia.

McHUGH J: The common law rule was that children born in a country whose parents were occupying the country were not subjects either.

MR BENNETT: Yes, there are provisions of the Citizenship Act which deal with that sort of thing, your Honour. In Pochi v Macphee (1982) 151 CLR at page 101, the argument that was put there is fairly similar in some ways to the argument my learned friend has put, although it was put with further effect. That concerned the deportation of a citizen of Italy who had been convicted of criminal offences. The argument that was put was that because the definition of "alien" in the Migration Act was both wider and narrower than the constitutional meaning, it failed under the aliens power. The basis on which that was put started with the proposition that the relevant test was one of allegiance, and only allegiance, and therefore that it was not possible to apply that legislation to people who were, for example, citizens of Commonwealth countries. The next step was that it was not severable and, therefore, it could not be applied either to a person who was Italian.

It was a difficult argument because the actual distinctions between the legislation and that test were very small. There was a gap of a few days in Singapore and a rather longer gap in relation to the Solomon Islands, and those gaps were relied on, without success. At 109, point 4, the Chief Justice said this:

This argument proceeds on the assumption that any person who is a British subject under the law of the United Kingdom cannot be an alien within s. 51(xix). That assumption is incorrect.

Just stopping there, of course, under the legislation, as it existed at the time, the definition of "British subject" in the Australian Citizenship Act included, in effect, anyone who was a British subject under the law of the United Kingdom.

The scope of the legislative power conferred on the Parliament by s. 51(xix) is not determined by the British Nationality Acts of the United Kingdom. In recent times the status of a British subject has lost much of its former significance to Australian citizens. It has ceased to carry with it practical advantages, such as the unrestricted right to enter the United Kingdom or other Commonwealth countries, or the right to a British passport. The allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia. Now, once the British Nationality Act 1981 (U.K.) has come into force, the principle that every Commonwealth citizen is a British subject will have finally been abandoned, and the status of British subject will be restricted to a narrow group. If English law governed the question who are aliens within s. 51(xix), almost all Australian citizens, born in Australia, would in future be aliens within that provision. The absurdity of such a result would be manifest. The meaning of "aliens" in the Constitution cannot depend on the law of England. It must depend on the law of Australia. It is true that s. 51(xix) presents some difficulties.

This is where his Honour deals with the question of removal.

Clearly the Parliament cannot, simply by giving its own definition of "alien", expand the power under s. 51(xix) to include persons who could not possibly answer the description of "aliens" in the ordinary understanding of the word.

In that sentence his Honour is not - in the example I gave you about bankruptcy, that is the example of saying that all people who have high assets are deemed to be bankrupts so as to extend Commonwealth power, or all persons who drive on highways will be called bankrupts or called aliens, so as to extend Commonwealth power. Clearly you cannot do that. That is all his Honour is saying there. He is not saying you cannot make a particular person into an alien if you do cause that to occur. His Honour goes on:

This question was not fully explored in the present case, and it is unnecessary to deal with it.

Then there is the principle his Honour lays down which was applied in Nolan:

However, the Parliament can in my opinion treat as an alien any person who was born outside Australia -

the applicant was born outside Australia -

whose parents were not Australians -

the applicant's parents were not Australians -

and who has not been naturalized as an Australian.

He has not been naturalised as an Australian.

The plaintiff's argument is based on a false assumption and must fail.

Justice Mason, as he then was, agreed on page 112 and Justice Wilson agreed on page 116. Justice Murphy decided the case on a slightly different basis.

That was followed in Nolan [1988] HCA 45; (1988) 165 CLR 178 which I do not need to take your Honours to in the same detail. That again was a removal case. It was a case very similar to this one, a person who came to Australia from the United Kingdom. At page 186 in the majority judgment in the middle paragraph, this was said:

It was also submitted on behalf of the plaintiff that the fact that, at the time the deportation order was made, the Australian Citizenship Act included a definition of "alien" which excluded most British subjects, including the plaintiff, indicating that the word "alien" in the Constitution should not be construed as applying, at that time, to such British subjects. There are two answers to that submission. The first is that a corresponding definition of "alien" had, at that time, been deliberately removed from the Act and that the Australian Citizenship Amendment Act (Cth), providing for the removal of the definition.....had already been enacted and was awaiting the proclamation of a commencement date. The second is that the definition of "alien" in the Australian Citizenship Act 1900 did not, particularly in the light of the decision in Pochi, confine the meaning or denotation of the word in s 51(xix) of the Constitution.

So the definition of "alien" was put and rejected.

The previous paragraph dealt with the question of gradual change up to that point. That is the paragraph beginning on page 185, point 7, where, after referring to Pochi, their Honours said:

It was submitted on behalf of the plaintiff that the references to the "Crown of the United Kingdom" in the preamble and.....in covering cl 2 of the Commonwealth of Australia Constitution Act (Imp) and to "subject of the Queen" in the Constitution itself (see ss 34(ii) and 117) were inconsistent with the notion that any subject of the Queen, be he citizen of the United Kingdom or of some other country of the Commonwealth which recognizes the Queen as Head of State.....could be an "alien" in so far as this country is concerned. It is unnecessary to pursue that point beyond saying that those references cannot alter, or avoid the consequences of, the emergence of Australia as an independent nation, the acceptance of the divisibility of the Crown which was implicit in the development of the Commonwealth as an association of independent nations and the creation of a distinct Australian citizenship. Those developments necessarily produced different reference points for the application of the word "alien". Inevitably, the practical designation of the word altered so that, while its abstract meaning remained constant, it encompassed persons who were not citizens of this country even though they might be British subjects -

et cetera.

GLEESON CJ: What was the abstract meaning that remained constant?

MR BENNETT: The definition by a national polity of those who are not its members and the use of a word to achieve that objective.

KIRBY J: One can go along with every word in that passage that you have just read, but with the qualification pointed up by this case that there is a group, anomalous you might call it, which is a leftover from earlier times in the evolution in respect of people who were United Kingdom citizens and are electors of the Commonwealth by virtue of that fact prior to the changes that came into force in 1987.

MR BENNETT: Yes, but Nolan was such a person.

KIRBY J: He may have been.

CALLINAN J: There was no argument about the Electoral Act though, was there, and the Court did not refer to it or, indeed, to sections 8 or 24 or 30?

MR BENNETT: That argument was not put, your Honour. The front of the report shows us that Mr Nolan was:

a citizen of the United Kingdom and a subject of the Queen, was born there and came to Australia in October 1967.

So it was the following year after the present applicant -

He lived in Australia continuously thereafter but was not naturalized.

Then in 1985 a deportation order was made. So, apart from the enactment of the 1984 legislation and its proclamation in 1987 and the Australia Acts, the case was the same as this one.

CALLINAN J: Mr Solicitor, the word "alien" is not used in the Migration Act now, is it?

MR BENNETT: No, your Honour.

CALLINAN J: And it is not used in the Citizenship Act either, is it?

MR BENNETT: I think that is so, your Honour.

CALLINAN J: Do you know when it went out of that Act? It was used in that Act.

MR BENNETT: Yes. My friend says the two dates are 1987 and 1984 and he said some precise dates. The note I have is the definition of "alien" was omitted by Act No 129 of 1984, section 4(2)(a) from the Australian Citizenship Act and the oath of allegiance was changed in - - -

KIRBY J: What year?

MR BENNETT: That was in 1973, your Honour, where it became to the Queen of Australia.

GAUDRON J: And did anything similar happen to the Aliens Deportation Act? Did that sort of get repealed at the same time?

MR BENNETT: I suspect it was repealed at the same time but I do not know, your Honour. I will have that checked, too. As I said earlier, I was not certain whether the new regime in relation to UK people who came to Australia and sought to become Australian citizens, I am not sure whether the change from registration as a citizen to naturalisation occurred after 1973 or 1987. That I will have checked, too.

Your Honours, I should correct paragraph 11 of our submissions. There is a minor error in those in relation to the applicant. In paragraph 11 the third sentence is not correct. He was deemed to have a transitional permanent visa from 1 September 1994. That part is correct but to say he was granted a permanent return visa is incorrect.

CALLINAN J: But he also was deemed to have an absorbed person - - -

MR BENNETT: Yes. The word "may" in the last line, I think, is taken to be regarded as "did have". He was deemed to have an absorbed person visa.

GUMMOW J: So how should we read paragraph 11?

MR BENNETT: From 1 September 1994 he was deemed to hold a transitional permanent visa and that is under regulation 4. The footnote says regulation 7, which is wrong. It is regulation 4 of the Migration Reform (Transitional Provisions).

GAUDRON J: That may just necessitate a search of the Act, again. He did not hold a visa. Is "visa" defined in terms of the Minister's cancellation power to include a non-existent visa, which a person is deemed to have?

MR BENNETT: That is certainly the effect of it, yes, your Honour. That appears - - -

GAUDRON J: Perhaps in due course if we could give a notice to chase that through.

MR BENNETT: Yes. Section 5 defines "visa" by reference to section 29. Section 501F provides that if a decision is made to cancel a visa, subsection (3) says:

the Minister is taken to have decided to cancel that other visa.

GAUDRON J: But this is a deemed visa.

MR BENNETT: Well the phrase "deemed visa" is not used.

GAUDRON J: But that is all this man has got, is it not?

MR BENNETT: Yes, your Honour.

GAUDRON J: He does not, in fact, have a visa?

MR BENNETT: No, he does not have a physical bit of paper with "visa" written on it, no.

GAUDRON J: He is only deemed to have a visa?

MR BENNETT: He is deemed to have two visas, yes, your Honour.

KIRBY J: And he was never informed of this change in his status, never given a piece of paper with the notification that he had changed his status and he now had a visa. Living up there in Gunnadah he was blissfully ignorant of all these things.

MR BENNETT: Your Honour, he was seven when a lot of it happened, but he received an entry permit. Your Honours, we have handed to your Honours a sheet of paper the top line of which says, "as from 1958", which sets out the relevant provisions showing his status at different times. Your Honour sees that from 1958 the Migration Act provided that:

A child under the age of sixteen years who enters Australia in the company of, and whose name is included in the passport of, or any other document of identify of, a parent of the child shall be deemed to be included in any entry permit granted to that parent -

There was a similar provision in the 1989 legislation, which we have set out, and then in the regulations in 1994, they provided at the bottom of the page, that if prior to September 1994:

a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect.....as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.

The absorbed person visa provisions are in section 34 of the Migration Act and that provides that:

There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.

And there is an elaborate definition which picked up people who were here in 1994 and had been here for sometime before that and they deemed to have an absorbed persons visa and certain provisions then do not apply to those people.

Those are my submissions on the first part of the case, the question of the aliens power. The second question concerns unreasonableness. It is significant to note, on this question, that my learned friend chooses to put the issue in a way which, with respect to him, is not quite accurate. My learned friend puts it on the basis of a decision as to whether to proceed under subsection (2) or subsection (3).

May I just remind your Honours of the provision. It is section 501 of the Migration Act and your Honours recall that under subsection (2) there is a power to cancel where:

(a) the Minister reasonably suspects a person does not pass the character test; and

(b) the person does not satisfy the Minister that -

he or she does. There is no dispute that this applicant does not pass the character test, and, as my learned friend says, the effect of that is that there is a discretion and there are bases on which natural justice must be given and it can be challenged.

Subsection (3) then provides:

The Minister may:

(b) cancel a visa that has been granted to a person;

if:

(c) the Minister reasonably suspects that the person does not pass the character test; and

(d) the Minister is satisfied that the refusal or cancellation is in the national interest.

GAUDRON J: Can I interrupt you, again, as I look at these sections. No visa has been granted, there has been a deemed grant, is that right?

MR BENNETT: Yes.

GAUDRON J: But the language of this section, in the clearest terms, is "a visa that has been granted to a person"?

MR BENNETT: Yes, your Honour.

GAUDRON J: I know it is not a subject of the application, but from my point of view, I would be construing that very strictly if that were in issue.

MR BENNETT: Well, your Honour, we would submit it is not, and, in any event - - -

GAUDRON J: It is certainly not, but - - -

MR BENNETT: - - - if it were, where something is deemed to have been done, then, for statutory purposes, one treats it as if it had been done, and one reads the statute accordingly.

GAUDRON J: This is deemed by a regulation.

CALLINAN J: Section 34, it says, "is taken to have been granted", does it not? It is one dealing with an "absorbed person visa".

MR BENNETT: Yes, "is taken to have been granted". So, one takes the visa as having been granted and then when one - - -

GAUDRON J: The question is whether the words which "have been granted" are to be read or "is taken to have been granted"?

MR BENNETT: But, your Honour, if the words "taken to have been granted" are to have any meaning, that meaning must be that where something refers to it being granted, it applies. Otherwise, the words "taken to have been granted" have no effect at all.

GAUDRON J: They would have effect in terms of you would not be taken to be a person in Australia without a visa. But that is a different question from what the Minister may cancel.

MR BENNETT: Your Honour, in my respectful submission, it goes to the effect of deeming or "taken to have been", whichever, the phrases are synonymous. The - - -

GUMMOW J: The term "visa" appears in 29, does it not? It is an administrative act of granting, is it not? It is not a piece of paper, that is the evidence of it. But it is an administrative act.

MR BENNETT: Yes.

GUMMOW J: Here there has not been any administrative act.

MR BENNETT: Your Honour, it is not always an administrative act. Under section 34, it is not an administrative act and under regulation 4, it is really deemed to exist, the phrase is:

the entry permit continues, in effect, as a transitional permanent visa.

So, for both purposes, there is a visa which has been - the entry permit was granted and it continues as a visa. So, in that sense, the visa was granted.

GAUDRON J: "Visa" is defined as having:

the meaning given by section 29 and includes an old visa.

Again, it is subject to any contrary intention, is it not?

MR BENNETT: Yes.

GAUDRON J: An "old visa":

means a visa, document, or notation that:

(a) permits a person.....

.....

(c) has not been cancelled or otherwise stopped being in effect.

MR BENNETT: Yes, well, his entry permit was therefore an old visa.

GAUDRON J: Yes.

MR BENNETT: And under the Act, under the sections I have taken your Honours to, his father's entry permit was deemed to be his entry permit and that entry permit was certainly granted.

GAUDRON J: But it had stopped being in effect, had it, by force of the regulation?

MR BENNETT: No, the regulation continued it in effect, your Honour, as a transitional permanent visa. It is that visa that was cancelled. The visa - - -

GAUDRON J: Well, that is what I am saying. I can well understand that there might have been some basis for cancelling the old visa - - -

MR BENNETT: That is what was cancelled, your Honour. He had two visas. The first was his entry permit, which was continued in effect as a visa by regulation 4. That is what we cancelled. That was granted to him as an actual grant by someone who put a stamp on when he arrived, and it was cancelled. The deemed visa is only cancelled by virtue of section 501F(3). So the Minister is taken to have decided to cancel the other visa, but the power to cancel a visa which was granted was only exercised in relation to the one that was granted. So a problem does not arise, when one goes through it. I should have given that answer more quickly, I am sorry.

As my learned friend pointed out this afternoon, what happened took place in two stages. The first decision was made consequent upon the document at page 120 of the application book. The recommendation that was made there, what the Minister was asked, was indicate if you wish for a submission to be provided to consider possible cancellation and, if so, under section 501(2) or 501(3). That is not, in any real sense of the word, an operative decision.

The Minister is given certain powers under 501(2). The Minister is given certain powers under section 105(3). The Minister may decide, without making a decision subject to review, to consider what to do under one or the other. When that decision is made, questions of section 75(v) come in. Until that, it is nothing more than a decision to look at a matter.

As was said in Hot Holdings (1985-86)185 CLR 149 at 159, where there is a judgment of Chief Justice Brennan and your Honours Justices Gaudron and Gummow, which draws the distinction and talks about preliminary decisions not being subject to review in that way. It is like a decision to prosecute, or a decision to embark on consideration of something. So one can ignore, for present purposes, that question.

KIRBY J: It does raise the question in the mind - it may be an irrelevant question - as to why the officials who previously did not consider it necessary to proceed, or even applicable to proceed under the emergency national interest provision, suddenly discovered this provision and put that before the Minister.

MR BENNETT: Yes. Your Honour, the answer to that is that, first of all, that suggestion is not made against us by our learned friends.

KIRBY J: He does say that this is an unreasonable decision.

MR BENNETT: He does.

KIRBY J: We are tracing the history of it here and how it came for the Minister to make what is said to be an unreasonable decision.

MR BENNETT: Yes. But, your Honour, the inference equally open is that the matter before Justice Callinan directed the minds of various people to the fact that there were two provisions and that if it were considered more appropriate to use the second rather than the first, then the issue which had arisen would not arise and would not have arisen and therefore consideration was given to that. There is nothing wrong with that.

KIRBY J: Well, you see, if the national interest provision is as the Minister proposing it within the Act explained: a matter for emergency, you do not give natural justice because it has got to be dealt with quickly, it is a special provision, it is personal to the Minister, it is under these conditions, suddenly this is discovered in this case.

MR BENNETT: Your Honour, that is a criticism of the first decision. It is a criticism of the failure to notice it the first time, rather than of to use it in the second time.

CALLINAN J: The basis of my decision was misrepresented, too, the natural justice.

MR BENNETT: Can I just show your Honour that? It is at page 120. It is paragraph 7 and my learned friend made that submission, but in fact it does not refer to your Honour's decision at all. What it says is that:

Incorporated in the Ministerial submission.....Information in these reports were adverse to Mr Taylor but were not put to him.....This was a breach of the rules of natural justice, which is a ground for the High Court to set aside a decision.

In other words, something that might have been:

As a result, on advice from the Australian Government Solicitor, the Department decided to withdraw from litigation -

as it did. Now, it is not suggesting that your Honour decided that. It is not misrepresenting your Honour in any way.

CALLINAN J: I could not decide that. I was only considering whether to grant an order nisi. The matter was not going to be finally decided by me.

MR BENNETT: Yes, but - I am sorry, your Honour? I did not hear the last thing your Honour said, I am sorry?

CALLINAN J: I said the matter was not going to be finally decided by me.

MR BENNETT: No, it was not, your Honour. But, in any event, there is no misrepresentation. The paragraph does not refer to your Honour's decision either directly or indirectly. He says it:

is a ground for the High Court to set aside -

There is a concession in that paragraph that there was a breach of the rules and as a result the Department withdrew the matter.

KIRBY J: It would be quite wrong to draw an inference from this course of events that the departmental officials formed the view, "We will teach this person to cause all this trouble. We will teach this person to take this to the High Court and reveal our error. We will teach them by making sure that there is no possibility that the issues which are relevant to natural justice are considered in his case". That would be quite a wrong inference to draw.

MR BENNETT: Totally, your Honour, and if that inference had been suggested by my learned friend at any stage evidence could have been put on in relation to it.

KIRBY J: It is suggested, at least to this extent, of saying this is an administratively unreasonable decision by the Minister at the end of this process.

MR BENNETT: But not for that reason, your Honour. If that were the reason which had been put, that is something which, under the basic rules of - - -

GUMMOW J: It is an argument - - -

MR BENNETT: It is an allegation of fraud, your Honour.

KIRBY J: We are talking of natural justice now.

MR BENNETT: Yes. It is an allegation of fraud which we were never given the chance to answer.

KIRBY J: You are saying this is on the basis of natural justice which this particular prosecutor was denied by the course of the legislation which was invoked? You are asking for natural justice which you denied the prosecutor.

MR BENNETT: Your Honour, it is a different context and we conceded, when we appreciated we had denied natural justice, that it was inappropriate to proceed further. But the suggestion your Honour made is one which, in my respectful submission, is not the most natural inference. It is not an inference one would draw in the absence of any evidence and certainly not one would draw without giving an opportunity for it to be dealt with by evidence, as it could have been had it been raised.

McHUGH J: But you have to face up to the question how could any rational person think that it was in the national interest to - - -

MR BENNETT: I am going to come to that. The next matter concerns that and one needs to look at two things, the meaning of "national interest" in the application of this particular case. The meaning of the words, of course, takes colour from their contents. It is no use looking at colliery cases and saying that there is a need to have coal fires in people's homes - - -

McHUGH J: Well, exactly, but it was your side that referred to the colliery cases.

MR BENNETT: Because, your Honour, there was not much else to refer to.

HAYNE J: It seemed a good idea at the time, Mr Solicitor.

McHUGH J: That is one aspect of the decision which is misleading. I would have thought the Minister thought the High Court of Australia had expressed that view about the meaning of national interest.

MR BENNETT: Your Honour, national interest, in my respectful submission, is no more than the interest of the community or a significant part of the community. It does not require the interest of the community in some sense as a polity only, and if one thinks of the traditional examples that my learned friend concedes, that is so.

Suppose one had a person who was a saboteur who was blowing up defence installations or blowing up electricity substations. Such a person would be causing damage to individual people as well as to the community as a whole and it might well be seen as a matter of emergency or urgency to remove that person from Australia. Why is a mass murderer different, a serial killer or a serial rapist and then, of course, the next example is the present one.

May I just say this about this case. My friend, not unnaturally, has not said a great deal about the precise details of what the applicant was convicted of. The details are set out in the material which was before the Minister which involves the judgment of the trial judge when he pleaded guilty. He pleaded guilty to eight offences with four different boys, the youngest of whom was nine. In at least one case it was over a period of time and there were five other offences which he asked to have taken into account. This was not one casual act. This was a course of conduct over virtually the whole of his adult life.

McHUGH J: But how is the national interest going to be advanced by deporting him? I mean, supposing he had happened to be a citizen and he had done it, would the national reputation of Australia have suffered because he remained here?

MR BENNETT: No, your Honour, it is not national reputation. It is the risk to individual people. It is the risk to other children. It is as simple as that.

McHUGH J: Is that a matter of national interest?

MR BENNETT: Yes, your Honour.

McHUGH J: It is a matter of public interest, no doubt, but national interest in this context?

MR BENNETT: That is why I started by making the submission I made about the meaning of "national interest". It is significant, your Honours, that in the material which was before the Court, at page 149, after the descriptions of the offences, there is a reference to the risk. That is dealt with in two sections. There is a section headed "Personal Adjustment" at line 12 and after referring to his unfortunate childhood and various matters, it says at line 20:

Since early adulthood Mr Taylor has sought out children for companionship and sexual release. He finds it difficult to form close relationships with his peers. Mr Taylor states that he has never had a romantic or sexual relationship with another adult, his only sexual contact with another person occurring when he sexually abused young boys.

Then at the bottom of the page under the heading "Risk of Reoffending":

Mr Taylor has a number of risk factors for reoffending, including male victims and the fact that some victims were not related, even apparently choosing some victims opportunistically. The degree to which he experiences arousal to young male children has not been assessed, but it is noted that he began offending against young boys at a young age and he has not experienced a relationship with an adult. Deviant sexual preference would greatly increase his risk of reoffending.

Then there are all the difficulties that would arise to reduce the risk of re-offending:

not living near schools, parks, sporting grounds, video arcades.....

not living in accommodation.....such as caravan parks or blocks of units -

et cetera. Why is the Minister not entitled to say, we ask rhetorically, that this is an emergency situation?

McHUGH J: This is a report given on 8 April 1999 and the Minister makes a decision long after.

MR BENNETT: Yes, your Honour.

McHUGH J: In denial of natural justice, with this man given no opportunity whatever to give any explanation or - - -

MR BENNETT: That is the statutory effect, your Honour.

McHUGH J: It may be the statutory effect but you say that a report written while he was in gaol almost 18 months earlier, a report without giving him any opportunity to answer it, is sufficient in the national interest to deport him, knowing that his whole history is that he lives at Gunnedah?

KIRBY J: And that the prison governor has said that he was a productive and useful member of the work gang and that the industrial report spoke of:

I believe that his past is now past, and re-occurrence of his former problems is highly unlikely -

and that he has a dependent mother whom he looks after and that the people in Gunnedah say they are quite happy to have him returning to their community.

McHUGH J: This a pathetic human being with no friends, whose only sexual relief is with children, his behaviour obviously quite disturbing, and he is sentenced to six years by the judge. But to say it is in the national interest to deport this pathetic creature - really. You may be right, Mr Solicitor, but it seems to me a large proposition.

MR BENNETT: The question is not would your Honour come to that conclusion.

McHUGH J: No, it is a question whether any rational person could come to that conclusion, that it was in the national interest to deport this pathetic creature who has lived here for 33 years.

MR BENNETT: That is a fair way of putting the question, your Honour, and, we would submit, that that question would be answered differently by different people and there would be rational people and reasonable people on both sides. There were factors which favoured it not being in the national interest. There were factors that favoured it being in the national interest. The factors that favoured it being in the national interest were strong factors. On any view of it, because of the matters I have - and because very much of what your Honour has put to me, there was a significant risk of his re-offending. Why is a Minister not entitled to say, "It is in the national interest that Australian children should not be interfered with in this way, in the future"? And if that results in tragedy for him and his family, that is the lesser of the two evils, the national interest - - -

McHUGH J: Yes, but I am not sure that that is the same thing as the national interest.

MR BENNETT: Well, your Honour, I addressed your Honour on national interest. In my submission, it is covered. There would be national interest in each of the examples I put to your Honour in succession.

KIRBY J: But it is not only the national interest. It is the national interest in a context that is emergency. It has to be dealt with quickly without the delays that attend natural justice considerations. Now, what was the emergency here? It did not occur to the officials originally. Only after Justice Callinan's order did it occur to them.

MR BENNETT: The word "emergency" was a characterisation placed on it. It does not appear in the Act.

KIRBY J: It was by the Minister who introduced it into the Act, recommended it to Parliament. There are some times when it is just too urgent.

MR BENNETT: Yes, and, your Honour, why could not a reasonable person say the risk of one child being abused by this person is sufficient, and that could happen tomorrow? When one looks at the number of cases involved and the risk of recidivism, in this case, bearing in mind he is a person with no adult friends and so on, in my respectful submission, the Minister is entitled to form that view.

GLEESON CJ: Just remind us, at the time the impugned decision was made was he on parole?

MR BENNETT: Yes, your Honour.

GLEESON CJ: And I do not think we have been told what were the terms and conditions of that parole.

MR BENNETT: My recollection is that there is evidence that it involved reporting conditions and submitting to certain forms of treatment and - - -

GLEESON CJ: And not associating with certain kinds of people.

MR BENNETT: Presumably. I am not sure. I have not checked that, your Honour, but one would expect that in the ordinary course.

KIRBY J: Presumably he must have been complying with those conditions or the parole would have been revoked.

MR BENNETT: It is not suggested that he was not, your Honour.

HAYNE J: Does the proposition then come to this breadth, that it is open to the Minister to conclude that it is in the national interest to remove from Australia any offender who has committed an offence against the person who is at risk of re-offending?

MR BENNETT: That would put it more highly than I would put it, your Honour.

HAYNE J: What is the qualification that your submission permits, or as I would understand you perhaps have to go, require?

MR BENNETT: Your Honour, reasonableness cannot be defined in terms of precision. I cannot say two boys would be all right, eight boys is over the odds. I cannot say at what point the line is crossed. But, as my friend said with his submission about not knowing when day begins and night ends, but knowing when midnight is, knowing that midnight is night, in the same way here. One has to look at these facts and say you have, as Chief Justice Gleeson says, a pathetic person, a very sad person; there is no doubt of that. But a person who, on those facts, it does not take much to see, even apart from the expert reports, that there is a significant risk of recidivism.

McHUGH J: Well, I know from reading for the purposes of another case that apparently paedophiles have a very high rate of recidivism, and without treatment it seems that there is a very high probability that they are likely to re-offend. But on that basis it would seem that even one offence would qualify - - -

KIRBY J: Or none, simply a propensity.

McHUGH J: A propensity would qualify you for deportation.

MR BENNETT: Propensity without conviction was sufficient in the case of Re Wentworth for different purposes, a different type of propensity, of course. But, indeed if one looks at the character test, it does not require conviction; there are other ways it can be satisfied. But, obviously, there are questions of degree, and obviously at some point, a reasonableness line is crossed. In this case, it is not crossed.

GLEESON CJ: I take it from the way you are putting your argument that it is common ground between you and Mr Brereton that the question of the national interest was to be considered by reference to this particular case. You do not seem to be putting an argument that the Minister might have formed the view that it was in the national interest as a matter of policy that people convicted of offences like this should be sent out of the country.

MR BENNETT: Your Honour, clearly there must come a point where one can say simply looking at these convictions without more, that is enough. If one had, to take an example, an example which would fall within my friend's definition, a person who had blown up 21 defence establishments and was caught, one could say, "I do not need to know any more, that is enough", because it is clearly in the national interest that we stop him before he gets to 22.

GLEESON CJ: That emphasises the fact that there is common ground between you and Mr Brereton. The way you answered my question accepts the proposition that you consider the national interest in terms of the individual offender. There is a possible alternative point of view, but it is not one that you are contending for.

MR BENNETT: I am not putting it as that one can do it purely in categories.

McHUGH J: I can understand an argument that says, "Well, we have a blanket policy that it is in the national interest that all these people should be put out of the country". People may have strong disagreements about it, but if you are going to do it on a case-by-case basis and look at an individual who lives at Gunnedah - and apparently has hardly moved outside of a few miles circle around Gunnedah - and say, "Well, it is in the national interest to get rid of this person", that strikes me as a large proposition, Mr Solicitor.

MR BENNETT: Well, your Honour, if there was a mass murderer living in Gunnedah and slowly killing all the citizens of Gunnedah one by one, one could apply the same thing. The fact that he had never killed anyone who did not live in Gunnedah, if he had killed a hundred people, it would hardly be something which would prevent it being in the national interest to deport that person.

GLEESON CJ: Do you know what the population of Gunnedah is?

MR BENNETT: No, your Honour, but I suspect around a few thousand, the low thousands, but I do not know.

GLEESON CJ: Yes. There is a limit to the number of young boys there.

MR BENNETT: That is obviously part of it. I did not say that but that is obviously part of it. It is contrary to the national interest that young boys in Australia, even if they all live in Gunnedah, should be interfered with in this way. In fact, one of the four boys in question did not live in - I think one was at Coffs Harbour but the - - -

McHUGH J: Let us move away from the subject. Is it in the national interest that every child in Gunnedah should get a university or a secondary school education? Would you say it was in the national interest?

MR BENNETT: Probably, yes, your Honour. One of them might be Prime Minister of Australia or Chief Justice.

HAYNE J: That may identify the difficulty, may it not, exemplified at application book 114, that you slide between protection of the community, by reference to Gunnedah, and protection of the Australian community, just as in Justice McHugh's example interests that each secondary school child in Gunnedah should have opportunity to go to tertiary education could be said to be in the national interest, if that was national policy, but not if it is the policy of the Gunnedah Shire Council.

MR BENNETT: No, precisely, your Honour.

HAYNE J: But here this is cast in terms of protection of the Australian community.

MR BENNETT: Which includes Gunnedah.

HAYNE J: Just so, Mr Solicitor, "includes", is not defined by Gunnedah.

MR BENNETT: No, but it is in the national interest that someone does not blow up the whole town of Gunnedah.

GAUDRON J: You have not been there.

HAYNE J: There will be stern letters from the Shire President, Mr Solicitor.

MR BENNETT: Yes. But something does not stop being in the national interest because its effect is primarily local. It is as simple as that. It is in the national interest that a town not be blown up or that a large number of people there not be the subject of - - -

GLEESON CJ: That is really why I asked you the question that I did about the basis on which you are putting the case. It would be possible, perhaps - but you do not put your case this way - it would be possible to say it is in the national interest that if an individual is thought to be likely to continue predatory behaviour towards the young male children of any small locality, as a matter of policy, people of that kind should be deported, if they can be deported.

MR BENNETT: Yes, your Honour.

KIRBY J: Or young female children, I would hope.

MR BENNETT: Yes.

GLEESON CJ: But that is not the same as saying, which I understand you to be saying, that when you look at this particular case it is in the national interest that this particular person be deported.

MR BENNETT: No. Well, there is a gentle slide. When a sentencing judge sentences a person, the judge may say, "These are the reasons why your crime deserves this sentence". The judge may say, in addition, "In my view, this type of crime requires a severe penalty". Both those are, in a sense, relevant to considerations in sentencing.

McHUGH J: Yes, I know, but that underlines the point. Part of the sentencing process has a deterrent effect and so it affects people, generally, and if you had a national policy of saying, "Well, it is in the national interest that you should have a blanket policy of getting rid of all these people, irrespective of the facts and circumstances of the individual's case". That is one thing. But once you say, "It is in the national interest to get rid of this individual because of what he has done", then it seems to me you are in a different area of discourse.

MR BENNETT: Your Honour, in my submission, the two slide into each other.

HAYNE J: There was a deal of flirtation with it at paragraph 16 at page 116.

MR BENNETT: And paragraph 10 at page 114 which also involves - yes. Paragraph 16 is in a slightly different category but paragraph 10 at page 114 illustrates the slide rather clearly. Suppose one put it this way - suppose the Minister said, "In my opinion, people who commit large numbers of offences of this nature, where there is a serious prospect of recidivism, ought to be deported unless there are extreme extenuating circumstances. Now, that might be a view which was taken too.

KIRBY J: Yes, but if you take this section, if you take this route, the extremely extenuating circumstances do not arise. That is part of the complaint, that the route is not available because of the nature of this type of case.

MR BENNETT: Your Honour, by "extenuating circumstances" I did not mean to refer to factors making the offences less morally blameworthy. I was rather referring to factors making it less likely that the offence would occur in the future, for example, if he was now handicapped in some way which made it absolutely impossible for him to leave his home. There are all sorts of ways in which - - -

KIRBY J: That would not be available if you take this route. On your theory of this case as qualifying for this route, even your extreme extenuating circumstance cannot be considered.

MR BENNETT: Your Honour, it might.

KIRBY J: He has qualified for the offence, character test. He must go.

MR BENNETT: It would be relevant to the national interest. If one had the saboteur who had a - - -

KIRBY J: Well, that is emergency. That is national security.

MR BENNETT: If that saboteur had now had his hands chopped off in an accident so he was totally unable to continue any sabotage that would no doubt be very relevant to whether it was national interest.

KIRBY J: He could still go round plotting.

MR BENNETT: I am sorry, your Honour.

KIRBY J: He might still go round plotting and getting other saboteurs.

MR BENNETT: He might, your Honour, but it would be relevant to national interest.

GLEESON CJ: If the offence that the person was committing involved putting poison in Panadol then it may well be obviously in the national interest to get him out as quickly as possible.

MR BENNETT: Yes.

GLEESON CJ: But that is a very different case from the present, is it not?

MR BENNETT: Yes. There are an infinite variety of cases which can arise under this section but the national interest, in my respectful submission, is demonstrated by the nature of the offences and the risk of recidivism. Of course, it is not confined to Gunnedah in this sense: certainly he has lived there; he is likely to live there but boys come to Gunnedah. He may leave Gunnedah. As I have said, one of the offences was in Coffs Harbour. It is not as if it is absolutely confined to the microcosm of Gunnedah for this purpose.

At the end of the day, one has to say not, "Would I have regarded this as being in the national interest?" but "Could a reasonable person have regarded it that way?", or as Justice McHugh says, "a rational person". That is a question which we are content to answer. In my respectful submission, the answer to that question is that it is capable of being in the national interest.

GLEESON CJ: How long do you expect to require to complete your submissions, Mr Solicitor?

MR BENNETT: Your Honour, I have to deal with the question of construction and the reasons my friend put for the Minister's error; I have to deal with the other point. I would think about half an hour, your Honour, half an hour plus.

GLEESON CJ: I am sorry to say, Mr Jackson and Mr Keane, that we are not going to have the pleasure of listening to you this afternoon, but we will do the best we can in the morning. If it suits your convenience to ask for a marking tomorrow morning, then that could be arranged. Otherwise, you probably have not got anywhere else to go.

MR BENNETT: There is a short question of construction which is not of enormous importance in this case which my friend addressed on at some length, in relation to section 501(3)(d), where my learned friend submitted that what had to be in the national interest was the use of the 501(3) procedure, rather than the cancellation of the visa and its consequences. In my respectful submission, that is just not so. My friend's first argument was based on the definite article, "the", and he said "the" refusal or cancellation is refusal or cancellation under subsection (3). We would submit that it is rather more specific and that the definite article simply means the refusal or cancellation in the circumstances, and that one does not read it the way my learned friend read it.

His second reason was the reference to national interest. That, in my respectful submission, is equally capable of applying to the cancellation itself.

The third was the second reading speech. Could I just say this about the second reading speech: the passage at page 1233 which is at tab 4.100 of the materials, in the first paragraph on the page, under the heading "Emergency cases" goes on to say this - - -

GLEESON CJ: Are these the materials you are referring to?

MR BENNETT: Yes, your Honour.

From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community.

We note the words "the community" used there.

These people may be threatening violence or some other act of destruction, or have a prior history of serious crime.

That is very general.

In these emergency circumstances, the minister -

et cetera. So, the "emergency circumstances" can simply be "a prior history of serious crime". It is not - - -

KIRBY J: But "emergency" connotes it has to be done quickly. You have emergencies, you have ambulances, it has to be done immediately.

MR BENNETT: Well, your Honour, you have someone who has been behaving in a particular way for his whole adult life and who has done it with a large number of people - - -

KIRBY J: But you completely ignore the statement of the governor, of the people within the prison and of others, presumably his parole officers. I mean, you completely ignore that. That is what sentencing is for. He has been sentenced and he has been punished according to our law.

MR BENNETT: Well, your Honour, there may be a question about the relevance to the issue of his conduct of the prison governor. There is obvious absence of opportunity in prison for recidivism.

GLEESON CJ: Having regard to his propensities, it is not surprising that he did not have much opportunity to pursue them in prison. But, it is not as though this was an order that was made in circumstances where somebody was saying, "This person is going to be released from custody next week and when he gets out, he is dangerous. We have to move quickly to get rid of him". Now, I would have no difficulty understanding how that would be an emergency situation, and even in relation to an individual offender, without regard to questions of policy about classes of criminal generally. But that is a long way from this case, is it not?

MR BENNETT: Let me give you another type of emergency situation. Let us take our saboteur and assume there is, as here, a slow process and a fast process, and a public servant, misguided, gives advice to a minister, or gives report to a minister, and the minister looks at it and starts the slow process and then the process derails for one reason or another, and then it comes to another public servant who looks at it and says, "But, this person could offend again tomorrow. All this time you have allowed to go by, that is a terrible thing, we have made a mistake, we should have gone under the other section". That is equally open, that type of influence. It is totally consistent with it being an emergency.

McHUGH J: But, what Parliament is told about this:

From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community.....In these emergency circumstances, the minister, again acting personally, should have the power to act without notice -

Now, why should we not construe the power having regard to what the minister has said about it, and as to how Parliament would have understood it?

MR BENNETT: Those words, your Honour, have to be read in the light of the preceding sentence.

McHUGH J: Which preceding sentence?

MR BENNETT:

These people may be threatening violence or some other act of destruction, or have a prior history of serious crime.

McHUGH J: Yes, I know, but the sentence that goes before and after it indicates, first of all, it is a power that is only going to be used rarely. Having regard to the number of convictions for paedophilia in this country, you can hardly say it is "from time to time there will be emergency cases". The very notion of emergency suggests that action is needed; action is needed so speedily that we do not even have time to give the person an opportunity to defend him or herself.

MR BENNETT: Your Honour, that second leg is a consequence rather than a part of the process of determining whether one is in the class.

KIRBY J: It is part of the package; it is that route. It is a composite idea. You do not split up provisions of the subsection, you have to look at the composite.

MR BENNETT: Yes, but in determining whether something is in the national interest, one does not have to say - it would not stop it being in the national interest that one might be able to achieve the result by going the subsection (2) route.

HAYNE J: But does the expression "national interest" take some colour from the speed with which the power to detain, the obligation to detain, is engaged? That is, is the national interest coloured by the fact that under 501(3) there is immediate detention, whereas under 501(2) there is a period between the wheels turning and detention biting?

MR BENNETT: Well, your Honour, it may affect them, but it certainly is not a decisive or the major consideration. In my respectful submission, the question which is asked is, "Is it in the national interest that this visa be cancelled? If so, there is a procedure which only has a remedy under 75(v) and not the other statutory remedies, and which has certain other consequences".

McHUGH J: But given the power under 501(1), 501(2), it all indicates that subsection (3) is only to be used in very special circumstances where, notwithstanding that is a person of bad character, or suspected of being of bad character, the protection to the community requires that person's immediate incarceration. Here you have a person going about his or her business and suddenly the Minister can have that person taken off the streets and put into custody.

MR BENNETT: Yes, your Honour, and a person who may, if allowed on the streets for one day, do an act causing irreparable damage to someone else or to a number of other people.

McHUGH J: I would seriously doubt, if the Parliament of Australia would have allowed subsection (3) to be produced in that form if they had been told that it could apply to somebody who is likely to offend at some time in the distant future.

MR BENNETT: Well, your Honour, it depends on one's views of the relative importance of prevention of offences and justice to offenders, and there is a balance.

McHUGH J: But you have your ordinary route. It is 501(2).

MR BENNETT: Yes, your Honour, during which things may happen, and I think this is not a case of a person who has done it once or twice, his whole adult life, a person who does not have adult friends.

GLEESON CJ: But nor is the case of a person who is about to be released next week and is a notorious dangerous paedophile. It is about a person who has been out - how long had he been out?

MR BENNETT: Your Honour, may I just say that at the time of the first decision he was still in gaol.

GLEESON CJ: Yes.

GAUDRON J: He had been released.

MR BENNETT: I am sorry. I have a disagreement behind me. I will have the dates checked and I will give your Honour the dates.

GLEESON CJ: By the time the impugned decision was made, by the time the decision - - -

MR BENNETT: The impugned decision, there is no doubt, he had been released, but the actual dates I will have checked and I will give your Honour that. There is a chronology, your Honour, and that perhaps will provide an accurate answer.

Now my learned friend submitted that the Minister was misled by omission as to the law. The relevant passage in relation to that is at page 121. What is put against me in paragraph 14 on page 121 is that that paragraph is misleading because it fails to point out that the after-the-event challenge to a section 501(3) decision cannot be on discretionary grounds, but only on failure to satisfy the primary test.

The answer to that, we would submit, is simply this, that one cannot assume that the Minister does not go to the sections. One cannot treat it as being a misrepresentation of law every time every single consequence of a decision that flows from the sections of a statute is not brought to the Minister's attention.

GLEESON CJ: But you cannot assume that if the person making the report says "See sections 501 and 503", the Minister does not look at sections 501 and 503.

MR BENNETT: Precisely, your Honour.

GLEESON CJ: It seems to be treating the report as though it said, "Don't see sections 501 and 503".

MR BENNETT: Yes.

GAUDRON J: There is, however, the absence of any other reasons when reasons are required to be given.

MR BENNETT: Your Honour, all that is required to be given is reasons which are the reasons specifically about the person which are in there. The reasons that are required to be given under 501C(2) and 501C(3) are reasons which are specific rather than general, so there are some limitations on that.

KIRBY J: I took the suggestion to be that here the assistant Minister was being misled in the sense that if you just read the section and you were not a legal expert, if you read the section in the minute, you would be forgiven for thinking that the prosecutor had a real opportunity after this decision to put forward submissions. The reality was they then went through the solemn process of inviting him to do so but it led nowhere and could lead nowhere.

MR BENNETT: Well, your Honour, the report says, "See subsections (3) and (4)", and it is pretty clear what subsection (4) says.

KIRBY J: Yes, but really, Mr Solicitor, these are busy Ministers and they do not have a lot of time to be seen. They have to rely on their officials to be candid and to give them real advice.

GUMMOW J: Or a busy parliamentary secretary.

MR BENNETT: Of course the point is not taken as a point of error of law. It is not taken that way. It is merely put as part of unreasonableness and as part of a general package.

GUMMOW J: Not quite. It suggests, particularly at paragraph 13, is it not, at page 120 and paragraph 14 at 121, that the Parliamentary Secretary did not really appreciate the nature of the power that was being exercised, as to its consequences. It is put as a constructive failure to exercise jurisdiction.

MR BENNETT: Your Honour, she is told the sections and everything she is told is correct and the sections are provided to her.

GUMMOW J: Yes. It is what she is not told that is the problem.

MR BENNETT: Yes, I understand that, your Honour, but she - - -

GUMMOW J: It is rather too cute, it seems to me.

KIRBY J: Sir Arnold could have drafted that portion of the section.

McHUGH J: After all, this is a busy Minister administering the department.

MR BENNETT: One has to be careful not to treat this sort of document with such precision that the - - -

GUMMOW J: No, but this is the crunch point. These paragraphs are the crunch point.

MR BENNETT: They are, your Honour, but they refer to the sections. The complaint is something that is in the sections.

GUMMOW J: It was not apparent to me when I first read that sections that this is how it measured up until Mr Brereton took me through it.

MR BENNETT: Your Honour was not, of course, making that decision and looking at it for that purpose. Your Honour was looking at them for a different purpose.

McHUGH J: If his Honour did not pick it up.

KIRBY J: Who picks up everything.

GUMMOW J: He puts some down too.

McHUGH J: Why should one assume that a busy Minister administering the department would pick it up?

MR BENNETT: Because his Honour is looking at it for a different purpose. His Honour was not looking at it in the light of the particular submission. The Minister was looking at it for the purpose of seeing which he should do and what the consequences are and is far more likely to look at the sections with that purpose in mind. Those are my submissions in relation to reasonableness.

GLEESON CJ: Now, that brings you to the fourth ground that Mr - - -

MR BENNETT: A very short ground, your Honour. I can deal with it very briefly.

McHUGH J: You have not dealt with the "personally" point.

KIRBY J: "The Minister must deal with it personally".

MR BENNETT: Yes, I will deal with that. That is one sentence.

GLEESON CJ: Go on, let us have it.

MR BENNETT: That the word "personally" is directed to delegation of the power, for example, under section 496 and following, and is not directed to a multiple Minister. Where you have more than one person who is severally able to exercise - - -

GUMMOW J: A multiple Minister?

GAUDRON J: Yes, a multiple Minister or multiple Ministers.

MR BENNETT: I was using a shorthand expression, your Honour.

GAUDRON J: No, it is - - -

MR BENNETT: If your Honours do not wish the shorthand expression, I will set it out in full.

GAUDRON J: Did multiple Ministers - I will use it; I do not have any problem with "multiple Ministers". I have some problem with "a multiple Minister".

MR BENNETT: Yes. Your Honour, I was using a shorthand phrase.

GAUDRON J: When section 501(3) was enacted were there multiple ministers.

MR BENNETT: The section was enacted - - -

GLEESON CJ: Yes, there were, were there not? I thought we were told that there were multiple ministers since 1987 and that section only came in in 1999.

MR BENNETT: Yes. The answer to your Honour's question is yes, for that reason. The section is not intended to apply to the situation where there is more than one person who is severally able to be, for the purposes of the definition, the minister. It applies where there is, and if, assuming that one can have two people who severally are able to exercise the powers of the Minister when either does it, it is done personally. If it was joint and they both had to do it, "personally" would mean by the two of them. If it was "joint or severally" it would mean the two of them or one of them. If there was only one minister it would mean that minister.

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