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High Court of Australia Transcripts |
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 THURSDAY, 7 DECEMBER 2000, AT 10.24 AM
(Continued from 6/12/00)
Copyright in the High Court of Australia
MR BENNETT: If the Court pleases. I propose this morning to deal with some matters which arose yesterday in relation to the aliens question and then to deal with the irrelevant considerations question. In relation to aliens, there are three issues I propose to deal with, one which will take a little time, your Honour Justice Gaudron's question about dates.
GAUDRON J: And events and legislative.
MR BENNETT: And legislative events. Two which will take very little time, one dealing with the oath of allegiance and one dealing with the migration scheme. In relation to dates, I need to commence by explaining the Commonwealth's submission as to why your Honour's question cannot be answered. The Court has, on a number of occasions, in relation to the migration and citizenship issue and in relation to the Treaty of Versailles issue, if one can loosely call it that, indicated that it is not possible to put a date on evolutionary changes.
What was put to me yesterday, substantially, was that a matter of such importance as whether a person is an alien or not is something which ought not to change, particularly change adversely to that person by stealth and evolution and that it is something which one would expect to find more clearly indicated. The answer to that is this. Questions of citizenship under legislation are reasonably clearly defined, and I will show your Honours that in a moment. Questions of being a British subject under Australian law have been dealt with with some precision in legislation and are defined.
Questions of right to vote and eligibility for military service and matters of that sort are likewise clearly defined. What is not clearly defined is the question of how the constitutional meaning of the word "alien", developing in, whether one calls it denotation or conception over the years has applied to particular groups of people and, in particular, one very large group of people. The effect of that is merely that by evolution, at some time which it is difficult to define but may need to be defined in the particular cases before this Court as to whether it is before or after a certain date, people in that category may have been subject to or not subject to the aliens power.
That is not a consequence to be compared with the loss of citizenship by stealth or the gaining of citizenship by stealth. If I can put it in a slightly pejorative and provocative way, it is the mere loss or gaining of a constitutional status as opposed - - -
GAUDRON J: Which might be more important than the mere gaining of statutory status.
MR BENNETT: It is only important, your Honour, in relation to the validity of legislation, otherwise it does not impact on the individual in the same way as the other concepts do. Having said that, may I now just show your Honours what we say about - - -
GAUDRON J: Can I ask you in that context, though, what you say about the definition of "alien" in the Naturalization Act 1984 .
MR BENNETT: We say that has little significance for present purposes.
GAUDRON J: None at all. It is just a statutory definition.
MR BENNETT: Yes, your Honour.
HAYNE J: Which invites attention to what is meant by the concept of alien. At one level it can be described as a status. At another level it might, perhaps, be thought to be described as a status depending upon a relationship, a status depending upon a relationship between - using the terms in their most general sense - sovereign and subject.
MR BENNETT: Yes, your Honour.
HAYNE J: If that is so, then the question of that relationship between sovereign and subject is one which may - it may not, I do not know - include the possibility of evolution, evolution in the identification of the sovereign, evolution in the content of the relevant sovereignty. Now, I have said, and said more than once, that sovereignty is a very slippery concept and I would not for the moment wish to become hooked up in its content, but to speak of it in terms of status may not be a complete description of what gives rise to the status.
MR BENNETT: Yes. That is part of the problem, your Honour. It arises for this reason. If one puts oneself in the shoes of Australian lawyers or, indeed, this Court, in the very early years of the century, in the first few years of Federation, where, no doubt, there were many people here who were born in the United Kingdom and living permanently in Australia who had come here before Federation or, I suppose, come here after Federation. It may be, on one view of it, that, although no one suspected it at the time, they were within the aliens power.
On another view of it, if one takes the more generally accepted views as to sovereignty, they were not because, if one takes the view expressed by Justice Murphy in this Court, of course they would have been aliens then. His Honour's view was that there was complete sovereignty from the date of the coming into effect of the Constitution on 1 January 1901.
KIRBY J: But it would be consistent with that view to take the view which was certainly reflected in the Constitution in many places, including in the Oath of Allegiance, which is appended to the Constitution, that though Australia had sovereignty, it had a common sovereign and that therefore the allegiance was to the common sovereign.
MR BENNETT: Yes. In the same way as in the Stepney Petition Case, the Hanoverians living in England, because they had the same sovereign, were not aliens.
KIRBY J: You seem to be fascinated with the Hanoverians.
MR BENNETT: Well, your Honour, it is - - -
KIRBY J: It is not really analogist, I think.
MR BENNETT: It is not analogist, but it is useful as demonstrating a number of propositions.
KIRBY J: Undoubtedly the Hanoverian monarch was a foreigner, whereas the sovereign is not.
MR BENNETT: There are questions of definition in relation to a monarch who is, as involving questions of citizenship, which perhaps we do not need to go into. There are some further specialised questions there. But, if one then goes through the years of Federation between 1901 and 1948 - I do not propose to take your Honour through these. Your Honours have an article which is referred to in footnote 36 of our submissions, by Mr Brazil entitled, Australian Nationality and Immigration, an article published in 1984, as Chapter 8 of International Law in Australia. Without going to that in detail, I can just indicate a couple of highlights as to points where one might say on one view of it that people from the United Kingdom in Australia became subject to the aliens power if they were not subject to it from Federation.
At page 215 of the article at point 2 Mr Brazil refers to an:
Imperial Conference of 1930, which declared that the common status was "in no way inconsistent with the recognition within and without the Commonwealth of the distinct nationality -
and we stress the word "nationality" there -
possessed by nationals of the individual states of the British Commonwealth.
There was a resolution passed to which, of course, Britain and Australia were parties:
"That it is for each member of the Commonwealth to define for itself its own nationals, but that, so far as possible, those nationals should be persons possessing the common status, though it is recognized that local conditions, or other special circumstances, may from time to time, necessitate divergencies from this general principles."
One then had the 1931 Statute of Westminster, which was not then adopted in Australia but which, of course, could have been. There was power to adopt it, and what significance that has for the sovereignty debate is, of course, a matter of controversy.
If your Honours go back to the first page of the article, Mr Brazil refers at point 5 under the heading "Nationality" to a convention in 1937, an:
International Convention on Certain Questions Relating to the Conflict of Nationality Laws negotiated at The Hague in 1930. Australia had been represented -
and Article 1 said the same thing:
It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States -
et cetera.
GAUDRON J: It is a bit different from saying it is for each State to determine under its own laws who are its aliens.
MR BENNETT: Well, your Honour, in the international sense, which may be different to the constitutional sense, the two are direct counterparts.
GAUDRON J: I know they are direct counterparts, but if by determining who are its aliens includes, as I take your submission to include, the notion that you can convert a non-alien into an alien, with only your blue-eyed baby exception and your qualification that there have got to be some Australians left, I do not read it in the same way - - -
MR BENNETT: I put it a little higher than that, your Honour. The other exception I accepted was what one might call the device exception, where in order, for example, to control traffic on intrastate roads the Australian Government passed a law saying, "All people who drive on the roads are aliens", and then laid down a series of traffic rules. that would clearly be invalid because it would not be within the concept of alienage and there would be a series of problems with it. I accept it an exception along those lines. But that is quite different to an emerging State defining for itself for the first time, perhaps, that people from the State from which it grew should no longer be regarded as - - -
GAUDRON J: But you do not say it ever has defined for itself in clear and unambiguous words, do you?
MR BENNETT: I am coming to that, your Honour. It has on a number of occasions, in a number of different ways.
KIRBY J: Mr Solicitor, you remember yesterday I mentioned to Mr Brereton some of the United States cases and one of them is Afroyim v Rusk, Secretary of State [1967] USSC 132; 387 US 253, and although it is not entirely analogous because it relates to a person who was granted citizenship and then he went and voted in an election in Israel and the State Department purported to refuse to renew his citizenship, some of the discussion seems to be somewhat analogous to the question of the status which a person in the transitional anomalous situation of a British subject in Australia had. It was held that:
Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained by an implied attribute of sovereignty -
and that Congress could not:
divest a person of his United States citizenship, absent his voluntary renunciation -
So that it rather lends support, at least in the context of a nation which has put all of its eggs in the basket of citizenship to the notion that you cannot just take it away, at least you cannot take it away without express or implied renunciation, and you cannot just take it away by a stroke of a pen.
MR BENNETT: Well, your Honour, I am not sure what would have happened in the United States, for example, in relation to countries like the Philippines, which were American territories and ceased to be American territories, or other Pacific islands which I think - - -
KIRBY J: I am not sure that they became United States citizens though.
GUMMOW J: The people in Papua New Guinea certainly did and I notice Mr Brazil refers to the PNG situation at page 221 and the position was that these persons cease to be Australian citizens on independence. They were not asked about it, that was it.
MR BENNETT: As one would expect, your Honour, as a matter of general international approach, whenever a part of a country splits off and ceases to be part of that country.
GLEESON CJ: What was the status of residents of Hong Kong in relation to the United Kingdom until recently?
MR BENNETT: Your Honour, it is dealt with in the basic law and in the agreement; I am not in a position to answer the question precisely.
KIRBY J: They are British protected persons, I think.
MR BENNETT: My understanding is that they ceased to be citizens of the UK as of a certain date, if they had not taken certain steps before it, but I may be wrong in saying that, and I have not checked it.
HAYNE J: At its most basic level, the question becomes, does it not, whether the dissolution of Empire, the cession of territory, the grant of independence to formerly dependent territories, carries a conclusion that those who may once have been citizens of the larger entity may, by that change, become aliens.
MR BENNETT: Precisely, your Honour, and the idea of pieces of territory changing their allegiance as a whole, by various means, is, of course, part of the history of the world: Alsace and Lorraine have gone backwards and forwards a few times and no doubt there were some changes of citizenship involved, one does not know, and New Guinea is a very clear example close to home in recent times. The problem here is that, because it has been said in the cases involving sovereignty that we cannot put a date on it in any easy way, it seems to follow that whatever might have occurred suddenly in the normal case of secession or splitting off has occurred gradually, and there is nothing surprising in that.
But may I just proceed with the legislation. I do not want to take your Honours to anything else in Mr Brazil's article. The purpose of my having done so is simply to show that there was, up to 1948, an evolutionary development in relation to Australia's international powers over this topic and this is in the context where there is a power in the Constitution over naturalisation and aliens and where, from the beginning of the century, naturalisation had taken place in Australia under legislation, although, as a British subject, but a naturalisation which as we know was not recognised or treated as making one a British subject for all purposes in the United Kingdom.
Now, we then come to the legislative history and we have given your Honours a six page document entitled Significant Legislative Developments. I will not go through this in detail, much of it is before your Honours already, but your Honours will see one starts with the 1948 legislation, which defines a British subject and defines Australian citizenship. We submit that is something which is clearly open to be done under the aliens power and that someone who was a British subject, but not an Australian citizen, is a person who was subject to the aliens power and is constitutionally an alien. Certainly for certain purposes the person was not treated that way. We know about military service, we know about voting and we have definitions in this Act itself, but so far as the aliens power was concerned, in my respectful submission, by this date at least United Kingdom citizens resident in Australia were aliens.
GAUDRON J: By 1948?
MR BENNETT: Yes, your Honour, at least. I will be saying "at least" with each of the subsequent steps as I get to them.
McHUGH J: The notion of alien was tied up with the notion of allegiance and that was recognised in the 1920 Australian Citizenship Act. Let it be accepted that at some stage as a result of evolution, the Queen became the Queen of Australia. Section 117 has to be read in that light. But it meant, did it not, that Australians who were subject of the indivisible Crown became subjects of the Crown in right of Australia, sovereign in right of Australia? What is illegitimate about taking the same view about those British subjects who were here? They were not aliens because they owed allegiance to the indivisible sovereign. When the time came that the notion of the Crown being indivisible came to an end, we attribute allegiance of Australians to the Queen in right of Australia, King in right of Australia. Why should not one take the same view in respect of those British subjects who were resident in Australia?
MR BENNETT: Because, your Honour, the aliens power and the meaning of "alien" under that power is something which is capable of subdivision and capable of being developed.
McHUGH J: But historically it was a concept in relation to allegiance. "Subject" does not fit in nicely with modern ideas of nationality and citizenship and various compromises have been made, including compromises of constitutional interpretation in respect of section 117, but should we jettison the historic notion of allegiance, which was obviously the basis of the term in 1900?
MR BENNETT: Your Honour, the historic notion of allegiance, as I demonstrated yesterday, was one with shades. There were degrees of allegiance, and Joyce's Case illustrates that. There were the four types of allegiance which I referred to, two of which were certainly, on any view of it, of a lower grade than the other two.
McHUGH J: But British subjects were in the top grade - that is, British subjects who were here in this country.
MR BENNETT: Your Honour, there may have been for some purposes, but my point is this: when one takes the power over naturalisation and aliens in the context that allegiance has degrees, that means one can have degrees of alienage. It would be perfectly open for the Commonwealth government to have passed a law at any time saying, "We will have three categories of people. We will have full Australians, half-aliens and full aliens. Half-aliens are people who owe allegiance to the British monarch but do not do so in a way having some connection with Australia, however one defines it". If one did that, that would be something one could do under the aliens power. The aliens power is not a hidebound power that says, "There are two groups of people, alien and non-alien. You are one or the other and it is absolute and no one can interfere with that legislatively".
It was a legislative power to deal with it and to deal with it in the context where naturalisation was part of the power, so the process of moving to it, and we know from the earlier decisions from it - - -
McHUGH J: Naturalisation was not part of the power. It is in the same paragraph but it is not part of the power, it is an independent concept.
MR BENNETT: Yes, I accept that, your Honour, but what that indicates is that the placitum (xix) power is not just to say "aliens must do this" or "aliens must not do that" or "have this right" or "that obligation", it is also to define because the power of naturalisation necessarily involves defining in an individual case who is an alien.
McHUGH J: No, maybe the consequence. It would open to the Federal Government, no doubt - or on one view it may be open to denaturalise you and deport you as an alien because you were born in another country, but it would be a two-step process.
MR BENNETT: Yes, it would be, your Honour.
McHUGH J: They cannot deport you as an alien without stripping you of your citizenship or - - -
MR BENNETT: That is so, your Honour, but if I had not registered as an Australian citizen that would not be so. It would be a one-step process, and that is the issue in this case.
McHUGH J: I know it is but no bell even rung to tell this appellant or people in his situation that they suddenly went from being subjects of the Queen for the purpose of section 117, or aliens. They lost their rights in respect of section 117. They could be discriminated against.
MR BENNETT: They lost certain constitutional rights, if they had them. No bell rang to tell the millions of people in Australia that they were sovereign or they were not sovereign.
CALLINAN J: When did the bell ring for Mrs Hill in Sue v Hill?
GLEESON CJ: In 1999.
MR BENNETT: Your Honour, the bell never rang for her because she at all times owed allegiance to a foreign power.
HAYNE J: When the ref got to 10.
MR BENNETT: So, the fact that it is difficult to say when the bell rang - I am identifying a number of alternative dates when it rang, but the fact that it did not ring loudly and clearly and was not on the front page of the newspapers to tell people is the same as with sovereignty and, indeed, probably the same as, dare I say, in front of Justice Kirby, the Hanoverians who no doubt did not appreciate what had happened to them until some later time.
KIRBY J: But they were foreign and they were living in a foreign country and they were speaking a foreign language. They did not have the same association with Australia, as British subjects, by our law, and as Justice McHugh has just reminded us - I had not really thought of this - by section 117; a person with 117 is suddenly removed.
MR BENNETT: Yes. In that respect they are the constitutional rights, maybe.
CALLINAN J: Why would you give them the vote? Does that put them in your halfway house, half aliens, half citizens?
MR BENNETT: No, your Honour. That is the American case I addressed on yesterday that there is no reason why one cannot give aliens votes.
CALLINAN J: I have found that American case very unpersuasive, myself.
MR BENNETT: If one can go back a few years to the - - -
GUMMOW J: We certainly know that not all citizens have had the vote. These New Guinea folk never had the vote.
MR BENNETT: Yes, precisely, your Honour.
CALLINAN J: If the New Guinea people were not living in Australia - - -
HAYNE J: They were living in an external territory of Australia.
MR BENNETT: Yes.
CALLINAN J: A mandated territory.
MR BENNETT: The same would apply if we were to cede Norfolk Island to New Zealand. The point about voting is, as was said in the American case, that there have been historical examples of countries which have said, "We will permit aliens resident in this country to vote, for particular purposes." If one could take a modern example in Australia: if the proposal some years ago for the multifunctionpolis in South Australia had gone ahead one of the things that might have been thought desirable is allowing long-term aliens resident in it to have voting rights. There is nothing wrong with that.
CALLINAN J: If you take what Justice McHugh said, these people are subjects within section 117 and they are also people of Australia within section 24 of the Constitution Yet you say that because they are people who choose the members of the House of Representatives, and, indeed, the senators - but you say they are aliens.
MR BENNETT: Yes, your Honour. There is no reason why aliens cannot be given the right the vote, or given the obligation to submit to military service, or treated in any other particular way a government chooses.
McHUGH J: Do you accept and adopt the proposition, I think it is at page 186 of 165 CLR in Nolan, that "subject of the Queen" in 117 means subject of the Queen in right of Australia?
MR BENNETT: Yes. I can recall in Street's Case there was some embarrassment when it was suggested from the Bench that that fact had been omitted to be proved in relation to the appellant.
KIRBY J: It may, in fairness, be an answer in part to the 117 deprivation that because it is now to be read as subject to the Queen in right of Australia and because, on your argument, the prosecutor did not owe allegiance to the Queen in right of Australia, but in right of the United Kingdom, that therefore he did not pick up section 117 rights. But the answer to that may be, as Justice McHugh said, the evolutionary way in which - we cannot put a time on it, but as Australia's sovereignty changed, that one would assume that by the same evolutionary and silent forces, the allegiance of those people who are here changed. They, after all, fought with Australian soldiers in the second war and in Korea and in Vietnam. They are liable to national service. They are liable to be prosecuted for treason.
MR BENNETT: Well, your Honour, so is a person who, by fraud, obtains an Australian passport never having set foot here and so is a person who is temporarily here. So the treason part - the only way the treason part assists is it demonstrates that allegiance has degrees. There is no reason why alien under the aliens power cannot have degrees or be given degrees. The reality of it, if one wants to go behind the legality, is, of course, that there are genuine degrees in this area. There are genuine degrees of association with Australia of many people who are in different types of relationship, as a matter of nationality or citizenship. The group we are concerned with today is one such group.
So we submit that at least in 1948 the creation of the Australian citizenship concept, the distinction of British subject, it may have divided the concept for the purpose of the statute, but it was within the aliens power and it dealt with people who were within the aliens power and who were aliens at least from that date for that purpose. If your Honours go to page 3 of the statutory document - - -
HAYNE J: Just before you do, the use of the expression "British subject" in the 48 Act was with a particular defined meaning, was it not?
MR BENNETT: Yes, your Honour.
HAYNE J: On one view at least then, the 48 Act may represent a point at which Australia ceased in this piece of legislation to use "British subject" as an imperial term of single meaning universal to the Empire.
MR BENNETT: Yes, exactly so, your Honour. In fact, by 1981 - let us jump ahead for the moment - when the British Nationality Act was passed, Australia was, for a short time, the only country in the world to continue to use that status. That is a point made by Mr Brazil at page 222 of his article.
HAYNE J: But the status identified in the 48 Act was a status created by, defined by, the Australian legislature.
MR BENNETT: Yes. But a status not inconsistent, we would submit, with alienage under the Constitution in the constitutional sense.
McHUGH J: But this view of the power must have developed at some late stage. Is it not significant that when we wanted to implement the white Australia policy, we did not call it the Aliens Restriction Act, we called it the Immigration Restriction Act, and we use the immigration power to exclude British subjects who could not be classed as aliens.
MR BENNETT: Yes. There were many things which were seen through different eyes at the time from the eyes that we see them through now. Justice Murphy's approach to the Constitution is a very good example of that. I know it is a view that has not been accepted in this Court, but the fact that that view can be held indicates that it is the view of people at the time as to who had what status, is not necessarily the view we take now about what the situation was at that time.
GLEESON CJ: In the late 1930s a Prime Minister of Australia informed the people of the Commonwealth that Great Britain was at war with Germany and so, in consequence, was Australia.
MR BENNETT: Yes.
GLEESON CJ: I do not remember anybody telling the people of Australia some years later that Great Britain was at war with Argentina and so, in consequence, was Australia.
MR BENNETT: No.
GLEESON CJ: When did the change occur?
MR BENNETT: Your Honour, that change probably had occurred before 1939, but if it did not, it occurred certainly by 1942 when we adopted the Statute of Westminster and, in one sense, one could say that the Prime Minister's declaration was a consequence of the fact that, although we could have chosen to adopt the Statute of Westminster, we had not done so.
So, on one view of it, there was a voluntary submission at that point, rather than a compulsory one which might have justified the proposition. If that is so, it stopped in 1942. Other views might put the date at various later times, at evolutionary non-fixed times over periods, but as everyone says, certainly by the Australia Act and probably well before. That is the best answer I can give your Honour.
McHUGH J: But if you think of the things that gave impetus to it, it was not merely the development of Australia as a nation taking its independent place in international affairs but it was also the influx of migrants from so many countries. No doubt, among what Kenneth Tynan once called "the chattering classes" there would have been a perception fairly early on that Australia developed as an independent nation but the widespread acceptance among the community of that nation probably did not occur until some time in the 70s.
MR BENNETT: It may well be that even in 1939 the statement by the Prime Minister might have been regarded as questionable in a court of law had it been ever so treated, but the answer probably lies in the failure to adopt the Statute of Westminster until 1942 for the reason I have given. Of course, as your Honours know, there is an argument based on the Treaty of Versailles that that was the first time the international community recognised us and so on.
One date which is omitted from this summary and, perhaps, should be inserted in the middle of page 3 is a reference which appears in the article by Mr Brazil at page 222 point 4 which refers to some amendments in 1969 under which there was an amendment to the Citizenship Act which altered the words "British nationality" to "the status of British subjects" and the phrase "British subjects" was changed to "people having the status of British subjects". One is changing from being a widget to a deemed widget, if one likes. It is a change which may be regarded as having some significance. It is certainly a significant step along the way.
There was also a provision in 1969 which Mr Brazil refers to which said that:
whenever Australians are required to state their national status, it will be sufficient to describe themselves as "Australian citizens".
That is a smaller straw in the wind.
There was then, as your Honour Justice Gaudron put to me yesterday, the 1973 amendments, first of the Electoral Act, reducing the age of enrolment to 18, and that, of course, converted a number of people to electors who were in various categories.
In October 1973, there was the Royal Style and Title Act. In December 1973 there was an amendment to the Citizenship Act, eliminating certain methods of acquisition and requiring people:
to swear allegiance to Her Majesty Elizabeth the Second, Queen of Australia.
Then in 1981, there was an amendment conferring:
on "Australian citizens" an entitlement to enrolment and to vote (section 39).
Then there were amendments to the Migration Act and so on, which - - -
GAUDRON J: Yes, let it be assumed that the view were taken that until 2 April 1984 the definition of "alien" operated as an exercise of legislative power to define who are aliens for the purpose of the aliens power and that, therefore, until 2 April 1984, this prosecutor and others of his class were not aliens. What do you point to thereafter?
MR BENNETT: Your Honour, that, of course, is contrary to our primary submission, but the - - -
GAUDRON J: I know, because your primary submission really is he was an alien when he arrived and, if not, at the latest, by 1948.
MR BENNETT: Yes, we say 1948, and we do not need to go behind that.
GAUDRON J: You may.
MR BENNETT: I may, yes.
GAUDRON J: Yes, let it be assumed on April Fools' Day 1984 this man was not an alien.
MR BENNETT: Well, your Honour, he was a day later.
GAUDRON J: Simply by the deletion of a definition.
MR BENNETT: Your Honour is assuming that by a definition he ceased to be an alien. By the deletion of the definition, he became one again.
GAUDRON J: No, no.
HAYNE J: In what sense do you say "became an alien" or "did not become an alien"? Came within the reach of the Act, I can understand, but if you are talking in a constitutional sense, then, for the moment at least, I do not understand the debate that you are having with Justice Gaudron.
GAUDRON J: Perhaps it is a failure to understand what I am saying. I am saying, let it be accepted that in the context of a Nationality and Citizenship Act where various provisions were made and there was a definition of "alien", that it is to be taken that the Act as a whole, or to the extent that it was relevant, was an exercise of power pursuant to the naturalisation and aliens power, to the extent relevant.
MR BENNETT: Well, your Honour, there are two - - -
HAYNE J: In constat that there could not be some other exercise of that power; it does not exhaust the power.
MR BENNETT: No.
GAUDRON J: No but, Mr Solicitor, you concede, I think, that it is for the Parliament to define who are and who are not aliens.
MR BENNETT: Well, your Honour, in one sense, the answer to your question - - -
GAUDRON J: And the question is if it be taken that a person is defined as - that as a matter of the exercise of that power, a person is not an alien, the question then is, what is necessary, either constitutionally or even simply as a matter of construction of legislation to change that constitutional status?
MR BENNETT: All that is necessary, your Honour, is a statutory redefinition.
GAUDRON J: Which was not there.
MR BENNETT: Your Honour, if one imagines that the 1984 amendments had been enacted as in primary form on 1 January 1901, then it would have been clear, in my submission, that the people in the position of the prosecutor were aliens and were always aliens under Australian law. The fact that it is passed as an amendment and changes people's rights does not alter that. That was the view taken by six Justices of this Court, with your Honour dissenting, in Nolan.
GUMMOW J: That is what amazes me actually.
MR BENNETT: The passage in Nolan 164 CLR 178 is at page 186. I do not know if there is any advantage in my going to it again. In the middle paragraph on that page the submission was made there as here:
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 the 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 1958 did not, particularly in the light of the decision in Pochi, confine the meaning or denotation of the word -
Your Honours, we respectfully adopt those two reasons.
Conceptually it may be that one had to, in relation to the applicant, go through the two steps that Justice McHugh has referred to. If one looks at it that way, this is the first step. The aliens power enables one - and I have taken your Honours to the earlier authorities - to denaturalise or to convert into an alien someone who is not. I have taken your Honours to the passage in Pochi and the passage in Nolan about that, the applicant clearly being, on any view of it, within those categories, the eligible categories. The power extends therefore. Once it is done, once the construction of these Acts has that result, it follows that is subject to the full force of the aliens power. I referred to the Australia Act, which is another possible date.
KIRBY J: Which version of the Australia Act are you referring to?
MR BENNETT: The Commonwealth version for this purpose, your Honour.
GUMMOW J: That is what we said in Sue v Hill, which is a binding decision at the moment, but everything seems to be in flux.
KIRBY J: As long as you are not referring to a foreign Act.
MR BENNETT: I am referring to the Commonwealth Act, your Honour.
McHUGH J: But what do you say about the passage at the bottom of 185 to 186 in Nolan? Their Honours dismiss altogether a reference to "subject of the Queen" in 34(ii) and 117 and say:
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 -
That can be accepted but it cannot affect the consequences of the emergence of Australia as an independent nation but they may say something about whether or not persons who are subjects of the Crown before this emergence and who were resident in Australia were aliens. The Court just simply dismisses it. I am not sure that you can, particularly when you have a constitutional right in effect under 117.
MR BENNETT: Your Honour, the constitutional right can disappear in a number of ways. Everyone accepts it can - - -
McHUGH J: Well, I think in strict theory it is not a right, is it, under 117? You can strike down a law. I am not sure. I think the doctrine is that it is not a right, so to speak. I mean, that is in your favour.
MR BENNETT: The Constitution is not a document replete with rights in the American sense, but however one regards it, if it be accepted that one can lose some forms - in some cases, a person can become an alien when the person was not before, and that can occur involuntarily in some cases, once one accepts that - and that is accepted by Justice Gaudron in Nolan in relation to the Hanoverians, for example; her Honour does not suggest that that was wrongly decided - there are cases in which one can, involuntarily, lose, if it be a right, the right not to be discriminated against under section 117.
The practical significance of that may be small, because it is hard to imagine a State law, which discriminates against people who are in this category, resident of another State, and not against other people resident of the other State. One could imagine it, one could construct an artificial example. But, in practice, it is not a right which is likely to be of such significance to people as rights of the type contained in the United States Bill of Rights.
McHUGH J: But section 117, on any view, does discriminate against people who are not subjects of the Queen.
MR BENNETT: Yes.
McHUGH J: It does that.
MR BENNETT: Yes.
KIRBY J: Presumably that is the trade-off between allegiance.
MR BENNETT: It may, depending upon which meaning one gives allegiance, yes, and that section has now been given the meaning, we submit correctly, that - - -
GUMMOW J: It is put in there for a racist purpose.
MR BENNETT: Yes, it may well have been.
GUMMOW J: So that there could be discrimination against Chinese people in the Western Australian gold fields. That is why it was there.
MR BENNETT: Yes, and sugar workers from Pacific Islands in Queensland.
GUMMOW J: It does not have an elevated origin really.
MR BENNETT: Yes. But it is certainly not a reason for construing the aliens power in a more limited way than one would otherwise construe it.
So the overall result, we submit is, that first, at least by 1948, which is before the prosecutor came to Australia, on any view of it, he was an alien and was always an alien. If your Honours are against me on that, that was changed either by evolution up until 1984 or by one of the significant events I have taken your Honours to or the evolution between them: the Australia Acts, the amendments to the other legislation in 1984 and 1987. It, in a sense, does not matter which one points to for this purpose. It is certainly after 1996, on that view, and before 1994.
Your Honours, the remaining issues are much shorter. In relation to the oath, may I just remind your Honours briefly of the decision in Kahn v Board of Examiners [1939] HCA 26; 62 CLR 422. Your Honours have not been given a reference to this. Your Honours need not go to it. This was a case where a German citizen had been admitted to practice as a legal practitioner in England and the question was whether he could be admitted to practice in Victoria. There was an exclusion and there were questions concerning the taking of the oath.
In the course of the discussion, Justice Latham and Justice Starke both said that there was no reason why an alien could not take an oath to the sovereign of allegiance. That discussion appears at page 430 in the judgment of the Chief Justice and at page 443 in the judgment of Justice Starke.
KIRBY J: What year was that?
MR BENNETT: That is 1939.
KIRBY J: It might have been a little awkward for a German national in 1939 to take an oath of allegiance to the King. They might have ended up in all sorts of problems.
MR BENNETT: It might depend on what sort of German national he was, but the - - -
KIRBY J: It would not be awkward for a person like the prosecutor.
MR BENNETT: No. Well, the awkwardness issue, your Honour, was considered by the Supreme Court of New South Wales in a case called Re Howard (1976) 1 NSWLR 641. Your Honours do not have that. That was a case where a United States citizen sought to be admitted in New South Wales and applied for the requirement of the oath to be dispensed with. The basis for his application was that if he took the oath he would forfeit his United States citizenship, which he did not wish to do. The Court of Appeal unanimously dispensed with the oath in his case for that reason. In the course of the judgment there is reference to Kahn's Case and to the fact that there was no reason, as a matter of our law, why an alien could not take the oath. There is a matter of discretion. Because of the consequence it would have in the United States he would simply be dispensed from it.
The third and last matter in relation to aliens concerns the migration scheme. We have given your Honour a document which sets out the history of it. I do not propose to go through it. It is available for your Honours, if you wish to see it.
Turning then to the last question of irrelevant considerations, the problem arises because of the paragraph on page 120 of the application book. Your Honours see that this is the first of the matters which went before the Minister. I have given your Honours reasons yesterday, based on the Hot Holdings distinction, as to why this decision is not one which is subject to review, nor indeed is it the decision which is in fact challenged by the order nisi. The important point is that when one reads paragraph 10 it is absolutely clear that it is the advice or the - advice is too high a word - the expression of opinion by Minister Ruddock is limited to the question of whether to proceed under one section or the other. Your Honours see in paragraph 10, the third sentence at line 31 of the page:
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. You would be acting as an independent decision-maker, and hence Minister Ruddock cannot in law, dictate, limit or bind you in the exercise of your powers as a decision-maker. Having said that, Minister Ruddock's preference is something that you would be entitled to take into account when deciding how to proceed.
KIRBY J: But why is it something that can be taken into account?
MR BENNETT: I am going to answer that in a moment, your Honour. Before I do, can I just stress this is deciding how to proceed. It is the preliminary decision. It is not a decision which is challenged, and it is not a decision which could be challenged under Hot Holdings. It is merely the decision to say, "I will consider under subsection (3) whether to proceed further". So that is the first point.
The second point is that it is a consideration she is entitled to take into account. If your Honours accept the Attorney's arguments yesterday - and we have to assume for this purpose that your Honours do - it follows that there were two people who were entitled to exercise the powers of the Minister. One may exercise them in relation to one person, one in relation to another. Consistency is a matter of importance in decision making. For the same reason that judges follow precedent, administrators follow precedent. That is because consistency is important. It is of relevance for Senator Patterson to know that in this type of case, the Minister's view is that it may be more appropriate to proceed under a particular provision. It cannot be, in my respectful submission, an irrelevant consideration. There is no suggestion in that paragraph, indeed, the opposite is clearly stated, of coercion. There is no suggestion of her will being subjugated to his, and no evidence - - -
KIRBY J: Is the environment of politics, which is the natural environment in which the respondent and the Minister operate, relevant here? I mean, judicial officers and, one hopes, independent tribunal members, are trained to be independent and make their own decisions, but one can at least have an anxiety that a junior Minister might feel that his or her career could be nipped in the bud if they did not, as it were, observe the wishes, or desires, or feelings of the senior.
MR BENNETT: That type of approach would require considerably more evidence than is available here. May I just remind your Honours of what was said in the Bread Manufacturers Case, which involved fairly similar sort of matters. The case is Bread Manufacturers v Evans [1981] HCA 69; (1980-1981) 180 CLR 404. That was a case where a statutory authority took into account the views of the Minister in making a decision, a decision which could have been vetoed by the Minister. In the same way here, it could have been open to Minister Ruddock to have made a decision the opposite to that of Senator Patterson, as it would to her to make a decision opposite to what he had made. So it is of relevance to her to know. The Chief Justice Sir Harry Gibbs, at page 418, line 5, said this:
The attack on Prices Regulation Order No. 798 commences with the proposition that a statutory authority must not, in the purported exercise of its discretion, act under the dictation of some other person. This proposition is plainly correct. The Commission is the body entrusted with power to fix the price, and its decision must be its own. If it acted under pressure exerted by the Minister, or simply gave automatic effect to a decision of the Minister, the decision would not then really be that of the Commission but would be that of the Minister. It does not follow that it was impermissible for the Commission to consider the views of the Minister in coming to its decision.
On the following page, page 419, at point 7 of the page, your Honours see the words "would not consent" in the left-hand margin. There is a passage where his Honour says:
If it was right to conclude that the Minister expressed his views to the Commission, and that the Commission took those views into account in reaching its conclusion, that does not mean that either the Minister exerted improper pressure or that the Commission considered anything that was not a proper matter for its consideration. To say that the Commission considered that it should bring about a result "politically palatable" to the Government is, with all respect, to move into the realm of speculation.
We submit, with respect, that to say looking at the fact it was a junior Minister and so on, she must have been influenced and it must have been improper influence, is to move into the realm of speculation:
It is consistent with the evidence -
and that is the test his Honour adopted -
that the Commission decided for itself it was better to allow an increase in price.....which would become effective, than to determine upon an increase.....which the Minister would veto -
Now the point of that is that, in the same way here, it would have been open to the other person occupying the office under section 33(3) of the Acts Interpretation Act to have reversed the decision. It is of relevance to know that the other person is unlikely to do that. Similar views were expressed by Justices Mason and Wilson at page 431. Justice Murphy decided the case on a different basis and Justice Aickin dissented on various points. So, we submit that it is simply not an irrelevant consideration. It does not approach the level of being improper pressure or acting under dictation or anything like that and therefore it is no objection to it.
Your Honours, those are my submissions under the four issues. They are, of course, the last submissions which a Solicitor-General will make to this Court in this millennium. May it please the Court.
GLEESON CJ: Yes, Mr Brereton.
MR BRERETON: May I begin by dealing with what my learned friend last dealt with, the question of irrelevant considerations. First, as to the proposition that that consideration related to a preliminary decision and not the challenged decision, in the circumstances of this case and this decision-making process, the two steps are irretrievably bound up one with the other. By committing herself to the 501(3) route the respondent committed herself to a route which involved a finding about national interest and an exclusion of the rules of natural justice. It is not possible in this case to divorce the two steps. By saying, "I am going down the 501(3) route" she was committed to a finding about national interest.
Nextly, as to the proposition that it was not impermissible but desirable to have regard for the purposes of consistency of decision making to the Minister's wish, the end of consistency in decision making is unquestionably a desirable one. Consistency in decision making depends on applying decisions to facts, not to whims.
If the Minister had said, "In a case which involves serial crimes of a particular type, it is my policy to cancel such visas", then I do not dispute that that is a policy which, for the reasons stated in it could permissibly have been taken into account, though not regarded as binding. But for a Minister simply to say, "My preference is to cancel under 501(3)", without articulating any factual basis or logical reason for it is what is not permissible. That amounts to no more than saying to the junior Minister, "This is what I'd do", regardless of affording reasons for that being why he would do it.
My learned friend says that, as in the Bread Manufacturers Case, this is a decision which could have been vetoed by the Minister, thereby making the Minister's wishes relevant. In my submission, that is quite a different case. This is not a decision which could have been vetoed by the Minister, and I do not think my learned friend put it quite so highly. He said the Minister could have made a different decision. First of all, the Minister had deliberately vacated the field, presumably to avoid a charge of bias. Secondly, in so far as the decision could have been reconsidered, where, in section 501C, provision is made for revocation of the original decision, "the Minister", where it appears in the subsequent subsections of 501C, must be a reference to that Minister who made the decision rather than the other Minister, if there be such a creature.
GUMMOW J: I am not quite sure, Mr Brereton, how the documents work. The document at 107 is the document of advice which is anterior to the decision indicated at 118, is that right?
MR BRERETON: Yes, your Honour.
GUMMOW J: And the document at 119 is the attachment referred to at 107?
MR BRERETON: Yes, your Honour.
GUMMOW J: You criticised various passages in the attachment.
MR BRERETON: Yes, your Honour.
GUMMOW J: Are the matters you objected to there repeated in the actual decision itself, that is to say, in the instrument at 107? Does that contain a repetition of matters to which you objected in attachment A?
MR BRERETON: Only in so far as it is annexed, your Honour. It does not repeat those statements.
GUMMOW J: Does it contain matter to which you object which is not in annexure A?
MR BRERETON: In this sense, that if one goes to 113 to 114, the only matters which it addresses concerning national interest are those three paragraphs, 9, 10 and 11. Save for the statement of what is reasonable in paragraph 10, there is nothing there which indicates matters personal to Mr Taylor which justify going down the 501(3) route. Therefore, to find why the 501(3) route was selected, we have to go back to the earlier minute.
GUMMOW J: What is the answer to the Creasy point or the Hot Holdings point?
MR BRERETON: The answer to that is that in this - - -
GUMMOW J: The decision you have to impugn is the one set out at 118.
MR BRERETON: And that decision at 118 - the answer to the Hot Holdings point is that in this case the two decisions are irretrievably bound up as one of the same - - -
GUMMOW J: One was necessary in order to lead to the other. That is always so.
MR BRERETON: But there is more than that, your Honour, because the ultimate decision involved a decision that it was in the national interest to cancel a visa without notice. Now, that involved the decision to use section 501(3) rather than section 501(2). The only reasons that can be devined from the material which the Minister supplied, as she was bound to by way of reasons, were paragraphs 9, 10 and 11 at page 114 coupled with paragraphs 10 through to 14 at pages 120 to 121, and it is those reasons together which ought to be regarded as the reasons for ultimately finding it to be in the national interest to cancel, because nothing else is offered.
GUMMOW J: And just tell me again, what do you say is the error of the jurisdictional nature in this treatment of national interest?
MR BRERETON: That the Minister was not, in truth, and could not reasonably, have been satisfied that it was in the national interest (a) to cancel the visa without first affording a hearing or, alternatively, (b) to cancel the visa simpliciter.
GUMMOW J: Why?
MR BRERETON: In short, for three reasons. First, because she was bound to give reasons in respect of any matters personal to the prosecutor for her decision. It appears to be common ground, as the Chief Justice elicited from questions from my learned friend yesterday, that this decision was not just a policy applicable to all cases. It involved matters personal and had to involve matters personal to this prosecutor. It can be concluded that the Minister did not, in fact, and could not reasonably have reached the requisite satisfaction, because there is not a solitary reason, in the reasons that he was required to give, about any matter personal to the applicant as supporting the national interest decision.
The second reason is that there was no suggestion back in 1999, the first time around, of national interest and, in the absence of anything having changed since then, the proper inference is that the Minister could not have, a year later, or eight months later, been satisfied about the national interest when he did not think it was in the national interest eight months earlier. The third reason is that the Minister did not understand the legal effect of what she was doing. She did not understand that by making the decision as she made it she was denying the applicant an opportunity to make representations on the discretion question.
GUMMOW J: You get that, really, out of the structure of the attachment?
MR BRERETON: Yes, your Honour, yes.
GUMMOW J: The content of the obligation to give reasons, where is that?
MR BRERETON: Section 501C(3), read with 501C(2).
GUMMOW J: Yes.
MR BRERETON: Now, while we are on that point, a question was raised yesterday which I might as well respond to at this point because we have moved from irrelevant considerations into unreasonableness. At the end of paragraph 14 of the earlier minute appeared the words, "see s 501C(3) and (4)", and the question was raised, is that really to be read as "Don't see those sections"? In my submission, the proper way of treating what appears there is it is, in effect, a lawyer's footnote, just as more than from time to time we see in judgments of the courts these days footnotes with references to authority. That is not taken to assume that everyone who reads a judgment will read not just the footnote, but the whole of the authority referred to in the footnote.
GLEESON CJ: You say it is not materially different in meaning from what it would have meant if there had simply been brackets around the numbers.
MR BRERETON: Exactly, your Honour. What appears there is the authority cited for the proposition, and no more. Now, since we have moved to unreasonableness, I will continue to deal now with the unreasonableness point before turning to the two constitutional points.
The Solicitor, in answer to questions from your Honour Justice Kirby, offered as an explanation for the Minister now having selected the 501(3) route the circumstance that the proceedings before Justice Callinan may have drawn attention to the availability of that provision.
GUMMOW J: But that is not a decision you challenge, to go to one route rather than the other route. That is your Hot Holdings problem. I know you then rely upon it as your third branch in your argument to impugn the main decision.
MR BRERETON: The decision to go down one route rather than another I accept is not the ultimate decision. The ultimate decision is to cancel the visa but - - -
GUMMOW J: No, I am not worried about ultimate decision. I am worried about the decision in respect of which you seek relief under 75(v).
MR BRERETON: I seek relief in respect of a decision to cancel a visa under section 501(3).
GUMMOW J: That is right.
MR BRERETON: A necessary part of that decision is a decision which involves a finding about national interest as part of 501(3), which would not have been required under 501(2).
Now, part of my argument is that there having been no suggestion of national interest eight months earlier when the first decision was made in September 1999 and no suggestion of national interest up until 1 July 2000 that one of reasons why the Court should conclude that the Minister was not in truth and could not reasonably have been satisfied about the national interest was that he had not been for the previous period.
GLEESON CJ: Is that a sort of Jones v Dunkel point?
MR BRERETON: Of sorts, I suppose, your Honour, yes. Now, the significance of the question that Justice Kirby asked and my learned friend's answer to it was that that might, if accepted, have explained why the Minister now founded on a basis which he did not previously found on. It was, in effect, a suggestion that he had not been aware of it beforehand and it was only drawn to his attention then. Now, the responses to that are, first of all, we are talking about the Minister personally having made both decisions. He made the first decision as well as the second one, personally, so it was not a delegate the first time round.
Secondly, this is the Minister administering this Act and - I withdraw that. It was the Minister, himself, Minister Ruddock, the first time, who made the decision. It was that Minister who introduced section 501(3) and made the second reading speech about the emergency provisions to which I have taken the Court. He was the Minister administering the Act at all relevant times and must be taken to have been aware of the provisions of section 501(3) and from what he said in Parliament is proved to have been aware of those provisions. It just cannot be that he made the 501(2) decision in ignorance of the availability of section 501(3). The only sensible inference is that he decided he did not need to resort to 501(3) and that 501(2) was sufficient back in 1999.
Your Honour the Chief Justice yesterday in discussion with the Solicitor pointed out that this was not a case in which the prosecutor was in gaol, about to be released, and an urgent decision was required. Can I take the Court to the chronology just to illustrate the extent to which your Honour is correct, and it goes even further than your Honour suggests. There was deliberate delay, in fact. At page 55 of the application book a minute was sent to the Deputy Secretary and on that the Deputy Secretary on 31 May 1999 made a handwritten endorsement which, amongst other things, at about line 16 says:
I believe this case should go to the Minister for decision, preferably after an expected new policy instruction on s 501 is released. I suggest you speak to Don Crennan re timing.
GLEESON CJ: What are we to make of the notation on the top of that page, "I am very concerned at the risk of recidivism"?
MR BRERETON: That is the comment, I think, of the Deputy Secretary.
GLEESON CJ: What does the next line say, "Given the"?
MR BRERETON:
Given the landmark nature of a visa cancellation in relation to a permanent resident of 32 years standing.
GLEESON CJ: Who is the author of that note?
MR BRERETON: I think the Deputy Secretary. No, the typewritten note is to the Deputy Secretary and that, I think, is the endorsement of it on it of the Deputy Secretary. Now, after that the next step is at page 58 and on 28 July the case officer, Heidi Speed, writes to Mr Taylor - and this was the letter which he never received the evidence suggests - saying that:
it is unlikely that a decision will be made in relation to your case before your release date on 6 August -
So, the department was well and truly aware that he was going to be released on 6 August, and they were not in a rush to make a decision before his release. At page 59, after he had been released on 6 August, the department, on 13 August, sent a further letter to him at Gunnedah to whither he had returned. Then the Minister ultimately makes a decision. The minute to the Minister the first time around commences at page 60, and that minute, it will be seen from page 79, was created by the case officer, not until 19 August, signed off by an acting assistant manager on 20 August, and goes to the acting manager on the same day, but comes to the Minister, and is decided by the Minister, on 4 September 1999, by which time the man has been at liberty for a month.
In answer to your Honour the Chief Justice's question a moment ago, at page 60 from paragraph 2 at line 40, annexure E is that document at page 55 which had that handwritten note and it confirms that the acting deputy secretary is the author of the handwritten endorsement. As if that is not all, after that decision on 4 September, nothing is done to implement it until November. At page 81, the department starts making inquiries before they have served notice of that decision on Mr Taylor. It starts making inquiries about having him held in a prison instead of in an immigration detention centre. That continues at 82, 83 and 84. At page 85 is a letter dated 4 November 1999 which notifies him of the decision made on 4 September, and when that is served on him on 4 November, he is taken into immigration detention and then committed to Silverwater prison. So, that is the sense of urgency and emergency with which the department and the Minister felt compelled to move in 1999.
My learned friend spoke of the offences and their nature. Without wanting to spend much time on this, the best summary of them is found not in the charge sheets, but in the sentencing judge's remarks at page 132 and 133 where his Honour summarises the nature of each of the eight offences. Of that, it will be seen that five of the eight were voyeuristic in character. The first two, which occurred at the same time, are those dealt with at page 132 between lines 15 and 35. They are the most serious of the offences and it will be seen from the description there that they are, in terms of offences which, of any nature, are serious, these must be towards the bottom end of the scale of offences of that character.
Then those offences have to be seen, and this question of national interest has to be seen, in the context that most criminals who commit offences of that type are, after serving their time, left at large in our Australian community and it is not seen as being some danger to the nation that such persons after they have served their sentence should be at large in our community. Indeed, the courts have been zealous to minimise legislative attempts to provide for protective custody in cases much more serious than this.
GLEESON CJ: Does not the relevant legislation require the body - and the identity of the body is changed from time, so I hesitate to name it - which makes decisions about parole to consider the question of danger to the community. You are not automatically entitled to release when you come to the end of your minimum term.
MR BRERETON: The Parole Board, if it is still the Parole Board - and, even more so than your Honour, I am not sure about the current correct title of it - but your Honour is absolutely correct. One is not automatically entitled to parole. As I understand it, the Parole Board has to be satisfied that it is appropriate.
GLEESON CJ: The minimum term is defined by the Sentencing Act in New South Wales as the term before the expiration of which you may not be released to parole, not the date at which you will be released to parole.
MR BRERETON: Quite so, your Honour. My learned friend said - and this leads in to the answer I gave your Honour Justice Gummow a little while ago - there were factors both ways as to whether it was in the national interest to cancel the visa. In giving that answer, my learned friend accepted your Honour the Chief Justice's proposition that this was not just a rule of general policy for all cases of this type but it required consideration of the facts of the individual case. If so, that means that there must be matters specific to the prosecutor personally which made it in the national interest to cancel his visa in the circumstances in which it was. If so, the respondent was required to state them - section 501C(3) - but there are absolutely no such factors stated in what was offered as the reasons. The necessary conclusion is therefore that there were none in the Minister's mind and that the Minister did not in truth form the satisfaction about the national interest which he was required to form, nor could she reasonably have done so.
My learned friend tendered a definition of "the national interest" as being the interest of the community or a significant part of the community. The first and obvious flaw with that is that it substitutes the words "community or a significant part of the community" for the word "nation". All it does is to turn "national interest" into "interest of the nation" but take away "nation" and substitute "community or a significant part". That cannot be right and the focus of what we seek to define must be on the interest of the body politic, the nation, rather than of individuals who comprise communities. The concept of the nation as a body politic means that in seeking a definition or seeking a concept of "national interest", one is required to focus on the interests of the body polity and it may be its reputation, it may be its economy, it may be its security, but it is concerned with those things that pertain to the body politic and not to individuals in it.
Your Honour Justice Hayne asked my learned friend does the national interest, in this context, take colour from the speed with which the obligation of incarceration follows from exercise of the power and, in our submission, the answer to your Honour's question is plainly yes, it does, and that is supported by the references in the second reading speech to the emergency setting that this power was intended to operate in.
HAYNE J: That may apply in cases of cancellation. It would not apply, would it, in cases of refusal which may occur with the applicant outside Australia, no urgency pressing, which suggests that national interest may be a broad term intended to cover a wide range of circumstances.
MR BRERETON: The circumstances of urgency could, with respect, arise in the context of one outside Australia who was about to enter Australia and in respect of whom a delegate might have been considering an application for a visa and the Minister, recognising the urgency of the situation, takes the matter into the Minister's own hands and where otherwise natural justice would have been involved, without natural justice says, "I refuse the application".
GUMMOW J: That is so. That does not cover the universe. There would be plenty of other cases in which, outside Australia, permission is refused and we know of such cases. No urgency about them. National interest is nevertheless invoked. It is no answer to say sometimes it will be urgent. It will not always be urgent. That is what is being put to you and therefore, urgency, per se, is not a universal criterion here.
MR BRERETON: But in the context in which it appears in section 501(3), in my submission, it is, or at least - - -
GUMMOW J: Why?
MR BRERETON: Because the whole concept of the - - -
GUMMOW J: Mr Gerry Adams is not going to hurl himself into Australia, neither is Mr David Irving.
MR BRERETON: The answer to the reason why - - -
GUMMOW J: They wanted to come here on an ordinary commercial flight, but they wanted a visa first.
MR BRERETON: The answer to the question why is that 501(2) recognises that the ordinary course will be that before a visa is cancelled or refused under that section, natural justice will be afforded. Section 501(3) recognises that there are certain emergency special circumstances, in which, even without - - -
GUMMOW J: They may be special, but they may not be urgent; that is what you have to cope with. There may be all sorts of security information, for example.
MR BRERETON: I suppose that is possible, your Honour, that - - -
GUMMOW J: Revelation of which could place in danger security operatives; one can think of many examples.
MR BRERETON: That may well be another instance, I accept that, your Honour. Then that would be a justification for not providing a hearing in such a case, because it would involve the divulgence of information of national significance. That is not to say that the section does not take colour from the urgency with which the obligation to incarcerate follows, as is supported by what the second reading speech says.
May I turn then to the two constitutional questions, first of all the alien question. In answer to a series of questions yesterday from your Honour Justice Gaudron, the Solicitor suggested that the question of whether there was power to remove or deprive a person of non-alien status was raised in these proceedings. In my submission, it is fairly and squarely raised by the order nisi; paragraph 3.1 at application book page 177. That paragraph of the order concluding:
he being at the time of his arrival in 1966 and ever since a British subject and thus not an alien, of which non-alien status he could not retrospectively be deprived.
And that was repeated in the section 78B notice, paragraph 8(d) at application book page 183:
and that of his non-alien status he could not retrospectively be deprived -
So, in our submission, that issue is open and was raised fairly and squarely in the order nisi.
My learned friend correctly submits that Parliament cannot define something into or out of constitutional power and - - -
GUMMOW J: But is it your submission, Mr Brereton, that for the purposes of 117 at some stage your client became a subject of the Queen in right of Australia resident in New South Wales?
MR BRERETON: I adopt that, your Honour, as an alternative submission. The primary submission is that he is one of the people of the Commonwealth and that that is the proper distinction between member and alien. As an alternative submission he became - - -
GUMMOW J: Yes, but if one does not accept your yoking together of right to vote with alienage, what do you do then?
MR BRERETON: Then I adopt the submission that he became a subject of the Queen in right of Australia or owing allegiance to the Queen in right of Australia from his long residence in New South Wales, his recognition under the electoral laws, or the liability of those in his class to call up for national service. They, taken together, amount to an allegiance to the Queen in right of Australia.
GUMMOW J: Now, do you say, as a result of this process, he retained an allegiance to the United Kingdom, so that he had two allegiances, that there is a division, but not a destruction of either, as it were? These are the basic questions in this case, it seems to me.
MR BRERETON: That was Mrs Hill's position.
GUMMOW J: That is why she fell foul of section 44.
MR BRERETON: Yes, yes, your Honour, that - - -
GUMMOW J: She had taken the step of citizenship.
MR BRERETON: Yes.
GUMMOW J: You say you did not need to do that.
MR BRERETON: We did not need to do that. We still had a local allegiance. Now, I will come back to that point in - - -
GUMMOW J: But the fact of that local allegiance is enough, you say, to take you permanently outside the aliens power?
MR BRERETON: Yes, your Honour. Now, the Solicitor - - -
HAYNE J: And would take you outside it, for example, in the events that happened in the subcontinent in 1948. That is, if there were partitions, secession, I know these are extreme cases, but is that not the nub of what you are putting, that regardless of the political arrangements that may obtain within the country, the status is irremovable, civis romanus sum, whatever happens in Rome?
MR BRERETON: If, to take the most extreme circumstance, being resident in New South Wales and adhering to his New South Wales residence, New South Wales were to secede form the Commonwealth, if that were constitutionally possible, then he would lose his status of subject of the Queen in right of Australia and would become a subject, perhaps, of the Queen in right of New South Wales, if New South Wales were to remain a member of the Commonwealth, or if it would become a republic, he would become an alien so far as Australia is concerned.
GUMMOW J: The Queen is described in their constitution as "Head of State of New Guinea". So, do you accommodate the New Guinea situation in that way, do you?
MR BRERETON: If the equivalent of Mr Taylor were a resident in New Guinea, yes I accommodate that in the same way, your Honour.
GAUDRON J: There was a specific legislative provision in that case, I think, though, which said a citizen of Australia who becomes a citizen of New Guinea ceases to be a citizen of Australia. I think it was - - -
GUMMOW J: It just said regulation 4 of the Papua New Guinea Independence Australian Citizenship Regulations 180 of 1975. It simply said:
A person who -
(a) immediately before Independence Day, was an Australian citizen.....; and
(b) on Independence Day becomes a citizen of.....New Guinea by virtue of the provisions of the Constitution of the Independent State of Papua New Guinea,
ceases.....to be an Australian citizen.
GAUDRON J: Do you not have to say, in relation to the questions that have just been put to you, something along the lines that this man has done nothing inconsistent with the status as a subject of Her Majesty the Queen of Australia and that things might be different if there had been something inconsistent.
MR BRERETON: I would accept that , your Honour, but go this step further - - -
HAYNE J: By him?
GAUDRON J: By him, yes. I mean, because, in a sense, what you are relying on is something in the nature of a presumption in this part of your argument, I think.
MR BRERETON: Yes, or the concept of absorption.
GAUDRON J: Yes.
MR BRERETON: But I accept that it is probably necessary to say that he has done nothing inconsistent with that status, but we would go further to say that he has taken steps which are positively consistent with that status, in particular taking up his entitlement to be enrolled and exercising the right to vote.
GUMMOW J: But stopping short of taking out citizenship.
MR BRERETON: I have to acknowledge that, your Honour.
GUMMOW J: To which he had an absolute right under the legislation.
MR BRERETON: Yes, your Honour, and in respect of which, I think the evidence shows - and we will just turn this up - that he did not have to.
KIRBY J: I think he said he did not think it was necessary, or something to that effect.
MR BRERETON: Yes, I think that is right.
GAUDRON J: Yes. Did he have a right to obtain citizenship in the period between the 501(1) decision and the 501(3) decision?
GUMMOW J: Does he still have it?
GAUDRON J: Perhaps one really ought to talk about the period between the granting of prohibition and the second decision by - - -
MR BRERETON: I think the answer is, your Honour, he would have been able to apply but - - -
HAYNE J: His convictions would stand in his way, would they not? Would not his convictions have some significance for his application?
MR BRERETON: Yes, they would. Your Honour is right.
GUMMOW J: But for the convictions he would have had an absolute right, would he not?
MR BRERETON: He would have had an absolute right to apply. Whether the process could have been completed in the - - -
GUMMOW J: No, he is bound to be granted, unless there are very disqualifying factors, one of which is crime, I think.
MR BRERETON: Yes, I think that is right, your Honour.
GLEESON CJ: Recent crime, actually, I think.
MR BRERETON: Yes. My learned friend was drawing distinction between defining something into or out of constitutional power and the difference if the power was to create an activity, process or status. For example, my learned friend resorted to the power to make laws in respect of bankruptcy. In our submission, there is a very great difference between the power to make laws in respect of bankruptcy and the power to make laws in respect of bankrupts.
The latter is more narrow. It presupposes the existing status of a bankrupt, a person who has to be found before there is a subject matter in respect of which the law can be made. That is like a corporation and, as the Court said, in the Corporations Law Case (1990) 169 CLR 482 in the joint judgment at page 497 at point 6:
The power conferred by s. 51(xx) is not expressed as a power with respect to a function of government, a field of activity or a class of relationships but as a power with respect to persons, namely, corporations of the classes therein specified -
and that, in our submission, is capable of equal application to the power in respect of aliens. If what the subsection provided was laws with respect to naturalisation and alienage, a status, then the situation might be different. But so long as it is a power to make law with respect to aliens, one has to find an alien, just like one has to find a corporation, before the law can be made.
GUMMOW J: Assume there are people in your client's class who view with great dissatisfaction the state of affairs where they find themselves suddenly treated as subject to the Queen in right of Australia vested in a State. They want simply to achieve a situation that they are, throughout, persons owing allegiance to the United Kingdom. It is not consensual from their point of view. How do they divest themselves of this state of affairs? What do they do?
MR BRERETON: They - - -
GAUDRON J: - - - do something inconsistent.
MR BRERETON: They do something inconsistent with it, yes.
GAUDRON J: Perhaps like travelling on a British passport.
MR BRERETON: Possibly, yes.
GUMMOW J: It seems a very wavering constitutional fact line.
McHUGH J: In Sykes v Cleary we said that to avoid the dual citizenship they had to do all they reasonably could, so I am not sure that is any more wavering than the present case.
MR BRERETON: I accepted in-chief that I was bound to accept, by reason of Meyer v Poynton, that the power in respect of naturalisation extended to denaturalisation. It needs to be borne in mind that in Meyer v Poynton that involved reversing a naturalisation which had taken place. It did not involve denaturalising a natural-born British subject. It involved taking away the certificate of naturalisation from someone who had been naturalised.
The power in the Citizenship Act, section 21, to which your Honour the Chief Justice referred, is the same. It permits the cancellation of the naturalisation of a person who is naturalised under the Act. It does not permit the deprivation of citizenship from someone who is entitled to it by birth or descent, only someone who becomes naturalised. The consequence of that is that, although my learned friend sought to support the Citizenship Act, section 21, as a law with respect to aliens, that is quite wrong. It is a law with respect to naturalisation and Meyer v Poynton, in my submission, makes that abundantly clear because that is the head of power on which Justice Starke relied in Meyer v Poynton.
My learned friend then began to suggest that just as a power to make laws with respect to naturalisation involved the reverse, so did the power with respect to aliens. The power with respect to naturalisation is a power in respect of a process and admits that the process can be reversed. The power in respect of aliens is in respect of a certain class of people from which class, if they cease to be aliens, they are removed. A power to make laws with respect to aliens cannot be construed as a power to make laws with respect to non-aliens.
The Solicitor's argument generally on the aliens issue, and, with respect, a lot of the discussion which has taken place, tends to drift away from seeking to identify the true, or any, dichotomy. The concept of alienage necessarily involves a dichotomy between those who are aliens and those who are not, but the search should not be first for those who are aliens to work out by deduction those who are not. The proper approach is to search first for those who are members, with the consequence that everyone else is an alien. For that, and with the greatest respect, we revert to what your Honour Justice Gaudron said in Nolan's Case 165 CLR at page 189. I read the first sentence of this two days ago where your Honour had said:
An alien.....is, in essence, a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined.
Your Honour continued:
For most purposes it is convenient to identify an alien by reference to the want or absence of the criterion which determines membership of that community. Thus, where membership of a community depends on citizenship, alien status corresponds with non-citizenship; in the case of a community whose membership is conditional upon allegiance to a monarch, the status of alien corresponds with the absence of that allegiance.
In our submission, the correct approach in the current case is to search first for what constitutes membership of the Australian nation and then the residue becomes alien.
Now, since the concept of alien is a constitutional concept and that of citizen is not, and not only is not such a concept but as Quick and Garran tell us was specifically rejected, we must look to the Constitution for the concept of membership. If there is nothing else about a Constitution the document which constitutes a nation must be the only sensible source for finding who it is or what it is that it - - -
GUMMOW J: This is one of the things that worries me. Is your client in some nether world? He is not an Australian citizen, he is not an alien, what is he?
MR BRERETON: One of the people of the Commonwealth.
GUMMOW J: Yes, I know that. But that, may I say, is just a rhetorical phrase.
MR BRERETON: With the greatest respect not, your Honour. It is what Quick and Garran identified as the - - -
GUMMOW J: Yes, I know, you are locked into these electoral sections and just assume for a moment they do not impress me.
MR BRERETON: I understand that, your Honour. He is a - - -
GAUDRON J: He is just an Australian, you say, even though he has not got Australian citizenship.
MR BRERETON: An Australian without citizenship.
GUMMOW J: Is he entitled to Australian diplomatic protection? If his property in another country is seized - - -
GLEESON CJ: He might be like a shell left on the beach by the receding tide of - - -
MR BRERETON: I understand that my - - -
GUMMOW J: We are talking about international aspects here because this man is liable to expulsion from this country. He has got to go somewhere. Out. Now, what is his status in international law.
MR BRERETON: He has no passport. He does not have a British passport, so he gets - - -
GUMMOW J: On your theory he is not an Australian citizen. He cannot get an Australian passport.
GAUDRON J: He could get Australian travel papers though, I think.
MR BRERETON: Yes.
GAUDRON J: Yes.
MR BRERETON: If the argument that he is not one of the people of the Commonwealth is not enough then his status is undoubtedly subject of the Queen - - -
GUMMOW J: He seems to me to be a semi-stateless person, on your theory.
McHUGH J: It can happen. In Ex parte Black Re Marony 83 WN(NSW) an immigration case, Black had jumped ship and then he left the country. When he came back he was met at the barrier by the fact that he had entered the country illegally. This was before the Migration Act but the Supreme Court of New South Wales held he had become absorbed in the Australian community and the immigration power did not extend to removing him. Now, he was an Irishman and probably was stateless, on one view, and he had become absorbed into the Australian community.
MR BRERETON: Another way in which it can happen is if a person is naturalised under the Citizenship Act renouncing allegiance to all other powers and renouncing any other nationality, but - - -
GAUDRON J: That is not necessary any more.
MR BRERETON: Mrs Hill had to do it if she wanted to be elected.
GAUDRON J: Yes.
MR BRERETON: But, if she did that and renounced her allegiance to all other powers so that her only status was an Australian citizen and if for some valid reason her naturalisation was cancelled under section 21 of the Citizenship Act she would then be left a stateless person.
GUMMOW J: That is not a construction one would rush to reach. Now, what is the status under United Kingdom law of all these people? It is relevant to know that for this reason. We do not know, do we?
MR BRERETON: We do not, your Honour, at the moment.
GUMMOW J: And, in any event, it might be a fragile status under the United Kingdom law. It did not do the people of Hong Kong much good in the end.
MR BRERETON: We might have a look at that and seek leave to let your Honours have something in writing when we have had a look at that.
GLEESON CJ: He might be a citizen of Europe.
MR BRERETON: Even though he has never been there at a time that the European Community has been in existence. I understand, at least so far as your Honour Justice Gummow is concerned, that I am not necessarily persuading your Honour about the people of the Commonwealth issue, but I do wish to explore that a little further.
GUMMOW J: I cannot stop you exploring it, but all I am saying to you is, if there is any way in which I can write a judgment in your favour it would have to be on other grounds, at the moment, at any rate.
MR BRERETON: I am contemplating that, your Honour. Now, since the concept of alien is a constitutional one and that of citizenship, as we have said, was specifically rejected, one has to look to the Constitution, in my submission, to identify who are the members of the body politic of Australia. As I suggested the other day, the starting point is the preamble which identifies that people being drawn together or into a union, the people of the States into the people of the Commonwealth, being the people who, subject to certain qualifications under section 30, choose the House of Representatives. Those people of the Commonwealth who choose the House of Representatives constitute our body politic. The others are aliens.
The reason for preferring that as my primary submission, in preference to the Holdsworth definition on which I fall back as an alternative, is that the primary submission uses that term which the Constitution chooses to use to denote the personal components of the nation, the people of the Commonwealth, which may be a larger concept than those owing no allegiance to the Queen in right of Australia.
But, alternatively, as I said in answer to your Honour Justice Gummow's question a little while ago, the combination of long residence since childhood in Australia, liability of the class, although not necessarily the person, because of his age to call up for military service, not just the right but the obligation to enrol to and to vote and the absence of any act inconsistent with allegiance to the Queen in right of Australia illustrates that this man and those in his class have acquired allegiance to the Queen in right of Australia.
In my submission, the American case of Lanz v Randall is wholly distinguishable. What, in essence, that case holds is that the right to vote is not equivalent to a conferral of citizenship. We respectfully agree with that proposition and we do not suggest that by acquiring the right to vote Mr Taylor has acquired citizenship. He has not. But in Lanz v Randall membership of the body politic under the Constitution in question there was denoted by citizenship not by being, for example, one of the people of the Commonwealth or by allegiance and, in that case, it was citizenship and others which was the relevant dichotomy.
Citizenship cannot be the point of the dichotomy in Australia because it is not a constitutional concept. It cannot in this country be the definitive descriptor that marks out those who are members of our body politic from those who are not.
I then turn to the question, when did the Parliament do something or did the things evolve to a point that Mr Taylor and those of his class could have become aliens? Before I embark on that, the word evolutionary has been used a great deal in the argument and discussion that has taken place. The concept of an evolutionary process is one of something that over time evolves to reflect the changing state of affairs and changing societal perceptions over that time. It suggests a movement with, or sometimes just a little bit behind, the times, but it does not suggest retrospectively turning on its head everything that was understood at the relevant time.
What my learned friend is now espousing is something which is not evolutionary, but radical and revolutionary. The suggestion that British subjects in Australia, even before 1948 - and, in my submission, after 1948 - were aliens is not evolutionary, but revolutionary. No Australian, who read the legislation that emanated from our Parliament up until the 1980s, would have thought that a British subject was an alien in this country. To suggest now that in fact they were aliens all the time is standing on its head the community's understanding not - - -
GUMMOW J: Well, that is partly because the community regards aliens as a pejorative word, it is what comes from outer space, and so on, but there are friendly and unfriendly aliens, and the public perception is just ignorant.
MR BRERETON: Particularly up until the 1973 legislation, the legislation so consistently recognises that British subjects are not aliens, that it cannot be said to be evolutionary to assert now that they have always, in truth, been aliens.
HAYNE J: If that is so, why did the 1903 Act single out for special treatment those who had obtained, in the United Kingdom, a certificate of naturalisation? Why was that necessary on this theory of the relationship that existed and cannot be changed?
MR BRERETON: Would your Honour mind reminding me of the context in which that appears?
HAYNE J: That is in the Naturalisation Act 1903 ,1903.
MR BRERETON: But there were some other words that accompanied it.
HAYNE J: Providing that you could apply for a certificate of naturalisation in this country, if, amongst other things, you had obtained in the United Kingdom a certificate of naturalisation or letters of naturalisation. The theory you propound is one which, at least it seems to me, would deny not only the need to have a certificate of Australian naturalisation, but the appropriateness of legislative provision on that account.
GAUDRON J: One may need to know something about naturalisation under English law.
HAYNE J: Exactly so, because English law and Australian law from 1903 were recognised, in this field of discourse, to be different.
MR BRERETON: There was before 1948 no concept of Australian citizen. The only national status that the Constitution or the statutes recognised was that of "subject of the Queen" in the Constitution, or "British subject" in the legislation. It may well be, as your Honour Justice Hayne suggests, that it was unnecessary to provide that someone who was a naturalised British subject under a British law needed also, or could also, be naturalised here. That may have been surplusage. But, what is significant is that in no way could it be inferred from the Naturalization Act, that one who was a British subject was somehow an alien in this country. The only concept the legislation recognised was that of British subject.
Now, the Solicitor says, in answer to the question "When did Mr Taylor and his class become an alien?", the first answer is "Always, or alternatively at least from 1948", and the second answer is adopting your Honour Justice Gummow, "Not later than 3 March 1986". In my submission, both of those answers are wrong, and not just because the first of them would be revolutionary and not evolutionary. In my submission, British subjects in Australia before 1948 could not conceivably have been aliens. The 1920 Act, that is the Nationality Act 1920 -1946, dealt only with the status of natural born British subjects and naturalisation of aliens. The process of naturalisation was their naturalisation as British subjects.
So, from 1920 to 1946, or the 1920 Act, which was in force until the 1948 Act, dealt only with the concept of British subjects and naturalisation to be such. To suggest that British subjects in Australia were aliens, would fly in the face of what Parliament and the people then understood.
My learned friend referred to the Statute of Westminster as being a relevant evolutionary step. It is worth noting that the second recital to the Statute of Westminster, recited:
WHEREAS it is meet and proper to set out by way of preamble to this Act that - - -
GLEESON CJ: Just excuse me, Mr Brereton. The next matter will be taken not before 2.00 pm. The matter that was listed for not before 2.15 pm will be taken at not before 10.15 am tomorrow morning.
MR BRERETON: Thank you, your Honour.
WHEREAS it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol - - -
GUMMOW J: We do not need to have it read to us, Mr Brereton. I mean, really, what point do you want to get out of the preamble to the Statute of Westminster?
MR BRERETON: The second recital to the preamble of the Statute of Westminster refers to the free association of the members of the British Commonwealth being "united by a common allegiance to the Crown". In other words, identifying at that stage that all the members of the British Commonwealth of nations owed a common allegiance to the Crown. That is something which, of course, our Parliament then adopted 11 years later in 1942, thereby continuing to recognise a common allegiance to the Crown in 1942.
GUMMOW J: It had gone by the time of the Australia Acts undoubtedly.
MR BRERETON: Yes, but in so far as it is suggested that it had gone before Mr Taylor arrived in Australia, that, in my submission, is not at all clear because it was reaffirmed in 1942. When one then looks at the citizenship legislation up until the 1970s - and the reprint of the 1948 Act in the 1973 reprints is the relevant source - "alien" has continued to be defined as "a person who does not have the status of a British subject and is not an Irish citizen". So the dichotomy that the legislation recognised right up and including the 1973 amendments was British subject and Irish citizen on the one hand, alien on the other. That was the statutory dichotomy.
GUMMOW J: How do New Zealanders fit into this? They are not a large group of people.
MR BRERETON: British subjects.
GUMMOW J: At the present time? Do not deal with it now, but I would be assisted if either you or the Solicitor-General would explain where - there is another large group of people living in this country too who, on your theory, are British subjects, I suppose.
GAUDRON J: You would not say that if they arrived after 87, they are non-aliens, would you? You accept that - - -
MR BRERETON: No, I do not contend, because I do not need to, that those who have arrived after 1987 are non-aliens and, for the purpose of my primary submission, I do not contend that those who were not on the roll by 1984 - - -
GUMMOW J: Just forget about the roll for a minute and concentrate on New Zealanders who arrived here before 1987. I would be assisted if someone could explain that to me - not now but some later stage.
MR BRERETON: We will have a look at that, your Honour.
GAUDRON J: It may depend on what their legislation that matched our 1948 legislation said they were.
GUMMOW J: Exactly.
MR BRERETON: The 1948 Act recognised a concept of Australian citizenship, British subject without citizenship and alien, and again the distinction was between British subject with or without citizenship on the one hand, and alien on the other. We then come to the 1980s legislation. While the Solicitor has set out much of that, if not all of it, in the minute which he handed up, it can be summarised in this way. At all times up until 1 May 1987, the Citizenship Act contained a definition of "alien" which excluded British subject from being an alien. In other words, the dichotomy was British subject on the one hand, alien on the other.
GUMMOW J: But the class of British subjects was itself less than it might have been.
MR BRERETON: Yes, that is so, your Honour. The Migration Act 1947 , until 2 April 1984, contained a definition of "alien" which simply adopted the definition in the Citizenship Act. It was removed in 1984 when the basis of the Migration Act was changed from immigration to the aliens power. A piece of legislation to which reference has hitherto not been made but which we have provided to your Honours this morning is the Aliens Act. That Act contained a definition of "alien" which adopted the definition in the Citizenship Act.
It was repealed, with effect, 18 October 1984, the whole Act, but that leaves the position that in so far as the Commonwealth suggests that the true dichotomy is citizen alien, the very Act that creates the concept of citizenship continued until 1 May 1987 to exclude from the concept of alien the relevant class of British subjects and when that definition was repealed it was on the very same day replaced, in the Electoral Act, by a provision which secured their continued right to choose the members of the House of Representatives.
Now, all of that goes to demonstrate that, in my submission, the true dichotomy is not that of citizen and non-citizen but one of the people of the Commonwealth and those who are not and the people of the Commonwealth would be found as those who Parliament, using the provisions of the Constitution, identifies as being the electors of the House of Representatives.
My learned friend, in answer to a question from your Honour Justice Gaudron, said that the constant abstract meaning of the word "alien" is the definition by a national polity of those who are not its members. We embrace that definition. Nowhere has Parliament ever defined persons of Mr Taylor's class to be aliens. Repeatedly, it has defined the members of the Commonwealth to include people of Mr Taylor's class. In our submission, if one adopts the Solicitor's definition, then Mr Taylor must succeed on this issue.
Finally, on the question of alien can I turn back to Nolan's Case and to the two propositions to which my learned friend referred at page 186 and suggest that there are at least three answers to them. The first answer to the proposition that the statutory definition does not confine the meaning or denotation of the constitutional words is that that is inconsistent with my learned friend's own proffered definition of "alienage", namely the definition by a national polity of those who are not its members.
The second answer is that although it is true, as their Honours said in Nolan, that the definition of alien in the Australian Citizenship Act 1920 which specifically excluded British subject was in the course of being repealed, there was no new definition which turned him into an alien in the course of being inserted, so that the legislation was just silent. The third is that what their Honours said in those two responses focus, as I suggest the focus has erroneously been here, on who is an alien rather than on who is a member, which is the starting point.
May I finally turn to the Minister point. Your Honour the Chief Justice put to the Attorney that, in effect, what happens with the Ministers of State Act is that Parliament says to the Governor-General, "You may have a team of 42", and that it is then more or less up to the Governor-General how that team of 42 is deployed. There are two important qualifications to that proposition.
The first is that how the Governor-General deploys them is not at large. Consistent with the concept of responsible government, he must deploy a person to head each of the departments of State. Those persons, each of them for their department to be the person who answers in Parliament for that department.
GAUDRON J: It is not only answering in Parliament, perhaps.
MR BRERETON: In Parliament and perhaps elsewhere, your Honour, but - - -
GAUDRON J: Here.
HAYNE J: Here.....five type here.
GAUDRON J: Yes, one of the peculiarities of the form of responsible government that we have got is that they can also be required to answer here.
MR BRERETON: Yes.
GUMMOW J: Which the British did not have until M v Home Office in 1992.
MR BRERETON: I accept that.
GUMMOW J: So to talk about the Westminster system is to talk incompletely.
MR BRERETON: Yes, I accept that and I add to that to what I put on that point. The second, and for present purposes, perhaps an even - - -
GUMMOW J: Ferrando v Pearce is an example. Pearce was the Minister.
MR BRERETON: Yes, for Defence, yes.
GUMMOW J: - there he is, immigration problem, 75(v).
MR BRERETON: The second and perhaps for present purposes more important qualification is this, that when Parliament says to the Governor-General, "You have got a team of 42 to deploy", Parliament also says to the Governor-General, "You have only got 42, if you designate 12 of them as parliamentary secretaries". So the Governor-General can only have that 42 if His Excellency designates 12 as parliamentary secretaries. Now, the Attorney says, that is only a label, but it is not. It is not a constitutional office. It is not a statutory office any longer, although it was, but we know what office it is because of the facts and the usage and the title of the office, and the title of the office, its usage, the parliamentary practice and standing orders and the second reading speech all prove what, in fact, the office of parliamentary secretary that these people are designated to hold is, and prove that it is a subordinate office.
So, in effect, what the Governor-General is being told, "You can have a team of 42 in theory, but you have got to designate 12 of them in a way which has the practical consequence that they will, in fact and substance and truth not be the ministerial head of a department, but a subordinate".
There occurred between the Attorney and your Honours a discussion in which, with the greatest respect, theory and fact parted company. There was a discussion as to who mandamus would issue, a useful illustration of the theoretical difficulties, a discussion as to what would happen if there were inconsistent decisions.
One might also go to Order 55 of this Court's Rules which, by rule 8(2) requires that:
Where a writ of mandamus or prohibition is sought against an officer of the Commonwealth the officer shall be described in the title by his name and the name of his office.
Ought we have described Senator Patterson as one of the Queen's Ministers of State administering the Department of Immigration and Multicultural Affairs? If the Attorney be right, that is her constitutional office. One can only imagine that Minister Ruddock would be less than impressed if Senator Patterson were to place on her door adjacent to his door "Minister of State administering the Department of Immigration and Multicultural Affairs".
As I understood the discussion that took place between your Honour Justice Hayne and the Attorney, it reduced the proposition to this: there are these theoretical difficulties, but there is a political solution to them. A political solution really means a factual solution and the factual solution as proved by the evidence is clear that where there are differences, in reality it is Minister Ruddock who runs the department and it is Senator Patterson who is subordinate. So much was ultimately conceded when the Attorney said ultimately it would usually be resolved by seniority and when the Attorney said, at another point, an injunction against the senior Minister would usually be effective.
Your Honour Justice McHugh, at one stage, used the words "dressed up", I think in the context of a factual situation - was being dressed up in a legal context which did not reflect or did not accord with the underlying factual situation. The Attorney referred to my submission and said the prosecutor's submission looks to the practice and the facts to challenge the legal authority and that that does not hold water.
In our written submissions, paragraph 5.4, we use the word "sham" and we use the word "sham" advisedly. This Court has said more than once that the Court can see through shams. Your Honour Justice Callinan in Patrick Stevedores v The Maritime Union [1998] HCA 30; (1998) 195 CLR 1 at page 84 repeated what was said by Sir Harry Gibbs, with the endorsement of the rest of the Court, in Ascot Investments v Harper [1981] HCA 1; 148 CLR 337, at 354 to 355. What Sir Harry Gibbs said was:
The position is, I think, different if the alleged rights, powers or privileges of the third party are only a sham and have been brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act. Sham transactions may always be disregarded.
Here we have a situation where the facts proved by the evidence are that the Parliamentary Secretary does not administer a department and is subservient to the Minister, and was never intended to adopt any other role. But, it is said, "Well, you cannot look at the facts, the legal authority to administer the department is there". But in reality, that legal authority is there for one purpose and one purpose only, as the second reading speech makes clear, to circumvent section 44(iv) of the Constitution. That is equivalent to the device to assist a party to evade his or her obligations under the Act, of which the Court spoke in Ascot Investments v Harper.
GLEESON CJ: Is that a convenient time?
MR BRERETON: Certainly.
GLEESON CJ: The break will give you an opportunity to compress the remainder of your arguments.
MR BRERETON: There is not much, your Honour.
GLEESON CJ: We will adjourn until 2.00 pm.
AT 12.49 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.06 PM:
GLEESON CJ: Yes, Mr Brereton.
MR BRERETON: There are four remaining points, the first is to answer at least part of your Honour Justice Gummow's question about the status of Mr Taylor under the law of the United Kingdom at present. Mr Taylor was a citizen of the United Kingdom by birth by section 4 of the British Nationality Act 1948. His status, as such, as continued by the British Nationality Act 1981, and I do not think that there is any basis upon which it can sensibly be said that according to that law he has lost that status since.
GLEESON CJ: Incidentally, Mr Brereton, you were asked some questions before lunch about New Zealanders.
MR BRERETON: Yes.
GLEESON CJ: We would like written information from both sides about the status of, not only New Zealanders, but also people from other parts of the former British Empire, South Africa for example - - -
McHUGH J: Rhodesia and the various territories.
GLEESON CJ: - - - covering the same issues.
HAYNE J: A convenient check list might be found in section 7(2) of the 1948 Act.
MR BRERETON: Yes, thank you, your Honour. I was going to seek that leave in respect of New Zealand, because we have not tracked that down over the adjournment, but we shall extend that to cover all of those other issues.
GLEESON CJ: Well let us say at least put a time limit of 21 days from today from both sides in relation to that.
HAYNE J: Happy Christmas, Mr Brereton.
MR BRERETON: Thank you, your Honour, I was hoping to be in a former colony at about the time those submissions were due, but I do not think I will be.
The Solicitor asks me to clarify our submission sought on the law of those foreign powers or on their status under Australian law.
GLEESON CJ: We would be interested to know what the laws of those countries also provided in relation to their status.
MR BRERETON: Yes. While I am answering questions from before the adjournment, the precise answer - and this is something which passed between your Honour Justice Kirby and me - to why he did not apply for Australian citizenship, page 169 of the application book:
Did not think I needed to.
The second point - - -
GLEESON CJ: Would it make life rosier for you and for the Solicitor if we extended the time for that information until 5 February?
MR BENNETT: Yes
MR BRERETON: Yes, it would, your Honour, very much.
GLEESON CJ: The Solicitor-General made some remark that I did not quite hear when he was concluding his submissions, but I understood it to mean we were not going to hear from him for another thousand years.
MR BRERETON: The second point is to seek to consolidate and abbreviate what I was beginning to say before the adjournment, which is this: absent a constitutional or statutory definition of the Office of Parliamentary Secretary, its functions, scope and nature depends upon what the evidence shows from its title, its usage and its facts, and the evidence shows it to be a subordinate office.
Since the Governor-General must, if he is to appoint more than 30 ministers of State, designate the surplusage over 30 as Parliamentary Secretaries, their designation, as such, involves that they be appointed to an office which, as a matter of fact, is a subordinate assisting office, not an administrating office. While they are purportedly also appointed to administer the department, in fact, first appointed to administer the department, the nature of the office, as the evidence shows, means that they are, in fact, not appointed to administer, but to assist as a subordinate.
That means that one has an appointment, the legal character of which masks the true facts. The purpose of having a legal character which masks the true facts is to evade the consequences of section 44(iv) of the Constitution.
McHUGH J: If the Parliamentary Secretary is not appointed under section 64, is it an appointment under section 67 or do parliamentary secretaries in fact hold no office and therefore do not infringe section 44 of the Constitution?
MR BRERETON: The better view is that they hold no office because the appointment as a minister is null and void. There is no appointment as a parliamentary secretary. There is just a purported designation, which is not an appointment. The situation which I have just enunciated satisfies all the legal requirements of a sham and the law disregards shams.
The third point is to respond to the Attorney's proposition that the notion of multiple ministers is not new. That is true but the expression of not just doubts but disputation as to the validity of appointment of ministers to assist, who are not also ministers administering another department in their own right, is equally not new. Professor Campbell, writing in Labor and the Constitution at tab 4.37 of the prosecutor's bundle, the passage that I think is marked, commencing "While s 64 may not prevent", goes on to point out that that requires:
that salaried office bearers of the Executive Government.....be appointed to administer a department -
and cannot be -
remunerated for the occupancy of, the office of Assistant Minister or Parliamentary Under-Secretary - at least without risking disqualification -
and then goes on to point out that there are other ways of creating assistant ministers if need be. In a commentary on that, which is not included in the bundle but which we have provided to the Court this morning, Professor Encel in the same work says at the foot of page 160 that:
The Whitlam Government, however, made no attempt to deal with -
that issue relating to -
the appointment of assistant ministers and parliamentary under-secretaries. As I have pointed out elsewhere, all governments have tried to dodge the fact that such appointments cannot be made without a constitutional amendment legalizing payment for this purpose.
So, while trying to do it may not be new, the presence of writings by constitutional scholars of great standing asserting that the practice is not valid is also not new.
The final point deals with the Minister personally for the purposes of section 501(4). In 1999 there was only one Minister administering the Department of Immigration and Multicultural Affairs. The then ministry, the second Howard ministry, is set out at tab 4.16 of the prosecutor's bundle and at 4.17 is the relevant department, Minister for Immigration and Multicultural Affairs, Mr Ruddock. Two lines beneath that appears his Parliamentary Secretary, the present respondent, but there is no suggestion that she was then a Minister, so the second reading speech in referring to the Minister being accountable or responsible can only have referred to the real Minister himself.
As we saw the other day from the second reading speech on the introduction of the Ministers of State Act Amendment Act 1 of 2000, that Act was not intended to change the actual functions of the parliamentary secretaries. It was not represented to Parliament that the effect of that Act would be to turn the parliamentary secretary into the Minister personally and thereafter be able to exercise the powers reserved to the Minister personally, and one thinks that Parliament might have reacted somewhat if that had been suggested.
For those reasons, the submission that a contrary intention appears in respect of the words "the Minister personally", namely, that that power be reserved to the real Minister, remains, in my submission, good.
GUMMOW J: What do you say, Mr Brereton, as to the appointments made from 1987 and onwards, for example, in respect of Foreign Affairs and Trade?
MR BRERETON: I think, your Honour, in many of those - - -
GUMMOW J: Do you say that they fall foul of your submissions or not?
MR BRERETON: If those appointees were not also appointed to administer a smaller department in their own right, then they fall foul of my submissions. I think your Honour will find that, at least in a number of cases, they were appointed to administer small departments in their own right but that may not be so under the Hawke ministry, evidence of which was afforded yesterday. Those, if your Honours please, are my submissions.
GLEESON CJ: Thank you, Mr Brereton.
Whatever the outcome on the other issues argued on behalf of the prosecutor including, in particular, the issues concerning parliamentary secretaries and the scope of the aliens power, at least a majority of the Court is of the opinion that in the circumstances of this case and on the material before the respondent, the respondent made a jurisdictional error in deciding to exercise the power given by section 501(3) of the Migration Act 1958 of the Commonwealth to cancel the visa of the prosecutor.
Because the prosecutor is in detention, the Court considers that it should now make an order absolute for certiorari to quash the decision of the respondent made on 30 June 2000 to cancel the visa of the prosecutor and an order absolute for prohibition prohibiting the respondent from further proceeding on that decision. The respondent must pay the prosecutor's costs.
Reasons for the conclusion stated, together with reasons dealing with such of the other matters agitated on the hearing of the application as may fall for consideration will be published at a later date.
AT 2.17 PM THE MATTER WAS ADJOURNED
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