Te, Ex parte - Re Philip Ruddock, MIMA M25/2001 [2001] HCATrans 530 (18 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M25 of 2001

In the matter of -

An application for writs of Certiorari, a writ of Prohibition, Injunctions and Declarations against the Honourable PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

MENG KOK TE

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 18 OCTOBER 2001, AT 10.44 AM

Copyright in the High Court of Australia

MR C.M. MAXWELL, QC: May it please the Court, I appear with my learned friend, MR D.A. PERKINS, for the applicant/prosecutor. (instructed by Access Law)

MR W.S. MOSLEY: If your Honour pleases, I appear for the respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, Mr Maxwell.

MR MAXWELL: Your Honour, I am conscious that when I was before your Honour on a recent occasion on a similar application an outline of argument had been filed sufficient to identify the way the applicant's case would be put. It may be that your Honour has divined enough from the way the draft order nisi is drawn - - -

HIS HONOUR: No. I have read the papers. You should make no assumption that I can understand the way in which the case is put.

MR MAXWELL: If your Honour please. I was assuming that to be the case.

Perhaps by way of preliminary, it is important to point out to the Court that notice that the matter was on today was only given on Monday. We make no criticism of that but the result was that I was only retained on Tuesday and being absent interstate yesterday I was not in a position to settle an outline until this morning. That, I raise, your Honour, for this reason: there is now an outline which will suffice, at least for present purposes, to enable me to explain to your Honour the chief points in the case.

If my learned friend has seen neither hide nor hair of the outline, and naturally will be as much taken by surprise as your Honour is, we are of course are in the Court's hands as to how the matter is most conveniently conducted for the benefit of your Honour. But perhaps before that is taken any further, I will provide to my learned friend and to your Honour the outline.

HIS HONOUR: Yes, thank you.

MR MAXWELL: To put it shortly, your Honour, this is Patterson by analogy.

HIS HONOUR: Yes.

MR MAXWELL: Your Honour, perhaps if I draw your Honour's attention to how that will be put. As your Honour recalls - I have a copy of the unreported print of Patterson to hand up.

HIS HONOUR: All right, yes.

MR MAXWELL: The Court there said that for present purposes the corresponding power in 501 to cancel a visa was founded, and in the proceeding was defended, in its application to Mr Taylor on two heads of legislative power: the power with respect to immigration and the power with respect to aliens. It was common ground as to the first of those two that Mr Taylor was what has come to be known as an absorbed person. As we have set out in paragraph 1 of this outline, it is the law of Australia - though this is a formulation from the judgment of Justice McHugh - that a non-citizen ceases to be an immigrant when he or she is absorbed into the Australian community.

HIS HONOUR: Let that be assumed, and I understand the force of the arguments about the immigration power, it seems to me that the more immediately troublesome question is whether 501 finds relevant support under 51(xix) "naturalization and aliens".

MR MAXWELL: Yes, your Honour.

HIS HONOUR: So, perhaps if we come directly to the aliens question. How is it said that Mr Te is not an alien?

MR MAXWELL: Your Honour, it is said in paragraphs 7 to 10, if I might refer your Honour - - -

HIS HONOUR: Yes, I have read that.

MR MAXWELL: We put it in two ways, your Honour, that applying, in the first place, Justice Gaudron's formulation which she herself recalled from Nolan:

an alien is "a person who is not a member of the community which constitutes the body politic of the nation State -

Australia.

HIS HONOUR: Sorry, where does she say that?

MR MAXWELL: Paragraph 37, your Honour. I am not sure whether my learned friend has it but I will certainly have a copy for him.

HIS HONOUR: Yes. You see, I cannot find that in 37.

MR MAXWELL: Your Honour, might I hand up my copy because - it may be 33 in your Honour's print. The draft of the outline referred to 33. I could not find it in 33 but found it in 37 of what I printed off the Internet myself.

HIS HONOUR: Paragraph 33 is the - - -

MR MAXWELL: "As I pointed out in Nolan"?

HIS HONOUR: Yes.

MR MAXWELL: Yes, your Honour, that is the paragraph. We say that for the purposes of the grant of an order nisi there is an arguable question whether, as we assert, the prosecutor, by virtue of the factual matters which have been set out higher up in the outline going to his absorption into the community, whether he is not, as we contend - paragraph 8 - a member of the community which constitutes the body politic of Australia.

HIS HONOUR: As to that, and the reference to membership of the body politic, in what sense is it arguable that Mr Te was a member of the body politic? Could he, for example, vote? What recognition - beyond permission to reside permanently constituted by arrangements reflected in absorbed persons visas and the like, what recognition is there or was there that he was "a member of the community which constituted the body politic of the nation state"?

MR MAXWELL: Your Honour, we would approach the question differently, and much will turn, in our respectful submission, on an investigation of what the term "body politic" denotes, and connotes, for that matter. But we would say that the government of Australia governs the body politic and, indeed, I recall that there is a reference to this in the Acts Interpretation Act which I have not in the time looked at or there is a definition separate from the definition of "body corporate". So, we would say this person being a longstanding member of the community possessing a permanent resident visa, so he has lawful - up to the point of the decisions against him - permanent indefinite residence, is a person for whom the government under the Constitution governs and who is subject to the laws of that body politic.

Your Honour, to answer your Honour's question, he cannot vote, I am instructed. It is not a matter that I have had time to check but I am instructed he cannot vote. In our respectful submission, that very question whether entitlement to vote is a necessary condition of membership of the body politic is a question which requires investigation and which was not necessary to investigate in the Taylor matter. In any event, what is important about the phraseology is it is membership of "the community which constitutes the body politic" rather than "membership of the body politic" which we would respectfully submit might take on a narrower character.

We have set out in the earlier paragraphs in the outline why it is contended that he is and has been for many years a member of the Australian community. There are, as your Honour knows, many instances of longstanding members of the Australian community who retain citizenship elsewhere though we have gone on to say in the next part of the argument on alien status that this applicant does not.

HIS HONOUR: Does it follow though from this contention that the majority view in Patterson; Ex parte Taylor could have been formed by a reference to the bare fact of longstanding residence by permission and that questions of monarchical government that loomed so large in the reasoning of the majority were not immediately to the point presented by the constitutional term "alien"?

MR MAXWELL: In our respectful submission, that could be said. We draw attention, for example, to paragraph - I think it would be 30 in your Honour's print. Mr Taylor came on his father's passport.

He has resided in Australia ever since. He was educated here and has made his home here.

Each of those things is true of my client, that is to say, the last two things: he has resided in Australia ever since he came here; he was educated here and has made his home here. Indeed, he has married here and worked here. Mr Taylor had:

been on the electoral roll since attaining the age of 18.

Though he had "not taken out Australian citizenship" and, that, I assume, is to do with exceptions in favour of those with British patriality, otherwise I am unable to explain why it is that my client would not also be or be eligible to be on the electoral roll. But your Honour will note that Mr Taylor had not applied for a passport; had not taken out Australian citizenship. So, he was in the same condition with the exception of being on the electoral roll as my client is, and yet no question arose of doubt about whether he was a member of the community constituting the body politic. In our respectful submission, the formulation which your Honour has put is one which is open for exploration in the light of those reasons. What is important about this case which my client seeks to bring is to spell out the significant implications of Taylor for someone who was not a British subject.

HIS HONOUR: But at the point Mr Te arrived in Australia was he then an alien? The day after he landed.

MR MAXWELL: Well, your Honour, we say in paragraph 10 that on the date of his arrival he owed no allegiance to Cambodia. It could hardly be argued that he, at the point of entry, owed allegiance to the Queen of Australia.

HIS HONOUR: Well, he may have felt no allegiance to Cambodia. That I could readily understand, but, for example, whether - leave aside minor difficulties like age - he was then:

under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power -

within 44(i), would, I would have thought, raised a quite considerably different question.

MR MAXWELL: With respect, yes, we accept that and as her Honour acknowledged in paragraph 33 that is a different question from the question about membership of the relevant community.

HIS HONOUR: But at the date he arrived why would he not have been classified then as an alien, just as then he would have been within the ambit of the migration power on the day he arrived?

MR MAXWELL: Your Honour, we would respond to that in two ways: one, to say that it is at least an open question whether someone who is a refugee within the meaning of the Refugee Convention, that is someone who is abandoning - and I use that to bring in the notions of abandonment of legal rights associated with property or some other right or title. If someone is a refugee, he or she is enacting an unconditional abandonment of the country of origin by reason of a well-founded belief in persecution and, in our respectful submission - - -

HIS HONOUR: And that the state of which he is a citizen will not or cannot protect him from it.

MR MAXWELL: Just so. In our respectful submission, that would raise at the very least a triable question whether that person is under any "acknowledgment of allegiance, obedience" et cetera, since the assertion implicit in seeking refuge in another country is the exact opposite. "I acknowledge neither allegiance nor obedience to that government which has so forsaken me and the legal protection of my person, my rights, that I have had to leave and it is that very reason that I seek the protection of the other country" - in this case, Australia - "under the Refugee Convention".

Even if we were wrong about that, in our respectful submission, the question is to be asked, "As at the date when the power is purported to be exercised against him", which, of course, is not July 1983 when he arrives at the age of 16 but July 1998 when he is 31 and has done all the things as, we would say, a member of the body politic, but, as we say in paragraph 10, subject to and in accordance with the laws of Australia. By then, we would respectfully submit, a fortiori, on the refugee point, his allegiance is to the Queen of Australia. He has been subject to the criminal laws of this country - indeed, that is the foundation of the deportation action against him - and he has conducted himself in all respects as a person obedient to the laws of Australia, subject to them, and when he has breached them he has, naturally enough, suffered the penalty which they impose on him.

So that the question of his status at the date of entry is one thing but the critical question is his status at the date of the decision because it is at that stage only when the Court has to ask the question, "Is that power valid in relation to him?", that being the Patterson question.

HIS HONOUR: Yes. Well then, does it rise higher than the statement in Justice Gaudron's reasons at 33? Is that the best support you pray in aid, because the next question is, are there other statements in other judgments to which I should have regard?

MR MAXWELL: Yes. Well, your Honour, given the difficulties of time, I would seek your Honour's leave to file a supplementary outline before the end of the day in that the importance of the matters and the importance of drawing your Honour's attention to helpful and, of course, unhelpful passages means that I require that opportunity which, in the circumstances, has not been possible. That is a long way of saying I am not able to point your Honour to another comparable passage as I stand here.

HIS HONOUR: Yes. Can I leave over that aspect of it. What is the decision or are the decisions that you say should be the subject of order nisi?

MR MAXWELL: Your Honour, we have a further amended draft order nisi which is similar to the one - - -

HIS HONOUR: This application was first filed on 21 March 2001.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: We are now at 18 October 2001.

MR MAXWELL: Yes, your Honour. Well, your Honour, might I say in that - - -

HIS HONOUR: There are 24 hours in the day; there are seven days in the week. A lot of those hours and a lot of those days have to be devoted to the work of this Court. They are not to be devoted to letting counsel catch up after the event. It is not satisfactory. I have said my piece but I say it as firmly as I can: this is unsatisfactory.

Well, it seems that there are two decisions, one of which was made as long ago as 10 July 1998. Why should you now be permitted to challenge a decision made so long ago?

MR MAXWELL: Your Honour, the only answer my client can give to that is that it is only since the decision of this Court on 8 September that he has the substantial ground, the primary ground which he now advances and the associated point which I have not yet taken your Honour to about the Racial Discrimination Act.

HIS HONOUR: Yes. Why is the decision of the delegate still relevant given the subsequent proceedings that were taken in the AAT?

MR MAXWELL: It is not, your Honour.

HIS HONOUR: As to the AAT decision that was made - - -

MR MAXWELL: 22 September last year, your Honour.

HIS HONOUR: - - - and the affidavit was filed within six months, were any of the grounds now sought to be agitated matters that could have been the subject of application under section 44 of the Administrative Appeals Tribunal Act to a Federal Court?

MR MAXWELL: Your Honour, the matters raised in paragraphs 8, 9, 10 and 11, those matters were as arguable then as now.

HIS HONOUR: Why were not the other grounds arguable on a section 44 proceeding?

MR MAXWELL: The matters raised in paragraphs 1 to 7?

HIS HONOUR: Yes.

MR MAXWELL: They were, your Honour. The only point I was making was one of the crystallisation of the point. On my instructions, the application to this Court raising the points about absorption and not an alien, that occurred, as your Honour pointed out, in March, my instructing solicitor being aware that the point had been argued in Patterson and reserved. That is only by way of repeating that those instructing me had not adverted to the Patterson argument until others did so in this Court. It having been raised, they sought to raise it in this Court and your Honour is aware, and it is important to draw attention to it, that the strict time limit in the Federal Court, the unbreakable time limit for the raising of an ultra vires point, prevented by that time these points being raised in that court.

HIS HONOUR: Sorry, why? The 28 days under section 44?

MR MAXWELL: Twenty-eight days, yes, your Honour. It is not suggested - indeed, I have already made the concession - that this would not fall within 476(1)(b), that is that it would be a ground of review:

that the person who purported to make the decision did not have jurisdiction to make -

it.

HIS HONOUR: But would those provisions have been engaged in this case? As a deportation decision, would you have - having gone to the AAT under the regime as it then existed, could you not go from the AAT, to the Federal Court, under section 44 of the Federal Court Act just as a so-called appeal from the AAT, without the engagement of Part 8 or Division 8?

MR MAXWELL: Yes, your Honour. No, with respect, that would seem to be correct. In our respectful submission, notwithstanding the time that has elapsed, if your Honour accepts the submission that this is a serious question about whether my client could satisfy the non-alien second limb of Patterson, assuming for the sake of the argument that he would satisfy the first limb on the facts being an absorbed person, that that is a serious question to be investigated in this proceeding. If it is right, then there was no power to order his deportation in July 1998.

He has been in immigration detention since then, pursuant to that order, "detention in aid of deportation", and his liberty, accordingly, attends the outcome of this application. In my respectful submission, those matters ought weigh heavily in any consideration the Court gives, both as to the strength of the propositions sought to be argued and as to any adverse consequences which might flow from the length of time which has elapsed since the decision of the Tribunal.

The alternative, which I am not in a position to make helpful submissions to your Honour about is whether an extension of time could be sought from the Federal Court to have the matter reviewed as an error - on the section 44(i) ground to which your Honour has drawn attention or, alternatively, whether, as your Honour raised with me on the previous occasion, where Part 8 did apply, whether this would not be a matter proper for remitter to the Federal Court which would achieve the same result by a different legislative means, there being no comparable - - -

HIS HONOUR: I would not be minded at the moment to remit unless there is some dispute of fact. If there is a dispute of fact, then I would very likely consider remitter for determination of those disputes of fact. If there is none, if I were to grant an order nisi, I would not at the moment be minded to remit.

MR MAXWELL: If your Honour please.

HIS HONOUR: What is the RDA point that it is sought to agitate?

MR MAXWELL: Does your Honour have that Act to hand?

HIS HONOUR: Yes.

MR MAXWELL: I did make some copies of the relevant provisions.

HIS HONOUR: No, I have that, thank you.

MR MAXWELL: Your Honour, it is put shortly in paragraph 12 of the outline but in short, your Honour, it is this. If the effect of Patterson is that a British subject who would otherwise be liable to deportation in the same situation as a non-citizen who is not a British subject, then the operation of the power to deport or the power to cancel a visa is such that, in the words of section 10:

persons of a particular, race, colour or national or ethnic origin -

in this case Cambodian -

do not enjoy a right -

or, we would say, an immunity, a freedom -

that is enjoyed by -

a person, Mr Taylor, of British origin, because it is by virtue only of his having been born in Britain, on a narrow view of Patterson, that he is invulnerable to an order cancelling his visa where - - -

HIS HONOUR: One is an alien and one is not is the premise for this part of the argument, is it not?

MR MAXWELL: Yes, your Honour.

HIS HONOUR: If Mr Te is not an alien, then we never get there.

MR MAXWELL: That is so, your Honour.

HIS HONOUR: Mr Te is an alien, we are into this argument.

MR MAXWELL: Exactly so, your Honour, and it is to say, accordingly, that if the interpretation of the aliens power or the meaning of the word "alien" for the purposes of that paragraph of the Constitution is such that section 200 can apply to Mr Te and not to Mr Taylor, then the only distinction between them is one of racial origin, ethnic origin, and that means that section 200 operates in a discriminatory fashion.

HIS HONOUR: But the consequence of that is, is it, that fastening on national origin as the relevant discriminator, 9 forbids, does it, treating aliens differently from citizens? It is a very large proposition. Is that at root the proposition that is advanced - - -

MR MAXWELL: It is not, your Honour.

HIS HONOUR: - - - you cannot treat an alien differently from a citizen?

MR MAXWELL: No, your Honour, it is not, because Mr Taylor is not a citizen.

HIS HONOUR: Just so.

MR MAXWELL: Yet he gets the benefit of exemption because he is not an alien because he is British, whereas Mr Te does not get the benefit because he is an alien because he is Cambodian. That is the only distinction between them. Neither of them has Australian citizenship. He happens to be on the electoral roll for reasons presumably associated with the peculiarity of his Britishness, but neither of them has become a citizen of Australia, yet he will get the benefit of immunity from the penal provisions of the Migration Act whereas my client will not.

Accordingly, an act done by the Minister against my client, in our respectful submission, is an act involving a distinction based on national origin, inevitably involving that distinction because of the hypothesis that Patterson does not go any further than British subjects.

HIS HONOUR: Can we go back several stages. Firstly, I have just called for and received Gerhardy v Brown [1985] HCA 11; 159 CLR 70 where at 92 and following Justice Mason examined in some detail the operation of sections 9 and 10, true it is, in connection with native title issues, but in a way that may be useful. His Honour said at 92:

The operation of s 9 -

of the RDA -

is confined to making unlawful the acts which it describes. It is s 10 that is directed to the operation of laws, whether Commonwealth, State or Territory laws, which discriminate by reference to race, colour or national or ethnic origin. Accordingly, we must look to s 10, rather than to s 9, of the Commonwealth Act, in order to determine the impact which that Act has on -

a particular State Act his Honour was then considering. So if we work through section 10 a moment:

If, by reason of, or of a provision of, a law of the Commonwealth -

relevantly presumably the Migration Act section 500 plus 501 and associated provisions -

persons of a particular . . . national . . . origin do not enjoy a right -

and that means a human right rather than a more strictly defined Hohfeldian right -

do not enjoy a -

human -

right that is enjoyed by persons of another . . . national . . . origin, or enjoy a right to a more limited extent -

then section 10 supplies the right.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: Now, how is that engaged in the particular circumstances of this case? How does it operate?

MR MAXWELL: The human right is the right to freedom or liberty. That right is enjoyed to a lesser extent where there is susceptibility to an executive act pursuant to legislation which will have the effect of taking it away, a fortiori, when that, in fact, occurs.

HIS HONOUR: But is it freedom or is it the freedom to remain in Australia, which is a rather different concept I think?

MR MAXWELL: I accept that, your Honour. I was thinking of the detention power. It is as your Honour puts it to me. The corollary, as in the present case, is the loss of liberty absolutely, to which Taylor is not exposed but the principal thing is the - - -

HIS HONOUR: But the detention is ancillary.

MR MAXWELL: It is, your Honour. I accept that.

HIS HONOUR: The real provision we are fussed about is the provision that would see him removed.

MR MAXWELL: Yes, your Honour. I accept that. It is more difficult, I respectfully concede, to say that the international - I am not sure what the international covenant would say about the - - -

HIS HONOUR: It would astonish me if it was engaged in a way that said a nation could not deport criminal aliens. Inevitably, once you introduce the concept of "alienage", you are referring to national origin, I would have thought.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: You may also have race, colour, et cetera, considerations, though probably not, I think. I think it is probably national origin which is the bite.

MR MAXWELL: Your Honour, it is not put that there would be any inhibition. Indeed, it was discussed in the Tampa Case, that there is the power - indeed, the provision of the Constitution is beyond doubt that there is power to make laws with respect to aliens, but if a law made in purported exercise of the power - well, we are really back to where we were. If by reason of the operation of the provision of that law founded on the aliens power person A, who is in all other respects the same in material respects as person B - - -

HIS HONOUR: But for national origin.

MR MAXWELL: - - - but for national origin - - -

HIS HONOUR: Which makes him/her an alien. That is the conundrum I get into, that the RDA seems to - if there is substance in the grounds advanced, the consequence is that the RDA prevents any deportation of an alien. That is a pretty large proposition and at the moment I do not understand where the halfway house would lie. If there is a halfway house, that may assist your contention. The absolute proposition seems to me at the moment to be unduly large.

MR MAXWELL: Yes, your Honour. I accept the force of that. One related argument may be that one would argue for the primary contention -accepting that for the moment I cannot formulate any middle ground because, as your Honour says, the power fastens on what is said to be the limits of the definition of "alien" and, yes, that is a matter of national origin but that is, as it were, implicit in the exercise of legislative power, but we would, putting that to one side as a separate argument, say in support of the argument for the extension of Patterson for which we contend we would point to what we would say would be the discriminatory consequence of leaving it confined to British subjects.

In other words, the accident of nationality should not be that which saves you from deportation. Yes, there should be a substantive inquiry as to whether you do or do not owe allegiance, you do or do not belong in the community which is the body politic, but the mere accident of birth in one country rather than another is something which, it is plainly the legislative policy of the Commonwealth, should not differentiate between the way two people, equal in status in the community in all other relevant respects, are treated under the laws of Australia.

That may be a more attractive way of putting it which does not require saying the RDA negates any deportation power in relation to aliens, but rather says it could hardly be right in 2001 that Britishness can be the discrimen of advantage or preference under the law, as it turns out - - -

HIS HONOUR: That view was the minority view in Patterson, Mr Maxwell.

MR MAXWELL: That that could hardly be right in this - - -

HIS HONOUR: But I am duty bound to give effect to the majority view in Patterson.

MR MAXWELL: Yes, your Honour. So that that argument is no better than saying that is part of the context in which raising an issue which was not raised in Patterson obviously, because the Court was not required to consider how much further those arguments might go beyond the peculiarities that go with Britishness given the relationship between Australia and Britain, that would be part of the policy legislative landscape in which this argument for an extension of the non-alien conclusion, that argument would be made.

HIS HONOUR: Yes. What is Article 26 of ICCPR to say in this circumstance?

MR MAXWELL: Your Honour, says equality before the law and without discrimination. So it is an assertion, but it is no better than the RDA point.

HIS HONOUR: Yes. If the RDA point falls, does Article 26 go with it or is there something separate to say about Article 26?

MR MAXWELL: No, there is nothing more to it, indeed, because it is of less direct force than a provision like section 9, which actually declares acts unlawful, or 10, which applies to laws of the Commonwealth, then it is a weaker way of making the same point. We point out that the decision-maker must have regard to, amongst other things, Article 26 and, as Teoh says, you will take into account the covenant in construing the provision. But if your Honour's fundamental point is good, then that will not enable a decision-maker to disregard the alien status of a person, albeit that that happens to be based in a particular case on nationality and what we have described as an accident of birth which will differentiate one from another. If that accident does have the effect that one is an alien and the other is not, then nothing in the Minister's direction would enable us to say that the decision was therefore vitiated and paragraph 14 of the outline is to the same effect.

HIS HONOUR: Now, we then have grounds about unlawful fetter on discretion. As the Migration Act then stood, was the Minister empowered to give general directions?

MR MAXWELL: Yes, your Honour.

HIS HONOUR: What then is the point that is sought to be agitated by ground 7?

MR MAXWELL: Your Honour, there has been, as we mentioned in paragraph 16 of the outline, extensive discussion in the course of - this year - in the Federal Court about the extent to which that general direction can operate in a particular case as a fetter, that is, having the effect of precluding a proper decision on the merits. Now, I do not have copies of those cases to give your Honour now - I am sorry, we do have a set to give your Honour. We would contend that in the present case there was, as it were, a routine application of the considerations in the direction without, in a mechanical or a formulaic way, there being any or any real consideration on the merits.

HIS HONOUR: It seems to be a point that has some currency in Brisbane, is it? There we are. In the circumstances of this case, with Mr Te's history, I should perhaps frankly confess the decision of the Tribunal did not instantly leap off the page at me as one that excited some question.

MR MAXWELL: I accept what your Honour says.

HIS HONOUR: His history is unfortunate.

MR MAXWELL: Yes, your Honour. Your Honour, by way - - -

HIS HONOUR: And what follows from that is that were you to get an order nisi on this ground, it would seem to me to be a fairly thinly disguised means of retrying the merits.

MR MAXWELL: Undoubtedly it would involve a review of the decision and the material referred to in the decision on which it was based but - - -

HIS HONOUR: The man got what, seven with a five?

MR MAXWELL: I beg your Honour's pardon?

HIS HONOUR: The man got seven with a five before the Tribunal dealt with him. True it is, he was deported on the basis of 12 months, three months wholly suspended. He was serving seven with a five for, what, trafficking?

MR MAXWELL: Yes, your Honour. But what I was going to draw your Honour's attention to is paragraph 8 of the draft order nisi, what we say is "an irrelevant consideration, namely, the `expectations of the Australian community'". This is a point which, in our respectful submission, bears some examination in this context because it is typical in submissions of this kind because the direction with respect to criminal deportation says one of the primary matters to take into account is what the Australian community would expect, members of the Department, properly, make assertions for the benefit of the decision-maker in the cases which the Court sees to the effect the Australian community would expect him to be deported.

HIS HONOUR: My fundamental difficulty is I do not know what that means.

MR MAXWELL: Precisely so, your Honour.

HIS HONOUR: But we are dealing with administrative decision-makers, we are dealing with decision-makers who have this ministerial direction. In the end, the nub of the issue is, is this man to be permitted to remain with the criminal history he has?

MR MAXWELL: I accept that, your Honour. The only point we would wish to agitate - we do not put it as high as saying it will justify an order nisi on its own, but if it is asserted categorically, as it tends to be and as I think I am right in saying it was in this case, that - - -

HIS HONOUR: Australians really would want drug dealers out, et cetera. I understand the point but - - -

MR MAXWELL: I understand the force of that, but, your Honour - - -

HIS HONOUR: - - - in the end, I do not think there is much in it, Mr Maxwell.

MR MAXWELL: If your Honour please.

HIS HONOUR: Now, 9, and removal, is that a live issue in this case? I know from - perhaps impermissibly know from other cases that there are questions about removal, at least to some Indo-Chinese countries.

MR MAXWELL: Yes, your Honour. Well, there certainly has been with respect to Vietnam in a case I am involved in.

HIS HONOUR: Yes, but there is no evidence on about this. At least at this stage, it would seem to me not to be a live issue. In the end, Mr Maxwell, it seems to me, if I may say so, that you either get an order nisi on the constitutional grounds and only on the constitutional grounds or you do not. At least, for the moment I am not persuaded about the Racial Discrimination Act grounds or the other grounds about discretion, expectations, removal; 10, distinguishing between rights of permanent resident and privileges of temporaries, seems to me to be either bound up with the constitutional point or not to have substance to it, and 11 and 12 - - -

MR MAXWELL: Well, I would abandon 11 because it is not an error of law in any event.

HIS HONOUR: And 12?

MR MAXWELL: Well, your Honour, I make no submissions.

HIS HONOUR: It does not seem to take you very far, does it? Now, do you want to supplement what you say about the constitutional point. I understand that. It may, however, be useful if I heard first from Mr Mosley about what he has to say on those issues and then we can plot what further course we might take in the matter.

MR MAXWELL: Yes, your Honour. Your Honour, I do not want to have it both ways but I really do, in that - - -

HIS HONOUR: That is what counsel is paid for, Mr Maxwell.

MR MAXWELL: I will respectfully agree with exactly what your Honour has now said and it is certainly the submission of the applicant that the kind of more detailed examination of Patterson in order to decide whether we can - I mean, even if Justice Gaudron was the only who used that particular formulation, in our respectful submission, there is a question both properly triable and not suitable for further investigation on this order nisi application - - -

HIS HONOUR: The threshold is very low, I accept that.

MR MAXWELL: Is low, and accordingly, the very question your Honour asked me, "Well, what did the other Justices say and how are they to be read together?" is a matter - I mean, we have cited Justice Gaudron and Justice McHugh relevantly on body politic and allegiance and we say there are difficult and important questions to be investigated there, a fortiori, because of the discriminatory effect of the decision if it stands only on British subject status.

HIS HONOUR: What troubles me most, I think, can be expressed this way, Mr Maxwell, so that you may have a good chance to grapple with it: if Mr Te was an alien when he arrived, why does he not remain an alien? It seems to me a possible point of view of the decision in Patterson that it was much influenced by the fact that Mr Taylor occupied some middle ground where he owed allegiance to the Crown in right of the United Kingdom and because the holder of that office holds the office of Queen of Australia he was not therefore within the purview of the aliens power. But Mr Te's position differs in that he has never formally acknowledged whether - by reason of birth or formal act on his part, allegiance to Crown in right of Australia. Now, whether that is sufficient reason to refuse your order nisi is the real question for debate.

MR MAXWELL: Yes, your Honour. With respect, I would answer the question only by saying that what we wish to agitate is whether something less than formal acknowledgment, as your Honour puts it, by birth or citizenship is enough where, as we have argued, there is a renunciation of allegiance to the home country exemplified, demonstrated by the act of flight and seeking refugee status which is accepted, and if that were right then this is a person who owes allegiance to nobody. Is there such a character of people in Australia that they are neither one thing nor the other? They owe allegiance to no one.

We would be submitting that the Court would hesitate before reaching that conclusion or declaring that there is such a category, depending on the facts, rather that apart from the transitory situation of a person where he might literally, at the moment of arrival, be stateless and without allegiance, certainly within time - by analogy with the argument about absorption, certainly, but having regard to - no, it is by analogy with those matters that there is membership of the community, subjection to the laws, participation in the community short of casting a vote and that there is, by necessary implication - to borrow a concept - and acknowledgment of allegiance to the Queen of Australia.

HIS HONOUR: Now, some, at least, of those matters are matters about which you may consider that your factual base presently could benefit from amplification. I think the affidavit of Mr Te is economical and conclusory about what his position was when he left the camp in Thailand.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: While it may not even be revealed in his affidavit, I may have gleaned that out of some of the other documents.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: Now, it may be that there is some issue about that. There is then the further question of what are the decisions you seek to quash and what, if any, consequence follows from the section 44 or other review mechanisms that were open to you.

MR MAXWELL: Yes, your Honour. As to the later, my client, of course, accepts that the question of availability and non-pursuit of other appeal mechanisms is a matter which goes to a discretion. There is no iron rule, of course, that that will count against you and for the reasons given, that is to say, the profound significance of the matters raised to the future status of this person, both location and liberty, and given that he is an indigent imprisoned person in relation to his proceedings in this Court, your Honour would be less stringent in applying against him the failure to prosecute that point, a fortiori, when this point is really only six weeks old, by virtue of lack of imagination on our part. Accordingly, reliance on the decision which as been published.

HIS HONOUR: Yes.

MR MAXWELL: As to the decision, your Honour has set us to rights by drawing attention to the decision of the Tribunal which stands as the decision of the Minister pursuant to the AAT Act and it is that decision which we would seek to have quashed. At the same time we have sought prohibition to prevent any effect being given to that decision. But crucially, if it is right, we would seek to have the decision quashed, though prohibition would be sufficient by implication to require the Minister to release Mr Te because, ex hypothesi, he could not be said to be being detained in aid of deportation if the Minister was prohibited from deporting him. If your Honour please.

HIS HONOUR: Yes. Now, Mr Mosley, what do you say I should do, bearing in mind that Mr Maxwell wants to put on further argument about the constitutional point? Should I hear you at all? Should I stand the matter over? What should I do on your submission?

MR MOSLEY: Yes, your Honour. Standing here before your Honour, in light of what your Honour has said, and having only received the applicant's outline of submission this morning and then having been given a further amended draft order nisi, which I have not even had an opportunity to compare with the existing draft order nisi, but there is a heck of a lot of underlining through it which tends to suggest there are amendments which may on their face appear simplistic but may not be so, it appears to me, particularly from what has fallen from Mr Maxwell, that we would perhaps seek to address issues that are not raised, even in the outline, which he has now put orally to your Honour.

In those circumstances, to cut a long story short, it may be appropriate for your Honour to stand the matter over until another day to enable him to finalise his further amended draft order nisi or what other document he seeks to put before the Court and provide an outline of submissions to which we can respond. That would, in my submission, your Honour, the appropriate way to proceed, subject to, of course, the Court's position in terms of time.

HIS HONOUR: What I would be minded to do is to stand it over somewhere to the week in 29 October. I have just sent to check when I have some personal appointments I have to meet, though I would rather not. But if we were to aim for, say, 31 October, would that be suitable to counsel?

MR MAXWELL: Yes, your Honour.

MR MOSLEY: Yes, your Honour, depending upon when we were to receive - we can get the transcript of today, of course, but - - -

HIS HONOUR: Transcript will not be a great difficulty. That will be two or three days, I would have thought. The tapes will go up to Canberra tonight and they should be available there for early next week.

MR MOSLEY: Yes. If we could have Mr Maxwell's - - -

HIS HONOUR: But, more importantly, I would have thought, would be I think I would be wanting any further material, any amended order nisi, any further submissions to be put on no later than Thursday, 25 October. I would hope to be back in Melbourne on the 26th and I would have a chance to look at them and counsel could look them and we could then come back ready to debate the matter at 9.30 on 31 October.

MR MOSLEY: Yes, your Honour. In terms of when your Honour says put on amended order nisi - - -

HIS HONOUR: That is the applicant to put on any amended material or further material by 25 October. If the respondent were in a position to answer that by 4.00 pm 29 October, that is the Monday, that would be desirable. If you want it until the morning of the 30th, then perhaps, but I would really like the 30th free to look at the matter.

MR MOSLEY: Your Honour, we would try and comply with what your Honour has - - -

HIS HONOUR: Yes.

MR MOSLEY: Unless your Honour picks another date other than 31 October.

HIS HONOUR: I do not want to particularly simply because I have a two-week break between Perth and the November sittings and then we sit four out of the five weeks remaining in the year and somewhere in the middle of that there has to be some other work done.

MR MOSLEY: Yes, I appreciate that, your Honour. I was appreciating that last night when I was re-reading Re Patterson; Ex parte Taylor and thinking to myself it might be appropriate that we start writing majority judgments of the Court.

HIS HONOUR: Then would you have anything to say if I said that - - -

MR MOSLEY: My instructor is just a bit concerned about the dates, your Honour, with the weekend and what have you. Would it be possible if we draw the dates such that, without putting too much pressure on the applicant, but that the applicant put on the material that he wants to put on prior to - - -

HIS HONOUR: Not too much sympathy for the applicant having time to put on material, at least sitting here, Mr Mosley.

MR MOSLEY: No, your Honour.

HIS HONOUR: So if we said 24?

MR MOSLEY: Yes, your Honour, that would perhaps assist us in getting some instructions about matters, bearing in mind the weekend, that is all, and then having to file Monday.

HIS HONOUR: I would have thought that there were certain other events happening in the country that might prevent obtaining instructions from Ministers at the moment, but there we are. Perhaps I am mistaken.

MR MAXWELL: Your Honour, we could certainly do it by the 24th, if that made it easier for our learned friends.

HIS HONOUR: Yes, good. Thank you. What I would be minded to do is to order:

1. The applicant to file and serve any amended outline of submissions, any amended order nisi and any further affidavit upon which he intends to rely no later than 4.00 pm, 24 October 2001;

2. The respondent file and serve an outline of its submissions in answer no later than 10.30 am, 30 October;

3. Adjourn the further hearing of the application to 31 October at 9.30 am in Melbourne or at such other time as may be directed; and

4. Reserve costs and certify.

Do counsel wish to be heard against those orders?

MR MOSLEY: No, your Honour.

HIS HONOUR: Then the orders are in those terms and I will adjourn.

MR MAXWELL: Your Honour, might I be on one matter?

HIS HONOUR: Yes, Mr Maxwell.

MR MAXWELL: We are indebted to the Court, that is to say we the legal representatives and on his behalf, our client, for doing what your Honour is proposing to do, which is going to the trouble of sitting against on this application and we very much take the force of what your Honour said earlier about - - -

HIS HONOUR: It is unsatisfactory and I do it simply because there is a man sitting out in prison. I regard the conduct of this application as unsatisfactory. I do not wish there to be the slightest misunderstanding about it.

MR MAXWELL: No, your Honour, but if I might respectfully say this in response. By way of assistance in this jurisdiction which this Court has had foisted upon it, as it were - - -

HIS HONOUR: No, it has not. It is 75(v) jurisdiction, Mr Maxwell. That is fundamental.

MR MAXWELL: I accept that, your Honour, but it is resulting in first instance work of a volume which the Court would not ordinarily have to bear and it is important that your Honour appreciate that it is impossible for counsel on two days' notice, given that there will usually be other commitments, to have material in a form which is proper to present to your Honour. I would ordinarily involve myself - and I am sure this is true of my learned friend - in the detailed settling of material before I put any argument to the Court. Any other situation is quite unsatisfactory and a discourtesy to the Court.

What I would respectfully suggest to your Honour to avoid the inconvenience which is plainly visited on on your Honour as a result of having to come back again is that there be some mechanism whereby a directions hearing could take place or else more notice be given of the application substantively coming on, because it is true that the application was filed some time ago but it was not until Monday that any of us knew it was coming on and that is not in ordinary circumstances enough time to be able to prepare the case to present it in a manner in which one would want to present it to your Honour.

That is meant to be nothing other than a constructive response, to accept the rebuke that your Honour gives but to say to avoid your Honour having to sit more than once on an application for an order nisi if, for example, when the application was filed the Registrar was in a position to convene a directions hearing and say, "Well, his Honour will be available in October; I want submissions filed by so and so", and then counsel could be briefed in advance for the appearance, then I would hope and expect that the inconvenience which has been occasioned might be avoided. If your Honour please.

HIS HONOUR: Yes. I will adjourn.

AT 11.58 AM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 31 OCTOBER 2001