Te, Ex parte - Re MIMA & Anor M25/2001 [2001] HCATrans 567 (31 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

ADMINISTRATIVE APPEALS TRIBUNAL

Respondents

Ex parte -

MENG KOK TE

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 31 OCTOBER 2001, AT 9.31 AM

(Continued from 18/10/01)

Copyright in the High Court of Australia

MR C.M. MAXWELL, QC: If your Honour pleases, I appear with my learned friend, MR D.A. PERKINS, for the applicant. (instructed by Access Law)

MR C. GUNST, QC: If your Honour pleases, I appear with my learned friend, MR W.S. MOSLEY, on behalf of the respondents. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, Mr Maxwell.

MR MAXWELL: As your Honour recalls, this matter was before your Honour and was the subject of some discussion as to how the case was put and your Honour was raising a number of issues about the connection between the propositions for which the applicant contends and the decision in Patterson. Pursuant to your Honour's directions, there have been outlines filed on both sides.

HIS HONOUR: Yes, I have read both of those, and the further amended draft order nisi that you have filed.

MR MAXWELL: Yes. Your Honour will see that with the benefit both of the discussion in this Court on the first occasion and a more rigorous examination of the grounds, all grounds have been abandoned other than the ground which relates to the applicant, so it is contended, not having been either an immigrant or an alien at the date of the purported exercise of the deportation power in relation to him.

It is unnecessary to remind your Honour what the other grounds were. None of them is relied on and the draft order nisi is, accordingly, much shorter and easier to read because it formulates the basis of the claim for prohibition and certiorari on that ground, that is to say, that there was no jurisdiction in relation to the applicant because section 200 did not validly apply to him at the date of the decision.

HIS HONOUR: Let it be assumed that it is arguable that the immigration power cannot found the application of section 200 to him. I understand that the Minister would seek to contest that, but let us leave that aspect of the matter to one side. Am I right in understanding that you have to go further and say the Act can find no relevant support out of the naturalisation and aliens power and thus you have to demonstrate that it is arguable that the naturalisation and aliens power cannot be relied on for valid application of section 200 to Mr Te.

MR MAXWELL: Yes, your Honour, exactly so.

HIS HONOUR: I would understand you to put that on three bases: first a basis of absorption; second, a proposition that he is a member of the community constituting the body politic and, thirdly on a basis that, having departed from Cambodia in the circumstances in which he did he renounced allegiance to that country and, because after his arrival in Australia he was subject to the laws of Australia, his allegiance is and was to the Queen of Australia. Do I accurately summarise the way in which you put it? Can we deal with them in that order? Absorption: am I right in thinking that that is an argument that proceeds from a premise that, at the point of arrival, Mr Te was an alien?

MR MAXWELL: Yes, your Honour. Whatever might be said about his status with respect to Cambodia - and we say that he had renounced his connection - it could not be said that he was a subject of the Queen in Australia. We accept that he was an alien, vis-à-vis Australia, at the point of arrival. We rely in relation to that on what - they define the reference, your Honour - what his Honour Justice McHugh said in Patterson and I have now been working from the Court's print of the report which has your Honour's paragraphing. At paragraph 132 Justice McHugh said that the relevant discrimen is, or the dividing line, is between someone who is a "subject of the Queen and one who is not".

HIS HONOUR: "Someone who is not" being an alien?

MR MAXWELL: That is so, and his Honour uses exactly that phrase "one who is not, that is to say an alien". We accept, accordingly, that whatever we wish to argue about his status as a subject of the Queen at the date of the decision, he was not that at the date of his arrival.

HIS HONOUR: Yes. Is that something that you say pervades the whole of the way in which you put it, or are there alternative ways in which you put it? I have in mind particularly the third branch of the argument, that is the significance of, to use shorthand, renunciation of Cambodian connection?

MR MAXWELL: Your Honour, we rely on that to answer the proposition which the Minister makes, which is, he is and was a citizen of Cambodia and no proof that he is not. That is to say, as I would understand the argument, he owes allegiance to a foreign power or some such notion. The relevance of his renunciation is in relation to arguments two and three, that is to say, he is not disqualified from membership of the body politic and he is someone of whom it can be said he owes his allegiance to the Queen of Australia. He is not disqualified from membership of the body politic by citizenship of Cambodia because he renounced that de facto, but by necessary implication and it is possible to say of him, that he owes his allegiance to the Queen of Australia because it is not true that he owes his allegiance to the government of Cambodia.

HIS HONOUR: Am I right in understanding it as being a repost, a repost to the proposition, "You cannot be because you owe allegiance elsewhere".

MR MAXWELL: That is so.

HIS HONOUR: You say, "No, he does not because that was abandoned, renounced, given up", and leave aside what verbal expression is used, "given the circumstances in which he left."?

MR MAXWELL: Yes, your Honour, and as your Honour pointed out to me on the last occasion, not only that he fled and was accepted as a refugee but that implicit in that was the acceptance of his assertion that he could not find protection from the laws of Cambodia from the persecution of which he had a well-founded fear.

Our absorption and body politic arguments would apply whether or not the person had so renounced citizenship, that is to say an alternative argument would be by necessary implication after 18 years there is a renunciation of any other citizenship, but we do not need to make that argument in this case or its only a fortiori because, in our respectful submission, the renunciation is a powerful circumstance in favour of the applicant.

HIS HONOUR: Yes.

MR MAXWELL: Your Honour, dealing with, if I may, this first proposition. It is, of course, correct that Mr Taylor in Patterson's Case, did assert his absorption as an answer to legislation based on the aliens power. Your Honour, in the joint judgment with Justice Gummow, noted that at paragraphs 160 and 239.

HIS HONOUR: Yes.

MR MAXWELL: At paragraph 240 your Honour has rejected it.

HIS HONOUR: Yes, but that is a minority view.

MR MAXWELL: It is a minority view. Your Honour, it important to point out that as your Honour's formulation in paragraph 239 makes clear, the contention was there made by someone who was not an alien when he arrived in Australia because of his British subjects status, then said, "Well, I have been absorbed so even if my status by virtue of being a British subject has changed because of the constitutional evolution, nevertheless, you cannot turn around and treat me as an alien."

We are, as your Honour has just identified, in a different case in that it is accepted that any benefit obtained from being an non-alien on arrival does not apply to my client but, in our respectful submission, the force of the proposition is the same, that is, it was here to answer the case against him which was, "Well you lost your non-alien status because you are the subject of a foreign power", the Queen of the United Kingdom, and he says "No. Well, look, I have been absorbed so the aliens power cannot extend to me."

HIS HONOUR: If this argument is right - and I understand all I am to be concerned with is whether it is arguable, not whether it is right -76 the majority in Patterson should have overruled not simply Nolan, but also Pochi, should they not? Pochi is wrong if your contention is right, ultimately.

MR MAXWELL: Well, certainly, the passage from Justice Mason in Cunliffe, which is quoted against us by the Minister, is wrong because, as they point out, his Honour says exactly the opposite.

HIS HONOUR: Yes, but the decision in Pochi also would have to go, would it not?

MR MAXWELL: Yes, I think that is right, your Honour.

HIS HONOUR: But the troubling point for me then becomes, why did the majority take the path it did in Patterson, rather than a root and branch approach, saying, "Look, absorption is the critical element". Now, an immediate riposte to that is, "Well, take account of the way it is argued, take account of the facts that give rise to it", and the point on which I seek your submission is, in effect, is that a sufficient answer to what seems to me to be an underlying issue presented by Patterson? Why do the majority solve Patterson in the way they do, rather than saying, "No, look, there is a much more fundamental issue which requires the conclusion (a) Nolan is wrong; (b) Pochi, Cunliffe are also wrong".

MR MAXWELL: Your Honour, for this reason, that it was unnecessary to, on the view which the majority took - - -

HIS HONOUR: There is a minority view expressed about the desirability of expressing views on constitutional issues that were not strictly necessary for the decision, but that did not command the assent of the majority.

MR MAXWELL: But your Honour will recall that while both Justice McHugh and Justice Gaudron noted the absorption argument with respect to immigration and the Minister's concession that for that purpose Mr Taylor was not an immigrant, each of them decided the case on the question of allegiance to the Crown, the Queen, and held that - well, in her Honour's case, there was no power to effectively change his status when there had been a constitutional evolution of which he was unaware and which would not have affected his subjective relationship with the government of Australia.

HIS HONOUR: If you arrived as a non-alien, you could not be rendered alien by constitutional evolution. Do I capture her Honour's reasons sufficiently?

MR MAXWELL: At least in the particular setting where your non-alien status derived from your being a British subject and the subsequent recognition in the Royal Styles and Titles legislation of the divisibility of the Crown, the Crown in right of Australia, and what flowed from his Britishness was that, having been a subject of the Queen of the British Empire, once the separate personifications of the Crown were recognised, he was a subject of the Queen of Australia. No question of absorption arose in that context and that was true of Justice McHugh and Justice Gaudron - - -

HIS HONOUR: And I think Justice Callinan, as well.

MR MAXWELL: Well, your Honour, Justice Kirby, on our reading of his Honour's reasons, accepted the notion of absorption. Justice Callinan puts it a bit differently and certainly is not saying, "I accept the submission that what is good for the immigration power is good for the alien's power". But, in our respectful submission, what I have just said is an answer to your Honour's question, that the primary issue was the Nolan issue which was, does Britishness and residence in Australia before the constitutional evolution mean that those subsequent events cannot turn a non-alien into an alien? Nolan said it does not mean that and the man is an alien. That was overruled in Patterson with the majority saying he was not an alien then and he is not now.

So, in our respectful submission, there is a distinct and important question, and your Honours, in the joint judgment, were the only ones who addressed it squarely and squarely rejected it. Your Honours say, I think, at 247:

There is no reason to conflate the criteria by which there is gauged the scope of the powers of the Parliament on the one hand with respect to naturalisation and aliens, and on the other with respect to immigration and emigration. The distinct considerations which led to the inclusion of the two heads of power in s 51 suggest otherwise. Further, the notion of absorption into the Australian community is one which, the decisions of the Court with respect to the immigration power show, is not easy of application and turns into constitutional facts many details of the lives of individuals.

Now, your Honours dealt with that because your Honours were not persuaded, and likewise the Chief Justice, that there should be any departure from Nolan and that Nolan was right, and in the events which had happened, a non-alien had become an alien and the power validly applied to him. So your Honours did need to deal, in a way the others did not, with the alternative argument which is, "I am absorbed for immigration, I am absorbed for alien's power and it cannot apply to me". Now, it may be, with respect to your Honours, that that is a view which would prevail, because it is acknowledged readily that our first submission does seek to conflate the criteria.

HIS HONOUR: Is this first argument one which finds its highest and best support from Justice Kirby's reasons?

MR MAXWELL: Yes, your Honour.

HIS HONOUR: At 304?

MR MAXWELL: Yes, your Honour.

HIS HONOUR: Am I right in identifying the passage upon which you place chief reliance, being the last two lines on page 108 of the print:

At least in his case, when the attempt was made to treat him as an "alien" (if that was the purpose of the Migration Act) he had been absorbed into the people of the Commonwealth.

MR MAXWELL: Yes, your Honour, and the next sentence:

Once so absorbed, he could not ex post facto be deprived of his nationality status as a non-alien.

HIS HONOUR: Yes.

MR MAXWELL: Now, that is, of course, not this case, but it is - another way of putting that, we will argue if given the opportunity to do so, is once so absorbed he cannot be treated as an alien. In the particular case, it involved deprivation of a pre-existing status - as I have already acknowledged, my client does not have that - but it is in any event. That is the highest it is put, that is the most clearly it is put, and we do not find in the majority judgments otherwise dealing with it because, as I have said, it is put to one side as an immigration question which was conceded in the argument and it was not necessary to be addressed.

We do, in the more general sense - and this will enable me to deal and advance with, in part, the third argument - we do rely on what his Honour Justice Callinan says at 372 and 373. Would your Honour note that on our outline - your Honour is going to see it now - in footnote 6 and 7 we should be referring to 373, and in footnote 5, 372, that is a transposition error.

HIS HONOUR: Sorry, I am behind, 6 should be - - -

MR MAXWELL: 373, as should the next one ibid, and 5 should be 372 which is the place where his Honour picks up what Justice Gaudron said about allegiance.

HIS HONOUR: Yes, thank you.

MR MAXWELL: If your Honour would go to - yes, well, 372, his Honour is dealing with Nolan and cites what her Honour Justice Gaudron had said in Nolan about the status of alien corresponding with the absence of allegiance to a monarch.

HIS HONOUR: Just apropos of that - and I know I am taking you aside from the course of your argument - the much debated and somewhat troublesome decision in Joyce, to which Justice McHugh referred in his reasons. Lord Jowitt in Joyce [1946] AC, particularly at 366, spoke of "the natural-born subject" owing "allegiance from his birth, the naturalized subject from his naturalization" - so much I would have thought was relatively unexceptionable. His Lordship went on to say:

the alien from the day when he comes within the realm. By what means and when can they cast off allegiance?

His Lordship refers to "The natural-born subject" not being able:

at common law at any time cast it off . . . Nor can the naturalized subjects at common law.

His Lordship then goes on:

It is in regard to the alien resident within the realm that the controversy in this case arises. Admittedly he owes allegiance while he is so resident, but it is argued that his allegiance extends no further.

The facts of Joyce's Case, of course, are well known. But his Lordship there seems to be speaking of allegiance as being owed by an alien, at least during residence, and the decision in Joyce's Case seemed to extend it beyond the point of residence. Is "allegiance" in that context being used in some way different from the way in which, for example, her Honour Justice Gaudron was using it in the passage in Nolan cited by Justice Callinan? What is the concept of "allegiance" that you say lies at the core of notions of alienage?

MR MAXWELL: Your Honour, our submission is that his Lordship is using it in the way we seek to use it and that there is no meaningful distinction between its use there and its use in these judgments and in the passages from Holdsworth which Justice McHugh quoted. But if I might, your Honour - - -

HIS HONOUR: Mere subjection to the law makes you no longer an alien?

MR MAXWELL: Well, your Honour, if I might take you to what you and Justice Gummow said in 224 - - -

HIS HONOUR: It is called "reading up your priors" in other contexts, Mr Maxwell.

MR MAXWELL: No, your Honour, it - - -

HIS HONOUR: Yes, 244?

MR MAXWELL: 224. As your Honours there say, it is about:

the relationship between an individual and a sovereign power from the point of view of the individual -

and we respectfully adopt that -

and principally by reference to duties and obligations which the individual may owe to that sovereign power.

And we respectfully adopt that. The important question, in our submission, which this case will raise if it proceeds, is exactly the question your Honour has lighted upon, that is to say, "What is the content of the concept of allegiance?" Given, as the judgments show, that it began in a feudal notion of personal fealty, what does it mean to say that, as we contend, Mr Te owes allegiance to the Queen of Australia? What duties and obligations could be expected of someone to constitute a relationship of allegiance, other than that he obeys the laws which the sovereign, the Crown, and the Parliament lay down - - -

HIS HONOUR: Does that mean though - - -

MR MAXWELL: - - - and that he files a tax return, and so forth? He does not vote, but that is not - that is an obligation if he is registered. It is not an obligation as a resident of Australia to vote and, indeed, he is ineligible, unlike Mr Taylor, because he does not have a British patriality.

HIS HONOUR: But does that mean that at the moment Mr Te landed in Australia he ceased to be an alien?

MR MAXWELL: The logical extension of it is that, your Honour. We understand that that is how the proposition will fall to be tested, though - - -

HIS HONOUR: But does it mean that the visitor who gets off the United Airlines flight with a US passport and passes immigration control, simply to visit Australia for a day, is not an alien?

MR MAXWELL: No, your Honour, and it may be that - we could hardly support a proposition which had that consequence.

HIS HONOUR: So what is the criterion of distinction?

MR MAXWELL: And it may be that what we would ultimately ask the Court to formulate is a composite test which involved absorption and allegiance, that is to say, there is membership of the community and allegiance to the government, and that the kind of allegiance to which your Honour has referred which is, "Well, you have to obey the speed limits when you first arrive at Port Melbourne", is not allegiance in the sense in which the term is used, that is, temporary obedience that any visitor to any country owes, but it is appropriate use of the term to say of someone who has lived as a permanent resident in Australia for 18 years, "He is a subject of the Queen of Australia".

But there is nothing odd or counter-intuitive about that, but the 18 years, of course, I am immediately bringing in the issues about absorption, that he is someone who belongs to this community, so his relationship to the Australian Government and the allegiance which he owes is qualitatively different from that of the transitory visitor, let alone the new arrival.

HIS HONOUR: Yes.

MR MAXWELL: So, in a sense, the three arguments support each other because, so far as the conflation goes, we do respectfully submit that at this stage in Australia's constitutional legal history, there is a question whether there is a material difference between saying someone is an immigrant and the court so early recognising that that status is something you can shed by effluxion of time and by conduct.

In our respectful submission, it is a sensible extension of that proposition to say you can shed your alien status by effluxion of time and by conduct. "If you come and stay for six months and then go home, no one, I think, is going to seriously argue that you shed your alien status in that time." If you have done all the things that this man had done, as we set out in our outline then, in our respectful submission, it is a reasonable proposition that what is good for his ceasing to be an immigrant is good for his ceasing to be an alien.

HIS HONOUR: Yes.

MR MAXWELL: Your Honour, it is because, of course, an alien is vulnerable to deportation in a way that a permanent resident whose curriculum vitae was otherwise identical, is not. That is to say, educated, worked, married, broke the law, imprisoned. A permanent resident who is not an alien cannot be deported for that and the Australian community has not suggested he or she should be. Remaining an alien means that even after 18 years you are at risk of being thrown out of the country. That is why, in our respectful submission, it is a question which deserves examination and, in our respectful submission, the factors, your Honour, in the joint judgment, point out that it involves questions of fact and degree cannot be a complete answer to the submission any more than it has prevented the absorption test being adopted with respect to immigration.

HIS HONOUR: Does it in any respect depend upon subjective intentions of the person concerned?

MR MAXWELL: On our submission, yes, your Honour, though we can readily see the difficulty which would attend that - - -

HIS HONOUR: You are factually very thin. There is very little evidence, I think, of any subjective intention, is there?

MR MAXWELL: Your Honour, my learned instructor has prepared a table which we would hand up to your Honour now which supports the propositions of fact on which we rely.

HIS HONOUR: Just one matter of information. I take it that there is no further evidentiary material which you would seek to advance in support of the application? Whatever the fate of the application, we have got the lot.

MR MAXWELL: That is so, your Honour. Your Honour has the evidence. Ultimately, in our respectful submission, this question of principle and whether it is deserving of investigation should not stand or fall on whether there is a sufficiency of evidence in the Tribunal because, of course, the Tribunal proceeding was conducted before these issues were crystallised and - - -

HIS HONOUR: So long as there is no misunderstanding that you have put on evidence of all of the facts that you say are relevant to the constitutional issue which you would seek to agitate.

MR MAXWELL: Yes, your Honour. We say that on the material, because of the propositions in (a) to (i) which are in the outline, and because of the supporting material listed in the right-hand side of that document, there is a proper basis for consideration of the question whether, in the events which have happened, he lost his alien status. All I was meaning to flag was that the Court might well define the principle which is "Yes, as a matter of law, the term in section 51(xix) allows, requires we would argue, an inquiry into whether". That was not an inquiry in which the Administrative Appeals Tribunal engaged. This would be an alternative submission for us, we would be primarily submitting that your Honours would be satisfied that, yes, it is a valid inquiry, and this person lost his alien status, quash the decision as ultra vires.

Alternatively, because the Patterson issues were not alive at September 2000, the matter should be remitted for an inquiry of fact by that Tribunal or to the Minister because it should be quashed for misdirection. That is to say, unwittingly, the Tribunal did not address the question whether this man had ceased to be an alien. The law now says, ex-hypothesise, that there is such a question: decision should be quashed and remitted to the Minister for consideration in accordance with law and with whatever associated factual inquiry was required. Our primary position is there are sufficient facts on which the Court, if it accepts the proposition that these other criteria, short of citizenship, suffice for the shedding of alien status, that there is sufficient evidentiary material to say, yes, this man had ceased to, and as Patterson said, the law did not validly apply to him on 22 September 2000.

In relation to your Honour's important question about subjective and objective, we apprehend that the Court might well say that the test will be as in, for example, profit-making purpose in section 25 of the Income Tax Assessment Act, intention is relevant but - - -

HIS HONOUR: It is not a very attractive constitutional proposition that we should end up with the raft of decisions that section 25 has given rise to I fear, Mr Maxwell.

MR MAXWELL: Your Honour, perhaps I can call on a better example, something my learned junior and I have been arguing about in recent days, that concerning contempt of court. This Court, in John Fairfax, as your Honour may recall, dealt with whether it is necessary to show an intention to harm the administration of justice. The law is clear that it is not. Their Honours, in the joint judgment in that case, said "intention will always be relevant but the question, ultimately, is objectively viewed, do the words have the requisite tendency?" In our respectful submission, some kind of formulation - and section 25 is similar, that is to say, you do not ignore subjective intent - Part IVA of the Tax Act being an unusual case where Parliament has effectively said ignore subjective intent - you do take it into account, but the statement of subjective intent is to be judged by what the person has actually done. It is that on which we principally rely.

The only subjective one is (h), "he regarded Australia as his home". You could put that more objectively and say he treated Australia as his home, and we would say that is just a conclusion based on all the other matters. I am sorry, your Honour, there is a subjective matter in (a), "with the intention of making it his permanent home". Intention at the date of entry probably would not get him very far anyway if he turned round six months later and left.

Essentially, what the case would rely on is the objective facts that he has been here all that time; he did have a permanent resident visa; "there was no likelihood of his returning to his country of birth" is an inference from his refugee status. (d) is just a chronological fact, born 1967, entered in 1983, I think; "attended school and been employed", those facts are established. Has "not left Australia", I think that is established. Has "married an Australian resident" though is not still married to her, and "was a member of the Australian community". Well that is a matter of inference from the facts, a matter of characterisation. We would not expect it to turn decisively on presence or absence of subjective intent but, rather, that one would be looking objectively to characterise his status, on our case, as a member of the community by virtue of length of residence and things which he has done playing his part as a member of the community.

HIS HONOUR: Just to go back to the conflation argument, is a consequence of that, of section 51(xix), would have no greater or different reach from section 51(xxvii)?

MR MAXWELL: Yes, your Honour, I think that is so. We have to meet the argument which your Honours in the joint judgment have pointed to, which is the different bases for the adoption of distinct heads of power, but we would be mounting an argument that a conclusion in 2001 that those two are to be regarded as indistinguishable, is compatible with a view at 1901 that they were distinct, given the sensitivities at the time of the commencement of the Constitution about questions of immigration. Your Honour, that is not - - -

HIS HONOUR: That was the first Act passed by the Federal Parliament.

MR MAXWELL: Indeed. In terms of, I have not and therefore cannot make submissions about how that inquiry would pan out, the point to which your Honours refer, that is, what is the explanation for the different bases and how could that be reconciled with the prosecutor's submission that they now, for practical purposes, have the same operation. To the extent that - - -

HIS HONOUR: It is a fundamental point that troubles me about this, Mr Maxwell. If your argument, by its several branches, comes inevitably to the result that (xix) and (xxvii) have identical reach, it seems to me that there is a radical difficulty in your argument for it is an argument that would, to put it in pejorative terms, write one of them out of section 51. That is a tendentious method of expression but that is the essence of the difficulty that troubles me about this. How do you deal with it?

MR MAXWELL: We do not shrink from it. We do say that it is an arguable constitutional proposition that the denotation of aliens in 2001 in the same as the denotation of immigrants of immigrants, or overlaps relevantly. I have acknowledged in argument that they would have no different scope. Put it differently, it is right to say in 2001 that a person who has been absorbed is not an alien, just as it was right to say in Walsh and Johnson a person who has been absorbed is not an immigrant. Put that way, its consequence is radical but its effect as a statement of fact in law is not, in our respectful submission, radical, not so as to warrant it being rejected without the inquiry which it plainly would require if it proceeded.

HIS HONOUR: Yes.

MR MAXWELL: With respect, that will be the end of the argument rather than the beginning and if your Honour accepts - and, indeed, we respectfully rely on the question about allegiance that your Honour has raised. It is a nice question in the 21st century what allegiance means. "What are the rights and obligations?", to use the formulation of the joint judgment, and how is the rights and obligations which this permanent resident owes to the government of Australia any different from someone who has sworn an oath of allegiance at a citizenship ceremony? That may, ultimately, be the critical distinction, but in our respectful submission, the argument would be that that is form over substance. Someone who has not sworn that oath can be said no less to owe allegiance to the Crown in the circumstances of this applicant. That, at the very least, is a question. It was not a question which needed to be addressed in Patterson because there was simply a logical corollary of the status of British subject that he was a subject of the Queen and it was not necessary to inquire into the content of the duties and obligations.

HIS HONOUR: Yes.

MR MAXWELL: If your Honour accepts, yes, well, on that view, there is an important triable question about what "allegiance" means in the case of someone like this applicant. Leave aside absorption. Then in investigating that question, the Court will determine to what extent those two heads of power have merged.

If there remains a clear distinction, that is to say, that, for example, citizenship is the criterion by which you judge whether someone is an alien or not - and her Honour Justice Gaudron appears to say, after 1987 that was the sole criterion for membership of the body politic - this man was in Australia before that - that might be the answer, but we would respectfully say why should it be if the root notion is allegiance, as several of the judgments suggest. Why does this person, we would ask rhetorically, belong to this country any the less than someone who has formally adopted citizenship and sworn allegiance?

The answer might be because there has to be a point of distinction, and if you formally declare your allegiance then it is beyond doubt to leave it to necessary implication based on the facts, is unworkably uncertain. Our answer to that is it is not proved, apparently, to be unworkably uncertain in relation to immigration, so that cannot be a bar by itself to the adoption of a particular approach. Because of the way Patterson was decided, as I have submitted, it was not necessary to explore the notion of allegiance to the extent, or in the context where we are concerned to, where someone does not have the kind of automatic allegiance that Mr Taylor had once you accept that his British subject status applied to the Queen of Australia.

Your Honour, if I might take you to what Justice Callinan said - we have cited this - it is 373 on page 139:

In the same way as the evolutionary process . . . transformed the meaning of the monarch as used in the Constitution, that process should also have transformed a subject of the monarch born in the United Kingdom - but having lived permanently as a subject of the monarch in this country for the period that this prosecutor has - into one of the people of Australia and a citizen of this country.

We would seek to read into that more than just a statement - that is a broader statement than what Justice McHugh and Justice Gaudron say, which is, "Well, the allegiance to the Queen of the United Kingdom is now allegiance to the Queen of Australia, and that cannot be changed". This is an assertion that is a matter of fact rather than law because of the divisibility of the Crown. This man had lived permanently as a subject of the monarch in this country for the period that this prosecutor has, the long period, longer than my client, transforming him into one of the people of Australia and a citizen of this country.

We would want to argue, as we say in the outline, that Mr Te has lived permanently as a subject of the monarch in this country for the period that he has and has been transformed into one of the people of Australia and a citizen of this country. Mr Taylor was not an Australian citizen, as your Honour recalls, nor is Mr Te. But that did not prevent - that is another question which, in our respectful submission, arises, "Is there content to the notion of citizenship beyond - - -

HIS HONOUR: Well, that is a statutory concept.

MR MAXWELL: A statutory concept.

HIS HONOUR: It is not a constitutional concept.

MR MAXWELL: I accept that, your Honour, it is a statutory concept, but I suppose what we more have in mind is the broader notion of membership of the community. His Honour Justice Kirby refers to phrases such as, "people of the Commonwealth" - - -

HIS HONOUR: That owes much to the way in which Taylor was argued, because Taylor depended - or the argument began, as I recall it, by depending on section 24:

The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth -

and the contention was that if this man were one of the people of the Commonwealth, he could not be within the aliens power.

MR MAXWELL: Yes, your Honour. I had in mind what was said - - -

HIS HONOUR: .....what was dealt with was slightly different but - - -

MR MAXWELL: Yes, your Honour. What Justice Kirby said at 271, the reference to Quick and Garran, that as far as the Constitution was concerned:

"the people of the Commonwealth" represented "the nearest approach in the Constitution to a designation equivalent to citizenship" -

and the learned authors talked about "membership of the Federal community". We would seek to invoke that kind of notion of citizenship in an extra statutory sense to say, well - and that is the sense in which Justice Callinan uses it - and we say it can be used of Mr Te, that he has become a citizen of Australia, just as Mr Taylor had, absent formal citizenship. He is a member - - -

HIS HONOUR: "Citizen" in the sense of non-alien, is that - - -

MR MAXWELL: Yes, your Honour, exactly so, and that is an important question. What content does the notion of citizenship have for constitutional purposes, as being, as your Honour said, the counterpoint to alienship? In any event, as Justice McHugh said at 124 - - -

HIS HONOUR: See, I would have thought not so much 124 as 125 in Justice McHugh, where his Honour referred to Chitty's prerogatives and Joyce. It may be a passage to which you make reference, where his Honour says that:

Whether or not they were aliens, they were under the protection of and owed allegiance to the Queen of Australia as long as they lived here.

Now, again, his Honour appears, to my eye, to be using "allegiance" in a sense that does not inexorably lead to the conclusion that you are not an alien. His Honour prefaces the sentence, "Whether or not they were aliens", they "owed allegiance". So "owing allegiance", in his Honour's view, appears not to be incompatible with remaining alien, but do I read it in a sense that you say is wrong?

MR MAXWELL: No, your Honour. On the face of it, his Honour appears to regard the kind of allegiance to which he is referring, the Joyce type, as not incompatible with somebody being an alien.

HIS HONOUR: I read that as being probably entirely encompassed by the proposition requiring obedience to the law, that allegiance is used in the sense of someone who must obey the law. Now, that seems to encompass everybody within the country, does it not, whatever their constitutional status.

MR MAXWELL: Yes, your Honour, but as your Honour knows from the submissions I have made, we find it difficult to see what other content the notion has in your Honour's formulation of the joint judgment, duties and obligations, in that one has no obligation to go to war if the sovereign decides to go to war, for example. The only obligation which an Australian citizen has as a result of swearing allegiance to the Queen, is to obey the laws made by the Queen in Parliament, one would assert.

That is why, in our respectful submission, it is such an important and interesting question to explore what is the content of "allegiance", and if we are right, and in our respectful submission, it is not obvious that there is something more that the subject of the Queen non-alien Mr Taylor has, which Mr Te does not have after 18 years, then it may just be the time where this special category of aliens does need the further examination for which we contend because of the very powerful legal disability or vulnerability to which those in that category are exposed.

That is, of course, the end of our submission on discretion, which says, accepting that there were remedies which could have been prosecuted elsewhere, this is - and your Honour noted on the last occasion - a question which goes to whether this person can remain in Australia and can or cannot continue to be detained now three years after his sentence of imprisonment expired pending deportation.

HIS HONOUR: For the moment I am far less troubled about discretionary bias than I am about substance, Mr Maxwell.

MR MAXWELL: Yes, your Honour, I accept that.

HIS HONOUR: I do not think I need trouble you on the discretionary issues - - -

MR MAXWELL: I was merely referring to that, your Honour, to point up that, as your Honour knows of course, this is a case where the special vulnerability to which we refer is exemplified and, of course, it applies to very many people, but depending on where the line of principle is drawn, only a proportion of those who would be classified as aliens, but it is of the most profound significance to those who would say, "I am a member of the Australian community. I have behaved as such since I arrived; I have never left, I am not intending to leave; I have had children here", although that is not true of this man, but true of other cases, "and now that I have served my term, it is to be assumed that I will continue to do that".

HIS HONOUR: I do not need persuasion that if the point is arguable, it is a significant point and one of far-reaching application.

MR MAXWELL: If your Honour please. Unless there are other matters, your Honour, I think that concludes the submissions. It is really only by way of supporting argument, your Honour, but we rely - in support of the proposition that it is appropriate and necessary that the re-examination of the concept of aliens which has been undertaken in Patterson should continue into this related but different set of questions - on what is said in the judgments in Patterson about the evolving meaning of the term, and discussion in Justice McHugh, at 109, about constitutional terms which:

apply to the varying conditions which the development of our community must involve.

Similar points are made in Justice Kirby at 312 and 314, and Justice Callinan at 370. So the issue then is whether in the multicultural Australia one founded, since the Second World War on, the participation in the Australian community of immigrants and aliens, whether, as I submitted earlier, the denotation of the term "alien" can now be said to include, as the Minister would have it, someone in the position of the applicant who has become absorbed into the Australian community if that conclusion is open on the facts, and, in our respectful submission, it is, that is to say, that at least he would be held to be beyond the reach of the immigration power - and as your Honour knows, we seek to say that it is time to consider whether that is not also good for the aliens power.

As regards allegiance, your Honour, if I might just mention for completeness, there is discussion in the judgments in your Honour's joint judgment at 148, about the notion of birth within the territory of the realm, having been originally the touchstone of allegiance, and in Justice McHugh, at 115, on the same point, but as Taylor's Case shows, that is not the exclusive determinant because he was born out of Australia and yet was not an alien, and as his Honour notes, Justice McHugh at 124, the distinction relevant to allegiance is not based on formal citizenship but on whether you are a subject of the Queen or not, and Justice Kirby says the same sort of thing at 276.

I have not mentioned - and it may be convenient to leave this for reply - what we say about the Minister's phrase, which is the "indicia of absorption", the phrase used in his outline. We have relied, in our submission about absorption - I think it is paragraph 1 of the outline - on what Justice McHugh said at paragraph 105, and this is the statement about the immigration power. His Honour there refers to a number of cases, including Walsh and Johnson, and if I might just - does your Honour see the footnotes there setting out - this is 105 at page 32, and footnote 63 sets out a number of passages where the point about absorption is addressed. It is, accordingly, a well-developed and long-established - albeit, as is said in one of the judgments, I think perhaps in the joint judgment, of vague - - -

HIS HONOUR: Justice Dixon described it as such, I think, but it is there.

MR MAXWELL: It is there. In Henry's Case, cited in the middle of that footnote, there is a reference to Justice Gibbs. His Honour, at 374, cites this phrase from Walsh and Johnson, "Persons who have made their homes in Australia and become part of its people" - it is a reference from Walsh and Johnson but it is cited in Henry's Case at 374 by Justice Gibbs and by Justice Jacobs at 383. The other quote from Walsh and Johnson is "a member of the Australian community". That is at 62 to 63 in Walsh and Johnson. That is applied by Justice Jacobs in Henry's Case at 383.

Then there is the passage from Justice Isaacs in Potter v Minahan, which your Honours, in the joint judgment, cited at 246 in Patterson. The quote begins at the foot of page 85, or the introduction is the foot of 85 and the quote is at the top of 86, where his Honour Mr Justice Isaacs said:

The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people.

It is immediately after that that your Honours reject the proposition that that test should be applied to the aliens power and, as I have made clear, your Honour, that is the submission we make, that it is a proper test to be applied.

Our learned friends contend that it could not sensibly be argued that Mr Te satisfied that requirement, that is to say, the absorption test, at the date of the decision. That is something of an over-submission, in our respectful submission. It can be sensibly argued that he has been absorbed, for all the reasons that we have set out in that list of facts, because it is open to be concluded on those facts that he has become a constituent part of the community known as the Australian people.

Our multicultural society depends on, or is a definition of a community in which those who come from other countries, do become "constituent parts of the community known as the Australian people". That is what embodies that very concept. For those reasons, in our respectful submission, it is appropriate that the order nisi be granted.

HIS HONOUR: Yes, if I were to grant you relief, Mr Maxwell, it would be, I think, in the form of a direction that application be made by notice of motion returnable before a Full Court rather than by my granting an order nisi, but, as I say, for the moment, that the issue that troubles me is, is a sufficient case made out? Would you have anything to say against my adopting that course were I to form the view that the points are arguable?

MR MAXWELL: No, your Honour, and, with respect, given the way our submission has developed in answer to your Honour's questions, the importance of the matters which underpin it, would make it proper for that course to be followed.

HIS HONOUR: I have asked you this, I think, twice, and you have quite plainly answered it, but were I to adopt that course, the matter would go forward to a Full Court on the state of evidence as it now stands from your side.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: Yes, thank you, Mr Maxwell. Yes, Mr Gunst. Mr Gunst, as you will have understood from the course of argument, subject to anything that you may say, I, for the moment, do not regard the immigration point as being beyond argument and I do not regard the discretion based on alternative remedies as being beyond argument. You understand, of course, I am not shutting you out from making submissions on those points. All I wanted to say to you was that the point which troubles me most at the moment is the aliens point. You should take whatever course you think appropriate to your client's interests.

MR GUNST: Thank you, your Honour. We have made our submissions in respect of the immigration power. They are in writing. There are some things - I might just employ two or three sentences, if I might? The evidence is, as we understood your Honour to say, very thin in respect of the question of absorption and even if your Honour thought there was some merit in putting this matter before a Full Court on the question of the equivalence of the two parts of section 51, equivalence or interchangeability of the immigration power and the aliens power, this would not be a suitable vehicle to do it. The evidence, as we say, is exceptionally thin and - - -

HIS HONOUR: Well, save this: it seems to me, at the risk of oversimplifying and oversummarising, the points Mr Te makes are importantly, (1), "I left Cambodia in circumstances qualifying me as a refugee"; (2), "from that you should infer that", or alternatively, "from that plus subsequent events, you should infer that I no longer have relevant ties with Cambodia"; (3), "I have lived here a relatively long time from a comparatively young age. True it is some of that time I have been accommodated at the expense of the State, but I have lived here. I was educated here; I married here; I married an Australian citizen here and I was divorced by Australian law; I had to obey Australian law and I suffered the consequences when I did not." That seems to be the nub of the absorption case.

MR GUNST: We would accept almost all of that, but just a couple of things which I might say about that. Not a section 36 Convention refugee application and there is a finding of fact by the Tribunal - - -

HIS HONOUR: Though he entered on a Cambodian refugee humanitarian visa.

MR GUNST: Quite so, your Honour, and there is a finding of fact by the Tribunal - and that was in 1983 - in September of last year that the situation in Cambodia is now much changes and this man would not face any punishment or discrimination should he now return to Cambodia. That is the substratum of fact. It is not that he genuinely fears punishment should he now be returned to Cambodia. But we do not say that is a matter that will really exercise your Honour's mind. We just put it forward as an example of the way in which we say this would not be a suitable vehicle for the matter to be tested. But we have said what we say about absorption - - -

HIS HONOUR: But the question is not suitability of vehicle, the question is arguability, is it not? If an arguable case is made out, whether suitable for determination of high constitutional principle or no, either order nisi should go or reference into a Full Court should go, should it not?

MR GUNST: Yes. Can we therefore accept - or make it clear - we do not accept that the applicant has been absorbed, but putting that to one side, as your Honour invites us to do in dealing with the question of aliens, we say there is no argument that can be made at all to support the proposition that this man is no longer an alien. There are several insurmountable barriers, both under the Constitution and on recent and powerful authority, in support of that. Your Honour, we have set out the factual background and we hope that is of assistance to your Honour, in our written outline.

Can we then - we should say, our learned friend, we think - we do not take offence at this - actually misunderstood what we said in paragraph 16 in talking about absorption. I keep saying I will stop talking about absorption and I will in a moment, your Honour. The last part of paragraph 16 of our outline, our learned friend took us to be saying that it cannot sensibly be suggested that he has not been absorbed into the community. All we are saying there is, he comes here at the age of 16 - there is a relevant date, April 1984, for entitlement to an absorbed person visa. What we say is - - -

HIS HONOUR: Section 34, although once raised in these proceedings, now, I think, is properly regarded as a red herring, is it not?

MR GUNST: Yes. All we are saying is that it cannot be sensibly be said that when you come here at 16, that nine months later you are a full member of the Australian community - - -

HIS HONOUR: Yes, I understand that point, but let us put it to the side.

MR GUNST: That is all we are saying in respect to that. Can we go directly to paragraph 18 and following of our outline, your Honour? The applicant is clearly still an alien. He was an alien when he got here, and so much is conceded. As Chief Justice Gibbs says in Pochi, "length of residence" and "intention" are irrelevant considerations to the question of whether one remains an alien. So it does not matter whether a person comes here for a week or a month, or in this case, has lived here for some 17 years, on Chief Justice Gibbs' characterisation in Pochi. That formulation was adopted by Justices Mason and Wilson at pages 112 and 116. We might add to that reference in paragraph 19. There is actually another passage - we should have put in another passage, or a reference to another bit, just a little bit further up the page in Pochi as well, on page 111.

HIS HONOUR: Yes, I have Pochi. Yes, I have that.

MR GUNST: If your Honour has page 111 there. We have cited a passage but we should take your Honour really to the first paragraph on page 111 where his Honour says:

s 51(xix) provides ample power to enact legislation providing for the deportation of aliens. The question whether the immigration power would extend to the case of an immigrant who has become absorbed into the community - a question on which opinions in this Court have in the past been divided - does not arise when the immigrant is an alien.

The argument was put in another way by submitting that the fact that the plaintiff has become totally absorbed into the Australian community meant that he is no longer an alien. This argument is impossible to maintain.

HIS HONOUR: The applicant cannot succeed, as I say, at least to my mind, without overturning Pochi.

MR GUNST: Yes.

HIS HONOUR: Pochi is wrong if the arguments advanced are right. The question then becomes, is it open to the applicant to maintain an argument that Pochi is wrong?

MR GUNST: We will say several things about that, your Honour. The first is that Pochi has been adopted, as to this relevant matter, right up to and including Re Patterson; Ex parte Taylor, as we would say.

HIS HONOUR: Where do you say Pochi was so adopted pre-Patterson? Let us leave aside for the moment the effect of Patterson.

MR GUNST: Yes. We have set out the passage in Chief Justice Mason's judgment in Cunliffe.

HIS HONOUR: Yes. Is there anything else other than Cunliffe?

MR GUNST: Justice Dawson dealt with the proposition at page 358 in Cunliffe, but to say that Pochi is wrong requires one to say that Chief Justice Mason was wrong when he says - and there is a second part we have added emphasis to in paragraph 20, namely:

the immigration power can be put to one side because the aliens power provides a more expansive source of power.

HIS HONOUR: I understand the force of what you say. Is there anything other though than Cunliffe to which I should refer?

MR GUNST: Cunliffe and then we will take your Honour to some of the passages in Taylor. A number of Judges, both in the bare majority in Taylor and also in - - -

HIS HONOUR: You have only to be able to count to four, Mr Gunst. That is all you have to count to, yes.

MR GUNST: It is a majority, your Honour.

HIS HONOUR: Exactly.

MR GUNST: There are a number of passages - and perhaps I will give your Honour a reference to them now - where the authority of Pochi in so far as it extended to aliens who were not British subjects such as Mr Taylor was accepted. Justice Gaudron deals with it at paragraph 39; Justice McHugh at paragraph 99; and Justice Kirby at paragraph 295.

HIS HONOUR: In this respect is Justice Callinan to be understood as having agreed in Justice Kirby's reasons?

MR GUNST: At paragraph 376 Justice Callinan said that he agreed with Justice McHugh's judgment.

HIS HONOUR: Agreeing with Justice McHugh, is he?

MR GUNST: Yes.

HIS HONOUR: Yes, I see.

MR GUNST: That is paragraph 376.

HIS HONOUR: Yes.

MR GUNST: So as we would say, your Honour, and it is really a very simple point - sorry, there is one further point we should say. The Constitution is, in the end, an Act of Parliament, subject to its special status. It is a fundamental rule of statutory construction that each section or each subsection be given some work to do. It is a breathtaking proposition, in our submission, to suggest that two subsections in section 51 are equivalent and one can safely write one out, as your Honour's phrase was as we heard it. A breathtaking proposition. Breathtaking propositions are not always wrong but in this case it is a breathtaking proposition that is flatly contradicted by Full Court authority in Pochi, maintained in Cunliffe and accepted, as to its authenticity, very recently in Taylor, as we would put it. Justice Kirby - - -

HIS HONOUR: There are some other provisions of the Constitution that, at least in the eyes of some, have become redundant, but there we are.

MR GUNST: Fallen into disuse, yes. Perhaps it was a broad statement, your Honour, and I do not want to be taxed with the outer limits of the statement that I made unnecessarily, but - - -

HIS HONOUR: Mr Maxwell wants you to be taxed by the outer limits of the proposition, but there we are. Yes.

MR GUNST: No, it was the proposition I put about section 51 and its subsections, your Honour.

HIS HONOUR: Yes, you were about to take me to Justice Kirby.

MR GUNST: Just to make it clear what we say about that. There is no reason to suppose, other than our learned friend's assertion, that the two subsections are interchangeable, to suppose that they are. As we say, it is not a proposition that has commended itself to the Full Court in Pochi; it is not a proposition that commended itself to Chief Justice Mason in Cunliffe; and, for example, at paragraph 295 it is not a proposition that commended itself to Justice Kirby most recently.

HIS HONOUR: This may be said in support of your proposition, that the expression in (xxvii) "Immigration and emigration" might be thought to refer to a process, an activity, a happening, a doing, people moving; whereas (xix) might be thought to be concerned with status.

MR GUNST: There is no doubt about that, your Honour.

HIS HONOUR: Activities of the kind mentioned in (xxvii) may be seen as having come to an end. Status ordinarily changes not by effluxion of time but by a positive act. Those are very broad statements which are of, I would have thought, limited utility in approaching the construction but might, perhaps, capture some of the reason that underpins the absorption argument in connection with immigration and emigration. The process has stopped. Immigration is no longer happening. Someone has been absorbed. By contrast, naturalisation and aliens concerns status.

MR GUNST: That is precisely what we say, your Honour. Absorption takes place when one becomes a full member of the Australian community. One needs to look at that and that is a question of evidence and we do not want to go back and talk about that again. But it is a process which starts, presumably, on the day you step ashore at Port Melbourne or Tullamarine, and it ends at some stage when one can, on the evidence, be said to have been absorbed.

Status, on the other hand, is something that either exists or it does not, on the authorities. As we say, apart from our learned friend's assertion that the two heads of power are interchangeable, there is no authority for the proposition, none whatsoever. It is a proposition that is contradicted, as we say, by powerful authority over many decades, not starting with Pochi, but relevantly going back to 1983.

Most importantly - and we understand what your Honour says about the way in which cases are argued - dare I say no court, this Court especially, is not bound by the way cases are argued. If our learned friend's proposition were right, it is a proposition that seems to have escaped every Judge in any case that has ever come to this Court for consideration, most recently, all of the Judges who decided Taylor. So that, for example, at paragraph 295, where his Honour Justice Kirby deals with Pochi and his Honour says in Pochi:

Gibbs CJ, with the concurrence of Mason J and Wilson J concluded that "the Parliament can . . . treat as an alien any person born outside Australia, whose parents are not Australians, and who has not been naturalized as an Australian". However, that decision is not conclusive of the present issue. Mr Pochi had been born in Italy in 1939 and did not become an Australian citizen by naturalization. He was not by birth, descent or adoption, a British subject.

We would parenthesise here and say Mr Te is in precisely the same situation as Mr Pochi. His honour goes on to say:

His case did not, therefore, determine the point now in contention.

His Honour need not have done that. All his Honour needed to have said here, as indeed all the Judges need have said, is it is accepted that Mr Taylor has become absorbed into the Australian community; he is no longer an alien. So it is a point that has escaped all of the Judges thus far. We do not mean that as a criticism, save of the argument itself. We say it is an argument that is not supported by logic, it is not supported by authority, and it is not supported by the need to give each of the subsections in the Constitution some work to do. Mr Te was an alien when he came here and he is, and remains, an alien in 2001.

Our learned friend said in support of the proposition that the meaning of the Constitution has changed that immigration was a matter of significant public interest in 1901. We would not want it to be thought that it was not still a matter of significant public interest in 2001. One's common understanding would make one aware that it was, and it remains, such an issue. But that is not determinative of the issue. What is determinative of the issue is the plain meaning of the Constitution and the powerful authority of this Court over decades. As we say, there being nothing in support of the proposition save for an assertion that the two subsections are interchangeable, there is no argument that can be made at all.

We should say something about the question of allegiance. Your Honour raised Joyce's Case. Joyce's Case, of course, turned on some very singular facts and we do not want to revisit them. We would understand the expression "allegiance", "allegiance to the law" that is, as meaning no more than obedience to the law. As we have said in our submission at paragraph 25, there is no doubt that the applicant was, and is, subject to the laws of Australia. As we have said, so are all those who come within Australia's territorial boundaries except, perhaps, for those with diplomatic immunity, as we have said.

One might say that allegiance - I will go back a step. "Allegiance" means an obligation of loyalty in some way. One might say that the allegiance of the applicant to the laws of Australia, that is, his obedience to the laws of Australia, having regard to his history, is rather more a consequence of the coercive powers of the law rather than of any voluntary adherence to it. Nonetheless, the applicant was, and is, and remains, subject to the laws of Australia. But to say that anybody who is subject to the laws of Australia ceases to be an alien is not merely breathtaking, but plainly wrong, in our submission.

Your Honour, we dealt with the question of discretion and we hear what your Honour says about the importance of the matter and we do not want to disagree with your Honour about that. We would say, however - and we have set this out at paragraphs 28 and 29 of our submission, and our learned friends concede this - the applicant had a perfectly good right of appeal to the Federal Court from the decision of the Administrative Appeals Tribunal. The Tribunal's decision was given in September of last year. All these points could have been agitated before a single judge who would, no doubt, have been bound by Pochi and Cunliffe and the like. It could have been taken either from a single judge to the Full Court or to this Court.

The point we make in paragraph 29 is an important one though. The Court has recently, and repeatedly - Chief Justice Gleeson and Justice McHugh said it in Abebe, and Justice McHugh repeated it in Durairajasingham, and we have given your Honour the reference there, to the heavy burden being placed on this Court by applications for prerogative relief. That was in the context of decisions from the Refugee Review Tribunal.

What we say here is where an applicant had a perfectly good appeal right, and recently - it was as recently as September of last year, or October of last year - to commence his appeal in the Federal Court, the Court should not lightly create the burden of a trial division for itself. However, the question of discretion is not the one that we say is the decisive one and your Honour will not need to come to consider it.

HIS HONOUR: For my part, the difficulty in that branch of your argument is the fact that the issue which is said to arise is a constitutional issue. Were it otherwise, I would understand the force of much of what you say, but where the issue is a constitutional issue it may be that other considerations intrude.

MR GUNST: In respect of that, your Honour, we simply reiterate that it would be an unfortunate thing for a Full Court to have to determine whether, assuming this man was absorbed - or to determine the evidence of absorption based on the evidence, then to consider the question of whether the immigration and aliens power were interchangeable when it may well be that on a proper consideration of the evidence, fully explored, one would not come to that conclusion. But they are matters of discretion, your Honour.

HIS HONOUR: But, again, let me not misunderstand the position. The applicant stands or falls on the facts he has advanced. We have had that discussion several times with Mr Maxwell and he has answered as clearly as may be, repeatedly, as if I had not heard it once. What would the position of the Minister be? Would the Minister desire to tender any evidence in answer to this application?

MR GUNST: Not as I am presently instructed, your Honour, no.

HIS HONOUR: But you would wish an opportunity to consider the position?

MR GUNST: We would wish at least the opportunity to put submissions in respect of the evidence.

HIS HONOUR: Look, as I say, the courses I am considering are either refuse the application out and out or, if I do not refuse the application out and out, effectively refer it to a Full Court, that is to say, direct that it be made by notice of motion returnable before a Full Court and, if that course were adopted, the question becomes: would the Minister wish to file any affidavit in answer to the single affidavit upon which the applicant has now repeatedly said he is content to rely?

MR GUNST: We think not at this stage, but it is a matter about which we would, if need be, like to get some instruction on.

HIS HONOUR: Yes, I understand that.

MR GUNST: But we should say - your Honour has not asked us - those two alternatives we would see as the appropriate alternatives, depending on your Honour's cast of mind. It really comes to the question of whether there is an arguable case - - -

HIS HONOUR: Just a piece of information which you may or may not feel able to give me. As at present advised, are you aware of any likelihood of any factual controversy about the matters which the applicant has deposed to? If you feel able to answer that, then I would be grateful. If you feel unable to answer it, you should not feel obliged.

MR GUNST: Controversy, no, not aware. Would want to be heard on the question of the sufficiency of the evidence and whether one could say it constituted absorption, yes.

HIS HONOUR: I understand that. But you can understand I would not be wanting to consider - even to consider putting this before a Full Court if suddenly there were to emerge an issue of factual controversy. That has to be determined elsewhere. It cannot conveniently be determined by a Full Court.

MR GUNST: No, clearly, your Honour, we understand that and that is our position. Your Honour, we are not sure that we can take the argument any further. We say that it is so simple that it will not take your Honour long. There is no case to be made here. Your Honour is - - -

HIS HONOUR: I am just getting slower as I get older, Mr Gunst, obviously.

MR GUNST: That still does not mean "slow", your Honour. The powerful authority over decades for the proposition that the immigration and the aliens power are not coextensive - - -

HIS HONOUR: I understand that and the point, I think, against you can be put in many ways but one of them would be Patterson has put into question Pochi and Cunliffe.

MR GUNST: We disagree with that, your Honour. We have given your Honour the reference to each of the paragraphs where Judges deal with Pochi and accept Pochi save in so far as it might be thought to have overstated the position vis-a-vis British subjects. To state it shortly, your Honour, to say that Patterson has anything to do with this case is to confuse Canada with Cambodia. One comes here from a country as an alien and that is the end of the matter.

There is no authority for the proposition that is advanced. There is no logic why it should be thought to be so. It would write out one of the sections of the Constitution, give it no work to do at all, and, as we say, it is just not arguable. Your Honour, that is all wish we to say. We say the matter is plain and simple and this application should be dismissed with costs.

HIS HONOUR: Yes, thank you, Mr Gunst. Yes, Mr Maxwell.

MR MAXWELL: If your Honour please.

HIS HONOUR: Do I rightly put a way of putting your argument that Patterson and Taylor undermine the authority of Pochi and Cunliffe?

MR MAXWELL: Yes, your Honour. I want to take your Honour to the crucial passage in Pochi to make that good.

HIS HONOUR: Please, in whatever order you see best.

MR MAXWELL: Your Honour, we want to say this. Of course, this Court is hesitant to overturn decisions of relative recency but for the reasons given by the majority, who were in favour of overruling Nolan, there are occasions where that is a proper course. If I might just give your Honour the reference to the parts of the judgments where there is discussion about overruling: paragraph 40 of Justice Gaudron; paragraph 90 of Justice McHugh; paragraphs 300 to 308 of Justice Kirby; and paragraph 376 of Justice Callinan. I think it is in Justice McHugh where his Honour - - -

HIS HONOUR: His Honour refers to it being "a large proposition".

MR MAXWELL: Yes, your Honour. We accept that and, if it mattered, this is not as high on the scale, that is to say, it is a single judgment in which two others concurred and the passage of Chief Justice Mason in Cunliffe is just that, but we do not seek to differentiate them. The fact is that where a matter requires reconsideration the Court appropriately does it. As with Grant v Downs in the Esso Case, a case where it was contended there had been universal reliance on the sole purpose test since 1973 or 1976, but that was overturned. Your Honour, I think it is in Justice Gaudron at paragraph 40 where the point is made with reference to what Justice Deane said in Stevens v Head:

in matters of fundamental constitutional importance, the members of this Court are obliged to adhere to what they see as the requirements of the Constitution". And there could hardly be an issue of more fundamental importance than that of a person's constitutional status.

That is as true of this application as it was of Patterson. We contrast that, your Honour, with what - - -

HIS HONOUR: Before you leave paragraph 40, the opening sentence:

Because the decision in Nolan is not rested on a principle that has been carefully worked out in a series of cases -

might on one view be seen as her Honour casting some doubt about the decisions that were seen as underpinning Nolan, and that would be principally Pochi.

MR MAXWELL: Yes, your Honour, indeed. Whereas your Honours in the joint judgment point out at paragraph 248 reasons why Nolan should not have been reopened. Your Honours there noted that to accept the prosecutor's submissions "would require reconsideration" of Pochi and of Nolan and your Honours say in the last two sentences of that paragraph that Nolan - reliance on the reasoning of Pochi was manifest in the 1983 Migration Act and that:

innumerable decisions must have been made and rights and liabilities determined upon that legislative basis.

So that strong counterargument was advanced. It did not ultimately commend itself to a majority. That is simply to say that for purposes of considering whether overruling is something to be confronted this case is in no different position. Your Honours decided that it was not necessary to - this is 249 - reconsider Nolan because, as your Honours found in the principal part of the judgment, there was jurisdictional error and the decision was invalid in any event.

We want to make this proposition next. It is simply not right to say that Patterson relied on that part of Pochi which we now seek to attack. For the reasons I provided in answer to a question from your Honour, it was not necessary for any of the Justices in the majority, other than Justice Kirby, to confront the absorption question directly in the way your Honours in the joint judgment did, where it was necessary to do so and to reject it. The bits of Pochi referred to are the statements about whether Parliament can or cannot extend the meaning of "alien" beyond the reach of the constitutional head of power, and his Honour the Chief Justice said Parliament could not. That is the part of Pochi that was discussed.

So Patterson was on no view an affirmation of Pochi. But, again, the Minister puts improbably that Patterson has nothing to do with the points made in this case. I am gratified that your Honour has plainly understood from our written and oral submissions why there is a connection and we do not understand the Minister's submission to the contrary, let alone the hyperbole about confusing Canada with Cambodia, which is in itself redolent of a particular view about where people come from which this Minister should not be advancing in this Court.

HIS HONOUR: I think the point was, rather, between British subjects and the like and non-British subjects.

MR MAXWELL: Just so, your Honour, but - - -

MR GUNST: Exactly.

HIS HONOUR: Well, I am not having debate at the Bar table, Mr Gunst. The point is one which, on one view of Patterson, is fundamental to the decision in Patterson.

MR MAXWELL: Yes, your Honour. Your Honour, if I might then go to the critical passage in Pochi. It is at page 111, your Honour. It begins in the middle of 110 where a submission was put based on an assertion that if you are not within the reach of the immigration power then you cannot be deported. That was based on some words of Justice Stephen in Salemi which are there set out. That is rejected because his Honour, with whom Justices Mason and Wilson agreed, said that there was no support for that in section 12. That is not the submission we put, that deportation depends on being reached by the immigration power. The argument is put in another way, according to his Honour's judgment, in the first full paragraph on 111:

by submitting that the fact that the plaintiff has become totally absorbed into the Australian community meant that he is no longer an alien -

my learned friend read this passage -

This argument is impossible to maintain. It was well settled at common law that naturalization could only be achieved by Act of Parliament - even action by the Crown under the prerogative could not give an alien the status of a British subject. The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person's nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national. There are strong reasons -

his Honour says but without, I think, anywhere in the judgment elaborating what they are -

why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia. The Australian Citizenship Act validly so provides.

Now, in our respectful submission, that disposal of the question underlines why your Honour's formulation to my learned friend was correct, that is to say, the discussion in Patterson has put into question the basis of that conclusion in Pochi because, as we have sought to develop in submissions, most crucially, the Court has now said alienage does not equate with non-citizenship.

But that appears to be the assumption in that paragraph of the Chief Justice's judgment, that is, if you have not been naturalised in accordance with an Act of Parliament, you must still be an alien, and yet, as his Honour Justice McHugh said, citizenship is not the discrimen; it is the question of whether the person is a subject of the Queen.

His Honour makes what we would respectively characterise as an important but pregnant statement about the:

strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act -

but the importance of spelling out what they are was not seemingly identified in that case whereas, on the basis of the submissions we have made and on the basis of the judgments in Patterson, there is a real question whether citizenship in the constitutional sense is to be limited to citizenship in the statutory sense or whether, as we would wish to argue, membership of the Australian community can be achieved by effluxion of time and by acts which are consistent only with assumption of membership of the community.

That is a question which was not asked and, therefore, was not answered. It appears to have been assumed in this case that you are either a statutory citizen or you are not, and if you are not, you are an alien. The issue of allegiance, the important one that your Honour has raised with me and about which we have made lengthy submissions, is touched on in passing but not actually mentioned specifically. It is just referred to in the common law rules as to alienage and as we have sought to argue, there is an important issue about what that term means, if it is the touchstone of alien or non-alien status now, as it was in the common law, and Patterson suggests that it is, or it is at least one of the touchstones, although there is not unanimity across the majority as to what precisely the touchstone is, though allegiance is probably the common thread which unites the individual majority judgments.

If that is so, then this is a case where, in an importantly evolving area of constitutional law, that is to say, the status of persons for the purposes of the constitutional heads of power, it is arguable that a decision in 1982 should be reconsidered because of the force which lies behind the arguments which would necessitate its reconsideration. Your Honour raised in argument the question whether section 51(xxvii) is concerned with process rather, by contrast, with (xix) being concerned with status.

As a matter of language, we would not respectfully contest that proposition but the absorption cases arising under 51(xxvii) have been concerned with status because the power with respect to immigration, so it has been held, can only be exercised with respect to immigrants, relevantly, leaving aside the immigration part of the power, and the question, therefore, is a cognate one with 51(xix), "What is the status of this person at the date of the purported exercise of power? Does he or she have the status of an immigrant?". Answer, "If he has been absorbed, no". We say the same question arises more explicitly on the face of the paragraph because of the word "aliens", which is a noun about status, whereas "immigration" is a noun about process, as your Honour points out, but the explicit question of status which arises under 51(xix) is, we would respectfully submit, cognate with the implicit question about status which has been found to arise under 51(xxvii).

As to whether the paragraphs are, on our submission, truly interchangeable, is a difficult matter. Plainly enough, emigration - we are concerned only with the immigration part, because this alien argument concerns someone who has come in and stayed and there is no question of them leaving. Whether the immigration power has any work to do in relation to a non-alien, the answer is it probably does, on reflection, in that "I am not an alien, but I am subject to immigration procedures when I come in from out of the country. I am not an immigrant for that purpose but passport control applies to Australian citizens."

So the submission simply is that, in relation to a person or persons in this position, that is to say non-citizens who have become residents, the aliens power - if the immigration power does not apply any longer because of absorption, then nor does the aliens power. So I am only seeking slightly to qualify what I said to your Honour. The answer is to say that, pro tanto, 51(xix) has no work to do if the immigration power has no work to do. We have already made submissions as to why that is within the field of reasonable contemplation as a matter of the evolution of the constitutional terms consistent with the evolution of the Australian community and the view which could now be taken of the denotation of the term. Unless there are any other matters, your Honour, those are the submissions for the applicant.

HIS HONOUR: Yes, thank you, Mr Maxwell.

In my opinion, the issues which the applicant seeks to agitate cannot be said to be so beyond argument as to permit summary refusal of an application for an order nisi. The applicant stated that he does not desire to adduce any further evidence. The Minister pointed to no likely area of factual controversy, although the Minister submitted that the inferences which the applicant would seek to have the Court draw from his material, were inferences which the Minister would dispute.

Having regard to the issues which it is sought to raise, it is appropriate, in the circumstances of this case, to direct that the application be made by notice of motion returnable before a Full Court. Accordingly, there will be orders:

1. Direct, pursuant to Order 55 rule 2, that the applicant's application for relief be made by notice of motion to a Full Court;

2. Adjourn the further hearing of the application so that notice of it may be given accordingly;

3. Reserve liberty to apply;

4. Reserve costs;

5. Certify for the attendance of counsel.

Do counsel seek to be heard about the form of those orders as distinct from their content?

MR GUNST: No.

MR MAXWELL: No, thank you.

HIS HONOUR: May I ask of counsel their estimate as to the likely duration of argument before a Full Court? My understanding of the case is that it would be somewhat less than a day, but do counsel have different views?

MR GUNST: No, your Honour.

HIS HONOUR: Very well, then the orders will be as I have indicated.

MR MAXWELL: Your Honour, subject, it would have to be said, to any applications for leave to intervene, for example, from the Human Rights and Equal Opportunity Commission. Your Honour will recall in the matter concerning the Victorian IVF legislation there were numerous interveners and the matter went much longer than expected.

HIS HONOUR: That was very different litigation.

MR MAXWELL: Indeed, your Honour.

HIS HONOUR: There was no contradictor. No doubt, persons desiring to intervene will make such application as they are advised.

MR MAXWELL: Yes, your Honour, but as between ourselves, I think we are in agreement that it is a matter which should be disposed of in a day.

HIS HONOUR: Now, 78Bs will have to be given and those should be given at once.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: I have made no direction, Mr Gunst, about material in answer by the Minister. I have not done so, quite deliberately. If you desire to put on evidence in answer, it may be that it would be better to make application under the liberty to apply and to make application having the material which it is sought to file already prepared. What I do not want to have happen is this thing to get before a Full Court and then there to emerge that there is some matter of factual controversy. I am not conscious of any. Counsel has pointed to none. I do not expect there to be any. But I do not want the unexpected to burst upon us without some warning.

MR GUNST: Nor do we, your Honour. We shall take advice about it and if something is to be done, we will make sure it is done properly.

HIS HONOUR: Yes. I will adjourn

AT 11.29 AM THE MATTER WAS CONCLUDED