Plaintiff S441/2003 v MIMIA [2003] HCATrans 258 (4 August 2003)

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Plaintiff S441/2003 v MIMIA [2003] HCATrans 258 (4 August 2003)

Last Updated: 5 September 2003

[2003] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S441 of 2003

B e t w e e n -

PLAINTIFF S441/2003

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Defendant

Application for stay

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 4 AUGUST 2003, AT 2.16 PM

Copyright in the High Court of Australia

MR B. LEVET: May it please your Honour, I appear for the plaintiff in the proceedings generally and I think the applicant in respect of the matter before you. (instructed by Bharati Solicitors)

MR A. MARKUS: May it please your Honour, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR: You will notice that I directed that the case be called under the case number rather than the name. I understand that there is some question as to whether the section of the Act, I think it is 91X, applies but in any case there does not seem to be any particular interest of the Australian community in the name of the applicant and I have always taken the view, even before the Act, that it was prudent not to have people identified because these matters go on to the Internet. So do I take it that you have no objection to that course.

MR MARKUS: No, your Honour.

HIS HONOUR: Thank you.

MR LEVET: No objection, your Honour.

HIS HONOUR: Yes, very well. We will simply refer to the infant plaintiff as “the plaintiff” and her father as “the father” and mother and brother respectively without identifying them. Yes, Mr Levet.

MR LEVET: Your Honour, my friend seems to concede the introductory proposal which is that the principles governing the grant of relief on interim injunctions were as summarised by his Honour Mason ACJ in Castlemaine Tooheys in South Australia. Subsequently, your Honour, it was also a matter which your Honour came to consider in the matter of Fejo v Northern Territory where the Court – it was one I recently found late this morning, your Honour. It was a 1998 High Court decision.

HIS HONOUR: I know Fejo. I did not think that issue arose in the case but I may have forgotten.

MR LEVET: Yes, your Honour. It adopted the “serious question to be tried” test that had first been stated in American Cyanamid Co v Ethicon Ltd.

HIS HONOUR: What is the citation of that in Fejo?

MR LEVET: In Fejo [1998] HCA 58, your Honour. I have the Internet version. At paragraph 81 your Honour said:

This said, any such claim for an interlocutory injunction would have to make good the conditions usual to the provision of such relief. These require the demonstration that there is a serious question to be tried and the establishment of the fact that the provision of such relief is warranted by the balance of convenience.

HIS HONOUR: Yes, very well. Thank you.

MR LEVET: I am sorry that was not on my case list. It was discovered late this morning. In any event, your Honour, my friend appears to take no issue with that as the basis upon which interlocutory relief can be given and so it is proposed to very briefly go through each of the three issues in Castlemaine Tooheys, although if you take the Fejo test there are perhaps two, which is the first and the third, and the three are: firstly, that there is a serious question to be tried; secondly, that the plaintiff will suffer irreparable injury for which damage will not be adequate compensation unless an injunction is granted; and thirdly, that the balance of convenience favours the granting of an injunction. As to the first of these, your Honour - - -

HIS HONOUR: I have read the written submissions and I am grateful to both parties for getting those together in such a relatively short time,, so I am familiar with what the issues are.

MR LEVET: Am I able to assist your Honour with any other matters arising out of that?

HIS HONOUR: Yes, you can. First of all, in relation to the issue to be tried, the way in which it is presented in your process at least possibly does not deal with one question that occurs to me and it occurs to me because, as you know, the Court has, in a number of cases, had to consider the scope of the constitutional power here. I am thinking of Ex parte Taylor and Te and Dang and most recently the case of Jason Shaw, and in Taylor and in Shaw, because of the complication in that case that the proposed deportee had been born in the United Kingdom and was a subject of the Crown the Court was taken to a consideration of the history of nationality under the Australian Constitution.

MR LEVET: Yes, your Honour.

HIS HONOUR: As you know, the Constitution, unlike the American Constitution, does not provide for citizenship as such and initially the constitutional notion of nationality was that of subject of the Queen. That is the constitutional notion which is reflected in section 117 and so one question that first troubled me in the case and which may be a matter, subject to hearing Mr Markus, that ought to be referred to a Full Court is whether there is a constitutional status of nationality quite apart from the statutory status of citizenship and whether implied in that constitutional notion of nationality being a subject of the Queen of Australia is certain irreducible minimum protections so long as you fall within that category.

Now, you have presented a matter as the serious matter to be tried and implicitly for reference to a Full Court of the constitutional validity of section 10(2) of the Citizenship Act and that is presented by you targeting the suggested invalidity of that provision of the Citizenship Act by reason of the want of power under the aliens power or the naturalisation power or the immigration power and so on, and that may or may not be a serious issue to be tried, but the question that I raise is whether there is also an issue which is potentially an important constitutional one of whether there is an irreducible Australian nationality in the Constitution, quite apart from the Citizenship Act of being a subject of the Queen, the Queen of Australia.

Now, that is not a matter that you have raised, but if you can persuade me that the matter you want to refer to the Court is a serious issue to be tried, then it would seem to me that arising out of the debate we have had in the other cases that the question of the Australian nationality for which the Constitution provides, if any, should go in at the same time. Do you understand the point I made?

MR LEVET: Yes, I do, your Honour. Your Honour, I would not be averse to that.

HIS HONOUR: It is not a matter of being averse to it. It is a matter of whether or not it is connected with the point that you are raising. Perhaps it is a different way of presenting the issue of the scope of the alienage power. Perhaps it is a separate issue, but it does seem to me to be one that may need to be considered. Were you in any of those other cases, the cases of Nolan or of Taylor or of Shaw or Te and Dang?

MR LEVET: No, your Honour.

HIS HONOUR: Well, you see, we have been on a journey in this area of constitutional law. We have had quite a lot of time to think about these points and Shaw stands for judgment in the Court and the issue of the history of Australia’s Constitution and why it did not provide for power in respect of citizenship and what the nationality concept of the Constitution, if any, is is one that has been touched upon in Taylor, Te and Dang and Shaw.

MR LEVET: And Petrovski.

HIS HONOUR: That is a Federal Court matter, is it not?

MR LEVET: That is a Full Court of the Federal Court - - -

HIS HONOUR: Yes, well I am not in the Federal Court; I am here. Please do not assume I know all the cases in the Federal Court. I have enough to do keeping up with the High Court’s immigration cases without keeping up with the Federal Court’s immigration cases. Anyway, I have read what you have to say about the serious issue to be tried and it may be more efficient, especially as I have raised this other matter, for us to hear Mr Markus in due course on those points.

MR LEVET: Yes, I would be grateful for a couple of minutes to get my thoughts together on the point your Honour raises.

HIS HONOUR: Well, not necessarily now. You still have two other issues to deal with, I am afraid.

MR LEVET: Yes, your Honour.

HIS HONOUR: It is not as easy as all that.

MR LEVET: You cannot blame me for trying.

HIS HONOUR: Because even if there were a serious issue to be tried, there is then the secondary question of whether or not irreparable harm would be done. Now I could understand how you might mount a case that irreparable harm would be done to the infant plaintiff, but what irreparable harm of the kind that an interlocutory injunction would protect is done to the family members?

MR LEVET: Your Honour, if I can take those as two separate issues. So far as the infant plaintiff is concerned, there is certainly irreparable harm in the event that she leaves the country.

HIS HONOUR: Yes, I have read all that. I do not want you to address me on that at the moment. I want you to address me on what – is it necessary to show irreparable harm to the other family members or is it enough to show irreparable harm to the infant plaintiff that needs to be protected and then the position of the family members comes up under the question of the scope of the injunction and the balance of convenience in the terms of the injunction?

MR LEVET: I think the latter, your Honour. Your Honour, I have had some discussions with my learned friend prior to coming in here and it would seem that the statement of claim does not fully disclose the situation. My friend has made some observations with which I am able to concur having subsequently taken instructions on them.

HIS HONOUR: By the statement of claim you mean - - -

MR LEVET: The document headed “STATEMENT OF CLAIM”, your Honour.

HIS HONOUR: Do I have that document? Perhaps I should let you know exactly what I have. I have an affidavit of the plaintiff’s father which is sworn 31 July 2003, a summons which - - -

MR LEVET: The Form 40 or the Form 1, your Honour?

HIS HONOUR: It is S441 of 2003 and I have the notice of constitutional matter in S441 of 2003. That is the only documentation that I have.

MR LEVET: In that case, your Honour, if I take you to - - -

HIS HONOUR: I have just been handed a copy of an untitled document which I assume is the statement of claim, is it? Is it a document that begins, “The plaintiff’s claim is a matter within the original jurisdiction of this Honourable Court”? Is that the statement of claim?

MR LEVET: Yes, your Honour, it is titled “STATEMENT OF CLAIM” at the top of the page.

HIS HONOUR: I see. Yes, you are correct. Just a moment, I will have a look at that. That does not seek any orders or relief. Is this the usual form of a statement of claim in this Court?

MR LEVET: If it accompanies, as I understand it, a Form 1, yes, your Honour.

HIS HONOUR: If it accompanies the summons?

MR LEVET: Yes.

HIS HONOUR: And the summons seeks the two declarations and the order restraining the defendant and costs.

MR LEVET: Yes, your Honour.

HIS HONOUR: Yes. Now, what were you going to say about the terms of the statement of claim? Are you going to be amending that or not?

MR LEVET: Yes, your Honour. I can indicate that it is certain that there will be an amendment to paragraph 15 as a result of some observations from my friend and my understanding is now, in fact, that the plaintiff, her mother, her father, her brother, have a bridging visa which is valid until some period after a - - -

MR MARKUS: I do not know whether it would be helpful perhaps to just explain what my understanding of the background of the facts is and, your Honour, I do not know whether ultimately it is relevant to the issues that are sought to be raised in the substantive proceedings but they are probably relevant to the issues that are sought to be raised in the interlocutory application, your Honour. If I could just outline very briefly what my instructions are about the facts of the case, your Honour, and I apologise for not having evidence - - -

HIS HONOUR: Well, all of these things came on rather quickly.

MR MARKUS: Yes, your Honour.

HIS HONOUR: Because the time that the Registry was informed of the present visas expire on 6 August - the Court will be busily engaged in constitutional cases as from tomorrow and this is the only day on which the Court could list the matter and that is why it has been listed so quickly.

MR MARKUS: Yes, your Honour. Could I just indicate this? The plaintiff and other family members except for the father have ongoing bridging visas on my instructions.

HIS HONOUR: How long do they last?

MR MARKUS: Your Honour, they have bridging visas on the basis of a judicial review application of the substantive visa and the bridging visas - - -

HIS HONOUR: That is the so-called class action, is it?

MR MARKUS: It used to be a class action. It was the Muin and Lie class action but as of the 29 May the plaintiff’s father, and if I am correct, brother and mother have commenced proceedings in the High Court which was remitted instanter to the Federal Court of Australia pursuant to orders made by Justice Gaudron earlier this year or late last year, I think.

HIS HONOUR: Yes.

MR MARKUS: Your Honour, on the basis of those proceedings bridging visas were granted to the family and those bridging visas ordinarily entitle a person to stay in Australia until 28 days after the resolution of the proceedings.

The difficulty in a sense has arisen, or a difficulty has arisen because on 14 July this year the plaintiff’s father was, if I am correct, detained by some police officers working as a taxi driver contrary to the conditions of his visa. He was then transferred into immigration detention, the visa having been cancelled for non-compliance of the condition.

HIS HONOUR: That is the visa for the father?

MR MARKUS: That is the visa for the father. On 17 July the father has made an application for a bridging visa on the basis that he intended to leave Australia and he presented a ticket to return to India which was valid for 6 August, and that is where 6 August date comes from.

On my instructions the father indicated in some brief written correspondence that he intended to discontinue his judicial review application and depart but, your Honour, if the father does not intend to discontinue the judicial review application, then the family members will continue to have the benefit of their bridging visa and the only issue really is in relation to the father, who is also not, on my instructions, in any imminent danger of removal. He is in some danger of being detained unless he is granted a further bridging visa. He currently has a bridging visa valid until 6 August and once that bridging visa expires, section 196 of the Migration Act will require that the father be detained unless granted another bridging visa.

Now, he is entitled to apply for another bridging visa if that is what he wishes to do. He needs to satisfy the relevant delegate in any such application that he will abide by the conditions of that visa.

HIS HONOUR: Where does that leave this application for an injunction?

MR MARKUS: I do not know, your Honour, and it seems to me that the application for an injunction is misconceived because there is no imminent danger of anybody’s removal. The plaintiff’s father has purchased his own ticket and he indicated that he was voluntarily departing Australia on the 6^th. He is not in danger of removal at this stage because he still has a judicial review application on foot and until that is withdrawn it is not my client’s practice to remove individuals because of the fact that it may not be reasonably practicable to do so in the sense that persons who seek judicial review of a substantive visa decision are likely to get a stay of any removal. So it is not considered to be reasonably practicable to remove such persons. I do apologise, your Honour. I only found out these facts this morning.

HIS HONOUR: Well, it would have been helpful if I had known. It would have saved me a lot of work.

MR MARKUS: I do understand, your Honour.

HIS HONOUR: Yes. However, these things happen.

MR MARKUS: Your Honour, I should say that in my submission on those facts the application for interlocutory relief simply falls away. The real question is what, if anything, is to happen with the substantive application.

HIS HONOUR: It would be desirable that we use the fact that both of you are here today to try to formulate some questions – I am minded to think that there are some issues in the case that ought to be considered by a Full Court and I can indicate to you the way in which I attempted myself to formulate those questions. In the light of what you have told me, I would certainly not be inclined, subject to anything that is said, to proceed with the hearing on the application today for an interim injunction because there does not seem to be any imminence or any need for immediate relief in that respect, but to give some opportunity to return the matter before the Court at short notice if it is necessary to deal with that and to deal with that question at a later stage when evidence could be placed before either me or another Justice to deal with the matter on the basis of proper evidence, not statements from the Bar table.

MR MARKUS: Yes, your Honour. It may be that that summons would not be pressed in any event. We could have some discussions maybe and there may be some informal undertakings about notice of any plan to remove or something like that. That may be sorted out between the parties.

HIS HONOUR: Yes.

MR MARKUS: Your Honour, could I perhaps take this opportunity to make some general comments about the substantive and - - -

HIS HONOUR: Perhaps before we go into that I would like, as I am here actually to deal with an application for an injunction, to hear what Mr Levet has to say about the matters that you have just indicated.

MR LEVET: Your Honour, I have taken instructions from my client shortly before we came in, having been apprised by my learned friend of those matters. Your Honour, it is true that the plaintiff’s father consented to leave the country. The basis, I am instructed, upon which that consent took place was that he was detained in Villawood and was advised - - -

HIS HONOUR: Yes, but how can I deal with these matters today? Things are being told to me from the Bar table. I do not have affidavits that deal with it. I was assuming I was dealing with the matter on virtually agreed facts and it now emerges that there is a whole series of disputed facts. Was there a ticket? Was the ticket revealed to the officers of the Department? Did the plaintiff’s father indicate that he intended to leave voluntarily or was he coerced? I mean, I cannot deal with those issues in this application without proper evidence.

MR LEVET: Certainly, your Honour. Yes, your Honour, there would appear to be - - -

HIS HONOUR: And in any case, according to what Mr Markus has said, and it is on the record now, there is no imminence in the removal of your client. The worst that is imminent is that your client, because of an alleged breach of the condition of his being allowed at large, may be taken back into immigration detention, and that is a different question. It is not removal from the country. You are seeking an injunction to prevent the Minister from removing the plaintiff and the members of her family from the country.

Well now, as I am informed by Mr Markus, there is no risk at all that the plaintiff in the immediate future is going to be removed from the country, nor her mother, nor her brother and nor her father. The worst that is going to happen to the father is he is going to stay in the country but return to immigration detention.

MR LEVET: I am indebted to my friend for that indication. As my friend indicates, that is something that will be worked out between the parties on the basis of undertakings, your Honour.

HIS HONOUR: In the light of what I have been told and in the light of what you have said, it seems to me that the appropriate course with respect to the application for the injunction is either to dismiss it or to stand it over to a future date, when it could be restored if and when it is needed. What would you ask me to do?

MR LEVET: I would ask the latter, your Honour.

HIS HONOUR: Yes. Well, I think I will hear what you have to say on the substantive matters, Mr Markus, also on the question of what I should do with this process.

MR MARKUS: Thank you, your Honour.

HIS HONOUR: It is probably fair to say that the Minister and his officers know much more the practice of the Minister and exactly what is going to happen in these cases than does a plaintiff or family in the position of the present family.

MR MARKUS: I accept that, your Honour, and no doubt Mr Levet, who is in Canberra, had difficulties communicating with the plaintiff and her family. I do not have much difficulty in persons forming a view about what may or may not have happened in these particular circumstances, your Honour. My submission is that, having said that, it is on my instructions clear that there was never any threat of removing any person from Australia - - -

HIS HONOUR: Well, obviously they thought, because of the mention of 6 August and the bridging visa category E subclass 050, that once that had expired that they were subject to the risk of being deported. I just do not know enough about it to know whether or not that is a reasonable apprehension for them to have reached, but it would seem to me that no great harm is done, the matter having been initiated, in simply standing it over for the time being – standing over the application for the injunction - to be relisted in the event that it becomes necessary.

MR MARKUS: I do not have anything to say against that.

HIS HONOUR: No. Very well, that is what I will do in due course to the summons for the injunction, but that leaves us with the substantive matter. Could I just indicate to you, so that you can focus your submissions, what I was, subject, of course, to argument, inclined to direct was that there be referred for argument before a Full Court, pursuant to the Judiciary Act, the following three questions:

1 Did the plaintiff acquire Australian citizenship by birth on 5 February 1998 and has she retained Australian citizenship since that date?

2 Alternatively to 1, did the plaintiff acquire Australian nationality as a “subject of the Queen” by birth in Australia on 5 February 1998 and has she retained such Australian nationality since that date?

3 Is section 10(2) of the Australian Citizenship Act 1948 (Cth) beyond the power of the Federal Parliament?

Now, 3 arises in the light of the answers to 1 and/or 2, and that brings me back to the point that I raised with Mr Levet at the outset. In his written submissions he has put all his eggs in the basket of the validity of section 10(2) as being a law of the Federal Parliament based on either the immigration power or the aliens and naturalisation power or any other power. But, at least, potentially, if that question is to go up, there should also be referred the other different, but in some ways related, question of whether, quite apart from citizenship, which is a statutory concept, there is a constitutional category of nationality, being that of being a subject of the Queen of Australia, and whether that nationality is in any way defined or affected by birth in Australia and, if so, is that a constitutional concept which is irreducible by a provision such as section 10(2) of the Australian Citizenship Act.

So one way is looking at the issue from the point of view of was there a head of separate constitutional power to enact section 10(2). Another way, additionally, is to ask, “Does section 10(2) conflict with a constitutionally protected status of Australian nationality, being the nationality which is referred to in the text of the Constitution in section 117?” They were the two questions I was minded to consider referring to a Full Court. I realise you have not had any notice of the second point, but it really arises out of debates we have had in the Court in the case of Jason Shaw and in Taylor, to some extent.

MR MARKUS: Your Honour, could I deal with the citizenship issues first, because, in a sense, I am more troubled about stating the case to the Full Court in relation to the citizenship issues, because I understand how the question that your Honour suggested may arise. I have some difficulty with a challenge on section 10(2) of the Citizenship Act. As your Honour pointed out, citizenship is not a constitutional concept; it is a legislative concept. It was introduced in 1949, pursuant to the Australian Citizenship Act. All section 10 does - - -

HIS HONOUR: Was it 1949 or 1948?

MR MARKUS: I think it was - - -

HIS HONOUR: It might have come into force in 1949 - - -

MR MARKUS: I think it came into force in 1949, pursuant to the Citizenship Act 1948.

HIS HONOUR: Originally it was called the Nationality and Citizenship Act, and later the Australian Citizenship Act.

MR MARKUS: That is correct. Your Honour, what section 10 does is grant a status of citizenship and certain benefits which come with that status to a group of persons who are born in Australia, and not to all persons who are born in Australia. Now, the granting of those rights, in my submission, is clearly within the relevant power of the Commonwealth, being section 51(xix), your Honour, in particular, the naturalisation and aliens power.

HIS HONOUR: Just pause there for a moment. If you are born in Australia, there is no provision, is there, for naturalisation? Naturalisation seems a concept that is addressed to people who are born somewhere else and come here and then seek to become members of the Australian community.

MR MARKUS: Well, your Honour, naturalisation is a concept dealing with persons who are aliens at one stage and then become members of the Australian community. In my submission, the fact that somebody has been born in Australia does not in itself answer the question whether that person is an alien for the purposes of the Constitution. But that is, in some respects, your Honour, I accept, the real issue in this case. This is where your Honour’s question comes in, because the constitutional concepts of alien and non-alien, which is the converse of the constitutional concept of alien, are the concepts which are really relevant to what the plaintiff here wants to argue, in a sense. It is not whether she is a citizen, but whether she is a person to whom the aliens power is available.

HIS HONOUR: Well, can I explain as I understand the plaintiff’s point to be. She says by the Citizenship Act as it originally stood it reflected ancient notions of nationality and in subsection (1) said if you are born here, subject to the other provisions, you are a citizen. But then it was amended and the issue is the validity of the amendment.

MR MARKUS: Yes, your Honour.

HIS HONOUR: And the question is whether for the amendment that introduced the provisionalisation, if I can use that word, of certain children born in Australia as citizens that there was enough power in the naturalisation or citizenship, or even possibly immigration, to sustain the amendment that took away the otherwise right of citizenship and that for that reason we are addressing whether or not those heads of power gave the Federal Parliament the power to amend.

Now, I am fully alive, having sat through a number of these cases, to the fact that there are very strong arguments to say that that can be done under the aliens power and also possibly I think it is arguable under the immigration power because I assume the 10 years was chosen by somebody in Parliamentary Counsel’s office after a lot of debate because it was thought there will be a period when the process is still going on and that if you are a child the process of the immigration to the country of your parents will affect you and, therefore, for one year, two years, stretch it a bit and it
is up to 10 years, you can say that the process of immigration is still continuing.

So, on that basis there are, concededly I would think, strong arguments why the amendment would fall within those two powers, but I am not minded to think that it is not a seriously arguable question because of the fact that the Court has been divided on these issues and they are difficult issues, but they are important issues for a migrant country, a country with a very large immigrant population and, therefore, it would seem to me they are issues on which it should not just be the opinion of one Justice, it should be the opinion of the seven.

So that is why I would have been inclined to say to you I understand the power of what you are putting to me but they are submissions that you can save up, hone, refine, improve and prepare in the usual skilful way of the Commonwealth and put them to a Bench of seven, because the lesson of Ex parte Taylor, Ex parte Te and Dang and Ex parte Shaw is that these are complicated questions and they are important questions for the Constitution and for the composition of the Australian population.

MR MARKUS: Thank you, your Honour. In that case I will just sit down. I do not have any - - -

HIS HONOUR: I am not stopping you in any way, but I am trying to explain how I have – at least because of your written submissions, nuisance though it is that a lot of time was spent on the subject of the injunction, they made me focus on the serious issue to be tried and that in turn took me to the constitutional question which, if there is a serious issue to be tried, should be referred to a Full Court and that took me in turn, in the light of what has been discussed in the other cases that I mentioned, to the two possible ways it seemed to me it should be put to the Full Court so that the whole Court can consider the two attacks from different angles on the section and it can be decided one way or the other by a Full Bench.

MR MARKUS: Yes, your Honour. I understand your Honour’s point and I sit down without feeling that your Honour has interrupted.

HIS HONOUR: Right. Well, I never like to stop counsel who are being helpful. Now, what about you, Mr Levet? What do you say?

MR LEVET: Your Honour, I am very content with the three questions propounded by your Honour and I am indebted to your Honour for propounding them in a form far more elegant than I could.

HIS HONOUR: What normally happens in these cases is that counsel prepare a case stated in which the essential questions are asked at the end of
a short statement of the necessary facts that will present those questions. Those necessary facts do not get into the issue of the alleged coercion or otherwise of the father or matters of that kind. I think you would need the dates of birth of the father, the mother and you may as well throw in the brother because that will demonstrate that they were never subjects of the Crown in any other right, India having terminated its links with the Crown either in 1947 or 1950.

Both parents were born in 1969 so that they were never subjects of the Crown and are not now and they are aliens unquestionably, but that still leaves the issue of the plaintiff who was born here. I think what I need is, therefore, a case stated which could perhaps be drafted by you. You will find precedents in the reports on Taylor, Te and Dang and Jason Shaw and at the foot of that there should then be prepared the three questions of the kind that I have just mentioned. Would you be prepared to prepare a draft of that, show it to Mr Markus and then when you have it into final shape come back to me and I will refer those questions to a Full Court as a stated case?

MR LEVET: Certainly, your Honour.

HIS HONOUR: Would you be content to co-operate in that process, Mr Markus?

MR MARKUS: Of course, your Honour, yes.

HIS HONOUR: That is the course that I will adopt.

In this matter, as is often the case, appearances are not the same as reality. The appearances of the case, as it was presented on paper, suggested a strongly-contested application for an interlocutory injunction, brought on behalf of the infant plaintiff, her parents and infant brother, to restrain the Minister from deporting them from Australia on or shortly after 6 August 2003.

When the matter was returned before me today, however, it immediately became clear that there was no risk of such deportation on or shortly after 6 August 2003 or at any time thereafter within the space of time that it might be expected that these proceedings would progress in this Court.

When this became clear, counsel for the applicant indicated that he would not be pressing the application for an interlocutory injunction today. Accordingly, I will stand over that application to be heard, if necessary, on a future day. It can be restored upon two days notice to either side.

That leaves the substantive matter which is presented by the application brought to the Court in its original jurisdiction in the form of a statement of claim. By reason of the matters that are disclosed in the exchanges between the Court and counsel, it appears that there are additional or different issues beyond those which are stated in the writ of summons. I have outlined the issues which I think may be suitable for reference to a Full Court.

Those issues, on the facts as I presently understand them, are:

1. Did the plaintiff acquire Australian citizenship by birth on 5 February 1998 in Australia and has she retained Australian citizenship since that date?

2. Alternatively to 1, did the plaintiff acquire Australian nationality as a “subject of the Queen” by birth in Australia on 5 February 1998 and has she retained such Australian nationality since that date?

3. In the light of the answers to 1 and 2, is s 10(2) of the Australian Citizenship Act 1948 (Cth) a valid law of the Commonwealth?

I have asked counsel to prepare a stated case setting out the relevant facts and such refinement as appears to them to be necessary of the questions generally stated in the form of the three questions which I have indicated, together with provision for such other orders as is ordinary in a stated case. I do not believe that the matter should be allowed to languish. It should be brought back to the Court without delay.

Accordingly, I direct that the matter be relisted with a view to orders being made on Monday, 1 September 2003 before me. If it is not convenient for counsel to be present in Canberra, a video link may be established by co-operation with the Registry and the matter will be dealt with in that fashion. I reserve the costs of the proceedings before the Court today. I certify for the appearance of counsel in Court in public chambers.

Are there any other orders that you seek at this stage, Mr Levet?

MR LEVET: No, thank you, your Honour.

HIS HONOUR: Mr Markus?

MR MARKUS: No, your Honour.

HIS HONOUR: Very well. They are the orders of the Court. The Court will now adjourn until 10.15 tomorrow morning in Canberra.

AT 3.10 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 1 SEPTEMBER 2003