Walsh v MIMIA B41/2002 [2003] HCATrans 852 (25 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B41 of 2002

B e t w e e n -

SUSAN WALSH

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 9.35 AM

Copyright in the High Court of Australia

MS K. RUBENSTEIN: If your Honours please, I appear for the applicant. (instructed by Van Zyl Lawyers)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If your Honours please, I appear for the respondent. (instructed by Australian Government Solicitor)

McHUGH J: Yes, Ms Rubenstein.

MS RUBENSTEIN: Your Honours, I have three main arguments that I would like to address. First, whether the applicant lost her Australian citizenship upon the independence of Papua New Guinea in 1975 by virtue of Regulation 4 of the Papua New Guinea (Australian Citizenship) Regulations and section 5 of the Papua New Guinea Constitution. This raises the issue whether, in 1975, Australian citizenship carried with it the right of permanent residence. Second, whether the applicant satisfies the criteria for citizenship by descent under section 10C(4)(i)(c) of the Australian Citizenship Act 1975 . This involves the question whether the applicant was born outside of Australia. Third, whether the Papua New Guinea Independence (Australian Citizenship) Regulations of 1975 were valid. Your Honours, the applicant, Ms Walsh, was born in Papua - - -

GUMMOW J: Now, do you make some point about the Racial Discrimination Act?

MS RUBENSTEIN: We will not be pressing that, your Honour.

GUMMOW J: You do not press that. It is good to know these things.

MS RUBENSTEIN: Your Honours, she was an Australian citizen by birth. The first issue that arises is whether, upon the independence of Papua New Guinea - - -

GUMMOW J: Just a minute, what constitutional question are you raising for the first time, if any?

MS RUBENSTEIN: The issue of whether an Australian citizen comes within the scope of the immigration power under section 51(xxvii) of the Constitution.

GUMMOW J: I see.

MS RUBENSTEIN: The first issue, essentially, is whether in 1975 she lost her citizenship. The starting point is Regulation 4 of the Papua New Guinea Independence Regulations. I refer your Honours to the application book at page 54, where the Full Court refers to Regulation 4 of those Independence Regulations.

GUMMOW J: Just slow down for a minute. Which of the issues - you mentioned three - were dealt with by the Full Court of the Federal Court?

MS RUBENSTEIN: The first issue was dealt with by the Federal Court, the second issue, but not the third issue.

GUMMOW J: Thank you.

MS RUBENSTEIN: That regulation, your Honour, at page 54 of the application book sets out that:

A person who -

(a) immediately before Independence Day, was an Australian citizen within the meaning of the Act; and

(b) on Independence Day becomes a citizen of the Independent State of Papua New Guinea by virtue of the provisions of the Constitution of the Independent State of Papua New Guinea,

ceases on that day to be an Australian citizen.

That then takes us to section 65 of the Constitution of Papua New Guinea, which appears on the preceding page, page 53, of the application book. The relevant section, section 65(1) states that:

A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.

And then subsection (4) states that:

Subsection (1) and (2) do not apply to a person - - -

GUMMOW J: I am not sure why we set about construing the Constitution of another country.

MS RUBENSTEIN: That is, indeed, an important question, your Honour. The Constitution of Papua New Guinea refers to the question of whether a person has a right to permanent residence in Australia. So the Papua New Guinea Constitution refers us back to Australian law for the purposes of determining - - -

GUMMOW J: Yes. So?

MS RUBENSTEIN: So we need to determine whether the applicant, who was an Australian citizen by virtue of her birth in Papua, had a right to permanent residence and whether she falls within subsection (1) in order to retain her Australian citizenship. The central question is whether her citizenship carried with it the right of permanent residency. If it did, then she did not lose her Australian citizenship. She had an option, immediately underneath that paragraph, to renounce her right of residence in Australia, but if that option was not taken, which the applicant did not take, then she maintained her Australian citizenship.

The Full Federal Court addressed this issue by looking at the Migration Act to determine the question. Can I take your Honours to paragraph 17 of their judgment at page 55 of the application book. In that paragraph 17, the Full Federal Court stated - - -

McHUGH J: What page is this again?

MS RUBENSTEIN: Page 55, your Honour, the last sentence of that paragraph 17 of the Federal Court judgment. Their Honour stated:

But in 1975 at Independence Day, in determining whether Ms Walsh has a right to permanent residence in Australia, the question was not whether Ms Walsh was an Australian citizen, but whether, had she sought to enter Australia, she would have been an "immigrant".

Your Honour, with respect, that last question is the wrong question to be asking. The real question should be, whether, as an Australian citizen, she had a right of permanent residence. Moreover, your Honours, the court has misinterpreted the case of Air Caledonie v Commonwealth, cited in the same paragraph, because the decision, it is submitted, was not confined to the period after 1984.

Your Honours, in addition, the decision of the Full Federal Court also runs counter to the decision of the US Supreme Court in Balzac v Porto Rico, a decision that your Honours have in the additional authorities that was filed with the Court. It is the first case included in that package. The case of Balzac v Porto Rico (1922) is a case that has not been overturned and has been cited repeatedly. This is a case that involved the question whether US citizenship gave a Porto Rican US citizen the right to a trial by jury by virtue of the Sixth Amendment of the US Constitution.

In considering that question, the Supreme Court stated clearly that citizenship gave those Porto Rican US citizens the right to permanent residence. Can I take you to page 6 of the booklet, which is page 308 of the actual judgment. In the full paragraph on page 308 the court stated:

It became a yearning of the Porto Ricans to be American citizens, therefore, and this act gave them the boon.

It is the Organic Act, known as the Jones Act, which bestowed American citizenship on the Porto Ricans. Then the court asked:

What additional rights did it give them? It enabled them to move into the continental United States and becoming residents of any State there to enjoy every right of any other citizen of the United States, civil, social and political.

This states a very fundamental principle that citizenship gives a person a right to permanent residence in the country of which she is a citizen. Your Honours, the Full Federal Court statement also runs counter to the international documents relating to citizenship. In that same bundle of additional material - - -

GUMMOW J: So what?

MS RUBENSTEIN: Well, your Honours, I would submit that it is also consistent with the Air Caledonie Case that I have already cited, where the - - -

GUMMOW J: Yes, but what is the date of these international instruments?

MS RUBENSTEIN: The international instruments are 1948 and then 1966, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

GUMMOW J: Are they said to control in some way the meaning of the Constitution?

MS RUBENSTEIN: No, your Honour, but they are consistent with Air Caledonie - - -

GUMMOW J: Well, that is a constitutional question - Air Caledonie is a constitutional question.

MS RUBENSTEIN: That is right, your Honour. I am supporting and providing information to show that the decision of the Full Federal Court in Air Caledonie should be upheld and is consistent with both the US Supreme Court decision and - - -

GUMMOW J: Well, no one says it should not be upheld.

MS RUBENSTEIN: Air Caledonie?

GUMMOW J: Yes.

MS RUBENSTEIN: Air Caledonie, your Honour, provides a statement that all Australian citizens have a right to permanent residence in Australia. What I am suggesting is the Full Federal Court - - -

GUMMOW J: No, it does not. It says they have a right to enter.

MS RUBENSTEIN: Yes, your Honour, a right of entry, which is the fundamental starting point to permanent residence in Australia. Both these international covenants support a fundamental principle associated with citizenship, which we would submit is part of the claim that the applicant submits is fundamental to her continuing Australian citizenship.

Your Honours, I would like to move on to the construction issue, but before doing so make the point that this case and this principle is important, not only for Ms Walsh's situation, but for other cases associated with the rights of Australian citizenship. Your Honours, the second issue is whether the applicant satisfied all the criteria for citizenship by descent under section 10C of the Australian Citizenship Act.

If I could take your Honours to the legislation, and if we return to the application papers at page 61, where the Full Federal Court also set out those relevant sections. Section 10B, which you see at the top of page 61, sets out "Citizenship by descent". It replaces the former section 11 of the Australian Citizenship Act. Section 10C deals with "Citizenship by descent for a person over 18 years old". This was a provision to extend citizenship. It was an inclusive provision to enable people who failed to apply before the age of 18, but who would otherwise have fulfilled section 10B, to become registered. The critical provision is section 10C(4)(c)(i), which refers to the applicant for citizenship by descent having been "born outside Australia".

Your Honours, the primary judge looked at the legislative history, in particular the predecessor section 11 of the Citizenship Act, which is set out in the application book on the next page, page 63. At the top of that page, section 11, as set out in that judgment, strongly suggests that Papua and New Guinea were not part of Australia for the purposes of citizenship by descent. The primary judge identified this as the intention. His reasons, at the application book on the next page, page 64, state quite clearly, in the second paragraph, that:

as at Independence Day, that a person born in Papua New Guinea of an Australian parent be entitled to Australian citizenship by registration.

GUMMOW J: Now, look, are not the crucial paragraphs in the Full Court judgment paragraph 55 and paragraph 60?

MS RUBENSTEIN: On pages 66 and 67, your Honour?

GUMMOW J: In paragraph 55 of the judgment.

MS RUBENSTEIN:

The Independence Regulations stripped persons in the position of Ms Walsh of their Australian citizenship arising by birth.

That paragraph?

GUMMOW J: Yes.

MS RUBENSTEIN: Your Honour, that relates to the very first argument that I presented.

GUMMOW J: And paragraph 60.

MS RUBENSTEIN: And paragraph 60. That is relating to the second issue of construction and it is our submission, your Honour, that the structure of the legislation actually supports Ms Walsh's application for citizenship by descent. There are essentially two alternate arguments. One is that she has continued to remain as an Australian citizen. In the event that the Court does not accept that, that she has a right to citizenship by descent by virtue of her Australian citizen father, and that the interpretation of the legislation in section 10C should be that she is a person born outside of Australia for the purposes of citizenship by descent.

GUMMOW J: Yes, it depends then on what Australia means - - -

MS RUBENSTEIN: That is right, your Honour.

GUMMOW J: - - - at that time of the enactment of the Act, I suppose.

MS RUBENSTEIN: Well, at the time of section 10B and 10C.

GUMMOW J: Yes.

MS RUBENSTEIN: Your Honour, the citizenship legislation in Australia, and indeed citizenship frameworks throughout the world, recognise that people have an attachment to a community either through birth or through descent. Ms Walsh has both. She was born in Australia and she has an Australian citizen father, but she is being denied Australian citizenship. It is our submission that she has an entitlement to those.

Your Honours, may I move then to the third issue and that is the question of the invalidity of the regulations themselves. In the event that your Honours - - -

GUMMOW J: As is pointed out in paragraph 60, invalidity was not an issue in the Full Court.

MS RUBENSTEIN: Your Honour, that is correct, it has not been raised before, but we submit that it is a matter that is relevant to this case before it. Your Honours, can I take you to the Papua New Guinea Independence Act itself, which is in the respondent's bundle of material submitted to the Court at tab 4. Section 6, which is at the bottom of that first page, sets out the source of the regulations. It is a broad power to make regulations:

arising out of or connected with the attainment of the independence of Papua New Guinea, including regulations making modifications or adaptations of any Act.

GUMMOW J: Now, what head of power do you say supported, or did not support, section 6?

MS RUBENSTEIN: Your Honours, it could either be the territories power under section 122 or arguably the aliens and naturalisation power, in relation to the regulations that flow from that. But, your Honour, we submit that, in fact, those regulations are ultra vires and beyond those powers - - -

GUMMOW J: But, wait a moment, do you say the section is beyond power or do you say the regulations are beyond section 6? They are distinct questions.

MS RUBENSTEIN: Yes, indeed, your Honour. The regulations are beyond section 6. Her Honour Justice Gaudron stated in Re Patterson; Ex parte Taylor 182 ALR 657, which is in tab 11 of the respondent's bundle of materials, at paragraph [47] of that judgment, which is on page 669, at the bottom of paragraph [47]:

The power to legislate with respect to naturalisation and aliens clearly includes a power to legislate to deprive a person of his or her membership of the body politic that constitutes the Australian community. However, the parliament's power in that regard is not at large. It can only be exercised by reference to some change in the relationship between the individual and the community. Absent any such change, the law could not be classified as a law with respect to naturalisation or aliens, for that power is wholly concerned with the relationship of individuals in the Australian community.

Your Honours, while there was clearly a change in the relationship between Papua New Guinea and Australia, this was not enough to enable Parliament to deprive an entire class of persons their citizenship status. There was no change in the relationship - - -

GUMMOW J: Even if that had the consequence that they did not acquire citizenship of the new state because of its internal constitutional arrangements?

MS RUBENSTEIN: Your Honours, I would submit that that would be actually a concern for the Papua New Guinea legislature, because citizenship laws through international law are recognised as being purely the concern of the country itself, so that Papua New Guinea could say, "No matter what Australia thinks of its own citizens, we determine certain persons to be citizens." They can be distinct questions. There was, in fact, no change in that relationship between Ms Walsh and the Australian community and, as such, those regulations which purported to strip her of her citizenship are invalid.

So, your Honours, for each of those reasons we submit that there is strong public interest in relation to this application. It raises some important issues in terms of the rights of Australian citizens to permanent residence and, as such, we apply for special leave.

GUMMOW J: Now, could we just look at your draft notice of appeal at 75. It does not bear a complete relationship to what has been put to us this morning.

MS RUBENSTEIN: Yes, your Honour.

GUMMOW J: Look at page 77, Chapter III of the Constitution, Racial Discrimination Act. It is all over the place.

MS RUBENSTEIN: Yes, your Honour. Your Honour, the applicant would be happy to draft a new notice of appeal in light of the oral arguments.

McHUGH J: Yes, but what are the grounds that you are pressing in this special leave application?

MS RUBENSTEIN: Yes, your Honour. The grounds would be that the applicant, Ms Walsh, is an Australian citizen - - -

McHUGH J: Well, which grounds? Look at page 75, which are the grounds?

MS RUBENSTEIN: All right. On page 75 grounds 1 through grounds 11 all refer to the second issue that I raised this morning, the question of construction, what we could call the construction issue.

GUMMOW J: That would have to be restated in some concise form.

MS RUBENSTEIN: Certainly, your Honour.

GUMMOW J: Yes.

MS RUBENSTEIN: Grounds 12 and 13 relate to the first question, whether the applicant lost her Australian citizenship upon the independence of Papua New Guinea, and the question of whether Australian citizenship carries with it the right of permanent residence.

GUMMOW J: That is a constitutional point.

MS RUBENSTEIN: Correct, your Honour. Then paragraph 14 is linked to the third argument.

GUMMOW J: Why?

McHUGH J: It has nothing to do with Chapter III of the Constitution.

MS RUBENSTEIN: No. Your Honour, it is concerned with the validity of the Papua New Guinea Independence Regulations. Perhaps I could refer your Honour to the actual summary of argument which extends that. The particular paragraphs there are paragraph 53 and 54 on page 87.

GUMMOW J: You should not arrive here with a draft notice of appeal which does not correspond with the arguments you want to put.

MS RUBENSTEIN: With respect, your Honour, they do correspond. It is just that the order is not - - -

GUMMOW J: No, they do not.

McHUGH J: Well, paragraph 14 certainly does not.

GUMMOW J: Nor does 15, nor does 16, and l7 is hardly a ground of appeal.

MS RUBENSTEIN: Your Honours, we are happy to confine the grounds to those presented in oral argument this morning.

McHUGH J: And 18 is not a ground of appeal.

MS RUBENSTEIN: Would you like me to restate the three appeal grounds for your Honours?

GUMMOW J: You have not leave yet. We are just trying to establish the situation so the Solicitor-General knows what he has to deal with. It is called natural justice.

MS RUBENSTEIN: Thank you.

McHUGH J: Yes.

MS RUBENSTEIN: May I state those three grounds, to clarify those three grounds from the - - -

McHUGH J: Yes.

MS RUBENSTEIN: The first would be that the Full Federal Court erred in holding that the appellant lost her Australian citizenship upon the independence of Papua New Guinea in 1975 by virtue of Regulation 4 of the Papua New Guinea (Australian Citizenship) Regulations and section 65 of the Constitution of Papua New Guinea. The second would be that the Full Federal Court erred in holding that Australian citizenship did not in 1975 carry with it a right of permanent residency.

The third is that the Full Federal Court erred in its construction of section 10C(4)(c)(i) of the Act in that it construed the word "Australia" as meaning the Territory of Australia at the time of birth, rather than the Territory of Australia at the time of the commencement of the provision, alternatively, the time of the application under section 10C, and then, finally, that the declaration that the Papua New Guinea Independence Regulations were invalid, because, of course, that does not appeal anything that was stated in the Full Federal Court. Each of those grounds I can, if your Honours like, link to the notice of appeal on - - -

McHUGH J: Yes, thank you. Yes, Mr Solicitor.

MR BENNETT: If the Court pleases. Your Honours, I will deal with the arguments in the same order. Dealing with the first argument, it is, we would submit, an argument that proves too much, because if my learned friend is correct in what she says about the effect of the PNG Constitution, something like half or more than half the population of New Guinea never became citizens of the new state. But, in fact, when one looks at their Constitution, which one is required to do by the regulation, it is quite clear that did not occur.

We have handed up to your Honours section 64 of that Constitution as well as the preamble. Section 64 makes clear the issue which is raised by my learned friend and makes it clear against her. Your Honours see section 64 provides:

(1) Notwithstanding the succeeding provisions -

so it overrides section 65 -

of this Part but subject to Subsection (2), no person who has a real foreign citizenship may be or become a citizen -

Then subsection (4) defines "real foreign citizenship". They had to use that rather funny phrase because all the people who were born in Papua were Australian citizens and they wanted to say that is not real foreign citizenship. So the way they did it was, they said:

a person who -

(a) was, immediately before Independence Day, an Australian citizen or an Australian Protected Person by virtue of -

(i) birth in the former Territory of Papua. . . and

(b) was never granted -

and we stress the word "granted" -

a right (whether revocable or not) to permanent residence in Australia, has no real foreign citizenship.

And person who has real foreign citizenship - the double negatives are a little hard - does not become a citizen. So, in our respectful submission, it is quite clear that even if, as my learned friend submits, all citizens of Papua did have some sort of right to permanent residence in Australia, they did not become citizens of Papua New Guinea. One gets that in any event from section 65, because section 65(4), on which my learned friend relies, provides that:

Subsections (1) and (2) do not apply to a person who -

(a) has a right (whether revocable or not) to permanent residence in Australia -

That must have been assuming the correctness of cases such as Donohoe v Wong Sau, and other cases suggesting that an Australian citizen can fall within the immigration power. Of course, the preamble begins with the words "WE, THE PEOPLE OF PAPUA NEW GUINEA - united in one nation". It would be an amazing thing if the effect of it was to give citizenship only to people born in New Guinea and not to people born in Papua, which, of course, included Port Moresby. So, in my respectful submission, the argument simply cannot be right.

In relation to Air Caledonie, we simply remind your Honours that the references there were in the context of returning Australian citizens. They were not dealing with the issue of Australian citizens who had never been to Australia proper. That issue was simply not before the Court. If your Honours go to my learned friend's materials which set out that case, your Honours will see that in the passage in Air Caledonie, page 13 of her documents, at about point 7, where just underneath the bold word "international":

The right of the Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or "clearance". In the case of such a returning citizen -

et cetera. So the emphasis is on returning. The same appears on the next page, on page 14, where at point 2, paragraph 12:

At least in a case of the ordinary Australian citizen returning by air from overseas, the description of the purported impost . . . did not suffice . . . As has been said, such a citizen had, under the law, the right to re-entry -

Of course, in addition, it is not talking about a constitutional right. It is talking about the fact that under the legislation the requirement to have a visa to enter Australia only applied to non-citizens. In the context of that remark it is talking about non-citizens.

In relation to my learned friend's second argument, again, we would submit, there are insufficient prospects of success. It involves giving the words "born in Australia" a different meaning in two successive sections. If your Honours look at the Australian Citizenship Act, as it now is, your Honours will see that section 10(1), at tab 2 of our bundle, provides:

Subject to this section, a person born in Australia . . . shall be an Australian citizen.

Then section 10C(4)(c) makes as one of its conditions for citizenship by descent:

the applicant:

(i) was born outside Australia -

It would be surprising if Australia has a different meaning in those two sections, particularly as we know that the definition in section 5(1) says:

Australia, when used in a geographical sense -

as it is there -

includes the external territories.

So it is clear that a dichotomy is set up between citizenship by birth and citizenship by descent, which is not available to people who are born within Australia, and that is consistent with what was done when Papua New Guinea became independent. The argument which Justice Dowsett relied on, involving the reference to Australia, Papua and New Guinea, we would submit is explained adequately by the Full Court as being a matter of more abundant caution and nothing more.

The final issue concerns constitutionality. We would submit that the Balzac Case does not establish that, under our Constitution, there is some requirement that a citizen has the right to live anywhere in Australia. Of course, the statements that my learned friend refers to of Justice Gaudron in Re Patterson were dealing with the aliens power, but she concedes that the provisions are enacted under the territories power.

It is open under the territories power for the government to say citizens of a particular territory shall be Australian citizens but have no right to come to the Australian mainland. That can be done under the territories power and has nothing to do with the other aspects. It is simply a..... As your Honours recall in Bernasconi, which has never been overruled, there is a reference to - - -

GUMMOW J: You took a deep breath before you said that, Mr Solicitor.

MR BENNETT: Yes, I did, your Honours, but the aspect I am referring to is a slightly different aspect, and that is the aspect which says that territories of different stages of development and the whole point of the territories power was to allow a very wide scope of dealing with them. Of course, by the time of Federation there were no territories and the territories that were contemplated were New Guinea, Fiji and the Northern Territory, which, of course, were at very different stages of development.

So, in my respectful submission, once one is under the territories power, one can do that, and the fact is that the Citizenship Act defines Australia one way and the Acts Interpretation Act, which governs the Migration Act, defines it differently. There is no reason why that cannot be done. As Donohoe v Wong Sau shows, an Australian citizen can be an immigrant under the immigration power. That aspect of Donohoe v Wong Sau has not, to my knowledge, been criticised.

The point about section 117 does not arise, it does not apply to territories, and the racial discrimination argument is not pressed. So, for those reasons, your Honours, we would submit that while no doubt the issues are important, they are not issues as to which there is any serious doubt attending the correctness of the Full Court decision. May it please the Court.

McHUGH J: Yes, Ms Rubenstein.

MS RUBENSTEIN: Your Honours, may I respond to several of those points. With respect to the first aspect of our argument, the major difference in approach of the applicant and the respondent is a question of whether an Australian citizen is absorbed within the Australian community and therefore beyond the reach of the scope of the immigration power.

Each of the cases that my learned friend refers to in support of the proposition that an Australian citizen can be beyond the scope of absorbed into Australia can be distinguished quite clearly from the case before us. None of them say explicitly that an Australian citizen is someone who comes within the scope of the immigration power. That is a matter that has not been conclusively dealt with by the High Court.

May I briefly provide an analogy which perhaps starkly illustrates the consequence for Ms Walsh. In the event that the Australian Capital Territory decided with the Commonwealth to become an independent State and followed the same legislative framework as has been provided with Papua New Guinea and Australia - - -

GUMMOW J: Well, the seat of government is there, so I do not think it is a very good example to take.

MS RUBENSTEIN: Well, perhaps if we use the Northern Territory then, your Honour. On the question of whether a person from the Northern Territory had a right of permanent residence in any other part of Australia, we would not go to the Migration Act to determine whether someone from the Northern Territory has a right to get on a plane and go across to Tasmania. We would not look to the Migration Act to determine whether they could become a permanent resident in Australia.

The clear consequence of being a citizen in a country - Ms Walsh, as a resident of Papua was a citizen of Australia - is that that person has a right to travel anywhere within that country. She never left her country, Australia, during her time of her citizenship. She maintained her connection to the Australian community. She was never in a position, like all of the cases cited, of leaving her country of citizenship and returning. She remained part of that country. So there is, with respect, no doubt that she had a right to permanent residence anywhere in her own country and so clearly fulfils section 65 of the Papua New Guinea Constitution.

Your Honour, with respect, we would submit that my learned friend falls into the same error as the Full Federal Court on page 53 in imputing the intention of the Papua New Guinea Constitution in relation to the specific provisions of section 65(4). It is quite explicit that the issue of concern is that of a right to permanent residence in Australia.

May I return to the construction issue and submit, your Honours, that the construction of section 10C as a question of descent clearly has a distinct difference to citizenship by birth. In every other case of territory, beyond Papua, any person born anywhere else in the world apart from Papua, would be entitled to citizenship by descent under section 10C by being born outside of Australia. Ms Walsh, by being born in Papua, is determined by the current interpretation as having been born in Australia and therefore is excluded from both aspects of an Act which is to provide for both people.

McHUGH J: Thank you, Ms Rubenstein. The Court will just adjourn briefly.

AT 10.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.15 AM:

McHUGH J: The Court is of the opinion that there are insufficient prospects of success for an appeal on the issues of statutory construction decided by the Full Federal Court to warrant a grant of special leave to appeal.

The applicant also seeks to raise for the first time in the litigation issues concerning the validity of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth). However, it would be contrary to the general practice of this Court in a civil matter to grant special leave in respect of a matter in which the Court has not had the advantage of the judgments of the intermediate Court of Appeal.

Accordingly, for those reasons special leave is refused with costs.

AT 10.15 AM THE MATTER WAS CONCLUDED