Ame, Ex parte - Re Battersby & Ors [2004] HCATrans 321 (24 August 2004)

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Ame, Ex parte - Re Battersby & Ors [2004] HCATrans 321 (24 August 2004)

Last Updated: 30 August 2004

[2004] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M146 of 2004

In the matter of -

An application for Writs of Habeas Corpus, Prohibition, Certiorari, Mandamus and a Declaration against RICHARD BATTERSBY, THE DIMIA MANAGER OF THE VILLAWOOD DETENTION CENTRE

First Respondent

GREG HOWDEN, THE GENERAL MANAGER OF GLOBAL SOLUTIONS LIMITED

Second Respondent

SENATOR THE HONOURABLE AMANDA VANSTONE, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

Ex parte –

AMOS BODE AME

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 AUGUST 2004, AT 10.39 AM

Copyright in the High Court of Australia

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MS K. RUBENSTEIN: If your Honour pleases, I appear on behalf of the applicant with MR C.J. HORAN. (instructed by Clothier Anderson & Associates)

MR G.R. KENNETT: May it please the Court, I appear for the respondents. (instructed by Australian Government Solicitor)

HIS HONOUR: I have looked at the papers in the matter. Where are we to go with this?

MS RUBENSTEIN: Your Honour, we would be urging upon the Court to grant the order nisi this morning on the basis of the arguments that have been placed before the Court that there is an arguable case that the applicant is an Australian citizen or a non-alien for the purposes - - -

HIS HONOUR: What is the significance of the statutory concept, “citizen”, for present purposes?

MS RUBENSTEIN: For the present purposes, your Honour, the consequence of citizenship status as the current High Court decisions pronounce is that it is the obverse of alien status, so a person who is a citizen is not an alien for the purposes of the Constitution. However, if the Court were open to find that that is not in fact the case, there is still the opportunity for someone who is not a citizen to still be a non-alien for the purposes of the Constitution. That is why both arguments are put before the Court.

HIS HONOUR: What, if any, consequence will arguments of the kind that were agitated in the matter of Singh have on what we do in this matter?

MS RUBENSTEIN: The arguments in Singh relate to the question of whether birth in Australian territory is sufficient to create non-alien status. The applicant here was born in Australian territory, so is in a parallel situation to Ms Singh, although the difference in this applicant’s scenario is at that time he was granted Australian citizenship, whereas with Ms Singh the section of the Act had changed, requiring a parent to be an Australian citizen as well. So she was precluded from the statutory concept of citizenship, whereas our client was included in the statutory concept.

HIS HONOUR: Where does the argument then go?

MS RUBENSTEIN: In relation to the power of the Commonwealth, there would always be the argument that the Commonwealth had the power to take away the citizenship status of our applicant, as they did in the case of Ms Singh, whereas we would argue that if that were determined, that the Commonwealth had the power to withdraw citizenship status as a statutory concept, it still did not have the capacity to withdraw his non-alien status. So the outcome in Singh might also lend support to that contention.

HIS HONOUR: But does that suggest that the further disposition of this matter should await judgment in Singh?

MS RUBENSTEIN: With respect, your Honour - - -

HIS HONOUR: I understand there may be some pressing questions of urgency. Let us for the moment leave aside whatever consequences that may have and we will have to deal with that, but are we likely to be better able to chart a course in this matter after Singh or should we chart a course now?

MS RUBENSTEIN: No, it would be my submission, your Honour, that we can continue to chart the course because Singh is really only relevant to the third aspect of the argument. The first part of the argument is regarding the validity of the Papua New Guinea Independence Act and the consequent regulations, and that is an entirely separate matter than the question being raised.

HIS HONOUR: What exactly is the point about the Independence Act? The Independence Act is nothing if not laconic. Is it said that some provision of that Act is invalid? If it is, what is the - - -

MS RUBENSTEIN: It is that section 6 of the Independence Act gave rise to the regulation-making power, that it is within the content of the regulation-making power that the question of the valid exercise of power is contested.

HIS HONOUR: Is it said that section 6 of the Independence Act, which is Act 98 of 1975, is valid or invalid?

MS RUBENSTEIN: To the extent that it enabled regulations which sought to deprive the applicant of his citizenship status, it is invalid.

HIS HONOUR: Thus section 6, you say, would have to be read down?

MS RUBENSTEIN: Indeed.

HIS HONOUR: The regulations that were made under it on your argument would be made without sufficient statutory support because section 6, you say, could not validly what? What is the ground of invalidity?

MS RUBENSTEIN: That it could not deprive a person of his citizenship or non-alien status without a relevant change in the relationship between the applicant himself in the community and that there was not a head of Commonwealth legislative power that enabled that section to do that.

HIS HONOUR: In particular, is it said that the aliens power in 51(xix) does not support a law, what, the consequence of which would be that someone not an alien becomes an alien?

MS RUBENSTEIN: It could not support a law which sought to deprive a non-alien of, in this instance, his non-alien status without giving that non-alien an opportunity in a court of law to respond and urge that that status not be taken away from him. So it is a matter of due process. We are arguing that it is necessary within the section 51(xix) head of power. It is the restriction on the Commonwealth in its exercise of legislative power.

HIS HONOUR: Is that something that is then sought to be derived from Chapter III or is it something derived from 51(xix)? The notion of due process injects an element that seems to have echoes of Chapter III about it.

MS RUBENSTEIN: Indeed, your Honour. Can I direct you to paragraph 23 of the submissions, where Justice Kirby in Patterson is quoted where, in looking at the situation of Mr Taylor, who of course was not a citizen and did not have citizenship status, but in looking at the concept of non-alien status which he was as a British subject, we quote from Patterson at page 312, where Justice Kirby stated:

If it was the purpose of the Migration Act, retrospectively, to change the nationality status of the prosecutor from a non-citizen British subject in Australia to an alien, then, because such a change would significantly affect the person’s legal rights, ordinary principles of statutory construction suggest that this could only be done by legislation expressed in plain terms. Considerations inherent in Ch III of the Constitution also support the argument that any such change might only be effective if made with due notice to the person concerned and the provision of a real opportunity to be heard in a court of law as to whether such a change could or should be made in that person’s case.

So it is requiring both express terms within the statutory framework and an opportunity for the person affected to have a real opportunity to argue that that status should not be withdrawn.

HIS HONOUR: Let it be assumed for the moment that we should not await Singh. There are then two related questions that would arise. One, what, if any, facts are in issue between the parties that are said to be relevant to the arguments that either side would wish to advance? Second, how should the matter proceed? Should it proceed by way of stated case, should it proceed by way of making the matter returnable before a Full Court under Order 55, rules 2 and 3? Those two questions need to be considered together.

MS RUBENSTEIN: May I make submissions on those points, your Honour?

HIS HONOUR: Yes, please.

MS RUBENSTEIN: In relation to the material facts, the most important material fact is the date of birth and place of birth of the applicant, being a time in which he was within the scope of section 10 of the Australian Citizenship Act. That material fact is made out of being born on 20 May 1967 in the Australian territory, Papua. In relation to the second argument, the alternative argument, if the Act and regulations are found to be valid, whether the applicant can still claim continuing Australian citizenship by virtue of the relationship between the regulation, which refers to the Papua New Guinea Constitution, and that raises a question of whether Australian citizenship status or non-alien status gives the person a right of entry and permanent residence in Australia.

In that scenario section 65 of the Papua New Guinea Constitution alleged to bestow citizenship on people born in the country before Independence Day who have two grandparents who were born in the country. We have an affidavit that has just been sworn this morning in the detention centre stating that material fact of his grandparents’ birth in territories. They are the only two matters that are necessary to be agreed upon in relation to the constitutional question.

HIS HONOUR: So the only facts you would depend on for your argument are, as I understand it, one, date and place of birth; two, facts concerning place of birth of two of the grandparents of the applicant?

MS RUBENSTEIN: And in regard to our preferred course of action, it would be for the order to be returnable before the Full Court under Order 55.

HIS HONOUR: Third, I suspect we would need, would we not, some agreement about the content of the PNG Constitution, it relevantly being foreign law, I would have thought. At least I would not want there to later emerge to be some contest between the parties about the content of that constituent document. That would be an unfortunate set of events. Do you say that there is any fact that would need to be established that would bear upon the operation of the regulations according to their terms? Is there any additional fact to which you would have to point in aid of an argument – I have in mind particularly the alternative argument - about the way in which those regulations are engaged?

MS RUBENSTEIN: Your Honour, we do not think there are any further additional facts because the argument for the alternative proposition only requires an assessment of the pure legal question and whether Australian citizenship or non-alien status gave a person a right of entry, as opposed to whether he in fact entered mainland Australia at any time. We are not proposing that that factor is at all relevant to the argument we put before the Court. So we are not seeking to show his movement around Australian territory. We are purely seeking to establish that as a resident of Papua as part of Australian territory and, therefore, as holding the status of non-alien or citizen, he had a right of permanent residence in any part of Australian territory and it was not confined in any way to the territory of Papua.

That is relevant to the question of whether section 65 of the Papua New Guinea Constitution applied to him. We would contend that it did not by virtue of the fact – or that it applied to him to the extent that he was a person who had a right of permanent residence in Australia and as such did not become a Papua New Guinea citizen for the purposes of the Papua New Guinea independent citizenship regulations.

HIS HONOUR: Is the consequence of that argument that any person born in Papua before independence falls outside the definition of Papua New Guinean citizen identified in section 65?

MS RUBENSTEIN: It does for the purpose of determining their citizenship status. As your Honour rightly referred to before or indicated, it is up to Papua New Guinea to determine who are its own citizens as a
matter of international law, but we are looking at the validity of the regulation seeking to strip the applicant of his citizenship. In looking at the validity of an Australian regulation which incorporates the Papua New Guinea Constitution, we would submit that it must be interpreted in a way that does not seek to deprive a person of their non-alien status if that interpretation can be made.

HIS HONOUR: I just want to be sure that I do understand sufficiently the point that is being made. Is the point that you would seek to make that whatever the domestic law of PNG may be, when we look at regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975, paragraph (d) does not operate in respect of any person born in the territory of Papua before Independence Day whether or not that person had two grandparents born in the territory of Papua.

MS RUBENSTEIN: That is correct, your Honour. The one point I would add, your Honour, is any person born in Papua who fell within section 10 of the Australian Citizenship Act because there are some exceptions in section 10 even before its amendment.

HIS HONOUR: Yes, but they were of relatively infrequent operation.

MS RUBENSTEIN: Indeed, but as a matter of strict law I would need to add that point.

HIS HONOUR: Whatever course we take, my present inclination is very definitely in favour of proceeding by way of a statement of agreed facts. The last thing I will contemplate is this or any other proceeding ending up in a Full Court where there is some fight about the facts which emerges later. The discipline of preparing a statement of agreed facts often invites the attention of those involved to what exactly it is that they have to establish. To be blunt, it provides a cudgel with which I at least would propose to beat the parties’ counsel about the head with if later it were to emerge that there were further facts upon which there was sought to be reliance. I do not invite comment about that for the moment. Perhaps I might hear what Mr Kennett has to say about what course he says I should follow.

MR KENNETT: Your Honour, my clients’ first preference would be for remittal to the Federal Court. I am not aware of any impediment to that and there may be some advantage in the matter coming before your Honours if it does with the benefit of an intermediate judgment on the issues.

HIS HONOUR: On the constitutional issue?

MR KENNETT: If they arise.

HIS HONOUR: In what circumstances would they not arise?

MR KENNETT: They would not arise if it were to emerge that on the proper construction of section 65 of the PNG Constitution and regulation 4 of the regulations the applicant had never been deprived of his citizenship. That depends first on my learned friend’s argument about permanent residence, his asserted right to permanent residence in Australia. If that argument fails, it depends on the operation of section 65(1) which turns on facts to do with the place of birth of the applicant’s grandparents. I am not aware of any reason why that cannot be agreed, but I just do not have instructions on it at the moment.

HIS HONOUR: Just explain to me a little further if you would, Mr Kennett, how this would work. If under regulation 4, read in the light of section 65 of the PNG Constitution, the Court were to conclude that the applicant did not cease to be an Australian citizen on independence, what consequence would follow for his immigration status?

MR KENNETT: The consequence which would follow – and I think this is my learned friend’s argument in the alternative – is that he has never ceased to be an Australian citizen. My client is not entitled to detain him and he would be released immediately.

HIS HONOUR: I understand the construction is disputed, but if the construction were adopted, is the consequence disputed? If he has not been stripped of his Australian citizenship, as the applicant would put it, his migration status would be that he is entitled to remain, would it not?

MR KENNETT: Yes, he would be a citizen. He would not be subject to any of the detention or removal provisions in the Migration Act. That consequence would not be disputed if the issue of construction were resolved against us.

HIS HONOUR: If I were to remit it, it would be to remit the whole, so the constitutional questions would come before the Federal Court. That of itself is no reason not to remit, I well understand that, but I had read the submissions of the applicant as laying chief weight on the constitutional argument, this construction point being an alternative that depended upon construing the PNG Constitution in a way which one might be forgiven for thinking would not find instant favour with a domestic PNG court since it would rather narrow the citizenship of that country, but there we are. The question is a question immediately for the Australian courts. You say first remit. If I were not to do that, what - - -

MR KENNETT: If your Honour were not to do that, then the next best course as we would see it would be to proceed on the basis of a statement of agreed facts. I cannot as I stand here give a guarantee that there will not be disputed facts.

HIS HONOUR: The whole point of seeing whether there is to be a statement of agreed facts - - -

MR KENNETT: I am not aware of anything that is likely to be disputed. In essence it is just a matter of my client being satisfied about the assertions made by the applicant in his evidence. There is one issue which I do not think my learned friend touched on, which may be relevant to how the issues arise or whether the constitutional issue arises. That is whether or not the applicant has at any time since 1975 renounced his Australian citizenship and made the declaration of loyalty contemplated by the PNG Constitution. I do not know whether that is dealt with in the affidavit that I have not seen yet, but it is another - - -

HIS HONOUR: Let it be assumed that there had been such a declaration of loyalty, is the Citizenship Act still cast in terms where that has some automatic consequence? It was at one point, I think. I simply do not know.

MR KENNETT: It depends, as I understand it, on the application of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations, which, in short, restored the Australian citizenship of persons who were under 19 on Independence Day and who fell through a gap in the legislation, but regulation 3 of those regulations provided that a person in that group who had renounced Australian citizenship and made the declaration of loyalty would thereby cease to be an Australian citizen.

HIS HONOUR: Yes, I see. Now, the applicant is presently in immigration detention.

MR KENNETT: Yes.

HIS HONOUR: Habeas was sought and for that reason the application was brought on the first available date I could. What I have in mind is sending the parties away until after the sittings next coming, see if they can agree on facts and come to a statement of agreed facts. Depending on the state of affairs then revealed and the state of authorities in the Court, give consideration to whether I should make the application returnable in the first instance before a Full Court or, alternatively, proceed by way of case stated under section 18 of the Judiciary Act stating particular questions for the decision of the Court. But is that intervention of probably three weeks or thereabouts such as presents any difficulty about the status of the applicant?

MR KENNETT: Certainly not from my client’s point of view, your Honour.

HIS HONOUR: I am sure it does not, but are you going to remove him?

MR KENNETT: There are no present plans to remove the applicant, your Honour, and I have indicated to my learned friends that if plans are made to remove him, they will be given seven days notice of the date of proposed removal so that they will have an opportunity to raise issues.

HIS HONOUR: In light of those circumstances, is there any reason not to put the matter over until after the sittings about to commence say until – I am hearing some single Justice matters on 21 September. That is closer to a month away, but is there any reason not to stand it over until then?

MR KENNETT: I would not seek to dissuade your Honour from that but I do not know about my learned friend.

HIS HONOUR: Yes. Dr Rubenstein, what is the - - -

MS RUBENSTEIN: Your Honour, may I respond to a couple of the points of my learned friend in regard to the issue of remittal to the Federal Court, or do you think that is unnecessary?

HIS HONOUR: At the moment I am not minded to remit. I have not decided I will not remit, but at the moment I would prefer to see whether there is the possibility of agreement on a statement of agreed facts that could sufficiently place the matter before a Full Court.

MS RUBENSTEIN: Certainly, your Honour. I would have to state for the record that the issue of construction does also involve a constitutional question in relation to whether non-alien status involves a right of permanent residence, so that that matter is relevant also to your Honour’s consideration of the matter.

HIS HONOUR: Yes.

MS RUBENSTEIN: Your Honour, of course our client is in detention so we would be urging the matter to be immediately returnable before the Full Court given that the nature of the evidence - - -

HIS HONOUR: “Immediately” is a relative term in this Court, Dr Rubenstein.

MS RUBENSTEIN: It is, indeed, your Honour.

HIS HONOUR: We have not yet fixed cases for November/December. I do not know whether it would be possible to bring this on in the list of cases in November or December. I simply do not know. But we have not yet fixed cases for that time. If the points are constitutional points, there seems to be some force in having them dealt with once and for all in the Full Court. I understand that, yes, the applicant is in detention; yes, it is very important that it be resolved quickly; yes, it is a matter of liberty; but it is also a matter of the Constitution.

MS RUBENSTEIN: Thank you, your Honour.

HIS HONOUR: I will simply adjourn the application for directions on 21 September at 9.30 am in Melbourne or such other time as may be directed. I will reserve the costs and certify. I give no direction to the parties about steps that are to be taken in the interim. I only say to you that it would be of advantage to all involved if attention can be given to settling a statement of agreed facts, if agreement proves possible. If agreement does not prove possible, I will expect to be informed on 21 September what are the areas of disagreement.

Do not misunderstand me. I will not be asking the parties to justify why they disagree, but I will want to understand the nature and extent of the disagreement that has emerged, for that will perhaps affect the course that has to be taken.

The orders will be in the terms I have indicated.

I will adjourn.

AT 11.11 AM THE MATTER WAS CONCLUDED