Ame, Ex parte - Re Battersby & Ors [2004] HCATrans 361 (21 September 2004)

--

Ame, Ex parte - Re Battersby & Ors [2004] HCATrans 361 (21 September 2004)

Last Updated: 1 October 2004

[2004] HCATrans 361

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, 21 SEPTEMBER 2004, AT 9.30 AM

(Continued from 24/8/04)

Copyright in the High Court of Australia

__________________

MS K. RUBENSTEIN: If the Court pleases, I appear with my learned friend, MR C.J. HORAN, for the applicant. (instructed by Clothier Anderson & Associates)

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

HIS HONOUR: Yes, Dr Rubenstein.

MS RUBENSTEIN: If your Honour pleases, the parties have, at the direction of the Court, come to an agreed statement of facts since the matter being adjourned at our last hearing. Mr Kennett, my learned counsel – his colleague is, I think, getting copies to be able to hand them up to your Honour. Then subject to your Honour’s decision in the application for the grant of order nisi, the applicant has an application for an interlocutory order.

HIS HONOUR: Yes. Let us deal with this question of agreed facts, Mr Kennett.

MR KENNETT: Yes. Your Honour, I can hand up a statement of the facts that have been agreed which, so far as I am aware, and I think my learned friends would agree, are sufficient to crystallise the legal issue between us.

HIS HONOUR: As to paragraph 1, that, I think does not take account of the Papua and New Guinea Act 1949 (Cth), the validity of which was considered in Fishwick v Cleland [1960] HCA 55; (1960) 106 CLR 186, which led, I think, to the creation of the single Territory of Papua New Guinea administered jointly.

MR KENNETT: Yes. Your Honour, some of that background is recited in paragraph 4. It is taken from the preamble to the Papua New Guinea Independence Act. There seems to have remained a distinction between Papua, which was formerly an Australian Territory, and New Guinea, which was formerly a trust Territory. The applicant, we would agree, was born in Papua, which was a Territory of Australia.

HIS HONOUR: Does this statement of proposed agreed facts constitute the whole of the facts which either party would contend is relevant to the grant of the relief or the question of whether relief of the kind sought should be granted?

MR KENNETT: It is always, of course, difficult to give a guarantee, your Honour, but, as we understand the case at the moment, the answer, at least from my side, is yes.

HIS HONOUR: Does that caveat suggest that rather than make the application for constitutional and other relief returnable before a Full Court, it would be better to proceed by way of stated case, in which the parties are positively confined to the facts that are said to be relevant?

MR KENNETT: The caveat was really a matter of caution on my part, your Honour. There is nothing that I can think of that is likely to be added or sought to be added to this statement. The question of procedure is one which I think I would not seek to persuade your Honour either way about.

HIS HONOUR: Yes. Now, Dr Rubenstein, first, what do you say about proceeding by way of stated case under section 18 of the Judiciary Act?

MS RUBENSTEIN: Your Honour, I cannot see that the applicant would have any preference either way. The particular matters raised in the application for the order nisi could be easily changed to questions for the purpose of the case stated.

HIS HONOUR: What would you see the questions for a case stated to be? I do not intend by that question to hold you to the particular drafting of those questions, but what do you see the substance of those questions as now being?

MS RUBENSTEIN: Following the order of the application for the order nisi, perhaps if I refer to each of those and suggest what the questions may be. The first is that the applicant/prosecutor is an Australian citizen or is not an “alien” within the meaning of section 51(xix).

HIS HONOUR: This raises the point that the statutory concept of citizenship is one thing; constitutional power is, I would have thought, another. So what is the question that is thought to arise?

MS RUBENSTEIN: There would be two questions, I would suggest, from that first point. The first is, is the applicant/prosecutor an Australian citizen? The second is, is the applicant/prosecutor an “alien” within the meaning of section 51(xix) of the Commonwealth Constitution?

HIS HONOUR: Or is it rather a question of whether section 6 of the Papua New Guinea Independence Act and the regulation – the name of which escapes me for the moment – are valid exercises of legislative power? Now, that may present questions about the ambit of the aliens power, and what would then follow from that formulation of the question is, why are these live issues after the Court’s decision in Singh?

MS RUBENSTEIN: First of all, your Honour, those questions could indeed be the questions stated. Whether they would need to be mutually exclusive, or, in fact, additional, perhaps is another question. In relation to the decision of Singh, the case of Singh did not look at all at the validity of that Act or regulations, so it has not been - - -

HIS HONOUR: I understand that, but what do you say is the principle that the majority reasons in Singh establishes, concerning the ambit of the aliens power?

MS RUBENSTEIN: The decision in Singh purely covered the question of whether the aliens power could be used to deprive a person born in Australia of non-alien status. This question is entirely separate. It is about whether the aliens power is broad enough to enable an individual to have their non-alien status stripped from them in these circumstances. So the Singh Case was looking at the point of citizenship on birth. In this matter, the applicant has non-alien status from birth by virtue of the Citizenship Act, and a further statute seeks to deprive - - -

HIS HONOUR: But, again, the argument is sliding between considerations of a statutory concept, citizenship, and considerations of a constitutional concept, alienage. Now, at some point, the argument must confront the constitutional concept of alienage and the power of the Parliament, the extent of the power of the Parliament in this case, so the Act and regulations would have it, to say of a person born within Australian Territory that subsequent international facts – namely, the independence of Papua New Guinea – suffice to engage the power of the Parliament to make laws with respect to naturalisation and aliens.

I raise these points not, as counsel might think, simply for the purpose of teasing counsel. I raise them because, first, it bears directly on whether I state a case for the Full Court or refer the matter in, but, secondly, it directs attention closely to the way in which the question is to be framed and perhaps to whether there is any live question that falls for determination following Singh. Singh may stand for a principle that is as narrow as the facts which gave rise to it, it may stand for some wider principle, but, sooner rather than later, the argument will have to confront just that question.

It seems to me to be a question that bears upon the way in which the case will be presented for a Full Court if it were to be presented for a Full Court at all, because the surrounding question is, is this a matter which should really simply be remitted to the Federal Court, for the Federal Court to determine this question of construction of the regulation, its associated issue about the Papua New Guinea Constitution, leaving the matter to wend its way through the appellate system, if there is thought, at the end of that process, to be some live constitutional issue which arises in the face of Singh. Now, where do we go from here?

MS RUBENSTEIN: Well, your Honour, I would propose that we continue to have the matter referred to the Full Court, whether it be as a matter of referring it in or as a case stated, as opposed to it being remitted to the Federal Court. With respect, I would submit that the issues of statutory citizenship are not entirely separate in this matter from the constitutional concept of “non-alien”, because of the facts of this matter, where the applicant, by virtue of birth, does not need to just rely on birth in Australia as a constitutional concept for the purpose of maintaining his non-alien status, given the fact that at his birth he was deemed by the Australian Citizenship Act to be a citizen and that the case law in the High Court has recognised that the notion of “citizen” has been used as a framework for determining non-alien status.

In contrast to the Singh Case, and why I would urge upon the Court that this is quite a separate matter and one requiring the High Court’s attention, the contrast in Singh’s Case was that Miss Singh was not a statutory citizen. So it purely revolved around the question of birth in Territory and whether that brought an individual within the constitutional status of “non-alien”. This matter takes the Court a step beyond Singh, because it concerns the question of Parliament’s power to withdraw both - - -

HIS HONOUR: What? Withdraw a legislative status? The law giveth, the law taketh away. Is there something more than the withdrawal of a legislatively created status?

MS RUBENSTEIN: Your Honour, the submissions placed in this application are in the alternative, so it preserves both arguments: first, that the withdrawal of the status of citizenship was not within the aliens power, but, alternatively, that the withdrawal of citizenship could not take away the non-alien status of the applicant. So whilst I appreciate your Honour’s concern about the slippery nature of the statutory concept and the constitutional concept, the nature of the way citizenship law and non-alien status in Australia have evolved requires a consideration of both matters.

HIS HONOUR: As at present advised, I think that the more productive path to pursue is to take the statement of agreed facts, consider whether, based on that, a section 18 stated case can be formulated, and I will consider whether that should be done. I leave to the parties, for the moment, consideration of how long the preparation of that document would take and what instructions they would need to obtain.

If, once we have dealt with this question of interlocutory relief, to which I will turn presently, the parties thought it possible, useful, productive, to come back this afternoon at 2.45, yes, by all means. If the parties think it more productive to spend a little more time on it and formulate it, then we will stand it over for another day, but, for the moment, I think that it would be better to be working from a draft stated case. Now, with that hovering in the background unresolved, you have your application by summons of 16 September 2004, do you not?

MS RUBENSTEIN: That is correct, your Honour.

HIS HONOUR: And upon what material do you rely in support of that application?

MS RUBENSTEIN: Your Honour, there are several affidavits prepared by my instructing solicitors.

HIS HONOUR: Yes. Upon which of those do you rely for the purpose of this application?

MS RUBENSTEIN: The one affirmed on 16 September 2004.

HIS HONOUR: Yes. Mr Kennett, is there any objection to that affidavit or any part of it?

MR KENNETT: No, your Honour.

HIS HONOUR: Thank you. Well, that may be taken as read. Mr Kennett, what is the attitude of the respondents to the application?

MR KENNETT: It is opposed, your Honour.

HIS HONOUR: Yes. Go on, Dr Rubenstein.

MS RUBENSTEIN: Your Honour, it is the submission of the applicant that the principles that bind this Court in relation to interlocutory applications are such that would suggest that this is a matter which should be taken – that the applicant should be released from detention. The significant principles are stated by Chief Justice Mason in Castlemaine Tooheys v South Australia [1986] HCA 58; (1986) 161 CLR 148. The three matters that we need to be able to satisfy, your Honour, are that there is a serious question to be tried – and it is the submission of the applicants that the nature of this application and the submissions made in relation to the order nisi make out that ground.

HIS HONOUR: Yes.

MS RUBENSTEIN: The second is that the applicant will suffer irreparable injury, for which damages will not be an adequate compensation, unless an interlocutory application of the injunction is granted, and, your Honour, it is the submission of the applicant that deprivation of liberty is the most serious, second to, of course, the taking of life, that could be suffered, and there is no adequate compensation for that. Finally, the balance of convenience favours the granting of an injunction.

The matters that have been taken into account by the Court in relation to these questions of the public interest that is being protected by the continuation of the alleged unconstitutional legislation compared to the seriousness of the harm that the applicant is contending – your Honour, we would submit that, in fact, the public interest of the Commonwealth is quite limited in relation to the fact that the applicant is not a danger to the community in any way, and that he has undertaken a series of matters that are outlined in the affidavit in relation to his agreement to various conditions that would preclude there being any danger to the Commonwealth in his being released from detention.

HIS HONOUR: What significance, if any, do I attach to his application for a bridging visa, the decision of the Migration Review Tribunal that his bridging visa might be granted upon various conditions, one of which was that he provide security for performance of his obligations to surrender?

MS RUBENSTEIN: Your Honour, we would submit that there are several aspects of that decision that are relevant. First, he is able to comply with provisions under the Migration Act except for that condition of the security. Our client is not in a position to pay that security, and, as a matter of principle, deprivation of the liberty of the individual should not be subject to monetary payments.

HIS HONOUR: Why not, in that if you treat this not so much as application for injunction, but application for bail pending resolution of a habeas, would not security ordinarily be required in connection with the grant of bail?

MS RUBENSTEIN: It may be, indeed, your Honour, but in the nature of this application, which is not a matter of detention by virtue of criminal offence, but is purely an administrative detention, the Court should take that into account in distinguishing the nature of the application.

HIS HONOUR: Am I right in understanding the security to which the Migration Review Tribunal referred as being security for due performance of the applicant’s obligation, in effect, to surrender to the Commonwealth upon completion of the legal proceedings that he had commenced?

MS RUBENSTEIN: Yes, that is correct, your Honour.

HIS HONOUR: What troubles me is that he has alternative relief available to him. He has pursued that alternative relief. It has been granted to him on conditions of a kind that are not challenged before me. Why should I now go behind that or around it and give him relief on more favourable conditions than the relief which otherwise he has achieved?

MS RUBENSTEIN: Your Honour, the application before the Migration Review Tribunal is within a very limited context, in terms of the nature of the matters that that Tribunal can take into account. The High Court in its original jurisdiction - - -

HIS HONOUR: And the impediment is that he could not give security for due performance of his obligation to surrender. That is a matter that goes to, I would have thought, at least balance of convenience, if you are treating this as injunction.

MS RUBENSTEIN: But at the same time, your Honour, he has agreed to conditions which are speaking to the same matters that are relevant to the question of security.

HIS HONOUR: It is always very persuasive to say to a judge the conditions that the judge imposes will, of course, be obeyed. You do not need to sit as a judge for too long at first instance to realise that that is not a universal truth.

MS RUBENSTEIN: With respect, your Honour, the question - - -

HIS HONOUR: Perhaps I am just cynical.

MS RUBENSTEIN: Perhaps, and, indeed, the applicant’s liberty is of such serious nature that - - -

HIS HONOUR: It is.

MS RUBENSTEIN: - - - the applicant would naturally be taking that into account in being granted such an order.

HIS HONOUR: Yes.

MS RUBENSTEIN: So they are the three simple matters, your Honour, that we would contend are essential to determining this application.

HIS HONOUR: Yes, thank you. Yes, Mr Kennett.

MR KENNETT: Your Honour, my friend began with the three points arising for consideration from Castlemaine Tooheys. I do not propose to say anything about the second point, irreparable harm. My submissions concern the balance of convenience and its interplay with the need for a real issue to be tried. I do not need to remind your Honour of what the Acting Chief Justice said in Castlemaine Tooheys, but can I give your Honour two cases which I propose to refer to briefly. One is a decision given ex tempore by Justice Gummow in a matter called Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Cowgill on 4 April last year. What I will hand up is a transcript of the hearing, but it has his Honour’s reasons at the end. The other is a decision of the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 125 FCR 31.

HIS HONOUR: And these are in aid of what proposition?

MR KENNETT: The proposition I am working towards, your Honour, is that this is a constitutional case. The interim relief that the applicant seeks requires a preliminary finding or an assumption that provisions enacted by the Parliament are, at least to some degree, invalid, and the applicant in those circumstances needs to show what were described in Castlemaine Tooheys as “compelling considerations” in order to obtain the relief that he seeks.

In the Cowgill transcript, his Honour’s reasons begin at the bottom of page 14. His Honour sets out the background to that matter, which was a cancellation decision under section 501, slightly different to the present case. In the middle of page 15, his Honour notes that:

The relief sought is injunctive in character and interlocutory in nature. Jurisdiction is attracted by section 75(v) of the Constitution –

but it is necessary to identify the suggested illegality. Then his Honour sets out – your Honour may have different pagination from me, I am sorry about that.

HIS HONOUR: No, I am following it. Yes.

MR KENNETT: My learned friend has different pages. I will give her the same ones I have. Then there is a long and probably familiar extract from Castlemaine Tooheys, which finishes in the middle of page 16 with the conclusion:

subject to these qualifications there can be no reason to doubt the correctness of the general thrust of the comments –

quoted from the Canadian case, and that:

In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires.

Then in the following paragraph comes the core of his Honour Justice Gummow’s reasoning:

The applicant points to his undoubtedly important interest in his personal liberty but the conjunction of section 501 –

which was the relevant provision in that case –

and section 196 of the Act represents a legislative judgment –

as his Honour puts it –

upon countervailing considerations. The validity of that legislative assessment should be reserved until the Full Court rules on the matter.

Now, this, as I have said, is not a 501 case, but it is nevertheless a case in which the applicant needs to show that provisions which the Parliament enacted are invalid, at least in their application to him.

The first basis on which the case is put, as I apprehend it, emerges from particulars (b) and (c) to ground 1 in the draft order nisi, and that is to the effect that the Commonwealth legislation which purported to deprive him of his statutory citizenship was beyond power – clearly, a proposition of the kind caught by Castlemaine Tooheys.

The second way the case is put emerges from particular (d) and the argument, as I understand it, is that the applicant, because he had a right of permanent residence in Australia, was never caught by the provisions of the PNG Constitution that would have made him a citizen of that country and, therefore, on statutory construction grounds, he never lost his Australian citizenship. That, as I understand it, is the second of the applicant’s arguments.

It is in connection with that argument that I gave your Honour the Full Court’s decision in Walsh. My learned friend contends that this case was wrongly decided, and that is something that we will have to argue about in due course. For present purposes, beginning on page 35 of the report, paragraph [13], the Full Court sets out the statutory background to an issue that was also raised in that case, which was as to whether Ms Walsh, who relevantly was in the same position as the present applicant, had, prior to Independence Day, a right of permanent residence in Australia. In paragraph [16], it is noted that in those days:

the Migration Act 1958 (Cth) . . . imposed immigration controls upon an “immigrant” –

under the migration power.

Section 6(1) of that Act provided that an “immigrant” who entered Australia without an “entry permit” thereby became a “prohibited immigrant”, and thus liable to deportation under s 18.

The following paragraph notes the change that was enacted in 1983 to bring the Act into the framework it now shows, relying on the aliens power. Then in paragraph [18] their Honours return to the old version of the Migration Act, which had a definition of “immigrant” which included:

a person intending to enter, or who has entered, Australia –

There is some consideration of the power to do that in paragraph [19], and then in paragraph [20] their Honours note that:

In 1975, the Migration Act did not contain a definition of “Australia” –

but by virtue of the definition in the Acts Interpretation Act:

“Australia”, for migration purposes, was limited at the relevant time to the area comprising the states and the internal territories.

Now, what follows from that background is that if the applicant in this case wants to argue that he had a right of permanent residence in Australia at the relevant time, he needs to argue that those old provisions of the Migration Act were ineffective in requiring him to have an entry permit before he could land on the mainland. Hence, that argument also, in my submission, is a constitutional argument of the kind which Castlemaine Tooheys catches. If I am wrong about that - - -

HIS HONOUR: One might interpose that it is a matter that might also bear upon the framework of a stated case, but there we are.

MR KENNETT: Yes.

HIS HONOUR: Yes, I understand that you say it is a constitutional case, Castlemaine Tooheys, be hesitant. Yes?

MR KENNETT: My other point about that second argument is that if it is the case that this applicant missed out on Papua New Guinea citizenship in 1975, the same consequence must follow for everybody born in that territory, everybody born in Papua, at least since the commencement of the Australian Citizenship Act in 1949, and that, I would submit, is simply not a plausible construction of section 64 and 65 of the PNG Constitution. So, insofar as that argument is relied on, I would submit that there is not a real issue to be tried.

If I could come then to the balance of convenience and the presence or otherwise of compelling grounds, the applicant, of course, points to his interest in personal liberty. On the other side, I can see that he does not have a long and worrying criminal history of the kind that Mr Cowgill had and there is not evidence which would lead your Honour to think that he was an unusual danger to the community or a particularly strong flight risk. However, it is relevant that the Migration Review Tribunal was prepared to grant him a bridging visa, albeit on security.

He had, and one may assume still has, if he chooses to make a further application, an alternative means of obtaining his liberty, which would be consistent with the Migration Act and would not involve defining to any degree the will of the legislature. That option was not taken up by him, for reasons which are perhaps understandable, but nevertheless, from the Court’s point of view, it is an option which is there, an alternative avenue that he has which does not involve this Court in making an order.
That, in my submission, is another discretionary factor weighing against granting this relief. If the Court pleases.

HIS HONOUR: Yes. Yes, Ms Rubenstein.

MS RUBENSTEIN: Your Honour, there are just two points that I would like to make in response to Mr Kennett’s submissions. The first is in relation to Cowgill, as he has pointed out, there is a clear distinction in terms of the nature of the balance of convenience regarding the threat to the public interest. Justice Gummow did pay attention to the fact that the visa had been cancelled for the very purpose of protecting the community, and so that consideration is an important one in distinguishing this matter.

Your Honour, Justice Gummow also made great efforts to stress the importance of Chief Justice Mason, as he then was, in the decision in Castlemaine, and one of the matters that was also made in that decision was that the question of a constitutional matter, as my learned friend said, does not preclude an interlocutory order being made, but that there needs to be compelling circumstances. One of the examples that was referred to as an example of that nature was the 1923 case of R v Macfarlane; Ex parte O’Flanagan and O’Kelly, in which the circumstances were within the Immigration Act of that period, and the Court acknowledged that that may indeed be a context regarding the detention and deprivation of liberty of an individual as being one of those compelling cases.

So we would submit, your Honour, that this is the context in which a compelling case can be made out that the deprivation of liberty is such a serious matter that the benefit to the applicant must be seriously considered, and given that there is no threat to the community as there was in the Cowgill Case, which is the distinction, the applicant should be granted the interlocutory order.

Your Honour, I do not think there is any need for me to deal with the specific points in relation to the Full Court decision in Walsh, save to note that the decision also does state at the end that in no way were they asked to consider the validity of the Papua New Guinea Independence Act or regulations, as, of course, is the main argument in this matter.

HIS HONOUR: Yes, thank you.

On 4 August 2004, Amos Bode Ame filed an affidavit in support of an application for relief by way of habeas corpus, prohibition, mandamus, injunction and declaration. He contends that he is an Australian citizen by birth, having been born on 20 May 1967 in what is referred to as the Australian Territory of Papua. The Papua New Guinea Act 1949 (Cth) amalgamated, at least for administrative purposes, both the Territory of Papua and the old mandated Territory of New Guinea. For that reason, it may be more accurate to say that the applicant was born in the Territory of Papua New Guinea: see, in this connection, Fishwick v Cleland [1960] HCA 55; (1960) 106 CLR 186.

The applicant seeks to contend that insofar as section 6 of the Papua New Guinea Independence Act 1975 (Cth) and regulation 4 of the Papua New Guinea Independence Australian Citizenship Regulations 1975 (Cth) purported to deprive him of Australian citizenship, they are beyond the legislative power of the Parliament with respect to naturalisation and aliens. He further contends that the regulations that I have mentioned, on their proper construction, if valid, have the consequence that he did not, on Independence Day of what was to become the independent state of Papua New Guinea, become a citizen of that state by virtue of the provisions of section 65 of the Constitution of that independent state.

This latter contention is one which depends upon the operation of section 65 of the Papua New Guinea Constitution and, in particular, upon that aspect of section 65 which qualifies the general proposition that a person born in Papua New Guinea before Independence Day who has two grandparents born in that country is a citizen of that country. The qualification said to be engaged is that in section 65(4), which provided that earlier provisions of section 65 do not apply to certain persons, including persons who have a right, whether revocable or not, to permanent residence in Australia. The applicant would contend that he had such a right to permanent residence in Australia because he was an Australian citizen.

When the matter first came on before me on 24 August 2004, I adjourned its further consideration to allow the parties an opportunity to consider whether a statement of agreed facts could be formulated, with a possible view either to referring the application for relief for consideration by a Full Court or to stating a case for the consideration of the Full Court.

In the meantime, the applicant applied for a bridging visa that would permit him to remain out of immigration detention. That application was initially refused and he sought review of that refusal by the Migration Review Tribunal. The Tribunal remitted the decision under review for reconsideration with various directions, in effect, that if the applicant provided security of $10,000 for compliance with certain conditions of the visa, a bridging visa should issue. The security was intended to provide security for the applicant’s obligation to surrender to immigration authorities if the proceedings he seeks to institute in this Court were to be concluded adversely to him. The application made today has been conducted on the basis that the applicant is not in a position to provide that security.

The applicant now applies by summons for an order that, pending the hearing and determination of the proceeding or further order, the proposed respondents, of whom one is the Minister, be restrained from continuing to detain the applicant in immigration detention. As the course of events which I have described reveals, the application for injunction seeks to avoid the difficulties presented to the applicant by the decision of the Migration Review Tribunal that the applicant should not be permitted to remain at large without providing some security for compliance with his obligation to submit himself to removal from the country if the proceedings which he seeks to institute in this Court were not to succeed.

The Tribunal’s decision, of course, proceeds from the premise that but for the grant of a bridging visa, the Migration Act 1958 (Cth) would require the applicant’s detention as an unlawful non-citizen. The applicant, by these proceedings, would seek to challenge the validity of that premise. The challenge to that premise depends primarily upon his contention that the legislation and regulation which, on their face, affect his citizenship are beyond power and invalid.

Although the application is cast in terms of an injunction restraining the respondents from continuing to detain the applicant, the relief which now is sought can be seen as being in the nature of bail pending consideration of an application for habeas. If that were its proper characterisation, the inability of the applicant to provide security for his surrender to authorities would be a relevant circumstance. If, contrary to that approach, the present application were to be seen only as an application for injunction, the principles to be applied are those underpinning the decision of Acting Chief Justice Mason in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148.

At the centre of the proceedings which the applicant seeks to institute in this Court is the contention that the legislation and regulations which affect his status are beyond power. As Chief Justice Mason pointed out in Castlemaine Tooheys, where the proposed restraint on enforcement of a statute is founded in allegations of invalidity, there is an intersection between the private interests of the plaintiff and the public interest to which the legislation in question is intended to give effect.

Although there is no absolute rule against restraining enforcement of a statute challenged on constitutional grounds and although this Court has not adopted the position adopted in Canada of concluding that it is only in exceptional circumstances that interlocutory relief would be granted to restrain enforcement of a statute challenged on constitutional grounds, the Court, in arriving at a balance of convenience, must take account of the public interest which the statute in question is intended to achieve and the damage to the public interest that may be caused by restraining its enforcement, and weigh that against the particular harm of which the plaintiff complains. In undertaking that task, it may be, and commonly will be, necessary to make some assessment of the strength of the case for invalidity.

In the present case, one of the chief factors which would weigh against the grant of the interlocutory relief which the applicant seeks is that he has sought and obtained alternative relief under the statutory scheme regulating migration. That is, he has taken advantage of other procedures to achieve his desired result, but cannot comply with the conditions that have been imposed for the grant of that relief. Where, as is now the case, the applicant is unable to provide security in the sum fixed by the Migration Review Tribunal for restoration of what now is the status quo, the balance of convenience against grant of the interlocutory relief sought must weigh against the applicant.

Even assuming, for the purpose of argument, without deciding, that the applicant has an arguable case of invalidity, and even assuming, without deciding, that the applicant’s case founded in construction of the relevant regulation is an arguable case, the course of events which I have described leads me to the conclusion that the application for interlocutory relief should be refused.

Inability to provide security for restoration of the status quo, inability to provide security were the matter to be treated as an application for bail, coupled with the availability of and resort to other procedures to obtain the substance of the relief which he seeks, combine as determinative considerations against the grant of the relief sought. It follows for these reasons that the application for interlocutory relief should be dismissed.

Is there any reason not to make the costs of that application costs in the proceeding generally?

MR KENNETT: No, your Honour.

HIS HONOUR: The application for interlocutory relief is dismissed, costs of that application will be costs in the proceeding. I will, of course, certify for the attendance of counsel.

Now, do counsel wish me to stand the matter over until some time convenient after 2.45 or do you wish me to stand the matter over to a later date?

MS RUBENSTEIN: Your Honour, we would be happy to reconvene at 2.45.

HIS HONOUR: Yes. You may mention the matter at some convenient time not before 2.45 this afternoon.

AT 10.31 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 3.23 PM:

HIS HONOUR: Now, what is the state of play in this matter?

MR KENNETT: Your Honour, I have conferred further with my learned friends since we were last before you and I can hand to your Honour a draft of the stated case which we have prepared. It has some questions at the end which I will come to in a moment, but I wanted to mention two other aspects before your Honour gets there. One is that the document is much thicker than this morning’s, because it has attached to it the Constitution of Papua New Guinea. That is referred to as an attachment at the top of page 3. Because the contents of that Constitution are a matter of fact, we thought it appropriate to put the whole document before the Court in this way.

HIS HONOUR: Yes.

MR KENNETT: The other matter is a slight change to paragraph 1 of the statement of facts. We have amended that to refer directly to the concept of “Australia” which was, and still is, for that matter, defined in the Australian Citizenship Act. It is common ground between us that in 1967 the effect of that definition was to include Papua.

HIS HONOUR: Yes.

MR KENNETT: Then your Honour will see on page 5 five questions which appear, to counsel at any rate, to deal with the legal issues that arise in the case.

HIS HONOUR: Question 5 at least may be posed in a way which is at best unhelpful, at worst inappropriate, for it does not identify what, if any, consequences are said to follow from the answer. I had understood there to be a challenge to the validity of certain laws, namely, section 6 of the Independence Act and regulation 4 of the regulations, in part upon the basis that those laws could not validly support the consequence now asserted against the applicant in reliance on the naturalisation and aliens power. Is that right?

MR KENNETT: Your Honour, the relief which the applicant seeks is, in effect, to be excluded from the operation of provisions of the Migration Act which, on their face, would seem to require that he be detained and ultimately removed from Australia - - -

HIS HONOUR: On the basis that he is a non-citizen of a particular class of non-citizen.

MR KENNETT: Yes. Now, the Act, on its face, applies to him because he is a non-citizen, and his answer to that, as I understand it, is that those provisions cannot apply to him because either he is a citizen in the statutory sense or, despite not being a citizen in the statutory sense, he is not an alien and therefore beyond the reach of the relevant head of power. That is the basis for the way that we framed the last two questions. Your Honour, it may be that that could be made clearer – I have just been given a note of this suggestion. It may be that that could be made clearer by replacing the last question or adding to it questions directed more specifically at whether particular provisions such as sections 189, 196 and 198 of the Migration Act apply validly to the applicant.

HIS HONOUR: Question 1 is a question of construction. True?

MR KENNETT: Yes.

HIS HONOUR: Question 2 may be a question of regulation-making power, or it may be a question of constitutional validity, or it may be both.

MR KENNETT: Yes.

HIS HONOUR: If it is both, I think the questions should be shelled out. Question 3 depends, does it not, upon the true construction of the regulation rather than upon any question of constitutional head of power?

MR KENNETT: Yes.

HIS HONOUR: Then questions 4 and 5 are intended, as I understood it, to raise questions about constitutional power supporting the provisions of the Independence Act and the Independence Regulations. Is that not right?

MR KENNETT: Questions 4 and 5, your Honour, are directed at, in the light of what has gone before, whether or not the provisions of the Migration Act purport to apply and can validly apply to the applicant in the present day.

HIS HONOUR: But that turns upon whether he is a citizen.

MR KENNETT: Yes.

HIS HONOUR: That in turn turns upon the Independence Act and the regulations made under the Independence Act, does it not?

MR KENNETT: Yes.

HIS HONOUR: It seems to me the questions must strike at the root of the problem by inquiring about validity of the Independence Act and validity of the regulations, if there are two separate issues being raised, both in the sense of regulation-making power being sufficient in the Act and constitutional head of power to regulate the status of a person born within what was a Territory of the Commonwealth. Does the Commonwealth eschew argument founded in section 122?

MR KENNETT: No.

HIS HONOUR: Are we, if these questions go forward then, first informing a Full Court of what the true questions are, and (b) are we getting useful answers?

MR KENNETT: Question 2 was intended to encompass issues both as to regulation-making power and constitutional power, although the argument, as I understand it, relates only to constitutional power. Section 6 of the Independence Act, at least on its face, is sufficiently broad to allow regulation 4 of the regulations, and the issue between us would be whether section 6 constitutionally can allow such a regulation, in light of the applicant’s prior status as a citizen. Now, it may be that that could be made clearer in the question.

HIS HONOUR: Are both sides aware of the proceedings that were brought by Sebastian James Taurino in the Brisbane Registry of the Court? You will find the last of the transcripts concerning that at [2004] HCATrans 85, which concerned the possible statement of a case to the Full Court concerning a New Guinea citizen. That case did not go ahead and you may have seen that there Justice Gummow invited the attention of the Solicitor-General to the issues that were raised.

MR KENNETT: Your Honour, Taurino was remitted to the Federal Court in the end. I appeared with the Solicitor-General there.

HIS HONOUR: And what outcome in Taurino?

MR KENNETT: The judgment is reserved at the moment. There was a difficulty with agreeing facts in that case, because it was simply not possible to find records to establish facts which were necessary to determine the applicant’s citizenship status, so the parties found it difficult to agree. There were questions about where Mr Taurino’s grandparents had been born and things of that sort, which – there were simply no birth certificates. So it was put up to Justice Wilcox in that slightly unsatisfactory state and his Honour has to make such inferences as his Honour can about the underlying facts from that.

HIS HONOUR: Is the question of validity in play in Taurino?

MR KENNETT: Taurino was born after Independence and so the issues are different. Mr Taurino is, on his case, the child of an Australian citizen and seeks to establish his citizenship in that way.

HIS HONOUR: But born after Independence.

MR KENNETT: Born after Independence, in a foreign country, in effect.

HIS HONOUR: And that case has been heard but not yet determined?

MR KENNETT: That is right, your Honour.

HIS HONOUR: I am not minded to state a case in these terms. The questions, I think, do need further consideration. Have the parties considered, and I assumed rejected, the need to make more ample reference than appears in paragraph 6 to the regime governing rights to enter and remain in Australia under the Migration Act in the period before Independence Day?

MR KENNETT: Your Honour, there will be a need to traverse those issues in argument. For my part, I have seen those as issues of law which would be shown by reference to the statute books, rather than as issues to be included in the statement of facts.

HIS HONOUR: And there is no factual substratum that needs amplification beyond the second sentence of paragraph 6? I am not saying there is; I am simply asking whether there is.

MR KENNETT: On my understanding, no, but I will give that further thought.

HIS HONOUR: Yes. No doubt I should know it, but did the regime under the Migration Act change in any significant way in the period from date of birth to Independence Day? I know you say it changed after Independence Day in ways that were of particular importance, but was there a change in that period from date of birth to Independence Day that bears upon any of these questions?

MR KENNETT: Again, I am almost certain that the answer is no, but I will check that.

HIS HONOUR: Yes. Do we need in paragraph 8 any further details of any of the visas there described? Again, I am not suggesting that we do, but would either party at a hearing in the Full Court be wanting to refer to the content or detail of those visas? It is not apparent to me why that should be so.

MR KENNETT: Nor to me, your Honour.

HIS HONOUR: Yes. Do we need to know more than appears in paragraph 10 about what is entailed in that process than will be gleaned from looking at the relevant regulations to which reference is made? Again, is there any factual element there that needs amplification?

MR KENNETT: I do not believe so, your Honour, but I will look further at that as well.

HIS HONOUR: Yes. Subject to those various questions, it comes then to the way in which the particular questions are framed.

MR KENNETT: Yes.

HIS HONOUR: As I say, questions 4 and 5 seem to me at the moment not to be apposite and questions 2 and 3 are perhaps self-evidently dependent only - or question 3 is self-evidently dependent only on construction of the regulation-making power and the regulations. Question 2, you say, raises the question of validity though, does it?

MR KENNETT: Yes.

HIS HONOUR: Well, I think that it would be as well to identify the grounds of asserted invalidity. As I understand it, the Commonwealth would rely on naturalisation and aliens, and territories?

MR KENNETT: Yes.

HIS HONOUR: Is there any other head of power that would be arguably engaged?

MR KENNETT: Conceivably external affairs. Those are the three that occur to me at the moment.

HIS HONOUR: Yes. Well, I invite the attention of counsel to the formulation of the questions. Now, when would counsel expect to be in a position to have given the drafting of this case stated some mature thought and allowed it to have proper attention? In particular, would counsel be in a position to mention it again on Monday, 4 October? Hashimi, which is the Nauru case, is coming back before me on that date. We have the Canberra sittings next week and the week following, but Monday, 4 October I will be in Melbourne.

MR KENNETT: Yes. I will not be available on that day, your Honour, but it may be that that does not prevent the Minister from appearing.

HIS HONOUR: Well, I will fit in with counsel as best I can. I will not guarantee it. If we do not do it on 4 October, we are slipping over, are we not, to Monday, 11 October or some time during that week?

MR KENNETT: Your Honour, I could be available next week - - -

HIS HONOUR: Yes, I am in Canberra.

MR KENNETT: - - - or in the week beginning the 11^th.

HIS HONOUR: It is either 4 or 11 October at the moment. We have, after all, a man in detention. We ought to attempt to deal with it. Also, I have in mind that it may – it may not – be possible to get this into the December sittings, if we do end up stating a case. I do not know.

MR KENNETT: Yes. Your Honour, my preference would be the 11^th, but we are in your Honour’s hands.

HIS HONOUR: I would prefer to have one last hit at it, and a proper hit, where counsel have had a chance to just dwell on it and get it right. If the Solicitor-General is to be involved in the matter, Mr Kennett, he no doubt would wish to have his imprint on the way in which the case stated goes forward.

MR KENNETT: Yes.

HIS HONOUR: I will adjourn it for mention on 11 October at 9.30 in Melbourne, or such other date as may be fixed. I will reserve the costs and certify for the attendance of counsel.

If counsel get to a settled version, I would, of course, be grateful if it were filed with the Registry as soon as possible, so that I can have a chance to read it other than sitting on the Bench.

AT 3.47 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 11 OCTOBER 2004