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Cases

CITIZENSHIP - application for registration of Australian citizenship by descent under s 10C of the Australian Citizenship Act 1948 (Cth) - applicant born in Papua - whether applicant was born "outside of Australia" - effect of the granting of independence to Papua New Guinea in 1975 on Australian citizenship - whether applicant entitled to permanent residence in Australia at time of independence or after independence - definition of "Australia" in Australian Citizenship Act 1948 (Cth)

Minister for Immigration & Multicultural & Indigenous Affairsv Walsh [2002]

Minister for Immigration & Multicultural & Indigenous Affairsv Walsh [2002] FCAFC 205 (26 June 2002)
Last Updated: 26 June 2002


FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural & Indigenous Affairs v Walsh [2002] FCAFC 205


CITIZENSHIP - application for registration of Australian citizenship by descent under s 10C of the Australian Citizenship Act 1948 (Cth) - applicant born in Papua - whether applicant was born "outside of Australia" - effect of the granting of independence to Papua New Guinea in 1975 on Australian citizenship - whether applicant entitled to permanent residence in Australia at time of independence or after independence - definition of "Australia" in Australian Citizenship Act 1948 (Cth)

Nationality & Citizenship Act 1948 (Cth)

Australian Citizenship Act 1948 (Cth) s 5, 6, 10(1), 10B, 10C, 11, 11(1)(b)(ii)

Papua New Guinea Independence Act 1975 (Cth) s 4, 6

Migration Act 1958 (Cth) s 5(1), 6(1), 6(2)

Acts Interpretation Act 1901 (Cth) s 17(a)

Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) Regulation 2(b), 4

Papua New Guinea (Australian Citizenship of Young Persons) Regulations 1980 (Cth) Regulation 2

Constitution of the Independent State of Papua New Guinea s 64, 65

Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178 applied

Air Caledonie International v Commonwealth (1988) 165 CLR 462 applied

Potter v Minahan (1908) 7 CLR 277 applied

Donohoe v Wong Sau (1925) 36 CLR 404 applied

Re Patterson; Ex Parte Taylor (2001) 182 ALR 657 applied

The King v Macfarlane; Ex Parte O'Flanagan and O'Kelly (1923) 32 CLR 518 applied

Wang v Minister for Immigration & Multicultural Affairs (1997-1998) 151 ALR 717 cited

Pryles Australian Citizenship Law 1981

Goldring The Constitution of Papua New Guinea 1978

Pearce & Geddes Statutory Interpretation in Australia 5th Ed. 2001

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v SUSAN WALSH

Q 16 OF 2002

Q 39 OF 2002

HEEREY, MANSFIELD & HELY JJ

26 JUNE 2002

SYDNEY (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA



QUEENSLAND DISTRICT REGISTRY
Q 16 OF 2002

Q 39 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

APPELLANT


AND:
SUSAN WALSH

RESPONDENT


JUDGE:
HEEREY, MANSFIELD & HELY JJ


DATE OF ORDER:
26 JUNE 2002


WHERE MADE:
SYDNEY (HEARD IN BRISBANE)




THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The orders made by the primary judge on 24 December 2001 be set aside.

3. In lieu thereof order that the appeal from the Administrative Appeals Tribunal be dismissed.

4. The respondent to pay the appellant's costs of the appeal and of the proceedings at first instance.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



QUEENSLAND DISTRICT REGISTRY
Q 16 OF 2002

Q 39 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

APPELLANT


AND:
SUSAN WALSH

RESPONDENT




JUDGE:
HEEREY, MANSFIELD & HELY JJ


DATE:
26 JUNE 2002


PLACE:
SYDNEY (HEARD IN BRISBANE)





REASONS FOR JUDGMENT
THE COURT:

1 The Nationality & Citizenship Act 1948 (Cth) ("the Act") came into operation on 26 January 1949. As a result of amendments in 1969 and 1973, the short title of the Act was changed to the "Australian Citizenship Act 1948". Citizenship is a purely statutory status: see Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178 at 184. The Act introduced the concept of Australian citizenship, and prescribed the method of its acquisition and loss.

2 Under the Act, Australian citizenship might be acquired by birth, by adoption, by descent or by grant. The circumstances in which citizenship might be acquired by grant or by adoption are of no relevance to the present case. Under the Act as it stood at relevant times, a person born in Australia after the commencement of the Act was an Australian citizen by birth: s 10(1). A person born outside Australia after the commencement of the Act was an Australian citizen by descent if the requirements of the former s 11 (which was repealed in 1984) were satisfied. Section 11(1) provided (relevantly):

"11(1) A person born outside Australia on or after 26th January 1949, is an Australian citizen by descent if -
(a) in the case of a person born in wedlock - at the time of the birth his father or mother was an Australian citizen; or

(b) in the case of a person born out of wedlock - at the time of the birth his mother -

(i) was an Australian citizen; or

(ii) was, or had the status of, a British subject and was ordinarily resident in Australia or New Guinea,

and, in either case, the birth was or is registered at an Australian consulate within five years after its occurrence or within such further period as the Minister allowed or allows."

3 It is unnecessary to examine the former s 11 in any detail. What is important for present purposes is that the Act treated citizenship by birth and citizenship by descent as mutually exclusive, as the former was available to persons born in Australia, whereas the latter was available to persons born outside Australia.

Ms Walsh - an Australian citizen by birth

4 The Act extended to the Australian Territories: s 6. When the Act was originally enacted, "Australia" was defined as including Norfolk Island and the Territory of Papua: s 5. That definition was changed in 1953 so as to provide that "Australia" includes the Territories that are not trust territories. Thus, prior to the independence of Papua New Guinea in 1975, Papua would have been considered part of Australia for the purposes of the Act, but New Guinea would not: see Pryles Australian Citizenship Law 1981 at p 45. The historical basis for this distinction was no doubt that Papua had been a British colony administered by Queensland and, after Federation, by Australia. New Guinea had been a German colony. After the First World War it was administered by Australia under a League of Nations Mandate. After the Second World War it was a United Nations Trust Territory, again under Australian administration.

5 Ms Walsh was born in Hohola Central District, Papua on 13 July 1970. Her father was an Australian citizen, having been born in NSW. Her mother was an indigenous Papuan. Her parents did not marry until 1980. Ms Walsh's father died in 1982, whilst still an Australian citizen. The material before the Court does not disclose whether her mother is still alive, or where she is living.

6 As Papua was an external territory of Australia in 1970, Ms Walsh became an Australian citizen by birth by virtue of the operation of s 10(1) of the Act considered in the light of the definition of "Australia". So much was common ground.

The impact of independence

7 On 16 September 1975 ("Independence Day") Papua became part of the independent nation of Papua New Guinea ("PNG"). It ceased to be a Territory of Australia: s 4 Papua New Guinea Independence Act 1975 (Cth) ("the Independence Act").

8 Section 65 of the Constitution of PNG provided (relevantly):

"65. (1) 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.
...

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

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

(b) is a naturalized Australian citizen; or

(c) is registered as an Australian citizen under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; or

(d) is a citizen of a country other than Australia,

unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with subsection (5)."

9 Plainly, a significant proportion of the population of Papua at the time would have comprised persons who were born in Papua and were thus Australian citizens by birth. The clear intention of s 65 was that such persons would (generally) become PNG citizens. Only those who had some further attachment to Australia (ie those who had a right to permanent residence, who had become naturalised, or had become registered under s 11) were, like citizens of other countries, not to become PNG citizens automatically.

10 Section 65 was mirrored by regulations that were made under s 6 of the Independence Act. Section 6 empowered the Governor-General to make regulations:

"... making provision for or in relation to matters arising out of or connected with the attainment of the independence of Papua New Guinea, including regulations making modifications or adaptations of any Act."
11 Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) ("the Independence Regulations") made under s 6 of the Independence Act, provided:

"4. 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."

12 The effect of Regulation 4, read with s 65 of the PNG Constitution, was to terminate the Australian citizenship of those born in Papua whose sole claim to Australian citizenship was their place of birth. It preserved the citizenship of those who had a further, or a different, connection with Australia (unless they renounced their citizenship).

Right of residence in Australia

13 Ms Walsh contended that she did not become a citizen of PNG on Independence Day, and so did not cease to be an Australian citizen, because:

* she was entitled to permanent residence in Australia by virtue of her status as an Australian citizen; and/or

* she was entitled in any event to residence in Australia by virtue of her father's entitlement to permanent residence.

14 The primary judge rejected each of those contentions. His Honour's conclusions in this respect are the subject of the document styled "Notice of cross appeal and of contention to affirm judgment on grounds other than those relied on by Court below" filed on behalf of Ms Walsh. This document should be regarded as a cross appeal, as it does not seek to uphold the orders actually made by the primary judge (which are referred to later in these reasons) on a different ground. Rather, what is sought is a declaration, which the primary judge declined to make, that Ms Walsh remained an Australian citizen notwithstanding the independence of PNG, and the provisions of Regulation 4 of the Independence Regulations.

15 Section 65(4) of the PNG Constitution can only sensibly be read as referring to "Australia" in a sense that does not include the (former) territories of Papua and New Guinea. Thus Ms Walsh became a PNG citizen on Independence Day, unless she then had a right to permanent residence in (mainland) Australia.

16 In 1975 the Migration Act 1958 (Cth) ("the Migration Act") imposed immigration controls upon an "immigrant" proposing to enter Australia. The Migration Act was then framed as a law with respect to immigration, deportation and emigration (under s 51(xxvii) of the Constitution). 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. An "immigrant" could obtain an "entry permit" under s 6(2) which could be either temporary or permanent in character. A person who was not an "immigrant" was not subject to that control, and therefore by implication had the right to enter and remain permanently in Australia.

17 A fundamental change in the nature of the migration legislation was effected by the Migration Amendment Act 1983 (Cth), which came into effect in 1984. The amending legislation was enacted pursuant to the power to make laws in respect of aliens (under s 51(xix) of the Constitution). Thereafter the Migration Act regulated entry by "non-citizens" into Australia rather than immigrants. Since 1984 Australian citizens have had the right to enter and reside in Australia: Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 469. But in 1975 at Independence Day, in determining whether Ms Walsh had 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".

18 "Immigrant" was defined in s 5(1) of the Migration Act so as to include:

"... a person intending to enter, or who has entered, Australia for a temporary stay only, where he would be an immigrant if he intended to enter, or had entered, Australia for the purpose of staying permanently."
19 A member of the Australian community returning home to Australia after a temporary absence abroad is not an "immigrant" in respect of whose entry the Parliament might legislate under s 51(xxvii) of the Constitution: Potter v Minahan (1908) 7 CLR 277; Donohoe v Wong Sau (1925) 36 CLR 404; Re Patterson; Ex parte Taylor (2001) 182 ALR 657 at [245] - [247], [367] - [368]. The definition in s 5(1) thus assumes an underlying concept of an "immigrant" as a person whose home is outside Australia, and who enters or is seeking to enter Australia. The Commonwealth's power to control immigration is, under s 51(xxvii) of the Constitution and the Migration Act, largely confined to persons who are not members of the Australian community: Pryles (supra) at p 42. Possession of Australian citizenship may be an important factor in determining whether a person has become absorbed in the Australian community, and thus outside the immigration power, but it may not be decisive. An Australian national may, in some circumstances, enter Australia as an immigrant and regulation of such entry is within the constitutional competence of the Commonwealth Parliament: The King v Macfarlane; Ex Parte O'Flanagan and O'Kelly (1923) 32 CLR 518 at 580.

20 In 1975, the Migration Act did not contain a definition of "Australia". Prima facie, therefore, that expression had the meaning given in s 17(a) of the Acts Interpretation Act 1901 (Cth), which at the time expressly excluded external Territories. No submission was put on behalf of Ms Walsh that the Migration Act evinced a contrary intention. Thus "Australia", for migration purposes, was limited at the relevant time to the area comprising the States and the internal Territories.

21 As at Independence Day, Ms Walsh had been born in and lived all her life at a place which was outside "Australia" for the purposes of the Migration Act. She came to Australia for the first time in 1985 for a holiday. Had she sought to enter "Australia" in 1975, she would have been an "immigrant", and she could not have done so without obtaining the discretionary grant of a permit under the Migration Act. At that time, therefore, Ms Walsh did not have a right to permanent residence in Australia by virtue of her Australian citizenship.

22 Reliance was placed, by the solicitor for Ms Walsh, on the "Australian Citizenship Instructions", which gave an overview of government policy at the time on whether Australian citizenship automatically results in a right of permanent residence in mainland Australia in the case of people born in Papua New Guinea. Paragraph 1.3.6 of those instructions was in the following terms:

"In relation to Papua prior to independence:
* Papua was a Territory of Australia and was defined as part of Australia under the Australian Citizenship Act 1948, but not under the Migration Act 1958.

* People born in Papua acquired Australian citizenship by birth and were issued Australian passports.

* Australian citizenship acquired through birth in Papua did not confer an automatic right to enter or remain in mainland Australia. Right of permanent residence in mainland Australia was automatic for children born in Papua of non-indigenous descent. Those of indigenous descent were required, as a matter of policy determined by Cabinet, to apply for the right of permanent residence in mainland Australia. Government policy gave the Minister the discretion to grant the right of permanent residence to such persons on application if they had been brought up in a European manner, had English as their principal language and were European in outlook."

(emphasis added)

23 Pryles (supra), writing in 1981, observed at p 42:

"Even if Australian citizenship is not decisive evidence of membership of the Australian community, possession of that status enables a person to apply for an Australian passport. The practice of the Commonwealth Government is to permit holders of Australian passports to enter Australia without restriction. No inquiry is made whether in rare instances the holder may still technically be an immigrant who requires an entry permit.
Thus either possession of Australian citizenship ipso facto makes a person a member of the Australian community and therefore places him beyond the range of immigration control or, if it does not, that status enables the person to apply for an Australian passport. If granted, the holder is in fact if not in law treated as beyond the range of immigration control."

24 The "Australian Citizenship Instructions" do not have the force of law. In any event, they do not rise above a statement as to the usual administrative practice in dealing with applications for permanent residence, rather than confirming or establishing any entitlement to permanent residence on the part of persons referred to in the Instructions. The observations by Pryles are of a similar character. Goldring The Constitution of Papua New Guinea 1978 states at p 204:

"Those born in Papua were technically Australian citizens, but they had no right to enter or remain in Australia, or even to leave their own country."
25 The primary judge correctly concluded:

"... it is clear that immediately prior to Independence Day, the applicant's status as an Australian citizen did not entitle her to permanent residence in Australia."
The submissions put on behalf of Ms Walsh in this Court did not expose any error in the process of reasoning by which the primary judge came to that conclusion. Indeed, the respondent's written submissions assert:

"9. The Respondent's claim to Australian citizenship is not based on her being born in Papua as an Australian Citizen, but is based on the Australian Citizenship of her father ..."
Right of residence flowing through the father

26 The case was conducted upon the basis that Ms Walsh's father remained an Australian citizen, and was entitled to permanent residence in Australia until his death. The Minister's submissions in this Court accepted that this was so.

27 Ms Walsh was five years of age at independence and was then living with her parents in PNG. The written submissions lodged on her behalf in this Court assert that: "Her rights were correspondent with her father's rights. Her father was the responsible parent", but do not show how, or in what way, her father's right of residence produces a corresponding entitlement on the part of Ms Walsh.

28 The submissions further assert that her father would, before and after Independence Day, have been entitled to an Australian passport, and to have Ms Walsh included on his passport. The primary judge concluded that whilst this might be so, it did not lead to the conclusion that Ms Walsh was entitled to Australian residence. The submissions put on behalf of Ms Walsh do not suggest, let alone expose, any error in this respect.

29 It may be that had Ms Walsh been included on her father's passport, and had she sought to enter Australia, she may have been permitted to do so. That falls far short, however, of establishing that, at Independence Day, she had a right of permanent residence in Australia by virtue of her father's entitlement in that respect.

Persons under 19 on Independence Day

30 Section 64 of the PNG Constitution provides as follows:

"64 Dual citizenship
(1) Notwithstanding the succeeding provisions of this Part but subject to Subsection (2), no person who has a real foreign citizenship may be or become a citizen, and the provisions of this Part shall be read subject to that prohibition.

(2) Subsection (1) does not apply to a person who has not yet reached the age of 19 years, provided that, before he reaches that age and in such manner as is prescribed by or under an Act of the Parliament, he renounces his other citizenship and makes the Declaration of Loyalty.

(3) A person who has a real foreign citizenship and fails to comply with Subsection (2) ceases to be a citizen of Papua New Guinea when he reaches the age of 19 years.

(4) For the purposes of this section, 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; or

(ii) birth in the former Territory of New Guinea and registration under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; and

(b) was never granted a right (whether revocable or not) to permanent residence in Australia,

has no real foreign citizenship."

31 Section 64 prohibits dual citizenship except in the case of infants until the age of 19, at which time they must elect whether or not to retain their citizenship. No person who has any other "real citizenship" is entitled to become or remain a citizen of PNG. "Real" citizenship is defined by subs(4) to exclude Australian citizens and Australian Protected Persons who have no permanent right to reside in Australia - thus making eligible for Papua New Guinea citizenship all those born in Papua New Guinea prior to Independence: see Goldring (supra) at p 206.

32 A person under the age of 19 years who had been granted a right to permanent residence in Australia would nonetheless (if otherwise qualified) become a citizen of PNG on Independence Day. Under the Constitution of PNG, such a person would be entitled to dual citizenship until he or she turned 19. However, under Regulation 4 of the Independence Regulations such a person ceased to be an Australian citizen on Independence Day.

33 This anomaly was addressed by the Papua New Guinea (Australian Citizenship of Young Persons) Regulations 1980 (Cth) which were gazetted on 25 September 1980, but which had retrospective effect to 16 September 1975. The Explanatory Statement issued in connection with the Regulations makes it plain that their purpose was to remove an anomaly arising from the difference between Australian and PNG legislation.

34 Regulation 2 provides as follows:

"Re-acquisition of Australian citizenship lost by certain persons on Independence Day
2. A person who on Independence Day -

(a) was under 19 years of age;

(b) was not for the purposes of section 64 of the Constitution of the Independent State of Papua New Guinea a person who was never granted a right (whether revocable or not) to permanent residence in Australia; and

(c) ceased to be an Australian citizen,

shall be deemed to have re-acquired his Australian citizenship on that day."

35 These Regulations are of no assistance to Ms Walsh. When account is taken of the double negatives in Regulation 2(b), it is clear that it is a precondition to the operation of the Regulation that the person had been granted a right to permanent residence in Australia prior to Independence Day. That right was never granted to Ms Walsh.

36 For these reasons the Notice of Contention fails. Ms Walsh is not entitled to a declaration that she is presently an Australian citizen by virtue of s 10(1) of the Act, as she ceased to be an Australian citizen on Independence Day by force of Regulation 4 of the Independence Regulations.

Later amendments to the Act

37 Section 11 of the Act (see [2] above) was repealed by the Australian Citizenship Amendment Act 1984 (Cth) ("the 1984 Act") and replaced by s 10A and s 10B. Section 10A confers citizenship on persons who are adopted by Australian citizens. It is not presently relevant.

38 Section 10B provides:

"Citizenship by descent
10B(1) A person born outside Australia (in this subsection referred to as the "relevant person") is an Australian citizen if:

(a) the name of the relevant person is registered for the purposes of this section at an Australian consulate, and the registration is the result of an application made within 18 years of the person's birth to register the person's name for those purposes; and

(b) a person, being a parent of the relevant person at the time of the birth of the relevant person:

(i) was at that time an Australian citizen who had acquired Australian citizenship otherwise than by descent; or

(ii) ..."

(emphasis added)

Ms Walsh turned 18 on 13 July 1988.

39 Section 10C was inserted into the Act by the Australian Citizenship Amendment Act 1991 (Cth), with effect from 15 January 1992. Section 10C (relevantly) provides:

"Citizenship by descent for a person over 18 years old
(1) A person who is registered under this section is an Australian citizen.

(2) A person may apply to the Minister to be registered under this section.

(3) The application must be in accordance with the approved form.

(4) The Minister must register, in the prescribed manner, an applicant for registration under this section if:

(a) a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and

(b) that parent:

(i) is an Australian citizen at the time an application under this section is made; or

(ii) is dead and at the time of his or her death was an Australian citizen; and

(c) the applicant:

(i) was born outside Australia on or after 26 January 1949; and

(ii) is aged 18 years or over on the day on which this section commences; and

(iii) failed for an acceptable reason to become registered as an Australian citizen under:

(A) section 10B; or

(B) section 11 of this Act as in force at any time before the commencement of section 10B; and

(d) the Minister is satisfied that the applicant is of good character.

Note: acceptable reason is defined in subsection (5)."

(emphasis added)

The application under s 10C

40 On 14 February 2000 Ms Walsh applied for registration as an Australian citizen by descent under s 10C of the Act. At that time she was living in PNG. On 17 May 2000 the application was refused by the Minister's delegate on the ground that, having been born in Papua which, at the time of her birth, was part of Australia for the purposes of the Act, Ms Walsh was not "born outside Australia", hence she did not meet the requirements of s 10C(4)(c)(i) of the Act.

41 On 27 April 2000 Ms Walsh applied for review of that decision by the Administrative Appeals Tribunal ("the AAT"). On 8 May 2001 the AAT affirmed the delegate's decision, essentially for the same reasons.

42 Ms Walsh appealed to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The substantial ground on which the appeal was based was that the AAT had erred in its construction of s 10C(4)(c). The primary judge held that the AAT had erred in its construction of the subsection, and declared that for the purposes of s 10C of the Act, Ms Walsh was born outside Australia. The Minister appeals to the Full Court from that decision.

The decision of the primary judge

43 Regulation 5 of the Independence Regulations provides that the Act is modified and adapted in accordance with the modifications and adaptions specified in the Schedule to the Independence Regulations. The Schedule made modifications and adaptions to a number of sections of the Act, including s 11. Section 11 was amended to read relevantly as follows:

"(1) A person born outside Australia on or after 26th January, 1949, is an Australian citizen by descent if -
(a) in the case of a person born in wedlock - at the time of the birth his father or mother was an Australian citizen; or

(b) in the case of a person born out of wedlock - at the time of the birth his mother -

(i) was an Australian citizen; or

(ii) was, or had the status of, a British subject and was ordinarily resident -

(A) if the person was born before 16 September 1975 in Australia, Papua or New Guinea; or

(B) if the person was born on or after 16 September 1975 - in Australia."

(emphasis added)

44 The primary judge held that the reference to "Australia, Papua or New Guinea" was of particular importance. His Honour said at pars [27] - [28]:

"There can be little doubt, in my view, that the purpose was to ensure that for the future, the term `Australia', where it appears in the Act, would signify Australia, excluding Papua. Subsection 11(1) is a good example of this. The amendment to subpar 11(1)(b)(ii) resulted in clear distinctions between Australia, Papua and New Guinea. It is difficult to see how it can be argued, in the face of that change, that the reference to `Australia' at the beginning of the subsection was to include Australia and Papua for any purpose.
The Citizenship Act does not deal solely with problems posed by persons associated with Papua New Guinea. It deals with Australian citizenship on a much more general basis and in particular, with the citizenship of people descended from Australian citizens. There is a clear intention to confer the benefit of citizenship upon the children of Australian citizens. There was nothing in the legislation as at Independence Day to suggest that such children born in Papua or New Guinea or Papua New Guinea were to be denied that benefit. In making it clear that, for the future, the term `Australia' in the Citizenship Act did not include Papua, the Citizenship Regulations removed the only bar to that outcome. I am of the view that if, on or after Independence Day, the applicant satisfied one or other of the qualifications for citizenship by descent specified in s 11, she would have been entitled to registration of her birth for the purposes of that section, subject only to obtaining the necessary extension of time. As she was born out of wedlock, her entitlement may have depended upon whether her mother was an Australian citizen. I say `may' because the point has not been argued. Subsequent legislation reforming the law relating to illegitimate children may have changed the position."

45 The definition of "Australia" in the Act at the time of enactment of s 10B and s 10C still included the "External Territories", but as and from Independence Day, Papua ceased to be an external territory. His Honour said at pars [30] - [31]:

"Given the history to which I have referred, there is no reason to conclude that, contrary to the s 5 definition, the term `Australia' in subs 10B(1) includes Papua. As I have said, the regulations were designed to ensure that after Independence Day, the Citizenship Act was to operate upon the basis that Papua was not part of Australia.
It was clearly the intention, as at Independence Day, that a person born in Papua New Guinea of an Australian parent be entitled to Australian citizenship by registration. This intention is now found in s 10B. It also follows that s 10C operates to extend the time within which the applicant may register her birth. In so far as concerns clause 10C(4)(c)(iii), the applicant could have been registered pursuant to s 10B at any time after its adoption, subject only to the time limit. She may also have been entitled to registration pursuant to s 11."

The arguments on appeal

46 In the Minister's submission, s 10 of the Act on the one hand, and s 10B and s 10C on the other, are mutually exclusive. The Minister submits that the expression "born outside Australia" in s 10B and s 10C is the obverse of the expression "born in Australia" in s 10; that "born in Australia" and "born outside Australia" are composite expressions which direct attention to the time of birth; and that the more natural construction of each phrase is that it requires the place of birth to be ascertained at the time of birth.

47 Thus, in the Minister's submission:

- a person born in a place which is then part of "Australia" attains citizenship under s 10, and not under s 10B or s 10C (cf: the relationship between s 10 and s 11 at the time of Ms Walsh's birth outlined above);

- if that place ceases to be part of "Australia", the person retains his or her citizenship under s 10 in the absence of some specific provision producing a different effect; and

- a person born in a place which is not part of "Australia" at that time does not become a citizen under s 10, nor does the person retrospectively become a citizen under s 10(1) if the place is later incorporated into "Australia".

Pryles (supra) states (at pp 45-46) that a person in the last category would not be an Australian citizen by birth, as the reference to "Australia" in s 10 must be to Australia as it existed at the time of the person's birth.

48 The Minister further submits that the correct construction of s 10, s 10B and s 10C is not affected by the modifications to the Act which were effected by the Independence Regulations. The expansion of the phrase "Australia or New Guinea" where appearing in the Act into "Australia, Papua or New Guinea" effected by the Schedule to the Independence Regulations was unnecessary, as Papua was part of Australia before 16 September 1975. In the Minister's submission the explanation for the change may be that the drafter thought it simpler to use concise, consistent and abundantly clear terminology ("Australia, Papua or New Guinea") rather than relying on others having a particular understanding of the Act, or use some more correct, but cumbersome phrase such as "Australia (including Papua) or New Guinea". The Minister submits that in the case of s 11(1)(b)(ii) the amendment was unnecessary: it was inserted for clarity and more abundant caution.

49 In any event, the Minister submits that the understanding of the drafter of the Regulations (in 1975) cannot shed useful light on the intentions of Parliament (in 1984). Further, even if "Australia" was given some special meaning (in relation to a period in the past) in the modified version of s 11(1)(b)(ii), it does not follow that its meaning in other parts of the Act varies from that established in s 5(1).

50 The s 5(1) definition of "Australia" applies unless the contrary intention appears. The Minister relies upon the following passage in Pearce & Geddes Statutory Interpretation in Australia 5th Ed. 2001 at par [6.62]:

"A most useful examination of the approach to be adopted when considering whether there has been an intention to use a term in other than its defined sense is provided by Duperouzel v Cameron [1973] WAR 181. There Burt J pointed out that it was wrong to search assiduously through an Act to find if in one place a word had been used other than as defined and from that discovery assert that the word could be regarded as being used other than in its defined sense wherever it appeared. In short, that one `contrary intention' should not mean that the term was tainted for all time. Forster J put it succinctly in Simpson v Nominal Defendant (1976) 13 ALR 218 at 224: `Apparent bad legislative drafting can hardly provide a basis for finding [a contrary intention]'. The proper approach is to assume that the expression is used as defined and then ask whether, in the particular context in which it appears, a contrary intention can be shown. This inquiry is not affected one way or the other by the term being used other than as defined in another place in the Act. If the definition is to be departed from, it is only to be for the purposes of the particular provision under consideration."
Consideration

51 Had Ms Walsh been born in New Guinea, rather than Papua, or for that matter had Ms Walsh been born anywhere else in the world except Australia, she could have become an Australian citizen by descent, initially under s 11, and later under s 10B and s 10C of the Act, if otherwise eligible. Similarly, had Ms Walsh been born in Papua after Independence Day, she could have become an Australian citizen by descent if otherwise eligible. We say "if otherwise eligible" because there has been no finding as to whether her mother satisfied the requirements of s 11(1)(b)(ii) of the Act, nor has there been any examination of the impact (if any) of the subsequent marriage of Ms Walsh's parents on her legitimacy. By 1984, it was sufficient if either parent was an Australian citizen who had acquired Australian citizenship otherwise than by descent. Ms Walsh's father satisfied that description.

52 Whether a child is born inside or outside Australia is a matter to be determined at the time of birth of the child, and specific legislative provision apart, subsequent changes in the geographic boundaries of "Australia" do not have a retrospective impact upon whether a child was born in or outside "Australia".

53 There can be no doubt that at least prior to Independence Day, Ms Walsh was not entitled to Australian citizenship by descent because she was born in what was then a part of Australia for the purposes of the Act. The position would have been different in the case of the hypothetical situations postulated in par [51] above, simply because in all of those situations Ms Walsh would have been born outside Australia.

54 The fact that Ms Walsh was not entitled to Australian citizenship by descent prior to Independence Day was then devoid of practical consequences, because she was an Australian citizen by birth.

55 The Independence Regulations stripped persons in the position of Ms Walsh of their Australian citizenship arising by birth. The Act was not amended so as to change its structure, which allowed for citizenship by birth of a person born in Australia, and for citizenship by descent of a person born outside Australia of an Australian parent.

56 It may have been open to the Australian government, by regulations made pursuant to the Independence Act, to make modifications or adaptations to the Act so as to provide for the acquisition of Australian citizenship by descent of persons born in Papua prior to Independence Day of an Australian parent upon the basis that this was a matter arising out of and connected with the attainment of independence of PNG. One way of achieving that objective may have been to modify the definition of Australia where appearing in the Act so as to provide that from and after Independence Day, persons born in Papua prior to Independence Day are taken to have been born outside Australia. No doubt there are other ways in which that objective might have been achieved if the government wished to achieve it. But no provision in the Independence Regulations set out to achieve that objective. The modifications and adaptations effected by the Schedule to the Independence Regulations simply reflected the fact that before 16 September 1975 Papua was part of Australia, but after that date it was not.

57 It is clear that as and from Independence Day the Act would operate for the future on the basis that Papua was not part of Australia. That result followed from the fact that as and from Independence Day, Papua ceased to be an external territory for the purpose of the definition of Australia in s 5 of the Act, rather than from any provision of the Independence Regulations. But we are unable to agree, with respect, with the primary judge's conclusion that in making it clear that, for the future, the term "Australia" in the Act did not include Papua, the Independence Regulations removed the only bar to the operation of s 11. The bar to the operation of s 11 was that Ms Walsh was not born outside Australia. Alterations "for the future" of the denotation of the term "Australia" where used in the Act did not alter that fact.

58 In any event the issue of citizenship by descent now falls to be determined by reference to s 10B and s 10C of the Act, which came into force in 1984 and 1992 respectively. Persons who were born in Australia acquire citizenship by birth under s 10(1); persons who were born outside Australia of an Australian parent may acquire citizenship by descent under s 10B or s 10C. The question is: where was the person born? The answer to that question is not affected by the fact, as the solicitor for Ms Walsh submitted, that Papua ceased to be part of Australia many years prior to the introduction of these sections into the Act. Nor do the Independence Regulations provide for some special answer to be given to that question.

59 This is not a case where there is a gap in a legislative scheme which can be filled by the legitimate use of principles relating to purposive construction of statutes: see the discussion in Pearce & Geddes (supra) at pars [2.27] - [2.28]. It may be accepted, to use the language of Lord Diplock:

"if ... the courts can identify the target of parliamentary legislation their proper function is to see that it is hit; not merely to record that it has been missed."
(Quoted by Merkel J in Wang v Minister for Immigration & Multicultural Affairs (1997-1998) 151 ALR 717 at 725.)

60 The problem arises not because of the structure of the legislation, but because the government of the day by regulation (which was not submitted to be invalid) stripped persons in the position of Ms Walsh of their Australian citizenship by birth, without amending or modifying the Act so as to provide for the acquisition by such persons of Australian citizenship by descent if born of an Australian parent.

Conclusion

61 The appeal should be upheld. Further:

- the orders made by the primary judge on 24 December 2001 should be set aside;

- in lieu thereof order that the appeal from the Administrative Appeals Tribunal should be dismissed; and

- the respondent should pay the appellant's costs of the appeal and of the proceedings at first instance.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 26 June 2002

Counsel for the Appellant:
Mr D Bennett QC, Solicitor-General for the Commonwealth and Mr G Kennett






Solicitor for the Appellant:
Australian Government Solicitor






Solicitor for the Respondent:
Mr A van Zyl, Van Zyl Lawyers






Date of Hearing:
20 May 2002






Date of Judgment:
26 June 2002


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