Travellers in twelve dinghies included members of the Papua Australia Plaintiff United Affiliates (PAPUA) group, reported earlier this month as claiming that they were (or should be recognised as) Australian citizens -
We were born Australian citizens when Papua was part of Australia. Our claims to citizenship is that we never renounced it or made a declaration of loyalty to PNGThat claim is unpersuasive, given the High Court decision in Re Minister for Immigration and Multicultural Afairs; Ex parte Ame [2005] HCA 36; (2005) 222 CLR 439; 79 ALJR 1309; 218 ALR 483.
Amos Bode Ame was born in the territory of Papua prior to independence. Geography matters, as Ayelet Shachar notes in The Birthright Lottery: Citizenship and Global Inequality (Harvard University Press, 2009).
Australian supervision of the Territory meant that under the Australian Citizenship Act 1948 (Cth) Ame was an Australian citizen by birth. Some citizens are more equal than others. Under the Migration Act 1958 (Cth) [here] Ame required a permit to enter the Australian states and internal territories (eg the ACT and NT) or reside in those jurisdictions.
Independence for Papua New Guinea under the Papua New Guinea Independence Act 1975 (Cth), which provided that "On the expiration of the day preceding Independence Day, Australia ceases to have any sovereignty, sovereign rights or rights of administration in respect of or appertaining to the whole or any part of Papua New Guinea", was reflected in a Constitution for the new state, with people who had been born in PNG prior to nationhood - and who had two grandparents born in PNG - being granted citizenship of the new country. In conjunction with the grant those people lost their Australian citizenship through the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 under the 1975 PNG Independence Act. An exception was made for the fortunate few who had previously secured permanent residency in Australia.
Ame entered Australia 24 years after independence (ie in 1999) using a visa. He had not entered, or applied for any right to enter, any of the States or internal Territories before Independence Day and had never applied to become an Australian citizen by naturalization or by registration under the Citizenship Act.
He argued that he was an Australian citizen by birth and as a consequence had a right of permanent residence in Australia, which meant that he had never lost his Australian citizenship and could not be removed or detained under the Migration Act 1958 (Cth). He had not taken up the opportunity under s 65(5) of the Papua New Guinea Constitution for renouncing another nation's citizenship in order to become a naturalised PNG citizen.
Ame argued that as an Australian citizen he was not an 'alien', that his citizenship could not be withdrawn by regulation under the Papua New Guinea Independence Act 1975 (Cth) and that alternatively the Commonwealth could not withdraw his citizenship without his consent.
The High Court disagreed, rejecting the arguments. It held that there had been no constitutional obligation for residents of Papua or another external territory to enter mainland Australia as a right. Acceptance of Ame's assumptions about citizenship disregarded PNG independence and would for example mean that most Papuans would currently be Australian citizens (and citizens without the restrictions evident prior to Independence).
As importantly, the Court held that the regulations withdrawing citizenship as part of Independence were constitutionally valid. The PNG Independence Act provided that "The Governor-General may 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". The Court indicated that -
The power in s 122 pursuant to which parliament enacted legislation to deal with the acquisition of the external territory enabled it also to enact legislation to deal with the relinquishment of sovereign rights and rights of administration over that territory. The power pursuant to which parliament could enact legislation to treat the inhabitants of the territory as citizens enabled it also to treat the inhabitants of the new independent state as aliens.In referring to Singh v Commonwealth of Australia [2004] HCA 43; (2004) 209 ALR 355, decided in the previous year, the Court noted rejection of the notion that the aliens power could not be used to unilaterally strip people of their Australian citizenship. Mr Ame's consent was not required. the Court was similarly (The High Court was unimpressed with his suggestion that he held Australian citizenship through a decision not to become a naturalised member of PNG, commenting that -
It is improbable in the extreme that it was the purpose of s 65 of the Papua New Guinea Constitution to exclude from citizenship of the new nation all indigenous Papuans living at Independence Day unless they took positive steps to renounce their Australian citizenship.The Australian experience differs from that of New Zealand. Niue voted in 1974 for self-government "in free association" with NZ, with Niueans being automatically granted New Zealand citizenship. Given limited economic opportunities on Niue only 1,400 of around 50,000 ethnic Niueans currently live in the microstate; some 20,000 live in New Zealand and the Niuean economy is essentially funded by NZ (at a rate of around NZ$18,000 per each Niuean every year).
PNG is substantially larger than Niue and its legal relationship with Australia during the colonial/trusteeship period was different to that of Niue and NZ. Although both PNG and Niue are - or are becoming - failed states, adoption of the 'Niue Solution' is unlikely in Australia.
I have been rereading Carnes v Essenberg and Ors [1999] QCA 339, one of those 'freemen' cases where a litigant asserts that there has been a fundamental rupture in the transmission of law from Magna Carta as a supposed urtext so that 'sovereign citizens' are not bound by traffic, firearms, taxation, local government charges or other inconvenient rules.
Chesterman J in this instance states
The applications for leave to appeal against the orders of the District Court are totally without merit and can be disposed of briefly. Mr Essenberg has two points. He maintains that Magna Carta was and remains a pre-eminent source of legal obligation binding all Courts and governments, and that any subsequent developments of legal principle or enactments of Parliament, that have occurred in the last 800 years that might be thought to have diminished the force of Magna Carta, are invalid. By its terms he claimed a right to trial by jury. The proceedings brought against him for contravention of the Weapons Act were simple offences prosecuted before a Magistrate.
Mr Essenberg has a second point. He claims that by the Bill of Rights 1688 he, as a citizen, has a right to bear arms suitable for his defence. He asserts that that right also remains untouched by 300 years of legal and political development. He argues that the Weapons Act is invalid because it takes away that right.
Magna Carta formed part of the system of imperial laws which apply to the colonies of Eastern Australia on their settlement. So did the Bill of Rights. The historical importance and the influence on the constitutional development in English-speaking countries of those two enactments are profound. However, it is completely inaccurate to say that colonial parliaments, or indeed the Parliament of Westminster, could not alter, modify or even repeal the provisions of centuries old legislation.
The Australian Courts Act 1828 was enacted by the Imperial Parliament to allow for the establishment of an organised judiciary in the colonies and to facilitate the making of local laws. Section 24 provided that:
"All laws and statutes in force within the realm of England at the time of the passing of this Act shall be applied in the administration of justice in the Courts of New South Wales so far as the same can be applied within the said colonies, and it shall be lawful that the governors of the said colonies respectively with the advice of legislative councils of the said colonies to make and establish such limitations and modifications of any such laws and statutes as may be deemed expedient."
The Australian Courts Act became part of the law of Queensland upon its separate establishment in 1859. It may be noted also that the Colonial Laws of Validity Act 1865 was passed by the Imperial Parliament to remove doubts about the extent to which Australian Colonial Parliaments could alter imperial legislation as it applied to the colonies. As Dr Lumb points out in his work on the Constitution of the Australian States, the result of that Act was that no colonial law was void on the ground that it was repugnant to the fundamental principles of English law.
The matter is made even more explicit by section 3 subsection 2 of the Australia Act 1986 which provides that no law and no provision of any law made after that Act by the Parliament of a State shall be void or inoperative on the ground that it is repugnant to the laws of England or to the provisions of an existing or future Act of Parliament of the United Kingdom.
The supremacy of Parliament to make laws contrary to what had been the Common Law is expressly recognised by the Courts. It is enough to refer to the decision of the High Court in Kable v. The Director of Public Prosecutions, 189 Commonwealth Law Reports 51 at pages 73 to 74 in the judgment of Justice Dawson. His Honour pointed out that that champion of the Common Law, Chief Justice Coke, had in his Institute of the Laws of England in the early 17th century accepted that Magna Carta could be altered by English Parliament. Indeed he referred to Bills of Attainder which allowed for trial contrary to Magna Carta as being lawful enactments. Justice Dawson went on:
"Judicial pronouncements confirming the supremacy of Parliament are rare but their scarcity is testimony to the complete acceptance by the Courts that an Act of Parliament is binding upon them, and it cannot be questioned by reference to principles of a more fundamental kind."
The passage goes on and concludes:
"There can be no doubt that Parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom."
That is enough to dispose of the arguments that Magna Carta and the Bill of Rights are untouchable and unalterable sources of private rights or immunities. The Criminal Code and the Justices Act of Queensland have changed the manner in which prosecutions may be brought. The Weapons Act has abrogated the right of citizens to go armed in public.
The applicant had a right to be tried according to the laws of the State of Queensland in force in 1998. He was justly tried in accordance with those laws. His claim to enjoy some special protection conferred in legislation necessary to deal with particular social and political circumstances some centuries ago in a faraway country should be rejected as foolishness. The judgment of the District Court was clearly right.
The applicant also seeks leave to appeal against the sentences imposed but as he did not complain about them in his appeal to the District Court and advances no satisfactory reason why he did not do so, those applications should be refused. In fact, it appears that the complaint about sentence is really part and parcel of the complaint about the convictions, the applicant taking the view that any sentence imposed would have been excessive because he ought not to have been convicted. In my judgment the applications for leave to appeal against conviction and sentence should be refused.
