IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY                            N 1346 OF 1999

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY                            N 1338 OF 1999

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

N 1346 OF 1999:

N 1338 OF 1999:

REASONS FOR JUDGMENT

THE COURT

The remaining issues

1                     The Court delivered separate judgments in each of these three appeals, which were heard together, on 16 February 2000.  In those judgments, the Court rejected the non-constitutional arguments advanced on behalf of the appellants: see Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 117; Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118; Tafokitau v Minister for Immigration & Multicultural Affairs [2000] FCA 119.

2                     As the judgments explain, we did not address what the appellants said were constitutional arguments. Mr Fonua, a friend of the appellants, was given leave to assist them at the hearing.  He asserted what he claimed were constitutional arguments.  Not surprisingly, since Mr Fonua has no legal training, it was by no means easy to understand the arguments he wished to raise.

3                     We took the view that, having regard to the mandatory language of s 78B of the Judiciary Act 1903 (Cth), the asserted constitutional questions should not be addressed until notices had been given to the Attorneys-General and a reasonable time had elapsed since the giving of the notice.  The Court was conscious that s 78B is not necessarily attracted by a mere assertion of a constitutional point: Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73, at 74, Toohey J.  Nonetheless, we considered that the prudent course was to cause the notices to issue.

4                     It was no easy task to formulate the matter arising under the Constitution or involving its interpretation.  However, the Court identified the constitutional issues said by the appellant to arise as follows:

(1)               Whether it is beyond the legislative power of Parliament to enact legislation which authorises a regulation, namely criterion 3002 in Schedule 3 of the Migration Regulations 1994, that has a retrospective effect on persons who would otherwise be entitled to apply for a visa.

(2)               Whether it is beyond the legislative power of the Commonwealth Parliament to enact legislation which authorises the making of regulations inconsistent with treaties ratified by the Commonwealth.

(3)               Whether it is beyond the legislative power of the Commonwealth Parliament to enact legislation, in the form of the Migration Act 1958 (Cth), which authorises the making of regulations having an unjust effect on individuals.

5                     Notices under s 78B, identifying these as the constitutional issues said to have been raised in the proceedings, have been duly given.  None of the Attorneys-General has sought to intervene in the appeals.  As directed by the Court (when delivering the judgments mentioned above), the respondent has filed his further submissions on these questions.  Some brief written submissions have been received from the appellants.  We therefore proceed to consider the remaining issues.

Retrospectivity

6                     The appellants, through their friend, assert that criterion 3002 is invalid because it operates retrospectively and is therefore unconstitutional.  The submission was not developed.

7                     The appellants’ submission assumes that criterion 3002 has a retrospective operation.  In our view, that assumption is incorrect.

8                     The operation of criterion 3002 has been explained in Pillay v Minister for Immigration & Multicultural Affairs [2000] FCA 112, and by Cooper J in Fakatava v Minister for Immigration & Multicultural Affairs [1999] FCA 1477 (one of the judgments the subject of this appeal).  Criterion 3002 is located within Schedule 3 of the Migration Regulations, which is entitled “ADDITIONAL CRITERIA APPLICABLE TO UNLAWFUL NON-CITIZENS AND CERTAIN BRIDGING VISA HOLDERS”.  Schedule 3 criteria apply only to applications for visas made by persons present in Australia.  Criterion 3002 requires certain applicants for visas to make a valid application within twelve months after the “relevant day”.  The latter term is defined to mean, in effect, the day when the applicant became an illegal entrant.  One of the purposes of criterion 3002, according to Migration Series Instruction MSI-121, is to prevent non-citizens from benefiting by remaining in Australia unlawfully, that is, by acquiring migration eligibility while remaining in Australia without permission.

9                     It may be accepted that one consequence of the making of criterion 3002 was that certain unlawful non-citizens and bridging visa holders, who had previously been entitled to apply for particular classes of visa, were no longer eligible to do so.  That consequence followed because, at the time criterion 3002 was made, for some would-be applicants more than twelve months had elapsed since the “relevant day”.  But criterion 3002 had and has no operation on past conduct or events: cf Polyukhovich v Commonwealth (1991) 172 CLR 501, at 533, per Mason CJ.  Its operation is no different from that of a regulation repealing a particular class of visa.  The adverse consequence to the appellants (who are all unlawful non-citizens) flows from the fact that they had not applied for the relevant class of visas prior to criterion 3002 coming into force, although they had been unlawful non-citizens in Australia for a considerable time.  It follows that this contention on the part of the appellants, although the subject of a notice under s 78B of the Judiciary Act, in truth raises no constitutional issue.

10                  In any event, the fact that a law of the Commonwealth has a retrospective operation (or authorises subordinate legislation having retrospective operation) does not, for that reason alone, take it beyond the legislative competence of the Parliament to make laws on a particular topic such as “Immigration and emigration” (Constitution s 51(xxvii)) or “Naturalization and aliens” (s 51(xix)): R v Kidman (1915) 20 CLR 425; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36, at 81, per Isaacs J; Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495, esp at 579-580, per Dixon J; Polyukhovich, at 539, per Mason CJ; at 642, per Dawson J; at 715, 719, per McHugh J.  Particular issues may arise when Parliament attempts to enact a criminal law taking effect from a time prior to its enactment, such as the effect of Chapter III of the Constitution on such a law: see Polyukhovich, at 626, per Deane J; 705-707, per Gaudron J; cf at 686 ff, per Toohey J.  Similarly, there are limitations on the power of Parliament to repeal retrospectively Commonwealth laws which rendered inconsistent State laws invalid pursuant to s 109 of the Constitution: University of Wollongong v Metwally (1984) 158 CLR 447.  None of those issues or limitations arises in the present case.

11                  To the extent that the appellants are challenging the legislation under which criterion 3002 was made (see Migration Act 1958 (Cth), ss 31(3), 504; Pillay v Minister) on the ground that the legislation authorises criteria having retrospective operation, the challenge fails.

Inconsistency with International Treaties

12                  The appellants assert that criterion 3002 is inconsistent with international instruments to which Australia is a party.  Again this submission was not developed in any detail, but it appears to have been suggested that criterion 3002 has adverse effects on the citizenship rights of children born in Australia and is therefore contrary to the requirement in art 3 of the United Nations Convention on the Rights of the Child, which requires, in all actions concerning children, the best interests of the child shall be a paramount consideration.

13                  As Cooper J has pointed out in Fakatava v Minister, criterion 3002 has no relevant application to the citizenship rights of any child who is an Australian citizen.  His Honour noted that application of criterion 3002 may have the practical effect, in a particular case, of interfering with a child’s exercise of his or her citizenship rights (since the child might leave Australia to accompany a parent who is an unlawful non-citizen).  Whether this state of affairs constitutes an inconsistency with the Convention is not necessary to decide.

14                  As we have already said in Fakatava v Minister, there is no basis under Australian law for declaring invalid legislation or a regulation because it is said to be inconsistent with Australia’s obligations under an international agreement ratified by this country but not incorporated by legislation into domestic law.  This reflects the established proposition that international treaties or conventions do not give rise to rights or obligations enforceable under Australian law merely because Australia is a party to the treaty and has ratified them: see Dietrich v The Queen (1992) 177 CLR 292, at 302-306, per Mason CJ and McHugh J; at 321, per Brennan J; at 348, per Dawson J; at 359-360, per Toohey J; Victoria v Commonwealth (1996) 187 CLR 416, at 480-482, per Brennan CJ, Toohey, Gaudron, McHugh, Gummow JJ; Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108, at 113, per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; at 128, per Kirby J; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, at 447-448, per curiam; Minogue v Williams [2000] FCA 125.

15                  The appellants’ contention gains no added force from the assertion that it has a constitutional dimension.  In truth, this contention does not raise a genuine matter arising under the Constitution or involving its interpretation.

Unjust Laws

16                  The appellants did not explain clearly why criterion 3002 should be characterised as an “unjust” law.  In any event, there is no principle that empowers a court to declare invalid Commonwealth legislation or delegated legislation on the ground that it considers the law unjust:  cf Polyukhovich, at 687, per Toohey J.  This contention must be rejected.  It, too, does not raise a genuine matter arising under the Constitution or involving its interpretation.

Conclusion

17                  Each appeal must be dismissed, with costs.

Associate:

Dated:              6 March 2000

Mr L Fonua assisted the appellants, by leave.