Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Ame [2005] HCA 36 ; (2005) 222 CLR 439
Outcome: applied
Nonetheless, under the Migration Act a person born in Papua after the commencement of the Citizenship Act required an entry permit to be entitled to enter or reside in any of the States or internal territories ( Re Minister for Immigration and Multicultural Affairs; Ex parte Ame [2005] HCA 36 ; (2005) 222 CLR 439 at [1] ). This was because Papua, as an external Territory, was not part of "Australia" for the purposes of the Migration Act ( Minister for Immigration and Multicultural Affairs v Walsh [2002] FCAFC 205 ; (2002) 125 FCR 31 at [15] - [21] cited with approval in Ex parte Ame at [1]). 45 More significantly, in Ex parte Ame , in the majority judgment at [21], the High Court said of the proposition that the applicant in that case was a person who had a right of permanent residence in Australia within the meaning of s 65(4)(a) of the PNG Constitution : This is not an abstract or theoretical question. It concerns the meaning of words in an instrument of nationhood and government, dealing with a practical issue affecting the membership of the new Independent State. When the framers of the Papua New Guinea Constitution referred to persons who had a right to permanent residence in Australia, part of the contextual background in which that reference was made was an Australian immigration law which, according to its terms, and as it was administered, denied people such as the applicant a right to permanent residence in Australia in the absence of a specific grant. That background explains the terms of s 64(4). 46 At [22]-[23] in Ex part Ame their Honours stated: At the time [ie in 1975], s 6(1) of the Migration Act provided that an immigrant who entered Australia without an entry permit was a prohibited immigrant. ... A right of permanent residence (in practice, a right to re-enter Australia free of the constraints of s 6) could be acquired by a person who was granted a permanent entry permit (s 15). ... The [Migration] Act applied, and was administered on the basis that it applied, to persons entering mainland Australia from external Territories. ... ...The right to permanent residence referred to in s 65(4)(a) is the same as the right referred to in s 64(4)(b), that is to say, the right which a small number of Papuans had received by grant, not a right which all Papuans had by virtue of birth in the Territory of Papua at a time when it was an external Territory of Australia. ... 47 Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) was plainly intended to allow the PNG Constitution to govern who became a citizen of Papua New Guinea on Independence Day. It provided, consistently with the PNG Constitution 's rejection in principle of dual citizenship, that a person who immediately before Independence Day was an Australian citizen and who became a citizen of Papua New Guinea on that day ceased on that day to be an Australian citizen. Subject to the retrospective, but for practical purposes, temporary, operation of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations (Cth), the effect of reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) was to deprive Mr Charlie of his Australian citizenship (see [15] above). 48 The contention that, as at Independence Day, Mr Charlie was a person who had a right of permanent residence in Australia within the meaning of s 65(4)(a) because he had the permission of the Darnley Island Council to reside on Darnley Island fails. 49 The above conclusion renders it unnecessary to determine whether Mr Charlie and his family were, for a period of time after his arrival on Darnley Island in 1975, prohibited immigrants within the meaning of the Migration Act as then in force. Even if it can be assumed that they were prohibited immigrants, and therefore technically subject to removal, it is clear that the Commonwealth did not at that time seek to implement the relevant provisions of the Migration Act in respect of persons residing on Darnley Island.