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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
HRA NO 105 OF 2014
IAN SMITH IKOWARI
First Plaintiff
AUSTRALIAN PAPUAN
CIVIL RIGHTS COUNCIL INCORPORATED
Second Plaintiff
V
MINISTER FOR FOREIGN AFFAIRS
First Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani: Cannings J
2018: 22 February, 28 March, 28 June
CITIZENSHIP – automatic citizenship – real foreign citizenship – whether persons born in the former Territory of Papua before Independence Day have Australian citizenship – Constitution, Part IV, citizenship.
The plaintiffs sought a declaration that all persons born in the former Territory of Papua before Independence Day (“pre-Independence Papuans”) who were recognised under Australian law as Australian citizens, are still Australian citizens, not Papua New Guinea citizens. Their claim was based on the propositions that: (a) Papua New Guinea became a nation contrary to international law; (b) Pre-Independence Papuans are Australian citizens under Australian law; (c) pre-Independence Papuans have not renounced their Australian citizenship; (d) pre-Independence Papuans had, on Independence Day, “real foreign citizenship” for the purposes of Section 64 of the Constitution and therefore are not PNG citizens; and (e) pre-Independence Papuans are not automatic Papua New Guinea citizens under Section 65 of the Constitution.
Held:
(1) There is no merit in the proposition that Papua New Guinea was formed contrary to international law.
(2) Pre-Independence Papuans might be regarded as having a special eligibility status for Australian citizenship. However, the question of whether any pre-Independence Papuan is granted Australian citizenship is a matter entirely for the Government of the Commonwealth of Australia.
(3) The fact that a pre-Independence Papuan has not renounced Australian citizenship will only be relevant if in a particular case the person actually had Australian citizenship.
(4) Though some pre-Independence Papuans might have been Australian citizens prior to Independence, if they were never granted a right to permanent residence in Australia, they have, under Section 64(11) of the Constitution “no real foreign citizenship” and their citizenship status falls to be determined by other provisions of the Constitution.
(5) Pre-Independence Papuans will in many cases be regarded as automatic Papua New Guinea citizens under Section 65(1) of the Constitution by virtue of being born in the country and having two parents born in the country.
(6) All relief sought by the plaintiffs was refused and the proceedings were wholly dismissed.
(7) Remark: no questions of constitutional interpretation or application were referred to the Supreme Court under Section 18(2) of the Constitution as the answers were straightforward and the questions were trivial.
Cases cited
The following cases are cited in the judgment.
Alois Kingsley Golu v Regett Marum (2013) N5104
Lowa v Akipe [1992] PNGLR 399
Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60
APPLICATION
This was an application for enforcement of human rights by which the plaintiffs sought a declaration as to their citizenship status.
Counsel
I S Ikowari, the first plaintiff in person, for the Plaintiffs
E Geita, for the Defendants
28th June, 2018
1. CANNINGS J: The plaintiffs seek a declaration that all persons born in the former Territory of Papua before Independence Day who were recognised under Australian law as Australian citizens, are still Australian citizens, not Papua New Guinea citizens. The first plaintiff is Ian Smith Ikowari, who is the president of the second plaintiff, the Australian Papuan Civil Rights Council Incorporated. The Minister for Foreign Affairs and the Independent State of Papua New Guinea are the first and second defendants respectively.
2. The plaintiffs commenced the proceedings as an application for enforcement of human rights under Section 57 of the Constitution. As to the specific human rights they seek to enforce, they rely on Section 55 of the Constitution: all citizens have the same rights, privileges, obligations and duties, irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
THE PLAINTIFFS’ CLAIM
3. The plaintiffs argue that all persons born in the former Territory of Papua before Independence Day, 16 September 1975 – which I refer to, for the sake of convenience, as “pre-Independence Papuans” – who were recognised under Australian law as Australian citizens, are still Australian citizens, not Papua New Guinea citizens. Their claim is based on the following propositions:
(a) Papua New Guinea became a nation contrary to international law;
(b) Pre-Independence Papuans are Australian citizens under Australian law;
(c) pre-Independence Papuans have not renounced their Australian citizenship;
(d) pre-Independence Papuans had, on Independence Day, “real foreign citizenship” for the purposes of Section 64 of the Constitution and therefore are not PNG citizens; and
(e) pre-Independence Papuans are not automatic Papua New Guinea citizens under Section 65 of the Constitution.
DETERMINATION
(a) Papua New Guinea became a nation contrary to international law
4. The plaintiffs argue that prior to Independence the area of land and sea now occupied by the Independent State of Papua New Guinea was occupied by two territories (Papua and New Guinea), each having a separate status, which became a nation contrary to prevailing international law, as there was no referendum or plebiscite in each territory approving the new nation.
5. This proposition is based on the assertion that the former Territory of Papua was administered separately from the former Territory of New Guinea, immediately prior to Independence. That is incorrect. The two jurisdictions were administered separately up to and shortly after World War II. The Territory of Papua was administered under the Papua Act 1905 of Australia. The Territory of New Guinea was administered under the New Guinea Act 1920 of Australia.
6. The Papua and New Guinea Act 1949 of Australia provided for the administrative union of the two territories, which became the Territory of Papua and New Guinea. Self-government for that Territory was conferred in 1972. The People of Papua New Guinea asserted their Independence on 16 September 1975 by the opening words of the Preamble (adoption of constitution) to the Constitution:
WE, THE PEOPLE OF PAPUA NEW GUINEA—
By authority of our inherent right as ancient, free and independent peoples WE, THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea.
AND WE ASSERT, by virtue of that authority
WE DO NOW THEREFORE DECLARE that we, having resolved to enact a Constitution for the Independent State of Papua New Guinea AND ACTING through our Constituent Assembly on 15 August 1975 HEREBY ESTABLISH, ADOPT and GIVE TO OURSELVES this Constitution to come into effect on Independence Day, that is 16 September 1975.
7. There is no merit in the proposition that Papua New Guinea was formed contrary to international law.
(b) Pre-Independence Papuans are Australian citizens under Australian law
8. The plaintiffs argue that pre-Independence Papuans were Australian citizens by virtue of the Australian Citizenship Act 1948 (an Act of the Parliament of the Commonwealth of Australia) and their status as Australian citizens has been preserved by the successor law, the Australian Citizenship Act 2007.
9. There is no evidence or law to support this proposition. Mr Ikowari was unable to cite any provision of the Australian Citizenship Act 1948 or the Australian Citizenship Act 2007 of Australia, that provided that pre-Independence Papuans were granted or are entitled to Australian citizenship. Such persons, if they have a parent born in Australia, apparently have the opportunity for a special ‘pathway’ to Australian citizenship. They might be regarded as having a special eligibility status for Australian citizenship. However, there is a big difference between eligibility for citizenship and actual citizenship.
10. The question of whether any pre-Independence Papuan is granted Australian citizenship is a matter entirely for the Government of the Commonwealth of Australia.
(c) Pre-Independence Papuans have not renounced their Australian citizenship
11. This might or might not be the case. It does not matter. The renunciation of Australian citizenship by any pre-Independence Papuan will only be significant if the person had Australian citizenship in the first place. It appears that Mr Ikowari does not have Australian citizenship, so the fact that he has not renounced it is irrelevant.
12. The fact that a pre-Independence Papuan has not renounced his or her Australian citizenship will only be relevant if in a particular case the person actually had Australian citizenship.
(d) Pre-Independence Papuans have “real foreign citizenship” under Section 64 of the Constitution
13. The plaintiffs argue that because pre-Independence Papuans are actually Australian citizens, they have “real foreign citizenship” and are not, by virtue of Section 64 of the Constitution, Papua New Guinea citizens.
14. Section 64 (dual citizenship) states:
(1) Except as provided by this section, no person who has a real foreign citizenship shall be or become a citizen.
(2) A citizen may apply to the Minister responsible for citizenship matters to hold citizenship of a prescribed country whilst holding Papua New Guinean citizenship, and the Minister may, if he is satisfied as to the matters referred to in Subsection (4), in his deliberate judgment (but subject to Division 4 (Citizenship Advisory Committee)), grant or refuse the application.
(3) A citizen of a prescribed country who would otherwise be qualified to be a citizen under Sections 65, 66 or 67, of the Constitution may apply to the minister responsible for citizenship matters to be a citizen, and the Minister may, if he is satisfied as to the matters referred to in Subsection (6), in his deliberate judgment (but subject to Division 4 (Citizenship Advisory Committee)), grant or refuse the application.
(4) To be eligible to hold citizenship of a prescribed country whilst holding Papua New Guinean citizenship under Subsection (2) —
(a) the citizen must demonstrate that a prescribed country will grant him citizenship; and
(b) the reasons why he wants to be a citizen of a prescribed country.
(5) To be eligible to be a citizen under Subsection (3) —
(a) a person must be qualified to be a citizen —
(i) under Section 65 (automatic citizenship); or
(ii) under Section 66 (citizenship by descent); or
(iii) under Section 67 citizenship by naturalization; and
(b) the person must specify the reasons why he wants to be a citizen of Papua New Guinea while still holding the citizenship of the prescribed country.
(6) An Act of Parliament may make provisions on matters that the Minister should, or should not take into account under Subsections (2), (3), (4) and (5).
(7) Constitutional regulations shall prescribe the countries to which persons will be permitted to hold citizenship under this section.
(8) The Minister responsible for citizenship matters may, in his deliberate judgment, (but subject to Division 4 (Citizenship Advisory Committee), recall and cancel an approval given under Subsections (4) and (5) if, at any time after granting of approval, circumstances exist —
(a) which were not known at the time; or
(b) which are new as a result of change occurring since approval was given,
that if these were known or existed at the time approval was granted, approval would not have been granted.
(9) 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.
(10) 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.
(11) 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.
15. The plaintiffs rely on two provisions of Section 64. First, Section 64(1). It provides that if a person has “real foreign citizenship” he or she cannot (unless dual citizenship is permitted in a particular case) be or become a Papua New Guinea citizen. The plaintiffs argue that pre-Independence Papuans are Australian citizens, so they have real foreign citizenship and therefore are not Papua New Guinea citizens.
16. The logic in that argument is sound. But the conclusion in any particular case will turn on whether in fact the pre-Independence Papuan in question is an Australian citizen. If yes, he or she cannot be a Papua New Guinea citizen (unless dual citizenship is permitted in that particular case). If no, the pre-Independence Papuan might or might not be a Papua New Guinea citizen depending on the application to that person of other provisions in Part IV (citizenship) of the Constitution.
17. The second provision in Section 64 relied on by the plaintiffs is Section 64(11)(a)(i), which provides:
For the purposes of this section, a person who ... was, immediately before Independence Day, an Australian citizen or an Australian Protected Person by virtue of ... birth in the former Territory of Papua ... and ... was never granted a right (whether revocable or not) to permanent residence in Australia, has no real foreign citizenship.
18. At this point, I digress to note that the former Section 64 of the Constitution was repealed and replaced by Section 5 of the Constitutional Amendment (No 37) (Citizenship) Law 2014, to provide for dual citizenship; and it was further amended by Section 2 of the Constitutional Amendment (No 43) (Dual Citizenship) Law 2016. The former Section 64 contained a provision, Sub-section (4), in the same terms as the existing Sub-section (11). The former Section 64(4) stated:
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.
19. In his written and oral submissions and in the affidavit evidence, Mr Ikowari repeatedly refers to Section 64(4)(a)(i), a provision which no longer, technically, exists. However, I regard the submissions and evidence as being based on Section 64(11)(a)(i).
20. Mr Ikowari submits that pre-Independence Papuans have a special status under Section 64(11)(a)(i), which recognises their Australian citizenship. He asserts that this provision shows that they have real foreign citizenship and are not Papua New Guinea citizens.
21. It is correct to say that pre-Independence Papuans have a special status under Section 64(11)(a)(i). But it is not correct to say that this provision recognises their Australian citizenship or reasserts any real foreign citizenship. The provision recognises that in a particular case a pre-Independence Papuan might have been, immediately before Independence Day, an Australian citizen or an Australian Protected Person by virtue of their birth in the former Territory of Papua. This might be, for example, because one of their parents was born in Australia. But the provision goes on to say that if the person “was never granted a right (whether revocable or not) to permanent residence in Australia” he or she “has no real foreign citizenship”.
22. Thus if, in a particular case, a pre-Independence Papuan was an Australian citizen but had never been granted a right to permanent residence in Australia, he or she has no real foreign citizenship; and in all likelihood such a person would be an automatic Papua New Guinea citizen under Section 65 of the Constitution.
23. There is no merit in the proposition that pre-Independence Papuans have “real foreign citizenship” and are not Papua New Guinea citizens.
(e) Pre-Independence Papuans are not automatic citizens under Section 65 of the Constitution.
24. The plaintiffs argue that, although Section 65 of the Constitution provides that a person born in the country before Independence Day who has two grand-parents born in the country is regarded as an ‘automatic’ citizen, this provision does not apply to the pre-Independence Papuans as they were not born “in the country”. They were born in the former Territory of Papua. At the time they were born, the country of Papua New Guinea did not exist.
25. To appreciate this argument, I set out the whole of Section 65 (automatic citizenship on Independence Day), which states:
(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.
(2) A person born outside the country before Independence Day who has two grand-parents born in the country is a citizen as from Independence Day if—
(a) within one year after Independence Day or such longer period as the Minister responsible for citizenship matters allows in a particular case, application is made by him or on his behalf for registration as a citizen; and
(b) he renounces any other citizenship and makes the Declaration of Loyalty—
(i) if he has not reached the age of 19 years—in accordance with Section 64(2) (dual citizenship); or
(ii) if he has reached the age of 19 years—at or before the time when the application is made.
(3) In Subsection (1), "adjacent area" means an area that immediately before Independence Day constituted—
(a) the Solomon Islands; or
(b) the Province of the Republic of Indonesia known as Irian Jaya; or
(c) the islands in Torres Straits annexed to the then Colony of Queensland under Letters Patent of the United Kingdom of Great Britain and Ireland bearing date the 10th day of October in the forty-second year of the reign of Her Majesty Queen Victoria (that is, 1878),
not forming on Independence Day part of the area of Papua New Guinea.
(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).
(5) A person to whom Subsection (4) applies may, within the period of two months after Independence Day and in such manner as may be prescribed by or under an Act of the Parliament, renounce his right to permanent residence in Australia or his status as an Australian citizen or as a citizen of another country and make the Declaration of Loyalty.
(6) Where in his opinion it is just to do so, the Minister responsible for citizenship matters may in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), extend the period of two months referred to in Subsection (4), but unless the Minister is satisfied that the applicant—
(a) assumed in error that he was a citizen; or
(b) did not know that he was not a citizen; or
(c) had no reasonable opportunity or not enough time to determine his status,
the period may not be extended beyond a further two months.
26. The plaintiffs’ argument is based on Section 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.
27. The plaintiffs argue that pre-Independence Papuans were not born in “the country” of Papua New Guinea as, when they were born, that country did not exist. I reject this argument, for two reasons.
28. First, there is a definition of “the country” in Schedule 1.2(1) (meaning of certain expressions) of the Constitution, which provides:
In this Constitution or an Organic Law ... "the country" means the area of Papua New Guinea.
29. There is a definition of “the area of Papua New Guinea” in Section 2 (the area of Papua New Guinea) of the Constitution, which provides:
(1) The area of Papua New Guinea consists of the area that, immediately before Independence Day, constituted what was then known as Papua New Guinea, together with all internal waters and the territorial sea and underlying lands, and, subject to disclaimer by resolution of the Parliament at or before the end of its next meeting, includes such neighbouring waters and such lands underlying any such waters, and such additional lands and waters, as are declared by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, to be part of that area.
(2) The sovereignty of Papua New Guinea over its territory, and over the natural resources of its territory, is and shall remain absolute, subject only to such obligations at international law as are freely accepted by Papua New Guinea in accordance with this Constitution.
30. The combined effect of those two definition provisions is that the words “the country” in Section 65(1) refer to the geographical area of the country – the nation – which came into existence on Independence Day, known, by virtue of Section 1(1) of the Constitution, as the Independent State of Papua New Guinea. Section 1(1) states:
Papua New Guinea is a sovereign, independent State by the name of the Independent State of Papua New Guinea.
31. So, when Section 65(1) refers to persons born in “the country” before Independence Day, it is referring to persons born in the geographical area of the country that is now the Independent State of Papua New Guinea. The area of the former Territory of Papua falls within that geographical area. A pre-Independence Papuan will have been born in “the country” and, if he or she has two grandparents born in “the country”, will be a Papua New Guinea citizen.
32. The second reason I reject the plaintiffs’ argument (that no pre-Independence Papuan is an automatic citizen as none was born in the country before Independence Day) is that it would lead to an absurd result. If the argument were upheld, it would apply to all persons born before Independence Day, whether they were born in the former Territory of Papua or anywhere else, such as the former Territory of New Guinea. It would mean that no one born in the geographical area of what became Papua New Guinea on Independence Day, would be an automatic citizen of Papua New Guinea. That would be an absurd result.
33. The intention of Section 65 was clearly to set out who was to become a Papua New Guinea citizen at Independence. They were to acquire ‘automatic’ citizenship. Their method of acquisition of citizenship was to be distinguished from persons who acquired citizenship by descent or marriage (under Section 66 (citizenship by descent and marriage)) or by the process of naturalisation (under Section 67 (citizenship by naturalisation)).
34. I find no merit in the interpretation of Section 65(1) of the Constitution advanced by the plaintiffs.
REMARKS
35. There are a myriad of procedural grounds on which the defendants could have argued that this unusual case should be summarily dismissed. For example:
36. For reasons unknown, the defendants made no serious attempt to have the case dismissed. It proceeded to trial and I have dealt with the plaintiffs’ claim on its merits.
37. Though none of the parties raised the issue of referring the constitutional questions necessarily involved in determining this case to the Supreme Court under Section 18(2) of the Constitution, I considered that option. Section 18 (original interpretative jurisdiction of the Supreme Court) states:
(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
38. I considered referring such questions to the Supreme Court on my own motion. I decided not to do so as the obligation of the National Court to refer questions of constitutional application or interpretation to the Supreme Court does not arise if the answers to such questions are straightforward and require little or no interpretation (Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60, Lowa v Akipe [1992] PNGLR 399, Alois Kingsley Golu v Regett Marum (2013) N5104). Nor does it arise if the questions are “trivial, vexatious or irrelevant”.
39. Though the questions raised by the plaintiffs have been interesting and thought-provoking, the answers have been straightforward. With respect, the questions were trivial, in the sense that the plaintiffs had only a remote chance of having them decided in their favour. It was unnecessary to refer any questions to the Supreme Court.
CONCLUSION
40. I have rejected all propositions advanced by the plaintiffs. I refuse to declare that persons born in the former Territory of Papua before Independence Day who were recognised under Australian law as Australian citizens, are still Australian citizens, not Papua New Guinea citizens.
41. The question of citizenship of any person born in the former Territory of Papua before Independence Day has to be considered on a case-by-case basis in accordance with the provisions of the Constitution.
42. The proceedings will be dismissed. I will allow the parties to bear their own costs as the plaintiffs’ beliefs and grievances are genuine and the defendants provided little assistance to the Court in resolving these issues.
ORDER
(1) All relief sought by the plaintiffs is refused and the proceedings are wholly dismissed.
(2) The parties will bear their own costs.
(3) The file is closed.
_______________________________________________________________
Solicitor-General: Lawyer for the Defendants
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