Consideration and disposition of the amended application
49 For the following reasons, I reject the applicants' submission that the children are "non-citizen children" within the meaning of s 4AAA of the IGOC Act, with the consequence that the Minister would be their guardian under s 6(1) of the IGOC Act.
50 The contemporary approach to statutory construction in Australia is relatively well settled. It is reflected in the following passage from the joint judgment of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] (footnotes omitted):
14. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
51 Sub-section 6(1) of the IGOC Act refers to the Minister being the guardian of every non-citizen child who "arrives in Australia". The definition of a non-citizen child in s 4AAA(1) refers to a child who "enters" Australia as a non-citizen and who intends, or is intended, to become a permanent resident of Australia. It was common ground that the phrases "arrives in Australia" and "enters Australia" are synonymous. I agree.
52 I accept the Minister's submission that, in determining whether a child is a non-citizen child, the relevant point in time is the time when the child enters or arrives in Australia as a non-citizen. That is consistent with the grammatical expression of those terms in ss 4AAA(1)(b) and 6(1) respectively, noting also the use of the term "enters" in s 4AAA(2).
53 The relevant issue here therefore is whether or not, when they entered Australia as non-citizens, the children either:
(a) were in the charge of their father; or
(b) entered Australia for the purposes of living here under the care of the father.
54 It is common ground that the children entered Australia while they were on board HMAS Maryborough and when that ship crossed into the territorial sea adjacent to the 12 nautical miles offshore Christmas Island.
55 The ordinary meaning of the phrase "in charge of" in this context is reflected in the following meanings given by the Macquarie Dictionary:
22. a duty or responsibility laid upon or entrusted to one. 23. care, custody, or superintendence: to have charge of a thing. 24. anything or anybody committed to one's care or management.
56 I accept the Minister's position that, when the children entered Australia, they were in the charge of their father. Having regard to their ages at the time and the fact that they were physically in his company, he was their primary carer. This conclusion is not avoided because the Captain and crew of HMAS Maryborough also had responsibilities and duties to the children as passengers on that ship which rescued the passengers on the distressed vessel near Christmas Island.
57 The Minister's submission that, when the children entered Australia, they did so for the purposes of living in Australia under their father's care should also be accepted. This is necessarily implicit in the fact that they were aged only 6 and 5 years old at that time and they were brought to Australia by their father with the plain intention of living in Australia under his care. I reject the applicants' submission that their purpose in coming to Australia was for the purpose of being detained under migration legislation. There is no evidence to support that submission.
58 Neither of the alternative limbs in the chapeau to s 4AAA(2) turns on the children's subjective intentions. Rather, both limbs are objective. This is understandable given that the provision operates by reference to children who have not turned 18 and, in the case of children as young as those here, they would be incapable of caring for themselves when they entered Australia.
59 Incidentally, presumably this is also the reason why there is both a subjective and a non-subjective element in s 4AAA(1)(c), where an essential element of a child being a non-citizen under the terms of that provision is that the child "intends, or is intended, to become a permanent resident of Australia". The phrase "or is intended" accommodates circumstances where, in the case of children as young as those here, it is improbable that they subjectively would have any intention to become a permanent resident of Australia in the legal sense. Rather, that concept acknowledges the situation where someone else vicariously intends that a child for whom they have responsibility become a permanent resident of Australia, as occurred here with the father of the two children.
60 I do not accept the applicants' contention that the statutory provisions in s 4AAA(2) should be construed as having no application where it is claimed that, although the children are in the physical company of a parent when they entered Australia, the children were not truly "in the charge of" that parent because they were under the control of the Captain and crew of HMAS Maryborough and/or the Australian Customs and Border Protection Agency. There are several difficulties with that submission.
61 First, the family was not detained for the purposes of the Migration Act until they arrived at Christmas Island and after they had entered Australia in the legal sense. Secondly, merely because at the time of their entry into Australia, people such as the Captain and crew of HMAS Maryborough had a degree of control over the children because they were passengers on board that ship, does not mean that they were no longer in the charge of their father (or, indeed, that the children did not enter Australia for the purposes of living here under the care of their father). The position would be no different if the children had travelled with their father to Australia by aeroplane. As passengers, they would be obliged to carry out lawful instructions from the Captain and crew of the aeroplane. That would not mean that the children ceased to be in the charge of their father.
62 It is important not to lose sight of the fact that the relevant issue falls to be determined at the point in time when the children entered or arrived in Australia. The central issue is whether they were under the charge of their father at that particular point in time. In my respectful view, that can admit of only one answer in the particular circumstances of this case. The applicants' reference to the fact that, after the family was taken on board HMAS Maryborough, all decisions relating to health, welfare, living arrangements, freedom of movement, access to school, communications, and family location and separation were necessarily made by the Minister is not to the point. Those are matters which arose subsequent to the family's entry into Australia and after they were detained in accordance with the requirements of the Migration Act.
63 It may be accepted that when the IGOC Act was originally passed in 1946, it had the dual purpose of:
(a) enabling the Minister for Immigration to continue to act as the legal guardian of overseas children who remained in Australia after the cessation of the National Security (Overseas Children) Regulations; and
(b) enabling the Minister to act as legal guardian of all children who would be brought to Australia thereafter as immigrants under various migration schemes.
64 Those dual purposes are identified in the Second Reading Speech to the Bill. It is also to be noted that the following statement appears in that Second Reading Speech at that earlier time:
It will be observed that the proposed legislation does not apply to immigrant children who come to Australia with, or for the purpose of living under the care of, their parents or relatives.
65 The current definition of "non-citizen child" was inserted into the IGOC Act in 1994. There is a statement in the Second Reading Speech to that Bill which is set out in [35] above to the effect that the legislation placed certain non-citizen children who enter Australia under the guardianship of the Minister for Immigration and that "principally these [are]… children who enter Australia as unaccompanied refugee minors" (emphasis added). The reference to "principally" is important. There is nothing in this later Second Reading Speech to suggest that it was intended that children who entered Australia accompanied by a parent and in circumstances of the kind which occurred here would be under the guardianship of the Minister for Immigration. In any event, even if there were, effect has to be given to the plain text of the provision.
66 The obiter observations of North J in X are not inconsistent with this view. It is important to note that his Honour was dealing there with two minor children who entered Australia as stowaways on a ship and were unaccompanied by a parent. The issue was whether proceedings commenced by the minors in relation to the refusal to grant them protection visas and to enforce the Minister's obligations to them as guardian under s 6 of the IGOC Act required the appointment of a tutor. It was in this particular factual context that North J made the following obiter observations at [45]:
45. Children will not fall within the definition of non-citizen children unless they have arrived in Australia without parents or without adults to care for them in Australia: s 4AAA of the Act. Such children are thus, characteristically, without adult support in Australia. A requirement that they find adult support in order to enforce their legal rights to proper care is contrary to the purpose of s 6. The section is plainly aimed at providing protection for the interests of children who are particularly alone, isolated and often in frightening circumstances. Not only is this evident from the context of the section, but in the Minister's Second Reading Speech relating to the introduction of s 4AAA in 1994 he explained that:
Presently, the Act places certain non-citizen children entering Australia under the guardianship of the Minister for Immigration and Ethnic Affairs, principally these being children who enter Australia for adoption (including those children who have been adopted overseas but whose adoption is not recognised in Australia) and children who enter Australia as unaccompanied refugee minors. (emphasis in original)
67 That provides a sufficient basis for dismissing the amended application. For completeness, however, I can indicate that I would accept the Minister's submissions, as summarised in [43] to [45] above regarding the unlikely consequences which would flow from acceptance of the applicants' construction. The legitimacy of this approach to the task of statutory construction is well established (see, for example, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at [23]-[26] per Mason and Wilson JJ).