Former territory of Papua case dismissed

A human rights case seeking declaration that all persons born in the former Territory of Papua before September 16, 1975, who were recognised under Australian law as Australian citizens, has been dismissed by the National Court.

The Australian Papuan Civil Rights Council Incorporated and its president, Ian Smith Ikowari, filed the case in the National Court in 2014.

They argued that pre-Independence Papuans are Australian citizens, so they have real foreign citizenship and therefore are not Papua New Guinea citizens.

Their claim was 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. 

Justice David Cannings in his ruling held there was no merit in the first proposition.

He said the question of whether any pre-Independence Papuan is granted Australian citizenship is a matter entirely for the Government of the Commonwealth of Australia.

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.

The court held that, 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. 

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.

Justice Cannings refused all the reliefs sought and dismissed the whole case.

Sally Pokiton