Court dismisses human rights case

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The Waigani National Court has dismissed a human rights case filed by the Australian-Papuan Civil Rights Incorporated claiming that pre –independence Papuans are Australian citizens.
Judge David Cannings in his decision refused all propositions advanced by the plaintiffs, led by their president Ian Smith Ikowari.
The plaintiffs’ claims were based on propositions that:

  • Papua New Guinea became a nation contrary to international law;
  • Pre –independence Papuans are Australian citizens under Australian law;
  • Pre–independence Papuans have not renounced their Australian citizenship;
  • Pre –independence Papuans had, on Independence Day, “real foreign citizenship” for the purposes of section 64 of the constitution and are therefore not PNG citizens; and
  • Pre –independence Papuans are not automatic PNG citizens.

Justice Cannings held that there was no merit in the proposition that PNG was formed contrary to international law and that 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,” he said.
“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.
“When section 65(1) refers to persons born in the country before Independence Day, it is referring to persons born in the geographical of the country that is now the Independent State of Papua New Guinea.
“The area of the former territory of Papua falls within that geographic 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 Guinean citizen.”
Justice Cannings said the second reason he rejected the plaintiffs’ argument – “that no pre-independence Papuan is an automatic citizen as none was born in the country before Independence Day” – was that it would lead to an absurd result.
“If the argument were upheld, it would apply to all persons born before Independence Day,” he said.
“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 PNG on Independence Day would be an automatic citizen of PNG.”

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