Plaintiff S157 of 2002 v The Commonwealtho f Australia S157/2002 [2002] HCATrans 354 (30 July 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S134 of 2002

In the matter of -

An application for Writs of Prohibition, Certiorari and Mandamus against THE MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

Respondents

Ex parte -

APPLICANTS S134/2002

Prosecutors

Office of the Registry

Sydney No S157 of 2002

B e t w e e n -

PLAINTIFF S157 OF 2002

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions Hearing

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 JULY 2002, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR J. BASTEN, QC: I appear with MR N.C. POYNDER, for the applicants in the S134 matter, your Honour. (instructed by Craddock Murray Neumann)

MR D.J. COLQUHOUN-KERR: I appear with MR G.J. WILLIAMS for the plaintiff in the S157 matter, your Honour. (instructed by Parish Patience Immigration, Lawyers)

MR N.J. WILLIAMS, SC: I appear with MR S.B. LLOYD for the respondent in both matters, your Honour. (instructed by Australian Government Solicitor)

MR B.W. WALKER, SC: Your Honour, I seek leave to appear for HREOC as an applicant for leave to intervene in both matters. (instructed by Human Rights and Equal Opportunity Commission)

HIS HONOUR: Yes. We will come back to you, Mr Walker.

Now, Mr Kerr, I have signed the stated case. I have spoken to the Chief Justice about what should be done with these matters. What is proposed is that they be listed together on Tuesday, 3 September on the footing that the oral argument would be concluded by 3 pm on Wednesday, the 4^th. As counsel will appreciate, the window of opportunity for seven Justices matters before the end of the year is not large. That is the greatest enlargement that can be found.

Subject to what counsel says, it strikes me as convenient if Mr Basten went first, then you went after him, Mr Kerr, and then the Commonwealth came behind that to deal with both of them and then such measure of reply as was needed would be dealt with. That would require some agreement amongst yourselves as to division of time. Does anyone see any problems with that?

MR WILLIAMS: I think we would see it as very tight, your Honour.

HIS HONOUR: It is tight, I know. Yes, that is right.

MR WILLIAMS: I apprehend that the parties on the left of the Bar table would have been seeking a day to present their case. That may have to be abridged, I suspect.

HIS HONOUR: It will, yes. Now, it would be useful if the written submissions on the applicants' sides were exchanged before they are filed, as it were, so you each know what the others are going to say and what is not going to be said.

Some of the questions that arise were mentioned by Justice Gaudron in relation to your matter, Mr Basten and Mr Williams. Some other matters that seem to arise which have to be, I suspect, dealt with somewhere or other are these. On the face of it, 474 would apply to this very proceeding, I guess, but as I understand it, it is understood that 474 has to be read so as not to exclude this sort of proceeding where the challenge is on constitutional grounds. It then becomes a question of reading 474 down in some fashion. The question is by what fashion.

In looking at that question, it may be necessary to look to the internal reading-down provision in section 3A which itself may raise validity questions. Counsel will remember that in some earlier cases the Court has come to the barrier but not had to jump over the validity of those provisions. There is a section to like effect in the Industrial Relations Act. It may be in other Acts as well.

Then there is the question of the interrelation between 3A and the Hickman doctrine and then there is the question of what that doctrine is: whether it is a rule of construction. Then one asks, "What does that mean?" If it is not a rule of construction, is it some rule of constitutional operation affecting the interrelation between Chapter III on the one hand and Chapters I and II on the other. I think in your matter, Mr Basten, there is a bona fides point, is there not?

MR BASTEN: Yes, your Honour.

HIS HONOUR: Which will perhaps throw some of these Hickman questions into sharp relief. No doubt there are other questions but they are some of the ones that occur to me. Of course, in your matter, Mr Basten, there is questions about the scope of the injunction in 75(v), is there not?

MR BASTEN: That is so, yes.

HIS HONOUR: And the relationship of that to notions of jurisdictional error with the other writs in 75(v).

MR BASTEN: Yes.

HIS HONOUR: Now, having said all of that, we should try and fix some time for submissions before I come back to Mr Walker. Is Monday the 12^th too early for the submissions on your side of the Bar table, Mr Basten?

MR BASTEN: Your Honour, I have discussed this with Mr Williams before. He suggested that. I have some problems with that realistically and we were discussing the 14^th as an alternative; something of a compromise.

HIS HONOUR: Yes, all right.

MR BASTEN: And, your Honour, one other matter which we had raised between ourselves on the basis that time would be limited, although we had not realised quite how limited, was whether there might be some extension of the page limit for submissions so that we can deal with some of these matters that your Honour has outlined in writing.

HIS HONOUR: Yes. Well, I will just leave it to your commonsense.

MR BASTEN: Yes, thank you.

MR WILLIAMS: Your Honour, there may be some convenience in Mr Kerr going first, given Mr Basten's difficulty with dates.

HIS HONOUR: Is the 12^th a difficulty with you for your submissions, rather than the 14^th?

MR WILLIAMS: Not difficult but if we are to exchange it makes it difficult. It would obviously be - - -

HIS HONOUR: Yes, I think that is right. I will make them both on the 14^th. Then what date do you suggest for your side, Mr Williams?

MR WILLIAMS: The 22^nd, your Honour, I think would be the - - -

HIS HONOUR: Thursday, the 22^nd?

MR WILLIAMS: Yes. I think that would be seven days.

HIS HONOUR: I suspect Monday the 26^th might be more sensible though. I will make Mr Basten the 15^th then. And replies by the Friday, I guess, the 30^th.

MR BASTEN: If the Court please.

HIS HONOUR: Now, there is something to be said for the proposition that the more succinct the submissions, the more effective they are, you know.

MR BASTEN: I appreciate that.

HIS HONOUR: We do not want a research paper. Now, Mr Walker, what are you going to say that they cannot possibly say?

MR WALKER: Your Honour, first of all, it is always the case that an intervener can, as it were, arm other parties with argument but, in our submission, there is a particular statutory vantage point that my client brings and, indeed - - -

HIS HONOUR: What is that?

MR WALKER: - - - is required to bring in relation to the Convention.

HIS HONOUR: We have heard all that before. It does not really assist in these great questions we are debating here which go right beyond any international conventions; go right beyond the Migration Act.

MR WALKER: First of all, it must be the case that it goes beyond the Convention. Of course it does and of course it goes beyond the Migration Act, your Honour, but, in our submission, the fact that the Act interacts as explicitly as it does with Convention obligations is something which is an essential part, not merely the background, of the very matters in issue in this case.

HIS HONOUR: Now, tell me why? Why does the Convention require any of these matters to be committed to any exercise of judicial power at all?

MR WALKER: Your Honour, perhaps the most succinct way of putting it is - - -

HIS HONOUR: There will be many countries which do not have a distinct judicial power.

MR WALKER: Yes. Perhaps the most succinct way of putting is it is an interaction between this country's constitutional approach to the rule of law which does commit to the judicial power final determination not only of validity but also of the propriety of conduct under the law; and, second, the Convention's requirements against arbitrariness and conduct of the nature of arbitrariness. In our submission, put those two together and there is special light cast in relation to 75(v) and the Migration Act's - I will have to call it - relationship - - -

HIS HONOUR: You have said this before, Mr Walker.

MR WALKER: Yes, your Honour, I know.

HIS HONOUR: I have never seen the light as very bright, actually.

MR WALKER: Your Honour, I am not suggesting there is any great departure from what has been said before. In fact, your Honour has seen the affidavit.

HIS HONOUR: Yes.

MR WALKER: That, in our submission, your Honour, is why it would be appropriate for there to be an intervention on behalf of HREOC in this case because those matters are involved in this case as they have been in other cases.

HIS HONOUR: I hear what you say. Now, it seems to me though your chances would be assisted if, having seen the submissions that are terminating - coming in by 26 August, you were to put on some additional succinct material telling us what, if anything, you would be adding to what they have said that you have not already said you would be adding. Do you follow what I say?

MR WALKER: Does your Honour mean by way of affidavit or by way of a submission?

HIS HONOUR: By an affidavit annexing some submissions is the way to do it.

MR WALKER: If it please your Honour.

MR BASTEN: Your Honour, in the timetable your Honour has set, I know that - - -

HIS HONOUR: There is no room for Mr Walker at the moment.

MR BASTEN: No room for Mr Walker but there is no room for Mr Selway either, the Solicitor for South Australia.

HIS HONOUR: That is right. Now, has he indicated what he is going to be doing?

MR BASTEN: Intervening in support of the Commonwealth's position, I am told, your Honour. Whether he knows what that is, I do not know. I am not sure about New South Wales or Victoria or Queensland. They are all considering their position.

HIS HONOUR: Yes. Well, they may have to consider it in writing, I am afraid.

MR BASTEN: Yes.

HIS HONOUR: The purpose of today's hearing was to give them a chance to come here and tell us what they wanted to do. I know they have a statutory right to intervene. There is far too much minds being made up at the last minute by State Attorneys. It is not a satisfactory way of proceeding as far as our business is concerned.

Now, what I suggest is that counsel for the parties who tend rather to be elbowed around by these interveners - counsel for the parties divide the time as between themselves and any further application to vary it to admit of oral submissions either by Mr Walker, if he succeeds in getting his intervention, or by the interveners as of right can be made when the matters are called on, on the Tuesday morning. I take it you gave the additional 78B notices?

MR COLQUHOUN-KERR: No. We understood that the additional notices were to be filed after you signed the case stated, your Honour, but we will certainly do so, immediately.

HIS HONOUR: Yes. Have you given 78B notices, Mr Basten?

MR BASTEN: Yes, your Honour.

HIS HONOUR: Yes. Well, that is what is activating people at the moment.

MR BASTEN: That is so.

HIS HONOUR: So, I have said in each matter the applicants' submissions to be filed and served on or before 15 August; the submissions for the Minister and the Commonwealth on or before 26 August; replies by 30 August; liberty to apply to me on 2 days notice. Certify for counsel. Costs of today are to be costs in the matter. Standover Mr Walker's application for leave to intervene to the hearing and set down the hearing for the matters to be listed together to start on Tuesday, the 3^rd and finish, as indicated, on Wednesday, 4 September. Is there anything else? I will now adjourn.

AT 9.48 AM THE MATTERS WERE CONCLUDED