[2011] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
		Melbourne		No M169 of 2010

B e t w e e n -

PLAINTIFF M169/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
		Melbourne		No M171 of 2010

B e t w e e n -

PLAINTIFF M171/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
		Melbourne		No M173 of 2010

B e t w e e n -

PLAINTIFF M173/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
		Melbourne		No M175 of 2010

B e t w e e n -

PLAINTIFF M175/10 BY HIS LITIGATION GUARDIAN SISTER BRIGID (MARIE) ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 19 APRIL 2011, AT 9.28 AM

Copyright in the High Court of Australia

__________________

MS D.S. MORTIMER, SC:   If the Court pleases, I appear with my learned friend, MS K.E. FOLEY, on behalf of the plaintiffs.  (instructed by Victoria Legal Aid (Civil Law Section))

MR S.P. DONAGHUE:   If the Court pleases, I appear with my learned friend, MS R.J. SHARP, on behalf of the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.

MS MORTIMER:   Your Honour, the matters that we would seek to raise before your Honour this morning some of them are procedural in a less important sense and some of them are fundamental in terms of the appropriate forum for the future disposition of this case.  Your Honour has received some submissions on behalf of both of the parties.

HER HONOUR:   Yes, I have read those.

MS MORTIMER:   If I may just work through our submissions in relation to that to identify what as we apprehend between the parties remain the areas of disagreement.

HER HONOUR:   Certainly.

MS MORTIMER:   Your Honour, in relation to what we say at paragraph 4 about agreed facts, we understand that the defendants’ position is that they agree with those propositions, that is that it is not going to be capable, in the parties’ views, of this matter proceeding by way of completely agreed facts.  Now, I am going to return, your Honour, to what might be possible, but in terms of a total statement of agreed facts ‑ ‑ ‑

HER HONOUR:   Yes.  Perhaps I should indicate that in the earlier stages of these proceedings it appeared that there might be a prospect of a question of law concerning, in particular, the meaning of “may” as it occurs in section 189(3) of the Migration Act, that is to say there seemed a prospect that there might be a question determined first in relation to that allowing factual matters to be determined later, possibly in another court.  That prospect seems to have evaporated in the light of the submissions which I have read.

MS MORTIMER:   Your Honour, that particular legal question, we do not understand there to be a disagreement between the parties, that is we understand the Commonwealth and the Minister to accept that section 189(3) confers a discretion.

HER HONOUR:   Well, the defendants’ evidence seems to be directed to that reading of section 189(3).

MS MORTIMER:   Yes, and where the parties then depart is to what extent that discretion can be controlled, fettered or dictated to by what the Commonwealth says are the practical circumstances on Christmas Island.

HER HONOUR:   Yes.

MS MORTIMER:   There are, your Honour, some other legal questions that are capable of articulation as pure questions of law that affect other parts of the plaintiffs’ case, for example, whether the interrelationship between section 189(1) and section 189(3), whether section 189(3) confers a continuing discretion.  There are, we accept, some questions of law that must arise for determination in this proceeding.  Our present position is, your Honour, that it would not be appropriate to separate those out for initial determination.  They may or may not dispose of part of the case, but our position is that given the arguments about forum, this matter should proceed to a trial.

HER HONOUR:   Yes.  Well, there is no debate about that.  It seems appropriate that the four proceedings still on foot should proceed to a trial.

MS MORTIMER:   Yes.  Your Honour has said the four proceedings and the second thing we deal with in our submissions is the number of proceedings and again, something that had come up quite properly early in these proceedings, whether one ought to be selected, and it is our position that, given the nature of the claims, that is not appropriate.  The Commonwealth and the Minister have not suggested that it is so we take them to agree that the four proceedings should go forward and, indeed, the orders that the Commonwealth has put forward contemplate the four proceedings going down.

HER HONOUR:   Going forward, yes.

MS MORTIMER:   Yes.  The next matter, your Honour, is what we address at paragraph 7 of our submissions and onwards, which are the jurisdictional issues.

HER HONOUR:   Yes.

MS MORTIMER:   Again, we understand that the parties are substantially in agreement about that, that not all the matters that arise can be remitted to the Federal Magistrates Court and the Federal Magistrates Court is the only available jurisdiction directly for remitter.

HER HONOUR:   I notice that the defendants in their submissions have indicated to the Court they would join in any applications by the plaintiffs in the Federal Magistrates Court to have the matters transferred to the Federal Court of Australia.

MS MORTIMER:   Yes, your Honour, and we are grateful for that indication from the defendants because we share the view that this matter, if it is to be remitted at all, ought end up in the Federal Court of Australia.  So that would be an application that we would contemplate making if the matter were otherwise – those parts of the matters that can be remitted were remitted.  

HER HONOUR:   So the parts of the matters which cannot be remitted, the parts concerning the decisions of the Minister not to exercise ministerial powers under sections 195A and 197AB – do I have that right?

MS MORTIMER:   Yes, your Honour.

HER HONOUR:   Yes, thank you.

MS MORTIMER:   So there are essentially three components to the plaintiffs’ case.  

HER HONOUR:   Yes.

MS MORTIMER:   The initial detention, the ongoing detention and the failure or refusal to exercise those powers.

HER HONOUR:   Yes.

MS MORTIMER:   The first two are capable of remitter and the third is not.

HER HONOUR:   Do you want to tell me about the status of the plaintiffs here and now in relation to that third aspect of the case?

MS MORTIMER:   Yes, your Honour.  The present situation is that two of the plaintiffs - your Honour, I am just trying to match up names with numbers, if your Honour will pardon me.

HER HONOUR:   Yes, certainly.  Take your time, Ms Mortimer.

MS MORTIMER:   Plaintiff 173 and Plaintiff 175 are the two plaintiffs who have been granted protection visas and Plaintiffs 169 and Plaintiff 171 are the two plaintiffs who are presently subject to residence determinations under section 197AB of the Act.

HER HONOUR:   And awaiting determination of their applications for protection visas?

MS MORTIMER:   Yes, your Honour, that is right.  All these people are M61 affected, if I might use that shorthand description, so they have all had their cases reviewed and re‑examined and those two plaintiffs have not had a decision on that re‑examination yet.

HER HONOUR:   In progress, one assumes.

MS MORTIMER:   In progress.

HER HONOUR:   Yes, thank you.

MS MORTIMER:   I am sorry, no, your Honour.  We are more advanced than I had represented.  They have had those merits determinations made and they both have findings that Australia owes them protection obligations.  That means that the ‑ ‑ ‑

HER HONOUR:   The visas will follow.

MS MORTIMER:   The Minister is considering whether to lift the bar.

HER HONOUR:   Yes.

MS MORTIMER:   Your Honour, the visa may or may not follow because there are people who are subject to ASIO clearances.  There are a number of other things that may impede or preclude the grant of a visa, but they have those ‑ ‑ ‑

HER HONOUR:   But on the redoing of the merits application, the finding has been made that Australia owes them protection obligation.

MS MORTIMER:   Yes, your Honour, that is so.

HER HONOUR:   Now, I suppose, inevitably, Ms Mortimer, that raises a point which the defendants raise in their submissions and that is an issue about the continuing utility of the relief sought.  I think it is in paragraphs 3, 5 and 6 of the amended applications for orders to show cause.

MS MORTIMER:   Yes, your Honour, and we quite freely admit, your Honour will not be surprised to hear, that the habeas corpus relief has to go and it should have gone in the amended application.  That was an oversight.

HER HONOUR:   Yes, I see, along with the guardianship.

MS MORTIMER:   Yes, your Honour.  No, I withdraw that, your Honour, I withdraw that at the moment because – and this is something that, while I was preparing this morning really only occurred to me.  The two plaintiffs who are subject to residence determinations, your Honour, are still in immigration detention.

HER HONOUR:   Yes, in the community.

MS MORTIMER:   The legal effect is that they are still detained.

HER HONOUR:   Yes.  You want to keep the relief on foot, at least pro tem.

MS MORTIMER:   Yes, your Honour, and so particularly the claim about the failure to grant a visa under 195A is a completely live claim in relation to those two plaintiffs.  

HER HONOUR:   I suppose the situation is this, that certainly the possibility of utility – the lack of utility arises more in the present context than in the circumstances that existed in January of this year.

MS MORTIMER:   Absolutely, your Honour.  If the two plaintiffs who have been found to be owed protection obligations by Australia are granted protection visas then the habeas corpus claim must go.

HER HONOUR:   Yes.

MS MORTIMER:   We accept that.  The remaining utility about those claims in relation to 195A and 197A is the lawfulness during the period the plaintiffs were detained, which was in excess of one year of the Minister’s failure and refusal or neglect to exercise those powers – to consider to exercise those powers and what the Minister was obliged to be taking into account.  Our submission will be there is utility in granting a declaration about the lawfulness of the Minister’s conduct during that period.  

	Conduct is within the definition of “migration decision” under this Act.  It is an AD(JR) Act kind of definition and it covers not only conduct but conduct preparatory to the making of decision.  It is very broad, your Honour.  So there is utility in the Court considering and determining whether the conduct of the Minister has been lawful during that whole period that the plaintiffs were detained.  But there will be no utility in relief that goes towards their release.  We accept that, your Honour.

HER HONOUR:   Yes.

MS MORTIMER:   That is a matter I was about to come to, your Honour, because really when one looks at the defendants’ submissions about whether this matter should remain in this Court or be remitted, that is the only point they have.  

HER HONOUR:   Well, apart from a point in relation to the workload of this Court and the fact that there is concurrent jurisdiction in relation to the other two aspects of the claim.

MS MORTIMER:   Yes, your Honour, but that series of factors that we set out with some precision and detail in our submissions has not been answered by the defendants at all.  Those are all matters that go to the administration of justice.  Questions about splitting the case in terms of the burden that it places on the plaintiffs and on the way that they can conduct their proceedings and we accept, your Honour, that a trial in any court is, in that sense, a burden ‑ ‑ ‑

HER HONOUR:   Yes.

MS MORTIMER:   What the defendants are submitting is that there should be two trials.  One must be in this Court unless the plaintiffs abandon it.

HER HONOUR:   There is a degree of familiarity with partial remitters.  It can happen from time to time and it may be that the balance of the proceedings that are left in this Court may be dealt with more expeditiously after a partial remitter.  In other words, it enhances – it certainly possibly enhances the capacity to proceed on an agreed statement of facts in relation to the balance, which I appreciate the parties have tried to do but have not been able to do.

MS MORTIMER:   Yes, your Honour, but to be frank about it, it only enhances that capacity because it imposes a burden on the plaintiffs.  That is, ultimately it is right objectively that what might be left is the product of a trial in another place and the issues have been narrowed, but that process will have imposed a substantial burden on the resources of the plaintiffs.  The plaintiffs are publicly funded by an agency that is stretched, your Honour.  

HER HONOUR:   I think, Ms Mortimer, what does have to be weighed in the balance is the current workload of this Court in terms of a capacity to be hearing entire trials and that, of course, raises for consideration the fact that there are many litigants in this Court proceeding in very limited circumstances on judicial review matters and, more commonly, in relation to the appellate jurisdiction of the Court.

MS MORTIMER:   I accept that, your Honour, and we have not in our submissions shied away from the rarity of what we are suggesting ought to happen.  But what we place emphasis on is, firstly, the considerable importance of this case.  This case does raise issues in relation to the detention of each and every asylum seeker as an offshore entry person.  It is, in my submission, although these things are always difficult to predict, if it goes down it is likely to wind its way back up again.  There are imperatives about determining the lawfulness of what is happening one way or the other which are as much to the benefit of the Commonwealth as they are to the benefit of the plaintiffs.

	The Commonwealth’s estimate, in its written submissions, is a trial of several days.  That is all, your Honour, not weeks and weeks and weeks and we would agree with that.  Your Honour, I ought to hand up – and we should have done this the way our learned friends have done it – some proposed orders because we do want to make it clear that although we come before your Honour regretfully not being able to agree facts in their entirety, we are optimistic that we can narrow the factual scope of this matter.

	So what we have proposed in these orders, particularly orders 3 and 4 - your Honour, it is double sided, I am sorry – is that the parties submit an outline of argument that sets out briefly what their cases are and that we set about agreeing a statement of the facts that can be agreed and a statement of the factual issues which remain in dispute so that the compass is narrowed as much as it can be.  In that sense, your Honour, we would submit that we are able to reduce the burden on a single Justice in this Court as much as possible.

	We are talking, even on the Commonwealth’s estimate, of a trial of a few days.  That would be capable of disposing of the controversy between the parties, subject only to one layer of appeal and in circumstances where the plaintiffs’ situation is as it is and the attributes and characteristics that they have are as they are, that is two of them are still minors, two of them have just come out of minority, all the issues that they are now dealing with combined with the resource issues – and, your Honour, we should not forget that there are resource issues for the Commonwealth and the proposal that we make, in our submission, is the most resource effective.  It is the most time effective and it is the one that is most likely to bring finality, at the earliest point in time, to this controversy.

	We are in this position because of a conscious policy decision by the Commonwealth about appropriate jurisdiction, your Honour.  We do not urge this on the Court for any other reason than that part of it is incapable of being remitted and there are all those factors to which we pointed that tend to suggest against remitter.

	Your Honour, the defendants have said a lot in their submissions about evidence and admissibility issues.  This is not the time or place, your Honour, to start debating admissibility issues.  There are plenty of things we could be saying about the defendants’ evidence as well, but this is not the place for that.

HER HONOUR:   For the trial judge to make those determinations.

MS MORTIMER:   It is for the trial judge and there are real issues about access to facts, material facts in circumstances where the whole of the Commonwealth’s case revolves around a proposition that there is a factual necessity that constrains the discretion, in fact precludes it from operating as a discretion.  The Commonwealth’s whole case is built around factual matters that preclude the discretion being what the Parliament intended a discretion to be.  So this is, in that sense, in that narrow point, it is quite a factually intensive inquiry.  

	The Commonwealth puts forward the things that are favourable to its argument.  It omits things like how much it costs to detain someone on Christmas Island, vis-à-vis releasing them into the community.  Only the Commonwealth knows those figures and there are long ways to extract that evidence from the Commonwealth and there are co‑operative ways to extract that evidence from the Commonwealth and we hope that we will be able to do it co‑operatively.  But the point of putting on evidence that clearly raises admissibility issues, your Honour, is to point to the kinds of information that is presently lacking in the Commonwealth’s evidence.  Now, obviously a trial judge would have to resolve how that evidence is to be adduced ultimately but ‑ ‑ ‑

HER HONOUR:   That rather presages the possibility of cross‑examination, what you have just said.

MS MORTIMER:   It does, your Honour.

HER HONOUR:   Of some witnesses.

MS MORTIMER:   It does.  I accept that would be necessary.

HER HONOUR:   Yes.  

MS MORTIMER:   Your Honour, there are then a number of other procedural matters that we have addressed at the end of our submissions.  They are probably all consequential and we do not anticipate they are – some of them are clearly matters for which we bear responsibility and for which I apologise to the Court that things are not in the form that they should be in, but they are all consequential really upon your Honour’s decision about the appropriate forum.

HER HONOUR:   That is a minor matter, Ms Mortimer.

MS MORTIMER:   Yes.  If your Honour pleases, those are the matters we would seek to advance.

HER HONOUR:   Thank you.  Yes, Dr Donaghue.

MR DONAGHUE:   Thank you, your Honour.  There are considerable areas of agreement.  The parties agree – the defendants certainly agree that having regard to the evidence that has been filed that it is not possible for this case to proceed on the basis of agreed facts.  We agree that the Court has the power to retain the case and conduct a hearing, a full trial of all matters if it chooses to do so and we agree that it is not necessary to select one particular case to go forward.  That was a proposal in the context of a referral to the Full Court.

HER HONOUR:   You are agreed that section 189(3) contains a discretion?

MR DONAGHUE:   We are agreed about that, yes, and we are agreed that the part of the case that relates ‑ ‑ ‑

HER HONOUR:   I think earlier there was not an agreement on that issue, or it was not clear whether there was or there was not.  

MR DONAGHUE:   Yes.  Our position is that that section confers a discretion but that there is a policy that is being promulgated in relation to the way that that discretion should be exercised.  We say that is a lawful policy and we say that there are factual constraints that have to be taken into account in deciding whether the way in which that discretion was exercised is both lawful and consistently with the policy and whether relevant considerations are taken into account and whether natural justice is afforded, those being the particular attacks on the discretion.  So we have filed a great deal of evidence that goes to that question.

	We submit that the essential issue for the Court this morning, given all of those areas of agreement, is accepting that the Court can conduct a trial in these matters if it wants to, why would it take that course in circumstances where, in relation to the large, very large majority of the live issues remaining in these proceedings, there is a court with concurrent jurisdiction, being the Federal Magistrates Court and if it agrees to transfer the matter to the Federal Court, which we imagine it would do in circumstances where both parties support that course of action, the Federal Court could conduct a trial into the issues which, as your Honour has heard from Ms Mortimer this morning, are likely to be contested.  There is likely to be cross‑examination, perhaps, of some scope in relation to the issues that bear upon the operation of section 189(3).

	The plaintiffs, as we apprehend it, submit that there are really two reasons why your Honour should not remit part of the matter.  First, they point to the fact that because the entirety of the matter cannot be remitted, there would be some splitting of the case and that seems to be advanced as a reason not to take that course.  As your Honour has already mentioned, partial remitters are not at all unknown in this Court and section 44 of the Judiciary Act expressly contemplates that parts of matters might be remitted.

	Here, if not the entire factual contest, at least the intense part of the factual contest concerns the 189(3) issue and that factual contest should, we submit - is a paradigm example of the kind of circumstance in which the Court might send part of a case that involves an intense factual conflict to a trial court to resolve that factual contest.

	The plaintiffs also point to matters that are said to demonstrate that it would be contrary to the interests of justice to remit just part of the matter and they point to matters such as the delay they say would follow, the potential for overlapping evidence and public importance of the issues that are raised in the case.  

	Just dealing first with the last of those questions, the public importance question, that, we submit, cuts both ways.  It suggests that it is entirely possible that if this matter is heard and determined by a single Justice in this Court, that an appeal would follow.  Of course, a single Justice who sits and hears the case then cannot participate in the resolution of the matter on an appeal.  Furthermore, there is not, in our submission, any difficulty with the Federal Court hearing and determining a matter of public importance.  That court does so routinely and can be subject to an appeal in the ordinary way if either of the parties consider that appropriate.  

	In terms of the asserted delays and overlapping evidence, we submit that there, your Honour, the critical point to bear in mind is that the only issue that would be left in this Court is the issue identified by your Honour relating to the Minister’s failure to exercise his non‑compellable powers under 195A and 197AB.  As your Honour notes, we have submitted that that part of the case can have no possible utility in circumstances where two of the plaintiffs have already been granted visas, two of them have received favourable merits assessments and in respect of the two plaintiffs who do not yet have visas, they clearly already have residence determinations, so the very power that it is said the Minister failed to exercise has, in fact, been exercised in favour of the plaintiffs.

	Now, Ms Mortimer said this morning there is nevertheless still utility in a declaration concerning whether or not the Minister’s past failure to exercise those powers was lawful, but she never identified what that utility is.  It cannot be an issue that goes to the legality of the detention of the plaintiffs during the period of 12 months when they were detained.  Your Honour heard extensive argument on this question on the interlocutory application in January and that detention was required by section 189(1) of the Act, absent an affirmative exercise of the power.

	So, even if it were possible for the plaintiffs to establish that the Minister should, or made some error in failing to exercise his non‑compellable powers at some earlier point in time, that would be a declaration that said nothing about the past legal rights of the plaintiffs.  So even if there is some utility in that point, it is a point that we submit is plainly very marginal when compared to the balance of the matters that are live in this proceeding which would be able to be dealt with following remittal.

	Finally, your Honour, and we submit perhaps most significantly, there is the fact that a trial in this Court would necessarily impact upon the other constitutional appellate duties of this Court, such that the case for this Court agreeing to determine a trial involving factual disputes would have to be, in our submission, compelling before the Court should accede to that course of action.

	Ms Mortimer mentioned several times that in our submissions we had said a trial of several days, in fact what we said in paragraph 3 of our submission is a trial of at least several days.  The balance of the submissions makes it clear that our position, as we appear before the Court today, is that we just do not know how wide the ambit of the factual dispute is because the form in which the plaintiffs have chosen to file their evidence is such that we cannot determine the extent to which they actually disagree with the facts that we put forward or whether there are simply some additional facts that need to be proved and if there are we are not sure what those additional facts are.  So we anticipate a trial of at least several days involving cross‑examination of at least the principal deponents from the defendants’ side, but how much further the factual dispute will go cannot be accurately predicted as the evidence presently stands.

	It seems clear, in our submission, that there is a fair way to go in terms of getting the evidence into a form which would be suitable for a trial and that that will require some management and, in our respectful submission, there is no reason why this Court should spend its time managing the matter for trial in circumstances where the Federal Court could appropriately do that.

	Your Honour, we have addressed in writing the operation of section 494AA of the Act.  I do not propose to say anything more about it unless your Honour would be assisted by submissions.

HER HONOUR:   No, thank you.

MR DONAGHUE:   But we submit that there is no barrier to the remittal of the identified parts of the proceeding involving challenges to 189(3) and (1) detention.  If the Court pleases, those are my submissions.

HER HONOUR:   Thank you.  Yes, Ms Mortimer.

MS MORTIMER:   I have nothing in reply, your Honour.

HER HONOUR:   Orders have been sought today for the future conduct of four related proceedings concerning four persons of Afghani nationality.  The background to the four proceedings is set out in this Court’s ruling dated 19 January 2011.  Further, on 24 January 2011, orders were made in other related proceedings – M168, M170, M172 and M174 – standing those matters out of the list pending the determination of the matters which are before the Court today.
	
	Amended applications for an order to show cause dated 8 April 2011, filed in the four proceedings, make claims and seek relief in respect of three matters involving certain provisions of the Migration Act 1958 (Cth) (“the Act”):  (1), an initial detention decision; (2), ongoing detention and, (3), alleged failures by the Minister to exercise ministerial powers which would result in release from detention.  

	The Court has been informed that the parties are agreed that it is not appropriate to proceed in this Court on the basis of an agreed statement of facts.  It is convenient to set out relevant paragraphs of the prayer for relief, taking as the example, the amended application in M169 of 2010.  Each plaintiff seeks orders in the following form although the date of the detention order varies for each plaintiff:

“2.	Certiorari or an order quashing or setting aside the Detention Decision.

3.	Prohibition or an injunction prohibiting the Defendants from acting upon or giving effect to or proceeding further upon the Detention Decision.

4.	A declaration that the detention of the plaintiff:

(a)	on Christmas Island between 16 February 2010 and about 26 March 2010; and 

(b) 	at the Melbourne Immigration Transit Accommodation in Broadmeadows, Melbourne since about 26 March 2010;

was and is unlawful.

5.	Habeas corpus or an order requiring the release of the plaintiff from detention.

6.	A declaration that the First Defendant failed to consider and determine according to law whether to grant a visa to the plaintiff under section 195A of the Migration Act 1958 (Cth) or to grant a residence determination to the plaintiff under section 197AB of the Migration Act 1958 (Cth).”

	The detention decision referred to in the prayer for relief is the decision made in early 2010 in respect of each plaintiff to detain him on Christmas Island being an “excised offshore place” under section 189(3) of the Act.  

	To date, the plaintiffs have filed seven affidavits in support of their application for final relief and have foreshadowed an intention to file three further affidavits in the proceedings.  To date, the defendants have filed five affidavits which contain numerous exhibits.  The plaintiffs have indicated an intention to cross‑examine some of the deponents.

	It appears clear that there are significant factual matters in dispute between the parties and the parties are agreed that a trial of these matters is likely to take at least several days.  The parties are also agreed that those parts of each of the proceedings which concern the initial detention decision, and continuing detention, are subject to concurrent jurisdiction in the Federal Magistrates Court and this Court (sections 476B(1) and (2)) whilst only this Court has jurisdiction in respect of decisions of the Minister not to exercise ministerial powers under sections 195A or 197AB (sections 474(7), 476(2)(d)).  Section 476B(4) of the Act provides that the limitations on the ordinary remittal power of this Court in section 476B have effect despite section 44 of the Judiciary Act 1903 (Cth).

	In summary, this Court can remit a matter that relates to a migration decision defined in section 5 of the Act only to the Federal Magistrates Court and only in a case where the Federal Magistrates Court would otherwise have jurisdiction.  It must also be noted that section 474(7) of the Act provides that the relevant ministerial decisions about which complaint is made are “privative clause decisions” in respect of which the Federal Magistrates Court has no jurisdiction.

	In this context, the provisions of section 494AA of the Act, which do not expressly exclude section 44 of the Judiciary Act, have also been noted.  That section would not appear to affect proceedings commenced in the original jurisdiction of this Court.

	The plaintiffs have submitted that the whole of the four proceedings should be tried before a single Justice of this Court and that it would be inappropriate, unfair and contrary to the interests of justice to split the proceedings between the High Court and the Federal Magistrates Court.  Inevitable strain or burden on the plaintiffs and inevitable delay are relied upon.  

	The procedure (section 77A to section 77D of the Judiciary Act) and earlier precedents for the conduct of trials in the exercise of the Court’s original jurisdiction are also relied on.  Examples given of trials conducted by a single Justice of this Court occurred in circumstances where the workload of this Court was markedly different from the current workload of the Court.  The plaintiffs also rely on the public importance of the four cases.

	The defendants submit that there should be a remitter of so much of the four proceedings as may be heard in the Federal Magistrates Court.  It has been indicated to the Court that the defendants would support any application of the plaintiffs to transfer each matter from the Federal Magistrates Court to the Federal Court of Australia, which can deal with matters of public importance.  It is further submitted that the precise ambit of the factual disputes is not yet clear.  It is contended that those aspects of the proceedings which cannot be heard otherwise than in this Court could be stood out of the list pending the determination of the balance of the proceedings in the Federal Magistrates Court.

	Underpinning this submission is the fact that the Minister has already exercised powers under section 197AB of the Act in relation to the four plaintiffs.  Two of the plaintiffs have been granted protection visas and are no longer in detention.  The other two plaintiffs have been released into the community following determinations affecting them under section 197AB of the Act.  Each of those two plaintiffs has received favourable determinations on the merits of their applications for protection visas.

	To the extent that the amended applications seek prohibition or an injunction in respect of the initial detention decision (paragraph 3) habeas corpus or an order requiring the release of the plaintiffs from detention (paragraph 5) and declarations concerning failures to exercise non‑compellable ministerial powers under sections 195A and 197AB (paragraph 6) that relief must be viewed in the context that the Minister has exercised his powers to release all plaintiffs from the Melbourne Immigration Transit Accommodation in Broadmeadows in Melbourne.

	A question may now arise as to the continuing utility of the relief sought in paragraphs 3 and 6 of the amended applications, which puts into perspective the submission for the plaintiffs that it will be unfair to remit part of the proceedings.  The plaintiffs accept that the relief of habeas corpus in paragraph 5 may be rendered otiose.  On a remitter of part of the proceedings, liberty to apply can be reserved.

	Because there are factual disputes which make it impossible for the parties to proceed in this Court on an agreed statement of facts, it is neither appropriate nor in the interests of justice, either generally or in these particular cases, that a single Justice of this Court should conduct a trial of the entire four proceedings, particularly given the current workload of this Court.

	Accordingly, I make orders in each of the matters – M169, M171, M173 and M175 of 2010 - as follows:

1.	The plaintiff file and serve any further affidavits on which he intends to rely on or before 10 May 2011.

2.	The part of the matter that concerns the application for the relief identified in paragraphs 2 and 4 of the amended application for an order to show cause be remitted to the Federal Magistrates Court of Australia, Melbourne Registry, to be heard and determined subject to Part 25 of the High Court Rules 2004.

3.	The balance of the matter otherwise stand out of the list.

4.	The proceedings continue in the Federal Magistrates Court as if the steps already taken in the proceedings in this Court had been taken in that court.

5.	The Registrar of this Court forward to the proper officer of the Federal Magistrates Court photocopies of all documents filed in this Court.

6.	The costs of the proceedings to date, including costs of this order, are to be according to the scale applicable to proceedings in this Court and, thereafter, according to the scale applicable to the Federal Magistrates Court and in the discretion of the Federal Magistrates Court.

7.	Liberty to apply.

MS MORTIMER:   If your Honour pleases.

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   Adjourn the Court.

AT 10.17 AM THE MATTERS WERE CONCLUDED