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High Court of Australia Transcripts |
Last Updated: 27 June 2011
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M54 of 2011
B e t w e e n -
FIRST PLAINTIFF M54/2011
First Plaintiff
SECOND PLAINTIFF M54/2011
Second Plaintiff
THIRD PLAINTIFF M54/2011
Third Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
THE MANAGER, CONSTRUCTION CAMP ALTERNATIVE PLACE OF DETENTION, CHRISTMAS ISLAND
Third Defendant
GARRY FLEMING IN HIS CAPACITY AS FIRST ASSISTANT SECRETARY, BORDER SECURITY, REFUGEE AND INTERNATIONAL POLICY DIVISION
Fourth Defendant
Directions hearing
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 24 JUNE 2011, AT 10.15 AM
Copyright in the High Court of Australia
____________________
MR R.M. NIALL, SC: If it please the Court, I appear for the plaintiffs in the matter. (instructed by Allens Arthur Robinson Lawyers)
MR S.P. DONAGHUE: May it please the Court I appear for the first, second and fourth defendants. (instructed by Australian Government Solicitor)
HIS HONOUR: There is no appearance yet for the third defendant, there being a proposal to amend the title of the proceeding, is that right?
MR DONAGHUE: That is correct, yes. If that application is successful, I then appear for the third defendant.
HIS HONOUR: Yes. Well, then, Mr Niall, you are looking to amend the parties to alter the name of the third defendant to Regional Manager, Christmas Island? Is that the proper title?
MR NIALL: That is so, your Honour. Also, I have handed your Honour up a minute of proposed order, the first two of which orders - - -
HIS HONOUR: Yes, I have that, but before we deal with the – I see, the title of the fourth defendant.
MR NIALL: Yes, the second one simply removes the name in accordance with the rules which identify the office, not the name, and I understand both of those orders are not opposed, your Honour.
HIS HONOUR: Yes. Is that right?
MR DONAGHUE: That is right, your Honour.
HIS HONOUR: Yes. You may have leave in both those respects. Can your solicitors attend to the making of the necessary amendments, Mr Niall?
MR NIALL: Yes, your Honour.
HIS HONOUR: I take it then, Mr Donaghue, you appear for the third defendant as so identified?
MR DONAGHUE: I do, your Honour.
HIS HONOUR: Yes, thank you. So we need not trouble about questions of service and the like. Yes, Mr Niall.
MR NIALL: If your Honour pleases. This is the first return of the application for an order to show cause which essentially has two dimensions which I will identify in a moment, if I may. In our submission, those two dimensions raise issues of general importance and will not, as we currently apprehend it, turn on disputed questions of fact. The proposed directions would have the plaintiff complete their affidavit or evidentiary material and then the defendants put in some evidentiary material in order to determine whether that apprehension of disputed facts is accurate or not, but we currently apprehend that it is.
HIS HONOUR: You, on your side of the record, presently intend to put on more material?
MR NIALL: There is an affidavit from the third plaintiff which has been sworn. She is on Christmas Island, your Honour, and there has been a little bit of logistics in relation to that. So that will certainly be filed. We do not currently apprehend that there is likely to be any other affidavit material in - - -
HIS HONOUR: How soon can the affidavit from the third plaintiff be available in Australia for filing?
MR NIALL: We would anticipate 72 hours or something of that order, your Honour. I am not quite sure of the logistics of that. It has been - - -
HIS HONOUR: Nor am I, Mr Niall, nor am I.
MR NIALL: It has been sworn and I have been provided with a copy. So I am not sure how long – the original, I am told, is in the mail, your Honour, so not very long. We will provide a copy of the executed affidavit to the defendants. We can do that immediately.
HIS HONOUR: Yes. There may be advantage. I do not say that you have to, but there may well be evident advantage if a copy of the document were made available.
MR NIALL: That would leave the defendants to put on evidence to see what they say. Although we have asked for 21 July, your Honour might have seen from the submissions for the defendants that they would seek to 4 August, somewhat unusually, not in order to obtain evidence of currently existing facts, but because, as we understand it, the facts might change during that period of time. There might be more utility in waiting until those facts crystallise.
HIS HONOUR: We need to bear in mind that there is an allegation of unlawful detention, there is a claim for habeas.
MR NIALL: That is so, your Honour.
HIS HONOUR: On their own, those two considerations would ordinarily suggest moving the matter along promptly.
MR NIALL: Yes, your Honour. Can I identify the two dimensions?
HIS HONOUR: Yes, please.
MR NIALL: Because in some ways the positions are alternative. The first one is the processing of claims for protection and the second general aspect or dimension deals with detention. In relation to the first of those, your Honour, the position is that we do not apprehend any factual dispute. The father, who is the first plaintiff, has been and will continue to be, as we understand it, assessed for the purposes of determining whether or not the Minister will exercise the powers in section 46A or section 195A and that process has continued to the point where he has been found under the processes to be a person to whom Australia owes protection obligations.
HIS HONOUR: On what basis?
MR NIALL: On the basis that should he be returned to Iran, he would face a well-founded fear of persecution.
HIS HONOUR: For which Convention reason or reasons is the real question.
MR NIALL: The social group and political opinion. I am just calling it obviously imputed political opinion or actual political opinion. The finding of the independent reviewer was that, should he be returned, there was a real chance that he would be subject to serious harm as will amount to persecution either for reasons of ethnicity, being a Faili Kurd of Iraqi origins, or for political opinion imputed to him. Part of that finding was on the basis that he would be an undocumented returnee who was a Faili Kurd of Iraqi origins who departed on a false Iranian passport. Now, that process is continuing, that is, the 46A and 195A process is continuing, and it has not been suggested that it will be continuing anything in a way that is different to that considered by the Court in M61.
HIS HONOUR: Just in respect of those matters which affect particularly the first plaintiff, is it the plaintiff’s case that those matters affect the second and third plaintiffs?
MR NIALL: Yes, your Honour.
HIS HONOUR: In particular, you referred, for example, to the first plaintiff having departed Iran on a false Iranian passport. Is it the plaintiff’s case that those circumstances obtain in relation to either or both of the second and third plaintiffs?
MR NIALL: The principle - the second and third plaintiffs has two aspects. One of course is protection obligations are owed as a member of the family unit and also protection obligations are owed, principally - - -
HIS HONOUR: Just so.
MR NIALL: - - - on the basis of themselves or particularly the mother being a refugee on the basis of her ethnicity. Now, in relation to the position of the defendants, that is, as communicated to us on the state of the evidence, is that the position has been taken that assessment of protection obligations will not commence - - -
HIS HONOUR: I understand that. My question was directed to whether it is the plaintiff’s case that the circumstances which obtained in relation to the first-named plaintiff all obtain, some obtain, none obtain with respect to the second and third plaintiffs. Let me make plain the purpose for my question. It seemed to me, on reading the papers, that there were various questions or issues that may be thought to arise and I just need to understand better than I presently do whether they do arise or may arise because unless I know that, I cannot know how this thing should be put together as a matter of assembly for future dealing.
It seemed to me that a question that was touched on in the papers was that whether a finding which on your side of the record you say has been made that Australia owes protection obligations to the first plaintiff, the father, is a finding that (a) can, (b) should, (c) must either affect, which opens up a whole set of questions, affect how, or I perhaps misunderstand your case, but determine whether, as a matter of fact, Australia owes protection obligations to either or both of the second and third plaintiffs because, regardless of membership of the family unit, each has a well-founded fear of persecution for a Convention reason having regard to the findings that have been made.
Now, those sorts of issues are about, it seemed to me, as well also as issues about membership of family unit and what consequences followed from that. In amongst that there seemed to be a question, which I cannot yet quite grasp, which is, what, if any, significance is to be attached to the first-named plaintiff’s request that the second and third plaintiffs be joined into the process that he is undergoing at the moment. Now, I do not for the moment yet identify what legal question that presents except that possibly the power to detain or the power to remove and at the moment I am not yet certain, far from certain, whether these questions are alive and if they are alive, how the dots are all joined up. Do you follow me?
MR NIALL: I do, your Honour, and they do, and certainly we would say that the findings in relation to the father can and should be taken into account, leaving - - -
HIS HONOUR: That is two, if you eschew the third must.
MR NIALL: Leaving for one moment the must be taken into account in relation to an assessment of what I will call Article 1A protection obligations of the wife and infant son.
HIS HONOUR: Child.
MR NIALL: But the way that the statute is structured principally relieves the obligation to make that inquiry in relation to members of the family unit by identifying protection obligations to members of the family unit and the policy that was adopted in relation to the RSA specifically identifies membership of the family unit as an aspect of the investigation and - - -
HIS HONOUR: I understand that and I can recall reading that in connection with M61, but then that comes to the legal question, in effect, of so what.
MR NIALL: Because we identify through the prism firstly of the first
plaintiff, the father, that he was detained and his detention is for
the
purposes of the Minister making inquiries that the Minister identified, which
included not only his own claims, but those belonging
to the family. Now, what
we would be submitting is that he has a right or he has an interest in the sense
considered by the Court
in M61 to considering him as a member of the
family unit so that the issue in relation to the separation or the severability
of the father’s
claims from the wife and child’s claims on which the
Minister depends, we say on proper legal analysis is not there, that they
are an
inseverable element of the one.
In addition, it necessarily follows,
to the extent that one examines the Article 1A considerations of the child
and his mother, they
are necessarily informed by the consideration that had
already been undertaken in relation to the father. So whether one looks at
it
as an inseverable family unit or whether one looks at it as consideration of
their own claims to be Article 1A refugees, the premise
on which the
Minister is proceeding, that there will not be a commencement of any assessment,
is a false one and falsified by the
provisions of the Act itself which
identifies right at the linchpin in section 36 through to the regulations
made under it that a
criterion is either protection obligations under the
Convention or being a member of the family unit.
HIS HONOUR: The reason I raise these points with you, Mr Niall, is first and primarily to see if I can identify what kinds of issue are in play because that will plainly affect whether I should be working towards remitter or I should be working towards stated case or some other form of getting the questions to a Full Court. But it occurs to me that the Act in some respects treats members of the family unit as having what I might inaccurately call dependent claims.
MR NIALL: Yes, your Honour.
HIS HONOUR: But I had read perhaps too much into your document as saying that not only are they a dependent claim, they have a primary claim, that is, plaintiffs two and three have a primary claim.
MR NIALL: They do, your Honour.
HIS HONOUR: A primary claim which, as a matter of fact – you need not answer this, perhaps better that you do not – but it seemed to me that it was a primary claim that seemed to be being supported by pointing at what was done with the father and said, well, therefore you can, you should or you must reach a conclusion about the wife and child. Now, those are questions for later debate and you are going to have to see whether that arises, but according to whether the claim is primary claim or dependent claim, you have a bifurcation of inquiry, but you come back at some point in your claims, do you not, at least as I understood it, to the proposition that the power to remove under 198A is limited?
MR NIALL: Yes, your Honour.
HIS HONOUR: That seemed to be in paragraph 17.1 of your initiating document. Now, I had understood the relevant limitation asserted to be at its most general level a limitation said to be a hedging about of 198A by reference to either or both of Australia’s international obligations or the provisions of the Act dealing with protection visas.
MR NIALL: Both, your Honour, but the former, the international obligations, through the incorporation in the Act. So the first dimension which I was endeavouring to explain to your Honour was the fundamental inseverability, both as a dependent claim and as a primary claim from the husband, which meant that there is an error in relation to that approach. The second dimension of the claim is that which your Honour has just raised with me which deals with the significance.
Now, if the Minister says they are severable and discrete, that then puts removal immediately in play and that then - the current state of the evidence is that the mother and her child have not been told when, where, under what power and in what conditions they will be removed from and to and that, as we understand it, is what the evidence of the Commonwealth will go to. But one thing we do contend is that there would be no power under the Act to remove someone in the position of those two plaintiffs other than via the protections afforded by 198A and we say that that is a development or a consequence of the holding of the court in relation to the interrelated structure between 46A and 198A fundamentally dealing with the proposition that where you have people making claims for protection obligations, primary refugees, but also, we would submit, where you are dependent, and second and third fall into both categories, the legislative scheme will either be an internal processing via the route of 46A or an external processing by the protections of 198A, but no alternative.
HIS HONOUR: That seems to be, does it, a reading of 198A that would limit the power to remove in one of a number of different ways perhaps, or all of a number of different ways seem to be on the table - either a limitation on the power to remove at all being there may be no removal of, what - the person to whom Australia in fact owes protection obligations or a person with an undetermined claim to protection, or both?
MR NIALL: Both, your Honour.
HIS HONOUR: That is removal from. The other limb that seems to be about is removal to.
MR NIALL: So the power to remove is there, but what - - -
HIS HONOUR: But removal to a place - - -
MR NIALL: Is qualified.
HIS HONOUR: And, what, to – 198A - - -
MR NIALL: Declared country.
HIS HONOUR: Declared countries, is it 198A?
MR NIALL: Yes, your Honour, 198A, which identifies the country. The Minister makes a declaration having regard to what we would submit would be the protection – the content.
HIS HONOUR: Yes.
MR NIALL: That leaves the circle complete in relation to protection obligations.
HIS HONOUR: Can I just back up and make sure I understand that.
MR NIALL: Yes, your Honour.
HIS HONOUR: The asserted limitations are limitations on removal from Australia. Alternative – perhaps cumulative and alternative characterisations are given of that either as persons to whom Australia in fact owes protection obligations or, perhaps and, persons with undetermined claims to protection and then removal to cannot – those persons in either class you say cannot be removed except to a declared place?
MR NIALL: That is so, your Honour.
HIS HONOUR: Is that the essence of the argument?
MR NIALL: That is the essence, your Honour. It is a constraint.
HIS HONOUR: Yes, I see.
MR NIALL: Now, we do not know, for example – we apprehend that the Minister does not – it would not accept or accede to that constraint, but we do not know, for example, whether it is intended to remove the second and third plaintiffs to a declared country or not, but at the present state of the evidence, if it appeared that there is no declared country to where they could be presently sent and - - -
HIS HONOUR: These are matters on the Minister’s side, I suspect.
MR NIALL: Yes, your Honour.
HIS HONOUR: I presume the Minister will say there is no limitation of the kind that you assert.
MR NIALL: Yes, your Honour.
HIS HONOUR: That is step one. Then we get to steps two and three perhaps if, but only if - - -
MR NIALL: That is so, and step one will not involve any disputed questions of fact, but important questions of principle, we would respectfully submit.
HIS HONOUR: There is also in the papers reference to the fact that we have a young child.
MR NIALL: Yes, your Honour.
HIS HONOUR: The third plaintiff is a young child. What is the point that - the legal point that it is sought to agitate about that? I see what section 4AA says, I understand what it says, but what is the legal point that then emerges?
MR NIALL: On our primary case the processing of all three members of the family unit should continue and the Minister would then have to take into account, while that processing continue, the strictures of 4AA and the facilities in 197AB and cognate provisions which provide for residency determinations which enables people to live in the community but still within the strictures of the Act. Now, at the present position, your Honour, there is no claim for interlocutory release from detention. The position is that the factual matrix in relation to the second and third needs to be fleshed out. We would like it to be fleshed out quickly so that we can then identify the propositions for which we contend.
But our primary case would be that the detention, subject to the Minister’s powers to alleviate the burdens of detention and movement, the detention would be lawful. The premise of M61, of course, was the detention was lawful and here we would see that the three members of the family are in the same position but that the Minister has powers to alleviate that burden which are non-compellable and do not currently, as the proceeding is framed, put forward a claim that there has been unlawful detention of a child by reference to those provisions. But, of course, as time goes on, those powers become more significant.
HIS HONOUR: But if I presently approach the preparation of the case on the footing that the legal issues that are raised are those that we earlier discussed and that there is not yet, you would say, a separate legal issue raised or presented by the fact of detention of the child, am I right to do so?
MR NIALL: That is so, your Honour. So that the two dimensions, the processing dimension and the removal dimension, do not currently put in play the lawfulness of the immediate detention of the child, although inevitably if the factual finding is delayed and there is no consideration by the Minister of the statutory mandate in relation to children, then, for our part, we would need to revisit that, but at present, your Honour, we are not asking the Court to - - -
HIS HONOUR: I understand that, but those minatory utterances can be made privately to the Minister, I think, rather than here.
MR NIALL: If your Honour pleases.
HIS HONOUR: Yes.
MR NIALL: So the current position, your Honour, would be for the Minister to put on some materials identifying, or at least be in a position to identify a basis greater than simply saying, “You are being detained for the purposes of removal”.
HIS HONOUR: How the Minister wishes to respond is entirely a matter for the Minister. Yes.
MR NIALL: But to give the Minister an opportunity to do that is what we would seek and then, when the evidentiary record that the parties seek to put before the Court is complete, perhaps, your Honour, the parties could then try and first primarily work with themselves - - -
HIS HONOUR: Mr Niall, I do not want this to be happening in sequence. As I said earlier in these proceedings, there are allegations of wrongful detention and there is a claim on, I assume, bona fide put on for habeas. I do not want the preparation of this to go sequentially without regard to where this is ending up. If there is no factual dispute between the parties,
then if the issues you say are raised are raised, it is better that they be determined and determined promptly.
MR NIALL: Yes, your Honour.
HIS HONOUR: Yes. Yes, perhaps if I hear from Mr Donaghue.
MR NIALL: If your Honour pleases.
MR DONAGHUE: Your Honour, we submit that there is at present some difficulty in determining how best to proceed with this matter, but that that difficulty is likely to be alleviated to some extent as the factual material that is relevant becomes clearer.
HIS HONOUR: As at present advised, Mr Donaghue, bearing in mind the importance of that qualification, do you anticipate any factual controversy with the material that has presently been filed?
MR DONAGHUE: That has presently been filed?
HIS HONOUR: Just so.
MR DONAGHUE: No.
HIS HONOUR: When can the Minister put on the answering material?
MR DONAGHUE: Can I take that in stages, your Honour. As I understood Mr Niall’s submissions this morning, he put the claim of unlawful detention very much at the back end of the issues that he said were raised by the proceeding and as we understand why he does that, he does it because the primary claim that the plaintiffs are advancing is a claim that they are in the same position as persons who were the plaintiffs in M61, that is, that they are lawfully detained for the purpose of having their positions assessed under section 46A. If there is a dispute between us - - -
HIS HONOUR: That is a proposition which the Minister denies.
MR DONAGHUE: That is correct.
HIS HONOUR: The Minister asserts that the detention is not detention for the purpose of consideration of 46A power?
MR DONAGHUE: That is right. That the Minister asserts that the detention – the plaintiffs were detained under section 189(3), that their detention must continue pursuant to 196(1) and our submission is that the plaintiffs are detained for the purpose of removal.
HIS HONOUR: Their detention is for removal as soon as reasonably practicable.
MR DONAGHUE: That is correct, and the Minister’s position is that removal is not presently reasonably practicable, but when it becomes reasonably practicable, then it would follow under the Act that removal would occur. I am speaking there in relation to only the second and third plaintiff, your Honour.
HIS HONOUR: I understand. The plaintiffs tell us that they wish to put on an affidavit of the third plaintiff.
MR DONAGHUE: Yes.
HIS HONOUR: That can occur, as I understand it, within seven days. When can the Minister put on his material in answer?
MR DONAGHUE: Your Honour, I am not trying to avoid your Honour’s question, it was a long lead up, but if there is a live debate as to the validity of the discretionary decision to detain under section 189(3), which is a debate apparently raised by paragraph 14 of the application, that is a debate that raises issues as to the policy to detain that operates presently in relation to Christmas Island and as to the interaction of that policy with section 4AA of the Act and detention as a matter of last resort.
Those issues are the same in substance as issues raised in a proceeding that was in this Court under Justice Crennan’s management and in relation to which the Minister filed a substantial amount of evidence and the position was then reached between the parties that that evidence was contested, could not be resolved in this Court and the matter was remitted. We would anticipate that we would need to file a body of evidence of the same kind in this proceeding and that the same difficulty may arise unless that is not the matter that the plaintiff wishes to pursue as a part of their case, because the position that the Minister certainly took in that proceeding was that in order to assess the validity of it, the discretionary decision to detain, it was necessary to have an appreciation of the position on the ground in Christmas Island so that one could make a judgment as to whether that discretion had been properly exercised in the circumstances.
HIS HONOUR: Is it within the power of this Court to remit a matter as to part?
MR DONAGHUE: Yes.
HIS HONOUR: If issues of that kind were to emerge, it may be that there would be a remitter as to part. I do not bind myself to that conclusion, of course, but what of the other issues which are raised which seem not to require the kind of factual controversy to which you have just referred?
MR DONAGHUE: Yes. The other main area in which we presently anticipate that evidence might be required concerns the removal question. As I have submitted to your Honour, the Minister’s position is that the present detention is detention pending removal as soon as it is reasonably practicable. Mr Manne has filed an affidavit that raises Malaysia and points out that there have been government announcements early in May in relation to Malaysia that contemplated a final memorandum of understanding being entered into and points out that there is no declaration under section 198A in relation to Malaysia.
HIS HONOUR: Are those facts controverted?
MR DONAGHUE: Those facts are presently true, but there are - - -
HIS HONOUR: They are not controverted?
MR DONAGHUE: Well, they may be supplemented, your Honour, because there have been announcements by the Minister to the effect that negotiations are at very advanced stages - - -
HIS HONOUR: Be it so, Mr Donaghue, so what? What is the consequence for the disposition of this proceeding?
MR DONAGHUE: On the Minister’s case none, because - - -
HIS HONOUR: Sorry, on the Minister’s case none?
MR DONAGHUE: On the Minister’s case none, because the Minister’s position is that removal – whether or not – there is certainly no declaration in relation to Malaysia at present under section 198A and we would submit in those circumstances that those circumstances at least – and perhaps much more generally there is no qualification on the general obligation proposed by section 198 of the Act to remove as soon as that becomes reasonably practicable. So the difficulty, your Honour, is that there is an injunction seeking to prevent the exercise of that power and also an application seeking release, so there is some tension between those two forms of relief in the absence of a third step.
HIS HONOUR: Maybe, but there is also a deal of urgency to resolve these matters.
MR DONAGHUE: Your Honour, we of course accept that in an ordinary case a habeas application would merit speedy attention in this Court. We submit that the position is somewhat affected in this case by the fact that the plaintiffs’ primary position is that their detention in Australia should continue while they are assessed pursuant to the 46A regime.
HIS HONOUR: I must say to you, Mr Donaghue, I simply do not follow that proposition. You will need to either put it again or develop it if I am to follow it.
MR DONAGHUE: Your Honour, I will try it again.
HIS HONOUR: Please.
MR DONAGHUE: As we understand the primary relief sought, it is that the second and third plaintiffs be considered together with the first plaintiff pursuant to the 46A regime in the hope that what will ultimately occur is a lifting of the bar in an application for - - -
HIS HONOUR: I understand that.
MR DONAGHUE: As things presently stand, it is not put against us - - -
HIS HONOUR: Why does that lead to some need to delay the prosecution of the proceeding or to take a leisurely approach to the prosecution of the proceeding?
MR DONAGHUE: Your Honour, what it leads to is the fact that there is no – if that be the position, there is no present basis for an order releasing the plaintiffs from detention.
HIS HONOUR: That I understand. The fact is they remain in detention, they say you would have it on their primary case lawful detention, but they are in detention.
MR DONAGHUE: I accept that, your Honour.
HIS HONOUR: Therefore one would ordinarily say, get on with it and let us get this case determined.
MR DONAGHUE: The submission I am seeking to advance, your Honour, is that the lawfulness of the – ordinarily the reason one expedites a case of that kind is in order to bring unlawful detention to an end that - - -
HIS HONOUR: No. People are detained at the will of the State. Their detention may be lawful detention. You say it is entirely lawful detention. But their position should be resolved as soon as it can be. That detention is not to be prolonged more than is necessary.
MR DONAGHUE: Your Honour, I accept that that is so. My submission is that the end point of the detention will be determined by the decision of the Minister whether or not to lift the bar, not by the point in time at which the proceeding is heard in this Court.
HIS HONOUR: Sorry, would you put that again, Mr Donaghue. I am not sure that I heard it right. What was the proposition?
MR DONAGHUE: The proposition was that, as I understand the case, if the plaintiff were to succeed, then the order of the Court would not be an order for release. It would be an order that the Minister consider the second and the third plaintiffs, together with the first plaintiff, under section 48A and only at the point where that then occurred and if the bar was lifted a visa was granted would release from detention further. That is my understanding of the way that the plaintiffs presently put their case. None of that - - -
HIS HONOUR: I return to my question, when can the Minister put on his material in answer? Why can it not be put on within 14 days after the plaintiffs’ material is put on, reserving, if needs be, liberty to the Minister to supplement that material in respect of the circumstances attending the detention of a minor?
MR DONAGHUE: Your Honour, the plaintiffs’ summons of 16 June sought our material by 21 July.
HIS HONOUR: Mr Donaghue, we are misunderstanding each other. This is a directions hearing in which I am trying to manage this case. I am trying to manage this case with a view to the prompt determination of the issues that arise. I understand the plaintiffs may have said one thing. My question was other.
MR DONAGHUE: I apologise, your Honour. I raise that because my instructions were connected to that - - -
HIS HONOUR: No doubt.
MR DONAGHUE: If we leave aside the question of evidence relating to the detention questions in Christmas Island, then I would not anticipate – I think your Honour put to me two weeks of the plaintiffs’ date. We can certainly file a body of material answering by then, reserving leave, as your Honour said, to supplement if that becomes necessary, in particular by reason of subsequent events. As your Honour would recall from other cases involving removal, often these cases do involve considerations of removal to where, and that is a topic that may be affected by developments between now and when this matter next comes before the Court.
HIS HONOUR: Yes.
MR DONAGHUE: If it is anticipated that evidence on the detention aspects is required, I am less confident that two weeks is feasible, but as your Honour has noted and as we have put in our submissions, we had anticipated that the question of remittal may be able to be considered and possible remittal in part. We do not contend that – it may well be the case that it is possible to isolate some issues that could appropriately proceed by way of stated special case.
HIS HONOUR: If the issues of law that arise include some or any of the issues which I have attempted to tease out in the course of discussion with Mr Niall, it would seem that those are issues which may be appropriate to go to a Full Court of this Court.
MR DONAGHUE: I accept that, your Honour.
HIS HONOUR: I said that I was anxious that the parties not deal with this matter sequentially, that is, I am anxious that the parties give consideration at the earliest time to whether it appears then likely that questions can or should be reserved for a Full Court and if they can or should, upon what basis that would occur. That is, when we come back I would expect the parties to have formed views about whether questions can go to a Full Court. I would expect them to have formed views about the material that it would be necessary to have in the form of a case before a Full Court. I would not wish to have it said then that those were questions that had not by then received consideration.
MR DONAGHUE: Your Honour, for my part I am confident that we can engage in fruitful discussions with our friends. Both of us were involved in M61 and I anticipate that it may well be possible to identify at least some of the areas that your Honour has discussed with Mr Niall this morning.
HIS HONOUR: The fact is I look at the calendar and we have 10 sitting weeks of the Court left this year. Fixtures have been made for many of those weeks, not all of them, but if this issue is to go to a Full Court, parties are going to have to move and move promptly during the month of July, perhaps early into the month of August, but not very, to get this thing in shape to do it.
Now, I am presently minded to bring the parties back some time during the week of 18 July, perhaps towards the end of that week. My present inclination is to say to the plaintiffs that they have seven days to put on their further material, if any, to say to the Minister that the Minister then has a further 14 days, which would take us to 15 July, but reserving the Minister liberty to supplement that material with respect to any issue of the lawfulness of detention of a minor. That I think may sufficiently encompass the issues of the kind we have been discussing, may it not, Mr Donaghue?
MR DONAGHUE: If your Honour would be prepared to extend that liberty to embrace supplementary material concerning possible destination countries of removal, that may be of assistance.
HIS HONOUR: I am not minded to do that at the moment, Mr Donaghue. You may apply – again, of course, if facts change, facts change and the Court will not determine matters on the basis of artificial facts, but you may apply on 15 July.
MR DONAGHUE: Thank you, your Honour.
HIS HONOUR: We will know better then what the then state of play may be.
MR DONAGHUE: Yes.
HIS HONOUR: I note, of course, that you refer to the possibility of events changing. If I were to bring you back, as I said, in the week of the 18th, towards the end perhaps, Thursday, 21 July, would that be convenient to counsel?
MR DONAGHUE: It would to me, your Honour.
MR NIALL: Yes, your Honour.
HIS HONOUR: Yes, 9.30 or such other time as may be fixed in Melbourne.
MR DONAGHUE: Yes, your Honour.
HIS HONOUR: If the costs of today were costs in the proceeding. What other direction, if any, need I give?
MR NIALL: None for our part.
MR DONAGHUE: None for our part, your Honour.
HIS HONOUR: Yes. There will be directions as follows:
MR NIALL: If your Honour pleases.
MR DONAGHUE: If your Honour pleases.
HIS HONOUR: Adjourn the Court.
AT 11.02 AM THE MATTER WAS ADJOURNED
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