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High Court of Australia Transcripts |
Last Updated: 31 May 2012
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M47 of 2012
B e t w e e n -
PLAINTIFF M47/2012
Plaintiff
and
DIRECTOR GENERAL OF SECURITY
First Defendant
THE OFFICER IN CHARGE, MELBOURNE IMMIGRATION TRANSIT ACCOMMODATION
Second Defendant
SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Third Defendant
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Fourth Defendant
COMMONWEALTH OF AUSTRALIA
Fifth Defendant
Office of the Registry
Sydney No S138 of 2012
B e t w e e n -
PLAINTIFF S138/2012
Plaintiff
and
AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION
First Defendant
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Second Defendant
COMMONWEALTH OF AUSTRALIA
Third Defendant
Applications for an order to show cause
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO LINK TO MELBOURNE
ON WEDNESDAY, 30 MAY 2012, AT 11.00 AM
Copyright in the High Court of Australia
MR R.M. NIALL, SC: If your Honour pleases, I appear with MS K.L. WALKER and MR M.P. COSTELLO for the plaintiff M47/2012. (instructed by Allens Lawyers)
MR S.P. DONAGHUE, SC: If your Honour pleases, I appear with MR C.J. HORAN and MR N.M. WOOD on behalf of all defendants. (instructed by Australian Government Solicitor)
MS D.S. MORTIMER, SC: If the Court pleases, I appear on behalf of the Australian Human Rights Commission. The Commission proposes to seek leave to intervene in one or both proceedings, depending on how the Court decides the matter should proceed. (instructed by Australian Human Rights Commission)
HIS HONOUR: Is it that you seek to be heard at all in this morning’s proceedings?
MS MORTIMER: No, your Honour. We simply seek to inform the Court of the Commission’s intention.
HIS HONOUR: Thank you, Ms Mortimer.
MS MORTIMER: If the Court pleases.
HIS HONOUR: Yes, Mr Niall.
MR NIALL: If your Honour pleases. Can I firstly inform your Honour as to where the parties have got to. Yesterday, in accordance with your Honour’s direction, we served a draft special case on the defendants and we have been engaged with the defendants since your Honour has last had the matter before your Honour. The position is that a draft special case has been prepared between the parties and we are confident that that can be resolved to enable a special case to be filed on Friday of this week. There is a couple of, in the scheme of things, minor issues which deal with a couple of issues that the parties have been in discussion with and we just have not been able to finally agree on a form of words and dealing with a couple of issues, but both Dr Donaghue and I are confident that we will be in a position to file a special case on Friday of this week.
HIS HONOUR: Are you able to say what questions that case will raise?
MR NIALL: Yes, your Honour. I beg your Honour’s pardon, there was some miscommunication between my friend and I. We had intended to send your Honour a copy of the draft as it is now in a heavily finalised state, but due to a miscommunication that did not occur, your Honour, but can I identify what the questions might be?
HIS HONOUR: Yes.
MR NIALL: The first of the questions reserved is:
In furnishing the 2012 assessment, did the First Defendant fail to comply with the requirements of procedural fairness?
HIS HONOUR: Yes.
MR NIALL: The second is:
Does s 198 of the Migration Act 1958 (Cth) authorise the removal of a non-citizen:
2.1 to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
2.2 whom ASIO has assessed poses a direct or indirect risk to security.
HIS HONOUR: Is that removal at all or removal somewhere?
MR NIALL: It is:
to a country where the non-citizen does not have a well-founded fear of persecution for the purposes of Article 1A of the Refugees Convention as amended by the Refugees Protocol.
HIS HONOUR: Yes.
MR NIALL: The third question is:
Do ss 189 and 196 of the Migration Act 1958 (Cth) authorise the Plaintiff’s detention?
HIS HONOUR: Yes.
MR NIALL: The last is:
Who should pay the costs of the special case?
HIS HONOUR: Yes.
MR NIALL: They are the questions reserved. The first your Honour will see self-evidently relates to the lawfulness of the ASIO assessment in 2012.
HIS HONOUR: Before I came into Court I was given a copy affidavit, which I assume it is intended to file, sworn by the Director-General of Security on 30 May 2012. What is the position with that affidavit?
MR NIALL: The position is, your Honour, that the defendants would read it on the application in the Full Court and we would not seek to cross-examine the deponent.
HIS HONOUR: Where then would the facts, particularly I have in mind, of course, the facts deposed to in paragraph 4, fit with the determination of any question? That is, how does the tender of the evidence fit with the statement of a special case, because this is the parties’ case not the Court’s? A special case is stated by the parties, not by the Court.
MR NIALL: If your Honour pleases, that evidence goes to the question – the first question reserved – and it identifies the basis of the adverse assessment. It identifies three reasons why the assessment was made in relation to the plaintiff identified in paragraph 4a, paragraph b and paragraph c. Our contention is, having regard to that evidence which identifies the reasons for the assessment, and having identified the – and putting before the Court the record of interview between ASIO officers and the plaintiff, our contention will be that the plaintiff was denied procedural fairness in arriving at the decision to issue and furnish an adverse security assessment.
HIS HONOUR: Now, what I am concerned to identify is – or what I am concerned to guard against is that there breaks out in the Full Court some evidentiary dispute. If this thing is to end up in a Full Court, and I see the power of the reasons that say it should, it has to get there in a form where no disputes as to fact remain alive and running before the Full Court because what are we to do with them? If the parties state a special case posing questions then that is the parties’ case, those are the facts on which the parties want the questions answered and the Court answers them or not according to what is the appropriate outcome, hence my reference to the importance of the fact that special cases are things that the parties do.
It is not me as a Justice stating a case for the opinion of the Court. All I am concerned about ultimately is the avoidance of that late developing fight about facts and can I say to you that since the last hearing I have, of course, gone back and looked at what the Full Court of the Federal Court did in Leghaei. I have looked at what, I think most recently, Justice Tracey did as a single judge in Sagar v O’Sullivan [2011] FCA 182; 193 FCR 311 and what happened in those cases provokes the question I present. Now, maybe it is not a question to which you can give any answer today, but that is the question that the parties are ultimately going to find themselves absolutely pinned to before a special case goes in.
MR NIALL: Yes, your Honour. Can I endeavour to answer the question this way, your Honour. There are significant differences in the issues of Sagar and Leghaei in this sense, that here we have a transcript of a record of interview between ASIO and the plaintiff where various questions were asked and issues canvassed. We now know that the basis of the assessment made is set out in paragraphs 4a to c.
HIS HONOUR: Well, on one view it is the assessment.
MR NIALL: It is the assessment, if your Honour pleases. That is the factual context in which we advance the contention that the plaintiff was denied a fair opportunity in discharge of the obligation which everyone at the Bar table accepts was owing.
HIS HONOUR: Now - - -
MR NIALL: We do not anticipate – sorry, your Honour.
HIS HONOUR: Go on.
MR NIALL: We do not anticipate any factual dispute of the sort that your Honour identified.
HIS HONOUR: But does it take us off down a path where the Commonwealth party’s answer is, “We gave as much natural justice as we could having regard to national security” where you would seek to challenge that proposition?
MR NIALL: I beg your Honour’s pardon, but we do not understand that proposition to be now put because the Director does not say in his affidavit that there was other material or other reasons which national security prevented us, that is ASIO, from putting to the plaintiff. So that is quite a different case to the case of Sagar, so we do not understand and nor in the draft special case, which unfortunately your Honour does not have, but in neither that nor the affidavit is it identified any fact or material that ASIO was precluded from disclosing to the applicant. So it simply does not arise in this case.
Now, that is how we understand it, your Honour, so we do not understand how it could be given that the defendants do not identify that as a reason for not giving more information. We do not identify the same sort of issue that occupied Justices Sundberg - - -
HIS HONOUR: Very well.
MR NIALL: If your Honour pleases.
HIS HONOUR: I think, given where we are getting to, can your instructing solicitors ask the Registry in Melbourne to fax to my chambers now the draft special case and my chambers will arrange for it to be brought down to me in Court. But can we get on and do it now. I have to see this document.
MR NIALL: It is with the Registry in Canberra I am told, your Honour, and I can hand it to the Registrar. There was a miscommunication just before Court between me and my learned friend as to how it was to get to your Honour, but it is on - - -
HIS HONOUR: I would be surprised if it has come to Canberra. Canberra is pretty good at getting documents I need to me, but there we are.
MR NIALL: Well, we will take full responsibility for the fact that it is not before your Honour.
HIS HONOUR: Let us get it done. Now, Friday you say you expect to get to a landing on this?
MR NIALL: Yes, your Honour, to file it as a special case.
HIS HONOUR: Then what?
MR NIALL: To complete the directions would have the plaintiffs file submissions on 8 June, the defendants file submissions on 13 June and we put reply submissions on 15 June. Now, together with the special case filed on Friday, that is this Friday, 1 June, or indeed, it could be done tomorrow, the plaintiff would file an amended application. Now, the reasons for that are twofold, your Honour: to remove some of the things in the application which are no longer necessary to be part of the case and the second is to identify an argument that only arises, depending on how the Commonwealth puts their case about the words “reasonably practicable” in section 198.
It is the case, and we are not quite sure of the content that they seek to put on “reasonably practicable” at this stage, that is, how the parameters or the boundaries of that concept are to be determined, but it may get to the point that the Commonwealth’s construction effectively enables the Executive to determine the length of detention. If that is the case we submit that it would offend Chapter III in the manner identified by Justice Gummow in Al-Kateb at paragraph 140.
Now, we make it clear, your Honour, that we do not have as part of our case that sections 198, 189 or 196 are invalid. Our case is one of construction. But it may be that the Commonwealth puts that construction to the point of the boundary which Chapter III no longer permits. So it is entirely a defensive construction type constitutional issue and we will give 78B notices on Friday to that effect. But it is, we stress, your Honour, principally a question of construction. One of the boundaries of the construction will be the intersection of the Act with Chapter III.
HIS HONOUR: Yes.
MR NIALL: That is the purpose of filing an amended application, to make that clear and to tidy up things, but we do not anticipate that that leads us down a different path to the one identified for you on Monday.
HIS HONOUR: Yes. What estimate of time would you give for the duration of the case?
MR NIALL: One day, your Honour, perhaps going into the second day if just our case is on, and we appreciate there is another matter in your Honour’s list, but there would be a chance of it going over into the second day.
HIS HONOUR: Yes. Was there anything else that you wish to take up, Mr Niall?
MR NIALL: Your Honour, on Monday my learned friend raised with your Honour the rules and how they operate in relation to a habeas claim.
HIS HONOUR: Yes.
MR NIALL: Now, in our submission, the parties – that is, all the parties in the Court – would be assisted by the Commonwealth setting out in a short document – thinking in the order of a page also, by the end of this week, setting out the basis upon which they say the detention is made and why it continues to be for a lawful purpose just so that the Commonwealth can – given there will be an element of prediction in our case how the Commonwealth puts its case, so the Commonwealth can identify, in a short document, the parameters of the detention which they are currently keeping our client.
HIS HONOUR: Can I just understand that better? Is what you are asking that the Commonwealth state in writing the basis for detention of the plaintiff today, or at the date of the statement?
MR NIALL: Yes, your Honour, and that is not simply to say, well, 189 authorises it together with 196, but also to identify why in, very summary form, 198 remains available purpose for the continued detention of this person given his status.
HIS HONOUR: Well, I think you may need to formulate that quite precisely because it would seem to me that an available point of view – it may not be the only available point of view – is that the Commonwealth would state as its basis for detention, 189 – none of the events in 189, none of the terminating events in 189 having occurred. Now, that seems to be not quite what you have in mind. Now, if you have something more in mind, you are going to have to formulate the interrogatory quite carefully, I think.
MR NIALL: Yes, your Honour.
HIS HONOUR: But do not do it on your feet. Let us, perhaps, for the moment hear what Mr Donaghue says on behalf of the Commonwealth parties about where we are up to.
MR NIALL: Thank you, your Honour.
MR DONAGHUE: Your Honour, we agree with what Mr Niall has put to you about the state of preparation and do not anticipate any difficulty agreeing the special case and having it filed by Friday. One of the proposed attachments to the special case is the transcript of the security assessment interview that your Honour heard something about on Monday. I am instructed that we would seek, when the special case is filed, to have the Court order that upon the filing of the special case there be no public access to that attachment to the special case. If your Honour requires us to file some evidence in support of an application for an order of that kind then we will do so.
HIS HONOUR: Yes, you should. No such order will be made simply by consent. I think we need to know why it should be made.
MR DONAGHUE: All right. Well, your Honour, if we might have the Court’s leave to file an affidavit and a draft order that we would seek on that basis, together with the special case.
HIS HONOUR: Is it useful to bring it back on on Friday afternoon at which point you could have on your affidavit, you could have on your application, or am I jumping the gun? Is it better simply to have no further directions hearing leaving you to apply separately? What is the better course to follow?
MR DONAGHUE: Your Honour, it may be that the answer to that question depends upon what your Honour is proposing in relation to the other matter. If that is going to continue, then we may well need to come back before your Honour and in that event it would be useful to deal with this matter at the same time. Otherwise Friday afternoon would be convenient.
HIS HONOUR: But is it useful?
MR DONAGHUE: At some point it will be useful to come back before the Court, yes, whether on Friday afternoon or together with the other matter, one way or the other we would seek to do that, yes.
HIS HONOUR: Now, you heard what I said to Mr Niall about the need to avoid factual warfare breaking out between the parties in the Full Court and, in particular, my reference to issues of the kind that were agitated in Leghaei and later in the Justice Tracey case, Sagar. What do you say about those matters?
MR DONAGHUE: We agree that this is going forward on a quite different basis than the way that those matters did. The reason, as we apprehend that, is that in both of those matters the plaintiffs pressed to use the coercive processes of the Court to access the underlying documents and that elicited a public interest immunity dispute. That has not happened here by reason of the choice that the plaintiffs have made. We will seek to read the Director-General’s affidavit as part – both as it will go certainly to the procedural fairness point that Mr Niall articulated. It may also have a bearing, depending on how the arguments are developed by the plaintiff, on the issues your Honour was raising on Monday concerning Articles 32 and 33 of the Convention. So there may be a possible relevance of the evidence in that context as well. But if our friends are content for us to read that affidavit without cross-examination, then we do not how a factual dispute would arise.
HIS HONOUR: Right. You have heard also the discussion about the Commonwealth parties putting on a statement which would be in the nature, I think, of a rather amplified return that might have been made had a writ of habeas issued or order nisi been made for issue of a writ. Do you have any response to make to that yet or do you want to wait until the particular interrogatory is more precisely framed?
MR DONAGHUE: Your Honour, certainly we resist the general interrogatory that was foreshadowed. We have included in the special case a statement to this effect:
The Defendants contend, and the Plaintiff disputes, that the legal basis for that detention is ss 189 and 196 of the Act.
That is paragraph 27. Your Honour will then see that there are facts in paragraph 30 dealing with what I can summarise as the practicability of removal, or steps that have been taken for the purposes of removal. We are obviously on, for perfectly understandable reasons, a tight timetable in getting this matter ready and we submit that really we are going to be directed into a territory which will cut across the written submissions that need to be prepared for the Court on the basis of the facts in the special case and that our position is sufficiently clear from the special case so that we should not have an extra step added, particularly in the context of the other things that have to be done within a short period of time.
HIS HONOUR: Yes, thank you. Is there anything else that you need to take up?
MR DONAGHUE: No, your Honour. No, there is not.
HAYNE J: Thank you. Mr Niall.
MR NIALL: All perhaps we would seek, your Honour, is that the Commonwealth interests file on Friday a statement to this effect, that on the assumption that section 198(2) applies to the plaintiff, a statement as to why the defendants contend that is not now reasonably practicable to remove the plaintiff.
HIS HONOUR: What more will you get than what appears in the proposed draft, namely, we have approached countries X, Y, Z, countries X, Y, X have not. We have taken the further step of asking the plaintiff about relatives, there are none. What more are you going to get? Are we not diverting things down a blind gully?
MR NIALL: It is really the construction of the phrase “reasonably practicable”, but to isolate that question - - -
HIS HONOUR: Well, either the Commonwealth will do that in its submissions or it will fail to.
MR NIALL: Yes, your Honour.
HIS HONOUR: If it fails to, I assume you will say that something follows from that failure, but they will put on their subs and either their subs are ample and complete or they are not.
MR NIALL: Yes, your Honour, I think that is probably right.
HIS HONOUR: Yes.
MR NIALL: I am sorry, your Honour.
HIS HONOUR: No, go on.
MR NIALL: I was just going to summarise the directions, but it may not be suitable to do that.
HIS HONOUR: If I can perhaps indicate that, subject to anything that counsel may say as to the form, I would propose to make the following directions:
MR DONAGHUE: Your Honour, I should have mentioned on dates – I apologise, I forgot to do so – it is probably not really a relevant fact, but the Queen’s Birthday holiday falls on Monday, 11 June 2012, in the interval between dates. While I think it is probably not a very relevant fact, your Honour, if you could move the plaintiff’s submission date forward one day, that might assist, particularly given the position – yes, they have a bit longer than the defendants have, in any event, your Honour.
HIS HONOUR: That is why I was fixing 12 noon, Mr Donaghue, to allow you this extraordinary amount of leisure in which to review the papers.
MR DONAGHUE: Thank you, your Honour.
HIS HONOUR: All heart, Mr Donaghue.
That leaves unaddressed expressly this question of confidentiality orders. I will leave the Commonwealth parties to put on their summons and supporting material about that. It may be if the plaintiffs have an attitude to express about it, that that can be expressed in writing. It may be, I do not say it will be, that the summons might be determined on the papers in those circumstances, but let us see what the summons is and, more importantly, what the evidence in support of it is.
MR DONAGHUE: If the Court pleases.
MR NIALL: Your Honour, in relation to order 5, would your Honour also add “and any amended application” just so that I can get the application in order.
HIS HONOUR: Yes, of course. Order 5 should include the amended application.
MR NIALL: If your Honour pleases.
HIS HONOUR: Now, it would be of assistance, Mr Niall, if I could ask your side to remain in Court while the second matter is heard. I know that that is imposing on you, but it would be of assistance to me if you could be so kind as to do so.
MR NIALL: No, not at all, your Honour. Just before I resume my seat, I think Ms Mortimer wishes to address your Honour, but before my learned friend does that, at the risk temerity, is there advance on possible hearing dates of the matter?
HIS HONOUR: No, but there shortly will be. I would expect that we will be in a position to give a better indication, I would hope, during the day, but I cannot speak for the Court at the moment.
MR NIALL: If your Honour pleases.
HIS HONOUR: Ms Mortimer, do you want to be included in this direction timetable?
MS MORTIMER: Having said to your Honour that I did not wish to be heard further, I was wrong, of course. Yes, we do, your Honour, and it would seem to me that it would be appropriate that we be directed to comply with the timetable set for the plaintiffs, that we will file any affidavit and application for leave to intervene together with our submissions by 8 June 2012. Is that a convenient course for the Court?
HIS HONOUR: I think it should be done in that order, Ms Mortimer, but you would not have any right of reply, I think. It would simply be your application for leave to intervene, your affidavit in support and the submissions you would make if granted leave which should go on by 12 noon, 8 June 2012.
MS MORTIMER: If your Honour pleases.
HIS HONOUR: Yes, thank you. There will be directions in those terms. Call the second application in the list.
MR J.K. KIRK, SC: If it please the Court, I appear for the plaintiff in this matter. (instructed by King & Wood Mallesons)
MR S.P. DONAGHUE, SC: If it please the Court, I appear with MR C.J. HORAN and MR N.M. WOOD for the defendants. (instructed by Australian Government Solicitor)
MS D.S. MORTIMER, SC: If your Honour pleases, I appear for the Australian Human Rights Commission in this matter as well. (instructed by Australian Human Rights Commission)
HIS HONOUR: I am doing my best to ignore your presence in the courtroom, Ms Mortimer. Forgive me for doing so.
MS MORTIMER: If your Honour pleases.
HIS HONOUR: Yes, Mr Kirk.
MR KIRK: Thank you, your Honour. Your Honour should have received two written submissions filed on behalf of my client, one filed on Monday and one filed late yesterday, addressing the issues.
HIS HONOUR: Yes, I have those.
MR KIRK: Your Honour should also hopefully have received this morning some submissions by the Commonwealth in response to our submissions.
HIS HONOUR: That, I think, you may have the advantage of me. I am not sure that I - - -
MR KIRK: We have a spare copy, your Honour, and it advances them somewhat.
HIS HONOUR: Let me just be sure. Yes, sorry, I am in a blizzard of paper. Yes, I have seen these.
MR KIRK: If I can cut to the chase with respect to the Commonwealth’s submissions, it identifies – the Commonwealth and associated parties have identified four issues which are in dispute. We respectfully agree with the identification of the issues. The Commonwealth has raised a concern about the issue in relation to relief, which they deal with in paragraph 5 of the written submission, and without finally conceding it now, there may be something in what the Commonwealth says and that issue may go away.
The Commonwealth fairly acknowledges, and the defendants fairly acknowledge, that there are at least two additional aspects to this case beyond that in M47. First, they correctly note that in this case, the plaintiff would seek to put in issue the constitutional validity of section 189, and perhaps also 196, of the Migration Act, at least in their application to my client. Secondly, at the end of the written submissions in paragraph 9, they note in the last sentence that Counsel was:
instructed that this case also raises issues concerning the extent to which the further disclosure of information to the Plaintiff concerning the basis for the adverse assessment would have been consistent with the requirements of security of a kind not raised in Plaintiff M47.
Your Honour will also have gathered from our submissions that there are factual differences perhaps of some significance, perhaps not, between the two cases. In particular, in this case the plaintiff has only been given one bite at the cherry in terms of the security assessment, whereas in M47, as part of the settlement of the Federal Court proceedings, M47 was promised a meaningful opportunity to respond to allegations made against him. Now, I understand, of course, it is in dispute whether that was satisfied, but here there was no such promise, no such second bite of the cherry.
An additional factual difference is that my client has been assessed in Australia as a person to whom Australia owes protection obligations, whereas that has not actually been done in M47 although - - -
HIS HONOUR: Yes, it has. At least my understanding was in M47 he was assessed both by UNHCR and also I thought by Australian officials, but perhaps I am mistaken.
MR KIRK: I may be mistaken, in which case I apologise to the Court. There are two key reasons, in our respectful submission, beyond the obvious fact that my client is in detention, has been detained since nearly three years ago, beyond the obvious fact that Al-Kateb is going to be put in issue and that can only be done in this Court. There are two key additional reasons, in our respectful submission, why the Court might take the course of referring this matter to a Full Court as well.
First there is the significant facts, as acknowledged by the Commonwealth, that we would seek to put in issue the constitutional validity of the provisions I identified. If Al-Kateb is to be back on the table being reconsidered by the Full Court, it would be appropriate, in our respectful submission, that the full range of issues addressed in Al-Kateb and which are interrelated be back before the Court. Secondly, there are slightly different facts here of the kind acknowledged by the Commonwealth. There may be different features of the procedural fairness argument. That leads to a way in which the - - -
HIS HONOUR: What do you mean by that?
MR KIRK: The Commonwealth suggests there may be additional security concerns arising in this case not arising in the other case. Now, that leads to a point which your Honour raised on Monday, and which I would seek to put in this way, about the possible relationship between the procedural fairness argument and the Al-Kateb type argument, using that term if I may. At the procedural fairness argument, the argument is going to focus, as I understand it, on the content of the duty and the Commonwealth is likely to argue that the content is greatly reduced by reasons of the public interest in national security and so forth. We, of course, will counter that. But there will be some obvious force, to some extent, in the Commonwealth’s submissions and there will be an argument about that extent and that argument will be case specific because it will depend upon the particular circumstances.
The two sides of the case may be linked though in this way. If as in our case, in my client’s case, the only impediment to release of the plaintiff is the adverse security assessment and if the duty of procedural fairness is reduced so substantially by the competing public interests as to be almost nothing, in the way Justice Brennan spoke about in Kioa, the effect of that is that a person is being detained indefinitely, at least for the foreseeable future, based upon an executive assessment which in substance will be unreviewable. Now, certainly there will be formal rights of review, but where my client does not know the allegations put – the grounds of the allegations – then that is substantially unreviewable.
Now, that links into the constitutional argument that if the duty is so constrained as a matter of common law and statutory construction, then one is left with the situation that through an executive assessment a man is detained indefinitely. In that light, first it illustrates the importance, in our respectful submission, of the constitutional issues being squarely raised and on the table and, secondly, the facts of this particular case present, in our respectful submission, an appropriate vehicle for that aspect of the argument to be dealt with.
We understand from the Commonwealth’s written submissions that their perspective, subject of course to the Court’s view, is that they do not oppose the matter being referred as well. I acknowledge, with respect, your Honour, it is somewhat unusual to refer two special cases for hearing at the same time.
HIS HONOUR: The bottom line for me, Mr Kirk, is what more do we get if we put in two. We are dealing with a truncated timetable where obviously there will be a need to dispose of it as promptly as may be. You have emphasised, as I understand what you are telling me, that you would, or this plaintiff would, put the constitutional issue at the forefront, or at least as one of the important elements, whereas I understand Mr Niall’s client’s position is that primarily you arrive at an answer he says favours his client by a process of construction and he would say, well, if you cannot get there by construction, then and only then do you get to the constitutional point. But are we not in a position where the constitutional point is going to be on the table anyway?
MR KIRK: Well, it may be, it may not be, but I do - - -
HIS HONOUR: But it comes off the table if but only if by construction one can get to a conclusion that favours the plaintiff.
MR KIRK: That may well be right, with great respect, your Honour. That said, as I understand the way my learned friend, Mr Niall, has articulated it, I am not sure his variant into the constitutional argument is going to be quite along the same lines as the types of argument we would be proposing to run in that, first, as your Honour has indicated, we will be putting front and centre the Chapter III type argument, but, secondly, we will be running that particular variant which may be specific to the facts of this case where it may be, because of the matters the Commonwealth refers to in paragraph 9, we can be told even less because of the national security concerns than Plaintiff M47.
HIS HONOUR: Can I just follow that a little further out because I think it may be quite important. Let it be assumed, and I know I am speculating, let it be assumed that the Commonwealth puts on material that says we have told this plaintiff as much as we can consistent with security requirements. Is that fact going to be controverted or is the argument going to go ahead on the footing, well, the Commonwealth says it, we accept that is the position, let us go ahead. Now, if it is going to be controverted, then this is single justice material.
MR KIRK: Indeed, your Honour. No, I understand the way the argument would likely proceed is – and this will have to be dealt with in the special case in the way that we could not deal with – first, the Commonwealth would want to say this is what occurred at the interviews back in 2009 and these are the questions put, fair enough that that is disclosed. Secondly, they will want to say, presumably, that for reasons of national security we could not tell him any more and it may well be, presumably, there will be an affidavit or something from the Director-General. It may even be that some part of that is confidential, but that is very much like a public interest immunity argument. There would be no right to cross-examine generally on a public interest immunity and, without completely tying my hands, I think it most unlikely that we would want to challenge that because, in a sense, it actually feeds in as an integer of the constitutional argument to say, well, it is all very well you saying national security and playing the trump card, but that means a man is detained in these circumstances, that, in effect, executive determination.
HIS HONOUR: Therefore, is that question not going to be a question that has to fall for consideration in M47 both as to construction – and if you can separate construction and the constitutional issue, which itself is a premise I am not immediately accepting, would one not have to confront the fact that whether in this case or in M47 or in an hypothetical case there may be circumstances where the applicant for a protection visa cannot be told anything of why there is an adverse security assessment beyond the fact that you are judged to be a direct or indirect risk, et cetera? Now, that squarely raises the question, does it not?
MR KIRK: Save for this, your Honour, that the facts being different or potentially different in the way the Commonwealth has identified, there having been perhaps a different degree of disclosure already to the two plaintiffs, because it appears there may have been, if that is so, in that case – and, thirdly, given that we would certainly not be arguing for wholesale invalidity, it is going to be reading down matter, it may be that the Court in M47 would get to a position of saying, well, on the facts of this case, given this level of disclosure, there is no constitutional issue, but in a more extreme case, which does not arise in M47, we will leave that for another day. Well, that other day is my client sitting in Villawood.
So the special case will be relatively limited, we will not greatly add to the length of submissions. That is not say we will not make submissions, but we would obviously not seek to overlap with those put in M47. Where additional facts will throw light on the constitutional issues and assist the Court in that way, we would respectfully submit that the downside in having two cases rather that one will be greatly outweighed by the upside of having the additional facts before the Court throwing light on the constitutional issues in particular.
Just one other point tied to that, your Honour, one my learned friends in Melbourne indicated that it would be a one to one and a half day matter and I would respectfully agree that even with our intervention, one would have thought this could be dealt with one and a half days. Unless there is anything further, your Honour.
HIS HONOUR: Thank you, Mr Kirk. Yes, Mr Donaghue.
MR DONAGHUE: Your Honour, as Mr Kirk has indicated, in paragraph 3 of our submissions we tried to identify what might be said to be the additional issues. The first of those additional issues we submitted is not in fact an issue and Mr Kirk provisionally indicated that that that might be conceded. So the real question is, we submit respectfully, the question your Honour has been raising with Mr Kirk, what does this add? That really raises the question, does the constitutional issue sufficiently arise in M47?
We respectfully agree with your Honour that it is a little difficult to separate out the constructional issue completely from the constitutional issue because it does appear that the endpoint of construction raises the constitutional question. If that is to be in play in M47, then, as Mr Niall’s submissions this morning suggested, then it may be that there is not a great deal to be gained in terms of the constitutional question from the reference in.
HIS HONOUR: Do the Commonwealth parties accept that questions of validity affect the questions of construction and that it may not be possible in this case, with this section, to treat construction separate from outer limits set by validity?
MR DONAGHUE: Your Honour, we accept that there must be an interrelationship between those points. We, as the Commonwealth put in Al-Kateb, put the extent of the Commonwealth’s power in such a way that we say that there is no relevant limit that would necessarily affect construction here, but the relationship as a matter of principle is not disputed, your Honour, or the potential relationship.
HIS HONOUR: As you understand the state of play in M47, will the constitutional arguments be addressed by the Commonwealth? I assume from what Mr Niall has said that a constitutional issue will be flagged. I got the impression that he may be trying to keep that back for reply.
MR DONAGHUE: Your Honour, I think the answer must be yes for this reason, that we will submit that the section properly construed does authorise – when I say “the section”, the combined operation of 189, 196 and 198 is such that the regime authorises the detention of the plaintiff, even if his removal is not presently reasonably practicable from Australia, provided he is being detained for the purpose of such removal, and the evidence will show in the special case that efforts are being made to that end. As I apprehend it, if that submission were to be accepted, Mr Niall would say the provisions are invalid and so the constitutional issue will, as I understand it, arise.
HIS HONOUR: Yes. Understanding at all times that the Commonwealth says that if there is a constitutional issue, it is not reached or if it is reached, it is resolved in its favour. I understand that that is the position you get to.
MR DONAGHUE: Of course, your Honour, yes.
HIS HONOUR: Yes.
MR DONAGHUE: We do. So in that sense we are not sure, particularly in light of what Mr Niall said this morning, that there will be a point added and in that sense it may be some qualification of our paragraph 8 is required. On the other side of the equation, Mr Kirk has drawn attention to what we have said in our paragraph 9 about the factual differences and on my instructions there are factual differences. Those factual differences raise issues of really very considerable complexity in terms of how one manages them in litigation of this kind, particularly intended litigation on agreed facts or litigation where the procedures before the Full Court are not readily adapted to conflicts of facts.
Now, it may be that a fact very much along the line that your Honour put to Mr Kirk is where we would get to in terms of that we would put on evidence to that effect. If that evidence is not challenged, then perhaps the evidentiary issues are superable and that we will be able to reach a landing that allows the matter to go forward, but Mr Kirk anticipated that we would want to put on information about what was said at the interview. That is not self-evident that is so. There may well be, as I understand my instructions at present, reasons why we certainly cannot be comprehensive about what was said in interview and, thus, there are real difficulties in the management of the matter.
Mr Kirk mentioned possibly confidential affidavit material and that then complicates the process of how submissions proceed on that basis. So we do submit that it is not a matter of there being no harm. Those on my side of the Bar table will be substantially diverted into trying to deal with a range of quite complicated issues in the event that that is the path we go down and in the event that there is not a great deal to be added, we would submit that it would be preferable for only one matter to go forward. But, as we have said in writing, if the Court is persuaded that there is something useful added, we do not oppose the referral of the two cases in.
HIS HONOUR: Yes, thank you.
MR DONAGHUE: If the Court pleases.
HIS HONOUR: Mr Kirk.
MR KIRK: Your Honour, briefly in relation to the two core points, in a sense, that my learned has raised. My friend says that there are complicated issues which may be a distraction. That has to be weighed against the fact that first my client has been detained for nearly three years now with no apparent prospects of release. The issues do not appear so complicated that they cannot be overcome and, indeed, I do not think my learned friend fairly suggested to the contrary. Secondly, as to the core point of whether a great deal is to be added or not, that is a matter of a little doubt at the moment and, indeed, we may not really know the answer to that until we see Mr Niall’s reply on 15 June where, of course, it will be too late.
What I would respectfully submit is that there is certainly no harm in the parties seeking to agree a special case, dealing with the matters that remain to be dealt with, and coming back before the Court if we have agreed and resolved the factual issues that does away with any of Mr Donaghue’s first problem. If we have not, well, then that will be its own answer.
HIS HONOUR: The difficulty I foresee and raise for your consideration is diversion of effort. As it is, I have imposed on the parties in M47 a very tight timetable. I know that the resources of the Commonwealth are bounded only by the extent of the consolidated revenue fund, but we do need to have some focus in this matter and I am very fussed about diverting effort. Can I be blunt with you, Mr Kirk, I am not persuaded at the moment that there is enough gain to be had to inflict the diversion on the preparation of the other matter. In particular, it is not evident to me yet that determination of M47 would not, as near automatically as one can ever predict, determine the outcome of S138. Now, that is where I am at. It is a bit like the auctioneer calling for last bids, is it not, Mr Kirk, which a judge should never do for fear that there is a bid made, but that is where I am at.
MR KIRK: Could I make my last bid, your Honour, and I will make it briefly. As to diversion of resources which, with great respect, is obviously a legitimate concern, any diversion of resources would only likely be in this week whilst preparing the special case. There would be no diversion later because – there would only be diversion insofar as we add something, which is what I am suggesting we will do. So that is a relatively limited concern.
It is also relevant, your Honour, that we are but a second plaintiff. We understand, if I can say this from Bar table, that there are some 51 people who are detained because of adverse security assessments. That is obviously a very significant public issue. The fact that two go before the Court, a small percentage of those by 50-odd people, is not in the scheme of things, in my respectful submission, an undue diversion of Commonwealth resources or, indeed, use of this Court’s valuable time. As to whether or not we add anything, as I have already put, your Honour, we will not really know that until Mr Niall puts in his reply. For those reasons, my primary final bid is that your Honour stands it over to seek to agree the special case.
My secondary bid, if I might be so bold to have a second bite at the final bid, it would not be our preferred course, but in the alternative we would respectfully raise the prospect of intervening, being permitted to intervene in M47. In doing so, we would be aware, for example, of what occurred in the Tobacco Case a little while ago where, as your Honour knows, two tobacco companies intervened in the two other proceedings because their interests were directly affected, and in that case it was run very efficiently. Given the importance of issues to my client, namely, he is indefinitely detained, given the possibility that we may add something and if we do not, I will be very brief in submissions before the Court, that would appear to deal with your Honour’s legitimate.....about diversion of resources.
HIS HONOUR: If I were to go down the path of consideration of intervention, would it be the best course simply to say that you may, at the same time as Ms Mortimer’s client, file and serve any application, any affidavit in support and any submissions that you would seek to make, if granted leave to intervene, on or before 12 noon, 8 June?
MR KIRK: Yes.
HIS HONOUR: Yes.
MR KIRK: Unless there is anything further, your Honour.
HIS HONOUR: Yes. Thank you, Mr Kirk.
On 23 May 2012, application was made by Plaintiff M47/2012 for an order to show cause directed to the Director-General of Security and other defendants in which that plaintiff seeks to agitate questions about the lawfulness of his detention which it is said is permitted and required by section 189 of the Migration Act 1958 (Cth) read in the light of section 196 and other relevant provisions of that Act.
On 28 May 2012, the plaintiff in the present matter, Plaintiff S138/2012, commenced a separate proceeding in the Court seeking generally similar relief in respect of his detention again in circumstances broadly similar to those which have seen the continued detention of Plaintiff M47.
I have given directions in the matter of Plaintiff M47/2012 intended to permit the reference of questions raised by a special case to be prepared by the parties for hearing by a Full Court of this Court very urgently.
The proceedings commenced by Plaintiff S138/2012 have been brought on for directions this morning immediately after the second directions hearing in the matter of Plaintiff M47/2012. Counsel for the plaintiff, Plaintiff S138, submits that the parties should be directed to seek to agree a special case in this application with a view to the questions raised by that special case being heard and determined by the Full Court at the same time as questions to be posed in the special case to be agreed in the Plaintiff M47/2012 matter.
Counsel points to some differences in the facts which underlie the two applications and points also to a different emphasis which, as at present advised, the parties in each case would give to their arguments in support of their contention that their continued detention by officers of the Commonwealth is unlawful.
I am not persuaded, however, that the differences in fact or the differences in emphasis which each party would give in their arguments in support of their ultimate contention are such as would require the giving of directions now to attempt to have both cases ready for hearing by a Full Court together. Put shortly, I am not persuaded that there is enough advantage to be had from pursuing that course to warrant the inevitable diversion of resources that would follow from the attempts to agree a further special case in the matter of Plaintiff S138/2012.
It is, of course, open to Plaintiff S138 to apply for leave to intervene in the proceedings to be heard by the Full Court in the matter of Plaintiff M47/2012 and it would seem to me that I should, in the present application, direct that any application for leave to intervene or be heard as amicus curiae in the matter of Plaintiff M47/2012 that is to be made on behalf of Plaintiff S138/2012, together with any affidavit in support and written submissions which Plaintiff S138/2012 would seek to make to the Full Court, are to be filed and served on or before 12 noon on 8 June 2012. I should amplify that, are to be filed and served on opposite parties in this matter and on the solicitors for Plaintiff M47/2012 on or before 12 noon on 8 June 2012.
Costs of today should be reserved. Otherwise, subject to anything that counsel may say, I would be minded to simply stand the matter out of the list generally with liberty to apply on 48 hours written notice to opposite parties.
Mr Kirk, do you want to be heard in connection with either the form of the first order or the proposal to stand it out of the list generally and reserving liberty?
MR KIRK: No, your Honour.
HIS HONOUR: Thank you. Mr Donaghue?
MR DONAGHUE: No, your Honour.
HIS HONOUR: Yes, very well, there will be orders and directions in those terms. Is there anything else that counsel needs to raise about these matters?
I have detained you thus far, Mr Niall. I am sure you have no right to be heard, but is there anything that you would wish to raise about this aspect of the matter?
MR NIALL: No, thank you, your Honour.
HIS HONOUR: Very well. Yes, Mr Donaghue.
MR DONAGHUE: Your Honour, I was rising to ask, at some point there will presumably need to be an order referring this matter to the Full Court.
HIS HONOUR: Yes.
MR DONAGHUE: Does your Honour envisage that that will happen on the papers or that we will reconvening at some point?
HIS HONOUR: I would hope that we do not have to have another directions hearing. If we have to look more carefully at the questions of confidentiality, for example, then obviously we will have to. If I can deal with these things on the papers I will, but, if needs be, we might have to have a video from Brisbane sometime next week, but I would hope to avoid it.
MR DONAGHUE: Am I correct in understanding, your Honour, we do not need to submit a summons or other order to have the matter referred in, that your Honour can do that without any further step from us?
HIS HONOUR: I think that when you file the final version special case it would be useful if you could submit a note with it simply initialled by solicitors for both sides noting that it being agreed, it is to go forward. Forgive me for returning to this affidavit of the Director-General, but if that is to be part of the material, it would be as well to record that fact.
One other thing I should have raised with you and that is preparation of the books. Can I simply ask the solicitors to put their heads together about the preparation of books, to get them done as soon as they can. I know that until we have a special case we cannot and until we have an amended application we cannot, but as soon after that as we can, preparation of books will be important because we are going to be doing this at the trot and the sooner we have the papers the better. I do not think there is any point in my giving the parties directions. We have sensible counsel, sensible solicitors both sides, but can you do it in a way that gets us the books as soon as we can?
MR DONAGHUE: I am sure that will not present a difficulty, your Honour.
HIS HONOUR: Yes. Nothing else?
MR DONAGHUE: No, your Honour.
HIS HONOUR: Adjourn the Court.
AT 12.11 PM THE MATTER WAS ADJOURNED
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