Plaintiff S10/2011; Kaur; Plaintiff S49/2011 and Plaintiff S51/2011 v Minister for Immigration and Citizenship and Anor [2012] HCATrans 16 (7 February 2012)

Last Updated: 7 February 2012

[2012] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S10 of 2011

B e t w e e n -

PLAINTIFF S10/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
Sydney No S43 of 2011

B e t w e e n -

JASVIR KAUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
Sydney No S49 of 2011

B e t w e e n -

PLAINTIFF S49/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

Office of the Registry
Sydney No S51 of 2011

B e t w e e n -

PLAINTIFF S51/2011

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

SECRETARY FOR DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Second Defendant

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 FEBRUARY 2012, AT 1.32 PM

Copyright in the High Court of Australia

__________________

MR S.B. LLOYD, SC: If it please your Honour, I appear with MR J.B. KING in each of those matters. (instructed by Parish Patience Immigration Lawyers)

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If your Honour pleases, I appear with MS A.M. MITCHELMORE for the defendants in each of those matters. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Solicitor.

MR GAGELER: Your Honour has already made orders for the hearing of these matters by the Full Court. That hearing is to occur tomorrow. It seemed to us on reviewing the record that some attention to it would be desirable and the parties have prepared proposed short minutes of order to be made by consent in each matter.

HIS HONOUR: Thank you. I will just look through them. Now, this deals with S10.

MR GAGELER: Yes.

HIS HONOUR: What is the situation in the other matters?

MR GAGELER: Your Honour should have short minutes in very similar forms with very similar annexures in the other matters.

HIS HONOUR: Yes. I have S43 and S49 and S51.

MR GAGELER: Yes. They are the four matters.

HIS HONOUR: Yes, this is very helpful. Now, one thing that has happened since we were last dealing with this matter in open court is the advent of South Australia. That has necessitated enlargement of the Bench because they have raised some constitutional questions. Will that have an impact on the estimated hearing required? Two days at the moment.

MR GAGELER: It certainly will not take the matter beyond two days, your Honour. There is a constitutional question that is raised by my learned friend, but the way in which it is raised is relatively formal. I doubt that it will engage a large part of the hearing time.

HIS HONOUR: Yes, I appreciate that, but does South Australia take it further than you do, as you understand it?

MR LLOYD: My understanding is that their submissions are actually principally on a non-constitutional point and that they have intervened because we have done a section 78B notice. Most of their submissions are directed to the question of the interest required to get natural justice, although, to the extent that that is limited to the executive power issue, I suppose it is constitutional. For my part, I would say that I would not indicate that our submissions on constitutional matters will be extensive. They are largely fallback positions from our principal argument that it is under the statute.

HIS HONOUR: So the order of submissions would be yourself, South Australia and then the Solicitor?

MR LLOYD: As I understand South Australia, they are supporting the Commonwealth.

HIS HONOUR: Yes, that is right.

MR LLOYD: Certainly from my point of view, I do not express a preference as to which order the respondents go, but perhaps I can indicate to your Honour that we do have, pursuant to the leave discussed at least in the draft short minutes of order, we have prepared second further amended applications in the S51 matter and the Kaur matter because – just they mesh with our written submissions. They do not raise anything else that is new, but to the extent that the submissions raise new things, these are now embraced within the language of this. In respect of the other two matters, we were not proposing to put on further amended applications, although there are in both of them four forms of relief which we are not pressing, but I was just going to indicate to the Court that we are not pressing - - -

HIS HONOUR: So in S10 and S43 you do not need order 2?

MR LLOYD: So in S10 and S49 we do not need order 2.

HIS HONOUR: Yes, S10 and S49 you do not need order 2, but you do need it for the Kaur matter - - -

MR LLOYD: And S51.

HIS HONOUR: And S51. Thank you. So we will hear first from you tomorrow, then from the Solicitor and then the timetable will be pretty clear as to what is left for South Australia. It may be that on their non-constitutional submissions they are limited to what they have done in writing, but we will see what happens. All right. Is there anything else?

In S10, S49, S43 and S51 I make orders in terms of the short minutes as initialled and dated and placed with the papers.

If you can liaise with the Senior Registrar as soon as possible to get it all in operation mechanically. I will now adjourn.

AT 1.43 PM THE MATTER WAS ADJOURNED