Plaintiff M76/2013 v Minister for Immigration and Citizenship & Ors [2013] HCATrans 159 (26 July 2013)

Last Updated: 26 July 2013

[2013] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M76 of 2013

B e t w e e n -

PLAINTIFF M76/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE OFFICER IN CHARGE, SYDNEY IMMIGRATION RESIDENTIAL HOUSING

Second Defendant

THE SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

THE COMMONWEALTH OF AUSTRALIA

Fourth Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO BRISBANE

ON FRIDAY, 26 JULY 2013, AT 9.24 AM

Copyright in the High Court of Australia

____________________

MS K.L. WALKER: I appear for the plaintiff, your Honour. (instructed by Allens)

MR S.P. DONAGHUE, SC: I appear for the defendants, your Honour. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Ms Walker.

MS WALKER: Your Honour, at the last directions hearing in front of her Honour Justice Crennan, a timetable was proposed for the negotiation and it was to be hoped the agreement and indeed filing of a special case in this matter. That has not yet been completed and no special case has been filed. However, discussions between the parties are very well progressed and I think it is safe to say that both parties are confident that agreement will be reached shortly. The fundamental facts, I think it is safe to say, are no longer in dispute. There is some need to obtain instructions in relation to some minor details. There is a need to agree the way in which certain matters might be framed, but the parties are confident that a special case will be agreed very shortly. Could I hand up to your Honour some proposed orders that reflect that stage of proceedings?

HIS HONOUR: Yes. Again, has your opponent seen these?

MS WALKER: Yes, your Honour, he has.

HIS HONOUR: Yes.

MS WALKER: My apologies, your Honour, the first order contains a handwritten amendment.

HIS HONOUR: I think I will cope with that, Ms Walker.

MS WALKER: Your Honour, at the previous directions hearing, her Honour Justice Crennan indicated that it may be possible for the matter to be listed in the Court’s September sittings. No precise date was given by her Honour, but to that end a timetable has been developed that would accommodate a hearing in September. Of course, it may depend - - -

HIS HONOUR: I do not think it will accommodate that, Ms Walker. I think we are still working towards two days in the first week of September.

MS WALKER: I understand, your Honour.

HIS HONOUR: The timetable would have to come back to finish, I think, no later than 28 or 29 August, the Wednesday or Thursday.

MS WALKER: I am sure that could be accommodated, your Honour. I have not had that discussion with my learned friend, but could I draw your Honour’s attention to proposed order 4, and if we were to work backwards from, say, 28 August – that should be written submissions in reply – order 3 could then become 23 August. That is a slightly truncated reply period, but the plaintiff can accommodate that, and then the previous date could perhaps be 9 August.

HIS HONOUR: Well, let us at least work on that as a working assumption for the moment and then we will hear what the respondents have to say.

MS WALKER: Yes, and your Honour will see the first order proposes that the plaintiff file an agreed special case on or before 4 pm on 31 July, which is next Wednesday, and that order is proposed, your Honour, because the parties are confident that a special case will be ready to be filed on that date.

HIS HONOUR: Are you yet in a position to identify what questions the parties say are to be stated in the form of a special case, or at least indicate the general nature of the questions that the parties are agreed upon?

MS WALKER: Yes. I do not have a copy, but I can perhaps read them.

HIS HONOUR: No, if you can simply indicate them to me.

MS WALKER: Yes, your Honour. The first question is proposed to be a question as to whether sections 189, 196 and 198 of the Migration Act 1958 (Cth) authorise the detention of the plaintiff, which one might describe as the construction question. The second question arises if the answer to question 1 is yes and it is whether those provisions are beyond the legislative power of the Commonwealth insofar as they apply to the plaintiff. Then the third question is really a question of relief, and the fourth question is a question of costs. It is, in terms of substantive questions, simply two questions, one on construction, one on validity, to put it simply, your Honour.

HIS HONOUR: Those questions of construction, may I raise directly with the parties what seemed to me to be some possible matters that might emerge in argument, and if they were to emerge in argument, then they are matters to which the parties would necessarily have to give much closer attention at this stage of the process than they are deciding what facts are to be put in. The relief the plaintiff claims is habeas. Is that right?

MS WALKER: That is correct, your Honour.

HIS HONOUR: Does it follow that one would expect the detaining authority to be at least expected, perhaps required, to identify the authority pursuant to which the detention is occurring?

MS WALKER: Yes, that is correct, your Honour.

HIS HONOUR: It would seem to me that it is at least an available point of view – I do not know whether it is right – that the Commonwealth parties generally should enter the litigation with a stated basis for the authority to detain the plaintiff. I can understand that there may be cases – I do not know whether this is one – where alternative bases could be put forward. I speak in the singular. I am not intending to exclude the possibility of multiple sources of authority, some of which are cumulative, some of which are alternative. Those are complexities I leave aside. On what I understand of the facts of the case – I may be wrong – this plaintiff was at one time detained pending consideration of the Minister’s exercise of power under section 46A.

MS WALKER: Yes, your Honour, that is correct.

HIS HONOUR: So much follows, I think, from the undisputed basis for the decision in offshore processing, namely that the detention that was then occurring for the effecting of what was described as a non-statutory process – whatever that expression was meant to convey – was in truth detention justified as detention for the purposes of the Act, or the relevant purpose of the Act was consideration of section 46A.

If that is right, and these are matters that the parties will have to consider for themselves and identify later, the consideration ultimately given to whether section 46A was engaged or how it was engaged yielded a decision, did it not, in which PIC 4002 was applied, because the ASIO assessment made was an assessment of the kind made under the ASIO Act which was engaged under PIC 4002. That may be right, that may not be right. I do not seek to have either party commit themselves to a view of that now. My purpose is to raise questions, not, I emphasise, to state opinions or conclusions.

The question that may then possibly, possibly not, follow from that is whether the Minister having determined to enter upon consideration of power under 46A on a particular understanding of the legal framework which subsequent decisions of this Court, notably M47, demonstrate to be infirm, can then change direction. By that, I mean can the Minister, having determined to consider whether 46A should be applied on one legal footing, having been told that that legal footing is infirm then say, as I understand now to be said in at least one part of the material, that he no longer is considering whether 46A can apply.

I do not know the answer to those questions, but they are questions that I think may be swirling around under these facts. If they are not questions swirling around under these facts, the parties are going to have to either agree that they are not and tell the Court that is so, or demonstrate to the Court, if it is not agreed, whether that is so or not. That is a set of issues that may or may not already be firmly present to the minds of the parties, but if they are not, they ought to be at least given some consideration because they will affect, I think, whether I should reserve for the consideration of the Full Court questions in the form of the special case that the parties prepare because it would affect whether the questions are ripe.

MS WALKER: Yes, I appreciate what your Honour said, and indeed, I thank your Honour for that assistance, given that the special case is - - -

HIS HONOUR: It was not intended to be assistance to your side. It was intended to be assistance for the Court in working out this set of issues.

MS WALKER: Indeed, but it will assist the parties, your Honour, in ensuring that the special case meets the needs of the Court and, indeed, is an appropriate one to be referred. Certainly, I propose to return to the special case with an eye to the matters that your Honour has raised and no doubt my learned friend and counsel for the plaintiff will be in discussion to ensure that the matters your Honour has raised are appropriately dealt with.

HIS HONOUR: A means of encapsulating the question which presently agitates my mind is whether the Minister properly exercises the power under 46A(2) if the Minister has regard to a criterion for the grant of a protection visa which this Court has held is not a validly created criterion for the grant of a protection visa because it is inconsistent with the Act. I am sure there are other much more elegant forms of identification of the problem if there is a problem, and if there is not a problem then let us at least find out that there is not, sweep it away and focus on other issues.

MS WALKER: Yes, thank you, your Honour. In light of that – and can I perhaps mention a couple of other matters? The Commonwealth parties and the plaintiff will each, I think, seek some orders in relation to confidentiality of some of the exhibits to the special case. Until your Honour has the special case and until it has been finalised, of course, those applications cannot be made, but - - -

HIS HONOUR: Can I just foreshadow this? I think the Commonwealth is seeking confidentiality in respect of so much of the special case as reveals the names of countries to which the Commonwealth may have made approaches in respect of resettlement. Would you seek to be heard about an order for confidentiality of that particular information?

MS WALKER: No, we have no objection to an order of that kind.

HIS HONOUR: And I think it is material of a kind which the Court has earlier, in other proceedings, said should remain confidential. At least as at present advised, it would seem to me to be unnecessary for there to be an oral hearing about that question. While I am very reluctant to make confidentiality orders except on argument, this is one which I think can be made on the papers. Obviously, in preparing the special case, do it in a way where the particular information is in one document that can be treated separately and printed on golden paper or something to draw everybody’s attention to the fact that it is confidential.

MS WALKER: Yes, your Honour, and the issue for the plaintiff – and the plaintiff has not yet precisely identified the material over which she might seek a confidentiality order – but the issue for her would arise in relation to two discrete issues, one being the application for refugee status and the other being some personal details including telephone numbers, for example, of family members.

HIS HONOUR: Why would they be relevant to the material that goes to the Court?

MS WALKER: Their relevance may be described perhaps as peripheral, but at present it is more that the document in which those details are present is relevant or at least on one view relevant - - -

HIS HONOUR: If the parties can agree to redact personal information of that kind – it is not immediately apparent to me why that should be the subject of any order by the Court – the redacted document could become the exhibit but - - -

MS WALKER: If the Court is comfortable with a redacted document that is agreed between the parties - - -

HIS HONOUR: About telephone numbers. I am not so sure about the PV application. That may be something which has to be thrashed out in open court, I do not know.

MS WALKER: Yes, I accept that. Perhaps it is best if – as I say, the plaintiff has not finally reached a view on precisely what might need orders or perhaps might be suitable for redaction, but I wanted to alert your Honour to that little complication. As your Honour will see from the proposed orders, there is no proposed order at present, for obvious reasons, for the referring or reserving of questions. To that end, and given what your Honour has said about the need to ensure that the special case is ripe, it may be that it would be appropriate for a further short directions hearing following the filing of the special case to ensure that your Honour has an opportunity to raise with the parties any concerns that might arise once your Honour has seen the special case.

HIS HONOUR: Not only that, the parties simply have to look at a – not a question of choice, there is somebody in detention.

MS WALKER: Yes.

HIS HONOUR: We have to get on with it. The matter will come back before me on Friday, 2 August.

MS WALKER: Yes, thank you, your Honour.

HIS HONOUR: The parties have to continue their preparation on the understanding that the Court will if it can – at the moment we think it probable we can – put it in in the first week in September. So if the parties order their affairs on that assumption, so be it.

MS WALKER: We shall indeed, your Honour.

HIS HONOUR: Yes.

MS WALKER: I have no further matters to raise.

HIS HONOUR: Yes, Mr Donaghue, there are several things to tick off. First, I do not ask you to make any comment on the various issues I have raised. Of course, if you wish to you should but I do not seek to compel you to make any comment on those questions.

MR DONAGHUE: No. Your Honour, we have addressed them in the special case, at least to some extent. We will need to look again at whether they are sufficiently addressed in light of what your Honour has said.

HIS HONOUR: That is exactly what I want to hear, Mr Donaghue, that the issue is flagged early so that the parties can think about it early. If it proves to be a red herring we can be told it is a red herring.

MR DONAGHUE: Yes. So beyond that, your Honour, I do not seek to say anything more about it. It means that the issues to be discussed between now and the finalisation of the special case were somewhat more complicated than I thought they were because, as Ms Walker had said, the outstanding issues, other than those that your Honour has raised, are of limited compass and I think we will deal with that quite expeditiously.

HIS HONOUR: Timetabling – 9, 23, 28 – does that work or not?

MR DONAGHUE: It does, your Honour. That is fine.

HIS HONOUR: And Friday, 2 August?

MR DONAGHUE: That is also manageable, your Honour. I presently have a matter in the Court of Appeal in Victoria that morning but I think it will go away. If your Honour is minded to list the matter at 9.30 – is that your Honour’s intention?

HIS HONOUR: Yes.

MR DONAGHUE: Yes, well 2 August is no difficulty then.

HIS HONOUR: Yes. Confidentiality.

MR DONAGHUE: Confidentiality - your Honour, you have seen our summons and the supporting affidavit. If your Honour is content to deal with it on the papers it is, as your Honour says, a replay exactly of orders the Court has made in other matters.

HIS HONOUR: I do not see a difficulty about it, just if your side as well can attend to the mechanics of it to make it easy.

MR DONAGHUE: Yes, well we think we have done that.

HIS HONOUR: Yes.

MR DONAGHUE: It is one page of the special case that we are seeking to protect.

HIS HONOUR: Yes.

MR DONAGHUE: Otherwise it is clothed in the special case country A, country B, et cetera, in order to allow it to be confined to just one document. Likewise, insofar as our friends seek to redact personal information we will do that by agreement. So hopefully we can reduce the need for the Court to make orders about that and address anything outstanding on the 2nd. So beyond that, your Honour, I think that was all that I had on my list. I do not believe that there is anything else that we would seek to address your Honour on at this stage.

HIS HONOUR: Yes. Well, as I say, the parties should proceed on the assumption that the Court is working towards fixing of this matter for hearing and determination of questions reserved in a form of a special case and that we are working towards dealing with it at a date yet to be fixed in that first week of September. Perhaps it may be the second half of that first week, but I do not know and I cannot commit to those dates. But if the parties work on that assumption it would be desirable.

MR DONAGHUE: Can I inquire, your Honour, is the Court sitting in Perth that week?

HIS HONOUR: Second week I thought was Perth. I thought Bell was second week.

MR DONAGHUE: We may be wrong. The orders as they were framed were drafted on that timetable on the assumption the Court was talking about the second week because we thought the Court was in Perth in the first week.

HIS HONOUR: I will just check, Mr Donaghue, and get the proposal, but put it this way, I am organising my life on the assumption, perhaps fondly misplaced, that it is the second week, but there we are. One should not look more than about 12 hours ahead, I suppose, and that is on a good day.

MR DONAGHUE: I am quite content to order our life on the same basis that your Honour is ordering yours.

HIS HONOUR: That is a very dangerous course of events to follow, Mr Donaghue, not one I would recommend to anyone. Yes, I think the parties have been informed that Westpac Banking Corporation v Bell Group Ltd (in liquidation) & Ors is fixed for Tuesday, 10, Wednesday, 11 and Thursday, 12 September in Perth.

MR DONAGHUE: Thank you, your Honour. I appreciate the clarification.

HIS HONOUR: Then subject to the amendments that have been discussed about the timetable, if I order that the plaintiff file an agreed special case on or before 31 July 2013. I think that it would then suffice if I adjourned the further hearing of the matter to Friday, 2 August at 9.30 in Melbourne, reserving liberty to apply to either party – or any party on 24 hours written notice and reserve the costs and if I say to the parties that it is probable that on 2 August a timetable will be fixed which will be plaintiff and any interveners in support of the plaintiff by 9 August, defendants and any interveners in support of defendants by 23 August, plaintiff – I think perhaps only plaintiff rather than plaintiff and interveners in support to have a reply, but that may be something we can deal with then – on 28 August.

MS WALKER: Yes, your Honour, that would be convenient. Can I indicate to the Court that we have not yet had very clear indications from any interveners about their intentions, but I suggest and I think it would be appropriate for my instructors to arrange to serve a copy of today’s transcript when that becomes available so that the interveners are aware of the progress in the matter and the likely timetable.

HIS HONOUR: I would have thought that would be highly desirable, thank you. I will make no direction, but simply if your solicitors could be good enough to attend to that I would be grateful.

MS WALKER: Thank you, your Honour.

HIS HONOUR: Anything else then that counsel need to raise?

MS WALKER: No, your Honour.

MR DONAGHUE: No, your Honour.

HIS HONOUR: Very well, adjourn the Court.

AT 9.50 AM THE MATTER WAS ADJOURNED