CPCF and Ors v Minister for Immigration and Border Protection and Anor [2014] HCATrans 153 (23 July 2014)

Last Updated: 24 July 2014

[2014] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S169 of 2014

B e t w e e n -

CPCF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S147 of 2014

B e t w e e n -

JARK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S148 of 2014

B e t w e e n -

SAS

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S149 of 2014

B e t w e e n -

SWF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S150 of 2014

B e t w e e n -

SV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S151 of 2014

B e t w e e n -

SSC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S152 of 2014

B e t w e e n -

SATL

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S153 of 2014

B e t w e e n -

SSSL

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S154 of 2014

B e t w e e n -

SARK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S155 of 2014

B e t w e e n -

SAK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S156 of 2014

B e t w e e n -

SMV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S157 of 2014

B e t w e e n -

VN

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S158 of 2014

B e t w e e n -

WAF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S159 of 2014

B e t w e e n -

WNSC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S160 of 2014

B e t w e e n -

TM

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S161 of 2014

B e t w e e n -

WAZF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S162 of 2014

B e t w e e n -

WEEF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S163 of 2014

B e t w e e n -

ADR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S164 of 2014

B e t w e e n -

ASRP

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S165 of 2014

B e t w e e n -

ADT

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S166 of 2014

B e t w e e n -

DRP

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S167 of 2014

B e t w e e n -

DTF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S168 of 2014

B e t w e e n -

AEACC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S170 of 2014

B e t w e e n -

DMF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S171 of 2014

B e t w e e n -

DRF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S172 of 2014

B e t w e e n -

EEF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S173 of 2014

B e t w e e n -

GAAC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S174 of 2014

B e t w e e n -

JDT

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S175 of 2014

B e t w e e n -

KRTF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S176 of 2014

B e t w e e n -

FV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S177 of 2014

B e t w e e n -

GSSC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S178 of 2014

B e t w e e n -

JARK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S179 of 2014

B e t w e e n -

KR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S180 of 2014

B e t w e e n -

MSV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S181 of 2014

B e t w e e n -

PPA

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S182 of 2014

B e t w e e n -

PP

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S183 of 2014

B e t w e e n -

PS

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S184 of 2014

B e t w e e n -

NVL

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S185 of 2014

B e t w e e n -

PD

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S186 of 2014

B e t w e e n -

PS

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S187 of 2014

B e t w e e n -

PCEF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S188 of 2014

B e t w e e n -

RR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S189 of 2014

B e t w e e n -

RK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S190 of 2014

B e t w e e n -

RK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S191 of 2014

B e t w e e n -

PV

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S192 of 2014

B e t w e e n -

JK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S193 of 2014

B e t w e e n -

PM

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S194 of 2014

B e t w e e n -

AMC

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S195 of 2014

B e t w e e n -

ASRF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Directions

HAYNE ACJ

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 23 JULY 2014, AT 3.15 PM

Copyright in the High Court of Australia

____________________

MR R. MERKEL, QC: If your Honour pleases, I appear with my learned friend, MR D.P. HUME, for the plaintiff in those matters. (instructed by Shine Lawyers)

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

HIS HONOUR: Yes. The parties have been provided relatively recently with a draft document and I would be much assisted if counsel would direct their submissions in the first instance to whether a case can be stated in the form of the draft document that has been provided.

MR MERKEL: Can I hand up our suggested changes, your Honour? There are only two.

HIS HONOUR: Has Mr Donaghue seen this, Mr Merkel?

MR MERKEL: Yes, I have shown my learned friend just shortly prior to the hearing commencing, your Honour. Your Honour, there is paragraph 4(a) and (b). Can I just indicate that 4(b) reflects an amendment to our pleading which is not opposed by my learned friend, but we are concerned that 4(b) may more accurately express the obligation but there are two alternative ways that arise out of the cases and we wanted that as a true alternative view of the definition of “non-refoulement obligations” so that the argument will fall within either the parameters of (a) and (b) and non-refoulement obligations gets picked up elsewhere.

The only other change, your Honour, is at paragraph (d) at page 9. In the exchanges between the parties there was agreement, your Honour, that the words “a particular place” were appropriate to describe the decision and, therefore, we would ask that that word be inserted, but otherwise, your Honour, we do not wish to make any further submissions concerning the form of the special case.

HIS HONOUR: Yes. Mr Donaghue, the “particular place” amendment, I take it, is trifling?

MR DONAGHUE: It is not problematic, your Honour, and - - -

HIS HONOUR: But important. Yes, trifling, but important.

MR DONAGHUE: - - - for the most part – unimportant for present purposes.

HIS HONOUR: Yes.

MR DONAGHUE: For the most part, your Honour, we do not have any opposition to a case being stated in the form that your Honour has proposed, but there are a couple of matters that I would seek to raise for your Honour’s consideration.

HIS HONOUR: Yes.

MR DONAGHUE: The first is that your Honour will have noted in the version that we circulated we have not sought to avoid the use of the words “the benefit of” in the various non-refoulement obligations, and we note that your Honour has used those words. Can I just identify the concern, which is perhaps highlighted by a document Mr Merkel has just handed to your Honour at 4(a) and (b) because it seems to us that the difference between those two paragraphs is a little elusive and we are not certain – we think that the difference might be hidden within the use of the words “the benefit of” because it seems, with respect, that – to us, with respect, that the plaintiff’s case as pleaded has been a case that says that the non-refoulement obligations are relevant because the country to which a person might be taken must not be a country that is going to refoule the person to a place where they will be persecuted and if that is the case then we understand it.

If the benefit of the non-refoulement obligation means something other than that, we do not understand it, so if your Honour is happy that the questions are directed to that issue then we have no difficulty but if there is another issue hidden then we think it should be exposed.

HIS HONOUR: What I had tried to capture, with the benefit of idea, was that it seemed that the plaintiff had probably at least three strings to the bow: one, Australia is obliged because it is a signatory or party to a - it has adhered to a treaty; two, that there is some international law obligation different from the bare fact of being a party to a treaty; and, third, there seemed to some idea that somehow the common law – query exactly what is meant by that in this context – itself provides this – I am trying to find a neutral term – protection is the only one I can think of but I am not trying to put it tendentiously, Mr Donaghue.

What I wanted to do was try to capture in a short form something that would permit the plaintiff to make what seemed to be as presented in argument here an argument that is more than “Here is a treaty to which Australia is a party, it means this” and extends to “I can look at international law and draw from it some relevant conclusion” or “I can look at the common law - judge made law, I do not know” – and draw from that some conclusion.

MR DONAGHUE: But all of those conclusions being conclusions about a risk of non-refoulement rather than a risk of something else. That is - - -

HIS HONOUR: Look, that is as I had understood it.

MR DONAGHUE: Yes. Well, that is also as I understand it and I am just seeking to ensure that there is a meeting of minds, so far as that is possible, or at least to give the plaintiff an opportunity to say if that is not what they mean that something - - -

HIS HONOUR: Yes. On that footing, is there difficulty about amending 4 in the manner proposed?

MR DONAGHUE: No. Your Honour, turning to a couple of other short points. The questions as framed mostly refer to there being a limit with respect to something being done with respect to plaintiff.

HIS HONOUR: Yes.

MR DONAGHUE: I understand why that is so, but all I seek to do, your Honour, is to emphasise that the Commonwealth defendants would propose to be contending before the Full Court that an answer to those questions does not preclude further facts being advanced about the plaintiff which might bear upon the way those answers are to be applied so that the case stated does not comprise the universe of relevant facts concerning the plaintiff.

HIS HONOUR: Is that more than a submission that the answers to the questions will be said, at least by the defendants, not to conclude the litigation?

MR DONAGHUE: It is no more than that, but it is to say that - - -

HIS HONOUR: It is that at least?

MR DONAGHUE: Yes. So we would not want an answer phrased in terms of the plaintiff must be given an opportunity to be heard to be equivalent to a finding that there was a denial of procedural fairness in this case because there would remain to be, in our submission - and this takes me to my next point – litigation about the content of that opportunity to be heard which might be influenced by facts that might be found either in this Court - - -

HIS HONOUR: That is why I picked up the pleaded and admitted facts, not verbatim, but my intention was to pick up the facts as pleaded and admitted and reproduce their substance.

MR DONAGHUE: Yes, and your Honour is referring to paragraph 15, I think, in your Honour’s document, which does identify, we accept, facts that have been alleged against us by the plaintiff and admitted, but nowhere have the Commonwealth defendants admitted that they are the only facts that would bear upon the content of procedural fairness. So while we accept that those facts are - - -

HIS HONOUR: Well, it might be time to at least let us into the secret, Mr Donaghue, because it is not in your pleading. Your pleading says we admit those facts, and you do not go on and confess and avoid. Now, are you saying there is an avoidance to be had as well as the confession because if there is I do not see it in the pleading, do I? Maybe I should.

MR DONAGHUE: Well, your Honour, the relevant part of the defence for these purposes - I think these facts come from paragraph 45.

HIS HONOUR: Yes, it does.

MR DONAGHUE: Which is not an allegation of breach of procedural fairness, it is a statement of facts of various kinds and those facts are not disputed.

HIS HONOUR: Yes, it is a pleading of facts. Strange that. Yes.

MR DONAGHUE: It is a pleading of facts that are not contentious and, thus, we have admitted those facts, but when we come to the alleged breach of procedural fairness there is a denial – and I just need to put my - - -

HIS HONOUR: There may be a denial but where is the avoidance?

MR DONAGHUE: Well, part of the problem, your Honour, is the intersection with the public interest immunity question because – well, your Honour, what we have sought to do from the start in this case is to say that this process which identifies legal limits will not avoid the need for a factual dispute to be resolved that can then allow the legal limits to be applied to the facts. Our contention will be, if we are wrong, and procedural fairness does apply to either one of these powers, that nevertheless its content was little or nothing for reasons relating to the facts concerning these people, where they are located, issues to do with where they may be taken, but those are the same facts; some of those are the same facts that underlie the public interest immunity claim.

HIS HONOUR: Well, whether those matters are open on your pleading will be a matter for a single Justice to determine on remitter of the matter. I say to you only this, that I had read the pleading at least thus far, no doubt I am instructed, as confessing the facts and not asserting any additional avoidance allegation. I may be wrong - those are matters later to be debated before a single Justice - but let it not be said that these ideas descend upon the defendants all unawares when it comes back.

MR DONAGHUE: Your Honour, can you just give me a moment? I am trying to - - -

HIS HONOUR: Of course.

MR DONAGHUE: Your Honour, in paragraph 50 of our defence – paragraph 50 of the statement of claim alleges that prior to any decision to exercise the power, either the statutory or the non-statutory executive power, the defendants are obliged to observe the requirements of procedural fairness. That allegation is denied in paragraph 50. Your Honour will see the three bases upon which that is put, (c) is the basis that was intended to raise the factual element of – and it is true that we have not provided particulars of all of the factual circumstances that are - - -

HIS HONOUR: Or any.

MR DONAGHUE: Sorry?

HIS HONOUR: Or any. Not just all, any of the factual circumstances.

MR DONAGHUE: That we have not provided particulars of them.

HIS HONOUR: The plea in that subparagraph (c), at least to the uninitiate, might be understood as referring only to the factual circumstances as thus far are revealed in the pleadings, but these are matters for another day, Mr Donaghue.

MR DONAGHUE: Well, I am raising them now only, your Honour, because it did seem to us that the facts in paragraph 15 were facts that go to

the question of the content of procedural fairness and we have sought previously to persuade your Honour that on this inquiry the question that should be posed for the Full Court is about the exclusion or otherwise of procedural fairness and not as to its content because, in our submission, a content question is factually dependent and we have not had that factual dispute or litigation. So I do urge your Honour to confine the question to a question about the exclusion of procedural fairness or its applicability, but not to its content, but your Honour has already heard me on that topic.

HIS HONOUR: Yes.

MR DONAGHUE: Finally, your Honour, perhaps a minor matter. In question (2)(b) – and your Honour may be against us on this, I am not sure if the words were omitted deliberately or through confusion of drafts, but we had sought to - question (2)(b) refers to a time “required to determine whether” an officer “may discharge” a person, which we read as going to the decision-making process rather than to the implementation of a decision if made and we had proposed some words that would ensure that “determine” did not have that limited meaning.

HIS HONOUR:

required to determine whether the maritime officer may discharge the plaintiff from detention at that place –

and effect that discharge.

MR DONAGHUE: Our words were “the steps reasonably required to effect that discharge” but if - - -

HIS HONOUR: “and the steps reasonably - - -

MR DONAGHUE: “required to effect such discharge”.

HIS HONOUR: To “effect that discharge” I would prefer, yes.

MR DONAGHUE: Yes, your Honour, I do not seek to say anything further.

HIS HONOUR: Yes. Is there anything in reply, Mr Merkel?

MR MERKEL: Your Honour, we would just say we disagree with our learned friend’s view about how the matter should proceed on procedural fairness, but that is a matter for argument before the Full Court or before a Judge to whom the matter is referred. But on the last matter, your Honour, on (2)(b), we say we do not mind “and the steps required to effect that

discharge” but to build in a third reasonableness, your Honour, builds in a totally uncertain set of circumstances, including a circumstance that there could be ongoing negotiations about the terms of the discharge which are indefinite.

Because the outcome is indefinite the steps required remain at large and we would say it is fair to say that the steps required to effect that discharge on the basis that one would expect, your Honour, that the taking to a place would only occur when the steps required to effect the discharge were the formal steps taken at that time. We say to inculcate a third reasonable – which is what my learned friend is asking, is building reasonableness upon reasonableness and it becomes almost meaningless to the Court to deal with that. So we would say - - -

HIS HONOUR: You can propound a speaking answer to the question? Yes?

MR MERKEL: Would your Honour just excuse me for a minute? I am just adding on at the end of (2)(b), your Honour, “and as is required to effect that discharge”. We say reasonableness should be built into the equation before the discharge and formal requirements of discharge should be what is left.

HIS HONOUR: Yes.

MR MERKEL: They are the only comments we would make, your Honour.

HIS HONOUR: The plaintiff was a passenger on an Indian flagged vessel (“the Indian vessel”) which left Pondicherry, India. On or about 29 June 2014, an Australian Border Protection vessel (“the Australian ship”) intercepted the Indian vessel in Australia’s contiguous zone as defined in section 8 of the Maritime Powers Act 2013 (Cth). On 29 June 2014, maritime officers from the Australian ship boarded and detained the Indian vessel, detained those on board the vessel and either took them, or caused them to be taken, onto the Australian ship.

On 1 July 2014, the National Security Committee of Cabinet decided that those on board the Indian vessel should be taken to a particular place, which is a place outside Australia. On 7 July 2014, passengers from the Indian ship applied to this Court for urgent interim relief preventing their being given into the custody of the Sri Lankan Government. The Court granted that relief in substantially the terms sought with the effect that the defendants were restrained until 4.00 pm on 8 July 2014 from surrendering or delivering those persons into the custody of the Sri Lankan Government: see, generally, [2014] HCATrans 148.

On 8 July 2014, on further hearing of the applications for interlocutory relief, the defendants undertook to the Court not to surrender or deliver the plaintiffs into the custody of the government of Sri Lanka without giving 72 hours prior written notice: see, generally, [2014] HCATrans 149. The Solicitor-General for the Commonwealth said of that undertaking, in the course of those proceedings, that it was addressed to what counsel for the plaintiffs had described - see [2014] HCATrans 149 at lines 115 to 120 - as the “central issue” being “a fear of removal of persons against their will to Sri Lanka”.

As originally framed, the several proceedings instituted in the Court by persons who had been on the Indian vessel sought relief restraining the defendants from delivering the plaintiffs into the custody of the Sri Lankan Government. In the hearing which was held on 8 July 2014, counsel for the plaintiffs rejected the proposition that the plaintiffs sought an entitlement to enter Australia: see [2014] HCATrans 149 at line 228. The matters were then described - see [2014] HCATrans 149 at lines 235 to 237 – as being concerned with a “much narrower question” of whether the plaintiffs could “be refouled to their country of nationality from which they fled as refugees against their will, and by the use of coercive power by the Commonwealth.”

Amended writs of summons and statements of claim in several actions were filed on 15 July 2014. Those amended proceedings sought, among other things, relief to the effect of restraining the defendants from taking the plaintiffs to Sri Lanka or any other country that had not assumed obligations of non-refoulement under international law.

The matters were brought back before the Court for further directions on 18 July 2014: see, generally, [2014] HCATrans 150. I indicated then that a case stated under section 18 of the Judiciary Act 1903 (Cth) in one of the several actions that had by then been instituted might be the most expeditious way of resolving the issues presented by the matters. I also then indicated the form that a case stated might take.

In the course of that hearing, counsel for the defendants said – see [2014] HCATrans 150 at lines 773 to 775 – that “The Commonwealth would not and has no plans to involuntarily release any of the persons directly from our vessel to Sri Lanka.” Following two adjournments that day, the plaintiff prepared a further amended writ of summons and statement of claim and leave to amend the statement of claim in substantially that form was granted. The draft statement of claim deleted a number of references that had earlier been made in earlier versions of the proceedings to “Sri Lanka”. In particular, the plaintiff no longer sought to restrain the defendants from taking him to Sri Lanka but did seek habeas corpus.

The plaintiff distributed what it described as the final form of the amended writ of summons and statement of claim to the defendants and the Court on 21 July 2014. The defendants filed a defence to that pleading on 22 July 2014 and a further directions hearing was held on that day. At that hearing the plaintiff and the defendants each gave to the Court separate drafts of cases stated. The version then proposed by the plaintiff did little more than refer to the pleadings the parties had filed and proposed a series of very generally expressed questions said to arise from the joinder of issue in the pleadings. I indicated to the parties in the course of that hearing that I was not minded to state a case in the form propounded by the plaintiff and I remain of that view.

It is of course important for the efficient disposition of this matter that the legal issues which arise are identified as precisely as possible but in order to do that it is necessary to identify the facts that are to be assumed or are admitted for the purposes of determining the questions: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 357 to 358, paragraphs 49 to 54, per Chief Justice Gleeson and Justices Gaudron, McHugh, Gummow, Hayne and Callinan; [1999] HCA 9.

In this case, the plaintiff makes a number of allegations in respect of which he gives some particulars but reserves the right to provide additional particulars at some future unspecified time. Many, if not all, of the administrative law challenges which the plaintiff seeks to make to the decision to take him to a place outside Australia appear to be of this kind.

Accordingly, although I intend to state a case for the opinion of the Full Court, the case which I state will not deal expressly with every claim that the plaintiff makes in his statement of claim. A number of particular aspects of that proposition should be amplified.

I will not state a case with respect to the matters alleged by the plaintiff in paragraphs 59 to 63 of the amended statement of claim. If, as the plaintiff has admitted in paragraph 3 of his reply dated 22 July 2014, the person in command of the Australian ship authorised the exercise of maritime powers in relation to the Indian vessel on the basis that the commander of the Australian ship “suspected, on reasonable grounds, that the vessel was involved in a contravention of the Migration Act 1958 (Cth) . . . within the meaning of s 9 of the Maritime Powers Act”, at least part of the factual foundation for paragraphs 59 to 63 may fall away.

Whether or not that is so, I have not found it possible to identify from the plaintiff’s pleadings with any sufficient certainty the factual bases for his contentions in paragraphs 60 and 62 of his amended statement of claim that a decision to take the plaintiff to a place outside Australia “was not within the bounds of legal reasonableness and was otherwise disproportionate to the statutory purpose”. The allegation appears to include, though not be limited to, a factual assertion that taking the plaintiff to a place outside Australia would require detaining the plaintiff on an Australian vessel for a period longer than he would have had to be detained on that vessel if he had been taken to Christmas Island. It is at least an available inference that, had the plaintiff been taken to Christmas Island, he would at once have become subject to another form of detention, namely immigration detention. It is not immediately apparent, then, what consequence is said to follow from the observation that taking him to a place outside Australia will take longer than would taking him to the nearest Australian territory.

I do not propose to state any question relating to the issue or issues which it is sought to raise by paragraph 51 of the amended statement of claim about the exercise of powers in Part 3 of the Maritime Powers Act for a purpose set out in Division 4 of Part 2 of that Act. Again, it may be that these allegations are overtaken, either wholly or to some relevant extent, by the admission in paragraph 3 of the reply to which I have already referred. But, whether or not that is so, the pleadings are not in a condition from which I think it possible to state the relevant facts or question said to relate to or arise from these allegations with sufficient clarity to put this aspect of the matter before a Full Court.

The defendants, before this hearing, filed further documents setting out a form of case stated as they proposed it could go forward together with an indication setting out additions which the plaintiff sought to have made to the case as propounded by the defendants. I have since made available to the parties a draft of the case in a form generally identifying the form in which I would propose to state a case. The parties have made some proposals for amendment to that form of case stated. In particular, the plaintiff asks, and the defendant does not oppose, an amendment of paragraph 4 of the case stated to state in different form the content of the non-refoulement obligations upon which the plaintiff seeks to rely. An amendment of the kind propounded will be made.

Paragraph 15 of the draft case stated sets out a number of facts which have been pleaded and admitted and which are facts which may – I do not say must – bear upon the content of any obligation to accord procedural fairness to the plaintiff that might be found to exist. I express no opinion, of course, about whether there is such an obligation, its source or its content and I express no view about whether the facts alleged in paragraph 15 are the only facts that may bear upon that question. Those are questions and issues fit for argument.

I am, nonetheless, of the opinion that despite submissions to the contrary made on behalf of the defendants, that the case stated should make reference to the pleaded and admitted facts. What consequences follow, for the questions as they are framed, will be a matter for the parties to develop in argument having regard, no doubt, to the bounds of the matter that is joined between them identified from the pleadings they have filed.

Finally, the defendants submit that question 2(b) of the proposed draft questions should be amended by adding at its end the words “and the steps reasonably required to effect that discharge”. Counsel for the plaintiff resists that alteration submitting that it builds reasonableness upon reasonableness to a point where the content of the obligation is not sufficiently capable of certain identification. I need form no view about whether the criticism counsel for the plaintiff makes of the asserted statement of obligation is well or ill founded. Those are again matters that can be the subject of argument. It is, I think, desirable that the question be amended in the fashion proposed by the defendants.

Accordingly, once a document has been engrossed by the defendants and provided for signature I will state a case in the form sufficiently indicated by the reasons I have given. That case stated will be listed for hearing before a Full Court in Canberra on 5 August next at 10.15 am. It will be listed for no more than two days. Counsel and any interveners are to order their affairs on the footing that no more than two days can be allocated to the hearing of this case and if necessary time must be divided between counsel in a fashion that will permit the proper presentation of argument by both sides. If, for some reason, the parties cannot agree upon the division that is to be made, I am reminded of a statement sometimes made by Chief Justice Gleeson that in case of disagreement the Court might be required to engage in a little alternative dispute resolution and it will do so.

The parties should attend to whether sufficient section 78B notices have been given. It may be that the questions about non-statutory executive power might be thought to raise an issue of a kind which would require the giving of a section 78B notice. That, in the first instance, is a matter for the parties but I invite their attention to it and steps should be taken, if necessary, to perform that task as soon as practicable.

Subject to anything that counsel may say as to the form of the orders, I propose to give directions for the further conduct of the matter as follows:

1. The plaintiff is to file 12 copies, one copy unbound and unperforated, of the special case book, and serve three copies on the defendants on or before 12 noon, Friday, 25 July 2014.
   
2. The plaintiff is to file an original, plus nine copies, and serve a copy on the defendants, of annotated written submissions, Form 27A, of no more than 20 pages; his annotated chronology, Form 27B; and a list of authorities on or before 12 noon, Monday, 28 July 2014.
   
3. The defendants are to file an original, plus nine copies, and serve a copy on the plaintiff, of annotated written submissions, Form 27D, of no more than 20 pages, and a list of authorities on or before 4.00 pm, Wednesday, 30 July 2014.
   
4. The plaintiffs are to file an original, plus nine copies, and serve a copy on the defendants, of an annotated reply, Form 27E, on or before 12 noon, Thursday, 31 July 2014.
   
5. Each of the matters, other than CPCF, should be stood out of the list generally, reserving liberty to any party to apply on not less than 24 hours’ notice in writing. The parties in this proceeding should have liberty to apply on not less than 24 hours’ notice in writing to opposite parties.
   
6. The costs of the directions hearings today and earlier should be costs in the cause.
   

Are there further directions that I need to give? Do counsel seek to be heard about the form of orders which I have indicated I propose to make?

MR MERKEL: Your Honour, just one or two matters. Your Honour, unless I missed it, may not have referred to the particular place which I understood was not opposed in paragraph (d) at page 9 of the special case.

HIS HONOUR: I did not refer to it, I omitted to do so. It should be made. Thank you for drawing it to my attention.

MR MERKEL: Your Honour, can I also inform your Honour, a section 78B notice had been given on section 61 but we will look at it in terms of the current claim and see if that needs to be reviewed.

HIS HONOUR: That is all I ask.

MR MERKEL: Your Honour, on the timing aspect, I had notes that on an earlier occasion your Honour had indicated that the timetable would finish at noon on Friday the 1st, and what I was going to ask your Honour today was if you could put back, for good reason which I will come to in a minute, your Honour, our submissions to noon on the 29th, my learned friend’s submissions to 4.00 pm on the 31st, and we would have our reply

overnight by noon on Friday the 1st so that that would be within the earlier timetable, but that one day, with respect, your Honour, will be needed.

There is quite a task which we now need to focus on and the available resources would make the task complete and efficient by noon on the 28th difficult but the extra day would make quite a big difference for us, your Honour. We do not prejudice the Commonwealth or the timetable because they, of course, have from now till - if our timetable is accepted – the 31st and this means that the reply would be on noon on the Friday, your Honour, which is still four days before the hearing and of course your Honour can take it that timetable will be adhered to. So we would ask for that extra 24 hours, your Honour.

HIS HONOUR: Yes. What do you say, Mr Donaghue?

MR DONAGHUE: One minor matter – just before the timetable, your Honour, when your Honour was dealing in the reasons with question (2)(b) I took your Honour’s reasons to indicate acceptance of the modification that the defendants had sought to that question, but I thought I heard your Honour to say - your Honour gave some reasons for rejecting Mr Merkel’s submissions but then your Honour said, I think, the amendment in the form proposed by the plaintiff should be accepted.

HIS HONOUR: If I said that that was the reverse of what I had intended. Again, thank you for pointing it out. I should check the transcript and correct it.

MR DONAGHUE: Just if we are to engross a copy I wanted to make the right - - -

HIS HONOUR: The perils of extemporising a judgment. You would think by now, after 22 years, I would have learned how to do it, would you not, Mr Donaghue?

MR DONAGHUE: Your meaning was well understood, your Honour. I just wanted to make sure of it, avoiding a debate. Your Honour, we prefer Mr Merkel’s timetable. I had, like Mr Merkel, a note of the dates we thought that your Honour had in mind and I was going to propose a modification but I think I might quit where I stand and just say that we would prefer the timetable that Mr Merkel suggested. So his submissions midday on Tuesday, ours 4.00 pm on Thursday and then reply noon on Friday.

HIS HONOUR: Can I give those directions with reasonable confidence that they will be adhered to, to the minute; not to the day, to the minute?

MR DONAGHUE: I think we have missed a few by 15 minutes, your Honour, a couple of days but we understand the significance of adhering to that timetable, given the hearing on the 5th and it just - - -

HIS HONOUR: All I ask is that you recall at the end of the process, from our end we have some practical issues.

MR DONAGHUE: Yes.

HIS HONOUR: If we are going to digitise them we have to get them round. If we are going to send them around in hard copy we have to get them round.

MR DONAGHUE: I understand that, your Honour, and we, as Mr Merkel said, we just have to adhere them so we will. The other matter, and I raise this with some trepidation, your Honour, is that having had some discussions with my juniors in this matter we are wondering about 20 pages and particularly given that, as your Honour knows, sometimes one can become more efficient and tighter when one has a little longer. But the time for that crafting is not going to be available in the circumstances and if your Honour were prepared to allow 30 – we will not use it if we do not need it.

HIS HONOUR: Come and talk to me if you are really getting into trouble, Mr Donaghue, but do not expect a very warm reception. Look, we have to distil this. I know how hard it is to write a short document.

MR DONAGHUE: Well, in a short time. That is - - -

HIS HONOUR: It is much easier to write a long document, I know that, but can I simply say to you, for the moment at least, I will insist on the 20.

MR DONAGHUE: I understand, your Honour.

MR MERKEL: Your Honour, the last matter is to regularise the pleadings. I am not sure whether it is intended the pleadings will go in the Court book.

HIS HONOUR: You are not going back to where we were last night, are you, Mr Merkel?

MR MERKEL: No, your Honour. My learned friend just opposed one amendment and I just wanted to get our statement of claim in a correct form, so could I hand up to your Honour the form that is not - - -

HIS HONOUR: Has he seen this?

MR DONAGHUE: I have, your Honour, and yes, we do not oppose it.

MR MERKEL: If I can just hand it up to your Honour.

HIS HONOUR: If we are thinking of past Chief Justices then I should remember the occasion when Chief Justice Barwick said to counsel who had got out of the lion’s den, “Don’t go back for your hat”. If there is no opposition to this do I need to focus upon any aspect of it?

MR MERKEL: No, not at all, your Honour. So if your Honour would give leave for us to file that further amended writ of summons in that form, we will do that forthwith.

HIS HONOUR: I will initial that and it may remain on the file. You may have leave to amend in the form or substantially the effect of.

MR MERKEL: No, in the form.

HIS HONOUR: In the form of the document which I will initial and will remain on the file.

MR MERKEL: Thank you, your Honour.

HIS HONOUR: Is there anything else that we need to attend to?

MR DONAGHUE: No, your Honour.

MR MERKEL: Can I just say, your Honour, on behalf of the plaintiffs, we are indebted to the Court and we acknowledge the difficulty that the case has placed the Court in. We appreciate the expedition which the matter has been given.

HIS HONOUR: Thank you, Mr Merkel. It is kind of you to say that. Lest there be any doubt the timetable will be books 25 July; plaintiff’s written submissions 12 noon, Tuesday, 29; defendants’ written submissions 4.00 pm, Thursday, 31 July; reply 12 noon, Friday, 1 August. Is that right, counsel? I think it is.

MR MERKEL: Yes, your Honour.

HIS HONOUR: Very well, adjourn the Court.

AT 4.04 PM THE MATTER WAS ADJOURNED