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High Court of Australia Transcripts |
Last Updated: 24 January 2014
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S297 of 2013
B e t w e e n -
PLAINTIFF S297/2013
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Melbourne No M150 of 2013
B e t w e e n -
PLAINTIFF M150 OF 2013 BY HIS LITIGATION GUARDIAN SISTER BRIGID MARIE ARTHUR
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S4 of 2014
B e t w e e n -
PLAINTIFF S4/2014
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Directions hearing
GAGELER J
TRANSCRIPT OF PROCEEDINGS
FROM SYDNEY BY VIDEO LINK TO MELBOURNE
ON THURSDAY, 23 JANUARY 2014, AT 10.01 AM
Copyright in the High Court of Australia
____________________
MR S.B. LLOYD, SC: If it please the Court, I appear for the plaintiff, with MR J.B. KING, in the S297 and S4 matters. (instructed by Fragomen)
MR C.L. LENEHAN: May it please the Court, I appear with MS S.M. KEATING, in M150/2013, your Honour. (instructed by Allens Lawyers)
MR S.P. DONAGHUE, SC: May it please the Court, I appear with MR P.D. HERZFELD, for the defendants in each of the three proceedings. (instructed by Australian Government Solicitor)
HIS HONOUR: Now, gentlemen, I have looked at the written submissions and the other documents that have been filed. The consensus appears to be that the first two matters are appropriate to be put before the Full Court in the form of the referral of a demurrer and, as I understand it, the consensus appears to be that the demurrer could be heard before the Full Court in the two matters in one half day session. Is that your understanding, Mr Lloyd?
MR LLOYD: I think on a previous occasion - as I understand it, Mr Donaghue has indicated he thinks it can be done in half a day. Mr Niall, I think, on a previous occasion before your Honour suggested half to one day. If your Honour told us it had to be done in half a day no doubt we would rely largely upon our written submissions; that would mean Mr Niall and I would have little more than half an hour each. They have slightly different points – well, there are overlapping points and they have some additional points to us and maybe one point that we do not have. I would have thought in the normal course half to one day.
HIS HONOUR: Yes. Well, there is a possibility, but it is only a possibility, of the case being slotted into the March sittings. How long it would take, of course, affects whether or not that can occur. Subject to one question in your matter, Mr Lloyd, I would propose to make today directions that would be focused on having the case ready for hearing in the March sittings if that can occur. Now, the question relates to the partial demurrer in your matter. I just want to be clear what would be left of the case if the demurrer were decided one way or the other.
MR LLOYD: Certainly. If the demurrer is decided such that the regulations are valid then what notionally would be left is our application for mandamus but we would not press it if the regulations were valid and so the matter would, in substance, disappear.
HIS HONOUR: Well, let us be clear about it. If the regulation is valid, then the appropriate orders for the Full Court to make would be to uphold the demurrer and dismiss the proceeding.
MR LLOYD: Yes, or they could remit it to your Honour and then your Honour would dismiss it or we would dismiss it by consent or some such thing; yes, any of those. If we were successful, then we would want a decision as soon as possible from the Minister and our mandamus then would come into play.
HIS HONOUR: Yes. Very well, while you are on your feet, have you looked at the proposed directions in Mr Donaghue’s outline of submissions?
MR LLOYD: In the S297 matter?
HIS HONOUR: Yes, I think he has filed them in S297 and M150.
MR LLOYD: Yes.
HIS HONOUR: Paragraph 12.
MR LLOYD: We proposed a faster timetable in the hope – because I think on the last occasion your Honour mentioned a possibility of a late February hearing to facilitate that.
HIS HONOUR: Yes.
MR LLOYD: If early March is the earliest possible time, then perhaps this timetable would be fine.
HIS HONOUR: All right. Well, there are no precise dates in this timetable, I just want to mention some dates to you and ask if you have any difficulty with them. Paragraph 12.1, which would be the first time for you to do something, would be 3 February.
MR LLOYD: Yes. Well, we could do it faster than that so 3 February – well, I should say, we were going to propose that we do the demurrer book as early as next week. I do not think there would be much in the demurrer book, there would be our pleading and the demurrer, I think, so it would not
take any length of time. In terms of submissions, we certainly could do it by 3 February; that would be fine.
HIS HONOUR: Yes. And then 12.2 would be 17 February and 12.3 would be 24 February.
MR LLOYD: Yes, they would all be suitable.
HIS HONOUR: Yes. Well, I will deal with your other matter, Plaintiff S4, in a moment.
MR LLOYD: Certainly.
HIS HONOUR: Mr Lenehan, I might hear from you next. Now, you have heard the dates that I mentioned to Mr Lloyd.
MR LENEHAN: I have, your Honour.
HIS HONOUR: Would they be acceptable to you?
MR LENEHAN: Yes, your Honour.
HIS HONOUR: And I see no reason why your demurrer should not be referred with the Sydney demurrer to the Full Court.
MR LENEHAN: Thank you, your Honour.
HIS HONOUR: And the timing from your perspective is what?
MR LENEHAN: I think I had optimistically said in our written submissions yesterday half a day and I had the opportunity to speak to Mr Niall last night and Mr Niall agrees with Mr Lloyd that it is half to one day.
HIS HONOUR: Yes, thank you, Mr Lenehan. Mr Donaghue.
MR DONAGHUE: Your Honour, we are likewise fine with the dates that your Honour proposes; they do not cause any difficulty for us. Having read the submissions that Mr Lenehan filed yesterday, we have also been becoming nervous about the half day and agree that half a day to a day is probably more realistic. If the Court only has half a day then no doubt the parties are all experienced and we can do it, but it might be better if half a day to a day was possible.
HIS HONOUR: Mr Donaghue, there is just one practical question that I wanted to ask; you may or may not be in a position to answer it. Are you
able to tell me how many pending visa applications are affected by the issue that is raised in these proceedings?
MR DONAGHUE: Off the top of my head, your Honour, I am not. There is though a related matter I did want to raise with your Honour, which is this. As I understand the position at present, no visas have been refused in reliance upon the challenged regulations but that position is likely to change in the very near future. Of the two plaintiffs who are the proposed plaintiffs for the matter in the Full Court, neither of them is yet the subject of a refusal of their application on the basis of the regulation. There is a possibility – and, obviously, I cannot predict one way or the other what will happen here – but there is a possibility that the challenged regulation will be disallowed in the Senate.
In the event that that was to happen, and no decision had been made on either plaintiff’s application at that time, that would seem to render these proceedings moot. I do not anticipate that that will be a problem because I am instructed that it is likely that a decision will be made in Plaintiff M150’s decision prior to the time when Parliament resumes, so it is probable that there will be a decision that would raise the issue that the Full Court – or that would crystallise the issue of the validity of the regulation because in the event that a decision has been made, whether or not the regulation is disallowed, that decision would continue to have operative effect in respect of that plaintiff. I did want to raise with your Honour that possibility because as things presently stand there is some risk that the matter might be derailed in the event that the Senate were to disallow the regulation.
HIS HONOUR: Well, it is not for me, of course, to speculate as to what might occur in one of the Houses of Parliament. If that eventuality were to occur, then the matter should be relisted for further directions.
MR DONAGHUE: Thank you, your Honour, that is what we would propose, but as I say, I do not anticipate that that will cause a fatal problem. It may be that in the event that that occurred only M150 could go forward because if no decision has been made in respect of Plaintiff S297 then that proceeding would have become moot.
HIS HONOUR: Thank you. Mr Lloyd, did you have something to say about that?
MR LLOYD: Yes. Your Honour asked about other matters. I should have mentioned - your Honour probably has seen it – but we filed an affidavit for Mr Varess which shows that the Minister is currently in a process whereby he is seeking in relation to all matters involving UMA people before the Federal Circuit Court to have those held over until the S297 decision. So they are sort of being held in abeyance. I do not know how many there are. Mr Varess’ firm has six, but there is no doubt that many others would fall into that category.
The other matter which Mr Donaghue mentioned; in relation to matters which are currently pending before the RRT, we do not have any evidence but we have made some inquiries, it does appear to us that the RRT may be about to start making decisions based upon the reg. We do not know for sure, they have not confirmed one way or the other, but they have started to set down very short hearing times, which I think our people think augurs poorly from the point of view of them being interested in the refugee question as opposed to the UMA question. So it does seem that that will affect sort of a fairly significant cohort of people.
HIS HONOUR: Very well. Thank you, Mr Lloyd.
In matter M150 of 2013, I would propose to make the following directions:
In matter number S297 of 2013, I would propose to make the same directions preceded by the following three orders and directions:
Does anyone have any comments on those proposed orders? They are the orders that I make in those two matters. Now, that leaves us with the other Sydney matter, Mr Lloyd. There seems to be furious consensus there that you need to talk to Mr Donaghue.
MR LLOYD: Yes, well we certainly think the way forward – I think our submissions talk about a stated case but we meant a special case.
HIS HONOUR: Yes.
MR LLOYD: We are hoping that we will be able to – and we have done a statement of claim which we were going to seek leave to rely upon but maybe the better course is for that to be, as it were, our first salvo in the special case and Mr Donaghue can say what he is prepared to agree to and not agree to. There are some documents that will be necessary in that matter. It does not quite work as well as a demurrer. So, hopefully, we will be able to agree something if we can come back before your Honour at some convenient time, in two or three weeks we had in mind.
It is a substantial matter. I mean, there are more people caught by that issue than the other issue, as shown by Mr Varess’ affidavit in this matter, and our client is in detention so we would hope for a fast timetable. It may well be that it is not fast enough to be heard with the other matter, but hopefully not too long afterwards. There is some overlap in relation to the validity of the regulation. If there is a disallowance, S4 certainly would still continue because that would be one hurdle which my client would then overcome in respect of that matter and one point that the Minister might otherwise seek to rely upon that would be gone. There is an issue as to the reasoning of Justice Hayne in the M76 decision and how we seek to apply that in this context.
HIS HONOUR: Is that a constitutional issue?
MR LLOYD: Not the way we put it. We rely upon – and we apprehend that the substance of Justice Hayne’s approach is to rely upon the construction of the detention provisions in the Migration Act 1958 (Cth) and that is certainly as far as we seek to take it, which is why I should say
we did not do a section 78B notice in the S297 matter because we will not be relying on any section 75(v) issue.
HIS HONOUR: Yes.
MR LLOYD: In terms of how to proceed, there are some documents that we have which we will obviously want to have in. We would also be seeking to have some documents that were before the Minister which we do not have that presumably the Minister took into account in making the decision to not – in effect, we would say, the decision to refuse all the 46A processes and we would like to have those in the special case as well, but we are hoping that we can discuss that with Mr Donaghue and his instructing solicitors and come to an agreement as to what those appropriate documents are, which we do not know yet.
So in terms of what they suggest I think is a period during which agreement can take place. We are content with that, we will work towards that, if your Honour can tell us a good time for your Honour. They have suggested the week of the 17th. We had hoped it could be done faster than that, but I know your Honour will be in Court the previous week, presumably, so it is a matter for your Honour.
HIS HONOUR: Well, what about the 17th itself?
MR LLOYD: If your Honour would be prepared to sit at 9 o’clock. I am in Court at 10.15; that is the only matter.
HIS HONOUR: Well, we could do it on the 18th. I would certainly be prepared to sit at 9 o’clock but we could also do it on the 18th if that is more convenient to you.
MR LLOYD: I appreciate that, your Honour, but I am then in Court on the 18th and 19th as well.
HIS HONOUR: You are a busy man, Mr Lloyd. Well, we will make it - - -
MR LLOYD: Or 4.15 on the 17th.
HIS HONOUR: We will make it 9 o’clock on the 17th, if that - - -
MR LLOYD: Suits Mr Donaghue as well.
HIS HONOUR: - - - suits Mr Donaghue; he is a busy man as well. Mr Donaghue, is the 17th at 9 o’clock all right for you?
MR DONAGHUE: It is, your Honour. I do not know that I need to add to what Mr Lloyd has said, we will negotiate and hopefully we will make progress. There are some significant factual issues we will have to work through with Mr Lloyd, but I think we can try to do that between ourselves.
HIS HONOUR: Very well. Thank you.
MR DONAGHUE: Your Honour, there is just one point, really a procedural point, I should note. As Mr Lloyd said, he has filed a statement of claim together with the application for show cause. The application for show cause itself is not particularly informative without the statement of claim and it may be that at some point it would be useful for the plaintiff to amend their application to show cause to incorporate the substance of the matters that are in the statement of claim if the matter is not to go forward on pleadings but really we are in your Honour’s hands, procedurally, as to how you want to deal with that.
HIS HONOUR: Well, I think I will leave you to discuss that with Mr Lloyd and add it to your agenda and we can deal with it to the extent I need to make a decision on the 17th.
MR DONAGHUE: Thank you, your Honour.
HIS HONOUR: Very well.
In matter number S4 of 2014, I make the following directions and orders:
MR LLOYD: If it please the Court.
MR DONAGHUE: If the Court pleases.
HIS HONOUR: The Court will now adjourn.
AT 10.23 AM THE MATTER WAS ADJOURNED
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