Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales [2014] HCATrans 37 (5 March 2014)

Last Updated: 5 March 2014

[2014] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S36 of 2014

B e t w e e n -

SLEIMAN SIMON TAJJOUR

Appellant

and

STATE OF NEW SOUTH WALES

Respondent

Office of the Registry
Sydney No S37 of 2014

B e t w e e n -

JUSTIN HAWTHORNE

Appellant

and

STATE OF NEW SOUTH WALES

Respondent

Office of the Registry
Sydney No S38 of 2014

B e t w e e n -

CHARLIE MAXWELL FORSTER

Appellant

and

STATE OF NEW SOUTH WALES

Respondent

Directions hearing

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 5 MARCH 2014, AT 9.31 AM

Copyright in the High Court of Australia

____________________

MR G.R. JAMES, QC: May it please the Court, I appear for the plaintiff, Tajjour. (instructed by Matouk Joyner Solicitors)

MR P.D. LANGE: Your Honour, I appear on behalf on the plaintiff, Hawthorne, with my learned friend MR A. AHMAD. (instructed by Matouk Joyner Solicitors) For today’s purposes, I also appear on behalf of the plaintiff, Forster. (instructed by McGowan Lawyers)

MR J.G. RENWICK, SC: May it please your Honour, I appear with MS K.M. RICHARDSON for the State of New South Wales and the Attorney-General for New South Wales intervening in each matter. (instructed by Crown Solicitor (NSW))

HER HONOUR: Mr Renwick, I just have one principal question about the questions proposed to be stated for the opinion of the Full Court.

MR RENWICK: Yes, your Honour.

HER HONOUR: Question no 2, the words in conclusion after the question “Is there implied into the Commonwealth Constitution a freedom of association independent of the implied freedom of communication in governmental and political matters” there presently appear the words “and, if so, what are its incidents?”, I wondered whether that was either necessary or appropriate.

MR RENWICK: It may not be necessary, your Honour. What we tried to do when we drafted this was just to succinctly state the issues raised by the plaintiff in each matter.

HER HONOUR: I understand that, but that is a rather open-ended question and it is really not exactly pertinent. All that is required, it would seem to me, is that the question be posed “Is the freedom independent of the freedom of communication”, which is then followed by question 3, “Does section 93X of the Crimes Act contravene any implied freedom of association”.

MR RENWICK: For our part, we are content with that, your Honour.

HER HONOUR: All right. Are the other parties content if we delete the words, “and, if so, what are its incidents?”

MR JAMES: For my part, yes, your Honour.

HER HONOUR: Yes.

MR RENWICK: For our part as well, your Honour, yes.

HER HONOUR: Yes, thank you. In question 3, I would have thought that the question could be, “whether it contravenes any implied freedom” since that is the question, rather than “the asserted”.

MR JAMES: Yes, your Honour.

MR RENWICK: Again, yes.

HER HONOUR: Thank you. Understanding that the questions stated in the special case are amended in those terms, we can turn to the draft directions. So I will treat the special case for the purpose of proposed direction no 1 as amended in those terms. These draft directions, Mr Renwick, are agreed with the other parties?

MR RENWICK: Yes, your Honour, they are.

HER HONOUR: Has the special case been filed?

MR RENWICK: No, it has not because we did anticipate there might be the odd change. We are in a position - that could be filed today or tomorrow, your Honour.

HER HONOUR: All right then. Direction no 1. Could the special case be filed today?

MR RENWICK: Certainly, your Honour, by 4.00 pm?

HER HONOUR: By 4.00 pm today and the questions set out therein are referred for hearing before the Full Court of this Court. Then I will make the following directions numbered 2 to 8 as agreed. Direction no 9 will be “The special case is listed for hearing in the May sittings of the Full Court”.

MR JAMES: May it please, your Honour.

HER HONOUR: I expect that those dates will be provided fairly soon, I am told by the Senior Registrar. I think it was agreed at the time that the matter was referred in that it would need two days, Mr Renwick, for hearing?

MR RENWICK: Assuming everybody intervenes, which is a fair assumption in this sort of matter, yes, your Honour.

HER HONOUR: Yes, I think that is probably right. Those orders will be made. Thank you, gentlemen. The Court will now adjourn.

AT 9.36 AM THE MATTER WAS ADJOURNED