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High Court of Australia Transcripts |
Last Updated: 6 March 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
FRENCH CJ
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO LINK TO SYDNEY AND MELBOURNE
ON THURSDAY, 6 MARCH 2014, AT 11.09 AM
Copyright in the High Court of Australia
____________________
MR S.B. LLOYD, SC: I appear with MR J.B. KING for Plaintiff S297. (instructed by Fragomen)
MR R.M. NIALL, SC: If your Honour pleases, I appear with MR C.L. LENEHAN and MS S.M. KEATING for Plaintiff M150. (instructed by Allens Lawyers)
MR S.P. DONAGHUE, SC: If your Honour pleases, I appear with MR P.D. HERZFELD for the defendants in both matters. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Lloyd.
MR LLOYD: Has your Honour received the submissions that we provided?
HIS HONOUR: Yes, I have, thank you. I wonder if I could just clarify a couple of things first to see this territory in which we are operating. Presently there is a pending motion for disallowance of the challenged regulation in the Senate, which has been adjourned, as I understand, until 27 March.
MR LLOYD: That is so.
HIS HONOUR: Now, there are a couple of possibilities, I suppose. One is that the motion is defeated. If the motion is defeated – putting to one side for a moment the cap on the protection visas, if I can – then in both cases we have an argument about the section 48 question under the Legislative Instruments Act and we have an argument about general ultra vires and that is really the extent of it as the demurrer presently stands.
MR LLOYD: Yes.
HIS HONOUR: If the motion is not defeated, there are two possible options, I suppose. One is that there is a disallowance by resolution of the Senate. Alternatively, if the motion is not disposed of, I think there is an automatic disallowance, is there not, under section 42 – the regulation ceases to have effect.
MR LLOYD: I think that is so, yes.
HIS HONOUR: I think that has to be within 15 days of a motion having been filed. What is that latest cut-off point, do you know?
MR LLOYD: I am not positive, but I believe it is 27 March.
HIS HONOUR: That is for automatic disallowance.
MR LLOYD: Yes, if it is not dealt with then I believe that is what happens.
HIS HONOUR: All right.
MR LLOYD: I have not completely checked, but - - -
HIS HONOUR: Maybe Mr Donaghue and other parties can confirm or contest that. So if the regulation is disallowed, either because the motion is successful or it is not dealt with and therefore there is an automatic disallowance, is there a remaining question because of its interim effect up to the point of disallowance?
MR LLOYD: Well, my client is, of course, being kept in detention at that time.
HIS HONOUR: Yes.
MR LLOYD: Conceivably, there might be issues to that, but in terms of the decision making, my client is ultimately seeking a mandamus to have a decision made and if it is disallowed that is one of the hurdles then removed from my client to get a decision made in relation to his permanent protection visa application.
HIS HONOUR: The criterion that is blocking him would not exist.
MR LLOYD: Exactly so.
HIS HONOUR: Yes, okay. So apart from that, the hurdle that your client might then face relates to the cap on the protection visa determination under section 85.
MR LLOYD: Yes, the new cap, yes.
HIS HONOUR: The new cap, all right. I will just ask Mr Niall if he is in a similar situation.
MR NIALL: Yes, your Honour. In terms of my understanding of the 15 sitting days is that it will take it into early May because of the number of days that they are sitting.
HIS HONOUR: Yes.
MR NIALL: In terms of the other question that your Honour asked my learned friend my client has had a refusal, but he has an extant application in the Refugee Review Tribunal which would then, when that application comes for determination, apply the regulation as it then would be which would be disallowed - - -
HIS HONOUR: This is a time of decision criterion, in effect.
MR NIALL: It is. So we apprehend that the Tribunal would be not foreclosed in any way by the fact that there had been an earlier regulation then disallowed.
HIS HONOUR: This is obviously relevant to the question of the utility of proceeding with the hearing tomorrow. That is one issue. The second issue really then arises out of – by the way, while you are still on your feet, are
you raising a similar issue in relation to the caps? It must affect your client, must it not?
MR NIALL: It does, your Honour. Whether the plaintiff in 150 amends – we have not confirmed instructions in relation to that. The position, your Honour, is that we are here because our client is in a slightly different position and raises a different issue to 297 because he is not an offshore maritime arrival.
HIS HONOUR: I know. You were not Immigration cleared and you did not have a visa when you arrived.
MR NIALL: That is right, but it is a different – on the cap there would not be, as I apprehend it, any different interest in my client so he may amend or he may - if the matter is to be determined he may not. We do not have those instructions.
HIS HONOUR: You do not have any instructions as to whether you are going to do anything about it.
MR NIALL: No, that is so, your Honour.
HIS HONOUR: Yes, all right. Thank you.
MR NIALL: If your Honour pleases. I should just indicate, your Honour, also, if my client is ultimately successful, it may not be the cap – the cap may not actually bite him - - -
HIS HONOUR: Because the cap does not – the cap ceases at 1 July.
MR NIALL: Yes, and if there is a remittal from this Court because the primary decision was infected, the 90 days and 60 cap of 65A starts from the order of remittal so it could conceivably be not just the cap that prevents a decision prior to 30 June.
HIS HONOUR: Yes, I see. All right, thank you.
MR NIALL: If your Honour pleases.
MR LLOYD: Your Honour, perhaps I should also indicate that if the PV cap had never been created and the regulation had been disallowed, although while I accept that there would be a utility question, we were going to argue that the matter should proceed on Friday in any event because the Minister obviously takes the view that he can remake regulations with relatively minor differences and that is okay and we would be concerned that he would just do it again if it was disallowed. So we would say that there is a line of authority in the US Supreme Court and the Irish High Court to the effect that where there is an area where there is a difficulty to review, the matter can be considered to be not moot even though the person affected is not necessarily directly affected.
HIS HONOUR: Obviously, at one end of the spectrum one can say is this whole thing moot. There is another question prior to that and that is what is the most useful circumstance in which one can have all the issues properly before the Court that really fall for decision.
MR LLOYD: Absolutely.
HIS HONOUR: Now, in relation to your foreshadowed challenge to the cap, you are obviously running that as a judicial review challenge.
MR LLOYD: Yes. I do not know if your Honour has the Court book handy but there was, of course, a cap before.
HIS HONOUR: Yes, I appreciate that and you had pleadings about that which were taken out.
MR LLOYD: Yes, so what we anticipate we would seek to do is depending upon the facts on page 355 of the book at paragraphs 22 to 23, on the last occasion the cap was set below the number that had already been granted, we said that went to validity. One would expect that the Minister would not have made that mistake twice but we want to check that. From paragraphs 24 to 26 there is a contention about improper purpose where we rely upon statements by the Minister and at paragraphs 26 to 27 there was a contention, which is very much a purely legal contention, in relation to section 65A which mandates a decision being made within 90 days of certain dates and we say that is inconsistent with section 85.
So we would certainly, we think, anticipate running those points again to the extent that the facts bear out plus there may be an additional point now that to the extent that the Minister believes his regulation to be valid, that is to say, the one he is defending tomorrow, he may have taken that into account in setting the cap in which case that might have infected error as well. That is the area in which we would - - -
HIS HONOUR: But there is an air of uncertainty. You want to know what was before the Minister and what his reasons were.
MR LLOYD: That is so.
HIS HONOUR: That is assuming it crystallises into an amended statement of claim with grounds for review of that decision and presumably
certiorari is what you would be seeking, I suppose. That is not amenable really to demurrer, is it? That would have to be, if the facts could be agreed, presumably, a case stated if it were to be dealt with by this Court?
MR LLOYD: I would think – I suppose, save for one matter. If we did not at all run an improper purpose point, we think that there is not enough material, then I do not see why the statutory question about the relationship between section 65A and section - that certainly could be demurred. The number point, if the number mistake was made again, that presumably will not bear controversial facts, so that also could be demurred too. I accept that if we do an improper purpose argument, probably a special case with some attached documents would be the better way to proceed.
HIS HONOUR: Yes, all right. I will hear from Mr Donaghue now.
MR DONAGHUE: Thank you, your Honour. We broadly agree with what my learned friends have already said to your Honour as to the analysis of the issues and what would or would not remain live. It would certainly be our position had the regulation been disallowed as was originally – the motion having originally been scheduled for yesterday, that we would have contended that the matters should not proceed but as your Honour says it is really a matter of efficiency.
In terms of having all of the issues before the Court and if our friends wish to amend to challenge the cap then we certainly do not seek to stand in the way of that and we accept that it would be appropriate for the matters to go off to allow that to occur. My understanding in relation to the question your Honour asked about the last date for automatic disallowance, we believe based on our own calculations that it is 14 May, but I do not have instructions confirming that but that is our understanding of the position.
In relation to the question of how procedurally the challenge to the cap might best proceed it is, I think, what Mr Lloyd said is right. It is possible that it might be – that the existing demurrer can be extended but it is possible that that will not be appropriate and it all very much depends upon what Mr Lloyd ends up pleading which, of course, depends upon his examination of documents that he has not yet seen.
We do say that those documents will reveal that the new cap is quite different from the old cap that he attacked in terms of the reasoning that led to its imposition and so it is quite possible that on inspection of the documents an improper purpose plea will not be proceeded with but we accept that Mr Lloyd will need to see that material before any final decision could be made on that front.
HIS HONOUR: Do you need a subpoena to produce that material?
MR DONAGHUE: We are happy to produce the material in categories 1, 3 and 4 of the draft subpoena that was exhibited to or annexed to Mr Lloyd’s submissions. With respect to paragraph 3 of that draft - - -
HIS HONOUR: Paragraph 2, was it?
MR DONAGHUE: No, paragraph 3, your Honour.
HIS HONOUR: Sorry, which are you excluding?
MR DONAGHUE: I am excluding 3.
HIS HONOUR: I am sorry, so it is 1, 2 and 4?
MR DONAGHUE: So 1, 2 and 4 we are happy to produce.
HIS HONOUR: Yes.
MR DONAGHUE: Paragraph 3, we submit that the relevance of options that were not pursued is not apparent. We are happy to provide the documents that relate to the option that was pursued but that we do not see the relevance of other such documents. Also, the hypothesis here is that the regulations have been disallowed and, of course, that has not yet occurred and may never occur. So we resist that paragraph but otherwise there is no need for a subpoena and we can produce those documents.
HIS HONOUR: How soon could that be done?
MR DONAGHUE: My suggested timetable, your Honour, was 17 March. While I am on my feet, our proposal would be along the following lines: documents produced by 17 March; plaintiffs to file an amended application if they so choose by 24 March; defence or demurrer by 31 March; plaintiff submissions on the new grounds by 7 April; defendant’s submissions on the new grounds by 14 April and plaintiff’s reply on 17 April. That would have the matter ready again just before the Easter break on the footing that, as we understand it, the Court is considering May. Unless your Honour has anything further, that is all I would seek to say.
HIS HONOUR: All right, thank you. Mr Lloyd, what do you say about the comments in relation to category 3?
MR LLOYD: Insofar as we are interested in running an improper purpose point, the documents there will reveal, potentially at least, what the Minister was seeking to achieve, which might show an improper purpose. We say it is relevant. The fact that he has not chosen to proceed with an option does
not mean that it does not cast light upon the purposes that he was seeking to achieve when he asked for a range of options.
If, for example, there is a request saying, to speculate, “I want to know any possible way that I can stop giving visas to these people as I promised at the last election; please tell me every way”, then we would want to have before the Court evidence to show that was his motivating purpose. That itself might not be apparent from a subsequent submission which says, “This is the option that you chose in relation to our last paper and this is how we seek your approval”. We say it is indeed potentially relevant to an improper purpose claim.
HIS HONOUR: Assuming we vacate tomorrow, what do you say about the timetable suggested?
MR LLOYD: If the Court were to vacate tomorrow – and I should indicate that that is not our request - - -
HIS HONOUR: I understand that, yes.
MR LLOYD: If the Court were to vacate tomorrow then I think the timetable would be acceptable, your Honour.
HIS HONOUR: Yes, all right. Mr Niall, you would need to consider your position with respect to the cap also, would you not?
MR NIALL: Yes, your Honour, but in relation to tomorrow can we submit that the matter could proceed tomorrow and that the potential for factual inquiries making the challenge to the cap inappropriate for referral to the Full Court could be dealt with either by remitting that part of the case, should it emerge as an issue, or it to be dealt with by a single Justice of the Court. In our submission, the significant issue that currently is before the Court – appreciating there are a number of variables in play – is ready to proceed and we would respectfully ask that the matter proceed tomorrow and what comes of the challenge to the cap can be dealt with as and when it arises.
HIS HONOUR: I am not concerned, as I think you accept, just with the interaction of any potential cap challenge. I am concerned also with the sort of limbo we are in at the moment pending the resolution one way or the other of the disallowance motion.
MR NIALL: I appreciate that, your Honour.
HIS HONOUR: Yes.
MR NIALL: If your Honour pleases. Sorry, in terms of the timetable, if your Honour is minded to allow that to happen then we would seek the same directions in our matter.
HIS HONOUR: Yes, all right.
MR NIALL: If your Honour pleases.
MR DONAGHUE: Your Honour, can I add one matter that I should have added?
HIS HONOUR: Yes.
MR DONAGHUE: When I said that we were prepared to produce the documents, that production would be subject to any claim of legal professional privilege or other privilege that can properly be made in relation to those documents.
HIS HONOUR: So far as that is concerned, Mr Donaghue, what I would propose to do is to simply make orders for the production of the documents subject to all just objections.
MR DONAGHUE: Yes, thank you, your Honour.
HIS HONOUR: I will just adjourn very briefly, gentlemen, to formulate some orders.
AT 11.28 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.42 AM:
HIS HONOUR: Thank you for bearing with me. Before I set out the orders I propose to make, on which I will give the parties an opportunity to comment, could I just indicate that the one possible area of difficulty, although I do not think it will present a difficulty, is at the point at which, if a statement of claim is amended to pick up the challenge to the cap, there may be a question whether the response to that is by way of demurrer or by way of special case. I have formulated the orders on the basis that I expect that the parties will be able to agree the relevant facts and that they will be able to file a consent order and then I can, as it were, slot in the timetable that has been proposed by Mr Donaghue. Obviously there is liberty to apply if some glitch occurs in relation to that.
Now, as appears from what I have just said, I take the view that the efficient disposition of this litigation would be facilitated if the position as to disallowance were clear. So I do propose to vacate tomorrow’s hearing. The order I propose to make, and again I will state it formally in a moment, is that the matter be relisted for hearing not before the second week of the May sittings. That will allow, of course, inquiries to be made of counsel as to availability and so forth and the most convenient date to all concerned, as well as, hopefully, some clarification of the last date for an automatic cut-off if the motion has not been dealt with before that time. So the orders are as follows - - -
MR DONAGHUE: In that regard, your Honour, can I indicate that I have confirmed 14 May is the last date.
HIS HONOUR: Thank you. Well, there is a sitting day on 15 May. I then propose the following orders – they are the same orders in respect of M150 and S297:
(i) a record of the number of visas of the following classes or subclasses granted on or between 1 July 2013 and 4 March 2014:
(a) Protection (Class XA);
(b) Subclass 866 Protection;
(c) Subclass 785 Temporary Protection;
(ii) documents related to the Minister’s determination that were considered by the Minister or were before the Minister in the making of the Minister’s determination;
(iii) documents containing submissions to the Minister about options available to the Minister for not granting or postponing the grant of Permanent Protection visas in the event of disallowance by the Senate of the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth);
(iv) documents containing statements made by or on behalf of the Minister about the reasons for or purposes of the Minister’s determination.
(i) the plaintiff is to file and serve amended submissions by 7 April 2014;
(ii) the defendants are to file and serve amended submissions by 14 April 2014;
(iii) the plaintiff is to file and serve any amended reply by 17 April 2014.
I have made a reference to filing amended submissions because I assume that the most convenient way to proceed would be to simply expand the existing submissions that have been made. If that is inconvenient, then the parties can let me know. Mr Lloyd, is there anything arising out of that?
MR LLOYD: Yes, it occurred while your Honour was out that given that the date of the disallowance motion is currently 27 March, would it be possible to adjust all the orders from your order 4 onwards back by a week so that we do not end up pleading something about the regulation which has been disallowed three days later and then we have to amend yet again?
HIS HONOUR: When you say “back” you mean - - -
MR LLOYD: So order 4 would then be 31 March, order 5 would then be 7 April, then 6(i) would be the 14th, and then the 21st, and then the 24th. It is just adding seven to the dates your Honour has read out.
HIS HONOUR: Yes, I see. Okay, thank you.
MR LLOYD: The only other thing we would say is that in relation to the question of costs the need for the adjournment comes from the late decision by the Minister in relation to the imposition of the cap. It is a situation where he originally opposed a cap. We started proceedings for a cap. He then revoked the cap. We had to amend. Then, two or three days before the hearing, he imposes another cap again which leads to the matter going off. We think a fair order for costs would be that the costs of the plaintiff thrown away by the adjournment should be paid by the Minister.
HIS HONOUR: Mr Lloyd, I think the short answer is that there is a mix of variables in play here and the cap is one of them so it will be costs in the cause. Now, Mr Donaghue, do you have any difficulty with that revised timetable?
MR DONAGHUE: The revised timetable ends up sitting - the Minister filing submissions on 21 April, which is Easter Monday, wherein I assume the Registry will not be open.
HIS HONOUR: That is absolutely right. What if we put it forward to the – just a minute.
MR DONAGHUE: At the moment my proposed dates were all running on Mondays. If we ran them on the previous – well, the previous Friday we would have the same problem actually.
HIS HONOUR: Well, let us just skip over Easter without having to change the others. If we had you filing on, say, the 24th - - -
MR DONAGHUE: Could we skip an extra week and make it the 28th, given that it is the second week of May?
HIS HONOUR: Yes. So that would be the 28th for you and the reply would then come in on the - - -
MR DONAGHUE: On 1 May, I think.
HIS HONOUR: All right, any difficulty with that? So those orders are amended accordingly. So order 4 is 31 March for the filing and serving of the amended statement of claim. Order 5 is 7 April for the filing and serving of any amended defence and demurrer and the special case. Order 6(i) is 14 April. Order 6(ii) is 28 April. Order 6(iii) is 1 May and there is liberty to apply. Mr Niall, did you have any - - -
MR NIALL: No, thank you, your Honour.
HIS HONOUR: All right. Now, I assume that the way in which the special case issue will be resolved, if it arises, will be by way of submission of a consent order, attaching a proposed special case and, assuming that that can be facilitated, then obviously the order will be made and we do not have to interrupt the flow of the timetable. If there is a problem about that, then you can seek further directions at short notice.
MR NIALL: If your Honour pleases.
HIS HONOUR: Yes, all right, thank you. The Court will now adjourn.
AT 11.52 AM THE MATTER WAS ADJOURNED
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