Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2015] HCATrans 249 (1 October 2015)

Last Updated: 8 October 2015

[2015] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M68 of 2015

B e t w e e n -

PLAINTIFF M68/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD (ACN 093 114 553)

Third Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 1 OCTOBER 2015, AT 5.01 PM

Copyright in the High Court of Australia

MR R. MERKEL, QC: If your Honour pleases, I appear for the plaintiff in this matter with MS R. MANSTED. (instructed by the Human Rights Law Centre).

MR G.R. KENNETT, SC: May it please the Court, I appear with MR P.D. HERZFELD for the first and second defendants. (instructed by the Australian Government Solicitor).

HIS HONOUR: Ms Foley, you appear for the third defendant?

MS FOLEY: I do. (instructed by Corrs Chambers Westgarth Lawyers).

HIS HONOUR: Yes, Mr Merkel. I have seen the application which is made by the defendant to amend paragraphs 88 and 89 of the special case. Is that all we are concerned with now?

MR MERKEL: Well, your Honour, no. We have seen an intention but we have not seen anything that records what the amendment is - - -

HIS HONOUR: No, not - - -

MR MERKEL: - - - and it has very substantial ramifications for the case in a number of issues, so we have only heard about it very late this afternoon and our position is we can form no view until we see what it is that has occurred.

HIS HONOUR: That sounds fair. Perhaps we might ask Mr Kennett.

MR MERKEL: Thank you, your Honour

HIS HONOUR: Mr Kennett?

MR KENNETT: Yes, well, your Honour has seen the very brief affidavit and the orders which we propose.

HIS HONOUR: I have.

MR KENNETT: It is the case that there is a singular lack of detail about what the nature of what we understand to be the proposed new arrangements in Nauru but it does seem to us that - - -

HIS HONOUR: Assuming that there has been a relaxation of the open requirements, how would it be put, what, that it means that it is less likely to be perceived of as detention? Is that it?

MR KENNETT: Yes, your Honour, to put it shortly. It does raise a question – or would raise a question as to whether what the plaintiff would be going back to in Nauru would constitute detention which has implications for the judicial power arguments in the case and also for the argument about the Nauru Constitution.

HIS HONOUR: Right, I understand it has come late and it is difficult and it is even more difficult no doubt for the plaintiffs. Why can we not have this, at least from your end, into satisfactory form by tomorrow afternoon? You must be able to get instructions and get it down on a piece of paper by then.

MR KENNETT: Well, we can certainly endeavour to do that, your Honour, and in the ordinary course, I would say I would be bound to say, yes, we could. It is just that at every stage of this matter, things seem to have taken much longer than expected when it comes to getting instructions about what is happening on the ground in Nauru. That is why we have sought to give ourselves until Monday morning to do it.

HIS HONOUR: Well, that is just too tight I think, Mr Kennett. The matter is listed for Wednesday morning for a two day hearing which is going to be very condensed, even as it stands. To be adding what might be more complexity to it at such a late stage I do not think is acceptable from the plaintiff’s view or even from the Court’s point of view, we have got to hurry it up a bit.

What I was proposing, or at least conjecturing about as I came in here, was the possibility of you getting your proposed amendments and an affidavit verifying the truth of them in by early tomorrow afternoon and the plaintiffs having until Monday to respond. I am not in a position to make orders for amendments until and unless I have seen what are proposed and I have heard from the plaintiffs and other parties as they are interested as to what they say about them.

I think if it is going to go forward, it is going to have to go forward as an application which would be dealt with if needs be by the Full Court on the morning of Wednesday when the hearing begins, but on the basis that long before then both sides have got in their possession – that is to say from you – the changes you want and the affects you say they have on the relief which is sought and from the plaintiffs the response, they say, as to what if any change to the relief sought the amendments might make. Now, I appreciate you might have some difficulties in coaxing the Nauruans, or whoever it is up there that gives you instructions, to do it expeditiously, but you are just going to have to, I think.

MR KENNETT: Well, what your Honour puts to me, I think, involves the parties putting on brief submissions as to the - - -

HIS HONOUR: What I had in mind was that by tomorrow, say by 3 o’clock – certainly no later than 4 – you put in the proposed amended paragraphs 88 and 89 of the special case which you want, and you verify the factual content of those amendments by an affidavit at the same time, and you file at the same time a short submission, no more than a couple of pages, as to what if any effect you say the amendments have on the answers to be given to the questions in the special case.

MR KENNETT: Yes. Well, your Honour, the timing is extremely tight but - - -

HIS HONOUR: It is.

MR KENNETT: - - - I have said what I can say about that. I did want to make sure that what your Honour had in mind would encompass not only filing the proposed amendment but giving some indication by way of written submissions as to what effect we say it would have and that our friends would do the same.

HIS HONOUR: Yes, well, those would come in by Monday. I think it is only fair. I am yet to hear from Mr Merkel about it but at least it certainly would be unfair to require him to do anything before, say, Monday afternoon.

MR KENNETT: Yes.

HIS HONOUR: All right, thank you. Mr Merkel, you have heard that. I appreciate it is difficult but there does not seem to be much choice.

MR MERKEL: Your Honour, can I just indicate the nature of our difficulties because they are substantial and we have proceeded on the special case that has been agreed upon, but I want to particularly mention, your Honour, that the open centre arrangements, as your Honour will recall, came in as added paragraphs very late in the special case and we spent a lot of time with our learned friends on fleshing out the detail of them because they are entirely outside our own knowledge and to get the special case agreed we eventually agreed on the faith of what the Commonwealth had put to us to a format which was very carefully worded, and your Honour will recall it was worded that these arrangements were not in writing. It could be revoked without reasons and so forth. They were there for a reason because they were relevant to trying to understand the legal nature of what was encompassed by open centre arrangements.

We face an even greater problem at the moment because there is a complex legal framework dealing with residents. There is a framework under the visa regulations, there is a framework under the RPC Act which creates an offence to leave, and there is a framework of centre rules. Until we actually know, not what the Commonwealth know, because the letter that was sent to us was that the government of Nauru has made an announcement and as far as the Commonwealth knows something is going to happen, as from Monday. We need to know the precise legal format of whatever it is that is going to happen and we then need to be able to digest that and accommodate it within that complex legal framework which has been set out in some detail in our submissions.

Now, your Honour, that is the first problem that I wanted to identify and it is not something we can simply answer by an affidavit being given to us. We need to see precisely the format of the arrangements that are said to be made; whether it is an announcement, whether it is some other form. Until we get that, we cannot even digest how it affects our case and how we may wish to analyse it as a question of Nauruan law.

Secondly, your Honour, what is extremely disturbing for us is that your Honour will recall we have proceeded with M68 and allowed it to go forward because of time constraints, because when M68 special case was finally agreed upon we expected that it would resolve all of the issues for M80. This changes the situation quite considerably because your Honour will recall that if they have created an open centre where they say there is no detention and they are challenging our standing on the previous regime, all of the resources that have been devoted to determining the lien principle and its application offshore to the Commonwealth arrangements, and there is the same Transfield contract for both Nauru and Manus, will come to nought and the idea that we originally had that at least the Court’s decision in Nauru will be in all probability determinative of M80 in all respects meant that the resources that had been devoted to M68 are put to the benefit of both cases. Now, this throws into some doubt that situation, your Honour, which is a matter of real concern to us.

HIS HONOUR: What do you mean; that if it were the fact that Nauru is now much more open in its detention for want of a better word than Manus, then nothing would be said in this case would be of much use in the Manus case? Is that the problem?

MR MERKEL: Well, when you say “more open”, the letter that we have received is that the detention centres could be open seven days a week, 24 hours a day. That is not what one usually expects of a detention centre.

HIS HONOUR: No.

MR MERKEL: The legal validity of that is another question but it is certainly a sharp contrast to Manus.

HIS HONOUR: There is not much we can do about that. It is the fact that it is now open, or to be open. We cannot pretend it is not in order to decide Manus, can we?

MR MERKEL: No, I follow that, your Honour, but one of the questions we need to raise with our learned friends is the utility of this case proceeding if it is not going to determine the lien principle, but that is something we need to discuss with our learned friends. It is just that, your Honour, the resources that have been devoted to getting this on have been devoted, as your Honour will have seen no doubt from the submissions - - -

HIS HONOUR: I have.

MR MERKEL: - - - to determining the lien principle offshore in respect of a detention centre, which was the situation when this cases started at Nauru and has changed in part but this is quite a considerable change. A third aspect I should raise with your Honour is this. That part of the facts in issue in this case is the Commonwealth’s capacity to influence or control the conditions of detention in Nauru and this late change raises in our mind a significant question which I raise with your Honour and that is that we would believe there is a possibility, real possibility or probability, that this has not come about solely at the instigation of the Government of Nauru on its own initiative but within that realm, in consultation or at the request of or after discussions with the Commonwealth, we would ask by the time that this matter is to be the subject of an affidavit tomorrow that the Commonwealth produce all documents in its possession, custody or control relating to the proposed open centre arrangements referred to in the letter of the AGS to the Human Rights Law Centre and others as at today, that is 1 October, because we do not accept that the Court should assume the Commonwealth has had nothing whatsoever to do with these new arrangements.

It fundamentally affects many of the issues relating to the Commonwealth and the next contract, so if it turns out that there are no such documents, so be it, but in fairness to us, your Honour, when these matters are entirely outside our control, the manner in which these new arrangements have come into effect and that any Commonwealth or Transfield involvement in that process is something that we say should be the subject of a discovery by 3 pm tomorrow.

HIS HONOUR: Are you going to need both, both Transfield and Commonwealth, or is not Commonwealth going to be sufficient?

MR MERKEL: Your Honour - - -

HIS HONOUR: We are pretty short on time.

MR MERKEL: - - - it is a very short time and I expect Transfield may have had nothing to do with it but, given the proximity of relationships, we would expect Transfield would have no documents, but we do not want to fall between two stools. If it was Transfield that conducted it, not the Commonwealth, then it may have records.

It may be, your Honour, that if this is entirely the initiative of Nauru, then the Commonwealth will have nothing in its possession. It is hardly onerous, given the very narrow framework, but in fairness to us, your Honour, we say that is a minimum requirement that we should be entitled to because we have to form a view about not only the form of the changed arrangements, if they are changed, but also the manner in which this has come about.

HIS HONOUR: Thank you. Ms Foley, what do you say about it all?

MS FOLEY: Your Honour, I take no issue with the process that has been laid out for dealing with matters over the next few days but I would object to Mr Merkel’s request that Transfield produce any documents. His submission on that point began with a request in relation to the Commonwealth and Transfield seems to have been just thrown in almost as an afterthought at the end. I do not understand the relevance of any role Transfield might have had in the decisions that Mr Merkel is talking about. It appears to me to be pure speculation and, given the tight timeframe, I would submit that Transfield should not be included in any such order.

HIS HONOUR: Yes, all right. Thank you. Mr Kennett.

MR KENNETT: Well, your Honour, we would resist any order for production of documents, particularly at such short notice. If the - - -

HIS HONOUR: There cannot be too many, can there? I mean, you only found out about it according to the affidavit yesterday.

MR KENNETT: We just do not know what there is, your Honour. I do not know what there is, your Honour. I do not think my instructors know what there is. We do not know whether there are public interest immunity claims in relation to some of the documents. If the case is to be run on the basis that discovery needs to be given and facts need to be proved, then perhaps we need to go back a couple of steps.

But as things stand, the matter is listed for next week on the basis of a special case. We are doing what we can to ensure that the special case reflects the facts. If our affidavit verifying the truth of what we understand is not sufficient for our friends to agree, then we need to take it from there but it is just not practical for us to conduct a search for documents and produce them by tomorrow afternoon and then presumably respond to whatever applications and arguments might arise from that.

HIS HONOUR: Well, what is the alternative? Do we just go ahead with the case as it is?

MR KENNETT: Well, that is not attractive, your Honour, because the – well, it is not attractive if the consequence is that the Court decides the legal issues on a factual basis which is not complete or is not correct. The best that we can suggest is the process that we have put forward which is I think broadly consistent with what your Honour put to me, although within a shorter timeframe from our point of view.

HIS HONOUR: The trouble is it is the best from yours, the Commonwealth point of view, but not from the plaintiff’s. I mean, they have surely got a legitimate complaint or at least question to say, how did these changes come about and if they came about at the instance of the Commonwealth, directly or indirectly, it affects what they say about the Commonwealth’s ability to control the show up there and thus whether it is the Commonwealth rather than Manus who is affecting the detention. Now, I do not know if it is the case but it is a logical proposition, is it not?

MR KENNETT: We do not presently see the relevance of that proposition. The fact, if it be the fact, that the Commonwealth discusses changes in arrangements, perhaps even suggests them to Nauru, does not, so far as we understand, it does not follow from that, at least so far as we understand, that the Commonwealth is in some sense the gaoler. The arrangements still need to be made, they still need to be reflected in the Nauru law and they have effect as such.

This is a proposition at a different level from the different level of discourse from what the plaintiff puts in her written submissions about the Commonwealth being able to procure people’s release when it wants to. This is at a different level of argument and at least at the moment we do not see how it is relevant to the issues in the case.

HIS HONOUR: Yes, thank you. Thank you.

MR MERKEL: Your Honour, could I just make one brief response to something my learned friend said?

HIS HONOUR: Yes.

MR MERKEL: We do persist with our application for that discovery but we do not want our learned friends to be under any misapprehension about what we are expecting tomorrow. My learned friend kept saying, an affidavit about what the Commonwealth understands to be the case. That is not a sufficient basis for us to agree to change the special case.

We have already had difficulty with the 2015 regulation which came in very late and we had difficulty obtaining proof that it passed, but that was a regulation. So, for us to agree to a fact outside our knowledge that can have very fundamental consequences for the outcome of the case, we maintain that nothing less than the format in which the change has occurred – not will occur, and not an announcement or not the Commonwealth’s understanding of it – would be sufficient for us to agree to change the special case which would be an addendum as to some future fact or present fact that we are not prepared to accept understanding or something that is known or information and belief from the Commonwealth and we have, I should say, a number of arguments about the requirement for legal form for this to have any legal effect or consequence.

So those matters really are critical to the way in which we see what the Commonwealth should be doing and we do maintain our application for documents. Our learned friend has not put reasons why that should not be done. I think I omitted to mention, I think I am appearing with Ms Bathurst in Sydney, your Honour.

HIS HONOUR: Thank you, Mr Merkel.

MR KENNETT: Your Honour, might I be - I am sorry to keep bobbing up and down but - - -

HIS HONOUR: Yes, Mr Kennett.

MR KENNETT: Might I be heard further on that? Your Honour, the other matters that my friend put to you as to the difference that now appears to be at least likely to emerge between this case – or the greater difference between this case and the case of PNG, raises a real question about whether there remains any urgency about hearing the matter next week.

It was not something that I came here expecting to say and we have certainly been proceeding on the basis that the case is listed for next week and we would do whatever we could to maintain that listing, but if there are to be applications that are pressed for discovery in circumstances where, as I said earlier, there could be issues about privilege and so forth or public interest immunity, as I should say, then that really does raise quite squarely,

in our submission, the question whether the hearing next week should go ahead or whether the matter should be put over to some later time so that this can all be done in a more orderly way.

HIS HONOUR: Yes, thank you.

I have before me an application made this afternoon by the first and second defendants for leave to amend paragraphs 88 and 99 of the special case in order to reflect what they say they have been advised concerning proposed changes to the arrangements in Nauru which are stated in some detail in paragraph 6 of an affidavit sworn by Rogan O’Shannessy this day, filed in support of the application.

As matters stand, it is impossible to know what the nature of the changes is other than that the Commonwealth has an understanding that the
Government of Nauru has announced that as from 5 October the arrangements which operate in the detention centre in Nauru, which are the subject of this proceeding, will be open, expanded arrangements to operate 24 hours per day, seven days per week.

The first and second defendants justify the lateness of the application on the basis that they have only just learned of the proposed changes and are naturally keen to ensure that the special case is heard on the facts as they are, rather than as they might once have been. Plainly, to make the orders which are requested by the first and second defendants at this stage of the proceeding would give rise to a number of difficulties, not least to the plaintiffs, in first of all ascertaining the truth of the facts which are to be alleged in the proposed amended paragraphs and then in responding to the effect upon them, if any, on the answers to be given to the questions posed in the special case.

In the circumstances, what I propose to do is to put the application to amend the special case over to be heard by the Full Court on 7 October 2015 at the time of hearing the special case, but in the meantime to direct as follows:

1. By 3 pm on Friday, 2 October 2015, the first and second defendants file and serve:
   

a document setting out paragraphs 88 and 89 of the special case marked up so as to show the amendments which they propose be made to those paragraphs;

an affidavit verifying the truth of the facts stated in the proposed amendments to paragraphs 88 and 89;

a list of the documents in the possession or power of the first and second defendants relating to the expanded arrangements, which, it is understood, will come into effect on 5 October 2015, which are referred to in paragraph 6 of the affidavit of Rogan O’Shannessy, sworn this day, in support of the application for leave to amend.

any further written submissions, not to exceed two A4 pages, 12 point type one and a half spaced, concerning the effect of the proposed amendments on the answers to be given to questions posed in the special case;

2. By 3 pm on Monday, 5 October 2015, the plaintiffs and any other party shall file and serve such further submissions, as they may be advised, not to exceed two A4 pages, 12 point typed one and a half spaced, concerning the effect of the proposed amendments on the answers to be given to the questions posed in the special case.
   

Those directions are less than satisfactory but in the circumstances I regret they are the best that can be done.

Ladies and gentlemen, having now had the benefit of reading all of the written submissions and appreciating the complexity of them, I should remind you that there are but two days set aside for the hearing of this matter. Counsel will need to allocate the available time amongst themselves in order to ensure that the hearing finishes within those two days and if counsel cannot agree on that, then the Court will have to impose its own allocations. Yes, Mr Merkel.

MR MERKEL: Your Honour, could I just say communications have already commenced recognising that matter and I expect there will be no problem with agreement, but I have been wrong before on that. Your Honour, only one matter I wanted to say on the directions. We would ask, your Honour, that the marked-up amendments to paragraphs 88 and 89 also annex any documents recording the changes brought about by the proposed amendments, which would be the subject, we assume, of the affidavit.

HIS HONOUR: Well, presumably, they would be exhibited to the affidavit?

MR MERKEL: Yes, but - - -

HIS HONOUR: You want them annexed to the document?

MR MERKEL: Yes, they would have to form part of the special case, if they exist, if there is something. But I apprehend if there is nothing, then

we will have difficulty with agreeing to it, but that is something we will have to wait and see, your Honour.

HIS HONOUR: Mr Kennett, do you have any difficulty with that? I mean, you either have or you have not.

MR KENNETT: Yes, well, that is right, your Honour, and if the new arrangements are reflected in some sort of official instrument, then in the normal course that would have been annexed to the special case. So I think what follows from that is that we do not have a difficulty with what my friend proposes in that regard.

HIS HONOUR: Very well then, I shall amend the direction which relates to the Commonwealth parties filing the document setting out the proposed amended paragraphs 88 and 89 by adding that there shall be annexed to that document any documents recording the proposed amendments which are now in existence.

I, as I say, adjourn the further hearing of this application to 10.15 on 7 October 2015 before the Full Court and I reserve the costs of the application. I am indebted to counsel for their assistance. Thank you.

AT 5.32 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 7 OCTOBER 2015