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High Court of Australia Transcripts |
Last Updated: 7 July 2015
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M40 of 2015
B e t w e e n -
PLAINTIFF M40/2015
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Melbourne No M41 of 2015
B e t w e e n -
PLAINTIFF M41/2015
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
Directions hearings
HAYNE ACJ
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 1 APRIL 2015, AT 9.30 AM
Copyright in the High Court of Australia
____________________
MS K.L. WALKER, QC: If the Court pleases, I appear with MR N.M. WOOD and MS J.D. WATSON on behalf of the applicants in both matters. (instructed by Allens Lawyers)
MR C.J. HORAN: May it please the Court, I appear for the defendants in each matter. (instructed by Australian Government Solicitor)
HIS HONOUR: Now, I have had both matters called together. Is there any reason not to deal with them together, Ms Walker?
MS WALKER: In my submission, no, there is not, your Honour.
HIS HONOUR: Mr Horan?
MR HORAN: No, your Honour.
HIS HONOUR: Yes. Yes, Ms Walker.
MS WALKER: Can I inquire, your Honour, whether your Honour has had an opportunity to read the submissions, including the late filed submissions this morning?
HIS HONOUR: Yes.
MS WALKER: Thank you. Your Honour will be aware that each of the matters involves detention of young persons who, at the time of the relevant decision, were minors and each of the proceedings raises two, we say, significant issues: firstly, the effect of section 4AA of the Migration Act on the Minister’s power to revoke a residence determination under section 197AD of the Migration Act and that question, we say, may also have implications for the exercise of other powers by the Minister that may be impacted by the effect of section 4AA of the Migration Act. Section 4AA, as your Honour is no doubt aware, is the section in which Parliament affirms as a principle that detention of minors should be a matter of last resort.
The second issue, your Honour, is the question of a duty of procedural fairness in relation to decisions made under section 197AD of the Migration Act to revoke a residence determination. Both of the two issues are common to both proceedings. Plaintiff M41 has an additional issue going to a failure to take into account matters of critical importance, but principally the cases are sought to be dealt with together - - -
HIS HONOUR: That was the, in effect, if I call it the later communication by the police.
MS WALKER: That is correct.
HIS HONOUR: That is perhaps characterising it unfairly but a communication by the police.
MS WALKER: That is correct, yes.
HIS HONOUR: Yes.
MS WALKER: In respect of today’s proceedings, your Honour, we apprehend there are a number of issues that need to be addressed. The first is the question of remittal and whether it is possible and, if it is possible, whether it should occur. The second is to deal at some level with the application for extensions of time noting that it may be that that issue ought not be resolved today, but that is one of the issues that I will address your Honour on, and, thirdly, if the matter is not to be remitted, the further conduct of the proceedings in this Court.
By way of summary, the plaintiffs’ principal contention in that regard is that the matter ought not be remitted and, indeed, ought to progress with as much expedition as is possible in this Court due to the fact that their detention is continuing and if it be the case that that detention is based on an unlawful decision then that issue ought to be resolved as a matter of urgency.
HIS HONOUR: Can I just understand that a little better? Let it be assumed that extensions of time are granted in this Court or some court. Orders were made quashing the revocation of the residence determination. What consequence would then follow with respect to the application of the general provisions of the Act?
MS WALKER: Potentially an additional consequence in relation to the judicial proceedings would be a writ of habeas corpus and then following - - -
HIS HONOUR: Why?
MS WALKER: Because upon the quashing of the revocation decision the plaintiffs contend that there would be no reasonable suspicion sufficient to invoke the duty, if you like, to detain the plaintiffs in an immigration detention centre as opposed to allowing them to reside at a specified place pursuant to the residence determination. Upon a court reaching the view that that residence determination was not properly revoked and so it was in fact still in force, an officer, for the purposes of the Act, could not form the reasonable suspicion that the plaintiffs were required to be taken into immigration detention.
HIS HONOUR: So the premise is, is it, that quashing revocation leaves a validly made residence determination which would operate according to its terms.
MS WALKER: That is the premise, your Honour.
HIS HONOUR: What thereafter happened would be a matter ultimately up to the Minister.
MS WALKER: That is correct, your Honour.
HIS HONOUR: Yes.
MS WALKER: Your Honour, perhaps the first issue to deal with in the circumstances is the question of remittal. In this regard - - -
HIS HONOUR: Well, is it? The question of extension of time is one which may itself bear upon whether remitter should occur. I have in mind this which I think may not have emerged with particular clarity from the submissions yet. What, if any, consequence follows from the minority of the plaintiffs for at least part of the relevant time?
MS WALKER: The consequence of that, your Honour, is that at the time of the relevant decision section 4AA was engaged.
HIS HONOUR: I understand that, but what could they have done by way of proceeding?
MS WALKER: What could they have done by way of proceeding?
HIS HONOUR: Yes.
MS WALKER: They could have instituted proceedings of this kind.
HIS HONOUR: Why? They were minors. They could not.
MS WALKER: Through a litigation guardian, your Honour.
HIS HONOUR: How could they appoint a litigation guardian? Who was their guardian at that time, Ms Walker?
MS WALKER: The guardian at that time was the Minister, your Honour.
HIS HONOUR: Yes.
MS WALKER: There have been - - -
HIS HONOUR: That is the position, is it not?
MS WALKER: I do understand that to be the position, your Honour.
HIS HONOUR: The Minister as guardian of these persons, what, would be expected to appoint a litigation guardian to sue the Minister in another capacity? Is that right? That is the position to which you come, is it not?
MS WALKER: It is an interesting question, I suppose, your Honour, whether the Minister would need to appoint the guardian or simply consent to the appointment of a guardian, but leaving that perhaps semantic point to one side, yes, save that proceedings for minors with litigation guardians have been instituted in this Court on previous occasions.
HIS HONOUR: I well understand that, but there is at least a question in my mind about what if anything follows from the minority of the plaintiffs for the engagement of time limits. Now, under limitation statutes, which are not engaged here, I think, time would not run. I think the Rules are silent so far as the application of the High Court Rules would be concerned for the running of those times, but it may be – a possible point of view may be – I do not know – that minority is itself a matter to be taken to account, whether with particular weight or consequence there is hours of innocent amusement to be had – and in the case of one of these plaintiffs, but not the other I think, the proceedings were commenced within six months after minority ceased, were they not – within six months of coming of age?
MS WALKER: Yes, I believe that is correct, your Honour. One of them came of age in December of last year.
HIS HONOUR: Now, there would then be perhaps a separate bundle of issues about the engagement of the Act’s time limits in the case of a minor.
MS WALKER: There indeed would be, your Honour, and it may be – the Act is certainly silent on that and I believe also the Rules are, but it may well be that in considering whether to extend the time the minority of the plaintiffs is indeed a factor that ought to weigh in favour of extension of time, even if the view was taken that the statutory provision did not – that time was not tolled by reason of minority.
HIS HONOUR: Now, it seems to me – obviously, I have to hear what Mr Horan will have to say about all these things, but it seems to me that if issues of that kind are wrapped up in the question of extension, on one point of view it may be possible to say that no extension is called for because it was commenced within six months of attaining majority. I do not know how that argument would go and I do not know whether it would have any substance. Those are matters for others to judge later, but those are issues that may – they may not – bear upon whether remitter should happen if remitter is possible. That is why I say the extension issues may be wrapped up with the more general question of remitter.
MS WALKER: Yes. Yes, I understand.
HIS HONOUR: Mr Horan will no doubt stand and tell me that there is a single simple answer to all of this and we will await what happens with that, but there is that question swirling around.
MS WALKER: Yes, your Honour, and I appreciate what your Honour has said in that regard and certainly it at least raises questions of a factor to be determined and potentially questions of construction of both the provision in the Act and the provision in the Rules, but in relation to one of the plaintiffs it may be that the timing of his achievement of majority is a key factor. I am not in a position to address your Honour in any greater substance on that issue today, but it may be that the complexity of those issues also tend against remittal because they are issues of significance that ought to be determined in this Court and they go – in particular, the question under the Rules, but also the question in relation to the Court’s power to extend time really goes to the fundamental jurisdiction of this Court and not a lower court.
HIS HONOUR: And the consequences that follow from the Immigration (Guardianship of Children) Act – the fact that it is the Minister who is the guardian of the estate and person of the minor.
MS WALKER: Yes, also a relevant matter, your Honour. Yes, I accept that.
HIS HONOUR: There is a certain piquancy about being on both sides of the record, but there we are. Yes.
MS WALKER: In relation to the extension of time, the plaintiffs also say that no extension of time under the Act in fact is required, but should one be necessary they would of course seek it. That issue is dealt with in some detail in the written submissions filed this morning but it really raises a question of the application of the reasoning of this Court in Bodruddaza to the operation of section 486A in a context different from the way in which it was addressed in Bodruddaza but the plaintiffs’ argument there is that section 486A ought to be construed narrowly and, in particular, it ought to be construed so as not to limit the ability of a person to challenge the lawfulness of their detention in this Court.
The remarks of the majority in Bodruddaza at paragraphs 24 to 25 – and if it would assist, your Honour, I can hand up a copy of the case – but the remarks of the Court there indicated that section 486A was to be understood as directed at judicial review remedies, specifically those in section 75(v) of the Constitution. This proceeding does not invoke the Court’s jurisdiction in relation to 75(v) in the sense that it does not seek any of the remedies set out in that section. In that sense, the plaintiff says that section 486A has no application to the proceedings as constituted. The other issue is the time limit - - -
HIS HONOUR: It may be that there is in there a question about the nature of this Court’s 75(v) jurisdiction and its intersection with that provision which itself is a question of a kind that might appropriately remain here. I do not know.
MS WALKER: That certainly would be the position of the plaintiffs, your Honour, that resolution of that issue and the intersection indeed of section 486A with the Court’s jurisdiction under section 75(iii), which has been invoked, is also a matter that requires consideration and has not yet been the subject of consideration in this Court and ought to be the subject of consideration in this Court. All of that, your Honour, points to the proposition that the question of extension of time is not one that ought to be determined today and may indeed be one that ultimately is appropriate for referral to a Full Court, although that may not be a matter that needs to be determined today either.
HIS HONOUR: But looking ahead, it seems to me that there are at least – and I would hope only – at most two steps that would be required: coming back once more with an identified and articulated set of issues and an identified and articulated factual base for the resolution of those issues leading to a decision then whether to remit or keep and if it is kept it would go into a Full Court either by – you could do it by a stated case, special case, I assume, or you could do it as has been done, I think, in Berenguel, simply set the proceeding down for hearing before a Full Court.
MS WALKER: Indeed.
HIS HONOUR: But that last step – set down before a Full Court – could not happen unless the parties were ad idem that there is no factual dispute left to try.
MS WALKER: Yes, I appreciate that, your Honour. That is certainly the case. We had in mind a special case procedure but your Honour is right. There are a number of ways in which it could be brought before the Full Court and that again need not be determined today. Certainly the steps your Honour has outlined are the steps that the plaintiffs think it is appropriate to take from today to obtain orders to that effect. Can I perhaps hand up to the Court a draft minute of order to indicate the steps that we had in mind in relation to moving the matter towards a resolution?
HIS HONOUR: Yes. Does Mr Horan have this?
MS WALKER: Mr Horan has seen a copy of this, your Honour. The defendants have foreshadowed - - -
HIS HONOUR: At 10:29:30, was it, Ms Walker? Yes.
MS WALKER: It was early this morning, your Honour.
HIS HONOUR: Sorry, 9:29:30. Yes.
MS WALKER: I believe it might have been 8.50, your Honour.
HIS HONOUR: That is charity between counsel.
MS WALKER: The defendants have foreshadowed that they do seek to – or wish to file some evidentiary material and whilst the plaintiffs do not necessarily see that as a necessary step it is not one that they think need be foreclosed if it can be part of a timetable leading towards the preparation of what I have indicated in the draft as a draft special case, although that may be a premature description given the discussion your Honour and I just had.
HIS HONOUR: The only virtue of going down that kind of path, Ms Walker, is that it does force the parties to articulate in writing what they say are the issues between them and that has its advantages. The countervailing disadvantage is that preparation of a special case is never easy and does take time, but it may be that there could be found some middle ground where the parties agree upon a statement of the issues or the questions that arise and are content that the factual base is sufficiently described in the uncontested affidavits of A, B, C sworn, et cetera.
MS WALKER: That is also possible, your Honour, yes.
HIS HONOUR: There we are.
MS WALKER: The timetable that we have proposed is a reasonably swift one for reasons your Honour will appreciate. We think it is a manageable one and it is designed to achieve, if possible, a position where the parties, as your Honour has flagged, are indeed in agreement about the factual underpinning of the matter and agreed as to the questions that arise in the matter. There is at present no order – in this list – to file the – if I could call it the outcome of the conferring between the parties. That is in part because it is unclear precisely what the nature of that outcome would be but it would certainly be envisaged that a document would be filed prior to the next directions hearing.
HIS HONOUR: We have to trust counsel and if counsel get to an agreement no doubt we will hear about it. If counsel get to an impasse we will hear about it in other ways.
MS WALKER: Precisely, your Honour.
HIS HONOUR: Yes.
MS WALKER: I think there are no other matters I need to deal with immediately, your Honour, unless your Honour had further questions.
HIS HONOUR: No. Thank you, Ms Walker. Yes, Mr Horan.
MR HORAN: If the Court pleases. Your Honour will have seen from the written submissions that the defendant’s position broadly is that directions should be made for filing of evidence and then assess the future conduct in light of that. The live issues that arise in relation to, firstly, extension of time and remittal should be deferred until that next stage.
HIS HONOUR: I am not presently minded to make any decision about either extension or remitter, Mr Horan.
MR HORAN: Yes.
HIS HONOUR: I am, however, anxious to, putting it bluntly, prod the parties along the line to see whether by the next time you come back we can decide finally stay or go and if it is stay in this Court it would be not only stay but go into a list for hearing so that is my endpoint.
MR HORAN: I thought I might just briefly address some of the matters that have arisen in submissions – oral submissions by the plaintiffs. The first is just to add to that suite of options for future conduct that the matter could also be heard and determined by a single Justice. Now, I do not suggest that that would necessarily be appropriate but that has happened before in other cases and that is an available option which would enable the matter to be determined with a right of appeal to a Full Court.
HIS HONOUR: That is the point. Can I put it as bluntly as I may that the more efficient use of our resources is put it into a Full Court if it is to stay here, hear it once, hear it finally, no appeal. That has difficulties if there is a lively dispute of fact.
MR HORAN: Well, that is one of the reasons I mentioned - - -
HIS HONOUR: Then we have to have a trial.
MR HORAN: Yes, and that will be able to be assessed once the evidence is filed. It may be a relatively remote prospect that there will be a significant dispute of fact. There may be disputes about relevance of – what facts are relevant. At the moment I am not aware of any likely area of significant factual dispute that is relevant to the proceedings. In relation to the matter of extension of time, just while the matter is fresh in your Honour’s mind, the defendant’s position in relation to the minority of the plaintiffs at the time the decisions were made is that that would – there is no reason why that would not be a relevant consideration in the exercise of the discretion to extend time. But that does not mean that time does not run at all.
Secondly – and this is a relevant point, legally, that in any event it would not bring the current matters within time. Your Honour has referred to the six month period for certiorari under the High Court Rules. That rule now – I am not sure whether it has always been the case – incorporates any shorter period prescribed by law so that the defendant’s submission is that the time limit under the Rules is no different to the time limit under section 486A. So even if time had stopped running, it would still not avoid the need to grant an extension of time and the minority of the plaintiffs for some part of that period may be relevant to, in effect, how that discretion should be exercised.
HIS HONOUR: I well understand that submission. It may be right, I just do not know. But I do not want the parties to go forward without giving some careful thought to what consequence follows from the minority of the plaintiffs at various times. On a quick look at the books it will hardly come as a surprise that 19th century practice does not seem to have readily grappled with prerogative writ proceedings brought by infants.
MR HORAN: Yes.
HIS HONOUR: They were, as far as I can tell, not something that marched across the stage of the English courts in the 19th century. I have no idea what the answer is but I want counsel to at least address it in their own minds before it comes to a final argument and determination.
MR HORAN: Yes. Well, there might even be an issue – I am not sure how absolute the rules as to minority are in this context, but the plaintiffs in this case being 16, or 17 I think, whether or not they required a litigation guardian might not have been determined simply by their age under the age of 18 - - -
HIS HONOUR: A person who – rule 21.08.1:
A person under disability shall commence or defend a proceeding by litigation guardian.
MR HORAN: Yes.
HIS HONOUR: Infancy, I think, is still a disability, is it not?
MR HORAN: I have not checked that before coming here today, your Honour. In other contexts the age of majority is flexible but in this context it may be that being a minor would require a litigation guardian. Just on the question of guardianship which arises from that, although the Minister was the guardian of each of the plaintiffs under the Immigration (Guardianship of Children) Act, the practice is to delegate that responsibility to another person and that was done in this case. The section of the Act that deals with delegations is section 5 of the Immigration (Guardianship of Children) Act. So that may mitigate or remove any potential conflict in having a litigation guardian appointed for the purposes of commencing proceedings.
HIS HONOUR: But again it may, it may not, be relevant to know whether – for the Court to know whether a delegation had operation with respect to either or both of these plaintiffs and if so who the delegate was.
MR HORAN: Yes.
HIS HONOUR: But those are matters that counsel can - - -
MR HORAN: Well, also those matters will be able to be addressed - - -
HIS HONOUR: Looked at.
MR HORAN: - - - in evidence if they are relevant.
HIS HONOUR: Yes.
MR HORAN: Now, in light of the proposed minute of order, the only real area of difference if it even be an area of difference is as to whether and in what form a statement of issues or special case should be prepared or addressed. The defendant certainly agrees to proposed orders 1, 3, 5 and 6. In relation to order 5 - - -
HIS HONOUR: Well, consolidation – I am opposed root and branch to consolidating the proceedings. They can be listed for hearing at the same time before the same court, but consolidation just brings tears to my eyes each time. I have never seen consolidated proceedings work.
MR HORAN: Yes. Well, I was going to suggest that as an alternative, that the customary order be made that the proceedings be heard together. That leaves orders - - -
HIS HONOUR: Listed for hearing at the same time. The Court that hears them decides whether it will hear them together. Yes.
MR HORAN: If your Honour pleases.
HIS HONOUR: I am reverting to type, Mr Horan. I am back in the commercial list 20 years ago, sorry.
MR HORAN: The issues in relation to proposed orders 2 and 4, when I saw these orders this morning my initial reaction was that those orders might be premature before the questions of extension of time and remittal had been determined. It may be that the way around that, because of the advantages that your Honour has pointed to of focusing the parties’ mind on what the factual and legal issues are, is either to make orders, at least for preparation of a draft or to call it something else and have the parties exchange a statement of issues - - -
HIS HONOUR: What do we lose by having order 2? I am presently disposed not to order the parties to confer about anything and I trust to the good sense of counsel and those instructing them. If we had order 1 you are content with that time, are you? You can do - - -
MR HORAN: My instructions are that is a feasible timeframe from the defendant’s perspective.
HIS HONOUR: Yes – 2, if the plaintiff give you a draft special case - - -
MR HORAN: Well, they can do that anyway but we do not oppose the Court directing that.
HIS HONOUR: No - 3, affidavits in reply; omit 4; 5 just omit for the moment with a view to subsequent listing for hearing together and stand over with a reservation of costs. What will you - - -
MR HORAN: We would not oppose those orders.
HIS HONOUR: Yes. Is 22 April convenient to counsel? It is what is in this draft.
MR HORAN: It is from my perspective, your Honour. I do not think I have any further submissions on the substantive issues so we agree to the orders as proposed by your Honour and, speaking for myself, the 22nd would be an appropriate day.
HIS HONOUR: Yes. Ms Walker, is 22 April satisfactory to you?
MS WALKER: Yes, 22 April is satisfactory to me, your Honour, which is why I put it in the draft. It is not in fact convenient to my junior, so I may be able to muddle through without him, your Honour.
HIS HONOUR: I offer no comment whatever, Ms Walker.
MS WALKER: In the interests of progressing the proceeding, I would prefer to retain the date, your Honour.
HIS HONOUR: Yes. Otherwise do you want to be heard about the form of directions that I have indicated?
MS WALKER: No. I am entirely content with what your Honour has indicated.
HIS HONOUR: In each matter there will be directions substantially in the following form:
Do counsel want to be heard about the form of those orders?
MR HORAN: No.
MS WALKER: No, your Honour.
HIS HONOUR: Very well, there will be orders in those terms. Adjourn the Court.
AT 10.04 AM THE MATTERS WERE ADJOURNED
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