Plaintiff S111a/2018 & Ors v The Minister for Home Affairs & Ors [2018] HCATrans 258 (11 December 2018)

Last Updated: 11 December 2018

[2018] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S111 of 2018

B e t w e e n -

PLAINTIFF S111a/2018

First Plaintiff

PLAINTIFF S111b/2018

Second Plaintiff

PLAINTIFF S111c/2018

Third Plaintiff

PLAINTIFF S111d/2018

Fourth Plaintiff

PLAINTIFF S111e/2018

Fifth Plaintiff

PLAINTIFF S111f/2018

Sixth Plaintiff

PLAINTIFF S111g/2018

Seventh Plaintiff

PLAINTIFF S111h/2018

Eighth Plaintiff

and

THE MINISTER FOR HOME AFFAIRS

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

DIRECTORGENERAL OF SECURITY

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 11 DECEMBER 2018, AT 9.29 AM

Copyright in the High Court of Australia

____________________

MR D.P. HUME: May it please the Court, I appear for the plaintiffs. (instructed by Zali Burrows Lawyers)

MR S.P. DONAGHUE, QC, SolicitorGeneral of the Commonwealth of Australia: May it please the Court, I appear with MS Z.C. HEGER for the defendants. (instructed by Australian Government Solicitor)

HER HONOUR: Where are we up to, Mr Hume?

MR HUME: Your Honour, there has not been agreement on a special case.

HER HONOUR: Right, so what do you want me to do?

MR HUME: We ask for an adjournment until February. Perhaps I can just explain why that is so. Your Honour will recall that there are two periods of detention in issue. There is the past detention and there is the current detention.

HER HONOUR: Yes.

MR HUME: The validity of the current detention raises an issue as to the validity of an adverse security assessment.

HER HONOUR: I saw that.

MR HUME: We challenge that on at least two bases: breach of procedural fairness and legal unreasonableness. At the moment we have been provided with a redacted statement of grounds.

HER HONOUR: I saw that, yes.

MR HUME: We sought from the Commonwealth the documents that were relied on. I apprehend the Commonwealth will assert public interest immunity over at least some of the documents that were relied on. The reason we seek time is that it may be that the Commonwealth is willing to provide some but not all of the material that was before ASIO and if so the plaintiffs may be willing to go ahead on a, what might be called, limited record. We just do not know at the moment. If that is so I think the general structure of the special case proposed by the Commonwealth could be appropriate which would see all issues before the Court.

The reason why we seek to have it stay in this Court – and I foreshadowed this last time – there are some points of general principle that it may be we cannot succeed on in the Federal Court. Those relate to both the past detention because there is a Full Federal Court decision in ASP15 which we think does not sit well with this Court’s decision in Plaintiff S4 but would be binding on a first instance judge. Secondly, the validity of the current detention raises the correctness and scope of AlKateb. So they are issues of general importance that we say are appropriate for resolution in this Court.

We just seek the time to see what documents the Commonwealth is willing to provide, possibly without dispute about public interest immunity issues. We just do not know what the scope of those will be. So we were proposing an adjournment until some time in February to see whether it is going to be possible to agree a special case with a limited record of the material before the decisionmaker.

HER HONOUR: Okay, thank you, Mr Hume. Mr Solicitor, what is the position?

MR DONAGHUE: Your Honour, we see very little point in an adjournment of that kind for reasons that I will endeavour to explain.

HER HONOUR: Right.

MR DONAGHUE: Could I deal first with the evidence? Your Honour will have seen an affidavit of Ms Dale Watson affirmed yesterday.

HER HONOUR: I have.

MR DONAGHUE: A dispute has broken out between us as to whether or not we should have exhibited certain documents to that affidavit. I do not want to waste your Honour’s time

HER HONOUR: Is that right. Mr Hume has made it clear he has asked for them. He understands that you may – the Commonwealth may

MR DONAGHUE: Sorry, not those documents – documents we have attached to Ms Watson’s affidavit. There is some suggestion we should not have attached some of them so I am seeking to rely on that affidavit excising a few pages, if I might.

HER HONOUR: I am lost. You had better take me through that. What is wrong with the affidavit you filed? You want to withdraw it?

MR DONAGHUE: No, but the plaintiff has suggested that we should not have exhibited some of the correspondence we have exhibited. We do not agree with that objection but I do not want to waste your Honour’s time on it because I do not need to rely on the

HER HONOUR: I will deal with it quickly. Mr Hume, do you seriously object to this correspondence.

MR HUME: The objection was taken on the basis of without prejudice privilege, your Honour. I had understood that some of the pages were not going to be relied on and if that is so there is no issue.

HER HONOUR: I see. So which ones am I excising, Mr Solicitor?

MR DONAGHUE: So, 46 to 48 and 58 and 59.

HER HONOUR: Give those to me again slowly – 46

MR DONAGHUE: So 46 to 48 which is part of exhibit DW2 and 58 to 59.

HER HONOUR: Right, they will be excised.

MR DONAGHUE: I otherwise read the affidavit.

HER HONOUR: I will ask for them to be excised from the Court record. Is that what you want me to do?

MR DONAGHUE: Yes, your Honour.

HER HONOUR: Thank you, yes. That is a practical matter which was dealt with.

MR DONAGHUE: It is.

HER HONOUR: Let us deal with the substance. What is wrong with the adjournment?

MR DONAGHUE: The premise for the adjournment appears to be that there will be a consensual document production process in relation to documents underlying the adverse security assessment. The extent to which the Commonwealth would be prepared to engage in such a process is very limited for a number of reasons. Your Honour, I expect has seen a letter that my friend’s instructor sent to the Court yesterday, not attached to an exhibit.

HER HONOUR: I did.

MR DONAGHUE: Yes. So that letter indicates that there are two grounds of challenge to the adverse security assessment: a procedural fairness ground and an unreasonableness ground.

HER HONOUR: That is what Mr Hume told me again this morning. So we can take that for granted, I think, at least at present.

MR DONAGHUE: Yes. So with respect to procedural fairness the only documents that are likely to be relevant to that challenge are, we think, the transcripts of the four security intelligence interviews that took place between ASIO and Mr Hume’s client, the last of those interviews taking place over two days because the transcripts of those will be basically – to the extent that matters were put that is where it occurred.

The production of those transcripts, subject perhaps to, I think, very modest public interest immunities claims should not be a problem and your Honour might recall that in Plaintiff M47/2012 a similar process where there was a procedural fairness challenge the transcripts were produced and the natural justice ground was argued on

HER HONOUR: How long will that take to happen?

MR DONAGHUE: I am instructed about two weeks.

HER HONOUR: All right.

MR DONAGHUE: So that part of the case does not present a problem in terms of the matter staying here. The unreasonable part of the case, on the other hand, it appears to be suggested that the ultimate conclusion that ASIO reached was unreasonable and that the conclusion that the plaintiff withheld information was unreasonable. On that basis it is said we want everything that ASIO considered.

Now, if your Honour has had an opportunity even to skim the truncated statement of grounds, you will have seen that there are considerable redactions in that document and there are footnotes to a large number of other documents. So there is a very major public interest immunity exercise involved in reviewing and redacting – partially redacting some of those documents. Some of them would need to be withheld entirely, but before

HER HONOUR: How long would that process take?

MR DONAGHUE: A long time I am told, your Honour. I do not have precise instructions as to what precisely is involved.

HER HONOUR: When they say a long time, what does that mean?

MR DONAGHUE: I cannot be more precise – many weeks, I believe.

HER HONOUR: Right.

MR DONAGHUE: But the premise, your Honour, is that there should be an order for discovery covering the bulk of that material. If your Honour could turn to Ms Watson’s affidavit to the truncated statement of grounds, you will see – and I will pick just a few examples, but there are

HER HONOUR: Can I just test that premise? You said to me that the premise is there should be an order for discovery.

MR DONAGHUE: Yes.

HER HONOUR: Well, is that right? What we are trying to do is here work out and facilitate, to the extent possible, taking into account the two matters you have raised which are substantial and not to be doubted, at least at present, that is subject matter and time. It is not an order for discovery. It is a question about whether or not between you, you can work out the production process and if you cannot then certain consequences follow.

The way I understood Mr Hume to put it which was in a sense, I thought - one might describe it as measures, one might describe it as having a bet both ways, one can put whatever label you like - was to say listen we would like some time to see whether we can work this out and if we cannot then I will come back to you in February and I will tell you what the problems are.

MR DONAGHUE: The difficulty is the premise, your Honour, in that our friends are – and this was apparent from their letter – proceeding on the basis that they have something akin to a statutory entitlement to see all of the material upon which the adverse assessment was based and they

HER HONOUR: They are not asking me to resolve that question or for you to tie your flag to a mast. They are just asking to work out whether or not that is going to be possible for what they have asked for and if it is not it is not and needless to say this Court probably will not be working it out, it will be going elsewhere.

MR DONAGHUE: That is really where I am going.

HER HONOUR: But why can you not have a go to start with?

MR DONAGHUE: Because, your Honour, what we have done in producing this 35 or 36page truncated statement of grounds is given a very large amount of information to which there is no statutory entitlement, but a very large amount of information as to the basis of the assessment, including – and I was about to take your Honour to some paragraphs – reasons for why the conclusion was reached that the plaintiff attempted to withhold information from ASIO. That is we have told them, in a number of paragraphs in this document this is the basis upon which we say that it – now, if that was unreasonable, Mr Hume has what he needs. He has ASIO stating in its statement this is why we did it on this basis. There is no purpose to be advanced

HER HONOUR: Mr Solicitor, you and I both know that we often ask for things just in the hope we might get a bit more.

MR DONAGHUE: That is what is happening here.

HER HONOUR: Sometimes you might say yes and sometimes you might say no.

MR DONAGHUE: But what I am saying is that when one is asking that of a security intelligence organisation there should be a good reason for it before we embark upon a resourceintensive and timeintensive process of redacting highly – in some cases highly classified material in circumstances where it is just fishing because the document we have provided says why we reached the conclusions that we reached and they are defensible or they are indefensible without any need for a trawling process through the footnotes.

HER HONOUR: So is it really a more refined request, is that what you are asking for?

MR DONAGHUE: I am actually saying, your Honour, that our friends have the material they need to run the case they said they want to run. They told us what they – and they should not be encouraged on what we would – or allowed, in our submission, to pursue a fishing expedition of this kind where

HER HONOUR: Let us put it this way. I cannot stop them asking.

MR DONAGHUE: No.

HER HONOUR: The only question for me is that document was produced, at least to me, two days ago.

MR DONAGHUE: The plaintiffs had it for three weeks.

HER HONOUR: All right. I got it on 10 December and read it that day. Mr Hume says he needs some time. He says he intends to make a request. What you do with that request is a matter for you. He is not asking me to rule on it and I cannot. I have not seen it. I do not know what the content of it is. I would expect that if it was

MR DONAGHUE: If the request is in the last one, the letter, and that is all we have seen as well – all documents that ASIO considered, all copies before ASIO.

HER HONOUR: The response is, I assume given what you just put to me, no.

MR DONAGHUE: No, that is right.

HER HONOUR: I do not have an application in front of me. There is going to be no direction from this Court on the basis of that material for there to be such a direction. That is not to say that if a defined request was made that had some validity to it that was able to be addressed it could be made and you would, consistent with the Commonwealth’s obligations, answer it appropriately and that appropriately may be, including taking whatever defences – claims you need.

MR DONAGHUE: Yes. There really is – in the event that a wideranging order was to be made

HER HONOUR: You are not going to get a wideranging – he is not going to get a wideranging order from me today because I do not have material before me to enable me to make that assessment.

MR DONAGHUE: I accept that. Ultimately, your Honour – if your Honour is content to adjourn it while that process plays out, so be it. We were conscious of

HER HONOUR: I think it is worthwhile for this reason. The case that you have drafted and given to the plaintiff is defined. As I understand it, Mr Hume seeks to add to it in the two ways he has addressed. He either has the material before him to enable him to do that and runs on that record, or he does not and he needs time to make that case - that is a matter for him. If he seeks to add to that material by asking for other documents from the Commonwealth and that process can be achieved, so be it. If it cannot then Mr Hume will have to make his call. One of those calls, as I see it, is for the matter to be remitted and for you to have a fight downstairs in the usual way with all the discovery and all those horrible

MR DONAGHUE: I agree with that, your Honour, and that is really where I was going.

HER HONOUR: You do not want that.

MR DONAGHUE: I do not want that, but

HER HONOUR: Nor does Mr Hume. So you and Mr Hume can have a little discussion. It can play out and Christmas cheer can extend a bit for the moment and we will see how we go.

MR DONAGHUE: I am content with that, your Honour. I have no confidence that when we next come back before your Honour we will have resolved it by consent. But perhaps we will have, depending on the position that Mr Hume ultimately reaches.

HER HONOUR: I expect the Commonwealth in its usual way to fulfil its obligations as well and if there is something, as I said, there is a defined request which can be met then it should be met. But I am not going to make an order to that effect in a vacuum.

MR DONAGHUE: No. Your Honour, I have said, insofar as we think it is reasonable, for example, the transcripts – we will do that.

HER HONOUR: That is an advance.

MR DONAGHUE: Indeed, but what we will not do, absent an order, is the whole public interest immunity review of the whole body of material underlying this document because that is an exercise that we would contend before your Honour or below was a fishing process and raises all manner of public interest immunity problems.

HER HONOUR: Those labels are lovely. The reality is this. Mr Hume seeks to make a case. He has identified two grounds. If he can identify with precision a request which is narrow and defined and confined, to which the Commonwealth is obliged to respond in accordance with its usual practices, then I expect you to undertake it, including addressing any claims for public interest immunity that would arise.

MR DONAGHUE: Yes.

HER HONOUR: But I am not going to make an order.

MR DONAGHUE: No, I understand that. I am sure we have both heard what your Honour said in that regard. So in those circumstances, your Honour – the other issue was until Mr Hume said so a moment ago, we have not had a response on our draft special case but if the draft special case is otherwise adequate then that does provide a framework for all of the issues other than this and the security issue

HER HONOUR: Sounds like a pretty good idea to me.

MR DONAGHUE: Yes. Depending on what the plaintiff ultimately says about that document there might be other issues, but we just do not know yet.

HER HONOUR: All right. So the position is it will go off till February. What date in February do you want, Mr Hume?

MR HUME: We would seek a date in the week commencing the 11th, if possible, your Honour.

HER HONOUR: That is a sitting week. Is it possible to do it the week of the 18th?

MR HUME: It is – on 20, 21 and 22.

HER HONOUR: Is 20 February suitable, Mr Solicitor?

MR DONAGHUE: Yes, your Honour.

HER HONOUR: Mr Hume?

MR HUME: It is, your Honour.

HER HONOUR: All right, 9.30 on the 20th. Now, Mr Hume, it seems to me, having had this lovely discussion with the SolicitorGeneral, that really by that date we need to be resolved on whether or not this is going to stay in this Court or go downstairs.

MR HUME: Yes, I have heard the discussion, your Honour.

HER HONOUR: Yes. So it requires cooperation but also a bit of precision on your part, I suspect.

MR HUME: Yes.

HER HONOUR: Anything else?

MR HUME: Nothing further, your Honour.

MR DONAGHUE: No, your Honour.

HER HONOUR: I wish all the best of the season to each of you. Adjourn the Court.

AT 9.47 AM THE MATTER WAS ADJOURNED