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High Court of Australia Transcripts |
Last Updated: 7 January 2019
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Brisbane No B43 of 2018
B e t w e e n -
DANIEL ALEXANDER LOVE
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant
Office of the Registry
Brisbane No B64 of 2018
B e t w e e n -
BRENDAN CRAIG THOMS
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant
Directions hearing
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO MELBOURNE
ON MONDAY, 7 JANUARY 2019, AT 10.02 AM
Copyright in the High Court of Australia
____________________
MR S.J. KEIM, QC: May it please the Court, I appear with my learned junior, MR A.J. HARTNETT, for the plaintiff in both matters. (instructed by Maurice Blackburn Lawyers)
MR N.M. WOOD: Your Honour, if it pleases the Court, I appear with MS J.D. WATSON for the defendant in both matters. (instructed by Australian Government Solicitor)
HIS HONOUR: Mr Keim, is it convenient to deal with both matters at the same time?
MR KEIM: Yes, your Honour. Your Honour, can I hand up, subject to the Court’s views, agreed orders in each case?
HIS HONOUR: Yes. I have seen proposed directions. I think they came through this morning. I am not sure if they are the same ones.
MR KEIM: Yes. No, they would be the same, your Honour. If you have those then it is unnecessary, yes.
HIS HONOUR: There are two questions: one short one and one more substantive one that I have.
MR KEIM: Yes, your Honour.
HIS HONOUR: It would probably be convenient if you address them first and then Mr Wood can add anything to that.
MR KEIM: Yes, your Honour.
HIS HONOUR: The
more procedural question is really that, as I understand it, the Thoms
matter, which is the more recently filed of the two, has a much higher degree of
urgency than the Love matter, given that Mr Thoms, as I understand
it, is still in detention.
MR KEIM: Yes.
HIS HONOUR: Is there any reason why both cases should not be prepared concurrently once the special case is filed in the Thoms matter, rather than the Love matter proceeding effectively all the way through and being programmed all the way through to a hearing and then waiting for the Thoms matter to, as it were, catch up?
MR KEIM: The answer is there is no reason and I think I speak for both parties in that the time limits were designed so that the catching up could occur.
HIS HONOUR: Yes.
MR KEIM: If the Court was disposed to hearing both of them together
HIS HONOUR: It is more a question of efficiency in that it might be more efficient for the parties and also more expedient in terms of preparation of submissions and so on if parties were paying attention to both cases at once rather than one case and then coming to the second case and perhaps revising any views about the first case in light of the second case.
MR KEIM: Yes, your Honour. From the plaintiffs’ point of view there would be no opposition to an approach in which your Honour makes directions about the special case. I think the thing that caused the parties to hesitate is the discretion of the Court, both to accept the special case and
HIS HONOUR: Yes, all right.
MR KEIM: The facts are very similar. The real difference is that Mr Thoms was born in New Zealand, Mr Love was born in New Guinea and it is Mr Love’s father and Mr Thoms’ mother – that is really the only distinction.
HIS HONOUR: I appreciate that and obviously if these cases were to be heard by special case in this Court they ought to be heard at the same time
MR KEIM: Yes, your Honour.
HIS HONOUR: which brings me to the more substantive point. I see that the second question that you foreshadowed at the last directions hearing has been jettisoned, as I understand it, from the special case which I think goes quite some way to addressing the concerns that I had raised on that occasion.
MR KEIM: Yes, your Honour.
HIS HONOUR: I do have some small concern, though. As I understand it your primary case, if I can put it that way, is that a member of the Aboriginal race, of which you say Mr Love and Mr Thoms are, cannot be an alien for the purposes of section 51(xix).
MR KEIM: Can I just comment on that briefly, your Honour?
HIS HONOUR: Yes, certainly.
MR KEIM: There are two arguments and they are independent.
HIS HONOUR: Yes.
MR KEIM: One is the circumstance of being born overseas and having a parent who is an Australian citizen.
HIS HONOUR: Yes.
MR KEIM: The other one is the argument that your Honour foreshadowed. Those two arguments, on the existing case law, can exist independently.
HIS HONOUR: I understand that. The first argument or what I referred to and I was describing as the primary argument, the only facts in the special case that you rely upon for that are essentially their genealogy - if I can describe it as such - and maybe facts such as acceptance by Aboriginal elders and so on.
MR KEIM: Yes, your Honour.
HIS HONOUR: All of the other facts – connection to Australia type facts – all of those in the special case are really directed to what you describe – the first proposition, what I was describing as your alternative case, which is having a parent born overseas.
MR KEIM: Yes, your Honour.
HIS HONOUR: That is a case really which is going to be dependent, is it not, on the facts of any particular individual case?
MR KEIM: Can I say two things, your Honour? The connection with Australia can impact on both arguments because we would appreciate a hypothetical response to the indigenous argument - for example, if a person was an indigenous Australian born overseas and then lost complete connection with Australia, for example, spent the rest of their life in Finland or perhaps you could even have a hypothetical case where a person remained identifying as an indigenous Australian but for three generations lived in an overseas country so you had three generations of nonAustralian citizens.
HIS HONOUR: Yes.
MR KEIM: So in terms of the indigenous Australian argument we say it is relevant that he returned to Australia as a child and has lived here as a permanent citizen since then. So the primary thrust of the argument is based on his connection as an indigenous person by descent and by identification and by acceptance. The facts that connect him to Australia – or connect each of them to Australia – are relevant to the extent that he has not become completely alienated from Australia by living overseas and not ever coming to Australia.
HIS HONOUR: Are they relevant to your primary case or your
MR KEIM: We just say that there may be a point at which you so lose connection with Australia even though you remain an indigenous person.
HIS HONOUR: And are still accepted and identified by your peers, by elders of Aboriginal – yet you
MR KEIM: Yes, the force of your indigenous connection may lose some impact. So it is really confronting an argument that at some stage the force of your indigenous descent and identification fails. But apart from that, yes, it is an upfront argument that your membership of the indigenous race of Australia, as that is identified in the Constitution, prevents you from becoming an alien. So that is the primary thrust of the argument.
HIS HONOUR: Yes.
MR KEIM: But we would not want to throw away – we would like to have the facts which connect him with Australia also in reserve for any argument, say that
HIS HONOUR: I can see that. The small concern I had raised, though, is that if that argument is right and if it is necessary to go beyond, for example, the evidence and the facts which show that a person is a member of the Aboriginal race, including acceptance by elders and by the community and so on, if it is necessary to go beyond that it is an established connection and link to Australia that becomes a very factintensive question and quite an individual question to show what particular links an individual has to Australia.
MR KEIM: Yes, your Honour.
HIS HONOUR: There are some facts in the Love Case, and it looks like there will be in the Thoms Case, to show that degree of link, but those would usually be the facts and sort of circumstances that would be the subject of contested pleadings and trial and so on.
MR KEIM: Yes, your Honour. I understand that, yes.
HIS HONOUR: The more substantive point that I am raising is are there any facts in either of these cases that are in dispute that could be of, on your case, decisive importance, in terms of connection to Australia?
MR KEIM: Nothing of decisive importance, your Honour. We have obviously – both sides have tried hard to agree and the facts that we have agreed upon, in our view, include those facts of decisive importance.
HIS HONOUR: All right.
MR KEIM: Yes, your Honour.
HIS HONOUR: If there is nothing else, then I will hear from
MR KEIM: I suppose the only other thing I was going to say, your Honour, is you will have noted from the special case the other change is that it is now stated clearly as a question going to alienage, not a question in the way it was framed saying – I think what we described the Commonwealth’s positive case saying you are an alien if these three basic facts and the other point is of course the impact of that question on section 189 in this case is a matter that has been left out.
HIS HONOUR: Yes, and I think that addresses – as I mentioned, that addresses broadly most of my concerns.
MR KEIM: Yes, your Honour. Thank you, your Honour.
HIS HONOUR: Thank you. Yes, Mr Wood.
MR WOOD: Thank you, your Honour. I see the merit – I mean, we obviously see the merit in the relationship between the two cases so if either is to be heard by the High Court it probably makes sense for them both to be heard. I mention as a possibility something which we have contemplated which is that because Love is, subject to your Honour’s view, ready from the parties’ perspective in the sense that the parties have agreed the facts that they think are necessary, it seems rather likely, but I accept not logically inevitable, that the disposition of Love would also have a similar effect on the disposition of Thoms, in other words if the Commonwealth was to succeed on Love in the High Court special case we expect that the plaintiff in Thoms might not pursue it, but I think it is cleaner if both cases can be heard together rather than Love, because it is ready first, being heard first. We are obviously aware, of course, that Thoms is in detention.
HIS HONOUR: Yes. I mean there are at least two reasons why that possible course does not immediately commend itself to me. One reason is that the matters are only a few weeks apart, really, in terms of programming and preparation, particularly if the Thoms special case could be prepared by 15 February. The second matter is that from the Court’s perspective, particularly when we are dealing with an alternative case, if I can put it that way, that may be dependent upon particular facts and linkages and circumstances, it would be far more useful to have two cases before the Court at once rather than just the one.
MR WOOD: Yes, your Honour. If that is the appropriate approach then I think in terms of the draft orders perhaps that might have a consequence then that in the Thoms matter, subject to your Honour’s view, the draft orders provided could be made, but in the Love matter the Court simply would not
HIS HONOUR: What I had in mind was to make the first proposed order in the Thoms Case, which is requiring the plaintiff to file any agreed special case on or before 15 February 2019; the second order to list the matter for further directions on 19 February 2019 at 10.00 am Brisbane time; and then the third order, the costs be in the cause and then just to repeat the second and third orders in the Love matter which would just be to list the Love matter for directions on the same date, 19 February, with the same costs order. It may be that once I have seen the proposed programming orders for both Thoms and Love on 18 February, they might be able to be made administratively.
MR WOOD: Yes, your Honour.
HIS HONOUR: Do you have any comments you want to make about what I have described as the small substantive concern?
MR WOOD: I think my headline response, your Honour, is that the Commonwealth understands it to be the case that the facts that the plaintiff would wish a court to act on in – the plaintiff wants to rely on in support of his constitutional and other submissions are those in the special case. Whilst it perhaps might be in the ordinary course in a trial court there might be contested pleadings and so forth, these are the facts which the plaintiff considers are necessary to make out the submissions that they would wish to advance to this Court. If there are any other matters of connection, they are matters within the plaintiffs’ knowledge, in Love, and not ours and I think I can say, as far as I am aware, there are not substantial areas of disagreement as to matters of
HIS HONOUR: That was the main concern, that there might be – that the special case might have reflected some factual – some jettisoning of factual controversy that might otherwise have been decided at trial where those matters could have been important or even on the plaintiffs’ view, decisive to the alternative submission. But I think both parties are saying that there are no such facts.
MR WOOD: I think there might have been some minor matters about particular dates on which movements were made, but as I understand it, the parties agree that, certainly from the plaintiffs’ perspective, the dispositive matters are in the agreed document.
HIS HONOUR:
All right, that is very helpful. Unless there is any difficulty, the orders
that I will make are as I foreshadowed. In Thoms v Commonwealth of
Australia, B64 of 2018:
In Love v Commonwealth of Australia, B43
of 2018:
If the parties are able to send any proposed
programming orders on 18 February I will consider those orders and if there
is no difficulty
with any of those, I will make those orders
administratively.
MR KEIM: Yes, nothing further from us, your Honour. Thank you.
HIS HONOUR: Thank you, Mr Keim. The Court will adjourn.
AT 10.20 AM THE MATTERS WERE ADJOURNED
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