Taylor v Attorney-General of the Commonwealth [2019] HCATrans 42 (8 March 2019)

Last Updated: 8 March 2019

[2019] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M36 of 2018

B e t w e e n -

DANIEL TAYLOR

Plaintiff

and

ATTORNEYGENERAL OF THE COMMONWEALTH

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 8 MARCH 2019, AT 9.29 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MS R.J. SHARP and MS M.A.J. ISOBEL, for the plaintiff. (instructed by Human Rights For All Pty Ltd)

MR S.P. DONAGHUE, QC, SolicitorGeneral of the Commonwealth of Australia: If the Court pleases, I appear with MS K.M. EVANS for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Merkel, everything appears now to have been completed, as it were. Are you still both of the view that the matter should go to the Full Court rather than be decided by me?

MR MERKEL: We are, your Honour. I cannot speak for my learned friend.

HIS HONOUR: If it were to go to the Full Court, how long do you think it would take to argue?

MR MERKEL: We would expect it to be a oneday case, your Honour.

HIS HONOUR: There is no intervention as the result of the notices, is there?

MR MERKEL: No, your Honour.

HIS HONOUR: Thank you very much. Mr Solicitor, what is the Commonwealth’s attitude about whether I should decide it or whether it should go directly to the Full Court?

MR DONAGHUE: Your Honour, in the end we are neutral on that point. We still maintain that the case is very weak. It is questionable whether it is a useful use of the time of the Full Court, but we accept that if your Honour decides it, your decision would be amenable to appeal as of right, so it might end up at the Full Court level anyway and in those circumstances we would not oppose an order referring it to the Full Court as the most efficient way to deal with it if your Honour is so minded. But I cannot say to your Honour we think it warrants the attention of the Full Court because we submit that the case remains very weak.

HIS HONOUR: If that is the case, I wonder if I should decide it. I have no view about it and I see your submissions obviously, and your contentions and I see that they include that it is so weak as to, as it were, be dismissed.

MR DONAGHUE: I say that in part, just to give your Honour an example for one reason – your Honour will see the reply our friends filed yesterday.

HIS HONOUR: Yes.

MR DONAGHUE: On what they regard as the main issue in the case, which is the asserted error of customary international law, in the reply there is really no attempt to say that we are wrong about the customary rule. The submission that is advanced is that there is some onus on us to establish the rule upon which the defendant seeks to rely. Now, in our submission, that just cannot withstand analysis because the plaintiff needs to show jurisdictional error. They say that the jurisdictional error was made because we applied the wrong rule and then they do not seek to prove that we applied the wrong rule. They say that the onus is on us in some way to support the rule.

So the case seems to be collapsing, with respect to our friends, because they just have not really engaged with what it seems to us, as they put it, is the key issue in the case. That is just one example but, in our submission, there are real problems with the way it is articulated but as to whether your Honour does it or it is done before a Full Court, as we say, it – because we cannot rule out the possibility it will end up in the Full Court without even a leave filter it really depends on some assessment of whether our friends would be likely to appeal against any ruling that your Honour made. In the end, that is why we are content really to proceed with it as your Honour sees fit.

HIS HONOUR: Thank you. Mr Merkel.

MR MERKEL: Your Honour, we, as you have seen from the submissions, do not accept the weakness argument that our learned friend puts. He picks out one aspect of customary international law. We say there is a substantial issue on that but it sidesteps the other arguments, your Honour. One of the concerns we have is that the first question relates to whether the decision is not susceptible of judicial review and that, we say, undoubtedly raises a constitutional question and we say that on that it is not really open to my learned friend to say that is a weak case. That is a point of some considerable substance.

The other matter, your Honour, is our second argument in terms of our submissions was that it is not just a matter of whether the Attorney was entitled to have regard to customary international law, but whether he was constructively failing to exercise his jurisdiction by reason of him forming the view that he is duty bound to act in accordance with law which is not consistent with Australian law.

So we say that the customary international law forms part of the subset of questions but it is not really a case that can properly be said to be a weak case and because it involves constitutional issues and because there is always the risk of appeal, your Honour, and I cannot put it any higher than that, but your Honour has seen that the parties have come here with an endeavour to put their cases. We have rejected the weakness argument that my learned friend has put and we have tried to explain in our written submissions and our reply submissions as to why he is wrong and we would say that it is the most efficient use of the Court’s time and the resources of the parties for the matter to go to a Full Court, which is not opposed by my learned friend.

HIS HONOUR: Thank you. There is a possibility, perhaps even a probability that the matter could be dealt with by the Full Court in the May sittings. Would both of you be available in that event?

MR DONAGHUE: Yes, your Honour.

HIS HONOUR: Thank you, Mr Solicitor.

MR MERKEL: Yes, your Honour.

HIS HONOUR: On balance I consider the matter is appropriate to be referred to the Full Court. I grant leave to the parties pursuant to rule 27.08 of the High Court Rules 2004 (Cth) to state a special case in the form of the revised special case filed 26 November 2018. Pursuant to section 18 of the Judiciary Act 1903 (Cth), the special case shall be referred to the Full Court for hearing in the May 2019 sittings of the High Court in Canberra or so soon thereafter as the business of the Court allows.

I take it that costs are to be costs in the cause as previously, are they?

MR DONAGHUE: Yes, your Honour.

MR MERKEL: Yes, your Honour.

HIS HONOUR: Thank you. I further order each party’s costs of this day will be costs in the cause.

MR DONAGHUE: Your Honour, we have done submissions.

HIS HONOUR: Yes.

MR DONAGHUE: There is not yet a special case book, a joint book of authorities

HIS HONOUR: No.

MR DONAGHUE: I do not think that your Honour needs to make orders for those things. We can sort that out between the parties, but if your Honour were minded to make orders to that effect I think they are the two procedural steps that we would need to take.

HIS HONOUR: What I will get you to do is to consult with the Registrar immediately after I stand down the matter to see if the parties can agree on those matters. If there is any difficulty I will make orders subsequently.

MR DONAGHUE: Thank you, your Honour.

HIS HONOUR: Thank you, Mr Solicitor. I will adjourn.

AT 9.36 AM THE MATTER WAS ADJOURNED