Attorney-General of the Commonwealth v Minister for Home Affairs & Anor [2020] HCATrans 177 (30 October 2020)

Last Updated: 30 October 2020

[2020] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M107 of 2020

B e t w e e n -

ATTORNEY-GENERAL OF THE COMMONWEALTH

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

ABDUL NACER BENBRIKA

Second Respondent

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 OCTOBER 2020, AT 9.10 AM

Copyright in the High Court of Australia
MR M.A. HOSKING: May it please the Court, I appear for the Attorney‑General for the Commonwealth. (instructed by Australian Government Solicitor)

MR A.P. BERGER, QC: May it please the Court, I appear for the first respondent. (instructed by Australian Government Solicitor)

MR R. MERKEL, QC: If your Honour pleases, I appear with my learned friends, MR C.J. TRAN and MS E.S. JONES, for the second respondent. (instructed by Doogue + George Lawyers)

HIS HONOUR: Mr Hosking.

MR HOSKING: Your Honour, there is before the Court both an application for removal under section 40 of the Judiciary Act and an interlocutory application in connection with that application for removal. The parties have prepared a set of proposed orders dealing with both of those applications which I understand has been provided to your Honour.

HIS HONOUR: Yes, thank you.

MR HOSKING: Those orders are agreed as between the parties. Your Honour will see that they provide for dispensing with compliance with the provisions by court rules that would otherwise govern the application for removal. The second order provides for the removal of the relevant part of the cause into this Court and the remaining orders set out a timetable which would see the matter ready to be heard in the second week of the December sittings if that was something that could be accommodated by the Court.

HIS HONOUR: Yes. Mr Hosking, just a couple of questions, if I may. First, are you able to say who it is anticipated would likely be an intervener in support of the second respondent?

MR HOSKING: I am not aware of any party who would necessarily be an intervener in support of the second respondent. That order was included on the basis that it is usual to make provision for submissions of that kind.

HIS HONOUR: Is that so also in the case of interveners in support of the applicant?

MR HOSKING: I understand that there have been no State interveners in the proceeding in the Court of Appeal, at least in the period before the hearing was vacated.

HIS HONOUR: Yes.

MR HOSKING: So it is not clear whether there would be any State interveners when the proceeding is removed into the High Court, but I, of course, could not speak necessarily for the States, their position may be different once the proceeding is removed.

HIS HONOUR: The reason I am just a touch concerned about the possibility of interveners is that there is only one day for hearing available, which is 10 December in Canberra – or notionally in Canberra, in the age in which we live – which means the argument if it is to proceed this year will need to be compressed within one day.

MR HOSKING: I believe it is agreed between the parties at least that certainly if the matter is limited to.....in Court today that the argument could be accommodated within the space of a day. Given that the nature of the constitutional question is one that has been resolved in respect of States and the exercise of power by State accords but simply concerns an equivalent question in relation to Commonwealth accords there is doubtless less reason to suppose that States would intervene or if they did intervene that they would seek to take up much time in oral argument.

HIS HONOUR: I understand. What I think I am saying is that whether or not there are interveners the argument is going to have to be completed within one day if the matter is to be dealt with this year, as it appears it must be because of all of the circumstances.

MR HOSKING: Yes.

HIS HONOUR: So it will be a matter of counsel having to agree I think between themselves in advance of the hearing how time will be allocated between you in order to complete within the day.

MR HOSKING: Thank you, your Honour, I understand.

HIS HONOUR: One further question. I noticed that the proposed consent orders make no reference to costs. I was provided with an outline of submission, I think on behalf of Mr Merkel, submitting that I ought make it a condition of the removal that the Commonwealth pay the second respondent’s costs come what may. What is the position there now?

MR HOSKING: Yes, the Commonwealth’s position is that your Honour should not make the order that is sought by the second respondent and that instead costs should be dealt with in the usual way at the conclusion of the matter. I can address your Honour on the reasons why that is the second respondent’s position. I am not sure whether your Honour would like to
hear from Mr Merkel first on the question of costs before I respond to his arguments.

HIS HONOUR: I wish only to hear from Mr Merkel on the point he is here contending that the order under section 40 should be conditioned on an order that you pay his costs, in any event. Is that the position, Mr Merkel?

MR MERKEL: No, no, we are not saying that the order should be conditioned on that, your Honour. We consent to the removal unconditionally. We rely on the inherent discretion of the Court and also the Judiciary Act power to order costs as something that is in your Honour’s discretion, but we do not suggest that the removal is conditional on a costs order. We consent to the removal and the orders independently of any costs issue, your Honour.

HIS HONOUR: Thank you, Mr Merkel. That being so, it appears to me that it is probably best to leave it to the Full Court that hears the matter to decide whether or not costs ought be paid by the Commonwealth regardless of the outcome. Mr Berger, have you got anything to say about that?

MR BERGER: No, your Honour.

HIS HONOUR: Thank you. Well, I shall make orders substantially in accordance with the draft minutes, gentlemen. I shall order as follows – I beg your pardon, Mr Merkel, has your client now entered an appearance?

MR MERKEL: I will have to check that, your Honour, but we will make sure one is entered today if it has not been.

HIS HONOUR: Thank you. I shall order as follows:

1. The time for compliance with rule 26.03 of the High Court Rules 2004 (Cth) is abridged to 4.00 pm on Friday, 30 October 2020.

2. Compliance with rule 26.04, 26.05 and 26.06 of the High Court Rules 2004 (Cth) is dispensed with.

3. Pursuant to section 40 of the Judiciary Act 1903 (Cth), that part of the cause pending between the first and second respondents in the Supreme Court of Victoria comprised of the constitutional question hereinafter stated and as such reserved for the consideration of the Court of Appeal of the Supreme Court of Victoria as proceeding S EAPCI 2020 0999, is removed to this Court.

4. The constitutional question so removed is: is all or any part of Division 105A of the Criminal Code (Cth) (the Code) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution.

5. By 4.00 pm on 6 November 2020 the applicant shall file a cause removed book relevant to the determination of the reserved question.

6. By 4.00 pm on Monday, 9 November 2020 the second respondent shall file and serve his written submissions of not more than 20 pages in length.

7. By 4.00 pm on Tuesday, 10 November 2020 the applicant shall file and serve a notice in the removed matter under section 78B of the Judiciary Act.

8. By 4.00 pm on Wednesday, 11 November 2020 any proposed intervener in support of the second respondent shall file and serve their written submissions of not more than 20 pages in length.

9. By 4.00 pm on Monday, 23 November 2020 the applicant shall file and serve his written submissions of not more than 20 pages in length.

10. By 4.00 pm on Wednesday, 25 November 2020 any proposed intervener in support of the applicant shall file and serve their written submissions of not more than 20 pages in length.

11. By 4.00 pm on Friday, 27 November 2020 the second respondent shall file and serve any written submissions in reply of not more than five pages in length.

12. By 4.00 pm on Wednesday, 2 December 2020 the applicant shall file and serve a joint book of authorities.

13. The matter shall be listed for hearing before the Full Court in Canberra on Thursday, 10 December 2020 at 10.00 am and on the basis that the argument is to be completed within that day.

Is there anything further, gentlemen?

MR MERKEL: Could you just reserve the question of costs for determination by the Full Court, your Honour?

HIS HONOUR: Yes. The costs of this application are reserved for determination by the Full Court.

MR HOSKING: Thank you, your Honour, nothing further from us.

MR MERKEL: Thank you, your Honour.

HIS HONOUR: Thank you, Mr Merkel. Thank you very much, gentlemen, for your assistance. Adjourn now.

AT 9.20 AM THE MATTER WAS ADJOURNED