Abebe v The C'weath of Australia

[1998] HCATrans 397

Office of the Registry
  Sydney  No S53 of 1998

B e t w e e n -

SENIET ABEBE

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

For mention

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 NOVEMBER 1998, AT 4.36 PM

Copyright in the High Court of Australia

HIS HONOUR:  Yes, I have the appearances, Mr Jackson.

MR JACKSON:   Your Honour, I have given your Honour ‑ ‑ ‑

HIS HONOUR:   I have your draft.

MR JACKSON:   Yes.  Your Honour, could I just say in relation to it two things.  The first is the preferred version from our side, and I suspect also from the Commonwealth’s side, is the second version.  That would seem to accommodate a variety of possible views.

HIS HONOUR:   I think so, yes.

MR JACKSON:   The second matter is, your Honour, the prefatory averments, as it were, in the first two lines of it are perhaps necessary because the Refugee Review Tribunal has jurisdictions or has powers beyond cases of this kind.

HIS HONOUR:   Yes, I understand that.  Perhaps I should say, in the first line, “in their application to the review by the Federal Court of Australia” ‑ ‑ ‑

MR JACKSON:   Yes, your Honour, I am sorry.

HIS HONOUR:   Yes.  Now, does any leave need to be given to amend your writ and statement of claim, as well?

MR JACKSON:   Your Honour, so far as the statement of claim is concerned, leave does need, I think, to be given in relation to amend it conformably with that draft question.  It would involve, I think, your Honour, adding another paragraph perhaps or another subparagraph to - or another paragraph after paragraph  16, and perhaps being more specific in the form of relief.

HIS HONOUR:   Yes, and likewise in the statement of claim and the writ.  That seems sensible, Mr Acting Solicitor.

MR BURMESTER:   Yes, your Honour, I do not object to that.

HIS HONOUR:   And the other thing that occurs – and what I am about to say I say with the concurrence of my colleagues – it would be useful to the Court if the parties were to have the opportunity within, say, 14 days on each side to put on any written submissions they wished as to any further questions that they considered to arise out of the amendment made now.

MR JACKSON:   Yes, your Honour, and my learned friend, I think, was going to mention something along those lines.

GUMMOW J:   Yes.  I would include the Solicitor-General for South Australia if he were here in that.

MR BURMESTER:   We will inform him, your Honour, but certainly I was going to suggest that there ought to be opportunity for further written submissions.

GUMMOW J:   Yes, I think that is right.

MR BURMESTER:    And that perhaps the plaintiff ought to issue an amended section 78B notice, just as a matter of form, given that broader range of sections are under challenge.

GUMMOW J:   Yes, it is unlikely to have any return, is it not?

MR BURMESTER:    I think that is probably right, your Honour, but if you do not think that is necessary ‑ ‑ ‑

GUMMOW J:   Technically, it is necessary, I think.

MR BURMESTER:    I think that is the technical position, but ‑ ‑ ‑

GUMMOW J:   And with liberty to restore it before me again if there is any response to the section 78B notices, that is probably the best way to do it.  Any response that deserves a further activity, I suppose.  All right.  Now who would go first?  I suppose you, Mr Jackson, with any written submissions.

MR JACKSON:   Yes, your Honour.

GUMMOW J:   Would 14 days be appropriate?

MR JACKSON:   Yes, your Honour.

GUMMOW J:   And 14 days for you, Mr Acting Solicitor-General?

MR BURMESTER:    Yes, your Honour.

GUMMOW J:   And for the Solicitor-General for South Australia; he would be in your camp, I suppose, largely.

MR BURMESTER:    I will agree on his behalf.

GUMMOW J:   Yes, all right.  Just pardon me a minute, gentlemen.  Is this second version really in substitution for what the question is there now?

MR JACKSON:    Yes, your Honour, yes.

HIS HONOUR:   I think it is, yes.  I will say:

Order that

(1)There be substituted for the question reserved in the case stated the following: “In their application to the review by the Federal Court of Australia of decisions of the Refugee Review Tribunal, when that Tribunal is reviewing decisions of the nature referred to in section 411(1)(c) of the Migration Act 1958 (Cth), are the provisions of Part 8 of that Act (or any of them) outside the legislative powers of the Commonwealth?”

(2)Leave be granted to the plaintiff to amend within 14 days the writ and the  statement of claim so as to reflect the change to the question reserved in the case stated.

I think I should add:

(3)The plaintiff is to have 14 days in which to file and serve any further written submissions with respect to issues arising out of the change to the question reserved.  The defendant is to have 14 days thereafter and, at the same time as the defendant files its written submissions, the intervener may do so if so advised. 

(4)The costs of this application this afternoon be costs in the action.

(5) There be certification for counsel.

It should be noted that the argument heard by the Full Court yesterday and today will be treated as if it were argument upon the question reserved in its fresh form, supplemented by the written submissions for which provision has been made.

Is there anything else, gentlemen?  Yes, thank you gentlemen.  I will now adjourn.

AT 4.45 PM THE MATTER WAS CONCLUDED