Applicant A269-2003, Ex parte Re Manager Baxter Detention Centre & Anor

[2003] HCATrans 487

[2003] HCATrans 487

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Adelaide  No A269 of 2003

In the matter of -

An application for a Writ of Habeas Corpus, and a Writ of Prohibition, against THE MANAGER OF THE BAXTER IMMIGRATION DETENTION CENTRE

First Respondent

THE SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Ex parte –

APPLICANT A269/2003 BY HIS NEXT FRIEND, RB

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 NOVEMBER 2003, AT 9.48 AM

Copyright in the High Court of Australia

__________________

MS D.S. MORTIMER, SC:   If your Honour pleases, I appear with my learned friend, MR J. BASTEN, QC, for the prosecutor.  (Mr Basten did not appear in Court)  (instructed by Jeremy Moore & Associates)

MR G.R. KENNETT:   May it please the Court, I appear for the respondents in that mattes.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Mortimer.  I have read the affidavit of Mr Moore, the exhibits to it and the outline of the submissions that you have provided.

MS MORTIMER:   Thank you, your Honour.

HIS HONOUR:   Mr Kennett, is there any objection to the affidavit of Mr Moore?

MR KENNETT:   No, your Honour.

HIS HONOUR:   Yes.  You have, I take it, seen the outline of submissions?

MR KENNETT:   Yes, I have.

HIS HONOUR:   Yes.  Ms Mortimer, what connection, if any, do the issues in this case have with the issues in Plaintiff S441 of 2003, which is, I think, likely to be heard in the February sittings?

MS MORTIMER:   Yes, your Honour, that is our understanding.  On the first point, the aliens point, it seems to us, with respect, that the issue is almost identical, that is, the challenge in Plaintiff S441 is also to the Commonwealth’s power to include in the constitutional concept of alien, by way of legislation, a person who is born in Australia.

HIS HONOUR:   The case stated asks, among other questions, whether section 10(2) of the Australian Citizenship Act 1948 is a valid law of the Commonwealth and that seems to be an issue that you would seek in these proceedings to agitate.

MS MORTIMER:   It is, your Honour, and it is part of the draft order nisi in its present form.

HIS HONOUR:   What is additional in these proceedings then?

MS MORTIMER:   What is additional in these proceedings, your Honour, is the issue raised in the proceeding with which your Honour has just dealt, and that is a challenge to the lawfulness of the detention of the applicant on the basis that he is a child.  As we say in our submissions, your Honour, we need not get to that, subject to what the Commonwealth may say about detention of people who are non‑aliens, but on our argument we say we need not get to that if we are right on the aliens point.

HIS HONOUR:   Then what would remain for debate, after the hearing and determination of M276 and S441, that would be raised by the matter that you want to agitate?

MS MORTIMER:   In principle nothing, your Honour, save for, insofar as the manner in which the Court may determine each of those proceedings, how they then apply to this proceeding.

HIS HONOUR:   Can you articulate that a bit more, please?

MS MORTIMER:   Yes, certainly, your Honour.  In any event, even assuming that both those other proceedings succeed ‑ that is, that the challenge to the aliens issue succeeds and that the challenge to the lawfulness of the detention of children succeeds – there would have to be a determination of this Court in our proceeding and there may be questions about how the principles, however they are espoused by the Court in those two matters, apply to this matter, that is, there would still have to be a judicial determination of this matter by this Court.

What we say, your Honour, is that because of the nature of the proceeding ‑ it is a proceeding for habeas corpus, it concerns the applicant’s liberty – it is preferable that, if it is to be considered by the Court, it be considered at the same time as Plaintiff S441, rather than simply awaiting the outcome of that and relying on the parties to agree about the meaning of the Court’s determination in Plaintiff S441 and its application to this proceeding.

HIS HONOUR:   Yes.

MS MORTIMER:   So, your Honour, what we would seek, if the Court pleases, is a reference in of the order nisi to the Full Court, to be heard at the same time as Plaintiff S441.

HIS HONOUR:   But that would lead, would it not, to the re‑agitation of issues that had been dealt with in M276?  It seems to me either we join S441 and M276 together, in which event, what do we gain by adding you?  Or we deal with them separately and if we then want to add you to any of them, do we not end up adding you to both and we are ending up without advancing the determination of the points of principle, are we?

MS MORTIMER:   Your Honour, we would submit that our presence would, we would hope, assist the determination of those issues of principles rather than anything else.

HIS HONOUR:   No doubt.

MS MORTIMER:   Your Honour, there are obvious overlaps in the determination of principle between the two cases.

HIS HONOUR:   To be blunt about it, Ms Mortimer, if you have new ways of putting the case, if you have twists to the case, they can be fed in readily, can they not, to the argument of the two other matters?  I am just concerned about identifying what is it we would gain by adding you.  I understand you say that the decisions in the other cases may require some working out or immediate application in your case.

MS MORTIMER:   Your Honour, that is the first issue and I would urge your Honour not to discard that because of the nature of the application.  It is important to the applicant that it be determined with as much expedition as it can.

HIS HONOUR:   Yes.

MS MORTIMER:   In relation to what we can add, your Honour, we have not had the benefit of seeing, other than the transcript in Plaintiff S441, how the argument is to be put.  As we understand it, your Honour, this is a new issue.  It is, with respect, not an easy issue.  It deals with the application of some concepts in a series of cases about the aliens power and, in our submission, the Court would be assisted, as perhaps it was last week, by the presence of three sets of counsel.  Perhaps that is a judgment that your Honour can make better than I can, but, your Honour, the Court is dealing in all these issues with significant overlap between parties and, in

my submission, unless it is going to prejudice the way the Court disposes with the case ‑ ‑ ‑

HIS HONOUR:   No, but we have to harbour our resources.  We really do have to deal with it as efficiently as we can.

MS MORTIMER:   I understand that.  Your Honour, as counsel, we are acutely aware of that and I doubt that it would be the case that we would seek, by being joined with both of the other two cases, to unduly prolong them.  We are all co‑operative individuals, your Honour.  Dr Griffith is an extremely co‑operative individual.  I am sure we can ensure the Court’s time is not unduly taken up in that sense.  Your Honour, my submission is that it would be appropriate for the matters to be heard together, with respect, if that is convenient ‑ ‑ ‑

HIS HONOUR:   And that would involve rolling S441 and M276 together?

MS MORTIMER:   Yes, or consecutively, your Honour, one day after the other.

HIS HONOUR:   Yes, but effectively hearing at the same time.

MS MORTIMER:   Your Honour, unless there is anything I can add, those are our submissions.

HIS HONOUR:   Yes, thank you, Ms Mortimer.  Yes, Mr Kennett.

MR KENNETT:   Your Honour, my learned friend’s two points neatly straddle the other two cases with the result that it would seem to us if her case is heard with one of them, it must necessarily also be heard with the other.  The result of that is that the parties in S441 and in S276 will need to consider having their counsel present for some argument on an issue that does not concern them because it would be difficult, given three cases, to separate the issues neatly in terms of time.

Your Honour, the present case, in my submission, does not raise anything which would add to the other two cases and the best use of the Court’s time and the most efficient way of resolving them is for this case to await the outcome of the other cases.  I do accept, as my friend says, there may be some working out that needs to be done when we see the judgments in the other cases, but that is not a process that needs to ‑ ‑ ‑

HIS HONOUR:   At the moment it is not immediately apparent that the working out of the outcome is likely to be complex – perhaps it would be – according to the way the reasoning of the Court proceeds. But if the challenges to lawfulness of detention succeed, then it would seem to me that that ends the question. If the challenge to the validity of the relevant section of the Citizenship Act succeeds, it is said in S441 that that too has immediate consequences upon the lawfulness of detention.  If that argument is right, if it is accepted, then again it seems to me the working out of the outcome is not especially difficult.

MR KENNETT:  Yes.  S441, as I understand it, involves removal rather than detention per se, however, the same principles will be applicable in that if the applicant is held not to be an alien, prima facie it cuts the ground out from underneath his detention.

HIS HONOUR:   Does S441 then raise some issues that are allied to issues of a kind that were debated in Shaw, where the Court presently stands reserved?  They are perhaps one step removed, but it may be that there is something of a connection there too.

MR KENNETT:   There is not an obvious similarity so far as I can see, but I probably do not know enough about Shaw to assist your Honour greatly on that.

HIS HONOUR:   Yes.

MR KENNETT:   My learned friend does raise in paragraph 7 of her submissions one possible wrinkle in that if the S441 point, if I can call it that, is resolved in the applicant’s favour, there may be a residual issue about whether there is still a basis for power to detain the applicant.  That is simply something that I do not have instructions on yet, but it is something that the minds of the Commonwealth will no doubt be able to address in the time between now and any hearing.  That is the kind of working‑out issue that I apprehend my learned friend is talking about.

HIS HONOUR:   Yes, I see.

MR KENNETT:   It is an issue of a fairly discrete kind which could no doubt be resolved by agreement or by a relatively brief hearing.

HIS HONOUR:   Now, is there any anticipation of any dispute about the facts which are alleged in Mr Moore’s affidavit, which are the facts upon which the applicant relies?

MR KENNETT:   Your Honour, I do not anticipate a dispute about the facts traversed by Mr Moore.  I will, however, seek, if this matter goes further, leave to put on some evidence of the kind that the respondents put on in Dr Griffith’s case.

HIS HONOUR:   Yes.  There would perhaps be some question about what constitutional significance, if any, is to be attached to the particular health status of those associated with the applicant.  I do not know what is said to be the significance of that or how it bears on the issue.

MR KENNETT:   Yes.  We would see that issue as only going to the urgency of the case, your Honour.

HIS HONOUR:   Yes.  Any question of habeas attracts the ordinary considerations of urgency that attend such issues.

MR KENNETT:   Yes.

HIS HONOUR:   Yes.

MR KENNETT:   Your Honour, I should have said at the beginning that the Minister does not concede that either of these points is arguable.  However, in the light of what the Court has done in other cases, I do not propose to say anything further.

HIS HONOUR:   Yes, thank you, Mr Kennett.

MS MORTIMER:   Your Honour, can I just deal briefly with that issue about paragraph 7, because I ought to have made that plainer in my primary submissions?

HIS HONOUR:   Yes.

MS MORTIMER:   Your Honour, that is, in my submission, a point of distinction and although my learned friend submits that it is a matter that can be worked out, your Honour can, in my submission, take notice of the fact that the Commonwealth asserts a broad power of detention consistently in relation to various categories of people and even if the applicant is right about being a non‑alien, the issue of whether his continued detention is lawful is a real issue, goes directly to the ability of him to secure habeas corpus.

HIS HONOUR:   Can I just step back a bit and just understand quite what is said in 7.  As I understand, one of the arguments you will deploy is that, having been born in Australia, the applicant does not fall within the aliens power.

MS MORTIMER:   Yes.

HIS HONOUR:   Therefore, the Act pursuant to which the detention is said to occur has no valid operation in relation to this person.  That is a part of the argument you would advance.

MS MORTIMER:   That is so, your Honour.

HIS HONOUR:   Now, what is paragraph 7 then saying?

MS MORTIMER:   What paragraph 7 is attempting to do, your Honour, is to anticipate what might then be put against us by the Commonwealth as a further justification for the detention, that is, if not pursuant to the aliens power, pursuant to some other power to detain for a different purpose.

HIS HONOUR:   Yes, what?

MS MORTIMER:   Your Honour, there are circumstances in which citizens, for example, can be detained.  Extradition is one.

HIS HONOUR:   Yes.

MS MORTIMER:   And there may be circumstances where, perhaps pursuant to the external affairs power – we do not know, your Honour.  It is a matter that is difficult to anticipate.

HIS HONOUR:   But this is anticipating an answer not yet made.

MS MORTIMER:   Of course, your Honour, but not disavowed by my learned friend.

HIS HONOUR:   No, I understand that.

MS MORTIMER:   If he were to say to your Honour today that no such argument is going to be put ‑ ‑ ‑

HIS HONOUR:   If he were to say that, I would be exceedingly surprised, Ms Mortimer, at this early stage of the proceeding.

MS MORTIMER:   So would we, your Honour, particularly since he only got the submissions this morning.

HIS HONOUR:   Yes.

MS MORTIMER:   So I do not mean that as a criticism.

HIS HONOUR:   No.

MS MORTIMER:   But it remains, unless and until that happens, an issue that may need to be dealt with – a significant issue.

HIS HONOUR:   It remains something that may be raised as an issue, but has not yet.

MS MORTIMER:   That is so, your Honour.  Your Honour, as to the facts, the only matter I want to put to your Honour on that is that this, like the previous case on the constitutional issues, that the facts are very small.  It is really the fact of the applicant’s birth here and status of his parents.

HIS HONOUR:   And the particular health status of the mother is advanced as a factor affecting the urgency of the matter, not as a fact going to validity of the legislation.

MS MORTIMER:   Precisely so, your Honour.  In support of our primary submission it ought to be dealt with with Plaintiff S441 rather than await the outcome.

HIS HONOUR:   Now, what do you say about join one, join both, that if it is ‑ ‑ ‑

MS MORTIMER:   Your Honour, in my submission, there are two alternatives.  The first is that both the previous matter and Plaintiff S441 be joined and that we can go into both of them; that is one option.  The other is that we be joined only to Plaintiff S441 and that we otherwise abide the outcome in the other proceeding.  That is my fallback, your Honour.

HIS HONOUR:   I understand that, but on that alternative, what do you gain by joining S441?

MS MORTIMER:   Your Honour, as I have already submitted, we are not sure how the arguments are put in that case and we attempted to put them here. They are not identical. They do deal with different aspects of Commonwealth power, one detention and one removal. They will, of course, both involve the aliens power. Ours is an attack on the Citizenship Act as one aspect of our case, whereas perhaps Plaintiff S441 is a more direct attack on the Citizenship Act.

HIS HONOUR:   As at present advised, both S441 and M276 will be heard in the February sittings.  As you gather, what really troubles me is what advantage do we get by adding this?  I understand the need, from your side of the Bar table, to want to have – and I do not say this in the least critically – some control over the way in which the arguments are put.  That is a perfectly legitimate consideration from your side, but is it a sufficient reason or is there some further reason which I should take into account?

MS MORTIMER:   Aside from the issues that I have already put to your Honour about the need for expedition and that that is the best way to achieve expedition, then, your Honour, really it is no more than a submission that it is in the applicant’s interests and, we would submit, with respect, it may be of assistance to the Court that we be able to put the constitutional arguments in addition to counsel retained in Plaintiff S441, who I understand is Mr Levet.

HIS HONOUR:   Yes.

MS MORTIMER:   Those are the submissions, if your Honour pleases.

HIS HONOUR:   The applicant was born in Australia on 15 October 2003.  His mother has, at all material times, been held in immigration detention, including during the time of her confinement and subsequent delivery of the applicant.  The applicant now, by his next friend, seeks orders nisi for writs of habeas corpus and prohibition returnable before a Full Court or, alternatively, pursuant to Order 55 rule 2 of the Rules, a direction that his application for an order nisi be made by notice of motion to a Full Court.

The central contentions which the applicant would seek to make are that, first, by reason of his birth in Australia, the applicant is not within the power granted by section 51(xix) of the Constitution to the Parliament to make laws with respect to “naturalization and aliens” and that, accordingly, sections 189 and 196 of the Migration Act 1958 (Cth) are not valid laws of the Parliament in their operation in relation to him. Alternatively, it is sought to submit that if the applicant is within the reach of section 51(xix), and sections 189 and 196 of the Migration Act might otherwise authorise his detention, those sections insofar as they purport to authorise the detention of a child, are invalid.

The first of these contentions arises also in proceedings between Plaintiff S441 of 2003 v Commonwealth of Australia and Minister for Immigration and Multicultural and Indigenous Affairs in which five questions have been reserved for consideration of a Full Court. By case stated by Justice Kirby on 1 September 2003 one of the questions so reserved is whether section 10(2) of Australian Citizenship Act 1948 (Cth) is a valid law of the Commonwealth. Section 10(2) of that latter Act provides that subject to an exception not now relevant:

a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if:

(a)  a parent of the person was, at the time of the person’s birth, an Australian citizen or a permanent resident; or

(b)  the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.

On its face, it would appear likely that section 10(2), if valid, would have the result that the applicant is not an Australian citizen by birth.

The second of the issues which the applicant would seek to agitate by these proceedings is an issue that will fall for determination in the matter of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants M276 of 2003, which this morning I have directed should proceed by way of application by notice of motion to a Full Court.  It is probable that both matters M276 of 2003 and S441 of 2003 will be listed for argument before a Full Court of the Court in the February sittings next year.

Because the application now before me is an application for habeas corpus, it is attended by that degree of urgency which attends every application concerning the validity of detention.  For years the courts have jealously guarded the importance of the writ of habeas corpus in many ways and, in particular, have traditionally dealt with such proceedings concerning liberty as taking priority over other forms of proceeding before the court.  Moreover, the applicant contends that there are particular circumstances attending the health of his mother which add to those considerations of urgency which would ordinarily attend any application for habeas.

The issues which it is sought to agitate are issues of constitutional validity.  They are issues that will arise in the two other proceedings which I have mentioned.  In those circumstances, the question becomes whether the Court’s consideration of those issues of constitutional validity will be assisted by seeking to have these proceedings listed for hearing at the same time as, or immediately after, either or both of the proceedings which I have mentioned. 

The applicant submits that even if the proceedings in S441 and M276 were to be resolved in favour of the applicants in those proceedings, there may remain issues in this application which would require further judicial consideration.  In particular, it is submitted that it may be that continued detention would be sought to be justified otherwise than by reference to the ambit of the aliens power. 

At this very early stage of this application, it is simply not possible to anticipate whether such an answer will be made.  On its face, however, there would appear to be some likelihood that if some such answer is to be made, it is an issue which would likely arise in either or both of S441 or M276.

Given then that the two issues which the applicant seeks to raise arise in the two other proceedings I have mentioned, which presently will proceed as separate hearings, I consider that the better course is not to direct that this application be returned before the Full Court’s hearing either or both of those applications.  Counsel suggested that if S441 and M276 were to proceed separately, there may even be some advantage if, abiding the outcome in M276, this applicant were permitted to advance arguments in S441.  It seems to me that this middle course is the least desirable outcome of all.  If this application were to be joined with others pending in the Court, it should be joined with all others in which the issues to be agitated here would fall for determination.

On the material presently available, however, it is not clear to me that any additional or separate issue would arise in these proceedings, separate or additional, that is, to those which will necessarily fall for consideration and determination in proceedings S441 and M276.

Accordingly, I would propose to adjourn this application to a date to be fixed, reserving liberty to either party to bring the matter on for further hearing on not less than 48 hours notice in writing to the opposite party.  I would reserve the costs and certify for the attendance of counsel. 

Do counsel wish to be heard about the form of those orders?

MS MORTIMER:   No, your Honour.

HIS HONOUR:   Mr Kennett?

MR KENNETT:   No, your Honour.

HIS HONOUR:   There will be orders in those terms.  I will adjourn.

AT 10.28 AM THE MATTER WAS ADJOURNED