Applicants M276-2003, Ex parte - Re Woolley

[2003] HCATrans 486

[2003] HCATrans 486

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M276 of 2003

In the matter of -

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

First Respondent

THE HONOURABLE SENATOR AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Ex parte –

APPLICANTS M276/2003

Applicants/Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 NOVEMBER 2003, AT 9.30 AM

(Continued from 31/10/03)

Copyright in the High Court of Australia

__________________

MR G. GRIFFITH, QC:   If your Honour pleases, I appear with MR C.J. HORAN and MS L.G  DE FERRARI, for the prosecutors.  We have made the amendment to include the next friend, your Honour.  (instructed by Vadarlis & Associates)

HIS HONOUR:   Yes.

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

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, we do have a statement of agreed facts.  Could I hand that to your Honour?

HIS HONOUR:   Yes.

MR GRIFFITH:   It has been sent, your Honour.  I hand your Honour the original.

HIS HONOUR:   Yes, I have seen the draft and I take it that the document you now give me is in like form to the draft that I saw.

MR GRIFFITH:   It is, your Honour, yes.

HIS HONOUR:   Yes, thank you.

MR GRIFFITH:   Your Honour, we also sent further submissions to deal with the matter which we understood your Honour wished to have submissions in regard to.

HIS HONOUR:   Yes.  You have seen these, have you, Mr Kennett?

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   I wanted to have articulated, Dr Griffith, what is it that will be raised in these matters that differs from and will not be decided by one or other or all of the three matters that the Court heard in Canberra last week.  My grip on when these things happened is obviously slipping.

MR GRIFFITH:   It was only last week, your Honour.  Your Honour has the advantage on me, firstly, because your Honour was there and I was not and, second, that your Honour will be deciding the matters and I will not.  But without those two advantages, your Honour, our submission is that our matter is not a matter which in any way may be expected to be disposed of in any of those matters because of the propositions that we advance that by reference to the applicants being minors, in our submission, your Honour, there is an inhibition on constitutional power to make a provision for indeterminate detention as is made by the Migration Act and that the power is limited to the exercise of the power so far as it may be regarded as reasonably adapted, or whatever the form of expression, your Honour, for a purpose which may justify the detention of children.

As we understand it, your Honour, those three matters, none of those addresses that primary issue and in effect we do maintain the submissions that in outline we gave to your Honour on the first application for order nisi.

HIS HONOUR:   What is it about the status as a child which is said to be constitutionally significant?

MR GRIFFITH:   Your Honour, we address that as our access point, to say that your starting point with respect to a child is that administrative detention is not justified, in the constitutional sense, save in exceptional and articulated circumstances that go no further than is reasonably required for a purpose, for example, to effect deportation or a purpose such as quarantine.  We say a legislative provision, your Honour, must be circumscribed by reference to such requirements of being seen to be appropriate for the detention of children in circumstances.

Our starting point is to say that although one may provide for the detention of children as a result of a criminal process, we say that the starting point with respect to a child, as distinct from an adult, your Honour, is that by reference to factors of the parens patriae aspect of exercise of jurisdiction over children, the inherent nature of the dealing with children is that there is no power to order detention of children, per se – administrative detention.

HIS HONOUR:   Two further aspects of that which may – they may not – arise are, first, the immigration status of these children is not yet finally determined, is that right?

MR GRIFFITH:   That is so, your Honour.

HIS HONOUR:   They are still in the process of seeking review of what presently stands as a refusal of claims to a visa?

MR GRIFFITH:   Yes, your Honour.  They will have to have some success in their review procedures before their status could be regularised ‑ ‑ ‑

HIS HONOUR:   In that sense, their position differs from the position of any of the three persons at issue in the proceedings heard recently where their immigration status had been determined and they were in the position of persons awaiting removal, were they not?

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:    What is it about the status of being a child that precludes detention or restraint of freedom before immigration status is determined?

MR GRIFFITH:   We sought to spell that out in our written outline which we gave your Honour on the initial application by the children themselves, but we say, derived from the inherent nature that they are infants, from the aspect of the parens patriae of the jurisdiction of the Court with respect to children and derived also from the relationship of the Minister having control and custody of the children, that one may detain children, in our submission, your Honour, only so far as it can be seen to be a necessary aspect of dealing with the processing of the children, not as a default aspect.

We say, your Honour, that it is appropriate by reference to those origins of principle to at least put to your Honour as an arguable case to the Court that there is a dichotomy between the status of children, which we say, per se, should be regarded as persons who should be dealt with and maintained while their status is being reviewed, and a capacity to deal with adults, your Honour, where for the purposes of our argument we do not cavil at the capacity to provide for detention in default.  We sought, your Honour, to address those matters of difference in our submissions and I would just be repeating myself.

HIS HONOUR:   Yes.  No, I understand that.

MR GRIFFITH:   We do not say we are right, but what we say, your Honour, is we are entitled to present that argument to a Full Bench.

HIS HONOUR:   Yes.  Any case that proceeds by way of agreed facts carries within it the inherent possibility that the one fact that is critical is not the subject of agreement.  That is common experience.

MR GRIFFITH:   It does, your Honour.

HIS HONOUR:   Is there anything that needs to be considered about, at its most general, the relationship between the children concerned and their parents, that is, to take an example, is it in any sense relevant to know whether any of the children, for example, has a particular dependence on the parent to the point where ordinarily one would expect the child to be with the parent wherever the parent is.  In the case of the newborn infant, physical dependence is readily understandable.  These children are, I think, aged ‑ ‑ ‑

MR GRIFFITH:   From eight upwards, your Honour.

HIS HONOUR:   They are said to be seven upwards in the agreed facts – seven up.

MR GRIFFITH:   I am sorry, your Honour.

HIS HONOUR:   Now, there is no further fact we need, is there, about custody, guardianship, relationship with the parents?  I am not conscious of any, but I simply ask the question so that there should be no doubt it has been addressed.

MR GRIFFITH:   Your Honour, we see not because of the simple nature of our proposition that age and detention are the only two relevant matters.  Your Honour, there is a difference between legal entitlement to detain and whether or not in a factual sense it might be better for a child to be with the parent.  What we say is that our case is directed to the issue obligatory detention. 

If there was voluntary cohabitation, your Honour, because of issues of relationship, that is an entirely different matter, but our arguments do not seek at all to address those issues.  It is legal obligation to detain that we are concerned with, your Honour.  So that we do not see that we would wish to…..  I should say also, your Honour, that paragraph 8 of Mr Vadarlis’s affidavit of 27 October indicates his instructions are that the children “wish to be released from immigration detention”.

HIS HONOUR:   Yes.

MR GRIFFITH:   So that although we have agreed on facts as propounded by the respondents, our submission is your Honour retain the inherent simplicity in which they were put to your Honour at the last time.  So our answer to the question is no, and we cannot see how any facts would be relevant for the purpose of admitting or rejecting our argument, but we accept my learned friend’s right to refer to the facts which he has propounded which we are content to agree with.

Your Honour, my learned friends can make such case as they wish, but beyond that I do not see any other matters that could be relevant because we will maintain the narrow aspect of our approach.

HIS HONOUR:   You would be content if I were to direct that the application be made to a Full Court and adjourned for the purposes of giving notice of motion accordingly?

MR GRIFFITH:   Yes.  Your Honour has the draft order nisi to that effect and at that stage the section 78B notices could be given.

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, of course, we would seek an early hearing as is possible, subject to the demands on the Court’s business, on the basis, your Honour, it is a habeas corpus matter.  In the old days in the practice court one would walk straight in have seniority over Mr …..or whatever, your Honour.  It is not quite like that in the High Court.  If your Honour pleases.

HIS HONOUR:   Yes, thank you, Dr Griffith.  Yes, Mr Kennett.

MR KENNETT:   Your Honour, as to the need for further facts, with respect, I would agree with my learned friend that there does not appear to be any need for facts to be found or agreed as to the particular relationships of the children with their parents and matters of that kind.

HIS HONOUR:   Can I just be quite blunt about it, Mr Kennett?  I am very concerned to ensure that when, or if, this gets to a Full Court we are not met with counsel on one side or the other saying, “If only we had some more facts”.  It is the process known as judicial verballing that is occurring, Mr Kennett, in case you had not understood.  I am sure you had.

MR KENNETT:   Yes, your Honour.  On the particular question that your Honour raised, I think both sides would put the matter to the Court purely as one of the legality of detention.  If the children are unlawfully detained, then they are entitled, upon application, to be released and it is a

matter for them and their parents whether they seek that order or not.  The Court does not need to be concerned with their welfare as in the Minister v B, the Family Court case.

HIS HONOUR:   Yes.

MR KENNETT:   Your Honour, beyond that, the Minister submits, for the reasons articulated last time and which I do not propose to add to, that there is not an arguable case in this matter.  If we are wrong about that, or if your Honour does not accept that, then the appropriate course is as your Honour has indicated.

HIS HONOUR:   Yes.

MR KENNETT:   The cases heard last week, I think we are agreed, will not settle or determine the outcome of this case.  It may be, however, that the cases heard last week and the case of B and B, when those cases are decided, will involve some refinement or elaboration of the test for the constitutionality of administrative detention.  There may be some further elaboration of what was said in Chu Kheng Lim and that may influence how this case needs to be analysed.

There is that risk in the background, however, I simply note that for your Honour’s consideration, but I do not submit on that basis that this case should be delayed to await the outcome of the other cases.  That is all that I wish to say, if the Court pleases.

HIS HONOUR:   Yes, thank you, Mr Kennett.

I do not consider that it would be appropriate to dispose of this matter on the basis that it is unarguable.  I am, however, not to be taken as expressing any further opinion about the prospects of it succeeding.  I am of the opinion that the matter should go, in the first instance, before a Full Court of the Court and that to that end I will direct that the application be made by way of notice of motion to a Full Court.  I will adjourn the application so that notice of that application may be given accordingly.  The costs of today should be costs in the application. 

As at present advised, it may be that the Court will be able to deal with the matter in the course of the February sittings.  That is a matter about which the parties will be advised soon.  I will, of course, certify for the attendance of counsel, but do counsel wish to be heard further about the form of the orders that I propose should be made in this matter?

MR GRIFFITH:   Could I just flag, your Honour, and indicate a preference for the first week of the sittings, if there is a capacity to indicate a preference?

HIS HONOUR:   Yes, thank you, Dr Griffith.  There will be orders in the terms I have indicated.  Dr Griffith, it may be desirable if you or one of your juniors would be good enough to remain while I deal with the next matter just to ensure that if there is some overlap with that, that we become conscious of it and might deal with any consequences that follow from there being an overlap.  If that were not too much trouble, it might be desirable.

MR GRIFFITH:   Your Honour, I think it will be necessary to make an order for us to depart to get the contrary result.

HIS HONOUR:   I am not about to do that, Dr Griffith.

AT 9.48 AM THE MATTER WAS ADJOURNED