Applicants M276-2003, Ex parte - Re Woolley

[2003] HCATrans 445

[2003] HCATrans 445

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M276 of 2003

In the matter of -

An application for 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

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 31 OCTOBER 2003, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR G. GRIFFITH, QC:   If your Honour pleases, I appear with my learned friends MR C.J. HORAN, MS L.G. DE FERRARI, and MS C.M. HARRIS, for the prosecutors.  (instructed by Vadarlis & Associates)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear with my learned friend, MR G.R. KENNETT, for the respondents.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Dr Griffith.

MR GRIFFITH:   Your Honour, this is an application for an order nisi for habeas corpus.  We have a draft order attached to the affidavit of Mr Vadarlis.

HIS HONOUR:   Yes, I have read the papers.

MR GRIFFITH:   Your Honour, we did send a reply earlier this morning.

HIS HONOUR:   I have read that.

MR GRIFFITH:   Your Honour, on the basis of those papers, it seems to us that the only live issue is whether we need apply by way of through a next friend.  We refer in our reply, your Honour, to the case of Re X, but could I briefly in support of our proposition that we do not, your Honour, read one sentence from Sharpe, The Law of Habeas Corpus.  That says on page 221:

There is, then, no restriction of the remedy on the ground of locus standi, and any person restrained may apply for the writ.

Your Honour, we say that that is not a difficulty.  I should indicate, your Honour, that we do have a consent signed for a person to act as a next friend, but we say that is not necessary.

HIS HONOUR:   It is a matter entirely for your side, I suspect ‑ ‑ ‑

MR GRIFFITH:   It is a choice ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ but do we want to end up with a procedural case about whether next friends are necessary, not necessary, et cetera?

MR GRIFFITH:   Your Honour, I have filed an affidavit annexing a consent of the prosecutors’ father.

HIS HONOUR:   Yes.  What has been handed is simply an exhibit.

MR GRIFFITH:   Your Honour, I am sorry.  I have the affidavit.  They are just exhibits.  That is right, I thought it was two copies, I apologise.  Your Honour has the consent on that affidavit saying that is what it is.

HIS HONOUR:   Given that the Solicitor does not have it in Canberra, perhaps you should read the affidavit, Dr Griffith.

MR GRIFFITH:   Your Honour, the affidavit is the second affidavit of Eric Vadarlis and the same formal details.  He says that:

The father of the four Applicants/Prosecutors is ‑ ‑ ‑

HIS HONOUR:   Is named in the affidavit, yes.

MR GRIFFITH:   Your Honour, we would assert that there is no problem about naming parties in this action.

HIS HONOUR:   I understand that and, again, do we need to stay to have a debate about that?

MR GRIFFITH:   No, your Honour.  I will not read out his name.

HIS HONOUR:   Yes.

MR GRIFFITH:   He has consented to act:

The father of the four Applicants/Prosecutors . . . has consented to act as the Next Friend of the four Applicants/Prosecutors in this proceeding.

And that consent is exhibit ‑ ‑ ‑

HIS HONOUR:   The consent is in form that:

I . . . hereby consent to act as the next friend of my children . . . in their application to the High Court of Australia for writs of Habeas Corpus and Prohibition.

I also authorise the use of my name for that purpose.

It bears date 26 October 2003 and it is addressed to Mr Eric Vadarlis of Vadarlis & Associates.

MR GRIFFITH:   Your Honour, to perhaps avoid the issue if he could be added as an alternative prosecutor rather than a substitute.  I so apply.

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, I see no need to amend the heading of the affidavit but just in the proposed order nisi.

HIS HONOUR:   Perhaps I should hear from the Solicitor first about the reception of the affidavit and, second, about the applications and then we can come back to the substance of the matter ‑ ‑ ‑

MR GRIFFITH:   Your Honour, while you mention that, could we indicate the form we object to paragraphs 13 to 31 of Ms Davis’ affidavit on the basis that they do not go to any matters that are relevant to the case that we put.

HIS HONOUR:   Yes.  Can I leave that aside for the moment and for the moment, Mr Solicitor, confine attention to the affidavit of Mr Vadarlis and the applications that are made concerning the constitution of the proceeding.

MR BENNETT:   Yes.  Your Honour, first of all, so far as that material is concerned in our affidavit which is objected to, we do not ‑ ‑ ‑

HIS HONOUR:   I am sorry.  Mr Solicitor, can I confine you for the moment to this question about next friend before you ‑ ‑ ‑

MR BENNETT:   Yes.  Your Honour, we have no objection.  It is a matter for the Court.  It is not a mandatory requirement.  The purpose of it, of course, is to avoid the problem the solicitor faces of obtaining instructions.  It is a matter for him and the applicants what they choose to do.

HIS HONOUR:   Yes.  Dr Griffith, you may have leave to file an amended draft order nisi reflecting the change in constitution of the proceeding that you have proposed.  Could that be done within a relatively short time?

MR GRIFFITH:   Your Honour, it will be done within half an hour of the Court adjourning.

HIS HONOUR:   Yes.  I direct that it be done before close of business today.  Dr Griffith, just before we come directly to this question of reception of material in answer, am I right in understanding, particularly from the reply, that the case you would seek to make is a case which depends only upon the facts of age of the children and the fact that they are in detention?

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Are you able to state in outline the framework of the case that you would seek to make founded on those facts?

MR GRIFFITH:   Your Honour, we sought to do that in our submissions and in our reply, but can I do it just in six steps?

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, this is recapitulating what we sought to expose, but were it a sermon we would say our text for the day is page 33 of Lim.  I do not need to take your Honour to that.

HIS HONOUR:   Yes.

MR GRIFFITH:   It is a well‑known statement, your Honour, but adapting the expression there, our propositions are the power to make laws authorising immigration detention.  Your Honour, I can hand you my propositions and then read them ‑ ‑ ‑

HIS HONOUR:   Yes, please.  Yes, thank you.

MR GRIFFITH: Our propositions are that the power to make laws authorising immigration detention extends only so far as is reasonably capable of being seen as necessary for immigration purposes, that is, to admit or exclude aliens. Secondly, laws authorising administrative detention which exceed those limits are inconsistent with the separation of judicial power derived from Chapter III of the Constitution, and are constitutionally invalid.

Thirdly, children have a special status and vulnerability, as long recognised at common law, and are owed special duties of protection by the Crown.  Fourthly, section 196 authorises prolonged and indefinite detention until removal, deportation or grant of a visa.  Fifthly, the prolonged detention of children, insofar as it is purportedly authorised by section 196, is not reasonably capable of being seen as necessary for immigration purposes and exceeds the limits laid down in Lim.

Lastly, section 196 by way of conclusion is invalid in its application to children, and must be read down so as not to apply to children, and we refer to section 15A of the Acts Interpretation Act and section 3A of the Migration Act.

HIS HONOUR:   I take you back to propositions one and two and ask, what is the relationship that you assert between propositions one and two?  Is there a relationship asserted there?  If there is, what is it?

MR GRIFFITH:   Your Honour, our assertion is that all laws authorising administrative detention must, in the appropriate context, satisfy the requirements as to one and rely upon the statement of three of your Honours in Lim and also Justice Gaudron as giving support to that.  So it is a test for power which was passed in Lim, except with respect to one section, 54R, your Honour, but that indicates the fact that there is point in the line and we say with respect to children, your Honour, there is a different calibration and, insofar as necessary, we would say in any event this section passes beyond that which was permitted and that may involve some even re‑examination of Lim on this question of having a three‑sided detention ‑ ‑ ‑

HIS HONOUR:   It is that that I wanted to begin to identify.  I do not pretend for the moment to suggest that we should carry it beyond the bare identification of the nature of the issues that will arise, Dr Griffith.  I am not asking you to argue the case for the moment, but in at least one aspect of your case it may be that there would be a challenge to Lim.

MR GRIFFITH:   Yes, that is so, your Honour.  What we say is that the three‑sided fence answer does not work here and that could involve the aspects of refoulement which is, we say, not to be permitted.  If the only way you can go to end indefinite detention, possibly, for the rest of your natural life, it would add another way, detention can end with death.  The only way to get out of it, your Honour, is to leave and go back from whence you came.

Our submission is that also can be constitutionally objectionable even though that seemed to be accepted as a factor in Lim, but we would wish to make that proposition, your Honour, if it were necessary to go so far.

HIS HONOUR:   But what significance, if any, follows from the use of the epithets “prolonged and indefinite” in paragraph (d) of your proposition?  That is, is there any constitutional fact which is asserted about time limits, time element or the like?

MR GRIFFITH: Not with section 196, your Honour. We would not cavil with the specific provision which said that a child to be deported may be detained for the purpose of carriage to the airport to be deported, for the actual process. What we say, your Honour – and obviously when a person arrives one must accept a processing aspect. Whether that involves detention or not is perhaps a matter of characterisation. But what we do intend to say, your Honour, is basically there is a stock order for detaining children. You can deal with them but you cannot detain under section 196 is our proposition. We say that is unlawful. In terms of the section applied to them, we say that is ultra vires of the Constitution. This is a very direct argument, your Honour, that does not depend on the particular facts of the particular ‑ ‑ ‑

HIS HONOUR:   But then what, if any, significance do you say would be attached to the fact that – I am searching for as neutral an expression of it as I can – that in the period of 33 months, is it, that these children have been detained there have been various review processes undertaken, that is, that the initial decision to reject a claim for protection has thereafter been subject to various review steps which have in fact occupied the period of time that has elapsed?  What, if any, significance attaches to that?

MR GRIFFITH:   None at all, your Honour.  Our proposition is one that we say has not been advanced, certainly at the level of this Court and we do not know elsewhere, your Honour.  It is a simple proposition, that when you are dealing with children of course you are entitled to process them, but our submission is you are not constitutionally authorised to detain them.

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, as a matter of necessity, you must look after them, but that is a different issue from compulsory detention.

HIS HONOUR:   Yes.  Now, what order do you say I should make today?

MR GRIFFITH:   Your Honour, we appreciate that often there is an affirmative of referring in.

HIS HONOUR:   Yes.

MR GRIFFITH:   We do not see any utility, your Honour, in a question reserved because there seems to be no facts on the way we put our case beyond the facts that they are children and they are detained.  We have no objection to the first part of my learned friend’s affidavit up to paragraph 12, but our submission is that we have, on the face of things, presenting a novel but tenable argument that has a permanent foothold through Lim, sufficiently satisfied the threshold for your Honour to grant an order nisi and we do press that as our primary ground for the matter to proceed.  We would accept a reference in, if your Honour regards that as ‑ ‑ ‑

HIS HONOUR:   There is some discussion in Lloyd; Ex Parte Wallach in 1915 about whether it was desirable to grant order nisi or to grant even, I think in that case, a writ and ‑ ‑ ‑

MR GRIFFITH:   Your Honour, I have not had one for years, but this seems to be the sort of case where one might grant it.  On the face of things, there is a tenable argument to go before the Full Bench.

HIS HONOUR:   What advantage do I gain, you gain, anyone gain, from a grant of order nisi?

MR GRIFFITH:   Your Honour, I make no point.  We accept either.

HIS HONOUR:   Yes.

MR GRIFFITH:   We were proposing, your Honour, to hand up alternative orders, but seeing we say we want this we did not but we can do that within half an hour, in any event.

HIS HONOUR:   Yes.  It is paragraphs 19 and following, is it, that you object to?

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Yes.  Now, Mr Solicitor ‑ ‑ ‑

MR GRIFFITH:   Your Honour, before you ‑ ‑ ‑

HIS HONOUR:   I am sorry, yes.

MR GRIFFITH:   At paragraph 2.2 of our outline we put it as the alternative, your Honour.  So that is our proposition on it.

HIS HONOUR:   Yes.

MR GRIFFITH:   I am sorry, it is 13 and following, your Honour.

HIS HONOUR:   Paragraph 13 and following, thank you.  Yes, Mr Solicitor.

MR BENNETT:   If your Honour pleases.  There are three major submissions we make.  The first is that my friend’s proposition is simply unarguable.  The second is that further factual material would be necessary and the third is that if any relief were to be granted by way of an order nisi or a notice of the motion of the type my friend refers to then it should be deferred until the decision in B and B and possibly the decision in Al Khafaji.  May I just address those separately.

In relation to arguability, I do not have the benefit of my learned friend’s five points that he has just handed up but ‑ ‑ ‑

HIS HONOUR:   He read them verbatim, Mr Solicitor.

MR BENNETT:   Yes.  Your Honour, I have 3.1 of his submissions in reply, which I assume is what they say – maybe slightly refined.  The logical fallacy in relation to that is that the proposition in paragraph (b) on which it depends is not contradicted by the existence of a countervailing factor such as that in (c) and (d).  If something is reasonably capable of being seen as necessary for certain purposes, it is no answer to say that there are reasons why it is undesirable, which is effectively what (c) and (d) do.  They cannot detract, as a matter of logic, from the proposition in (b) on their own.

One can illustrate that by looking at extreme positions.  My friend is, in a sense, putting a reverse demurrer.  He is saying, under no conceivable circumstances could the detention of children be justified for the purpose of admission, exclusion or deportation.  The obvious answer to that is, what of the 15‑year‑old who arrives at Perth Airport and says, “I want to come into Australia and I am going to make all sorts of applications”, and it is desired to return that person, perhaps with his parents who are being returned, or her parents?

My friend concedes that extreme example by saying, “I suppose you can hold the person at the airport for the next plane”, but, of course, it is not as simple as that because he then has to answer, what happens if the next seat on the plane is a week later, or what happens if there is a need for urgent medical treatment or there is a short application for refugee or some other status, and then what happens if there is an appeal, and what happens if the person attains majority during that period?

So when one starts by conceding an extreme position, as my friend does, he then has to start conceding further positions and then his proposition becomes one of degree.  As one of degree, it cannot have any logical basis and must require some sort of evidence.  One would need to know, for example, how long the process is likely to continue, whether the process to date has been unreasonably delayed by either party or the system.  One would need to know how long it is going to take once the process is terminated to effectuate a return.  One would need to know lots of factors.

If my friend’s propositions are right, in other than the extreme form, it might well be relevant to know whether the children are being schooled in the meantime and looked after and so on, as appears in our material.  So, of course, we would argue that once one has the purpose all those questions are irrelevant.  My friend will argue that the purpose is automatically defeated by the age of the children. 

If the Court comes to any position between those two extremes, factual material is necessary.  Even on my friend’s concession, he concedes the facts that suit him – the ages and the period – but does not want anything else.  One cannot do it that way.  If the issue is to raise a non‑academic question, a non‑hypothetical question, it must arise on facts which, on the various possible answers the Court can give, would be answered.

The final matter is this, that to a large extent the issue of unlawfulness of detention of children was dealt with by the Full Family Court in B and B and this Court has reserved on it.  Now, of course, it is true that one possible way in which the Court might dispose of that appeal involves the powers of the Family Court and would not involve the issues in this case.  But it is also possible, bearing in mind the course of arguments in that case and the course of the decision below, that something will be said about this question, as the Full Family Court did.  In that event, it is desirable that that be available before this is heard.  To a lesser degree that might apply in relation to Al Khafaji. 

Now, of course, neither party seeks, and it would not be practical, to have this case heard with those.  They are Behrooz and Al Khafaji and SHDB are set down for hearing before this Court on Wednesday week.  Although two days have been allowed, the whole of the two days is going to be needed.  The degree of intersection between this case and those is quite small, but there is one degree of intersection and that is the extent of the proposition in Lim and our proposition that once one has the purpose that is the end of the inquiry.

If that is accepted, that also would dispose of this application, but that is perhaps a slightly more indirect matter.  For those reasons, we submit it would be inexpedient to grant an order nisi today and, in any event, the central proposition my learned friend puts is simply unarguable.  If the Court pleases.

HIS HONOUR:   Mr Solicitor, you have referred to the possibility of further facts being proved.  By what time could the respondent determine what further evidence it would wish to advance and when could that be made available?

MR BENNETT:   Within the next few weeks, your Honour.

HIS HONOUR:   No, Mr Solicitor, I think it may need to be a rather more definite time and one with perhaps a rather shorter timeframe than might be encompassed by your general statement.

MR BENNETT:   Yes.  The only matters I would have in mind, your Honour, would be an amplification of some of the statements in the affidavit dealing with the likely length of time the litigation will take and dealing with the likely length of time in relation to a return to Afghanistan.

HIS HONOUR:   Is there any reason why that material could not be in affidavit form within, say, a week or 10 days?

MR BENNETT:   Your Honour, I would prefer 10 days, given that choice.

HIS HONOUR:   If I had offered you 14, you would be asking for 21, Mr Solicitor.

MR BENNETT:   Your Honour, we would certainly accept 14.  I would think it could be done within that period.

HIS HONOUR:   The timing of this may well also depend on what course is to be followed and when the matter could be brought on.  Yes, thank you, Mr Solicitor.

MR BENNETT:   If the Court pleases.

HIS HONOUR:   Dr Griffith, I do not need to hear you on the suggestion of deferring a decision about what to do in this matter pending judgment in B or pending argument in Al Khafaji and Behrooz and the related matter.  As for further facts, what is against my deciding the course that should be adopted in this case, first, without ruling on your objection to the material put in answer and, second, simply directing the time within which any further affidavit in answer would be filed?

Before you answer that, it would seem to me that a possible course that might be followed would be this morning to make a direction about the time for filing of further material in answer.  I would then, I think, want to bring it back, in any event, just to avoid the possibility that there would be some disputed question of fact, but the present inclination I have would be to refer the application into a Full Court directing that it be made by notice of motion returnable before a Full Court.  My present inclination is not to grant an order nisi but simply to pursue that course.  If I were to follow that course, what would you say?

MR GRIFFITH:   Your Honour, I am saying you should give my friend a week and that will keep it going and that would be very appropriate.  I answer both of your questions “No”.

HIS HONOUR:   Yes.  The first effective time I am going to be able to bring this thing back on will be Monday 17, I think.  We have Hobart followed by Canberra sittings the next two weeks and I would prefer to have a little time up my sleeve to bring the thing back on.  That being so, if I were to direct that any material in answer be filed by, if we said 12 noon on 14 November, that would give a little time to consider whether there is any factual dispute about ‑ ‑ ‑

MR GRIFFITH:   Your Honour, that gives my learned friend the 14 days he did not ask for.  Paid in lemons and…..

HIS HONOUR:   Never trust a judge to count, Dr Griffith.

MR GRIFFITH:   We had it in lemons and then we…..

HIS HONOUR:   We said close of business on the 11^th.

MR GRIFFITH:   Your Honour, I am trying to make our position clear on this concession point, as my learned friend put it, so there can be no confusion which might affect the answering material, your Honour.  Our position is we do not concede anything on the validity of section 196.  We say it is wholly invalid in its application to children.  What we say, your Honour, is there may be a constitutional power to enact legislation provided for short‑term detention of the sort that I mentioned by way of example, to transmit a child to be – but, your Honour, there is no such law.  We say particular facts of the sort my learned friend refers to have no relevance to the way we intend to put our argument that section 196 is wholly beyond power.

HIS HONOUR:   And in the argument you seek to advance, would any question of severance fall for determination – severance or reading down?

MR GRIFFITH:   Yes, your Honour, we did that in our – that there is a possibility of applying section 15A and I think section 3A of the Migration Act for the section to continue to apply to adults but ‑ ‑ ‑

HIS HONOUR:   But no other reading down that would give it relevant application in this case to the children concerned in this case?

MR GRIFFITH:   No…..with the children, your Honour.  It might be for another day whether the three‑wall argument should be revisited for adults, but that is not this case.

HIS HONOUR:   Yes, thank you, Dr Griffith.  In my opinion, it is unnecessary to decide today the objection that is made to a section of part of the affidavit sworn by Jacqueline Anne Davis on 30 October 2003.  For reasons which will have emerged during the course of argument, my present inclination in this matter is that, subject to there being no disputed question of fact requiring trial and determination, this would be an appropriate case in which to direct, pursuant to Order 55 rule 2, that the application be made by way of notice of motion to a Full Court.

It would, however, be inappropriate today to give that direction, when those who would be respondent to the application wish an opportunity to file further material in answer to it.  Until that further material in answer is filed, it is not possible to say whether there would be any disputed question of fact such as would require trial of an issue. 

In these circumstances, subject to anything that counsel may say about the form of order that I propose, I would order: 

(1)  Adjourn the application for further hearing on 17 November 2003 at 9.30 am in Melbourne, or such other time as may be directed;

(2)  Direct that any further affidavit in answer upon which the intended respondents desire to rely be filed and served on or before 4.00 pm on 11 November 2003;

(3)  I would reserve costs and certify for counsel.

Before I part with this matter today, there is one aspect of the facts of the matter to which I invite attention, for the purpose of ensuring that there is, in truth, no disputed question of fact.  As the material presently stands, there appears to me to be no dispute about the age of the children, about the fact of their detention, about the period for which they have been detained, and, although this is not spelled out in the material, it would seem to me to be improbable that there could be a dispute about the history of the various steps to review immigration status that may have been taken in connection with the children.

When the matter returns on 17 November, counsel should be in a position to confirm whether there is any dispute about those matters.  It would seem, as I say, that there is none foreshadowed and, at least in some, perhaps all, of the respects I have mentioned, it would seem improbable that there would be areas open to dispute, save about irrelevant minor detail of it.  Yes, Dr Griffith?

MR GRIFFITH:   Is it necessary, your Honour, to make it part of the order the leave your Honour granted to add the father was ‑ ‑ ‑

HIS HONOUR:   I have earlier given that leave, but, lest there be doubt about it, Dr Griffith, you have leave to file and serve on or before 4.00 pm today.

MR GRIFFITH:   Is that part of your Honour’s order? 

HIS HONOUR:   Yes.

MR GRIFFITH:   Thank you.

HIS HONOUR:   Is there any matter you wish to raise about the form of order, Mr Solicitor?

MR BENNETT:   No, your Honour.

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

AT 10.07 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 17 NOVEMBER 2003