Attorney-General of the Commonwealth v Commonwealth of Australia & Anor

[2020] HCATrans 224

[2020] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra   No C15 of 2020

B e t w e e n -

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

AJL20

Second Respondent

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY BY VIDEO CONNECTION

ON THURSDAY, 17 DECEMBER 2020, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR:   In accordance with the present convention, I will announce the appearances.

MR C.J. TRAN appears for the Attorney‑General of the Commonwealth and the first respondent, the Commonwealth of Australia.  (instructed by Australian Government Solicitor)

MR N.M. WOOD appears with MR J.E. HARTLEY for the second respondent.  (instructed by Human Rights for All)

HER HONOUR:   Gentlemen, I have read the material.  Much seems to have been resolved between the parties.  The Attorney‑General for the Commonwealth seeks as of right an order for removal of the appeal pending in the Federal Court of Australia.  That order will be made.  I understood there was some issue between the parties respecting the timetable for the matter, and that issue has now been resolved.  That is so, Mr Tran?

MR TRAN:   That is so, your Honour.  Your Honour’s chambers will have received consent orders agreed to by both parties timetabling the matter for hearing on 9 March 2021.

HER HONOUR:   I received them just a moment ago, Mr Tran.  Just bear with me one moment, I seem now to have misplaced them.  In any event, as I understand it the orders now consented to are those that the Attorney‑General proposed.

MR TRAN:   Yes, your Honour, and may I make one correction?

HER HONOUR:   Yes.

MR TRAN:   It is not immune from errors that the Deputy Registrar has pointed out, helpfully.  If your Honour looks at order 1, that refers to filing a cause removed book.  The word “joint” should be added before “cause removed book”.  The reasoning for that is your Honour will appreciate that there are two appeals before the Full Court which are being removed into this Court and so filing two separate cause removed books – the Deputy Registrar has suggested that we just file a joint book.

HER HONOUR:   Yes.  I will make that amendment.  Is that the only matter requiring amendment?

MR TRAN:   That is the only matter from my end, yes, your Honour.

HER HONOUR:   In the result, the reply is to be filed by 26 February 2021, such that there will be just over a week before the hearing fixed for 9 March.

MR TRAN:   That is so, your Honour.

HER HONOUR:   I understand that the Commonwealth sought expedition of the hearing on the ground, as I would understand it, that the second respondent is an unlawful non‑citizen who, pursuant to the orders made in the Federal Court of Australia on 11 September last, is presently outside immigration detention.

MR TRAN:   That is so, your Honour, but the parties have agreed that the March date remains suitable notwithstanding that expedition being sought, yes.

HER HONOUR:   Yes, thank you, Mr Tran.  I just indicate that the Court was in a position to offer the parties the date of 5 February.  I appreciate that that would have required a very compressed timetable and in the circumstances I think it seems very sensible that the parties have agreed on the slightly later date.  Unless there is anything further, Mr Tran, I propose making the order for removal ‑ ‑ ‑

MR TRAN:   There is nothing further from me, your Honour.  I apologise for speaking over your Honour, but I think Mr Wood may wish to address the Court.

HER HONOUR:   Yes.  Mr Wood.

MR WOOD:   Thank you, your Honour.  Certainly we consent to the removal orders being made.  With respect to the – on the assumption that the orders are made and that the appeals are removed, there are just a couple of matters I wanted to mention.

HER HONOUR:   Yes.

MR WOOD:   The first, your Honour, concerns the nature of the grounds of appeal.  We just wanted to observe that both grounds of appeal are in extremely abstract form and so, for example, if one focuses on the notice of appeal, with respect, the false imprisonment proceeding, which I think is in annexure 3 of Mr Thornton’s affidavit with respect to the removal application, that simply identifies two grounds of appeal, the first ground being that:

The primary judge erred in finding that the purpose of the respondent’s detention was not his removal from Australia as soon as reasonably practicable. 

Now, your Honour may or may not have had a chance to read the judgment of Justice Bromberg below, but there were two separate periods of detention that were in issue.  The first – I will not go into detail; I think your Honour has read that – in any event, his Honour made a number of quite detailed factual findings that bore upon ultimately the conclusion of his Honour as to whether or not the Commonwealth’s purpose was, in either of the two periods, indeed a purpose to remove my client as soon as reasonably practicable and his Honour answered on alternative modes of analysis that the answer was no.

Now, we look at that ground of appeal number 1 in the false imprisonment case and it appears to necessarily involve – it appears to suggest a quarrelling with findings of fact.  We need to know very soon more precisely exactly how the Commonwealth contends that Justice Bromberg erred.  It may have a bearing practically, your Honour, on the content of the cause removed book whether all or some of the evidence that was before his Honour needs to be before this Court.  If, indeed, as I suspect may be the case but do not know that the Commonwealth’s true position is contending for certain errors of law by his Honour below, including constructional questions, then things are a great deal easier. 

So we are really just signalling, as I have indicated to my learned friend earlier today, that we would request a greater degree of focus and particularity on exactly what the errors that are suggested to have been made by the primary judge.  The second matter to mention, your Honour ‑ ‑ ‑

HER HONOUR:   Mr Wood, just before you move to the second matter, am I right in understanding that in each of the appeals there are two common grounds, the first being a contention of error by the primary judge in finding that the purpose of your client’s detention was not his removal from Australia as soon as practicable, and the second being that the primary judge erred in concluding that sections 189(1) and 196(1) of the Migration Act did not authorise your client’s detention?

MR WOOD:   Yes, and indeed ‑ ‑ ‑

HER HONOUR:   I am sorry, but there is an additional ground in relation to the appeal which is numbered VID651 of 2020, namely on the assumption that is denied that your client’s detention was unlawful, it is contended the primary judge erred in ordering your client’s release forthwith.

MR WOOD:   Yes.

HER HONOUR:   It is in respect – if we call that ground 3 in proceedings VID651 of 2020, am I right in understanding that the one matter in relation to the grounds in the notice of appeal with which you express some concerns is ground 1 and in relation to ground 1 you seek some particulars?

MR WOOD:   We would like to know exactly – ground 1 appears to suggest factual errors.  If that is the case, and we are not sure, we would like to know in advance what those errors precisely are said to be, including because it may affect the content of the cause removed book.

HER HONOUR:   Yes, I understand.  All right, what is the second matter?

MR WOOD:   The second matter concerns costs, your Honour.  We are not making an application today.  We simply observe that our client is not in a position to afford a silk.  Mr Hartley and I would have been prepared to appear in the Full Court of the Federal Court, which is what was going to happen until very recently.  It does seem appropriate for silk in this Court. 

We have sought undertakings from the Commonwealth of the kind that are routinely given when there is an appeal to this Court and we provided a number of reasons and authorities, including both commencing with appeals to this Court but including what we might call test cases in the Full Federal Court where such undertakings have been given.  We were advised yesterday, late in the afternoon, that no such undertakings would be given by the Commonwealth. 

I simply observe that puts us in a difficult position.  We need to find - we think it appropriate that this client be represented by silk now the matter is in the High Court.  We are on the cusp of Christmas with a compressed timetable.  Even with the March hearing date we expect it will be difficult.  We want to observe that.  We will make attempts to find counsel who are prepared to act on spec or for free.  We are not confident at this time of year, given that work will be required in the holiday period and that will occur.  We are considering in light of those matters whether we might make an application before Christmas, but we are reflecting that.  We are not making it today, we simply wanted to put that on the record.

HER HONOUR:   That is noted, Mr Wood.  Mr Wood, I should indicate, as I understood it, your client consented to the matter being listed on 9 March.

MR WOOD:   That is right.  We understand the Commonwealth’s position that expedition is generally appropriate.  It is not, your Honour, just because, as I understand it, the Commonwealth’s concern is there is a man without a visa who is in the community, but also, as I think the Commonwealth well knows, there are quite a number of cases that have

been filed in multiple courts, including the Federal Court, the Circuit Court and Supreme Court in the wake of Justice Bromberg’s judgment.

HER HONOUR:   Yes.

MR WOOD:   So this proceeding does rather have the character of a test case where the result of the High Court’s decision in this case would likely have a very significant bearing on those other cases and, of course in the administration of the Act.  It is eminently appropriate that our client be represented by silk.  The position of the Commonwealth on costs, as advised yesterday, has made it very difficult at this time of year, given the timetable, for us to procure that.  We will attempt to do so.

HER HONOUR:   Thank you, Mr Wood.  Those matters are noted.  Mr Tran, in relation to ground 1 of the notice of appeal, Mr Wood queries whether the challenge is to findings of fact.  Are you able to assist in that regard?

MR TRAN:   Your Honour, it is a challenge to what is his Honour’s finding of fact, but my understanding of the way his Honour reasoned was that his Honour made that finding based on his Honour’s assessment of a statement made by Justice Hayne in Al‑Kateb.  So it was a finding of fact, but made, I think, for reasons of law, if I may put it in that way.  What I would propose is my learned friend can correspond with us.  It is something that has been raised with me earlier this morning and we can put in writing our best points to ‑ ‑ ‑

HER HONOUR:   Very well, yes.  If there is nothing further.

MR TRAN:   Nothing from me, your Honour.

HER HONOUR:   Yes.  I will make the following orders:

1.Pursuant to section 40 of the Judiciary Act1903 (Cth), the causes pending between the first and second respondents in the Full Court of the Federal Court of Australia, being proceedings numbered VID650 of 2020 and VID651 of 2020, be removed into the High Court of Australia.

2.The costs of this application be costs in the cause.

3.Directions are made in accord with the consent orders filed in the Registry earlier this morning.

Unless there is anything else, gentlemen, the Court adjourns to 10.00 am on 1 February 2021 in Canberra.

AT 9.44 AM THE MATTER WAS CONCLUDED