Attorney-General of the Commonwealth v Montgomery & Ors

[2021] HCATrans 158

[2021] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C15 of 2021

B e t w e e n -

ATTORNEY-GENERAL OF THE COMMONWEALTH

Applicant

and

SHAYNE PAUL MONTGOMERY

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

MINISTER FOR HOME AFFAIRS

Third Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON MONDAY, 11 OCTOBER 2021, AT 9.42 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   I will announce the appearances for the parties.

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MR P.M. KNOWLES for the Attorney‑General of the Commonwealth and for the second and third respondents.  (instructed by Australian Government Solicitor)

MR P.G. WILLIS, SC appears with MR M.L.L. ALBERT, MR A. ALEKSOV and MS E.R. TADROS for the first respondent.  (instructed by Russell Kennedy Lawyers)

HIS HONOUR:   Mr Willis, I have read your submissions and I have your draft order, for which I am very, very grateful.  The one thing that I would ask is, is your draft order made on the assumption that – or ask you to confirm, I suppose, that your draft order assumes that the proceedings that are listed before the Federal Court on 27 and 28 October will proceed.

MR WILLIS:   Yes, your Honour.

HIS HONOUR:   Yes.  Mr Solicitor, I am very concerned that nothing happen to disrupt that hearing.  Your application is a right, of course, but as a matter of the Court’s practice the constitutional question is the last question to be resolved and one would not want to disrupt the hearing that is in place.  That, I think, may have implications for when the question that I will remove will be able to be heard.  Do you want to say anything more about that?

MR DONAGHUE:   Yes, your Honour, if I may.  Justice Derrington, who is the trial judge who has responsibility for the part of the proceeding that remains in the Federal Court, is aware of the removal application and decided that the trial would continue on what I will call the administrative law grounds, knowing that the constitutional grounds were coming into this Court.  So there is no reason to think that this application will in any way disrupt what her Honour is proposing to do.  She listed the matter knowing that that was how it was going to run and I think the estimate for the hearing was adjusted somewhat in light of that application.

In that court, in the Federal Court, the primary subject matter for debate is the validity or otherwise of a non‑revocation decision made by the Minister so there was a mandatory cancellation of the applicant’s visa by reason of the gaol sentence that he was serving.  He applied for revocation of that mandatory cancellation, the Minister refused, and there are a series of grounds challenging that refusal of the revocation decision.

If the applicant wins in the Federal Court the most that he gets – he is still an unlawful non‑citizen because there is no challenge to the cancellation decision.  He will still be required to be detained by reason of 189 and what he wins is the opportunity to make a further application for revocation that the Minister will then consider in due course, and if it is allowed then he will have a visa and he will be released but if he is not, if it is not allowed, he will remain in detention.

So that set of issues does not really engage with the fundamental question that arises on the habeas application as to whether or not section 189 does require this man, Mr Montgomery, to be held in detention or not, and that question having been raised, the Commonwealth is keen to know the answer to it because we consider at the moment that there is a statutory duty to detain Mr Montgomery, but if we are wrong about that then, of course, we would not seek to continue to detain him.

So to have that question, it having been raised, wait possibly for quite some time to have the resolution of the visa revocation litigation answered and even if it is favourable to Mr Montgomery then a further administrative process to carry on all the while thus holding Mr Montgomery in detention seems to us undesirable for, we submit, obvious reasons.

There is, as your Honour would have seen from the second set of submissions that our friends filed ‑ they filed some submissions on Wednesday last week and then again on Thursday ‑ the Thursday submissions raised a point that came as a surprise to us, which was a suggestion that notwithstanding the grounds in the Federal Court proceeding which contained two grounds relating to habeas, both of which were constitutional points, it was said, well actually there is an additional non‑constitutional habeas issue in play, we think depending on a challenge to the facts on the reasonable suspicion of the detaining officer.

We have proposed – and I hope your Honour has seen our version of the orders as well.  Mr Willis’ version is a mark‑up of ours.

HIS HONOUR:   I have.  Yes.

MR DONAGHUE:   So we proposed in our order 1 a narrowing of the removal application that we have filed in some text that is underlined at the end of order 1, which was intended to make clear what we have always thought we were doing, which was to remove only the constitutional dimension of the habeas application, the Love and Thoms related questions.  So that if your Honour removed in terms narrowed in accordance with our underlined words then to the extent that there is a non‑constitutional habeas issue to be decided, that could be decided by Justice Derrington as well.

But, again, the most the applicant gets there is a finding that the particular detaining officer for some reason made an error with the reasonable suspicion.  He would remain susceptible to being detained again the next day by an officer who had the correct state of mind.  So, in our submission, the only way one actually reaches a resolution of the validity of the detention of Mr Montgomery is to answer the constitutional points.

While we understand why the non‑constitutional points are being litigated because Mr Montgomery would prefer to be a non‑citizen, non‑alien, with a visa rather than just a constitutional non‑alien because if he has the visa that entitles him to various other statutory benefits, ultimately the detention question thrown up by the habeas application is not rendered moot no matter what happens in the Federal Court and, for that reason, we submit can properly be decided by this Court without depending on waiting for what happens in the Federal Court.  It is not really premature, for the reasons suggested.

HIS HONOUR:   Mr Willis, do you want to say anything to contradict that?

MR WILLIS:   Your Honour, first, the habeas matter is at large and, as the learned Solicitor‑General has suggested, there is a proper role for the Federal Court to determine whether the – unlike the matter of Mr Thoms, there is not an agreed statement of facts as to the reasonable suspicion of the detaining officers.

In our submission, an orderly management of the matter would be, as your Honour has suggested, particularly as Justice Derrington confirmed the trial date and as the Solicitor‑General said adjusted the hearing time slightly, allow for the fact, first, that constitutional questions have been removed but, secondly, that there would be space on the second day for the necessary investigation of those non‑constitutional aspects of the habeas application.

So far as were Mr Montgomery to be successful in the Federal Court, the sort of in terrorem suggestion that we will pick him up as soon as he left the premises of the detention centre is really speculative and, in our submission, should not bear upon what happens now.  Beyond that, we are really in the Court’s hands, but we certainly think that the sort of sequence that your Honour has suggested is appropriate.

HIS HONOUR:   Thanks, Mr Willis.  Mr Solicitor, I think as a matter of practicality the prospects of being able to list this matter for a hearing in the December sittings are very remote indeed, given the state of the Court’s list and circumstance that a number of matters have been delayed because of the problems with the pandemic and so forth.  I think as a matter of practicality I do not think any good purpose is going to be served by trying to have the matter heard in the December sittings.  That being so, I would not be minded to make the order in paragraph 11 of your draft minute.

What I would be minded to do is to have the matter mentioned again, perhaps in mid‑November, or perhaps early December, to see how the parties are tracking and what we might be able to do in the new year, having regard to how things stand then.  I know that is not ideal but we have to cut out and make our suit according to our cloth, I think.

Mr Willis, as to the actual directions the Court might make, I am attracted by the rather simpler directions that are suggested by the Attorney.  Can I ask you to confirm that you think the constitutional question would be determined within a day?

MR WILLIS:   Your Honour, the only complication is whether it would run into a second day, either because of interventions, which are unknown, or ‑ and that is including, I suppose, that the seeking of leave to reopen which must be heard I would imagine as part of the general hearing.

HIS HONOUR:   That is the usual practice.

MR WILLIS:   Yes.  With respect to the directions, your Honour, there was a choice in the sequencing of submissions as to whether the Commonwealth Attorney as the moving party would address everything first, or I think the Solicitor‑General’s suggestions were that the respondent, Mr Montgomery, would go first even though the question of reopening, of course, is really a matter for Mr Montgomery to respond to.  I think that was why we presented one option was to, in a sense…..them, but if there is a longer timetable or a timetable that best focuses on the first sittings in the new year then there is less urgency in the parties in a sense exchanging parts blind, and the question really becomes should the Commonwealth go first on all issues if that is the simpler approach and, in our submission, it would be.

The Attorney‑General has the benefit of submissions filed by Mr Montgomery in the Federal Court which addressed everything prior to

the removal application so we would suggest that the Commonwealth as the moving party would file first and we would respond then they would reply.

HIS HONOUR:   Mr Solicitor, what do you say to that?

MR DONAGHUE:   Your Honour, I do not accept that the Commonwealth is the moving party.  We are the moving party on the removal application but once the relevant grounds are moved into this Court Mr Montgomery is the moving party and, in our submission, he should go first.

HIS HONOUR:   But on the only issue that will be in this Court.  Mr Montgomery points to the decision of Love and Thoms and says I win.

MR DONAGHUE:   Your Honour, there are two issues in this Court, in my submission.  There is that issue, the issue your Honour just identified, but then there is also an issue that, assuming Love and Thoms is correct, Mr Montgomery says that the first limb of the tripartite test, the biological descent limb, does not actually require biological descent.  Either that limb can be satisfied by cultural adoption in accordance with traditional law or if it cannot be satisfied then that limb should be changed by a future decision ‑ by the decision of the Full Court in this case.

So, in our submission, Mr Montgomery is clearly the moving party on that issue.  I can see some force in the proposition that the Commonwealth is the moving party on the Love and Thoms correctness issue but given that division of responsibility there is a question of who should go first.  Of course, if the Court is minded to have us go first we will but we will be somewhat in the dark on the biological descent question whereas on the Love and Thoms question our friends know what our position is.

There are three, if I respectfully say so, powerful dissenting reasons in Love and Thoms that highlight the opposite point of view.  The issues in John v Federal Commissioner of Taxation as to reopening are well known and are familiar so our friends should not have any difficulty in understanding what we will be saying and may well have a right of reply.

So, in our submission, the ordinary position is more appropriate, they can fairly anticipate what we will say on Love and Thoms, we have less idea what they will say on the issue of a change in the tripartite test and a reply will deal with the need to respond.  But, having said that, if the Court thinks it would prefer the Commonwealth to go first, then I have no objection to that on the basis that we would, of course, have a reply on the biological descent questions.  So we are really in the Court’s hands but our submission is that the ordinary approach would be the more appropriate one.

HIS HONOUR:   Mr Willis, what do you say to the proposition that your side cannot just simply point to Love and Thoms and say we win?

MR WILLIS:   That is correct, your Honour.  The particular facts which are found in Mr Montgomery’s claim really requires an interpretation or essentially an extension of Love and Thoms to a new factual matrix which is his, that is of cultural adoption.  So the Solicitor‑General is correct in identifying that there are two parts to the issues raised on this removal.  We accept that.

HIS HONOUR:   Thanks for that.  Well, that being so, I am minded to think that the better course as a matter of practicality is to have your side, Mr Willis, go first to mark out just how it is you say your case is made, and that being so in relation to the draft minutes of the parties my present inclination then is to make orders in terms of Mr Donaghue’s draft, save that I would delete paragraph 11.

MR DONAGHUE:   Your Honour, can I say that we had anticipated the possibility that your Honour might say what your Honour said about the state of the list and that a December hearing was impossible and we have prepared an alternative version of this minute, changing the dates to have everything ready by December – sorry, for a February hearing next year, including accommodating the date changes that Mr Willis sought for the initial steps as to the special case.  If it would help your Honour I can give your Honour the different dates for the various paragraphs of that order or we can submit it ‑ ‑ ‑

HIS HONOUR:   It would.  I certainly do not want the parties to be undertaking the burdens of orders that are more oppressive than they need to be, particularly given that no doubt both sides will be putting resources into the hearing before Justice Derrington at the end of October.  The other thing I should say is it should be understood that I am not holding out a promise of the February sittings.  We will do our best but ‑ ‑ ‑

MR DONAGHUE:   I was not seeking to…..your Honour, but ‑ ‑ ‑

HIS HONOUR:   I appreciate that, Mr Solicitor, but we will do our best, but there cannot be a promise about that.  Yes, I would appreciate, Mr Donaghue, the varied dates that you were suggesting.

MR DONAGHUE:   So using, your Honour, the same paragraph numbers as in our order there is no date in order 1.  Order 2 would become 19 October.  Order 3 would become 25 October.  Order 4 would become 3 November and 5 November respectively.  Order 5 would become 8 November.  Order 6 becomes 22 November.  Order 7 becomes 29 November.  Order 8 becomes 13 December.  Order 9 becomes 20 December and order 10 becomes 21 January.

HIS HONOUR:   Mr Willis, are you happy with that?

MR WILLIS:   .….just at the back end, so Mr Donaghue – yes, your Honour.

HIS HONOUR:   Very well, then I will make the orders in accordance with the draft minute prepared by the Attorney‑General for the Commonwealth and deleting paragraph 11 of that order.  I will make the orders in accordance with that draft initialled by me and placed with the papers.  Are there any other matters that we need to mention today?  I do not think we need to have a formal date for a further mention.  The parties can organise that should the need arise, otherwise the parties should follow the directions that I have made today and the directions of the Registrar.

MR DONAGHUE:   Your Honour, the only other thing I would seek the Court’s guidance on is that, as I mentioned, we have narrowed the removal that we sought in the terms of the order 1 your Honour has just indicated you will make.  If it is necessary for us to file an amended application for removal, we can do that.  I am not sure whether it is, your Honour, having made the removal order in those terms, but we are happy to do that today if it would assist your Honour.

HIS HONOUR:   No, I am content.  You do not need to do that, Mr Donaghue.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   Mr Willis, anything else?

MR WILLIS:   While the Solicitor‑General was running through the dates I was actually marking up a wrong draft.  Can I just confirm that the proposal is that the first respondent file its submissions by 8 November on this timetable?

HIS HONOUR:   Yes, that is right.

MR WILLIS:   And whether we could shift that by a further week.  We apologise, I should have been keeping track of this better.

HIS HONOUR:   That is all right.  So you are suggesting 15 November?

MR WILLIS:   Yes, if I could.

HIS HONOUR:   Mr Solicitor, you do not have a problem with that, I take it?

MR DONAGHUE:   I do not, your Honour, no.

HIS HONOUR:   Sure.

MR WILLIS:   That would have perhaps consequential timing for subsequent orders.

HIS HONOUR:   Well, probably the interveners should have until 29 November and the Commonwealth parties should have until ‑ ‑ ‑

MR DONAGHUE:   Your Honour, one effect of that will be to push the submissions into next year.

HIS HONOUR:   Yes.

MR DONAGHUE:   One alternative would be just to have the interveners in support of either the first respondent or the Commonwealth have a week less and otherwise keep the dates the same while the interveners ‑ ‑ ‑

HIS HONOUR:   So that would mean paragraph 6 remains at 22 November.

MR DONAGHUE:   Yes.

HIS HONOUR:   All right.  Well, we will do that.  We will say 22 November for paragraph 6 and the interveners will just have to suffer, which is probably not a bad thing.

MR DONAGHUE:   It is not clear to what extent there will be interveners ‑ ‑ ‑

HIS HONOUR:   No, I think that is right, Mr Solicitor.  Very well, then, so those will be the orders that I will make, in accordance with the draft minute of order prepared by the Attorney‑General for the Commonwealth as varied and initialled by me and placed with the papers.  Is there anything else, gentlemen?

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   Very well, adjourn the Court please.

AT 10.09 AM THE MATTER WAS ADJOURNED