AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors

[2023] HCATrans 59

[2023] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M84 of 2022
  No M85 of 2022

B e t w e e n -

AZC20

Appellant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Third Respondent

KIEFEL CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 MAY 2023, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR M.L.L. ALBERT and MR J.R. MURPHY for the appellant.  (instructed by Human Rights Law Centre)

MR S.P. DONAGHUE, KC, Solicitor-General of the Commonwealth of Australia:   May it please your Honours, I appear with MR P.M. KNOWLES, SC and MS N.A. WOOTTON for the respondents.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  Your Honours know that these are two appeals, and they involve identical orders made in both proceedings by the Federal Court of Australia and the Full Federal Court.  If I can turn directly to ground 1 ‑ ‑ ‑

KIEFEL CJ:   Just before you do, Mr Lenehan.  If the appellant were successful on this appeal, the result would be that the orders of the primary judge stand but would have had no effect.

MR LENEHAN:   Yes, that is so.  While your Honour has stopped me to ask me about relief, can I also say that we do not press the somewhat adventurous form of declaratory relief that we have sought in prayer 7.  We accept that the orders proposed in prayer 4 and the alternative orders in prayers 5 and 6 would be sufficient.

GLEESON J:   So, would that produce the result that the Minister would remain subject to the duty that is stated in order 2 of Justice Rangiah’s orders?

MR LENEHAN:   Your Honour, I was just about to develop that by reference to the materials in the book.  We say that that order would have no practical effect ‑ ‑ ‑

GLEESON J:   It is a different point though, is it not?

MR LENEHAN:   Yes, it is.  I accept that, your Honour.  So, the answer ‑ ‑ ‑

GORDON J:   Is the position, though, that it has been – to use a non‑legal term – gazumped by the 198AE determination?  In other words, there is nothing for it to

operate on because the factual circumstances have changed.

MR LENEHAN:   Precisely.  In answer to both your Honours’ questions, yes, there is an order of a superior court, but it is an order – to embrace your Honour’s term – that has been “gazumped” ‑ ‑ ‑

GORDON J:   It may be not be the legal way of putting it, but that is at least my way of putting it.

MR LENEHAN:   It aptly describes the practical operation or lack thereof of that order.  Can I show your Honours why that is by reference to materials.  If your Honours take up the core appeal book – just to orient your Honours in relation to how things emerged – if you start at page 18, in paragraph 3, you will see – this, of course, was originally both a habeas application and a mandamus application.  There was acceptance by my client after this Court’s decision in AJL20 that he could not succeed on his primary arguments in respect to the habeas application.  So, that then left the mandamus application.

Your Honours see the essential argument that my client put below on that point over the page, page 19 and then paragraph 6, and that was that there existed a duty under section 198AD(2) to remove him to:

a regional processing country as soon as reasonably practicable.

The conclusion of the primary judge – which was, as your Honour Justice Gordon says, later overtaken by events – was that that provision did apply to my client and that the Secretary had failed to perform that duty.  So, that then led to the making of the orders which your Honours have in the book at page 58.

So, orders 1 and 2 relate that matter.  So, there is first a declaration that 198AD(2) applies to the applicant and, secondly, an order in the nature of mandamus.  While your Honours have those orders, can you then look down the page to order 3, and can your Honours note the somewhat careful wording of that order – in particular, in 3(a), the words:

pending performance of the duty –

described in order 2 and note, also, that the effect of this order was suspended – to use the term that your Honour Justice Gordon used at the special leave application – for a date two weeks after the date of these orders.

Focusing on the terms “pending performance of the duty”, the operation – and, also, the coming into effect of that order – can, we say, be taken to be premised on the ongoing failure to comply with the duty which was found to exist under 198AD.  That construction of the terms of the order, we say ‑ ‑ ‑

GORDON J:   Can I just ask one question about paragraphs 1 and 2 of those – both the declaration and the order read together.  That is a duty under 198AD(2), and that duty, as I understand it, on your case can no longer ever be exercised in relation to your client because of the 198A determination.

MR LENEHAN:   Yes, that is so.

GORDON J:   Thank you.

MR LENEHAN:   I was about to invite your Honours to go back earlier in the book to page ‑ ‑ ‑

GLEESON J:   I am sorry.  Can I just make sure I understand that.  The 198 determination?

MR LENEHAN:   Yes, your Honour.  Perhaps the easiest way to show your Honours where that appears is by reference to our written submissions at paragraph 13, where we record a series of events that took place on 27 October.  The two most salient of those are, first, what appears in paragraph a:

a.at 6:34am, Nauru advised an officer, in writing, that it would not accept the Appellant –

GORDON J:   I heard 198, but I think you must have said 198AE.  What is the determination that you were discussing with Justice Gordon?

MR LENEHAN:   I apologise.  I was about to draw your attention to this “E” in that part of our submissions.  So, the Minister determined in writing that the appellant could not be taken to any regional processing country.

GLEESON J:   Is that power not subject to revocation?

MR LENEHAN:   Your Honour, I would have to accept that it is.  It has not been revoked, and so the upshot of that is that it remains the case, as I said in answer to Justice Gordon, that my client cannot be taken to a regional processing country.

GLEESON J:   I thought what you agreed was that that could never happen.

MR LENEHAN:   Yes, I may have gone too far there, your Honour.  I accept that correction.  Of course, to complete that answer, there is the further difficulty with Nauru, which is outside the Minister’s control.  So, there are two things that result in my client being unable to be taken to the regional processing country.

Now, I think I was back at page 51 of the book and inviting your Honours to look to 146, which, we say, confirms the construction that I have just advanced of the orders.  So, your Honours there see that his Honour regards the detention order, order 3, as being “ancillary to mandamus”, and dependent on the circumstance – it appears in the first sentence; that is:

where officers have refused or failed to perform a statutory duty –

Now, the construction that I am advancing of those orders also appears to be the position that was taken by the respondent in a further interlocutory application before the primary judge, which I will come back to in a moment, but before I do could I just finish with the orders – so, going back to 58 and 59.  Your Honours see at the foot of page 54, there was ordered to be a mediation before the Registrar to reach agreement on the arrangements for immigration detention described in order 3.  So, that suggests that important aspects of those arrangements were yet to be worked out.

EDELMAN J:   Which paragraph is that?

MR LENEHAN:   You see that in order 4.  So, foot of page 58 and then over to 59.  The further point to note is order 5.  So, there is an express grant of liberty to apply in respect of orders 3 and 4, which also appears to look into the primary judge’s reasons at page 57, and paragraph 174, having envisaged that if there were:

difficulties with the nature or terms of detention –

that “liberty” could be exercised to:

require directions from the Court.

The point that we take from that is that important aspects of that order and its implementation were up in the air.  Now, that was the point to which the Full Court actually drew attention – if your Honours turn to page 90, and paragraph 43.  So, referring to the passage and the aspects of the orders that I have just noted, their Honours say:

On their face, it was clear there was much to be worked out about how those orders were to apply in practice and, indeed, legally.  The order for mediation is a strong indicator that the orders in and of themselves did not finally determine any controversy between the parties.  On the face of the orders, the mediation process may have thrown up some insuperable obstacles to the detention arrangement orders being workable and manageable, or indeed their capacity to be lawfully carried into effect.

This was all in the course of their Honours determining that the orders were interlocutory in nature and therefore required leave.  Now, I mentioned briefly before the further interlocutory applications made before the primary judge by the parties following the events of 27 October that I have already shown your Honours.  Those applications were prompted by the matters that I showed to your Honour Justice Gleeson in responding to your question and by reference to our submissions at paragraph 13.

So, again, the first aspect of that was the Governor of Nauru refused in writing to permit the appellant to enter Nauru, and that then brings into focus section 198AG, which had the effect of section 198AD not applying to the appellant.  Then, the further aspect, the determination under section 198AE, which is, I have accepted, revocable but, as things stand, prevent my client from being taken to a regional processing country. 

Unsurprisingly, both parties made an application to the primary judge in respect of orders 2 and 3 at that point.  If your Honours take up our book of further materials, you will see the application of the respondents appears at page 260 of that book, or rather, its substantive terms appear at page 260.  So, your Honours see there the application made by the respondents was that:

1.Orders 2 and 3 . . . be vacated.

In contrast, my client – and you see this at pages 263 to 264, sought to have the court order that the Secretary comply with order 3, or a variation of that order.

Now, the position that was ultimately taken by the respondents differs somewhat from the prayers in their interlocutory application.  You can see that by reference to their written submissions on that application, which appear at 189 of the further book of materials.  Your Honours will see that Mr Knowles crisply summarises the events that I have just described in paragraph 2, and then sets out a succinct summary of the respondents’ position in paragraph 4.  Your Honours see there that the position then taken by the respondents is that the two interlocutory applications: 

should be resolved without making an order of the type sought in either parties’ interlocutory application.

That was explained in this way: 

Order 2 can remain in its current form albeit that the duty to remove under s 198AD of the Act no longer exists and is incapable of performance –

That is further explained in a passage that I will take your Honours to.  Then:

On its proper construction –

and this was the point that I was putting to your Honours before:

the performance of the obligation imposed by order 3 is premised upon a continuing failure to perform the duty under s 198AD of the Act.  As that duty no longer exists, order 3 no longer has any practical effect and the Secretary is not obliged to cause the Applicant to be detained at the residential address.

That summary of the position is then further developed over the page on 192, and you see from 8 through to 11, Mr Knowles explained the position regarding order 2.  The essential point which your Honours see at 11 is that it had been shown – or rather, cause had been shown why the duty had not been performed, noting – see paragraph 10 – that order 2 should be understood as an order in the nature of mandamus, and in circumstances where:

the Respondents have shown cause as to why the duty was not performed and cannot be performed, compliance with the order is complete.  That is, as the relevant duty no longer exists, order 2 ceases to have any practical effect.

Your Honours then see the explanation in relation to order 3, from 12 through to 17.  Mr Knowles there essentially makes the point that I made before by reference to the terms of order 3 that I noted, and also – see paragraph 15 – the primary judge’s explanation of what it was that he was doing in making that order.  One then gets to the point, in paragraph 17:

From these passages it is clearly seen that Order 3 is ancillary or incidental to Order 2.  It was not a free‑standing order . . . For the reasons stated above, the order in the nature of mandamus has been complied with because the Respondents have shown cause why the duty has not been performed.  There is no warrant to construe order 3 as requiring the detention of the Applicant at the specified residence in circumstances where the Respondents are not in any breach of any obligation to perform the relevant duty.

That, then, explains why – see again 4(b) – it is said that order 3 no longer has any practical effect either.  The record is somewhat unsatisfactory in the sense that your Honours do not have the ruling of the primary judge on that application, but we have recorded – and neither party has the transcript of what it was that his Honour did; his reasons were not reduced to writing. 

We have summarised what took place in paragraph 15 of our written submissions, and we understand that our friends accept the description of what there appears.  So, if your Honours take up those submissions, you will see that his Honour dismissed all parties’ applications – which is what Mr Knowles invited him to do – and did so having accepted the respondents’ submissions, which were to the effect that I have just shown your Honours in the further book of materials.

So, the upshot of all of that is, essentially, this:  the controversy between the parties that led to the making of order 2 was quelled, we say, before that order was acted upon to remove the appellant, and it ceased to have any practical effect by reason of that.  Then, in respect of order 3, it was a contingent order which, likewise, never came to have any practical operation because the contingency for its operation ceased to be met prior to the time specified for its operation – again, two weeks after the making of the orders.

GLEESON J:   Do you go as far as to say that the order for mandamus has been spent?

MR LENEHAN:   Yes.  We also say, in respect of order 3 – and this was the point that I noted before by reference to what the Full Court said – it was subject to further contingencies in the sense that it was an order that left significant legal and factual matters to be worked out about how it was to be applied in practice and legally.

So, by the time the matter reaches the Full Court – and this appears to be what the Full Court accepts at core appeal book 83, paragraphs 15 and 16.  The controversy as to the application of section 198AD had been quelled, or effectively quelled.  Then – see 16 – that meant:

there was no basis for the detention arrangement orders to be carried into effect.

Now, there remained the question of costs of the proceeding below which, as your Honours know, is a familiar means by which the Federal Court sometimes discerns ongoing controversies where an appeal ceases to have utility.  But your Honours see the position as regards those costs at page 84 and paragraph 20.  After the issue was raised by the Court, the respondents determined that they would not seek to disturb the costs orders made by the primary judge in favour of my client, and they then amended their notice of appeal accordingly.  Your Honours have that notice of appeal at page 72 of the book and you will see ‑ ‑ ‑

KIEFEL CJ:   I am sorry, what page was that?

MR LENEHAN:   Page 72.  You will see that at the foot of that page.  So, against that background, we turn to the central principle on which we rely for the purposes of ground 1.  The well‑known requirement derived from re Judiciary and Navigation Acts that there would be some immediate right, duty or liability to be established by the determination of the Court.  The nature of that requirement, we say, is usefully further explained by Justice Hayne in Re McBain, which your Honours have at tab 34 of the joint book of authorities, page 2204, volume 6.

GLEESON J:   What paragraph number is that, please?

MR LENEHAN:   I am looking to paragraph 241, your Honour ‑ ‑ ‑

GLEESON J:   Thank you.

MR LENEHAN:   ‑ ‑ ‑ and 242.  So, we take a number of points from those passages – when your Honours have them.  The first point, which is very familiar, is that question of “matter” and the later question of “standing” are not merely:

arid technical questions but are . . . rooted in fundamental conceptions about judicial power –

and I am going to return to that in a moment and explain what we say those are.  The second point – see 242 – is that:

At the heart of the constitutional conception of “matter” is a controversy about rights, duties or liabilities which will, by the application of judicial power, be quelled.

Then his Honour notes, by reference to re Judiciary and Navigation Acts that:

The “controversy” must be real and immediate.

The contrast that his Honour then draws – this, of course, was a case where the Catholic Bishops’ Conference sought to disturb an order of Justice Sundberg, having not been a party to the proceedings in which his Honour made the relevant orders – is with “hypothetical questions” where that real and immediate controversy between the parties is lacking.

We have used in our written submissions – and I will use it today – the label “advisory opinions”, recognising that that label has sometimes been regarded as problematic – see, for example, Justice Toohey’s observations in Mellifont at page 323 of the report.  I will use that label in the sense described by Justice Toohey in that passage; that is, an advisory opinion is an opinion that is:

“rendered by a court at the request of the government or an interested party indicating how the court would rule on a matter should adversary litigation develop”.

So, his Honour is there pointing up the vice in such opinions, which is their hypothetical nature.  And that, we say, is what was involved here, because ‑ ‑ ‑

EDELMAN J:   Was that in the context of saying that there may, in a very, very small group of cases, be a difference between a matter and the exercise of judicial power?  In other words, that there may be some cases like advice to a trustee or to a liquidator which might not fit classical description of a matter – arguably, subject to exceptions – but would fit the concept of judicial power?

MR LENEHAN:   So, the special category of cases, discussed in cases like Davison and then, more recently, by your Honours in Unions (No 3) which are historically‑based and include the kinds of cases that your Honour has identified.  Those were the subject of a recent article by your Honour the Chief Justice talking specifically about advice to trustees.  So, we say we are not in that category of case.  We do not understand our friends to suggest otherwise but, yes, in those cases, that can be regarded as a permissible form of advisory opinion, but not this one, we say.

What was involved here, given that the controversy regarding orders 2 and 3 had ended in the way that I described before, was that the Full Court was effectively being asked by our friends’ client, how it would rule on those questions in other matters including, we accept, in the applicant’s own separate proceeding, but none of which were before the court.  And, in referring to my client’s separate proceeding, I am going to deal later with the suggestion that that involved one and the same matter, which was all before the Full Federal Court.  We say it is not.

KIEFEL CJ:   That is the section 198 matter.

MR LENEHAN:   Yes, it is.  Before I develop that submission further, can I return to Justice Hayne’s important point about the matter requirement being rooted in fundamental conceptions about judicial power which, we say, indicates that what is involved is important – I will call them bedrock systemic values and principles which you discern from the Constitution itself.

GORDON J:   This is the separation of powers point that has been made in a number of the authorities below.

MR LENEHAN:   Yes, and I will not take your Honours specifically to it but, of course, your Honours made that point in Unions NSW, and in that same passage then talked about the point that I have noted with Justice Edelman; that is, there are exceptional cases that fall outside those ideas, but the matter requirement is responsive to and reflects those principles.

We have sought – and I hope this is helpful – to further explain what they are in our written submissions with those passages in mind, and your Honours see that at paragraphs 28 and 29 of our written submissions.  What we have sought to do there is to pick up on the ever-helpful analysis of Professor Stellios, and also some aspects of the convention debates and Quick and Garran, all of which, I think, is included in Professor Stellios’ helpful text.

So, your Honours see there the point that your Honour Justice Gordon has made that, of course, the first important systemic interest involved relates to the separation of powers.  Looking at the foot of that paragraph – and this is an extract from Quick and Garran – what it avoids is the notion, or the difficulty, of judges coming to be seen as the law advisers of the Crown.

GLEESON J:   But there is still an underlying dispute in the appeal, which is as to the correctness of the judge’s decision to order mandamus.  There is a controversy between the parties as to an existing duty, which is an order for mandamus to be resolved by the Full Court.

MR LENEHAN:   Your Honour, we say that given that the mandamus order is spent, or has no practical operation, that dispute, such as it was before the Full Court, is really in the nature of parties desiring the law to be in a particular state.  So, a hypothetical interest, not a real interest.

GLEESON J:   So, your argument does depend on the proposition that the order of mandamus is spent?

MR LENEHAN:   Yes, it does.  I am putting that front and centre of our argument.  The important systemic interest that I have just identified is not the only interest, of course, which is served by the matter function, or the matter requirement.  We have sought to identify a further – again, hopefully helpful – aspect in paragraph 29, which is the familiar notion that the concept of a “matter” is informed by the experience that the judicial might is sharpest – so, this brings to mind the repeated reference in the authorities to concreteness when the court is determining disputes with immediate real-world consequences.

The difficulties associated with that, we thought, are usefully explained in Justice Frankfurter’s article in the Harvard Law Review that we gave to your Honours yesterday where, at page 1006 of that relatively short article, his Honour notes that one of the vices of advisory opinions is that the court is:

bound to move in an unreal atmosphere.  The impact of actuality and the intensities of immediacy are wanting.

When your Honours come to read that article, you will see both before and after that passage his Honour is situating that in the context of the point that is made in Unions (No 3); that is, the important functional differences between the legislature and the judicial branches.

EDELMAN J:   This is in the context, is it, of Article III, section 2, cases and controversies?

MR LENEHAN:   Yes, cases and controversies. 

EDELMAN J:   Where, I think, there was some parallel drawn in Unions (No 3) as well.

MR LENEHAN:   Yes, yes.  We say that that idea also finds a home in the convention debates, which is what we have also referred to in paragraph 30 of our written submissions, and a passage from one of Mr Higgins’ speeches, where he said that:

a judge does not give that same attention . . . to a supposititious case as when he feels the pressure of the consequences to a litigant before him.  If he feels that the effect of his decision will be ruin to this man or that man he will take the utmost pains in considering his decision.

And, and as I say, those observations are reflected in the Court’s repeated reference to the importance of concreteness as an aspect of both standing and the related question of matter.

STEWARD J:   This is similar to what Justice Megarry used to say when barristers used to quote his book to him; he would get grumpy and say, argued law is tough law, which is an old Norman French expression.

MR LENEHAN:   Yes.

STEWARD J:   Which is that you get the best law when you have got a real matter that is being argued before you by both sides.

MR LENEHAN:   Precisely, your Honour.

STEWARD J:   That is the sharpness.

MR LENEHAN:   That is exactly what we say.  And, again, when your Honours come to read Justice Frankfurter’s article, you will see that that, of course, is to be compared with the legislative function where experimentation, acting on things that are not precisely factually established, is both commonplace and desirable – particularly in the Federation.  So, what we take from all of that is that it is important to bear those kind of bedrock systemic principles in mind when assessing a submission which – and this is how we characterise our friends’ submissions – is seeking to relax the matter requirement.

Can I then move immediately to explain how we say that requirement operates in an appeal and how it operated when the proceeding was before the Full Court.  We say that that is exemplified by earlier decisions of the Full Federal Court, such as the Commissioner of Taxation v Industrial Equity Ltd, which your Honours find in tab 49 of the joint book, at page 2720.  Your Honours can see from the headnote to that decision that the appeal concerned a notice issued under section 264 of the Income Tax Assessment Act, which was set aside by the Court.  After the notice was spent, and shortly after judgment, another notice was issued.  That further notice was actually responded to, as required, and so:

The appeal was reduced to a dispute over the costs order.

What your Honours see Justices Hill, Heerey, and Hely do at paragraph 13 is to set out what we say is an exemplary statement to circumstances in which a matter will and will not appear when one has an appeal which has lost utility.  Their Honours say:

In a case where no controversy at all exists between the parties to an appeal, there will be no “matter” within the meaning of that expression in Ch III of the Constitution of the Commonwealth and thus no jurisdiction for the Court to proceed with the hearing of an appeal.  It is, however, accepted by the parties in the present case that there remains a controversy as to whether the order for costs at first instance was correctly made.  The determination of that question necessarily involves the Court determining who is entitled to succeed, that is to say the substantive merits of the appeal.

It is that kind of case, but not this kind of case, we say, that can involve a matter, even when circumstances change.  But, of course, the issue as to costs had disappeared in a way that I had showed your Honours before.  We say it is not sufficient ‑ ‑ ‑

EDELMAN J:   Why should that be so?  Why should the existence of a controversy about costs, which is usually consequential upon the existence of a matter, be, itself, a foundation for a matter?  I recognise that has been the established position for a long time.

MR LENEHAN:   Yes.

EDELMAN J:   But, as a matter of principle, why should the tail wag the dog?

MR LENEHAN:   Yes.  What your Honour has said may suggest that that area is one that requires further exploration – it at least involves some sort of immediacy in the sense of a right or duty to pay those amounts.  So, that appears as a way that the courts have analysed the matter requirement in that context.

GORDON J:   In the Commonwealth’s submissions, they list the number of cases on this question.

MR LENEHAN:   Yes.

GORDON J:   All of those – putting aside, I think, Ruhani – were all cases of the kind Justice Edelman just put to you.  They all dealt with the question of costs as the justification for going on to hear the ‑ ‑ ‑

MR LENEHAN:   Yes.  On our reading, in all of those cases where the costs order sustained the existence of a matter, it remained in dispute throughout the appeal.

GORDON J:   I mean in footnote 33, on page 11 of the Commonwealth’s submissions.

MR LENEHAN:   Yes, yes.  So, that is a point that I think we have made in reply and so we say that those cases do not assist our friends.  They exemplify the point that I am seeking to make here.  What we say – and this is what I said in response to Justice Gleeson earlier – is that, putting aside the interesting question that your Honour Justice Edelman, has raised, it is certainly not sufficient that there is no more than some form of controversy in the sense of an ongoing intellectual disagreement on the part of one party over orders that have been overtaken by events.

GLEESON J:   A costs argument might be a lot more than an intellectual controversy, might it not?

MR LENEHAN:   It might.  So, if I was dealing with a case in which costs had not been conceded or put aside below in the way that I have shown your Honours, I would have a more difficult time on the basis of, at least, the Full Federal Court’s approach.

GLEESON J:   There are a couple of other things that concern me about IEL.  One is that if the test is the existence of an immediate right, duty or liability for matter, that is a little more difficult in a case where the order that was made below was that the notice be set aside, as opposed to an order for mandamus.  The other thing is that the proposition at the beginning of paragraph 13 is not developed and, in particular, their Honours did not refer to the then‑recent decision of Abebe and particularly what was said at paragraph 25 in that judgment.  It would assist me if you came to that statement at some time.

MR LENEHAN:   Yes, your Honour, I will do that directly and by reference to what we say in reply.  Our friends have likewise sought to leverage Abebe, so if your Honours look to paragraph 6 of our reply, that is speaking to the kind of the case, and is, in fact, referring specifically to O’Toole, so it has in mind the questions reserved procedure, and the connection with “rights” and “duties” is explained in the next sentence of our reply by reference to Mellifont, that is, that, in that case ‑ ‑ ‑

EDELMAN J:   Sorry, which paragraph number?

MR LENEHAN:   Sorry, your Honour, it is paragraph 6, and it is pages 2 and over onto 3 of our reply.

EDELMAN J:   Thank you.

MR LENEHAN:   This is to tie it to the notion of determining the rights and obligations of the parties.  The answering of those questions, and this was what is explained in that passage in Mellifont, is an integral part of that process.  I am going to come back to Mellifont and explain why that does not assist our friends either.  Your Honours will have seen that our friends make a number of points about that.

Before I get there, can I say, an example – we say, helpful example – from the US authorities that is consistent with the point we make can be seen in the United States v Sanchez-Gomez – which your Honours have behind tab 79 of the joint book at page 3270.  I should, of course, accept that there – and this point has been made a number of times in the authorities – there are differences between the doctrine under our Constitution and the Constitution (US).

Nevertheless, this Court has repeatedly found, including in Unions (No 3), and also, see Justice Gleeson’s in McBain speaking, specifically on the position regarding advisory opinions at paragraph 3 of McBain; those authorities helpful as a way of understanding and explaining what is involved regarding matter and the notion of advisory opinions.  But, when your Honours have Sanchez, this was a case in which a question was sought to be agitated regarding the constitutional permissibility of the application of constraints during pre-trial proceedings.  You see that discussed on 1536 on the left-hand side in the first part of Chief Justice Roberts’ decision.  By the time the appeal came to be heard in that matter, it was moot, for the simple reason that the trial had finished and so those constraints were no longer being applied.

If your Honours then turn to page 1537, on the right-hand side at the top of that page, this is a passage that we say coheres with the Australian approach to matter and advisory opinion, where his Honour says:

To invoke federal jurisdiction a plaintiff must show a “personal stake” in the outcome of the action.

And echoing what Justice Frankfurter says, or said:

“This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved.”  Such a dispute “must be extant at all stages of review, not merely at the time the complaint is filed.”

And that:

A case that becomes moot at any point during the proceedings is “no longer a ‘Case’ or ‘Controversy’ –

And we say likewise not a “matter”:

for purposes of Article III –

Now, against those submissions which, we say, are supported by principle and useful analogy with the United States cases, our friends say that circumstances that deprive an appeal of utility go only to the discretionary question of whether a matter or an appeal should be stayed.  They say that it is sufficient – you see this in paragraph 27 and also 25 of their written submissions – in an appeal that the appellate Court seeks to obtain – or rather, one of the parties seeks to obtain a review of the orders made by the primary judge, even if the only utility of all of that is to secure a correct statement of the law in future cases, and there is no alteration of the rights of the parties.

In doing that, your Honours will have seen that they seek to draw an analogy with Mellifont, which your Honours have behind tab 22.  Before – I am sorry, I am going to – before I take your Honours there, can I also invite your Honours to, or perhaps invite your Honours first to look to CGU, which is another decision that we gave the Court yesterday, and paragraph 26 of that decision, where four members of the Court, after referring to re Judiciary and Navigation Acts and the principle that we rely on, say:

An entitlement to claim declaratory ‑ ‑ ‑

KIEFEL CJ:   Where are you reading from?

MR LENEHAN:   Sorry, this is paragraph 26, your Honour.

KIEFEL CJ:   Thank you.

MR LENEHAN:   It is page 350.  Their Honours there say that:

An entitlement to claim declaratory relief may be created by statute –

And, as your Honours see immediately below, they had in mind Truth About Motorways:

even though the subject matter of the relief is not an immediate right, duty or liability to be established.

But the explanation for that is in the next sentence:

The declaration itself may assume that description –

The immediate right, duty or liability to be established, but with a condition:

where it concerns a real controversy susceptible of judicial determination.

Your Honours will see that a similar point was more recently made by this Court in Unions (No 3) at paragraph 17, explaining the more general position regarding declarations, including in Croome.

EDELMAN J:   The qualification is what keeps the statutory declaratory relief from bootstrapping itself into constitutionality.

MR LENEHAN:   Correct.  Precisely, and that is why we emphasise the importance of that further qualification.

EDELMAN J:   So, what is the real controversy, then, in the Mellifont‑type scenario, or is it just an exception like the trustee’s advice‑type case?

MR LENEHAN:   Well, your Honour, can I embrace both of those possibilities?  So, your Honour will have seen in writing we say it can be regarded as an exception because it reflects the unique position of the criminal law and the common law position regarding double jeopardy.  So, in that sense, these provisions having – for review of criminal convictions having been in place for some time can be seen as a further historically‑based exception; that is one explanation.

A further explanation which has – and your Honour has helpfully directed me right to the point that I should be making – can be seen on a reading of Justice Toohey’s concurring reasons at page 326 where his Honour, in explaining why the answers given by the Court of Appeal were not advisory regardless of the possibility of any later indictment by reference to the fact that Mr Mellifont:

had a direct interest in preventing an unfavourable ruling which might cloud his discharge –

or affect “his reputation”.  So, the kind of interest that your Honours are familiar with by reference to cases such as Ainsworth.  So, if we need it – but again I am embracing both points that your Honour puts to me – we say that for that reason there remained all times a real controversy over the special remedy, the special statutory remedy, that was sought by the Attorney‑General in that case.  So, we take from that that all of that aligns with what we say about the need for an immediate controversy about rights, duties and liabilities to be quelled ‑ ‑ ‑

KIEFEL CJ:   From Mr Mellifont’s perspective, though, the real interest would have been in the second indictment that was issued and the application of the answer.

MR LENEHAN:   Your Honour will see that at least Justice Toohey, although, like the authors of the joint reasons, accepts that that is not decisive – this is further down in the paragraph at 326 – says that that is at least an important consideration.

EDELMAN J:   Perhaps even more important than his reputation might be?

MR LENEHAN:   Yes, one can accept that.

KIEFEL CJ:   Since the ruling is on inadmissibility and not, of themselves, necessarily to do with reputation.

MR LENEHAN:   Yes.  In the current matter – however one regards the controversy in Mellifont ‑ ‑ ‑

GORDON J:   So, do you propose to go to Unions (No 3)?

MR LENEHAN:   Your Honour, I was not, because this Court has given that decision so recently, I was not proposing to.

GORDON J:   Thank you.

MR LENEHAN:   Was there a passage that your Honour wish me to go to?

GORDON J:   No, no, no.  I think there are a number of points that come out of Unions (No 3).  One is the administration of the law aspect and that is this, that the matter has the two limbs to it.  You have to have the controversy, but there has to be administration of the law itself.

MR LENEHAN:   Yes, yes.

GORDON J:   So, it has an aspect to it that is quelling the controversy between the parties at the table but giving rise to something which administers the law in relation to those people.

MR LENEHAN:   Yes.  We accept all of that, your Honour, and so, in that further sense, one finds that aspect of the matter requirement lacking here.

KIEFEL CJ:   Is that where the notion of the connection with the criminal trial in Mellifont assumes some importance?

MR LENEHAN:   I am sorry, your Honour?

KIEFEL CJ:   It is the administration of the law.

MR LENEHAN:   Yes, yes.

KIEFEL CJ:   Their Honours in Mellifont, in the joint judgment, considered that it still related to the administration of the law and was not an advisory opinion.

MR LENEHAN:   Yes.

KIEFEL CJ:   Their Honours are at pains to point out at a number of points that there remained a connection with the trial and the correction of the trial judge’s ruling.

MR LENEHAN:   Yes, they do.

KIEFEL CJ:   At one point, they said you could see it as an extension of the trial itself.

MR LENEHAN:   Yes.

KIEFEL CJ:   So, are their Honours really saying it remains within the notion of the administration of justice for that reason – because of its connectedness to the trial?

MR LENEHAN:   Yes, I can accept that, your Honour.  If your Honours look, also, to page 291 of Mellifont – which is part of the argument – you will see, perhaps, the explanation for the passages that your Honour has in mind.  So, Mr Jackson, there, is seeking to demonstrate the matter requirement by reference to the indictment.

KIEFEL CJ:   On Justice Deane’s question:

Why is this not a remnant of the previous proceeding?

MR LENEHAN:   Yes – and says that it is almost equivalent to the Crown seeking declaratory relief, which is why we bring in the analysis in CGU.

KIEFEL CJ:   That, however, tends to involve two separate aspects, though, does it not, that the statutory purpose is to enable the Crown to correct matters for the purpose of future actions but, what his Honour is saying there is to say something about the previous proceedings.

MR LENEHAN:   Yes, and it is that connection and the fact that it is a – I will call it a sui generis extension of that proceeding – which the Court emphasises in saying that there remains a matter.

KIEFEL CJ:   Do you say that is not this case?

MR LENEHAN:   We do.  Because, in this case, by the time of the appeal, both parties agreed that the foundation for the contingent or the suspended detention orders had disappeared, they had no ongoing practical operation, had not even commenced, and by the time of the appeal there was, likewise, no issue between the parties that order 2 had no ongoing practical effect.  So, the controversy that existed in Mellifont in the way that I have sought to explain by reference to Justice Toohey was not present in this case.

KIEFEL CJ:   But in terms of what we have been discussing, it is put against you that what is involved here nevertheless involves the correction of what the law should have been.

MR LENEHAN:   Yes.

KIEFEL CJ:   But in Mellifont, that was seen to have a particular aspect of the continuing aspect of the administration of justice, whereas you say here it is not connected to anything.

MR LENEHAN:   We do.  And we say Mellifont was in, of course, the unique context of the criminal law and so it can be regarded as falling within one of Justice Edelman’s exceptions to the general point that applies otherwise regarding the matter requirement.

Now, I mentioned before that our friends in their second and third arguments adopted a somewhat different tack.  They seek to link the further proceedings concerning the duty in section 198, and drawing what they say is a connection with those proceedings, say that the issues determined by the Full Federal Court in the separate proceeding commenced in the Federal Court seeking mandamus were all part of one and the same matter.

Just to indicate your Honours, the section 198 proceedings had not been heard at the time of the Full Federal Court’s decision, they are still yet to be heard, and your Honours will have seen that the essential argument that our friends put is that the requirement for a matter is satisfied because both sets of proceedings concern the same underlying matter and so there remains, they say, a relevant controversy about rights and duties.

Your Honours know, without me taking you to it, that the well‑established principles concerning when two proceedings involve the same matter discussed in cases like Wakim, which is in the joint book at tab 35, and in the reasons of Justices Gummow and Hayne in that case at 138 to 140, which is at page 2309.  I am going to summarise what we take from that.

The first, of course, is that the term matter as a justiciable controversy is not coextensive of a legal proceeding, as was established very early on in this Court’s history, that means the subject matter for determination and so it is identifiable independently of legal proceedings and encompasses the claims made within the scope of the single controversy.  And so the inquiry is therefore to identify – this as what Justices Gummow and Hayne say in Wakim, what is that controversy or controversies. 

And, as their Honours point out, in a civil claim that generally involves looking at the pleadings and the factual basis for the claims.  And, in a statement that is very well known, their Honours said that whether something:

is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”.

The point that we make as to why those two proceedings involved separate matters turns on section 198(11), which makes clear that only one duty of removal could apply at any one time.

So, that is the law which regulates the relationships or duties that applies between the parties.  We say that disjunction is reflected in the pleadings, which is where one sees the substance of the appellant’s claims in each case.  To show your Honours that, if I can invite you to go back to, first, the core appeal book at page 7.  You will see the prayer for relief in respect of the 198AD decision was:

An order in the nature of mandamus requiring the taking of the Applicant from Australia pursuant to –

that provision, and then, in very brief terms, the grounds of application appear immediately under that, and so your Honours see at 1.2:

Because of his date of arrival –

that being referred to in 1.1.:

the applicant was a person in relation to whom the obligation under s 198AD arose, requiring him to be taken to a Regional Processing Country as soon as reasonably practicable.

And the next point:

The applicant has not been taken to a Regional Processing Country and remains in immigration detention.

So, this claim – the one that was ultimately before the Full Federal Court – is entirely concerned with the exercise of power under section 198AD.  Your Honours find the claim and factual basis in the second proceeding if you turn to our book of further materials and page 212, which contains the application.  You will see – see page 216, this is an application which was filed on 15 November, so after the Minister had made a determination that the appellant was no longer subject to 198AD.  Then on page 213 under the heading “Migration decision details” you will see the decision that is identified as the subject matter of the controversy is:

A future decision or other action by the Minister or an officer under the Migration Act under s 198 –

And then over the page at 214, you will see the orders at the bottom of the page – the “Final orders” that are sought by the appellant, including an order for mandamus under section 198:

to, as soon as reasonably practicable, remove the applicant from Australia other than to Iran.

Then, over the page at 215, you will see an even briefer, we accept, description of the grounds, that being, that:

the respondent has failed to pursue and/or carry into effect removal of the applicant from Australia as soon as reasonably practicable.

In the context of the prayer for “relief” and the identification of the relevant migration decision, all of that can only be understood as referring to the failure to perform the duty under section 198.  Now, we say, understood against that context, the first and second of those two claims are properly understood as seeking relief in respect of separate controversies concerning sequential duties, which, by reason of section 198(11), cannot overlap.

So, the factual basis for the first claim could only concern conduct up until the time section 198AD was disapplied.  And, in contrast, the factual basis for the second claim could only concern conduct after that time.  And so, in that way, they did not – to use the language of the matter authorities – involve the same substratum of facts.  The only unifying feature is that they both concern duties of removal, but they are duties of removal that could not co-exist, and so the controversy regarding section 198, we say, could not have been part of the matter that was before the Full Court.  There is no doubt that the Full Court ‑ ‑ ‑

GLEESON J:   So, let me just understand that.  So, you are saying that the declaration of Justice Rangiah that 198AD(2) applies to the applicant has no continuing operation, because of the declarations?

MR LENEHAN:   Yes.  Now, it is true that in each of those cases the plaintiff made associated claims for relief in relation to detention, which is another way in which our friends say that your Honours discern a single matter.  But those claims were, as I mentioned when I was unfurling the facts at the outset, were entirely parasitic on the claims in respect of each unperformed duty.  And so, the factual basis for the order made by Justice Rangiah rested on evidence concerning the effects of detention on the applicant or the appellant of the time of making that order, or, rather, at the time of the hearing.

The factual basis for any future similar order will, likewise, depend upon evidence concerning those matters at that time.  So, we say the factual underpinnings for those claims are, therefore, likewise separated by what I am calling a temporal disjuncture, and so do not involve the same substratum of facts.

GORDON J:   Can I just understand that.  So, the argument is – the orders are – I think you describe them as parasitic – that is, they are ancillary to the possibility of a mandamus order being made in the future.

MR LENEHAN:   Yes.

GORDON J:   So, one has to find a duty, one has to find a duty that has been breached.

MR LENEHAN:   Yes.

GORDON J:   One has to determine that mandamus should go in the exercise of discretion.  One then has to turn and then ask oneself, what are the facts that give rise to the need for the potential possibility there is ancillary relief, or has the Commonwealth taken steps to prevent rather than cure that which was relied upon in the earlier proceeding?

MR LENEHAN:   Yes, that is the point that we make in our reply and that all tells your Honours that those two sets of facts involve disparate matters – not the same matter.

KIEFEL CJ:   The Full Court do not suggest that the section 198 matter which has not been heard is part of the controversy.

MR LENEHAN:   No, this is a more recent – I will call it ‑ ‑ ‑

KIEFEL CJ:   At paragraph 36, their Honours seem to say that the determination of the dispute as they see it before them would clarify some aspects of the proceeding.

MR LENEHAN:   We embrace that description.  This is – I will call it a more recent re‑invention by our friends.  Now, your Honour, I am so sorry, I cannot recall when the morning break is – I think it is ‑ ‑ ‑

KIEFEL CJ:   It is quarter past, but if there is a convenient point before or after, we are happy to go earlier or later.

MR LENEHAN:   Your Honour, I think I can quickly finish the rest of my submissions on the “matter” aspect.  The last point that our friends rely upon – and this is a point that I have also already developed somewhat in argument in responding to Justice Edelman’s questions – is that the correctness of the costs orders was in issue at the time the appeals were instituted and heard, but that, in the way that I am showing your Honours, was something that changed.

This was the point that I made to your Honour Justice Gordon in dealing with the various cases that our friends rely on at footnote 38 for the proposition that an issue about costs can be sufficient to maintain the matter.  But all of those cases concern factual situations in which the controversy as to costs was maintained throughout.

GORDON J:   I think I was – I looked at the cases at footnote 33, it may be that you and I looked at different cases with respect to footnote 38 – I think it might be footnote 33.

MR LENEHAN:   All right.

GORDON J:   That is all right.

MR LENEHAN:   I may have noted the ‑ ‑ ‑

GORDON J:   These are Al Masri, Hadgkiss ‑ ‑ ‑

MR LENEHAN:   Yes, I am sorry, your Honour, I have got the wrong footnote in my notes.

GORDON J:   It is okay.

MR LENEHAN:   The point, of course, that we make about all of that is really that which your Honours are very familiar with from Unions NSW, that is, and this is a point that is made at paragraph 19:

If a “matter” can exist whether or not a proceeding has been commenced, a “matter” can –

the corollary:

cease to exist after a proceeding has been commenced.

That, we say – to the extent the controversy about costs orders sustained the existence of a matter – is what happened here.  Is that a convenient time, your Honour?

KIEFEL CJ:   Yes, thank you.  The Court will adjourn for 15 minutes.

AT 11.12 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

KIEFEL CJ:   Yes, Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  Your Honours, can I then move to (ii) in the ground 2 of our notice of appeal; that is, the asserted error in the discretionary grant of leave.  Your Honours will have seen that our point there relates to the so‑called “substantial injustice” test as discussed in Décor v Dart.

Can I make two things clear about the way we approach that ground.  We do accept that it is not necessary to show substantial injustice in every case to warrant leave.  That, in fact, is, of course, made clear in Décor, and it is also made clear there that there are cases raising what the Court describes as “special considerations”, and that:

the court should not regard its hands as tied in any case beyond –

requiring a reason to grant leave.  We also accept that we need to demonstrate an error that falls within House v The King.  Your Honours will have seen that in writing in‑chief, we framed that error in a number of ways, including as a failure to take into account what the Court in House calls a “material consideration”.

On reflection, and accepting that the substantial injustice test is, really, properly regarded as a form of judicial guidance designed to promote consistent decisions, can we accept that the error is more appropriately framed in the terms discussed in Norbis v Norbis, which we gave to the Court hopefully yesterday.  Specifically in the reasons of Justice Mason and Justice Deane at page 520, where after dealing with the notion of guidance on broadly-framed discretions, say, in the second last paragraph on that page:

A failure to apply a guideline does not of itself amount to error, for it may appear that the case is one in which it is inappropriate to invoke the guideline or that, notwithstanding the failure to apply it, the decision is the product of a sound discretionary judgment.

That is what I am accepting upfront:

The failure to apply a legitimate guideline to a situation to which it is applicable may, however, throw a question mark over the trial judge’s decision and ease the appellant’s burden of showing that it is wrong.  However –

and we accept this poses a higher threshold for us:

in the ultimate analysis and in the absence of any identifiable error of fact or positive law, the appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment –

You find a similar observation in the reasons of Justice Brennan at page 537, where his Honour says in the last paragraph on that page:

There may well be situations in which an appellate court will be justified in setting aside a discretionary order if the primary judge, without sufficient grounds, has failed to apply a guideline in a particular case.

But, again, that all turns upon what his Honour goes on to note, that one is essentially dealing with whether the discretion has been “soundly exercised”.  Now, as I say, that poses some difficulties for us in the path of our argument on this point.  We nevertheless say that this Court can reach that conclusion in circumstances which included these:  first, the order in question was not only moot at the time of the appeal, it had never, as I said, had any practical operation at all – this is the detention order.  More than that, the court accepted ‑ again, at paragraph 43 – that:

it was clear there was much to be worked out about how those orders were to apply in practice and, indeed, legally.

With the overall consequence that the proceeding was – I will put it this way – not a good vehicle to consider the issues of wider importance on which the court principally relied as the reason for granting leave in paragraph 44.  So, we say, for those reasons, your Honours can be satisfied that there was an error of the nature that we put in respect of ground ii, and I will otherwise rely upon what we say in writing on that point.

Can I then move to the final ground, which is in 3 of our notice of appeal, and that is the issue of whether the home detention order was within power.  So, that ground raises, essentially, two questions:  first, whether the envisaged circumstances of home detention amounted to the appellant being detained within the meaning of the Act.  The Full Court held that his Honour misapprehended what is met by the definitions that I will come to in making that order; and then, the second, separate point is whether section 22 of the Federal Court Act empowered the making of the order that his Honour made.

Your Honours are very familiar with the statutory scheme, and know that these issues turn on, first, the definition of “detention” – which your Honours have at page 387 of the joint book, which is behind tab 5 – which is defined to mean:

(a)take into immigration detention; or

(b)keep, or cause to be kept, in immigration detention –

Then, “immigration detention”, itself, is defined some pages over, on page 393 of the joint book.  Your Honours see two ideas there.  First, that, in paragraph (a), which is the kind of detention that his Honour the primary judge had in mind in making his order; that is:

(a)being in the company of, and restrained by:

(i)an officer; or –

the kind of person specified in (ii).  Then, the other form of detention is the different kind of detention referred to in paragraph (b):

(b)being held by, or on behalf of, an officer;

(i)in a detention centre –

amongst other places, or, for example:

(ii)in a prison or remand centre of the Commonwealth –

or:

(v)in another place approved by the Minister in writing –

GLEESON J:   It is ironic that you are asking us to deal with this in the light of what you have said earlier this morning.

MR LENEHAN:   Your Honour, can I make abundantly clear that if your Honours are with me on the first aspect, then, of course, your Honours deal with none of this.

GORDON J:   Is it the position – in response to what you just said to Justice Gleeson, you mean one does not even get to ground 1(ii)?

MR LENEHAN:   No, because there was a more fundamental reason for dismissing the appeal.  The question of leave did not arise.

Now, if your Honours are happy to then continue to entertain what I am accepting is an argument that your Honours do not get to if you are with us on ground 1, can I say our primary submission on this point is that his Honour was correct in holding that the order fell within the limits of (a) and that in holding otherwise, the Full Court sought to erect what we are saying is an unstable delineation between what is authorised by that paragraph, which it regarded as a form of short‑term or transitory detention – so, subject to relatively narrow, temporal, and perhaps purposively limitations – and then paragraph (b), which it regarded as a form of custody concerned with particular places, which is undoubtedly so, but which does not then lead to, we say, the limits that it sought to apply to paragraph (a).

In adopting that approach, the court was essentially accepting a submission put by the respondents, which your Honours see at page 98 of the core appeal book and paragraph 81.  So, the argument that was made by our friends in the Full Court was:

that the detention arrangement orders were not “short term” orders, but were potentially of a longer duration.

KIEFEL CJ:   It does sound like a large issue.

MR LENEHAN:   It does, and I put it as simply one other way in which the matters that our friend relies on can be addressed.

KIEFEL CJ:   Perhaps not thinking through the wider ramifications of what you have to overcome to make your point.

MR LENEHAN:   Yes.  I think, obviously not, and so on that basis can I withdraw our application.

KIEFEL CJ:   Withdraw, yes.  Thank you.  The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 4.20 PM THE MATTER WAS ADJOURNED