Benbrika v Minister for Home Affairs & Anor

[2023] HCATrans 20

[2023] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M90 of 2022

B e t w e e n -

ABDUL NACER BENBRIKA

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 23 FEBRUARY 2023, AT 9.35 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the Court’s protocol for remote hearings, I will announce the appearances.

MR C.J. HORAN, KC appears with MR A. ALEKSOV and MR J.E. HARTLEY for the applicant.  (instructed by Doogue + George)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears with MS F.I. GORDON, SC and MR L.G. MORETTI for the respondents.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes,  Mr Horan.

MR HORAN:   If the Court pleases.  Your Honour will be aware that a special case has been agreed between the parties and, I think, filed with the Court, and the main topic or agenda for today is to make directions setting a timetable for submissions to prepare the matter for hearing.  I am not sure whether your Honour has been provided with any draft documents.

There was a proposal circulated between the parties, and the parties are not far apart in terms of what that timetable should be, but it depends to some extent on when the matter might be ready to be listed, because the applicant – essentially, the main difference was that we were proposing an extra one to two weeks before the applicant files his written submissions, and that might impact upon whether the matter is ready for hearing in the May sittings or some subsequent sittings period.  But I should say, we are willing to accommodate a May sittings and to do whatever we can to meet a timetable that would enable that.

HIS HONOUR:   Well, I will make a recommendation at the end of today’s case management hearing to the Chief Justice about the matter to be heard either in May or June – whether it does get listed then is not a matter for me, I can assure you, but I can certainly make that recommendation.  Do you have some indicative dates for a timetable, do you want to take me through?

MR HORAN:   Yes.  I apologise that we do not have a draft minute ‑ ‑ ‑ 

HIS HONOUR:   That is all right.  I have ears, it is okay.

MR HORAN:   The steps are – the first step would be filing the special case book, and I think it is agreed ‑ ‑ ‑ 

HIS HONOUR:   When ‑ ‑ ‑ 

MR HORAN:   ‑ ‑ ‑ that would be by 2 March.

HIS HONOUR:   And that is an order that I would make on you, or upon the Solicitor‑General, in this case?

MR HORAN:   I think it was contemplated in your Honour’s previous orders that it would be done by the Commonwealth ‑ ‑ ‑ 

HIS HONOUR:   Yes, all right.

MR HORAN:   ‑ ‑ ‑ but we are happy – I do not think it makes a large difference.

HIS HONOUR:   Well, I will make it – subject to what the Solicitor‑General says, we will make it the Commonwealth.  Now, what date was that, again, sorry?

MR HORAN:   It was 2 March 2023.

HIS HONOUR:   Thank you.

MR HORAN:   Then, our timetable after that, the steps would be the applicant file and serve written submissions by 4.00 pm on – and we were going to propose 7 April.

HIS HONOUR:   Yes.  All right.

MR HORAN:   But I think if it were to be ready by the May sittings, that would probably need to come back by a week to 31 March 2023.

HIS HONOUR:   Yes.  And you do not need – you are not asking for any amendment to the usual page limit?

MR HORAN:   No, your Honour.

HIS HONOUR:   Okay.  All right.  Thank you.  Then, interveners?

MR HORAN:   Interveners in support of the applicant, if any, would file and serve written submissions by – and then it would be, I think, 18 April, or 11 April for the May timetable.

HIS HONOUR:   Yes.

MR HORAN:   The next step would be the respondents file and serve written submissions by – and I think that would be 24 April or 17 April on the May timetable.

HIS HONOUR:   Yes.

MR HORAN:   Interveners in support of the respondents, written submissions by 1 May, or 24 April on the May timetable.  The applicant’s reply would then be by 8 May or 1 May on what I call the May timetable.  Then the final step is filing and serving of the joint book of authorities, which could be, on the first option, 12 May, or 5 May on what I have called the May timetable.

Now, the latter, which trims each of those steps by one week, essentially has the last step taking place, I understand, just before the commencement of the May sittings, so I think that would accommodate any date in that sittings, although if it were listed in the second half of that sittings it may be that even the first timetable would be suitable.  But I think, given that your Honour will not be in a position this morning to indicate when the matter might be . . . . . it may be prudent to opt for the latter timetable that I proposed, just to ensure that the Court has the maximum flexibility.

HIS HONOUR:   It might be – I am told, Mr Horan, 7 April is Good Friday, in relation to the applicant’s submissions.

MR HORAN:   Yes.

HIS HONOUR:   Should we make it the 6th?

MR HORAN:   I am sorry, yes.  On 6 April, yes.

HIS HONOUR: All right, then. And do you want me to make the usual order about Part 44 of the Rules?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   All right.  Well, I might hear now from the Solicitor‑General.  Mr Solicitor.

MR DONAGHUE:   Thank you, your Honour.  Your Honour, we agree with Mr Horan that the principal issue in Benbrika is timetabling, and I agree with much of what my friend has just said to your Honour. The additional matter that I should bring to your Honour’s attention is that in the next matter that your Honour is going to deal with this morning there is a challenge to a different citizenship cessation provision of the Citizenship Act, but both of these two cases essentially deal with the ramifications of Alexander, if any, for different citizenship cessation provisions, and for that reason, in our respectful submission, it would be appropriate for the Court to deal with both of these two matters together, because otherwise your Honour is going to hear a great deal from me across the two cases that will substantially repeat itself.

Also, it will assist the Court, we submit, to see the way that the principles it is looking at will apply to slightly different contexts thrown up by these provisions.  I say all of that, your Honour, because while both of the plaintiffs are in detention, Mr Benbrika’s detention does not depend upon his citizenship status at the moment, but Mr Jones’ detention does, and so his case is a case about the liberty of the subject and for that reason, in our submission, would be entitled to such priority as the Court is able to give it.

The Commonwealth and Mr Jones have reached agreement on a timetable that would have the matter ready for May if your Honour was minded to make that timetable, and in those circumstances, we submit, it would be very desirable for the Court’s orders in Benbrika also to have the matter ready for May so that in the event that the Chief Justice decides to list the two matters then, they can both be ready within that timeframe.  That throws up some wrinkles, if you like, in accommodating the time that our friends in Benbrika seek for their submissions, but Mr Horan has just given you an alternative timetable that would have it ready for May.

HIS HONOUR:   I think, Mr Solicitor, I think you should assume, just for today’s purposes, that May may be a bridge too far, at least that is what I am being told, and June might be a more feasible date.

MR DONAGHUE:   Well, if June is a more feasible date, your Honour, then, in my submission, there is less reason to squeeze the parties.  So, we would be quite happy to make it work in May, but there are real difficulties with making – well, there are some difficulties in making it work in May, not least that the Commonwealth submissions would be being filed in the midst of the April sittings ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ when there are a couple of other matters that are going to be occupying the attention of myself and others in our team.

HIS HONOUR:   The other reason why I think it is less likely to be May, indeed, very much less likely, is if the two matters are going to be heard at the same – one after the other or at the same time, as it were, that is a fairly sizeable chunk.

MR DONAGHUE:   Certainly, it is at least two days.

HIS HONOUR:   Yes.

MR DONAGHUE:   I think it is probably two days, your Honour, would be my assessment.

HIS HONOUR:   Yes.

MR DONAGHUE:   Well, in those circumstances, can I give your Honours some proposed dates ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ that would have the matter ready for June without squeezing everybody.  So, order 1 was – we had thought it would be the applicant filing the special case book, it is not going to be a very onerous task, it is probably the smallest special case that the Court will have seen for quite some time, this matter ‑ ‑ ‑ 

HIS HONOUR:   No complaint.

MR DONAGHUE:   ‑ ‑ ‑ but our friends, I think, said 2 March, and we have no problem with that.  The applicant’s submissions could be, as our friend proposed, 6 April; interveners in support of the plaintiff – I think, actually, our friends said 18 April and I am content with that.  The respondents’ submissions would be due, in our submission, if we are looking at June, I would propose 2 May, which is a little later than our friends suggested.

HIS HONOUR:   Yes.

MR DONAGHUE: Then, interveners in support on 9 May; the reply on 16 May; the joint book of authorities on 26 May; and we would submit that your Honour should make an order that the special case be referred to the Full Court and listed for hearing before the Full Court on a date to be fixed; and the usual order about Part 44.

HIS HONOUR:   All right.  Mr Horan, do you have any difficulties with the Solicitor‑General’s dates?

MR HORAN:   No, your Honour, I think they would be . . . . .

HIS HONOUR:   Sorry, I think you are on mute.

MR HORAN:   . . . . . while I have the floor ‑ ‑ ‑ 

HIS HONOUR:   Sorry, you were on mute, I think, just before.  Can you repeat what you were saying?

MR HORAN:   There is one minor matter I wanted to raise about terminology in the special case.

HIS HONOUR:   Yes.

MR HORAN:   Just on looking at this matter last night, there are some references to the “applicant” and to the “plaintiff”.  In terms of terminology, I think “applicant” is the correct terminology, but if we could have leave to make amendments to the draft special case and maybe re‑execute that with that terminology corrected – and that can be done fairly quickly between now and the filing of the special case book.  It may not need to be done by order, your Honour, but if – I simply put it on the record that the parties can attend to that and agree to the amended special case and then include that in place of the existing special case.

HIS HONOUR:   Mr Solicitor, do you have any difficulty with that?

MR DONAGHUE:   No, your Honour.  I think my friend has in mind that this is a removed matter from the Federal Court, hence “applicant” rather than an original jurisdiction matter, hence “plaintiff”, and I understand what he is saying.

HIS HONOUR:   Mr Horan, I do not need to make an order about that.  You will fix that up when you do the special case book.

MR HORAN:   Thank you, your Honour.

HIS HONOUR:   All right, then.  So, I will make the following orders, and you can correct me if I get this wrong:

1.The applicant to file and serve a special case book by 4.00 pm on 2 March 2023.

2.The applicant file and serve written submissions by 4.00 pm on 6 April 2023.

3.Any intervener in support of the applicant to file and serve written submissions by 4.00 pm on 18 April 2023.

4.The –

are you the respondent now, Mr Donaghue, rather than defendant?

MR DONAGHUE:   I am, your Honour.

HIS HONOUR:   Yes, I thought so:

4.The respondents file and serve written submissions by 4.00 pm on 2 May 2023.

5.Any intervener in support of the respondents to file and serve written submissions by 4.00 pm on 9 May 2023.

6.The applicant file and serve any written submissions in reply by 4.00 pm on 16 May 2023.

7.The applicant file and serve a joint book of authorities prepared in accordance with the High Court Practice Direction 1 by 4.00 pm on 26 May 2023.

8.That this matter be referred to be heard by a Full Court of this Court on a date to be fixed; subject to any further order, Part 44 of the High Court Rules 2004 apply, with necessary adaption to this proceeding.

9.The parties are to have liberty to apply on three days’ written notice.

Is that ‑ ‑ ‑ 

MR DONAGHUE:   Your Honour, can I raise one matter?

HIS HONOUR:   Yes, please do, Mr Solicitor.

MR DONAGHUE:   Order 7 – your Honour ordered, understandably, that the applicant file and serve the joint book of authorities, but we are quite happy to do that – take the burden of that.  Our friends are acting pro bono in the matter, and we will look after that.

HIS HONOUR:   Of course.

MR DONAGHUE:   We had in mind we might do a combined book with the other matter if they are listed together.

HIS HONOUR:   I will leave that to you, Mr Donaghue, but yes, I will make that amendment to the order, that it be the respondents file and serve the joint book.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   Mr Horan, anything else from you?  You are still on mute, I think.

MR HORAN:   No, your Honour, nothing further from us.

HIS HONOUR:   All right.  Well, can I thank you both for your attendance today in Court, and those orders will be made in due course.

AT 9.52 AM THE MATTER WAS ADJOURNED