CPCF v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 164

[2014] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S169 of 2014

B e t w e e n -

CPCF

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 14 AUGUST 2014, AT 8.59 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friends, MR J. WILLIAMS and MR D.P. HUME, for the applicant.  (instructed by Shine Lawyers)

MR S.P. DONAGHUE, QC:   If the Court pleases, I appear with my learned friend, MR C.J. HORAN, for the defendants.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  I have looked at papers supplied by the parties this morning or, in some cases earlier, comprising first the plaintiff’s amended reply filed on 14 August, a second further amended defence of the defendants filed on 13 August, a draft case stated filed on behalf of the plaintiff and a draft special case filed on behalf of the defendants.  Mr Merkel.

MR MERKEL:   Your Honour, can I just ask your Honour to correct one typographical error at paragraph 14 of the proposed case stated which refers to the decision of the Cabinet in paragraph 13.  That should read paragraph 12. 

HIS HONOUR:   Yes.

MR MERKEL:   Your Honour, we submit, subject to one matter, that the case stated raises essentially the questions that were raised before the Court and on the assumptions laid out can be decided as questions of law.  The one exception, your Honour, is that the defence raises now the entirety of the facts relied upon to say there is no obligation for procedural fairness.  Alternatively, those matters reduce any obligation to nil. 

We would seek, your Honour, to build into the case stated subject to one qualification.  Assuming those matters we say it is a question of law as to whether there was procedural fairness though and, your Honour, the only matter we would say that is defective in that pleading - that is paragraph 50(c) of the second further amended defence which is at page 12, your Honour. 

Paragraph 50(c)(iv) it is said there is a significant risk of self‑harm and other matters if the passengers were informed they were being taken to India.  We would say that would have to be particularised, subject to particulars being given of the acts, facts, circumstances relied upon to say there is a significant risk.

HIS HONOUR:   Why?

MR MERKEL:   We say, your Honour ‑ ‑ ‑

HIS HONOUR:   Is that not evidence?

MR MERKEL:   We say it is a conclusion, your Honour, without stating any of the circumstances of ‑ ‑ ‑

HIS HONOUR:   It is the material fact that the Commonwealth parties allege.  Whether they can prove it will be a matter for trial, but is not the material fact upon which they depend an allegation that there was a risk of the kind described.  I well understand that the plaintiff may wish to dispute the fact and that there might be a lively issue at trial about it all.

MR MERKEL:   Well, your Honour, our position would be that we would ask for particulars.  If your Honour has concluded that is evidence ‑ ‑ ‑

HIS HONOUR:   Frame your request for particulars and that can go forward in the normal way.

MR MERKEL:   No.  Well, your Honour, if your Honour is disposed, as my learned friend is disposed to say it is evidence, then we would build into the case stated the assumptions as pleaded and still argue that it is a question of law as to whether a duty of procedural fairness was owed and whether its content was reduced to nil.  But we say, your Honour, there still remains the same questions of law which is the issue of the Cabinet decision and whether that is dictation and valid under section 72(4), whether there is an obligation of procedural fairness in the circumstances pleaded and whether the decision to go to India on 1 July was a valid or lawful decision, and fourthly, your Honour, whether the non‑refoulement obligation fetters the discretion under section 72(4). 

We say our case stated raises those issues in a proper way very much along the lines of the case that your Honour originally stated, save to take into account the fact that the 157 Sri Lankan persons were taken ultimately to Australia on 27 July but it does not change the issue of whether the decisions made prior to that were lawful or unlawful, which is what we say would be raised by the case stated.

We would indicate, your Honour, as your Honour is no doubt very aware, that these issues are critical for a determination because the question of what obligations, if any, are owed in the contiguous zone and on the high seas is one that has to be determined sooner or later, and given the government’s operation or secrecy of completing a mission and returning people to wherever by orange boats or by some other means, these matters will not come on for hearing unless they get determined by the Court in a matter such as this, your Honour. 

So we say that the public importance of getting this matter resolved in this case was recognised by the Court by the earlier arrangements it made but the underlying issues have not changed and the public importance of getting a resolution of this matter and of the principles that the Commonwealth should be acting under under the Maritime Powers Act remains a critical issue for determination.

HIS HONOUR:   Can I raise two matters with you, one of which is perhaps ultimately more appropriately directed to the Commonwealth parties.  First, as the defence stands, the decision relied on is a decision to take to India.  Is that right?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   That must mean, at least within the territorial waters of India, that is, within Indian territory.  Is that right?

MR MERKEL:   Yes.  Well, we would say India is a place and waters are not a place, but subject to that qualification.

HIS HONOUR:   Well, we will come to that in a moment.  I note that there is reference in the reply to training, allegations of training of some of these people.  What is the legal consequence in the pleadings as they are joined that you seek to attach to that plea in the reply?

MR MERKEL:   Your Honour, we say that it demonstrates two things.  It demonstrates firstly that there was an implication that there was no arrangement or agreement in place with India to accept the 157 persons on 1 July when the decision was made and also at the time the training was taking place.  We say, secondly, your Honour, that it was part of the implementation which is pleaded by – it is a further step in the implementation of the Cabinet decision and it has extraordinary consequences, your Honour.  We have set out in reply the laws of India that show that a person who enters India in the way these boats would have entered India would be subject to a maximum penalty of five years imprisonment and we say ‑ ‑ ‑

HIS HONOUR:   Well, there is a second and related point which, as I say, may ultimately be a point for the Commonwealth parties.  It is to be recalled that in my communication to the parties for the purposes of this directions hearing I drew attention to paragraphs 47(b) and (c), I think, of the Commonwealth parties’ defence.  Paragraph 47(b)(ii) alleges that there was detention while:

the Australian vessel was transiting towards India –

that is to say, there is an allegation of travel time.  There is a further allegation –

and for a period of approximately twelve days after the Australian vessel arrived near India, while waiting for it to become practicable to complete the taking of those persons to India –

There is then a further allegation that –

between 18 July 2014 and 21 July 2014 –

re‑provisioning, that is, re‑provisioning presumably of the Australian vessel, was being undertaken.

On the face of the pleading and especially in light of the draft special case supplied by the Commonwealth in paragraphs 19(b) and following, I would understand “practicable” to be read in its context as meaning waiting for it to come, both physically possible and reasonably practicable to effect the lawful discharge from custody of the persons concerned in the territory of the Republic of India.

Certainly, on the draft special case which the defendants have supplied, as to the drafting of which there may be some debate, I should say that the inference I would draw, at least an inference which it may be open to draw, is that the decision to take to India was taken at a time, and the period of 12 days spoken of in the defence either was comprised – was occasioned by the attempt to make arrangements to effect the lawful discharge from custody of these persons in the territory of the Republic of India.

That, I think, tenders a question of law about the ambit of the powers under the Maritime Powers Act.  Can you take to a place outside Australia and detain for the purposes of taking to a place outside Australia for a period which includes making arrangements, in this case part or all of 12 days, to enable the lawful discharge from Australian custody in the territory of the place to which the persons are to be taken?

MR MERKEL:   Your Honour, we would have no difficulty with agreeing with that because it seems to be an indisputable ‑ ‑ ‑

HIS HONOUR:   I am sure you would have no difficulty in agreeing with it.

MR MERKEL:   Well, no, your Honour, there is ‑ ‑ ‑

HIS HONOUR:   The question is, is that an available reading of the papers?  Is it the basis on which the case should go forward, or is it a matter that is to be left to the inference drawn from the special case agreed by the parties?

MR MERKEL:   Your Honour, we say a proper and frank acceptance of the facts in this matter produces three matters from what your Honour just said.  The first is it seems indisputable that no agreement or arrangement was in place on 1 July, and that inference that your Honour indicated merely flows from that, but it is quite clear because we know publicly that the Minister went to India to try and negotiate an arrangement and did not succeed and on the public record there are enough facts to say that it would not be a brave thing for the Commonwealth to admit no agreement or arrangement was in place for the acceptance of the 157 persons on 1 July, which we say is the critical date.

The second qualification, your Honour, is this.  Your Honour will note that that paragraph refers to bad weather conditions.  Your Honour, this is an oceangoing ship which would not have difficulty in landing in Chennai or any other major port of India.  The bad weather conditions does coincide with the period when they were proposing to send people - the whole 157 people including the 50 children - on orange boats to some remote location called ‑ ‑ ‑

HIS HONOUR:   Well, these are allegations that you make that are not yet admitted.  I understand that fact at the moment as issue is joined on the pleadings.

MR MERKEL:   The only thing I raise that for your Honour is your Honour built in to your Honour’s question, which we agree after the orange boat episode could properly be built in, and that was the lawful discharge.  Prior to the last period, that was after the orange boat episode had been abandoned, it would appear, then the effort was to make a lawful discharge.  Now, your Honour, what that leads to ‑ ‑ ‑

HIS HONOUR:   Again, you are embroidering it in ways that are - may be, they may not be – revealed by the pleadings as they presently stand.  Whether or not that is so, whatever is presently in contemplation, it is not a trial of the action in this Court.  At the moment my concern is to determine whether the issues as joined reveal a disputed question of power which is a question of power fit for resolution by this Court, or is it a matter where the whole action should go off for trial in the ordinary fashion in whichever court would be appropriate?  But I am concerned with the question of power.

MR MERKEL:   We accept what your Honour has said and we do say that whether it be a special case or a case stated, the way in which the facts can be presented which are not in dispute, plus such assumptions as are necessary to be made from the pleadings, can deal with the four questions of power which we say arise, your Honour:  the dictation; procedural fairness; the unlawfulness of the decision without an arrangement at the time and keeping people in detention for that purpose for some part or for the whole of that period; and the non‑refoulement ‑ ‑ ‑

HIS HONOUR:   Well, you see, again that is a question that needs to be divided.  It may or may not be legally significant that at the time of decision there is no arrangement.  Your action is now an action for false imprisonment.  Let it be assumed - and let me depersonalise it from this case – let it be assumed that a person is intercepted in the contiguous zone and is to be taken to Ruritania and at the time of detention and the time of commencement of taking there is no certainty that Ruritania will accept that person but if, by the time of arrival, Ruritanian authorities have agreed that the discharge can be effected, maybe that is a lawful exercise of power, maybe it is not, but we need perhaps to keep the two sets of issues separate.

What struck me on reading the defence was that, as pleaded, there is a period of 12 days treated separately in the pleading and it seemed to me that that at least arguably yielded a particular aspect of a more general question about power.

MR MERKEL:   We accept that, your Honour.  We do not have any quarrel with that.

HIS HONOUR:   How does your side say we should proceed?  Do you say we should go by stated case, special case?  What do you say we should do?  Should I say as to that, if there is going to be something – if there are going to be questions reserved for the opinion of a Full Court, the target to which the parties are aiming is the first week of October.

MR MERKEL:   Yes, your Honour.  Your Honour, we would – in those circumstances, we would prefer a special case if the facts could be agreed, but otherwise, if we cannot agree facts, we say the case stated along the lines of that which we are proposing, subject to clarification of some of the issues that we have raised and that your Honour has raised, would be the appropriate way to go forward.

HIS HONOUR:   Yes, thank you, Mr Merkel.  Yes, Mr Donaghue, what do you say I should do?

MR DONAGHUE:   The one or two sentence answer to that question is that you should allow the parties a little more time to see whether we can narrow the factual issues that arise on the special case that we have prepared.

HIS HONOUR:   How long – do you have a guess about – can I offer my guess first which might ultimately become a little influential?  I was tending to think in terms of Wednesday, Thursday next week.

MR DONAGHUE:   Your Honour, I think that that guess would be very reasonable were it not for a practical impediment which is that, really, I think to move this forward what needs to happen is Mr Merkel and I need to talk.  The two of us are opposed for three days in the Full Federal Court next week and I am in Sydney the day before that.  So there is just a practical impediment to us having the negotiations that are ‑ ‑ ‑

HIS HONOUR:   The telephone has not yet been invented.

MR DONAGHUE:   Well, the telephone is fine.  It is just the time it to use it, your Honour, that causes the difficulty.  But we will obviously have some discussions today and tomorrow and then there is a process that I need to go through in terms of getting instructions and matters of that kind.

HIS HONOUR:   Of course.

MR DONAGHUE:   I am not terribly confident – being frank with your Honour – that I will be in a position to be useful to your Honour on Wednesday of next week.

HIS HONOUR:   It is death by a thousand cuts, but I am anxious to be in a position to know by end of next week.  There are all sorts of practical reasons for that, Mr Donaghue, as you can expect.  We have to fix a set of cases for October.  Other parties have to be told what is on and what is not on.

MR DONAGHUE:   I understand, your Honour.  I should say that while my answer was that what I think should happen is that we should try to talk to progress, at the moment I am a bit concerned about that process because the reply puts in issue a whole range of matters that I expect we will not agree.  So it may be – I do not want to give your Honour the sense that we are confident that we will be able to reach an agree documents ‑ ‑ ‑

HIS HONOUR:   I understand that.  I should say to you at the moment that I very definitely do not exclude stating a case.  As at present advised it is not immediately apparent to me what legal significance is said to attach to the plea in paragraph 9(a) of the reply, but those are matters on which obviously I would, if push comes to shove, have to hear further argument from the parties.

MR DONAGHUE:   Yes.  But, it is not just (a), your Honour.  There is, for example, 9(c).

HIS HONOUR:   Just a moment.  Well, again, I would have thought that the internal ruminations of the particular maritime officer are of importance, if at all, only once you have identified the ambit of the power and the content of the power.  It is ambit and content of power that remains my chief focus, rather than what I think the plaintiff would say are matters of high importance and the defendant would wish to dispute but which, in a legal, though not practical, sense might be seen as second‑level issues below the general question of ambit and content of power.

MR DONAGHUE:   Yes.

HIS HONOUR:   In that I am not to be taken in any way as suggesting that these matters are unimportant to the final disposition of the litigation.  They may well be critical.

MR DONAGHUE:   Well, that is really our concern, your Honour, is that we think that they may well be critical.  Your Honour has identified that 12‑day period on defence and it may well be that that 12‑day period ultimately factually what happened and when and why might end up being quite important to the disposition of the case.  The inferences that Mr Merkel was suggesting the Court could confidently draw are disputed and so there does seem to us to be some danger that if the matter goes in either – well, if it goes in on a stated case I think it would have to be explicit.  There cannot be inferences as I recall the position with the stated case. 

HIS HONOUR:   I should say to you, Mr Donaghue, that in light of the draft special case supplied and the suggestion that diplomatic meetings had to be arranged and ministerial meetings had to be arranged, as I said earlier, it would seem to me to be an open inference from the pleading that at that time the persons concerned could not be lawfully discharged from custody in the Republic of India – in the territory of the Republic of India.  You need make no response if to do so would place you in an embarrassing position.  I do not seek to do that but I – you need to go forward knowing that that is what seems to me to be an inference available from the pleadings as they stand and as read in light of the draft special case.

MR DONAGHUE:   I do have some difficulties answering questions in this area because I have instructions that would require some claims of public interest immunity to be made and resolved around working out what facts are and are not able to be relied upon.  I understand that is not of great assistance in this Court.  In the event that the matter were to be remitted and litigated on this point, there would have to be some disputes around that but what I am concerned to do is to ‑ ‑ ‑

HIS HONOUR:   There is a lot on the public record.  Some people do read the media. 

MR DONAGHUE:   But not everything on the public record is necessarily full or complete or accurate in all respects.

HIS HONOUR:   That is a remarkable allegation you have made, Mr Donaghue.

MR DONAGHUE:   My present purpose, your Honour, is really to flag – I think it would be useful for us to see how ‑ whether we can narrow things down because it seems to me that your Honour would be assisted by knowing more precisely than we can currently tell you what the key factual points in the dispute seem to be because if we can identify the decision and your Honour agrees they are important then that might influence what your Honour does.

HIS HONOUR:   Can I try to just point it a little more finely so that your negotiations may be informed by it?  The allegation of practicability seemed to me to encompass both legal and factual practicability.  I can understand practicability in the sense of there is a storm at sea and the vessel is hove to and cannot move.  That is one form of practicability. 

MR DONAGHUE:   Which may itself account for some period of days.

HIS HONOUR:   But – some.  My concern is not in a case stated to shell out which days.  My concern in a case stated is to point up the question of whether the power, be it a statutory power under the Maritime Powers Act or, as you would have it, a non‑statutory executive power which is a power to take from the contiguous zone to a place outside Australia which, on the face of it, encompasses a power to detain for taking.  You are taking compulsorily, therefore, you are detaining while you are taking but does it include detain while it is determined whether the person can lawfully be discharged from Australian custody into the territory of the place to which they are to be taken?

MR DONAGHUE:   Yes, I understand that is the legal issue your Honour is seeking to shell out.

HIS HONOUR:   It may be that that is not the only legal issue which can or should be the focus of the case.  I understand Mr Merkel to place some emphasis upon the questions of procedural fairness.  I understand that the

issue is joined in a way in which it may well be possible to shell out the legal question.  The parties will know better whether that is so. 

MR DONAGHUE:   Or part of it perhaps, but you will have seen in the plaintiff’s draft special case that there are a whole series of questions proposed in a form that says assuming facts that are alleged, effectively, in the plaintiff’s favour at various parts of the stated case, X, and your Honour will not be surprised to hear we have grave objections to that approach.  A demurrer would – and this is, I think, supposed to be akin to a demurrer, but it requires all of the relevant facts to be identified and assumed and here we have a parcel assumption of some facts and the Court being asked to answer questions on that basis.

HIS HONOUR:   Counsel are well able to sort that out, I would have hoped.

MR DONAGHUE:   But what it conceals, your Honour, is that where there are factual disagreements it is being said, assume – the plaintiff says assume we win on our facts then answer the questions for us. 

HIS HONOUR:   I understand that and, as you will observe from the last case stated that had gone nowhere, it is possible to frame a case stated in terms of one side alleges, the other disputes that, et cetera.

MR DONAGHUE:   Indeed.  But our – if we can reach a situation where the parties can put before them all of the facts that seem to be necessary in order to allow these particular issues to be isolated then that is a course that has evident utility.  But if we are left in a situation where there are significant factual matters in dispute, in our submission there is a live question as to whether, the immediate urgency of the position of the plaintiffs having passed, it is better to allow the factual position to be resolved precisely and completely by a trial before the legal questions are answered.  I am not asking your Honour to do anything more than note that we still would like to leave the question of the best procedure open because we think it depends on how we go in terms of factual agreements.

HIS HONOUR:   I am not to be understood as foreclosing those submissions.  I simply observe that the Act is a federal Act, that the Act is one seeking to apply beyond Australian territorial waters.  I observe further that it raises issues of a kind that I believe have not been the subject of legal determination in this country or perhaps elsewhere.  Those observations are of a kind which may favour the early attention of this Court to the legal questions. 

MR DONAGHUE:   Your Honour, in terms of when we come back ‑ ‑ ‑

HIS HONOUR:   I have my calendar, Mr Donaghue.  Friday 22 is looking good to me. 

MR DONAGHUE:   Friday 22 is the last day of the three‑day hearing in the Full Federal Court in which Mr Merkel and I are both occupied.  Would your Honour be prepared to sit at the end of the day – at the end of the Court day on that occasion or ‑ ‑ ‑

HIS HONOUR:   I forbear from recalling days of other membership of the Court dealing with counsel praying in aid commitments in other courts.

MR DONAGHUE:   I recognise it is not ideal, your Honour.  I wonder actually whether it might be, if it is suitable to your Honour, whether perhaps the Thursday ‑ ‑ ‑

HIS HONOUR:   No, look, I am not going to have this just at the convenience of counsel – 0900 either Thursday or Friday. Choose your weapon.

MR DONAGHUE:   Thursday, your Honour.

HIS HONOUR:   0900, Thursday, it is.  Now, I know that negotiation of this thing (a) is not easy and (b) there is an inevitable tendency for it to expand to fill the time available.  That is just the nature of things.  For my own part, I would wish close of business Wednesday to be the time by which the parties are filing their papers telling me their respective positions or an agreed position.  Human nature dictates that unless I put a time on it, it will be 8.59 on Thursday morning - no criticism intended, just a fact of the world - so, 4.00 pm, Wednesday is the appointed time, counsel.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   Do I need to make any orders regularising the pleadings or doing anything of that kind?  Is there going to be a fight about the pleadings?

MR DONAGHUE:   No.

HIS HONOUR:   Just leave things as they are pro tem? 

MR DONAGHUE:   Yes, that is fine, your Honour.

HIS HONOUR:   Simply stand the matter over to that time and what, reserve the costs?

MR DONAGHUE:   Yes, your Honour.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Can I thank counsel for their assistance.  I hope that that is a proleptic statement of gratitude.

AT 9.36 AM THE MATTER WAS ADJOURNED