CPCF v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 156

[2014] HCATrans 156

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

Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON MONDAY, 28 JULY 2014, AT 2.30 PM

Copyright in the High Court of Australia

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

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

HIS HONOUR:   Yes, Mr Merkel.

MR MERKEL:   Your Honour, as your Honour is aware, the plaintiff and the other persons on the vessel were taken to Australia yesterday and that necessitates amendments to the pleadings based on those changed events, but we have sent up to the Court a proposed amended pleading and an amended case stated.

HIS HONOUR:   I have looked at those.

MR MERKEL:   Yes.  Your Honour, the point that we make is that the amended pleading takes into account the changed circumstances and seeks to substitute for the habeas corpus and the injunctive relief sought in respect of the position the plaintiff and the others were on in the high seas with relief for damages for unlawful detention and false imprisonment during the period that they were detained on the Australian vessel.  Your Honour, we have suggested amendments to the case stated which would take into account the issues raised by the amendment but would not in any way affect the questions which were put for decision by the Court and those questions, your Honour, are raised by the case and are live issues in the case.

HIS HONOUR:   Why?

MR MERKEL:   Because, your Honour, the three main issues about procedural fairness, the decision dictated by policy and whether or not the discretion to take was fettered by customary international law ‑ ‑ ‑

HIS HONOUR:   Take where?

MR MERKEL:   Your Honour, we have not yet been told by the defendant as to where the taking was other than it was not to Australia until yesterday, and we say that the questions raised by the case stated are all live issues and have ‑ ‑ ‑

HIS HONOUR:   Why?  I put again, to take where?

MR MERKEL:   Well, your Honour, we do know that the decision was to take to a place other than Australia.

HIS HONOUR:   They were not taken there.

MR MERKEL:   They were not taken there, your Honour, but they were detained for almost a month on the high seas pursuant to a power that we say the government did not have because the taking decision on the grounds we have set out in the pleading was unlawful with the consequence that the detention was also unlawful, your Honour, and that the government cannot engage in conduct like that with impunity.  We say there is a statutory framework and the status of the plaintiff and the 156 other people on the boat during that period is a live issue and the question that is alive is whether the decisions made were lawful.

Now, the government has joined issue with us on each of those points, your Honour.  It denies there is any obligation for procedural fairness.  It denies that a decision dictated by Cabinet policy, irrespective of whether it is right or wrong, is any limitation on the power.  It also denies that it is subject to any non‑refoulement obligation.

HIS HONOUR:   Any limitation on what power?

MR MERKEL:   The power under section 72(4), your Honour.

HIS HONOUR:   To do what?

MR MERKEL:   To detain and take a person to a place other than ‑ ‑ ‑

HIS HONOUR:   Where?

MR MERKEL:   Well, to a place ‑ ‑ ‑

HIS HONOUR:   They were not taken to a place outside Australia.

MR MERKEL:   In the events that have occurred, your Honour, but that leaves in the interregnum the position that occurred from 1 July to 27 July during which ‑ ‑ ‑

HIS HONOUR:   That may or may not yield a claim for damages for false imprisonment, I do not know, but what is it that makes the particular questions that I reserved for the opinion of the Full Court questions that are, one, still alive and, two, questions that are so pressing that they should go forward to the Full Court on Tuesday next – tomorrow week?

MR MERKEL:   Your Honour, can I deal with them in reverse order, your Honour?  I cannot submit that in the light of the changed circumstances the answer to the questions is so pressing that they need to go forward ahead of other cases.  That situation has changed, your Honour, and we accept that the pressing aspect that troubled your Honour and was obviously a reason for the urgent hearing now that the detention on board the boat has come to an end is no longer applicable. 

But we do say, your Honour, the legality of the decision under section 72(4) is a live issue in the case but, importantly, your Honour, as was stated by the Court in M61, all three questions which are raised by the legality of that detention, including the declaratory relief we seek concerning the unlawfulness of the detention, have enormous consequences for the administration of this Act on the high seas by the government in the future, and clarity as to what are or are not the government’s obligations in respect of the exercise of power under the Maritime Powers Act are central to all of the issues in the litigation.  Pressing, your Honour, no longer, but important for decision by this Court; we say that remains the case.

Now, we are totally in the Court’s hands as to what timetable is appropriate, given the changed circumstances.  That is why we say we can no longer contend there is a pressing need for an urgent hearing, but we do say there is a pressing need for clarification of these issues.  The bottom line, your Honour, in respect of the three issues is really, ultimately, whether the government can refoule a person to the place they are claiming protection against without giving that person an opportunity to be heard in respect of that decision, which may be based on a Cabinet dictate.

Now, that has enormous consequences for Australia’s obligations under the treaties in issue in the case and for the proper administration of the Act, and we have in mind the observations in the joint judgment, your Honour, of the Court in M61 243 CLR at 359 where the Court indicated the importance of declaratory relief having foreseeable and important consequences for the party and the administration by the Commonwealth of its Convention obligations. We say that the issues in this case bear even more directly and more importantly on clarification concerning those obligations.

Can I remind your Honour that the government’s policy of making no comment on what it refers to as operational matters means that the events that have occurred in this case could all occur without anyone knowing, without anyone having the opportunity for judicial intervention in the High Court in this country before the events are all over and the person is refouled to a country which directly or indirectly would constitute a breach of Australia’s non‑refoulement obligations.  That is the central issue in the case and it remains the central issue, and continues to be a central issue, your Honour, including what Australia’s obligations are now that the people are here.

So we say the changed events eliminate certain causes of action, do not affect the declaratory relief and add a new cause of action for unlawful detention and false imprisonment, so we would urge, your Honour, that this matter stay in the Court.  We are in the Court’s hands as to when it would be heard and how it should be dealt with as far as next week is concerned.  We would formally seek leave to amend the pleading and we have proposed, your Honour, if the matter was to proceed on a case stated an amendment to the case stated that does not change any of the questions that were asked or stated by your Honour merely clarifies the changed events and has those events before the Court, that there is nothing moot or hypothetical about any of those questions, your Honour.

HIS HONOUR:   Is there any threatened exercise – is there any longer any threatened exercise of power under the Maritime Powers Act that has not been completed and done?

MR MERKEL:   We cannot perceive of any further exercise of power under the Maritime Powers Act.  The detention under that Act came to an end with the taking of the 157 people on the boat to Australia.  So that the further exercise of power in relation to the people in Australia would depend upon the Migration Act and any other laws that may restrict the government’s refoulement obligations.  We say that having crystallised, your Honour, we say it would be an unfortunate state of affairs if that had the effect of these matters not being able to be determined, given their central importance to the administration of power under the Maritime Powers Act on the high seas by the government and in the contiguous zone.  They are the submissions we would put, your Honour.

HIS HONOUR:   Yes, thank you.  Yes, Mr Donaghue.

MR DONAGHUE:   Your Honour, the Commonwealth’s submission is that the hearing listed for 5 and 6 August and the related orders made by your Honour on 23 July should be vacated.  The amendment that – the further amendment that has been foreshadowed to the statement of claim about an hour or so ago reflects, in our submission, the fact that it is at least strongly arguable that the matters raised on the present unamended pleading are now hypothetical.  The amendment, in effect, reflects the third major shift that the plaintiff has sought to make to this case since it was first instituted.  It started as a case about whether people could be taken to Sri Lanka ‑ ‑ ‑

HIS HONOUR:   Well, counting the number of shifts in the case might invite attention, indeed a deal of attention to why those shifts occurred, Mr Donaghue.  I am not sure that it would be entirely profitable to embark on that line of inquiry.

MR DONAGHUE:   Well, your Honour, certainly it is now the case that to shift the case into a damages case rather than a hearing about what powers are available to be exercised about the plaintiffs while they were outside Australia is to make a fundamental change to the issues as they stood at the time that your Honour chose to state a case for the consideration of the Full Court.  That path, as we understood it, was a path that was motivated principally by the evident urgency of the need to resolve the situation of the plaintiffs while they were outside Australia and detained on a vessel on the high seas, but it is a path that departs from the well‑known reluctance of the Court in an ordinary case to sever the identification of legal limits from the underlying facts of the case.

In circumstances where our friends now accept that the urgency of the case has passed, we submit that the appropriate way forward, if our friends wished to go down the path that they have indicated and to agitate a damages claim, is for all issues of fact and law to be determined at the one time in the Federal Court with an appeal in the ordinary way in the event that either of the parties seek to proceed in that way. 

We submit that to proceed on the case stated path while the ground is shifting with the damages claim is undesirable for a number of reasons.  First, that while in situations of urgency it is understandable that complex legal points might need to be prepared and argued within a very short period of time, the period of time available is very short and the points are of significant importance, and we submit that the parties should not be required to argue those points on a very compressed timetable, particularly with amendments being made again only a week out from the hearing.

Secondly, your Honour, we have always submitted in respect of this procedure that there would be a need to resolve matters of factual controversy, and that point has only become stronger if the case is to shift into a dispute about false imprisonment because there are no facts now before the Court as to the circumstances that occurred throughout the period of detention that might bear upon whether or not a false imprisonment claim can be pursued, and as I have submitted to your Honour previously, at least in respect of the procedural fairness part of the case, we submit that there are important facts that will need to be resolved.

We will seek to bring that out more clearly in an amended defence that we will have to file in response to the amended pleading that has been made, but in the absence of the pressing urgency we submit that the far preferable course is the ordinary course which is to permit the parties to have that factual fight and for the legal limits on the relevant powers insofar as they remain a live issue between the parties, and I do not concede that they all do by any stretch, but insofar as they remain live they can be determined when the facts are known in a single hearing.

HIS HONOUR:   Do you seek to be heard against the plaintiff having leave to make the amendment now propounded?

MR DONAGHUE:   Only in one ‑ ‑ ‑

HIS HONOUR:   The amendment to the writ of summons and statement of claim.

MR DONAGHUE:   No, your Honour, I do not.  If the Court pleases.

HIS HONOUR:   Yes.  By what time could you put on a defence to that amended document?

MR DONAGHUE:   I would think within 24 hours, your Honour.  I should say, your Honour, if your Honour is minded to continue with the case stated there are some submissions I would wish to make about whether all of the questions should remain part of that case stated.  I do not know if your Honour would like to hear me on that now or at some later ‑ ‑ ‑

HIS HONOUR:   I need not trouble you on those issues for the moment, Mr Donaghue.

On 23 July last, for reasons I then gave – see [2014] HCATrans 153 – I determined that I should state a case and reserve questions for the consideration of the Full Court. The following day, 24 July, I executed a stated case setting out seven questions. The case I then stated was framed in light of the events that had then happened and the issue which had by then been joined between the parties. As I recorded in my reasons of 23 July, proceedings which had been issued some days earlier had undergone a number of changes as events happened or became more widely apparent.

Central to the case I stated on 24 July were the events that had occurred between 29 June and 1 July.  On or about 29 June, in Australia’s contiguous zone, a vessel on which the plaintiff was a passenger was intercepted by an Australian Border Protection vessel.  Thereafter, the person in command of that vessel (“the Commonwealth ship”) authorised the exercise of maritime powers in relation to the vessel on which the plaintiff and others were passengers on the basis that the commander suspected, on reasonable grounds, that the vessel was involved in a contravention of the Migration Act 1958 (Cth) within the meaning of section 9 of the Maritime Powers Act 2013 (Cth).

Maritime officers from the Commonwealth ship boarded the other vessel.  A maritime officer from the Commonwealth ship detained that vessel.  A maritime officer from the Commonwealth ship detained all of the persons on that other vessel, and the plaintiff together with the other 156 persons from that vessel were removed from the vessel and placed onto the Commonwealth ship.  Up until the time I stated the case, the plaintiff and those others had been and remained detained on the Commonwealth ship. 

In the case stated, I recorded that on 1 July 2014 the National Security Committee of Cabinet decided that the plaintiff and other persons from the ship which had been intercepted should be taken to a particular place which is a place outside Australia.  I further recorded that maritime officers on the Commonwealth ship had implemented that decision by causing the Commonwealth ship to commence to travel towards the place to which the plaintiff and others were to be taken in accordance with the decision and had detained the plaintiff and others while they remained on the Commonwealth ship.

It appears to be accepted that on 27 July 2014 or thereabouts, after I had stated the case, the plaintiff and others who had been detained on the Commonwealth ship were taken to a place in Australia.  The questions which I had reserved for the opinion of the Full Court in the case which I stated were questions directed to the exercise of powers to take the plaintiff to a place outside Australia and for that purpose to detain the plaintiff for the time required to implement that decision.  Apart from question (6) concerning costs, and question (7) concerning the future conduct of the litigation between the parties, all of the questions which I reserved for the opinion of the Full Court were directed to the exercise of power to take the plaintiff to a place outside Australia. 

The plaintiff having now been taken to a place in Australia, the case which I stated and the questions which I reserved for the opinion of the Full Court have been overtaken by events.  The plaintiff asserts that the steps which were taken in between, perhaps, the point at which the vessel on which he was a passenger was detained and his ultimate arrival in Australia are steps which, in whole or in part, constitute his unlawful detention.  No doubt, for the purposes of determining a claim of that kind, attention may have to be directed to the lawfulness of the exercise of power to detain in the events that had happened, but so far as this plaintiff is concerned and, for that matter, the others on the vessel on which the plaintiff was travelling, the immediate questions which I reserved for the opinion of a Full Court are now moot.  They are moot because they were directed to the question of power to take the plaintiff and those others to a place outside Australia, an event which has not now happened, whether in exercise of any power under the Maritime Powers Act or any non‑statutory executive power which is supplementary to or additional to the powers exercisable under the Maritime Powers Act.

In the events that have now happened, any exercise of power under the Maritime Powers Act, or any equivalent non‑statutory executive power, is at an end no matter whether that exercise of power is constituted by detention for the purpose of taking to a place outside Australia or otherwise. 

In these circumstances, I have no doubt that I should vacate the order which I made referring to a Full Court the case which I had stated.  The directions which I gave to the parties concerning the preparation of submissions in connection with a hearing before a Full Court on 5 and 6 August should also be vacated. 

The plaintiff seeks leave to amend his statement of claim and originating process.  That application is not opposed.  The plaintiff should have leave to amend the process and statement of claim in the manner indicated in the draft document provided to the Court today. 

The defendants submit that I should now remit the further hearing of this matter to the Federal Court of Australia.  They submit that the issues which will be joined between the parties are of a kind which are best heard and determined together and that that is best undertaken in the Federal Court.  I am of the opinion that it is premature to determine whether this case should yet be remitted.  The defendants should file and serve their defence to the amended statement of claim on or before 4.00 pm on 31 July next.

It will be appropriate that the matter come back for further directions after pleadings have closed.  Rather than today fixing the day on which the case should return for directions, I think it better that I do no more than grant either side liberty to apply on not less than 24 hours’ notice in writing to the opposite parties.  I say that that is the better course having regard to the evolving nature of the dispute between these parties as it has been framed over these last several days.  Subject to anything that counsel may say it would seem to me to be probable that the costs of today should stand as costs in the cause.  Do counsel seek to be heard about the form of orders that I propose to make?

MR MERKEL:   Only that we would submit, your Honour, that the costs thrown away by the vacation of the special case should be borne by the Commonwealth parties.  It is an event that, on the face of things, could have occurred, your Honour, back on 1 July and it is through the decision at this late point that the change of circumstances has come about, entirely a decision at the discretion of the Commonwealth and in which the plaintiff and the other persons on the boat had no part or no role in.  It is a decision they had sought from the outset and we say the costs thrown away by your Honour’s order today vacating the special case and the directions, the costs thrown away should be paid by the defendants.

HIS HONOUR:   Those are matters, I think, Mr Merkel, which would tend in favour of reserving the costs rather than making them in the cause, but let me hear what Mr Donaghue has to say.  What order do you say I should make?

MR DONAGHUE:   That they should be costs in the cause, your Honour.  Mr Merkel’s submissions have a large number of assumptions into ‑ ‑ ‑

HIS HONOUR:   Indeed, your criticism may be well founded, but if, perchance, the assumptions were later to be made good, or some of them, that might be something that bore on the disposition of the costs, might it not?

MR DONAGHUE:   Your Honour, I will not seek to be heard against reserving costs.

HIS HONOUR:   Costs will stand reserved.  Is there anything else that needs be done?

MR DONAGHUE:   Not from our side, your Honour.

HIS HONOUR:   Then it seems to me I vacate the orders reserving the questions for a Full Court.  Do I vacate the order stating a case?  I rather suspect having done it it is done, but if I simply vacate the reservation of the questions for a Full Court it can lie where it lies.

MR DONAGHUE:   Yes, well, that undoes the effect of section 18 of the Judiciary Act, which is probably the crucial consideration.

HIS HONOUR:   And grant leave to amend the statement of claim, fix the time for the defence, reserve liberty to apply and reserve the costs.  Does that encompass all I need to do today?

MR DONAGHUE:   So your Honour is not requiring us to exercise that liberty within any particular period of time, if I understand your Honour correctly.

HIS HONOUR:   The answer I will give you, Mr Donaghue, is deliberately guarded.  Not yet.

MR DONAGHUE:   I understand that.

HIS HONOUR:   I am not going to let this case just lie on the file.  Counsel should order their affairs on the assumption that once the pleadings are in then I, or another Justice of the Court, will be looking at it with some care.  It may be that the parties between them might usefully give some thought once pleadings are closed, or once events have developed a little further, to whether they should not come back and see where we are to go.  I make no direction about that but these cases just cannot sit in the Registry unattended.

MR DONAGHUE:   I understand, your Honour.

HIS HONOUR:   Yes.  There will be orders in the terms I have indicated.  Adjourn the Court.

AT 3.05 PM THE MATTER WAS ADJOURNED