DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia

[2019] HCATrans 237

[2019] HCATrans 237

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M124 of 2019

B e t w e e n -

DBE17 (BY HIS LITIGATION GUARDIAN MARIE THERESA ARTHUR)

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 NOVEMBER 2019, AT 9.30 AM

Copyright in the High Court of Australia

MR B.F. QUINN, QC:   May it please the Court, I appear with my learned friends, MR M.L.L. ALBERT, MR M.W. GUO and MS S. ZELEZNIKOW, for the plaintiff.  (instructed by Maurice Blackburn)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR A.M. DINELLI for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Quinn.

MR QUINN:   If your Honour pleases.  Your Honour will have received written submissions filed in respect of the question raised by the Court on the last occasion.

HIS HONOUR:   Yes, thank you.

MR QUINN:   Namely, whether section 486B of the Migration Act prohibits or invalidates this proceeding, such that there is effectively no proceeding that could be the subject of remitter under section 88 of the Judiciary Act.  Your Honour, I intend, of course, to rely upon our written submissions.  I just want to elaborate upon three or four of the primary points that we raise there.

I wanted to start with a textual analysis briefly of 486B itself, as it was presented and passed by Parliament, that is, as part of the limited suite of amendments within the Migration Legislation Amendment Act (No 1) 2001.  Does your Honour have a copy of that?  It is referred to in the submissions – does your Honour have a copy of that Act, the amending Act?

HIS HONOUR:   Yes, thank you, I do.

MR QUINN:   Now, the key point, of course, your Honour will have appreciated from the submissions, emerging from the textual analysis is the entire suite of amendments relate, we would submit, to effectively judicially‑reviewable conduct or decisions and place limits on judicial review as opposed to any broader spread of the intended stretch of the legislation.

Can I start, your Honour, with the – if your Honour goes to Part 1 in Schedule 1 of the amending Act and you will see the title “Migration Act1958”, the “Amendments commencing on Royal Assent”.  If you go down there to section 2 you will see a reference to subsection 485(3) – does your Honour see that?

HIS HONOUR:   Yes.

MR QUINN:   You will see there that those amendments are concerned entirely with judicially‑reviewable decisions and nothing else.  Then we move down more relevantly into the sort of territory we are looking at here and we go to section 4 and it says “After Part 8 Insert”.  It then introduces the new Part 8A.  Looking firstly at the then new 486A – this was, of course, the provision considered in Bodruddaza v The Minister that your Honour raised with me on the last occasion and, again, a cursory glance at that will indicate that that provision is wholly concerned with judicially‑reviewable decisions.

HIS HONOUR:   We know that now at least.

MR QUINN:   Yes.  If your Honour then goes over to Part 2 “Amendments commencing on Proclamation” you will see section 6:

At the end of Part 8A

Add -

486B, the relevant provision here.  Section (1):

This section applies to all proceedings (migration proceedings) in the High Court or the Federal Court –

and pausing there, and I will come back to this point because it is a point we make something of in our submissions, the first thing to note, of course, is that the application of the provision is limited to proceedings in the High Court and the Federal Court.  Later, of course, added to that list was the Federal Circuit Court and that is the form the provision is now in to include all of those three courts, and there is, of course, no application or no intended application to proceedings in the State or Territory courts.  Now, moving through, further into that subsection, your Honour will see:

that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non‑citizens.

Pausing there, leaving aside visas for a moment, when your Honour sees the word “deportation” it might assist to know that that is deportation under Part 2 or Division 9 of the Migration Act, so it is a term of art in that context.  “Removal” is under section 198 of the Act - that is where a person, in effect, has no right to enter or remain in Australia.  Now, the text was amended in this regard in 2012 to add the term “taking” so it now reads, as your Honour will know:

in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non‑citizens.

For context, can I just let your Honour know that the term “taking” was added in 2012 in conjunction with what is section 198AD of the Act.  That applies only for unauthorised maritime arrivals and only to a regional processing country.  So that had a particular intended effect.

In short then, looking at that list of words it is the question of whether or not the current proceeding raises an issue in connection with visas.  Your Honour can put to one side any of the other terms and purposes.  Again, I do not want to intrude too much upon what we have said in our written submissions in respect of that, but your Honour will be aware immediately that the short point that really I made on the last occasion too in the context of the other provision we were looking at is that our proceeding is one founded in tort.  It is not in connection with visas, it is connection with what we might call the shadow or the space between the various signposts or posts that we have in relation to the stretch of 486B(1). 

So it has nothing to do with visas at all.  It is about the unlawfulness of detention.  If you put visas to one side, it is the detention which is the focus of our proceeding and the issues raised in the proceeding are in connection entirely with the unlawful detention.

HIS HONOUR:   It is, though, alleged to be unlawful because, putting it shortly, the Commonwealth dragged its heels, went too slowly in processing the visa application – or application for permission to seek a visa  - is it not?

MR QUINN:   In short compass, that is it.  But there is no connection with a visa or a particular visa application or any allegation that was made or a visa itself.  The proceeding is about the process and the time that the Commonwealth took in relation to its detention.  It detained people.  It kept them there for an unlawful purpose.  That is the allegation.  Whatever the ultimate intended purpose of the Commonwealth might have been we would submit is entirely irrelevant.  That does not assist your Honour in determining whether or not what the issues in the case are in connection with.

It happens to be the case that we have pleaded a purpose for the detention – or two purposes, one of them being relevantly, here, the possibility of inviting or looking at or processing visa applications.  But that is happenstance.  What the proceeding is about, and entirely about, is the space, that space which is detention that was invalid and unlawful.

At the very most, your Honour, against us it might be said that there are issues raised in connection with a purpose.  The subject matter of the purpose is irrelevant for present purposes.  It might be that you describe the proceeding as one about the invalidity of detention because of the failure of a purpose or the purpose not being put into effect and the subject matter of the purpose is irrelevant in terms of characterisation of the issues.

HIS HONOUR:   I suppose if one were to decide that Part 8A is limited to public law remedies it would be unnecessary to decide whether this is a proceeding in connection with visas.

MR QUINN:   Exactly.  So I will stop there, your Honour, and that is why I said I did not intend to take that point any further.  We have said what we wanted to say about characterising our proceeding in the written submissions and I really cannot take that any further than I just have.  Now, if your Honour then goes down to subparagraph (4):

The following are not permitted in or by a migration proceeding –

and you will see there the description of the various forms of representative action and we would ask your Honour to note – it is comprehensive language in that subsection clearly intended to preclude actions of a representative nature, however described, but, of course, only if the action is a migration proceeding, subject, of course, to the limited exceptions in subsection (7).

HIS HONOUR:   I had never thought about it, but I suppose it would be possible, would it, to have a representative judicial review proceeding?

MR QUINN:   There have been cases of them.  There was an earlier one in the Part IVA context, the name of which eludes me for a moment.

HIS HONOUR:   It matters not.

MR QUINN:   One of my learned juniors might recall.

HIS HONOUR:   Anyway, it is conceivable it could be done.

MR QUINN:   We can provide that to your Honour, but it is possible.  There is nothing that precludes it and it has been done.

HIS HONOUR:   Thank you.

MR QUINN:   Now, can I skip over, your Honour, to section 486C, in the form it was introduced and enacted?

HIS HONOUR:   Yes.

MR QUINN:   The verbiage here is important:

Only the persons mentioned in this section may commence or continue a proceeding in the Federal Court –

and emphasising these words:

that raises an issue (the relevant issue):

(a)in connection with visas (including –

et cetera, replicating the verbiage utilised in 486B, of course, with different punctuation because there is the conjunctive clause in (b).  But as we note in our submissions the Full Federal Court has now twice held that that phrase does not capture questions or issues regarding the validity or lawfulness of detention.  The references are in our submissions but, your Honour, it is NAMU ‑ ‑ ‑

HIS HONOUR:   No, I have looked at them, thank you.

MR QUINN:   Yes, thank you, your Honour.

HIS HONOUR:   I take it, though, that that is put in support of the contention that you have not really developed being that this proceeding is not one that raises an issue in connection with visas?

MR QUINN:   With respect, that is correct, your Honour.  There is something more, though, to this – what is unspoken in the two decisions because, of course, your Honour will have seen that the issue did not receive any really detailed attention in the two decisions.  But perhaps it is because – if one goes on to look at the provision as it was introduced – there really was a question about it because if your Honour goes then to subsection (2) as it was introduced:

in the case of a proceeding under Part 8 –

and then there is a list in (i) and (ii) of a couple of things and (i) refers to a decision involving an applicant in a review by the relevant Tribunal and then (ii) again there is the reference to a decision.  So the language indicates an assumption by the legislature, we would submit, at the introduction time that the relevant issue was one in connection with the decision reviewable by a Tribunal and there is a similar implication arising from paragraph (b) which, again, indicates an intention of application for 486C(1) to proceedings for judicial review.

I simply pause there, your Honour, to say there is absolutely no reason to think that the same language when utilising 486B as is used in 486C(1) should have any broader reach or be intended to apply to a broader range of proceedings than is indicated by 486C and its reach.

HIS HONOUR:   Yes.

MR QUINN:   Now, again, without transgressing on what we have said in our written submissions, your Honour, the short point is that there is really nothing in any of those provisions that indicates any intention at all to go beyond judicially‑reviewable decisions or conduct.  Can I move now briefly, your Honour, to the explanatory memoranda.  Does your Honour have that?  We can hand it up.

HIS HONOUR:   Yes, I do, thank you.

MR QUINN:   If your Honour goes to the first substantive page, your Honour will have read under “Overview” paragraphs 2, 3 and 4 and these are referred to in the written submissions of both parties.  I wanted just to refer your Honour further to the financial impact statement and it is perhaps rare that anyone finds much in financial impact statement sections of explanatory memoranda which really point much towards the specific purpose.  But this memorandum is different in this regard.  So we have at paragraph 6:

The financial impact of the amendments contained in Schedule 1 to the Bill will depend on what effect the amendments have on application for judicial review.  For instance, if the bar on class, representative or otherwise grouped actions does not increase the number of individual applications, broad costs to the Commonwealth, including costs arising from members of these actions prolonging their stay in Australia, may be reduced.  However, if the number of individual applicants increases, there may be an increase in litigation costs in addition to costs associated with each individual’s prolonged stay in Australia.

So, again, even at the financial impacts level, the analysis and the intention was really all about limiting rights of judicial review with the broader policy objective of preventing people utilising those procedures and those only for prolonging their stay in Australia.  Of course, our proceeding is not one which could, on any view, have any effect of prolongation of anyone’s stay in Australia.  It is not about that.

Now, can I say something, your Honour, in respect of the general characterisation of the provision in question?  We refer to it in our submissions as a privative clause.  Your Honour will have seen that.  We would have to concede that probably does not sit entirely comfortably with much of the jurisprudence on privative clauses in this sense.  It is not a conventional privative clause in the sense of withholding from review decisions or conduct that would otherwise be reviewable.  Rather, the restriction is upon the mode or vehicle of review – the mode of review or the vehicle for review.

Nevertheless, your Honour, we would submit that 486B, if it has a broader construction, would have the effect of detracting from procedural powers and options that this Court and, of course, the Federal Court would otherwise have and in that sense there is an analogy with a privative clause and it is a close enough analogy in terms of its effects for the principles of construction that we refer to in our submissions to apply equally to this clause.

So, at least in the Federal Court, of course, the procedural optional vehicle which is on its face precluded by 486B – that is access to Part IVA – does have also substantive rights embedded within it, as your Honour will know, for example, in respect of the suspension of limitation periods. So in a sense - that is section 33ZE of the Federal Court of Australia Act.

Your Honour, a similar thing might be said with respect to the rule of court pursuant to which the present proceeding has been commenced.  I can just refer your Honour briefly to a case we have not cited, but your Honour will be familiar with it.  It is Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398. In the judgment of Justices Toohey and Gaudron, who held sway in terms of the majority in the Court, there is an analysis of these rules of court, of course deriving from old chancery practice. If I could just read one passage briefly to your Honour - it is at page 415 and Justices Toohey and Gaudron say this:

In ascertaining whether the procedure which the appellants wish to adopt is within the Rules it is helpful to consider the history and interpretation of r. 13(1) –

this is in the Supreme Court Act (NSW):

the ancestor of which is to be found in the English Rules of the Supreme Court and which appears in various forms in other common law countries.  Rule 13(1) is almost identical in language with O. 15, r. 12(1) of the English Rules of the Supreme Court, from which it was clearly taken.  The English rule was in turn derived from an earlier rule which itself was derived from the practice of the Court of Chancery.

Historically the common law courts had no power to hear an action by a representative plaintiff.  However, in the Court of Chancery representative actions were permitted in certain cases.  With the merger of common law and equity, the new rules of procedure scheduled to the Supreme Court of Judicature Act 1873 (U.K.) incorporated the chancery practice.  That practice was described by Lord Macnaghten in Duke of Bedford v. Ellis as follows:

“The old rule in the Court of Chancery was very simple and perfectly well understood.  Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy.  But when the parties were so numerous that you never could ‘come at justice’, to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way.  It was originally a rule of convenience; for the sake of convenience it was relaxed.”

Now, your Honour, the point is a simple one.  We are not simply dealing with just a matter of procedure such as a simple amendment rule or something that might be utilised in a court day by day in governing its procedures.  This is a provision - the relevant rule under which we have commenced - which is a gateway to a certain mode of the court entertaining a proceeding which would be too cumbersome to be dealt with in any other way.

Now, that has benefits of course for the applicant and the individual group members.  So there were substantive justice implications in terms of access to justice there.  It also has serious implications for the court, which may, in the absence of such a rule, be inundated with cases – applications and claims too numerous for it to practicably handle.

So in that sense, your Honour, although this may not be a privative clause in the classic sense, the effect of it on the court’s processes and the substantive rights that would otherwise be enjoyed if not for the provision, could be quite extreme.  It is for those reasons that we say that the principles that have been applied in respect of the proper construction of privative clauses apply equally in the present case.

We have referred in our submissions to the relevant passage from Plaintiff S157 and I just wanted to refer your Honour to one further passage, which I do not think we pick up in our written submissions, in that regard.  It is a passage from the judgment of his Honour Justice Callinan at paragraph 111 of Plaintiff S157.  It says this:

As the expression that s 474 itself uses (privative clause) indicates, it is such a provision and accordingly one which courts will construe “by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied”.

That really is the more general principle that ought be applied and it ought be applied equally in this context because the rules of court in question and Part IVA of the Federal Court of Australia Act and like rules are really about access to the courts and facilitating that.

Your Honour will have recalled when we looked at the provision itself that the section applies only to proceedings in the High Court and Federal Court and the Federal Circuit Court, leaving State courts untouched.  Yet there are of course numerous representative proceeding regimes, both rules based and statutory in State courts.  We have put together a summary of those around the country for your Honour’s convenience.

HIS HONOUR:   Thank you.

MR QUINN:   I will hand up two copies. 

HIS HONOUR:   They are all pretty much photocopies of the Federal Court procedure, are they not?  Certainly New South Wales and Victoria are.

MR QUINN:   Yes, that is true.  I think there are some anomalies in the upcoming Tasmanian one and possibly also the Queensland legislation, but I must say I have not tracked through the differences for your Honour because they are not particularly relevant.  Your Honour should be equally interested in the middle column there which is the rules‑based representative proceedings provisions.  That is the analogues of the rule of court under which we have commenced this proceeding, the old chancery provisions.

HIS HONOUR:   Yes.

MR QUINN:   Of course, you will see that in every jurisdiction in Australia there is at least one avenue through which a representative proceeding of sorts – at least of the same sort that we have now commenced – may be commenced in a State Supreme Court.  We could have commenced this proceeding in a State Supreme Court. 

It would be anomalous, we submit, that if Parliament intended section 486B to extend to tort and other proceedings such as the present one, which relate to the lawfulness of detention, yet did not extend its application to the – or that prohibition to most of the courts that could entertain proceedings in question, the purpose and objective which emerges from both the text of the provision and those surrounding it and also the explanatory memoranda would be entirely diluted, if not defeated completely, because you would just go off to another court and commence your proceeding there, without the prohibition of 486B.

Perhaps, your Honour, that is the most powerful indication that the legislature intended that 486B extend only to judicially‑reviewable decisions and decisions of the ilk that might only be scrutinised in the Chapter III courts.

The final point, your Honour, that we wanted to deal with was one that emerged from paragraphs 13 and 14 of the Commonwealth submissions.  The submission was this – just reading from 13, the Commonwealth says:

However, the purpose apparent from the terms of the statute is also consistent with a wider legislative policy of preventing such proceedings generally; that representative or class actions are an unsuitable vehicle for determining proceedings that raise an issue in connection with visas, deportation, or removal of unlawful non‑citizens, by reason of the fact‑specific context within which such arises commonly arise.

Now, what we say to that, your Honour, is that Parliament when it enacted, at least in the Federal Court context, Part IVA of the Federal Court of Australia Act, armed that court with section 33C, 33H, which you can read together, and 33N.  Your Honour will be no doubt aware, not just from the Bench but from your Honour’s time in Phillip Morris v Nixon before the Full Federal Court many years ago, that there was a time early in the piece when the great battles in the class actions sphere were about pleadings, commonality issues and such things and 33N applications where the court was asked to look at a plethora of common issues – individual issues and say they swamp the common issues such that the proceeding ought not continue as a class action.

Now, the court is armed with those powers, the Federal Court is armed with those powers.  The answer to the Commonwealth submission is really of course every case has individual issues, including all of those that are conducted in the Federal Court every day in the class action context.  Of course, as a matter of degree there might be many common issues and few

individual ones or it might go the other way, but the Commonwealth Parliament has armed the courts with power to deal with that. 

That is not a reason to have an expansive reading of 486B and assume that the Commonwealth has somehow thought that proceedings in the migration space, whether they were judicially reviewable or otherwise, might be too individualistic in their issues to be amenable to convenient resolution through a class action regime.

Unless there is anything else, your Honour, those are our submissions.

HIS HONOUR:   Thank you very much, Mr Quinn.  Mr Williams.

MR WILLIAMS:   Thank you, your Honour.  Your Honour, the Commonwealth accepts that the narrow construction that is put forward by the plaintiff is an available construction and we seek to restrict ourselves only to putting some, in effect, observations which point in different directions as to the issues before the Court, there being otherwise no contradictor.

In our written submissions in paragraph 6 we refer to a contrast in the statutory language between 486A, as it was when the Court considered it in Bodruddaza and the present text.  The text “a remedy . . . in relation to a migration decision” considered in Bodruddaza, immediately by its terms, raises a question of the scope.  There is a question of construction of what a remedy means.

By contrast, the present language is intractable – “all proceedings (migration proceedings) . . . that raise an issue in connection with visas”.  In order to read that as the plaintiff seeks to read it, and we accept it is an available reading, surgery is necessary on the language.  It is necessary to read into the determinatively general “all proceedings” a limitation to be all judicial review proceedings. 

So the first point is text and that points away from the narrow construction.  I will go on in a moment to say why context – or immediate legislative context points in a different direction but can I deal in passing with the plaintiff’s point that the text refers only to the High Court, the Federal Court and more recently the Federal Circuit Court.

The plaintiff does get some assistance from that, but it is largely neutral.  There may be a range of reasons why the Commonwealth Parliament in 2001, or why the Commonwealth Parliament in general might not choose to intervene in the procedures of State courts, although sometimes it does in relation to Commonwealth proceedings.  So there may have been reasons but it also is to be noted that the representative proceeding in State courts was at that time a relatively new creature. 

It was introduced in this State in 2000 in Part IVA of the Supreme Court Act.  I do not recall the exact date in New South Wales.  I suspect it was a little earlier but I am not sure.  But as your Honour will see from the table that has been handed up, in some States – I think in Tasmania it is only prospective, if I understood my friend’s submission correctly.  But in any event in 2001 it was a relatively new creature and not universally available.

HIS HONOUR:   What about Order 15, representative proceedings, Order 15 as it used to be in Victoria or under the Rules of the Supreme Court of the UK – I mean, that has been there forever.

MR WILLIAMS:   That has, yes, we accept that.  That does give some force to the point that the restriction is in terms expressed only to the High Court, the Federal Court and more recently the Federal Circuit Court. 

HIS HONOUR:   I understand, thank you.

MR WILLIAMS:   Yes.  It is, we accept, something that takes the plaintiff some way, but on one view it is neutral because the Commonwealth Parliament may well have chosen for other reasons not to interfere in the available procedures of State courts.  I indicated a moment ago that the immediate statutory context – we accept that the immediate statutory context favours a narrow construction because apart from this provision the rest of Part A is concerned with judicial review proceedings.  So we accept that.

We also accept that the immediate impetus for the passage of this particular section was a problem that had arisen in relation to judicial review class actions.  There had been a series of class actions.  They are referred to in the second reading speech – I will make some brief reference to that in a moment – but there had been a series of class actions.  I rather suspect one of them found its way to this Court on appeal in relation to procedural fairness, although I am struggling now to recall the name of it.  But it was not a class action point.  It was not a group proceeding point that found its way to this Court, if my memory is correct.

In any event there had been a series of proceedings commenced and the firms that were marketing these proceedings were adding people to the group, to the list, who had no possible connection to the issues in the proceedings because being on a list in a group proceeding gave one access to a bridging visa.

HIS HONOUR:   That is referred to in the Attorney’s second reading speech, is it not?

MR WILLIAMS:   Yes, or the Minister in the second reading speech.  So that was a plain abuse.  First of all, many of the actions were of limited merit. He refers to that as well, I think, but 10 of the 14 that had been filed at that time had been determined and they had all been dismissed but on top of that there were people being added in who, even if the proceeding succeeded, could gain no possible benefit from it other than the bridging visa because their circumstances were not touched by it.  So we do accept that that was the immediate impetus. 

However, in the text of 486B I think your Honour observed on the last occasion that there appears to be a wider drafting device employed.  Certainly the language “all proceedings that raise an issue in connection with visas” is the widest possible language.  But also in the second reading speech itself there are passages that suggest that there may have been a wider purpose as well, or at least are consistent with a wider purpose.

We attached the second reading speech because it is extensive and does go both ways to some degree, although it makes absolutely clear that the purpose that the plaintiff relies on, which I have just been addressing, was the primary impetus for it.  But if your Honour has the last page of the attachment to our submissions, 14623, the end of the first paragraph – the first paragraph begins with a reference to restricting access to judicial review:

there may be sound policy reasons for the availability of class actions in some matters in other areas of policy.  But, while class actions might well be appropriate in allowing individuals to sue large organisations in expensive consumer related actions, they are inappropriate in relation to migration matters.

Now, that is a reference that is capable of being read more broadly but we accept that the thrust of the explanatory material is toward the particular focus, the particular impetus that had led to the restriction of access to these procedures.

HIS HONOUR:   One thing I was wondering was if it – assume for the sake of argument that when “all proceedings” are referred to in 486B(1) it is to be read as “all public law judicial review proceedings”.  The words “raise an issue in connection with visas” were adopted to expand the scope from judicial review proceedings of decisions to grant or withhold visas to judicial review proceedings and other sorts of decisions which nonetheless raised an issue in connection with visas.  I was trying to think what such a decision might be.  Looking through the Migration Act I had some difficulty in finding any that fitted the bill very closely.  Is that an appropriate analysis or not?

MR WILLIAMS:   I am unable to assist your Honour as to examples of what that might have been directed to.  My friend in reply might have examples but it is difficult immediately to see why that language would have been employed.

HIS HONOUR:   I came across one provision, the number of which I now forget, which arms the Minister with power by legislative instrument to specify that for the time being there will be no applications for particular kinds of visas.  I wondered if that might be an example.

MR WILLIAMS:   It would not be necessary to use the very wide language of 486B(1) in order to capture that in the sense that “in relation to” would have captured that.

HIS HONOUR:   That is true.

MR WILLIAMS:   I suppose it is possible to imagine things that might be within that but it is difficult to imagine examples that would not have been put by the more orthodox formula used in 486A in the form that it was in then, for example.

HIS HONOUR:   Yes.

MR WILLIAMS:   I cannot immediately think of examples that would assist your Honour in that respect.  I cannot think of anything that would be uniquely caught by this in relation to judicial review proceedings.

HIS HONOUR:   Thank you.

MR WILLIAMS:   I should also say in relation to the point about other courts that another partial answer to the point about the absence of a reference to State courts, a partial answer in relation to that is that section 494AA was introduced at the same time, not in the same Bill.  It was introduced – no one has referred to it so your Honour will not have it in Court but I can give your Honour the ‑ ‑ ‑

HIS HONOUR:   I have it, thank you.

MR WILLIAMS:   It was introduced by the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001.  That was Act No 128 of 2001.  The Bill that introduced the provisions that your Honour is considering is Bill No 129.  So they were cognate.  Section 494AA, of course, prevents proceedings such as this being brought in a State court. 

Of course it only does that in relation to what are now called unauthorised maritime arrivals but were then called offshore entry persons.  So it is only a partial answer but certainly this proceeding could not be commenced in a State court now because of 494AA for the same reason it could not be commenced in the Federal Court as Justice Mortimer held.

That is an answer that applies only to unauthorised maritime arrivals.  They are, of course, and I think always have been the only compulsory detainee group, if I can put it in that way, apart from the obligation that falls on all officers of the law, police officers and migration officers to detain unlawful non‑citizens.

HIS HONOUR:   Yes.

MR WILLIAMS:   That might also be a partial explanation but it is an explanation that is subject to that particular limitation to offshore entry persons or unauthorised maritime arrivals, as they are now known.  Our friends did then address some submissions to the issues in the current proceeding.

HIS HONOUR:   Just to back up a moment, if 486B – no, I withdraw that.  I was about to say if 486B had the broader effect 494AA would be surplusage, but that is not so.  It is really the other half extending it out to the States.

MR WILLIAMS:   That is so.  Our friends put some submissions as to the subject matter of the current proceeding.  Of course your Honour will not particularly be assisted by the subject matter in this proceeding in construing the constraint but just to make a couple of observations, because in a sense the current proceeding does illustrate one of the vices of the use of a group proceeding format for a proceeding in relation to visas. 

Your Honour was of course a member of the court in M96A and is aware that in respect of detention issues it is the particular case that counts.  It is the facts of the particular case and while in some judicial review proceedings it is possible to imagine common legal issues – it is readily possible to imagine common legal issues, perhaps in relation to a group of people who arrive on a particular boat, in previous times, or a common legal issue about the effect of a time limit or the like, in relation to detention and wrongful detention the matters which the court has to determine are quintessentially case‑by‑case issues as the plurality in Plaintiff M96A emphasised in the passage we quoted in our submissions.

Could I just say one thing in that respect in response to what our friends said about the subject matter of the proceeding and this is by reference to the statement of claim – if your Honour has that?  It is from paragraph 21 of the statement of claim, really the essence of the claim is in 21 through to 24.  First, in paragraph 21, the drafter sets out the visa purposes, that is the lawful purposes.  The only purpose was to:

receive, investigate and determine an application . . . 

and:

determine whether to permit a valid application –

They are collectively described as “the visa purposes”.  Then in 22, the detention of the representative applicant and each group member:

was only lawful for the period of time for which one of the visa purposes was being pursued and carried into effect –

Then there are references to provisions.  Then in 23:

At all relevant times, it was reasonable practicable to pursue and carry into effect each of the visa purposes within –

and then certain time limits are stated.

Now, within the language of 486B it is perhaps difficult to imagine a case that more directly raises – a case that is more directly a proceeding that raises an issue in connection with visas than those because the essence of the case is about the time that should have been taken, the shorter time, implicitly it is contended, that should have been taken to determine the visa.  So we make that point in two senses.  One we make it in answer to the point, although we do not seek to engage and I do not wish to be heard to be putting submissions that are against the plaintiff’s contention ‑ ‑ ‑

HIS HONOUR:   I do understand and I am grateful nonetheless for what you are doing, Mr Williams.

MR WILLIAMS:   Yes, thank you, your Honour.  But we do by way of reply to the point that is made – this was not about visas at all, this was all about tort.  Your Honour has to apply the statutory language “all proceedings that raise an issue in connection with visas” and apply it to these paragraphs.  We accept that it is well open to the Court to say that “all proceedings” means all judicial review proceedings but if the Court does not say that then it is difficult to say that this is anything other than a proceeding that raises an issue in connection with visas.  The visa issues are at the heart of this proceeding. 

Just finally, the submission was put that in group proceedings it is very common for cases to raise individual issues.  Every case has individual issues.  Well, that is often so, perhaps not every case but because commonly cases are litigated because there is a common central point but because of the test in M96A and, indeed, in a sense it is almost axiomatic that the lawfulness of detention will depend on the particular issues that are raised, first by the particular applicant and the length of time that is necessary to investigate those, which might involve some common questions about the time taken to acquire information from international sources going to conditions in a country of nationality, for example, but will in every case raise quite centrally the individual circumstances of each applicant which will require investigation on some level or other.

HIS HONOUR:   I follow that.  What about Mr Quinn’s point that the Commonwealth has armed the Federal Court with the powers to say “Well, this is not appropriate to proceed as a proceeding.  I am going to stop it doing so.”  Can one, as it were, balance that against the difficulties obviously inherent in group immigration proceedings and say well, where it is appropriate it can be assumed the court, the Federal Court will exercise its powers accordingly and where it is inappropriate it will stop it going ahead?

MR WILLIAMS:   Certainly in relation to, on any view I think it is common ground, judicial review proceedings so that the Parliament has taken that away, notwithstanding that there might be some cases in which the group proceeding could be used effectively, so there is no doubt that there was an intention to remove that but more generally we do accept that there is no obligation on any court to allow a matter to continue as a group proceeding when it is plainly inappropriate. 

But when one is looking at the legislative purposes that are reflected in the very wide terms of 486B(1) those purposes may well include, consistently with some of the language of the Minister in the sentence I took your Honour to, excluding group proceedings altogether because of the fact‑specific nature of the matters to which it refers – issues in connection with visas, deportation or removal of unlawful non‑citizens, using the original language, are quintessentially fact‑specific matters.

HIS HONOUR:   I suppose one answer to the possibility that the Commonwealth was hesitant to take the matter away from the States and thus confined 486B to the federal courts is that it did not hesitate with 494AA.  It does not look as though it was constitutionally sensitive about it.

MR WILLIAMS:   In 494AA it took away the entirety of the cause of action.

HIS HONOUR:   Yes.

MR WILLIAMS:   It was not touching on the procedure of the court, a matter in respect of which the Commonwealth Parliament might be sensitive about touching on the procedure of State courts in hearing matters.  Section 494AA takes the entire thing away.  So the State courts will not be troubled by the adjustment of their procedures because they will not have any to deal with.

HIS HONOUR:   Thank you.

MR WILLIAMS:   Your Honour, unless there are matters with which I can assist, those are our submissions.

HIS HONOUR:   Thank you very much, Mr Williams.  Mr Quinn, anything?

MR QUINN:   Very briefly, your Honour.  Could I just refer your Honour to the matter of Zhang v The Minister (1993) 45 FLR 384 – that is an early example of a Part IVA proceeding in the migration context. Other than that your Honour has really referred to the answer we were going to provide in respect of section 494AA as an example of where the Commonwealth has quite happily decided it was going to do something in respect of State courts. With respect, there is very little – or it is an illusory distinction between depriving State courts of an area within which they might adjudicate versus trespassing upon their rules of court.

The reality is the effect is the same at the end of the day and we would submit that the express reference to “any courts” in 494AA was deliberate and should be seen as a clear distinction between that and the provision in question.  If the Parliament had been intending to do anything in respect of the State courts it could have in plain terms.  There is a reason it did not and the only reason, we respectfully submit, that really arises or could arise is that it did not intend its policy to preclude generally proceedings which might have anything and everything to do with migration, but only those which were likely to end up in the Federal Court, the Federal Circuit Court or the High Court in judicial review context.

Your Honour, perhaps if I can bring a couple of threads together in terms of reply.  The reference to intractability is - with respect, it is unhelpful.  That is what brings the issue to your Honour.  The intractability of the language is what brings the issue to your Honour.  We then say well, okay, the provision itself, the verbiage of the provision in isolation does not give us the answer, but, your Honour, everything else does.  The language surrounding, the explanatory memoranda, all of the context points in the one direction. 

I do not know whether I can assist your Honour any further.  There is nothing else in reply, if the Court please.

HIS HONOUR:   Do you know of any provision under which a decision, a migration decision, might be made other than one to grant or withhold a visa which might nonetheless raise an issue in connection with a visa?

MR QUINN:   There was some consideration of this at the Bar table amongst those who are far more learned than I am in this area, and I think we had one example.  Could your Honour give me half a moment?

HIS HONOUR:   Certainly.

MR QUINN:   Mr Albert usefully tells me that there is such a thing as a residence determination under the Act – section 197AB – we will make sure that that is right.  Does your Honour have that?

HIS HONOUR:   Yes, I do – “Revocation or variation of residence determination”.

MR QUINN:   Section 197AB.

HIS HONOUR:   Correct.

MR QUINN:   Yes.  Sorry, no, 197AB we have “Minister may determine that person is to reside at a specified place”

HIS HONOUR:   Section 197AB, was it?  “Bravo” not “Delta”.

MR QUINN:   I am sorry, yes.  Perhaps if you start at 197AA, “Persons to whom Subdivision applies”:

This Subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section.

HIS HONOUR:   Yes.

MR QUINN:   Then 197AB:

If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this

Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

Now, your Honour, that is a decision, reviewable presumably but not subject to the provision in question here, not one of the things that is expressly referred to.

HIS HONOUR:   Does it raise an issue in connection with visas?  Is it conceivable that it could?

MR QUINN:   It is conceivable, your Honour.

HIS HONOUR:   How would it do so, can you think?

MR QUINN:   Your Honour, I think we would have to have a specific situation in mind.  I say it is conceivable.  I cannot give your Honour an example immediately but it may be that the detention in question is being undertaken for the purposes of a visa application and that is overtaken by a determination by the Minister.  So there might be a situation of that nature.

HIS HONOUR:   Yes, thank you.

MR QUINN:   If your Honour pleases.

HIS HONOUR:   I must say that with the benefit of the written submissions I had hoped to give a decision, but I think I had better reserve, albeit shortly, before I do.  I will endeavour to get it out during the course of the next week.  Thank you both for your assistance.

AT 10.28 AM THE MATTER WAS ADJOURNED