First Plaintiff M54/2011 & Ors v Minister for Immigration and Citizenship & Ors

[2011] HCATrans 190

[2011] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M54 of 2011

B e t w e e n -

FIRST PLAINTIFF M54/2011

First Plaintiff

SECOND PLAINTIFF M54/2011

Second Plaintiff

THIRD PLAINTIFF M54/2011

Third Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

REGIONAL MANAGER, CHRISTMAS ISLAND

Third Defendant

FIRST ASSISTANT SECRETARY; BORDER SECURITY, REFUGEE AND INTERNATIONAL POLICY DIVISION

Fourth Defendant

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

IN CANBERRA BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 3 AUGUST 2011, AT 9.45 AM

Copyright in the High Court of Australia

____________________

MR R.M. NIALL, SC:   May it please your Honour, I appear with MR E.M. NEKVAPIL for the plaintiffs.  (instructed by Allens Arthur Robinson Lawyers)

MR S.P. DONAGHUE:   May it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   What is the position, Mr Niall?

MR NIALL:   The position is, your Honour, that I am not sure if your Honour has seen an affidavit from Mr Andras Markus of the AGS.

HIS HONOUR:   Yes, I have.

MR NIALL:   That changes things since we were last before your Honour.  The claim, as your Honour will have appreciated, concerned a claim for habeas corpus on the basis that the plaintiffs – that is the second and third plaintiffs – were not being processed.  They are now to be processed.  Although we have asked for some information in relation to that process, we have not yet got all the information we need.  Secondly, your Honour, the other significant factual change is that the second and third plaintiffs have been removed from Christmas Island and brought to the mainland, which occurred sometime earlier this week.  We were not told about that prior to it happening, but we have now found out that is so.  So we are still in the process of getting instructions from our client. 

The upshot of it is, your Honour, that what we would seek – the claim for habeas, which was the basis for the speedy hearing in this Court, no longer is sought on the basis that the position is that their detention is currently for the purpose of processing.  We can put to one side whether there has been past unlawful detention.  What we would seek from your Honour would be to vacate the orders that your Honour made on 21 July, give the plaintiffs an opportunity to further consider their position and either list the matter shortly for directions before your Honour or on a date to be fixed where your Honour would be in a position to make more detailed submissions about the future course of the proceeding, whether it should remain in this Court, whether it should be remitted or whether all of the issues in dispute have been resolved. 

HIS HONOUR:   How long are you going to need to work out what is going to happen?

MR NIALL:   On the assumption, which we think is a fair assumption, that the parties can communicate with each other over the next seven days, we would think in the order of two weeks, your Honour. 

HIS HONOUR:   Yes.

MR NIALL:   That is all I wanted to say to your Honour, unless your Honour has any questions for me. 

HIS HONOUR:   Yes, thank you.  What is the position of the Minister, Mr Donaghue?

MR DONAGHUE:   Your Honour, we agree that the orders that your Honour made on 21 July should be vacated save, perhaps, that your Honour might choose to vacate orders 2 to 9 leaving the leave to

amend and the liberty to apply, but otherwise vacating the orders made on that date.

HIS HONOUR:   Why would I not leave intact order 9, the costs?

MR DONAGHUE:   Order 9 as well, yes, your Honour.

HIS HONOUR:   Yes.

MR DONAGHUE:   But the other procedural steps should be vacated.  We are content for our friends to have the time they need to seek instructions as to how they want to proceed.  The Minister’s position is that the main issue that was to be debated, as we understood it, before the Full Court in October is now moot as between the parties because the question of the operation of section 198A as a possible limit on removal from Australia of persons who have not been processed now cannot arise because these plaintiffs are to be processed.  So we doubt whether there will be a matter suitable for referral to the Full Court, but we are happy for our friends to have the time they need to consider the position.

HIS HONOUR:   Yes.  What I am minded to do is to vacate orders 2 to 8 made on 21 July 2011 to adjourn this matter for further mention to a date to be fixed.  It is likely that I will be looking to fix the matter on either Wednesday 17 or Thursday 18 August.  The parties should order their affairs on the assumption that it will come back on late in the week commencing 15 August 2011 and the parties should therefore be in a position by then to have worked out what is to happen in this matter.  The costs of today should, I think, be costs in the cause.  Is there anything else that counsel wish to raise?

MR NIALL:   No, your Honour.

MR DONAGHUE:   No, your Honour.

HIS HONOUR:   There will be orders in those terms.  Thank you.

AT 9.50 AM THE MATTER WAS ADJOURNED