JARK and Ors v Minister for Immigration and Border Protection and Anor
[2014] HCATrans 150
[2014] HCATrans 150
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S147 of 2014
B e t w e e n -
JARK
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S148 of 2014
B e t w e e n -
SAS
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S149 of 2014
B e t w e e n -
SWF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S150 of 2014
B e t w e e n -
SV
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S151 of 2014
B e t w e e n -
SSC
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S152 of 2014
B e t w e e n -
SATL
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S153 of 2014
B e t w e e n -
SSSL
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S154 of 2014
B e t w e e n -
SARK
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S155 of 2014
B e t w e e n -
SAK
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S156 of 2014
B e t w e e n -
SMV
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S157 of 2014
B e t w e e n -
VN
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S158 of 2014
B e t w e e n -
WAF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S159 of 2014
B e t w e e n -
WNSC
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S160 of 2014
B e t w e e n -
TM
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S161 of 2014
B e t w e e n -
WAZF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S162 of 2014
B e t w e e n -
WEEF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S163 of 2014
B e t w e e n -
ADR
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S164 of 2014
B e t w e e n -
ASRP
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S165 of 2014
B e t w e e n -
ADT
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S166 of 2014
B e t w e e n -
DRP
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S167 of 2014
B e t w e e n -
DTF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S168 of 2014
B e t w e e n -
AEACC
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
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
Office of the Registry
Sydney No S170 of 2014
B e t w e e n -
DMF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S171 of 2014
B e t w e e n -
DRF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S172 of 2014
B e t w e e n -
EEF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S173 of 2014
B e t w e e n -
GAAC
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S174 of 2014
B e t w e e n -
JDT
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S175 of 2014
B e t w e e n -
KRTF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S176 of 2014
B e t w e e n -
FV
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S177 of 2014
B e t w e e n -
GSSC
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S178 of 2014
B e t w e e n -
JARK
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S179 of 2014
B e t w e e n -
KR
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S180 of 2014
B e t w e e n -
MSV
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S181 of 2014
B e t w e e n -
PPA
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S182 of 2014
B e t w e e n -
PP
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S183 of 2014
B e t w e e n -
PS
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S184 of 2014
B e t w e e n -
NVL
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S185 of 2014
B e t w e e n -
PD
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S186 of 2014
B e t w e e n -
PS
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S187 of 2014
B e t w e e n -
PCEF
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S188 of 2014
B e t w e e n -
RR
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S189 of 2014
B e t w e e n -
RK
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S190 of 2014
B e t w e e n -
RK
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S191 of 2014
B e t w e e n -
PV
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S192 of 2014
B e t w e e n -
JK
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S193 of 2014
B e t w e e n -
PM
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S194 of 2014
B e t w e e n -
AMC
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Sydney No S195 of 2014
B e t w e e n -
ASRF
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 FRIDAY, 18 JULY 2014, AT 9.31 AM
Copyright in the High Court of Australia
____________________
MR R. MERKEL, QC: If your Honour pleases, I appear with my learned friends, MR C.L. LENEHAN, MR D.P. HUME and MR J. WILLIAMS, for the plaintiffs in those matters. (instructed by Shine Lawyers)
MR S.P. DONAGHUE, QC: May it please the Court, I appear with MR P.D. HERZFELD for the defendants in each matter. (instructed by Australian Government Solicitor)
HIS HONOUR: Thank you. Before you start, Mr Merkel – if you would sit down, Mr Merkel – I should say to counsel that I have read the plaintiffs’ outline of submissions for the directions hearing, and read of course the defendants’ outline of submissions, and read the plaintiffs’ responses to the request for the plaintiffs to identify what they assert to be the relevant limits to the statutory and non‑statutory powers which, at the last hearing before Justice Crennan, the Solicitor‑General for the Commonwealth said that the Commonwealth relied on or the defendants relied on to support their actions, and read the defendants’ response to that statement.
The plaintiffs have issued a number of summonses returnable this morning seeking various orders about their pleadings, about parties to the actions, about access to documents, about further access to persons who are now plaintiffs in the proceedings or who may wish either to join the proceedings or issue separate or generally similar proceedings. Before dealing with those matters, I want to see if we can deal more directly with some questions about the future conduct of the litigation. Those questions about future conduct of the litigation affect what is to be done with the procedural and other issues that are raised by the summonses.
First, there appears to be no controversy. The plaintiffs in these proceedings and others are aboard a Commonwealth ship, as that expression is defined in the Maritime Powers Act. Second, I do not understand there to be any dispute that the plaintiffs and others are now in the custody of one or more officers of the Commonwealth. Third, the defendants in their outline of submissions filed for the purposes of this directions hearing, describe their “position on the substantive issues that will arise” in the following terms:
(a)maritime officers detained the vessel on which the plaintiffs were travelling towards Australia (the plaintiffs’ vessel) while it was in Australia’s contiguous zone;
(b)they were empowered to do so by s 69 of the Maritime Powers Act and/or the non‑statutory executive power of the Commonwealth;
(c)they were thereafter empowered by s 72 of the Maritime Powers Act and/or the non‑statutory executive power of the Commonwealth to take the plaintiffs to another place, outside Australia;
(d)their power to do so is not fettered by any of the limitations asserted by the plaintiffs, including an obligation to afford procedural fairness or to comply with aspects of obligations under international law which have not been incorporated into Australian domestic law or which do not exist; and
(e)their exercise of the power to take the plaintiffs to another place will be informed by matters including operational matters, Government policy, and relations with other countries, none of which are matters for judicial determination.
Fourth, the defendants submit that the plaintiffs by their pleadings, both as those pleadings now stand and as they would stand if amended in the form proposed, raise a number of factual controversies. The defendants say that those controversies include such matters as whether the vessel on which the plaintiffs were travelling was detained by a maritime officer and even, it seems, whether one or more of the identified plaintiffs was on that vessel. The defendants further point out that the plaintiffs appear to make a number of very generally expressed allegations on grounds for judicial review of the decision to detain the vessel and it may be the decision to detain the plaintiffs for the purpose of taking them to a place outside Australia.
In the first instance, I will be assisted this morning if counsel direct their submissions to whether I can or I should state a case reserving for the consideration of the Full Court what, on the face of things, would appear to be some questions of law presented by the defendants’ stated position on the substantive issues that will arise in the matter. That is, can I, should I act under, for example, section 18 of the Judiciary Act 1903 (Cth) to state a case asking, in effect, whether the defendants’ power under section 72 of the Maritime Powers Act to take the plaintiffs to a place outside Australia is fettered by any of the limitations asserted by the plaintiffs other than those described in paragraphs 2(a) to (d) of the defendants’ statement of position provided this morning, namely:
(a)they –
that is to say the defendants –
accept that the power –
that is the power under section 72(4) of the Maritime Powers Act –
may only be exercised in respect of a person identified in s 72(1) of the Act;
(b)they accept that the power must be exercised in accordance with ss 31, 32, 33 and 41 of the Act;
(c)they accept that the power must be exercised for a proper purpose, having regard to the subject matter, scope and purpose of the Act;
(d)they accept that the power must not be exercised in a manner that does not fall within the bounds of legal reasonableness -
and, continuing with the identification of the questions of law that might be thought to arise, whether the non‑statutory executive power of the Commonwealth is, as the defendants assert “wider than the power given by s 72(4)” of the Maritime Powers Act, in that it is:
(a)not limited by the provisions of the Act –
to which reference has already been made; and –
(b)not limited –
in any of the six respects asserted by the plaintiffs. If I can or should – the questions are distinct – reserve questions of law of that kind for the opinion of the Full Court and state a case whether under section 18 of the Judiciary Act 1903 or otherwise the several factual controversies which the plaintiffs
apparently seek to agitate would not need to be resolved for the purposes of the resolutions of that case they would stand over. They would stand over just as would be the case if, for example, a plaintiff were to demur to a defence filed by a defendant.
The final thing I say before inviting submissions from counsel on this first set of issues is that if a case were to be stated under section 18 of the Judiciary Act or otherwise, it would seem to me that it could be done using only one of the many proceedings that have been instituted and probably then a proceeding in which there is only one plaintiff as the vehicle for the statement of the case, and as I think that counsel may have already been informed, such a case, if stated and reserved, could be listed for hearing at the commencement of the next Full Court sittings of the Court on 5 August 2014. That is a very long preamble.
Yes, Mr Merkel.
MR MERKEL: Your Honour, we at the outset would wish to say that whether it be case stated, demurrer or special case we would ask the Court to hear the matter on 5 August.
HIS HONOUR: The whole matter?
MR MERKEL: I will come to the procedures that we say are appropriate, your Honour, but here whether it be a case – hear such part of the matter or the whole matter as is able to be achieved by any of the three mechanisms available, case stated, demurrer or special case. But your Honour will have seen – can I formally read and file, your Honour, the affidavits of Hugh de Kretser which set out the conditions – the second affidavit sets out the conditions that the people are currently being subjected to on the boat and the position - your Honour, we have not been able to get instructions even for the purpose of today’s ‑ ‑ ‑
HIS HONOUR: Well, before you go into those matters, Mr Merkel, first, you want to seek to read some affidavits.
MR MERKEL: Yes, your Honour.
HIS HONOUR: Sit down. Mr Donaghue, what do you say as to the reading of those affidavits?
MR DONAGHUE: We object to the reading of the second affidavit of Mr de Kretser, which is the one Mr Merkel just mentioned, on two grounds. One, that it is not relevant. It seems to go to the question of the need for expedition and there is no dispute about that. We accept that this proceeding needs to be determined expeditiously. Two, your Honour, it was served very late. It was served after the close of business yesterday and it concerns a range of factual matters that are contested by the defendants in circumstances where we have had no opportunity to put on answering material.
HIS HONOUR: Thank you. Mr Merkel, why should I permit you to read the affidavit at this stage of this morning’s proceeding?
MR MERKEL: Your Honour, can I say I will defer reading it but can I just say, your Honour, it is relevant because it goes to the need for expedition.
HIS HONOUR: Well, if you are deferring reading it we need not debate that, Mr Merkel, but the affidavit has not been read yet.
MR MERKEL: Yes, thank you, your Honour. Can we take it – I will come back to the first affidavit. That relates to procedures. Can I go directly to what your Honour has put to us? Your Honour, when the proceeding was issued, as your Honour I would hope would be aware, the apprehension was of a removal to Sri Lanka. The Maritime Powers Act was something that I think only came into play in the legislative scheme in March. When the affidavit was filed on behalf of the defendants at the return date last Tuesday, the Maritime Powers Act was raised but in terms of the boat was intercepted not detained.
By way of explanation, we have now received instructions since then as to what has occurred in respect of the boat and, your Honour, for the purpose of bringing the matter on for a hearing we see no relevant factual controversy which would impede a special case procedure. The reason for that, your Honour, is that all of the relevant matters are within the knowledge of the Commonwealth and the decisions made within the knowledge of the Commonwealth, the decision record and the purposes are within the knowledge of the Commonwealth as well as any proposal as to where the people may or may not be taken is in the knowledge of the Commonwealth. We had a proposed set of orders, and could I hand them up to your Honour.
HIS HONOUR: Mr Merkel, I invited you to address two questions: can I state a case, should I state a case? I would be grateful if you would direct your submissions to those questions for the time being.
MR MERKEL: Your Honour, the answer is to the first question your Honour can state a case because the questions that your Honour identified are questions directly raised by the proceedings and are clearly necessary stepping stones for determination of the proceedings, but save for an answer down at an extremity of no procedural fairness and a fairly unlimited discretion of the Commonwealth as put out in the last subparagraph of its outline, they will not resolve the case. Addressing the matter of should your Honour state a case ‑ ‑ ‑
HIS HONOUR: What do you mean they will not resolve the case? There will remain unresolved factual controversies?
MR MERKEL: Well, your Honour, unresolved factual issues which we would say are most unlikely in the extreme to be in dispute because we have no basis for disputing the Commonwealth’s record or the Commonwealth’s decision‑making. Your Honour, we would expect the Commonwealth will state what its purpose is for the current situation having arisen, namely the removal of people on the boat from the contiguous zone and remaining on the high seas up to the present time, and the Commonwealth can state what purpose if any it has for being on the high seas, and the Court will determine whether that is a proper purpose.
But with the case stated, your Honour, on the present material before the defence at this stage, we do not know what the factual basis of the Commonwealth’s legal position is, but we apprehend that we would have no dispute whatsoever with the Commonwealth’s full statement of the factual basis for the current position which we would expect it to put in its defence. So addressing your first question, your Honour, yes, you can state a special case, but going to the second question ‑ ‑ ‑
HIS HONOUR: I am not talking of special case. I am talking about the Court stating a case.
MR MERKEL: Sorry, a case stated – yes, sorry, your Honour, I misstated that. Your Honour certainly can state a ‑ ‑ ‑
HIS HONOUR: The point is not unimportant, Mr Merkel, because a stated case would likely proceed on the basis that various statements would be made in the form of the plaintiff asserts and the defendants deny; the defendants assert, the plaintiff denies.
MR MERKEL: I accept that, your Honour. It is our second preferred option that we have an alternative option under the heading of the second question your Honour put, namely, should your Honour state a case. What I would say to that, your Honour, is that my learned friend has not disavowed the prospect of a special case which as an alternative can resolve the whole controversy. Our proposal, your Honour, in our orders that we were going to hand up to your Honour was that this matter should be adjourned until next Friday so that the defendants…..defence and we had proposed that your Honour we suggest a draft of the special case the day after delivery of the defence which is due next Tuesday, the Commonwealth respond to that special case on Thursday, the matter come before your Honour on the Friday to determine which of the three alternative procedures is appropriate for resolution: case stated, special case or demurrer. I suspect the case stated is preferable to the demurrer, so in reality it is either case stated or special case but, your Honour, the special case ‑ ‑ ‑
HIS HONOUR: With a view to getting the matter before a Full Court when?
MR MERKEL: On 5 August, your Honour, because we would - your Honour, the facts in the present…..are within a very narrow compass. Our statement of claim was put on the basis of not knowing what the Commonwealth’s position was because they have not stated yet where they propose to take the people on the boat, why they have taken them to the high seas rather than to Australia, and we would say that the documents we are seeking, which is the record of the relevant decisions, plus the defence, will disclose those matters and we would have no reason to challenge it.
Implicit in, for example, my learned friend’s last point in (e) of the outline, is a suggestion that one of the purposes is government policy and if the policy is stated, your Honour, whether it be to deter others from following this route or whatever the government’s policy is, the Court can then determine whether that fits within the parameters or ambit of the purposes, scope and text of the legislative scheme.
Your Honour, what we are really seeking is the opportunity to defer over until next Friday a decision on a case stated or a special case with the opportunity for us, having seen the Commonwealth’s defence, and your Honour having seen the Commonwealth’s defence, and also for us having seen the decision record as to what, if any, decisions have been made to be able to determine even on the case stated, your Honour, what questions additionally to those that are raised in the absence of the defence might be brought before the Full Court. But either way, your Honour, we are committed to the matter coming ‑ ‑ ‑
HIS HONOUR: I think you should proceed on the assumption that it is by no means certain that if the matter goes over to Friday next that it would be possible to dispose of the matter in the August sittings of the Court. Whether it would be possible I simply do not know. You must order your affairs on the assumption that unless we decide very soon that we are going down the path of a stated case, there is difficulty about putting the matter in to the August sittings, and the fact is there are people in custody.
MR MERKEL: Your Honour, our position is that we would seek at all costs to retain the 5 August hearing. It may be, your Honour, that the appropriate course is to require the defendants to deliver their defence on Monday and bring the matter before your Honour on Tuesday because once we have seen the defence, your Honour, we will be in a position to say what matters or facts, if any, are in controversy. Our problem at the moment, your Honour, is that we are seeking, and it seems entirely consistent with what your Honour is putting to me, we are seeking that as much of this matter can be resolved at that hearing as possible to bring to an end the continuing detention that is occurring with the plaintiffs.
Our concern, your Honour, is that a case stated has a more limited capacity than a special case to achieve it, but we do wish to emphasise, your Honour, that the issue of a special case will not be impeded by factual controversy because we would not expect there to be any once the Commonwealth has stated what the relevant facts are, and if that can be achieved, your Honour, the special case can resolve the whole matter and bring the matter to an end one way or the other after the hearing of 5 August.
That is our strong preference, your Honour, because the defendants in the defence must state to fully disclose the issues the relevant facts and circumstances that exist in respect of this boat including the decisions that have been made that have led to the boat being where it is on the high seas. They must also state what the purpose is, and once that is before your Honour, your Honour will be in a far better position to determine how this matter should be resolved, but in the absence of the defence, even as to decisions and purpose, your Honour, there is a degree of uncertainty but also an aspect that may make the matter hypothetical before the defence.
So we say the delivery of the defence is critical and we would ask that that be brought back to Monday, 5.00 pm, and we are content for the matter to come on back before your Honour as soon as possible after that at a time that could reserve the hearing for 5 August.
HIS HONOUR: Yes.
MR MERKEL: Your Honour, the procedural steps that would enable that would merely require that the decision record be produced, the defence be delivered within a time that your Honour directs and the matter come back before your Honour within a time that would enable the hearing to occur on 5 August under one of the two measures put forward, with the possibility of a demurrer, but that can only be determined after the defence has delivered. With all the faults or complaints about the pleading, your Honour, we say it is a pleading that can be properly pleaded to as a defence on the part of the Commonwealth.
HIS HONOUR: I thought the burden of your submissions was that you wanted to wait to see the decision record before you knew what your complaint really was.
MR MERKEL: We need to see the decision record but we would expect the defence would outline, your Honour, what would be disclosed in the decision record, so the defence and the decision record do not really raise different issues. We have no idea, your Honour, whether a decision was made other than the boat was turned around from the contiguous zone and taken out into the high seas somewhere where it has been since it left the contiguous zone. That is all we know. We would say that for the Full Court to deal with this matter without those facts which are within the knowledge of the Commonwealth and entirely uncontroversial being known would have the risk of this – the questions being asked being hypothetical, your Honour.
HIS HONOUR: There is no hypotheticality at all, Mr Merkel, about the question of power. The ambit of power and question of power is, I would have thought, plainly joined. The Commonwealth assert power as described. Do you deny that power as described? You say it is bounded.
MR MERKEL: Your Honour, I ‑ ‑ ‑
HIS HONOUR: That is not a hypothetical controversy.
MR MERKEL: I accept that, your Honour, but the hypothetical aspect comes up with the Court looking at this without knowing what it is that the Commonwealth has decided and what the Commonwealth’s purpose is. They would be critical elements and very simple elements for determining each of the questions, but not as to whether it has power but whether the power that it has has been exercised and is being exercised unlawfully.
It is that last question, your Honour, that cannot be answered on the case stated and we would ask for the opportunity for that question to be asked because the point really is this, your Honour. If the detention is unlawful, under the Migration Act the Commonwealth can bring the people not as unlawful entrants but as lawful entrants without a visa into Australia. There is a special provision in the Migration Act in section 42 which says that bringing people in under section 72(4) is lawful and does not require a visa.
The real contest, your Honour, ultimately is the basis for the Australian Government to not bring the people into the migration zone in the manner contemplated by the Migration Act operating in tandem with the Maritime Powers Act, but rather, taking them out onto the high seas to a destination for a period and to a place, all of which are unknown.
Now, that issue lies at the centre of the whole case, your Honour, and we would say I cannot see any reason why there would be any factual controversy about that matter once it is stated by the Commonwealth. At the moment, they have not identified any of those matters, so we would say those matters should be critical for a case stated or a special case. Either can be dealt with by the Full Court on 5 August.
We will do nothing to impede that outcome, your Honour, because we accept the matter must be brought to a head in one way or another before a Full Court in this Court because of the significance of the issues, not only for this case which alone would justify, but for the future conduct of what the government is proposing to do to exercise its powers under the Maritime Powers Act.
HIS HONOUR: I had understood that it was your side’s submission, or that your side’s submissions included a proposition that under the Maritime Powers Act plaintiffs could not be taken to a place outside Australia because there is no power to do so.
MR MERKEL: No, we do not say that.
HIS HONOUR: You do not say that?
MR MERKEL: No, we say they cannot be taken to a place where they would be – they cannot be refouled to Sri Lanka ‑ ‑ ‑
HIS HONOUR: That is a question of the ambit of the power that stands regardless of the question of what you have described as questions about lawful exercise of power.
MR MERKEL: Yes, your Honour, but section 72(4) itself says they can be taken to a place in the migration zone or outside of the migration zone. So if New Zealand said tomorrow we will take all these people and accept their claims and determine them we would have no problem with that because that is consistent with the whole international series of conventions upon which we rely.
Our case is that the limitation on the power is that they cannot be refouled or they cannot be sent to a place that does not have the Conventions which Australia has adopted and which we say give protection against refoulement. The case came about because of the threat we perceive to be taken back to Sri Lanka against which the plaintiffs are seeking protection.
But, your Honour, in the circumstances of this case we say that being contiguous to the migration zone, within 27 kilometres of it, under a statutory scheme that has the Migration Act work in tandem with the Maritime Powers Act a critical question is what valid purpose did the Commonwealth have for not taking them to Australia but taking them for now what would be almost three weeks ‑ ‑ ‑
HIS HONOUR: Well, that seems to me to be an argument to say that there is no power to take them anywhere except Australia. Now, is that your case or not?
MR MERKEL: It is not our case, your Honour, to fly in face of the Act. If they have a proper purpose for taking us where they have, which we have not yet determined, then that may or may not fit within the ambit of the Act. Can I just give your Honour an example? They may say we are negotiating with the government of New Zealand to take the people. That may be a legitimate or proper purpose.
HIS HONOUR: Let us not personalise it. They may be negotiating with the government of Ruritania – let us make it perfectly general.
MR MERKEL: Your Honour, they may be negotiating with anybody but if that is the reason for the indefinite detention on the high seas, that is an issue for this Court to determine whether that is within the scope and purpose of the scheme under the Maritime Powers Act associated with the Migration Act.
HIS HONOUR: Let me just understand that a bit, Mr Merkel. Let me just unpick that proposition a bit. The Maritime Powers Act in its terms speaks of power to take, does it not?
MR MERKEL: Yes, your Honour.
HIS HONOUR: Power to take either to a place in the migration zone or to a place outside the migration zone, including a place outside Australia.
MR MERKEL: Yes, your Honour.
HIS HONOUR: For the purpose of taking the person to another place a maritime officer may, within or without, place the person on a vessel and restrain the person on a vessel. Is that right?
MR MERKEL: Yes, your Honour.
HIS HONOUR: Section 72(5). Is it an available construction of 72 of the Act that a person – that there is power to take a person to whom 72 applies to a place outside Australia and to exercise that power - the exact formula may be difficult - but within a reasonable time. Is that right?
MR MERKEL: Yes.
HIS HONOUR: Is it an available construction of the Act that within a reasonable time encompasses not simply sailing time, in the case of a vessel, but also such time as is necessary to agree that the place outside Australia which is the intended destination that the person will be received in that place?
MR MERKEL: It might be an available construction but it would depend on the circumstances.
HIS HONOUR: Its application, of course. No, no, no, Mr Merkel, its application of what is a reasonable time may excite very careful attention and great factual congruency about what is or what is not reasonable time but do you say that was an available construction of the Act?
MR MERKEL: It is an available construction of the Act but whether the circumstances attract that is a different question. Your Honour, can I raise this question? One of the purposes which appears to be potentially a purpose of the Commonwealth, because they have not stated it, is to deter others ‑ ‑ ‑
HIS HONOUR: Well, have a care about speculation, Mr Merkel. I am not going to have this Court used as a vehicle for speculation.
MR MERKEL: Your Honour, it is not speculation. The question of the validity of the reasonable time depends on the purpose. If it is stated to be for that purpose and the circumstances show that that is a reasonable time, that may well be an available lawful use of the detention power under 72(4) and (5). It depends on the purpose, your Honour. At the moment, that is why I say, your Honour, what the decision‑making record is and what the purpose of the Commonwealth is are critical to the questions your Honour has identified.
If the ultimate question of fact is a reasonable time and whether the circumstances fit that then that would be a matter that may have to be referred for a separate hearing if that be the law in this case. But what we are seeking, your Honour, is to have the defence raise that and if it does then both your Honour and ourselves will be better placed to be able to see whether a case stated or a special case procedure is appropriate.
HIS HONOUR: Why should we not try the issue of whether first procedural fairness has to be given before a decision is made to take to a
place outside Australia and second, whether, as your side contends, to speak loosely, the places outside Australia to which a person may be taken are - and this is a very loose description - non‑refoulement places. You understand the laxity of the expression but the content.
MR MERKEL: I hope our position is clear that we agree that by a case stated or a special case those matters should be heard on 5 August and we will do nothing to prevent or impede that. All we are asking your Honour is the delivery of the defence and the matter come back before your Honour to enable that to be determined based on what is raised in the defence because the defence itself may raise other issues that the Court can and should determine either by case stated or a special case. That is all we are asking for, your Honour, because at the moment the Commonwealth has not even on its defence or in this case the hypothetical question your Honour raised with me about what may be a reasonable time but its defence will raise it.
So, your Honour, from our point of view, yes, 5 August should be a hearing date by either case stated or special case. Your Honour will have our co‑operation to ensure that that date is met within the timetable dictated – directed by your Honour. We only ask that a defence be delivered before a decision is made on that because we will then be able to inform your Honour upon the delivery of the defence that we accept one or other of the two proposals and if we accept the special case it will be on the basis of not putting the facts in contention in the defence.
There is no doubt, your Honour, a case stated is more limited than a special case because of the inability of the Court to draw inferences from fact which may be relevant, depending again on the issues raised by the defence. I would ask your Honour that we also get the decision record in tandem with the defence because that, if it exists ‑ ‑ ‑
HIS HONOUR: Those are separate matters. I will come to those procedural questions later, Mr Merkel. I am not cutting you off from making some submission about it but those are separate matters.
MR MERKEL: I think that is a fair statement of the position that we have in this case, your Honour.
HIS HONOUR: Yes. Yes, Mr Donaghue - confining your submissions, of course, to the matter that I have thus far agitated. We have a whole agenda yet to go.
MR DONAGHUE: I understand, your Honour. On the first question, can a stated case be – or can a case be stated under section 18, the answer to that question we say is yes, subject, of course, to the question of how exactly the questions are stated. There may be some of the suggested limits that are raised by the plaintiffs in their table that do not link to an allegation of breach. In the context of those limits there might be a question but I do not want to detain your Honour on that because we submit that ‑ ‑ ‑
HIS HONOUR: I should say to you, Mr Donaghue, that at the moment I think there might be about a dozen paragraphs in the stated case. Questions might be three, four. It is a very small document, at least, in its present form.
MR DONAGHUE: That surprises me not at all, your Honour, and we accept from a question of power that that is, of course ‑ ‑ ‑
HIS HONOUR: I speak of a document of which none of the parties have seen.
MR DONAGHUE: I understand that, your Honour, but it will not surprise your Honour to learn that it is no surprise to us that your Honour has at least been thinking about this possibility as a way of proceeding with the matter. The question we submit, the more important question for your Honour is should you exercise your discretion to proceed in that way. We submit in line with what your Honour has already said to my friend, Mr Merkel, that the governing consideration there must be that here we are talking about a group of people who are detained on a Commonwealth vessel and, therefore, we should, in our submission, be looking to a means that will bring about the speediest possible resolution of the controversy between the parties.
The reason that I start there, your Honour, I would say the obvious one is that if one does go down the path of stating questions as to the legal limits on section 72, there will inevitably be a need, we submit, for a further round of litigation examining the question as to how any legal limits that are identified by the Court interact with the facts as they may ultimately be found. While it is possible that in some respects that question will be ‑ ‑ ‑
HIS HONOUR: It would not be only legal limits of 72 but also questions about non‑statutory executive power.
MR DONAGHUE: Executive power, yes, in both cases, but whatever the limits that the Full Court identifies one then needs to apply them. In some respects we submit that will be a straightforward task. For example, Mr Merkel says section 72 does not apply at all because the vessel was never detained. We submit we will satisfy a court fairly readily that that particular limitation was not a problem.
But in some respects the position is a little more complicated because take, for example, the allegation of legal unreasonableness in the exercise of the power which is made in multiple places in the proposed pleading. For the Court to say if this is ultimately what the Full Court – sorry, your Honour, I withdraw that. We have accepted that there is a limit on the power in our document that we provided to your Honour that the power cannot be exercised outside the bounds of legal reasonableness. The issue is what that means in the particular context of this case. That is a matter that would be likely to involve a hotly fought factual dispute.
HIS HONOUR: Why?
MR DONAGHUE: Well, because ‑ ‑ ‑
HIS HONOUR: First, it would be necessary for the plaintiff to identify, in effect, by reference to what? The decision is - if, as I understand the defendants’ position to be, if a Full Court decided the defendants were right, that they have a choice to take within or without Australia and that that choice is not bounded by non‑refoulement ideas where then do questions of reasonableness arise. That is, as you say, a matter for another day.
MR DONAGHUE: Indeed, your Honour, and we say ‑ ‑ ‑
HIS HONOUR: But is it not a matter which is better informed by knowing the ambit of the power to the extent to which you can?
MR DONAGHUE: To the extent to which you can and to the extent at which there is disagreement but I raise that one because that is an admitted limit which is asserted against us. We, of course, say there was no transgression of that limit but unless the plaintiff wants to give that allegation away there will be a fight about that down the track. Procedural fairness is another example. It may be that the Court could find as a matter of law that procedural fairness does limit the powers under the Maritime Powers Act.
HIS HONOUR: But relevantly the question would be, would it not, not procedural fairness generally but should a plaintiff, a person concerned, to whom 72 applies, be heard before a decision is made. Would that not be the procedural fairness issue? Would there be any broader one?
MR DONAGHUE: I am not sure in the formulation your Honour has just used whether the question of should they be heard embraces a question of the content of procedural fairness in respect of any such hearing but it might be that even if procedural fairness is not excluded by the Maritime Powers Act that in the particular factual circumstances of the case, bearing in mind that one is on a vessel outside Australia’s territorial sea and one, in a context where the question might be one thought to be informed by matters of international relations and issues of that kind, it may be that as a matter of content procedural fairness has no operation in respect of this particular group of plaintiffs.
Now, that is obviously a factually intense question and we submit that the Court could decide whether or not procedural fairness has been entirely excluded by the Act undoubtedly on a stated case but that to know that it is not excluded even if the Court answered the question in that way would still leave a real fight to be had.
HIS HONOUR: Be it so that there are those fights and perhaps other fights, what follows from that observation?
MR DONAGHUE: Only this, your Honour, if the plaintiffs seek to maintain their existing pleading that throws up all of these issues instead of tying it down to say a case about the non‑refoulement obligations or matters of that kind, then we submit that it is simply not right for Mr Merkel to say that there is any real prospect of an agreed – special case allowing this case to resolve everything and if that is right then the only way in which there could be a single hearing that resolves all of the issues in the case subject, of course, to possible appeal would be to remit to the Federal Court and run the whole case there.
HIS HONOUR: Do you urge that?
MR DONAGHUE: Yes, if the plaintiff ‑ ‑ ‑
HIS HONOUR: You urge, do you, that the Court should remit the matter to the Federal Court?
MR DONAGHUE: If the pleading is to be maintained in the form that Mr Merkel presently proposes we see that as the only way of achieving a reasonably expeditious outcome.
HIS HONOUR: With what outcome, Mr Donaghue? It goes to the Federal Court. It is tried – (a) when is it tried; (b) what happens after trial?
MR DONAGHUE: Well, your Honour, who knows what happens after trial.
HIS HONOUR: Appeal to the Full Court of the Federal Court? Appeal from the Full Court of the Federal Court to the High Court? What time are we talking about, Mr Donaghue? How many months?
MR DONAGHUE: Your Honour, if the matter is remitted to the Federal Court we, as I have said, accept that an expeditious hearing would be appropriate and we would not be standing in the way of that in the Federal Court. I, of course, cannot rule out the possibility of appeals but it is not certain that the matter would not lie where the resolution fell in the Federal Court. It might depend on ‑ ‑ ‑
HIS HONOUR: On a question of the construction of 72 of the Maritime Powers Act and non‑statutory executive power the matter would lie where it fell? Oh.
MR DONAGHUE: It did ultimately in the Ruddock v Vadarlis litigation, your Honour. It went to the ‑ ‑ ‑
HIS HONOUR: No, it came here on leave and leave was refused because the matter by then was moot. The parties should refer to the transcript of the proceedings in Vadarlis v Ruddock in 2011.
MR DONAGHUE: I understand that that is what happened, your Honour, but that illustrates that the facts may not lie still while – your Honour, I am not putting this forward as the best option. The problem is that the plaintiff having ‑ ‑ ‑
HIS HONOUR: What is the best option the Commonwealth parties put forward, Mr Donaghue? This is not the best option? What is the best option you are advancing?
MR DONAGHUE: The Commonwealth parties have to respond to the case that is being made against them. If the case that is made against them is a case that involves contested factual allegations, the contested factual allegations have to be resolved. Even if this Full Court answered, the Full Court of this Court answers the stated case and then we have another round of factual litigation, unless that is to happen in this Court there is always a possibility of appeals on the application of the legal principles stated by this Court to the facts. So there remains a possibility that there would be the appeals that your Honour is putting to me in any event simply following whatever period of time it has been necessary to resolve the matters in this Court.
So, perhaps the best option would be for Mr Merkel, as we have said in writing, to look at his pleading again and if he says that they are really not putting in issue factual matters, to give the Court a pleading and the defendants a pleading that genuinely raises legal points and then the case could, perhaps, be resolved in its entirety in this Court. But that is not the pleading we have at the moment. The pleading we have raises a raft of matters that mean that we are not going to know what the ultimate outcome of the litigation is if the matter is bifurcated and we submit that that is a significant matter that bears your Honour’s discretion.
The other point, your Honour, that I should make by way of identifying the difficulty we have with pleading is perhaps illustrated by a couple of exchanges your Honour had with Mr Merkel this morning. Mr Merkel put to your Honour ‑ ‑ ‑
HIS HONOUR: I am not running a pleading summons at the moment, Mr Donaghue.
MR DONAGHUE: No, I appreciate that, your Honour, but this is a point of significance, in my submission. Mr Merkel, your Honour, will recall said there is a particular provision in the Migration Act that means that the plaintiffs could have been brought to Australia without them being unlawful and he referred to section 42 – the provision, I think, he has in mind is 42(2A). It is a recent subsection that was added by the Maritime Powers Act.
It is correct to say that the Migration Act would have allowed people to be brought to Australia consistently with section 42 if section 72 of the Maritime Powers Act applies. But Mr Merkel’s case is that section 72 of the Maritime Powers Act does not apply, so he said that essential issue in the case is – and we are just at a loss to know.
HIS HONOUR: Look, you may say justice without justice, I do not know, that the pleading against you is a shotgun pleading. Be it so, can we get round the procedural issues and get on and deal with the real substance of the case.
MR DONAGHUE: If we can, your Honour, yes, if we can but the question of what the limits really are and that the unreasonableness one your Honour discussed with Mr Merkel is another example. We read the pleading as saying the only available decision was to bring the plaintiffs to Australia. That is what is seems to say to us. Mr Merkel denies that. Is that an issue in the case or not? Once we know that, then whether or not the Court can state a question that identifies the relevant limits might be – so I am not seeking to put procedural obstacles in your Honour’s way. If the issue in the case is the one about the refoulement limits on – then that we understand. I should say to your Honour in that particular context that I have this morning received instructions from the Minister to say this to your Honour. The Commonwealth would not and has no plans to involuntarily release any of the persons directly from our vessel to Sri Lanka.
HIS HONOUR: Yes.
MR DONAGHUE: But we submit that undesirable as the position is if there is to be both a debate about the nature of the legal limits and a debate about how any facts that are ultimately found or…..legal limits the need for both of those questions to be resolved ultimately to bring this matter to an end suggests that unless the case is significantly repleaded and confined it should be remitted.
HIS HONOUR: Mr Merkel’s response to that, as I best understood it, was that all will be resolved if your side produces some documents. Is there going to be some fight about what documents are to be produced?
MR DONAGHUE: Yes, your Honour. The difficulty is this - and it relates not just to the question of document production but also to Mr Merkel’s suggestion about the defence. On my instructions, some of the matters that Mr Merkel is seeking to have us identify in the defence and the document will be the subject of…..immunity claims and so the clarity that he seeks will not be forthcoming unless those claims are litigated and decided against the Commonwealth. That is a further impediment, we submit, to the kind of timetables that Mr Merkel has in mind. Obviously, we will do everything within our power to enable those matters to be litigated as quickly as is necessary and whatever court it ends up being appropriate to have them litigated but they are issues that are there and it will need to be decided.
HIS HONOUR: What then is to happen to the plaintiffs while this litigation is conducted?
MR DONAGHUE: Your Honour may or may not be aware that last night the Commonwealth gave an undertaking in terms that are recorded in correspondence but I can read out to your Honour. But perhaps before I do that the short answer, your Honour, is that my instructions are that the Commonwealth’s intention is that subject to a resolution involving the taking of the plaintiffs to a third country, they will remain on the Commonwealth vessel until the litigation is finally disposed of which is why – it is one of the reasons why it is obviously desirable to bring this to an end as quickly as can be achieved.
But the undertaking that was given is that the defendants undertake, without admission, that unless and until a plaintiff or member of the class as defined in paragraph 1 of the nature of claim, each plaintiff enters the migration zone as defined in the Migration Act 1958 the defendants will not, without that plaintiff’s consent, hand over that plaintiff to the custody of any foreign government or officers or agents of a foreign government without first giving 72 hours written notice.
HIS HONOUR: That is an undertaking as between parties. It is not and I do not understand it to be proffered as any undertaking to the Court. This is an undertaking as between parties.
MR DONAGHUE: I am reading, your Honour, what the letter said.
HIS HONOUR: Thank you, I just do not want there later to be some misunderstanding of the status of what has occurred. It is an undertaking as between the parties.
MR DONAGHUE: That is correct. Unless I can assist your Honour further?
HIS HONOUR: When can you put on your defence?
MR DONAGHUE: Subject to the public interest immunity issue – your Honour, it will raise the public interest – we can put on a defence that contains that, although I should say your Honour that assumes that we have to plead to this pleading and as your Honour knows we object to that. Your Honour has, in our respectful submission, in some respects the very fact that the Court felt it necessary to ask for the plaintiffs to produce a document of the kind that was requested demonstrates the same difficulty that we have with the pleading.
HIS HONOUR: It has happened, all right? The plaintiffs are now bound, I would have thought, by what they have said.
MR DONAGHUE: But we cannot plead to that, though, your Honour. We have to ‑ ‑ ‑
HIS HONOUR: Look, I am not going to let this case devolve into a procedural morass. There has to be some sense shown about it.
MR DONAGHUE: But a defence may not ultimately advance the position, your Honour. If your Honour is going to state a case identifying particular questions then that could be ‑ ‑ ‑
HIS HONOUR: Maybe. When can you put on your defence?
MR DONAGHUE: Tuesday, I think, your Honour, is the ‑ ‑ ‑
HIS HONOUR: I know that is what is presently fixed. I am asking you by when can you do it – 12 noon Monday is a time which is spinning in my mind.
MR DONAGHUE: Your Honour, I very strongly urge you to give us at least until the end of Monday that the process ‑ ‑ ‑
HIS HONOUR: 4.00 pm, Monday.
MR DONAGHUE: That there is a complex process involving the obtaining of instructions in this matter.
HIS HONOUR: There are people in custody.
MR DONAGHUE: I understand, your Honour, and if your Honours order is 4.00 pm Monday then we will do it but ‑ ‑ ‑
HIS HONOUR: My question, Mr Donaghue, was when can you put on your defence? What answer do you make?
MR DONAGHUE: Your Honour, I do not think I can give your Honour an answer different than Tuesday without seeking instructions.
HIS HONOUR: We will return to that subject presently. Those instructing you should seek those instructions now.
MR DONAGHUE: Yes, your Honour, I understand that.
HIS HONOUR: At what time would it be possible for the parties to consider and produce not a special case, not I say a special case, in which the plaintiffs and defendants put forward the whole of the litigation but, rather, a section 18 stated case confined to the questions of ambit of power?
MR DONAGHUE: Are we starting that document cold, your Honour?
HIS HONOUR: No. Let me give you some indication of what might or might not be found in such a document. First, it would be a stated case in one action, an action by a single plaintiff; it would be by a single adult plaintiff. Paragraph 1, the plaintiff claims to be a person of Tamil ethnicity and Sri Lankan nationality. Paragraph 2, the plaintiff claims to have a well‑founded fear of persecution for a Convention reason and to be a refugee within the meaning of the Convention, et cetera, the Refugees Convention.
MR DONAGHUE: Claims to have that fear in Sri Lanka.
HIS HONOUR: Sorry?
MR DONAGHUE: Claims to have that fear in Sri Lanka.
HIS HONOUR: Yes. Paragraph 3, the first defendant – that is the Minister – is and was at all material times an officer of the Commonwealth within the meaning of 75(v), a Minister of State appointed under section 64, the Minister responsible for administering the Maritime Powers Act 2013 (Cth) and the Migration Act 1958 (Cth). Paragraph 4, the plaintiff was a passenger on a vessel which left Pondicherry, India on or about 13 June 2014.
Paragraph 5, on or about 29 June 2014 in Australia’s contiguous zone as defined in section 8 of the Maritime Powers Act a maritime officer within the meaning of section 104(1) of the Maritime Powers Act (a) boarded the vessel referred to in paragraph 4, and (b) required the plaintiff and others aboard the vessel to go on board a Commonwealth ship within the meaning of section 8 of the Maritime Powers Act.
Paragraph 6, since going on board the Commonwealth ship the plaintiff has been and remains contained on that ship in the custody of an officer of the Commonwealth. Paragraph 7, the defendants assert and the plaintiff denies that the plaintiff is and was at all material times a person to whom 72 of the Maritime Powers Act applies.
MR DONAGHUE: I do not want to interrupt your Honour’s run - has your Honour deliberately not referred to the question of whether the ship was detained?
HIS HONOUR: I have passed by that, at least for the moment.
MR DONAGHUE: Yes.
HIS HONOUR: It may be it has to go in. It was in in various drafts. It dropped out at various points. Paragraph 8, the plaintiff asserts and the defendants deny that in the events that have happened the power given by 72(4) of the Maritime Powers Act to take a person to whom 72 of that Act applies to a place in the migration zone or to a place outside the migration zone, including a place outside Australia, cannot lawfully be exercised (a) to take the plaintiff to any place outside Australia – I interject by saying I had understood that to be a part of the plaintiffs’ case, it may be that it is not - alternatively, (b) to take the plaintiff to any place outside Australia where the plaintiff would not be entitled by the law of that place to protection (i) in accordance with the requirements of the Refugees Convention and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984, from refoulement to Sri Lanka.
MR DONAGHUE: Your Honour said “the law of that place”.
HIS HONOUR: That is the place – to take the plaintiff to any place outside Australia where the plaintiff would not be entitled by the law of that place; that is, the place outside Australia to protection in accordance with.
MR DONAGHUE: Yes. I am asking your Honour because I understand the case against us to be by the international law that governs that place, rather than the domestic law of that ‑ ‑ ‑
HIS HONOUR: It may be that the question has to be shelled out further.
MR DONAGHUE: Indeed, yes.
HIS HONOUR: That is why, as I say ‑ ‑ ‑
MR DONAGHUE: I am just seeking to avoid any misunderstanding but, yes.
HIS HONOUR: Yes, I understand that. Subparagraph (ii) would be in accordance with the requirements of the ICCPR against Torture or Cruel, Inhuman or Degrading Treatment or Punishment and against Arbitrary Arrest or Detention. I think I have tried to capture the relevant international instruments, except for the Convention on the Rights of the Child, hence my reference to an adult plaintiff. If these apply, I would have thought CROC applies. If these do not apply, well, the plaintiffs may have some separate case about CROC; it is not yet immediately apparent to me what it would be but, again, I flag it. Going on with the draft – and in any event, (c) without first hearing the plaintiff about to what place he is to be taken. That is the procedural fairness point. It may be that it is larger.
Now, 9 may require some amendment in light of your more recent document ‑ the defendants assert and the plaintiff denies that in the lawful exercise of the executive power of the Commonwealth the defendants may take the plaintiff to any place outside Australia (a) regardless of whether by the law of that place the plaintiff would be entitled to protection of any of the kinds described in paragraph 8(b), that is, the non‑refoulement type points and (b) without first hearing the plaintiff about to what place he is to be taken.
Now, there would then I think have to be at least a statement along the lines of the defendants have not given, and subject to any contrary order will not give, the plaintiff any opportunity to be heard about to what place he will be taken. That is, I think I would have to somehow set up the joinder of issue about procedural fairness, and at the moment the joinder of issue that I set up is obviously designed by reference to the statement of the obligation that is asserted so there would have to be some marriage carefully considered between the two of those.
The questions which then follow I think may or may not be sufficiently captured along the lines in the events that have happened and are described, or in the circumstances described or some qualifying interactory rubric of that kind. One, does the Maritime Powers Act authorise a maritime officer to take the plaintiff or cause the plaintiff to be taken to some or any place outside Australia; two, if no to one, does the non‑statutory executive power of the Commonwealth authorise an officer of the Commonwealth to take the plaintiff or cause the plaintiff to be taken to some or any place outside Australia, and then the procedural fairness issue I think would have to be captured by something along the lines would a decision of a maritime officer to take or cause to be taken to a place outside without first providing the plaintiff with a reasonable opportunity to be heard about the place to which he is to be taken be invalid.
Now, that is anything but intended as a last word. It is intended as no more than the most preliminary first word about the form of a stated case. What it does not capture at the moment, and it might usefully be amended to capture, is at least the undisputed limits on the 72 powers. Your side, as I said in my unduly lengthy preamble, accepts that there are some limits on the 72 powers. They say those limits do not apply to non‑statutory executive power, I think, and none of the plaintiffs’ asserted limits apply. I think I sufficiently captured the idea. Those ideas are not yet, I think, sufficiently encompassed in that draft, but the factual footing for the presentation of the questions is, I think, not much more elaborate than that.
MR DONAGHUE: Your Honour, in respect of the formulation of the questions, as I understood it, they are formulated as does the Maritime Powers Act, for example, authorise the plaintiff to be taken. A question in that form, in our submission, would appear to involve the application of the conclusion reached to facts that would not be before the Court on this hypothesis.
HIS HONOUR: It may invite a speaking answer. What it is intended to capture – and maybe the question does not adequately capture it, Mr Donaghue, I am not to be taken, as I say, wedded to this formulation – what it is intended capture is an answer that says, in effect, yes, it does without regard to the asserted limits, or no it does not, because it is limited by reference to the asserted limits.
MR DONAGHUE: But it is not intended, as I understand the proposal, to require – the limit having been identified – as then to say, well, this power is subject to procedural fairness, or it does not authorise the taking to a country where there would be a refoulement risk, to use that loose expression. It is not intended to apply that answer to the plaintiffs’ case.
HIS HONOUR: No, it is intended to be a question of law.
MR DONAGHUE: Law only.
HIS HONOUR: Law only, that is why it is ‑ ‑ ‑
MR DONAGHUE: Excepting the need then for the second stage, to which I referred earlier.
HIS HONOUR: Plainly so.
MR DONAGHUE: Yes.
HIS HONOUR: If this is to be adopted, it is a section 18 stated case, and that is reserved questions of law.
MR DONAGHUE: With no facts as described beyond the particular paragraphs.
HIS HONOUR: Hence the adoption of this awkward formula, one side asserts, the other side denies.
MR DONAGHUE: Yes.
HIS HONOUR: It is, in effect, to set up in the form of a stated case what would be a demurrer.
MR DONAGHUE: Well, your Honour, we are certainly content to negotiate with our friends about the form of that, as your Honour said. We might wish to suggest that there is a need to vary some parts of the document, and we may have ‑ ‑ ‑
HIS HONOUR: Not in the least surprised. I would be astonished if you were not.
MR DONAGHUE: There is also, it seems to me as I stand here, some possibility that procedural fairness may present some difficulties in incorporation into this approach, but we will do what we can in terms of negotiating with our ‑ ‑ ‑
HIS HONOUR: Well, just as to the procedural fairness – and again I do not invite a comment from you – it does seem to me that at – I was going to say at its core – a large part of the complaint is that the plaintiffs say you should hear us before you tell us where you are going to take us. We should be able to say do not take us to country A, B, C, D, E, or do take us to country Z, but hear us before you decide you are to be taken to a place outside Australia. Now, that argument is good or bad, but it seems to me to be an argument that the plaintiffs are advancing and it is one which I think can be shelled out and usefully treated as a question of law. Whether I have achieved that ‑ separate question.
MR DONAGHUE: Yes. The point I am seeking to reserve, at least for the moment, your Honour, is whether the defendants would accept that, because we might say that in some context under the Maritime Powers Act there would be such an obligation, but in other – in fact, because of differences of fact, that obligation may not exist, it may not be feasible on a particular vessel in a particular place to – having regard to all of the surrounding circumstances, to afford that opportunity.
HIS HONOUR: Well, I did fling in the words, I think, “reasonable opportunity to be heard” and ‑ ‑ ‑
MR DONAGHUE: It may be that that sort of answer reserves to the factual debate to the second stage of the ‑ ‑ ‑
HIS HONOUR: Just so. Now, yes, I know this is two stage, section 18 stated cases are always two stage, but ‑ ‑ ‑
MR DONAGHUE: Your Honour, I have been instructed we can do a defence by 4.00 pm on Monday, if that is acceptable to your Honour.
HIS HONOUR: Then do I need to make any formal order amending the time or is it sufficient that you inform me that you will file and serve on or before 4.00 pm Monday?
MR DONAGHUE: Your Honour, if your Honour is against us on the question of the amendment application such that the plaintiff will be given leave to amend to put their statement of claim in that form then I will just undertake to your Honour that we will do that on behalf of ‑ ‑ ‑
HIS HONOUR: Yes. Is there anything else you want to say on this aspect of the matter? We have not even got to the various summonses that are alive yet, Mr Donaghue.
MR DONAGHUE: No, your Honour, save just to say that with respect to that defence I ‑ just so there is no lack of clarity – it is likely that that defence will assert that it is not possible to plead to particular allegations because of public interest immunity, but if your Honour – at present I cannot see any way around that and we will have to put on the material in due course but we will, if your Honour is content, cross that bridge when we come to it if we can.
HIS HONOUR: No, I simply hear what you say. You should not ascribe any sense of contentment to me at all.
MR DONAGHUE: Your Honour, I was not seeking to do that.
HIS HONOUR: No.
MR DONAGHUE: It may be that the negotiations over the stated case that your Honour – pathway that your Honour is referring to will mean that it is not necessary to conclusively resolve any public interest immunity issue in advance of the track that takes us towards a Full Court operating.
HIS HONOUR: If we are to head down these paths, to get it on on 5 August means that timetables have to start running very, very soon. Let me just flag for you, when I can find it, the kind of timetable that we would need to follow. I have looked at a timetable and I am sending for that now, but time is running and the parties would have to be ordering their affairs on the assumption that the times allowed will be very short.
MR DONAGHUE: We understand that, your Honour.
HIS HONOUR: Yes. Now, does any of this suggest – it may be this is a question better addressed to Mr Merkel rather than your side, Mr Donaghue, though you should hear it – does any of this suggest that I should stand it over until Tuesday morning – stand the further directions over till Tuesday morning?
MR DONAGHUE: Yes. Well, by that time, your Honour, we will have filed a defence and we may have reached an advanced or final position on a proposal to put to your Honour with respect to the stated case.
HIS HONOUR: Because it would have to be on the footing I think that parties’ proposals about draft stated case would have to be filed no later than 4.00 pm Monday, with a view to directions happening on Tuesday, because the timetable that we would have to have I think is if I deal with submissions first, submissions by the plaintiffs or the plaintiff concerned, 12 noon Monday, 28; defendants’ submissions 4.00 pm Wednesday, 30; reply 12 noon Friday, 1; and preparation of a book, special case book, stated case book, whatever form the book is taking, probably 4.00 pm Thursday, 24.
MR DONAGHUE: Could I urge your Honour ‑ on that timetable our friends have as long to reply to our submissions as we have to reply – to file their reply as we have to reply ‑ ‑ ‑
HIS HONOUR: Yes, they do, do they not?
MR DONAGHUE: Could we have one day of that so they had a day to reply to our substantive submissions rather than two, in my submission?
HIS HONOUR: What, 12 noon ‑ ‑ ‑
MR DONAGHUE: Yes, 12 noon, 31, yes.
HIS HONOUR: 12 noon. Anyway, all I am doing is flagging the kinds of directions that we would have to undertake if we are go down the 5 August path.
MR DONAGHUE: I anticipate that, your Honour, and that is why we said in our submissions that we thought that there were – it was an ambitious endeavour, understanding the reasons for seeking to achieve it on the case ‑ ‑ ‑
HIS HONOUR: It is never to be forgotten, Mr Donaghue, that the events that led to Patrick Stevedoring v MUA occurred, there was litigation in all three levels of the judicial system of this country, up to and including judgment in this Court, within one calendar month. The parties are just going to have to bend their back to get on with it.
MR DONAGHUE: I understand that, your Honour, and the timetable you are putting to us we likewise understand.
HIS HONOUR: Now, Mr Merkel ‑ I think Mr Donaghue is having his gown notionally tugged – no, he is not. Mr Merkel, what am I to do?
MR MERKEL: Your Honour ‑ ‑ ‑
HIS HONOUR: You heard the debate, where do I go?
MR MERKEL: Yes. The suggestion we would make, your Honour, subject to one question concerning the decision record, which we can put that to one side for the moment, is that the ‑ ‑ ‑
HIS HONOUR: You speak of this as the Holy Grail. I wonder whether the Holy Grail even exists, Mr Merkel. Anyway, yes.
MR MERKEL: Your Honour, we would be just as comforted if it did not exist.
HIS HONOUR: Yes.
MR MERKEL: That would mean no decision has been made, but that is the way it is.
HIS HONOUR: Yes.
MR MERKEL: But if there is no decision that will raise its own set of questions.
HIS HONOUR: Yes.
MR MERKEL: We just will be comforted by knowing what decisions have been made or have not been made.
HIS HONOUR: Yes.
MR MERKEL: Can I say this, your Honour? If your Honour could possibly give us the thoughts that your Honour had in writing so we can start working together on those forthwith ‑ ‑ ‑
HIS HONOUR: That is what junior solicitors are for, Mr Merkel, to scribble down what the judge said, but, yes, all right, you can have a rather scrappy draft on terms. I do not want there to be some misunderstanding about this, and particularly amongst those who are instructing either side of this. These were idle thoughts put together in anticipation with a view to trying to see the nature of the problem. They are not to be taken as some pre‑statement or predetermination of what is going to happen ‑ ‑ ‑
MR MERKEL: We appreciate that.
HIS HONOUR: ‑ ‑ ‑ and I do not want that misunderstood, but, yes, you will see a couple of other stray – no, you will not see another couple of stray paragraphs, there will be a revised draft given to you. Yes.
MR MERKEL: Yes, thank you, your Honour. Can I just indicate to your Honour, this is a matter for negotiation between us, but the detention for taking is a critical element of the taking because ‑ ‑ ‑
HIS HONOUR: Well, you cannot take without ‑ ‑ ‑
MR MERKEL: Detention. I just say that, your Honour ‑ ‑ ‑
HIS HONOUR: It seemed to me that you cannot – it is a power to take if it is there and that requires more than just making arrangements for going.
MR MERKEL: Correct, and also, your Honour, the other aspect is it is a critical element of our procedural fairness case that it occurred – that we could be taken to a place with informed consent but I think your Honour’s formulation captures the procedural fairness fairly well.
HIS HONOUR: Well, again, Mr Merkel, if your complaint is this, as I have described it, for pity’s sake let somebody write that down and inform the defendants of that so that the Commonwealth is not boxing at what rightly or wrongly it says, look, there are these shadows over here.
MR MERKEL: Yes, thank you, your Honour, we will do that. Your Honour, given that the defence will be delivered on 4.00 pm, Monday, I think as your Honour indicated it was to be stood over till first thing Tuesday, we would ask if it be stood over till 2.15 Tuesday unless I misunderstood what your Honour had in mind.
HIS HONOUR: I will stand it over till noon Tuesday but I am – yes, I know you have to have time to think about it, and I understand that, but I have to keep this thing turning because if at the end all this proves not possible and I have to – as the Commonwealth says – remit it, say, well, we have lost another four days, have we not, and four days are four days.
MR MERKEL: Yes, we are content with noon on Tuesday, your Honour. Your Honour, that really leaves one element. There are two key issues for us which are in the Commonwealth’s knowledge and could not be contentious, that is, the decision record, the decision in respect of this boat and these plaintiffs and the purpose of the continuing detention. We apprehend from correspondence we have had that it may be those two issues that public interest immunity is going to be claimed for. What we would ask your Honour to do is to allow our notice to produce under section 77E of the Judiciary Act in respect of just two categories of documents which were in our submissions.
One is, any record of the decisions pleaded in paragraph 46 of the statement of claim and any documents before the relevant officer for the purpose of making those decisions and that they be produced by 4.00 pm together with the defence on Monday but also a direction, your Honour, if public interest immunity is to be claimed for those documents that an affidavit claiming it be filed because, with respect, looking at the law in Sankey v Whitlam and the Northern Land Council and other cases, it is very difficult to see how public interest immunity could be claimed for those documents, but if it is, your Honour, it is something that ought to be determined because they lie at the heart of every issue of the case and we would say if the claim is to be taken that should be on the record. There may be an opportunity…..that the special case, your Honour, the special case could always be amended or added to but the special case will proceed on Tuesday, your Honour.
HIS HONOUR: I remind you, Mr Merkel, I am not talking special case, I am talking ‑ ‑ ‑
MR MERKEL: Sorry, case stated, your Honour, it must be a Freudian slip about where I started from, your Honour…..back to it. The case stated could always be added to or amended but that will not affect the hearing, your Honour, but the idea that the decision record could not be discovered or produced in this proceeding on the grounds of public interest immunity itself raises a question of great significance.
HIS HONOUR: Why should I go beyond simply noting that you have said what you have said and await developments on Tuesday?
MR MERKEL: Monday at 4.00 pm would be the date but we would ask your Honour that the notice to produce be allowed to be returnable by 4.00 pm on Monday, your Honour. It is just those two subparagraphs of our submissions.
HAYNE J: The notice to produce is given under what?
MR MERKEL: Section 77E of the Judiciary Act, your Honour.
HIS HONOUR: What exactly is it that you are asking me to say or do?
MR MERKEL: To produce, your Honour – can I just hand up ‑ ‑ ‑
HIS HONOUR: I am not producing anything. What exactly is it that you are asking me to say or do?
MR MERKEL: We are asking your Honour that you order the defendants to produce two categories of documents: (a) any record of the decisions ‑ ‑ ‑
HIS HONOUR: Just a moment, order defendants to produce on or before when?
MR MERKEL: At 4.00 pm on Monday.
HIS HONOUR: Go on.
MR MERKEL: Any record of the decisions pleaded in paragraph 46 of the statement of claim.
HIS HONOUR: Paragraph 46 of the statement of claim.
MR MERKEL: Yes, your Honour, and (b) any documents before the relevant officer for the purpose of making those decisions.
HIS HONOUR: Yes, that is the application.
MR MERKEL: That is the application, your Honour.
HIS HONOUR: Yes, I will come and deal with that presently and hear Mr Donaghue on that application presently before I turn to it. Is there any reason for me today to embark upon anything further than the question of leave to amend the plaintiffs’ statements of claim?
MR MERKEL: Would your Honour just excuse me for a moment. We would be asking your Honour for continuing access to the clients to inform them as to the process before the Court and to get instructions concerning any matters that may be relevant, your Honour, but we would just ask for normal solicitor/client access under a regime that has been agreed to to date and worked without difficulty with the Commonwealth.
HIS HONOUR: Then if there has been an agreed regime, why should I embark upon any of these issues, Mr Merkel? Unless there is some request and refusal, why should I embark upon any of these?
MR MERKEL: We would not be troubling your Honour if there was any problem. The Commonwealth has been asked for the continuation of this access and has refused it.
HIS HONOUR: I had understood the evidence to be slightly different, Mr Merkel, but perhaps I again will hear Mr Donaghue. I had understood, no doubt wrongly, that there had been requests to contact persons other than the particular plaintiffs, but ‑ ‑ ‑
MR MERKEL: Your Honour, maybe that could be something that my learned friend and I can discuss if there is some misunderstanding ‑ ‑ ‑
HIS HONOUR: I would have thought it should be, Mr Merkel, and I am surprised that you would think it right to raise it, but there we are.
MR MERKEL: We had understood there had been a blanket refusal but if we are wrong, your Honour, either way we will discuss it.
HIS HONOUR: Well, really, sort it out.
MR MERKEL: Yes. Your Honour, there is the other matter of the interim position about the undertaking, if we could also have that stood down to discuss between us.
HIS HONOUR: There is an undertaking between parties, I understood.
MR MERKEL: No, it was expiring at 4.00 pm today and our learned friend has offered an undertaking late yesterday which we have not had the opportunity to discuss.
HIS HONOUR: Again, Mr Merkel, either you are hearing something different from Mr Donaghue, from me, or there is some radical misunderstanding. Sort it out.
MR MERKEL: We have asked to discuss it ‑ ‑ ‑
HIS HONOUR: Yes. Questions of joinder of plaintiff surely should stand over.
MR MERKEL: Yes, your Honour.
HIS HONOUR: Questions of vehicle, the vehicle I have in mind for dealing with this is SAS. Is there any reason why SAS should not be chosen as the relevant vehicle? I do not want to use the multiple party proceeding.
MR MERKEL: Your Honour, can I just…..problem with SAS, but we will agree with our friend on a – I think SAS may be, as it turns out, underage, but we will find an adult that ‑ ‑ ‑
HIS HONOUR: Then find an adult plaintiff.
MR MERKEL: We will find an adult. There is no problem with that, your Honour. That again will be discussed with our learned friend.
HIS HONOUR: Next can we get the title of these proceedings right. I had understood Justice Crennan to require that the proceedings be entitled by the plaintiffs’ initials and that is the fashion in which they have been listed in the Court list today. Can we follow that, not invent our own titles please.
MR MERKEL: We ascertain that. I had thought the Court had given S147 numbers through to the ‑ ‑ ‑
HIS HONOUR: Sure, it has given numbers, but I had thought Justice Crennan had directed initials but, again, can we just get it right, sort it out.
MR MERKEL: Yes, we will, your Honour. I think that would only be leave to amend the claim in the form that was delivered. Your Honour, there are some typographical amendments which we have cleared up and we will give to our learned friends but we would ask for that leave and that be included too.
HIS HONOUR: Now, the latest version we introduce is habeas?
MR MERKEL: Yes, your Honour.
HIS HONOUR: You have heard and read the criticisms of that statement of claim.
MR MERKEL: We have, your Honour.
HIS HONOUR: I express no view on the validity of those criticisms. I simply invite attention to the fact that it was thought desirable to communicate with the parties for a better understanding of the case that was made. Do you still propound the statement of claim in the form that you presently have it, subject to tidying up of typos?
MR MERKEL: Your Honour, if we were given till 4.00 pm today we would try and make amendments, but ‑ ‑ ‑
HIS HONOUR: Well, look, the defendant I have – forgive me saying this – I have squeezed the defendant to 4.00 pm Monday. What are we doing, Mr Merkel?
MR MERKEL: We will stay with the statement of claim, your Honour.
HIS HONOUR: Well ‑ ‑ ‑
MR MERKEL: Your Honour, the difficulty we have had is like late last night we were given for the first ‑ or late yesterday we were given for the first time the documents that were relied upon for detention of the boat, until then we did not know it was detained. We do not have any reason to dispute those documents. Given the short time, there may be some factual matters we could clarify with ease and we would ask if we could deliver a statement of claim ‑ ‑ ‑
HIS HONOUR: You have three junior counsel, Mr Merkel.
MR MERKEL: Yes, your Honour. We would ask if we ‑ ‑ ‑
HIS HONOUR: Experienced junior counsel. Why should you not by 2.15 today finally formulate the statement of claim that you wish to propound?
MR MERKEL: Yes, we will do that, your Honour.
HIS HONOUR: And I would have expected if, for example, there is now no dispute about detention of the boat, that that allegation drop out.
MR MERKEL: Yes, your Honour.
HIS HONOUR: Yes. The question of leave to amend is stood over until 2.15. There remains this question about your application for an order that the defendants produce certain documents on or before 4.00 pm Monday. Mr Donaghue, what do you say in answer to that application? What should I do, determine it, stand it over, make the order, what should I do?
MR DONAGHUE: You should not make the order, your Honour. It is not necessary to make the order, having regard to the other steps that are presently underway, and it will immediately generate the controversy, the public interest controversy to which I referred. Does your Honour have the pleading there? Could I just invite your Honour to look at paragraph 46 because the position is not as simple as Mr Merkel hopes or assumes that it would be?
HIS HONOUR: Paragraph?
MR DONAGHUE: Paragraph 46. This is the paragraph where we are asked to produce any record of the decision pleaded and any documents before the relevant officer. But your Honour will appreciate that while the power is to be exercised by a maritime officer, that maritime officer takes their place within a chain of command where they are required to follow commands from more senior people who may themselves be required to follow commands by more senior people, and the question of exactly what is meant by the decision referred to there and what documents would fall within the ambit of that inquiry is not a straightforward one, but while Mr Merkel says it is hard to understand how public interest immunity could apply, in my submission, that is not so at all. It is easy to understand how public interest immunity could apply to a decision made that is identified in that paragraph.
So rather, we submit, than in the context of the tight timelines we are all working under diverting attention to a public interest immunity claim, we submit that the resources of everyone concerned would be better directed to the defence, the pleadings, and advancing the negotiations on the stated case proposal that your Honour has discussed with us.
HIS HONOUR: Will the defendants in their defence admit or deny that a decision has been made to take the plaintiffs to a place other than Australia?
Are you able yet to answer that question? If you are not able yet to answer that question, tell me.
MR DONAGHUE: I do not think I can answer it, your Honour. I feel reasonably confident as to what the answer is but I do not think that I can answer that.
HIS HONOUR: Until a defence is put on either admitting or denying that a decision has been made to take the plaintiffs to a place other than Australia, can it be said that there is a book or writing in possession or power of a defendant that contains evidence pertinent to an issue in this suit?
MR DONAGHUE: No, your Honour.
HIS HONOUR: Yes. Mr Merkel, is there any answer to that proposition?
MR MERKEL: Your Honour, the answer we would give is if there is no such record, that if there was no record of any decision, that itself is relevant to the existence of a decision in the negative sense, that no decision has been made and therefore detention of a continuing and indefinite nature is not supported by any decision of any kind. But can I say this, your Honour, the possibility of no decision being made is inconceivable because the boat – it is common ground the boat was in the contiguous zone, turned around and sailed away from Australia to the high seas, so someone must have made a decision not to take the plaintiffs to Australia, but we say it must be relevant as to whether a decision was made or not and we say that if nothing is produced then, your Honour, that is a response to the document – to section 77E. It would be pertinent to an issue in the suit as to whether a decision was made or not and what it was.
HIS HONOUR: Yes. Subject to anything that counsel may say as to the form of orders that I propose, I propose to adjourn the application for leave to amend the plaintiff’s statements of claim to 2.15 today. I propose to stand over to – did we agree 12 noon Tuesday, counsel?
MR MERKEL: Yes.
HIS HONOUR: Yes, 12 noon Tuesday next:
(a)the plaintiff’s application for an order that the defendants produce certain documents;
(b) the summonses returnable before me today; and
(c)otherwise the matters generally for further directions to 12 noon Tuesday next.
I decline to make any immediate order that the defendants produce documents of the kind sought on the footing that as proceedings presently stand it is not made plain that there is any relevant book or writing in the possession or power of a defendant falling within the description given by the plaintiffs that can meet the description given by section 77E(1) of the Judiciary Act 1903 (Cth), namely that it:
contain evidence pertinent to any issue in the suit.
It is not clear that the documents sought to be produced contain evidence of that kind because it is not yet clear what in relevant respects would be an issue in the suit to which those documents would or may pertain. The costs of today should, I assume, stand as costs in the cause. Is there anything counsel seek to say about the form of those orders? As I say, it will leave over the application for leave to amend to 2.15 today. Is it necessary to resume a video link at 2.15 for that purpose, Mr Merkel?
MR MERKEL: No, I do not think so.
HIS HONOUR: Then, alas, junior counsel will be released into the confines of their chambers to slave over the amendments. Mr Donaghue?
MR DONAGHUE: If your Honour was able to procure a video link at 2.15, then the Commonwealth would appreciate that.
HIS HONOUR: We will do our best to do so. I know of no present impediment to doing so, despite the release of junior counsel for the plaintiffs to the confines of their chambers to slave over the statement of claim and its amendment. We will do our best to obtain a video link at 2.15. Subject to that, do counsel seek to be heard about the form of orders?
MR DONAGHUE: No, your Honour.
MR MERKEL: No, your Honour.
HIS HONOUR: Very well, there will be orders in those terms; 2.15 this afternoon.
AT 11.17 AM SHORT ADJOURNMENT
UPON RESUMING AT 2.16 PM:
HIS HONOUR: Gentlemen, I understand from the Registrar that both parties are agreed that there would be advantage and equally no disadvantage if you had until 4.15 to look at the statement of claim and mention the matter again at 4.15. So if I simply stand this matter over until 4.15 would that be suitable? Yes, thank you, then 4.15 it is.
AT 2.16 PM SHORT ADJOURNMENT
UPON RESUMING AT 4.20 PM:
HIS HONOUR: Yes, Mr Merkel.
MR MERKEL: Your Honour, thank you for the time and the indulgence granted. It has proved productive. We have now been able to produce and circulate, to our learned friends and to your Honour, a copy of the proposed further amended writ of summons. Your Honour, the plaintiff we would ask to be selected as the case that would go forward, or could go forward as a case stated, has been identified as CPCF. I understand, subject to the leave being granted, which we now seek, our learned friends are able to plead to this by the time that was provided for on Monday. We have endeavoured to take into account most of our learned friend’s complaints and hopefully have simplified issues as far as the pleading is concerned. Otherwise, we will stay on track with what your Honour indicated this morning.
HIS HONOUR: Yes. Mr Donaghue.
MR DONAGHUE: Your Honour, we have had this document for about half an hour or 45 minutes and so I have not obtained instructions in relation to it but can I say a couple of things. First, I sought instructions about the selected plaintiff. As to whether there is any objection there it does not seem to us that it is necessary for your Honour to reach a final landing on that at this stage given the commonality of the pleadings, so I would seek to reserve our position.
HIS HONOUR: There is something I wish to say about this so‑called commonality of pleadings. We will deal with that in a moment, but go on.
MR DONAGHUE: Yes, well, I am just asking to reserve our position on the chosen case.
HIS HONOUR: I understand that.
MR DONAGHUE: It is the case that quite a number of the objections that we had made in respect to the last pleading have been addressed by the removal of some of the offending paragraphs. There are, nevertheless, some difficulties that remain and there will still be contested facts in our submission. So while I do not have instructions to consent to this amended pleading I do not seek to say anything further by way of opposition to it.
HIS HONOUR: The only opposition then sounds as though it is going to come from me, Mr Donaghue. Thank you. Do sit down. Mr Merkel, I have read the document. I have nine matters I wish to raise with you. They are matters which I think should not impede progress of the case, but they are matters to which attention should be given.
First, the title of the action in which the statement of claim is filed should be amended to accord with the list, that is, if it is properly CPCF – I had it as CPFC, but that may be my fat thumbs – then that should be the stated plaintiff. That is hardly sheep stations.
Second, though, and we begin to get to more important things; I recognise that the form of statement of claim is intended to be applicable to a number of proceedings. My present view is that it is not appropriate to draw the pleading in a way which refers to “plaintiffs” generally - see, for example, paragraph 3 - let alone “plaintiffs, or most of them” - see, for example, paragraphs 37 and 43(a). The pleading, if it is to be amended, may substantially follow the form of this pleading but should be a pleading of the particular plaintiff’s case, not a pleading of cases other than that in which this is filed.
Third, the name of the vessel should not appear in paragraph 7 of the document. We have gone round this loop once before, we should not have to go round it again. It would be enough, I think, to plead that “on or about a date the plaintiffs departed a place in a vessel” and then define it in such fashion as you wish – here you have chosen “asylum vessel”.
Fourth, allegations in paragraphs 22 and following at page 14 and following, and the heading to that section of the pleading “Detention of the plaintiffs”, and the allegations in paragraphs 43 and following at page 19 and the heading to that section of the pleading should be amended to refer
to the relevant plaintiff and not plaintiffs generally, let alone as appears at least once in those sections “the plaintiffs, or most of them”.
Fifth, at least at first sight, to the uninformed reader, paragraph 34, “The defendants (individually or jointly) or their officers, agents or delegates (the defendants)” appears apt to circumstances in which two Ministers were named as defendants. Now, there is only one.
Sixth, the section entitled “The taking decisions” at page 21 and following it would seem to me might sufficiently be pleaded by reference to not “the plaintiffs” but to “the plaintiff (and others on the asylum vessel)” or whatever other definition of the vessel you have adopted earlier.
Seventh, similar drafting would appear to me to be at least available for paragraph 47 and following.
Eighth, if, as I assume to be the case, the plaintiff in whose action this statement of claim is to be filed is an adult plaintiff, paragraphs 50(h)(iii) at page 27 and paragraph 50(k) at page 29 appear inapposite. They concern Convention on the Rights of the Child and issues arising out of that.
Ninth – this is a general comment in respect of which I seek no answer from either side - I notice in the draft that references to “taking to Sri Lanka” have been deleted. The basis for that deletion is a matter that it would seem to me probable should be reflected in any draft stated case which the parties prepare.
Subject to those comments, is it sufficient for your purposes if you have leave to amend the proceedings and the statement of claim in Matter S169 of 2014 substantially in the form provided to the Court today as modified to take account of the several matters mentioned – the order should read “in argument” – that might be, I think, properly seen as a euphemism in the events that have happened. Would that suffice for your purposes?
MR MERKEL: Yes, your Honour. Can I just indicate to your Honour that I do apologise for the failure to do the singular. It was in the rush. Can I just say, putting to one side the tenth matter, and there is only one matter I would seek to mention to your Honour otherwise, I unequivocally accept your Honour’s observations and we will attend to them forthwith. They are very helpful and we are grateful for it. The issue about the rights of the child, your Honour, is that the selected adult plaintiff does have three children. That would be the relevance of that issue coming up, your Honour.
HIS HONOUR: Very well. I am trying as best I can to strip this to a form that does not have us going down highways and byways we need not traverse. At least, as at present advised, this seems to be a byway. Either on the face of things these international instruments speak in some relevant way to this litigation, a very broad proposition intended to embrace a quite diverse range of arguments, I suspect, or I think they do not. I am not yet alive to a real possibility of some halfway house where some speak and others do not, or some speak in some respects but not others. I have said what I say.
MR MERKEL: I appreciate that. Can I just indicate to your Honour, which your Honour may or may not be familiar with, and that is that the complementary protection regime, your Honour, enacted in 36(2)(aa) of the Migration Act was specifically intended to give effect to the very articles in the three Conventions. So it is not as if it is a view plucked from the air.
HIS HONOUR: I understand that, but I thought that the whole premise for this litigation was the Migration Act is not engaged. I know that you put that in issue in one respect by saying these people are in immigration detention, but I thought that the premise for the debate is ‑ ‑ ‑
MR MERKEL: No, I appreciate that, your Honour, but the reason that 36(2)(aa) gives effect to Australia’s protection obligations is because that is a common form adopted as the Refugees Convention has been adopted in many countries around the world. I do not want to – I am not raising CROC, your Honour, in a vacuum. It really is very much anchored to the protection obligations falling under the Conventions outside the Refugees Convention, but having said that, your Honour, if it is in the pleading but not part of the case stated for a particular reason, that will not in any way impede the matter going forward.
HIS HONOUR: It may be of assistance - as I say, I invite no response at all from either party in this – if on Tuesday next I could be informed of the significance, for what might be called the non‑refoulement branch of the argument, of the deletion of references to Sri Lanka in this pleading.
MR MERKEL: Could I ‑ ‑ ‑
HIS HONOUR: For the reasons therefore – no, you should not answer, Mr Merkel. Those are matters that are to be debated on Tuesday, not now.
MR MERKEL: Yes, thank you.
HIS HONOUR: I simply inform you of those facts. Is there anything else that counsel desire? Do I need to make any order about the costs of the amendment or matters of that kind? Do I need to give directions about
when this final document is to be filed? Do I need to give – I do not think I need to give you leave, do I, Mr Donaghue, to plead in answer to it?
MR DONAGHUE: No, I do not think so.
HIS HONOUR: Are there any other procedural hooks that I have to pick up on?
MR DONAGHUE: Your Honour, it may be that it would be appropriate for your Honour to make an order for costs thrown away by the amendment. I am not sure that there will be any, but the case has shifted quite a few times and in the course of a short period.
HIS HONOUR: I am not sure, Mr Donaghue, that it would be profitable for us all to spend time inquiring as to why that has occurred.
MR DONAGHUE: No, I am not suggesting ‑ ‑ ‑
HIS HONOUR: It may be simply sufficient to reserve any question of costs thrown away.
MR DONAGHUE: I am content with that, your Honour, and there is nothing else that I would seek.
HIS HONOUR: Yes. Do we need a direction about when it is to go on? You can plead, can you not, in answer?
MR DONAGHUE: Well, we can start pleading to this document. Your Honour has asked – I am not sure if your Honour actually made the order but we have indicated we will file by 4.00 pm.
HIS HONOUR: Yes.
MR DONAGHUE: We will embark upon the document that we have been given and as long as Mr Merkel can file the revised document as soon as possible then we will deal with it.
HIS HONOUR: Is it likely to be of assistance to the parties for me to make available the aide‑mémoire I prepared for myself in, I think, the seven minutes I had to read the document?
MR DONAGHUE: I think that is a matter for Mr Merkel, your Honour. Our notes are adequate.
MR MERKEL: Yes, we would appreciate it, your Honour.
HIS HONOUR: Both sides will have the aide‑mémoire. I am beginning to wonder which side of the Bar table I am sitting, gentlemen. Then if I stand this matter over until 12 noon, Tuesday.
MR MERKEL: Thank you, your Honour.
HIS HONOUR: Very well.
AT 4.37 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 22 JULY 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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