JARK (representing a class as defined in Paragraph 1 of "Nature of the Claim" in the Writ of Summons) v Minister for Immigration and Border Protection and Anor; SAS v Minister for Immigration and Border Protection...

[2014] HCATrans 149

[2014] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S147 of 2014

B e t w e e n -

JARK (REPRESENTING A CLASS AS DEFINED IN PARAGRAPH 1 OF “NATURE OF THE CLAIM” IN THE WRIT OF SUMMONS)

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 Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 8 JULY 2014, AT 2.16 PM

Copyright in the High Court of Australia

____________________

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

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honour, I appear with MR R.G. ORR, QC and MR P.D. HERZFELD for the first and second defendants.  (instructed by Australian Government Solicitor)

MR GLEESON:   Could I inquire whether your Honour can hear us?  It is very faint at this end.

HER HONOUR:   I can hear you, thank you, Mr Gleeson.

MR GLEESON:   Thank you, your Honour.

MR MERKEL:   Your Honour, can I just bring your Honour up to date on where matters are at?  Can I hand up to your Honour a list of plaintiffs?  We have tried to summarise the plaintiffs ‑ ‑ ‑

HER HONOUR:   Mr Merkel, I am just having an inquiry made about the quality of the sound in Sydney.  If you would just go slowly for a moment, and I will make some inquiries of Mr Gleeson as to how it is going.

MR MERKEL:   Yes, your Honour.

HER HONOUR:   Yes, Mr Merkel.

MR MERKEL:   Your Honour, because of the logistical difficulty of these documents having been prepared recently, I have asked my learned juniors to endeavour to pass copies, I assume that they have in Sydney, to my learned friend the Solicitor‑General as we go, because these documents were literally prepared just in the last hour or so.

HER HONOUR:   Yes, I see.  So there are to be further documents provided, and you will provide copies to me if I do not have them, and copies will be provided by your learned juniors to Mr Gleeson.  Mr Gleeson, may I inquire about the sound quality?

MR GLEESON:   Yes, your Honour.  The sound is now better, thank you.  Apparently, the documents Mr Merkel speaks of are not yet with his team in Sydney.  He should proceed, but we will just have to move slowly in due course.

HER HONOUR:   Yes, thank you, Mr Gleeson.

MR MERKEL:   I will try and explain what they say so my learned friend can appreciate the substance of them.  Your Honour, what we have endeavoured to do is to list the plaintiffs before you, both in the individual writs of summons and the representative proceedings.  The persons for whom we have all the requisite information for bringing a claim total 50, so there would be 50 writs of summonses issued.  The writs include eight minors:  the youngest is two, and the oldest is 16.  They all appear to be accompanied by family members.  There appear to be at least 19 males.  We

are unsure of the number of females, but it would appear to be up to some 21.  Compared to the reported total of persons on the boat – there are 153 – there would appear to be between 21 and 29 minors in the representative action, 122 men and between 28 and 10 women in the representative action only.  That would appear to be the broad breakup between the two sets of proceedings before your Honour.

We have given your Honour a list of plaintiffs, and again because they are all named, we would ask that this not be made public other than a document which may record just initials, your Honour, which we will provide in due course.  It sets out the name of the individual, the date of birth, place of birth, gender, and whether they are a minor.  That would be a useful summary, your Honour, of all the persons who are before you in the proceedings.  We, with your Honour’s note permitting it, issued a subpoena this morning after the Australian Government Solicitor did not agree to provide the information which we had asked, and subpoenas have been served on the Australian Government Solicitor.

HER HONOUR:   Well, is there an attendance in relation to the subpoenas?  Mr Gleeson can enlighten us in relation to that.

MR MERKEL:   Yes, your Honour.

MR GLEESON:   Your Honour, I am instructed that the subpoenas were served at about 12.00 today, approximately 12.00, and they are said to be returnable in Melbourne at 2.15.  I answer those subpoenas.  There are no documents produced at this time, given the shortness of time.  It is expected that it would take 48 hours to respond to the subpoenas by either a production or other appropriate response.

HER HONOUR:   Well, the logical course might be to stand over those subpoenas, Mr Merkel.

MR MERKEL:   Yes, your Honour.  When my learned friend added “appropriate response”, we accept that the time allowed is necessarily short, and it is not unreasonable to ask for extra time.  But what the letter from the AGS in response said was that we would ask for the subpoenas to be stood over for at least 48 hours to enable our clients to consider their position in response to the subpoenas and collect relevant documents. 

Your Honour, we do not have a problem with proceeding today, but we would say that if any point is taken by my learned friend in relation to the information that we are seeking to get from the subpoenas in view of the government’s cloak of silence in relation to this matter, we reserve our right to ask for the matter to be stood over to be adjourned pending the return of the subpoenas.

HER HONOUR:   Well, perhaps when we get to the end of the hearing there might be liberty to apply reserved, although it is not strictly speaking necessary.  But in any event the subpoenas will be stood over for 48 hours.

MR MERKEL:   Thank you, your Honour.  The other matter I should indicate to your Honour is that the affidavit that was filed, which my learned friend no doubt will take you to, is the first acknowledgement by the government that the plaintiffs and the represented persons are in the custody – using a neutral term, we would say “being detained” by the Australian navy on the high seas.

HER HONOUR:   You are referring, are you, to an affidavit filed in each of these two sets of proceedings by Andras Markus dated 8 July 2014?

MR MERKEL:   Yes, your Honour.  What we would also seek to reserve our right to your Honour is that we would seek to be able to get instructions from each of the 50 plaintiffs and each of the represented persons concerning the processes they have been subjected to.  What we would say what…..detention and also what they have been told about where they are being sent.

Can I state clearly at the outset that the central issue in the case which the government at this stage has not conceded, but the overall thrust of the evidence makes it irresistible that this is the government’s intent, is that it is the government’s intent to exercise such power as it has to involuntarily, and by coercion, return the 50 plaintiffs and the 103‑odd represented persons to Sri Lanka against their will. 

This is quite an extraordinary result, your Honour, because the evidence that I will be taking you to shortly is that they all came from a Sri Lankan Tamil refugee camp in Pondicherry, and we have tried to put in the very short time available such evidence as available to us of the persecution that the persons had suffered that led them both to flee to that camp in India ‑ ‑ ‑

HER HONOUR:   Mr Merkel, just to give this application some focus, as I understand it from the writs of summons, which were issued late yesterday, all of the plaintiffs seek to challenge decisions which they infer have been made under sections 46A and 195A of the Migration Act.  That is the framework, as I understand it, of the proceedings before me?

MR MERKEL:   It was our understanding of the framework on the basis that the persons were within an area that was under Australia’s control, and when apprehended, they wished to avail themselves of the protection of those sections.  But there is a question, your Honour, being that, since they are now on the high seas, whether or not those provisions do or do not apply to them.

HER HONOUR:   Is there a question about whether or not persons you are seeking to enjoin are amenable to the judicial control of this Court?

MR MERKEL:   No, I do not think there is any question about whether they are amenable, but we were taken just briefly before Court started to a Maritime Powers Act passed in 2013, which it appears the Commonwealth is relying upon for their right to apprehend the individuals concerned on the high seas before they come into Australia, or until they come into an Australian migration zone. But the issue – and this is why I wanted to draw this emphasis out at the very start, your Honour – is not whether or not the Executive Government had power to apprehend and take on board 153 persons from the boat that the evidence suggests was in trouble, but whether the executive power under the Constitution, including such power as might be conferred by statute ‑ ‑ ‑

HER HONOUR: You are referring to section 61?

MR MERKEL: Section 61, your Honour, plus whatever power is conferred under the Maritime Powers Act, which no doubt my learned friend the Solicitor‑General will take your Honour to, can extend to authorise a discretionary decision by officers of the Commonwealth which would be in breach of the non‑refoulement obligations of the Commonwealth incorporated into domestic law through the Migration Act, but also, we say, incorporated or transformed into Australian law as part of customary international law that operates in Australia.  Has your Honour had the opportunity to read the outline of submissions that we had sent?

HER HONOUR:   I have read the outline of submissions.  You will appreciate, though, that so far as initiating process is concerned, I simply have what I had yesterday, which is the writ of summons in the form which we have just discussed, Mr Merkel.  There are no pleadings.  I am not sure what the ultimate intention of yourself is in relation to working out a factual substratum upon which the Court can operate properly.  Perhaps you can assist me – is it the intention to file a statement of claim at some stage?

MR MERKEL:   Your Honour, we would file a statement of claim, but because of the importance of the issues subject to the subject matter of the litigation remaining alive, which we need it to do by the interlocutory relief we seek, we say that either by demurrer, which would be on a statement of claim, or by a special case, the issue of law which can be fairly clearly ‑ ‑ ‑

HER HONOUR:   Would be isolated.

MR MERKEL:   Would be isolated, and the issue of law really, your Honour, is whether the power of Commonwealth officers extends to lawfully refoule against their will persons to their country of nationality prior to their claims to be entitled – to legal protection of non‑refoulement have been determined in accordance with law. 

Whether that entitlement arises from a statutory base depends on how the Migration Act may work in the context of this case, but we also have an alternative base, your Honour, that the Torture Convention and the International Covenant on Civil and Political Rights, as well as the Refugee Convention, have both been enacted into Australian law and form part of customary international law that is incorporated by legislation or transformation in accordance with well‑established authorities.  But this Court has not, as I understood it, recently considered this topic into Australian law, so that the refoulement that the government is seeking ‑ ‑ ‑

HER HONOUR:   Are you talking about the complementary protection provisions?

MR MERKEL:   No, I am talking about the Refugees Convention and the complementary protection which arise from the Torture Convention mainly, but other conventions become part of Australian law, but they also become part of Australian common law.  To refoule in breach of those conventions would be acting unlawfully under the Australian common law and whatever else the government would wish to entitle itself to do under the Maritime Powers Act, it cannot exercise an executive power in a manner that is unlawful save with express statutory authority.

HER HONOUR:   These are arguments you intend to make in circumstances where you are making an application for final relief?

MR MERKEL:   Yes, your Honour, but we do need to satisfy your Honour that there are serious issues to be tried about these powers, and absent any clear legislative authority to return refugee claimants or complementary claimants against their will to the country that they are seeking to be protected against – absent express power, we say both the legislative scheme, alternatively the common law scheme, would make that unlawful.

HER HONOUR:   What about the right of a sovereign State to expel an alien?

MR MERKEL:   We do not have any problem with that, your Honour, because that means that the 153 individuals are not entitled to enter Australia.  The relief we seek is not an entitlement to enter Australia.  It may be in line with this Court’s decision in the last week or two about the takings power that they could be taken to a designated country for offshore processing.  It may well be, your Honour, that they would be returned from the place where they commenced their voyage, which was India, where they were all in refugee camps.

This case concerns the much narrower question, can they be refouled to their country of nationality from which they fled as refugees against their will, and by the use of coercive power by the Commonwealth.  I say “coercive power”, your Honour, because there can be no doubt, as much as the Commonwealth may say “they are in our safe custody”, that it appears that all their communication equipment has been removed, but more importantly, they are being held in detention for removal to Sri Lanka against their will.  That can only be achieved by the coercive removal of them from the Australian naval boat by Australian officers.  Notwithstanding the brief time we have had a look at the Maritime Powers Act, we do not see anything that authorises that conduct.  That is the central issue in the case, your Honour.

HER HONOUR:   Well, there may be some conflict, which I daresay Mr Gleeson will explicate for me, between the powers under that Act and those aspects of the Migration Act upon which you were appearing to rely yesterday.

MR MERKEL:   We do rely on them, your Honour, but because now the government has raised the words in this hearsay affidavit ‑ ‑ ‑

HER HONOUR:   The “high seas”.

MR MERKEL:    ‑ ‑ ‑“high seas”.

HER HONOUR:   You are not objecting to the affidavit, though, Mr Merkel, are you?

MR MERKEL:   We do not object to the affidavit in the limited sense that it is being used for, your Honour.  It is an interim application to try and ascertain whether the interim relief we obtained last night should be held over.

HER HONOUR:   Should be extended.

MR MERKEL:   Should be extended, sorry, your Honour.  Clearly, we would say that to the extent that we go into any facts, we would seek to have instructions from our clients on the basis of their claims and what is actually happening on the ship, and that is not something we have been able to achieve.  But equally importantly, we would seek to know whether or not the ship that they were on was apprehended when it set in a contiguous zone, that is, a zone embraced by the Migration Act.

There may be a question once we know what the answer to that is, and this affidavit is very vague about it.  It says they were in a contiguous zone – I have not had time to see whether that is a term of art in the Migration Act – but there may be a question based upon that affidavit as to whether we fall under the statutory umbrella, or an analogue of that umbrella of section 46A and the sections we discussed with your Honour last night, or whether there is the alternative fall‑back of customary international law.

There is a third basis, your Honour, which we put our claim on, and that is that there is authority in this Court that we say it is fairly clear that the proposed refoulement against the will of the individuals to Sri Lanka very fundamentally affects their right, interests and privileges, because that is the country from which they fled as refugees.  A decision to exercise a discretionary power to return them cannot be made other than in accordance with the rules of procedural fairness.

The evidence appears to be that the government has been following a process of what is called enhanced questioning, which had a fairly specific direct and focused procedure with a number of questions in certain circumstances, but with independent assistance to the person concerned.  There is a report on that which says that would appear to be a breach of fundamental rights of fairness.

I say that to your Honour because that has been overtaken by a new level of enhanced assessment which is four questions asked by these persons at sea by video conference it would appear from Australia by someone who we do not know in a language we are not sure of and to persons who have had no assistance or advice but could not reasonably be expected to be able to communicate at the level that one would say is a fair hearing.  They have no right to be heard; they have no right to put a case; they have no right to get advice; they have no right to put a submission.

So that – I mentioned the earlier form of enhanced assessment to say that had met with a great deal of criticism but this new form of on‑sea enhanced assessment would clearly be a denial of procedural fairness which would vitiate a decision to remove them to Sri Lanka.  I keep emphasising, your Honour, that is what this case is about.  It is not about the aliens power, it is not about expulsion to a country where they have a right to go if that be the case but which they have ‑ ‑ ‑

HER HONOUR:   It is not about entry into Australian waters, territorial waters?

MR MERKEL:   It could be about entry into Australian territorial waters but we are not asserting a claim to be entitled to enter Australian territorial waters, but we are asserting a claim that that assessment process, having begun, must be concluded in accordance with law and in accordance with the rules of natural justice. 

HER HONOUR:   That is the reference to Plaintiff M61 v The Commonwealth, is it not?

MR MERKEL:   Yes, your Honour.  Now, whether or not accordance with law means 46A or the Migration Act or the common law, it still has to be carried out and completed in accordance with law before the person is expelled, and there is a decision of the Full Federal Court which I mentioned to your Honour yesterday which this Court – your Honour was a member – refused to grant special leave where the assessment process had begun and the Minister halfway through it said I am not continuing with it and I am not going to grant this visa and I do not care whether I am wrong in law or fact, I am not going to grant it, and the Full Federal Court granted an injunction restraining the Minister from removing the applicant who was in Australia until that assessment process had been carried out in accordance with law which it had not been because they found there was a denial of procedural fairness.

HER HONOUR:   As I recollect, special leave was refused in part on the basis that the matter was not a suitable vehicle for agitating the questions that were sought to be raised.

MR MERKEL:   That is correct, your Honour, but the question that was sought to be agitated was the complementary protection test, they wanted to ‑ ‑ ‑

HER HONOUR:   And whether or not it is the same as a “real chance” test.

MR MERKEL:   Correct, and whether or not there was a denial of procedural fairness and ancillary issues but very little was made, nor could it be, about the form of injunction which is the central point of our case which was that the Minister simply could not stop the process he had started.  Having detained the individuals concerned for the purpose of assessment he could not stop it arbitrarily or before it had been completed in accordance with law, thus the injunction granted and acceded to by three members out of the five member court, which we say is the logical conclusion of the series of cases of M61, M70 and so forth.  You may not have a right to get the bar lifted but you do have a right to be assessed in accordance with law because that is what the detention is about.

HER HONOUR:   Well, I understand that point, Mr Merkel.

MR MERKEL:   So, your Honour, they are the central issues that we say arise.  Your Honour, we have further affidavits since last night which we would ‑ ‑ ‑

MR GLEESON:   Your Honour, at a convenient point, would we be able to indicate what we perceive to be the central issues?  It may shorten certain matters.

HER HONOUR:   Mr Merkel, you have heard Mr Gleeson.  Is it of assistance to hear from Mr Gleeson?

MR MERKEL:   It will always be of assistance, your Honour.

HER HONOUR:   Yes, Mr Gleeson, would you wish to give some indication now because we are about to go to evidence which I have not seen, I must say?

MR GLEESON:   Yes.  I thought it might be a convenient time just before your Honour receives the evidence to identify what our position is this afternoon.

HER HONOUR:   Yes, thank you, Mr Gleeson.

MR GLEESON:   The first matter is the factual matter concerning the boat and the boat in question, on the evidence, did not enter Australian waters or reach the Australian migration zone, and that is the evidence that I will read from Mr Markus.  The boat was intercepted in the contiguous zone, that is more than 12 miles from Australian land territory, and the persons have been transferred to a Customs vessel and they are now on the high seas.  The significance of that fact is that one of the grounds upon which Mr Merkel asked you last night to grant urgent relief is misconceived in law.  That is the ground referred to in paragraphs 6 to 8 of the writ of summons in the matter commenced by SAS.

MR MERKEL:   I would ask my learned friend if he could not mention names.  I think he would appreciate ‑ ‑ ‑

MR GLEESON:   I am sorry, in the matter by the individual plaintiff, I withdraw the name, please, from the transcript.

HER HONOUR:   Yes, we used initials last night, Mr Gleeson ‑ ‑ ‑

MR GLEESON:   Yes, I am sorry.

HER HONOUR:   ‑ ‑ ‑ which seemed to work quite well, yes.

MR GLEESON:   Paragraphs 6 to 8, that part of Mr Merkel’s claim asserted that powers under the Migration Act, in particular section 46A and 195A, had commenced to be exercised under Australian law and thus was subject to this Court’s control.  Those powers are only applicable to non‑citizens in Australia who seek to obtain a visa or claim protection from Australia.  None of the persons Mr Merkel represents were in Australia so as to trigger any rights ‑ ‑ ‑

HER HONOUR:   When you say “in Australia”, do you mean within territorial waters or offshore?

MR GLEESON:   Within the migration zone ‑ ‑ ‑

HER HONOUR:   Within the migration zone, yes.

MR GLEESON:   Yes.  So persons who reach the contiguous zone have no rights under these provisions, indeed under any provisions of the Act, and the critical significance of that, your Honour, is that the visa provisions which hinge off section 36 have no application to this class of persons.  The provisions for lifting the bar have no application to this class of persons.  The provisions for detention and removal under sections 189 and following have no application, and also the provisions for regional processing to which Mr Merkel referred have no application.

So the Commonwealth’s first broad response to this application will be that any claims made under the Migration Act are inapplicable to this class of persons.  That is the first broad matter, your Honour.  The second matter that we would wish to draw attention to is that when Mr Merkel came before you last night he referred you to only the executive power as the possible source of authority for the present actions.  He did not refer you to the statutory power which exists in addition to the executive power and that is the power under the Maritime Powers Act 2013.

The Commonwealth relies upon both executive power and the statutory power for the present actions.  I will not at the moment go through the entire statutory scheme, that would be for full argument, but I would simply direct your Honour to two provisions which will be the end point of the argument, section 72(4), which permits maritime officers detaining relevant persons to cause them to be taken to places whether in or out of Australia’s migration zone, and secondly, section 75, the restraint on liberty for the person resulting from the division is not arrest and is not unlawful.

At an appropriate time today or later perhaps I will need to take the Court to the full statutory scheme.  It is sufficient for present purposes to identify that it is one of the two sources of authority relied upon by the Commonwealth and it is an authority which the proceedings at present do not seek to traverse in any way.  So that is the second broad matter by way of response, your Honour.  The third matter which may well shorten this afternoon is this.  Mr Merkel has confirmed – these are his words – “The central issue in the case is the government intends to exercise power to involuntarily return 153 persons to Sri Lanka against their will”.

He also confirmed that he takes no issue with whether there was power to take them on board an Australian vessel.  He confirms it may well be they can be taken to other places and he confirmed that they have no claim to enter Australian waters or territories.  His central claim in the whole proceedings is the assertion about an intent to take people to Sri Lanka against their will. 

That claim can be addressed on a number of levels in due course, if necessary, and I can mention those levels in a moment, but it is sufficient for immediate purposes if I indicate to your Honour that the first and second defendants will undertake to the Court not to engage in the following actions without giving 72 hours’ written notice, and the actions the subject of that undertaking will be any actions involving the surrender or delivery of any of the persons in question into the custody of the government of Sri Lanka, its military, navy, officers, agents or delegates.  In other words, as we understand the substance of the temporary injunction granted by your Honour last night, I will be giving an undertaking not to take ‑ ‑ ‑

HER HONOUR:   Not to engage in any of the restrained conduct without giving 72 hours’ written notice.  Have I understood that?

MR GLEESON:   Yes, that will be the undertaking.  That is correct, your Honour, and could I then make clear what is implicit in what I have just said, of course?  First of all, that undertaking is given without admissions on any matters of fact or law, and in particular it is given without admission as to any intent to engage in the conduct said to be prohibited and without admission as to the scope of legal arguments concerning such conduct. 

The second matter which is implicit in what I have just said, but I wish to make explicit, is that the undertaking that will be given is an undertaking which meets the relief claimed in these proceedings in the writ of summons and in the interlocutory application.  That relief is addressed to what Mr Merkel described as the central issue, which is a fear of removal of persons against their will to Sri Lanka.  As to what other actions may be taken pursuant to the statutory and executive powers of the Commonwealth, nothing I have said by the proposed undertaking seeks to traverse or comment upon or make representations about such actions.

Your Honour, I think that is implicit from the scope of the undertaking and the nature of the claim made against the Commonwealth but I thought it was appropriate to make that perfectly express so the Court is clear that the position we are taking is the one I have mentioned.

HER HONOUR:   It is most helpful, if I may say so, Mr Gleeson, to be given notice of that proposed undertaking in advance of being taken to evidence which, as I understand it, would be directed to seeking an extension of interim relief granted urgently yesterday.  It seems to me also that the giving of that undertaking would permit the orderly preparation of such case as is sought to be advanced on behalf of the plaintiffs.  Mr Merkel gave an indication that it is his desire to file a statement of claim in each of the matters and he made the obvious remark that a demurrer or some other mechanism may then be availed of in order to bring forward for the attention of a Full Court questions of law which may arise and are sought to be ventilated.  So thank you ‑ ‑ ‑

MR GLEESON:   Yes.  Your Honour, could I just say we agree that that course is appropriate.  If the pleadings come forward consistently with what is in the writ of summons, then the defence or the demurrer may and will deal appropriately with that issue, and it may well be the scope of the case is either large or small depending upon the pleadings and the events as they then stand.  What we have sought to do is to offer an undertaking which meets the substance of what is said to be the need for urgent interlocutory relief, that undertaking being tailored to the claims that are made in the proceedings, with a view then to some directions being agreed as to pleadings and other steps that are taken.

HER HONOUR:   Well, the directions I would have in mind would be tailored towards having the matter dealt with expeditiously and it would be desirable to have proceedings in a position, that is to say no contests about factual substratum, but in a position to be heard with a degree of expedition by a Full Court.

MR GLEESON:   Yes.  Your Honour, the only other matter that I wanted to mention before I end my interruption was this.  I said it was not appropriate at this early stage to indicate to you the scope of the argument under the Maritime Powers Act.  There is one matter that it is appropriate that I draw your attention to before I sit down at this stage and that concerns the section 72(4) issue.

HER HONOUR:   Yes.

MR GLEESON:   And it would be the position of the Commonwealth that under that section there is an executive discretion governed by statute which permits decisions to be taken as to where detained people will end up, to put

it shortly, and in the present case since we have a vessel on the high seas consideration will have to be given by the persons charged with appropriate power as to what steps will be taken.

HER HONOUR:   Well, I have understood that the undertaking proffered deals with surrender or delivery to the persons in question into the custody of the government of Sri Lanka.  It does not, of course, touch upon any decisions which may be made by the Australian Executive about taking the persons in question, as Mr Merkel himself accepted, to some other place for processing.

MR GLEESON:   Yes.  Thank you, your Honour, that is all I needed to make clear.

HER HONOUR:   Yes, thank you.  Yes, Mr Merkel.

MR MERKEL:   I am indebted to my learned friend’s assistance, it does resolve the central issue of urgency, your Honour.

HER HONOUR:   It does.

MR MERKEL:   There are two matters.  We do say the undertaking does cover what would have been an extension of interim relief so we say no more about it.

HER HONOUR:   Yes.

MR MERKEL:   But there are two matters that we would seek to raise with your Honour.  We would still seek to have a return of the subpoena because my learned friend’s 72 hours’ notice could bring us back to where we are at any time and one issue in the subpoena is to clarify the individual’s names who we represent and also to find out what the arrangement is with the Sri Lankan Government concerning the refoulement of people in our clients’ position.  But critically in addition to the return of the subpoena, we would ask your Honour – and we do not ask for a direction at this stage, but we do indicate that we are in a position where we will necessarily need instructions from the clients. 

HER HONOUR:   Should the matter be stood down to allow yourself and Mr Gleeson to have some discussions about a set of directions which on one view might even be able to be obtained by consent?  If not, a set of proposed directions from you and I can deal with the matter?  You could, I would have thought – what would you like, Mr Merkel?  That seems a good idea, does it not?

MR MERKEL:   A very good idea, your Honour.

HER HONOUR:   Should I stand the matter down for an hour or less?

MR MERKEL:   I think, your Honour, we could stand it down for an hour and if we could liaise with your Honour’s associate as to whether we need more time.

HER HONOUR:   Certainly.  Thank you, Mr Merkel.

MR MERKEL:   Thank you, your Honour.

HER HONOUR:   Adjourn the matter.

AT 2.58 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.59 PM:

HER HONOUR:   Yes, Mr Merkel.

MR MERKEL:   Your Honour, just to clarify matters concerning our evidence, I thought it would be appropriate – but I do not want to read them ‑ to file the two additional affidavits on which we are going to rely today so they are on the Court record and they will be served on our learned friends.

HER HONOUR:   Yes.

MR MERKEL:   One is the affidavit of Pannekoek Aran Mylvanagam, sworn today, and the other is the affidavit of Emma Stephens, again sworn today, and if we could just file them and serve them and say no more about it, but they will form part of the material upon which we would rely if the matter comes back before the Court or your Honour.

The agreement between myself and my learned friend, the Solicitor‑General, your Honour, is that we would file a statement of claim within seven days, that the defendants file a defence within seven days of receiving the statement of claim and the matter come back for a directions hearing before the Court within seven days after the filing of the defence.  Whether your Honour would wish to fix a day now, or that can be done through the Registry, we are in your Honour’s hands as to that.

HER HONOUR:   Well, now, it should be possible, should it not, for you to – this has been done by consent?

MR MERKEL:   Yes, your Honour.

HER HONOUR:   You could file a minute, could you not, with the Registry which will contain the undertaking that I would be noting as proffered by the learned Solicitor‑General during the course of the earlier hearing?

MR MERKEL:   Yes, your Honour.  Your Honour, that leaves two matters, or three matters.  The subpoenas – we are in our learned friend’s hands as to a matter of convenience but if they were returnable – could they be returnable before a Registrar in Melbourne or Sydney, say, on Friday morning, your Honour?

HER HONOUR:   At 9.30?

MR MERKEL:   At 9.30, if that could be done, your Honour.  That leaves two other issues, your Honour.  We are in discussion concerning access to the 153 persons as plaintiffs or represented parties and our instructors in the AGS will seek to reach agreement on that access but we would ask your Honour to just possibly reserve liberty to apply generally, but I just inform your Honour that that could be an issue which may arise if there is no agreement on it, but I would hope that there is agreement.

HER HONOUR:   Yes.  Well, you could, as I say, prepare the minute.  I have heard the orders which are sought by agreement being announced.  I will check with Mr Gleeson in relation to the return date and location for the subpoenas.  The minute should also reserve the costs of today.

MR MERKEL:   Yes, your Honour.

HER HONOUR:   I will just hear from Mr Gleeson, Mr Merkel, if you have finished.

MR MERKEL:   One last matter, your Honour.  I have finished on what is common ground, your Honour; there is one matter that is not common ground and it is this.  Since the matter was before your Honour yesterday, we are now aware of the Maritime Powers Act and how it is relied upon in the present situation, and we are also aware of the factual basis upon which the Commonwealth now contends that the Migration Act does not apply and that they rely on the power under the Maritime Powers Act which we had not considered before we were made aware of it by our learned friends today.

That raises an issue, your Honour, which was going to come up in the Manus Island case which is in the Sydney Registry but we will be applying to amend the writ of summons to add a new ground because it would appear that the Commonwealth’s possibilities, assuming they are not going to take 153 people to Christmas Island, and subject to the injunction ‑ ‑ ‑

MR GLEESON:   I am sorry, your Honour, I hesitate to object, I am just here in Sydney.  Mr Merkel is currently, I have to say, with respect, straying beyond any matters that are either in the application before you today or are in any form of evidence, and given the nature of these proceedings I really would ask that he restrain from straying beyond those matters today because it is not really appropriate.  We have dealt with the issues of contest before your Honour and other matters could be dealt with under liberty to apply.  I would prefer he not foreshadow further allegations and factual speculation really in this matter at this stage.  I just wish to make that clear, if I could.

MR MERKEL:   Yes, I note what my learned friend says.  The reason I am raising ‑ ‑ ‑

HER HONOUR:   Well, Mr Merkel, what are you asking me to do?  To note that there may be an amendment in due course?

MR MERKEL:   Yes, an amendment to the writ of summons raising the question of the legality of an Executive Government decision to take the individuals on the boat to detention at Manus Island or Nauru, which we will contend is unlawful.

HER HONOUR:   Well, that does not have to be part of the directions, does it?

MR MERKEL:   No, your Honour, I just wanted to ‑ ‑ ‑

HER HONOUR:   You just want me to note it?

MR MERKEL:   I want it on the record ‑ ‑ ‑

HER HONOUR:   Yes, very well.

MR MERKEL:   ‑ ‑ ‑that we propose to amend the writ of summons and the statement of claim will be based on that amendment which we will have to ask leave of the Court to make, but I did not want that to come without having foreshadowed it, your Honour.

HER HONOUR:   Yes.  So there is nothing that you are putting before me precisely upon which I could consider an application for leave to amend ‑ ‑ ‑

MR MERKEL:   No, no.

HER HONOUR:   ‑ ‑ ‑ but you want me to note that in the wings, as it were, there is the possibility that the writ of summons will be amended in due course.

MR MERKEL:   Yes, your Honour.

HER HONOUR:   Yes, very well.  Well, now, it seems to me, Mr Merkel, but I will check this with Mr Gleeson, but all the matters to which you have referred which are the subject of an agreement ought to be able to be reduced to a minute of consent orders which can be initialled by me and placed with the file.

MR MERKEL:   Yes, your Honour.

HER HONOUR:   Yes, thank you.  Yes, Mr ‑ ‑ ‑

MR MERKEL:   Your Honour, there is one last matter.  Sorry.

HER HONOUR:   Subject to sorting out the precise timing and place at which the subpoena is to be made returnable ‑ ‑ ‑

MR MERKEL:   Yes, your Honour.

HER HONOUR:   ‑ ‑ ‑ having been stood down today.

MR MERKEL:   Yes, your Honour.  The other matter which I would wish to place on the record is outstanding under the liberty to apply, but we need no specific direction, is we will be asking for notice if the Commonwealth wished to take the 153 people to some particular place such as Manus Island or Nauru but, again, we will have to raise that in due course if we cannot get agreement on an informal process.

HER HONOUR:   Yes, very well.

MR MERKEL:   Thank you, your Honour.

HER HONOUR:   Yes, Mr Gleeson.

MR GLEESON:   Yes, your Honour.  Your Honour’s understanding is correct, that the matters broadly summarised should be capable of being reduced to a minute.  We are still speaking on the question of the access but hopefully that could be agreed, and I would hope we could then provide to your chambers an agreed minute which your Honour could then make as the order.

HER HONOUR:   Yes, that would be ‑ ‑ ‑

MR GLEESON:   We were proposing for the subpoenas probably in Sydney, if possible, on Friday at 9.30.

HER HONOUR:   Before a Registrar?

MR GLEESON:   Yes, your Honour.

HER HONOUR:   Yes, very well.  Well, if both parties’ counsel would then work towards providing my chambers with a minute of orders to be made by consent as foreshadowed during the hearing I will initial that minute of orders and place that with the file.  Adjourn the hearing.

AT 4.07 PM THE MATTER WAS ADJOURNED