Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs

[1992] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne Nos M23 and M24 of 1992

B e t w e e n -

CHU KHENG LIM and OTHERS

Applicants

and.

THE MINISTER FOR IMMIGRATION,

LOCAL GOVERNMENT AND ETHNIC

AFFAIRS and ANOTHER

Respondents

For directions

MASON CJ

(In Chambers)

Lim 1 24/6/92

TRANSCRIP~ OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY. 24 JUNE 1992. AT 10.23 AM

Copyright in the High Court of Australia

MR P.N. ROSE: If Your Honour pleases, I a·

all of the plaintiffs. (instrur

Advice & Casework Service)

MR G. GRIFFITH, oc, Solicitor-General for the

Your Honour, I appear for the defendan~

(instructed by the Australian Government

HIS HONOUR:	Yes, Mr Solicitor?
MR GRIFFITH:	Your Honour, with the consent of my learned

friend, we faxed to the Court a draft statement of

facts. Does Your Honour have that?

HIS HONOUR:  Yes, I have, with two alternative sets of

questions.

MR GRIFFITH:  I think the alternatives speak for themselves,

Your Honour. Our view as defendants is that the

pleadings, doing the best one can with them,

Your Honour, give rise to only the issues in our

proposed questions, Attachment B. Your Honour, we

have great difficulty with the pleading, but we do
not regard it as useful to take out a summons to

attack the pleading. We feel it is better to

identify the issues which the plaintiffs seek to

raise and put them down in an appropriate form for

the Court to consider them. Of course, it is

always accepted that if the questions are not right

on the day, they can be altered to address the

issue.

HIS HONOUR:  Yes, that is a not uncommon fate.

MR GRIFFITH:  No. But doing the best we can, Your Honour,

we say the only tenable questions are those which

-we have identified in our paragraphs 1 and 2,

because the whole concept of having questions on

the assumption that the legislation is not invalid,

and yet somehow is inoperative or can be ignored

when the section is in the plainest terms,
Your Honour, escapes us.	So we find questions

predicated on an assumption that no, the

legislation is not invalid, but none the less force

and effect, for one reason or another, is not to be

given to it.

We find, Your Honour, a question is difficult

to grasp in that concept and, we submit,

inappropriate for the Court to address. We would

agree that the questions on Attachment A do ask

questions on the issues as they are pleaded, but we

still make the short answer, Your Honour, that we

would say that conceptually, all that the

plaintiffs plead must be predicated upon validity

or invalidity of the Act. If the Act is valid,

Lim 2 24/6/92

Your Honour, or not invalid - that is enough for

our purposes - we cannot see the basis of the

further questions.

HIS HONOUR:	I can understand the statement of claim if one were proceeding on the assumption that the only
relevant head of Commonwealth legislative power was
Sl(xxix); then perhaps some of the case presented
in the statement of claim might be more explicable.
After all, the Commonwealth relevant heads of
legislative power in this case are not so confined.

MR GRIFFITH: That is so, Your Honour. One thinks that is

tough legislation, and there it is, but it is

another thing to say, "Oh well, it's valid but you

can't give effect to it because it's tough." But,

Your Honour, we are really in Your Honour's hands

about that; what is appropriate for the Court. We

feel the Court should be protected from questions

which are just not tenable.

HIS HONOUR:  I would certainly require Mr Rose to explain to

me what is the basis for the additional questions

that he seeks to have presented to the Full Court

that appear in Attachment A,

MR GRIFFITH:  Your Honour, we tried to short circuit

argument about questions by saying that by ignoring

our problems conceptually, we agree that the
questions in Attachment A seem to be the questions

the plaintiffs want to ask.

HIS HONOUR: Yes, I follow that. Yes, Mr Rose?

MR ROSE:  Your Honour, we would say that the last - I think

it is questions 2(c), 3 and 4 which we differ in.

Question 2(c) is also an addition to what the

·Solicitor has in his questions. Your Honour, we

say that in relation to 3 and 4, there are two ways

we put it.	One is to tackle again something that
has probably been decided against us previously,

but a long time ago, and we say is something ripe

for reconsideration.

The question of whether or not a treaty or

convention can be relied upon if it is not part of

municipal law was dealt with in the decision of

Simsek, which was a decision of Mr Justice Stephen,

(1982) 148 CLR 637. We have copies if Your Honour

requires them. That adopted a view that had

been - - -

HIS HONOUR:  Your might hand that up.

MR ROSE:  Yes, Your Honour. The relevant parts are at

pages 641 and 642, but effectively it says that we

would have to argue that the convention and

Lim 3 24/6/92

protocol can, even though they are brought in by

treaties, become part of the law of Australia and

be relied upon.

HIS HONOUR:  Even though they have not been legislated into

effect?

MR ROSE:  Even though they have not been legislated into

effect.

HIS HONOUR:  But this is a fundamental principle of the

common law.

MR ROSE:  Yes, Your Honour, that is referred to, and in fact

I think Mr Castan, who we are hoping will lead in

this case and who is presently overseas - we say
that because Australia has adopted, has acted upon,

those treaties, has implemented those treaties in a

way - one can perhaps draw an analogy with part

performance - that effectively, because it is

acting upon the treaties, acting in accordance with

the treaties, it cannot then suddenly turn around

and just go straight out against the treaties.

HIS HONOUR:  In other words, if, for example, the treaty

contains a number of specific provisions and the
Parliament legislates into effect one out of those
fifty provisions, that has the effect of
introducing into municipal law the other forty nine

provisions.

MR ROSE:  No, Your Honour. What may introduce it into

municipal law, we say, is the fact that if the

authorities started operating on the basis of those

treaties, applying those treaties, applying those

fo~ty nine criteria, and then suddenly turned

around and said, "But we don't have to apply them."

We say that in effect, by their adoption,

implementation, performance of those treaty

obligations over a long period of time, that they

have become part of municipal law.

HIS HONOUR:  Mr Rose, is there any authority at all that

supports your proposition?

MR ROSE:  No, Your Honour, we have to argue the whole matter

afresh. We cannot point to any authority. In

fact, the only two recent authorities which seem to

have touched on it are the Simsek decision, and it
was briefly touched on in the matter of Kioa v

West, again - - -

HIS HONOUR:  But there is nothing in Kioa v West that would

support you, is there?

MR ROSE:  No, it does not support us. I am just saying the

two recent authorities are against us and do not

Lim 4 24/6/92

support the argument we want to advance,

Your Honour, in respect of those questions.

HIS HONOUR:  As I understand it, question 3 depends on this

submission?

MR ROSE:  Yes, it does, Your Honour. We have argued

question 3 in two ways. One, we have argued on the

basis that the treaties and conventions have become
part of municipal law, and secondly, we have sought
in our statement of claim to say even if they are

not part of municipal law, that we are still

entitled to rely on them.

HIS HONOUR:  I do not follow that. If they are not part and

parcel of municipal law, how are you entitled to

rely on them to render a statute otherwise within

power invalid or inoperative?

MR ROSE:  Because we will seek to argue that our

international obligations are such that Parliament

having adopted that international obligation,

having acted upon that international obligation,

cannot pass a law that is inconsistent with that

obligation.

HIS HONOUR:  But that has never been accepted under our

constitutional law as operating as a limitation on

the legislative power conferred upon Parliament by

the Constitution.

MR ROSE:  It certainly has not been accepted to date,

Your Honour. We want to argue it and hope it will

be accepted. It is one of the limbs of our

argument and we raise it in our statement of claim.

If Your Honour is against putting that question in that form, we would seek then to, perhaps as an

alternative proposal, have the matter referred and

seek the leave of the Full Court to reconsider an

answer to those questions effectively.

HIS HONOUR: All I can say at the moment, Mr Rose, is: I

would not refer question 3 for consideration to a

Full Court. It is a matter for you then, when the

matter comes before the Full Court, because quite

clearly I am willing to refer the questions in

Attachment B to the Full Court, if you want to, you

can apply to raise the matter before the Full

Court. But I certainly am not going to give you

any encouragement to do so.

MR ROSE:  I follow that, Your Honour. What I would indicate

is that we have got a hard road to hoe - we

understand that - but we consider the issue serious

enough that we would want to raise it, and they are

our present feelings.

Lim 5 24/6/92

HIS HONOUR:  It is not merely a matter of considering the

issue seriously enough; it is a matter of

determining whether or not the proposition is

arguable. That is what you have got to consider.

MR ROSE:  Yes, Your Honour. It was not a decision we

included lightly, Your Honour, I must say.

HIS HONOUR:  No. Perhaps you ought to give it further

consideration in the light of my unwillingness to

refer the question to the Full Court.

MR ROSE:  I take on board what Your Honour says.

Racial Discrimination
Question 4, we say that the provisions which are referred to in sections 9 and

10 into municipal law, and we say that is a

question that is properly raised. I do not know

that the Solicitor was heard to argue as vehemently

against question 4.

MR GRIFFITH: Yes, he was.

MR ROSE:  He says he was. We say it is a properly raised

question that is there again a matter that we say

an international treaty has been adopted and
embodied in Australian law through the Racial

Discrimination Act and that - - -

HIS HONOUR: There is no doubt that sections 9 and 10 are

part of Australian municipal law, but do they

provide a sufficient basis for the conclusion that

you wish to draw?

MR ROSE:  We would seek to argue that we have adopted the

treaty that they adopt in sections 9 and 10, that

once adopted it continues to operate in force until

we either renounce the treaty or in some way

abolish that legislation. But having adopted the

treaty, having brought it into municipal law and

having operated on it, we say, Your Honour, that it

is in until the treaty is specifically renounced.

HIS HONOUR:	But I am not sure that I follow you, Mr Rose. Are you relying simply on the provisions of
sections 9 and 10 of the Act, or are you relying in addition on provisions of the treaty?
MR ROSE:	In addition on provisions of the treaty,

Your Honour.

HIS HONOUR:  Do you not run into the same difficulty that

you encountered in relation to question 3?

MR ROSE:  I have a similar difficulty, but we say we are

stronger on question 4.

Lim 6 24/6/92

HIS HONOUR:	Why?
MR ROSE:	Because we have the help of sections 9 and 10

bringing it into municipal law.

HIS HONOUR:  But all sections 9 and 10 do is to reflect some

part of the treaty in the express provisions of

those sections. To the extent that the treaty is

not explicitly reflected in those sections, how do

you manage to introduce that part of the treaty

into municipal law?

MR ROSE:  I then have to fall back to that same argument for

the remaining parts, Your Honour.

HIS HONOUR:  Yes, exactly. That means in effect that my

unwillingness to refer question 3 applies to

question 4 as well.

MR ROSE:  Yes. I take note of what Your Honour has said. I

am not to be seen, and I do not want to be seen,

Your Honour, as resiling from the proposition that

if we see fit, we will - - -

HIS HONOUR:  No, I do not understand you to be resiling at

all from the position that you have taken, but

likewise, I am not resiling from my position,

Mr Rose.

MR ROSE:  Your Honour is in a stronger position than I am at

the moment.

HIS HONOUR:  Yes, I merely say that in case you may have

gathered that I am resiling in any way.

MR ROSE:  No, Your Honour. I will take on board what

Your Honour has said and we will think about it

?gain, but we may well seek to raise those matters

and it may well mean - we have considered how long

this would take, Your Honour.	I do not know if you
want me to address that.

HIS HONOUR:  Yes, but what about 2(c)? Have you got any

additional point you want to make about 2(c),

because you were suggesting that you wanted 2(c)

in. Does that stand in a separate category?

MR ROSE:  We say it falls in as part of the relevant

question, Your Honour, and that the Solicitor has

left it out, that we see that that in effect is a

central issue again as to whether or not one can

have regard to Division 4B, and in particular the

provision that says one shall not be released from

custody, which is 54R, and perhaps 54T, which is

the one that provides that this bit of legislation

will overrule any other legislation, save for the

Constitution. We believe that will raise its head

Lim 7 24/6/92

in the constitutional questions and should be

allowed.

HIS HONOUR:  Do you want to say anything about 2(c),

Mr Solicitor?

MR GRIFFITH: Yes, I do, Your Honour. 2(c) in fact runs 3

and 4.

HIS HONOUR:  I did not hear the -

MR GRIFFITH: 2(c) in effect is a run of 3 and 4,

Your Honour, because if you look at our

Attachment B, we have (a) and (b) as in
Attachment A, but it is predicated on, "If yes".

Your Honour, we say that it only arises if the

Migration Act amendment is invalid that you would

have regard to other -

HIS HONOUR:  Yes. I would have thought that (c) falls into

the same category as 3 and 4.

MR GRIFFITH: That is our point, Your Honour.

HIS HONOUR: Again, Mr Rose, unless you want to say

something additional about (c), I would not be

inclined to refer 2(c).

MR ROSE: Again, I think we are in the same position,

Your Honour, and we will argue it - - -

HIS HONOUR:	Yes, exactly.
MR ROSE:	May I point out, Your Honour, and perhaps I should

have, that question 2 is also different to the

extent that I think, on the plaintiffs' version of

question 2, "Are the Defendants under a legal
duty", my friend's version was, "If yes to

'question 1" - and I notice at question 1 he only

dealt with section 54R, whereas we dealt with L, N

and R.

HIS HONOUR:	Yes.
MR ROSE:	I do not know whether he presses that, but we

say - - -

HIS HONOUR:	You do press it, do you not, Mr Solicitor?
MR GRIFFITH:	We press the predicate, Your Honour, but I

suppose if they want to add L, N and R, that does

not make any difference.

HIS HONOUR:  No, because after all, as long as you get an

answer to R in particular - Mr Rose, I would be

prepared in the circumstances to include 1 in

Attachment A in lieu of 1 in Attachment B.

Lim	24/6/92
MR ROSE:	Yes, Your Honour, and as to the question, "Are the

Defendants under a legal duty", rather than, "If

yes"?

HIS HONOUR:	What do you say about that, Mr Solicitor?
MR GRIFFITH:	Your Honour, we say the "If yes" is the only

way in which it can be put.

HIS HONOUR:	Yes, I think that is right.
MR GRIFFITH:	We would say include 1 - it is really a matter

if we put in our 1, Your Honour, "Are sections 54L,

54N or 54R". It can all be done in one question.

We do not need two question ls.

HIS HONOUR:  No, that is right. I am prepared to refer to

the Full Court questions in the form of 1 in

Attachment A and 2 in Attachment B.

MR GRIFFITH: If Your Honour pleases.

HIS HONOUR:  Mr Rose, you were going to say something about

the length of the case.

MR ROSE:  Yes, Your Honour. We had believed that the case

would take two days, and we still believe we can do

that, even though we may have to argue the question

of whether we get to address what were

questions 2(c), 3 and 4.

HIS HONOUR:	What do you say, Mr Solicitor?
MR GRIFFITH:	Your Honour, we expect that there is only a

narrow issue that should fit comfortably within a

day, but there might be another - even allowing for

argument on the other issues, Your Honour, unless

they are argued in full.

HIS HONOUR:  Yes. What I will do is fix it for the Thursday

in the sittings in the first week in August,
6 August.	I propose to direct that comprehensive

written argument be filed and served and you should

include in that, Mr Rose, whatever material you

want to put in support of an expansion of the

questions. When would you be in a position to file

and serve comprehensive argument?

MR ROSE:  I would like, if I can get to it, somewhere around

the Monday, Your Honour, before the Thursday.

HIS HONOUR:  That is not going to leave the Solicitor very

much time.

MR ROSE:  I am becoming more concerned, Your Honour. I am

going overseas myself and come back on 26 July.

Lim 9 24/6/92

HIS HONOUR:  I follow the personal difficulties, Mr Rose,

but we must comply with appropriate procedures.

MR ROSE:  I understand, Your Honour. The difficulty has

been to get counsel who have been willing to do a

case of this magnitude with - - -

HIS HONOUR:	Yes, I follow that, but I had thought that the bar prided itself on its willingness to undertake
work in these circumstances.

MR ROSE:  Yes, Your Honour. We will certainly find

appropriate people.	What is the latest date I can
get?

HIS HONOUR: That is a matter for the Solicitor.

MR GRIFFITH:  Your Honour, we quite understand our friend's

position. We would have thought that it would not

assist the Court for us to give a long submission

responding to the questions that Your Honour has

not stated.

HIS HONOUR:	No, you are only concerned with the substance of the questions that are - - -
MR GRIFFITH:	We are only concerned with questions 1 and 2.

We can anticipate in a way an argument on that, so we could have submissions as principal submissions really, as it were, to file rather than just doing

it in reply. So that we are happy, Your Honour, to

be fairly tight in the time we have got to file.

HIS HONOUR:  Do you want a week before?

MR GRIFFITH:  A week would be plenty, Your Honour; even

three or four days.

HIS HONOUR:  You would be happy with the Monday suggested by

Mr Rose?

MR GRIFFITH: Yes, Your Honour, as long as the Court accepts

that we will draft in anticipation as principal

submissions and do a quick alteration if necessary.

HIS HONOUR:  Yes, very well. Mr Rose, you have got until

the Monday.

MR ROSE:  I am indebted to my friend and fairly lucky, I can

see, Your Honour.

HIS HONOUR:	Yes, I think so.
MR ROSE:	We will have ours filed by 10.15 on Monday when

the registry opens.

Lim 10 24/6/92

HIS HONOUR:  That is the Monday immediately before the

hearing, Monday, 3 August. Then the Solicitor will

have, I suppose, until the Wednesday afternoon.

MR GRIFFITH:  Your Honour, we will file and serve as quickly

as we can.

HIS HONOUR:  Mr Rose, I should say that we have found

comprehensive written submissions to date not as

helpful as we would have thought they could be.

That is because they do not seem to be drafted with

a view to actually persuading the Court by reasoned

argument. There is an art in preparing and

formulating written submissions, so it may be that

you and your leader have the opportunity of setting

a standard for others to follow. At least I am

offering you that opportunity.

MR ROSE:  Yes, Your Honour. We will endeavour to address

the questions and persuade the Court. It is, from

our point of view, an important issue and obviously

we will spend a lot of time on it. So I will

endeavour to find a leader who is perhaps more used

to this jurisdiction than I so that it conforms

with what you would expect, Your Honour.

HIS HONOUR: This follows a comment made by Justice McHugh

at the last special leave hearing in Sydney.	I was
wise or unwise enough to express my vehement
agreement with the comment that Justice McHugh

made, and it was to the same effect as the comment

that I just made to Mr Rose. There is nothing

else, is there? The Court will adjourn sine die.

AT 10.48 AM THE MATTER WAS ADJOURNED SINE DIE

Lim 11 24/6/92