Love v Commonwealth of Australia

[2018] HCATrans 250

[2018] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B43 of 2018

B e t w e e n -

DANIEL ALEXANDER LOVE

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 29 NOVEMBER 2018, AT 10.29 AM

Copyright in the High Court of Australia

MR S.J. KEIM, SC:   May it please the Court, I appear with my learned junior, MR A.J. HARTNETT, for the plaintiff.  (instructed by Maurice Blackburn Lawyers)

MR N.M. WOOD:   Your Honour, I appear with MS J.D. WATSON for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Keim, thank you and the parties for the proposed directions that you have sent through.  As it seems that the parties are now moving towards, or very close to, a proposed statement of case and a special case I did not want to vacate another directions hearing without some indication of why a special case is appropriate, particularly in light of the submissions on the previous occasion which suggested that there were likely to be numerous matters of fact in the statement of claim that were disputed between the parties. 

Could you perhaps indicate to me what it is that you see as the questions that are appropriate for the special case and what the parties’ position is in relation to those, although I appreciate that those questions have not yet been agreed by the parties.

MR KEIM:   The questions have been agreed, your Honour.

HIS HONOUR:   I see.

MR KEIM:   It is the statement of facts that goes to that.  I think the precise answer to your Honour’s question is that the Commonwealth is content to state for the Court’s determination in a narrow way what it says is sufficient to constitute a person an alien.  Therefore it is not essential for the Commonwealth to agree to all of the facts which we say are present in this case which would make those – facts which the Commonwealth say are sufficient on their own would make them – well, they are examples of why they are not sufficient on their own, if I can put it that way.

HIS HONOUR:   Perhaps you could just start with an indication of what the question is that is agreed – or questions that are agreed.

MR KEIM:   Yes.  So the first question – and it is really, I suppose, the crucial one in terms of whether a special case is appropriate – is as follows.  Are some, or all of the facts - that the plaintiff was born in Papua New Guinea on 25 June 1979, is a citizen of Papua New Guinea, is not a citizen of Australia - sufficient without more to entail that he is an “alien” within the meaning of section 51(xix) of the Constitution?  The second question follows on.  It says “If no to question 1, did section 189 of the Migration Act validly authorise and require the detention of the plaintiff between 10 August 2018 and 27 September 2018, whether or not he is an alien?”  The third question is about costs.

HIS HONOUR:   Do you say that both of those questions, or particularly question 2, can be answered without consideration of any of the contested facts in the statement of claim?  That is my first question.  The second question for you is why question 1, even if it can be answered without reference to contested issues of fact, might not be better addressed by this Court in light of any findings of fact by lower courts, particularly where, as I understand it, the essential issue in question 1 will be whether the plaintiff as a person who might otherwise have fallen within section 51(xxvi) before it was amended after referendum over the terms of the Aboriginal race in that placitum – is within the scope of the aliens power?

MR KEIM:   Yes, your Honour. If I can answer your question in this way - we will contend that where there are three additional facts, namely where the plaintiff’s father was at the time of his birth and is an Australian citizen that he is a member of the term variously used in the Constitution, but we have pleaded it as “a member of the Aboriginal race of Australia” and there is some assistance with regard to that in the discussion in Eatock v Bolt following on some comments in the Tasmanian Dam Case. 

The third thing which has been found not to be relevant in those cases where both parents have been born overseas or not sufficient to change what an alien is – that, sorry, both parents are non‑citizens of Australia no matter where the person is born – that he has been, since a young age, a member of the Australian community in the sense that he has lived here, had a permanent residence visa associated – because his sister is an Australian citizen, et cetera.

So what we are saying is that the Court does not need to make precise findings with regard to those three matters that we put forward because the Commonwealth is content to frame its case in this very narrow way – the question ‑ ‑ ‑

HIS HONOUR:   That may be so, but those three facts, or certainly at least the third of them, are facts that are matters of judgment, are they not?  So, for example, whether a person is a member of the Australian community, what are their ties to the Australian community, what are their links to the Australian community, how long have they been in the Australian community, they are matters of judgment upon which usually a court would have findings of fact before dealing with the legal issues that then arise.

MR KEIM:   Yes, your Honour.  I agree with the proposition that they are matters of fact and degree.

HIS HONOUR:   What I am concerned with is if this special case is formulated, essentially in the abstract without the benefit of an underlying substratum of facts as found, usually by a lower court, then this Court will nearly be pronouncing upon a hypothetical question, trying to pronounce upon a legal question without the benefit of the substratum that would inform that question.

MR KEIM:   Yes, your Honour, and I understand the difficulty that your Honour puts forward and Mr Wood may be able to contradict me on this, but I think it is the case that a significant number of the sub‑facts, if I can put it that way, will be able to be agreed but the parties cannot assure the Court – and it would be contrary – to say that every one of the facts can be agreed.

HIS HONOUR:   What is the advantage to your client in proceeding by way of a special case which, based on that submission, would necessarily only be relying upon the facts that can be agreed, but not all of the facts that you may wish to rely on or that may add sufficient colour to define the legal issue?

MR KEIM:   To answer that question I suppose I need to go back to the hybrid nature of the facts that I have been putting forward.  Some facts will be put forward as assertions on the part of the plaintiff and other facts, we hope at least, will be able to be agreed so that it is not a wholly hypothetical substratum of fact.  But we do not believe that we can agree on every factual proposition that might ultimately be determined by the Court.

The answer to your Honour’s question is that deciding the legal questions as they are framed in the special case may mean that it is unnecessary – obviously no one has committed themselves to that – but it may mean that it is not necessary to go to a full trial on the facts and yet both the Commonwealth and the plaintiff will get the guidance of those two narrowly stated legal propositions.

HIS HONOUR:   When you say “may mean that it is not necessary”:  so even if this Court were to answer, for example, one or both of the questions in your favour there may still need to be a trial in any event?

MR KEIM:   Yes.  I cannot contradict that proposition.

HIS HONOUR:   That, combined with the uncertainty of the underlying substratum of facts, does raise a number of real concerns about this Court dealing with this special case, essentially for the first time without the benefit of any findings below.

MR KEIM:   All I can say is that perhaps the legal question has been agreed upon in that narrow way.

HIS HONOUR:   One can immediately see the importance of the legal question, but it is the manner in which that question is framed and presented that is of concern to me at the moment.

MR KEIM:   Yes.  I probably cannot take it any further, your Honour.

HIS HONOUR:   Yes.

MR KEIM:   That is the situation as I understand it as a result of the discussions that we have had.  Mr Wood may be able to throw some further context to it.

HIS HONOUR:   All right.  Thank you very much, Mr Keim.

MR KEIM:   Thank you, your Honour.

MR WOOD:   Thank you, your Honour.  I do appreciate the concern about the absence of texture or colour and movement, if you like.  Can I explain, if it assists, some of the thinking behind the question?  The thought is that, in effect, the Commonwealth is identifying a positive case and saying that the Commonwealth would contend if the special case was to proceed that the plaintiff, having been born in Papua New Guinea, being a citizen of that country and not being a citizen of Australia, all of those propositions as I understand it will be agreed, is sufficient in light of existing High Court authority that we will contend to mean regardless of the plaintiff’s status or not as a member of the Aboriginal race of Australia he is an alien.

Now, your Honour is right that if the plaintiff succeeded on question 1 as proposed it would follow logically that the Court is not satisfied that those three facts:  born in Papua New Guinea, citizen of Papua New Guinea, not citizen of Australia – are sufficient.  It would follow that his status as a member of the Aboriginal race of Australia as claimed might be relevant.  In that event, the matter, depending on the answer to question 2 as well, might be remitted to the Federal Court.

I appreciate that it perhaps a slightly unusual approach.  Perhaps all I can say is that the thinking is that if the Commonwealth’s positive proposition is correct, that any combination of those three facts identified is sufficient to entail that he is an alien, informed by existing case law, then a trial on contested evidence about matters in particular relating to the Aboriginal identity of the plaintiff will not be necessary.

HIS HONOUR:   But that is only question 1, though.  There is also question 2.

MR WOOD:   Question 2, your Honour, I accept, would only arise if the answer to question 1 is favourable to the plaintiff.

HIS HONOUR:   I see, yes.

MR WOOD:   That I think – in my mind, at least, there are two issues with question 2 which is first of all, picking up some of the discussion in Taylor, might the detention of the plaintiff have been authorised despite the fact that as a constitutional proposition he is not an alien merely on the existence of a reasonable suspicion that he has the status of being an unlawful non‑citizen and that in itself might parlay into a question perhaps about the external affairs power but about which I cannot see there are likely to be any difficult questions of fact arising.  His status as a citizen of Papua New Guinea, for example, would seem to be the most obvious fact and I do not understand that is in contest so ‑ ‑ ‑

HIS HONOUR:   But why would not question 2 then also raise questions of contested fact arising from the statement of claim – or I should say questions of fact that as appears from your earlier submissions might be contested, such as the extent of the Minister’s knowledge about the plaintiff’s family history and so on?

MR WOOD:   I think that the questions about the extent of knowledge probably do not arise because we are only in question 2 because the plaintiff has succeeded on question 1 whereby the plaintiff’s status as an Aboriginal – I think I can see where your Honour is coming from in that respect.  Can I suggest this as a possibility, that if the Commonwealth were to succeed on proposed question 1, that would be the end of the case I think because the statement of claim proceeds on the premise that the detention was unauthorised because, as a constitutional proposition, the plaintiff was not an alien and therefore could not lawfully be detained under section 189.

HIS HONOUR:   I can understand the Commonwealth’s motivation to have that put and decided as a crisp and neat question.  The difficulty – and I raised this with Mr Keim – is that that any decision has to be made in light of the submissions and the legal points that are made by the parties.  The position of the plaintiff at the moment is that there are a number of factors that the Court needs to consider in assessing the scope of the aliens power and its relationship to persons who are members of the Aboriginal race within the former terms of 51(xxvi).  At the moment I cannot quite see how those submissions could be considered without an underlying substratum of facts, particularly things like what it means to be a member of the Australian community.

MR WOOD:   Yes.  Certainly the draft agreed facts that we deal with contain more than three paragraphs so there is agreement about a number of underlying facts.  Questions as to what it means to be a member of the Aboriginal race of Australia and whether the plaintiff is one I think at the moment is something that is not agreed.  I think all I could say to your Honour is that we anticipated with this form of the question that the agreed case might include this fact- that the plaintiff claims to be a member of the Aboriginal race of Australia, and a number of sub‑facts supporting that claim.

The plaintiff, we anticipate, would contend to the Court, if the proposed question proceeded, that if his claimed status as a member of the Aboriginal race of Australia was accepted, the question would be might that have an impact on the question of whether or not he is an alien and the Commonwealth would be saying it would not matter.  Regardless of whether he is or is not, he is not an alien.  If the Court did not accept that legal proposition then it does not matter whether or not he is an Aboriginal.  If the Commonwealth failed then the matter would be remitted such that the Federal Court could decide any complicated question of fact arising.  It is almost like a quasi‑demurrer, I suppose, is what we had in mind.

I appreciate it is somewhat unusual, but I think, again, all I can say is it is designed to bring an efficient resolution.  If of course the answer to question 1 in particular is favourable to the Commonwealth that would be achieved.

HIS HONOUR:   So you say as well then the other matters such as membership of the Australian community are matters that are irrelevant to the scope of the aliens power?

MR WOOD:   We would, on the form of the question, be submitting that the three facts identified are sufficient to entail, on authority such as Singh and Koroitamana ‑ ‑ ‑

HIS HONOUR:   No, I appreciate that – sorry to interrupt, but I am talking about the additional facts that Mr Keim said that the plaintiff was going to rely upon, including the membership of the Australian community because that – as I explained to you, that is an assertion that is bound up very heavily with questions of degree and assessment and evaluation as to what it means to be a member of the community and to what extent someone has to be sufficiently integrated within a community to be a member of the Australian community.

MR WOOD:   It is a statement of a high level of characterisation about which ‑ ‑ ‑

HIS HONOUR:   Those sorts of submissions are usually best assessed against findings of concrete fact.

MR WOOD:   Yes, your Honour.  I think the Commonwealth would anticipate, certainly in light of existing case law, submitting that matters of alleged connection might be relevant to the immigration power as explained by this Court, but not to the aliens power.  Again, we would fall back on our three facts.  I appreciate that if the Commonwealth were not to be successful, such that all of these matters said by the plaintiff in the statement of claim to be relevant to his status as an alien, then there might be a degree of abstraction which is why a potential consequence of the plaintiff succeeding on question 1 would be remitter.

HIS HONOUR:   Yes.  The difference between a demurrer and a special case is if you were to demur to a statement of claim then you would effectively be saying on all of the facts as alleged by the plaintiff, the plaintiff cannot succeed.  But what my concern is at the moment is that a special case will be formulated without sufficient findings of fact, or without sufficient agreement as to the facts, for the Court really to be able to address or consider in sufficient detail what the submissions are that the plaintiff wants to address.

MR WOOD:   Yes.

HIS HONOUR:   At this stage, and particularly without the special case in front of me, I do not want to reach any conclusions but perhaps these matters can all be considered by the parties as they try to formulate a special case or a demurrer or consider whether it is appropriate for this matter to be heard at first instance by this Court rather than with the benefit of findings of fact below.

MR WOOD:   Yes, your Honour.  I am inferring from the discussion that your Honour’s principal concern is that and ensuring there is a sufficient factual foundation for whatever submissions the parties, including obviously the plaintiff, might wish to make rather than ‑ ‑ ‑

HIS HONOUR:   I am less concerned with the submissions, as you have put it this morning, that the Commonwealth might make because the Commonwealth submissions are, in effect, a succinct proposition of law that the scope of the aliens power does extend to anyone that is born in a foreign country, a citizen of a foreign country and not a citizen of Australia.

MR WOOD:   Yes.

HIS HONOUR:   Which is a proposition that one does not really need a lot of evidence for, but the plaintiff’s submissions have a lot more colour than that and in order to assess the scope and the operation of those submissions it would be very usual and very common to have a substratum of fact against which to make any decision.

MR WOOD:   Yes.  I understand.  I appreciate the concerns raised and certainly will consider those and discuss further with the plaintiff.

HIS HONOUR:   All right.  The orders that I will make at this stage, without binding the parties to any particular approach or without restricting them from any further discussions as to the form of any case to proceed in this Court are:

1.The plaintiff file any agreed special case by 20 December 2018.

2.The matter be listed for directions on 28 December 2018 at 10.00 am.

3.The costs of this directions hearing be costs in the cause.

MR KEIM:   I am sorry, your Honour, I did not hear the second date.  Was that the 28th?

HIS HONOUR:   The 28th – that is the only addition to the proposed directions – 28 December 2018.  If there is any reason to vacate that and relist it in the new year because of either discussions or developments between the parties that can be done administratively, but I think it is useful at this stage to keep the matter progressing at a reasonable pace which I appreciate the parties are focused upon as well with their proposed timetable by 20 December.  Thank you both very much.

The Court will adjourn.

AT 10.54 THE MATTER WAS ADJOURNED