Ly & Anor v Minister for Immigration and Ethnic Affairs

[1994] HCATrans 7

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S199 of 1992

B e t w e e n -

SOK PHENG LY (An infant) by

MUY HENG LY, his next friend

Applicants

and

THE MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS & ANOTHER

Respondents

For mention

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 SEPTEMBER 1994, AT 9.12 AM

Copyright in the High Court of Australia

MR A. ROBERTSON:  May it please the Court, I appear with my learned friend, MS P. SHARP, for the plaintiff.  (instructed by Blake Dawson Waldron)

MR G. GRIFFITH, QC, Solicitor‑General for the Commonwealth of Australia:  If Your Honour pleases, I appear for the defendant.  (instructed by the Australian Government Solicitor)

MASON CJ:  Yes.

MR GRIFFITH:  Your Honour, perhaps it falls upon me to indicate what is the position so far as the relevant legislation under attack ‑ ‑ ‑

MASON CJ:  Yes, that is the reason why it is in the list.  Because at the moment it has been tentatively fixed for 12 October, but I am not prepared to maintain that listing if it is no longer clear what is going to happen to this case.

MR GRIFFITH:  Can I tell Your Honour ‑ indeed, Your Honour will be the first to know publicly what the present position is ‑ and then perhaps make a short submission.  But the position is, Your Honour, as Your Honour is aware that there is a Migration Legislation Amendment Bill, which is presently in Parliament.  I do not know whether Your Honour has a copy of that bill.

HIS HONOUR:  No, I have not.

MR GRIFFITH:  Could I hand Your Honour a copy.

HIS HONOUR:  Thank you.

MR GRIFFITH:  As is now common in legislation, Your Honour, there is more or less an objects clause in section 4 saying what the objects of sections 6 and 7 are.  Your Honour, also material in the preliminary parts of this bill is the general provision, section 2, which provides that sections 5, 6 and 7 are taken to have commenced on 1 November 1989.  The basic effect of what is provided in those sections, to put it very shortly, is to state as lawful detention which otherwise might be regarded as unlawful retrospective to that date.

Your Honour, it is public knowledge that this bill was introduced into the Senate on 8 June this year.  It has not yet been considered by the Senate as a whole.  There has been a report on 22 June by the Senate Standing Committee on legal and constitutional affairs and there was a majority on a casting vote making recommendations in respect of the bill.  That report was tabled on 29 August, but it is a public fact that the Coalition Party, the Democrats and the Greens have announced they will oppose this bill.  The Minister announced on 30 August that the government would proceed with the bill.  It remains on the Senate notice paper.

I have to advise Your Honour that the government has now decided to introduce into the House of Representatives a new bill which would be in substantially the same form as this bill but also will include a provision repealing section 54RA, the provision under attack in this action.  The bill Your Honour has does not affect a repeal.  They were going to be supplementary provisions.

HIS HONOUR:  RA is the dollar a day provision?

MR GRIFFITH:  Yes, Your Honour.  So that that bill will be introduced in the week commencing 19 September.  It is a bill being pursued by the government on its introduction.  So that, Your Honour, even absent that new information, there is a position of uncertainty as to what will be the relevant legislation, and this new information indicates that it may well be that the section under attack will be repealed and the proposed one substituting for it.  Our obvious submission, it would seem inappropriate for there to be a race for the barrier, as it were, Your Honour, and for the legislative position to be resolved before the matter comes on for hearing.

HIS HONOUR:  And, apart from that, the Court is faced with a problem that if we maintain the date then this situation of uncertainty is not resolved by 12 October ‑ ‑ ‑

MR GRIFFITH:  No, Your Honour.

HIS HONOUR:  Then we have a blank date in the calendar, so to speak.

MR GRIFFITH:  Yes, Your Honour, and - - -

HIS HONOUR:  Because it is unlikely that the Court would proceed in the light of this uncertainty.

MR GRIFFITH:  The Parliament could well proceed concurrently, so it would be unfortunate - - -

HIS HONOUR:  Thank you, Mr Solicitor.  What do you say about it, Mr Robertson?

MR ROBERTSON:  Your Honour, we would not regard it as a race for the barrier.  We have actually been in the list for - the action commenced in this Court two years ago ‑ ‑ ‑

HIS HONOUR:  Yes, I realise that.

MR ROBERTSON:  And, as Your Honour will recall it was in for directions about a year ago, 11 months ago, and at that stage the hearing date, or the question of a hearing date, was postponed because everybody was waiting for the decisions in the 51(xxxi) cases.  We were told this morning by my learned friend that there was this proposal to repeal section 54RA which, of course, does add a further element of uncertainty and we can, of course, understand the pressures on the Court’s time in terms of the date of 12 October.

Nevertheless, we would submit, Your Honour, that it is really a question of degree of uncertainty.  The attitude taken thus far to the bill that my learned friend took Your Honour to has been that the Senate, as we understand it, has expressed its opposition to what sounds like the central element of a further bill which is the retrospectivity of the matter.  But, we can do no more, Your Honour, than submit that the matter should stay with its tentative date of 12 October until it becomes clearer what the attitude of the Parliament to this proposed bill is.  We realise, of course, that that has a difficulty Your Honour has adverted.

HIS HONOUR:  I can understand the justice in that as far as your client is concerned, but there is then the problem of the impact on the Court in the event that the uncertainty is not resolved by 12 October.

MR ROBERTSON:  Yes, of course.  The only other factor that - - -

HIS HONOUR:  I should add this factor too, and this undoubtedly might be a matter of some concern to you.  Beyond October until, say, end of April next year, it is unlikely that we would be able to constitute a Court of seven to deal with this case.

MR ROBERTSON:  Yes, I had understood that that was probably the position.

HIS HONOUR:  So it might entail a delay until that time.

MR ROBERTSON:   Yes.  That is a matter that concerns us, Your Honour.

HIS HONOUR:  I realise  that.

MR ROBERTSON:  Because it is a period of some six months. and it is not only this action that is being held up but there are at least another 65 matters which have been commenced in this Court - there may be more - which concern the same question of validity, and therefore is that extra element of general interest in the topic.

HIS HONOUR:  But it is only a pecuniary claim, is it not?  Nothing else turns on it but that.

MR ROBERTSON:  It is ultimately a pecuniary claim and, of course, if the demurrer was successful that would not dispose of the matter, there would then need to be the action remitted.  Then, of course, the passage of time from the events in question comes in as a consideration, although if one is looking at a further six months, rather than any other period, perhaps that is a relatively minor matter.  But in summary, Your Honour, the plaintiff’s submission is that at least for the time being the matter should stay in the list, given the uncertainty about the additional uncertainty to which the learned solicitor has referred.

HIS HONOUR:  Yes.

MR ROBERTSON:  If the Court pleases. 

HIS HONOUR:  Notwithstanding the submissions made by Mr Robertson, and the obvious concern of the plaintiffs to achieve a resolution of the questions involved in a reasonably short space of time, there having been a degree of lapse of time up to date, I none the less think that having regard to the present uncertainties that attend the proposals to amend the existing legislation, it would be inconvenient to the Court to maintain the present tentative listing on 12 October because it would mean that eventually, if the uncertainty were not resolved, the Court might be faced with a blank day in its calendar, or, alternatively, very considerable difficulty in filling the space vacated in the event that this case was not ready for hearing. 

In those circumstances, I propose to vacate the tentative listing for 12 October.  I think that is all I need say on this occasion, unless the parties want to add anything.  The tentative listing for 12 October will be vacated and the Court will now adjourn sine die.

AT 9.22 AM THE MATTER WAS ADJOURNED SINE DIE