Minister for Immigration, Citizenship and Multicultural Affairs & Ors v MZAPC

[2024] HCATrans 51

[2024] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P21 of 2024

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Appellant

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Second Appellant

THE RELEVANT OFFICERS ACTING UNDER SECTION 198 OF THE MIGRATION ACT 1958

Third Appellant

and

MZAPC

Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 13 AUGUST 2024, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR P.D. HERZFELD, SC:   Your Honours, I appear with MR J.G. WHERRETT for the appellants and the Commonwealth Attorney‑General, intervening.  (instructed by Australian Government Solicitor)

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR A.F.L. KROHN, MR C.J. TRAN, and MS A.R. SAPIENZA for the respondent.  (instructed by Pinnacle Lawyers)

GAGELER CJ:  Thank you, Mr Lenehan.  Mr Herzfeld.

MR HERZFELD:   Your Honours, there are just two minor procedural matters addressed in the proposed consent orders submitted to the Court on 9 August.  The first is just the change in the title of the first appellant – which is Minister for Immigration and Multicultural Affairs.  The second is that the respondent seeks leave to amend his notice of contention, to which we consent.

GAGELER CJ:   Yes, those orders are made.

MR HERZFELD:   Thank you, your Honour.  Would your Honours please take up the core appeal book and turn, firstly, to the reasons of the primary judge, and then turn to page 24 of the core appeal book.  Your Honours will see that in paragraph 28, the primary judge records that:

The applicant was given notification . . . that it was intended that he be removed . . . on 6 July 2023.

Dropping down a few paragraphs, your Honours will see, procedurally, what then happened in paragraph 32, is the day before that, there was an application filed in the Circuit Court and also, within that application, an application for an interlocutory injunction, which was then disposed of – in paragraph 33 – dismissing that application.

Turning over the page, your Honours will see that there was then an application to the Federal Court for leave to appeal, and associated with that, the grant of an interim injunction.  Then that process continued to 1 August, where the application for leave to appeal was dismissed, but with a grant of an extension of the interim injunction to 11 August.

If your Honours then move to paragraph 51, your Honours will see that the primary judge contrasted that previous attempt to obtain an interlocutory injunction with that then before the primary judge.  So, your Honours will see in paragraph 51 that, in those previous proceedings which failed, there was a challenge to:

the legal foundation for the duty or power to remove –

and the interlocutory injunction was sought on the basis of the preservation of “the status quo” until that challenge was determined.  The reason the interlocutory injunction was refused is that the court has concluded that there was no sufficient prima facie case that the duty to remove was not engaged.  That was the previous proceedings.

Paragraph 52 contrasts that with what your Honours are now concerned with, that is, that the proceedings proceeded on the basis of an “undoubted duty” to remove the respondent from Australia.  The reason that that did not occur, procedurally – if your Honours turn back to paragraph 1, to continue the procedural story – about halfway through that paragraph, it picks up the interim injunction which had been granted to extend until 11 August 2023, that was extended, in substance, by undertakings – as your Honours will see there:

undertaking not to remove the applicant –

the then‑applicant, now respondent – until a certain date, 22 August.  The day before that, the primary judge granted the interlocutory injunction with which your Honours are concerned.

If your Honours then turn to the reasons of the Full Court, please, and go to page 71 of the appeal book, your Honours will see that the Full Court correctly understood that the basis upon which the primary judge’s order was made was an undisputed duty to remove the respondent from Australia.  Your Honours will see on page 71 of the core appeal book, paragraph 70, which makes that clear, and then on page 72, in paragraph 74, in the first sentence.  If your Honours then turn to page 78 of the core appeal book, in paragraph 97, the Full Court majority posed the question: 

was the primary judge in error in granting an injunction to restrain the performance of the statute when there was no challenge to the lawful operation of the statute (which requires the removal –

there?  And your Honours will see the same repeated, at paragraph 115 on page 82 of the core appeal book.

GLEESON J:   Mr Herzfeld, was the Minister informed of the requests by the originating application in the Federal Court, or was something more required to draw those requests to the Minister’s attention?

MR HERZFELD:   Your Honour is asking me a factual question, I think, and the case has not been conducted on the basis that the filing of the originating application was sufficient to draw things to the Minister’s attention.

BEECH-JONES J:   Mr Herzfeld, can I ask, was that earlier proceeding actually dismissed?

MR HERZFELD:   Yes.

BEECH-JONES J:   It was not just an injunction?

MR HERZFELD:   I am so sorry.  I think I have answered your Honour too hastily; the injunction application was dismissed.  I am not sure that I know the answer to whether the earlier proceeding as a whole was dismissed.  I will have that checked.

BEECH-JONES J:   Thank you.

GAGELER CJ:   Mr Herzfeld, while you are being interrupted, we are concerned only with power.  We proceed, as I understand it, on the basis that the applicant for the interlocutory injunction has established a prima facie case for final relief in the nature of a declaration.  What would be the form of that declaration? 

MR HERZFELD:   That may be a question, with respect, best directed to our friends.  Presumably, it would be in the form of something like that which this Court in Davis had accepted, along the lines that, in dealing with the earlier requests – because your Honours will have appreciated that the prima facie case was only found in relation to the earlier requests – that the things that had been done with them involved exceeding the executive power of the Commonwealth.

GAGELER CJ:   And what would be the utility of that declaration? 

MR HERZFELD:   The courts below proceeded on the premise that the utility would be, we understand, that those earlier requests might be dealt with differently than they were, and that there was therefore a possibility that they might then be put before the Minister, and there was therefore then a possibility that the Minister might choose to consider them, and that was therefore then a possibility that the Minister might choose to exercise one of the non-compellable powers. 

GAGELER CJ:   One of the non-compellable powers is section 195A, which is exercisable only when the alien is in detention.

MR HERZFELD:   Yes.

GAGELER CJ:   The utility of the declaration would be lost, would it not, if the alien were removed in the interim? 

MR HERZFELD:   It would not be lost because there are other powers which could be exercised, even if the person was offshore – they could be granted a special purpose visa under section 33.  However, we accept that the hope, which is standing behind these proceedings, would not be as readily able to be fulfilled; it is no part of our case to deny that.  The burden of our case, because it is about power, is that irrespective of the line of questions that your Honour the Chief Justice has put to me, there is no power to grant the injunction in circumstances where there is an undisputed legal duty.

GORDON J:   Just so I am clear, there is, as I understand it, no contention otherwise that there is a serious question to be tried, and there is no contention that the balance of convenience favours the grant of the injunction, for the reasons the Chief Justice has just put to you.

MR HERZFELD:   No.

GORDON J:   Your sole contention is a question of power.

MR HERZFELD:   Yes.

GAGELER CJ:   And your contention as to power turns on the proposition that the duty to remove is unqualified.

MR HERZFELD:   It is qualified by reasonable practicability, of course, but it is relevantly unqualified in the sense that it was here engaged and ready to be performed, and for the reasons that I will show your Honours, not qualified by the existence of preceding of this kind, or rather – let me put that differently – the premise of the case was that it was not qualified by the existence of proceedings, or facts, of this kind.

BEECH‑JONES J:   Do you also say that it is unqualified in this sense:  that no possible form of final relief could result in the duty not arising?

MR HERZFELD:   Yes, that is the premise of the case, and that is why I have taken your Honours to the difference between the previous proceedings and these ones, for precisely that purpose.

GAGELER CJ:   Mr Herzfeld, at some stage I would be assisted by your analysis of the case of Plaintiff M61/2010.

MR HERZFELD:   I remember M61 vividly.  I suspect your Honour might as well.

GAGELER CJ:   I suspect I remember it more vividly than you.

MR HERZFELD:   I will not engage in that competition at this stage.

GAGELER CJ:   You will no doubt address it in due course.

MR HERZFELD:   Well, I certainly will now.  I am not sure if I have an answer to your Honour’s question about the dismissal of the proceedings.  I understand that it has not been dismissed.  I suspect it also has not been progressed.

I was showing your Honours the way the Full Court understood, correctly, the premise of the case.  If your Honours then see the way that the Full Court disposed of that question.  I have just shown your Honours paragraph 97 on page 78, and then on page 82, paragraph 115 again makes clear that the question was about restraining:

performance of an undisputed . . . duty.

Your Honours will see the majority’s conclusion as to power on page 84, paragraph 123.  Their Honours cast it on the basis that:

restraint of the performance of a statutory duty has a reasonable justification in the substantive claim –

and that the court can then restrain:

performance of that duty provided it acts according to established principle, including the duty to respect the performance of the legislated public duty when it comes to balancing the competing considerations.

Your Honours will see that reference to balancing again in paragraph 127, that the undisputed duty was, in the majority’s view, fed into the balance.  That is:

the Court must recognise the seriousness of restraining the enforcement . . . in considering the balance of convenience –

So, the question of principle before your Honours is the correctness of that view.  The reason that I emphasised it at the outset, including in answer to your Honours’ questions, is that there are attempts in the respondent’s submissions in writing really to shy away from the starkness of the question and from the premise upon which the case below has been conducted and decided.  But for the interlocutory injunction that was granted by the primary judge, it was reasonably practicable to remove the respondent; but for that interlocutory injunction, the duty to remove him was engaged and ready to be performed.

EDELMAN J:   Is there any prejudice to you in this Court considering the question of reasonable practicability on the basis that the respondent alleges, which is simply the facts before the courts below?

MR HERZFELD:   Your Honour’s question might depend on how your Honours consider it.  Let me put it this way.  If there were an argument in this Court that, actually, the statutory duty is in fact postponed by the commencement of proceedings of this kind, that is a completely different legal question which we are not in a position to argue.  We have not argued it; it was not the premise of the case.  If it is a factual question that says that, for some reason or otherwise, removal was not reasonably practicable, that, again, is different from the premise upon which the case was conducted below.  So, whether there is any prejudice might depend on precisely how it is put. 

Quite apart from prejudice, the reason for the grant of special leave, and the issue which is to be considered by this Court, arises on the premise that there is an undisputed statutory duty.  So, from an institutional perspective, the question of power is the one that I have identified arising on the premise that the courts below proceeded.

GAGELER CJ: It might be undisputed, but it is not necessarily unqualified. Section 198(6) sits in a statutory scheme, relevantly, with section 195A.

MR HERZFELD:   Yes.

EDELMAN J:   The Court has to identify what the duty is that you say has been engaged, and how that duty applies.

MR HERZFELD:   Yes, if there is ‑ ‑ ‑ 

EDELMAN J:   One cannot just assume that and then apply a question of power to an assumption.

MR HERZFELD:   If there is a contention in this Court that the making of these requests in fact postpones the requirement to perform the duty to remove as soon as reasonably practicable, that is the argument which was raised in the previous proceedings, and it is not an argument that we are engaging with in this Court.

EDELMAN J:   I do not think the argument is that it postpones the duty.  I think the argument is:  what is the content of the duty, in particular, having regard to the words “reasonably practicable”?

MR HERZFELD:   And the basis below is that those words do not engage postponement of the duty by the making of these requests.  That is why I have started with the procedural history.  This case has not been conducted, and is not, by us, being conducted on the basis that there is any doubt about the proposition that on 6 July it was required by the Act to then remove the respondent from Australia; that is the premise for the case.  If the premise for the case is to shift, it is not something that has been addressed by us, and it is actually something that was in the earlier proceedings. 

The reason I say that is this.  If it is the case that the making of one of these requests, either through statutory construction or the content of reasonable practicability, means that that the duty does not in fact have to yet be performed, there is really no issue of principle in this case of the kind which has been brought before your Honours, because we would accept that in the earlier proceedings there was power to grant an interlocutory injunction. 

So, as we understand the case which was decided by the courts below, it was on the basis that there was power to grant an interlocutory injunction, even though but for the injunction the respondent would, as soon there is a plane ticket again available, be correctly required to be removed from Australia.  That, as I say, is what has been decided by the courts below.  It is not an answer to say, as the respondent does, that once an injunction is ordered it would not then be reasonably practicable to remove the respondent from Australia.  We accept that once the injunction has been ordered, it is not reasonably practicable to remove the respondent from Australia; but that reasoning is entirely circular, and actually raises the problem, which is that the thing which is stopping removal is the grant of the interlocutory injunction.

GAGELER CJ:   Mr Herzfeld, can I put this scenario to you:  a person in detention makes an application for an exercise of the power under section 195A.  There is a brief to the Minister, and the Minister has that brief sitting on his or her desk, and will consider it as soon as practicable.  Is your case that an officer, nevertheless, in those circumstances, has a duty to remove that person in detention from Australia, even though the Minister is in the process of considering an application for the exercise of the non‑compellable power?

MR HERZFELD:   They must remove them as soon as reasonably practicable.  Factually, that might mean there is some time for that consideration to occur, but the statutory duty is, nonetheless, a statutory duty, and on the facts here, it was engaged and ready to be performed on 6 July.  Our case accepts that there is no compellable restraint, if I can put it that way, upon the officer which can be enforced by a court by injunction in those circumstances.

GLEESON J:   Can the Minister ask the officer not to remove while he is considering the request?

MR HERZFELD:   Obviously the Minister can ask.  As I say, there will be a time period; the amount of time that it takes to remove someone is not immediate.  The way that the Act works, and the premise for the case – I am sorry to keep repeating this – is that it is no part of the duty to remove, or the content of “reasonable practicability”, to defer removal because of one of these requests.  That is a different case.  When I say it is a different case, it is one that the respondent brought and failed upon on an interlocutory injunction case.  This case was decided not on appeal from that, but as a different case, and the point of principle is the one that I have identified.  So, that is why I have taken your Honours to this material, to articulate precisely what the issue of principle is in this case. 

Can we, in that context, address three points orally ‑ ‑ ‑

GORDON J:   Could you, just for my part, articulate precisely what you say the issue of principle is in the clearest terms possible not by reference to the materials, by what you say is the principle that you would have us uphold?

MR HERZFELD:   Yes.  Whether there is power to grant an interlocutory injunction to restrain performance of an undisputed statutory duty.  By “undisputed”, I mean in the proceeding.  There is no dispute about whether the duty sought to be restrained is in doubt.

GAGELER CJ:   You cannot change the law just by not disputing it.  The question is as to the content of this duty.

MR HERZFELD:   We are rather dancing around a point, I think, and the point that we are rather dancing around is the question which was raised in the previous proceedings, and not raised in these.

EDELMAN J:   Well, it is raised fairly directly by the respondent in their notice of contention.

MR HERZFELD:   It is not raised in this sense.  It is not raised as a question of construction, other than the content of reasonable practicability.  For the reasons given in the earlier proceedings, there is no basis to suggest that – two things.  What is raised is whether reasonable practicability accommodates the grant of the injunction; that the case is not conducted on the basis that reasonable practicability accommodates the time taken to consider a request for exercise for one of these powers.  Our response to what is put in the notice of contention is that it is just not relevant, because we accept that once an injunction has been granted it is not reasonably practicable to remove.  But if we are going to litigate the question, which was actually in issue in the first set of proceedings, then that is a completely different question which actually obviates the question of principle which – as I have identified to your Honours – was raised by the courts below.

GLEESON J:   Is the question of whether the respondent has a sufficient interest to obtain the interlocutory relief a different side of the coin, or is that a different question from the question about the scope of the power?

MR HERZFELD:   That question is in issue, we accept, but what I think some other members of the Court are raising is a different question, which is whether the premise upon which the case was conducted below is the correct one, because we would accept, that if, in fact, by making a request for exercise of one of these powers that puts the obligation to remove into the future, then the question of principle upon which the cases below were decided and which we are here to argue about would not arise, because of course there would then be power to grant an interlocutory injunction to preserve the status quo.  So, that is why I said we are really dancing around a question about the premise upon which the cases below were conducted.

GAGELER CJ:   Which is a question of statutory construction.

MR HERZFELD:   It is, and if we are going to litigate that question, that is a different question to the one upon which we have addressed any of our written submissions. 

STEWARD J:   Can I ask, Mr Herzfeld, if the premise of this case is that it is reasonably practicable to remove MZAPC, in a sense, does your case then become just self‑fulfilling?

MR HERZFELD:   Well, not according to the Full Court.  Our point is that once that is so, you cannot grant an interlocutory injunction, and the Full Court took the view – for the first time, as far as we can see – that that was not the case, that you could grant an interlocutory injunction.

STEWARD J:   So, does that mean that the real dispute before us is whether the premise of this case, as you have articulated it, is correct or not? 

MR HERZFELD:   Well, we do not think so because, as we understand it, it is put by our friends that even if the premise is correct, there was still power to grant the interlocutory injunction.  That is what the Full Court decided, and that is the question of principle upon which special leave was granted.  I think the question was put as our first issue, which is whether there is power to grant an interlocutory injunction to direct people not to obey the law.

GAGELER CJ:   Are you saying you are not in a position to address the question of statutory construction that has been identified? 

MR HERZFELD:   If the question is whether the making of one of these requests postpones the duty to remove, in some way, we are not in a position to address that. 

GAGELER CJ:   Well, “postpone” may not be the correct word.  It is a question of whether the duty accommodates the time that the Minister, through proper processes, might take to consider a request.

MR HERZFELD:   And, as I say, that is not the premise upon which the case was conducted below, and we are not in a position to address that.  I should say, if it is correct – if the making of one of these requests means that the time for removal accommodates that – then the question of principle decided by the Full Court does not really arise.

EDELMAN J:   I do not see how you can address the question of principle without addressing the content of the duty; the content of the duty is what the principle that your submissions are addressing acts upon. 

MR HERZFELD:   Your Honours, I am sorry to repeat this, but the case below was conducted on the basis that, but for the injunction, the respondent would be on a plane immediately as soon as a ticket could be purchased, regardless of the requests that had been made. 

GORDON J:   Well, even the way in which you posed the issue, which was, on my note, whether power to grant an interlocutory injunction to “restrain performance of an undisputed statutory duty” in the proceeding raises the very question about what is that duty and what is its scope and content, and that is a question of statutory construction.

MR HERZFELD:   Well, I understand that your Honour says it raises that question.  It may raise that question in the abstract, but not in the way these proceedings were conducted.  That is why I showed your Honours the difference between the proceedings that failed at an interlocutory injunction stage and the proceedings that succeeded at an interlocutory injunction stage.

GAGELER CJ:   Mr Herzfeld, what is raised by this interchange is a real question as to the appropriateness of this case as a vehicle to consider the question of principle, as you would have it. 

MR HERZFELD:   Well, with respect, it is actually a perfect case to consider the question of principle because of precisely the way in which the case was conducted.  What the Full Court below has concluded is that there is power to grant an interlocutory injunction in these circumstances, even if the duty is due for performance now. 

BEECH-JONES J:   Mr Herzfeld, if you have a judgment that said, you cannot grant an injunction on that premise but this judgment should not be taken as accepting the premise, and the question is to what “reasonably practicable” means, well, that would not be particularly satisfactory, would it?

MR HERZFELD:   Well, there are other cases litigating that question, including in the Federal Court at the moment, one in which Mr Lenehan and I are involved.  And when that issue is presented to your Honours, if it is presented to your Honours, your Honours can determine it then.  But this is not an invention of ours; this is the way the case was conducted and what the Full Court decided, and unless your Honours correct it, then irrespective of whether the premise is correct, there is power to grant an injunction.  The problem is that, unless your Honours determine this case – I am sorry, your Honour Justice Steward.

STEWARD J:   No, no, it is all right.  You finish up.

MR HERZFELD:   Unless your Honours determine this case, then there will be intermediate appellate authority that says, regardless of the premise, there can be an interlocutory injunction in this kind of case.  I am sorry, Justice Steward, I interrupted you.

STEWARD J:   I think the concern, for my part, that I have is that there may be a conflation of power and duty.  You say the duty is ready and fulfilled, therefore there is power, whereas I think what the Full Court was saying – the majority, that is – that the duty was not fulfilled and needed to arise because of the extant proceedings and therefore no power – or therefore power to grant the injunction, sorry.

MR HERZFELD:   With respect, that is not what the Full Court said.  That was the thing rejected, in fact, by Justice Colvin, who was one of the members of the Full Court majority in the first set of proceedings.

STEWARD J:   Yes.

MR HERZFELD:   The case below, and what was decided by the Full Court, is that there is power to grant an injunction of the kind here, even if the duty was, as it was, engaged and ready to be performed in the first go‑around the very next day.

STEWARD J:   All right.

MR HERZFELD:   So, with respect to the questions about whether this is an appropriate vehicle, this is actually the only vehicle to consider that question of power because if the premise is otherwise, then the issue will not arise.  So, we do maintain, as we maintained in our special leave application, that this very stark question is raised precisely because of the way that the court determined the matter.

GAGELER CJ:   Mr Herzfeld, we will retire to consider the arguments so far put.

MR HERZFELD:   Thank you, your Honour.

AT 10.31 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.41 AM:

GAGELER CJ:   Mr Herzfeld, consistently with the discussion before the Court adjourned, the Court is minded to think that this may not be an appropriate vehicle for the consideration of the question of principle that you seek to agitate unless the underlying question of statutory construction is addressed.  From what you were saying earlier, it may be that you eschew addressing that question of construction, it may be that you are prepared to address it.  We are going to give you some time to consider that and reconvene in half an hour.

MR HERZFELD:   Yes.  May I ask, when your Honour says to address it, do your Honours want it to be addressed today?

GAGELER CJ:   That may be a question, Mr Herzfeld.  If you are prepared to address it, but on a later occasion, then it may be that we are talking about an adjournment.

MR HERZFELD:   Yes, I understand.  Thank you for the time.  It may be also something that Mr Lenehan’s side needs to think about, too, because neither party’s written submissions, at any rate, engage with this question of construction.  So, I understand the indication, and we will determine our position in the time your Honour has indicated.

GAGELER CJ:   Is that sufficient time for you to consider it?

MR HERZFELD:   It is ample.

GAGELER CJ:   And Mr Lenehan – you are affected by this.  You understand the point?

MR LENEHAN:   Yes.  Can I indicate our position now, your Honour?

GAGELER CJ:   You may.

MR LENEHAN:   We agree with the Court that that is the issue that does arise and needs to be determined.  We are ready to deal with it today.  I accept that my friend needs some time to consider exactly how that might be done, but the consequence, potentially, if our friends are unable to deal with it is either revocation of a special leave, I think, or the perhaps different course that your Honour has indicated.

GAGELER CJ:   Yes.  Well, we will consider this in half an hour.  The Court will adjourn for half an hour.

AT 10.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM:

GAGELER CJ:   Mr Herzfeld.

MR HERZFELD:   Can I tell your Honours what our position is, as a matter of substance, about how the Act works, and then tell your Honours what we would seek to do procedurally?

GAGELER CJ:   Yes.

MR HERZFELD:   So, our position is that once the Minister has decided to consider exercising a non‑compellable power of the kind at issue here, the duty to remove accommodates that process of consideration.  But where the Minister has not decided whether to consider any request, the duty to remove must be performed irrespective of the mere making of a request.  Because, here, the Minister has not decided to consider any request, the duty to remove fell to be performed irrespective of the mere making of the request, and so the premise upon which the case was conducted below was correct and the question of power arises.

We obviously have not put any written submissions to your Honours about that construction, and we have not had the benefit of any written submissions in response if that construction is not agreed and an opportunity to respond to them.  So, we would seek an opportunity to put on written submissions and come back and then deal orally with that question of construction.

I have articulated it to your Honours, so your Honours know what it is and how, on our construction, the issue of power nonetheless still arises.  We are, obviously, in a position to deal with the question of power today, if your Honours wished to bifurcate the hearing but, if not, we would seek to address all of those matters on another occasion.

GAGELER CJ:   Thank you.  We understand that position.  Mr Lenehan, what is your position?

MR LENEHAN:   Your Honour – does your Honour wish to hear how we would articulate the contrary argument that has arisen this morning?

GAGELER CJ:   You can outline that.

MR LENEHAN:   So, we would say that the importance of Davis is that this Court recognised that the Minister has personal non‑compellable powers – and that relates to both the identity of the repository of power and their personal nature, all of those things reflect their importance.  To give your Honours the reference, in the plurality reasons, we find that at [28] and [29].

There is then a question as to whether, reading the Act contextually, duties imposed on other persons, including officers, are to be interpreted in a way that frustrates the exercise of those powers.  To pick up your Honour the Chief Justice’s point about M61, of course, the point in M61 – relating it to section 198 – was that section 198 accommodated the exercise of those powers, albeit that, in that case, the Minister had made at least the “procedural decision”, to use the term that has been used in this Court’s jurisprudence.

EDELMAN J:   You say we are one step removed from that procedural decision.

MR LENEHAN:   We are one step removed but then, in a way thinking about it, your Honour, it is equally if not more important because, using the example of the letter on the desk, what is happening, potentially, is to frustrate the exercise of those powers – effectively intercepting and putting in the bottom drawer the thing that the Minister should have to begin that process.

So, effectively – as one can see, by the way the Parliament has constructed these powers – that important mechanism is completely disabled.  To pick up on some of the hints that your Honours find in Davis, Justice Jagot’s reasons, we say, point strongly to the fact that that is, effectively, the departmental official exercising those powers in substance.

GLEESON J:   Mr Lenehan, that idea about the frustration seems to me to be a little bit confected, because the Minister is a party to these proceedings in which you have sought relief, raising an issue about whether or not these requests have been finalised.  It seems to me that, prior to this question of the duty to consider, there is a factual issue that needs to be resolved about whether or not the Minister has information about these requests.  Mr Herzfeld said that the case was not conducted on the basis that the originating application was sufficient to draw requests to the Minister’s attention.

MR LENEHAN:   Yes.

GLEESON J:   Is that not a factual issue that would ultimately go to relief?

MR LENEHAN:   Your Honour, it may be.  It is a factual issue that I know nothing about and is entirely in the knowledge of Mr Herzfeld’s client.

GLEESON J:   Well, you do know something about it.  You know that you have drafted – or your client has filed and served an originating process which points out that there are these requests.

MR LENEHAN:   Yes.  I know what your Honours see from the record.  Whether that has translated its way to the Minister – to any of this gaining the Minister’s attention – appears to be another question.  I am not in a position to assist your Honour further on that, but Mr Herzfeld no doubt is.  In that, in essence, is the way that we would be seeking to put the argument on the point that your Honours have identified this morning.

GAGELER CJ:   And it is fair to say that that point has not been squarely identified in your notice of contention.

MR LENEHAN:   Your Honour, it is fair to say that it is entirely lacking from the arguments that we have put.  To explain why that is, we have put the case in the way that it was argued below – perhaps that is a somewhat conservative approach, and perhaps we should have been alive to the possibility that this is really a question of law and able to, therefore, be agitated at this point as your Honours have in mind.

GAGELER CJ:   And procedurally, where do we go from here?

MR LENEHAN:   Procedurally, in my submission, your Honour should not hear any further argument today.  The point about power will necessarily interrelate closely with the question of construction ‑ ‑ ‑ 

GORDON J:   Or, to put it differently, you cannot consider the question of power without having construed the statute first, is your contention.

MR LENEHAN:   No, no.  Your Honours would be putting yourselves in a very difficult position, so we say you should not do that.  So, there should be a further round of written submissions – which should not take terribly long, we would hope, at least from our side.

EDELMAN J:   The difficulty with your ground 1 of the notice of contention is that it talks about while an injunction is in force.

MR LENEHAN:   Yes.

EDELMAN J:   So, those words are engaging in, sort of, the postponement of the duty rather than the content of the duty.

MR LENEHAN:   Yes.  So, your Honour is exactly right.  And that was perhaps the final procedural issue that I was coming to; we should also be required to further amend the notice of contention.

GAGELER CJ:   Thank you, Mr Lenehan.  Is there something arising from that?

The Court is of the view that a bifurcated hearing would not be preferable in this case.  The orders we will make are as follows:

1.        The matter is adjourned, to be heard on a date to be fixed;

2.        The costs of the hearing today are reserved;

3.The respondent has leave to amend the notice of contention to raise the issue of construction debated today; and

4.The parties are to approach the Registry to obtain directions as to the filing of further written submissions.

It may be that it will be appropriate for a Judge of the Court to conduct a directions hearing.  We will not make any decision about that today.

The Court will adjourn until 10.00 am tomorrow.

AT 11.26 AM THE MATTER WAS ADJOURNED