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

[2024] HCATrans 39

[2024] HCATrans 039

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P11 of 2024

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Applicant

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Second Applicant

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

Third Applicant

and

MZAPC

Respondent

GORDON ACJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 16 MAY 2024, AT 9.05 AM

Copyright in the High Court of Australia

____________________

HER HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR P.D. HERZFELD, SC appears with MS C.I. TAGGART for the applicants.  (instructed by Australian Government Solicitor)

MR A.F.L. KROHN appears for the respondent.  (instructed by Pinnacle Lawyers)

HER HONOUR:   May I say this, to both of you, thank you for your submissions which you provided in response to the Court’s email of 9 May.  In the circumstances, I do not think it is either appropriate or necessary for us to address the substance of those submissions.  Instead, and I must say at the moment I am not persuaded that it does not raise an issue under the Constitution.

Unless either party wishes to add something to their written submissions, the course I propose is that the matter be listed before a Full Court sitting in Adelaide on13 August.  If that course is appropriate for both of you, I will then address the question of directions.  Do you wish to say anything, Mr Herzfeld?

MR HERZFELD:   No, your Honour.

HER HONOUR:   Thank you.  Mr Krohn?

MR KROHN:   No, your Honour, thank you.

HER HONOUR:   The directions I propose are these:

1.The notice of appeal to be filed and served on or before Thursday, 23 May.

2.The core appeal book to be filed on or before Thursday, 6 June.

3.The appellants’ submissions, the appellants’ book of further materials and chronology to be filed on or before Thursday, 13 June.

4.The respondent’s submissions and respondent’s book of further materials to be filed on or before Thursday, 11 July.

5.The appellants’ reply to be filed on or before Thursday, 18 July 2024.

6.The Joint Book of Authorities to be filed on or before Tuesday, 25 July.

As I said, then with the appeal listed in Adelaide on 13 August.  Mr Herzfeld, do you have anything to say in relation to those directions?

MR HERZFELD:   Only to suggest that there might be a need for an addition.  Would your Honour look at the respondent’s submissions at paragraph 13.

HER HONOUR:   Is that the filing of the 78B notices?  Is that what you are directed at?  That will have to happen in any event.

MR HERZFELD:   It is, but perhaps with this twist:  if your Honour looks at paragraph 13, it seems to allude to the prospect of a challenge by the respondent to the validity of a provision of legislation.

HER HONOUR:   That is a matter they will have to address, if they need to.

MR HERZFELD:   Yes.  That is all I wanted to raise.  If there is going to be such a challenge it will have to be by notice of contention because it was not a matter in the respondent’s argument below or in the Full Court’s reasons below.  That seems squarely, if it is to be run, to raise a constitutional question which will have to be the subject of 78B notices.

I am just raising with your Honour whether there should be a direction for the time for filing of a notice of contention because that will, if there is one filled, articulate a challenge to validity which will then inform the 78B notices.  That is what I meant by way of an addition to the directions.

HER HONOUR:   I think that is probably right.  One of the ways I thought it might be able to be done is this:  if you are filing your notice of appeal by 23 May then Mr Krohn will have two steps to take, it seems to me.  One is the file of 78B notices once the notice of appeal is filed, together with any notice of contention.

MR HERZFELD:   Yes, that would be satisfactory because it seemed to us that the constitutional issue, so far as there is one, arises on the respondent’s case, perhaps.

HER HONOUR:   No, it does.  Yes.

MR HERZFELD:   And that is what the submissions seem to say.  I am not sure what date your Honour in mind, but one possibility would be 30 May, perhaps.  I am not sure day that is, but there could be, by 30 May, any notice of contention and any 78B notices.  I am not wedded to that date; it is just between when our notice of appeal is due and when the core appeal book is due.

HER HONOUR:   All right.  I might just have a chat to Mr Krohn about that date.

MR HERZFELD:   Thank you, your Honour.

HER HONOUR:   Mr Krohn, do you have any objection to that additional direction?

MR KROHN:   No, your Honour.  I am just wondering whether we might need, perhaps, a little more than a week to consider what is raised in the notice of appeal.  I just wanted to clarify with your Honour, am I correct to have understood that it will be the responsibility of the respondent to file the 78B notices?

HER HONOUR:   It will be in this sense:  that if you seek to agitate the matter that was raised by the email from the Court, then to the extent you need to seek to agitate that, as I understood from your submissions, two things arise.  One is you will need to file and address the question of the 78B notices, and second you will need to address the question of a notice of contention.

MR KROHN:   Yes, I understand.  I wonder whether – would it be feasible if we were to have, say, until 6 June to do that.  That would give us just under two weeks from the notice of appeal, and it is the same date, I think, as your Honour had in mind for the filing of the appeal book.

HER HONOUR:   There are two things that arise by that.  The first is this:  it seems to me that having had the issues identified, both by email now and submissions, you really have now onwards to sit to craft both the 78B notices and the notice of contention.  I wonder whether or not we might split the difference, and that would, at least, give you an opportunity to take both of those steps.

MR KROHN:   Yes, I understand.  Thank you.

HER HONOUR:   If your notice of appeal – you may be able to do it earlier, Mr Herzfeld.

MR HERZFELD:   We can, because, of course, it has to match the grounds in the special leave application.  The notice of appeal will be in exactly the same form as the special leave application because we cannot go beyond that without further special leave or leave in any event.  We can do that earlier than 23 May.

HER HONOUR:   All right.  I think what we will do then is we will leave the notice of appeal to be filed and served on or before – and there seems to be no reason why it cannot be done by next Wednesday, Mr Herzfeld.

MR HERZFELD:   We can do the notice of appeal earlier than 23 May.

HER HONOUR:   Choose a date for me.

MR HERZFELD:   Apparently it has already been filed with the Registry, I am instructed.  The draft is currently sitting with the Registry, we are just dependent on the Registry approving it.  It is in fact already been lodged.

HER HONOUR:   All right, then I am going to leave it on or before 17 May.  That will mean a new direction:

7.The respondent will file any notices under section 78B of the Judiciary Act and any notice of contention on or before Thursday, 30 May.

That will then give you 6 June.

MR HERZFELD:   Thank you, your Honour.  That is entirely suitable from our perspective and hopefully the Registry comes back to us and approves our draft in sufficient time that we can comply with your Honour’s direction of 17 May.

HER HONOUR:   I have confidence.

MR HERZFELD:   I am sure that after this exchange that I have confidence, as well.

HER HONOUR:   May I thank you both for your appearance.

AT 9.14 AM THE MATTER WAS ADJOURNED