Morales, M.D.C.L v Minister for Immigration, Local Government and Ethnic Affairs

[1995] FCA 313

CATCHWORDS

PRACTICE & PROCEDURE - application for order restricting publicity in respect of immigration appeal - importance of free discussion of matters relating to national immigration policy and its implementation.

Federal Court of Australia Act 1976, s. 50

Gray v. Hedigan, unreported, 6 October 1994, Burchett, Foster
  and O'Loughlin JJ.
Gray v. Hedigan, unreported, 7 October 1994, Burchett, Foster
  and O'Loughlin JJ.

MONICA DEL CARMEN LILLO MORALES v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
NG 301 of 1995

Burchett J.
Sydney
28 April 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 301 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:     MONICA DEL CARMEN LILLO MORALES

Applicant

AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 28 April 1995

ORDER OF THE COURT

THE COURT ORDERS THAT the motion be dismissed.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 301 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:     MONICA DEL CARMEN LILLO MORALES

Applicant

AND:MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 28 April 1995

REASONS FOR JUDGMENT

BURCHETT J.:

In this matter, I am asked to make an order under s. 50 of the Federal Court of Australia Act 1976. The proceeding in which this order is sought, by a notice of motion, is a proceeding which has today been launched by way of appeal from a decision of the Administrative Appeals Tribunal. Such an appeal is, of course, limited to questions of law. In the proceeding, an affidavit has been filed which annexes the decision of the Tribunal, and the real object of the motion under s. 50 is to restrain publicity being given to the terms of the Tribunal's finding.

A number of decisions have emphasized that the jurisdiction conferred upon the Court by s. 50 is one to be exercised with care. It is no part of the function of the Court to stifle the free public discussion of issues generally, which may be raised in litigation before the Court. It is of the essence of the administration of justice in a court that proceedings should, in general, and subject to necessary but narrow qualifications, have thrown upon them the full light of publicity. At least since the publication of Milton's Areopagitica, with its classical exposition of the relevant principles, there has been an acceptance in our culture that publicity for all sorts of ideas, as well as the opportunity for full discussion of ideas and information, is, in itself, not only a good, but an essential.

I approach the exercise of the discretion conferred by s. 50 with these matters in mind, particularly in the light of the decisions of the Full Court in Gray v. Hedigan (Burchett, Foster and O'Loughlin JJ., unreported, 6 October 1994) and Gray v. Hedigan (Burchett, Foster and O'Loughlin JJ., unreported, 7 October 1994) which make clear the requirement that I observe these principles firmly.  It seems to me that what the application is really seeking to do is to restrain the publication of what are said to be facts about an application made to the Minister for entry into Australia.  Those facts are said to relate to a particular person, and to the way in which the application has been dealt with within the Department of Immigration, and by the administrative review authorities constituted by Commonwealth law.

The relevance of these questions to the proceeding in this Court is not very direct. In any case, the questions are, in themselves, questions which are not of a kind that would readily attract an exercise of my discretion, involving as they do the free discussion of national migration policy and its implementation. I am not satisfied that I would be justified in granting the relief that is sought under s. 50 upon the evidence put before me in this application, and accordingly I refuse it.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 18 May 1995

Counsel for the Applicant:       Mr T.A. Game S.C. with

Mr G.P. Craddock

Solicitors for the Applicant:        Kessels & Associates

Solicitor for the Respondent:        Ms K. English of Australian Government Solicitor

Date of hearing:                 28 April 1995