Newman-Mariotti v Minister for Immigration and Border Protection

[2015] HCATrans 250

[2015] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M231 of 2015

B e t w e e n -

TROY EDWARD NEWMAN‑MARIOTTI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 1 OCTOBER 2015, AT 5.35 PM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear with my learned friend, MR A. ALEKSOV, for the plaintiff in this matter.  (instructed by Clothier Anderson Immigration Lawyers)

MS J.A. RANDALL‑SMITH:   I appear with my learned friend, MR J.D. BROWN, in this matter.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes.

MR KNOWLES:   Yes, thank you, your Honour.  Your Honour should have an application for an order to show cause, together with a summons ‑ ‑ ‑

HIS HONOUR:   Yes, I do, thank you, Mr Knowles.

MR KNOWLES:    ‑ ‑ ‑ and also a supporting affidavit of my instructor, Ms Karyn Anderson.

HIS HONOUR:   Yes.

MR KNOWLES:   I also have one further affidavit that I would seek leave to file with the Court.  It is an affidavit of Ms Mary Patricia Collier.  A copy of it has been provided to my learned friends for the respondent to the application, albeit, I concede, recently ‑ ‑ ‑

HIS HONOUR:   What does it say?

MR KNOWLES:   It goes to the question of balance of convenience, your Honour, in respect of the application for an interlocutory injunction.  In particular, details are provided in relation to the national speaking tour, which is to commence tomorrow in Melbourne, and then proceed in various cities along the eastern seaboard until 8 October.  Needless to say, it goes to the fact of arrangements having been made for my client to speak at a series of seminars in the cities that are referred to in Exhibit 1 to that affidavit.  Essentially, as your Honour will see, there are various arrangements for the seminars to be given by him at various locations at cities along the eastern seaboard over the next week, and in particular, commencing tomorrow in Melbourne.

HIS HONOUR:   What I have not quite yet derived from the material is whether he was aware before he embarked from the United States that the visa had been revoked.

MR KNOWLES:   As I understand it, he had not received the decision itself.  To the extent that he might have had some awareness, I do not have instructions about that, but I can seek them now, if it would assist your Honour.

HIS HONOUR:   Yes.

MR KNOWLES:   I understand that he had been told in the US of a visa cancellation, but he had not received any notice of it, so it was really on the say‑so of those people.

HIS HONOUR:   Say‑so of which people?

MR KNOWLES:   Say‑so of the US immigration officials, as I understand it, your Honour.

HIS HONOUR:   A very trustworthy source, one might have thought.

MR KNOWLES:   I do not dispute that necessarily, your Honour, but without the decision, there was no indication of what had precisely occurred and why – sorry, I stand corrected; it was airline staff who informed him of that, not immigration officials.

HIS HONOUR:   Thank you.  Yes.

MR KNOWLES:   That is the status of his knowledge prior to setting foot on a plane.  It was that he had simply been told by airline staff of a visa cancellation without necessarily having any better knowledge of it, and certainly without any notice of the decision in terms of the actual decision record itself. 

As I say, your Honour, aside from the application and summons and the affidavit of my instructor, Ms Anderson, my client also seeks leave to rely upon the affidavit of Ms Collier, which has been sworn today.  Essentially, as your Honour will have seen, the plaintiff seeks to quash the decision made yesterday to cancel his visa but, in addition to that, seeks, pending the determination of the proceeding, urgent interlocutory relief to prevent his removal from Australia.  Obviously, I seek first to be heard in relation to the application for the interlocutory injunction.

HIS HONOUR:   Yes.

MR KNOWLES:   If I might begin by reciting some of the background facts which are either set out in the decision records or in the materials that have been filed with the Court, as your Honour will have seen, the plaintiff is a prominent anti‑abortion campaigner from the United States of America.  He was granted a visa in the form of an electronic travel authority on 15 August this year and, essentially, he sought to visit Australia, as I have indicated to your Honour already, to deliver a series of seminars in various cities between 2 and 9 October this year, beginning tomorrow in Melbourne.  The cancellation decision is exhibited to my instructor’s affidavit at Exhibit KA‑8.

HIS HONOUR:   I have read it, thank you.

MR KNOWLES:   Thank you, your Honour, for that indication.  Your Honour will have seen that when it was sent, it was sent under cover of a letter to the postal address for my client, such that he was deemed to receive notice of it 21 days after the date of the letter.  At the time of departing the United States for Australia, he certainly had not received notice of the decision at that time.

In terms of the cancellation decision, I will not trouble your Honour with the details – I will not read passages out from the decision, given your Honour’s indication – but at paragraphs 2 and 3, there are the relevant statutory provisions and, as your Honour will have seen, section 128 is the cancellation power which was the subject of the decision in this instance. 

The power is preconditioned upon the Minister’s satisfaction, relevantly, that there is a ground for cancellation of the visa under section 116.  Section 116 is relevantly set out in paragraph 3 of the decision, in that the cancellation might arise here if there is satisfaction that:

(e)the presence of [the visa] holder in Australia is or may be, or would or might be, a risk to:

(i)the health, safety or good order of the Australian community or a segment of the Australian community –

Now, I note in this case what was actually relied upon in the decision – and this is apparent when one has regard to paragraphs 7, 8 and 9 to 11 – was the “good order” aspect of paragraph (e) in section 116(1) of the Act.  There was not any reliance placed upon a risk to health and safety of the Australian community; rather, it was simply the good order of the Australian community that was relied upon.

As your Honour will see at paragraphs 5 through to 7, what was referred to was that there had been a number of anti‑abortion protests which my client had led in the United States of America – that is set out in paragraph 5.  In paragraph 6, there is a reference to the fact of media reports about reaction in Australia to my client’s visit here from people who supported the choice of women to have an abortion.  In paragraph 7, it was said that there was a risk that:

the public would have an adverse reaction to [my client’s] presence in Australia that would result in protests similar to those that took place in the United States of America –

It is not entirely clear, when one has regard to the reference earlier in the decision at paragraph 5, what the nature of the protests might precisely be.  For instance, the protests in the United States were anti‑abortion protests as opposed to people protesting against people who might hold those views.  Either way, that is immaterial, in my submission, because essentially, it just goes to the question of the characterisation of the communications which my client would seek to engage in in Australia.

In that regard, as your Honour will then see, the finding that appears at paragraph 8 in relation to “good order”, as such, refers to some earlier Federal Court cases, and goes on to say at the end of paragraph 8:

it appears Troy Edward Newman-Marriott’s presence in Australia would be a risk –

I note that the proper surname for my client is “Newman-Mariotti” – my client’s presence in Australia would be a risk –

to the good order of the Australian community and I am satisfied that there is a ground to cancel the visa under section 116(1)(e).

The basis for that finding seems to rest solely on adverse reaction by people to my client’s presence in Australia, as is seen earlier in paragraph 8 – in particular, his presence which would result in protests similar to those that took place in the United States of America.

There was no question at all in this decision that my client has ever advocated violence, and that is made abundantly clear, in my submission, when one has regard to the subsequent decision not to revoke cancellation.  That should also be found by your Honour behind – the first decision I have just taken your Honour to, in Exhibit KA‑8.  As your Honour will see, in that decision – and I will come to the details of this decision in a moment – at page 3 ‑ ‑ ‑

HIS HONOUR:   I am sorry, I am not with you.  Which exhibit did you say?

MR KNOWLES:   It is still KA‑8, your Honour, but it is behind the cancellation decision.  Does your Honour see the cancellation decision ‑ ‑ ‑

HIS HONOUR:   I am looking at the notification of cancellation which you have been taking me through, which is Exhibit JARS‑2.  We are going to JARS‑3 now, are we?

MR KNOWLES:   I am sorry, your Honour.  I was working off my instructor’s exhibit KA‑8.  Needless to say, in my instructor’s exhibit, they are both in the same exhibit, but in terms of the – I apologise, your Honour; I was not aware that your Honour was ‑ ‑ ‑

HIS HONOUR:   I am with you, thank you; my fault.

MR KNOWLES:   Thank you, your Honour.  They are the same, though, in each case.  There is no issue taken about that.  Page 3 of the decision not to revoke the cancellation decision; as your Honour will see, under the heading “Consideration of Revocation”, about three to four paragraphs in in the paragraph commencing “In relation to your claims you have never advocated violence”, your Honour will see that that is not something – as is said there:

the decision record does not provide these as reasons for cancellation of your visa –

In other words, the question of violence being advocated by my client was never something that was relied upon at all.  Indeed, a couple of paragraphs down, there is a reference to the matters raised by my client that the seminars that were going to be conducted are legal.  It then says, in the decision:

There is also no evidence available to me that suggests the group they are associated with has advocated violence or radical political action.

That is the nature of the opinions that have been expressed on the basis of the materials that were before the decision‑maker.  They were not opinions which involved any advocating of violence or radical political action of that sort.  If I can take your Honour back to the cancellation decision, and in particular paragraphs 9 through to 11 – this is the first decision I took your Honour to a moment ago ‑ ‑ ‑

HIS HONOUR:   Just a moment, please.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   I was just reading on in the part where you had taken me, in the consideration of revocation:

I acknowledge the seminars you intended to conduct in Australia are legal –

et cetera, to which you took me.  In the next paragraph, it says that –

Although you claim your protests in the United States of America are legal and non‑violent, and that attendees sign notices of good conduct, I note that in March 2015 you were arrested outside the office of John Boehner during one of your protests.

MR KNOWLES:   Yes, that is true, in the sense that that is something that was referred to in the decision as well ‑ ‑ ‑

HIS HONOUR:   Was that an arrest for violence, or for something else, or one does not know?

MR KNOWLES:   I cannot say, your Honour, but there is certainly on its face – as my learned junior observes, there is no reference to any conviction in any event.  There is only a reference to an arrest.  But more so, we do not know the nature of that.  Certainly, in the context of what is recorded earlier in the revocation decision, which seems, as I say, to refer to in turn the basis for the cancellation decision as well – that is, “the decision record does not provide these as reasons for cancellation of your visa”; that is, advocating violence and being arrested for a violent act  – that ties in, your Honour, that the claim was made that he had never been arrested for a violent act as such, and it is said then “the decision record does not rely upon you having been arrested for a violent act as such”.

HIS HONOUR:   All right, thank you.

MR KNOWLES:   I was going to take your Honour to the cancellation decision again, from yesterday, which is the earlier part of Exhibit KA‑8, or JARS‑2.  In particular, as your Honour will see at paragraphs 9 through to 11, the decision‑maker seeks to deal with the question of the ground for cancelling the visa under section 116 of the Act, and in particular refers to there being:

a risk that the public would have an adverse reaction to his presence in Australia.

That is in paragraph 9 and, therefore, there is a risk –

to the good order of the Australian community –

I am sorry, I should say “there might be” a risk to the good order of the Australian community.  That is the basis for finding that the statutory

precondition in section 128(a) was met – that is, harking back to section 116, there was a ground of cancellation in respect of which the Minister was satisfied existed.

Now, just completing off the factual matters in terms of the chronology, your Honour will have seen that on arrival, my client was served with the cancellation decision and given five minutes to make submissions about revocation of cancellation.  He was not permitted during that time to have access to his legal representatives, and after taking that opportunity during the five minutes to make such points as he could during that time, the revocation was then refused.  That is the second decision that I took your Honour to a moment ago.

Here, the plaintiff contends that the cancellation, the first decision, was invalid.  Insofar as I seek to address your Honour at the outset about the application for the interlocutory injunction, I want to go to the two core issues that arise in that context; firstly, the existence, we say, of a serious question to be tried, and secondly, the balance of convenience.

In relation to the first question – that is, the “serious question to be tried” issue – obviously, that threshold is not one that is necessarily high.  It is not the case that the plaintiff must show good prospects of success, but obviously, that weighs into the balance if there is less of a forceful argument for the plaintiff in respect of the “balance of convenience” issues.

In terms of the serious question to be tried, your Honour will have seen from the application that essentially what is put is that here, as I have already said to your Honour, section 128 and the exercise of power pursuant to that provision was conditioned by paragraph (a) and, in particular, the need for there to be satisfaction about a ground for cancellation of a visa under section 116, which in this case was the ground set out in paragraph (e) of subsection (1) – in particular, the “good order” aspect of paragraph (e) of subsection (1).

Now, the plaintiff, my client, argues that sections 128 and 116 should be construed so as to conform with and be conditioned by the implied limitation with respect to freedom of political communications.  In that regard, if I could take your Honour briefly to ‑ ‑ ‑

MS RANDALL‑SMITH:   Sorry, your Honour, if I could just interrupt on that point, because my friend raises an issue about the implied freedom of political communication.  Your Honour may have seen in the submission that has been filed that they say that a section 78B notice is not necessary in these circumstances. 

HIS HONOUR:   Yes. 

MS RANDALL‑SMITH:   If I can inform your Honour, we were notified of this application at 4.15 pm this afternoon.  We have not been in a position to consider realistically what the issues are surrounding the 78B notice, and in circumstances where it has potentially very broad implications about the effect of that freedom on the interpretation of Commonwealth statutes, I will foreshadow that we will not be in a position to address this argument directly today.

HIS HONOUR:   Yes, thank you.  Yes, Mr Knowles.

MR KNOWLES:   Perhaps I should say at the outset, obviously, we have said what we have said about section 78B, but in any event, as matters stand, I am addressing your Honour, certainly at the moment, in relation to the application for urgent interlocutory injunctive relief.

HIS HONOUR:   Yes.

MR KNOWLES:   Section 78B(5) states that:

Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief ‑ ‑ ‑

HIS HONOUR:   Well, I saw the argument.  I do not know whether it is right, but you can proceed for the moment.

MR KNOWLES:   Thank you.  The argument that is based on ‑ ‑ ‑

HIS HONOUR:   Section 78B, and whether there is a necessity for a notice.  I should rather have thought that there would be, but in any event, we will leave that for the time being.

MR KNOWLES:   All I say, your Honour, is in relation to the submissions relating to the interlocutory injunction application, section 78B(5) makes it clear that your Honour can proceed to hear this application, irrespective of the matter that is raised by my learned friend.

HIS HONOUR:   Yes.

MR KNOWLES:   The argument that arises for my client, at least, is that which is referred to in the case of Wotton v Queensland, in particular, in paragraph 22.  Before I go to that paragraph, I would seek to briefly take your Honour to other passages in that decision upon which my client seeks to rely, in particular, at paragraph 20, where their Honours Chief Justice French and Justices Gummow, Hayne, Crennan and Bell referred to the decision of Aid/Watch v Federal Commissioner of Taxation, and observed that – this in the passage of that paragraph after the quote, and I apologise if your Honour – I should have a copy of this, but I do not have a copy for your Honour at the moment ‑ ‑ ‑

HIS HONOUR:   We can get one.  What is the citation?

MR KNOWLES: The citation is (2012) 246 CLR 1. The relevant passage that I was initially taking your Honour to is in paragraph 20 on page 13.

HIS HONOUR:   Yes, thank you.

MR KNOWLES:   After the quoted passage, it is observed that:

Their Honours added that the system of law which applies in Australia thus postulates, for its operation, communication in the nature of agitation for legislative and political changes.  This freedom of communication operates both upon the formulation of common law principles and as a restriction on the legislative powers of the Commonwealth, the States and the Territories –

Then, there is a reference at paragraph 21 to what had been said by Justice Brennan, as his Honour then was, in the matter of Miller, that:

while the exercise of legislative power may involve the conferral of authority upon an administrative body such as the Parole Board –

and I interpose there “such as also in this case, the Minister or the Minister’s delegate” –

the conferral by statute of a power or discretion upon such a body will be constrained by the constitutional restrictions upon the legislative power, with the result that in this particular respect the administrative body must not act ultra vires.

Then, what follows in paragraphs 22 and 23 really goes to the conditioning of the exercise of power by that implied limitation, and that is that there is, as I say, a presumption generally that the legislation will conform with that implied limitation with respect to freedom of political communication, and as such, the exercise of the legislative power will also be so conditioned.  In this case, having regard to the reasons for the decision, the specific exercise of the legislative power in question was ultra vires.  I note that that type of argument was said in paragraph 22 of Wotton –

does not raise a constitutional question, as distinct from a question of the exercise of statutory power –

That is the argument that we make in response to the matter that my learned friend raised but, in any event, proceeding with the submission for the purposes of the interlocutory injunction application it is said – as I have indicated to your Honour – that here, having regard to the reasons that were given by the decision‑maker, the cancellation ground was not capable of being made out, having regard in turn to the effect of the implied limitation on the proper construction of the scope of the cancellation ground in section 116.

HIS HONOUR:   Would the decision‑maker not be entitled to make a decision in preservation of the public order which was reasonably appropriate and adapted to that end, which, to that extent, impinged upon the implied freedom of political communication?

MR KNOWLES:   If it was reasonably and appropriately adapted to that end but, your Honour, here, it was not, in my submission, given the nature of the findings that were made and relied upon by the decision‑maker.  I have already indicated to your Honour that those findings simply related to the advocating of particular views which we contend are political views and they did not involve any advocating of violence or radical political action.  As such, it was not reasonably and appropriately adapted.

HIS HONOUR:   The effect upon public good order is, you would say, shown to be no more than that there would be a divergence of use expressed?

MR KNOWLES:   That is right, your Honour.  Yes.  The exercise of the power, we say, ultimately in the end leads to restriction on political communication ‑ ‑ ‑

HIS HONOUR:   I understand that.  The question is whether it is reasonably and appropriately adapted to the end of maintaining public order, is it not?

MR KNOWLES:   Yes, and we say no in the circumstances of the findings that were made.  Those findings are set out, for instance, if I can take your Honour to the application – at paragraph 15 of the application on page 4 – that is how, certainly, we would characterise the relevant findings in the decision.  Importantly, we say in paragraph 16 that there was no evidence that any form of violence or other unrest was in contemplation.

HIS HONOUR:   I think I have got that point, thank you, Mr Knowles.

MR KNOWLES:   Yes, thank you, I will not proceed with that any further.  So they are the essential submissions on the “serious question to be tried” point, your Honour.  In terms of the balance of convenience, obviously I have referred to the series of seminars that are to occur and also that they are to commence tomorrow.  I have referred to the relevant affidavit material in support of that.  My client has obviously paid for flights and travel to Australia.  There is no evidence put from the defendant as to the balance of convenience, and, as I have already submitted to your Honour, the application has real prospects of success.

HIS HONOUR:   Mr Knowles, I did notice in the notification of the decisions - that there is an opportunity to make submissions for a revocation of it.  Has that now been spent, or does it still exist?

MR KNOWLES:   It has occurred, your Honour, because the opportunity was taken in that five‑minute period, albeit without access to legal representatives, I think, despite a request that that occur.

HIS HONOUR:   It says that he has 28 days in which to make submissions as to why the decision was inappropriate.  This is the letter of notification.

MR KNOWLES:   Is that Exhibit JRS‑3, your Honour?

HIS HONOUR:   Yes, it is.

MR KNOWLES:   Thank you, your Honour.  If your Honour could just pardon me one moment.

HIS HONOUR:   It is the second and third paragraphs.

MR KNOWLES:   Yes, I think the point that arises, your Honour, is that that letter was going to be sent to him – perhaps we could come to that – sorry, I am trying to find it, your Honour, in the exhibit to JARS – Ms Randall‑Smith’s affidavit – is it JARS‑4, your Honour?

HIS HONOUR:   JARS‑4 is the record of decision and revocation, 3 is the notification.

MR KNOWLES:   I see.  It is JARS‑3 ‑ ‑ ‑

HIS HONOUR:   Yes.

MR KNOWLES:   JARS‑3 is the decision – sorry, the notification of the cancellation of the decision.  Yes, the timeframe was 28 days where a person is offshore.

HIS HONOUR:   Yes.

MR KNOWLES:   In circumstances where the decision was handed to my client at the airport, while onshore, I understand that the timeframe was reduced.  Sorry, your Honour, I stand corrected – yes, I apologise to your Honour.  There may be a question about this, your Honour, which period properly applies, but as I understand it, there was a change to the period in question and I will seek to clarify this while my learned friend is on her feet, as to the relevant period that applies where a person is handed the cancellation decision while onshore ‑ ‑ ‑

HIS HONOUR:   All I really want to ascertain is whether he still has an opportunity of the kind which is referred to there or whether it has now been spent.

MR KNOWLES:   I do not believe that he does, your Honour, in the sense that he has been provided with the decision onshore, but I will confirm that perhaps just in a moment.  Unless there is anything I can assist your Honour with further ‑ ‑ ‑

HIS HONOUR:   Just a moment, I want to read Ms Collier’s affidavit again.

MR KNOWLES:   Yes, if your Honour pleases.

HIS HONOUR:   It is Ms Collier’s affidavits you rely upon in support of the balance of convenience, is it?

MR KNOWLES:   Yes, your Honour, in relation to the matter of there having been a series of seminars which are booked, at which he is due to speak.

HIS HONOUR:   Does it say any more than that?  He was booked to speak at a series of seminars?  I am just looking for it.

MR KNOWLES:   The relevant flyer is at Exhibit MPC‑1.

HIS HONOUR:   Yes, thank you.

MR KNOWLES:   That is where one finds the itinerary for my client to speak in Melbourne, Hobart, Sydney, Brisbane and Cairns.

HIS HONOUR:   It is at the university, is it?

MR KNOWLES:   I am sorry, your Honour?

HIS HONOUR:   The Avenue Parkville is one of the ‑ ‑ ‑

MR KNOWLES:   In terms of Melbourne?

HIS HONOUR:   Yes.

MR KNOWLES:   I do not know, your Honour – I could not say.

HIS HONOUR:   It matters not.  All right.  Thank you, Mr Knowles, thank you very much.  Ms Randall‑Smith?

MS RANDALL‑SMITH:   Thank you, your Honour.  I believe that my instructor is actually getting some instructions as we speak and I would ask the indulgence of the Court if we could just have five minutes, essentially to find out what those instructions involve.

HIS HONOUR:   All right – literally five?

MS RANDALL‑SMITH:   Yes, thank you, your Honour.

HIS HONOUR:   All right, we will adjourn for five minutes.

MS RANDALL‑SMITH:   Thank you.

AT 6.13 PM SHORT ADJOURNMENT

UPON RESUMING AT 6.20 PM:

HIS HONOUR:   Yes, Ms Randall‑Smith.

MR BROWN:   Your Honour, if I may intercede – as your Honour is aware, this matter was brought on relatively late in the day and matters have been moving apace elsewhere.  I think it is important that the defendant brings to the Court’s attention the current position as it does potentially have an impact on the proceeding.

Your Honour, the Minister has now taken a direct interest in the resolution of this proceeding and is, in the course of this evening, going to be considering making a decision in relation to the visa decision that is before the Court.  It may be, your Honour – and we cannot fetter this outcome – but it may be that that may provide a basis for the parties to reach consent as to how this matter should be resolved.

HIS HONOUR:   That sounds like an attractive proposition.

MR BROWN:   So, what – we have had an opportunity to have a discussion with our learned friends acting for the plaintiff, and we have proposed (a) to give an undertaking that this man will not be removed from Australia for the next 24 hours; secondly, that there will be discussions between the parties as to how the matter might be resolved, in the hope and expectation that consent orders can be filed with the Court overnight, such that there is no requirement for us to come back before your Honour.  Now, clearly your Honour, we are not in a position to fetter the decision that has yet to be made by the Minister.

HIS HONOUR:   Of course not.

MR BROWN:   But I would not be making that submission if it was not the case that we felt there were reasonable prospects of reaching an accommodation between the parties such that this matter can go away.

HIS HONOUR:   What would you have me do in the meantime?

MR BROWN:   Well, so we would seek you have this matter adjourned pending those further discussions and, in the worst case, we would need to come back tomorrow.  But, as I said before, it is our expectation that would not be necessary.

HIS HONOUR:   Let me find out about tomorrow, because there are a few difficulties there.  Just have a seat for a moment.  Mr Brown, as I said, there is no difficulty with that except for the logistics of tomorrow.  For better or for worse, it is a State public holiday, which apparently means that this building shuts.  Whilst we will be here, those that are authorised to open and operate it will not be here, so that if a matter does have to be dealt with further, I do not think it can be dealt with tomorrow.  It would have to Monday, really, at the earliest.  Now, is that going to cause problems in the scheme of things?

MR BROWN:   If that is the constraint your Honour, then we must work within that constraint.

HIS HONOUR:   Well, if it is critical, then I will see if I can do something else – but at the moment, it seems to be the best.  Is it likely to be critical, that difference?

MR BROWN:   Well, indeed, the issue arises if the plaintiff is in detention, and I think that is something that ‑ ‑ ‑

HIS HONOUR:   Then  you will have to ring us up, I think, and we will do something about it ‑ ‑ ‑

MR BROWN:   ‑ ‑ ‑ everybody wants to avoid.  So, you know, that is the issue.

HIS HONOUR:   Well, what should I do?  Put the further hearing of this over until Monday, or to a date to be fixed?

MR BROWN:   Monday, if possible.

HIS HONOUR:   I will adjourn the further hearing ‑ ‑ ‑

MR KNOWLES:   Sorry, your Honour – sorry, your Honour.

HIS HONOUR:   Just getting instructions?

MR KNOWLES:   Yes.

HIS HONOUR:   Yes, Mr Knowles.

MR KNOWLES:   We do see the question of the matter coming back before the Court not till Monday as posing some difficulties, simply because my client is obviously wanting to commence the speaking tour tomorrow.  Now, we do not – I should make it very clear, your Honour, that we are keen to try and resolve the matter if that is possible, but if it is not we would seek if it is at all possible to come back before your Honour, even if that is by telephone, tomorrow. 

We also just make the further observations about the undertaking.  In the event that there is some uncertainty about the time at which the matter can come back before your Honour, we would seek that any undertaking as to removal extend until further audit of the Court, or until such time as the matter comes back before the Court. 

The only other outstanding matter other than the date to which the matter is adjourned and how it would be heard is the question of costs.  For the time being, we simply seek that costs be reserved, your Honour.

HIS HONOUR:   What I am going to do, ladies and gentlemen, is adjourn the hearing of this application until 3.00 pm tomorrow, 2 October.  I have the undertaking of the defendant not to deport, is it, the plaintiff?

MR BROWN:   Not to remove, your Honour.

HIS HONOUR:   Not to remove the plaintiff.

MR KNOWLES:   I am sorry, your Honour, I am not sure whether this is possible – and I am sorry to interrupt, your Honour – the time – I am instructed to seek, if it is at all possible, to have the time brought forward to 12.00 pm, given that there is apparently a speaking engagement at 1.00 pm ‑ ‑ ‑

HIS HONOUR:   I am afraid it is not possible, Mr Knowles.  Even now, I am bending over backwards and costing the Commonwealth a great deal of money, as I understand it, to bring it on tomorrow.

MR KNOWLES:   Thank you, your Honour.

HIS HONOUR:   So, I will adjourn it to 3.00 pm upon the undertaking of the defendant not to remove the plaintiff from Australia for a period of 24 hours, and I shall reserve the costs of this evening’s hearing.  Mr Brown?

MR BROWN:   Your Honour, if the parties are able to reach consent overnight ‑ ‑ ‑

HIS HONOUR:   We should be delighted to hear from you, Mr Brown, at your earliest.

MR BROWN:   I would be delighted to provide that relief, your Honour.  Where would it best go to?

HIS HONOUR:   Call the Registrar please.

MR BROWN:   Thank you very much, your Honour.

HIS HONOUR:   I will adjourn now until 3.00 pm tomorrow.

AT 6.30 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 2 OCTOBER 2015