Plaintiff M47/2012 v Director General of Security & Ors

[2012] HCATrans 142

[2012] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M47 of 2012

B e t w e e n -

PLAINTIFF M47/2012

Plaintiff

and

DIRECTOR GENERAL OF SECURITY

First Defendant

THE OFFICER IN CHARGE, MELBOURNE IMMIGRATION TRANSIT ACCOMMODATION

Second Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Fourth Defendant

COMMONWEALTH OF AUSTRALIA

Fifth Defendant

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 12 JUNE 2012, AT 2.17 PM

Copyright in the High Court of Australia

__________________

MR R.M. NIALL, SC:   If it please the Court, I appear with MR M.P. COSTELLO for the plaintiff.  (instructed by Allens Lawyers)

MS F.I. GORDON:   If it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

MR A.D. POUND:   If it please the Court, I appear for the Human Rights Commission.  (instructed by the Australian Human Rights Commission)

HIS HONOUR:   Yes.  Now, Mr Niall, perhaps if we deal first with your summons.  Your summons is that of 8 June, is it?

MR NIALL:   That is right, your Honour.  Can I first apologise that this has not been dealt with earlier, your Honour.  It fell through and it is my responsibility.  We should not have to do it now at another return date, but we do move on the summons of 8 June supported by the affidavit of Mr Manne affirmed on 8 June and also Ms Trethowan of 8 June.

HIS HONOUR:   Yes.  There does seem a lot of redaction, more than the name.  Is it necessary?  I can understand the need to redact the name and therefore the name of relatives, but we have to go beyond that.  The reason I ask is the purely practical thing, we have to write a judgment and having material that is kept confidential, of course it is not impossible to deal with, we have all had to deal with it, but it just makes it harder.

MR NIALL:   It does, your Honour.  The proposal at the moment is simply non‑inspection of the special case with two versions of the special case; one complete of course but with those bits identified.  We attempted to do it in that way so that the Court is entirely free to write the judgment as may be required rather than seeking a confidentiality order over the material and that is why perhaps – and even with that caveat we have endeavoured to be the most judicious as we could, but certainly at this point, your Honour, the order that we seek would perhaps at least enable the matter to proceed with no difficulty and if any difficulty arises – no difficulty arising in the course of argument, we do not anticipate, and it would be a matter for the Court, with respect, to determine what is necessary to explain the reasons.

HIS HONOUR:   Yes.  Now, you have handed up a form of draft order.

MR NIALL:   I have, your Honour.

HIS HONOUR:   Yes.  Before we come to that, Ms Gordon, what is the attitude of the defendants?

MS GORDON:   The defendants consent to the orders that you have before you, your Honour.

HIS HONOUR:   Yes.  Can I perhaps hand down to the parties the operative part of the draft order that you have supplied, Mr Niall.  You may say that all I am doing is proving that I have read it, but I have in fact tried to make some substantive changes.  You will see in paragraph 2 that paragraph 2 would become an order requiring you to file and serve. 

MR NIALL:   Thank you.

HIS HONOUR:   I have not fixed a time tomorrow, but why should I not fix 10.00 am tomorrow?

MR NIALL:   If your Honour pleases.

HIS HONOUR:   Yes.  That you file and serve copies of the confidential special case attachments redacted to remove the information as indicated and then, as I say at paragraph 3, it demonstrates that I read the draft probably and little more than that.

MR NIALL:   We are indebted to your Honour.

HIS HONOUR:   Yes.  Now, Mr Pound, your client is an applicant for leave to intervene.  I suspect your client has no standing at all to say anything.  Now, with those minatory words ringing in your ears, is there anything you want to say, Mr Pound?

MR POUND:   Nothing at all, your Honour.  I was here on a “just in case” brief.

HIS HONOUR:   Then there will be orders in the terms of the draft as amended by me.  I will initial the draft.  It can remain on the file.  Now, Ms Gordon, there is an auction happening about how long your clients need to have in their written submissions.  Are we still at 35 as the bid?

MS GORDON:   Thirty five is the bid, your Honour.

HIS HONOUR:   You have the unlovely task of attempting to demonstrate to me why you should have any increase.

MS GORDON:   Well, your Honour, the defendants are confronted with three sets of submissions.  Those submissions, of course, include those of the would‑be interveners who naturally seek to put their arguments on a different basis, both to the plaintiff and to each other.

HIS HONOUR:   Yes.

MS GORDON:   Having spent the last three days coming to grips with those submissions, we are in a position to say that it would be very difficult to respond adequately to them in less than 35 pages, particularly in the timeframe involved seeking to condense them may risk compromising the assistance they will offer to the Court.

HIS HONOUR:   The basic problem is that experience dictates that if the submissions are fixed at 20 pages, just about every set you ever picked up comes in at 19 and a half, sometimes at 20 with small font and compressed type.  Submissions, especially in this matter, it seems to me, would benefit from being concise and to the point.  Why do the defendants need 35 pages to demonstrate what they say are the errors in the plaintiff and interveners’ arguments?

MS GORDON:   I can do no more, your Honour, than really repeat the submission that simply while we understand what your Honour is saying about the benefits of being concise, it often takes more time to be concise and accurate and it is probably that factor that is really impeding the defendants’ ability in this instance.  I should add, your Honour, that this is on the premise that the font will be ‑ ‑ ‑

HIS HONOUR:   Proper.

MS GORDON:   ‑ ‑ ‑ proper font and there will be no inordinate compression of the text.

HIS HONOUR:   No, there will be no compression.  You know, some of us are familiar with what Word can do. 

MS GORDON:   I am not sure that I can really ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, so be it.  All I can say to the defendants is that it is not instantly apparent that their argument is advanced by length and it is certainly not likely to be the case that their argument is assisted by prolixity of any sort.  Your submissions are due when, Ms Gordon?

MS GORDON:   Tomorrow afternoon, 4.00 pm.

HIS HONOUR:   You may have the leave you seek.  Where does that auction then take me, Mr Niall?  I see you edge your seat back.  What is coming next, other than let us extend the reply?

MR NIALL:   Out of an abundance of caution, if we could seek seven pages in reply.  If your Honour is not – I will not press ‑ ‑ ‑

HIS HONOUR:   Enough.

MR NIALL:   If your Honour pleases.

HIS HONOUR:   If, by the close of the defendants’ arguments, we have not got to the crystallised point, then either there is no point or the argument has gone awry somewhere.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   It may not be forensically disadvantageous to have the wrath of the Court directed other than at your client for prolixity, Mr Niall, but there we are.

MR NIALL:   If your Honour pleases.

HIS HONOUR:   Who knows about these things? 

MR NIALL:   Not I, your Honour.  The only other issue is on Friday we filed – that is, the parties filed a consent to amending the special case.

HIS HONOUR:   Yes.  Now, in the welter of paper I did not look with sufficient care at what the amendments are that you were proposing.  I saw that you were proposing them and set that aside.  Are they amendments of any significance?

MR NIALL:   Yes, your Honour, in the sense they ‑ ‑ ‑

HIS HONOUR:   They have to be made, yes, I understand that.

MR NIALL:   Yes, but they are not significant in the sense of causing any disruption to anything.  They just are put in a document that ought to have been put in and put in two sentences which just clarify something we have said.

HIS HONOUR:   Can you tell me what they are?

MR NIALL:   Yes, your Honour.  Your Honour, in paragraph 25 there was a reference to ASIO furnishing to DIAC a security assessment.  A copy of the document so furnished is attached.

HIS HONOUR:   Yes.

MR NIALL:   In paragraph - new 33.1A - there was a reference in the special case to the assistance that UNHCR gave to some people from Indonesia who had adverse security assessments.  This simply fleshes that out by a couple of sentences in relation to a refusal to give assistance in relation to people in Australia.

HIS HONOUR:   There is no opposition, is there, to the grant of leave?  Very well, you may have the leave that you seek.  Now, where does that put the parties in getting together the final version of the special case book?  Can I say this to the parties, that we have already distributed electronically the draft special case book so that members of the Court have access to that, but I know there are practical problems.  When do you think we can get to the final version?

MR NIALL:   By 10.00 am tomorrow morning, your Honour.

HIS HONOUR:   I am not intending to make any direction.  All I am saying is that soonest is best. 

MR NIALL:   Well, certainly at 10.00 am at the outside.  The redactions will all fit together.

HIS HONOUR:   Yes.

MR NIALL:   That will complete – our submissions will be in, the amended special case will be in.  We will be waiting for the defendants’ submissions, then our reply submissions and that completes ‑ ‑ ‑

HIS HONOUR:   This is a genuine question, not an interrogative statement.  Is it possible, useful for your end of the – or one end of this transaction to file it electronically as well as in hard?  It just makes our distribution easier if we have a PDF that we can push around.

MR NIALL:   That will be done, your Honour.

HIS HONOUR:   If you are going to create a PDF, can I suggest that you create it as – well, I was going to say the whole of the special case book as a single PDF is probably better simply for searching later, but again, I am making no direction about this.  I am simply inviting your attention to what is going to be a practical thing to do, but will then turn into a practical tool for us to use later, both as to distribution and later as to having the document electronically so that we can search it and in that sense manipulate it.

MR NIALL:   We will file both electronically and in hard copy by 10.00 am tomorrow morning.

HIS HONOUR:   Good.  Is there anything else that we need to pick up or tick off because I know this is coming on promptly, but I think we ought to work on the assumption that this is the last opportunity?

MR NIALL:   Yes, your Honour.  That completes my shopping list, your Honour.

HIS HONOUR:   Not adding any groceries, Ms Gordon?

MS GORDON:   No, your Honour.

HIS HONOUR:   Thank you.

MR NIALL:   There is the question of the list of authorities.  That is due today.  We have not yet read the defendants’ submissions and we were hoping, rather than seek a direction we might perhaps file it.

HIS HONOUR:   I think lists can come a little later in the piece.

MR NIALL:   Yes.

HIS HONOUR:   Bear in mind that the lists are being used primarily for the assembly of the books for the Court to use and material for the Court to use.  Do we have any extraordinary material that is unlikely to be readily available to us in Canberra?

MR NIALL:   I do not think so, your Honour, and if it is we will provide copies to the library in Canberra to ensure that enough copies are available for the Justices to ‑ ‑ ‑

HIS HONOUR:   Right.  Now, what version of the Act are we going to be usefully working off?  Is it enough if we work off Reprint 11?  Do we have to go beyond Reprint 11?

MR NIALL:   Reprint 11, but it will be necessary to have regard to an amendment – we will identify the amending Act, I do not have it in front of me, your Honour – which made some amendments to section 36 which, as your Honour may or may not have noticed, picked up what was called complementary protection provisions in section 36.

HIS HONOUR:   Yes.

MR NIALL:   They are not incorporated as a reprint, but we will identify the amending legislation and place that on the list.  I think that is the main change, which are relatively confined.

HIS HONOUR:   Yes, and there is nothing relevant that has changed when one comes, for example, to Part 9 of the Act, which I notice is the subject of some reference in your submissions – that is the miscellaneous provisions running from 487 onwards?

MR NIALL:   Yes, your Honour.  I will double check, but I do not think so, your Honour, but again we will identify the amending Act.  I think the only amending Act – we will identify all the amending Acts, but the relevant one will be Reprint No 11 and the section 36 amendments.

HIS HONOUR:   Right.  Is there any other aspect of it – just pure mechanics of it which it is useful for us to attempt to pick up at this stage?

MR NIALL:   Would the Court be assisted by – I do not think your Honours will be assisted by an annotated submission because there is so little in terms of the page number of the court book – of the special case.  The footnotes, I think, which identify the reference to the special case will be sufficiently easy to pick up the relevant pages.

HIS HONOUR:   Right.

MR NIALL:   We can do it, your Honour, if the Court would be assisted.

HIS HONOUR:   I think it should be treated as a second or third order requirement.  I suspect that first order requirements are going to dominate.

MR NIALL:   If we could have till Thursday, 4 o’clock for the filing of that list of authorities.  We will ensure with the library that it has what we need and if it does not we will provide it.

HIS HONOUR:   No, can I work backwards.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Thursday is fine, but I would be anxious to avoid the library having any substantial copying task to effect on Friday.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   If it were possible for you to file, together with requisite numbers of copies of those items that are not likely to be readily available in Canberra – I have in mind especially extracts of texts, articles – if you are going to refer to them.  If it were possible for the parties between you to photo them and assemble them into a bundle, that will obviously be much more practically useful than not.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Now, I do know that there are limits to how much time you have, but what I am anxious to avoid is come Thursday night the library is given a list of abstruse material which has to be photo times nine.

MR NIALL:   Yes, your Honour, we will attend to that.

HIS HONOUR:   Yes.

MR NIALL:   Most of the cases obviously will be authorised reports, which present no difficulty.

HIS HONOUR:   None at all.

MR NIALL:   In relation to other material, the parties will work together to provide a joint bundle, I think.

HIS HONOUR:   Yes.  Ms Gordon.

MS GORDON:   Yes, the defendants filed a draft list this morning, so the library ought to have something bearing significant resemblance to what would be the final list so there just may need to be a question of liaising with the library to make sure we are not doubling up.  That is all.

HIS HONOUR:   Yes, above all else no duplication if we can.

MS GORDON:   Yes.

HIS HONOUR:   I know that is hard, but if we can do whatever we can to reduce it that will be of assistance to us.  Now, Mr Pound, particularly the interveners, it occurs to me that there are occasions where interveners want to go beyond material the parties produce and, again, if you could simply note what I have said about production of material with a view to avoiding, as far as we can, any unnecessary late work by the library.

MR POUND:   We will, your Honour.  We will provide copies of anything of that nature.  Can I ask whether the direction, if one were made, about the plaintiff’s list of authority being filed by Thursday applies also to the applicants for intervene, or should we endeavour to file them earlier?

HIS HONOUR:   All I am saying to the parties really is file them as soon as you can.

MR POUND:   Yes, your Honour.

HIS HONOUR:   Now, if the Commission is ahead of the game, put it in. 

MR POUND:   It will be done.

HIS HONOUR:   One would expect that the Commission ought to be playing rather ahead of the game compared with the load that is on the parties.

MR POUND:   Understood, your Honour.

HIS HONOUR:   Is there anything else that counsel seek to raise?

MR NIALL:   No, thank you.

HIS HONOUR:   Thank you, Mr Niall.  Yes, there is, I think, nothing else that needs to be attended to.  There will be orders in the terms as I have indicated.  Otherwise, adjourn the Court.

AT 2.38 PM THE MATTER WAS ADJOURNED