Plaintiff M47/2012 v Director General of Security & Ors

[2012] HCATrans 133

[2012] HCATrans 133

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 WEDNESDAY, 6 JUNE 2012, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR M.P. COSTELLO:   May it please the Court, I appear for the plaintiff.  (instructed by Allens Lawyers)

MR S.P. DONAGHUE, SC:   May it please the Court, I appear with MR N.M. WOOD for the defendants.  (instructed by Australian Government Solicitor)

MR A.D. POUND:   May it please the Court, I appear with MS K.E. FOLEY, for the Commission.  (instructed by Australian Human Rights Commission)

HIS HONOUR:   Now, can I deal with two matters which are perhaps matters of form?  Firstly, the plaintiff should have leave, I think, should he not, to file and serve an amended application for order to show cause in the form of a further amended application for an order to show cause dated and filed on 4 June 2012, and I should further order, should I not, that the special case filed by the parties be set down for hearing by a Full Court on 18 June next at 2.15 in Canberra.  Do the parties or applicants for leave to intervene seek to be heard about the making of either of those orders?

MR COSTELLO:   The plaintiff is content with those orders, your Honour.

MR DONAGHUE:   So is the defendant, your Honour.

MR POUND:   And the Commission, your Honour.

HIS HONOUR:   Yes, thank you.  Now, Mr Donaghue, you move, do you, on the summons of 1 June?

MR DONAGHUE:   I do, your Honour, and I read three affidavits in support.

HIS HONOUR:   Yes, those are the affidavits of Alan Masling sworn 31 May, James Gerard O’Callaghan sworn 1 June and your instructor sworn 1 June.  Is that right?

MR DONAGHUE:   That is correct, your Honour.  Yes, that is right.

HIS HONOUR:   Yes, I assume there is no objection to the reception of those affidavits?

MR COSTELLO:   No objection, your Honour.

HIS HONOUR:   Yes, thank you.  Now, can I just take up with you, Mr Donaghue, the form that these orders may take?  I am not minded to make orders that are directed to the world at large.  I think that the orders have to be directed to particular persons and it occurred to me that a way of dealing with the issue raised by paragraph 1 of your summons may be to make an order that is, first, subject to any further or other order of the Court or a Justice, but second, that would in effect pick up Home Office v Harman [1983] AC by providing something to the effect that the parties to the proceeding and any applicant for leave to intervene in the proceeding, their counsel or solicitors, or the counsel and solicitors I think, may use or disclose the transcript of the interview with the plaintiff conducted on 4 November 2011 being the document which is attachment 5 to the special case only for the purposes of this proceeding and not otherwise.

MR DONAGHUE:   We would be content with an order in that form, your Honour.

HIS HONOUR:   It would be necessary, I think, if an order were to be made of that kind to go on to provide – again subject to any further or other order of the Court or a Justice – that the document which is attachment 5 to the special case not be available for inspection or copying by any person other than the parties to the proceeding, any applicant for leave to intervene or their counsel or solicitors.

MR DONAGHUE:   That order in place of order 2, your Honour?

HIS HONOUR:   It seemed to me that that was the essence of what you sought in order 2, but – and attempts really to just track the form of the rule which permits searching of the file.

MR DONAGHUE:   Yes, your Honour.  I can indicate that we would likewise be content with an order in that form.

HIS HONOUR:   Now, attachment 7, which is the document listing certain countries, is it proposed that first there be an order that it not be available for inspection or copying, an order in the form generally of the kind I have just described in respect of attachment 5, that would prevent searching of it?  Then is it intended that there should be an order in a form that the parties, applicants for leave to intervene, their counsel or solicitors not in any way publish the content of the document which is attachment 7, et cetera?  Is that what is intended?

MR DONAGHUE:   Certainly, the latter is, your Honour, yes, in the sense that we would seek that anyone who has access to the content of attachment 7 not publish it.

HIS HONOUR:   Yes.

MR DONAGHUE:   At present, your Honour, my instructions – your Honour, can I just have one moment?

HIS HONOUR:   Yes, of course.

MR DONAGHUE:   Thank you.  We only received a request from the proposed intervener this morning for access to attachment 7 and I have been seeking instructions about it.  I have just been instructed that we are content for the intervener and the other proposed intervener, the other party, to have access to the contents of attachment 7, subject to a non‑publication direction of the kind that your Honour just mentioned.

I am instructed that if there were to be multiple other applications for intervention we might take a different approach in the future, but presently, your Honour, my instructions are consistent with what your Honour just put to me, that we would be content with an order that both prevented searching of the file and then required non‑publication by any party or intervener or their counsel or solicitors of the content of attachment 7.

HIS HONOUR:   Yes.  Then if I were to reserve liberty to apply and make the costs costs in the proceeding, would that sufficiently cover what is sought in the summons?

MR DONAGHUE:   Yes, it would, your Honour.

HIS HONOUR:   Yes.  Mr Costello, does the plaintiff seek to be heard in relation to these orders?  Do you in particular seek to be heard about either whether there should be special confidentiality regimes for the interview and the list of countries or about the form that I propose to give effect to the proposal that there should be confidentiality?

MR COSTELLO:   Your Honour, we have no objection to orders being made in the form that you have proposed.  The position we have adopted until now is that we are content for orders in the form that the defendants had sought to be made in respect of confidential attachment 5 and we took no position in respect of confidential attachment 7.  In our respectful submission, the orders your Honour has proposed in respect of confidential attachment 5 would suit the purposes of the plaintiff ‑ ‑ ‑

HIS HONOUR:   Simply, I have difficulty about making orders directed to the world at large.

MR COSTELLO:   Quite.

HIS HONOUR:   It always seems to me to have its own curious oddities about it.

MR COSTELLO:   We understand that, your Honour.

HIS HONOUR:   Yes.  Now, Mr Pound, what about the Human Rights Commission?  Do you seek to be hard in respect of any of these issues?

MR POUND:   No, your Honour, the Commission’s appearance this morning was only directed to seeking access to attachment 7 and that has now been resolved.  We have already been provided with attachments 1 to 6, so I have no submissions to make on the form of the orders and we make no objection in relation to them.

HIS HONOUR:   Yes.  The form of orders I propose refers generally to applicants for leave to intervene.  I am conscious, of course, that there either are or it is intended that there will be applications for leave to intervene by your client, Mr Pound, the Human Rights Commission, but also by the applicant in the proceeding ‑ ‑ ‑

MR POUND:   I think S138, your Honour.

HIS HONOUR:   Is it S138?  I can never remember the numbers.  Yes, the Sydney proceeding that raises or is said to raise similar issues.

MR POUND:   Yes, I understand that is the case.

HIS HONOUR:   Now, I suppose also – and this may be more directed at you, Mr Donaghue – I suppose also that if there were intervention on the 78B notices, Attorneys intervening would be sufficiently encompassed I think by orders of the kind I have described, would they, or is it desirable

that that be either left over until we know whether there are going to be interventions or do we attempt to cope with it proleptically now?

MR DONAGHUE:   It was that thought, your Honour, that led to me reserving my position as to other future interventions because my instructions at the moment do not extend to it.  I think that your Honour has reserved liberty to apply and in the event that we have a difficulty with access ‑ I think your Honour’s current orders would extend to allowing access to any intervening Attorneys.  If we sought to modify that position then we would exercise the liberty to apply, but I hope that would not become necessary.

HIS HONOUR:   Yes.  It may well be that we can deal with any issue of that kind on the papers ‑ ‑ ‑

MR DONAGHUE:   Yes, thank you, your Honour.

HIS HONOUR:   ‑ ‑ ‑ and just not to drag the parties back unless we have to.  Very well, is there anything else that needs to be said about these matters at the moment?  I dare to ask the parties, are we on track for getting this thing up and ready in time for us to start the hearing?

MR DONAGHUE:   From the defendant’s point of view, we are, your Honour.

HIS HONOUR:   And the plaintiff, Mr Costello?

MR COSTELLO:   I think I can say the same, your Honour.

HIS HONOUR:   Your confidence is overwhelming, Mr Costello.  Very well.  Mr Costello, you may take orders giving you leave to file and serve the amended application for an order to show cause in the form of the further amended application for order to show cause dated and filed 4 June 2012.  There will be a further order that special case filed by the parties be set down for hearing by the Full Court on 18 June next at 2.15 in Canberra.  On the summons of the defendants of 1 June, there will be orders as follows:

1.Subject to any further or other order of the Court or a Justice:

(a)The parties to this proceeding and any applicant for leave to intervene in the proceedings, their respective counsel and solicitors may use or disclose the transcript of interview with the plaintiff conducted on 4 November 2011, being the document which is attachment 5 to the special case, only for the purposes of this proceeding and not otherwise;

(b)The document which is attachment 5 to the special case is not to be available for inspection or copying by any person other than the parties to the proceeding, any applicant for leave to intervene in the proceeding or their respective counsel or solicitors;

(c)The document which is attachment 7 to the special case is not to be available for inspection or copying by any person other than the parties to the proceeding, any applicant for leave to intervene in the proceeding or their respective counsel or solicitors;

(d)The parties to the proceeding, the applicants for leave to intervene in the proceeding and their respective counsel or solicitors are not in any way to publish the content of attachment 7 to the special case.

2.Reserve liberty to apply to any party or applicant for leave to intervene on not less than 24 hours’ notice in writing to opposite parties and applicants.

3.Costs of the application will be costs in the proceeding.

Mr Costello, do you seek to be heard further?

MR COSTELLO:   I do, your Honour, something that has just been brought to my attention in respect of confidential attachment 5 to the special case.  We are concerned that confidential attachment 5 not be provided to the plaintiff in proceeding S138 in the event that they intervene.  The reason for that is there is a variety of information in that document that, if in the hands of another refugee, could cause difficulties.  I am sorry to raise that at this stage, but I have only just been made aware.

HIS HONOUR:   Yes.  Well, Mr Donaghue, what are we to do?

MR DONAGHUE:   Your Honour, for our part we would not oppose a variation that restricted access to that attachment by that intervener.  It would to some extent inhibit the capacity of that intervener to make submissions on the content of the interview, but as I understood Mr Kirk’s submissions to your Honour when the application to refer to ‑ ‑ ‑

HIS HONOUR:   He seeks to intervene on the constitutional side of it.

MR DONAGHUE:   Indeed.

HIS HONOUR:   I see the force of the point.  How do I give effect to the intention that that intervener, or that applicant for leave to intervene – not yet an intervener – that applicant for leave to intervene not have access to this document?

MR DONAGHUE:   I think, your Honour, by amending in orders (a) and (b) the reference to “any applicant for leave to intervene” to make it a reference to the Australian Human Rights Commission.

HIS HONOUR:   Yes.

MR DONAGHUE:   I should say, your Honour, that would have the consequence that in the event that any other Attorney seek to intervene we would need to submit a variation of the orders, but I think we can cross that bridge if it becomes necessary to do so.

HIS HONOUR:   Yes.  It would be necessary, therefore, to make amendment to paragraphs (a) and (b) of the orders that I previously indicated by deleting the references in each subparagraph to “any applicant for leave to intervene” and substituting for that the expression “the Australian Human Rights Commission”.  Would that achieve the result, Mr Donaghue?

MR DONAGHUE:   I think it would, your Honour, yes.

HIS HONOUR:   Yes.  Mr Costello?

MR COSTELLO:   Your Honour, we would be content with that.  In fact, we think that that would be preferable because it may be that there are in fact other documents in the special case that may cause a similar difficulty.

HIS HONOUR:   Well, that is a whole new can of worms, Mr Costello.  It is not one that you should go away thinking I have addressed.  I have not.

MR COSTELLO:   No, your Honour.

HIS HONOUR:   I have dealt only with these two documents.  If there are other difficulties, you are going to need to exercise the right to – the liberty to apply.

MR COSTELLO:   Yes, thank you, your Honour.

HIS HONOUR:   Yes.  Well, then, unless there are other issues that are to be raised there will be orders in the terms I have indicated.

Adjourn the Court.

AT 9.49 AM THE MATTER WAS ADJOURNED