Plaintiff M47/2012 v Director General of Security & Ors

[2012] HCATrans 127

[2012] HCATrans 127

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

Application for an order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 28 MAY 2012, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR R.M. NIALL, SC:   May it please the Court, I appear with MS K.L. WALKER and MR M.P. COSTELLO for the plaintiff.  (instructed by Holding Redlich)

MR S.P. DONAGHUE, SC:   May it please the Court, I appear on behalf of all of the defendants.  (Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Niall.

MR NIALL:   If your Honour pleases, the proceeding seeks essentially to raise two issues.  One is the lawfulness of the detention of the plaintiff and the second is the lawfulness of a security assessment issued in respect of him.

HIS HONOUR:   Which is the logically prior issue?

MR NIALL:   In one sense they are independent in this sense, your Honour.  The lawfulness of the detention arises whether or not the security assessment is lawful.

HIS HONOUR:   How?

MR NIALL:   On the basis that even if the security assessment is lawful, in our submission, section 198 of the Act will not authorise the removal of a refugee and therefore the purpose for his detention will not be one authorised by the Migration Act.

HIS HONOUR:   Why will 198 not be engaged?

MR NIALL:   In our submission, 198 does not apply or should be read down as to not apply to a person who is owed protection obligations under the Act and the plaintiff is such a person.

HIS HONOUR:   How, if at all, does that sit with Articles 32 and 33 of the Convention?

MR NIALL:   In terms of Article 33, it is our submission that the status of the plaintiff as a refugee precludes his refoulement to Sri Lanka and that the position for the purposes of the Act is that he is not either excluded from the protection of the Act or someone in respect of whom Australia can conform with its obligations, refoule him to Sri Lanka.

HIS HONOUR:   What I have in mind is that Articles 32 and 33 seem to deal expressly with questions of security.  What I want to know is how, if at all, those articles speak, if they speak at all, in the present context?

MR NIALL:   In our submission, they do not speak on this basis, your Honour, that the protection that the Act identifies as the protection of refugees for the purposes of Article 1A and that it would not cover a person who is subject to the exclusion provisions of the Convention, but it does afford protection even in relation to Article 32.2.  We do not understand that the Minister or the defendants contend that he is excluded, that is, the plaintiff, is excluded from protection obligations by dint of 32.1 on the basis that, for the purposes of the Migration Act, it is authorised to expel him on the grounds of national security.

The provision in relation to national security arises under the regulations, not under the Act and there is nothing in section 36, it focusing on, in our submission, Article 1A of the Convention.  Section 36 does not contemplate that protection obligations are not owed to someone who could be expelled on the grounds of national security.

HIS HONOUR:   Now is not the time to reach any conclusion about any of these issues, I understand that, but I do need to understand better than I presently do, I think, what kind of issue is raised about 198 because until I know that, I am wary of the proposal that this case should be split. 

MR NIALL:   Yes, your Honour.

HIS HONOUR:   The Commonwealth, as I understand their submission, say this case is to be split between the ASIO assessment issues, one set, that is to go off, they say, to the Federal Court, and that there should be another separate set of issues identified which, at the risk of far too much abbreviation might be described as the Al‑Kateb issue, which should stay in this Court.  Now, splitting cases sounds as though I ought to know why.

MR NIALL:   Yes, your Honour.  Can I submit what we say should happen?

HIS HONOUR:   Yes.

MR NIALL:   In our submission, both matters should proceed together.  When I submitted a short while ago that they are independent, they are in one sense, but the construction of 198 needs to be informed by the whole of the Act and may be informed by some of the provisions of the regulation bearing in mind the difficulty of working back up from a regulation to the Act, whether there is a scheme erected.  Now, one of the issues that may arise is the interaction between 4002 criterion in relation to ASIO and the way that the Act contemplates section 36 operating, because on one reading of section 36, it operates to ordain a particular class of visa with a particular criterion not to be undermined by regulations.

HIS HONOUR:   Hence my question about Articles 32 and 33 of the Convention which direct themselves expressly to this notion of expulsion of persons otherwise qualified as refugee on security grounds.

MR NIALL:   They do, your Honour, and that does ‑ ‑ ‑

HIS HONOUR:   That in turn, I would have thought, may have, I do not know, it may have led to rather close attention to the content of 32.2 of the Convention and an intersection with Part IV of the ASIO Act.

MR NIALL:   That is so, your Honour.  Perhaps I spoke too quickly to say that there was no connection.  There plainly is a connection between the construction of 198 and the potential intersection of security considerations either in the regulations or even, indeed, in another statute, the ASIO Act.

HIS HONOUR:   I have looked at this and I have heard no argument, but it seemed to me that the ASIO Act in Part IV seems to say – I am open to correction at once – but it seemed to me to be saying that when ASIO performs an assessment for purposes of the Migration Act, those provisions of Part IV which would require Commonwealth agencies to give the person subject to the assessment particular documents and would open a tribunal path, at least to my untutored reading, seemed to me not to be available in cases where the ASIO Act is engaged in respect of Migration Act decisions.  Where that takes us, I do not know, but at some point somebody is going to have to explain, if not to me, then to a Full Court or to a judge in the Federal Court how all this works.

MR NIALL:   Certainly, your Honour, there is an intersection between Part IV and it arises also in relation to people who are to be deported, which is not ‑ ‑ ‑

HIS HONOUR:   But separately.

MR NIALL:   Separately.

HIS HONOUR:   Yes.

MR NIALL:   And those people who have been convicted of an offence.  So that would be relevant to construction.  What we would invite your Honour to do is give the parties and opportunity to try and agree some facts in relation to all of the proceeding.  Now, the Commonwealth – and Dr Donaghue will explain this to your Honour – are wary about the possibility of agreeing facts in relation to the security issue, but we would like that opportunity, your Honour.

HIS HONOUR:   There is this difficulty about this, Mr Niall.  This is a habeas application.  It is urgent.  The Court takes a recess in July.  If this is going to come on, it should come on very promptly and when is all this going to be done?

MR NIALL:   Well, your Honour, we appreciate the nature of the proceeding and we appreciate that our ‑ ‑ ‑

HIS HONOUR:   I am glad you do.

MR NIALL:   And we appreciate that our client remains in detention and has been for some time.  We have spoken to him about that.  What we would ask, that the matter be progressed with a view to having it heard in the August sittings of the Court.

HIS HONOUR:   There is another factor at play in this, Mr Niall.  If Al‑Kateb is going to be on the table, it is highly desirable that this be heard and determined by a Bench of seven.  Composition of the Court must change this year.  It will be better if this case is ready for hearing this side of the recess.  Now, I understand there are minor practical problems about getting a case ready.  I do actually understand that these things do take a little time and more than a little thought, but the Court is in a position where we need to be conscious of these timing issues.

MR NIALL:   We appreciate that, of course, your Honour, and ultimately it is a matter for the Court.  The August sittings would give the parties an – and if it is not to be so, it is not to be so, your Honour.

HIS HONOUR:   Let us see where we get to by the end of this directions hearing about what has to be agreed or not to be agreed, Mr Niall.  Can I say this to you?  There is a deal of pressure, I think, for this matter to come on before the July recess if it going to come on in this Court.  I do not say that that is the only way we can solve this problem.  I make no definitive statement like that, but it would be better, much better if it could, assuming we can actually get it up and together.

MR NIALL:   Well, there are plainly strong considerations which suggest that both parts of the case should be heard together.  One of those strong factors is the potential interaction between the articles your Honour has identified of the Convention, the statute and the ASIO statute.

HIS HONOUR:   But there is this further point, it seemed to me.  Is not the fact that there is an adverse assessment in respect of this plaintiff logically prior to at least some, perhaps all, but at least some of the arguments that are in play, that is, here is a person found to be a refugee in respect of whom there is an adverse assessment that is not open to attack or is not subject to attack and then the question emerges, perhaps, well, what can be done with the plaintiff?  The Commonwealth will tell me presently what they say can be done with the plaintiff in that set of circumstances, but it may be that the validity of the assessment or whether it can be challenged is itself logically prior to the other issues.

MR NIALL:   In terms of whether it can be challenged in terms of jurisdiction is if there is no difficulty.  In terms of grounds, we submit there is no difficulty in the sense that the ground that we have identified is one which reflects a duty or obligation which the defendants accept as owing.

HIS HONOUR:   Yes, natural justice.  Now, as to that, is there anything left on the table about the 2009 assessment?

MR NIALL:   As we understand it, no, your Honour.

HIS HONOUR:   It seemed to me that there was nothing left alive of that.

MR NIALL:   That is so, your Honour.

HIS HONOUR:   But if that is the view that the plaintiff takes, well and good.

MR NIALL:   Now, in terms of the 2012 assessment, can I just identify what, from our point view, the relevant facts would be.  That is that there was, as your Honour may have seen in the material, there was a settlement of the proceeding in the Federal Court which identified as a term a meaningful opportunity to respond to allegations.

HIS HONOUR:   Yes.  I am not entirely sure why we keep going back to this settlement.  I know we always want to go back to our own cross‑examinations and our own settlements, but what do we get out of this?

MR NIALL:   Well, we submit that that is one of the obligations the defendant had, but ‑ ‑ ‑

HIS HONOUR:   Is this larger than the common law obligation of procedural fairness, different from?

MR NIALL:   Our primary position is not.  Then we had an interview which is recorded.  So we know what it is to the extent that anything was put to the plaintiff and, having read that, we will make a submission that there was no meaningful identification of allegations or material that could be responded to sounding in a breach.  Now, that is our factual case, that we had an interview, we have the transcript.  We have not put in evidence as yet.  We wanted to deal with the defendants about the content of that as to whether there is any sensitivity about any of it.  That is our factual case, your Honour.  What the defendants want to put on we are not sure and how that material might be managed again presents its own difficulties.  It may do.

HIS HONOUR:   Maybe.

MR NIALL:   It may be.  Now, we could agree, from our point of view, identify the facts which we say go into the special case on both sides very quickly, shortly.  We are talking a couple of days, your Honour.  How the Commonwealth and the related defendants respond to it, Dr Donaghue might be in a better position to identify further.  That having been done, we would see your Honour referring a special case in dealing with both issues and directing in relation to submissions accordingly.

HIS HONOUR:   Yes.

MR NIALL:   As a matter of perhaps labouring the point, as a matter of our own resourcing and availability, 19 June presents real difficulties in terms of preparing the matter, which is the last week of the sittings this side, as your Honour knows, and for our point ‑ ‑ ‑

HIS HONOUR:   Are they insuperable?

MR NIALL:   Extremely difficult, your Honour, but we will do our best, of course, but for our submission and for our client’s position, in terms of refining and building and developing the written submissions and preparing

for trial our side would be much better served by a hearing date as I have earlier indicated to your Honour, which we have taken on express instructions, your Honour, and that is the position for the plaintiff, but we do appreciate the other matters in play that your Honour has identified.

HIS HONOUR:   Yes, thank you, Mr Niall.  Yes, Mr Donaghue.

MR DONAGHUE:   Thank you, your Honour.  Your Honour, our starting point was that we anticipated that the Court would sit to hear the Al-Kateb aspect of the case, if I can call it that, before July and we are confident that that can be accommodated properly and are happy to abide by whatever arrangements the Court wants to put in place, but, as we said, the factual foundation for that part of the case is pretty limited, should be able to be ‑ ‑ ‑

HIS HONOUR:   Is one of the facts for that part of the case the fact of an adverse security assessment?

MR DONAGHUE:   The fact that there is one?

HIS HONOUR:   Yes.

MR DONAGHUE:   Probably, yes, your Honour.

HIS HONOUR:   Does that not inevitably bring up with it the challenge to the validity of what – putting tendentiously, there is an assessment now but it is said there is no assessment because there was no procedural fairness, so do you see the point?

MR DONAGHUE:   I do, your Honour.  We can really understand that there are numerous ways in which the assessment could be argued to be relevant to the validity of detention.  Our proposition in suggesting separation focuses very much on the way we understand the plaintiff actually wants to put their case and, as we understand it, their argument is that detention for the purpose of removal to a safe third country is not authorised by 189, 196, 198. 

The Commonwealth does not wish to remove the plaintiff to Sri Lanka.  If it did, then that would squarely raise the Article 32 and Article 33 questions that your Honour has raised with our friends, but, as I understand it, no one wants to contend that removal to Sri Lanka is reasonably practicable and, as we apprehend it, given that state of affairs, the legal issue that is raised is the Al-Kateb issue in a slightly different factual context where the problem with finding a country to which removal is possible is not caused by statelessness but caused by the need to find a safe third country, but otherwise the legal issue is, we submit, on all fours with Al-Kateb.

HIS HONOUR:   In respect of a person whom Australia assesses to be directly or indirectly a threat to the security of Australia?  Is that the question more fully stated?  That is, can you remove to a safe third country a person who Australian security authorities assess to be directly or indirectly a security threat?

MR DONAGHUE:   As I apprehend it, your Honour, the way the plaintiff would put it is, can you remove someone Australia assesses to be a refugee to a safe third country?

HIS HONOUR:   Maybe.  It may be that is their articulation but is it an element of the question that would fall for determination that the person can be described as a person whom Australian security authorities assess to be – what is the expression – directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act?

MR DONAGHUE:   Your Honour, I think not.

HIS HONOUR:   Why not?  If that is not part of the description, we are to shut our eyes to that fact, are we?

MR DONAGHUE:   Well, your Honour, I said that I thought it would be a relevant fact because it explains why the fact of assessment as a refugee and the fact of an adverse security assessment explains why the plaintiff has not received a protection visa, notwithstanding the assessment that he is a refugee, but the legal question, as we understand it, about removal – so it is a relevant fact in that sense, but, as we understand it, the legal question raised is, does the Act authorise the removal of a refugee from Australia to a safe third country?  If that is an accurate statement of the legal question, we submit that it is possible to sever the case.

HIS HONOUR:   Hence my inquiry about Articles 32 and 33 and, in particular, the engagement of Article 32.2 and whether, where Part IV of the ASIO Act, expressly excludes, or seems to expressly exclude, review at which a “refugee shall be allowed to submit evidence to clear himself”, from Article 32.2, whether those articles speak, and if they speak, how they speak to the question generally described as, can Australia remove a refugee.  The Convention deals with these questions of security.

MR DONAGHUE:   Your Honour, I accept that and we ‑ ‑ ‑

HIS HONOUR:   Does the Commonwealth have a position yet which you are in a position to state, about whether Article 32 and Article 33 are engaged, that is, are engaged in a form that would permit Australia to remove this plaintiff to Sri Lanka?

MR DONAGHUE:   I have instructions that the Commonwealth does not propose to take that course of action.  The Commonwealth does not submit that there is an exact coincidence between the formula and the regulation assessed as a direct or indirect risk to Australia’s national security on the one hand and Articles 32 and 33 on the other.  There is clearly overlap but we submit that there is not exact correlation, so that the answer to one does not answer the other.  Now, beyond that, your Honour, I am not in a position to ‑ ‑ ‑

HIS HONOUR:   I understand that, hence the manner of my framing the question.

MR DONAGHUE:   Yes.  Well, your Honour, I am certainly not denying the possibility that the kinds of issues that your Honour has raised with my learned friend and I could arise, but we submit, given the way they have formulated the case, it would be open to the Court to determine the Al‑Kateb issue, if I can call it that, without having engaged with the security assessment issue.  That issue – well, your Honour, can I put it this way – we are much less confident that it will be possible for all of the underlying factual issues to be the subject of agreement between the parties in a timeframe that would then permit the proper preparation of legal submissions and a hearing before the recess.

HIS HONOUR:   May I take it paragraph 12(a) of your written submissions for today ‑ ‑ ‑

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ you posit two cases there:  a case where the plaintiff was “aware of the critical issue on which the security assessment was based”, the second case you posit after the words “and if not” is “whether further information as to the basis for the adverse security” I assume assessment “could have been disclosed to him consistently with the requirements of national security.”  Which of those cases do you say is engaged here?

MR DONAGHUE:   Your Honour, I am not in a position to exclude our reliance on the…..Your Honour, certainly I would expect that the second limb, the “if not” limb will be part of our case.

HIS HONOUR:   You are telling me that it is not yet clear what your answer is?

MR DONAGHUE:   Well, your Honour, I am saying that, as I understand my instructions at present, we will submit that more could not have been disclosed consistently with the requirements of security.  That is not to rule out the possibility that we also say that enough was disclosed so that the plaintiff was aware of the key issues on which the assessment turned, but, your Honour, this has come on quickly and we have not had an opportunity ‑ ‑ ‑

HIS HONOUR:   Of course it has come on quickly, Mr Donaghue.  A man is in detention ‑ ‑ ‑

MR DONAGHUE:   Of course, your Honour.

HIS HONOUR:   ‑ ‑ ‑ and I expect the Commonwealth to know what its case is.

MR DONAGHUE:   Well, your Honour, I have submitted to the Court that we will certainly be submitting that that second limb is engaged.  Whether or not the first limb is sufficiently engaged requires a matter of judgment about the evidence and that is not a judgment upon which I yet have final instructions.

HIS HONOUR:   Is there any reason why the plaintiff should not file and serve very promptly an affidavit to which is exhibited the transcript to the interview to which reference has been made?

MR DONAGHUE:   Upon my instructions, your Honour, yes, there is a reason he should not do that.

HIS HONOUR:   When are you going to be in a position to have instructions on these issues, Mr Donaghue?

MR DONAGHUE:   Your Honour, I said on my instructions there is a reason he should not do that.

HIS HONOUR:   Yes.  When are you going to be in a position to tell me what the Commonwealth’s position is in connection with the security side of this?  That is, if I were to say that the case is not to be split, when are you going to be in a position to tell me what evidence can be put on by when?

MR DONAGHUE:   Your Honour, my friend has made some submissions this morning about what they seek.  He has not said that they seek to press their application for access to the underlying security assessments.  If that is the position, then I would anticipate – and the issue is the transcript of the interview that took place and that that is the case they wish to put forward very quickly, your Honour.  I could get instructions about that aspect of the case within a matter of a day or two.

HIS HONOUR:   What orders do you say I should make today?

MR DONAGHUE:   Your Honour, we submit that the prospect of factual agreement on the procedural fairness part of the case is much lower than our friends suggest.  If that is so, we would submit it would be undesirable for the preparation of the matter to be slowed down by negotiation on that part, but if as your Honour has indicated your Honour is minded to keep the whole case together, then we submit that it would be appropriate for the orders that my friend has proposed, for them to provide us with a draft stated case and for us to respond within a short time to the facts that they propose and your Honour can then consider whether the matter is in a state to be referred in to the Full Court.

If Your Honour was minded to further consider our application to sever the case, then that is still our preferred position because we submit that it would then be possible to make orders now that would take the matter directly towards a hearing later in June on the Al‑Kateb part of the case.

HIS HONOUR:   Is there any reason not to stand the matter over to be heard by video link further tomorrow at say 3.00 or 3.30, by which time I would expect the Commonwealth to have worked out what its position is?

MR DONAGHUE:   No, your Honour, I do not oppose that.  I apologise if I have been unclear, your Honour.  I have not meant to be unclear as to our position.  We certainly, on the natural justice part of the case, do submit that there are national security considerations associated with the degree of disclosure that is posited, but I would not oppose your Honour standing it over in that way.

HIS HONOUR:   Is there anything else you want to say about the proposition that the validity of the assessment is logically prior to the question of a power to detain?

MR DONAGHUE:   Your Honour, only this.  As we apprehend the operation of 189 and 196, having been taken into immigration detention, the detention is lawfully authorised by the Act until the grant of a visa or removal, relevantly.  The adverse security assessment itself may explain why a visa was not granted, but we submit is not legally relevant to the validity of the detention.  In circumstances where the person detained has not been granted a visa and where they are detained for the purposes of removal, we submit that their detention is valid and that that is so irrespective of the validity of the adverse security assessment. 

That is why we say the case can be severed because if we are wrong in that proposition, we are wrong, whether or not the adverse security assessment was valid.  The validity of the adverse security assessment might bear on the validity of the refusal of the protection visa, but, as things presently stand, there is no visa and, therefore, that part of 196 is not engaged and so the validity of detention turns upon, we submit, the reasonable practicability, whether detention is for the purpose of removal.  That is why we submit that the issue is not logically prior, given the way the plaintiff seeks to challenge their detention.

HIS HONOUR:   The question of whether that can be detention for removal, can that question be amplified as being, can there be detention for the purpose of removal where it is accepted that it is not reasonably practicable to remove to the country of nationality?

MR DONAGHUE:   Yes.

HIS HONOUR:   And where removal otherwise is affected by, influenced by the existence of adverse security assessment by Australian authorities?

MR DONAGHUE:   I would not accept that last dimension, your Honour.  That may be a fact that has some bearing upon practicability of removal, but we submit that detention can be for the purpose of removal to a safe third country without reference to that fact.  That is just one matter that, amongst many matters, will bear upon the practicability of removal.

HIS HONOUR:   Yes. 

MR DONAGHUE:   If your Honour pleases, those are our submissions.

HIS HONOUR:   Yes.  Mr Niall, there are some practical issues at stake in this case.  If I stand this over until tomorrow afternoon, what are the parties going to be able to achieve in the intervening period?  Are you going to be able to put together a draft special case that is worth consideration?  Is there anything to be achieved by my putting it over?  Are we in a position where this is getting lost in the trials of preparation?

MR NIALL:   We can prepare a draft special case, your Honour, but the two matters that I wanted to submit – firstly, your Honour, Dr Donaghue’s submission really proceeded on a factual scenario about reasonable practicability in relation to a country other than Australia and there is an anterior question to that which, in my respectful submission, your Honour is alluding to in relation to the nature of the power in 198(2) independently of the facts but which are heavily dependent upon whether or not there is this adverse security assessment or, although perhaps not appreciating it, we do submit that there is an anterior question about the lawfulness of the assessment because one of the questions that we contend for is that it is not possible to remove a person under 198(2) “is owed protection obligations”.

Now, that will require some exposure of whether that includes someone who is the subject of an adverse security assessment.  As a question of law, we contend he is not such a person and in terms of resolving that question, it should not be on an assumption as to his status, but rather having either anterior – as anterior exercise or as part of the same exercise determining the nature of his lawful status, vis-à-vis the ASIO Act.  So we do belatedly appreciate the power is entangled between the two Acts.

HIS HONOUR:   But does that suggest that if the naked question of power to remove is to be agitated, it is better agitated in another vehicle, a vehicle in which there is not this challenge to the security assessment?

MR NIALL:   We submit not, your Honour, in the sense that the plaintiff does seek to resolve his status and he does have an alternative contention that even – he would be, on his alternative case, in the same position as someone who does not challenge the adverse security assessment, that he has a lawful security assessment and there is still a question of its intersection with 198.

HIS HONOUR:   But he is a man who also says, “Listen, if I’d had procedural fairness, I would have known better than I did what I was answering and I’ve got a proper answer and because I have a proper answer I would have been entitled to a protection visa” end of game, end of detention.  That is stream one of his case, I assume.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   It is not just “Show me procedural fairness to get me to the same answer”. 

MR NIALL:   No, your Honour, that is right – that he was denied the possibility of a different result in relation to ‑ ‑ ‑

HIS HONOUR:   Yes.

MR NIALL:   It remains the case, even with procedural fairness, as a matter of substance he could still be in the same position as he is in now. 

HIS HONOUR:   Of course, yes. 

MR NIALL:   So, for our part, the facts – and I think I have said this to your Honour – the facts that we want to adduce, we can do so and we can identify them in a special case or endeavour to do that by 3 o’clock tomorrow, but in terms of your Honour asking about insuperable difficulties with the hearing in June, one of the difficulties is that Ms Walker will be overseas and the truncated timetable and new counsel does present a very serious burden.

HIS HONOUR:   I understand that.  I will not tell you that I was considering the Brisbane sittings as a possibility.

MR NIALL:   If your Honour pleases, but the same difficulties. 

HIS HONOUR:   Now, can I deal with some matters which you may say are pettifogging in their detail, but can I take you to your application?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Perhaps I am proving no more than that I have read it, which is not a particularly productive course to follow.  May I take you to page 9, paragraph 30.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Is the cross‑reference to “paragraph [28]” right or is it intended to be a cross‑reference to paragraph 29?

MR NIALL:   It is 29, your Honour.

HIS HONOUR:   Yes.  Paragraph 34, are the cross‑references right there?  If they are not, can we get them fixed?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   In light of what has been said about the 2009 assessment, are we concerned at all about that henceforth?

MR NIALL:   No, your Honour.

HIS HONOUR:   Are we concerned at all about the settlement of the 2009 assessment litigation?  It is at this point counsel is asked to remove the piece of string which is holding up the trousers as well as the belt and the braces.  You can leave the belt and braces, but do you need the piece of string as well, Mr Niall?  You might.  If you do, you do.

MR NIALL:   No, your Honour.

HIS HONOUR:   Yes.  Right.  Then the draft of the case can be shorn of those details, can it not?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Now, in the intervening less than – it would be a bit more than 24 hours – it would be of great assistance if we could get to some landing about what is to happen about this interview.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   That, no doubt, is principally a matter for the Commonwealth to determine, but – I will say no more about it.  It was an interview that was held not, I think, under any statutory veil of secrecy.  Perhaps it was.  There we are.  It is asserted in your application at paragraph 24 that the plaintiff is “unable to be sent to Sri Lanka and there is no other country to which he can be sent”.  I draw the parties’ attention to those statements and simply invite their attention to whether that is agreed to be the situation or some rather more qualified or nuanced statement is to be made, but those are matters for the parties to, no doubt, give some careful consideration to.

Now, matter of practical reality, when can you get a special case done in a form that is worth looking at by your opponent?  When can they have sufficient time to give proper consideration to it?  It is no good giving it to them and saying right, let me have your answer in five minutes.  The arteries of government move a little more slowly than that. 

MR NIALL:   We could serve a draft special case on Wednesday morning, your Honour.

HIS HONOUR:   Yes.  What I might do is I might simply stand this down for 10 or so minutes.  I am in Court on – I could either hear it by video tomorrow afternoon, possibly could do it by video Wednesday morning.  I am not sure of that, I will need to check my commitments.  I suspect Wednesday morning is likely to be more practical to enable people to do a draft, think about the draft, settle the draft, give it to the other side so that the other side can look at it, think about it, obtain instructions and so on.  But in light of that information what I might do is I might leave the Bench for 10 or so minutes, leave the parties to actually talk amongst each other – which is a remarkable thought – and come back at – what shall I say, 10.30, and see where the parties think they can get to in the intervening time.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Is there anything else that I should do before I leave you to it?

MR NIALL:   No, your Honour.  We will do that with a view to getting the matter ready as quickly as possible.

HIS HONOUR:   All right, 10.30 I shall return.

AT 10.17 SHORT ADJOURNMENT

UPON RESUMING AT 10.30 AM:

HIS HONOUR:   Yes, Mr Niall.

MR NIALL:   Thank you, your Honour, for the time.  We have indicated to the defendants that we will provide a draft special case to them by 1 o’clock tomorrow.

HIS HONOUR:   Yes.

MR NIALL:   With a view to providing your Honour with a draft on Wednesday morning, with a view to that course, your Honour, in the expectation that your Honour might be able to list the matter on that Wednesday.

HIS HONOUR:   Now, what time is going to be convenient – 9.30 or do you want – I am happy to list it later if that is going to be convenient.

MR NIALL:   I think later, your Honour.

HIS HONOUR:   How late do you want?  Do you want it at 11 or 11.30 or ‑ ‑ ‑

MR NIALL:   Your Honour, 11.30 would be convenient, if that is convenient to your Honour.

HIS HONOUR:   I am reluctant to go much past 11.30.  Is 11 o’clock satisfactory to counsel?

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Now, is there anything else then that I would need to do, other than adjourn the matter for further directions by video link at 11.00 am on Wednesday and reserving costs?  Is there any other order or direction that would be necessary?

MR NIALL:   No order or direction, your Honour.  Is your Honour able to at least provisionally indicate when the matter, if it is to be referred, might be heard by a Full Court?

HIS HONOUR:   No, is the short answer.  Can I tell you what seem to be the possibles.  We presently are fixed for the week – is it commencing 18 or 19?

MR NIALL:   Tuesday, the 19th, I think.

HIS HONOUR:   Yes.  Best bet I can offer at the moment is that if we were to do it this side of the July recess, it would be in the week of 18 June.  What I would have in mind – because this would involve cases coming out of the list which are already fixed, a case or cases, I do not know which.  It may be, I do not know, that we might say to the parties that we would start at 2.15 on Monday, 18 June.  I do not know.  Now, these are idle speculations on my part, little more than that.  As things presently stand, there are serious difficulties about doing it in the week of the 25th.  The week of the 25th is not fixed as a Full Court sitting week, but, as things presently stand, there are serious impediments to assembling the Court in that week.  August sittings have not yet been fixed, but, as I say, having regard to the fact that there are changes in the composition of the Court coming and judgments have to be written, there is a deal of force behind the proposition that we do it before July.

MR NIALL:   Yes, your Honour.  That will almost certainly entail replacing the plaintiff’s counsel.

HIS HONOUR:   Yes.  I understand the difficulties we get to and ordinarily I would be much more accommodating – well, I would try to be more accommodating, but we have an issue of the kind I have identified and in any case in which the Court is asked to reconsider its earlier decisions, it is evidently highly desirable that the Court sit a Bench of seven. 

MR NIALL:   Yes, your Honour.  If your Honour pleases.

HIS HONOUR:   Mr Donoghue, is there anything other than adjourn until 11.00 am Wednesday, plus reserving costs, from your side I need to make or do?

MR DONAGHUE:   No, your Honour.  Can I just raise one procedural matter?

HIS HONOUR:   Yes.

MR DONAGHUE:   The summons that the plaintiff has filed contemplates a return on the writ of habeas corpus.  I think it is fair to say that the exact niceties of the procedure that needs to be followed under these rules is a little complex.

HIS HONOUR:   Yes.

MR DONAGHUE:   The rules certainly contemplate return on the writ.  That return has to attach the writ.  At present I do not believe there is a writ.

HIS HONOUR:   There is not.

MR DONAGHUE:   So if your Honour is content to leave that question procedurally to be dealt with at some future point, then we would be content with that, but for the moment I propose that the defendants do not need to do anything further on that front.

HIS HONOUR:   That is certainly my understanding of it.  It would be useful if, on Wednesday, both parties could turn their attention to whether there is any advantage to be had from the Commonwealth, whether by return to the writ or otherwise, most likely otherwise, stating the basis or bases relied on for continuing detention of the plaintiff.  I would have thought that that was evident but ‑ ‑ ‑

MR DONAGHUE:   Indeed.  I do not think that will be controversial, your Honour.

HIS HONOUR:   No, but I suspect it would be desirable and it may be that this is something that can go into a special case or a stated case that the Commonwealth parties assert and the plaintiff denies that. 

MR DONAGHUE:   Your Honour, we would be very happy to deal with it that way.  It was just a matter of drawing to your Honour’s attention whether we were dealing with it satisfactorily.

HIS HONOUR:   Thank you.  No writ having issued, no return is, I think, required.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   The matter will be adjourned over for further directions to Wednesday, 30 May 2012 at 11.00 am by video link from Canberra to Melbourne.  Costs will be reserved. 

Adjourn the Court.

AT 10.38 AM THE MATTER WAS ADJOURNED