Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors; Plaintiff M80/2015 v Minister for Immigration and Border Protection

[2015] HCATrans 160

[2015] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M68 of 2015

B e t w e e n -

PLAINTIFF M68/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD (ACN 093 114 553)

Third Defendant

Office of the Registry
  Melbourne   No M80 of 2015

B e t w e e n -

PLAINTIFF M80/2015

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

TRANSFIELD SERVICES (AUSTRALIA) PTY LTD (ACN 093 114 553)

Third Defendant

Directions hearing

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 24 JUNE 2015, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR R. MERKEL, QC:   If your Honour pleases, I appear for the plaintiff in each matter.  (instructed by Human Rights Law Centre and Stacks Goudkamp Solicitors)

MR G.R. KENNETT, SC:   May it please the Court, in each matter I appear for the first and second defendants.  (instructed by Australian Government Solicitor)

MR S.P. DONAGHUE, QC:   May it please the Court, I appear with MS K.E. FOLEY for the third defendant in each matter.  (instructed by Corrs Chambers Westgarth Lawyers)

HIS HONOUR:   Mr Merkel, I had a look at this last night.  Thank you all for the papers which were sent up and for the Commonwealth submissions too.  Have you yet resolved the differences on the provision of particulars, or are you still apart?

MR MERKEL:   No, we are still apart, your Honour. 

HIS HONOUR:   My concern about this matter is it is going on too long at the foothills and the opportunity to get it on in September is dissipating.  If it is going to move, it needs to be moved quickly.

MR MERKEL:   Yes.  Your Honour, our position is quite simple and that is that we have endeavoured to accommodate the various concerns raised with us by each of the defendants.

HIS HONOUR:   Yes.

MR MERKEL:   We have particularised, as much as we can, given that the plaintiff is not aware of the facts other than those that are in the public domain or procured on FOI requests, and it seems to us that the two matters of which complaint is made one is outstanding, are matters properly raised by demurrer or defence and the legal argument about the operation of section 198AD and how it is constrained in the manner which we contend, again is a matter of legal argument. 

We say that the statement of claim in each matter is in a form that can be pleaded to and it is the defences that will enable either a demurrer or a case stated or special case to be agreed upon.  So we say that the fight over the form of the statement of claim – and we are not sure whether there is a fight over the form of the application – is something that can be resolved at a date later when the defences are raised and the parties seek to get a case stated.

We say the matter is important.  A lot of people are affected by this issue and we say that the Commonwealth’s objections are not truly objections that prevent them from pleading to the statement of claim in its present form.

HIS HONOUR:   I think the best thing to do is to go through the requests one by one and see what the response is and what the difficulty with the response is.  We start with the ‑ ‑ ‑

MR MERKEL:   Your Honour, my understanding is that the request relates to the earlier pleading in this ‑ ‑ ‑

HIS HONOUR:   It does in part, although some of it seems still to be applicable.

MR MERKEL:   Can I indicate this, your Honour, that the Commonwealth has raised, by letter, the four issues about which complaint is made concerning the pleading and it is those four issues in summary form, rather than the detailed particulars, that we understand have given rise to the problem.

HIS HONOUR:   Let us start with the summary form.  The first of that is the relevance of the past conduct.

MR MERKEL:   Yes, your Honour.  The relevance of the past conduct is that the plaintiff was in detention in each case at the date of the Transfield contract so the past conduct seeks to base itself on the invalidity of the Transfield contract based upon the Williams principles plus also the constitutional principle that there is no power in the Commonwealth to exercise detention by Chapter II officers unless expressly authorised by – or clearly authorised by statute and there is no authorisation.

HIS HONOUR:   But you are not seeking damages or other relief in respect of past conduct, are you?

MR MERKEL:   We have not, in this case, sought damages in respect of past conduct, your Honour, but there is a real issue about the validity of the contract when entered into and that is the contract under which our detention has occurred.  We are challenging the validity of the contract, which we are entitled to do.  The declaratory relief, your Honour, is a proper and appropriate stepping stone to founding the case that the contract, when entered into, provided for detention of the plaintiff – and we have narrowed the claim in relation to the plaintiff.

It is by no means hypothetical, your Honour, and looking at, by way of an example, M61, and can I – sorry, would your Honour excuse me for a minute – the real issue is that the past conduct relates to the nature and extent and the legality of Commonwealth power exercised by Chapter II officers.

HIS HONOUR:   But why?  There is no dispute that, were the Commonwealth free to do so, they would send you back to the detention centre.

MR MERKEL:   Yes.

HIS HONOUR:   But you allege that the setting up of it and funding of it is beyond constitutional power.  Why is that not a sufficient basis for the determination of the issues?

MR MERKEL:    Because the setting up and funding of it is exactly what we are challenging, your Honour, as at 24 March 2014.  That is the starting point of our cause of action and we say that when we were sent to Australia that was the detention to which we were subjected and that is the very detention to which we say we should not be returned.  It is the foundation of our cause of action.  If the Commonwealth plead that circumstances have changed, that is a matter to raise by way of defence, but again, your Honour, that is a defence issue.  But, your Honour ‑ ‑ ‑

HIS HONOUR:   Just slow down a bit.  So it is the setting up and funding from 24 March and you say you need to go back to 24 March to show what – that the actions taken then were constitutionally unlawful?

MR MERKEL:   Yes, as against the plaintiff.  So initially we had pleaded as against the plaintiff and others, but to put the matter beyond doubt, we have said that in relation to the plaintiff that contract which operated in relation to her detention was unlawful.

HIS HONOUR:   All right.  So that is really the scope of the point on past conduct?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   That is the argument?

MR MERKEL:   It is, although can I just make it clear there are two streams to our case.  The first stream is based on Williams which is legislative authorisation for funding.

HIS HONOUR:   Yes.

MR MERKEL:   Where the funding involves something involving a fundamental right being removed, such as detention or imprisonment, the cases make it clear that the authority must be unmistakable and clear.  The second line, your Honour, which is entirely independent of the first, is the absence of any constitutional power on the part of the Commonwealth Executive officers to detain individuals outside the Lim principle for a purpose of removal, but the removal purpose under 198AD comes to an end as soon as the person is removed.

HIS HONOUR:   All right, but that does not go to past conduct.  You have told me all you need to on past conduct?

MR MERKEL:   Well, except they both relate to past conduct, your Honour, that the detention that has occurred is the detention we apprehend will occur on our return.

HIS HONOUR:   Yes, all right.  Thank you.  Mr Kennett, what is wrong with Mr Merkel’s argument as to why it is relevant and appropriate to allege past conduct dating back to 24 March 2014?

MR KENNETT:   Your Honour, we cannot object to our friend pleading past facts insofar as they go to his arguments about the lawfulness of what is in prospect.

HIS HONOUR:   Yes.

MR KENNETT:   However, there is a claim for declaratory relief in relation to those past facts – declarations that certain things done in the past were unlawful.  We do not see the justiciable controversy in that.  The contract may be in a different position from other things because he needs or he wants to show that the contract as of now is not a basis for anything more than to be done, so he may need to establish that the contract was invalidly made.

HIS HONOUR:   Yes.

MR KENNETT:   But as to whether the Commonwealth’s other actions – making of payments and so forth was lawful when done in the past, we do not understand how that proposition as to lawfulness feeds into anything about the lawfulness of future conduct.  So we are not objecting to the inclusion in the pleading of allegations about what happened in the past.  It is really when it comes to the way the declaration, the prayer for declaratory relief is framed so as to pick up ‑ ‑ ‑

HIS HONOUR:   Well, it has changed a little, has it not?

MR KENNETT:   It has changed a little ‑ ‑ ‑

HIS HONOUR:   Originally, there was a dispute about the relevance of the past conduct.

MR KENNETT:   Yes.

HIS HONOUR:   As I understand it, now you accept there is relevance.

MR KENNETT:   We accept that – well, we accept that conceivably there may be factual relevance.

HIS HONOUR:   Yes.  So your complaint now is about the claim for declaration of past misconduct?

MR KENNETT:   Yes.  Now, it may well be a relatively simple matter to agree primary facts about who did what and when in the past, to the extent that they bear upon the claims in relation to the present and the future, but to have to engage in debate about the lawfulness of things done in the past is another matter and we would seek not to have that debate unless it leads somewhere in terms of ‑ ‑ ‑

HIS HONOUR:   Certainly, but do you contend - does the Commonwealth contend that Mr Merkel’s client has no standing to seek a declaration as to the invalidity of the conduct from 24 March 2014?

MR KENNETT:   Yes, that is it, your Honour.  Yes.

HIS HONOUR:   That is because, what – there is no issue between you about the invalidity or for some other reason?

MR KENNETT:   It does not appear to us, at any rate, subject to what our friends might say by way of the particulars we asked for, to have any bearing on existing legal rights of the parties to lead anywhere in terms of something enforceable in the present.  We do not have, for example, a claim in tort for unlawful imprisonment relating to those facts and if we did there would be a raft of other issues that that claim would have to deal with, such as choice of law and so on.

HIS HONOUR:   So looking at paragraph 2 of the proposed application you say it should be limited to would be unlawful by reason of, do you?

MR KENNETT:   Well, our complaint that we make would fall away if it were so limited.

HIS HONOUR:   Do you say if it is to stay there, there needs to be a claim for substantive relief?  Is that it?

MR KENNETT:   Yes.

HIS HONOUR:   I do not want to dance around this playing tactics.  Either this can be sorted out quickly and got on or it cannot.

MR KENNETT:   Yes.

HIS HONOUR:   It is going to require a degree of concession on each side.  Is the fear that what is being sought is some sort of substantive relief down

the track for damages and there may be a declaration without the opportunity for you to raise issues which you would and could if there were now a plea for substantive relief?

MR KENNETT:   That is a possibility we would be concerned about, your Honour.

HIS HONOUR:   Is that the only possibility we are worried about, or is there something else?

MR KENNETT:   Well, that and the wish to limit these matters to issues which truly have some justiciable meat to them as we have said.  This goes back to older cases like Gardner v Dairy Industry Authority.  There is no proper basis for declaratory relief in relation to something that does not affect anybody’s rights.  As we presently understand the matter, the questions about past conduct are in that category, other than possibly the contract, the formation of the contract.

HIS HONOUR:   Would there not be sufficient interest to justify a claim for declaration that I have been unlawfully held in detention for the last 12 months?

MR KENNETT:   We would say not, your Honour, unless there is some – without some broader controversy raising a question of rights and duties in relation to that.  Now, if there was a claim against us for unlawful imprisonment we could deal with that, but there is not.  So we just have, at the moment, a proposition in the ether that things were done unlawfully in the past.

HIS HONOUR:   Yes, all right.  Mr Donaghue, what do you say about this point?

MR DONAGHUE:   Your Honour, I do not seek to add to what the Commonwealth is saying on the particular matters about particulars that they are disputing.  There is one separate matter I will seek to raise with your Honour after that is all resolved, but otherwise I uphold the Commonwealth’s position.

HIS HONOUR:   Thank you, Mr Donaghue.  Mr Merkel, on this point, is it vital that you adhere to your claim that the conduct as from 24 March 2014, as opposed to now and in the future, was unlawful?

MR MERKEL:   Yes, it is, your Honour.  With respect, the law about declaratory relief, particularly in respect of the exercise of power by executive officers, is not as my learned friend has put it. 

HIS HONOUR:   I think what we might do then, just as a point of real substance, is put it over till, say, Friday morning.  That will give you a chance to get your arguments ready on both sides and we will deal with it on a final basis then.

MR MERKEL:   If your Honour pleases, although, with respect, the real question is, is it so unarguable that it cannot be raised as a matter in the proceeding.  It is not as if the factual ambit or any issues will be expanded because my learned friend has conceded the relevance of the facts.

HIS HONOUR:   No, I understand, but by then you should be able to put some authorities and argument together which will assure me to the level of satisfaction I need to leave it in there.

MR MERKEL:   We are content to do that, your Honour.

HIS HONOUR:   Is that sufficiently not too inconvenient if you come back on Friday morning, gentlemen, on this point?

MR KENNETT:   I can do that, your Honour.

HIS HONOUR:   Thank you.  Mr Merkel, can you?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Thank you.  All right, let us move to the second of the points which, as I understand it, is the standing to allege the expenditure was unlawful.  Mr Merkel?  This is paragraph 41 of the amended statement of claim.

MR MERKEL:   Your Honour, it is essentially – well, the real point, your Honour, is that under the law of prohibition under 75(v) strangers have standing.  We have a special interest directly and we have an interest which justifies prohibition which directly challenges the legality of the contract and expenditure under it on the Williams principle.

HIS HONOUR:   Yes.

MR MERKEL:   So we are directly affected but there is the “stranger” principle with prohibition which would mean that we would have capacity to seek even wider relief and we say that, again, that is a clear issue in which there is no doubt that we have the standing we allege.

HIS HONOUR:   Thank you.  Mr Kennett.

MR KENNETT:   I am sorry, your Honour, is this in relation to past payments?

HIS HONOUR:   This is standing to allege that the expenditure was unlawful.

MR KENNETT:   Was unlawful – well, I would not seek to add to what I have said earlier about past events more broadly, your Honour.

HIS HONOUR:   So it is just the fact that it is past that you are contending, rather than the fact that the expenditure is now and would be unlawful?

MR KENNETT:   Yes, your Honour.  It would be a different matter if my friend’s client simply wished to say, “You, the Commonwealth, have no authority to keep making payments under this contract to Transfield”.  That would be one ‑ ‑ ‑

HIS HONOUR:   You would accept that there would be standing to say that?

MR KENNETT:   Yes.

HIS HONOUR:   It is just the same point that we previously discussed about the past conduct?

MR KENNETT:   Same point, yes.

HIS HONOUR:   All right, so it is to be decided again by Friday morning on the same basis, it would seem.

MR MERKEL:   Can I make it clear, your Honour, because there has been some correspondence about this, we are not seeking any relief about recoupment of past payments.  That has nothing to do with our case.  It is the unlawfulness of it.

HIS HONOUR:   I think what he fears is that you might do so later, Mr Merkel.

MR MERKEL:   Well, recoupment is not really something we have an interest in, but that is by the way.  We have made that clear and none of our relief is directed to that.  It is declaratory relief.  Whether past payments have to be recouped is an area – in a case where the conduct is unlawful or without power is a matter of some complexity which we do not raise.

HIS HONOUR:   I will simply note that this objection stands or falls according to the outcome of the first objection regarding claim for relief, or claim for declaration in respect of past conduct.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   The third point, as I understand it, gentlemen, is there is no allegation as to why section 198AD(2) is not engaged.  Mr Merkel, what they seem to require is some sort of outline of the legalities of why it is that the things to which you refer deprive the officer of the authority which the section appears to confer on him or her.

MR MERKEL:   Your Honour, that is a question of construction of 198AD.

HIS HONOUR:   Yes.

MR MERKEL:   It is like in M70, 198 gave the general power of removal and it was found on a detailed and comprehensive approach to the Act, the scheme of the legislation, the context, then 198 had to be read down to limit the operation to be restricted by the principle of non‑refoulement and the Refugee Convention.  By analogy, your Honour, what we say here is 198AD in its statutory scheme is part of the regional processing.  Removal, not for the release of the person from detention, which is what 198AD has as its outer limit, but removal for the continuation of detention is a constraint that we say offends both a proper statutory construction of the scheme in 198AD and the surrounding sections, and also the constitutional limitation on the Commonwealth’s lack of power to detain, other than for a Lim‑type purpose.

There is no authorisation and there is no Lim purpose once the persons are removed.  We say that in that context 198AD has to be read as being subject to both the statutory construction restraint and a constitutional principle restraint that does not allow removal for a purpose or that is to have the effect of continuing Commonwealth detention.  The detention is unlawful and the removal and the detention are interlinked as we will see from the statutory scheme and the memorandum of understanding and the whole factual basis.

So that when the words “as soon as practicable” and the totality of the scheme are looked at, there is the constraint which we have expressly pleaded that 198AD cannot be exercised – that is the power of removal – where to do so is for a purpose or having a likely effect of Commonwealth detention.

Now, your Honour, that is in a nutshell the point we make and that is the argument we wish to put.  I can flesh it out in more detail, but, again, your Honour, we say that is not a pleading matter.  That is a question ultimately of the – in many ways the ultimate question for the Court.  There are two ultimate questions:  one is the proper construction of 198AD – is it subject to the constraints; and two is the legality of the Transfield contract.  They are both linked but separate issues.

HIS HONOUR:   For the purposes of facilitating the acceleration of this proceeding, would it not be desirable to set down on no more than one piece of paper what you have just articulated and give it to the Commonwealth?

MR MERKEL:   We do not have any problem doing that, your Honour.

HIS HONOUR:   Could that be done by, say, stumps tonight?

MR MERKEL:   Yes, we can do that, your Honour.

HIS HONOUR:   Thank you.  Mr Kennett, would that be satisfactory?

MR KENNETT:   Yes, I think so, your Honour.  What my friend said certainly does go a considerable distance towards the kind of indication that we are seeking of what the point is.

HIS HONOUR:   I think so, yes.

MR KENNETT:   So if we could have it on a sheet of paper, I think that would do the job.

HIS HONOUR:   Very good.  Mr Merkel, you might wish to have a look at the transcript – they are pretty quick here and it may be available this afternoon or tomorrow.

MR MERKEL:   Can I make it clear, your Honour, it will be in a summary form at this stage.  We will put the summary outline of how we say 198AD operates.

HIS HONOUR:   Of course.

MR MERKEL:   Ultimately, when it comes on for argument there will be a lot more reference to extrinsic material and a wider view than we will be putting together just today.  But we will put the outline that will explain how we propose to put it.

HIS HONOUR:   All that is required is something skeletal, just to say what are the elements of the argument.

MR MERKEL:   Yes, we can certainly do that today, your Honour.

HIS HONOUR:   Thank you.  I will note then, with respect to the third request about the allegation as to why section 198AD(2) is not engaged, that the plaintiff will provide to the defendants by the end of today a skeletal outline of the propositions upon which they rely in order to firm that contention.  We can have a look at it again if we have to – I hope not – on Friday.  Now, what is left apart from those three matters which I have mentioned and the detailed request for particulars?

MR KENNETT:   Your Honour, that, I think, deals with the matters that we wanted to agitate, certainly today.

HIS HONOUR:   All right.  That leaves just – just the past conduct point which you are going to deal with on Friday morning.

MR KENNETT:   Yes.

HIS HONOUR:   We will start again at 9.30, if that is not too inconvenient, on Friday morning.

MR KENNETT:   Yes.

HIS HONOUR:   Mr Donaghue?

MR DONAGHUE:   Your Honour, there is one other point, if you would permit me just a couple of minutes to develop it.  It relates to the point that Transfield raised in the submissions it filed before the first directions hearing in this matter.  I do not know if your Honour has those submissions with you on the Bench.  It does not matter if you do not.

HIS HONOUR:   No doubt I do, but can you remind me what they were because I would have read them.

MR DONAGHUE:   Yes.  The point essentially is this – and we have raised it in correspondence since with our friends and it is important, we say, because it may be that it conceals an important factual controversy that might be an impediment to the future path by which this matter might be brought before a Full Court.  Perhaps, your Honour, I could make the point, if your Honour goes to the proposed statement of claim in M68 and to paragraph 32, which is the paragraph that alleges ‑ ‑ ‑

HIS HONOUR:   All those conducts.

MR DONAGHUE:   All these conducts which are said to be conducts by the Commonwealth and the Minister, things that the Commonwealth and the Minister have done.  If your Honour looks particularly, for example, at paragraphs (c) and (e), the complaint is the Commonwealth’s:

(c)funded conduct which has involved the imposition, enforcement or procurement of the Constraints Upon Liberty;

. . . 

(e)procured Transfield to impose –

Everything the Commonwealth is said to have done relevantly is done through the actions of Transfield or its subcontractors under the main contract between Transfield and the Commonwealth.  The constraints on liberty there referred to are defined in paragraph 15 of the document in terms that refer to imprisonment or detention.

HIS HONOUR:   Yes.

MR DONAGHUE:   The problem that we submit arises from the current form of the pleading is that if your Honour goes back from 15 to paragraphs 13 and 14, you will see that the plaintiffs acknowledge that they are granted visas under Nauruan law that require them to reside in the Nauru Detention Centre and that, in paragraph 14:

On Nauru, the plaintiff:

(a)was and would be required by the law of Nauru to reside at the Nauru Detention Centre –

There is more detail as it goes on, but that is sufficient for my present purposes.  There are also some restrictions under Nauruan law that have not been pleaded but they are to, relevantly, the same effect.  The concern, your Honour, in a nutshell, is this.  It has been held by the Supreme Court of Nauru that the detention of people in relevantly the same arrangements is required as a matter of fact by the law of Nauru, specifically the visa conditions.

HIS HONOUR:   Yes.

MR DONAGHUE:   Our concern is that while our friends, in the draft statement of claim, acknowledge the existence of this legal framework, they then ignore it at the pointy end of the pleading and allege that the Commonwealth and Transfield are procuring or imposing these restraints on liberty which, as a matter of fact, we will say, arise by reason of decisions made by the government of Nauru and which has been found, as a matter of Nauruan law, to have that factually causative basis.

It is not at all clear from the statement of claim in its current draft form how our friends say that factual matter is to be addressed.  If they admit that the detention is caused by decisions made by the government of Nauru, then maybe there is no problem.  But if they do not admit that fact, then we think there is a problem that goes to the very heart of the way that they are framing their case because that case amounts to saying the Commonwealth, through Transfield, is imposing things where, on the facts, there is a very strong argument to the contrary. 

We cannot see how we could ever agree to the factual premise that underlies the allegations there being made.  So we have raised with our friends that we submit that really it is important that that be clarified at an early stage, because if there is a dispute about it, it is difficult to see how that gets solved here.

HIS HONOUR:   What would be the concession that would be required?

MR DONAGHUE:   The detention of the plaintiff is authorised and required by decisions made by the government of Nauru, or words to that effect.  We then have an argument about whether the Commonwealth, through Transfield, can be involved in some way in that detention that is caused by the Nauruans ‑ ‑ ‑

HIS HONOUR:   But that would be an argument with which we would deal on the final hearing, would it not?

MR DONAGHUE:   Yes, indeed.  That argument – I can see how that argument could be run and certainly one could still say from a Williams point of view you need statutory authority even if the detention is happening because of things the Nauruans have done.  But it cannot be, in our submission, developed as an argument that the Commonwealth is just imposing these restraints because that is not what is happening.

HIS HONOUR:   Let me tempt fate and say what would you propose if Mr Merkel will not grant you this concession?

MR DONAGHUE:   Your Honour, we would propose denying the – when the statement of claim is finalised – factual allegations about imposition, procurement, et cetera, and then if we are asked to agree that the facts – to that effect in a special case we would refuse to do so.  So there will then be a – either your Honour would need to resolve the factual controversy for the purpose of stating a case or the matter would have to be remitted for a factual trial.  They would seem to be the two options.

HIS HONOUR:   The facts which would need to be determined were that according to the law of Nauru the detention of the plaintiff in the detention centre is required as a matter of Nauruan law.

MR DONAGHUE:   By reason of decisions made by Nauruan officials, yes.

HIS HONOUR:   Yes, I see.

MR DONAGHUE:   The grant of the visa, the making of rules under the Nauruan Act that governs the processing centre.  So there are a few things that Nauruan officials have done which we say caused the detention.

HIS HONOUR:   Have you yet put to Mr Merkel in writing the concession that you want?

MR DONAGHUE:   No.  We have raised this general issue, but I have not ever done that.

HIS HONOUR:   All right, I take it the response has not been encouraging?

MR DONAGHUE:   It has not.

HIS HONOUR:   Thank you.  Mr Merkel.

MR MERKEL:   Your Honour, we have had some difficulty understanding the problem because we have endeavoured to set out in the statement of claim our understanding of Nauruan law as requiring the detention of the plaintiff at the centre.  Can I take your Honour to paragraph 14?

HIS HONOUR:   Yes, thank you.

MR MERKEL:   We have set out our understanding.  We cannot go any further, but if, in a defence, some other factors are put forward, but 14(a), (b), (c) and (d) cover the matters as far as we are able to.  If it is said that there are other laws that deal with the matter, then we will of course take them on board and they would be raised by way of defence.  But it forms no part of our case to say that Nauruan law can authorise the Commonwealth detention. 

We are looking at the powers of the Commonwealth in respect of the Transfield contract purely as a matter of Australian constitutional law and Australian legislative authority.  So Nauruan law, on our case, even though we have pleaded our understanding of it, on our case Nauruan law is not a

defence, but ultimately if my learned friend’s point is a good one and that the Commonwealth – Transfield is merely the vehicle through which the Commonwealth are operating – that is why we had no claims against Transfield – but if the Commonwealth are entitled to detain because they have authorisation under Nauruan law and that is found by the Court to be a defence to the claim, then we will no doubt lose.

But we say that these issues are to be decided under Australian constitutional law and Australian statutory law.  Commonwealth officers do not get authority to act by foreign law and, if they do, then that is a defence that no doubt will be put and run.

HIS HONOUR:   It may be that we need to wait and see what the defence is before we can resolve this point.

MR MERKEL:   Yes, your Honour, but I just make it clear we have put our understanding as best we can.

HIS HONOUR:   No, I understand.  Thank you.  Mr Donaghue, it does sound to me a little bit as if it is going to be necessary for you to plead to the statement of claim, assuming it can be put into satisfactory order on the other aspects, see what the issue is and then decide whether or not it needs to be remitted or can be overcome in order to go forward.

MR DONAGHUE:   That may well be so, ultimately, your Honour.  The exchange that you have just heard is much to the effect of the conversations, or the negotiations we have been having.  There is an element of ships passing in the night because we accept, of course, that there is this Nauruan legal framework and our friends appear to be on the same page about that. 

Our concern is about the factual causation.  It is not just that the laws are there.  We say they are causing the detention.  Our friends say we are causing the detention and that seems to us to be not just a matter about the legal framework, but about factually what is the reason that the people in these processing centres are detained.  But we can plead to it and your Honour can then look at the issue once the statement of claim is otherwise in a proper form.

HIS HONOUR:   Very well, thank you.

MR MERKEL:   Before leaving Transfield, your Honour, when we had a look at the pleading in its current form last night, we appreciated there was a disconnect in the way in which we pleaded the Wilson contract.  The Wilson contract pleaded predated the Transfield contract, so can I hand up a proposed amendment to paragraph 31 just so your Honour has the pleading in the form in which we wish to go forward.  We have given it to our

learned friends, but it effectively takes the relevance of the Wilson contract back to 24 March, which is the date of the Transfield contract.

HIS HONOUR:   Yes, I see.

MR MERKEL:   We expect Wilson may have entered into a new contract after the Transfield contract, but we have not been able to access it, so we are relying on FOI documents and no doubt again, the defence will clarify it, but we have raised the question which would be able to be clarified in pleadings.

HIS HONOUR:   Very well.

MR MERKEL:   I should say that, having heard everything our learned friends have said we do not see any factual controversies that should prevent ‑ ‑ ‑

HIS HONOUR:   Get in the way.

MR MERKEL:   ‑ ‑ ‑ this matter from going forward quickly once these issues have been decided.

HIS HONOUR:   All right.  What I shall do is adjourn the further hearing of this directions hearing until next Friday morning at 9.30 at which point we will decide the issue about past conduct, which is the first dispute.  That will, one way or another resolve the second dispute, I trust. 

Mr Merkel, your side will, by the end of today, give the particulars which you have said that you can, about the 198AD point.  We shall leave until defence, assuming there is going to be a defence, the Transfield concern about the effect of Nauruan law.  This will depend upon the outcome of next Friday morning, but I should hope that there comes out of that a requirement for the Commonwealth and Transfield to plead to your proposed statement of claim and then, I suppose, for you to come back again to see if we can state a case on the basis of that pleading.  Looking forward now, I wonder if it is not possible, say, to get all that done so that you could come back by about 22 or 24 July, approximately a month away.

MR MERKEL:   We would have no difficulty with that timetable, your Honour.

HIS HONOUR:   I may be too optimistic and it may depend on Friday morning, but let us hope so because otherwise you are going to miss the opportunity for a hearing, which is available, I think.

MR MERKEL:   Yes.  If your Honour pleases.

HIS HONOUR:   Thank you, gentlemen.

HIS HONOUR:   I am sorry, gentlemen, just before you leave, if you give me a very short outline of any propositions you are going to be advancing on Friday morning, say by tomorrow evening, I would be most obliged.

MR MERKEL:   Yes, your Honour.

AT 10.05 AM THE MATTERS WERE ADJOURNED