Plaintiff S111a/2018 & Ors v The Minister for Home Affairs & Ors

[2018] HCATrans 247

[2018] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S111 of 2018

B e t w e e n -

PLAINTIFF S111a/2018

First Plaintiff

PLAINTIFF S111b/2018

Second Plaintiff

PLAINTIFF S111c/2018

Third Plaintiff

PLAINTIFF S111d/2018

Fourth Plaintiff

PLAINTIFF S111e/2018

Fifth Plaintiff

PLAINTIFF S111f/2018

Sixth Plaintiff

PLAINTIFF S111g/2018

Seventh Plaintiff

PLAINTIFF S111h/2018

Eighth Plaintiff

and

THE MINISTER FOR HOME AFFAIRS

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

DIRECTOR‑GENERAL OF SECURITY

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 21 NOVEMBER 2018, AT 9.39 AM

Copyright in the High Court of Australia

____________________

MR D.P. HUME:   May it please the Court, I appear for the plaintiffs.  (instructed by Zali Burrows Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   If it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  Where have we got to, Mr Hume?

MR HUME:   Your Honour, we have pleadings from the parties and what we were proposing was that there be a short period of time to attempt to agree a limited special case with a further directions hearing, if appropriate, at a convenient time in December for consideration as to further steps in the matter.

HER HONOUR:   Right.

MR HUME:   I do not think there will be agreement on a number of issues of fact so there probably will need to be a remittal of some of the matter at some point, but there are a number of central issues of law where there is a dispute between the parties and that dispute raises a tension between this Court’s decision in Plaintiff S4 and this Court’s decision in Al‑Kateb.  So those are the issues that I apprehend could be the subject of a special case and a referral to the Full Court, if appropriate.

HER HONOUR:   I see.  How long do you need before you are going to be in a position to work out, do you think, whether or not you can agree a special case on those issues?

MR HUME:   I would ask for two to three weeks, which I think takes us into the second or third week of December.

HER HONOUR:   I see.  I will just hear from the Solicitor to see whether or not his position is similar, different, variation or otherwise.

MR DONAGHUE:   I think variation, your Honour.  Your Honour, it might assist, if you are willing, for me to just spend a couple of minutes identifying what we see as the issues in S111 because there are quite a number of them and that might assist your Honour in understanding what we say about how the matter might proceed.

First, there are a number of plaintiffs in this proceeding and we submit that, going forward, the most efficient way for the Court to deal with it will be to sever the first plaintiff and deal with his case because the cases of the others are largely derivative.

HER HONOUR:   I understand.

MR DONAGHUE:   If we focus on the first plaintiff, as we see it there are five issues raised by the statement of claim and within those issues there are some legal and factual issues.  So the first of the five issues is the validity of the plaintiff’s detention during the period while the Minister considered whether to lift the bar under section 46A; that is the period July 2012 to May 2015. 

The issue there, we submit, can be broken down into three questions, two legal and one factual.  So the first question is, was the Minister – the legal question, was the Minister required to make a decision whether to lift the bar as soon as reasonably practicable.  The second is the factual question, if he was, did the Minister make a decision as soon as reasonably practicable. 

The third question, which is the second of the legal issues – and this is the one that I think Mr Hume is referring to going to the Full Court – if a decision was not made as required within a reasonable time, is the plaintiff entitled either to damages for false imprisonment or to an order for release from detention, the alternative being that if there was a breach of a legal obligation to do something within a reasonable time the remedy might be – and we would say is – mandamus to require the thing to be done as the law requires rather than damages or an order for release.

So that is the first issue.  The second issue involves essentially the same questions but it is the period of time after the bar was lifted when the visa application had been made until a decision was made on the application.  Now, those two questions might be able to be hived off into the Full Court by something almost like a demurrer on the footing that if it is assumed against us what is the legal consequence.

HER HONOUR:   Yes.

MR DONAGHUE:   But there is virtually no prospect of us agreeing facts about whether or not there was a failure to act within a reasonable time because that is tied up with ASIO’s adverse security assessment process in relation to the plaintiff and so that would require disclosure and then agreement about what was happening and whether it was happening reasonably promptly and we just cannot see that being realistic.  So it may be, if the plaintiff is content to, by a quasi‑demurrer proceeding hive off those two issues, that that could be done, and it may well be able to be done in the timeframe ‑ ‑ ‑

HER HONOUR:   I thought you just told me it could not be because the facts could not be agreed.

MR DONAGHUE:   The facts could not be agreed but a quasi‑demurrer which says assuming ‑ ‑ ‑

HER HONOUR:   I see.

MR DONAGHUE:   ‑ ‑ ‑ if it be the case that we fail to act within a reasonable time, does that entitle you to damages or an order for release, that would be a legal question that could be hived off.

HER HONOUR:   It does not sound like it is very – it is not going to be determinative of anything.

MR DONAGHUE:   Well, it would be if the Commonwealth wins.  So it would be determinative ‑ ‑ ‑

HER HONOUR:   Well, it would be on those issues.

MR DONAGHUE:   On those two issues only.

HER HONOUR:   Yes.

MR DONAGHUE:   That is why I thought it might assist your Honour to – and, importantly, in our submission, neither of those two issues governs the validity of the current detention of the plaintiffs.

HER HONOUR:   That is my point.

MR DONAGHUE:   That is why we have a concern about hiving off those issues from the rest of the case because it seems to be putting arguments about damages in front of arguments about the liberty of the subject.  The third issue in the case by contrast goes directly to the current position.  That is somewhat concealed in the pleadings in that there is a collateral challenge to ASIO’s adverse security assessment, which one sees in the particulars to paragraph 105; there is no direct attack on the decision.  But that challenge, while not, we say, properly pleaded, is a matter that is raised indirectly in the pleadings.

It might be able to be dealt with in the Full Court, depending on how our friends want to approach it, and your Honour may be aware that in a case – somewhat confusingly, also called M47, this time M47/2012 ‑ the Full Court of the High Court ruled on a matter that was not dissimilar to this case in that respect and it included a challenge to an adverse security assessment.

HER HONOUR:   Yes.

MR DONAGHUE:   So depending on how our friends want to approach that, it might be possible to do that by a special case.  If they want to delve into ASIO’s holdings, then there will be public interest immunity fights and it will not be.  But they have been given what is called a truncated statement of grounds which is a redacted security assessment.  It is quite detailed, it is about 35 pages long and it gives a lot more information than was given in Plaintiff M47 about the basis for the adverse security assessment, so it really depends what our friends want to do about that.

But without dealing with that issue one cannot deal with the current situation in terms of the validity of the plaintiff’s detention.  That follows because the fourth legal issue is the challenge to the refusal of the protection visa and that is entirely contingent on the challenge to the adverse security assessment so those issues are really connected.  So unless the challenge to the adverse security assessment succeeds the refusal of the protection visa will be valid and the detention of the plaintiff we say will also be valid.  But that last ‑ ‑ ‑

HER HONOUR:   Well, that leads to the fifth issue.

MR DONAGHUE:   That leads to the fifth issue, indeed.

HER HONOUR:   Which is the direct attack on Al‑Kateb, as I understand it.

MR DONAGHUE:   Well, your Honour, not as we read it because there is a prior issue ‑ your Honour might have noticed that in the prayer for relief in this case, prayers for relief four and six, there is actually an application for orders restraining removal which is an odd thing to see in an Al‑Kateb case given that the premise for such a case is that removal is not practicable.  As we apprehend it, our friend’s point is different.  They say it may be possible to remove us to Egypt but to do so would be in breach of Australia’s non‑refoulement obligations and, therefore, you cannot do it, and it is on that footing that they say that there is an impediment to removal.

That rather squarely throws up two questions.  One is the effect of section 197C of the Migration Act which we have pleaded in our defence and we do not know how the plaintiff proposes to respond to that.  But there could be a fifth issue in the case:  can the plaintiff be removed to Egypt, notwithstanding any non‑refoulement obligations, and that would be a legal question that could be raised.

There would also be connected with that fifth issue a question as to which non‑refoulement obligations are actually relevant because Article 33(2) of the Refugees Convention excludes the operation of the non‑refoulement obligation in that Convention with respect to people who are a serious risk to security, so that exception may well apply to this plaintiff ‑ ‑ ‑

HER HONOUR:   They are factual issues though, are they not?

MR DONAGHUE:   So that is a question we would have to deal with in the special case, is to work out what exactly is being raised by that.  So we submit if the matter is to stay in this Court, all five of those issues should be the subject of the special case and we should try to negotiate at least to raise them in the legal questions, perhaps leading some factual issues that would need to be determined on remitter in the event that the Commonwealth fails on the legal points.  That would be one way it could be done.

The other way, we submit, is to remit the whole thing.  But we submit it is not appropriate to park the liberty of the subject issues while we litigate about damages questions and, for that reason, we contend that really it should be all or nothing.

It may well be, depending on the approach the plaintiff wants to take to some of those issues that I have identified, that we will be able to find a pathway where they can be put before the Full Court, but given the timetable your Honour has just made in M47, in my submission, there is no realistic prospect that that could be done in a way that would catch up with M47.  There is also no reason why that is necessary because, for the reason that I have just briefly touched on, the correctness of Al‑Kateb does not really fall for decision in this case.

HER HONOUR:   Aspects of it might.

MR DONAGHUE:   Aspects of the reasoning might ‑ ‑ ‑

HER HONOUR:   Correct.

MR DONAGHUE:   ‑ ‑ ‑ inform aspects of the argument.

HER HONOUR:   One cannot have a complete answer just because of the relief sought.  Some of the principles or ideas that underpinned at least the majority’s view in Al‑Kateb would seem to be under challenge by the way in which this case is pleaded.

MR DONAGHUE:   Certainly, some of the principles and reasoning are common to both; I do not deny.

HER HONOUR:   That is all I seek to raise.

MR DONAGHUE:   Yes.

HER HONOUR:   All right, thank you.  Mr Hume.

MR HUME:   Your Honour, I agree with the Solicitor‑General’s identification of those five issues and I do still seek some time to agree a special case hopefully dealing with all of those issues, or possibly dealing with all of those issues.

I should just say this as to remitter, our issue with a remitter is that on the first two issues that the Solicitor‑General identified we probably cannot succeed in the Federal Court by reason of a Full Federal Court decision that we will ultimately say is inconsistent with Plaintiff S4, so

there is a reason we say for those issues to remain in this Court because we cannot succeed at first instance.

HER HONOUR:   I see.  Given the identification in the traditional view – traditional mode of operation of our Solicitor‑General, which is a long list, is it truly realistic that this is going to be the subject of at least a draft in a few weeks?

MR HUME:   From our side, it can be, but I might need ‑ ‑ ‑

HER HONOUR:   All right.  Is it proposed that the orders that I would make would be that you serve on the defendants a draft and they respond or is it sufficient for me to say you seek to agree?  I mean, it seemed to be better that I had an order that you would prepare a draft and serve it.

MR HUME:   Yes.  I think that would be appropriate, your Honour.

HER HONOUR:   All right.  How long then?  What date would you have the draft prepared by?

MR HUME:   I suppose it depends on when the ultimate deadline is, but if it is going to be – if the ultimate deadline is going to be within a few weeks it probably should be within a week.

HER HONOUR:   All right.  Well, let us work backwards.  If I brought you back in front of me on 11 December is that too early?

MR HUME:   I think that is convenient, your Honour.

HER HONOUR:   Do you have any objection to that, Mr Solicitor?

MR DONAGHUE:   No.  Your Honour, I think that is ambitious but we were going to propose that your Honour bring us back late that week or early the following week at your Honour’s convenience for us to see whether ‑ ‑ ‑

HER HONOUR:   Well, that is the second week of the sittings, as you know ‑ ‑ ‑

MR DONAGHUE:   Yes.

HER HONOUR:   ‑ ‑ ‑ and there are things happening at the end of that second week, so I am happy to put it off until, you know, Thursday, the 13th, but it would seem to be that otherwise we are right up against Christmas.

MR DONAGHUE:   Well, if Thursday, the 13th – I just anticipate that I have a number of stakeholders involved in giving instructions on all of this, so if we can have until the 13th that would give us a little bit more leeway, and if Mr Hume is able to give us a draft in a week then that will give us a bit of time to go backwards and forwards on drafts between us before – by then.

HER HONOUR:   All right.  Mr Hume, is that sufficient for your purposes?

MR HUME:   It is, your Honour.

HER HONOUR:   All right.

MR DONAGHUE:   Actually, sorry, your Honour, I have just noticed a note that says people are unavailable.  I will withdraw that and can we go with the 11th?

HER HONOUR:   All right, we are back on the 11th ‑ ‑ ‑

MR DONAGHUE:   Thank you.

HER HONOUR:   ‑ ‑ ‑ which is the Tuesday.  If I can have it the day before, so that gives you the weekend – very kind, am I not?  That is, if there is going to be one you can file it by 4.00 pm on the 10th.  Then you say you only need a week, Mr Hume, is that right?

MR HUME:   I think realistically we cannot have any more than that if we are going to meet this timetable.

HER HONOUR:   All right, 28 November.  That gives you sort of until 4 December, is that right?  I will make that the 27th which will bring it back to the Wednesday and that will make you 4 December, a week, Mr Solicitor.  Is that long enough?

MR DONAGHUE:   That is an order to respond, is it, your Honour?

HER HONOUR:   Yes.

MR DONAGHUE:   In my submission, it would be preferable if your Honour did not make a second order of that kind.  We have done this before with Mr Hume and there will be lots of going backwards and forwards between us in all likelihood.  I am not confident that within a week I will be able to have instructions to provide a finalised response of draft but I am confident that we will be able to work out between us whether we can

get a concluded agreement by the 10th or not if we get the plaintiffs’ proposal.

If your Honour wants to make an order of that kind I would ask you to make it later in the week but, as much as anything else, your Honour, I am before the Full Court on the 4th, 5th and 6th of that week in Canberra so there are constraints.

HER HONOUR:   I am going to be blunt – do you need an order in order to ensure that you get instructions?

MR DONAGHUE:   We do not, that is what I am saying, your Honour; I do not believe I do need that order.

HER HONOUR:   Mr Hume, are you happy for that to be removed?

MR HUME:   Yes, your Honour.

HER HONOUR:   The orders are as follows:

1.On or before 4.00 pm on 27 November 2018, the plaintiffs serve on the defendants a draft special case pursuant to r 27.08 of the High Court Rules 2004 (Cth).

2.If the parties reach agreement on a special case, on or before 4.00 pm on 10 December 2018, the plaintiffs file and serve the agreed special case.

3.The proceedings be listed for further directions before me on 11 December 2018 at 9.30 am.

4.        Costs be reserved.

What I should say about those orders to both of you is, of course, that if it is proposed that it be dealt with by another mechanism other than a draft special case then that does not preclude you from reaching agreement on those matters.  So at the moment I am leaving it as a draft special case because it seems to me, having heard from both of you, that is probably where it is going to get to but, as I said, I do not preclude that there may be other mechanisms adopted.

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   Mr Hume, anything else?

MR HUME:   Nothing further, your Honour.

HER HONOUR:   Thank you.

AT 9.58 AM THE MATTER WAS ADJOURNED