Plaintiff S138/2012 v Director General of Security and Ors

[2013] HCATrans 34

[2013] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S138 of 2012

B e t w e e n -

PLAINTIFF S138/2012

Plaintiff

and

DIRECTOR GENERAL OF SECURITY

First Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

THE OFFICER IN CHARGE, DIRECTOR, DETENTION OPERATIONS, NSW/ACT

Fifth Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Sixth Defendant

Directions hearing

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 FEBRUARY 2013, AT 9.32 AM

Copyright in the High Court of Australia

____________________

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MS A.E. MUNRO, for the plaintiff.  (instructed by King & Wood Mallesons)

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

HIS HONOUR:   Thank you.  There are some short minutes of order, are there?

MR KIRK:   There are some short minutes of order.  There are just three things briefly to be touched upon – well, two things perhaps briefly and one other matter to be touched upon this morning.  Your Honour would appreciate the special case which has been agreed between the parties was filed on Friday and, subject to any comments your Honour has, that is otherwise ready to go.  At the end of that special case there are seven questions stated but, in essence, it boils down to four substantial issues:  a procedural fairness question, a question about the significance of reliance on public interest criterion 4002, a construction of the Act question, a validity of the Act question in relation to the detention of my client.

HIS HONOUR:   Yes.  Well, I am happy with the special case.

MR KIRK:   If it please the Court.

HIS HONOUR:   There is the question of that summons for confidentiality.  Is that one of the matters you are going to ‑ ‑ ‑

MR KIRK:   Yes, I was just going to touch upon a timing matter before letting Mr Donaghue deal with the summons for confidentiality, which I can indicate, by the way, is not opposed by my client.  In relation to timing, your Honour will recall that Dr Stone has been appointed independent reviewer and there is that process in place.  Can I indicate this in relation to timing?  Dr Stone has given us the opportunity to provide written submissions by, we think, 18 March on our calculations.  There will then be an opportunity for oral submissions.  She will then need to consider the submissions made and prepare, as we understand it, a report which is sent to ASIO.  ASIO then needs to consider that report and decide itself whether to revisit or reissue the security assessment.  After that there will then be some process of reporting back to us.

Now, we have no doubt that all concerned will be acting with due expedition and diligence, but given that we are looking at a process with a few steps in it and the next step on the process is not due to happen till three or four weeks’ time, in practical terms that probably does not produce a result till early to mid‑May.  Now, that is of indirect but some significance to the natural justice issue in the case in that this is, in essence, another review process which is of obvious relevance to the natural justice question.

In that light, and my learned friend, Mr Donaghue, and I have had discussions about this, it is so evidently a matter for the Court, but in terms of fitting it into the Court timetable in a way which would allow that process to be completed, whilst taking account of the need for some reasonable urgency in the matter, it appeared to my learned friend and I that it would be quite feasible and appropriate subject to the Court’s views, of course, to aim for the last two weeks of June ‑ that sitting period commences on 18 June – because given that we anticipate or hope, reasonably hope, that the process would be completed by mid‑May, or even early May, that will enable the issue to be dealt with in submissions, and in the possible happy event that there was a reconsideration of the security assessment we have liberty to apply and we would obviously come straight back to the Court.

HIS HONOUR:   Yes.  Were it not for the considerations you have been mentioning in relation to Dr Stone and so forth, I speak without precise knowledge, but I am pretty sure that it could be heard before the last two weeks of June.  Your client, of course, is in detention – you say unlawfully for a long time.

MR KIRK:   Yes.

HIS HONOUR:   But if you are not pressing for an early hearing in any event I think possibly leave it as you have left it.

MR KIRK:   Yes.

HIS HONOUR:   The point is, though, I think the Registrar would be wishing to set a date fairly soon.  It may be that one date might be fixed and possibly brought nearer, depending on events, but as long as it is understood that the Court could probably handle this earlier than that timetable indicates. 

MR KIRK:   I understand ‑ ‑ ‑

HIS HONOUR:   I also appreciate, of course, that depending on what happens through those processes at least part of the case may go away.

MR KIRK:   Indeed, that is a possibility, or possibly the whole case will go away.  We greatly appreciate the Court’s expedition.  We have to balance that with attempting to have a sensible resolution of the issues and deal with this process, which is why we have made the suggestion we have made.

HIS HONOUR:   Very well.

MR KIRK:   I should also indicate, your Honour, that I have had a chat to my learned friend, who agrees with these proposed short minutes incidentally – if I can verbal him – and we agree that a two‑day estimate would be appropriate for the hearing of the matters.  If I recollect, M47 was two days and then might have crept into a third for a particular issue which arose late.

HIS HONOUR:   It was at least two days plus another day.  It may have been more than that.  It certainly seemed like more than that.  Very well, but a two‑day estimate?

MR KIRK:   Yes.

HIS HONOUR:   Thank you.

MR KIRK:   That just leaves the summons, your Honour.

HIS HONOUR:   Yes.  I have had a look at the summons and the two affidavits you rely on, which are affidavits of David Taylor Irvine filed on 15 February 2013 and James Gerard O’Callaghan filed on 18 February 2013.  I am happy to make orders to the effect of those in the summons, but I think Mr Donaghue, you need to be prepared for the possibility that the Court that hears the proceedings – the Full Court that hears the proceedings – may not be happy with the confidentiality, but at least it will hold the position until that point of view can be expressed, if it ever is expressed.

MR DONAGHUE:   Thank you, your Honour.  I understand that.  There was an equivalent set of orders made in Plaintiff M47 over equivalent material.

HIS HONOUR:   Yes.

MR DONAGHUE:   But we understand we may need to defend the position before the Full Court in due course.  Thank you for that, your Honour.  I should just say that I do agree with everything that Mr Kirk said, both about agreement to the orders and the two‑day estimate.  On the Commonwealth’s, or defendant’s part, we would, of course, be happy to proceed to this to the final hearing in this matter as soon as the Court wished to do it, but we understand the considerations that have led the plaintiff to feel that June is appropriate and we are content with that.  We are also happy to accommodate it more rapidly if the Court considers that appropriate.

HIS HONOUR:   Very well.  Just a mechanical matter – I might take this course:  delete paragraph 6 of the short minutes of order, which contains six paragraphs and bears today’s date, which deals with the proceedings as a whole and put in after the fifth order numbered the material which is subparagraphs 2(a), (b), (c), (d), (e) and (f) of the summons and then have liberty to apply as in the summons.  Are you happy with that, Mr Kirk?  Are you happy, Mr Donaghue?

MR DONAGHUE:   Yes, your Honour.

HIS HONOUR:   Is there anything else we need to do before the orders are made?

MR KIRK:   Much to my surprise there is, your Honour, perhaps to Mr Donaghue’s surprise, too.  I have just been told that there is a formal issue in relation to our identification of the fourth defendant, whom we had identified as the Officer in Charge, Villawood Immigration Detention Facility.  We have been informed by the defendants that the appropriate identification is Director, Detention Operations, NSW/ACT.

HIS HONOUR:   Right.

MR KIRK:   So I seek the Court’s leave to alter the identification of the fourth defendant in the terms I have identified, which I assume is not opposed, given I have just been told to do it by the defendants.

MR DONAGHUE:   Your Honour, if it came from my instructors, it is not opposed.

HIS HONOUR:   All right.  I make the following orders:

1.The special case filed by the parties on 15 February 2013 be set down for hearing by a Full Court on a date to be fixed.

2.On or before 26 February 2013, the plaintiff file and serve notices in accordance with s 78B of the Judiciary Act 1903 (Cth).

3.The plaintiff file and serve a written outline of submissions, not to exceed 25 pages in length, at or before 4.00 pm on the day four weeks before the date on which the special case is set down for hearing.

4.The defendants file and serve a written outline of submissions, not to exceed 25 pages in length, at or before 4.00 pm on the day two weeks before the date on which the special case is set down for hearing.

5.The plaintiff file and serve a written reply, not to exceed seven pages in length, at or before 4.00 pm on the day one week before the date on which the special case is set down for hearing.

6.Leave is granted to the plaintiff to amend the name of the fourth defendant to “Director, Detention Operations, NSW/ACT”.

7.The parties to this proceeding and their respective counsel and solicitors are not to use or disclose the security assessment interview report about the interview with the plaintiff conducted on 2 November 2009, being the document which is attachment SC7 to the special case, other than for the purposes of this proceeding.

8.The document which is attachment SC7 to the special case is not to be available for inspection or copying by any person other than the parties to the proceeding and their respective counsel and solicitors.

9.The parties to this proceeding and their respective counsel and solicitors may not use or disclose the transcript of interview with the plaintiff conducted on 1 December 2009, being the document which is attachment SC8 to the special case, other than for the purposes of this proceeding.

10.The document which is attachment SC8 to the special case is not to be available for inspection or copying by any person other than the parties to the proceeding and their respective counsel and solicitors.

11.The parties to this proceeding and their respective counsel and solicitors may not use or disclose the document which is attachment SC23 to the special case, other than for the purposes of this proceeding, and must not publish in any way the content of that document.

12.The document which is attachment SC23 to the special case is not to be available for inspection or copying by any person other than the parties to the proceeding and their respective counsel and solicitors.

13.Liberty to apply is reserved to any party on not less than 24 hours notice in writing to other parties.

I think that covers everything.  Adjourn the Court.

AT 9.45 AM THE MATTER WAS ADJOURNED