Plaintiff S156/2013 v The Minister for Immigration and Border Protection & Anor

[2014] HCATrans 12

[2014] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 2013

B e t w e e n -

PLAINTIFF S156/2013

Plaintiff

and

THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 10 FEBRUARY 2014, AT 9.15 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON, SC:   If the Court pleases, I appear with my learned friend, MR J. WILLIAMS.  (instructed by Adrian Joel & Co)

MR S.P. DONAGHUE, SC:   If the Court pleases, I appear with my learned friend, MR N.M. WOOD, for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Robinson.

MR ROBINSON:   We did not hear my learned friend speak from the Bar table when he announced his appearance?

HIS HONOUR:   I am sorry?

MR ROBINSON:   We did not hear my learned friend speak when he announced his appearance, up in Sydney.

MR DONAGHUE:   Your Honour, should I try that again?  Can my learned friend hear me now?

MR ROBINSON:   Yes, we hear that now.

HIS HONOUR:   Can you see him, Mr Robinson?

MR ROBINSON:   No, we cannot, your Honour; we cannot see it – we cannot see him, but we can hear him clearly now.

HIS HONOUR:   All right, as long as you can hear him, I guess that is enough, but we had perhaps better check the orientation of the camera.  We will proceed then, Mr Robinson.

MR ROBINSON:   Thank you, your Honour.  Your Honour, has your Honour received the written submissions of the plaintiff from yesterday?

HIS HONOUR:   Yes, thank you.

MR ROBINSON:   And, regrettably, we filed our stated case, or our special case, one day late but I do ask your Honour to receive it and consider it.  It is headed “Draft Special Case” in the hope that it might possibly be negotiated upon by the Commonwealth, but it was summarily rejected and it may well be a proposed draft stated case and questions referred, but that is the document upon which we rely, as your Honour directed last year in your Honour’s judgment in December.  The submissions are the submissions that we make this morning.

HIS HONOUR:   Yes.  You raise in your submissions – there are two questions really.  I think 198AD is one and I will ask Mr Donaghue about his attitude to that in a moment.  The other relates to so‑called constitutional facts.  Now, it seems to me a number of the matters that you have raised actually emanate from ground 5, which I think I dealt with in the judgment.

MR ROBINSON:   Your Honour, I hear you, and that is – I accept that, with respect, but we say this is not an appropriate case to look at, for example, the scope of the external affairs power alone or the scope of the migration power alone; this is a case where something specific has happened and this Court so far on the documents suggested by the Commonwealth that be referred does not properly or sufficiently set out the basic facts that should found the constitutional consideration of those powers, your Honour.

I do not wish to say that it must be of a level of constitutional facts because I appreciate that is a little more focused than those powers but, in my submission, the constitutional case here must be considered in a basic setting and that setting is what the Commonwealth did, in particular, to my client and to others.  So that the basic facts are not fairly represented in the Commonwealth’s draft stated case and that is primarily the point I wish to make, your Honour.

HIS HONOUR:   Yes, I understand that.  All right.

MR ROBINSON:   We also wish to have facts that go to your Honour’s discretion.  There is no point winning the case, your Honour, if the Commonwealth leave him on Manus Island in Papua New Guinea.  We want some robust orders from this Court, and they include, for example, that the Commonwealth undertake its best endeavours to retrieve my client from that island and return him to Australia.  They will say, as your Honour has seen already in the material for today, they do not exercise effective control.  We say they do.  In any event, this Court will not make an order if it is a waste of time and we want to establish the basic facts that detail his conditions in Papua New Guinea and permit your Honours to make the order that we seek and as a matter of discretionary relief in the judicial review or the constitutional case.

So we are mindful to have additional facts of the kind that we have in our document before this Court so that the Court will be more minded to make the orders.  It is not a case appropriate, in my submission, where only the decision and the documents before the decision‑makers ought to be put before this Court.  There is other material.  We have put on, as your Honour knows, a very large affidavit and we have picked the eyes of that and put it in the draft stated facts – draft stated case that your Honour has before you.

HIS HONOUR:   Yes, all right.  Thank you, Mr Robinson.

MR ROBINSON:   If the Court pleases.

HIS HONOUR:   Mr Donaghue.

MR DONAGHUE:   Your Honour, can I move on the summons of 3 February 2014 which is supported by an affidavit of Mr Andras Markus affirmed the same date?

HIS HONOUR:   Yes.

MR DONAGHUE:   We submit, your Honour, that there are really three issues that your Honour needs to consider.  The first is, are there any disputes in relation to the facts in the stated case that the Commonwealth has proposed.  The second, are there any additional facts that are needed.  And the third, depending on the answers to those two questions, whether your Honour should refer all or part of the matter to the Full Court or remit all or part of the matter to some other court.

If I can take the points in that order, we endeavoured in preparing the Commonwealth’s draft stated case to be as uncontentious as possible in the hope that what your Honour would be able to do would be to state the case on the basis of uncontrovertible or uncontested facts.  We have in that draft omitted in our questions a reference to 198AD and we accept that our friends are seeking to put the validity of that section in issue so we should have referred in the questions that refer to validity to both 198AB and 198AD.

HIS HONOUR:   And 198AD, yes.

MR DONAGHUE:   I apologise for that, your Honour.  With that correction it seems to us from our friend’s submissions that with two identified exceptions in those submissions they do not dispute the facts that we have proposed in the stated case.  The two identified exceptions are they object to the relevance of paragraphs 14 to 17 in that document, which are facts that we have added that refer to the designation of Nauru.

The reason that we did that, your Honour – and that is an addition that was made fairly recently to the draft – is that our friends have put in issue, as your Honour will recall, the operation of what they call the taking direction, which is a direction given by the Minister under 198AD(5), which only operates when there is more than one regional processing centre and what the direction does is it directs departmental officers in the choice between the regional processing centres when there is more than one.

If that is to be in issue it seemed to us the Court needed to know that there was more than one and that is all we are seeking to do in paragraphs 14 to 17, is to lay the factual foundation to show that there is a need for a choice.

HIS HONOUR:   Yes.

MR DONAGHUE:   The other issue relates to paragraph 44, and here the position is, I think, simply that there is – it is now clear that there is no agreement about that fact.

HIS HONOUR:   Well, I was wondering whether if a case is stated for a Full Court where one of the questions might be whether the proceedings are otherwise able to be remitted for determination in the Federal Court of Australia and/or the Federal Circuit of Australia.  It seems to me there are some difficult issues around the remitter question.  Even if – depending on the outcome of a special case, there would still be issues of which it might be said it would be more appropriate to remit it to a lower court than for determination by a single judge of this Court.

MR DONAGHUE:   That is certainly our position, your Honour.  We submit that in the best possible world there is no way this Court can resolve everything because there will be a need to be a factual trial on at least some issues and it would either have to happen before a single judge or on remitter and it is likely to be ‑ ‑ ‑

HIS HONOUR:   It seems a very convoluted process, the notion of remitter of one part to the Federal Court, another part to the Federal Circuit Court and then the Federal Circuit Court transferring its part into the Federal Court, and a little at odds with the notion of the matter actually.

MR DONAGHUE:   Well, we thought, your Honour, that the matter would be necessarily split because of the way the jurisdictional provisions work, but that it was desirable that it be rejoined for determination, and that is really why we thought part of the case should be sent down to the Circuit Court but bounced back up to the Federal Court so that that court could deal with everything; that is the only way we could see that it could all be dealt with together.

HIS HONOUR:   Now, the only other issue I want to raise with you is, on the face of it, the – as I read the stated case that you propose – the facts are sufficient for the determination of those questions, with all due respect to what Mr Robinson has said.  However, Mr Robinson contends there may be other matters of a constitutional character, factual constitutional character, although he seems to have gone to matters which are particular to the circumstances of this designation and this taking.

MR DONAGHUE:   Precisely.

HIS HONOUR:   I suppose the question might be included – and I just put this out for consideration – as to whether any and, if so, what further facts would be required to determine the questions.  I have a feeling that that may have been asked in some previous cases.

MR DONAGHUE:   Yes, it rings bells with me, your Honour, too.  I cannot recall.

HIS HONOUR:   So the question of what constitutional facts are sufficient ‑ or whether there are constitutional facts that would be needed in addition to that which is set out in your stated case could be agitated, at least to the level of principle.

MR DONAGHUE:   And that would be posed effectively as question (1), would it, your Honour?  Is that what you have in mind?  So that if the Full Court thought there were further questions – that there were further facts, then the Court would say inappropriate to answer all the other questions.

HIS HONOUR:   Well, whether it is question (1) or whether it might come in after the two constitutional questions, I suppose.  It might be better coming in after the two constitutional questions.

MR DONAGHUE:   Your Honour, the situation we would want to avoid is a situation where the Court in ruling on the constitutional questions is asked to embark on a wider factual inquiry, which seems to be what Mr Robinson has in mind at the moment, he seems to say that most of these additional facts are said to be relevant to the validity of 198AD.

HIS HONOUR:   Well, at the moment I am not minded to go down the track that Mr Robinson is proposing because it seems to me that his case, having read his submissions and read his draft case, raises a lot of factual matters which are contested, contestable and do not appear to me to be relevant to the issues which have to be determined.  Now, he makes a point about constitutional facts and it seems to me that is a fairly confined question; it is not a question which goes to the judicial review case.

MR DONAGHUE:   No.  Well, your Honour, I have no difficulty with an additional question or, indeed, additional questions being added along the lines that your Honour has proposed.  Certainly, given that paragraph 44 is disputed, we do think that our proposed question (4) in the draft stated case cannot be posed because without the factual findings in accordance with the

suggestion in paragraph 44 the Court will not have the factual foundation that it needs to know whether or not the taking direction was engaged.  Indeed, our friends have put it in issue in paragraph 19(c) of their application.

We submit if your Honour is minded to refer part of the case up to the Full Court the part that should be referred up is the challenge to the legislation, the challenge to the designation decision itself, which is questions (1) and (2), but the challenge to the direction we think could also go up, number (3), but number (4) we think could not.  So, in effect, that question together with questions about any relief if the plaintiff is successful would be the matters that might need to be remitted to some other court, depending on the outcome reached.

HIS HONOUR:   Because on Mr Robinson’s argument they drag in a whole underbelly, as it were, of contested factual matters.

MR DONAGHUE:   Yes, of factual questions about effective control in PNG and conditions in PNG and all sorts of other matters that we cannot see any prospect of agreeing.

HIS HONOUR:   Yes, all right.

MR DONAGHUE:   If your Honour wants to hear me any further on the remittal issues I can address your Honour on that, but perhaps it is not necessary in light of what your Honour has said.

HIS HONOUR:   I do not think I need to hear you further on the remittal issues at the moment.

MR DONAGHUE:   Yes, thank you.

HIS HONOUR:   Yes, all right, Mr Robinson.  So it appears that the defendants concede that the questions should include a question in relation to 198AD, the constitutional validity.

MR ROBINSON:   Indeed, your Honour.  Thank you.  The issue of referring the constitutional facts issue could be resolved by the inclusion of additional facts and the parties could meet briefly to discuss, at a minimum, the very facts that need to go up before the Full Court and the Full Court can comment of its own volition as to whether they were acceptable or not and, in my submission, that is an appropriate compromise rather than asking the Court what it should have when it does not have it.

Secondly, your Honour, the procedure suggested by my learned friend could be unnecessary if the Commonwealth were to give an undertaking that were the plaintiff successful on the points sent up to the High Court that they will allow the client – permit the client or cause the client to come back to Australia.  If that were the case, then there is one set of proceedings going up and not an underbelly, as it were – or an undercarriage in this case – that would remain.

It is a most unhappy situation for the plaintiff to say, you are having a High Court hearing and if you win then you will have another hearing in possibly two different places.  It is not satisfactory at all, your Honour.  And even though there are facts that he wishes to agitate if it does go upstairs on certain points – for example, the constitutional point and the administrative law points alone – then he should have the benefit of success in that hearing and not have to fight another few cases.

HIS HONOUR:   Now, what are the matters which you say are constitutional facts in your draft special case which are not included in the Commonwealth’s proposed case?

MR ROBINSON:   We would say most of it, your Honour.  We have pared back, as I said, from thousands of basic facts and documents the things that are appropriate to put before the Court.  The documents leading up to the new Act, the current Act, the amended part, they are necessary so that the Court has the proper context to appreciate why the legislation was passed in the first place.

In addition, there is – so, for example, paragraph 11 of the draft special case, or draft stated case, the expert panel’s report.  We say that is significant because that is where Australia chartered itself as heading towards this course of taking people to third countries.  And the UNHCR’s assessment at paragraph 49 onwards, that is significant.

HIS HONOUR:   Why do I not just adjourn briefly to enable you to identify with precision the facts that you say go to constitutional validity ‑ now, we are not here concerned with the judicial review case, but constitutional validity ‑ in addition to those which have been set out in the draft prepared by the Commonwealth?

MR ROBINSON:   I can give your Honour the paragraph numbers now.

HIS HONOUR:   Well, maybe if I just adjourn briefly you can propose those to the Commonwealth, those paragraph numbers, see whether there is agreement.  It may be that there is agreement that these are matters of fact, but disagreement as to their relevance to any argument as to constitutional validity.  Do you see what I mean?

MR ROBINSON:   Yes, your Honour, that is a perfect matter for the Full Court to determine.

HIS HONOUR:   Yes.  I just want you to spell out – because you have mixed up in these factual matters in your draft a lot of matters which seem to me to go to the validity of particular decisions.  I am concerned only with constitutional facts which you say are insufficiently disclosed in the Commonwealth’s draft case.  All right?  Now, if you could just identify to the Commonwealth in the next few minutes the paragraph numbers of your draft that you say are constitutional facts and then I will come back in and deal with it on – if there is no agreement that they can be received as at least contestable constitutional facts for the purposes of the draft case then I will have to make a decision about it, but let me just see what you can do with an identification to the Commonwealth now.

You have made this assertion in your submissions which were filed yesterday that there are insufficient constitutional facts disclosed in the Commonwealth case, in effect, so I would like you now to spell out to the Commonwealth by paragraph number what it is that you propose and I will come back in another 10 minutes or so.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   Obviously, the link will be kept live for that purpose.

MR DONAGHUE:   Thank you, your Honour.

MR ROBINSON:   Thank you.

HIS HONOUR:   Court will adjourn briefly.

SHORT ADJOURNMENT

UPON RESUMING AT 9.50 AM:

HIS HONOUR:   Yes, Mr Robinson.

MR ROBINSON:   Your Honour, we have had a discussion and some limited agreement.  Can I tell your Honour where we are at?

HIS HONOUR:   Yes.

MR ROBINSON:   As to our document, by reference to paragraph numbers, at least to the extent they describe papers as well, paragraph 11 is agreed – well, at least the Commonwealth does not object to it being included.

HIS HONOUR:   The expert panel report?

MR ROBINSON:   The expert panel’s report.

HIS HONOUR:   Yes.

MR ROBINSON:   We say that paragraphs 14 to 18 are significant in its particular context and they do not agree, and so 14 to 18 are not agreed.  Then 49 to 50 is agreed.

HIS HONOUR:   Just a minute.

MR ROBINSON:   I am sorry, your Honour, I am turning the pages too.

HIS HONOUR:   So this UNHCR assessment on the designation of PNG?

MR ROBINSON:   That is correct.

HIS HONOUR:   That is 49 to?

MR ROBINSON:   Of course, 50 is just extracts from it, your Honour, but the document itself is the significant thing.

HIS HONOUR:   Yes, all right ‑ so 49 to 50.  Yes.

MR ROBINSON:   Paragraph 49 to 50 is accepted by the parties.

HIS HONOUR:   Yes.

MR ROBINSON:   Jumping a bit, paragraph 75 is already contained in their documents.  As I said, your Honour, most of their draft stated case is in this in terms, but paragraph 75 deals with an operational arrangements submission and that is already in the proposed bundle by the Commonwealth.

HIS HONOUR:   All right, so we do not need to add that as a fact?

MR ROBINSON:   Well, I do suggest that it is an appropriate constitutional fact, in any event, but it is already in.  And the paragraphs that are contentious, could I give your Honour a short list?

HIS HONOUR:   Yes.

MR ROBINSON:   Paragraph 60 to 64 inclusive, 68, 69 and 112.

HIS HONOUR:   Let me just have a quick look at those, Mr Robinson.  So we have got 68 and we have 69?

MR ROBINSON:   Paragraph 69.

HIS HONOUR:   Yes, and 112?

MR ROBINSON:   And 112.

HIS HONOUR:   So this is all said to go to the constitutional question, is it?

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   Yes, all right.  So let me just get the agreed ones.  Paragraph 11 and 49 to 50?

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   All right.  Mr Donaghue, do you want to say something?

MR ROBINSON:   And 75 is not in dispute, as I understand it.

HIS HONOUR:   All right.  Yes, Mr Donaghue.

MR DONAGHUE:   Can I just say about those agreed ones, your Honour, 75, as my friend said, is already in, it is SC17 to our draft.  Paragraph 49 to 50 deals with another document that is already in, SC7 to our draft.  We do not agree to the inclusion of the paragraphs that are 49 and 50, which are commentary and submission based on that document, but we do agree to the document itself which is already in our draft.

HIS HONOUR:   Yes.  And what about 11?

MR DONAGHUE:   And 11, we do not object, your Honour; we do not accept that it is a constitutional fact but it is clearly part of the background that led to the legislation and if our friends say that it helps them, then – so 11 and the expert report itself could be included but not the extracts from it at 12 and 13.

HIS HONOUR:   Yes, all right.

MR DONAGHUE:   But all of the others we say on no view of them are properly regarded as constitutional facts, and many of them are reports that contain a particular angle or slant or express particular opinions about facts that we do not accept are true so we do not agree to sort of one half of the story being put through the prism of particular reports that our friends have selected.  I can go through them one by one if that would assist your Honour.

HIS HONOUR:   I understand the point you are making.  So the position at the moment is that you accept that the validity of 198AD should be included?

MR DONAGHUE:   We do.

HIS HONOUR:   You propose not to press question (4) in your paragraph 51?

MR DONAGHUE:   That is also correct.

HIS HONOUR:   Yes.  On the basis that that ‑ ‑ ‑

MR DONAGHUE:   And your Honour would I think also need to delete paragraph 44 of our draft.  You may not need 45 either if the only questions before the Court are the questions about the Act and the earlier decisions then the facts about things on the ground in PNG are probably not particularly relevant, but ‑ ‑ ‑

MR ROBINSON:   Your Honour, we agree with 45, as it happens.

MR DONAGHUE:   But those were facts all proposed with a view – in the concert that question (4) was going forward.

HIS HONOUR:   Yes, yes, all right.

MR DONAGHUE:   Mr Wood reminds me that 31 to 34 are also only relevant because of question (4) so we probably would not need them either.

HIS HONOUR:   Questions 31 to 34?

MR DONAGHUE:   Paragraphs 31 to ‑ ‑ ‑

HIS HONOUR:   Sorry, paragraphs 31 to 34.

MR DONAGHUE:   Paragraphs 31 to 34.

HIS HONOUR:   But this goes to the taking direction, does it not?

MR DONAGHUE:   Well, it goes to the application of the taking direction, to the particular taking of this plaintiff.

HIS HONOUR:   I see, yes.

MR DONAGHUE:   So we think it is relevant to question (4) rather than question (3).  So, your Honour, I think, as I understand it, the challenge to the taking direction is a challenge that is made really on the face of the direction, it just says it is not sufficiently clear in its operation to the particular plaintiff; that is the distinction between the challenge to the direction and the challenge to the decision, the taking decision.

HIS HONOUR:   Yes.

MR DONAGHUE:   But with the deletion of those paragraphs, and the omission of question (4), we submit that the matter could then be stated for the Full Court, if necessary then with the additional questions that your Honour proposed.

HIS HONOUR:   And on this basis we need not raise any further question about constitutional facts?

MR DONAGHUE:   I believe that is correct, your Honour, yes.

HIS HONOUR:   Yes, Mr Robinson, I will give you a chance to reply on that.

MR ROBINSON:   Your Honour, my submission is it is preferable, in addition to the matters that your Honour has discussed, that you send all three decisions up to the Full Court.  They will be dealing with the background matrix, the constitutional argument, and the judicial review argument will be dealt with in submission, in essence, and will not take very long on the floor, as it were.

And there is no significant pressing reason, in my respectful submission, to bifurcate the case where the salient facts and few documents – there is only a couple of documents for the taking decision – the taking direction and the taking decision that need to be put before the Court.  So, in my submission, it all should go up as is contained in both stated cases with whatever additional questions that are appropriate, but there is no reason to leave part of it here in that circumstance.

HIS HONOUR:   Yes, all right. Thank you, Mr Robinson. Just bear with me for a moment. All right, by orders made on 19 December 2013 I directed that the parties endeavour to agree a special case for referral to a Full Court and that in lieu of such agreement, either party could file a proposal for a case to be stated and questions to be reserved pursuant to section 18 of the Judiciary Act 1903 for consideration by a Full Court. Pursuant to other directions made at the time, the plaintiff has filed a further amended statement of claim. The parties have been unable to agree a special case for reference to a Full Court. The plaintiff and the defendants have each filed a proposal for a case to be stated and questions to be reserved for consideration by a Full Court.

The draft proposal of the plaintiff involves a large number of what I regard as contested and irrelevant facts.  That proposed by the defendant comprises facts asserted by the plaintiff, material before the Minister when he made the impugned decisions and ministerial correspondence with the UNHCR in relation to the possible designation of Papua New Guinea as a regional processing country under the provisions of the Migration Act 1958.

In my opinion, the stated case and questions reserved which are proposed by the defendants form a suitable basis for referral to a Full Court with the following variations:

1. A new question (2) should be inserted after question (1) to read “Is section 198AD of the Migration Act 1958 invalid on the ground that it is not supported by any head of power in section 51 of the Constitution?”

1. A new question to replace existing question (4) “Are these proceedings otherwise able to be remitted for determination in the Federal Court of Australia or the Federal Circuit Court of Australia?”

1. Existing question (4) to be deleted; that is, a judicial review application involving factual matters likely to be contested and is not appropriate, in my opinion, for referral to a Full Court.

1. The facts upon which the stated case is based should be varied by the inclusion of the facts set out in the plaintiff’s draft special case at paragraph 11 and by the deletion of those set out in paragraphs 31 to 33 inclusive and paragraph 44 of the defendant’s proposal.

So the orders I will make will be – this is subject to your comment on time, Mr Donaghue:

1. The defendants to file on or before 12 February an amended stated case and questions reserved in accordance with these reasons.

1. Pursuant to section 18 of the Judiciary Act 1903 I state a case and reserve questions for the consideration of the Full Court in terms of the defendants’ proposed stated case and proposed questions as amended in accordance with these reasons.

1. Part 44 of the High Court Rules apply to the hearing of the stated case as if it were an appeal, save that for the purposes of rule 44.02.1, the plaintiff is to file and serve his written submissions within 35 days of the date of this order.

1. There is liberty to apply.

1. Costs today in the cause.

MR DONAGHUE:   That timing does not cause any problems for us, your Honour.

HIS HONOUR:   All right.  And that 35 days, Mr Robinson?

MR ROBINSON:   It is a bit tight, your Honour.  I would certainly prefer 60, or at least 45.

HIS HONOUR:   It probably will not make any difference to the actual hearing date, which will be either April or May, I would think.  So we will make it 45 days, Mr Robinson.

MR ROBINSON:   If the Court pleases.

HIS HONOUR:   Thank you.  Court will now adjourn.

AT 10.10 AM THE MATTER WAS ADJOURNED