Plaintiff S164-2018 v Minister for Home Affairs

[2018] HCATrans 165

[2018] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S164 of 2018

B e t w e e n -

PLAINTIFF S164/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

Defendant

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 29 AUGUST 2018, AT 9.58 AM

Copyright in the High Court of Australia

MR V.A. KLINE:   If your Honour please, I appear for the plaintiff.  (instructed by Victor Alan Kline, Barrister)

MR C.L. LENEHAN:   May it please the Court, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Kline.

MR KLINE:   Your Honour, I would have thought this is a – this being a matter, a purely constitutional matter of potentially wide‑ranging ramifications – would have been seen to be a matter par excellence for the Full Court to hear.  The Minister, however, is opposing that.  Indeed, he is seeking summary dismissal today or, at the very least, a remittal to the Federal Court.  Under those circumstances I thought I probably should impose on five minutes of your Honour’s time to set out the plaintiff’s position because my friend will want to address as well.

HIS HONOUR:   Yes.  You are prepared to deal with this today?

MR KLINE:   Yes, your Honour.

HIS HONOUR:   Does either party suggest that section 78B of the Judiciary Act presents an impediment to me taking either of the courses suggested by the written submissions of the Minister?

MR LENEHAN:   No, your Honour.  My friend has filed a 78B notice.

HIS HONOUR:   I am sorry, thank you.

MR KLINE:   Sorry, your Honour.  So, your Honour, in a nutshell the plaintiff’s argument is based on the doctrine that your Honour knows very well, as first explained in Plaintiff S157, that section 75(v) of the Constitution guarantees an entrenched minimum provision of judicial review. If legislation seeks to trench on that entrenched minimum provision of judicial review it is invalid as being inconsistent with the place of section 75(v) in the Constitution. There the Court also speaks of section 75(v) limiting the powers of the Parliament to avoid or confine judicial review.

Bodruddaza followed after that and puts it in terms of a law being invalid to the extent that it has the effect of removing, curtailing, confining or abrogating the Court’s authority to decide whether to grant relief under section 75(v), and most recently Graham’s Case says a law is invalid if it operates by its inflexibility to shield the purported exercise of power from judicial scrutiny.

The plaintiff’s argument then goes on to say that sections 189(1) and 196(1) and (3) of the Migration Act seek to move or trench upon that guaranteed minimum provision of judicial review, do seek to avoid or confine judicial review, do seek by their inflexibility to provide a shield against the exercise of judicial review and so are inconsistent with the place of section 75(v) in the Constitution.

This is because, apart from some very minor work which the sections leave the High Court to do, they exclude the High Court in 99.9 per cent of cases by the simple device of converting what one might have expected to be a “may” into a “must” such that there is no exercise of discretion to review.

HIS HONOUR:   Exclude the High Court from what?  What is the exclusionary effect on the High Court?

MR KLINE:   The High Court cannot review the mandatory detention of a person – so, for example, if the section said “the Minister may detain a person” then the Minister would go about that task and if he fell into some form of error that could be challenged in the High Court by the device of – “device” is not the right word but ‑ ‑ ‑

HIS HONOUR:   No.  So your argument is entirely focused on the “must” as distinct from the “may”?  Is that what it comes down to?

MR KLINE:   That is the core of it, yes.  Then that argument is reinforced by reference to cases like Plaintiff M61 and Kirk which establish the interdiction against legislation which seeks to create islands of executive power immune from supervision and restraint, which these sections do. 

The plaintiff then points to what was said by Justices Kirby and Callinan in Gerlach v Clifton Bricks that no Parliament can confer absolute power on anyone, but should these mandatory detention sections be held valid, not only is an island of power confirmed in relation to them, it is the green light for Parliament to create as many islands of power as it wishes and to exclude this Court from review when it wishes with a result that Parliament would have de facto absolute power and, as I have said in my written submissions ‑ ‑ ‑

HIS HONOUR:   Mr Kline, we are concerned with these sections.  We will confine our attention to them.  Section 189(1) has a condition precedent.  The officer who must detain must only detain or can only detain if the officer knows or reasonably suspects that a person is an unlawful non‑citizen.

MR KLINE:   Yes.

HIS HONOUR:   You do not suggest that these provisions prevent a court from determining whether or not that precondition is established?

MR KLINE:   No.  That is the counter argument which we acknowledge, that in terms of the 0.01 per cent of cases where, for example, someone is a citizen who gets detained, or where someone is a lawful non‑citizen, is detained, or where, theoretically at least, an officer detains someone, not for administrative purposes, but to punish them, but post Al‑Kateb it would be hard to imagine where that would arise, the High Court has work to do.  That is what I said at the very beginning. 

So subject to that, the principal purpose, the 99.9 per cent of cases, the principal purpose for which the legislation is there, that is to detain unlawful non‑citizens, cannot be reviewed by the High Court.  An island of power is created and that is so irrespective of the age, race, sex, danger to the society, or lack thereof, and so on and so on and so on, of the detainee in question.

HIS HONOUR:   All right.  So your entire argument comes down to the point that the decision to detain is practically unreviewable?

MR KLINE:   That is it.

HIS HONOUR:   All right.

MR KLINE:   That is it, your Honour.

HIS HONOUR:   Would you need to overturn any decisions of this Court to establish that?

MR KLINE:   No.  The line of authority that runs from Plaintiff S157 through Bodruddaza to Graham, when reinforced by M61 and Kirk, the islands of power cases, in my submission lead inevitably to this conclusion.

HIS HONOUR:   Yes.  All right, I understand.

MR KLINE:   So I think your Honour understands what I am saying.

HIS HONOUR:   I understand the nature of the argument you wish to put.

MR KLINE:   Thank you, your Honour.

HIS HONOUR:   Yes.  Mr Lenehan, what is your preferred course in this matter?

MR LENEHAN:   Your Honour has seen that we do say indeed your Honour should dismiss the matter under rule 25.03.3(a).  If your Honour is not minded to do that then we submit the appropriate course will be to remit it to the Federal Circuit Court, not ‑ ‑ ‑

HIS HONOUR:   Just to have the same argument that we would have today.

MR LENEHAN:   Essentially, yes.

HIS HONOUR:   All right.

MR LENEHAN:   We say Federal Circuit Court.  My friend may wish to be heard on ‑ ‑ ‑

HIS HONOUR:   I am not inclined to remit it, Mr Lenehan.  I will either deal with it myself or refer it as asked.

MR LENEHAN:   Yes.  So, as your Honour has identified in argument, this matter is put on the basis of one ground and the ground is that 189(1), 196(1) and 196(3) so limit the right of detained people to seek relief under 75(v) so as to infringe the constraints on legislative power that this Court has identified by reference to that provision. 

Your Honour will have seen that the fundamental difficulty that the Minister identifies with that proposition is, as Mr Kline has correctly accepted, none of those provisions, either in form or in substance, to highlight the point made in Bodruddaza and in Graham, prevent a court from determining and enforcing the express or the implied legislative limits of the relevant officer’s power. 

The Minister says it is that matter, can the Court enforce the legislative limits of statutory power with which the constraint imposed by section 75(v) is concerned. It is not directed to – my friend seems to have in mind in the “must” versus “may” idea that it permits in addition one to consider what constraints should have been imposed by the Parliament. Section 75(v) has nothing to do with that, in my submission.

That, we say, is clear from the passages that we have identified in Graham at paragraph 8 of our submissions.  There is also in Graham, just before those passages, an extract from Chief Justice Gleeson’s reasons in S157 at 5.

HIS HONOUR:   What paragraph of Graham?

MR LENEHAN:   This is at paragraph 44, your Honour.

HIS HONOUR:   Yes. 

MR LENEHAN:   Your Honour will have seen from Mr Kline’s written submissions that he makes an appeal on a number of occasions to the notion that section 75(v) secures a basic element of the rule of law, that that is then explained in this passage and we note in particular – so, his Honour there says:

Within the limits of its legislative capacity, which are themselves set by the Constitution, Parliament may enact the law to which officers of the Commonwealth must conform.

That is what it has done here.

If the law confers power or jurisdiction, prohibition may issue to prevent excess of power . . . Parliament –

and this is again what Parliament has done here –

may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed.  But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted.

This law is well within those limits, your Honour.

HIS HONOUR:   Yes.

MR LENEHAN:   If that is right then the argument based on section 75(v) must fail. It is not tenable. For that reason we say your Honour would be minded to dismiss the matter. There is, I should say, another faintly pressed ground that is not actually identified in the notice to show cause. There is a suggestion that ‑ ‑ ‑

HIS HONOUR:   I did not hear another ground being articulated by Mr Kline.

MR LENEHAN:   I will say no more about that, your Honour.  Those are the submissions that the Minister would make and the Minister does seek his costs.

HIS HONOUR:   Yes, thank you.  Mr Kline.

MR KLINE:   Nothing further.

HIS HONOUR:   All right.  I will give my decision in this matter tomorrow at 10.00 am.  There will be no need for the attendance of counsel.

AT 10.10 AM THE MATTER WAS ADJOURNED