RCWV v Commonwealth of Australia; EGH19 v Commonwealth of Australia

[2025] HCATrans 43

[2025] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S41 of 2025

B e t w e e n -

RCWV

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Sydney  No S55 of 2025

B e t w e e n -

EGH19

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 13 JUNE 2025, AT 8.59 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS L.G. DE FERRARI, SC appears with MR C.J. FITZGERALD, MS N.F. CASE and MR T.P. O’CONNOR for the plaintiff in each matter.  (instructed by Zarifi Lawyers)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears with MR M.A. HOSKING for the defendant in both matters.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Ms De Ferrari, I have received the parties’ proposed orders, and I have read the application, the response and the replies to each of the constitutional writs, as well as the affidavits of EGH19 and Ms Lenagh‑Maguire, Mr Michel and Mr Zarifi, and the two affidavits of RCWV.  To the extent to which the parties want to refer to those, I will take those as read.  Would it be convenient if I just start with your proposed orders and deal with a couple of the issues that arise from those?

MS DE FERRARI:   Yes, your Honour.  Of course.

HIS HONOUR:   If we start with EGH19, one of the small issues in dispute between the parties is just whether you need the words read with regulation 2.25AA and 2.25AB.  There is no reason why that cannot just be a matter addressed in submissions, is there?

MS DE FERRARI:   There is no reason, no, your Honour.

HIS HONOUR:   Then the slightly more substantive issue is the proposed question of whether a writ of habeas corpus should issue, and whether that claim ought to be part of any special case.  One difficulty with that is that – as the Commonwealth points

out – this raises issues that may have no utility at all in a hearing, given that the Commonwealth accepts that if either of the conditions is invalid, then those conditions will not be enforced or enforceable.

If the questions of habeas corpus – and assuming that is the right writ in relation to both of the types of conditions – raise significant questions of fact, then there may also be real difficulties with those questions of fact being heard, certainly, as part of a special case where they cannot be agreed, but even as part of an application for a constitutional writ in the Full Court.  Is there any reason why these questions must be pressed by your clients, and if so, why the matter should not be remitted to the Federal Court, if there are significant issues of fact that need to be determined?

MS DE FERRARI:   Yes, your Honour.  That really is, in a sense, the critical issue why, at least from my clients’ perspectives, we thought we should be before your Honour.  Taking it in turn, we just do not understand why there could be significant factual issues raised by the writ of habeas corpus different from, in any way, the facts that are necessary to answer the question that your Honour has referred to first.

The concern we have is that if there really is a divergence between the reach of the writ of habeas corpus and the basis upon which these provisions are said to be unconstitutional.  Now, that is really a fundamental question that goes to the way in which the constitutional question is addressed, because as we are understand it, effectively what came out of this Court’s decision in YBFZ in particular, the problem with the – the legislation in question is that that authorises the position of these conditions on a particular visa.  There is nothing actually that makes a visa as such given to my clients unconstitutional, it is just the imposition of their conditions.

Now, at its heart, the result in the earlier decision of this Court must have been because there was simply no power by the Executive to affect liberty, in some way, of that individual.  If it had not been for that reason, then the questions would have been answered in a different way.  So, the position now that somehow there might different facts or there might be a different result if one approaches by way of the writ of habeas or by way of those questions is one that we think needs to be explored, because otherwise ‑ ‑ ‑

HIS HONOUR:   Well, Ms De Ferrari, one difficulty with exploring it is that although there is no doubt that a writ of habeas corpus extends to protect the liberty of a person, the extent to which it protects liberty may be a very large question.  In other words, it does not protect every aspect of a person’s liberty.  Certainly, it protects liberty from unlawful detention, but how much further it goes may be a very factually‑intensive question.  I think the point the Commonwealth is putting against you – I will hear from the Commonwealth in a moment – is that those types of questions should not be determined in a vacuum.

If it is necessary to determine those questions, then one ought to have proper findings of fact that allow the Court to explore the boundaries of the writ of habeas corpus.  At the moment it is not clear to me why those types of issues need to be explored in this proceeding.  If you win on the two points that you have raised, then you will get all the relief you need.  If you do not win on both of those grounds, then there would be no basis for even a writ of habeas corpus in the broadest sense.

MS DE FERRARI:   I understand, your Honour, and our answer is simply this, and this is why we want to explore it now and not have to explore it in a Full Court, if that is where we are heading – and it is this:  fundamentally, for the answers in the special case to those questions to be answered in favour of my client, it must be – it must be – because there was no power to affect the bodily integrity and the liberty of my clients in that way.

For that to be the case, that can only be an implication by Chapter III.  For it to be an implication by Chapter III, it can only be because of the limb limitation, and it can only be because it has an effect on the liberty of the individuals.  Otherwise, we are looking at some broader principle.

Now, if it affects the liberty of the individual but somehow the fundament of writ of great antiquity of habeas corpus does not reach to it, then we are concerned about that becoming an issue in exploring why we would get answers in our favour to those questions.  That is our only concern.  We do not understand how there could be different questions of facts, other than the fact that they have this visa and they have those conditions imposed on them – the bracelet and the curfew.

We do not understand how there could possibly be any other facts, and we do not understand why there is a divergence.  If we are wrong about that, your Honour, we are fully in agreement with the Commonwealth that – of course, we are not doubting that the Commonwealth would comply with the effect of the declaration.  That is not our issue at all.

HIS HONOUR:   Yes.

MS DE FERRARI:   Our issue is, fundamentally:  how are we going to get to the constitutional question?

HIS HONOUR:   So, as I understand, then, your position is that your preference would be to have a special case that included the third issue of:  should a writ of habeas corpus issue?  But if the parties were unable to agree on that issue being stated, and if the Court did not consider that it was appropriate to determine that issue in light of potentially disputed underlying issues of fact, you would be content to have the special case heard just in relation to the first two issues?

MS DE FERRARI:   As I understand my instructions – and I am checking as we speak – in respect of each of my clients, they would be content to have those questions determined in the way the Commonwealth says.  We just are very concerned, having read the decision in YBFZ, about whether that is going to cause issues later on.

HIS HONOUR:   Yes.

MS DE FERRARI:   Can I say this, your Honour.  In the case of NZYQ – now, that of course was a matter that came to the Court because the Attorney‑General made a removal application from the Full Court, but in that case the questions that were answered by this Court were – the question to what orders should be made – declaratory relief and habeas corpus.  Now, I know the person was in detention, but that is the issue.  Where is the divergence?  Where is habeas divergence in these cases?

HIS HONOUR:   All right.

MS DE FERRARI:   That is all we are saying, your Honour.

HIS HONOUR:   Thank you, Ms De Ferrari.  Then, in relation to RCWV, the difficulty at the moment that I have with the plaintiff’s proposed orders is that RCWV might be a suitable vehicle for a special case in relation to the monitoring condition, but in relation to the curfew condition, it introduces new issues that may be relevant to RCWV, but it does so in circumstances where all of the legal issues that affect RCWV’s rights would otherwise be determined by EGH19.

MS DE FERRARI:   That is totally accepted, your Honour.  But again, if I go back to the first point, if one were to look at it in terms of habeas, then the question would simply be:  does the writ of habeas go in each of those two cases?  So, if one looks at ‑ ‑ ‑

HIS HONOUR:   Sorry to interrupt.  There is the habeas issue, but I think a more fundamental issue in relation to RCWV is whether this Court should concurrently hear that case when it introduces standing disputes which may raise very important questions, but questions which ultimately RCWV does not need to have litigated, because all of the basic issues to determine RCWV’s rights will be litigated in EGH19.

MS DE FERRARI:   And I accept that.  I accept that, and we do not want to introduce standing before this Court.  So, my instructions are that my client – the plaintiff RCWV – would also like to have his case heard by the High Court, but I understand what the Court is saying.  Having put my client’s position, we do not want to introduce issues of standing.  I have made the point about habeas.

HIS HONOUR:   Yes.

MS DE FERRARI:   We do not see any difficulty without introducing the issue of standing as to why that case should not also be before the Court, but we are in the hands of the Court, your Honour.

HIS HONOUR:   Thank you, Ms De Ferrari.  Mr Solicitor, could I just turn to you, then, in relation to EGH19.  Is there anything further that you would need to say if one is working from the plaintiff’s proposed orders with the words in brackets struck out and without the question of whether the writ of habeas corpus should issue?

MR DONAGHUE:   Is there anything further I would like to say about the orders, your Honour?

HIS HONOUR:   About the proposed orders or directions that would then be given.

MR DONAGHUE:   Yes.  Well, your Honour, as to – so, without the writ of habeas, your Honour puts to me, so I will not – your Honour has our point in relation to that, so I will not address your Honour any further on that unless you are asking, unless your Honour would be assisted by that.

HIS HONOUR:   No.

MR DONAGHUE:   As to the other orders, the dates are the same as between what the plaintiff put to your Honour and the Commonwealth puts.  The questions are slightly different even with the words struck out, because our friends’ question finishes with:

Is . . . the imposition of condition 8621 . . . invalid because there was no power under the Constitution to make it?

Whereas our version of the question directs attention to Chapter III, and we would ‑ ‑ ‑

HIS HONOUR:   Well, it may be that exactly the same legal arguments would be run.  In fact, I expect that the same legal arguments would be run, but I suspect the reason for the slightly broader wording by the plaintiff is that it picks up the possibility that the examination of whether a condition is one that is reasonably capable of being seen as necessary involves a question of punishment or a slightly wider question of power, but it is exactly the same legal point that is being argued.

MR DONAGHUE:   I expect, your Honour, that is likely, ultimately, to be so.  The version of the question that we proposed largely trapped the question that was before the Court in YBFZ, and that was why we adopted that formulation.  Having looked at it again this morning, and looking both at the plurality judgment and your Honour’s reasons in YBFZ, it did occur to us that perhaps the question as we proposed in our order could have been slightly improved.  Does your Honour have our version of the orders before you?

HIS HONOUR:   Yes.

MR DONAGHUE:   The slight improvement that I have in mind would be, picking up the first question and the looking at the third line – about halfway along – there are the words “because it”, and if the Court were to insert there the words:  because it exceeds the power conferred by section 504 of the Migration Act when that power is construed subject to Chapter III, then that would pick up more precisely.  I think the ‑ ‑ ‑

HIS HONOUR:   That is really just a much more precise way of expressing that it is invalid because there is no power in the Constitution to make it, and it is permits both parties to make all the arguments that they wish.

MR DONAGHUE:   That is right, your Honour.

HIS HONOUR:   All right.  In relation to RCWV, the only additional order, other than the defendant’s proposed orders, is that it may be convenient to add liberty to apply on three days of written notice, to provide for the possible event that if the parties do wish – I think there was an initial agreement between them – to have a special case just in relation to the monitoring condition for RCWV.  At the moment I do not really see any utility in that, because it would be exactly the same arguments that would be run by the same counsel, just in relation to different facts, but I propose to add an additional order with liberty to apply, if the parties wish to agree to have an additional special case that would raise that issue.

MR DONAGHUE:   Your Honour, I have no objection to you adding that order, but, like you, we presently see no advantage at all in duplicating the matters.  The EGH19 matter should resolve all contested issues between the parties.

HIS HONOUR:   All right.  Ms De Ferrari, with the amendment to the defendant’s proposed orders, which I think encompasses all of the matters that you would seek to argue, my view is that it is not appropriate for this Court, and particularly in circumstances where there is dispute between the parties about underlying facts that would need to be litigated for a writ of habeas corpus, and in circumstances in which it does not appear to me that there would be any utility in arguing that point since there will be a determination by the Court in relation to the first two questions that are raised.  The appropriate course would be to make the orders in terms of the way the Solicitor‑General has amended their proposed orders in EGH19.

That would leave out the question of whether a writ of habeas corpus should issue and any potentially underlying disputes of fact that are raised by that question.  If that does somehow become a question after the orders that are made by the Court, then that is something that the plaintiff can litigate further.

MS DE FERRARI:   I understand, your Honour.

HIS HONOUR:   In relation to RCWV, for the reasons I have expressed to you, I think the appropriate orders are the orders that are proposed by the defendant, with a third order for liberty to apply on three days’ notice if the parties wish to agree a special case, as I think in the correspondence it was initially discussed that they would, just in relation to the monitoring condition.

As I say, at present, I do not see the utility in that, given that all of the issues in relation to the monitoring condition would be litigated in the EGH19 matter.  So, it may be much more convenient to hold RCWV in abeyance, pending the determination of EGH19.  If there are any additional issues that arise, then they can be addressed consequent upon the determination by this Court in EGH19.

MS DE FERRARI:   Yes, your Honour.  Your Honour, can I just say one more thing, and it is not that it is something that I envisage happening, but just to raise it because I know that the history of the previous decision of this Court in YBFZ, that was very laborious because visa conditions and the visas themselves changed over a period of time.  My client is currently subject to both conditions, but of course there is nothing at all that stops the Minister, even tomorrow, from issuing the same category of visa but with just one of the conditions.

So, I am not suggesting that is likely to happen, but there might be temporal questions by the time the matter comes before the High Court, in terms of whether he still has both conditions or not.  As I said, I do not want

to make any submissions at this moment, I am just raising the possibility that that may occur.

HIS HONOUR:   All right.  Well, there is liberty to apply in both matters, and the orders that I will make are in relation to the form of the defendant’s proposed orders, with the amendment that the Solicitor‑General outlined, are as follows:

1.On or before 4.00 pm on 25 June 2025, the defendant serve on the plaintiff a draft special case limited to the following questions of law:

To the extent clause 070.612A(1) of Schedule 2 to the Migration Regulations 1994 (Cth) authorises the imposition of condition 8620 on a Bridging R Subclass 070 visa, is that clause invalid because it exceeds the power conferred by section 504 of the Migration Act when that power is construed subject to Chapter III of the Constitution?

To the extent clause 070.612A of Schedule 2 to the Migration Regulations 1994 (Cth) authorises the imposition of condition 8621 on a Bridging R Subclass 070 visa, is that clause invalid because it exceeds the power conferred by section 504 of the Migration Act when that power is construed subject to Chapter III of the Constitution?

2.On or before 4.00 pm on 9 July 2025, the plaintiff serve an amended draft special case, limited to the question of law set out in order 1, on the defendant.

3.On or before 4.00 pm on 30 July 2025, the plaintiff file and serve any agreed special case limited to the question of law set out in order 1.

4.The matter be listed for a further directions hearing on or after 4 August 2025.

5.Liberty to apply on three days’ written notice.

6.Costs reserved.

In RCWV v Commonwealth of Australia:

1.The matter be held in abeyance, pending the hearing and determination of proceeding EGH19 v Commonwealth.

2.Costs reserved.

3.Liberty to apply on three days’ written notice.

Nothing further.  The Court will adjourn.

AT 9.22 AM THE MATTER WAS ADJOURNED