Save the Children Australia v Minister for Home Affairs & Anor

[2024] HCATrans 65

[2024] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M58 of 2024

B e t w e e n -

SAVE THE CHILDREN AUSTRALIA

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GAGELER CJ
EDELMAN J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE BY VIDEO CONNECTION

ON MONDAY, 23 SEPTEMBER 2024, AT 10.00 AM

Copyright in the High Court of Australia

GAGELER CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR E.M. NEKVAPIL, SC appears with MS K.E. BROWN, MR J.E. HARTLEY, MR N.M. PETRIE and MS R.C. TAYLOR for the applicant.  (instructed by Birchgrove Legal)

MR C.L. LENEHAN, SC appears with MR C.J. TRAN and MS K.R. McINNES for the respondents.  (instructed by Australian Government Solicitor)

GAGELER CJ:   Mr Nekvapil, it is apparent from the response filed last Friday that your application for leave to amend the special leave application is not opposed.  You have that leave, and you can proceed on the basis of the application as amended.  Thank you.

MR NEKVAPIL:   Thank you, your Honour.  I will address proposed grounds 2 and 2A, but I will start with 2A, and I will develop it by reference first to the dispositive legal test and secondly to the key facts conceded or found which leads to the conclusion that those facts fall comfortably within that legal test.  I will refer for this argument, your Honours, to the report of Ramatullah v Secretary of State for Defence [2013] 1 AC 614, as well as to the Full Court’s judgment below.

Just to start off by marrying the two, if your Honours look at the test stated at paragraph 45 by Lord Kerr, that is at page 23 of the PDF, page 636 of the report, his Lordship said:

At the heart of the cases on control in habeas corpus proceedings lies the notion that the person to whom the writ is directed has –

skipping some words:

at least the reasonable prospect of being able to . . . secure his production to the court.

Now, if your Honours then take up the judgment of the Full Court at paragraph 100, which is at page 28 of the document, your Honours see there, second sentence:

It is through such a plan, together with the facilitation and cooperation role played by AANES, that the release of the STCA women and children could be secured.

And so, there is a correlation in language between Lord Kerr’s test and the finding which is the culmination of a number of other findings I will take the Court to.

EDELMAN J:   Mr Nekvapil, you will have seen from the response from the respondent that that test has been considered in its application to circumstances which are almost materially identical to this case in C3 v Foreign Secretary.

MR NEKVAPIL:   Yes, your Honour.  What we say about C3, first of all – and I will refer to the report, C3 v Secretary of State for Foreign, Commonwealth and Development Affairs [2023] KB 577 – the reasoning of Lord Justice Underhill was not relied on by the Full Court below, and is quite different, so that were the respondents to rely on C3, they would need to do so by a notice of contention, in response to which we would make at least the following two arguments.

First of all, that Lord Justice Underhill’s reasons do not conform to Rahmatullah, O’Brien and Barnardo, in our submission, which we also made below, because paragraphs 46 to 52 in Lord Justice Underhill’s reasons elevate the fact of original detention present in each of those three cases as a fact to an element of the test, which we submit is inconsistent with the reasoning of Lord Kerr in Rahmatullah.  Your Honours can see that both in the statement of the test at paragraph 45, but if your Honours go to paragraph 52 in Rahmatullah, you will see that Lord Kerr in applying the common law method by reference to the flexibility and adaptability of the writ, was doubtful of an argument that O’Brien should be understood as centred on the original unlawful detention, and said, rather, that:

The issue of the writ depended crucially on the finding that it was likely that the Home Secretary could procure Mr O’Brien’s release.

What we say is that is indicative of his Honour applying the common law method as foreshadowed in paragraphs 42 and 43 in respect of the breadth of the writ, and then as carefully considered by reference to the decided cases by analogy, including Barnardo and O’Brien most importantly, at 45 to 52 in Rahmatullah, but also Mwenya and Sankoh, which did not succeed, at 55 to 63.

GAGELER CJ:   Do you not really have to take into account 64 as well, which is the ultimate application of these principles, and the focus there is upon an existing memorandum of understanding?

MR NEKVAPIL:   Well, it depends, your Honour, how one derives the principle by reasoning from the decided cases.  The way we put it below, as a – if you like – safety barrier to cut off extreme cases on the perimeter, was we said what you would find in the decided cases is there must be a relationship on which to call, being a relationship between the respondent and the actual detainer which gives rise to the finding foreshadowed in the test stated at paragraph 45.

So, we say that is an appropriate extrapolation from the facts of the decided cases, having regard to the matters about the writ stated at 42 and 43, so that when at 64 his Honour said:

there are reasonable grounds on which it may be concluded that the respondent will be able to assert that control.

His Honour is not intending to impose some elevated fact from the cases such as original detention, but rather is intending to demonstrate that the test is as stated in paragraph 45.  Now, as applied to the facts of Rahmatullah, of course, there was a memorandum of understanding, but there was no equivalent thing in Barnardo, and obviously it was a different kind of thing in O’Brien.

What the Commonwealth submits at paragraph 44F of its proposed amended response is that there must be a legal right, or something of that kind.  What we say, when one looks at the facts as found by the Full Court and the result, is that it is clear from the reasons that the reason we lost, despite having hit our target on the core facts for which we contended, is that the Full Court imposed a requirement for an “arrangement” entailing something like a strict obligation such as one might describe as an “agreement” or something akin to that, and, because the arrangement we pointed to did not correspond to something of that kind, that we failed the legal test.  But what we ‑ ‑ ‑ 

EDELMAN J:   Mr Nekvapil, even if one assumes you are right on every aspect of this approach, the question of de facto power to release would surely be a question, on your approach, of whether as a matter of fact there is power vis‑à‑vis AANES for the Commonwealth to obtain release.  Is one difficulty with that not that one of the reasons in C3 for the rejection of that argument, that that power is dependent or conditional upon acts of third parties like Iraq and Turkey?

MR NEKVAPIL:   The second matter we would raise about C3 is that the factual basis for our case is much stronger and different from the factual foundation of the case in C3.  Relevantly to what your Honour has just asked me, in C3 there had been a refusal by the United Kingdom to repatriate. By contrast here, based on a very substantial factual case that we ran, there is a finding at paragraph 107 based on the evidence – this is of the Full Court’s judgment – that a further repatriation would be “straightforward”. As will be clear to your Honours from the findings, there is simply no indication by the Commonwealth either way about a further repatriation. So, that is one important factual distinction.

The other is that your Honours can see from the report of Ms Kaufmann’s argument in C3, as well as paragraph 3, 18 and others, that the applicants’ case was based solely on the fact of the AANES’s offer, and that is the way it was advanced in C3. What we say is that the Full Court’s findings here, in our case, in particular at 92, 93, 94, 100 and 107, go well beyond that, and effectively hit the entire area of the factual target for which we aimed. That is, there was a prior arrangement which succeeded, there was a plan, there was a finding that the AANES will repatriate, there was a finding that it will be straightforward, and all of that culminates in that second sentence I read to your Honours at paragraph 100.

EDELMAN J:   Was there any exploration below as to whether or not any de facto or factual power, in the sense of an ability to obtain release, was conditional upon acts of any third parties like Iraq or Syria in allowing transport through their territory?

MR NEKVAPIL:   It simply was not raised as a difficulty, your Honour.

EDELMAN J:   So, it was never explored as to whether the de facto power or ability was absolute or conditional?

MR NEKVAPIL:   That was explored, if what your Honour means by that is:  was it conditional on anything done by AANES?  That was raised, the Commonwealth said directly that it had an absolute discretion, and the result of the Full Court’s upgrading, in paragraph 92, of the primary judge’s finding in 106, from “likely” but:

cannot be assumed –

to “will”:

on the balance of probabilities –

on all of the evidence, and at 107 that it will be “straightforward”, constitutes a rejection of the prospect that the AANES has something that might be described as an absolute discretion, whatever that might mean for a non‑state actor.  But in terms of whether there would be any difficulties with the countries, the facts that were before the court is this was successfully done in October 2022, and there was no evidence of any change which might indicate any difficulty or conditionality by reference to a third party other than the Commonwealth and AANES.

In other words, the second reason for refusal in C3 was not relied upon and does not form any part of the Full Court’s reasons.  So, if that were to now be the basis for upholding the Full Court’s judgment, in our submission, that is a very important question that should go before a Full Court of the High Court and would need to be done on a notice of contention.  Now, your Honours ‑ ‑ ‑ 

BEECH‑JONES J:   Mr Nekvapil, if you have C3 there, could you just look at paragraph 46?

MR NEKVAPIL:   Yes, I will.

BEECH‑JONES J:   The third‑last line, where Lord Underhill says the various cases, including Rahmatullah:

cannot fairly be read as authority for a general proposition that in any case where A is being prima facie unlawfully detained by B habeas corpus will lie against C if there is reason to believe that C is for any reason able to procure A’s release.

Do you contest that statement?

MR NEKVAPIL:   Your Honour, we do not – we would accept that there is a strong argument Rahmatullah does not go that far.  But one of the reasons that we adopted, as sufficient albeit not necessary, a relationship on which to call is that the way we advance the factual case below went much further than the way Ms Kaufmann advanced the case in C3, because we did not simply rely on the AANES having made an offer, we relied on what was described as a relationship or mutuality between the parties such that the finding in terms of Lord Kerr’s test could be made on the basis of evidence and factual findings about a relationship.  We would say that ‑ ‑ ‑ 

BEECH‑JONES J:   Do you – I am sorry, continue.

MR NEKVAPIL:   Your Honours might have seen, if you read those extracts from the transcript, in Mwenya there was a discussion about, well, what if it is just using diplomatic channels to ask France?  Or Hicks’ Case might be another example of where it is a pure request.  But what we said is our case had a relationship such that the common law method from Barnardo, O’Brien and Rahmatullah could extend by analogy to our case.

BEECH‑JONES J:   Does this country not have a relationship with France, in the example you have just given?

MR NEKVAPIL:   Yes, it does, your Honour, but the point is that there needs to be a factual – the critical thing is it is a question of fact, and that is really central to Rahmatullah.  So, it is not going to be enough to just posit, well, the Court can take judicial notice that there is a relationship with the United States, therefore if Mr Hicks is requested, he will be given back.  But Justice Tamberlin said, I am not going to strike it out because it looks like there may be evidence about a bit more than that.  So, in each case it is going to depend on the facts of the relationship, arrangement, and so on.  What we ‑ ‑ ‑ 

BEECH‑JONES J:   So, in each case, is the relationship not only going to be of relevance to the extent it says something about the capacity of this country to control the release?  And in this case, did it not rise any higher than if Australia asked for them to come here, it is likely that would have been granted, but nothing else?

MR NEKVAPIL:   I find I agree with your Honour’s first proposition, but not the second.

BEECH‑JONES J:   I understand.

MR NEKVAPIL:   The reason for that is, if I could just outline very briefly the four findings that we say did hit the target.  Your Honours have, in Ms Markwell’s affidavit, our written submissions below.  You can see that we effectively hit each of the targets that we outlined by reference to the arrangement.

The first is a concession at paragraph 63 that there had been a repatriation arrangement in October 2022 with respect to “Cohort 1”.  The second is that the Australian Government had a plan to repatriate further women and children, and you can see that at 80, 89 and 114.  The third is that:

AANES will cooperate and facilitate –

And that is based on all the evidence, including what is set out in 93, and there are detailed findings in 93, and all the evidence in the case.  Then, fourth, that the further repatriation would be “relatively straightforward”, which is in 107, and that is in the context of paragraph 6, which is that AANES and its military, being the SDF, are non‑state actors which:

are reliant on support from the Coalition –

of which Australia is a member:

including to . . . ensure that SDF has control of detention facilities.

Those four findings are then drawn together in a sentence in paragraph 94:

if the Australian government were to continue with the plan that we have found on the evidence existed in late 2022, AANES would cooperate and facilitate the repatriation –

and then the second sentence of paragraph 100, to which I drew your Honours’ attention.  So, what we would say is that we did establish what can be described in a loose sense, which is all we intended, as an “arrangement”, being that there is a reasonable understanding or expectation – there are different words one could use – that, having done all this, when Mr Innes‑Brown noted the plan and AANES said, look, you will have to come again, there is a mutuality, relationship – whatever word you want to use – between the parties on which Australia can call such that the finding can be made in the terms of Lord Kerr’s paragraph 45.  We would submit that is very different from AANES just advertising an offer, which is the basis on which Ms Kaufmann advanced C3.

Your Honours, in terms of – the email from the Court asked about Australian law.  We would say Lord Kerr’s test should be followed in Australia absent a sound reason from the Constitution or a principle why it should not.  We would say that your Honour the Chief Justice’s reference to O’Brien and Rahmatullah in Plaintiff M68 with apparent acceptance at least provides a good support for those being recognised as stating the common law for Australia.

The drafters of the Constitution left development of habeas to the common law, although it does form part of the entrenched jurisdiction of the State Supreme Courts.  We would anticipate, based on the way it was run below, that the Commonwealth would contend that Lord Kerr’s test should not be applied as Australian law on the basis of an argument from Plaintiff M68.  A crude summary of that argument would be that your Honour the Chief Justice applied Lim to stable, non‑statutory executive capacity in respect of detention to the reach of the writ, and therefore, if the Executive were amenable to the writ, whenever able to secure production of an unlawfully‑detained body, they would lack non‑statutory executive capacity to not attempt to secure production.

Now, our primary argument on that is that if your Honour’s judgment were to be extended so as to staple the two together generally, and to constrain the reach of the writ in Australian law, that is a step that should only be taken by a Full Court of this Court on appeal with the benefit of full argument.  We would also note that your Honour used, in paragraphs 164 and 165 ‑ ‑ ‑ 

GAGELER CJ:   Complete your submission, Mr Nekvapil.

MR NEKVAPIL:   Thank you very much, your Honour.  Your Honour used classically prudential language for the purposes of the present case and for present purposes.  The Convention debates show that the drafters left express reference to habeas out of the Constitution, leaving the common law to develop, and an implication that would stultify its development would require serious argument and consideration.

Just finally, if I may, your Honours, that if the two are to be stapled, it is not abundantly clear that the effect would be to stultify the development of the writ rather than to extend the non‑statutory executive incapacity to have control over detention.

If the Court pleases.

GAGELER CJ:   Thank you, Mr Nekvapil.  Mr Lenehan.

MR LENEHAN:   Thank you, your Honours.  Your Honours will have seen that in writing we set out on Friday why we say ground 2A departs from the case below and some of the factual difficulties that lead to our submission that this is not a convenient vehicle to consider the issues that our friends seek to agitate.  I do not seek to say anything more than we have said in writing.  Can I move instead and spend most of my time on the point of principle as Mr Nekvapil has developed it today.

We say that ground 2A and the argument that is being put illustrate a point that your Honours are very familiar with.  That is, one does not treat the words in a judgment as if they are words in a statute.  You need to understand them in context, and in particular here in the context of the cases in which those principles have been applied.  So, when one comes to read Mr Nekvapil’s purple passage at paragraph 45, we say the notion of the:

reasonable prospect of being able to exert control over his –

the detainee’s:

custody or to secure his production to the court.

That can only ground the issue of the writ where there is some form of right, be it legal or de facto, to obtain custody.  As developed in exchanges with Mr Nekvapil, clearly in Rahmatullah, what was in issue was exactly that kind of right, and that is illustrated, including in the passage that your Honour the Chief Justice referred to, at paragraph 64, but you also see the nature of the right sprinkled through the reasons.  In paragraph 17, for example, Lord Kerr refers to it giving the United Kingdom government something in the nature of a power to “demand” the return of Mr Rahmatullah.  You see a similar idea at paragraph 112, in the reasons of Lord Reed.

EDELMAN J:   Mr Lenehan, is that a submission that one needs something equivalent to a contract or a treaty, that an arrangement or an understanding that fell short of a legal right would not suffice?

MR LENEHAN:   Your Honour, it is something of that kind.  If your Honour looks to – the core of our argument is really captured by what appears, if your Honours turn it up, in paragraph 43 of Rahmatullah.  So, very shortly before Mr Nekvapil’s passage on which he lays particular emphasis, the last part of that paragraph, referring to Sekgome, your Honours see that what his Honour has in mind is:

such control over the imprisonment that he could order the release of the prisoner”.

That is what we say, and the cases such as O’Brien make clear that that does not need to be something that is legally enforceable, but it does need to be that kind of power, we say.  That is how one understands the passage ‑ ‑ ‑ 

EDELMAN J:   I am afraid I just do not understand that submission.  You are saying that there needs to be a legal right, but not a legally enforceable right?

MR LENEHAN:   No, I am accepting, because I have to, your Honour, on the basis of the cases, that the right can be a right in fact as well as a form of contractual right, and so solemnly‑entered arrangements between countries such as existed in Rahmatullah, such as existed in O’Brien, those things have been said to support that kind of relationship where there exists a power to “demand” – again, using the language that one sees in Rahmatullah – the release of a person.

BEECH‑JONES J:   Mr Lenehan, do you mean not a right, but a practical power?

MR LENEHAN:   Yes.  Yes, I do.  And that, in fact, is really the explanation that Lord Kerr gives immediately after the passage that Mr Nekvapil relies upon in discussing the cases.  So, one sees, for example, O’Brien, discussed in paragraph 46, and what was involved there – see at the top of page 637 of the report – there were a number of undertakings given by the Irish Free State to the United Kingdom Government, and it was because those arrangements existed that:

provided grounds for believing that the Home Secretary could obtain the return of Mr O’Brien.

So, that involved the right, in the way that I have explained it, to obtain custody – even though it was not, the court held, a strictly legally enforceable right.  The same explanation, we say, applies to Barnardo, which his Lordship discusses on the previous page at paragraph 45, because the doubt – Barnardo is a remarkable case.  It was really a form of contempt case.  The doubt that the court had in that case was whether Dr Barnardo had in fact relinquished custody of the child.  Your Honours see that explanation by Lord Kerr in paragraph 45.  So, effectively, the doubt was, did he still have custody?  Did he, by his agent, have custody?  Again, insofar as agency is involved, there is obviously some kind of right, we say.

That is also how we explain the contrast in the cases that Lord Kerr goes on to discuss starting at about paragraph 55 and following, where habeas has not been granted.  So, those are what I will call the diplomatic persuasion cases like Mwenya, which your Honours see discussed at paragraph 55 to 57; Sankoh at 61 to 63.  In Sankoh, control was said to lie in the United Kingdom Government’s powers of diplomatic persuasion, and it was not sufficient.  In Mwenya it was somewhat different, in that it was said that the Minister had the capacity to try and persuade the common sovereign that the person should be released.  Again, that was not sufficient, and we say all of those elements in the authorities line up perfectly with what was said in C3, as your Honours have noted, the closest case to this fact situation.

GAGELER CJ:   Mr Lenehan, before you go to C3, perhaps can I just ask you some questions about the suitability in this case for considering an argument – along the lines of C3, perhaps not exactly as it was put for the plaintiffs or the applicants for the writ of habeas corpus in C3, but an argument that relies on a wider notion of control than simply an arrangement or understanding.  Is this a suitable vehicle to examine that?

MR LENEHAN:   Your Honour, in my submission, there must be considerable doubt about that, because of the point that Mr Nekvapil noted before.  Your Honours will find in the reasons of the Full Court at 102 some discussion of evidence from Ms Logan.  Ms Logan did, contrary to the submission that I think was advanced by Mr Nekvapil, give evidence regarding negotiations with third countries and also evidence regarding the difficulties that would confront the Australian Government in attempting another repatriation of this form.

I am not saying that there is some sort of irremediable prejudice, because we led the evidence, but you do not have the benefit of detailed factual findings on any of this for the simple reason that our friends’ entire case was put on this basis of an agreement involving some sort of mutuality.  So, if Mr Nekvapil is – I am sorry, your Honour.

GAGELER CJ:   I just want to ask a related question, then.  You would accept, I think, that if the applicant were unsuccessful in this application, the decision of the Full Court of the Federal Court creates no impediment to a fresh application for habeas corpus in which these issues of fact could be fully ventilated.

MR LENEHAN:   Your Honour, I would accept that, apart from anything else, because one knows that habeas is considering the lawfulness of detention at a particular point in time, and one can bring a subsequent application for habeas.  So, for both those reasons, yes.

EDELMAN J:   It is not a judgment in the sense of a final order.  For centuries, habeas has been able to be reagitated in presence of different facts and circumstances.

MR LENEHAN:   Yes, quite.  So, I do accept what has just been put to me.

BEECH‑JONES J:   Mr Lenehan, I have not got my map out, but just looking at those descriptions of repatriations that have previously occurred with Australia and other countries, do we know which border or borders people have to cross to either go in to collect them or to take them out?

MR LENEHAN:   Your Honour, I am told that we are venturing into areas in which there was a suppression order by ‑ ‑ ‑

BEECH‑JONES J:   I see, all right.  Could we say whether there are any borders of any country that need to be crossed?

MR LENEHAN:   We can say that there are borders of countries that need to be crossed, yes, your Honour.

BEECH‑JONES J:   I see.

MR LENEHAN:   In terms of C3, the passages that your Honours have seen we seek to place reliance upon are not the earlier passages that Mr Nekvapil sought to distinguish.  That is, the passages prior to paragraph 53.  It is 53 and following, where Lord Justice Underhill refers to what was involved as not being an unqualified right; it involved a conditional offer.  There is no doubt that in the current case the same thing was involved, and perhaps the most blindingly obvious condition was that Australian officials were required to travel to Syria, which involves expense on the part of the Commonwealth Executive ‑ ‑ ‑

EDELMAN J:   I am not sure, Mr Lenehan, that that can be a sufficient basis upon which to impose a limit on habeas corpus.  There will be many, many cases where the party against whom the writ is sought will have to do something and then will have to incur expenses in order to release the person and bring them before the court, that has never been held to be a conditionality that would defeat habeas corpus.  But I think your alternative point is that it is the conditionality perhaps of the intervention or consent by foreign countries.

MR LENEHAN:   Yes, your Honour.  I am sorry, I should have made that clear.  So, then when one gets to the passages in C3 that we place particular reliance on – that is, paragraphs 55 and 56 – those are the reasons of the court that we would place emphasis on for the purposes of this application.  It points to the fact that what is involved here is not what I have said is necessary – that is, some sort of de facto power – it was very much a conditional offer and depended upon those further things.  For that reason, we say this is on the wrong of the line of all of the cases that our friends are relying upon in terms of the course of English authority.

What one is left with is really an asserted ability in fact to obtain custody without any form of – I have been using the word “power” – power to obtain it.  We say this Court would be breaking entirely new ground, departing from that line of authority, were it to entertain the prospect that habeas can issue in those circumstances.

EDELMAN J:   The Court of Chancery has long had power to make sabre orders which do exactly that in relation to obtaining documents, but the one restriction, which I am not aware of ever applying to a sabre order, is the ability to make that order where it is conditional upon the consent of third parties.

MR LENEHAN:   Yes.  We would add to what I have said so far that not only would this be moving away from the court’s authority, it would be, we would say, a distortion of the writ of habeas because it is well‑established – back to Barnardo – that if there is no right to a person’s custody, the court does not use habeas to try and force a person, effectively, to obtain that custody, and we say that is really the effect of ground 2A.

There are, of course, other avenues for seeking to do that.  They were the sort of avenues that our friends pursued at first instance in their judicial review case, but then that case was abandoned on appeal.  Barnardo, we say, makes clear that the proper avenue to try and force the respondent to take steps to obtain custody would be that kind of remedy.  That is, some sort of injunctive release, mandamus, or perhaps even contempt.

We draw attention to what your Honour the Chief Justice said in Plaintiff M68 at paragraph 165, where your Honour drew attention to some “very old law” from Darnel’s Case, and that case explained that by contrast to those sort of judicial review remedies, a return to a writ of habeas requires a statement of the facts and grounds of detention to determine whether the respondent has the detainee in their custody or control, and if so, whether that detention is legal or illegal.  We say nothing in the explanation of the purpose of the return or the purpose of the writ contemplates the respondent taking steps to effectively alter the factual situation, for example, by seeking to obtain custody or power over custody.  That is not the purpose of the writ.

Now, it is true that in Rahmatullah and O’Brien the respondent evidently did take steps to attempt to procure custody.  Can I explain briefly how your Honours would understand that.  In Rahmatullah, the Secretary made the request to the United States – secretaries, rather, there were two – to show that they did not have control despite the apparent agreement providing unconditionally for Mr Rahmatullah’s return.  So, you see the explanation in paragraph 60 of Lord Kerr’s reasons.

His Lordship is there responding to a suggestion by Mr Eadie that there was some sort of interference with foreign relations.  His Honour does not accept that, and he says the reason is that the Court of Appeal’s order went no further than requiring a return to the writ.  If your Honours turn up paragraph 60 of that decision, the last two sentences:

The Court of Appeal’s judgment did not require the Secretaries of State to act in any particular way in order to demonstrate whether they could or could not exert control.  What it required of them was that they show, by whatever efficacious means they could, whether or not control existed in fact.

Now, it is true – see earlier in the paragraph – that his Lordship was of the view that perhaps there would be no other way of demonstrating that the request would not be efficacious, but it remained a matter for the Ministers.  Similarly, in O’Brien, the Secretary may have had to make a request of the Irish Free State to show that the apparent right to obtain custody was not in fact efficacious, if that was, in fact, what the Secretary sought to do.

But the point is that in both cases, there was this ostensible or prima facie arrangement that gave the respondent some sort of – I am calling it “right” – or power to the custody of the detainee, and that is what justified the writ in the first place.  The fact that the respondents had to, as a practical

matter on the return, take some form of step, does not indicate that the case that our friends put on ground 2A is a good one, because both of these of cases are examples where the putative detainer has something which looked like a right or a power over custody.  None of that, we say, justifies the further radical step that that we say Mr Nekvapil is seeking to take.

Can I perhaps conclude by summarising why we say, in principle, ground 2A does not have sufficient prospects of success and why leave should be refused on that basis.  The first point is the case that is effectively put under cover of ground 2A has never been the position under general law.  It would require ‑ ‑ ‑

EDELMAN J:   Mr Lenehan, you have made that submission a few times, but the law today is demonstrably not the same as it was in 1066.  If that submission were right, the law would never change.

MR LENEHAN:   Your Honour, I can accept that, but what is involved here is a development into the kind of territory that, from Barnado onwards, has been said to fall beyond the writ.  That is, issuing a writ to a person who did not have the right to custody in order for them to obtain it, and we say that would not be countenanced.

Those are the submissions that we make, your Honours.

GAGELER CJ:   Thank you, Mr Lenehan.  Mr Nekvapil, do you have a reply?

MR NEKVAPIL:   Yes, your Honour.  Your Honours, the great strength of the writ, as Lord Kerr observed, is its adaptability.  We ask for special leave so that a Full Court of the High Court can consider whether, applying the common law method, it would be appropriate to develop the writ to apply to the circumstances of this case.  It is a suitable vehicle.  It would appear to be the first occasion to consider it since Hicks, which, of course, went no further than a strike‑out.  We would say that it is appropriate for this Court to consider the kinds of arguments that have been foreshadowed here on a full appeal.

As to legal right, in effect, even though it is not the way the Full Court expressed its reasons, that is why we lost.  The Full Court imposed a requirement for an “arrangement” connoting some form of strict obligation, which it said we did not mean.  But it is unclear, once one moves away from a legal obligation, what that concept would mean and how it corresponds to the function of the writ.

The distinction between a solemn arrangement and an understanding does not, in our submission, relevantly correspond in a non‑arbitrary way to the function of the writ.  Below and here, we would refer your Honours to the submission in Rahmatullah page 622, point C, which was made by Ms Lieven:

The line between persuasion and sufficient control is not a stark one and much depends on the precise facts.

We would make the same submission here.  It is not useful or, we would say, appropriate to try and draw bright lines by reference to a matter such as like an agreement, power or order.

In terms of C3 and the submissions made on that, without delving into the evidence or factual findings, the simple point is that, as high as the evidence that our learned friend referred to at paragraph 102 went, it was effectively rejected by the Full Court from paragraphs 102 and concluding at 107, that:

it would be a relatively straightforward exercise.

So that, without delving into the evidence, whatever it may have revealed, the Full Court was not satisfied that there was any relevant barrier or conditionality, and because of the way C3 was conducted, that just simply was not an issue explored in C3.

GAGELER CJ:   But a difficulty with your reliance on the Full Court is, as the Full Court understood the way you put your argument in this case, it was also not an issue really before the Full Court.

MR NEKVAPIL:   The way we would understand the reason that we lost was not because of conditionality but because we did not establish an arrangement entailing a high degree of obligation.  That was not the way we put the case.  We did contend for an arrangement, but our arrangement should have been satisfied, unless the legal test was stricter, by the finding that as at October 2022 you had a successful example of the parties cooperating, you had a plan identified by Australia and discussed with the AANES, you had all of the evidence, including the context, giving rise to a finding that it will be successful.

One might ask, why would Australia in those circumstances ask for a treaty, or something, in circumstances where there is such a clear understanding as to what could happen again?  So, it did not become an issue because it was not raised, or to the extent it was raised, it was rejected in 107, but the reason we lost is because of a constraint on the kind of arrangement we had to show, which is not something we conceded in fact or that we conceded as a matter of the legal test.  We have tried to

demonstrate that with some pages of transcript we have given your Honours.

Just in terms of there needing to be further steps to comply with the writ, that does shade into the forbidden area submission which was rejected in Rahmatullah, though in a sense accepted in C3, and we would say that is an inconsistency this Court should look at.  The test as applied in Rahmatullah is just whether there are reasonable grounds for thinking that there will be ability to return as a question of fact, and on the return, of course, the party might say, like the United Kingdom Secretaries did in Rahmatullah, the logistics have defeated us.

If the Court pleases.

GAGELER CJ:   Thank you, Mr Nekvapil.  The Court will retire momentarily to consider the course it will take.

AT 10.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.59 AM:

GAGELER CJ:   This is a matter of undoubted public importance.  There is no dispute between the parties that the Australian citizens, in respect of whom the applicant seeks habeas corpus, are detained in refugee camps in Syria, either by the Autonomous Administration of North and East Syria, the “AANES” – a non‑state actor – or by its military wing, the Syrian Defence Force.  The issue between the applicant, a registered charity, and the respondents, the Minister for Home Affairs and the Commonwealth, is whether the respondents are shown, to the applicable standard of proof, to have control over the detention of those citizens such as to warrant the Federal Court of Australia issuing a writ in a form which would command the respondents, on its return, to produce those citizens to that court and to establish lawful justification for their detention, or to provide lawful excuse for failing to do so.  There is a difference between the parties as to what needs to be shown for the existence of the requisite control.

Before the primary judge and before the Full Court of the Federal Court, the applicant put its case for control on the basis of an agreement or arrangement between Australia and the AANES providing for the release or repatriation of Australian citizens on request by the Australian Government.  The primary judge found it “clear” that no agreement or arrangement is in place.  The Full Court upheld that finding.  We are not persuaded that there is sufficient reason to doubt the correctness of those concurrent findings of fact to justify the grant of special leave to appeal on either of the first two grounds set out in the Amended Application for Special Leave to Appeal.

By the third of the grounds set out in the Amended Application for Special Leave to Appeal, the applicant would seek to argue that it is sufficient to show that the respondent has the requisite control over the detention, that the evidence establishes there to be a reasonable prospect of the Australian Government being able to secure the production of the citizens before the Federal Court.  This ground was not raised in the same terms before the primary judge or the Full Court.  There is a dispute between the parties about the extent to which this ground was raised at all.

What is clear, however, is that some of the factual bases for that argument were not raised below, and the argument was not addressed by the primary judge or the Full Court.  The respondents point out a similar argument to what is put in this application was put to and rejected by the Court of Appeal of England and Wales in C3 v Secretary of State for Foreign, Commonwealth and Development Affairs [2023] KB 577, a decision from which the Supreme Court of the United Kingdom refused permission to appeal.

One reason given by the Court of Appeal for rejecting the argument was the qualified and conditional nature of the offer by the AANES to release the persons who were the subject of the application, and the evidence that those obligations and conditions required the consent of the parties.  Such factual matters were not explored by the primary judge or the Full Court in the present case.  We refrain from commenting on the merits of the proposed argument.

What is important in considering the appropriateness of granting special leave to appeal to raise it as this stage is it would be contrary to the established practice of this Court to embark on a consideration of the merits of such a novel and consequential argument, unless satisfied that there was a firm factual basis for considering that the resolution of the argument would be likely to be determinative of rights that are in dispute.  We are not so satisfied.  No finding of the primary judge or the Full Court is squarely in point.  Moreover, the evidence adduced before the primary judge was not sufficiently directed to founding or meeting such an argument.

The respondents acknowledge that the decision of the Full Court does not preclude the applicant filing a fresh application for habeas corpus in the Federal Court, in which facts relevant to the argument now sought to be put could be properly addressed in evidence.  Now to refuse special leave to raise the argument in an appeal from the decision of the Full Court to this Court is therefore not to foreclose the possibility of the argument being raised again by the applicant, were it to be so advised.

The Amended Application for Special Leave to Appeal is refused.  Noting that no order for costs was made by the primary judge or by the Full Court, we consider it an appropriate exercise of discretion that there similarly be no order for costs in this Court.  The parties are to bear their own costs of the Amended Application.  The Court will now adjourn.

AT 11.05 AM THE MATTER WAS CONCLUDED