Shah & Ors v Minister for Immigration and Citizenship & Anor

[2011] HCATrans 196

[2011] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M70 of 2011

B e t w e e n -

SAYED-NAVAB SHAH AND OTHER PLAINTIFFS AS LISTED IN THE SCHEDULE

Plaintiffs

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Application for an order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON MONDAY, 8 AUGUST 2011, AT 2.16 PM

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC:   If the Court pleases, I appear with my learned friends, MS K.L. WALKER and MS E.A. BENNETT, on behalf of the plaintiffs.  (instructed by Allens Arthur Robinson)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear with MR G.R. KENNETT, SC for the defendants.  (instructed by Australian Government Solicitor)

MR C.J. HORAN:   If the Court pleases, I appear for the Australian Human Rights Commission which is considering whether to seek leave to intervene in these proceedings in accordance with the function conferred by section 11(1)(o) of the Australian Human Rights Commission Act.  At this point the commission has been unable to take a formal decision to seek leave to intervene largely because the president is travelling in the Northern Territory and is due to return on Wednesday, but apart from indicating that intention, I do not seek to be heard on the interlocutory issues, if the Court pleases.

HIS HONOUR:   Thank you.  Ms Mortimer.

MS MORTIMER:   If your Honour pleases.  Your Honour, this is an application for urgent interlocutory relief in support of a proposed injunction to restrain the removal of 16 individuals which we understand, taking into account the interim orders that your Honour made last night, will be scheduled for some time after 4.15 pm today.  Your Honour, we move on the application dated 8 August 2011 and a summons also dated 8 August 2011. 

The relief which we focus on today, your Honour, and in light of your Honour’s reasons yesterday, is the interlocutory injunction restraining the removal of these 16 plaintiffs.  Your Honour, in support of this application I seek leave to read three affidavits.  The first is the affidavit of Simon Jackson dated 7 August 2011.  The second is the affidavit of David Manne dated 7 August 2011 and the third is the affidavit of Rebecca Kelton dated 8 August 2011.

HIS HONOUR:   Yes.  I will hear first from the Solicitor.  Mr Solicitor, is there any objection to my receiving that evidence?

MR GAGELER:   No, your Honour.

HIS HONOUR:   Very well.  I have read those affidavits.  I am generally familiar with their content.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Mr Solicitor?

MR GAGELER:   Your Honour, I had expected to have to hand an affidavit of our own. Can I say that the content of that affidavit may affect the way in which the plaintiffs wish to put the case. The affidavit would, relevantly, do two things. It would demonstrate that the Minister in making the declaration under section 198A(3) in fact formed a state of satisfaction as to the criteria set out in that section and in doing so took into account not only the agreement with Malaysia but also more wide‑ranging advice of the Department of Foreign Affairs and Trade and the results of consultation with the United Nations High Commission on Refugees.

Secondly, the affidavit would demonstrate that in making decisions to remove the 16 individuals to Malaysia, consideration was given on a case by case basis to their particular circumstances and an assessment was made in respect of such claims as were made by some of them to fear persecution in that country.  That affidavit, because in part it is dealing with the circumstances of those 16 individuals, your Honour, has perhaps taken slightly longer to prepare than expected, but it should be here this afternoon, and I think very soon.

HIS HONOUR:   But beyond that you cannot be more precise as to when?

MR GAGELER:   No, your Honour.

HIS HONOUR:   Yes, Ms Mortimer?

MS MORTIMER:   Your Honour, we seek to address in oral argument the reasons why we submit there is a sufficient serious question for the minimum interlocutory relief to go in respect of those 16 individuals.  We do not understand, your Honour, and our submissions proceed on the basis that the factual situation has not changed since yesterday.  Your Honour, we also proceed on the basis of your Honour’s reasons for interim relief as of yesterday in two principal respects.

HIS HONOUR:   Just as to that, I should interrupt you and say that although arrangements were made for transcript of last night’s proceedings and transcript of the reasons, I regret to say that that transcript is not yet available.  I am sorry that that should be so, but it is the fact.

MS MORTIMER:   Your Honour, we accept it is highly understandable in the circumstances; everybody is pressed.  Your Honour, the two key matters on which we proceed arising out of the reasons last night are these.  Firstly, there is a recognition that without an injunction the subject matter and utility of the proceeding is destroyed by the act of removal.  Secondly, that while we understand the Commonwealth may be submitting that there are financial costs associated with the grant of an injunction, in a Tait‑like situation, which also involves questions of liberty and the use of force, the presence of financial cost to the Commonwealth is not a significant reason for your Honour to refuse relief if your Honour is otherwise satisfied of a serious question.

Your Honour, the focus of our submissions will be on two arguments arising out of the terms of section 198A, an argument around 198A(3) and an argument around 198A(1).  I otherwise do not propose to say anything more about the application than I said yesterday on the other grounds.  The way I propose to proceed, your Honour, is to develop the arguments by reference to the allegations as they are set out in the application as filed.  I regret, your Honour, we have not had time to do a written outline.  Before I turn to those, your Honour, may I start with this proposition. 

As your Honour also observed yesterday and this Court has observed many times, that the structure, content and purpose of the Migration Act is designed to ensure that Australia implements and complies with its obligations under the Refugee Convention.  This is done, on our submission, on the current structure of the Act in three ways.  Firstly, it is done through the processing of a valid visa application onshore.  Secondly, it is done through the processing through a system established in pursuance of the Minister’s powers under section 46A and section 195A which is designed to allow the Minister to consider whether to exercise those powers.  That was, obviously, your Honour, the subject matter of the decision in M61. 

Thirdly, and as a corollary, we submit, to the second method, the structure and content of the Act is designed to ensure Australia complies with its protection obligations by permitting the processing of claims in a third country subject to statutory safeguards which we submit are the purpose of, firstly, the discretion in section 198A(1) and, secondly, the criteria in section 198A(3). We submit, your Honour, that the construction of section 198A should be approached from this perspective. This provision is not a second tier or class of processing method to the onshore method.

The criteria that one finds expressed in subsection (3) are, in our submission, descriptive of the standards which exist in Australia’s legal system and since, in our submission, 198A is all about ensuring that Australia complies with its own obligations under the Convention, we submit it is unsurprising that the Parliament has required a declaration that any third country, in effect and in practice, meet the same standards that are available to persons seeking Australia’s protection if they are processed onshore.  So we start, your Honour, from that premise, that there is no downgraded kind of processing system contemplated by section 198A. 

Now, if I might turn, your Honour, to develop the argument by reference to the application and may I start at paragraph 25 where we set out the entering into of the arrangement with the Government of Malaysia.

HIS HONOUR:   Before you undertake that task, first, I have, of course, read the application but it is plain that the purpose of the proceeding today is not a purpose of trying the issue.  The purpose of the proceeding today is to determine whether there is a sufficiently serious question to be determined to warrant injunction going.  Is that right?

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   What then do you say is the serious question to be tried, or the question to be tried, about construction of 198A? 

MS MORTIMER:   There are several, your Honour, and they do not only concern construction.  The first triable issue is whether the declaration is a legislative instrument and whether it is in force.  If it is not in force, it is not enforceable and it cannot authorise any action under 198A(1).  That is the first triable issue.  The second triable issue is, what is the proper construction of section 198A(3)(i) to (iv)?  That is, what do those words require in terms of the questions that are to be asked?

The third triable issue is whether those matters are jurisdictional facts and therefore, according to the construction that has been applied to them, whether the jurisdiction to make the declaration has arisen.  The fourth triable issue and alternatively to that third one is, is there an alternative construction of subsection (3) which essentially makes the task of the Minister one of forming a state of satisfaction about those matters before the jurisdiction to make the declaration is properly engaged?  As a subset of that, your Honour, based on what was said yesterday on behalf of the Commonwealth, if such a state of satisfaction is formed, is it reviewable by this Court?

HIS HONOUR:   You have referred to the proper construction of 198A(3).

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   In relevant respects, what is the construction that you urge?

MS MORTIMER:   What we have set out in paragraph 33 of the application, your Honour.

HIS HONOUR:  That is to say, and correct me if I am wrong, I had read paragraph 33 as tendering the question whether on its proper construction 198A of the Migration Act permitted declaration of a country only if the country in question is bound either, as a matter of international obligation or as a matter of domestic law or both as a matter of international obligation and domestic law, so you have the two elements in play separately or cumulatively, the relevant obligations being to provide the access and protections referred to in 198A(3)(i) to (iv), is that right?

MS MORTIMER:   Yes, your Honour.  Our submission is that it must be both because ‑ ‑ ‑

HIS HONOUR:   I understand that that is your submission, but the question which you tender is whether on its true construction 198A(3) permits declaration only if what I will call the receiving country is bound, either internationally or domestically, or both internationally and domestically, to afford the access and protection, or access and protections, described in those subparagraphs, is that right?

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   Now, as things presently stand, would there then be a question – which I suspect ought not to be a matter of controversy – about what international instruments Malaysia is party to or bound by that bear upon these issues?

MS MORTIMER:   Yes, your Honour, and that is the reason that we have attempted to articulate that in paragraph 35 and have exhibited the affidavit of the Malaysian expert to Ms Kelton’s affidavit to at least provide at this very preliminary stage some evidentiary foundation for those propositions.

HIS HONOUR:   Now, as to that second matter, would it be relevant to the question I have thus far identified to identify what relevant domestic law of Malaysia binds Malaysia to provide the access and protections referred to in 198A(3)(a)(i) to (iv)?

MS MORTIMER:  It would, your Honour.  At the moment the ‑ ‑ ‑

HIS HONOUR:   Would the inquiry stop at that point?  That is to say, on this branch of the argument, would the inquiry stop at that point rather than going on to an inquiry into what has occurred or not occurred or might have occurred in another country in connection with the treatment of persons other than those who are presently plaintiff?

MS MORTIMER: Subject, your Honour, to what we say in paragraph 33.4, that is, the language that is used in subsection (3), in our submission, is redolent of at least some kind of factual inquiry, but not a great deal.

HIS HONOUR:   Well, a possible point of view, Ms Mortimer, is that those factual questions are questions for the Minister, but that the questions of construction are questions purely for this Court.

MS MORTIMER:   I accept, your Honour, that that is a question.

HIS HONOUR:   If we were, contrary to that possible point of view, somehow to be required to embark upon some inquiry into what was happening on the ground in Malaysia, would that not of itself be a reason to prefer a construction that invited attention to the existence of legal obligation of the kind previously identified rather than any factual inquiry in the courts of this country about compliance with those obligations in a foreign state?

MS MORTIMER:   Your Honour, in my submission, it might be but not necessarily, and the critical question ‑ ‑ ‑

HIS HONOUR:   All things are possible under the heaven and sun, Ms Mortimer, but would that not point, perhaps you would say waveringly, towards the legal construction?  Let me tell you where I am going, Ms Mortimer.  I want to identify whether there is a question that is a serious question to be tried.  I want to identify whether, if there is a serious question to be tried, it is to be tried by a Full Court of this Court or has to go off for some trial of factual issues.  At least initially I was struck, perhaps quite wrongly, by reading your documents that there emerged at least a question of construction that, subject to what the defendants will presently tell me, is a question that might be suitable for consideration by the Full Court.

MS MORTIMER:   Your Honour, we clearly submit that there is such a question of construction.  The issue of how far beyond the identification of legal obligations the language in subsection (3) goes is a difficult one, your Honour, in the sense that ‑ ‑ ‑

HIS HONOUR:   Is it not your case that there is no relevant international or domestic legal obligation in Malaysia?

MS MORTIMER:   Yes, your Honour, that is so. 

HIS HONOUR:   So questions of compliance with legal obligation or, as you or others may perhaps have wanted to say, non‑compliance with the legal obligation do not arise.  Your case, I understand it to be, there is no relevant legal obligation whether internationally or domestically.

MS MORTIMER:   That is so, your Honour.  The existence of domestic obligations would at least require some expert evidence or agreed facts.  But we would anticipate that if it is limited to the existence of what the domestic law in Malaysia is, that should be a matter on which facts can be agreed.

HIS HONOUR:   Exactly so.

MS MORTIMER:   So, your Honour, to that extent, I am hesitant, your Honour, to abandon or proceed only on that, but the reason I say that, your Honour, is because ‑ ‑ ‑

HIS HONOUR:   It is no part of counsel’s job to give away points, I understand that, Ms Mortimer.  Counsel are paid, or in this case I suspect not paid, to have the belt, the braces and the piece of string around the trousers as well, I understand all of that, but we need to understand what the serious question is to be tried.

MS MORTIMER:   Your Honour, we would, of course, at a full hearing of this want to rely heavily on the parallel kinds of analyses that have been undertaken in relation to the Extradition Act and the examination, particularly under section 7 of the Extradition Act, of questions that go as a matter of fact into the way that the legal system of a foreign state functions.  Your Honours, the Court considered this recently in Snedden.  So to that extent, your Honour, we submit that as a matter of construction, it is not a foreign concept to the legislation of this Parliament to require a court to inquire into those matters.  But we accept that there is an easier path and the easier path which, in our submission, sits comfortably with the language which is not the language of satisfaction, is that the inquiry is in to whether as a matter of both international obligation and domestic obligation that state of affairs exists in the country to be declared.

HIS HONOUR:   If that question that we have thus far identified is a question that emerges in connection with this matter, would there not also be a related question about the extent of the power to remove given by section 198, in particular?  Would it not be a necessary step in your argument to demonstrate that on its proper construction 198 of the Act gives a power to remove that is limited?  Relevantly, it would be limited to removal after the assessment of any claim for protection coupled with a determination that that claim is not made out or power to remove for assessment in another country validly declared under 198A. 

I would understand that on your side of the record, subject to what the Commonwealth later seeks to put on in the way of material, you would say there is a still further limitation that the power to remove cannot be exercised – see paragraphs 41 to 46 of your application – to remove a person to a country in which that person would have a welfare under the fear of persecution for a Convention reason.  Is that part of the case?

MS MORTIMER:   It is, your Honour, in the sense that there is a question whether the source of the power is 198 limited by 198A or whether 198A is itself the source of the power.  That is inherent in what your Honour has put to me.

HIS HONOUR:   Yes, just so.  There are, no doubt, alternative views which would be proffered about the competing constructions of the Act, I understand that, but from your side of the record, is it a necessary step for you to take to demonstrate that there is a limit of the kind I have identified in respect of 198 or is that simply an additional question that is not a necessary step?

MS MORTIMER:   It is an alternative step, your Honour, because we contend that on the language, and particularly taking into account the difference in the language of “remove” in 198 and “take” in 198A, 198A may itself be an independent source of power rather than a limit on 198.  That argument is, in our submission, available and arguable and we presently are content for this matter to be considered on the basis that they are competing constructions, that it is an unresolved matter whether 198 is the sole source of the power to take a person out of this country and whether 198A is a limit on that power or whether there are two sources of a power to take a person out of this country.  That, your Honour, is one the matters that we say squarely arises in this proceeding.

HIS HONOUR:   What other serious questions do you say arise, if any, that would warrant intervention?

MS MORTIMER:   Your Honour, I have adverted to the Legislative Instruments Act argument.  The other one that is prominent in our application is the one which begins at paragraph 41, that is the arguments surrounding the nature of the power in section 198A(1).  As it was put yesterday on behalf of the Commonwealth, we understood the Commonwealth to be submitting that “may” should be read as “must” which is, in our submission, a large proposition in the context of this legislation and one which in itself would raise a serious question. 

If taking our approach to the construction, what subsection (1) does is to confer a discretionary power, then we submit there are serious questions about how it is conditioned and we submit it is conditioned by procedural fairness and it is conditioned by a requirement to consider the individual circumstances of the person.  If that is the case and it is conditioned by those things, in our submission, it is reviewable by this Court.  So that whatever my learned friend, your Honour, might have in his affidavit about what the Minister did nor did not do, what the Minister did or did not do is reviewable and if these people are removed, they cannot review it. 

Your Honour, the other matter that arises alternatively by way of serious question is really what we proffer as a different and not our preferred construction of 198A(3) that it is dealing with satisfaction but it must be, in our submission, one or the other.

HIS HONOUR:   Whether or not it deals with satisfaction, the base question remains satisfaction of what, and that is a question of construction.

MS MORTIMER:   Yes, it is, your Honour, we accept that.

HIS HONOUR:   All roads seem to lead to that particular Rome.

MS MORTIMER:   They do, your Honour.  Your Honour, I can develop why we say they are jurisdictional facts in more detail but, in summary, those are the questions that we say arise.

HIS HONOUR:   Now, that would leave as at least distinct issues raised by the application but not in respect of the interlocutory application the question of removal of unaccompanied minors, this question about access to legal advice and failure to include in the offshore processing regime, as well also as these questions about giving procedural fairness before powers to detain or exercise, is that right?

MS MORTIMER:   It would, your Honour, it would.

HIS HONOUR:   Yes.

MS MORTIMER:   Your Honour, I cannot put on the factual situation, as we understand it, that the matters in relation to unaccompanied minors need to be considered or determined by your Honour today because, as we understand it, there is no threat of removing any.

HIS HONOUR:   But if it remains a question, if this matter were to go to a Full Court, it may be that it should go to a Full Court on a basis that included that question, because if it goes to a Full Court, it may have to go to a Full Court by reference of some or all of the initiating application for hearing before the Full Court.

MS MORTIMER:   We accept that, your Honour, and our submission is it is desirable in the sense of finality for all parties and all persons affected that all matters are considered once and once only.

HIS HONOUR:   I should say to both sides that if at the end of this the question were to be whether the matter would be referred to a Full Court, the parties should order their affairs on the assumption that if needs be a special sitting of the Court would be held most likely in the week commencing Monday, 22 August 2011.

MS MORTIMER:   If your Honour pleases.  Your Honour, unless there is anything else you wish me to develop, in my submission ‑ ‑ ‑

HIS HONOUR:   Thank you.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Mr Solicitor.

MR GAGELER: Your Honour, at the end of our learned friend’s argument we understand it to be said that there are three questions that rise to the level of a sufficiently arguable point to justify the interlocutory relief that is sought. There is one question, or perhaps two, about the construction of section 198A(3), those questions being whether it requires or imposes some element of jurisdictional fact, either for the determination of a court or for the determination of the Minister, and whether on its proper construction it is limited to examination of international law and domestic law applicable to or in the specified country. I will turn to those in a moment.

Another question said to be raised is a question of the construction of section 198A(1) and the point that is put for the plaintiffs is that section 198A(1) confers a discretion.  There is no dispute between us about that.  It confers a discretion.  The affidavit which will be here will show that the discretion was exercised on an individual basis.

HIS HONOUR:   Before you proceed further, how long is this affidavit going to take, Mr Solicitor?  It is unsatisfactory that the matter proceed in this half‑baked fashion.

MR GAGELER:   Within the next 20 minutes, your Honour. 

HIS HONOUR:   If you are going to address argument on the footing of material that has not been heard or dealt with, what am I to do?

MR GAGELER:   Your Honour has my assurance that the material will be before the Court this afternoon.

HIS HONOUR:   When is the other party to have notice of its content and an opportunity to consider it and consider the course they should take in response to it?

MR GAGELER:   Your Honour, we are responding to an urgent interlocutory injunction and we are ‑ ‑ ‑

HIS HONOUR:   I understand that, Mr Solicitor, and you have the whole of the resources of the Commonwealth behind you.

MR GAGELER:   They will be immediately behind me in the next 20 minutes, your Honour.  I cannot do anything more than that.  That was not said in jest, your Honour.

HIS HONOUR:   No, it was not and it was not to be taken as such at all.

MR GAGELER:   Your Honour, on that point of construction, there is no difference between us as a matter of construction, nor is there any difference between us as to the consequences which would flow from that construction, that is, judicial review on an individual case by case basis.  The point is that there is, on the material before your Honour now, nothing to demonstrate error in the application of section 198A(1).  The third question is a question of the interrelationship between section ‑ ‑ ‑

HIS HONOUR:   One moment, before you part from that point, you say no error in fact in the exercise of the discretion under 198A(1).  That is a proposition, is it, which must depend upon the proper construction of 198A in the sense of whether 198 and/or 198A, alone or together, permit removal without assessment, is it? 

MR GAGELER:   No.

HIS HONOUR:   No.  Section 198A would permit removal for assessment.

MR GAGELER:   For assessment in the specified country, yes.

HIS HONOUR:   Yes, go on.

MR GAGELER:   The simple point, your Honour, being, if there is a discretion, and we accept that there is a discretion, there is nothing before your Honour to demonstrate error in the exercise of that discretion.  The third point which I will come to is the question of the relationship between section 198A on the one hand and section 198(2) on the other.  That third question, of course, is only breached if there is, first, an arguable case for error in respect of section 198A either subsection (1) or subsection (3).  I have dealt with section 198A(1). 

Can I go back to the two points about section 198A(3). Your Honour, the point of jurisdictional fact was a point which was assessed by his Honour the present Chief Justice in an interlocutory application. Your Honour is aware of it.

HIS HONOUR:   I was taken to it last night, yes.  [S] litigation, though not under that name, I think.

MR GAGELER:   It was designated P1/2003 at paragraph 49, which your Honour has seen.  His Honour regarded the argument of there being some jurisdictional fact or jurisdictional precondition in the nature of satisfaction as not rising to the threshold that is required for an interlocutory injunction and we rely on his Honour’s reasoning.

HIS HONOUR:   Is that, to adopt a reading of 198A(3), that would leave the Minister at large in determining the questions apparently presented by paragraphs (i) to(iv)?

MR GAGELER:   No, not at all.  The only jurisdictional addition that is read into the provision is that the Minister act bona fide or in good faith but the Minister ‑ ‑ ‑

HIS HONOUR:   Not even reasonably?  That, I think, was Liversidge v Anderson, is it not?

MR GAGELER:   The Minister would be required, your Honour to understand and correctly apply the criteria, error of law, clearly would vitiate a decision of the Minister but there is no element of a jurisdictional fact in the sense of reasonable satisfaction that is required of the Minister under that provision, contrast, for example, the language used elsewhere in the Act of which your Honour is familiar.  Where the Act requires satisfaction, it says satisfaction.  That construction that struck his Honour the Chief Justice as clear, your Honour, really flows from the nature of the power being vested in the Minister.

The object of the power, that is, the specified country the Minister is required to evaluate, to some extent, circumstances in another country, and it is consistent with the purpose of the provision as identified in the second reading speech which your Honour will no doubt have seen in the past, it was said in that second reading speech by the then Minister for Immigration, this Bill, dealing specifically with section 198A, provides strength and powers to deal with people who arrive unlawfully at one of the territories beyond the migration zone.  These include powers to move the person to another country where their claims, if any, for refugee status may be dealt with.

Your Honour, in relation to the point of construction we say this, that to read the criteria in section 198A(3)(a) as confined to what is provided or required by international law or by domestic law is a construction not required by the language.  It is a construction which, in our submission, is indeed inconsistent with the language.  The language naturally is read as looking to what the country does or perhaps is likely to do during the life of the declaration, not what is required as a matter of law within the country or as a matter of international law and the reality is, your Honour, that they may be two quite different things. 

It would not be consistent – and this is our third point – it would not be consistent with the purpose of section 198A which is really to allow the Minister to designate a safe third country, for the Minister to be confined to looking only to the legal regime applicable in and to that country.  There are many countries that have pristine laws that are not necessarily applied in practice.

HIS HONOUR:   But is it necessary to look at all to the legal regime, be it international obligation or domestic obligation?  I understand why you say that looking at the letter of the law may not suffice, but is it necessary to look at whether, when this Act speaks of “provides protection”, it is referring to protection that is obliged to be provided as distinct from protection which either in the past has been or by some exercise in prognostication is assumed may be, will be, probably will be, possibly will be in the future.

MR GAGELER:  It is looking at what occurs in practice and it is not a matter of prognostication, it is a matter of the taking into account the available information, which will include the applicable international and domestic legal standards. That is not ruled out, your Honour. The point is simply that it is not only not required by the language but inconsistent with the purpose of section 198A(3) to confine those criteria to questions of international and domestic law. That is the point.

HIS HONOUR:   The question is provoked because the arrangement which has been struck with Malaysia is expressly said not to be legally binding but to be a record of the participants’ intentions and political commitments, is that right?  See clause 16 of the arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement.

MR GAGELER:   That is correct.

HIS HONOUR:   What inference, if any, may be drawn from the fact that this intergovernmental arrangement contains that clause?

MR GAGELER:   No inference adverse to the judgment made by the Minister that the political assurances contained in that arrangement read against the background of the assessment made by the UNHCR and the Department of Foreign Affairs and Trade was sufficient to give a level of satisfaction that the criteria set out in section 198A(3)(a) would be likely to be met in practice.  There is simply no doubt, your Honour, simply no doubt.

HIS HONOUR:   So you say sufficient that it would be likely to be provided in practice?  Do I understand the proposition right or have I misheard it or misunderstood it?

MR GAGELER:   No, your Honour heard it correctly.

HIS HONOUR:   So when the Act speaks of “provides protection”, “provides access”, that is speaking of something that is likely to occur, is it?

MR GAGELER: Your Honour, clearly enough a declaration under section 198A(3) is a declaration that will remain in force until revoked. It is not a one‑off moment in time.

HIS HONOUR:   I understand that.

MR GAGELER:   In speaking in the present tense, it is clearly speaking continuously in the present tense during the life of the declaration.  So when the Minister makes the declaration, the Minister is necessarily looking prospectively, not just at a moment in time and not simply historically.  I am being repetitive, your Honour, but to confine the criteria to legal constraints is really to undermine its purpose.

HIS HONOUR:   I understand the argument about confining, but must it include, that is the debate.

MR GAGELER: To encompass the existence or non‑existence of legal constraints within the scope of permissible considerations that would inform the satisfaction or not of the criteria is something we readily accept. That is to say, it is open and proper for the Minister to consider the existence or non‑existence of legal constraints internationally and nationally in the exercise of the power conferred by section 198A(3). We go no further than that as a matter of construction and as a matter of fact. It is obvious, simply from the material before your Honour, that the Minister basing his decision in part on the existence of the agreement expressed to be non‑binding was taking the nature of that agreement into account.

Your Honour, if we are correct as to 198A(3), that is, if we are correct that it is not a matter of jurisdictional fact, that it does not impose any element of jurisdictional fact, if we are correct that as a matter of construction it is not confined to a consideration of legal obligations, then there is no reason to reach the third of the questions.  If it is for some reason unavailable to us to rely upon section 198A, then, in our submission, the scheme of the Act really is quite clear, that it is section 198(2) that is applicable, and your Honour is familiar with that scheme.

HIS HONOUR:   It is beyond argument, you say, if 198A is not engaged, it is beyond argument that 198(2) is confined to removal, or does not engage with the removal of persons who have made claims that have been undetermined and will not be determined in accordance with 198A?

MR GAGELER:   No.  The position is that – applying your Honour’s judgment in Al‑Kateb, 198A(2) requires removal to any third country, to any country outside Australia which will accept the unlawful non‑citizen in question.  That is clear.  That is decided by Al‑Kateb.

HIS HONOUR:   Was that decided before 198A was introduced into the Act?  My memory is it was.  Perhaps I am mistaken.

MR GAGELER:   My memory is not as good as your Honour’s.

HIS HONOUR:   I do not know about that, Mr Solicitor.

MR GAGELER:   Section 198A, clearly enough, in our submission, is a provision that is not, in its drafting or in its intent, confined to someone who is in detention and to whom section 198(2) applies.  Nevertheless, there is no reason why the power conferred by section 198A(1) ought not in its exercise constitute fulfilment of the duty imposed by section 198(2).  The provisions work in harmony.  But if you take away section 198A entirely, either because of the absence of a declaration or because of some failure to exercise the power under section 198A(1), then the duty under section 198(2) remains.

HIS HONOUR:   Just as to that question of timing, 198A was introduced, I think, in 2001.  Al‑Kateb was a decision of 2004, which says what it says about my memory, does it not, Mr Solicitor.

MR GAGELER:   Your Honour, I am glad of that timing.

HIS HONOUR:   I am glad you are.  I am not.

MR GAGELER:   Your Honour, I am in a position to seek leave to file the affidavit in Court, if your Honour pleases.

HIS HONOUR:   Yes.  What happens with the people in Melbourne?  That is the principal locus of this litigation, Mr Solicitor, and the tentacles of the Commonwealth surely extend to the southern capital still, do they, or perhaps not?

MR GAGELER:   There is no problem about getting it to them, your Honour.  It is just a matter of timing.

HIS HONOUR:   I think they are entitled to see it before I see it.

MR GAGELER:   Of course.

MS MORTIMER:   Your Honour, my juniors are telling me that we have a copy of the affidavit electronically, unsworn, and no exhibits.

HIS HONOUR:   The wonders of modern science.  What are we going to do, Mr Solicitor?

MR GAGELER:   I think we need a few minutes, your Honour.

HIS HONOUR:   This injunction expires at 4.15.  It is now 3.10.  How long do you need?

MR GAGELER:   I am told 20 minutes, your Honour.

HIS HONOUR:   I have until 3.25.  I will return to the bench at 3.25 regardless, Mr Solicitor.  By then I expect the Commonwealth to have achieved the result.

MR GAGELER:   May it please the Court.

HIS HONOUR:   Adjourn until 3.25.

AT 3.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.25 PM:

HIS HONOUR:   Yes, Mr Solicitor.

MR GAGELER:   Your Honour physically has the affidavit, which I seek leave to file and to read?

HIS HONOUR:   Yes.  Do you have a copy of this, Ms Mortimer?

MS MORTIMER:   It has just been handed to me this minute, yes, your Honour.

MR GAGELER:   Your Honour, in the way in which the case has been put for the plaintiff, there are only two paragraphs that I need to take your Honour to.  Going to paragraph 22, your Honour will see that there is a reference to the making of individual decisions in respect of each of the 16 plaintiffs.  The exhibit referred to in that paragraph is too voluminous to be provided to the lawyers for the plaintiffs this afternoon and therefore I do not tender that exhibit.  I rely simply on the evidence of individual decisions having been made and the lack of any material before the Court to demonstrate error in the making of those decisions.

The other paragraph, your Honour, is paragraph 18 and paragraph 18 annexes the minute to the Minister which led to the making of the declaration under section 198A(3). If your Honour can turn to that, it is SA6 There is some redaction for legal professional privilege. Your Honour will see paragraph 6 begins with some introductory words saying the Minister should satisfy himself of the criteria in respect of Malaysia. There is then, your Honour will see, an outline of the arrangement with Malaysia, paragraphs 8, 9 and 10. Then there is paragraph 11, a reference and a summary of the advice from DFAT which, in the second sentence of that paragraph, as summarised, is that the assessment supports the proposition that Malaysia is a country you may be satisfied meets the relevant criteria. Then there is a reference in the next paragraph, paragraph 12, to consultation with the UNHCR, the end of the first sentence noting that the UNHCR had assessed the final draft of the arrangement and operational guidelines as workable. If your Honour turns over to the advice from DFAT, that is attachment B ‑ ‑ ‑

HIS HONOUR:   Just before you come to attachment B, is there anywhere in this minute in which there is reference to whether Malaysia is bound either internationally or domestically to provide protections of the kind mentioned?

MR GAGELER:   Yes.

HIS HONOUR:   Where do I find those?

MR GAGELER:   In attachment B.

HIS HONOUR:   Yes.  That is attachment B to what?

MR GAGELER:   Attachment B to the minute.  It should be the next document.

HIS HONOUR:   It is not.  I cannot find it, Mr Solicitor.  If you want to rely on it, you are going to have to show it to me.

MR GAGELER:   Of course, there is just no doubt about that, your Honour.

HIS HONOUR:   What I have under the cover sheet of SA‑6 is I have five sheets of paper.

MR GAGELER:   Yes, your Honour.

HIS HONOUR:   I have no more under the cover sheet of SA‑6.  None of this is pinned together, none of it is presented in a form in which it ought to be, but there we are.  Now, to what document are you taking me?

MR GAGELER:   I am taking your Honour to what ought be in the full version of the affidavit.  I regret to give it to your Honour in this form.  Your Honour sees attachment B and your Honour will see on the first page under the heading, “Does Malaysia provide protection for persons seeking asylum, pending determination of their refugee status?” the fact of Malaysia not being a signatory to the Refugee Convention and Malaysia not itself providing equal status to persons seeking asylum.  Your Honour will see that developed ‑ ‑ ‑

HIS HONOUR:   My eyes light upon page 2, “Does Malaysia provide protection to persons who are given refugee status, pending their voluntary repatriation?” et cetera:

Not being a party to the Refugee Convention, Malaysia does not grant refugee status or asylum or have in place legal protections ‑ ‑ ‑

MR GAGELER:   No, correct.  Then it goes on in the same paragraph:

However, Malaysian authorities generally cooperate with the UNHCR and, as noted above, according to the UNHCR, “there were credible indications that forcible deportations of asylum seekers and refugees had ceased in mid‑2009.”

Then your Honour will see under the next heading, “Does Malaysia meet relevant human rights standards in providing that protection?”, references to constitutional and statutory provisions operating in Malaysia, and your Honour will see at the bottom of that page a reference to Malaysia not being a party to the two primary human rights instruments.

HIS HONOUR:   Yes.  Lest there be any doubt about what is being made available to me, Mr Solicitor, I propose to have this document, which I will describe as “Copy affidavit and some exhibits to the affidavit of Steven Anthony Alan sworn 8 August 2011” marked as an exhibit and kept on the file, and I will have the document entitled “Attachment B, Human rights and irregular migration in Malaysia” also marked as an exhibit, exhibit 2, and kept on the file so that there can be no doubt about what documents were before me for the purpose of this application.

MR GAGELER:   If your Honour pleases.

EXHIBIT:Exhibit 1.....Copy affidavit and some exhibits to the affidavit of Steven Anthony Alan sworn 8 August 2011

Exhibit 2.....Attachment B, Human Rights and Irregular Migration in Malaysia

HIS HONOUR:   I say again, it is unsatisfactory that the matter should have had to proceed in this fashion, but let us not tarry.

MR GAGELER:   I have nothing to say in response to that, your Honour.

MS MORTIMER:   Your Honour, we do not have attachment B, but I think I have followed sufficient of how my learned friend has described it to understand its import.

HIS HONOUR:   Yes, very well.

MR GAGELER:   Your Honour, what comes of the submission and of attachment B for the way in which the case has been put for the plaintiff today is this, that if satisfaction is required as a jurisdictional fact, then it ought be inferred that it existed. If reasonableness is required as a condition of the exercise of the power, then there is no basis on these materials for considering that the exercise of power under section 198A(3) was unreasonable and if consideration of domestic legal constraints and international legal constraints is mandatory in the exercise of the power that has occurred, but the document more than that, your Honour, demonstrates why the consideration of the exercise of the power ought not be confined in that narrow legal way. Indeed, the assessment of the UNHCR was that what had occurred in the agreement that had been reached, including the detailed procedures, was workable. If your Honour pleases.

HIS HONOUR:   If, Mr Solicitor, contrary to your principal submission, I were to form the view that there is a sufficiently serious question to be tried about the construction of 198A(3), is there any further argument you would advance against my continuing the injunction that I granted last night pending hearing and determination of the principal application?

MR GAGELER:   There is no argument going to the balance of convenience that I wish to put before your Honour.  Clearly, resolution of any issue your Honour may consider arguable ought occur at the earliest opportunity, and I need not say anything more about that.

HIS HONOUR:   If I were to form the view that the issue and construction of 198A(3) was sufficiently arguable to warrant the injunction, what step, if any, should I take in connection with the further prosecution of the proceeding?  By that I mean this.  Should I, one, refer any part of the principal application for consideration by a Full Court?  Two, if I should refer any part of the principal application for consideration by a Full Court, is there any reason not to have as an aim the return of those proceedings in a special sitting of the Full Court to be held some time in the week of 22 August?

MR GAGELER:   Your Honour, so far as the reference to a Full Court is concerned, there are some parts of the application that would seem to be inappropriate to be referred to a Full Court. Those going to the construction of section 198A(3) clearly are. Those going to the relationship between 198A and 198(2) clearly are.

HIS HONOUR:   Those two have to march in step, do they not?

MR GAGELER:   They do.  Those going to the exercise of discretion under section 198A(1) are not. 

HIS HONOUR:   That is the exercise of which discretion do you say, 198A(1)?

MR GAGELER:   Yes, paragraphs 41 ‑ ‑ ‑

HIS HONOUR:   May they not march in step with the construction issue?

MR GAGELER:   If there was any issue, your Honour, but there is no issue about section 198A(1) conferring a discretionary power.

HIS HONOUR:   The question is then discretion bounded by what proper construction of the Act as a whole, I would have thought.  Perhaps I am mistaken again.

MR GAGELER:  It is just not clear where that stream of thought leads, your Honour. If it does not lead to some officiating error in the application of 198A to the circumstances of a particular case, then there is a problem. Your Honour, could I say this. If your Honour is considering the course that your Honour has indicated as a possibility, can I say this. There is a provision in the Act that has been overlooked as a matter of procedure, and that is section 486B(4)(b), page 584. This case should only be proceeding with one plaintiff. If the circumstances of one plaintiff were to be put before a Full Court in their entirety, it is difficult to see that the points of principle relating to all 16 plaintiffs would not be dealt with.

HIS HONOUR:   That raises directly the question of what we are to do about the removal of unaccompanied minors, Mr Solicitor.  Why should that not go to a Full Court at the same time the issue is raised in these proceedings?  If you insist upon severance of the proceedings into 36 separate actions, well, perhaps so.

MR GAGELER:   Your Honour, I am drawing attention to the terms of the Act.  I cannot do anything about that.  The position of minors, yes, should be dealt with at the same time in another action.

HIS HONOUR:   But dealt with by the Full Court at the same time and in the same manner?

MR GAGELER:   Yes.  So the circumstances of two plaintiffs could be put before the Full Court.  In terms of timing, your Honour, it is notorious that the signalling effect of the measures that have been put in place are being noted in other countries and the sooner any issue about the validity of any of those measures is determined on a final basis, the better.  If it could be next week, if your Honour is considering placing the matter before a Full Court ‑ ‑ ‑

HIS HONOUR:   Do not think the intermediate procedures, because I think there will have to be some agreement of facts, can realistically be done in that time.

MR GAGELER:   The answer is yes, it can realistically be done, your Honour.

HIS HONOUR:   The events of today would not ‑ ‑ ‑

MR GAGELER:   Your Honour should not treat the events of today as ‑ ‑ ‑

HIS HONOUR:   They do not give me any confidence in that fact, Mr Solicitor, and, as I say to you, I am looking towards the week of 22 August.

MR GAGELER:   If your Honour pleases.

HIS HONOUR:   Ms Mortimer.  If I were to form the view that there is a sufficiently serious question to be tried about the construction of 198A(3) and were to form the view that accordingly an injunction should go pending hearing and determination of the proceeding, what intermediate steps would be needed to have sufficient of the issues as arise and are suitable for determination by a Full Court ready for determination?  In particular, why could that not be done by the week of 22 August?

MS MORTIMER:   Your Honour, we do not suggest that it cannot be done by that week.  It depends on the good will of the parties about the agreement of facts.  Now that we are in possession of the Minister’s affidavit, we would submit that the question in relation to 198A(1), that is the discretion point, can and should proceed with the ones identified and conceded by my learned friend as appropriate.  That is because, whether the Minister asked himself the correct question or whether the Minister looked at only the position of these asylum seekers, is a matter that should go to the Full Court. 

So we anticipate that the facts can be agreed and we anticipate that we should be able to do that on the basis of the Minister’s material.  The only other question that appears to us to have been completely ignored by the Commonwealth in its submissions and its material is whether this legislative instrument has been registered and that is a matter that we ought to either have set to one side if it can be or otherwise it should also go forward, your Honour.

HIS HONOUR:   I shall hear you further and hear both sides further on the question of what further directions are to be given in the matter.  Thank you, Ms Mortimer.

MS MORTIMER:   Your Honour, can I simply add that we accept that it may be the case, as my learned friend has pointed out, that section 486B of the Act applies.  We would be content for one proceeding in respect of an adult to go forward and one proceeding in respect of a minor to go forward,

given appropriate undertakings on behalf of the Commonwealth to protect the position of our other clients. 

HIS HONOUR:   Thank you.

MS MORTIMER:   Unless there is anything further that your Honour wishes to hear from me, I will sit down.

HIS HONOUR:   Last night in a proceeding to be instituted on behalf of 41 plaintiffs, 36 of whom were said to be adults, the balance of whom were said to be unaccompanied minors, I made an order, amongst others, that until 4.15 pm today, or further order, the Minister be restrained, whether by himself, his officers or otherwise, from removing from Australia any of the plaintiffs who was named as a proposed plaintiff in the draft application that was then before me.

The matter now returns, pursuant to my order, for further consideration this afternoon.  In particular, it returns for further consideration of whether, as the plaintiffs seek, I should grant interlocutory relief restraining their removal pending the hearing and determination of the principal application which they have now issued in this Court.

Counsel for the plaintiffs sought to identify a number of issues raised by the application as being issues presenting sufficiently serious questions to be tried as would warrant the grant of relief that would intercept their removal from Australia. It is sufficient for present purposes for me to confine my attention to one of the issues which it is asserted arises necessarily in the determination of the issues presented by the plaintiffs and that is the question of the proper construction of section 198A(3) of the Migration Act 1958 (Cth). Section 198A(3) provides that:

The Minister may:

(a)      declare in writing that a specified country:

(i)     provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii)     provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii)    provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv)    meets relevant human rights standards in providing that protection; and

(b)      in writing, revoke a declaration made under paragraph (a).

In my opinion, there is a sufficiently serious question to be tried about the proper construction of that provision as warrants the grant of the interlocutory relief which the plaintiffs seek. The question that arises may no doubt be described in a number of different ways and the formulation which I adopt is not intended to be the sole or exhaustive expression of the nature of the question that is presented. However, it would appear to me that there is a sufficiently serious question to be tried about whether, on its proper construction, section 198A(3) of the Migration Act permits declaration of a country only if the country in question is bound either as a matter of international obligation or as a matter of domestic law, or both as a matter of international obligation and as a matter of domestic law, to provide the access and several protections referred to in section 198A(3)(a)(i) to (iv).

It is the plaintiffs’ case, as I would understand it, that Malaysia is not bound to an international instrument or international instruments that would oblige it, as a matter of international law, to provide the access or protections referred to in section 198A(3) and it is the plaintiffs’ further case that the domestic law of Malaysia does not bind Malaysia to provide the access and protections referred to in those subparagraphs of section 198A(3).

Because I am of the opinion that there is a serious question to be tried about that question of construction, it would be inappropriate for me to go further and to develop any more concluded view about where the balance of the dispute about construction should ultimately be found to lie.  That is a matter entirely for determination finally at the hearing and determination of the proceeding.  Because I am of the opinion that that is a serious question to be tried, it follows, in my opinion, that the interlocutory relief which the plaintiffs seek should go.  Unless interlocutory relief is granted, their claim will wholly be defeated because they will be removed from Australia. 

Accordingly, subject to anything that counsel may say as to the form of order, I will order that until the hearing and determination of the plaintiffs’ application, or further order, the Minister is restrained, whether by himself, his officers or otherwise, from removing from Australia any of the persons named as plaintiff in the present proceeding.

In the course of argument this afternoon, my attention was drawn to the provisions of section 486B(4)(b) of the Migration Act, which in terms provides that:

The following are not permitted in or by a migration proceeding:

. . . 

(b)joinder of plaintiffs or applicants or addition of parties –

The content given to a migration proceeding is to be found in section 486B(1), which provides that:

This section applies to all proceedings (migration proceedings) in the High Court . . . that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non‑citizens.

On its face that section is engaged and it may very well be that it will, in very short order, be necessary to reformulate the proceedings that have presently been issued and on that occurring, it would no doubt be necessary to reformulate the interlocutory injunction that is granted.  I do not anticipate any need for any difficulty or dispute about those matters.  It is, however, safer in the present circumstances that an order be made in the general terms I have described rather than waiting for the procedural difficulties that apparently are presented by the current form of the proceeding to be resolved.

It will be necessary for the parties then to make submissions about what course should be adopted for the further hearing of this matter.  As I have indicated in the course of argument, it is likely that a special sitting of the Full Court can be held during the week commencing 22 August.  There is evident advantage in this matter coming to its final hearing and determination as promptly as that can reasonably be arranged.  That will require, of course, a considerable degree of co‑operation between the parties, most especially in their consideration of what facts can be agreed in this matter.  If that were not to occur, then the timetable that it would be necessary to pursue to achieve the intended result would be deranged.  That is something which, I trust, need not occur. 

Ms Mortimer, firstly is there anything you desire to say about the form of the injunction that I have proposed?

MS MORTIMER:   No, your Honour, we accept it is appropriate in the circumstances and we accept that 486B applies and we will take steps to regularise the proceedings in relation to each plaintiff.

HIS HONOUR:   Mr Solicitor, is there anything you wish to say about the form of the injunction?

MR GAGELER:   No, your Honour.

HIS HONOUR:   Then I make that order now and I note the time at approximately 4 to 4.00, Mr Solicitor.  There is no intervening period, I think, in the efficacy of the injunction, is that right?

MR GAGELER:   Your Honour is right.

HIS HONOUR:   Thank you, Mr Solicitor.  Ms Mortimer, as to what could go to a Full Court, I do not intend to form some final conclusion on that matter tonight – too used to saying tonight after last night, am I not – this afternoon.  My present inclination, however, so that you may be aware of it, is that I would not think that the issues that are raised in paragraphs 18 to 20 concerning the detention of the plaintiffs will likely form a suitable foundation for reference into a Full Court.  In part, they concern the detention of minors.  That is the subject of other litigation pending in other courts.  Those are issues that might, perhaps, be hived off and dealt with separately.  I do not ask you for your reaction.  I simply inform you of the present state of my mind so that you may, at a later date when we come on for directions again, tell me why yet again I am wrong in that and so many other respects. 

It would seem to me that paragraphs 21 to 24, 25 to 28, 29 through to 40 are all matters suitable for reference to a Full Court.  At least as at present advised, it did not seem to me that those were likely to be matters that would provoke much, if any, factual controversy.  What then happens about paragraphs 41 to 46 of the principal application is a question I regard presently as open.  I express not even a preliminary view about what should occur with those.  Paragraphs 47 to 50, in an appropriately constituted proceeding concerning the removal of unaccompanied minor plaintiffs, are matters, which it would seem to me, should go to a Full Court and again, it would seem to me, it is unlikely that those are matters which would have any controverted factual foundation.  Maybe I am wrong, but it did not strike me that there should be.  Paragraphs 51, 52 and 53, by contrast, seem to me at first blush not to be likely candidates for reference into a Full Court.  Again, I may be mistaken. 

The last comment I would make is about the facts underpinning the 198A(3) argument.  I would hope there would be no controversy or little controversy between the parties about what international instruments Malaysia is a party to or what relevant domestic laws of Malaysia exist that bear upon the issues, but altogether different considerations would emerge, I think, if there were to be some disputed questions of fact about what has happened in the past in Malaysia.  Such questions, if they were to be disputed, would of course, on their face, not seem especially suited to determination by a Full Court. 

These are matters to which the parties must give attention.  I do not expect your answers tonight.  When do you say I should usefully bring this matter back on for further directions?  I do not want to bring it on unnecessarily early, but I do want to keep, if I can put it bluntly, a foot on this thing so that it runs smoothly.

MS MORTIMER:   Your Honour, next Monday may be too long, but I anticipate that that is a time by which we ought to have settled most of the issues.  That is a week away from the hearing and we ought to know well by then, your Honour, how well progressed we are about agreed facts.  I can say to your Honour, at first blush, we are unlikely to disagree with your Honour’s assessment about the grounds, subject to wanting to persuade your Honour and my learned friend about the inclusion of 41 to 46.  Your Honour, if we had a week, I am confident my learned friend and I, the learned Solicitor, would use that constructively.

HIS HONOUR:   I have a full week of sittings this week.  I will, if needs be, sit either at lunchtime or before court or after court if that is going to assist the parties but not unless it will.  You suggest bring it back on Monday, 15 August?

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   Yes.  Mr Solicitor, what do you think is the better course or least worst course to adopt?

MR GAGELER:   Bringing it back on Monday is a realistic course, your Honour.

HIS HONOUR:   Yes.

MR GAGELER:   We do see it as critical that a firm hearing date be set as soon as possible and that we work towards that.

HIS HONOUR:   I think the parties should order their affairs on the assumption that 2.15 pm on Monday, 22 August maybe the time at which this matter would commence hearing.  I say maybe because that is the limit of my authority.

MR GAGELER:   If your Honour is scheduling a directions hearing for this coming Monday, if your Honour would reserve liberty to the parties to apply.

HIS HONOUR:   Of course.  How much notice do you say; 24 hours notice to the opposite parties?

MR GAGELER:   Yes, 24 hours.

HIS HONOUR:   If I were to say 9.30 am or 10.15 am on Monday?

MR GAGELER:   It makes no difference to us.

HIS HONOUR:   In Melbourne and by video link to one city, I do not like split videos, but would that be convenient?

MR GAGELER:   Yes, your Honour.

HIS HONOUR:   If we were to say tentatively 9.30 am, 15 August in Melbourne, or such other time as may be fixed?  Yes.  The costs of today’s proceedings should be costs in the cause, I think.

MR GAGELER:   Yes, your Honour.

MS MORTIMER:   Your Honour, my application is they should be ordered to be paid by the Commonwealth to the plaintiffs on the basis that this was a contested interlocutory application and we have succeeded.

HIS HONOUR:   Mr Solicitor, do you oppose that course?

MR GAGELER:   I do oppose that course, your Honour.

HIS HONOUR:   I need not trouble you further.  The costs will be costs in the cause.  So the orders are – I have already pronounced the order for injunction.  I will adjourn the proceedings for further directions to 9.30 am, 15 August 2011 in Melbourne, or such other time as may be appointed.  Either party or any party has liberty to apply as it may be advised on not less than 24 hours notice in writing to opposite parties.  The costs of today will be costs in the cause.  Is there any other order that counsel say I should make?

MR GAGELER:   No, your Honour.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   I order those orders.  Adjourn the Court.

AT 4.05 PM THE MATTER WAS ADJOURNED