Thomas v Mowbray & Ors
[2006] HCATrans 570
[2006] HCATrans 570
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M119 of 2006
B e t w e e n -
JOSEPH TERRENCE THOMAS
Plaintiff
and
GRAHAM MOWBRAY (FEDERAL MAGISTRATE)
First Defendant
MANAGER, COUNTER‑TERRORISM - DOMESTIC, AUSTRALIAN FEDERAL POLICE
Second Defendant
THE COMMONWEALTH OF AUSTRALIA
Third Defendant
Summons
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON THURSDAY, 19 OCTOBER 2006, AT 9.33 AM
(Continued from 2/10/06)
Copyright in the High Court of Australia
__________________
MR S.G.E. McLEISH: If the Court pleases, I appear with MS K.L. WALKER, for the plaintiff. (instructed by Robert Stary and Associates)
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friends, MR S.P. DONAGHUE and MR G.J.D. DEL VILLAR, for the second and third defendants. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes. What is the position?
MR BENNETT: Your Honour, we have agreed on the form of a special case. We have agreed on a joint application to your Honour that the principal submissions and submissions in reply be up to 40 pages in length. The matter has been set down for 5 and 6 December. We are in disagreement about the timetable for submissions.
HIS HONOUR: I am not.
MR BENNETT: Well, your Honour, under the ordinary ‑ ‑ ‑
HIS HONOUR: We will come to questions of timetable presently, Mr Solicitor. Subject to whatever the parties may say, there will be a timetable set that will have submissions filed significantly earlier than would ordinarily be required by the Rules, but that is a matter to which we will come in due time.
Can I deal first with the special case. The special case that is submitted, as I understand it, is submitted pursuant to rule 27.08, and the Rules make plain that the procedure is one which depends upon the agreement of the parties. It is the parties that agree in stating the questions. It is the parties that agree in stating the facts. It is entirely a matter for the parties therefore to determine what facts are to be stated and what are the documents that are to be identified in the special case.
There are, however, some features of the special case which struck me in the course of 10 minutes examination which are not intended to be an exhaustive list of matters that might arise, but to which I think attention might usefully be drawn. In paragraph 3 of the special case draft, there is a reference to the Al Farouq training camp in Afghanistan. That camp is mentioned again in relation to certain contentions that were made in the Federal Magistrates Court, but there is not, I think, any fact agreed which would relate what is said in paragraph 3 of the special case with any provision of section 101.2 of the Criminal Code or at least, as appeared to me on a cursory examination of the document, with any other provision of the Criminal Code.
References are made in the document to Al‑Qaeda. Again, it is not evident to me - and I expect no comment from counsel; these are simply matters that counsel may choose to do with what they will – but it is not evident to me that any fact is agreed which would connect that organisation with any of the several statutory concepts that are referred to in Division 101 of Part 5.3 of Chapter 5 of the Code. Again, perhaps I am entirely mistaken.
Under the heading “World Security Environment” various facts are put forward as agreed facts, which appear to turn in respects that might seem to be important respects - I simply do not know – upon the meaning that is to be assigned to expressions like “terrorist organisations”, “terrorists”, “terrorist threat” and the like. Again, it is not evident to me – no doubt ultimately it would be pointed out where I am mistaken, if I am – but it is not evident to me that any fact is agreed that would relate the expressions there used with any of the statutory terms that are found in Division 101 of Part 5.3 of Chapter 5.
Now, these may be matters of no moment, but they are matters which struck me upon reading the document, and I wish the parties to be under no misapprehension. It is for the parties to determine the facts upon which they agree which they say are relevant to the questions that are to be agitated in a Full Court. I do not wish it to emerge in the course of argument in the Full Court that there is an unresolved factual question buried beneath drafting to which insufficient attention has been given.
Do not misunderstand me. I am not saying that insufficient attention has been given to the present draft. I am quite sure it has been given a great deal of attention. But the challenge is a challenge to the validity of identified legislation and at least at first blush it is not evident to me that various terms used in the draft special case are terms which are intended to be used with specific statutory meanings. If they are, so be it. Those are matters about which I do not expect and do not ask for comment. If the special case process is to be used, it is for the parties to sort these things out. It is not for the Court. It is the parties’ case that goes forward. It is not a case stated by a Justice of the Court.
There are then some questions which may bear upon timetabling, to which we will come presently. There are three matters which I wish to raise for consideration by counsel for the parties. Again, none of them is a matter about which I expect there to be any comment by counsel today. They are matters which counsel may care to consider when preparing their submissions.
First is the subject of analogous federal legislation. Is there any federal legislation that might be thought to be analogous to the legislation which is the subject of the present challenge? In that regard, I would draw attention to the provisions of the Family Law Act 1975 (Cth) and in particular sections 68B, 114 and 114A. At the risk of undue abbreviation, those are provisions that permit the Family Court to make orders in the nature of injunction preventing parties to a marriage from attending certain places, going to particular places at certain times, and the like. The Court would be assisted, I am sure, if the parties pointed to any federal legislation that might be said to be similar to or generally similar to the legislation that the plaintiff now challenges.
The second subject is this. It arises out of Fardon v The Attorney‑General for Queensland and it arises from rereading the transcript of argument in Fardon [2004] HCATrans 39. The Solicitor‑General for Queensland submitted in respect of the legislation in issue in that case that:
surely it is better that these decisions –
that is, decisions in that case for the continued detention of certain sexual offenders after completion of their sentence –
be made in public by judges exercising the judicial process to resolve these questions by determining the balance between competing arguments than having a number of faceless bureaucrats doing it.
The quotation is found at [2004] HCATrans 39 at 60, lines 2681 to 2684. Now, the argument was one that in the course of debate in Fardon was expanded upon at a number of places in the transcript adjoining the particular quote I have chosen, but it is a sufficient reference to alert the parties to where in the transcript you will find it, and it might seem to me be summarised as an argument to the effect, better the judges than the Executive, and better the judges in public than the Executive in private.
I recognise, of course, that the plaintiff in this case makes a number of arguments. Not all of them are founded in Chapter III, but the particular question that arises is this. If the plaintiff’s argument about heads of power were to be disposed of in one way, there would of course have to be argument about the – or there would have to be consideration of the Chapter III arguments. The argument was put very bluntly in Fardon. The parties may or may not wish to consider whether that argument is available, good, bad, indifferent, what consequences it would have for this litigation, but better the parties be alerted to it now rather than in the course of oral argument.
The third set of questions is provoked by the reference in the definition of “terrorist act” in section 100.1 of the Code to “intimidating . . . a section of the public”. In considering the defence power or any other head of power that may be relied on as relevant in this case, is there any distinction to be drawn between action which, if I may speak loosely for a moment, is directed at the polity or at society generally, on the one hand, and action which is directed at a section of the public? Now, if there is said to be some distinction, what is it and what would be the consequences of drawing it?
None of those questions that I have raised is to be understood as in any way confining argument, directing argument on those issues or any other issue in the matter. But counsel may – they may not – find it useful to give some attention to them when preparing their arguments.
Now, the timetable. My associate will give to the parties a document which records first what the consequence would be for filing of written submissions under practice direction No 1 of 2000. The timetable would be 20 November, 23 November, 30 November. That is what would be. What I propose is a set of directions that would have the reply submissions in by 21 November. This case is fixed for hearing on Tuesday, 5 and Wednesday, 6 December.
There would be advantage if the submissions can be in a significant time beforehand. There would be advantage if only because, as we are coming to the end of the year, it is better that the process be loaded up at the front rather than at the end. If there are questions that are presented by the written submissions, if we can get those identified earlier rather than at the last minute with everybody anticipating the arrival of Christmas. Now, there are several elements in the timetable. First, there is the question of interveners. Does either party know of any proposal for any intervention by any Attorney or any application for leave to intervene?
MR BENNETT: No, your Honour.
HIS HONOUR: No. Well, against the possibility that there would be intervention, I thought that we should perhaps foreshorten the time within which notice of intention to intervene should be given, so that we get the interveners on deck early. So, direction No 1 would be that those who want to intervene should give notice as early as 8 November. No doubt counsel can joyfully say, “Well, that’s somebody else’s problem, not mine” and “Yes, what a good direction to make. They can comply with that. We don’t have to”. The real bite comes in the succeeding directions. It would require the plaintiff to put on its submissions by10 November, Mr McLeish. What do you say as to that?
MR McLEISH: It does give us some difficulty, your Honour. We appreciate the desirability of moving the process forward, especially since the submissions are longer than – it is proposed that they be longer than usual. Mr Merkel is overseas at the moment, so we have about a week longer without his presence. We would certainly be assisted by that weekend and perhaps an additional day, if Tuesday the 14th could be managed.
HIS HONOUR: It is like running an auction, this. Yes.
MR McLEISH: Your Honour, perhaps the other aspect of it, while I am on my feet, which does cause us some concern is the time for reply. We anticipate that the reply will deal with the heads of power argument to a significant extent, because we have not seen how the Commonwealth puts its case on the heads of power and we would anticipate the reply being longer than usual and perhaps the primary submissions a little shorter, and the Rules would give us seven calendar days for the reply and we would like, if possible, to stick with that. The proposal gives us six, and if there is space for that extra day, that would also assist us.
HIS HONOUR: The difficulty is this. I would like the other members of the Court to have available all of the papers for consideration throughout the week commencing Monday, 27 November. That means effectively you have to bring it back to last filing happening by 12 noon on Friday, 24. Last filing by 12 noon Friday, 24, would enable distribution I think, although it is getting awkward, in time for members of the Court to have it over that weekend and for the week following. Now, that is the outer limit and inevitably each side in this litigation will say, properly, “We want time to do it carefully”. I understand that. That ordinarily would suggest start the process early.
MR McLEISH: I am not arguing with starting the process early, your Honour. I was just hoping to end it a little later than Tuesday the 21st.
HIS HONOUR: I understand that. If we were to work back from 12 noon on the 24th - now, I do not want to conduct an auction in the courtroom. If it is going to be easier and more efficient for the parties to sit down and discuss these matters – I was going to use a rather more colourful and physical expression – I am happy to leave the Bench and let you sort it out. But as I say, I do not want to conduct a Dutch auction between you.
MR BENNETT: The problem is that has failed to date. We have agreed on the special case, but we have not been able to agree on that. Your Honour, the problem is this. The Rules in the events which happened in this case – or the practice direction rather – allows the plaintiff 59 days, us three days, and the plaintiff then five days in reply, and that is from the time the action is commenced – the proceedings are commenced. Your Honour, we would respectfully submit that is grossly disproportionate. What your Honour proposes would allow 49 days, five days and six days. The plaintiffs had all this time. We of course can only really do it once we get theirs, and ‑ ‑ ‑
HIS HONOUR: Mr Solicitor, sorry?
MR BENNETT: We can only really prepare submissions once we have theirs. We can do preliminary ‑ ‑ ‑
HIS HONOUR: On the questions of power?
MR BENNETT: Well, your Honour, one needs to address particular arguments, and one can do some preliminary work, but my concern about the proposed timetable and about the timetable in the practice direction is that there is insufficient gap between receiving theirs and providing ours, and it is that that, in my respectful submission, needs to be increased to the extent possible. Five days, even including a weekend, is short, bearing in mind the huge time the plaintiff has had up to now, because there is nothing the plaintiff needs to know which it does not know to draw its submissions. So we would ask for at least ‑ ‑ ‑
HIS HONOUR: When was the legislation enacted, Mr Solicitor?
MR BENNETT: Well, your Honour, the ‑ ‑ ‑
HIS HONOUR: Sorry, no, when was the legislation enacted?
MR BENNETT: I think it was October 2005, your Honour.
HIS HONOUR: Yes.
MR BENNETT: But there is a difference, your Honour. One does need to answer – under the adversary system one answers a case. The respondent does not put arguments in abstract. In my respectful submission, there should be at least seven days between the date for the plaintiff’s submissions and the date for ours. But the proposed timetable in fact allows longer for reply than for us.
The other matter is this, your Honour. There are six issues in this case. There are two Chapter III issues - the Kable issue and the Boilermakers issue - and there are four power issues: defence, external affairs, implied nationhood and reference of power. So in a sense the parties have to prepare six cases for a two‑day hearing and that is the justification sought for the 40 pages, of course, and for the extra time in our case over and above the three days permitted by the practice direction. If the Court pleases.
HIS HONOUR: What length of submissions do you say I should permit, Mr Solicitor?
MR BENNETT: Well, your Honour, we asked for 40, I think my learned friend asked for 40, and we agree with that.
HIS HONOUR: So 40, 40, and how much in reply do you say, although it is not a matter for you?
MR McLEISH: Your Honour, we were proposing 40, the primary submissions and reply together. It is not quite clear to us at the moment how much – five would not be sufficient for reply, but we do not think we would need 40 for the primary submissions alone.
HIS HONOUR: Yes. Well, Mr McLeish, I am minded to leave Friday, 10 November as the time for the initial submission. I am minded to give the Commonwealth until Friday, 17 November, and you until Friday, 24 November for reply. What do you say?
MR McLEISH: We can live with that, your Honour, but the reply is important to us.
HIS HONOUR: Yes. Mr Solicitor?
MR BENNETT: Yes, your Honour.
HIS HONOUR: Yes, and I am minded to say the plaintiff’s principal submission not exceeding 30, Commonwealth’s or defendant’s principal submission not exceeding 40, plaintiff’s reply not exceeding 15. Is that going to work, Mr McLeish?
MR McLEISH: Yes, that will work, your Honour.
HIS HONOUR: Subject to my making those directions, and I think I have to, do I not, make an order directing the argument of the special case before a Full Court, other than that and to reserve costs, is there anything that counsel considers I should do?
MR BENNETT: Your Honour, in view of your Honour’s earlier remarks, might I ask that your Honour grant leave to the parties by consent to amend the special case within, say, seven days and leave to both parties if we cannot agree to have liberty to apply to your Honour on 48 hours’ notice or three days’ notice, with a view to dealing with any matter that remains between us.
HIS HONOUR: Obviously I am content that you should have an opportunity to consider what I said. Is it likely that you think that you need the week, Mr Solicitor? Can I work backwards and explain why the question. I want this case tied up before the Court goes to Perth for this reason: that, if this case is going off the rails, it has to come out of the list now so that somebody else can go into it. That is the bottom line. Now, I could sit again if needs be at 2.15 on Monday before the Court goes to Perth, or before I go to Perth. Is it realistic to expect the parties to be able to have thought about sufficiently the various matters I have raised and addressed them by that time?
MR BENNETT: It is difficult for us, your Honour. I have a Solicitors‑General meeting in Queensland tomorrow. We can endeavour to comply with that, your Honour. It is a question of getting the transcript, going through the matters, working out amendments, putting them to the other side, reaching agreement on what amendments seem to be required and ‑ ‑ ‑
HIS HONOUR: Yes. Now, two steps in that, to the second of which I will come in a moment. If you need me to go back over any of the matters so that you have a note so that you can begin the work now, then I will do that, but leave that. That is second order issue; not to say, twelfth order issue. If the parties had an opportunity to try to put this to bed during today, there is obvious advantage in doing it. Now, I know that suggests drafting on the run. That is not desirable either; I know that. If I were to make no order but simply to indicate to the parties that I would be assisted if they were in a position to file an agreed amended special case by Wednesday next week, would that give you, do you think, or likely give you, do you think, enough time to get it together?
MR BENNETT: Yes, your Honour, for this reason, that the parties have co‑operated over the special case and I would hope that we would be able to agree on whatever amendments accommodate your Honour’s suggestions. So I would not expect having to come back to your Honour.
HIS HONOUR: No. What I propose then, subject to the way in which it works out, is simply to make no order directing the special case today. If the parties can agree to a case, then by hypothesis they can agree to orders which would incorporate all of the various matters that we have discussed today. They can simply submit an initial note of those orders and they can be made in chambers without the need for the further attendance of any party; (a) that is cost efficient but (b) it might also prevent difficulty.
Now, it would be of assistance if the parties were in a position to submit such an initialled case and order by close of business Wednesday next. If that is done, then I will simply make the order as in chambers without need of further attendance and we can go forward. That draft order should incorporate the directions I have indicated, so the timetable directions I have indicated, and the parties will do what they will about the special case.
Now, against the possibility that we have difficulties with transcript, Mr Solicitor, would it be of assistance if I went through the various matters I raised, or do you think that your juniors have an adequate note of it?
MR BENNETT: Dr Donaghue tells me he has an adequate note, your Honour.
HIS HONOUR: Yes. What about your side of the record, Mr McLeish? Are you content with the note?
MR McLEISH: I believe we have an adequate note, too, thank you, your Honour.
HIS HONOUR: In other words, you are going to blame somebody else, not me, when it all goes awry.
MR McLEISH: I cannot, your Honour. I can share the blame anyway. Your Honour, there was one matter that the parties had proposed which has not been canvassed, and that is for the second and third defendants to file a court book. The special case refers to a number of documents. It annexes some and refers to others, and it was proposed that be filed. The date we had was 27 October. I am not sure how that fits with the proposed directions.
HIS HONOUR: Well, 27 October would give you time enough to incorporate references in your written argument to the special case book, and that is obviously very desirable, not to say essential. So 27 October, do you say?
MR McLEISH: Yes, your Honour.
MR BENNETT: Yes, your Honour.
HIS HONOUR: Yes, well, if we do that. Now, again if you would be good enough to draw that as part of the order. So the order will when made I think encompass the following aspects: (1) the reference of the special case or a direction setting the special case down for argument before a Full Court; (2) a direction about preparation of the special case book. Which party is to have carriage of that? Is the Commonwealth to have carriage?
MR BENNETT: Yes, your Honour.
HIS HONOUR: Yes. Well, then, the direction will record that the Commonwealth has carriage and will direct its filing and service in appropriate numbers by that date of 27 October. There would then be the directions along the lines of the proposed timetable modified in these respects. Paragraph 3 would be modified by providing on or before 4 pm on Friday, 17 November; paragraph 4 would be modified by providing on or before 12 noon, Friday, 24 November; paragraph 5 would be completed in subparagraph (a) as 30 pages, subparagraph (b) 40 pages, subparagraph (c) 15 pages.
The order when prepared should I think annex the special case as agreed so that there is no doubt about the special case that is referred in. The order should also I think simply reserve the costs. I was considering making them costs in the cause, but it is better that they are simply reserved I think. Yes, Mr Solicitor?
MR BENNETT: Does your Honour wish to state the questions in the order rather than in the case itself?
HIS HONOUR: No, it is the parties’ special case.
MR BENNETT: If your Honour pleases.
HIS HONOUR: Yes, is there any other matter that counsel wishes to raise about this matter?
MR McLEISH: Not on our part, your Honour.
HIS HONOUR: Yes, thank you. Very well, I am indebted to counsel for their assistance. I look forward to receiving an agreed special case.
MR BENNETT: Your Honour, Dr Donaghue suggests that the order one in relation to interveners should formally be made today so that the interveners know their position.
HIS HONOUR: Yes, I would be content to do that, make an order that would vary the time fixed by practice direction No 1 of 2000 as the time within which a person seeking to intervene in the proceedings shall give notice of intention to intervene, the asserted basis of the intervention, and the party or parties in support of whom the intervention is made, and I will fix Wednesday, 8 November 2006 as the time by which that notice is to be given. Mr Solicitor, would it be asking too much to have your solicitor notify the State Attorneys of that direction?
MR BENNETT: Your Honour, I will be seeing all the Solicitors‑General tomorrow. I will make sure they are notified.
HIS HONOUR: We might have a documentary record of it too, Mr Solicitor.
MR BENNETT: If the Court pleases.
HIS HONOUR: Yes, very well, thank you.
AT 10.11 AM THE MATTER WAS CONCLUDED
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