Ul-Haque v The Queen

[2006] HCATrans 354

[2006] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S216 of 2006

B e t w e e n -

IZHAR UL-HAQUE

Applicant

and

THE QUEEN

Respondent

Summons for removal

GUMMOW ACJ

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 6 JULY 2006, AT 9.32 AM

Copyright in the High Court of Australia

MR I.M. BARKER, QC:   If your Honour pleases, I appear for the applicant.  (instructed by Lawyers’ Corp)

MR P.S. HASTINGS, QC:   If your Honour pleases, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

MS R.J. ORR:   If your Honour pleases, I appear on behalf of the Attorney‑General for the Commonwealth intervening.  (instructed by Australian Government Solicitor)

HIS HONOUR:   What is the attitude of the Attorney to the summons that I have to hear this morning?

MS ORR:   The summons seeking expedition of the application for a removal order is supported by the Attorney‑General for the Commonwealth.

HIS HONOUR:   Yes.  What will the Attorney’s attitude be on the substantive hearing of the removal application?

MS ORR:   The Attorney’s attitude on the substantive hearing will be to oppose the removal order.

HIS HONOUR:   On what basis, can you say at this stage?

MS ORR:   The primary basis will be prematurity on the basis that the proceeding before the Court of Criminal Appeal that is listed for hearing on 28 July involves both constitutional and non‑constitutional issues.  If the non‑constitutional issues are determined in the applicant’s favour, the constitutional issues will not arise.

HIS HONOUR:   Yes, thank you.  I should ask Mr Hastings what ‑ ‑ ‑

MR HASTINGS:   The respondent takes the same view, your Honour, as that expressed on behalf of the Attorney‑General.

HIS HONOUR:   Thank you.  Yes, Mr Barker, you move on a summons ‑ ‑ ‑

MR BARKER:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ filed on 29 June and there is an affidavit in support, I think.

MR BARKER:   Yes, there are two affidavits by Mr Houda.

HIS HONOUR:   By Mr Houda, yes, both filed on 29 June.  Yes, Mr Barker.

MR BARKER:   Your Honour, our argument in support of the summons for expedition is that the constitutional point is quite disparate from the rest of the matters to be argued before the Court of Criminal Appeal.  It is likely, having regard to Polyukhovich, Victoria v The Commonwealth and the majority in XYZ ‑ ‑ ‑

HIS HONOUR:   You say the majority.  Will you not be seeking leave to reopen XYZ?

MR BARKER:   Yes, your Honour, and the judgments of Justices Callinan and Heydon and Kirby give us some hope in that regard, but it ought not have to await a special leave application, in my respectful submission.

HIS HONOUR:   Yes.  Well, we could go into that more fully in the removal application.

MR BARKER:   Yes, your Honour.

HIS HONOUR:   There is one matter though.  What is the nationality and citizenship of your client?

MR BARKER:   Australian and he is also…..

HIS HONOUR:   Was he born here?

MR BARKER:   I should know that.  We think so.

HIS HONOUR:   It might be important to know that at some stage in the constitutional questions, whether he is a citizen by birth or naturalisation.

MR BARKER:   I think he is a citizen by birth, your Honour, but I am sorry I cannot tell you that.

HIS HONOUR:   Yes.  It should not be a controversial fact, if it can be sorted out before the removal application is dealt with.  Anyhow, he is not an alien?

MR BARKER:   No, your Honour.

HIS HONOUR:   And he was not an alien at the time of these alleged offences?

MR BARKER:   No, your Honour.

HIS HONOUR:   All right.  Is there anything you want to say in opposition to the present application?

MR HASTINGS:   No, your Honour.

HIS HONOUR:   On the summons filed on 29 June 2006, I will direct that the application for removal be added to the list of matters to be dealt with in the special leave list in Sydney on Friday, 4 August 2006.  The costs of the summons will be costs of the removal application itself, if we get to questions of costs.

Now, is there any difficulty in getting the removal book ready by that time?

MR BARKER:   No, your Honour.

HIS HONOUR:   Is there anything else, Ms Orr?

MS ORR:   No, your Honour.

HIS HONOUR:   Very well.  I will now adjourn.

AT 9.37 AM THE MATTER WAS CONCLUDED