Vadarlis v MIMA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M93 of 2001

B e t w e e n -
ERIC VADARLIS
Applicant
and
THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
WILLIAM JOHN FARMER
Third Respondent
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Fourth Respondent
AMNESTY INTERNATIONAL LTD
Fifth Respondent
Application for special leave to appeal

GAUDRON J
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 27 NOVEMBER 2001, AT 1.58 PM

__________________

MR G. GRIFFITH, QC: If the Court pleases, I appear with my learned friends, MR J.I. FAJGENBAUM, QC and MR C.J. HORAN, for the applicant. (instructed by Riordan & Partners)

MR D.M.J. BENNETT, QC, Solicitor‑General for the Commonwealth: If the Court pleases, I appear with my learned friends MR R.R.S. TRACEY, QC, MR P.J. BASTON, MR G.A. HILL, and MR D.I. STAR for the first, second and third respondents. (instructed by the Australian Government Solicitor)

MR J. BASTEN, QC: If the Court pleases, I appear with MS K.L. EASTMAN, for the fourth respondent. (instructed by the Human Rights and Equal Opportunity Commission)

GAUDRON J: I should inform the parties that the Deputy Registrar has certified that she has been informed by Slater & Gordon, solicitors for Amnesty International, the fifth respondent in this matter, that Amnesty International Ltd does not propose to take any part in these proceedings.

I think the Deputy Registrar has already indicated that you will not be held strictly to the 20 minutes that would normally apply, but you may find the light after 30 minutes if you have not completed your argument within that time. That does not extend to you, Mr Basten. It seems that your interest in this is somewhat peripheral and you should confine yourself to the 20 minutes.

MR GRIFFITH: If your Honour pleases, I hope to be gone before first light. Your Honour, there is an affidavit that was served on us at 3.30 pm on Friday from Lysbeth Mary Haigh. We wish to object to that affidavit being put in evidence at this stage. There is an earlier affidavit ‑ ‑ ‑

GAUDRON J: Let me understand the basis of you objecting. Is it an objection to some parts of it, or to the reception of an affidavit at all?

MR GRIFFITH: Particularly to paragraph 9, we object. As we understand it there is an affidavit that it included ‑ ‑ ‑

GUMMOW J: Is it in the book?

MR GRIFFITH: No, your Honour, it was separate. In the book at page 189 to 191 is the principal affidavit to which this is simply supplemental. That affidavit was filed in connection with an application for expedition, heard by his Honour Justice Hayne. We understood it as being confined to that purpose, but we have no objection to that affidavit being read in this proceeding. The difficulty we have with the supplemental affidavit is that it seems not merely to update the material in the first affidavit but we read it as derogating, somewhat, from particularly paragraphs 4 and 14 of the previous affidavit and creating an element of ambiguity which ‑ ‑ ‑

GAUDRON J: They are not grounds for objection, are they? They are matters for argument.

MR GRIFFITH: Your Honour, I object to its reception because it is a ‑ ‑ ‑

GAUDRON J: On what grounds?

MR GRIFFITH: It is a hearsay matter dealing with an issue, apparently on its face, as to an underlying fact situation which, as we would understand it ‑ ‑ ‑

GAUDRON J: Paragraph 9?

MR GRIFFITH: Your Honour, if my learned friend wishes to press the entire affidavit rather than give up paragraph 9, we will object to the entire affidavit, but our main concern is paragraph 9.

GAUDRON J: On hearsay? You really want to spend your half hour on ‑ ‑ ‑

MR GRIFFITH: Of course I do not, your Honour. I would ask for time out on this, your Honour, because it is dealing with an evidentiary matter which rarely arises in special leave.

GAUDRON J: Of course.

MR GRIFFITH: Can I make the point in a sentence, your Honour? What we say is that we do not accept that this affidavit on the basis of hearsay can be used as a ground for an application as a matter of fact, that the proceedings are moot, as we understand it is directed to that issue. If my learned friend is merely saying the circumstances have changed, that is sufficiently outlined by the first affidavit of Ms Haigh. We submit that the last paragraph should not be received as hearsay which derogates from paragraph 14 and has a suggestion that these persons are outside the control of the Australian Government. If my learned friend ‑ ‑ ‑

GAUDRON J: We would not need an affidavit to think, prima facie, they might be outside the control of the Australian Government.

MR GRIFFITH: Firstly, there is no suggestion that they are. My learned friend has not put that in his submissions.

GAUDRON J: They are not in this country, are they?

MR GRIFFITH: There is the agreement with Nauru which indicates, your Honour, that the Australian Government is financing the circumstances in Nauru.

GAUDRON J: So.

MR GRIFFITH: Secondly, have a commitment to deal with the persons if they are not otherwise dealt with under the terms of the arrangement. We say that in the absence of affirmative evidence, the Court should take the view that whether an order made for the respondents recalling the Commonwealth to return these persons, the Commonwealth be able to comply with it, and say there is no evidence to the contrary before the Court. We do not wish, your Honour, this affidavit by reference to hearsay, apparent derogation to the first affidavit, to be used as a vehicle for such a submission that there is evidence before the Court. These are matters beyond our information and there is no principal evidence to the contrary. For that reason we object.

GAUDRON J: I would have thought that there was not much debate about what the role of the UNHCR is in these matters. That is paragraph 9.

MR GRIFFITH: Your Honour, the point we wish to make is that it is plain that the whole arrangement is one paid for and controlled by the Australian Government, where the Court may act on the inference ‑ ‑ ‑

GAUDRON J: You can prove it if you wish. If it is not otherwise proved, you can prove it.

MR GRIFFITH: Your Honour, we say it if for my learned friends to prove otherwise. We have established that an order has been made. We say the Court should act on the assumption that if the order of Justice North were reinstated then that order could be complied with and the Court has no material, we say, to take any other view of the situation.

HAYNE J: An order in the nature of habeas extends beyond Australia, is that the proposition?

MR GRIFFITH: We say it extends for the capacity if the Commonwealth has held to have acted in an unlawful manner for the Commonwealth to use its capacities to restore the status quo ante That would be our submission.

HAYNE J: The claim below was a claim for habeas?

MR GRIFFITH: In the nature of habeas, we say to your Honour.

HAYNE J: No, the claim was a claim for a writ of habeas, was it not?

MR GRIFFITH: Also for declarations, your Honour.

HAYNE J: I understand that. Do you say a writ of habeas goes to persons who are detained in a foreign country?

MR GRIFFITH: Your Honour, we say the writ of habeas would go to a person who is responsible for a detention, even after the detention might have ceased, to provide an appropriate remedy.

HAYNE J: Do you point to any authority in support of that? The only authorities I have been able to find on that, are directly to the contrary, that habeas does not go in respect of a detention that is at an end. Perhaps I divert you from the course you wish to adopt, Dr Griffith, I do not intend to. You should take whatever course you see fit.

MR GRIFFITH: Your Honour, we have made our objections to the affidavit. I do not know whether the Court intends to rule on that.

GUMMOW J: To paragraph 9, is it, in particular?

MR GRIFFITH: Particularly paragraph 9, your Honour, we say should not give rise to an inference that these persons are beyond the control of the Commonwealth.

GAUDRON J: We will receive the affidavit. We overrule that objection. What inferences are, or should be drawn, is a matter for argument.

MR GRIFFITH: If your Honour pleases. Our submission is there should be no inference drawn that the Commonwealth be incapable of returning these persons to Australia whether this Court does so order it.

Our submission is that there are obvious matters for special leave which are identified in our submission at page 167 of the application book, that each of those matters that we submit, it itself, would be sufficient to –we say those issues are identified by the judgment of the primary judge and also by the separate judgment, particularly of Justice French giving the leading judgment for the majority, and the Chief Justice in dissent.

GUMMOW J: Wait a minute, argument No 4 is one your client lost unanimously.

MR GRIFFITH: We say we lost it in a formal sense in that before Justice North, his Honour held that he was bound by the authority of this Court, in particular the ACF Case, Alcoa v Onus, and also Bateman’s Bay. At the level of the Full Court, given the abbreviated time we had of one day to argue the appeal, the course was adopted to make formal submissions on the basis of this issue of the articulation of the appropriate level of standing, was something for this Court, in particular, whether or not the more liberal approach of Bateman’s Bay could be regarded as having superseded the traditional approach of ACF and Alcoa v Onus.

GUMMOW J: Traditional approach?

MR GRIFFITH: We say to the extent that our alternative submission is - and we wish to ventilate this before the entire Court - is that if you have a circumstance where there are persons affected, we say by allegedly unlawful conduct such as the rescuees in this case and they are, by reason of the alleged unlawful conduct, unable to approach the Court, the Court, in that case when then is an obvious issue of public interest, should enable, particularly in the situation where one cannot expect the Attorney by reference to fiat or otherwise, to intervene and provide a mechanism for approaching the Court under the traditional basis, it is appropriate to express a concept which we would loosely define as a standing of necessity so that one ensures that where there is a wrong, which we say for the purpose of this argument the Court should assume, it must be the case that some person can approach the Court so that the Court will deal with it.

GUMMOW J: Does anything turn on the circumstance that the activity complained of is allegedly supported by the executive power or prerogative power?

MR GRIFFITH: Your Honour, that might, in our submission, maintain the force of our submission, that one could expect that you would not approach an attorney who issues a press release saying that the Court should not have been approached at all in respect of this matter, being a matter for the executive. The Attorney, specifically, has dialled himself out of that issue so far as ‑ ‑ ‑

GUMMOW J: There are State attorneys, of course.

MR GRIFFITH: There may be, your Honour, but this is a matter of Commonwealth’s concern and we would say it is not appropriate to fish around, such as in the DOGS Case, to find an attorney of convenience. We so submit that part of the appropriate argument for this Court to consider on this issue of standing is to whether or not, however one regards Bateman’s Bay having regard to a financial interest, there is an underlying basis on which the Court will, in an appropriate case, as a matter of discretion of being able to deal with issues of costs as well, admit to its jurisdiction a case where this is someone who might otherwise be regarded as a bystander with a sufficient interest or not

GAUDRON J: It is really a question of the nature of the public law remedies referred to in section 75(v) of the Constitution, is it not?

MR GRIFFITH: We agree with that, your Honour, yes.

GAUDRON J: It is not so much a matter of discretion, surely, as what the Constitution requires.

MR GRIFFITH: What the entire justices, all four of them in the Federal Court have done, is said, that is a matter for this Court. That must be so. We could not present an argument for the Federal Court to be, as it were, adventurous in this area. It is necessary for this Court to articulate it, and our underlying submissions in those circumstances where such issues are involved.

GAUDRON J: No, I think the 78B notice does not go so far as to raise a constitutional question with respect to standing or 75(v) remedies. Perhaps nothing turns on it.

MR GRIFFITH: With respect, your Honour, we would say it is implicit, that there is sufficient in our section 78B to cover that issue because the issue raised is one of whether or not there is standing. Justice North failed then to consider what we say is our substantial argument based on section 189(2) and we say the duty of both the third‑named respondent and also the officers of his department, as officers of the Commonwealth, once they apprehended that these persons were approaching a migration zone with intention where, if they landed they would be unlawful non‑citizens, they had a duty under section 189(2) to take them in detention and to bring them in to the migration zone. That argument was not considered by Justice North because he took the view that there was no standing.

If his Honour had considered that, our submission is that it is self‑evident that those persons who, on the agreed facts, were agreed to be unlawful non‑citizens had they entered the zone, the agreed facts indicated that they did wish to enter the zone, that if one got over the standing issue we say that would have been a substantial ingredient going both to the issue of standing for mandamus and also to the issue of unlawful conduct with respect to the elements of detention.

HAYNE J: Let it be assumed that those standing issues were resolved in your favour, what is the order that, ultimately, you would seek to have a court ‑ whether this Court or a federal court ‑ then make?

MR GRIFFITH: What we would say is there should, at the very least, be a declaration that Mr Farmer and other officers of the Commonwealth were, in a circumstance to the rescuees obliged when they were standing off‑shore Christmas Island, to detain them and bring them into the migration zone is as ‑ ‑ ‑

GUMMOW J: This is not a very useful declaration, I think, without some remedy. It would not be a very useful exercise in the declaration though, without a remedy as well.

MR GRIFFITH: Your Honour, there an allied application for mandamus with respect to that. We say there should be an order made by this Court which is equivalent to providing a remedy.

GUMMOW J: An order to do what? That is what we want to know.

GAUDRON J: That it what we would like hear. Let us assume you won on all these special leave matters. At the end of the day, what order would be made?

MR GRIFFITH: We say there is an alternative order, one which would seem to be inappropriate in the circumstances but would be literally applicable, and that is to order that the persons who were on the Tampa, four miles off‑shore ‑ ‑ ‑

GUMMOW J: Order whom?

MR GRIFFITH: Order the Commonwealth, your Honour, because we say they have control. The Commonwealth should be ordered to put those persons in the position they would have been and to apply the Australian law, under the Migration Act, to them.

GAUDRON J: You want them back on the Tampa? I am asking you the question seriously. We need to know what that order is.

MR GRIFFITH: Of course, your Honour, of course. Justice North dealt with this and obviously were they still on the Tampa the order would be that the officers of the department apply section 189(2) to them and detain them and bring them into the migration zone. That would then engage section 36 and the other provisions of the Act to enable them, as is admitted on the statement of facts, that persons desirous to enter Australia for the purpose of applying for a protection visa, to exercise their rights which they are given under the Act.

As Justice French pointed out, the Act itself is basically one which provides privileges but it does provide one particular right, that is the right of persons to apply, whether or not they are in the migration zone, for a protection visa. We say that an order should be made to enable that. It could be in two forms. One, in a somewhat artificial way, could provide that they be brought in a boat four miles off an Australian port and that would be sufficient to provide the remedy, because what we say would follow from a declaration that section 139(2)(b), was engaged, that there be an obligation upon departmental officers to detain them and bring them onshore and the Act would then take its course.

Justice North, obviously, was aware of that situation and he adopted the sensible approach of saying, that is the equivalent of saying they should be put in the position of being in Australia and dealt with according to law.

HAYNE J: The facts have moved on from the facts that existed when Justice North determined them. What I want to know is what precise form of order do you say would be made, whether in this Court or on remitter to the Federal Court, were you to succeed in your appeal?

MR GRIFFITH: What we say is there should be a declaration that the third respondent and officers of the Commonwealth were under an obligation pursuant to section 189(2) to detain the persons on the Tampa within Australia - that is within the definition of section 38B(2)(a) of the Acts Interpretation Act and also the specific definitions of the Migration Act - they were in Australia at the time because they were within the 12 mile limit, we say that the order should be that they should be returned to a position at least within Australia, four miles off ‑ ‑ ‑

HAYNE J: Dr Griffith, I do not want there to be some misunderstanding. I want you to articulate, with clarity and precision, what is the order which you say should be made by this Court, or the Federal Court on remitter, were you to succeed.

MR GRIFFITH: We say an order should be made, firstly by way of declaration both as to the issue of unlawful detention and unlawful expulsion from Australia ‑ ‑ ‑

GAUDRON J: This is a declaration with respect to past conduct?

MR GRIFFITH: Yes, your Honour.

GAUDRON J: I think we have had something to say about ‑ ‑ ‑

MR GRIFFITH: Your Honour, there is corollary relief coming from that. We say that they were entitled not to be detained, entitled not to be expelled from Australia and detained in a third country. There should be declarations vindicating that as unlawful conduct. Secondly, it should be declared that pursuant to section 189(2), the third respondent and other officers of the Commonwealth were under a duty to detain the rescuees when four miles off‑shore on the Tampa off Christmas Island, and then there should be an order by way of mandamus that the rescuees be brought by the Commonwealth either to a point four miles off‑shore Australia - and we say that is a sensible course adopted by Justice North - or they be brought within a migration zone in Australia.

GUMMOW J: That is not you seek, you see, in your draft notice of appeal. The draft notice of appeal seeks two things. One, a restoration of the orders made by Justice North, which plainly no longer speak to the situation, and another round of orders to be made on remitter by Justice North which are not really defined. Again, I am referring to the original application, which again does not speak.

MR GRIFFITH: This is a matter of things have developed since we drafted the notice of appeal and it is a question of appropriately crafting the order to deal with the situation of reinstating the result. It is a draft notice of appeal.

GAUDRON J: How do we get a mandamus to the Commonwealth as distinct from an officer of the Commonwealth?

MR GRIFFITH: Your Honour, an officer of the Commonwealth is sufficient.

GAUDRON J: Who?

MR GRIFFITH: The third respondent, your Honour.

GAUDRON J: The third respondent, to what? To bring these people ‑ ‑ ‑

GUMMOW J: What, the third respondent being the public servant?

MR GRIFFITH: Yes, your Honour.

GAUDRON J: He is to bring them to Australia.

MR GRIFFITH: Your Honour, the second respondent, also, would be incorporated in that.

GAUDRON J: The order you say that should be made is that they bring them to Australia?

MR GRIFFITH: Yes, your Honour.

GAUDRON J: Pursuant to what duty? As I understand it, mandamus only goes to compel a duty.

MR GRIFFITH: The duty was, your Honour ‑ ‑ ‑

GAUDRON J: No, no, do not tell me what the duty was. One has to look to the present, it seems to me, if mandamus is to go.

MR GRIFFITH: That is why this issue of whether or not they are presently under the control the Australia, is relevant. We say that ‑ ‑ ‑

GAUDRON J: It may be, but where is the duty now to be found? In what provisions of the Migration Act or other legislation?

MR GRIFFITH: Your Honour, the duty is by reference to the circumstances which existed at the time the matter was considered by his Honour Justice North and we say that is the relevant time to consider whether or not the order made by Justice North is one which should be maintained as correct or set aside, as it was by a majority of the Full Court, because they said his Honour was in error in regarding the Migration Act as applying without the possibility of a concurrent application of prerogative power.

GAUDRON J: We have asked you to address this argument on the assumption that you were to win all the other arguments, including wrongful detention at the time the boat was in the territorial waters. It seems to me one has still to find a current duty before mandamus will issue.

MR GRIFFITH: Our submission is that it is a question to be determined by reference to whether or not Justice North was right in his result. If he was ‑ ‑ ‑

HAYNE J: Could I understand what you say his Honour’s order was. Was his Honour’s order as has been, I think, characterised by the Full Court, an order in the nature of habeas?

MR GRIFFITH: It was, your Honour, but his Honour did not consider the mandamus issue because of the standing point.

HAYNE J: I understand that but his Honour’s order was founded, was it not, upon the proposition that there was, then, an unlawful detention that should be brought to an end?

MR GRIFFITH: It was, but out point on appeal is to say that his Honour was correct in that and, further, his Honour should have made appropriate orders by reference to the situation as it was at the time of the trial, your Honour, to deal with our second argument based on the enforcement, we say, of the mandatory duty under section 189(2). His Honour did not consider that, we say, because of this issue of standing which has been left to be resolved through the Full Court hearing in this Court. If we are right in that submission, it would follow that it is appropriate for the question of the appropriate orders to reflect, also, our success on that ground.

HAYNE J: At the moment it seems to me that central to your success, if you were to get all of the steps in your argument accepted, is a proposition that there should now be either a habeas or an order in the nature of habeas, now.

GAUDRON J: Or a mandamus.

HAYNE J: Or a mandamus of the kind you have described, but am I misunderstanding the way in which your argument runs?

MR GRIFFITH: No, your Honour, that is a primary way to put it. We put it alternatively that we say we approached Justice North with a claim, as long as standing issues are put on one side, for appropriate declarations with consequential relief to establish that the conduct of detention and expulsion was, for various reasons, unlawful. Also, that contrary to section 189(2), in particular, the third respondent and other officers of the Commonwealth failed to exercise their statutory obligation and duty to detain these people and bring them within the migration zone to be dealt with pursuant to the various provisions of the Act, including the operation of section 36 and implementation of our obligations under the Refugee Convention.

We say part of our original application was to obtain appropriate declarations as to the unlawfulness of that conduct, the detention, and then the expulsion, and as to the unlawfulness of the conduct for the departmental officers to withdraw from the scene so that by way of executive operation the mandatory provisions of the Migration Act were evaded and did not attach. We say, that on any view, we are entitled to declarations that that conduct was both unlawful, so far as the detention and expulsion was concerned, and also ‑ ‑ ‑

GAUDRON J: You would not get a simple, bare declaration with respect to past conduct, would you?

MR GRIFFITH: Why not, your Honour? That is when you usually get it?

GAUDRON J: Because of the nature of judicial power. I think there are a few words about it in Truth About Motorways.

MR GRIFFITH: Your Honours, could I deal with it and say it is not a bare declaration because subject to any ‑ ‑ ‑

GUMMOW J: It sounds like it. It sounds like a declaration born of the realisation that there is no other substantive relief possible.

MR GRIFFITH: Your Honour, subject to the issue of the intervening Act, we would say the effect of a declaration would be give the persons affected, at the very least, a claim for unlawful imprisonment.

GAUDRON J: They do not need a declaration to maintain a claim for unlawful imprisonment and, in any event, the declaration would not found the claim because they are not parties to these proceedings.

MR GRIFFITH: Our underlying point, your Honours, is that a claim where a government has acted, we say, unlawfully, pursuant to an alleged prerogative power which, apparently, has not sought to be exercised anywhere in the common law since at least the year of the revolution, is one where the court should be alive to ensure that there are appropriate orders made by this Court ‑ ‑ ‑

GAUDRON J: We are asking you what they are.

MR GRIFFITH: We say that it is quite appropriate to make declarations, both supplementary or alternative to orders in the way of habeas corpus, with respect to the matters so far as was framed and dealt with by both the lower courts dealing with the issue of application by way of habeas corpus ‑ ‑ ‑

HAYNE J: Do you say that habeas would now go?

MR GRIFFITH: Your Honour, we say that it could go, yes, but not necessarily for our argument.

HAYNE J: Even though they are beyond the territorial jurisdiction. I mean, habeas is a writ.

MR GRIFFITH: Your Honour, there have been orders for habeas corpus in England to bring someone back from Ireland.

GAUDRON J: Yes.

HAYNE J: Perhaps you could take me to those cases, Dr Griffith, because I could not find one. Now, you say there are cases. If you say there are cases, you take me to them.

GAUDRON J: And tell me, did the writ run at a time when Ireland was part of the United Kingdom?

HAYNE J: Just so. O’Brien’s Case, the like.

MR GRIFFITH: Yes. Your Honours, we say that there is nothing to limit ‑ ‑ ‑

GAUDRON J: Well, what limits it is, as Justice Hayne has been pointing out, is that our writ does not run outside Australia. That is the problem.

MR GRIFFITH: Your Honour, it runs to the Australian Government. That is all we need, with respect.

GAUDRON J: Well, it may run to the Australian Government, but it will run, either if you looking in terms of mandamus, to perform a duty, one would have thought, a present duty, or it would run if in some way you could say, perhaps, that these people were still being detained by the Commonwealth, but we are dealing with foreign countries now.

MR GRIFFITH: Your Honour, we say on the assumption that the conduct was, in fact, unlawful and the assumption we have standing with respect to our claim for mandamus, our submission is that the issue of unlawfulness and the issue of the expression by orders of this Court that what was done was both contrary to law with respect to the issue of the purported exercise of prerogative power and contrary to the direct provisions of the Migration Act which applied to the officers of the Commonwealth.

GAUDRON J: It would just be to play political games, would it not?

MR GRIFFITH: No, it would not, not at all, your Honour.

GAUDRON J: Because it would do nothing. As you must concede, it would not even provide a foundation for an action for unlawful arrest or false imprisonment.

MR GRIFFITH: Your Honours, what we say is that the Court should vindicate the appropriate principles.

GAUDRON J: We vindicate principles by remedies.

MR GRIFFITH: Your Honour, a declaration would establish ‑ ‑ ‑

GUMMOW J: I think you are going round in circles.

MR GRIFFITH: Your Honours, what we say is that, because of supervening circumstances where the applicant was not in a position to apply for an injunction, indeed, would not have got one but could not offer any undertaking for it, the position cannot be that the Commonwealth can evade the consequences of the court’s declaring that their conduct is unlawful by, in the intervening period pending appeal to this Court, or application for special leave, we say acting wrongfully on this assumption, taking persons out of the jurisdiction.

GAUDRON J: But you could have ‑ ‑ ‑

MR GRIFFITH: We could not, your Honour.

GAUDRON J: Well, I am not too sure that that is right, is it?

MR GRIFFITH: Well, your Honour, firstly, it would have been inhumane to leave the persons on the Tampa. That is the reason why there is a practical agreement. Secondly, your Honours, we were threatened on an almost hourly basis, at least half daily basis with ‑ ‑ ‑

GAUDRON J: But, for example – let me put to you another proposition. You went to the Federal Court.

MR GRIFFITH: Yes, indeed, your Honour.

GAUDRON J: You did not have to go to the Federal Court on your argument. Your argument was not one that required you to work through the processes of the Federal Court, was it?

MR GRIFFITH: We could have come here, your Honour.

GAUDRON J: Yes.

MR GRIFFITH: Well, we thought about that, your Honour.

GAUDRON J: I know, so when you are talking about your not having been able to do things, and things happened because of the humanity of the situation, you chose to fight this case in a particular forum in a particular way.

MR GRIFFITH: One has to be practical, your Honour. We cannot expect a Justice of this Court to stop everything for seven days and have a trial on an issue such as this sort. That is what Federal Court judges are for, with respect. They have jurisdiction. It is for this Court to exercise a supervisory jurisdiction. Your Honours, I have gone to last light.

GAUDRON J: Do you need more time?

MR GRIFFITH: Your Honours, I have not advanced on the argument of why we say that the points of special leave were obvious, but ‑ ‑ ‑

GUMMOW J: Well, what do you say about the invalidity of the supervening legislation – sections 6 and 7, in particular?

MR GRIFFITH: Your Honour, we have exhaustively stated in our reply our approach on those issues and we say, your Honours, that at the very least, those issues give rise to a point appropriate for special leave in itself that cannot be determined at the level of 30 minutes, 35 minutes today, even on that particular issue. There is enough there, your Honours, to consider the several issues which we ventilate where we have joined issue.

GUMMOW J: So, what you are, in effect, inviting us to do, I suppose, on that issue, is to grant special leave in respect of so much of the application as raises the question whether if an appeal were filed it would be incompetent because of these ‑ ‑ ‑

MR GRIFFITH: My learned friend has that as his alternative position, your Honour. We were hoping to do better than that and be able to get to the essential issues, which are whether or not the prerogative power supported this and whether, if there were a prerogative power, that was something which was displaced by the Migration Act. That is the underlying issue, but were it to be done in two steps, your Honour, we are quite prepared to deal with the issue of whether or not we are stopped by the Act.

GUMMOW J: Yes. I cannot help but feel this Act will pop up again in some litigation of some sort.

MR GRIFFITH: One would hope not, your Honour. It is an exceptional Act. The first shot it was attempted to pass with Parliament sitting as long as it could take, your Honour, in a weekend. It is an extraordinary legislation, both as to section 6 and then also section 7.

GUMMOW J: Quite. I understand what you are saying about that.

MR GRIFFITH: Your Honour, but why should it not be considered now when there are people who were directly affected by it, who were told – on its face, your Honour, we should not even be applying for special leave because that is continuation of the proceeding, we would say.

GUMMOW J: We are not sure about that.

MR GRIFFITH: Well, that is one of the points we could argue as well, your Honours.

GUMMOW J: Special leave is an anterior step.

MR GRIFFITH: Your Honour, it still comes within the definition in Black of “proceeding”, but that is an issue for discussion. It is a curial. Justice Gillard has given a broad view of any step taken with respect to a court ‑ ‑ ‑

GUMMOW J: Yes, but he was not worried about the special leave matters that you are.

MR GRIFFITH: Of course he was not, your Honour, but, your Honour, there is a good 1½ day case on section 6. There is another one on section 7.

GUMMOW J: Yes.

MR GRIFFITH: And we say, your Honour, this is an appropriate vehicle because it was passed with the intention of Parliament directly to remove our capacity to make this application and, your Honour, having had the goalpost move round to the sidelines after we file, we then get an application, “And also you should pay the costs. We have altered the rules in midstream and you should pay the costs because we have done it”, and you do not sit down and just accept – it is not the umpire’s decision, your Honour. It is the other side’s decision.

Your Honour, we submit that aggregates the issues of public importance that are involved but, your Honour, on the basic issues on which the Court has pursued me, our submission is that these matters, as they apply to these persons, are ones where the Court could and should provide a remedy, at least to the point of declarations.

GUMMOW J: Maybe the Solicitor-General’s legislation has achieved the result that no costs order could be made against you today if you lose.

MR GRIFFITH: Your Honour, I was intending, win or lose, to apply for costs.

HAYNE J: He was.

GUMMOW J: He was.

MR GRIFFITH: We were too, your Honour, but we have already made that submission in the Federal Court that have reserved for two months on it and my learned friend has put a five‑page submission in on that issue, but it shows the absurdity of this legislation, notwithstanding the paean of praise in the ultimate paragraph of Justice French’s judgment with respect to the appropriateness of this application.

Nonetheless, your Honours, we have been pursued around the blocks on costs on all levels, but, in our submission, your Honour, this is not a case about costs. It is a case about issues of fundamental importance affecting the rights of persons, we say, provided by the Migration Act to be in Australia and apply pursuant to section 36 to take the benefit of the Convention, albeit with the derogation that they remain in detention if they do so.

Our submission is, your Honours, that there is no doubt that the Act intends to enact a comprehensive scheme to ensure that no person would be admitted to Australia without a visa – just 60 seconds, your Honours – no person would be admitted to Australia without a visa and if they are in Australia they will be detained until either they voluntarily decide to go under section 196, until they are deported or until they obtain a visa, and that applies also for protection visas.

Our submission is, your Honours, that it cannot be supposed that such a comprehensive scheme is facultative, as suggested by Justice French in his judgment. It must be a comprehensive scheme, as the Chief Justice

determined, to ensure that, on the basis of those persons who come here, however they come, that they will be detained until they voluntarily go, are deported or obtain a visa and in that structure, your Honour, we say there is no capacity for there to be a co‑terminus power of choice for summary removal at the border, whether it be by air or by sea. If the Court pleases.

GAUDRON J: Yes, thank you, Dr Griffith. Yes, Mr Basten.

MR BASTEN: Your Honours, may I just briefly deal with three points, because as your Honour the presiding Judge noted, our interest is peripheral, in a sense, although questions of detention in Australia trigger powers under our Act, which is a matter of concern to us.

Firstly, your Honours, in relation to the primary argument, we have set out in some detail in our written submissions at pages 182 and following an analysis of the statutory scheme which, with respect, supports the summary submission Dr Griffith just made to your Honour. We say, in principle, that the approach adopted by the majority in the Full Court and, indeed, to some extent, I might say, by the Chief Justice, was in error in that it sought to find within this legislative scheme some express or implied intention to abrogate the executive power.

We put it slightly differently. We say there is a scheme here which conditions the exercise of executive power in this regard and it was not appropriate or lawful for the Commonwealth to seek to avoid that scheme by certain stratagems, which I will not stay to deal with now.

Your Honours, in relation to the validation legislation, we have also made submissions, in substance, at page 187 in paragraphs 3.16 to 3.17. We say in relation to section 7 that it purports to preclude the exercise of federal judicial power in a way which is inconsistent with Liyanage and Chu and, in relation to section 6, we say that, in substance, that section has the same effect because, although it seeks in terms to validate that which was previously invalid, it does so without defining any legal standard, so that it is, in substance, no more than a backdoor attempt to achieve the same result as section 7 and we suggest suffers from the same legal deficiency.

GUMMOW J: Now, just explain that again, Mr Basten. What do you say about section 6?

MR BASTEN: In relation to section 6, your Honour, the argument is that – perhaps I should take your Honours to it. It is in the respondent’s bundle of authorities at page – well, it is behind the first tab and it is the third page of the Act.

GUMMOW J: Yes.

MR BASTEN: What they have not put in, your Honour, and perhaps we should have done it for greater clarity, is that this legislation did two things. One was to prescribe a set of powers, functions and conditions in relation to future conduct of this kind. The second was in section 6, not to say that compliance with those standards would be lawful, but simply to say:

All action to which this Part applies is taken for all purposes to have been lawful when it occurred.

GUMMOW J: Yes.

MR BASTEN: Without reference to any standard, so that ‑ ‑ ‑

GAUDRON J: Is that Parliament speaking to itself? I mean, on one view, it does not follow the standard form. It does not say “is to be taken for all purposes”.

MR BASTEN: No.

GAUDRON J: It does not seem to be a command to anyone. We are used to laws speaking in terms of command rather than ‑ ‑ ‑

MR BASTEN: No, it seeks to remove retrospectively any law, like the law of murder, which might otherwise have precluded certain ‑ ‑ ‑

GAUDRON J: Well, I am not too sure it is not just Parliament providing the foundation for what it has subsequently enacted rather than its being a command to the courts.

MR BASTEN: Well, as we would understand it, your Honour – when your Honour says “subsequently enacted” the new regime, that does not apply to this conduct, because that only has future effect, and this section was clearly intended to apply retrospectively to this conduct which, of course, happened before – yes, all of which happened before the enactment of the legislation. So, there were two distinct regimes which were enacted at the same time, one looking back, the other looking forward. But, in any event, your Honour, that is our complaint about that in so far as the Validation Act seeks to do something about the past.

I should, perhaps, just say two words, if I may, about the suggestion that what happened in this case involved a device to avoid the operation of the legislation. Your Honours have been taken, I think, to sections 189(1) and (2) of the legislation. They provide powers whereby an officer may detain, indeed, must detain, either a person in the migration zone or someone seeking to enter the migration zone if reasonably suspected ‑ ‑ ‑

GUMMOW J: Well, the mischief 189 was trying to deal with was people who were lurking about who might sneak across – sneak in.

MR BASTEN: Yes. Well, that being at sea, presumably, since we do not have a land border.

GUMMOW J: Yes.

MR BASTEN: That is so, that is so. As your Honours are aware, that did not operate in this case because the term “officer”, whoever may have detained or may not have detained these people, if there was detention, it was not by an officer within the definition in section 5 of the term “officer” and, of course, that was deliberately done. But if your Honours go to section 245F, there are further powers contained there, particularly in paragraphs (1) and (9), in relation to any:

ship that is outside the territorial sea of a foreign country –

So that would include a ship in our territorial seas. But that section, which also provides for detention of people on board the ship, is conditional upon there being “a request” according to 245F(1)(a), “under section 245B”, and if your Honours go to 245A, there is a definition of “Commonwealth ship” about halfway through 245A, which means:

a ship that is in the service of the Commonwealth ‑ ‑ ‑

GAUDRON J: We do not have that.

MR BASTEN: I am so sorry, your Honour.

GUMMOW J: This is a new piece of it.

MR BASTEN: Could I provide copies? I am so sorry.

GUMMOW J: It is in the latest reprint, I think.

GAUDRON J: Yes, we have it.

MR BASTEN: It is in the latest. I have copies as at the date of the judgment in the Full Court.

GAUDRON J: Well, it has got heavier since I last looked.

MR BASTEN: And, no doubt, will continue to get heavier, your Honour. If your Honours do have that, 245A defines “Commonwealth ship” to mean:

a ship that is in the service of the Commonwealth and flying the ensign –

and if your Honours go down to 245B it provides for:

the commander of a Commonwealth ship . . . to request the master of a ship –

to do things and 245B(2) is probably the relevant provision.

GUMMOW J: This is all speaking to the future?

MR BASTEN: No, no. I am sorry, this is all in force at the ‑ ‑ ‑

GUMMOW J: Section 245F is.

MR BASTEN: This is in force at the time of this conduct. I know it is not in the reprint 7, but it came into force prior to the conduct in question.

GUMMOW J: What date did it come into force?

MR BASTEN: 1999. I cannot tell your Honour the exact date, but perhaps nine, 10 months before. If your Honours go to page 49 of the application book, Justice French sets out an argument as to why section 245F(9), at the bottom of page 48, perhaps, was not engaged and there are six dot points at page 49. The second dot point is that:

There was no request to board the MV Tampa –

or none was proved, as he found at the bottom of the page, and the third dot point noted by his Honour was not only that “There was no request”, but that the Commonwealth SAS vehicle craft were not “flying the ensign” and, therefore, were not Commonwealth ships. So, when I say it is a device, it is, in effect, a circumstance where the Commonwealth has done something which one would think would not have been intended by the legislation which allows for Commonwealth ships to intercept foreign vessels and chase them into the high seas, in fact, if one goes to 245C, and, as we would understand it, simply to avoid incurring obligations under this legislation.

Now, supposing that that is all made out and that there is a difficulty with the way that the majority in the Full Court approached the question of abrogation of what might otherwise have been a prerogative power, the third question I simply wanted to address very briefly ‑ ‑ ‑

GAUDRON J: I have lost the thread of this, I am sorry, Mr Basten. These issues arise on Mr Vadarlis’ application for declarations and relief under 75(v) and not on his application for habeas corpus, is that ‑ ‑ ‑

MR BASTEN: No, they arise in relation to his application for habeas corpus – I am sorry, the 75(v) relief went to the validity of the new legislation, I think. Is that what your Honour was – I may have missed the ‑ ‑ ‑

GAUDRON J: No, no. If one goes back to the proceedings before Justice North, these issues arose in what way?

MR BASTEN: Yes, they arise in relation to the underlying question as to whether or not the detention of the rescuees was lawful.

GUMMOW J: So, it is habeas corpus, in other words. It could only have been that before Justice North.

MR BASTEN: Well, it could only have been for the reason my friend notes ‑ ‑ ‑

GUMMOW J: Yes, that is right.

MR BASTEN: ‑ ‑ ‑ that the standing issue would have precluded anything in the form of mandamus.

GAUDRON J: But I am reading briefly up the top of page 49 and it seems to be that they were the answers proposed by the Commonwealth parties to Mr Vadarlis’ claim for mandamus or injunction independently of habeas.

MR BASTEN: Yes. The point we seek to make in the written submissions, your Honour, is that an understanding of the scheme of the legislation including these provisions is necessary in order to understand why it is that we say that there is no room for the exercise of executive power in the way that the Commonwealth purports to have acted. It is perhaps a slightly different purpose from that to which his Honour was directed and I apologise. I did not make that clear.

GAUDRON J: Yes.

MR BASTEN: Your Honours, the other point which arises, of course, in that context is whether there is relief presently available which would be of use to Mr Vadarlis in relation to these proceedings. Two points that we seek to make are these ‑ ‑ ‑

GAUDRON J: When you say “of use to Mr Vadarlis”, there may be a broader issue than that, whether a public law remedy will go may be the better question and that may have its own difficulties.

MR BASTEN: Yes, and maybe those difficulties are not fully encompassed within the concept of standing in this context, because the possibility of a challenge on a constitutional basis which, I think, was discussed in Davis v Commonwealth 166 CLR, suggests that it really may not be a question of standing but of, perhaps, judicial power.

But on the assumption that it was possible, in an appropriate case, to obtain relief, there are obviously two further conditions which would need to be satisfied, as your Honours have noted. The first is that there is a present obligation to be the subject of relief and, secondly, that there is an order which could give effect to that obligation. The proposition that we would seek to put is in two parts. In relation to the obligation, if the persons presently in detention ‑ ‑ ‑

GAUDRON J: Well, we do not know that. That is what we do not know.

MR BASTEN: May I turn that around? If there are persons – and I am going to accept some factual hypotheticals, as it were, in putting this proposition and there may be problems in each of them – presently in detention and subject to continuing control of Commonwealth officers ‑ ‑ ‑

GUMMOW J: What do you mean by “control”?

MR BASTEN: Can I come back to that, your Honour?

GUMMOW J: Yes.

MR BASTEN: And to the extent that their original detention by Commonwealth officers was unlawful, that detention, the current detention, remains unlawful notwithstanding that the physical location has changed. If that proposition can be made good, then the second question is whether there can be an order which would be effective in respect of that detention, given that it is now outside Australia, and ‑ ‑ ‑

GUMMOW J: You have to say, “notwithstanding their physical location is now outside Australia”, have you not, in proposition one?

MR BASTEN: That is correct. Yes, your Honour, and the order which must be available in those circumstances is an order directed to the Commonwealth to return to Australia those of the persons rescued who remain under control of officers of the Commonwealth and who agree to being removed from their present place of custody.

GAUDRON J: We do not know if there are any such persons.

MR BASTEN: We do not know for sure.

GAUDRON J: And this Court would be in no position to find out.

HAYNE J: How would you try the issue?

GAUDRON J: Given Mickelberg, we could not try it on an appeal.

MR BASTEN: I understand there are factual questions which would arise.

GUMMOW J: What you are really saying, Mr Basten, is there might be another case at another time between other parties in which these would be a couple of good propositions.

MR BASTEN: I was seeking to make ‑ ‑ ‑

GUMMOW J: But they are being tacked on as an extra wheel to another cart at the moment.

MR BASTEN: I understand what your Honour is putting to me, but just in answer to your Honour Justice Gaudron, I suppose that the proposition that the applicant needs to establish in this case is that the circumstances are those which existed at the time of judgment of the Full Court, unless evidence has been adduced before this Court to demonstrate that the matter is now hypothetical or moot and evidence would be admissible for that purpose, as we would understand it, and Dignan’s Case, I think is authority for that. But the evidence which has presently been tendered by the Commonwealth does not go so far, and that really is the way, I think, we understand the matter to be put, namely that it is upon the Commonwealth who has access to this information to persuade your Honours that the present case is moot.

GAUDRON J: Well, normally, in a special leave application, the onus is on the applicant to establish all those matters that would persuade us that the matter was a suitable vehicle for the grant of special leave.

MR BASTEN: In a sense, I suppose, the question of vehicle or no depends upon an argument that there had been a change in facts.

GAUDRON J: And that is what, in essence, the question of relief is all about, is it not, whether this is a suitable vehicle?

MR BASTEN: Yes, but I suppose when the facts are particularly within the knowledge of one party and it does not seek to establish the contrary, that the Court would be content to ‑ ‑ ‑

GAUDRON J: What we do know is that these people are now in other countries, and one presumes – and I would think it would be illogical not to presume – that if they are in detention in those other countries, that their detention is subject to and regulated by the laws of those countries, not ours.

GUMMOW J: It could only be if they were under control of officers of the Commonwealth that there was some derogation of sovereignty of the other country.

MR BASTEN: That may be so and that ‑ ‑ ‑

GUMMOW J: With the assent of that country.

MR BASTEN: Yes.

GAUDRON J: Otherwise they would not be officers of the Commonwealth in that role.

MR BASTEN: Yes. Well, we know from the first affidavit that there are Commonwealth officers involved in the situation in Nauru.

GAUDRON J: But one presumes as guests of the Nauru Government and not as officers of the Commonwealth.

MR BASTEN: Yes. Well, it is not suggested that they are that, your Honour.

GAUDRON J: But how could they be officers of the Commonwealth whilst subject to the laws of Nauru? They would be no more, it seems to me, officers of the Commonwealth while performing functions in Nauru with the assent of the Nauru Government unless Nauru had somehow surrendered its territory to us, than they would be when playing golf on a weekend.

MR BASTEN: Yes. I do not think they are there just to play golf, your Honour, but whether they are in the ‑ ‑ ‑

GAUDRON J: No, no. I know that, but I mean officer of the Commonwealth – you are not an officer of the Commonwealth 24 hours of the day, as it were.

MR BASTEN: No, no. Well, I understand that proposition, your Honour, but the affidavit ‑ ‑ ‑

GUMMOW J: It arises in particular with defence officers, you will remember.

MR BASTEN: Yes, indeed.

GUMMOW J: Endless debates about that.

MR BASTEN: Yes, indeed.

GUMMOW J: It is the same point, really.

MR BASTEN: Yes, yes. But, your Honours, at page 189 at the bottom of the page, these officers are there “to oversee” certain “arrangements” and although they are not apparently “processing” these “asylum claims”, the officers obviously have a role in controlling what is happening to them and some of them will be ‑ ‑ ‑

HAYNE J: For us to give relief would we not have to try that issue of fact? And if we cannot determine it without trying the issue of fact about the nature of detention or no under the present circumstances, how do we do that on an appeal?

MR BASTEN: We say, with respect, that your Honours would not have to try that issue and that, assuming in my favour for the moment, that there is no mootness issue which would preclude a grant of special leave on the appeal, your Honours would determine the legal questions as they arose in the Full Court and if this question then needed to be answered, it would have to be remitted to the Full Court for there to be a further hearing of the matter.

HAYNE J: Which brings us back to where we began with Dr Griffith and what is the order that is made?

MR BASTEN: Well, it may be that one could not make final orders, except in that form which leaves open a question as to whether there is a change in circumstances which would result in no people being within the control of the Commonwealth.

GAUDRON J: That looks very hypothetical, does it not?

MR BASTEN: Well, I am not sure that is hypothetical in a tort as a sort of Saffron ‑ ‑ ‑

GUMMOW J: Her Honour is still meeting you, Mr Basten.

MR BASTEN: Those are my submissions.

GAUDRON J: Yes, thank you. Yes, Mr Solicitor.

MR BENNETT: May it please the Court. I propose to deal with mootness, then standing, then the Border Protection legislation and then some other miscellaneous matters. In relation to mootness, your Honours, our primary submission is that habeas corpus, or an order in the nature of habeas corpus, depends upon the person being in custody at the time the order is made. It is to achieve a release from a particular custody. Once that custody is terminated, there is no longer scope for the order ‑ ‑ ‑

GUMMOW J: It need not be governmental custody, need it?

MR BENNETT: No, it need not be governmental custody, your Honour. But once there is a change, even a change in the juridical basis of custody under the same captor, a fortiori a change of captor or change of country, then ‑ ‑ ‑

HAYNE J: I do not know about the first part of that proposition, Mr Solicitor. After all, habeas is a writ directed to a named individual to justify his or her detention of a named body and to produce the body. I do not know that change in juridical basis of detention is an answer to the issue of a writ. Change of captor I can understand.

MR BENNETT: There is a decision of Justice Kirby to that effect, your Honour, which is Re Stanbridge’s Application.

HAYNE J: I understand that.

MR BENNETT: That was a case where a person was committed to prison by a Family Court judge for contempt. Habeas was brought to this Court. Before the matter was heard, he was released by effluxion of time from that custody and imprisoned under another contempt order of a Family Court judge by the same gaoler and his Honour held that one could not proceed with the first habeas corpus application where the juridical nature had changed and, in fact, there had not been a change of custody. There had not been a chain of custody.

HAYNE J: There had been a discharge followed by retaking, had there not?

MR BENNETT: There had been a discharge, though, your Honour, yes.

HAYNE J: Yes, just so.

MR BENNETT: Yes. There was also a New Zealand case, your Honour, called Hazlett v Buttimore, which was referred to, where the New Zealand court refused leave to appeal to the Privy Council in relation to a person who was in custody on the basis that, by the time the Privy Council made its order, he would no longer be in custody because the sentence would have expired by effluxion of time. Again, the court took the view that it would not grant leave where the order on appeal would be futile, the person having been released.

So, your Honour, we would submit it is clear law that habeas requires that the person be in relevant custody at the time and, on any view of it, whatever the situation on Nauru, which, of course, might have to be investigated by a trial of fact, it is a different situation to that which existed on the Tampa or the Manoora.

This Court would be being asked to decide something only relevant to a past situation, not something relevant to a present situation and that, in my respectful submission, is something which this Court would not grant leave to do.

GAUDRON J: Why not?

MR BENNETT: Your Honour, because the ultimate order which could be made would not be an order – I am sorry, can I rephrase that? There would not ultimately be an order of any kind other than a declaration.

GAUDRON J: With respect to past conduct?

MR BENNETT: Yes, your Honour.

GAUDRON J: Without any legal consequences attaching, that is to say, because one is dealing with a public remedy and not individual rights, in a sense, there would be no legal consequences attaching to a declaration with respect to past conduct.

MR BENNETT: Precisely, your Honour, precisely.

HAYNE J: And why would declaration not go in those circumstances?

MR BENNETT: Your Honour, because it would be a mere declaration having no other consequence.

HAYNE J: But refused as a matter of discretion, refused as a matter of power, refused for want of matter? What is the basis of the conclusion which you assert that declaration would not go?

MR BENNETT: Your Honour, it would be, ultimately, a matter of discretion that the Court would not make a declaration.

GAUDRON J: I am not too sure about that.

MR BENNETT: There is this aspect – but can I just add to that, your Honour; I had not completed the answer. There is also a basis in relation to want of matter.

GUMMOW J: That is right. So, what you are saying might be true in a general law court but here, we have further aspects, namely the “matter” question.

MR BENNETT: Yes, precisely. So, for those reasons, your Honour, we submit that the issue is, for practical purposes, a moot issue. Can I just say a little about standing and the problems there? This is not a convenient vehicle for a challenge to Australian Conservation Foundation. My learned friend says there is a whole wind of change because of the Bateman’s Bay Case but, your Honour, even if that be so, which is questionable, even if that be so ‑ ‑ ‑

GUMMOW J: Well, what is the authority that Australian Conservation Foundation stands for? What is the proposition it establishes that you say has to be overthrown by a great assault?

MR BENNETT: It stands for the proposition, your Honour, that the nature of the interest a person must have must not be a mere interest as a person concerned for someone else’s welfare and what my learned friend seeks to get from Bateman’s Bay is to say, “But a commercial interest can be sufficient”. In that case there was an application by a rival trader to prevent a company trading ultra vires in competition with it. But here, what is said is, “I am a solicitor. I would like to give pro bono services to these people. Therefore, I have an interest to obtain an order for habeas corpus to get them into Australia and thence into migration detention so that I can offer my services”.

HAYNE J: I think it is a bit more than that, Mr Solicitor.

GAUDRON J: Yes, there is no issue about standing for habeas corpus, is there?

MR BENNETT: Not for habeas corpus. No, I am sorry.

GAUDRON J: I am sorry, mandamus. You did say habeas corpus, I thought.

MR BENNETT: I am sorry, your Honour. If I did, it was a slip of the tongue. No, no, there is no issue of standing about habeas corpus.

GAUDRON J: Then why should there be any issue about standing for mandamus to get, in substance, the same relief? It seems to me that it would be entirely anomalous to say standing for habeas corpus, but not standing for mandamus, although it is doing the same job in the particular circumstances.

MR BENNETT: Because, your Honour, the rule in relation to standing for habeas corpus is an anomalous rule which comes from the nature of habeas corpus. It does not apply to normal administrative law remedies.

GAUDRON J: Well now, let us assume that mandamus is there to compel a duty and let us say there were – I mean I think there might be some factual problems in the way of asserting a duty under, I think – is it section 189?

MR BENNETT: Section 189, yes, your Honour.

GAUDRON J: But let us assume there were a duty to bring the people ashore. Why would you say automatically mandamus, therefore no standing, rather than look to the particular duty that is in issue and ask whether the duty is such that there is standing?

MR BENNETT: Well, your Honour, if one did that, one would say – and I would not accept that one would do that, because, in my submission, standing follows the remedy rather than the particular aspect of the remedy.

GAUDRON J: Well, mandamus is a funny remedy though, is it not, in a sense, because ‑ ‑ ‑

MR BENNETT: It varies in its character. But, your Honour, here there is a power which we submit is primarily a police power. It is not a power given for the benefit of the person who is brought into the migration zone. It is a power given for the purpose of enabling the enforcement of the exclusion of people from Australia and to say that one can then use mandamus to – as a person with no particular standing merely because one can in habeas corpus ‑ ‑ ‑

GAUDRON J: Let us assume a slightly different set of facts. Let us assume these people were in detention centres and they were asking to make an application for protection visas and it was discovered that they were being told, “You can’t apply for protection visas”, by the persons running the detention centres and yet there was a statutory provision that said they could. Why could not any citizen seek mandamus to require the receipt, if you were, of protection visa applications?

MR BENNETT: There would be a question as to whether there was a matter under section 75(v).

GAUDRON J: Well, exactly. What I am suggesting to you is that where one is looking for public law remedies to enforce public duties, statutory or otherwise, your standing may be more tied up with the duty than with the remedy.

MR BENNETT: Well, your Honour, in my respectful submission, the only person who would have standing in that situation would be the person who was in the centre and ‑ ‑ ‑

GAUDRON J: I know what your submission would be.

MR BENNETT: Yes.

GAUDRON J: It just seems to be a little anomalous that you have a constitutional provision like 75(v) and it can be entirely subverted by a clever government, if you like, because we have this notion of standing that it is tied to the remedy rather than the duty.

MR BENNETT: Your Honour, one could construct cases in almost any situation involving certiorari and prohibition in relation to ‑ ‑ ‑

GAUDRON J: Well, anybody can seek prohibition, anyone, and it does not matter what the excess of jurisdiction is. There is no standing requirement for prohibition.

MR BENNETT: If there is an excess of jurisdiction, there is not. Perhaps I should confine myself to certiorari for this purpose. But, your Honour, there are standing rules in relation to prerogative writs.

GAUDRON J: They did not seem to be in evidence in your interests in an earlier case that we heard.

HAYNE J: It is called reading up your priors, Mr Solicitor.

MR BENNETT: Yes, well, your Honours, I did not ‑ ‑ ‑

GAUDRON J: I think you were concerned with this case to argue absence of standing whilst persons representing those whom you now represent were arguing that there was plenty of standing in this Court.

MR BENNETT: It is not only at the private bar that one gets jammed, your Honour.

HAYNE J: There is another apparent anomaly in this matter which I draw to attention for your submissions. The applicant contends he should have an order that persons be released from detention by officers of the Commonwealth in order that they may be taken into detention by officers of the Commonwealth. Now, what, if anything, follows from that apparent oddity?

MR BENNETT: We argued, your Honour, that it was not a proper purpose of the writ of habeas corpus to cause someone to go into custody, rather than out of it.

HAYNE J: Why not? Why not? Why is it not a purpose of the writ of habeas to require those asserting custodial power to justify it? By what right?

MR BENNETT: It is, your Honour.

HAYNE J: If they cannot assert a right, then so be it.

MR BENNETT: It is, your Honour. That is a totally accurate way of putting it. But that would have been vindicated ‑ ‑ ‑

HAYNE J: But that may mean there is no order for discharge. There may be an order absolute for habeas, but no order for discharge.

MR BENNETT: Yes. Your Honour, that is what we submitted. We said that if there was to be an order for habeas, it should be moulded so as not to require or permit the persons to be brought within the migration zone. In other words, if there was an imprisonment, and we disputed that, if there was a detention, that should be ordered to cease but to cease in situ and not to require the removal to a place where other rights and liabilities would arise, including certain rights to apply for certain types of visa and certain liabilities to be subjected to long‑term immigration detention.

Now, we submitted it was inappropriate for the same reason that a court would not, by subpoena, cause a person to come into a State where coming into that State might have other legal consequences. The court will not allow its remedy to be used to achieve a foreign purpose.

But, your Honour, may I just return to the question of mandamus. There were two other problems with mandamus. The first is the absence of any current duty. There would merely have been, if my friend is right, some duty at some stage in the past and, of course, that would involve getting into evidentiary questions because we submitted that on the basis of Mr Farmer’s evidence he was not subjected to the relevant duty under the section and that is independently of the police power argument.

But, quite apart from all that, there was another problem which would be faced in the sort of order my friend seeks now and that arises out of a number of sections of the Migration Act which make it an offence to bring a person into the migration zone who does not have a visa. Those sections are sections 233(1):

A person shall not take any part in:
(a) the bringing or coming to Australia of a non‑citizen under circumstances from which it might reasonably have been inferred that the non‑citizen intended to enter Australia in contravention of this Act –

There is a more serious one under 232A of:

A person who:
(a) organises . . . the bringing or coming to Australia . . . of a group of 5 or more people –

That carries 20 years. There is a third provision in section 229 dealing with:

The master, owner, agent, charterer of –

any vessel or aircraft that brings them to Australia. So, there are problems with the making of an order requiring, as my friend suggests, Mr Farmer to bring people to Australia and it is no answer to that to say that if it be so, as we dispute, that at some time in the past he had a duty to bring them to Australia from where they then were.

GUMMOW J: But these sections would not be interpreted as creating a crime committed by the Crown, would they?

MR BENNETT: There is a difficulty with the Crown itself committing the crime.

GUMMOW J: Yes.

MR BENNETT: But in relation to an individual who is ordered to do it, my argument is simpler than that. There is obviously a question as to the likelihood of prosecution and matters of that sort. But the question is anterior to that. The question is whether the court should make an order that a person do something which, on the face of the statute, amounts to a criminal offence, even if the court order might have the result that the person would be unlikely to be charged or punished.

Your Honours, the third area which I need to deal with is the Border Protection legislation. Do your Honours have the Act? It is the Border Protection (Validation and Enforcement Powers) Act 2001, Act No 126 of 2001. Now, there are four separate ways in which this Act affects the current application and they need to be considered quite separately because they are totally independent submissions and have different consequences and effects.

The first of them is that if your Honours go to the second schedule to the Act, which is amendments to the Migration Act, and your Honours see the amendments to section 245F(9), which is clause 8 of the second schedule. Do your Honours have the ‑ ‑ ‑

GUMMOW J: Not the schedule.

MR BENNETT: It is on page 12 of the reprint I have. I have three more which I am handing to your Honours. It is page 12 of that document.

GUMMOW J: Yes.

MR BENNETT: Now, your Honours see that what that does is empower conduct of the nature of that which took place in the present case for the future expressly. So subsection (9)(a) permits an officer who “detains a ship or aircraft . . . to detain any person found on” it. Subsection (8A) provides that:

any restraint on the liberty of any person found on the ship . . . is not unlawful.

And subsection (9A) on the next page provides that:

an officer may, within or outside Australia:
(a) place the person on a ship or aircraft; or
(b) restrain the person on a ship or aircraft; or
(c) remove the person –

and so on. The effect of all that is that the holding of the people on the Tampa, if they were held, placing them on the Manoora, moving them to Nauru, disembarking them in Nauru, would all in the future be lawful under these provisions and authorised by these provisions. So as to the future, the issue of whether the prerogative permits the conduct which took place here is not an issue which is likely to be a live issue. That is the first way it affects my friend’s application.

The second way in which it affects my friend’s application is that section 7A of the Migration Act, which is also added by the schedule – and that appears on page 10 of the document your Honours have – specifically preserves the prerogative of “ejecting persons who have crossed” the border. Now, any future case involving these issues will involve the construction of that section.

GUMMOW J: And the validity of it.

MR BENNETT: And the validity of it and the analysis of the prerogative in the light of it and so on. But it would involve questions additional to those involved in this case and different from those involved in this case. This case would not decide those issues. The third way in which the Act ‑ ‑ ‑

GUMMOW J: Is there any privative clause, whatever you would like to call it, which would restrict an examination of the validity of section 7A?

MR BENNETT: No, your Honour. Indeed, the opposite because there is a provision in section 9 of the Act ‑ ‑ ‑

GUMMOW J: Yes, that is just section 75(v).

MR BENNETT: Yes.

GUMMOW J: Yes, that restricts section 73, restricts section 75(iii), so on and so forth.

MR BENNETT: It does not restrict section 75(iii), your Honour.

GUMMOW J: Yes, I see. It restricts 73 though.

MR BENNETT: Yes, your Honour, but section 73 itself contains a provision which permits the Commonwealth Parliament to provide exceptions and qualifications to the right of appeal to this Court.

GUMMOW J: Yes. Well, that itself is a constitutional question.

MR BENNETT: That is the third matter to which I am coming and that is section 6.

GUMMOW J: Yes.

MR BENNETT: I am sorry, it is the fourth matter, which is section 7. If I may deal with section 6 first. Section 6 simply provides that certain conduct is declared to have been lawful for all purposes.

GUMMOW J: What does it mean? Is taken by whom?

MR BENNETT: By a court, your Honour, as a matter of law. It is simply providing what the law is. It is not telling a court what to do. It is saying what the law is that the court will apply. What the law is is that certain ‑ ‑ ‑

GUMMOW J: It is not expressed like a traditional act of indemnity in oblivion though, is it?

MR BENNETT: Well, your Honour, it is still fairly clear what it means, we would submit. It is lawful for all purposes: the criminal law, the civil law, the administrative law. To the extent that there was an unlawful detention, which, as I say, we dispute, it ceases to have been unlawful. It is retrospectively authorised. That, we submit, makes the whole issue in this case, apart from anything else, a non‑issue.

GUMMOW J: Do you say that these provisions foreclose us sitting today?

MR BENNETT: No, your Honour. That is because section 7, which talks about the institution or continuation of proceedings, does not apply to special leave applications.

GAUDRON J: Why not?

MR BENNETT: Because it is not the institution of proceedings. It is treated as something preliminary to the institution of proceedings, Collins’ Case and cases of that sort, yes.

GAUDRON J: Does it mean this, that we could grant special leave but could not proceed to hear the appeal?

MR BENNETT: Your Honour, it is a qualification to section 73. It is an exception within the meaning of section 73.

GAUDRON J: But does it mean that? We could grant special leave but not hear the appeal?

MR BENNETT: Your Honour, it would be meaningless to grant special leave because ‑ ‑ ‑

HAYNE J: It seems to me your answer is, yes, is it not, Mr Solicitor? I know it is an untidy word to utter sometimes, but the answer is, yes, is it not?

MR BENNETT: Your Honour, it is more than untidy.

HAYNE J: “Yes-ish” would you put?

MR BENNETT: It is not even “yes-ish”, your Honour, because if the Court could not hear an appeal, if there was no power to ‑ ‑ ‑

GUMMOW J: It is not question of the Court not hearing it. It is a question of whether a notice of appeal could be received, is it not? That is what institutes proceedings, the receipt of a notice of appeal. You say the Registry could not receive it. I think you have to say that. They would be turned back at the counter, in grass‑root terms.

MR BENNETT: I suppose one can file anything at the counter, within reason, but ‑ ‑ ‑

HAYNE J: There is a large topic.

GAUDRON J: Yes. When we see the special leave books, we sometimes believe that.

MR BENNETT: Yes, but the fact is it is not something in relation to which an appeal lies to this Court. There has now been an exception promulgated within the meaning of section 73 of the Constitution in relation to proceedings that fall within the definitions of this Act.

GUMMOW J: Even though the proceedings might have involved at the lower level a determination of constitutionality?

MR BENNETT: Your Honour, if there is a constitutional matter, that can be dealt with ‑ ‑ ‑

GUMMOW J: Which produces a res judicata between the parties – forget about this case – which produces a res judicata between the parties at the intermediate appellate court level. That cannot be disturbed.

MR BENNETT: Your Honour, there might a question as to whether the doctrine of res judicata for that purpose had to defer to the constitutional right in section 75 and there might be a question which would arise there. But subject to that question, the ‑ ‑ ‑

GUMMOW J: We seem to back with the Bishops actually.

MR BENNETT: Yes. Well, your Honour, perhaps fortunately I was not there.

GUMMOW J: I think you were.

MR BENNETT: I should say it was said by your Honour Justice Gaudron with Chief Justice Brennan and Justice McHugh in Cummings v Claremont Petroleum 185 CLR 124 at 130 – I have not given your Honours this case – that:

The institution of an appeal by the defendant against a judgment in favour of a plaintiff is the commencing of a proceeding.

That was for the purpose of bankruptcy legislation which forbade the commencing of a proceeding without permission. Your Honour, we would submit that the ‑ ‑ ‑

GAUDRON J: But is a special leave application not a proceeding? I mean, it may not be a matter, I well understand – and it may not be an appeal and, indeed, we have said that, I think ‑ ‑ ‑

MR BENNETT: We submit it is not a proceeding, your Honour.

GAUDRON J: Well, I wonder what we are doing here.

MR BENNETT: Your Honours doing something preliminary to what may be a ‑ ‑ ‑

GAUDRON J: But a proceeding is not a matter and a matter is not necessarily a proceeding. We know that.

MR BENNETT: Yes, I understand that, your Honour, but your Honours do not need to consider that question because ‑ ‑ ‑

GAUDRON J: Well, we do – we may.

GUMMOW J: If we are going to make a costs order, we do. That may have to be enforced.

GAUDRON J: Yes, and we need to consider it – I mean, if we were to come to the point where we were minded to grant special leave, for example, on the argument you are now presenting, we could not do that, we could only refer to the Court I think, the Full Court, the question whether an appeal could be instituted.

HAYNE J: Which, in turn, might have elements of the hypothetical about it because by hypothesis there is no grant of leave yet and what is referred into the Full Court is the question if we were to grant leave, would the appeal be competent? We are starting to get in to a procedural sparring.

MR BENNETT: Yes, we are.

GAUDRON J: It is a very strange provision, is it not, Mr Solicitor?

MR BENNETT: It is an unusual provision.

GAUDRON J: One that invites probably more questions than it answers.

MR BENNETT: It may well do, but we submit that whatever its application in relation to a special leave application, for relevant purposes it means that an appeal cannot be instituted.

GAUDRON J: That does not solve all our problems, does it?

MR BENNETT: I have not addressed your Honour on the issues of costs but I can just say this about costs: there are cases which say that a court has inherent jurisdiction to determine its own jurisdiction, and it also has jurisdiction in so doing to make an order for costs against a person who wrongly seeks to invoke its jurisdiction. The mere fact that the proceedings cannot be instituted would not prevent those consequences flowing, but that is not something I want to take time with at the moment.

GUMMOW J: You would be seeking costs if your opponents were unsuccessful?

MR BENNETT: Yes, your Honour. My submission, briefly, in relation to section 7 is that is precludes the commencement of an appeal and that if it raises a constitutional question as to its validity, we submit there is nothing invalid about that because it is well within the terms of section 73. The exception to section 73, the Cockle v Isaksen exception, is where one has something which is such a big exception it detracts from the whole provision. Here one has the reverse. It is such a small exception and ‑ ‑ ‑

GUMMOW J: Cockle v Isaksen may have to be looked at again some day.

MR BENNETT: It may, your Honour, but ‑ ‑ ‑

GUMMOW J: Cockle v Isaksen was in the era when this sort of legislation was not commonplace.

MR BENNETT: No, your Honour, but nevertheless, if section 73 means anything, it permits the prescription of exceptions. It permits the prescription of a narrow exception, which is all that has been done here. One could hardly have a narrow exception. So we would submit it is clearly valid and, in any event, it is a further reason why the case is an inconvenient vehicle. Your Honour, those are the four ways in which the Act affects it.

GAUDRON J: Is there any definition of any of the terms in section 7? I am just wondering, I mean to double check it, as it were.

MR BENNETT: Of section 7?

GAUDRON J: Of any of the terms in section 7.

GUMMOW J: Section 5, I guess.

MR BENNETT: Section 5 defines an action to which this part applies, and that is very narrow. It is not as wide as my learned friend indicated in his written submissions.

GAUDRON J: I am just wondering whether section 7 applies to appellate proceedings at all; whether, as matter of construction, it has any application.

MR BENNETT: We would submit that “institute” or “continue” was intended, with the exception of special leave applications, to cover the field.

GAUDRON J: With the exception of special leave applications?

MR BENNETT: Yes, your Honour, yes. May I just say this about section 5. Your Honours will see that there is a comma in the third line after “any other person”. The effect of that comma is that the words “acting on behalf of the Commonwealth” qualify all that goes before. They qualify “Commonwealth officer” as well a “other person”, so it only applies to an act done on behalf of the Commonwealth and my friend’s fanciful examples

about assaults and murders and so on, on the ship, are simply events which would be highly unlikely to fall within those words. It is dealing with acts on behalf of the Commonwealth in relation to the Tampa. There might even be a question whether something done “on” the Tampa, and “merely on it”, was in relation to “for the relevant purposes”. It is perfectly clear what is intended, what is intended is this type of situation. An argument that something done in relation to the Tampa constituted false imprisonment or was otherwise in breach of legislation.

Your Honours, for those reasons we submit that special leave to appeal should be refused.

GAUDRON J: Yes, thank you, Mr Solicitor.

MR GRIFFITH: Your Honours, I rely upon my learned friend’s argument on the Validation Act as establishing the basis for special leave to deal with these high constitutional issues. We say, certainly, that when it is put that section 6 in the shorthand way applies retrospectively, what is applied prospectively, in detail, is an unsustainable submission, in our submission. Also, it is one which avoids the limitations of the prospective law which has a limitation by respect to the question of conduct being reasonable under section 9(b) of Schedule 2 on page 13 of the print, and acting in good faith. That restriction does not apply, with respect, to past conduct.

So far as exceptions are concerned we say that the very narrowness, as my learned friend refers to of the operation of section 5, militates against section 73 exception applying, particularly as it is sought to apply midstream at the time when there has already been an application for special leave lodged in this Court, whether that is a proceeding or not. We submit that it is a proceeding, not a matter, in this Court. To say that one may introduce an exception midstream limited in its operation, we say with the absence of an application for special leave emerging from the Full Court judgment in the Council of Civil Liberties matter that this, in effect, is an ad hominen law applying merely to this application to the Court if special leave is granted to the appeal. We would submit that it is highly appropriate for the Court to engage in this issue with respect to the application of this law.

His Honour Justice Gummow suggested that there might by another law emerging in another matter in similar terms. In our submissions, your Honours, one would hope that is extremely unlikely, that one would have a combination of a law providing for general retrospective lawfulness of conduct of any sort to a narrow compass with a combination of an attempt entirely to exclude, and to pick up the exception of section 73, any capacity to approach this Court. We would submit, your Honours, that it is appropriate for the Court to visit such law on the first opportunity for engagement where it intended to have particular application. One cannot be certain, your Honours, to say - I suppose it is for this Court to decide whether or not this application itself can be brought or whether or not my friend can make any applications for costs, even before the Full Court, or in this Court.

Your Honours, for that reason we would submit that, plainly, there should be a grant of special leave to enable this issue to progress.

In answer to your Honour Justice Hayne’s request for an example, I do not have with me the authority I have in mind where the Home Secretary was ordered to return in an extradition matter. I do not think it was not habeas corpus ‑ ‑ ‑

HAYNE J: No, Secretary of State for Home Affairs v O’Brien, [1923] AC, establishes the contrary of the proposition you advance.

MR GRIFFITH: Your Honour, with respect to extradition, there has been an order for return of an extradited person to England when they were unlawfully extradited, although they were outside the control of the jurisdiction. I do not have the citation with me, your Honour, but I could give it, but the Home Secretary was ordered to return a prisoner unlawfully extradited to Ireland.

Your Honour, could I mention the case of Re Thomas Davidson 2 NSWSCRNS, Common Law 303. I have to call upon my friend to produce copies of it. My learned friend has responded to that call. Your Honour, we mention that because in that case there was an application made for habeas corpus after a discharge of an applicant in due course from custody. Although it appears from the headnote, your Honour, that the issue turned on the question of whether or not there should be an order for costs and the court held that there should not be an order for costs although habeas corpus was not ordered, one picks up, your Honours, from both the judgment of Justice Faucett on page 307, and over to the following page, that his Honour Justice Faucett was of the opinion that the court should consider whether or not whether the warrant was bad, and having formed a view of that, to take that into account in making the costs orders.

This approach, your Honour, was even more explicit in the judgment of, I assume it is Sir William Manning, on page 309. Your Honour, he says at about point 8, having decided that the custody was unlawful:

I agree with his Honor that we can only deal with this matter as if it were an application of writ of habeas corpus. But are we, when the matter is properly brought before us, to have our mouths gagged and have no opportunity of giving our opinion on the legality of the imprisonment? At the very least the Applicant is entitled to the expression of our opinion in his favour. . . . I think we are entitled and bound to say whether the imprisonment was unlawful.

Then he says, your Honour, in his last sentence on page 310, just before Justice Windeyer agrees with their Honours, also, that the imprisonment was altogether illegal:

When we hold Davidson to have been wrongly imprisoned, are we with the same breath to say that he is to pay costs for that. Therefore I think that the rule should be discharged without costs.

Your Honours, with this question of the strict application of an application for habeas corpus, what we submit is that the application being made in the Federal Court before Justice North, was one for the exercise of the court’s jurisdiction pursuant to section 23 of the Federal Court of Australia Act, that provides:

The court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds . . . as the Court thinks appropriate.

Your Honour, we would say that section 23 is the source of the power which his Honour referred to in paragraph 40, has enabled him to use the phrase “an order for release” rather than he said “an order for habeas corpus”. Section 23, we submit, should be construed broadly. Could I give your Honours some citations of that authority which we have not filed with the Court?

Firstly, your Honour, Hiero Pty Limited v Somers (1983) 68 FLR 171. At page 178 Justice Ellicott quoted, with approval by Justice Toohey in this Court; in Jackson v Stirling Industries Limited (1987) 162 CLR 612 at 632. Also, a long discussion by this by Justice Kirby in Cardile v LED Builders Pty Limited, (1999) 198 CLR 380, particularly at page 422, paragraph 108, and at page 432, paragraphs 110 and 111. A further citation - I am sorry, your Honours, we did not have these in the Court - Justice McHugh in ASIC v Edensor Nominees, (2001) 177 ALR 329 at 368, paragraph 148.

GAUDRON J: What is this directed to?

MR GRIFFITH: It is directed to, your Honour, that the order that the Court could make is one that is appropriate to the circumstances and not confined to the traditional view of habeas corpus arguably confined in its effective forms to a case when there is continuing detention. We say the court can make effective orders to vindicate.

GAUDRON J: This is to say if you succeeded on all your points and the matter went back, let us say to Justice North ‑ ‑ ‑

MR GRIFFITH: I am here moving beyond our draft notice of appeal. What we say, your Honour, is the order we seek leave to appeal against is the order setting aside the order of Justice North. If it is the case, your Honour, that circumstances have moved on in an uncertain way, we say for that reason, in our submission, the Court should not decline to exercise its jurisdiction, but to exercise its jurisdiction to forming a view as to whether the reasoning of the majority in the Full Court, in relying upon this asserted prerogative power of firstly, being in existence; secondly, it is not being displaced by the Migration Act, and thirdly, the reasoning of the Full Court in saying we must leave it to this ourt to consider standing. We cannot take the standing issue with respect to the mandamus claim arising from the argument based on section 139(2) is, in the first matter, in error, and secondly, that this Court should express its views on this issue of requisite standing from the point of view of the public remedy relief with respect to mandamus, and whether or not (a) on the current exposition of the principles as the Court sees it or the rearticulation, we would submit, going so far as necessary to ensure that in respect of a public law matter such as this, is a capacity to obtain a remedy by granting appropriate standing, as we submit should be granted in this case.

If necessary, your Honour, we would submit, and we would desire to submit to the Full Court based on the requirements of necessity or otherwise, we would say a wrongdoer may evade the consequences of its wrongdoing by ensuring all those who have standing within the conventional sense are disabled from exercising it. We say that is an issue we desire to ventilate in the Full Court. If we are right on those issues, your Honours, our submission is that the Court can sufficiently exercise its jurisdiction by holding that the Full Court is in error in setting aside the judgment of Justice North. With respect to the issue of whether or not there is a prerogative power, as to whether or not the Migration Act displaces such prerogative power, on the issue which Justice North did not determine, his Honour should say, “We find that there is standing, you could have gone on to consider it.”

We say the appropriate order for the Court to make then is not itself disabled from full information which would necessarily be determined on a trial and not on an interlocutory basis of hearsay and relief by a legal officer of the Commonwealth informed by someone offshore, to determine then what are the factual circumstances so that the trial judge, properly instructed as to the law by this Court, can then consider all the issues of whether or not, in the circumstances, it is appropriate to make any order at all pursuant to section 24 of the Federal Court Act, whether or not it is appropriate to make any declarations dealing with the applicability of section 139 to these persons, and whether or not there should be effective orders for relief made, or whether, as is one possibility, that the matters are put beyond the pale of effective orders.

Our submissions, of course, would be at the very least there should be declarations made in vindication of the applicable law at the time the matter came before his Honour Justice North for consideration. We say that the Court’s function does not necessarily extend as a precondition for the grant of special leave to the Court now being satisfied that it has a capacity, because we are the applicant, to make an order in the form of habeas corpus with respect to those persons on the disputed issues ‑ ‑ ‑

GUMMOW J: Now, I think these are submissions that you did not put in‑chief, are they not? They may be all the better for it.

MR GRIFFITH: Well, they sound better in reply, your Honour, because they embrace my learned friends’ submissions. My learned friends made our case on the issue for special leave arising from the Validation Act and we say, your Honour, we are answering in more adequate detail than perhaps I did in‑chief the particularly penetrating question of his Honour Justice Hayne, “Well, what relief do you want?”, and we say, your Honours, we can tailor our draft notice of appeal to accommodate the situation. In essence, our complaint is the Full Court got it wrong in the majority and that the dissenting view of the Chief Justice, reflecting as it did the decision of the trial judge, is reflective of the underlying legal position and that should be vindicated by this Court. Your Honours, I make one reference ‑ ‑ ‑

GUMMOW J: You seem to be saying ‑ ‑ ‑

GAUDRON J: But we do vindicate legal rights. We do not vindicate reasons.

MR GRIFFITH: The legal rights, your Honour, are the rights these persons had.

GAUDRON J: No, no, rights are rights that people have, not had.

MR GRIFFITH: Your Honour, we say if it is a fact that these persons remain within the control of the Commonwealth, that is an issue of fact which cannot be determined on the material before the Court.

We say, clearly, before Justice North they had those rights but Justice North did not consider them exhaustively with respect to the 139 argument. We should be entitled to go back to Justice North on the basis to say, “You should consider that” and then tailor your relief accordingly. If there is an issue though beyond the control of the Commonwealth, that can become a new issue when the matter is remitted to Justice North. It is not something that this Court can exhaustively consider, we submit, as a ‑ ‑ ‑

GUMMOW J: You want us to make an order restoring Justice North’s orders, do you not?

MR GRIFFITH: Your Honour, can I say in the alternative, we would be content with an order setting aside the Full Court’s orders.

GUMMOW J: Yes, setting aside the Full Court which has the effect of restoring Justice North’s orders.

MR GRIFFITH: Your Honours could also leave Justice North’s set aside and remit the matter for appropriate relief to Justice North.

GAUDRON J: But we would have to be satisfied, would we not ‑ ‑ ‑

GUMMOW J: That is all about starting again.

GAUDRON J: Yes, that would be ‑ ‑ ‑

MR GRIFFITH: Justice North has to be satisfied about a capacity, with respect, your Honour.

GUMMOW J: That is all about starting again. It seems to me it is.

MR GRIFFITH: With respect, that is not so, your Honour. It is completing – its unfinished business, with respect, and that is the question of whether or not there is a legal error which should be corrected by the Court, with respect, to the majority and an issue of whether or not there was standing with respect to the co‑ordinate part of our original claim that Justice North did not consider.

Now, your Honours, may I make one further reference and that is to page 89 of the application book.

HAYNE J: Is this in reply or further fresh argument, Dr Griffith?

MR GRIFFITH: It is very much in reply, this one, your Honour. Your Honour, my learned friend made the point that the effect of granting the order arising from the claim based on section 189(2) is to impose a further detention upon the persons being brought into the migration zone and what we say, your Honour, with respect, the analysis of Justice Black in paragraph 60 and, in particular, paragraph 61, is the correct analysis. He says if it is the case that the regime of the Act should have applied, well then, that applies. It has a beneficial effect in that you take advantage of your entitlement under section 36 to apply for a protection visa. It has a detrimental effect because of the effect on your freedom.

His Honour, we say, quite correctly refers to this conundrum my learned friend relies upon to say that that must be a reason not to grant the remedy. We say, your Honours, Justice Black is correct to say this is a very reason to say that it must be regarded as a displacement of any prerogative power by the Migration Act. If the Court pleases.

Your Honours, can I deal with the question of costs when your Honours have indicated ‑ ‑ ‑

GUMMOW J: No, it would be best if you dealt with it in prospect.

MR GRIFFITH: All right, your Honour. Can I deal with it on two bases?
One, if we are successful, we would seek an order for costs.

GAUDRON J: There would be costs in – you want a separate order for costs in the event that that strange provision does not exclude special leave applications but does exclude appeals?

MR GRIFFITH: Your Honour, only if we lose. If we lose, we would say, your Honour, there is no power to make an order for costs because implicitly the Court is accepting the Act applies. However, our primary submission would be if we lose we should also get our costs because what we say, your Honour, is that it would seem that we would have lost particularly because of the effect of this intervening Act.

GUMMOW J: The intermediate position may be that if you lost you nevertheless should not sustain a costs order because there is such uncertainty attending the matter. Being the product of your opponent’s legislation, why should you bear the consequences of that uncertain situation which we cannot resolve, really, without getting into validity?

MR GRIFFITH: We agree, your Honour, and we say, your Honour, it may well be thought that we have lost because of the intervention, not by the umpire but by the defendants themselves rewriting the rule book after we have lodged our application for special leave. We say, your Honours, if that is an ingredient as to why we lost, that should be as in a public interest tax appeal or some other appeal, your Honours, be something where one should regard the Commonwealth as prevailing at the level of this Court by

legislative intervention should do it at its expense rather than our expense. So that our primary argument would be, your Honours, if that is a reason not to make an order for costs, that should be a reason to make an order for costs. We should at the least be protected from having the playing field rearticulated at right angles whilst we have already lodged our application, while we are drafting our submissions, your Honours, one finds that you have the intervention of this curious law of uncertain operation which my learned friend envelopes himself with but in a most uncertain way and we say, your Honours, that if the Court takes a view that it is not appropriate in this matter to deal with those issues, at the very least it is appropriate that the Commonwealth, as it were, walk away, having by a legislative enactment, prevailed to the point that it says it is entitled to a judgment by force of law and not by a decision of this Court, to do so on the basis that it at least covers our out‑of‑pockets for so doing. If the Court pleases.

GAUDRON J: Mr Solicitor, there was some new material in that. Did you wish to reply to it?

MR BENNETT: Only to this extent, your Honour, in relation to costs: I would accept that if I were to succeed only because of the Border Protection legislation, I ought not to get costs incurred prior to the enactment of that legislation. Of course, after it, my friend was free to withdraw his application. That is the only way that affects the question of costs.

As far as the other matters are concerned, your Honours, we would submit that Re Davidson supports the contentions which we made. It is a case where the court specifically declined to do what it regarded as futile, which was to make an order for habeas corpus after the release of the person concerned. If your Honours go to page 307, what Justice Faucett says is he rejected three possible bases on which it was put that he should still make an order, no doubt to vindicate the rights.

GUMMOW J: What do you say about the form of relief that is now sought? It is rather differently formulated now, as to what orders we should be making as to the standing of the orders in the Full Court; what should then happen before Justice North.

MR BENNETT: Your Honour, the Federal Court itself cannot make orders that would overcome the “mootness” problem. At the end of the day the court is in the situation, whether it is the Federal Court or this Court, that one thing that has to be common ground is that the custody which was in issue at the time has ceased. My friends say or may wish to say there is some continuing custody. It is hard to see how they can say that there is custody by us in a foreign country but, nevertheless, they may seek to try and say that. If they do, that is a new custody.

GUMMOW J: They seem to be saying it could be done back before Justice North as a continuation of this litigation.

MR BENNETT: But, how, your Honour? It would be based on circumstances which arose after the commencement of the proceedings. It is a completely separate and different application based on separate and different facts. Your Honours, in my respectful submission, it just cannot be done.

My friend confuses two issues in his submissions. He conflates the question of whether they are in the custody of or detained by the respondents, on the one hand, with the issue of whether it is in the respondents’ power to cause or to influence the bringing of them to Australia on the other. They are quite separate questions but it is the first one my friend needs to succeed on because habeas corpus depends on the situation at the time, and it is not based on some past alleged wrong. May it please the Court.

MR GRIFFITH: Your Honour, may I say one thing in answer to my learned friend’s point, with your Honours’ leave?

GAUDRON J: But why?

MR GRIFFITH: Because he made a new point I wish to address, your Honour.

GAUDRON J: One minute.

MR GRIFFITH: Your Honour, I need less. Your Honour, if we are not able to reagitate this issue before Justice North on the incorrect order of the Full Court being set aside and the issue of standing resolved in this Court, we will be unable to agitate it at all because the whole issue will be res judicata. That would be the end of it. That is our submission.

GAUDRON J: Yes, thank you. We will adjourn briefly to consider the course that we will take in this matter.

AT 3.55 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.10 PM:

GAUDRON J: The applicant, Mr Vadarlis, seeks special leave to appeal against orders of the Full Court of the Federal Court of Australia, the effect of which was to dismiss a proceeding he had commenced in the Federal Court for various orders relating to persons he alleged were, at the time he began the proceeding, being unlawfully detained by the Commonwealth on board a Norwegian vessel, the MV Tampa.

The orders which the applicant sought in that proceeding (No V900 of 2001) included injunctions to compel the bringing of those persons ashore in Australia, to permit him to communicate with them and to offer them legal advice. He also sought what the trial judge described as “relief in the nature of habeas corpus”, by which we understand the issue of a writ of habeas corpus or injunctive relief having the same effect. Finally, he sought the issue of mandamus directed to the first respondent (the Minister for Immigration and Multicultural Affairs) to compel the Minister to bring the persons concerned ashore in Australia but then take them into immigration detention as having entered Australia unlawfully. Further, he sought mandamus directed to the Minister to compel him to allow the applicant to give legal advice to the persons aboard the vessel.

A second application was instituted by the Victorian Council for Civil Liberties. That was No V889 of 2001. A successful appeal was later brought to the Full Court setting aside the relief granted by North J upon that application. The Civil Liberties Council is not an applicant for special leave against the Full Court decision.

Upon Mr Vardarlis’ application, the primary judge, North J, held that Mr Vardalis lacked the standing to seek the relief sought, apart from relief in the nature of habeas corpus. The respondents had conceded standing in respect of habeas corpus but submitted that those taken aboard the MV Tampa were not detained in the sense required for such an order.

Justice North rejected that submission and made an order that the first to third of the present respondents (that is, the Minister, the Commonwealth and Mr Farmer, the Secretary and Chief Executive Officer of the Department) release those who had been taken aboard the MV Tampa and bring all except those who expressed a contrary wish, “ashore to a place on the mainland of Australia”. The Full Court, by majority (Beaumont and French JJ, Black CJ dissenting), set aside the orders of North J and ordered that the proceedings be dismissed. The Full Court unanimously dismissed a cross‑appeal by Mr Vadarlis against the decision of North J respecting his limited standing.

Upon the present application to this Court, the applicant’s claim to orders compelling the Commonwealth respondents to bring the persons concerned to Australia is central. Without such an order, the applicant’s other claims to relief have either been overtaken by events or would be of no practical significance.

In so far as the applicant now seeks to pursue a claim to or in the nature of habeas corpus, it is common ground that the essential claim made at trial and in the Full Court of the Federal Court, namely, the detention of the persons concerned aboard the MV Tampa can no longer be made. None of the persons concerned is now aboard either the MV Tampa or the HMAS Manoora, the vessel to which they had been transferred by the time the trial judge made his orders; all have now gone either to Nauru or to New Zealand pursuant to arrangements made with the governments of those countries.

If the persons concerned are now detained (a question about which there has been no trial) each would be detained in a foreign country subject to whatever is the law of that country touching that question. That detention, if any, was not the subject of the proceedings in the Federal Court, and, the agreement dated 10 September 2001 between the governments of Australia and Nauru notwithstanding, habeas corpus cannot now issue with respect to that detention, at least in these proceedings. Habeas corpus issues to require justification for the continued detention of a person who is in detention at the time the writ issues; it does not issue to inquire into the lawfulness of detention that is at an end.

So far as the applicant seeks mandamus, he points to no present duty, the performance of which could be compelled by that remedy.

There is a further point. If, as the applicant contends and the Commonwealth respondents deny, an agreement of the parties, made during the course of the trial before North J, obliges the parties to seek to have this Court determine whether facts which no longer exist would have warranted the issue of a writ of habeas corpus, the dispute is hypothetical. It gives rise to no matter constitutionally cognisable in a court exercising the judicial power of the Commonwealth.

It is unnecessary to form, or express, any concluded view on the several other issues sought to be raised by the application. However, in the light of the reasoning in Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247, the question of standing to seek injunctive and other relief under section 75(v) of the Constitution to compel observance of the law is an important constitutional question and might, in an appropriate case, attract the grant of special leave. The same is true of the question of executive and prerogative power examined in the Full Court, and also of the question of the validity of the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth).

The application must be dismissed. There will be no order as to costs.

The Court will adjourn.

AT 4.18 PM THE MATTER WAS CONCLUDED

[2001] HCATrans 481

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction