Vasiljkovic v Commonwealth of Australia & Ors

[2006] HCATrans 149

[2006] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Registry  No C3 of 2006

B e t w e e n -

DRAGAN VASILJKOVIC

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR JUSTICE AND CUSTOMS

Second Defendant

GOVERNOR, PARKLEA CORRECTIONAL CENTRE, SENTRY DRIVE, PARKLEA, NEW SOUTH WALES

Third Defendant

MAGISTRATE MOORE, CENTRAL LOCAL COURT, LIVERPOOL STREET, SYDNEY

Fourth Defendant

Summonses

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 15 MARCH 2006, AT 12.03 PM

(Continued from 23/2/06)

Copyright in the High Court of Australia

__________________

MR T.E.F. HUGHES, QC:   May it please your Honour, I appear for the plaintiff.  (instructed by Albert A. Macri Partners)

MR H.C. BURMESTER, QC:   If it please the Court, I appear for the first and second defendants. (instructed by Australian Government Solicitor)

MS R.A. PEPPER:   May it please the Court, I possibly appear for the New South Wales Attorney-General seeking leave to intervene.  (instructed by Crown Solicitor for New South Wales)

HIS HONOUR:   You are hovering are you?

MS PEPPER:   We may not be required, your Honour, but I will let my learned friend say something to the Court about that.

HIS HONOUR:   All right.  At the moment the Attorney does not seek to be joined as a party and he would be intervening if he did come here.

MS PEPPER:   That is correct, your Honour, for the present time, yes.

HIS HONOUR:   For the present time, yes.  Are you appearing for the Governor of Parklea Centre?

MS PEPPER:   No, I am not, your Honour.  I do not have those instructions but it may well be that in due course the Governor will be filing a submitting appearance.

HIS HONOUR:   That is what I expected.  Yes, thank you.

MR HUGHES:   Your Honour, the plaintiff and the Commonwealth are agreed on the form of a special case.  We reached agreement this morning.  Does your Honour have a draft of it?

HIS HONOUR:   Yes, Mr Hughes.

MR HUGHES:   I had noticed one lack of symmetry in the questions.  Could I just raise that now?

HIS HONOUR:   Yes.

MR HUGHES:   Mr Burmester is here for the Commonwealth before your Honour?

HIS HONOUR:   Yes.

MR HUGHES: The first question in paragraph 12 is as follows:

Is s. 15 of the Extradition Act 1998 (Cth) invalid to the extent, if any, to which it purports to confer a power to deprive an Australian citizen of liberty otherwise than in the exercise of the judicial power of the Commonwealth?

Your Honour will notice that the next question refers to the Extradition Act rather than a particular part of the Act.

HIS HONOUR:   Yes, I do.

MR HUGHES:   I have not raised it with Mr Burmester because it occurred to me only when I had a final look at the draft that it would be appropriate, I submit, that the question a) should be “Is the Extradition Act 1988 (Cth) invalid to the extent, if any” and following the question rather than confining the question to section 15.

HIS HONOUR:   Thank you.

MR HUGHES:   That, I regret to say, is something I have not discussed with Mr Burmester but ‑ ‑ ‑

HIS HONOUR:   Yes.  There are some matters I would wish to raise with the parties too, Mr Hughes, so I will come to that in a moment.  Is there anything you wish to raise, Mr Burmester, for the moment?

MR BURMESTER:   No, your Honour.  It was in response to that particular proposal of Mr Hughes not having had a chance to consider it.  Obviously there are a number of provisions in the Extradition Act dealing with the different stages of the extradition process and we had envisaged the reference to section 15 as meaning that we were focusing on this initial detention and not subsequent processes.

HIS HONOUR:   Yes, that is right.

MR BURMESTER:   I just wonder if broadening the question in the way suggested might have unintended consequences.  I am not saying I am necessarily opposed to the change.  I suppose I am just trying to think aloud as to whether it has broader ramifications.  It certainly seems to raise a requirement to examine the Extradition Act as a whole.

HIS HONOUR:   At least, I suppose ‑ ‑ ‑

MR BURMESTER:   At least Part II.

MR HUGHES:   One question that would arise for consideration if Part II is the subject matter of the first question would be the impact in terms of constitutional validity of section 19(5) which says that ‑ ‑ ‑

HIS HONOUR:   Yes.

MR HUGHES:    ‑ ‑ ‑ in a proceeding before the magistrate “the person to whom the proceedings relate is not entitled to adduce” particular kinds of evidence.

MR BURMESTER:   I can see the logic of the change, your Honour ‑ ‑ ‑

HIS HONOUR:   I think it should say “is Part II of the Extradition Act” and that catches up the sequence of which 15 is a part and 19(5) is a part too.

MR BURMESTER:    Then the second question may also maybe say “is Part II”.

HIS HONOUR:   Yes.  Can I come back to that?  Sit down for a minute, Mr Hughes, if you would.

MR HUGHES:   If it is convenient can I say something concerning my learned friend Ms Pepper’s position?

HIS HONOUR:   Yes.

MR HUGHES:   The application as filed included a claim for damages consequential upon any success in the habeas corpus proceedings securing the liberty of the plaintiff.  Now, it seems to us that Ms Pepper’s position will be dealt with satisfactorily if I say to your Honour, as I now do, that in these proceedings we would not, of course, trouble the High Court to deal with a claim for damages.  If the habeas corpus claim succeeds then certain consequences may follow that would give the present plaintiff a right to claim damages against some person or persons ‑ ‑ ‑

HIS HONOUR:   In tort.  Yes, it would just be a tort action.

MR HUGHES:   If it was a tort action there would be no constitutional ‑ ‑ ‑

HIS HONOUR:   Yes.  That seems right, Ms Pepper.

MR HUGHES:   We do not want to encumber these proceedings with a tort claim because it does not seem appropriate to trouble the High Court with it.

HIS HONOUR:   No, certainly not through this special case procedure.

MR HUGHES:   No, and to make the position of the plaintiff as regards the Attorney-General of New South Wales clear I am content to seek leave to amend the application so as to delete the claim for damages on the footing, however, and this I have discussed with my friend Ms Pepper, that we are not by that abandoning a claim for damages if events turn out in such a way as may entitle us to make a claim.

HIS HONOUR:   Yes. So that would involve removing paragraph 5 of the relief which is damages from the application in this matter without prejudice to any other action your client may wish to take consequent upon a favourable outcome in this proceeding.

MR HUGHES:   Yes, your Honour.

HIS HONOUR:   Is that acceptable Ms Pepper, Mr Burmester?

MR BURMESTER:   Yes, your Honour.  I am content with that.

HIS HONOUR:   Yes. I grant leave to remove paragraph 5 from the relief claimed and 6 will now become 5 so there will be no claim for damages in

this action but that is done of course without prejudice to any action in tort that the plaintiff may have if this action itself succeeds. Now, gentlemen and Ms Pepper, can I go to the draft special case and I want to raise various matters with you. Paragraph 2, I think it would be clearer if it said “In 1975 the plaintiff” – instead of “became a citizen of Australia” it read “The plaintiff was granted Australian citizenship pursuant to the Australian Citizenship Act 1948 (Cth) and has retained that status ever since”.

MR HUGHES:   That would, of course, be perfectly acceptable to us.

HIS HONOUR:   I think that is the accurate way of putting it, gentlemen. Then in paragraph 5, do we know the place? Is it enough to say, “On 19 January 2006, Desiree Bell, an officer of the Australian Federal Police ‑ ‑ ‑

MR HUGHES:   The application ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ applied in Western Australia to” – that is the point, is it not, that it is done in Western Australia?

MR HUGHES:   “Applied in”, instead of “made application at”.

HIS HONOUR:   Yes.  Just say “applied in Western Australia to Mr R.H. Burton”.

MR HUGHES:   Yes, your Honour.

HIS HONOUR:   There is no difficulty in locating the exhibit referred to in 6, is there?  That is the warrant.  That should go with the case.

MR HUGHES:   There is no difficulty in getting a copy of the warrant, no, your Honour.

HIS HONOUR:   No.

MR HUGHES:   So that will be exhibit A.

HIS HONOUR:   Yes.  “On 19 January 2006, the warrant was executed upon the plaintiff at 3/96 Copeland Street, Liverpool in New South Wales”.  Then paragraph 7 will contain exhibit B, the court attendance notice.  Now, paragraph 8, the first sentence and the second and the third sentence appear to present the legal question of detention without the judicial power being exercised, but the sentences that follow beginning with “The plaintiff has been imprisoned” does not seem to me to be appropriate for the special case.  Given what may be the later action for damages it rather fixes factual matters of an emotive or contentious nature in the special case.

MR HUGHES:   Could I explain the reason why we proposed the insertion of those factual matters?  One question that may arise in considering the application of the Act to an Australian citizen is whether his imprisonment in purported pursuance of Part II is punitive in nature.

HIS HONOUR:   Yes, I see.

MR HUGHES:   Cambodian “Boat People” Case deals with that question and three of the Justices who delivered a joint judgment in that case expressed a view that save in two types of case that are expressly recognised by their Honours, which is imprisonment pending trial or committal for trial and imprisonment or detention because of mental incapacity ‑ ‑ ‑

HIS HONOUR:   Quarantine is another one, I think.

MR HUGHES:   Quarantine may be another, yes.  That is the reason why those facts which may be not of general application but are of agreed application in this case may be relevant.

HIS HONOUR:   All right.  Is that understood, Mr Burmester?

MR BURMESTER:   Yes, your Honour.  Can I just clarify on the version you have what words that paragraph ends with?

HIS HONOUR:   Yes, “No reply has been received to this letter.”

MR HUGHES:   No, we do not need those now ‑ ‑ ‑

MR BURMESTER:   I understood Mr Hughes was happy to delete the last two sentences.

MR HUGHES:   Yes.

HIS HONOUR:   Right.  So it would finish then ‑ ‑ ‑

MR BURMESTER:   At “ready access”.

HIS HONOUR:   Thank you.

MR BURMESTER:   On the basis that this is a description of what has happened in the case of the plaintiff we were happy to agree to those facts, not on the basis that they are necessarily of general application to all persons detained under the Extradition ‑ ‑ ‑

HIS HONOUR:   Very well.  So the draft in paragraph 8 will now conclude with the words “to which other inmates had ready access”.

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   Thank you. In paragraph 11, I was going to suggest for consideration, “Although there are documents which may give rise to a treaty relationship concerning extradition between the Republic of Croatia and Australia”, and that is the matter you referred to last time, Mr Burmester, going back to the British Treaty with Serbia, “the Regulations were” and I was going to suggest inserting “made in reliance upon section 11(1)(b) of the Extradition Act and were not made in order to give effect”.  I think that is the substance of what you said.

MR BURMESTER:   Yes, your Honour.  I am happy with that proposal.

MR HUGHES:   Yes, your Honour.

HIS HONOUR:   And perhaps if we just go back to paragraph 9 for a minute, we had better say “the Extradition Act 1988 (Cth) (“the Extradition Act”)” and then we need not repeat the full citation.  Then the questions for the Court ‑ ‑ ‑

MR HUGHES:   What is your Honour’s amendment?

HIS HONOUR:   In paragraph 9, “for the purposes of the Extradition Act 1988 (Cth) (“the Extradition Act”)”.

MR HUGHES:   The words “for the purposes” go in at the beginning of 9?

HIS HONOUR:   Then paragraph 11 - the only change to 9 is at the end.

MR BURMESTER: Your Honour, logically that change should come back in paragraph 5, which I think is the first reference to the Extradition Act, so one could ‑ ‑ ‑

HIS HONOUR:   Wait a minute.  Maybe it is even earlier.

MR HUGHES:   It is called the Extradition Act 1988.

HIS HONOUR:   Yes, Mr Burmester is right, Mr Hughes. Can we go back to paragraph 5, “under the Extradition Act 1988 (Cth), (“the Extradition Act”)”, and then if we follow that through.  We do not have to have the year and “(Cth)” then.  We just have the definition.  That can be followed through in 9 so it will be “for the purposes of the Extradition Act”; 11 will be “between the Republic of Croatia and Australia, the Regulations were made in reliance upon section 11(1)(b) of the Extradition Act and were not made”.  Then 12 a), “Is Part II of the Extradition Act invalid”, and then b).

MR HUGHES:   I suppose it would also be “Is Part II of the Extradition Act”.

HIS HONOUR:   Yes, for b) I was going to suggest, “In its application to the Extradition (Croatia) Regulations 2004, is Part II of the Extradition Act invalid to the extent to which it purports to confer a power to deprive an Australian citizen of liberty otherwise than upon a finding as is”, leave the balance.

MR HUGHES:   So it will read ‑ ‑ ‑

HIS HONOUR:   “In its application to the Extradition (Croatia) Regulations, is Part II of the Extradition Act invalid”.  Is that all right, Mr Burmester – a) seems to be looking to the Act and b) seems to be looking to the regulations insofar as they are supported by the Act. 

MR BURMESTER:   I suppose I was puzzled by the words, “In its application” because I had understood question b) to be really the non‑judicial, if it is properly exercisable, non‑judicially, or if it could potentially be exercisable, non-judicially, is it adequate in that regard?  That is the very shorthand expression.  That is what I thought the question was getting at rather so that if the first question was answered, “No, it is not invalid because it involves non‑judicial power”, nevertheless, there may be some issues about its application in these particular cases involving these Croation regulations.  That is what I thought the question was directed at.

HIS HONOUR:   Are you happy with b) as it is?

MR BURMESTER:   I was happy with b) as it was.

HIS HONOUR:   All right.  What is the gist of b), Mr Hughes, as you see it, in its original form?  What issue is b) getting at that a) does not get at?

MR HUGHES:   The issue that b) gets at which a) does not or may not is whether the regulations are a valid exercise of the external affairs power.

HIS HONOUR:   Yes.  What then is the difference between b) and c), because that seems to be external affairs as well.

MR HUGHES:   Yes.  My answer would be that b) looks to the combined operation of the Act and the regulations and c) looks to the regulations ‑ ‑ ‑

HIS HONOUR:   Yes.  There is no other head of power, Mr Burmester, relied upon is there, than the external affairs power?

MR BURMESTER:   No, that is my understanding, that is all.

HIS HONOUR:   I just had a lingering doubt that to say that it is not supported by the external affairs power does, logically, indicate that it cannot be supported ‑ ‑ ‑

MR BURMESTER:   We could say, “or any other power”.  My present understanding is we would only be contending the external affairs power is relevant.  I do not think the ‑ ‑ ‑

HIS HONOUR:   “Is not made pursuant to the power conferred by section 51(xxix) of the Constitution or any other ‑ ‑ ‑

MR BURMESTER:   Or any other power.

HIS HONOUR:   “Or any other legislative power”.  Does that deal with it?

MR BURMESTER:   Yes, I am happy with that.

HIS HONOUR:   All right, I will go back and we will go through it all again. 

MR HUGHES:   Or any other legislative power of the Commonwealth.

HIS HONOUR:   “Of the Commonwealth”, yes, exactly. To assist those engrossing it I will just go back and we will go through it together again. In paragraph 2, “In 1975 the plaintiff was granted Australian citizenship pursuant to the Australian Citizenship Act 1948 (Cth) and he has retained that status ever since.”

Paragraph 5, “On 19 January 2006, Desiree Bell, an officer of the Australian Federal Police, applied in Western Australia to Mr R.H. Burton, a Magistrate of the State of Western Australia under the Extradition Act 1988 (“the Extradition Act”).”

Paragraph 6, the reference should be to “exhibit A” at “Liverpool in New South Wales”. In paragraph 7, the reference should be to “exhibit B”. I do not think we need the brackets. Paragraph 8, remove the last two sentences so that it finishes, “which other inmates had ready access”. Paragraph 9, “for the purposes of the Extradition Act”.

Paragraph 11, “between the Republic of Croatia and Australia, the Regulations were made in reliance upon section 11(1)(b) of the Extradition Act and were not made in order to give effect to any treaty”, et cetera. Paragraph 12 a), “Is Part II of the Extradition Act invalid?” and then question c), “the power conferred by section 51(xxix) of the Constitution or any other legislative power of the Commonwealth”.

MR HUGHES:   Yes, and then ‑ ‑ ‑

MR BURMESTER:   And 12 b), I am sorry, what is ‑ ‑ ‑

HIS HONOUR:   I was leaving that as is.

MR BURMESTER:    As is.  Except it will say “Is Part II of the Extradition Act ‑ ‑ ‑

HIS HONOUR:   I am so sorry, and b) should be “Is Part II of the Extradition Act read together with . . . invalid”.

MR HUGHES:   It reads, “Is Part II of the Extradition Act read together with the Extradition (Croatia) Regulations 2004 invalid to the extent” and so on.

HIS HONOUR:   Yes, as is. Then c) has at the end, “51(xxix) of the Constitution or any other legislative power of the Commonwealth”.

MR HUGHES:   Yes.

HIS HONOUR:   Very well then, gentlemen.

MR HUGHES:   Now, the parties in this connection, I doubt the plaintiff is the moving party, will file the special case in the form in which your Honour has amended and approved of it.  That probably leaves for appropriate directions for the question of a timetable for written submissions.

HIS HONOUR:   Yes.  Now, as I indicated before I have discussed the matter with the Chief Justice and the special case should be set down not before noon on Thursday, 13 April.  It is Maundy Thursday, so the timetable has to accommodate that.  Not before noon on 13 April.  Now, how soon could you get your submissions on, Mr Hughes?

MR HUGHES:   I would like at least, if that is possible, until Monday, 27 March.

HIS HONOUR:   Yes.  All right.  The written submissions are going to be important because there will be limited time, unfortunately, on the 13th for oral submissions so particular care is going to be need.  Monday the 27th?

MR HUGHES:   Yes.

HIS HONOUR:   Thursday the 6th, Mr Burmester, is that ‑ ‑ ‑

MR BURMESTER:   Yes, your Honour.  If we can have till the 6th that would be fine.

MR HUGHES:   And reply submissions?

HIS HONOUR:   Reply on Wednesday, the 12th?  It is a bit close but that is probably the ‑ ‑ ‑

MR HUGHES:   So it is Monday, the 6th for the defendants.

HIS HONOUR:   Yes, it will be the first and second defendants really, I suppose.

MR HUGHES:   Yes.  The Minister for Justice ‑ ‑ ‑

HIS HONOUR:   He has been removed.  No, he is there.  The Attorney has been removed.

MR HUGHES:   Because the Minister for Justice and Customs administers this Act.

HIS HONOUR:   That is right.  Yes, so he is an appropriate defendant.

MR HUGHES:   Yes.

HIS HONOUR:   Now, Ms Pepper, will you be intervening?  You do not know at this stage, do you, because it disrupts the parties if there is a late intervention by Attorneys?

MS PEPPER:   It is not envisaged at this stage, your Honour, but those behind me might take that on board.

HIS HONOUR:   I think I should say notice of any intervention under section 78A is not of the - just pardon me a minute.

MR HUGHES:   When convenient, may I raise one timetable matter with your Honour.

HIS HONOUR:   Yes, Mr Hughes.

MR HUGHES:   Your Honour said Thursday, the 6th for the defendants’ submissions.  Ms Pepper has pointed out that that is a Thursday.

HIS HONOUR:   Yes, Friday the 7th.

MR HUGHES:   Or, alternatively, the defendant to have a week till the 3rd – I am in your Honour’s hands – and perhaps less time for the reply so that they do not get it two days before the hearing.

HIS HONOUR:   Yes, any suggestions about that, Mr Burmester?  You are being squeezed, I think.

MR BURMESTER:   I am, your Honour.  I think we had tentatively indicated the 3rd may be suitable for us but when your Honour offered us extra days I was obviously attracted to that.  I was going to suggest that certainly the reply could perhaps be due before the 12th itself, at least before noon on the 12th but maybe the 5th or the 4th.

HIS HONOUR:   I will say the 4th.

MR HUGHES:   For the defendants’ submissions?

HIS HONOUR:   Yes, and the reply by the 10th.

MR HUGHES:   Yes.

HIS HONOUR:   Very well.  This is what I propose: 

1.Set the special case down for hearing before the Full Court not before noon on 13 April 2006;

2.Notice of any interventions under section 78A of the Judiciary Act 1903 (Cth) be given to the Court and to the plaintiff and to the first and second defendants on or before 20 March 2006;

3.The plaintiff’s written submissions be filed and served on or before 27 March 2006;

4.The written submissions for the first and second defendants be filed and served on or before 4 April 2006;

5.Any submissions in reply by the plaintiff be filed and served on or before 10 April 2006; and

6.        The costs of today be costs of the special case.

MR BURMESTER:  Your Honour, can I just mention the 78B issue?

HIS HONOUR:   Yes.

MR BURMESTER:   There was a 78B circulated in January when these proceedings commenced.

HIS HONOUR:   There was, yes.

MR BURMESTER:   I think there probably ought to be a revised 78B sent around in the next few days and that would then still give opportunity, I think, to respond by 20 March.

HIS HONOUR:   Yes, that might be right, Mr Hughes.  The case has changed shape a bit since the last 78B notice.

MR HUGHES:   Yes.  Revised 78B notice to be served on the ‑ ‑ ‑

HIS HONOUR:   Yes.  When can you get that out?

MR HUGHES:   Monday, the 20th. 

HIS HONOUR:   Yes.  So in order 2 I will say:

2(a)the plaintiff issue further notices under section 78B of the Judiciary Act 1903 (Cth) on or before 20 March 2006, and

2(b)notice of any interventions under section 78A of the Judiciary Act be given to the Court –

et cetera, as is and then the balance of it will remain as is. 

MR HUGHES:   Order 3 is costs of today to be costs in the ‑ ‑ ‑

HIS HONOUR:   No, that is 6.  Order 3 is plaintiff’s written submissions on or before 27th; order 4 is first and second defendants on or before the 4th; order 5 is reply by 10 April; and order 6 is costs of today be costs of the special case.

MR HUGHES:   Yes, thank you, your Honour.

HIS HONOUR:   Does that deal with everything, gentlemen?

MR HUGHES:   Yes, your Honour.

MR BURMESTER:  Yes, your Honour.

MS PEPPER:   Your Honour has, I think, made orders that the further 78B notice be filed and served before 20 March.

HIS HONOUR:   I am not sure whether I left you out of the description, Ms Pepper.  I am not sure whether you are still hovering or whether you have descended.

MS PEPPER:   We may well wish to contemplate that position after we have received the revised section 78B notice. I cannot imagine, as I said, your Honour, at this stage that the Attorney would be seeking to intervene to put submissions on the constitutional arguments but, be that as it may, would it permissible to, nevertheless, amend I think the time period given for notice of any intervention to be given under section 78A in light of the revised extra 78B notices to be filed by 20 March?

HIS HONOUR:   Yes, that is right.  You say the 24th?

MS PEPPER:   Thank you, your Honour.

MR HUGHES:   On or before the 24th.

HIS HONOUR:   Yes.  So 2(a) will now provide further 78B notices to go out before 20 March and 2(b) will provide, as Ms Pepper suggests, for responses on or before 24 March.  It is important that the timetable be closely adhered to given the limited time available before the hearing on 13 April.  Is there anything else?

MR BURMESTER:   No, your Honour.

HIS HONOUR:   Thank you.  I will now adjourn.

MR HUGHES:   May I express my appreciation to your Honour for allowing me to appear by video link because of the personal problem that I had.

HIS HONOUR:   Yes, no trouble at all.  Thank you, gentlemen and Ms Pepper.

AT 12.42 PM THE MATTER WAS CONCLUDED