White, Ex Parte - Re Minister for Immigration and Multicultural Affairs P81/2000

[2000] HCATrans 588

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P77 of 2000

In the matter of -

An application for a Writ of Prohibition and Certiorari against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

JIA LEGENG

Prosecutor

Office of the Registry
  Perth  No P81 of 2000

In the matter of –

An application for a Writ of Prohibition and Certiorari against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte –

TE WHETU WHAKATAU WHITE

Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 5 OCTOBER 2000, AT 2.19 PM

Copyright in the High Court of Australia

______________________

MR H.N.H. CHRISTIE:   I appear for the applicants in both of these matters, if the Court pleases.  (instructed by the Director of Legal Aid, Legal Aid Commission WA)

MR P.R. MACLIVER:   I appear for the respondent in both matters, if the Court pleases.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   What is the attitude of Mr Macliver to the applications that you have made?  Maybe I could ask him that, first?

MR CHRISTIE:   Yes, thank you, your Honour.

MR MACLIVER:   Yes, if it please your Honour, my instructions are that the Minister does not oppose the making of show cause orders in both matters and my learned friend, Mr Christie, has been advised of that.

HIS HONOUR:   Do you have any comments on the form of the order nisi, from the point of view of the Minister?  Can I just mention that what I was inclined to do, rather than to grant the orders nisi at this stage, is to direct that they be returned before the Full Court on the day on which the appeals have been returned so that they could be the subject of a motion before the Full Court.  That does not mean that I am refusing to grant the orders nisi, I am simply indicating that I think it more appropriate as the appeals are listed that the matter should proceed before the Full Court and be before the Full Court on the day of the appeals.

MR MACLIVER:   Yes.  The Minister would agree with those proposals, your Honour.

HIS HONOUR:   Do you have any comments on the form of the documents in each case?

MR MACLIVER:   In the matter of Jia - the applicant has annexed a copy of the actual appeal documents in the Jia appeal.  In the White matter the appeal index has not been yet quite finalised and the applicant has in an affidavit annexed various documents, all of which will appear in the appeal papers, as I understand it.  There is one affidavit on behalf of the Minister which has not been included in the applicant’s affidavits, or it has not been annexed to his affidavit, but that particular document would not appear to be relevant to the issues in the prerogative writ application of whether or not the decision of the Minister of whether there was actual bias or apprehended bias.  We do not see a problem with the documents that have been filed in White, your Honour.

HIS HONOUR:   Could you just explain to me how in the case of Mr White the decision in the previous matter of Jia affects his case?  Perhaps I should ask Mr Christie that, rather than asking you.

MR MACLIVER:   Yes, thank you, your Honour..

HIS HONOUR:   Mr Christie, would you just explain that to me?

MR CHRISTIE:   Yes, your Honour, it affects it only indirectly in the sense that it was a finding of fact rather than a finding of law but the Full Court in Jia, having found that the Minister was actually biased at the time that the Jia decision was made, the Full Court in the White matter considered that that was a finding of fact that they could have regard to.  They also had regard to the dissenting judgments and the judgment of the trial judge and they then considered the history of the matter between the making of the Jia decisions in June 1997 and the making of the White decisions by the Minister on 14 October 1998 and they concluded that the Minister’s attitude towards persons in the position of White and Jia, namely, persons who had been convicted of crimes and served terms of imprisonment, had effectively remained the same.

The Minister still considered as a matter of policy and good principle that such people were not and could not be of good character and the Full Court therefore concluded in White that the Minister had made that prejudgment and that, in effect, amounted to bias.  The argument, of course, on the prerogative writ is that the Full Court having found that it was actual

bias that may or may not be disturbed by the High Court but the issue also arises as to whether it is an apprehension of bias and whether there has been a breach of natural justice as a result.

HIS HONOUR:   Yes.  You heard what I said to Mr Macliver that I was inclined to return the application before the Full Court on the day that the appeals are listed so that you can move the Full Court for these remedies in case they become relevant.  If you succeed on the appeals, it may be that they will provide you – or, rather, if the appeals provide the full remedy, then it may be that there may be no need to refer to the applications for constitutional writs.  On the other hand, it may be that you will want to fall back on those writs, in which event the application will be before the Full Court.  Now, do you have any submission to make in respect of that procedure?

MR CHRISTIE:   No, your Honour, I entirely accept and agree with that procedure.

HIS HONOUR:   Yes, very well.  Thank you very much.  There is nothing else further that you want to say, Mr Macliver?

MR MACLIVER:   No, your Honour.

HIS HONOUR:   Thank you very much.

The orders which I make in both of these matters are the same.  They are:

1.Return the applications for the constitutional writs and other relief before the Court in Perth on the day of the hearing of the appeals with which they are connected;

2.Direct that the applicants apply on motion to the Full Court on the day of the return of such process for the orders sought;

3.Order that the costs of the application today be costs in the application so returned; and

4.Certify to the appearance of counsel in chambers.

Are there any other orders that you seek, Mr Christie?

MR CHRISTIE:   No, your Honour.

HIS HONOUR:   Mr Macliver.

MR MACLIVER:   No, your Honour.

HIS HONOUR:   They are the orders of the Court.

AT 2.26 PM THE MATTER WAS CONCLUDED