This week brought important developments in two significant proceedings that will soon be heard by the High Court: the urgent litigation over the fate of approximately 150 Sri Lankan asylum seekers held in an Australian cargo vessel; and the constitutional challenge to Queensland’s ‘bikie’ laws.
In the Sri Lanka case on Wednesday, Hayne J decided on the wording of a ‘case stated’. The ‘case stated’ procedure involves identifying a set of legal questions for the Court to resolve (in this case, a series of complex questions about the meaning of the Maritime Powers Act 2013 (Cth), the scope of the Commonwealth’s executive power and the relationship of both with the non-refoulement obligation in refugee law and the writ of habeas corpus). The advantage of this process is that it avoids the need for complex factual disputes (e.g. about the Government’s decision-making process, or the current situation on the boat or in Sri Lanka) to be resolved before the Court can determine the relevant law. The disadvantage is the need to identify and describe all relevant legal issues in an uncertain factual context and (depending on the Court’s answer) the possibility that further proceedings to resolve factual disputes will be necessary after the Court renders its judgment.
In hearings last week and this week, both parties struggled with this process. The asylum seekers’ lawyers baulked at completely separating the legal disputes from the factual ones and fully identifying every fact that might matter to the outcome. The government’s lawyers resisted revealing its view on some factual matters (citing public interest immunity) and struggled to act speedily (because, according to barrister Stephen Donaghue ‘the instructions in this matter are being given at a high level within the Commonwealth and there are some things happening at the moment which are putting pressure on those people, quite unrelated to this litigation’.) Justice Hayne’s approach was to repeatedly instruct the lawyers to ‘sort it out’, set strict deadlines for draft wordings and provide ‘suggested’ drafts of his own. Yesterday, having brought the parties closer together, Hayne J decided to state a case, noting that he would not cover every issue the asylum seekers wanted raised (because the factual and legal uncertainty was too great). The hearing is set down for two days on August 5th, with Hayne J noting that any difficulties the parties had in making their arguments within that period might prompt the Court ‘to engage in a little alternative dispute resolution’.
The previous afternoon, another hearing before Hayne ACJ revealed a surprise development in the challenge to Queensland’s bikie laws: the challenger has dropped a number of his constitutional arguments (that previous included claims about freedom of association and federal trade mark laws), instead apparently focusing on the ‘Kable‘ argument that the Queensland laws are incompatible with the institutional integrity of Queensland’s courts. At the same time, the challenge was widened to cover some additional parts of the Queensland scheme, notably the laws barring the wearing of certain gang items in the Sunshine State’s licensed venues.
At the hearing, Hayne ACJ inquired about another possible development: newspaper reports that the Queensland government’s recent lost in a by-election has led to a rethink of its approach to bikies. Those changes may derail the challenge, which is exclusively based on the possible future effects of the law on plaintiff Stefan Kuczborski (rather than any past application of those laws to him or others.) Queensland’s Solicitor-General, Peter Dunning, replied that ‘as best I understand it, it is not proposed to amend anything that is the subject of controversy’, although he added that his knowledge, like the judge’s, was that of ‘an avid reader of the newspaper’. Assuming the laws remain in place, the case will be heard in early September in Brisbane at a hearing where (as Tuesday’s discussion also revealed) all the other mainland states and the Northern Territory will also be making submissions.