Decision
35 I consider the appropriate course is as follows.
36 The BV conditions point should await the outcome of the High Court's decision in YBFZ. Both the resolution of the constitutional challenge to the power to impose such conditions, and likely any obiter observations about the nature of such powers and their lawful exercise, will inform any proceedings in this Court where arguments about those conditions are raised. In all likelihood, the decision in YBFZ will determine the outcome of many of these arguments in proceedings in this Court (and for that matter, in the FCFCOA Div 2).
37 Therefore, I reject the submissions of the legal representatives in BOE21 that this issue should be heard by a Full Court. There is insufficient justification for the use of the Court's time and resources, and the parties' time and resources, in examining a significant constitutional and legal issue in circumstances where that issue is to be determined by the High Court in a matter of months. The applicant in BOE21 is not in immigration detention under the Migration Act. The argument that a person subject to the impugned conditions remains in the custody of the Commonwealth by reason of the curfew condition is also a matter that will be agitated in YBFZ: see the plaintiff's submissions at [13]-[20]; defendants' submissions at [37]. Additionally, counsel for the applicant in BOE21 accepted at the case management hearing that further time was required for the applicant to revisit and amend his pleadings, the separate question and the agreed facts, in order to enable a Full Court to determine the judicial review point. In circumstances where the High Court will hear YBFZ in approximately one month's time, any programming orders for BOE21 may well be overtaken by a decision in YBFZ.
38 While I accept the well-established authorities about the need for a Court to deal as promptly as practicable with a habeas corpus application, in my opinion in the present case for BOE21, where he is living in the community on a bridging visa and where YBFZ is before the High Court, the considerations in those authorities are outweighed by other matters affecting the effective and efficient administration of justice in this Court. By this I refer to not only the time and resources of the Court in the face of many competing demands from litigants, and the time and resources of the parties, but also the potential for inconsistent decisions.
39 In contrast, the detention for visa purposes point should be determined by a Full Court. While I accept that ultimately this is also an issue that may come before the High Court in the future, on presently available information there is no case before the High Court in its original jurisdiction on this issue, and no grant of special leave in any proceeding raising this issue.
40 The Commonwealth has the ability, through the removal power conferred on the Attorney-General by s 40 of the Judiciary Act 1903 (Cth), to seek the removal of a proceeding to the High Court. That process will remain available to the Commonwealth.
41 Otherwise, it is in the interests of the administration of justice and the effective case management of the NZYQ cohort of cases in this Court for this Court to determine, at a Full Court level, whether the principles in NZYQ can ever be engaged where a person is being detained for the purpose of considering whether to grant the person a visa. The correctness of the Full Court's decision in ASP15, after NZYQ, should also be resolved. The detention for visa purposes point is likely to involve a number of ongoing cases, depending on the delays in finally determining visa applications, whether by persons whose removal from Australia might not be reasonably practicable, or by persons who have been detained and waiting for a long time for a visa decision. While the ultimate resolution of these proceedings will be fact-dependent, the issue of principle about the consequences of NZYQ can be determined in a way which will at least provide guidance in this Court.
42 Therefore, the referral in CZA19 to a Full Court should be maintained, and the matter listed before a Full Court. A similar referral should be made in DBD24, because it is the applicant in this case who remains in immigration detention because of the absence of a decision on his protection visa application. Should there be, in the immediate future, a decision on the visa application, then the applicant in DBD24 will be in the same situation as the applicant in CZA19, and will retain a claim for false imprisonment. In those circumstances, the referrals should still proceed to hearing and determination. The appropriate course as determined by the Court should not alter because of the apparent arbitrary timing of a decision on protection visa applications, and if any amendments to the relief sought are necessary, those amendments can be made.
43 These conclusions mean there is no issue of general principle in BOE21 justifying a Full Court hearing at present. What remains in that proceeding is the as yet unformulated judicial review claim. As counsel for the applicant in BOE21 fairly accepted, that judicial review challenge depends upon the validity of the bridging visa conditions. The validity will be determined by the High Court in YBFZ.
44 Therefore, the appropriate orders in BOE21 are to revoke the referral to the Full Court, and to adjourn the proceeding pending the High Court's decision in YBFZ. In substance, in terms of timing, this will place the applicant in BOE21 in the same practical position as the applicants in CZA19 and DBD24. On the BV conditions point, their cases will also await the outcome in YBFZ. Their cases will be permitted to proceed only on an argument not made in BOE21.
45 That leaves the fate of the other proceedings which were mentioned during the case management hearing, but which were not listed. There was some overlap in legal representation on both the applicant and respondent side between counsel appearing in the three matters listed, and these other matters. However, it was not an entire overlap, and in any event, the parties in those other proceedings are entitled to be heard in the usual way. Further, there are also likely to be other proceedings affected by these rulings.
46 The appropriate course is first to provide a copy of these orders and reasons to each of the parties in any identified proceedings where similar issues are raised, and to the docket Judge. This will be done administratively.
47 Second, from this point onwards, the case management of proceedings raising either the BV conditions point or the detention for visa purposes point, or both, will be referred back to a Registrar. This will be done by me administratively, and the parties in affected proceedings will be notified. Subject to the Registrar accepting any submissions from the parties in those proceedings that suggest a different course, proceedings in this category (like BOE21) will be adjourned pending the outcome of YBFZ, and (where relevant) the Full Court's decision in CZA19 and DBD24.
48 In my opinion, this is the fairest, most effective and efficient management of this caseload, and the one likely to ensure the greatest level of consistency in the administration of justice in proceedings where similar issues are raised. As I have explained, parties will be afforded an opportunity to explain to a Registrar why this course should not be followed in a particular proceeding, but it will be up to that Registrar, or the Chief Justice if the matter is referred to me, to determine whether any departure from this standard course is appropriate.