APPELLANT'S SUBMISSIONS
23 Mr Williams submitted that:
(1) Where a legal representative objects to the conduct of a judge or contends actual or appended bias on the part of the judge, there is an obligation to endeavour to have those objections and contentions noted and recorded;
(2) Generally, an application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts;
(3) Where there are matters that might properly arise for consideration which are known to the judge, it is desirable that they be drawn to the attention of the parties;
(4) Circumstances that may lead to a reasonable apprehension of bias include where a matter has been prejudged or where the party has not had an opportunity to be heard on the matter in open court, as in this case. Mr Williams relied on Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] where the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said (footnotes omitted):
… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
which was affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ);
(5) There are a number of cases concerning conduct of the trial judge that involve adverse observation in relation to one party's case or adverse findings made against a party without proper substantiation: see, for example, Mistral International Pty Ltd (Formerly known as Ringgrip Pty Ltd) v Polstead Pty Ltd [2002] NSWCA 321;
(6) Present authority supports the propositions that: an application for disqualification can be made without filing any formal motion (see Barton v Walker [1979] 2 NSWLR 740); it should be determined by the judge whose disqualification is sought; it should not involve a contest of facts; and a denial by a judge alleged to have made a relevant statement cannot settle the question which depends on the view of a "fair-minded observer". Although Mr Williams did not provide pinpoint references, the passages of CUR24 v Director of Public Prosecutions [2012] NSWCA 65; (2012) 83 NSWLR 385 on which counsel relied appear to be statements of Meagher JA at [50] and [52] and Basten JA at [22] addressing how contested evidence of out of court statements said to have been made by a judge asked to disqualify her/himslef should be assessed by reference to the fair-minded lay observer;
(7) A refusal by a judge to accede to an application for disqualification can be relied upon as a ground of appeal in relation to the substantive argument; and
(8) An indication by a party that it wishes the judge to disqualify himself or herself is not itself a proper ground for a judge to do so. Judges are required to discharge their professional duties unless disqualified by law. They should not accede too readily to an application for disqualification, otherwise litigants may succeed, effectively, in influencing the choice of judge in their own cause. Mr Williams submitted that that was not the case on this application.
24 In support of the recusal application, the appellant relied on the use of the phrase "substantive failure to comply with timetabling orders" in my associate's email sent to the parties on 27 May 2021 set out at [16(b)] above and the following matters.
25 Mr Williams submitted that a fair-minded lay observer might reasonably apprehend bias because:
(a) The use of that phrase was indicative of prejudgement of whether there had been a substantial failure to comply with the Registrar's direction because there had been a conclusion reached and a finding made by email, rather unfairly, because it was made without giving the appellant an opportunity to explain the delay in filing submissions or the troubles and difficulties she faced. While a hearing concerning breach of orders might be significant in terms of costs, it should not be conducted by email and without the appellant being given an opportunity to put on evidence and be heard in open court in support of her reasons as to why there was a dispute as to non-compliance.
(b) The appellant had only been told on 26 May 2021 that the matter had been set down for hearing on 16 June 2021. That was in circumstances where the appellant had not been given an opportunity to amend the notice of appeal, because there was no direction for that made by the Registrar on 20 October 2020, and the FCCA Judge's reasons for judgment were not available at the time the notice of appeal was filed. Then, on 27 May 2021, the Minister and my chambers were put on notice of the appellant's intention to file an interlocutory application seeking leave to file an amended notice of appeal and obtain discovery from the Minister by the email set out at [16(a)] above.
26 Mr Williams submitted that the "tone" I used in an exchange towards the beginning of the hearing and "personal attacks" on him were further matters in aide of his application.
27 The exchange in which my "tone" was relied on occurred in the following context: As noted at [21(c)] above, at 1.25 pm on 2 June 2021, Mr Williams sent an email to my associate, copied to Ms Saunders and Mr Dennis, to which was attached an unsealed copy of the appellant's affidavit. In her affidavit, the appellant deposed as follows:
6. On 22 March 2021, the parties were asked to confirm availability for a hearing in June 2021.
7. Exhibited and attached as "COV18-2" is a copy of the email by the Associate to Farrell J., made on 22 March 2021.
8. On 30 March 2021, the parties were notified that submissions were due 18 May 2021 and 1 June 2021, respectively. No date was set down for final hearing.
9. Exhibited and attached as "COV18-3" is a copy of the email by the Associate to Farrell J., made on 30 March 2021.
…
15. On 26 May 2021, the matter was set down for final hearing on 16 June 2021. Given this, I could not comply with the orders by the Registrar made on 20 October 2021. In particular, I could not comply with order (4) for the filing of the Appeal Book, on or before (20) days prior to the hearing, as the date has passed.
16 Exhibited and attached as "COV18-5" is a copy of the email by the Associate to Farrell J, made on 26 May 2021.
28 Shortly after appearances were made Mr Williams made the oral application that I disqualify myself on the basis of the email sent by my associate to Mr Williams and Ms Saunders on 27 May 2021 (see [16(b)] above) and he read the appellant's affidavit. The Minister' counsel indicated that she did not have a copy of the affidavit and asked Mr Williams to provide one. The following exchanges then occurred:
MR WILLIAMS: Well, your instructing solicitor has one.
MR L. DENNIS: It might have been in the email.
MR WILLIAMS: It is in the email. It's on your email. I will allow them a moment to have an opportunity - - -
HER HONOUR: I will ask one of my associates to please - - -
MS HOOPER: Thank you, your Honour.
HER HONOUR: - - - go and print a copy of the 2 June email.
MR WILLIAMS: Perhaps it might be appropriate for the matter to be stood over for 10 minutes while my friend has an opportunity to - - -
HER HONOUR: Well, unless he also has access to the exhibit and the course of the emails - he should have access to the course of the emails. But, Mr - I will stand this over for five minutes, but, Mr - - -
MR WILLIAMS: Thank you, your Honour.
HER HONOUR: - - - Williams, I invite you to have a look again at the emails that were sent to you on 22 March 2021, to which my associate received no reply, and the express terms of the email sent to you on 30 March which contained the listed hearing date not mentioned in this affidavit.
MR WILLIAMS: Your Honour, I also note the tone of the bench as part of my recusal application. The emails in my affidavit, if your Honour has had an opportunity to read them, have gone through each and every single one of those correspondence - - -
HER HONOUR: Yes.
MR WILLIAMS: - - - and forms the basis of - - -
HER HONOUR: But, Mr Williams - - -
MR WILLIAMS: - - - the recusal application.
HER HONOUR: Okay. Mr Williams - - -
MR WILLIAMS: Thank you, your Honour.
HER HONOUR: - - - you say or your client says at paragraph 7 - sorry - at paragraph 6:
On 22 March 2021 the parties were asked to confirm availability for a hearing in June 2021.
MR WILLIAMS: Your Honour, I think my friend should have an opportunity to read it so that we're on the same page.
HER HONOUR: Yes. No, but I want you to have an opportunity to address what I'm saying to you.
MR WILLIAMS: My apology. Did I not address that previously by saying that I'm well aware of all the email communications ..... was there and read them.
HER HONOUR: Okay. But what I'm pointing out to you is that this affidavit doesn't reference the fact that you failed to respond - - -
MR WILLIAMS: Your Honour, it does.
HER HONOUR: - - - to the email dated - - -
MR WILLIAMS: It states clearly that I was in hearings at that point in time, and there was an email from me to your associate saying I was in those meetings. But I would rather address that in the context once my friend has had an opportunity to look at that.
HER HONOUR: Okay. Well, I also draw to your attention, though, you say that in relation to the email dated 30 March 2021:
…the parties were notified that submissions were due on 18 May and 1 June, respectively. No date was set for the final hearing.
MR WILLIAMS: Well, that might be - I will just need to - - -
HER HONOUR: That is contrary to the terms of the email.
MR WILLIAMS: No. But I might - I just need to have a look at what that was. But on 18 May the submissions were due and then the Minister's submissions were due, but in the listing that we received there was no listing date for the hearing. We only received that later.
HER HONOUR: Have a look at the terms of the email, Mr Williams.
29 By way of background to an allegation made by Mr Williams that I made a personal attack on him, Mr Williams submitted that: There had been "some procedural irregularities" in this case, "in large part not due to the appellant". The appellant's written submissions filed on 1 June 2021 state that the Minister has had a Suspected Illegal Entry Vessel Report (SIEV report) in his possession since 2013 and discovery of that report is sought. The SIEV report goes directly to whether or not the appellant was an unauthorised maritime arrival or fast track applicant. The Minister has resisted production of the SIEV report in other matters for over a year and half. The SIEV report had been effectively hidden from the appellant and she only became aware of that report through legal advice in other matters. Counsel then said:
And the SIEV report which we are seeking from the Minister in other matters is directly relevant to whether the appellant is an authorised maritime arrival or - and, indeed, whether she's an IAA fast-track review candidate. Your Honour, in other matters that I have been briefed in we have produced the SIEV report and it shows that at the time of the relevant entry there was the Australian Government's policy to turn back boats or to exercise a policy of interdiction, which is effectively to do nothing if a boat was stranded in Indonesian waters.
In other matters, your Honour, tragically there have been the loss of life where the boat has been turned back, illegally under international law, and then, in Indonesian waters, has come into distress and sunk. I am instructed in this matter that the boat was in distress, but there was no loss of life and it didn't sink, but the appellant is unable to recall the - naturally, the exact location of where she was detained at sea. Now, the Minister has this knowledge and has had this knowledge for nearly a decade; it's not in the court book; it's not in the - it wasn't in the bundle of documents; it wasn't before the IAA.
30 Following those submissions, the exchange complained of ensued as follows:
HER HONOUR: Has [the SIEV report] been requested in this matter?
MR WILLIAMS: In the documents it has been - the documents filed has a subpoena to produce.
HER HONOUR: No, I understand that. But prior to the filing of that document, has there been any correspondence in this matter asking for the material?
MR WILLIAMS: Well, I've spoke[n] to my friend this morning. She confirms that it will be resisted, but I'm not sure she can - - -
MS HOOPER: Your Honour, the answer is no, there hasn't been that correspondence.
MR WILLIAMS: Well, there has been. On 27 May the documents were filed and the - - -
HER HONOUR: But there was no correspondence - - -
MR WILLIAMS: Well - - -
HER HONOUR: - - - before the filing. That was my question, Mr Williams.
MR WILLIAMS: Well, your Honour, I don't need to - the appellant does not need to seek the permission of the Minister to file an interlocutory application for documents that have been resisted.
HER HONOUR: I wasn't suggesting - - -
MR WILLIAMS: But the - - -
HER HONOUR: I wasn't suggesting - - -
MR WILLIAMS: Well, the answer to it is - is that the Minister was put on notice once those documents were filed.
HER HONOUR: Okay. But there was no prior request.
MR WILLIAMS: Well, it's irrelevant, your Honour. And in my respectful submission - - -
HER HONOUR: Yes.
MR WILLIAMS: - - - it's irrelevant.
HER HONOUR: There may be different views about that, Mr Williams.
MR WILLIAMS: Well, your Honour, you're asking to go behind the formal documents before the court, and I'm not willing to do - - -
HER HONOUR: Well, I'm entitled to ask that question, Mr Williams.
MR WILLIAMS: Well, your Honour, I'm sorry. The relevant question is why has the Minister not included these documents before the IAA or put on a certificate, public-interest immunity or a non-disclosure certificate? Now, our grounds we seek to amend to raise that there has been a formal denial of procedural fairness - that the IAA has mistrialled, in effect, because it did not have these documents before it when it's quite apparent they are relevant to whether the IAA has jurisdiction.
So the question really isn't why the appellant notified the Minister on 27 May. The question is why didn't the Minister produce these documents 10 years ago or at least at the time when the IAA was hearing the matter? Your Honour, we say that constitutes a ground of procedural unfairness. So with regard to the affidavit, your Honour, I will just say that is - way of background, that on paragraph 2, your Honour will note that the appellant commenced proceedings by filing a notice of appeal on 7 October 2020 before the primary judge of the Federal Circuit Court.
That matter was dismissed extemporaneously on 9 September 2020. At the time of filing the notice of appeal to remain in time, the affidavit that I read of that time - I think it was 7 October - formally states that - the reason why the appeal is incomplete and we would be seeking time to amend to take in light the reasons for judgment - that they weren't available. So that explains some of the delay. Your Honour - - -
HER HONOUR: In filing submissions?
MR WILLIAMS: No, your Honour, filing an amended notice of appeal.
HER HONOUR: Okay. So have you moved on from the recusal application?
MR WILLIAMS: No, I haven't.
HER HONOUR: Okay. So - - -
MR WILLIAMS: No, I have not finished.
HER HONOUR: Well - - -
MR WILLIAMS: So - - -
HER HONOUR: Okay. Keep going.
MR WILLIAMS: I would appreciate an opportunity to be heard on the recusal application.
HER HONOUR: You have every opportunity to be heard on it - - -
MR WILLIAMS: Thank you.
HER HONOUR: My question was, though, that issue seems to go to the leave application, not to the failure to provide submissions on time.
MR WILLIAMS: But, your Honour, it seems that your Honour is focused on the submissions, and I will come to that. [S]o the submissions could not be finalised - this is the - again, I note the personalised attack on counsel - the submission - and your Honour is focused on the question of submissions as a breach of orders. The submissions could not be completed without an amended notice of appeal.
HER HONOUR: Yes, and?
MR WILLIAMS: And it could not be completed with[out] an interlocutory application to amend the notice of appeal, and it could not be completed without the subpoena to produce the SIEV report. So that would be a just basis for the submissions not comply with the 18 May direction - March - 18 May direction. …
31 After a number of exchanges, Mr Williams conceded that the email sent by my associate to Ms Saunders and Mr Williams on 30 March 2021 did advise that the appeal had been set down for hearing on 16 June 2021, he apologised for that error and said that he took responsibility. The following exchange then occurred:
HER HONOUR: Well, what effect does that have on your recusal application, Mr Williams?
MR WILLIAMS: Well, I'm simply building up to say that this was the procedural history prior to your Honour making a determination that there had been substantial non-compliance without the appellant now explaining the reasons for it.
HER HONOUR: Well, don't you think that there's some reason for concern when a matter has been listed since March for June - - -
MR WILLIAMS: Yes.
HER HONOUR: - - - and we were entering June - concerning the respondent's capacity to respond to anything that you might have to say without prejudice to the date of 16 June?
MR WILLIAMS: Your Honour, I think that the more important question is not to be targeted at me or the appellant, but ask the Minister why he has not produced this document in the last 10 years.
HER HONOUR: I'm sorry, that isn't a timetabling issue.
MR WILLIAMS: No, it is a timetabling issue, because there's no way that the - the appellant was relying on an amended document that the Minister has and has had in his possession. I mean, your Honour, we're losing focus a little bit here. We've got the appellant escaping Iran on the grounds that she faces the death sentence for apostasy and wearing the hijab and we were - unfortunately discovered new documents and sought leave to amend those documents. So I think, putting it in perspective, the criticism coming to the appellant is rather unfair. In terms of the - on 27 May the associate and the Minister were notified of the appellant's intention to file.
Now, there's no rule, your Honour, that says that the appellant can't file an interlocutory application at some point. There's no bar on the appellant making an interlocutory application. The amended notice of appeal had to be dealt with and, perhaps in terms of case management, instead of placing everything at the hands of the appellant, I mean, really the matter should have been perhaps case managed prior to this. Now, there has been, regrettably, emails that have come from chambers and to - sometimes addressed only to the solicitor for the Minister, but in correspondence - - -
HER HONOUR: I'm sorry, you're going to have to make good that submission.
MR WILLIAMS: I will make good that. Yes, I will, and this is a part of the recusal application. So 27 May chambers and the Minister had notice that there was - well, they've had notice since at least 18 May [sic] when the Minister was notified that there would be further materials. Then 27 May the telling email was at - from chambers stating "having regard to the appellant's substantial failure to comply with the timetabling orders". Now, for the reasons that I outlined at the beginning that was the constituted prejudgment, because there was no opportunity for the appellant to provide any explanation for what had happened.
32 From these exchanges and exchanges that followed I understand Mr Williams to have raised the following issues:
(a) Criticism of the appellant in the email sent by my associate to Ms Saunders and Mr Williams on 27 May 2021 (see [16(b)] above) by use of the term "substantive failure to comply with timetabling orders" was unfair when notice of an intention to file an interlocutory application seeking leave to file an amended notice of appeal had been provided on that day to the knowledge of my associate and the Minister and the Minister had not provided the appellant with the SIEV report in the past 10 years;
(b) Instead of making a finding of "substantive failure to comply with timetabling orders" in my associate's email dated 27 May 2021 without affording the appellant an opportunity to explain, the parties should have been invited to attend a case management hearing. Mr Williams submitted that a case management hearing after such a finding is futile;
(c) Mr Williams submitted that the words "Should chambers not receive a response from Mr Williams by 2 pm today this matter will be listed for case management" in the email sent on 31 May 2021 (see [18(a)] above) were quite demanding and should have been framed as a request that he respond to chambers or as an enquiry as to whether he was available to respond. He says he advised chambers that he was in Court and would respond later in the day and did so (see [18(b) and (d)] above);
(d) The fact that the documents which Mr Williams lodged for filing on 31 May 2021 (see [18(c)] above) had not been approved by me for acceptance for filing but were still marked "pending" indicated that they had been refused, consistent with a finding that there had been substantial non-compliance with timetabling; and
(e) My associate's email sent on 1 June 2021 (see [20(f)] above):
(i) Was addressed to Ms Saunders personally. Notwithstanding that the email was copied to Mr Williams, he submitted that Ms Saunders engaged in communications with the Court without prior agreement with him;
(ii) Was sent in circumstances where the documents which Mr Williams lodged on 31 May 2021 were not accepted for filing so that the appellant could not obtain sealed copies of them to serve on the Minister. My associate in effect served those document on the Minister (see [20(c)-(f)] above). That is in circumstances where the appellant was being criticised for failing to file and serve documents on time.
33 Mr Williams made further submissions that I made personal attacks on him at the hearing which arose after Mr Williams accepted that a hearing of the appeal could not now proceed on 16 June 2021. Mr Williams referred to the fact that he had sent proposed consent orders to the Minister on 2 June 2021 as follows:
MR WILLIAMS: I sent the email to the Minister with the proposed orders again, saving much time and court resources today, with those proposed consent orders. There is no other reasonable way to move forward, given the Minister has hidden documents from the appellant, given the failure of the - well, given the lateness of the reasons for judgment. I only became aware on 18 May that they had been made available on AustLII. The late timetabling, the failure of the appellant, due to her work commitments, to come in and sign documents, these have all been accumulative effects.
HER HONOUR: May I ask: what do you say to the fact that those reasons were published in October 2020?
MR WILLIAMS: 14 October, yes.
HER HONOUR: They presumably were available on AustLII reasonably promptly after that. Did you look before then or - - -
MR WILLIAMS: Well, no, I didn't, because the appellant was represented by another solicitor.
HER HONOUR: Right.
MR WILLIAMS: All right. So - - -
HER HONOUR: At that point?
MR WILLIAMS: Yes. So - - -
HER HONOUR: Okay.
MR WILLIAMS: At that point, yes. And, as I understand, she asked - he requested a request for judgment, but the appellant never got them.
HER HONOUR: Right.
MR WILLIAMS: So in that regard my submissions were due, after being notified on 18 May - so the personal attack again, your Honour, which I have to take exception to.
HER HONOUR: What personal attack?
MR WILLIAMS: Well, you asked me if I had looked for the reasons for judgment before the submission. Yes, so in terms of my - - -
HER HONOUR: Well, what I was attempting to do is draw to your attention the fact they had likely been available - - -
MR WILLIAMS: It's a personalised attack, yes. No, I had looked at that and I've just answered that.
HER HONOUR: And you also filed the notice of appeal, didn't you?
MR WILLIAMS: Sorry, yes, but, your Honour - - -
HER HONOUR: Well, that's why I asked you the question.
MR WILLIAMS: Well, may I - - -
HER HONOUR: It appears that you were acting - - -
MR WILLIAMS: Look, your Honour, the submissions were due on 18 May.
HER HONOUR: Yes.
MR WILLIAMS: Yes. So when I - I have a very busy practice. So when I came to review the file prior to 18 May that's when I discovered that they were there. That's when I regularised the proceedings and, unfortunately, the appellant didn't come in.
So, I mean, again I'm just wanting to hold up my own integrity because your Honour seems to like to have a go at me - - -
HER HONOUR: I'm asking you for issues - to address issues.
MR WILLIAMS: No, no, but they're not relevant.
HER HONOUR: Well, it is relevant that in - - -
MR WILLIAMS: No, no, it's a reasonable apprehension of bias every time I appear before your Honour.
HER HONOUR: Mr Williams - - -
MR WILLIAMS: Well, it is.
HER HONOUR: - - - in March you were advised by email that submissions were due on 18 May.
MR WILLIAMS: Your Honour - - -
HER HONOUR: What I'm asking you to explain, I'm giving you a fair opportunity to explain, is why between March - - -
MR WILLIAMS: And 18 May.
HER HONOUR: - - - and the due date for the submissions - - -
MR WILLIAMS: Yes, they were. I did.
HER HONOUR: And you - - -
MR WILLIAMS: The short answer is that I did. When I came to prepare the submissions and the documents for 18 May that's when I discovered that it was on AustLII. Prior to that there was no obligation for me to do anything. Unfortunately on 18 May the appellant wasn't able to meet with me, but again it's this reflection from the bench to try and go into my own personal culpability for which there is no basis to do so, and I have faced this every time I walk into this honourable court, personalised attacks directed at counsel which are unfair and inaccurate. And the bottom line is, your Honour, that really I should be asked to sit down and say nothing further and the Minister should be explaining why has this document not been produced to the appellant before or the IAA prior.
It is how she came into the country. If she was picked up in Indonesian waters it was illegal. She's not a UMA. She's not an IAA. There is a denial of procedural fairness because the Minister has been hiding these documents for 10 years. But what happened then, your Honour, was that the appellant was then detained in high seas at gunpoint, and handcuffed and put into the bottom of a ship, and taken into Australia and then locked up on Christmas Island for over a year or so, where she was then told that she would be deported to Nauru or PNG for five or more years where she would have no opportunity to have her claims heard and processed.
And then she was told that she would be under the no resettlement program where she would not be resettled in Australia even if she had claims. And then we have an - then she, by sheer luck, is allowed to be given a bridging visa to stay in Australia, not shipped to the third world nations who can't feed their own people, not housed in torturous, inhumane, degrading treatment, in gross violation of international law which has been adopted and incorporated into Australian law through the Criminal Code. She is then given a BVE without work rights, without education rights, without health rights, without housing rights. Basically held in destitution for seven or more years. And then there's a direction from the then Minister for Immigration, now Prime Minister, to go slow on the processing - and there's a document in the affidavit that we're relying on - to go slow on the processing so that the applicant would not - appellant would not be eligible for permanent protection, but would be only eligible for temporary protection.
And to go slow on the processing meant that this thing meant that she was detained at gunpoint at sea; illegally in Indonesian waters; kidnapped; taken into Australia; told she's going to be sent for five - won't be processed for five or more years under the no-resettlement deal - won't be resettled in Australia; given a bridging visa; facing restrictions on her freedom that no other person faces in Australia; has her life utterly destroyed; and then is told that she can go home anytime she likes and that they will give her money to go home anytime she likes, and would happily go home except that she faces the death sentence for apostasy and for wearing - not wanting to hijab.
HER HONOUR: Mr Williams - - -
MR WILLIAMS: So we - - -
HER HONOUR: - - - I don't want to interrupt, but aren't these submissions that go to any substantive application - that it actually has to be heard - sometime[..]?
MR WILLIAMS: Well, these submissions are actually going to the focus of this court, okay - - -
HER HONOUR: On?
MR WILLIAMS: - - - on a failure that there has been non-compliance; on the focus of this court not to allow the filing of these documents so that this could be properly articulated; that we've provided proposed consent orders for the orderly conduct of it. I sincerely apologise, your Honour, for any tardiness or anything beyond my power to make sure that the orders and the - were complied with; I've done my very best. I work 10/15-hour days to try and do so. It's out of my control.
But these are some of the most important and significant issues - arbitrary indefinite detention, illegal arrest at sea, people smuggling back into Australia, seven years without processing, directions to go slow while the legacy caseload legislation is passed - and my client has faced an arbitrary illegal detention - false imprisonment for over seven years . She wasn't a UMA. The illegality of going into Indonesia destroys everything afterwards. It's like a, you know - police going into a search and arrest into a house without a warrant.
HER HONOUR: Mr Williams, I can't do anything about that right now. So can we deal with the case management issues that are before us at the moment.
MR WILLIAMS: Well, yes, your Honour. We propose - we press the recusal on those grounds, and we seek the orders - if not, we seek the orders as proposed. If there's anything further - - -
HER HONOUR: Thank you. Ms Hooper.
34 Ms Hooper indicated that the Minister did not consent to the application but otherwise did not wish to be heard on it, on the basis that it was for Mr Williams to satisfy me of the basis for the application.