Part 3: The 04 September 2019 Surprise and Procedural Fairness
A Breach of Procedural Fairness — The Source of Renewed Legal Action
This article is Part 3 of a three-part series making the humanitarian and legal case for the #HometoBilo family to remain in Australia. At the 4 September 2019 hearing before the Federal Court of Australia (FCA), the Minister’s legal representatives brought an affidavit into play. This affidavit took the legal team of the #HometoBilo family by surprise. To a large extent, this put their case on the back foot — presumably to the point where that case had no reasonable prospect of success. Typically, when a party to a proceeding is deemed to have no reasonable prospect of success, that party’s case is summarily dismissed. That is, if it is established that the plaintiff in a case will not be capable of proving, according to the law and the rules of the court, any of the claims that the plaintiff brings to the court, rather than waste judicial resources, tax payer monies, other government resources, and/or denying or delaying access to the courts by other litigant’s with legitimate cases to be tried, the court is under an obligation to summarily rule against the plaintiff. On the other hand, in relation to the respondent, if it is established that the respondent will not be able to defend any of the claims brought against him, the court is similarly under an obligation to rule summarily against the respondent. Simply put, the court is obliged to do this because it would not be in the public interest to continue with a trail, or a series of hearings, when it has already been determined that one party, be it the plaintiff or respondent, will necessarily lose. The public interest referred to is essentially the waste of resources and denial or delay of access to the courts mentioned in the second-to-last sentence.
Of course, the lawyers for the #HometoBilo family had planned on running a case where their main claim would be that the younger of the #HometoBilo’s two Australian-born children was never assessed or considered in any of the matters/proceedings which had gone through the various courts. Once the Minister brought the affidavit — an affidavit which documented that this Australian-born child’s case had already been assessed by the Minister or his Department — into evidence, the #HometoBilo family literally found themselves in no man’s land. However, the learned judged presiding over the case correctly decided that the #HometoBilo family needs more time to consider the new affidavit evidence. The judge’s ruling is very likely based on a determination that the Minister had engaged in what is known in legal parlance as trial by surprise.
Trial by surprise is not permitted in modern legal arrangements that involve case management; a docket system; and the need to conduct all trials fairly, efficiently, expeditiously, at least costs, and according to law — features which govern almost all Australian Courts. The aforementioned features of a trial are typically referred to in civil litigation or a suit as the overarching purpose of civil litigation — procedural fairness is another characteristic of all properly conducted trials, unless an explicit statutory provision defeats it.
It could then be argued that, on 4 September 2019, the additional time afforded to the #HometoBilo family was to cure the effects of trial by surprise. Furthermore, it was no surprise that the hearing conducted on 6 September 2019 was not determinative, simply because the two additional days were insufficient to cure the ill effects of trial by surprise. On 4 September 2019 had the judge allowed trial by surprise it would have amounted to a breach of procedural fairness. This is so because the #HometoBilo family simply would not have had time to deliver a considered, or well-considered, response to the new information presented by the Minister. The even more surprising thing is that the Minister had assessed the younger of the #HometoBilo family’s children, but the family was unaware of that consideration and the decision reached pursuant to that consideration.
Obviously, the #HometoBilo family did not have a chance to be heard in whatever process the Minister engaged in assessing the younger child’s case. Whilst the judge avoided breaching procedural fairness, in a situation where a statutory decision-maker — in this case, the Minister or his agents — engages in a breach of procedural fairness it brings into focus the constitutional validity of any decision reached by that statutory decision-maker. As a matter of fact, dealing with the constitutional validity of such a decision precedes all other matters in the case before the courts. Strictly speaking, such a breach of procedural fairness presents a situation where a constitutional writ of mandamus, prohibition, certiorari, or an injunction (MPCJ) lies under section 75(v) of the Commonwealth Constitution. Where an MPCJ lies against a statutory decision-maker, who happens to be an officer of the commonwealth, the High Court of Australia (HCA) has original jurisdiction to hear the matter under section 75(v) of the Commonwealth Constitution; or the Federal Court of Australia (FCA) has jurisdiction under section 39B of the Judiciary Act 1903.
In conclusion, what can now be stated is that, despite the refusal by the HCA to grant special leave to appeal to the #HometoBilo family, the judiciary still has the power to engage the matter, as detailed in the previous paragraph. That is, either the HCA or the FCA has jurisdiction to hear and determine the matter, at least as it relates to the ‘correctness’ of the decisions of the Minister and the lower courts, and the judiciary should not shy away from this matter of great public importance and interest. After all, it was this very LNP Coalition government that stated that it was necessary for immigrants to ‘assimilate and/or adopt Australian values’. The reports from neighbors of the #HometoBilo family is that this family has assimilated and adapted to Australian values in the best possible ways. They are working hard to raise their family. They volunteer at the local hospital. They serve their community and know the members of that community, with the community, obviously, having a mutual knowledge and appreciation for the #HometoBilo family’s contribution. If the #HometoBilo family don’t qualify under the LNP Government’s ‘assimilate and adapt’ rhetoric, who does?
Of course, given that this family meets the ‘assimilate and adapt’ criteria, the government should simplify the matter, even if they must order the relevant minister to exercise the discretionary power enshrined in the law. It is the humane thing to do, and it will save a lot of government resources, including but not limited to, the judicial resources that will go towards further judicial proceedings; the monies spent on red-eye charter flights; detention on Christmas Island; and all other manner of expenses and government resources that go into having more than 50 public servants overseeing removal of the family from their home. In the alternative, the #HometoBilo family, as they have done for the last several years, could be contributing to the economy by being at home paying their rent (a landlord benefits directly) or mortgage (a bank benefits directly); working in the local Meatworks (serving a local business and paying taxes); and continuing with their pursuit and practice of volunteering in the community. Well-thinking and humane-spirited Australians, please join me in helping to realize the humane substance of saying #HometoBilo.
