It has been a distressing week reading the reports and tweets about the events on Manus Island.
Having obsessed about it for days, I eventually took it upon myself to draft documents to lodge at the High Court of Australia this morning. There were two documents, one was an “Application for an Order to Show Cause” and the other was a brief accompanying affidavit.
You may wish to know my experience of doing so.
At first instance, the registry refused to accept my documents on the basis of my not having “standing” to make the application.
I went away to have my affidavits witnessed, there not being anyone in the High Court to do so, strangely, and I managed to find information about the question of “standing” at the Supreme Court library. It appeared from this information that I was correct in my interpretation of standing, given the public interest issue. I learned that the question of “standing” would be addressed by the court, either as a threshold issue, or as part of consideration of the merit of the application.
I sent an email to the registry explaining this, saying that I expected to be able to file my documents on return to the registry in the afternoon.
However, things were not to be so straightforward. In discussion with the registry staff, I found that, unexpectedly, the objection to my filing the documents had morphed from a question of “standing” to one of the Registrar, on the face of the documents, forming the view that the application was vexatious. I was disbelieving. “What”, I thought, “The objection to deaths and suffering on Manus Island was vexatious?” The High Court Rule that was quoted to me was Rule 6.07.
“If any writ, application, summons or other document appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may seek the direction of a Justice who may direct the Registrar to issue or file it or to refuse to issue or file it without the leave of a Justice first had and obtained by the party seeking to issue or file it”.
One of my many faults is that I am not terribly agile in recognizing such sleights of hand in respect of the sudden change in the questions at issue – in this case, the original “standing “ issue having unexpectedly morphed into an issue of “vexatious abuse of process” and so I was not successful at addressing this, instead finding it upsetting. I have always believed that the Registry was there to be facilitative and co-operative, not obstructionist, and I was disappointed at the way things were going.
I was informed that my application together with the accompanying affidavit, would be referred to a judge, who would make a decision and advise me in due course, but that this could not happen until two weeks hence, in February.
I expressed concern that the delay would be a problem, but there was nothing I was able to say to persuade the Registrar otherwise. And so I left it at that. The one hopeful thing was that I was informed that should the judge refuse the application, I could file again using Form 31 – application for leave to apply. At least that was something, I thought.
There is a reason for my writing this for you, and it is this. It is no easy thing to lodge such an application. I have been distressed about this as much as I have been about the issues at stake. But, I felt that it was my responsibility to do so. I thought that if I have the privilege of being in Canberra, if I have the privilege of being a barrister of the High Court, if I have the privilege of being abreast of the issues, then it is my responsibility to take the necessary steps.
Perhaps there are those of you who are also preparing applications for the High Court. If you are, it does not matter that I have also done so. There can be a number of applications – in fact it would be a good thing in my view, if the High Court were to be inundated with applications in such a public interest matter.
My limited experience with the judicial process has taught me that things happen in steps. One doesn’t necessarily know at the outset what the outcome will be. Against this is the certainty that if no steps are taken, then NOTHING will happen
I have to admit that it has not been an easy task to take these steps. I firmly believe in the adage that to act in courage means to act in spite of fear. I was fearful as I drafted the documents, and I was fearful as I made my way to the court, and I was fearful as I faced the registry’s refusal to file the documents. However, I continued in spite of my tiredness, my age and my less than good health in the view that the experience of the asylum seekers on Manus Island would render my own complaints insignificant.
If there is anyone who has anything to suggest to me (even if that might be to urge me to simply desist in my madness), I would be very glad for you to respond to me at LaLegale@iinet.net.au.
If you would like to know more about the process, as I have learned it, and wish to lodge your own application, I am happy to share what I know.
Above all, do not be afraid, and do take action, in spite of fear,