Applicants M276-2003, Ex parte - Re Woolley & Anor

[2004] HCATrans 2

[2004] HCATrans 002

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M276 of 2003

In the matter of -

An application for Writ of Habeas Corpus, and a Writ of Prohibition against KIT WOOLLEY, MANAGER OF THE BAXTER IMMIGRATION DETENTION CENTRE

First Respondent

THE HONOURABLE SENATOR AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Ex parte –

APPLICANTS M276/2003 BY THEIR NEXT FRIEND GS

Applicant/Prosecutor

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 FEBRUARY 2004, AT 10.20 AM

Copyright in the High Court of Australia

__________________

MR G. GRIFFITH, QC:   If the Court pleases, I appear with my learned friends, MR C.J. HORAN and MS C.M. HARRIS, for the prosecutors.  (instructed by Vadarlis & Associates)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the respondents and intervening on behalf of the Attorney‑General of the Commonwealth of Australia.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Mr Solicitor, if it would be more convenient for you to address us from a seated position, we are more than content for that to happen.

MR BENNETT:   I am very grateful to your Honour.  What I propose to do, if this meets your Honour’s approval, is to commence standing in the usual way and to sit down if I feel that I have difficulty standing for a period.

GLEESON CJ:   Thank you, Mr Solicitor.

MR B.W. WALKER, SC:   May it please the Court, I appear with my friend, MR J.K. KIRK, for the Human Rights and Equal Opportunity Commission, seeking leave to be heard as intervener.  (instructed by the Human Rights and Equal Opportunity Commission)

GLEESON CJ:   What is the attitude of the parties to this application?

MR GRIFFITH:   I consent, your Honour.

MR BENNETT:   We have no objection if it is confined to the receipt of written submissions.  We submit that where the Commission seeks to intervene in a case where there is no interest it represents different to that of one party, there is no advantage in it addressing the Court in support of its submissions.

KIRBY J:   But does not the affidavit say that the Commission has been involved in this matter both at an international and a national level?  It may have some additional arguments from that experience that may help the Court, may it not?

MR BENNETT:   Those arguments are in its submissions, your Honour.

KIRBY J:   But we all know oral elaboration can throw magic onto written paper.

MR BENNETT:   Your Honour, we would submit that there mere possession of information is not a criterion for intervention.  It may be a criterion in some cases for being an amicus curiae where one can assist on a legal argument, but intervention requires an interest and, in my respectful submission, where that interest is the same as one of the parties, certainly in the past ‑ ‑ ‑

KIRBY J:   It is not quite the same.  They are speaking as a national commission established by the Parliament of this country and with recent and relevant experience that may give insights that help the Court.  They are not here just as a party to support – their submissions may generally support the appellant, but they speak as a commission established by the Parliament of our country.

MR BENNETT:   Your Honour, the practice, certainly in recent cases, has been to limit the Commission in the way that I have indicated, but ultimately it is a matter for the Court.

GLEESON CJ:   Mr Walker, the actual application for leave to intervene, to the extent of the written submissions, is not controversial and you have that leave.  Perhaps you can renew your application to develop your written submissions by oral argument, if you think that necessary, after we have heard Dr Griffith, because I presume you would be intervening in support of him.

MR WALKER:   May it please your Honour.  By and large, that is very much so.

GLEESON CJ:   So the appropriate time for you to address, if you are going to address it at all, would be before the Solicitor‑General.

MR WALKER:   Yes.  May I raise this, which already exists.  There was a decision handed down by the Supreme Court of Canada on Friday which provides, tangentially, some material which we would respectfully seek to place before the Court.

It supports, to an extent, the approach in principle that we urge in writing and I would foreshadow that my application to be heard very briefly would include taking your Honours to that very recent decision and to such support as may be seen from its ‑ ‑ ‑

GLEESON CJ:   Assuming we have not already been taken to it by Dr Griffith.

MR WALKER:   Assuming you have not already been taken to it by Dr Griffith.

GLEESON CJ:   Yes.  You can renew this application after ‑ ‑ ‑

MR WALKER:   May it please your Honour.

KIRBY J:   Do you have the document that is referred to in footnote 39?  Has that been put before us, the communication to the Human Rights Committee of the United Nations?

MR WALKER:   No, your Honour.

KIRBY J:   I, at least, would like to look at that, if that is available.

MR WALKER:   I am sorry.  I think some assumptions were made about availability.  We will cure that, may it please your Honour.

GLEESON CJ:   Yes, Dr Griffith.

MR GRIFFITH:   Your Honour, I should indicate that we regard the submissions of my learned friend on behalf of the Human Rights and Equal Opportunity Commission as complementary to ours and I was not intending to trespass in those areas, but we do rely on ourselves with the thrust of the written submissions.  I was not intending to go to the Canadian case if, for no other reason, than that Friday was more recent for me to pick it up.

GUMMOW J:   Have you a reference to this mysterious case?

MR GRIFFITH:   I am sure my friend would have it to hand it up, your Honour.  It is called Canadian Foundation for Children, Youth and the Law v Attorney General in Right of Canada, in the Supreme Court as of Friday.

GLEESON CJ:   Thank you.  This is not the case that was reported in the media here as being a decision to the effect that it is lawful for Canadians to inflict corporal punishment on their children as long as they are not infants?

MR GRIFFITH:   It has probably been misrepresented as such, your Honour.

GLEESON CJ:   Yes.

MR GRIFFITH:   Your Honours, the prosecutors are, in ascending order, as appears from page 6 of the application book, aged 7, 11, 13 and 15 and they have been detained in administrative detention pursuant to the provisions of the Act since their arrival in Australia on 15 January, so they are now in the 37^th month of an extended period of detention.  It is put in my learned friend’s submissions on behalf of the Minister and the Attorney ‑ if I may conveniently refer to that as the Commonwealth’s submissions – that even were there a provision providing for a time limit, as there was in Lim, that time limit would not have started to run because the position with respect to the applications under the Act is still awaiting the hearing of the appeal to the Full Court of the Federal Court.

Your Honours, it is also plain from the materials that even were that period expired, in that all challenges to the determination had been finalised, there is not presently an agreement with Afghanistan for the involuntary return of persons who have exhausted the process under the Australian law.  So in that situation, were the case that all appeals had been exhausted, it would be apparent that the detention would be continued for an indeterminate time.

GLEESON CJ:   I did not pick that up from the facts.

MR GRIFFITH:   Your Honour, that is paragraph 20 on page 7.

GLEESON CJ:   Thank you.

CALLINAN J:   Mr Griffith, can you assist me?  Are both of the parents at Baxter?

GLEESON CJ:   Yes, your Honour.

CALLINAN J:   So the children are living with their parents at Baxter, both parents?

MR GRIFFITH:   Yes, they are, your Honour.

CALLINAN J:   Thank you.

KIRBY J:   And I understood from the affidavit of Ms Davis, which is incorporated in the agreed facts in this respect, that the children are allowed out to local schools in order to further their education, which is in the English language.

MR GRIFFITH:   That seems so, your Honour.  Our position is that those facts are irrelevant to the basis of our argument, but that seems to be a fact and we do not contest it.

KIRBY J:   Well, you will develop that in due course, but you concede that detention of the parents is within the constitutional power?

MR GRIFFITH:   I do not concede it, your Honour, but I do not challenge it in this case.

KIRBY J:   And, therefore, the question becomes what, on your theory of the requirements of the Constitution, would happen to the children. At least that is a question that is in my mind, because on the face of things it is highly desirable that the children should be with their parents and some of your arguments suggest that the problem of detention is that it reduces the parental role. So at some stage I would like you to develop, if you would, what your theory of the case is concerning what would happen to the children if your arguments were to succeed.

MR GRIFFITH:   Your Honour, to some extent, that is beyond the theory of our case, because our case is that you cannot detain the children in immigration detention.

KIRBY J:   I realise that, but the consequence of that is that the children are then put out of the detention, taken away from their parents, separated from their parents, which on the face of things is not necessarily in the best interests of the children.

MR GRIFFITH:   Your Honour, it might be that the Commonwealth if properly instructed as to constitutional limitations could take the view that in those circumstances at the very least the mothers of the children should be released from detention.  In some cases, your Honour, the children in detention are unaccompanied.

KIRBY J:   Then the Minister is the guardian, I think, under the Act, is that not so?  If they unaccompanied, the Minister has a special and personal responsibility.

MR GRIFFITH:   Our point is, your Honour, that there is no provision under the Act to discriminate at all as to the circumstances of children.  They are all detained whatever their circumstances.  That is a constitutional objection to us, your Honour, as to what would be an appropriate regime one would suppose a government having regard to the special interests and vulnerabilities of children would put one in place when they were instructed that the present system was unconstitutional.

KIRBY J:   I just mention what seems to me to be a tension there and no doubt you will deal with ‑ ‑ ‑

MR GRIFFITH:   I will refer to it.  Your Honour, we do refer, I think, in our reply in the penultimate paragraph, to the issue that merely because the detention is held unlawful it does not follow that the children necessarily will be separated from the parents.  There could be a system of voluntary residence that does not constitute detention.  There are many possibilities.  But what we are protesting, your Honour, is the system of involuntary, indeterminate detention until one of the events under what is now the amended version of section 196 occurs.

GLEESON CJ:   Dr Griffith, before we go any further we had better get clear the evidentiary status of some of this material.  You are moving for constitutional relief.  There has been no order nisi granted?

MR GRIFFITH:   No, your Honour.  It was referred in, your Honour.

GLEESON CJ:   There are a number of affidavits included among our papers.  I presume there are no objections to any of those affidavits and I presume the parties are content that we should take those affidavits as read.  Would you read onto the record the affidavits that contain the evidentiary material that is before us?

MR GRIFFITH:   I will do that, your Honour.  Could I indicate that we take the view that the material from 21 to 31 is not relevant, but we do not contest that as evidence of fact.

GLEESON CJ:   Could you just identify, by reference to the deponents and their dates, the affidavits that contain the evidentiary material on which we are to proceed.

MR GRIFFITH:   Your Honour, could I first take you to the statement of agreed facts on page 17.

KIRBY J:   I was referring to paragraph 17 of that document when I referred to the affidavit of Ms Davis, because it is in the agreed facts and it refers to certain paragraphs of that affidavit and the material that I was referring to was in the latter section of paragraphs that are mentioned in paragraphs ‑ ‑ ‑

MR GRIFFITH:   I appreciate that, your Honour.  So the agreed facts are as in the statement of agreed facts from page 17 to page 19, which is a concise statement.  I do not know whether your Honour wishes me to read them onto the record, but paragraph 17 indicates the agreed status as to the matters in the affidavit of Jacqueline Anne Davis, namely, the facts in paragraphs 14 to 20 are accepted, and 21 to 31.

GLEESON CJ:   That is what I am trying to get clear.  We have in our papers a number of affidavits as well as the statement of agreed facts.  From the point of view of the parties, are we to treat as evidence everything that appears in all those affidavits?

MR GRIFFITH:   Your Honour, we are content to do so, with the point that we say the paragraphs are irrelevant for the purposes of our argument, but my friend can rely on it as a fact.

GLEESON CJ:   And could you identify the affidavits by reference to the deponents and the dates on which they are sworn?

MR GRIFFITH:   I can do that, your Honour.  The affidavits on which we rely are the affidavit if Eric Vadarlis which appears at pages 1 to 4, which was sworn on 27 October; the affidavit of Jacqueline Anne Davis which appears on pages 5 to 8, which is affirmed on 20 October; and a supplemental affidavit of Mr Vadarlis which was sworn on 31 October, which appears on pages 9 to 10.

GLEESON CJ:   Thank you.

MR GRIFFITH:   Your Honours, with respect to the matters contained in paragraph 17 of the statement of agreed facts, it is sufficient to say that those matters are accepted as facts for the purpose of the case and, if they are relevant to the Court, they are agreed facts.  We say they are not relevant.

KIRBY J:   But you do not mind us having a little peep at them?

MR GRIFFITH:   A full exposure, your Honour.  It is put against us that the nature of our case depends upon the particular fact situations of the prosecutors.  Our position is it suffices to say, for example, that HS is presently seven years of age.  He has been detained now for over 36 months since his arrival in Australia on 15 January and will continue in indefinite detention for a period which may have no ending.  It cannot be said that HS will be released from detention prior to his 18^th birthday.

CALLINAN J:   But, Mr Griffith, they could be released if their father accepted the reintegration package.

MR GRIFFITH:   Can I deal with that.  Firstly, your Honour, the legal proceedings are not yet completed.  Our submission is that a party is entitled to exhaust those procedures and not suffer the additional pressure or exposure that by doing so he will expose, for the purpose of this inquiry, children to unacceptable continuance of detention in unacceptable circumstances.

CALLINAN J:   Does that mean your application is premature, that we should await the ‑ ‑ ‑

MR GRIFFITH:   No, not in the slightest.

CALLINAN J:   Would that not be a discretionary ground to refuse relief, that there might be an entirely different outcome after the proceedings in the Federal Court are concluded?

MR GRIFFITH:   No, your Honour.  Our case is there should not be detention at all, as is the structure of the Act under section ‑ ‑ ‑

CALLINAN J:   Not even for a day?

MR GRIFFITH:   Not as detention, your Honour.  There can be an issue of having a person available for making inquiries and that sort of issue, but the detention we challenge is not a different scheme which says you can take the persons to a place of safety for a time of inquiry and investigation and then deal with them in a way suitable for their positions as children of persons of special interests and vulnerability.  The provision of the Act under section 189 is detention, which is to continue to a time which, in the case of Lim, had a certainty of ending, but which, with respect to the children now subject to the regime, has no certainty of ending.  Our objection is that the whole process of consideration of the status and review of a decision, if adverse, and the process of removal is unconstitutional in the way it indiscriminately applies to all children.

CALLINAN J:   Mr Griffith, there is an air of unreality about this.

MR GRIFFITH:   We hope not, your Honour.

CALLINAN J:   Are the children to be separated from their parents?  In another context, it might be said they would be stolen children taken from their parents.

MR GRIFFITH:   Your Honours, what we say is, this is a situation where the Commonwealth has to act in a way which is appropriate to deal with the situation of the consideration of the immigration status of the parents and of the children as individuals in a way that, because of the aspect of detention, is at the very least reasonably capable of being seen as necessary.  Our position is that a mechanism could be adopted to do that that does not have the necessity that the only way that families be kept together is that they were all kept in these inappropriate circumstances of detention.

CALLINAN J:   You are asking the Court to construct some sort of alternative scheme for the welfare of the parents and the children.

MR GRIFFITH:   Your Honour, we make it quite clear we do not intend to do that.  What we intend the Court is to instruct the Commonwealth that the present scheme is unconstitutional in its reach because it provides for administrative detention of indeterminate term expressed in terms that apply to children that are incapable, at the lowest, of being reasonably capable of being seen as necessary.

CALLINAN J:   If your application were to succeed, the gates are opened, the children are let out and their parents remain behind the gates.  Is that not the practical reality?

MR GRIFFITH:   Your Honour, the practical reality is that there would have to be a practical scheme advanced to deal with the situation.  Your Honours, our starting point is, as of course children are not imprisoned with their parents – and, your Honour, there is no suggestion whatsoever that the aspect of the family demands – in fact, it is taken as self‑evident that whatever the circumstances of a single parent or, indeed, both parents in prison, that children do not go to gaol with the parent.

We say, your Honour, with respect to the issues of immigration detention where there is no aspect of offence being committed by the parent, it is even more appropriate to have as a starting point an inquiry, what is the justification to this automatic and we say indeterminate detention of children while the processes are reviewed.  But to answer your Honour’s first question to me, we say the fact that it might be regarded, to pick up my learned friend’s expression, as the three‑wall detention within the capacity of the parents in no way affects the application of the inquiry which arises from Lim on the authority of this Court that whether or not the mechanism of the scheme which is simple in its operation, namely providing for detention without remission until finality, is capable of meeting a test of being reasonably capable of being seen as necessary.

We say, your Honours, it is no answer to say that parents acting in loco parentis should be in the position that where they are incapable themselves of exercising the ordinary power of parents they should be put in the position of taking the only way out on the current legislation in the event that if they take the view that it is inappropriate for their children to remain in detention by opting for being removed from the country.

KIRBY J:   I take your point concerning your use of the word “indeterminate” in comparison to, say, the statute as it was when Lim came before the Court.  The time limit has been removed by the Parliament, but is it quite accurate to call it indeterminate?  A point will be reached where, conceding that is a rather long process, all Australian remedies have been exhausted, so that is the terminus, is it not?

MR GRIFFITH:   Your Honour, with respect, it is not the terminus.  Can I demonstrate why that is not so?  Can I take your Honours to section 196 of the Act?  The point is made against us in the submissions of the Commonwealth that the only difference is the absence of section 54R that provided for a time limit of, I think, 273 days to run.  Your Honour refers to that being repealed.  It is put against us that is not significant.  In our submission, it is significant because without it the criteria for the end of the period are framed by reference to a period, none of which might happen, and it is our submission there is a fourth unstated period which must happen, and that is death, that the way the provisions of the Act are now framed, to say that there must be finality.  The finality does not arise on the exhaustion of the review process.  The only finality which must arise under this Act, absence a discretionary exercise of a remedy by the Minister in some situations where there is an incapacity to return, would be the death of the person.  There is no time limit.

KIRBY J:   Subject to the afterlife, death is the finality, but in most cases, the overwhelming number of cases, is there not a final point when the appeals to the Federal Court – perhaps an application to this Court, maybe an appeal and an application – are concluded that the remedies are exhausted and then the Minister has powers under the Act to remove? 

MR GRIFFITH:   Your Honour, the question is whether they are capable of exercise.  There is the matter of Te, which was another application for habeas corpus in this Court, which is wending its way through a reserve judgment of the Full Court of the Federal Court, which is now five and a half months since the date of hearing, where a person ordered to be deported by reference to criminal offences ceased his period of imprisonment some five years and four months ago and has been detained for the purpose of being deported to Cambodia and that person is still under detention.  Some of the period occupied, of course, the time of this Court.  The name is Te, your Honour.

KIRBY J:   This is an adult.

MR GRIFFITH:   He is an adult, but he is still there, your Honour, waiting to be deported, after five years and four months.

KIRBY J:   But you do not contest the power of the Parliament to provide for the removal of an adult alien?

MR GRIFFITH:   I contest the power to detain him for five years and four months without removing him and I hope I have an opportunity, your Honours, to be a respondent to an appeal on that issue.  Your Honours, can I take you to the Act and make the point.  Section 196 says the period of detention of an “unlawful non‑citizen” – that includes, indiscriminately, all children:

must be kept in immigration detention until he or she is:

(a)removed from Australia under section 198 or 199 –

that is a case of involuntary removal –

(b)deported under section 200; or

(c)granted a visa.

Now, your Honours, in the absence of a provision providing for, after the exhaustion of appeals, a temporal limit for the time to be taken to deport, it could well be the case, as there are indicia here in paragraph 20 of the affidavit on page 7 of Jacqueline Anne Davis, that there is no agreement with Afghanistan with respect to the involuntary return of these children to Afghanistan in the event that the appeal process is exhausted.

KIRBY J:   That is not limited to these children.  It is simply that Australia has not yet completed negotiation with Afghanistan to remove non‑citizens.

MR GRIFFITH:   Your Honour, I am making the point, these are Afghanis.  I am just trying to say that this indeterminate situation applies to them.  That is the point I seek to make, your Honour.

HAYNE J:   That is, indeterminate if it is compulsive removal.

MR GRIFFITH:   Yes, your Honour.

HAYNE J:   Am I right in reading paragraph 20 in a way that would envisage the possibility, at least, of voluntary return by Afghani citizens?

MR GRIFFITH:   Your Honours, paragraph 19 would seem to say that that is the position if there is a capacity for voluntary – 18 and 19.

HAYNE J:   Now, what is the significance for your argument in the fact that these are children who may or may not be able to make effective decisions to return?

MR GRIFFITH:   Your Honours, what we seek to make is the submission that the provisions of the Act now apply so that there is a possibility in the event that the parents, for example, took the view that it was not in the interests of their children to go back to Afghanistan, even in the circumstances that all challenges to the determination that they were not permitted to stay here had been exhausted, would be in the position that the children then would remain in indefinite detention, not just till their age of majority, but indefinitely ‑ ‑ ‑

HAYNE J:   I understand that to be the thrust of your argument, but my question was, do you attach significance to whether these individuals can voluntarily return?

MR GRIFFITH:   Your Honours, it is put against us that it is one reason in assessing the issue of whether it is punitive detention, or possibly it is one issue criteria relevant to whether the provision is reasonably capable of being seen as necessary that there is a capacity for the parents to request return.  Our position on that is as stated in our submissions in our reply, that that is, we say, an irrelevant consideration from the point of view of assessing whether or not this provision satisfies the “reasonably capable of being seen as necessary” criteria for the validity as providing for a system of administrative detention.

So our first answer, your Honour, directly is to say we say it is of no relevance.  We secondly say that if it is a criteria that is referred to against us, we say it is quite unrealistic from the point of view of the applicant children to say that because their parents, in a situation of stress, also have to have regard to the position of the children one could say that the situation of the children is adequately safe and provided for by the legislation because one can see an obvious effect of such a provision is to put pressure on the parents perhaps to act against what they see as their interests in requesting return.  We say it is not an answer.

HAYNE J:   I do not quite follow that, in this sense.  Assume the child, perhaps the oldest of these, perhaps an older person under age 18, has capacity enough to say, “I want to remain in Australia and I want to be treated as a refugee”, assume that to be the case.  That person presumably has like capacity to say, “I no longer wish to pursue that path.  I wish voluntarily to return to wherever my country of nationality is”.  But the other case, where the child is not of that sufficient capacity, the decision to apply for protection and all that follows from it is a decision taken by the parent.  Why do we not shift attention then solely to the parent and the parent can voluntarily take the decision to say, “Enough, I wish to return”?

MR GRIFFITH:   Your Honour, can I deal with the two cases.  The first case of the child of the age of discretion, under the Act that child cannot exercise that decision; it is a decision of the parent.  In the second case, your Honour, our case has postulated that the provision of the scheme for administrative detention providing for a universal scheme of detention, although it would embrace the possibility that your Honour puts in your second example, that a parent might have the capacity to end it by making a request for the return of the entire family, does not, by the existence of that provision, meet the objection that the scheme itself is not one which is reasonably capable of being seen as necessary but to have the child in detention here for three years and continuing in the absence of any agreement with Afghanistan beyond the end of any period of appeal or challenge.

HAYNE J:   Why is that so if the relevant decision‑maker is the parent and the parent can say, “Enough, I want to go home”?

MR GRIFFITH:   Your Honour, we would say because of the handicap of the circumstances of a decision‑maker.  The parents themselves are in the same situation of detention, that is not the subject matter of challenge here, but that is their own circumstances and the parents are in the situation of seeing their children, we say self‑evidently, affected by the fact of continuing uncertain detention where they have no control over the resolution of the issue of whether or not they would be able to stay, the timing of the resolution of issues of appeal, and where they would, by the existence of this capacity, perhaps be put in the position where it becomes a “Sophie’s choice” between the despair of seeing the children in their situation in indeterminate detention and the view that it is not in their interests to be returned.

We say, your Honours, the fact that that sort of choice is given by the Act, whatever its effect with respect to the parents choice, cannot be regarded as a provision which is reasonably capable of being seen as necessary to provide for the wellbeing of the children during this process, which is a process that they are entitled to under law.  It may take some years, but that is their entitlement.  To say you can bring it to an end before the finality is equivalent to saying that you are not able, because of the external forces of the detention, to be able to exercise the rights which you have under Australian law.

Your Honour, that is rather a long answer to what was a very direct and simple question, but I hope we have made our basic position clear, which is to say that it is no answer, in our submission, to say that the parents in their own circumstances of detention are able to act appropriately in loco parentis so one can say this provision is reasonably necessary.  We do emphasise that the expression that arises out of Lim is not one of whether or not it is appropriate; it has the element of necessity in it.  Our submission is that on the face of things there can be no necessity for a child of four to have been detained now for over three years and continuing for an uncertain time, which is answered by saying this review process could have been cut short and they could be on the plane back to Afghanistan if the parents said, “We can’t take this for our children any longer.  We’ll make the request”.

KIRBY J:   At some stage would you tell the Court about the circumstances in which that time limit provision came out of the Act, what its consequences were when it was there and if anything was said by the Minister as to why it was repealed and what other sanctions would exist to ensure that some sort of pressure was imposed to get these decisions made quickly?

MR GRIFFITH:   I think your Honour’s second and third questions are probably beyond my capacity to answer today, but the provision in Lim was quite clear.  Section 50R provided for the 273‑day period on the exhaustion of appeals.  On the repeal of that – and I will give your Honours the date shortly ‑ ‑ ‑

KIRBY J:   What happened when the time was up?

MR GRIFFITH:   You would have to be released.

KIRBY J:   Had to be released?

MR GRIFFITH:   Into the community, yes.

KIRBY J:   That was expressed in the Act, was it?

MR GRIFFITH:   Yes, there was a limit, your Honour.  Section 50R provided for the limit.

GLEESON CJ:   In these cases that time would not even have commenced to run yet.

MR GRIFFITH:   Yes, your Honour, I mentioned that.  Nonetheless, were it to have commenced, still the detention would continue.  Our point is that it is not a question of saying after three years if the limit started to run and now the limit has been taken, that is determinative of invalidity.  What we say is that in principle children should not be detained at all.  It is put against us that Lim is authority in answer to that.  We have two answers to that, your Honours.  Firstly, although a child was an applicant in Lim, it is quite plain from paragraph 2 of the judgment that that fact was totally disregarded to the consideration of the case.

GUMMOW J:   A child born here too.

MR GRIFFITH:   Yes.  The Court in Lim treated the case as an adult’s case; it is quite clear from the judgment.  So one cannot say Lim is a case involving a child, which is put against us in my learned friend’s contentions.  That is self‑evident from the judgment.  The second aspect, it is put, the only difference between the law here which was held valid in Lim is the fact of the removal of section 50R, and it is asserted that is not significant.  Our position is that it is significant and I have not yet exhausted the Court’s patience to demonstrate why, without that time limit of section 50R, now repealed, the other events are events which may not happen.

KIRBY J:   I realise that 196 is unfortunately written in the passive voice.  It says:

An unlawful non-citizen detained under section 189 must be kept . . . until –

It does not impose a duty on the Minister, but would that not be read as that within a reasonable time of one of those three events, would a court not imply into it a reasonable time limitation? 

MR GRIFFITH:   Your Honour, another situation.  As I indicated to your Honour, it looks like we are heading back with Mr Te, who has been detained to be deported under law which requires a person to be deported as soon as reasonably can be deported who is still not deported after five years and four months.

KIRBY J:   Yes, but, Dr Griffith, you must understand there is a certain bootstraps element in this.

MR GRIFFITH:   I do not want to bootstrap, your Honour.

KIRBY J:   If in fact you have a case before courts of law in this country, then you cannot really complain that the Executive Government, out of deference to the rule of law, is saying, “You’ve invoked the courts of law; that must be completed before we take steps to throw you out”, otherwise you would be here complaining that the Executive Government was throwing somebody out whilst they had a case before the courts.  It is not like you to put an argument that is so unfair to the Executive.

MR GRIFFITH:   No.  Your Honour has been so fairly served in the past by a succession of law officers.  Your Honours, our point is we are not concerned with this issue of whether or not it is appropriate for an adult to be detained for the exhaustion of processes even if, as here, it is three years.  Our issue is that, for the purpose of that process, a child – in this case, a child who was only four years at inception – should not have been detained at all in this detention which applies indiscriminately to adults and children, because we say it is a process of administrative detention which must be characterised as punitive, because it is incapable of being regarded as reasonably capable of being necessary within the terms of even the broadest test.

GLEESON CJ:   Necessary for what?

MR GRIFFITH:   Your Honour, in Lim it was said the purposes of detention would be for the purpose of processing and for the purpose of removal in the event that there was not a favourable determination.  It is also suggested to us – I think Justice McHugh referred to the issue of detention to assure that there was not assimilation in the community, but we say, your Honours, that is not one of the purposes which has been accepted.

It would seem that the statutory purpose of the law is to say, “You will be detained for the entire period of processing and review, and if that is not favourable, a visa does not issue, as is provided in section 196, then you will be detained until you are removed”.  There is a duty to remove, but the point we make is that if you do not have an agreement for involuntary removal, as is the case here, even if that statutory duty arose, there would be a factual incapacity to remove and the detention would continue for an indeterminate period, which, in the case there was a failed…..Afghanistan and an agreement was never made with the country with respect of involuntary removals, would mean – unless you were merely to cast persons out of Australia by ship or boat to indeterminate destinations – there was no capacity to remove.

Your Honour Justice Kirby says, well, perhaps in that situation the Minister would exercise a discretion to grant a bridging visa, or something of the sort, your Honours, but we say that the constitutional requirement with respect to children is that a scheme of detention which operates in this way is one which does not meet the constitutional requirement of capable of being regarded as necessary.

HAYNE J:   Can I just understand which of three possible ways you seem to be putting the argument.  Do you say (1) detention of a child at all is beyond power; (2) do you say detention of a child for a purpose other than ‑ here insert or here complete the requisite purpose – is beyond power; or do you say (3) indeterminate detention of a child is beyond power?

MR GRIFFITH:   Your Honour, may I have a fourth?

HAYNE J:   By all means, because I rather suspect you are going to tell me it is all four.

MR GRIFFITH:   Your Honour, we say with respect to the detention of children in administrative detention, this scheme is beyond power because it is incapable of being seen as reasonably necessary.

HAYNE J:   That simply provokes more questions than it answers.

MR GRIFFITH:   Your Honour, can I seek to say that it is not a smart answer.  What we say is, we wish to strike down the universal provision.  It is not for us to draft a scheme which provides for the detention of children as criminals or provide for the situation to deal with the custody of children, to review their situation on arrival and to provide appropriately for their well‑being during their maturation process during the uncertain time of review of their situation, in the event of unsuccessful consequence for the child, whether accompanied or not, whether tied to its parents or not, to deal appropriately with the return of the child if there is a capacity to return the child.

HAYNE J:   So is it the fourth way of putting it and none of the earlier ones?  What is your position?

MR GRIFFITH:   Yes, your Honour, our position is the fourth way of putting it.

HAYNE J:   What is it that takes it beyond power?

MR GRIFFITH:   Your Honour, what takes it beyond power is that although it is put against us that there is a purpose relating to a power, namely, the purpose of reviewing the application for entry permit or visa and the purpose of being able to have that person available to deport that person – although that is a purpose admittedly within power, we submit that that does not answer the question of whether or not with respect to the detention that is a non‑punitive purpose.

If it is a non‑punitive purpose, we say nonetheless it is regarded as unconstitutional by reason of providing for administrative detention, because it is not reasonably capable of being seen as necessary.  So we attach ourselves to Lim, rather than depart from Lim.

GLEESON CJ:   If a man and woman arrive here as unlawful non‑citizens, they will be detained under section 196.

MR GRIFFITH:   Yes, your Honour.

GLEESON CJ:   And if they make applications for judicial review of unfavourable administrative decisions and then invoke a succession of rights of appeal, they will be detained while those processes will have been worked out.  If the woman upon arrival was pregnant or if, during the period that I have mentioned, she becomes pregnant and then gives birth to a child, is the child an unlawful non‑citizen?

MR GRIFFITH:   Your Honour, I think we would say it would be under the Act, although that might be a matter for the Court to eventually determine.

KIRBY J:   There is a case that is coming its way to the Court.

MR GRIFFITH:   I was going to say, your Honour, yes.  So, your Honour, it seems no doubt that that child is treated as if that child had been born outside Australia and remains in detention.

GLEESON CJ:   Now, if you accept that the detention of the parents of the child is reasonably capable of being seen as necessary for the purpose of dealing with their succession of applications concerning their status, is it your case that, for the purpose of determining the reach of Commonwealth power, the child has to be treated as an individual with rights and interests separate and distinct from those of its parents?

MR GRIFFITH:   Yes, your Honour.  I am sorry we have not made that clear in our written submissions.

GLEESON CJ:   And, in the example that I have just given, how would you give effect to that treatment?

MR GRIFFITH:   Your Honour, section 10 of the Act provides that:

A child who:

(a)  was born in the migration zone; and

(b)  was a non‑citizen when he or she was born;

shall be taken to have entered Australia when he or she was born.

So there is a deeming provision with respect to that which may be a provision that has its own constitutional difficulties.

GLEESON CJ:   Yes, but having said that, is your proposal that Parliament could reasonably regard it as necessary that the parents be detained but Parliament could not reasonably regard it as necessary that the infant be detained?

MR GRIFFITH:   Your Honour, for the purpose of our argument we concede Parliament may well reasonably be able to regard it as appropriate for the parents, although we make the point about the Lim issue of it is indeterminate and we can pick up that argument as it is for the purposes of children because they are in the same position.

GLEESON CJ:   Now, when Parliament is considering the necessity, what are the competing possibilities in relation to the infant?

MR GRIFFITH:   Your Honour, the competing possibility is to have a system of the children being permitted to live, for example, with their mother within the community or a position that the children be looked after as they would be if they had a parent who was imprisoned.

GLEESON CJ:   Just a moment.  We have got to the stage of agreeing, have we not, that it is open to Parliament to regard it as reasonably necessary that the mother be kept in detention?

MR GRIFFITH:   Your Honour, it may be that that course could be taken.  We cannot challenge that today, your Honours, because we are concerned with the children, but we make the assumption that the parents are in detention and that for the purposes of our argument that detention cannot be challenged.  But what we say, your Honours, whatever arrangements are to be made, they should be on the basis of having regard to the welfare of children as a group having regard to their necessary interests and vulnerability which would require the ordinary matters, if one assumed there was no parent, of guardianship and care of children who had no one to care for them, as some of these children in detention are.  They are unaccompanied.

Your Honours, we would say that the provisions quite obviously could be such provisions as society makes with respect to children when one or both parents, where there is a sole parent, one parent, are serving a punitive detention.

KIRBY J:   You want to win the case of course and you are putting your propositions in relation to children, but we have to look at, as it were, the genus that children, no specific mention being made in the Constitution in relation to them, present the question, where does this genus expand to? Does it include vulnerable women? Does it include people who are mentally disturbed and distressed by their conditions in detention? Does it include a person with a sickness that needs to be treated and cannot get the treatment in the detention? I mean, where does the category conclude?

MR GRIFFITH:   Your Honour, we must say, one step at a time.  We say it is such an obvious category here ‑ ‑ ‑

KIRBY J:   You say that, that is your role as an advocate, but as a court we have to look at it in terms of where your theory leads.

MR GRIFFITH:   Your Honour, we say it is a matter of inquiry, category by category, where there is a provision for indeterminate immigration detention, administrative detention, that it is regarded as being constitutionally valid if it passes the test. 

Your Honours, could I indicate that although we contend in our contentions that it is the “is reasonably necessary”, for the purpose of our argument we say it makes no difference in operation and I am happy to accept the application of the broader test, that is, “reasonably capable” of being seen as necessary.  We say it makes no difference here.  So when I talk about “reasonably necessary”, if the Court could take it that it embraces both formulations and we do not make a stand saying we must get up on the stricter one of “reasonably necessary”.  It might be, when one adds the numbers of the members of this Court, it could be said that more judges have supported the “is reasonably capable of being seen as necessary” approach.

KIRBY J:   That is an attempt to objectify the test, whereas, in the ultimate, this Court has to take the responsibility for declaring where the boundary lies.

MR GRIFFITH:   We do not have to run that to ground here, your Honours, because we say it is such a clear case that the reference points that my learned friend has is no more than the law itself saying, “This is detention for the purpose of enabling persons to be detained during this process, the process is within power, and, if unsuccessful, the return and removal is within power”.

GUMMOW J:   There is a problem with all of this.  There is a problem with the Commonwealth’s submissions.  It is not simply a question of construing the limit of the power, it is a question of construing the restraint on the power imposed by Chapter III.

MR GRIFFITH:   Your Honours, I was trying to make the point that when you use the expression “punitive”, it is one thing to say this is not punitive detention.  It is put against us at one point – I think paragraph 5 of my learned friend’s reply against the intervener – to say, “This cannot be regarded as punitive because the children have not done anything.  They cannot be punished”.  Your Honours, with respect, that is entirely to miss the purpose of the inquiry, because the aspect there when one is considering the aspect of punishment – that must be Chapter III.  That is a given.  With respect to administrative detention, the “given” in it must be for a purpose within power, but the extra aspect – which we say, although acknowledged as a requirement in my learned friend’s submission, is then disregarded in the detail of their response – is that it is only valid if the detention is seen as reasonably capable of being seen as necessary.

Whether one says, your Honours, it is that inquiry that results in it being characterised as punitive, as administrative detention, or whether one says administrative ‑ ‑ ‑

GUMMOW J:   Undoubtedly, it is punitive.  The question is whether there is an exception.

MR GRIFFITH:   Exactly, your Honour.  What I was trying to say ‑ ‑ ‑

GUMMOW J:   Of course it is punitive.  That is what Lim says.  They are locked up.

MR GRIFFITH:   Yes, your Honour, but this is why we find it hard to deal with the Commonwealth’s submissions, because they assert the non‑punitive aspect as being defined on the face of the law as being direct.

GUMMOW J:   Mentally ill people are locked up, too, and infectious people get locked up, too.  That survives Chapter III.

MR GRIFFITH:   Yes, exactly, your Honour.

GUMMOW J:   The question is the parameters of the limits of this qualification.

MR GRIFFITH:   Your Honour, in our humble way we are seeking to assert that the answer is in the application of this test.  Are these provisions reasonably capable of being seen as necessary?  And the extra aspect we put in, your Honour, in a not exhaustive way of what might be special considerations, is to say, self‑evidently, it is the position of children as persons with special interests and special vulnerability, persons who cannot be regarded as being under the indiscriminate provisions of the existing scheme.

GUMMOW J:   Then you have a problem by treating this class of “children”, whereas in fact a child of 16 is one thing and a child of 4 or 5 is another.

MR GRIFFITH:   Your Honour, it is only our problem in the context of the Act.  The Act does not enable a child a discretion to make decisions about removal.

GUMMOW J:   You say that the Act perhaps could have been drafted in such a way as to encompass the range of children, but it does not, and it cannot be read down.

MR GRIFFITH:   Yes.  There are many ranges of the Act, your Honour, there are many ranges to deal appropriately with children, but the Act deals with none of them.  It is interesting that my learned friends in their submissions do not refer at all even to the administrative capacity of a Minister to order release in particular cases.  It is common knowledge, your Honour, but it is not even asserted against us that those discretionary provisions are not matters invoked with respect to children as a class to enable particular dealing of them under the Act.

We would say that that would not be sufficient, because of the basic structure of mandatory detention.  Your Honours, it might seem a Samsonite approach, but our position is that we need go no further than the option four that we mentioned to Justice Hayne, of demonstrating that what is there is plainly beyond the pale and, we say, not saved by the basic considerations put against us, namely, that it is put that there is a capacity of the parent to request removal, it is put that the parens patriae jurisdiction could be revoked by specific legislation, or it is put that it cannot be punitive because the children have not done anything.

Your Honours, our essential complaint about the case against us is that although we start with a common ground, that the inquiry for constitutional validity for this system of administrative detention is whether the provisions are “reasonably capable of being seen as necessary” – that is accepted at paragraph 17 of the Commonwealth’s submissions.  We have indicated we are not going to make a stand on “is necessary” rather than “reasonably capable”.  It is accepted that is the inquiry, but the reality of the case put against us, as we see the case, is that the answer is then given by saying, “It is sufficient to say that the detention is for this purpose of the exercise of the Commonwealth’s undoubted power with respect to the review of applicants for refugee status and the power to remove those who are unsuccessful with that process of review”. 

What we say, your Honours, is that that says nothing at all about the application of the test and the answer to that test, that, shorn of embellishment, your Honour, when one looks at the Commonwealth’s successive replies to us and to the interveners, there is – it is put, if I could use the word, “proportionality”, and we do say proportionality is relevant here, your Honours, because we say on this issue of detention of children who the Commonwealth assert have committed no crime, committed no offence, have been guilty of no improper behaviour, this is a freedom issue, as much as freedom of speech.  The starting point should be that aliens here should be regarded as persons entitled not to be subject to administrative detention, save so far as detention is provided in the form “reasonably capable of being seen as necessary”.

Picking up his Honour the Chief Justice’s point, it is not for us to make any further advance into the issue of the constitutional ability of parents other than we flag the repeal of section 50R as being a very significant issue there.  We can rely on that for the purpose of demonstrating a provision of the Act provides for indefinite unlawful detention which, in this case, at the end of the review process, if no agreement is ever made with Afghanistan – as could be a real possibility, given the common knowledge as to the nature of that government, inasmuch as it may be regarded as not a failed state – then by force of law the detention of the prosecutors and all other children – there have been more than 2,000 children in detention, including unaccompanied children over the period of application of this Act – could continue indefinitely, through to their becoming adults and even, we say, to the fourth, unstated, certain aspect – until death.

It is not all that much different from the Zadvydas provision in the United States, where, of course, the Supreme Court, dealing in a different constitutional context, found it unacceptable that there could be indeterminate detention of aliens who were incapable of being returned to another state.  And that is the position, presently, for these prosecutors, in the event that it can be assumed that the review procedures of their parents will be unsuccessful.

HAYNE J:   When you say that the question is, “Is detention necessary?”, what is the criterion that you invoke by the word “necessary”?  How does one judge necessity against what?

MR GRIFFITH:   That is a difficult question, your Honour, because it is really the mirror, because this Court is engaged in the constitutional inquiry of saying, “Are we able to say it is reasonably capable of being seen as necessary?”  We say, your Honour, that is a stricter test for the Court to express rather than in terms of may it be “regarded” or “apprehended” or whatever.

HAYNE J:   I understand that, but what considerations do you look to in answering that question about what is necessary?

MR GRIFFITH:   Your Honour, in my usual concise way can I say it is because of the self‑evident special interests and vulnerability of children and all that expression means.  We flag in our submissions – and those of the intervener usefully flesh that out – as to why courts traditionally, by reference to the equitable approach of exercise of jurisdictions parens patriae, whether that is now pursuant to legislation or not, by the self‑evident fact, your Honours, that children are persons who require the special protection, not merely of the law, but also special protection with respect to their upbringing and emergence as adults into the community.

HAYNE J:   That is to look at the problem from the point of view of the child, and I am not saying of course that that is inappropriate.  Of course one may; perhaps one has to in this area.  But when you speak of whether detention is reasonably necessary, is that the only viewpoint that you take?

MR GRIFFITH:   No, your Honour, it is appropriate to have regard – for example, what do we need for the purpose of review of the mechanisms of the application?  Do we have to have them on hand in custody while we go through the same process that their parents are going through?  The issue that if they are to be deported, will they be available perhaps?  That is not one that has been specifically admitted by the Court, your Honours, but the Parliament would be entitled to take the view that, for example, children cannot be permitted to be assimilated into the community and disappear.

What we say is that having regard to the fact that they are children, it is self‑evident one could develop a process for the appropriate exercise of powers of guardianship or acting in loco parentis, however one expresses the situation of care, that self‑evidently involves no concept of having custody of children in an aspect that could be characterised as administrative detention for any longer than initial threshold period for clearance as to security, health or other matters.

GLEESON CJ:   Dr Griffith, could I ask you for your comment on a passage in Lim’s Case 176 CLR, the first complete paragraph on page 32, and in particular the last sentence in that paragraph.

MR GRIFFITH:   Your Honour, we say that that passage indicates it is within power from the point of view of the dichotomy between exercise of Chapter III power and the exercise of the power to order administrative detention because, on the aspect of the executive power here to exercise, exclude, admit and deport, means that these aspects are an incident.  This expression is in the context of the clear statement by their Honours that to be valid it is necessary to say that laws providing for administrative detention in that context that they are put as being incident to the exercise of the power to exclude, admit and deport is expressed in a way which is capable of reasonably being seen as necessary.

GUMMOW J:   The first point perhaps is that in the first sentence there is the phrase “for the purposes of”.

MR GRIFFITH:   This is a purposive power in this aspect, we submit.

GUMMOW J:   Again in the third sentence, “By analogy”, again “for the purposes”.

MR GRIFFITH:   Yes, and it is expressed as a “limited authority”.

GUMMOW J:   So the necessity is considered with a link to the purpose.

MR GRIFFITH:   Yes, your Honour.  I was seeking to express that somewhat imperfectly.  What we say is ‑ ‑ ‑

HAYNE J:   But that is then an inquiry about why it is necessary for the Executive to do this.  It is looking at it from the Executive’s viewpoint, not from the viewpoint of the child, is it not?

MR GRIFFITH:   Yes, your Honour.  Also, here we are dealing with an absolute law; it is not an executive aspect.  The Executive may order detention.  It is absolute requirement of section 196, 189 as a scheme that there shall be detention.

GLEESON CJ: In this context does “necessary” mean the same thing as it used to mean in section 51 of the Income Tax Assessment Act?

MR GRIFFITH:   Your Honour, we would prefer not to regard this as an income tax case, but we say it is a stricter ‑ ‑ ‑

GLEESON CJ:   That was an example of the use of “necessary” but it did not mean essential.

MR GRIFFITH:   Of course not, your Honour.  We are not saying “necessary” is essential but what we say is it is stricter than a test, for example, capable of reasonably being regarded ‑ ‑ ‑

GLEESON CJ:   Mandatory detention is obviously not essential, because there are some countries in the world that do not have mandatory detention.  What does “necessary” mean if it does not mean essential?

MR GRIFFITH:   Your Honour, the expression is not so much “necessary” but “as reasonably capable of being seen as necessary”, so it is ‑ ‑ ‑

GLEESON CJ:   Yes, but what does “necessary” mean in that context?

MR GRIFFITH:   We would suggest that it has an aspect, your Honour, of being seen as close to an inevitable, essential concomitant of the action.

GLEESON CJ:   But the system of mandatory detention, introduced I think in 1992 or earlier and approved in Lim or said to be within power in Lim, is not essential because there are countries in the world that do not have mandatory detention.

MR GRIFFITH:   I do not know whether any others do, your Honour, but, yes.

GLEESON CJ:   Well, what does “necessary” mean if it does not mean you cannot do without it?

MR GRIFFITH:   Your Honour, we say it means at the very least that it is something which must be seen to be closely and almost inevitably connected with the legislative power which is justified, which seeks to justify it.  Your Honour, it is difficult for us to parse back and say what the Court meant in Lim because – your Honour, Lim is our starting point and to say ‑ ‑ ‑

HAYNE J:   Now, I thought Chapter III was your starting point, Dr Griffith, rather than particular phrases in Lim.

MR GRIFFITH:   Your Honour is quite right.

HAYNE J:   But the point is not a captious point. 

MR GRIFFITH:   No, I accept that, your Honour.

HAYNE J:   What is the proposition that you derive from Chapter III that marks the limit on the power, the immigration power, the aliens power, which would permit mandatory detention?  That is, has the Court taken a turn at Lim which would have to be reversed to make good the propositions you now advance?

GUMMOW J:   That was in a sentencing context.

MR GRIFFITH:   Yes, of course, your Honour.  We would say that would be self‑evident, without particular authority for it, but here the starting point is ‑ ‑ ‑

GUMMOW J:   The New South Wales courts had not thought so.

MR GRIFFITH:   Perhaps they need some instruction from this Court, your Honour.

KIRBY J:   They have received it.

MR GRIFFITH:   Yes.  Your Honour Justice McHugh, in further answer to your question, we would submit we do not have to go so far to put a class argument, because what we say is the class here is all persons who are refugee applicants.  They are all detained.  What we say is we have identified, for rational and recognised reasons, the identification of a particular class and to say with respect to that class it is insufficient to pass any test, however reframed from Lim, which is our starting point, to say that they should be treated.  It may be justified by reason of the fact that either that it is appropriate the Act not make any discrimination, or by reference to the two factors that my learned friend has opted for.

The first is to be available for emergency, which we say is a pretty light justification for a general imprisonment of a class of persons, namely, all persons.  The second reference point, with respect to assimilation, your Honour, we say for the moment he has not got to first base on any authority on that as a recognised justification.  We say particularly he cannot get to first base with respect to children, and where he could get to first base, we say it cannot pass any applicable proportionality test as that might come to be framed by the Court in its decision in this matter.

Now, with respect to your Honour Justice Kirby’s suggestion that it would be appropriate not to depart from McCulloch v Maryland approach and have a definition other than by reasonably appropriate and adapted, your Honour, we would accept there is some sense in that suggestion but what we say is ‑ ‑ ‑

KIRBY J:   This is not the case for us to – I understand what you are saying, yes, the special formula in ‑ ‑ ‑

MR GRIFFITH:   The special formula.  What we are saying, your Honour, is that perhaps the articulation of the special formula is not such a matter of concern, but the recognition that here that it is to be applied, we say, in a liberty context.  Freedom of speech is liberty.  Freedom of the physical person, of a child, otherwise detained for an indefinite period is squarely within the liberty issue and we say, your Honours, whether it is to be

expressed as appropriate and adapted one has a threshold or a bar of requirement that has a relationship to the issue which is detention in this case of these persons, as an example, but merely as an example we say of all children in detention.

GLEESON CJ:   Consistently with the decision in Lim, can they be taken back into detention when they turn 18?

MR GRIFFITH:   Your Honour, for the purposes of our argument, yes, because we are only running as far as children.  That is not to say, your Honour, that we or some other emanation may not be back to build on whatever constitutional formulation emerges from this decision.  Our argument, your Honour, can only run to 18.  I think there is a fifth child who is over 18 that we have not included in the application.

GLEESON CJ:   For that reason.

MR GRIFFITH:   For that reason yes, your Honour.  One cannot run all issues, your Honour.  We have referred to the issue.  We say the absence of the time limit results in a practical possibility of indeterminate detention.  That is not the case today, save inasmuch as it visits, your Honour, the basis on which we deal with our argument with respect to children and say they are in a situation in the Act, as amended, where they are the subject matter of indeterminate detention.

Your Honour, Division 4B was, of course, as Justice Hayne referred to, considered in Lim, and the previous section 54Q is now renumbered and appears for more limited persons in Division 6 of Part 2, sections 176 to 187 of the Act.  That is a specific regime that applies only for designated persons.  It does not arise here, but section 182 does contain the 270‑day limit.  I mention that to inform the Court as to the position of how the 270‑day limit has not entirely gone but has just moved around a bit, but has no application here.  Your Honour, subject to the matters we have been given leave to send written submissions to the Court, they are our submissions.

GLEESON CJ:   Thank you, Dr Griffith.

MR BENNETT:   Your Honour, might I have leave to put in submissions on all matters that my learned friend has leave on?

GLEESON CJ:   Yes, within seven days after you get his.

MR BENNETT:   May I also have leave to say one thing to your Honours arising out of what my learned friend just said, and that is that in Chu Kheng Lim 176 CLR at 71, point 5, Justice McHugh specifically referred to

the purpose of preventing the alien entering the community as being the non‑punitive purpose for which one could have the legislation.  If the Court pleases.

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 4.15 PM THE MATTER WAS ADJOURNED