Azimitabar v Commonwealth of Australia
[2023] FCA 760
•6 July 2023
FEDERAL COURT OF AUSTRALIA
Azimitabar v Commonwealth of Australia [2023] FCA 760
File number: VID 177 of 2021 Judgment of: MURPHY J Date of judgment: 6 July 2023 Catchwords: MIGRATION – applicant transferred to Australia for psychiatric assessment and treatment and detained in a hotel – whether subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) empowered Minister to approve ‘another place’ of immigration detention – whether power in subpara (b)(v) of the definition of “immigration detention” to approve ‘another place’ of immigration detention was impliedly limited such that it did not include power to approve a de facto detention centre – whether hotels were lawfully approved as places of immigration detention – whether the applicant’s detention in the hotels was unlawful.
CONSTITUTIONAL LAW – whether lawfulness of immigration detention depends upon whether expenditure on the place of detention is properly authorised – whether the Commonwealth’s contracting and expenditure on the hotels as places of immigration detention was lawfully authorised by executive power under s 61 of the Constitution – whether the Commonwealth’s contracting and expenditure on the hotels as places of immigration detention was lawfully authorised by s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) and regulations
Legislation: Constitution s 61
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG
Financial Framework (Supplementary Powers) Act 1997 (Cth) s 32B
Financial Framework Legislation Amendment Act (No 3) 2012 (Cth)
Financial Management and Accountability Act 1997 (Cth)
Migration Act 1958 (Cth) ss 5, 14, 46A, 46B, 48B, 92, 93, 189, 196, 197AB, 198AD, 198AH, 198B, 198C, 253, 273, 496
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) s 5AA
Migration Legislation Amendment Act 1989 (Cth) ss 5G, 59, 92, 93
Migration Amendment Act 1992 (Cth) ss 3A, 11, 38, 54L, 54K, 54W, 54ZD, 54Z
Migration Reform Act 1992 (Cth)
Migration Legislation Amendment Act 1994 (Cth) ss 4, 189, 196, 198
Financial Management and Accountability Regulations 1997 (Cth)
Financial Framework (Supplementary Powers) Regulations 1997 (Cth) reg 16
Migration Regulations 1994 (Cth) reg 2.43
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27
Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1
Attorney-General (Cth) v Oates [1999] HCA 35; 198 CLR 162
Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Aye v Minister for Immigration [2010] FCAFC 69; 187 FCR 449
AZC20 v Minister for Home Affairs [2021] FCA 1234
B v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 699
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486
Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241
Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723
BXT17 v Minister for Home Affairs [2021] FCAFC 9; 283 FCR 248
Byrne v Garrison [1965] VR 523
Chiropractors Association v WorkCover Corporation [1999] SASC 470; 75 SASR 374
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs and Anor [1992] HCA 64; 176 CLR 1
Commonwealth of Australia v AJL20 [2021] HCA 21; 273 CLR 43
Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438; [1999] FCA 198
Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93; 259 FCR 576
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim and Ors [2012] NSWCCA 125; 83 NSWLR 52
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503
Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628
Graham v Minister for Immigration [2018] FCA 1012; 265 FCR 634
Highstoke Pty Ltd v Hays Knight GTO Pty Ltd [2007] FCA 13; 156 FCR 501
Hill v Zuda Pty Ltd [2022] HCA 21; 401 ALR 624
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
HongKong Bank of Australia Ltd v Australian Securities Commission [1992] FCA 376; 40 FCR 402
Kelly v The Queen [2004] HCA 12; 218 CLR 216
McCulloch v State of Maryland 17 US 316 (1819)
Mercantile Mutual Life Insurance Co v Australian Securities Commission [1993] FCA 77; 40 FCR 409
Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; 157 CLR 290
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 (AZC20 FC)
Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; 256 CLR 437
NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277
New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566
Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1
Penola & District Ratepayers’ & Residents’ Association Inc v Wattle Range Council [2011] SASFC 62; 110 SASR 110
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219
Project Blue SkyInc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Re-Excel Finance Corporation Ltd; Worthley v England [1994] FCA 551; 52 FCR 69
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252
San v Rumble(No 2) [2007] NSWCA 259
SBEG v Commonwealth of Australia [2012] FCAFC 189; 208 FCR 235 (SBEG FC)
SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569 (SBEG (No 2)); 292 ALR 29
Smethurst v Commissioner of Police [2020] HCA 14; 272 CLR 177
Thomas v Mowbray [2007] HCA 33; 233 CLR 307
VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554
Wilkie v The Commonwealth [2017] HCA 40; 263 CLR 487
Williams v Commonwealthof Australia [2012] HCA 23; 248 CLR 156
Williams v Commonwealth of Australia [2014] HCA 23; 252 CLR 416
X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 306 Date of hearing: 19-20 July 2022 Counsel for the Applicant: Ms L De Ferrari SC and Mr J Hartley Solicitor for the Applicant: Marque Lawyers Counsel for the Respondent: Mr G Hill SC, Mr A Yuile and Ms K McInnes Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 177 of 2021 BETWEEN: MOSTAFA AZIMITABAR
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
6 JULY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J
1. INTRODUCTION
The applicant, Mostafa Azimitabar, is a 37-year-old citizen of Iran of Kurdish ethnicity who came to Australia, by boat, without a visa, arriving at Christmas Island in July 2013. He was detained initially on Christmas Island and in mid-August 2013 taken to Manus Island Regional Processing Centre in Papua New Guinea (PNG). In 2017, the PNG Ministry of Foreign Affairs and Immigration determined that he was owed protection obligations under the international Refugees Convention as a Kurdish-Iranian asylum seeker. In August 2019, having been detained in Manus Island for six years at that point, he was assessed by a psychiatrist as suffering from post-traumatic stress disorder (PTSD) and a major depressive episode. He applied to be transferred to Australia under the medical transfer provisions of the Act which were then in force, and on 11 November 2019 he was transferred to Australia for the purpose of receiving psychiatric assessment and treatment.
Following his arrival in Australia for such treatment, the applicant was detained for more than 14-months, from 11 November 2019 to 21 January 2021, first in the Mantra Bell City Hotel in Preston (Mantra Hotel), and then in the Park Hotel in Carlton (Park Hotel) (the Hotels). On 21 January 2021 the applicant was granted a bridging visa and was released from immigration detention into the community. Since then the applicant’s bridging visa has been extended and he has continued to live in the community.
The applicant contends that his detention in the Hotels was unlawful and claims damages in that regard. Broadly, he advances three arguments, which may be summarised as follows.
(a)First, the applicant contends that neither subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) (the Act), nor anything else in the Act, confers a power on the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to approve ‘another place’ in writing as a place of immigration detention. On his argument, any purported approval of the Hotels as places of immigration detention therefore had no effect; the Commonwealth detained him other than in “immigration detention”, as defined in the Act, which it had no authority to do, and his detention was therefore unlawful (the No Power to Approve ‘Another Place’ of Immigration Detention Contention).
(b)Second, in the alternative, the applicant contends that the conditions of his detention in both Hotels meant they were de facto “detention centres”, and the power to establish a “detention centre” is only found in s 273 of the Act. He argues that on the principle of statutory construction usually associated with Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 any power sourced in subpara (b)(v) of the definition of “immigration detention” cannot be used to establish a de facto detention centre. Again, on his argument the Commonwealth detained him other than in “immigration detention” which it had no authority to do, and his detention was therefore unlawful (the No Power to Approve a De Facto Detention Centre Contention).
(c)Third, the applicant contends that the Act does not authorise the Commonwealth to contract and spend public monies on creating and operating the Hotels as places of immigration detention; neither does the executive power under 61 of the Constitution, and nor does s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) and the regulations made thereunder. On his argument, the Commonwealth detained him in the Hotels despite it not having authority to contract and spend public monies to create and operate the Hotels as places of immigration detention, and his detention in the Hotels was therefore unlawful (the Unlawful Expenditure Contention).
For the reasons I now turn to explain I do not consider the applicant’s detention in the Hotels to have been unlawful, and his application must therefore be dismissed. First, I consider subpara (b)(v) of the definition of “immigration detention” impliedly confers power on the Minister to approve ‘another place’ in writing as a place of immigration detention, and I am satisfied the Hotels were so approved. Second, although the Hotels did in my view operate as de facto detention centres, I consider the power in subpara (b)(v) is not impliedly limited by the Anthony Hordern principle or otherwise such that it does not include a power to approve ‘another place’ of immigration detention that is, in effect, a detention centre. Third, I consider the lawfulness of the applicant’s detention in the Hotels does not depend on whether or not the Commonwealth’s contracting and expenditure on the Hotels as places of immigration detention was lawfully authorised. In any event, I consider the executive power under s 61 of the Constitution authorised the Commonwealth’s contracting and expenditure on the Hotels.
That should not, however, be understood as my approving the immigration detention the applicant was required to endure. I can only wonder at the lack of thought, indeed lack of care and humanity, in detaining a person with serious psychiatric and psychological problems in the Hotels for 14-months, primarily in a hotel room with a window that would only open 10cm, and for most of the time without access to an outdoor area to breathe fresh air or feel the sun on his face. For most of the time he was held in the Mantra Hotel he was restricted to his room, to the third floor of the hotel, and to the basement area when having meals. Anyone who endured even two weeks of hotel quarantine during the COVID-19 pandemic would surely understand how difficult that must have been. As a matter of ordinary human decency the applicant should not have been detained for such a period in those conditions, particularly when he was suffering from PTSD and a major depressive episode. But the decision in this case does not turn on the humanity of the applicant’s detention; it is about whether the Minister had power under the Act to approve the Hotels as places of immigration detention, and therefore to detain the applicant as he was. I consider the Minister had (and has) power to do so.
2. THE EVIDENCE
The parties jointly relied on a Statement of Agreed Facts dated 6 May 2022, and a further Statement of Agreed Facts dated 19 July 2022.
The applicant also relies on:
(a)his affidavit affirmed 29 April 2022 and the exhibits thereto, which was read in evidence. He was not cross-examined; and
(b)the report of Emeritus Professor Richard Harding dated 9 May 2022 (Harding Report). It is primarily relevant to loss or damage, but the applicant also relies on it in support of his argument that the Hotels were de facto detention centres. Initially, the Commonwealth contended that the entirety of the Harding Report was inadmissible on the basis of relevance, and in the alternative that the report should be given no weight because Professor Harding failed to explain any proper basis for the opinions he expressed. The Commonwealth did not, however, continue with those objections, at least in this phase of the hearing. The report was received into evidence subject to a document titled Agreed Facts dated 19 July 2022 (Harding Agreed Facts) which sets out some agreed limitations in the basis for Professor Harding's opinions. Professor Harding was not cross examined.
The Commonwealth relies on an affidavit of Gerard Watts, Superintendent of Detention Management and Planning, in the Australian Border Force (ABF), an agency within the portfolio of the Department of Home Affairs, affirmed 8 June 2022 and the exhibits thereto. Mr Watts was cross-examined.
3. THE FACTS
I have drawn this account largely from the two Statements of Agreed Facts, and the evidence of the applicant and Mr Watts.
As I have said, the applicant is a 37-year-old citizen of Iran, of Kurdish ethnicity. He left Iran and arrived at Christmas Island, by boat, without a visa, in July 2013. At all material times Christmas Island was defined in s 5(1) of the Act to be an “excised offshore place”. The applicant was therefore an “unauthorised maritime arrival” and thus an “unlawful non-citizen” under the Act.
The applicant was initially detained on Christmas Island. In mid-August 2013 he was taken, I infer, by officers of the Department, to the Regional Processing Centre on Manus Island, PNG. Except for a short period of detention in Port Moresby, he was detained in Manus Island from mid-August 2013 to 10 November 2019.
The PNG Ministry of Foreign Affairs and Immigration determined on 16 February 2017 that the applicant was owed protection obligations under, as I infer, the 1951 Convention relating to the Status of Refugees (Refugees Convention) as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Protocol).
In August 2019 a psychiatrist diagnosed the applicant as suffering from PTSD and a major depressive episode and recommended that he be brought to Australia to receive psychiatric and psychological treatment. The applicant applied to the Department for transfer to Australia on medical grounds which was accepted. On 11 November 2019 the applicant was brought to Australia for the purpose of psychiatric assessment or treatment under ss 198C and 198B(4)(a) of the Act as it then was.
Thereafter, from 11 November 2019 to 21 January 2021, the applicant was detained in Australia by, or on behalf of, the Commonwealth. From 11 November 2019 to 16 December 2020 he was detained at the Mantra Hotel, and from 17 December 2020 until 21 January 2021 at the Park Hotel. As I have said, the applicant was granted a bridging visa and released from immigration detention on 21 January 2021.
3.1 Approval of the Mantra Hotel and the Park Hotel as ‘another place’ for immigration detention
Throughout the period the applicant was detained in the Hotels delegates of the Minister issued written instruments approving (or at least, purporting to approve) the Mantra Hotel and later the Park Hotel as places of immigration detention. The following relevant written instruments are in evidence:
(a)a written instrument dated 20 March 2019 by which a delegate of the Secretary of the Department, acting under powers as an “officer”, for the purpose of the definition of “immigration detention”, purported to approve the Mantra Hotel as a place of immigration detention, and revoke an earlier instrument of approval: Migration (APOD VIC 19/043: Approval of Places as Places of Detention) Instrument 2019;
(b)a written instrument dated 2 February 2020 by which a delegate of the Minister for the purposes of subpara (b)(v) of the definition of “immigration detention” in subs 5(1) of the Act purported to approve the Mantra Hotel as a place of immigration detention, and repeal the 20 March 2019 instrument: Migration (Approval of Places of Immigration Detention) Instrument 2020/020;
(c)a written instrument dated 12 August 2020 by which a delegate of the Minister for the purposes of subpara (b)(v) of the definition of “immigration detention” in subs 5(1) of the Act purported to approve the Mantra Hotel as a place of immigration detention, and repeal the 2 February 2020 instrument: Migration (Approval of Places of Immigration Detention) Instrument 2020/030;
(d)a written instrument dated 11 December 2020 by which Mr Watts, a delegate of the Minister for the purposes of subpara (b)(v) of the definition of “immigration detention” in subs 5(1) of the Act purported to approve the Mantra Hotel and “Hotel on Swanston” at 701 Swanson Street, Carlton as places of immigration detention, and repeal the 12 August 2020 instrument: Migration (Approval of Places of Immigration Detention) Instrument 2020/036. The Hotel on Swanston was subsequently renamed the Park Hotel; and
(e)a written instrument dated 21 December 2020 by which Mr Watts as a delegate of the Minister for the purposes of subpara (b)(v) of the definition of “immigration detention” in subs 5(1) of the Act purported to approve the Mantra Hotel and the Park Hotel, as places of immigration detention, and repeal the 11 December 2020 instrument: Migration (Approval of Places of Immigration Detention) Instrument 2020/038.
3.2 The purpose for establishing the Hotels as places of detention
The evidence shows that the Department contracted with Serco Australia Pty Ltd to operate the Hotels as immigration detention facilities, and indicates that the Department’s central purpose in approving the Hotels as places of immigration detention was so as to accommodate medical transferees to Australia from Nauru and Manus Island.
On 18 July 2019 Serco sent an options paper titled Facility Operating Model: Melbourne Alternative Places of Detention (MAPOD) Solution to the ABF. In the paper Serco said that there was a need for an Alternative Place of Detention (APOD) in Melbourne “due to the significant increase in the number of medical and non-medical transfers of refugees from Australia’s Offshore Processing Centre[s] on Nauru and Manus Island to the Australian mainland since July 2018”, which it called the “MAPOD Solution”. Serco recommended that the MAPOD Solution be established at the Mantra Hotel.
On 6 August 2019 Serco sent an Additional Service Request to the Department. Serco sought approval of costs associated with providing security at APODs for all medical transferees from Nauru. In the request Serco recommended the Mantra Hotel be established as an APOD based on Serco having been promised exclusive access to two wings of the premises, initially on one floor but with the option to move across multiple levels. Band 1 of Serco’s proposed pricing involved accommodating 38 to 57 detainees on one floor of the Mantra Hotel, and Band 2 involved accommodating 78 to 117 detainees on two floors. Both pricing bands involved “24/7-hour coverage to maintain security and emergency management”, with 25 Serco employees required for Band 1 and 43 Serco employees for Band 2.
The ABF recognised that one of the problems with detaining people at the Mantra Hotel was a lack of access to outdoor areas. On 6 August 2019 the Acting Superintendent Detention Operations, Victoria/Tasmania, ABF sent an email to the National Transport and Escort Logistics Manager of Serco stating “[a]s we discussed, in the longer term we need to see some improvements and solutions for: access to outdoor areas (excursions/transport options)”. On 8 August 2019 the Acting Superintendent Detention Operations sent an email to another officer in which he said the following:
The APOD we have established at the Mantra in Bell Street, Preston (for the offshore cohort) has a few limitations. Most notably, there is no access to outdoor areas.
As such, we will receive extreme criticism from the Ombudsman (who has already visited the APOD this week) and other bodies. Aside from the scrutiny, we need to ensure the health and well-being of those individuals accommodated there is appropriately catered for - it’s not ideal at all that they do not have free access to an outdoor space.
As such, I am going to propose we run a regular shuttle bus between the APOD and MITA for anyone who wants to use the soccer pitch/gym, potentially attend classes, eat lunch, etc, with the primary purpose to provide regular and ongoing access to outdoor areas.
Serco estimated the cost of its services per quarter to operate the Mantra Hotel at approximately $4.37 million for Band 1, and approximately $8.3 million for Band 2. On 18 October 2019, the ABF’s Contract Administrator approved $8.3 million of expenditure for the costs associated with the MAPOD Solution for the period of 25 July 2019 to 31 October 2019.
On 19 November 2020 Serco sent an options paper to the ABF titled Replacement of the Current Location of the Melbourne Alternative Places of Detention. The paper stated that Serco had been notified by the operator of the Mantra Hotel that it would not extend the agreement for the hotel to be used to hold immigration detainees beyond its expiry on 31 December 2020. The paper also stated that Serco had “gone to the market to identify a suitable property to accommodate the detainee cohort within the Melbourne region” and that it recommended the “Rydges on Swanston” hotel at 701 Swanson Street, Carlton (later renamed the Park Hotel) as the most operationally suitable location for a replacement Melbourne APOD. The paper indicated that there were approximately 65 detainees who would require to be transferred from the Mantra Hotel to the new facility.
On 10 December 2020 Serco sent an options paper to the ABF titled Facility Operating Model, Melbourne Alternative Places of Detention 2 (MAPOD2) Solution. The paper stated that Serco and the ABF had assessed that “[d]ue to the ever-growing increase in detainee numbers and noting the limitations of existing detention infrastructure… Serco should establish a further single APOD for accommodating detainees of this cohort type”. It identified the relevant cohort of persons as detainees “within the Melbourne Region as well as the continuing ongoing high numbers of medical transferees from Australia’s Offshore Processing Centre’s on Nauru and Manus since July 2018.” The paper described the proposed new facility as Melbourne Alternative Place of Detention Two, or MAPOD2.Serco recommended that it be established at the (renamed) Park Hotel.
The proposal for the use of the Park Hotel as a place of immigration detention involved three payment bands based on the number of floors which were to be used. Each of Bands 1, 2 and 3 involved “24/7-hour coverage to maintain security and emergency management”. Band 1 (accommodation on one level) involved 59 Serco employees, Band 2 (accommodation on two levels) involved 68 Serco employees and Band 3 (accommodation on three levels) involved 83 Serco employees. On 24 February 2021 Serco estimated the costs of its services at MAPOD2 for each quarter at approximately $10.6 million for Band 1, approximately $12.4 million for Band 2, and approximately $14.9 million for Band 3.
On 15 December 2020 the Department approved, in principle, the proposed Operating Model for MAPOD2, including use of the Park Hotel. On 17 December 2020 the applicant was transferred from the Mantra Hotel to the Park Hotel.
Mr Watts testified, and I accept, that the Park Hotel was primarily used as a place of detention for “transitory persons” (as defined in the Act) brought to Australia from a regional processing country, for example to receive medical treatment, or accompanying a family member who was receiving medical treatment, and that it also held some people who had been refused immigration clearance. Mr Watts was not in his present role at the time the Mantra Hotel was established, and his evidence in relation to the cohort of detainees held there was somewhat uncertain. But having regard to the documentary evidence it is sufficiently clear that the cohort of detainees in the Mantra Hotel was also primarily “transitory persons” brought to Australia from a regional processing country for medical treatment, or accompanying a family member.
I also accept his evidence that, consistently with the Act, such transitory persons were required to return to a regional processing country when they no longer needed to remain for the temporary purpose for which they were brought to Australia. Mr Watts said that transitory persons do not have a migration pathway in Australia and are precluded from applying for a visa in accordance with ss 46A and 48B of the Act.
Mr Watts said that such transitory persons are encouraged to finalise their medical treatment so they can return to Nauru or PNG, continue on a pathway to be resettled in the third country, or return to their home country, or another country in which they have right of entry. He said it was not appropriate to accommodate this cohort of transitory persons within an Immigration Detention Centre (IDC) because of the different risk profile of the cohort of transitory persons and the difficulty of accommodating that cohort in an IDC while keeping it separate from the existing IDC population. He also said that IDCs generally accommodate higher risk detainees and it was preferable for persons in the transitory persons’ cohort, who generally had a lower risk profile, to be detained separately from the IDC population.
I do not accept Mr Watts’ suggestion that the persons brought to Australia from PNG or Nauru for medical treatment were brought here for a “temporary purpose”. At that time it was abundantly clear that:
(a)for many medical transferees, the medical treatment they needed would take a substantial period, and for those with long-term psychiatric or psychological difficulties it could be indefinite;
(b)many medical transferees would be quite reluctant to return Nauru or PNG given the lives and conditions they had experienced there;
(c)finding countries willing to resettle such detainees was very difficult, and when pathways to do so opened up it usually took a long time; and
(d)those detainees who had fled from persecution in their home countries were likely to refuse to return there, and the Federal government had a policy of not returning people to a country if it would mean Australia was in breach of its international non-refoulement obligations.
In combination, those things meant that it was unlikely that medical transferees, like the applicant, would be detained in Australia only for a short time. I do not accept that bringing a person to Australia for psychiatric assessment and treatment and detaining them somewhere for more than 14 months can be properly described as being “temporary” or “short term”.
Mr Watts said that the Park Hotel, which was established in around December 2020, was also set up to provide additional “operational quarantine capacity” for use during the COVID-19 pandemic, and in particular ensuring compliance with the Communicable Diseases Network Australia “National Guidelines for the Prevention, Control and Public Health Management of COVID-19 Outbreaks in Correctional and Detention Facilities in Australia”. The phrase “operational quarantine capacity” refers to the available space in which to place detainees who are entering detention from outside a detention facility (including from prison, another place of detention or on return from trips outside of the detention facility).
I accept his evidence that the COVID-19 pandemic and resultant international border closures and limited commercial flights constrained the ability of the ABF to remove detainees from Australia from March 2020 onwards, and that at that time inflows of detainees from prison into detention centres placed significant capacity pressures on the network of immigration detention facilities. While I accept those things, to the extent that the Commonwealth suggested that as an explanation for why the applicant and other detainees were held in the Hotels for the lengthy periods they were, I am not persuaded that was the reason why the applicant and other similarly situated detainees were not removed from Australia and were instead detained here for lengthy periods. I note that counsel for the Commonwealth walked back that suggestion when I questioned it.
I broadly accept the balance of Mr Watts’ evidence, and where I do not I indicate so.
3.3 The hierarchy of immigration detention facilities
He said that there is a range of placement options available to the Commonwealth for dealing with unlawful non-citizens in Australia, including: (i) detaining them in an Immigration Detention Facility (IDF); (ii) making them lawful non-citizens through the grant of a visa; or (iii) arranging for them to be placed in the community through the residence determination provisions in the Act.
In relation to the hierarchy of IDFs he said that there are three broad types of IDF in use:
(a)IDCs, which are centres established under s 273 of the Act, offer the highest level of general security. They are generally used to provide secure detention for detainees who are a higher flight or security risk than detainees placed in other facilities. There are four IDCs, located at North West Point on Christmas Island; Yongah Hill in Western Australia; Perth in Western Australia; and Villawood in New South Wales.
(b)Immigration Transit Accommodation (ITAs), which are “other places” approved by the Minister by written instrument as a place of immigration detention under subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Act. They are dedicated transit facilities in detention precincts which provide accommodation for lower security and low flight-risk persons in detention. They are generally used to detain people who: (a) have not been immigration cleared on arrival at an Australian airport; (b) are ready to be removed and cannot be removed directly from the community; (c) are awaiting initial health, character and security checks before transitioning into the community; or (d) are required to be held in detention for a short period for other reasons. There are three ITAs, located in Brisbane, Melbourne and Adelaide.
(c)APODs which are also “other places” approved by the Minister by written instrument as a place of immigration detention under subpara (b)(v) of the definition of “immigration detention”. APODs are intended to be used more flexibly as part of the network of IDFs, and to be operated on an “as needs” basis. Facilities can be and remain designated as APODs for as long as there is a perceived operational need, which may be an unknown or lengthy period of time. Facilities are removed from designation as an APOD by a new written instrument once their need is at an end. At any given time, there may be more than 100 approved APODs around Australia.
He also said that detainees are intended to be placed within the Department’s network of IDFs through a risk-based approach, in which the risk assessment made in relation to the detainee and the risk rating of the available facilities are matched as far as practicable.
Mr Watts testified that facilities may be designated as APODs for a short period of time, for example when a person needs to attend a hospital; treatment can be administered relatively quickly and there is no further need for a particular hospital to remain listed on the written instrument. Other facilities may be designated as APODs for inherently uncertain periods of time, for example, where a facility is designated for end-of-life care. Sometimes operational needs result in premises remaining designated as an APOD for a longer period of time; for example, where a hospital is used frequently or where circumstances beyond the control of the Department mean that detention in the APOD is for a longer period than initially thought to be likely. In designating places as APODs the Department takes into account overall capacity in the network of IDFs and the need to keep detainees of different security levels separated, which can mean that detainees are accommodated outside IDCs.
APODs are generally intended for use as a short-term detention solution at locations where there are no other suitable immigration detention facilities. This includes situations where a person in immigration detention needs to reside in a place for a specific purpose, or where a person will not reside in the place, but might spend part of their day there and where it is not appropriate or possible for them to be accompanied at all times. For example, Mr Watts referred to:
(a)detainees with a critical need, such as medical treatment. Where a detainee suffers a serious medical condition that requires them to be hospitalised for overnight or longer, the hospital may be designated as an APOD. Hospitals which are regularly used to treat detainees are approved as APODs on a longer term basis;
(b)for minors while attending school during the day; and
(c)for detainees who have been detained at a location where it is not practicable to place the person in another form of IDF. For example, a hotel may be temporarily approved as an APOD if a person has been refused immigration clearance at an airport in a location where there is no IDC and it is anticipated that they will be removed from Australia the following day.
While I accept what Mr Watts said about the Department’s intention behind the approval of places like the Hotels as APODs, I do not consider that, in practice, the Department treated the Hotels as places for “temporary” detention. The evidence tends to show that they were used as places of long-term detention. Of course, that depends upon what is meant by long-term but it is not apt to describe detention for 14-months, with no information being provided to the detainee as to when it might end as “temporary” or “short-term” within the ordinarily meaning of those words. The examples Mr Watts provided are a world away from the detention experienced by the applicant (and I infer other medical transferees like him) who were detained in the Hotels for more than a year.
Mr Watts also said that many of the services which would be available in an IDC, including healthcare and recreational services, are not available on site at the APOD, and that to access such services persons detained in APODs are generally required to be escorted to an IDC. Mr Watts put that difference down to “the nature of an APOD”, by which I infer he meant the temporary or short-term nature of detention in an APOD. That was not, however, the reality of the use to which the Commonwealth put the Hotels, which cannot properly be described as being “temporary” or “short-term”.
3.4 The process of establishing an APOD
At the time of the hearing Mr Watts was the officer ordinarily responsible for exercising the power, delegated to him by the Minister, to approve places as a place of “immigration detention” within the meaning of subpara (b)(v) of the definition of “immigration detention” in the Act.
He said that the first consideration for establishing an APOD is necessity, and that such a decision is always based on operational need. Operational need is considered on a case-by-case basis, in consultation with the ABF Detention Superintendent, being the lead Departmental officer in each IDF. He said that an APOD will be established out of necessity where the appropriate care and safety of a detainee cannot be provided within an IDC (for example, in a case where hospitalisation is required). He also said that an APOD may be established where there is no capacity to detain a person or a cohort within existing IDCs. Once an APOD is deemed necessary, the various APOD options available are considered in order to determine which would be most appropriate.
Before a particular APOD is approved, it must undergo a site risk assessment, conducted by Serco, in an effort to ensure that it provides a safe and secure environment for detainees and security and service provider staff. This process includes an assessment of key physical risks including but not limited to building layout and structure, number of entrances and exits, existing security infrastructure and external arrangements, including street location, parking availability, lighting, location (adjacent areas, landmarks) and vegetation. Once the risk assessment has been completed, the relevant Detention Superintendent will then make a recommendation to Mr Watts about whether the APOD is fit for purpose and should be approved.
The relevant considerations include factors such as the purpose for which the APOD is to be established, the necessity for the APOD, and the safety and security of the APOD.
Mr Watts approves (or considers the approval of) an APOD at least once or twice per month, and that he regularly reviews the existing approvals to revoke approvals when they are no longer required. He also said that Facility Superintendents regularly review APODs and recommend the removal of APODs which are no longer in use. Mr Watts is the person primarily responsible for removing APODs from the list of approved places for immigration detention, and the process for removal of premises from the list of APODs is similar to the process of approval.
3.5 The conditions in the Mantra Hotel
The applicant gave unchallenged evidence as to the conditions of his detention in the Hotels, which I accept. It is necessary to set out this evidence in some detail because it grounds the applicant’s claim that the Hotels operated as de facto detention centres.
The applicant said that on arrival in Australia from PNG on or around 11 November 2019 he was taken to the Mantra Hotel. He was then taken to a room on the third floor of the hotel by two Serco officers. For the first month of his detention at the Hotel he shared a room on the third floor of the hotel with two other detainees, in a room with three single beds in it. After around one month, one of the other detainees moved into a different room. The applicant continued to share the room with the remaining detainee for approximately eight months but when that detainee was transferred elsewhere he stayed in the same room, by himself, until he was transferred to the Park Hotel on 17 December 2020.
The applicant was not permitted to leave the third floor of the hotel, except when travelling by lift to the basement of the hotel, for lunch and dinner, during which time he was escorted by Serco officers. At that time neither the third floor of the hotel nor the basement had any open-air access.
The applicant did, however, have the option of requesting to be taken to the Melbourne Immigration Transit Accommodation (MITA) detention facility, where he could go outdoors. In order to go to MITA he was required to write his name on a list if he wished to be taken there the following day. Only approximately 10 detainees could be escorted to MITA each day, and if the list was full he could not go there.
If he was able to be taken to MITA the visits lasted between one and two hours. A number of activities were available there, but the applicant did not usually participate in the activities. He went to MITA to get some fresh air and sunlight because those things were otherwise denied to him. Unfortunately, visits to MITA were terminated on or around 24 March 2020 due to the COVID-19 pandemic. From that point onwards until September 2020 he had no outdoor access and thus no access to fresh air, or to sunlight other than through a window.
From September 2020, detainees at the Mantra Hotel were permitted access to a small outdoor area, which had half a basketball court. Departmental documents indicate that although the half-basketball court was made available it was little used because detainees were depressed, and other records suggest that usage was limited to 40 minutes per day per detainee.
The room which the applicant occupied at the Mantra Hotel had basic amenities including:
(a)for the first month three single beds (with approximately 1 metre between each bed) and thereafter two single beds;
(b)a small couch;
(c)a fridge;
(d)a microwave;
(e)a television;
(f)a toilet;
(g)a shower; and
(h)an air-conditioning unit.
When the air-conditioner was turned on his room became very dusty, and when it was turned off it was hard for the applicant to breathe, and he coughed more than usual. Only one of the windows could be opened, and only to approximately 10 cm. As a result the applicant found it very difficult to get fresh air in the room. For the first few months of his detention at the Hotel that window could not be opened unless a Serco officer unlocked it, but after that period the Serco officers stopped locking the window.
The applicant approached Serco officers many times complaining about the lack of fresh air. He also tweeted regularly about the conditions of detention and the lack of access to the open air including by stating:
(a)on 10 December 2019, “[t]here’s not any outdoor space for breathing for the refugees have been transferred to Australia through the Medevac bill. We have been locked up in hotels by the Australian government. No trees, no breath.”;
(b)on 23 December 2019, “[t]here’s no outdoor space for breathing here. We need help please…”;
(c)on 22 January 2020, “it’s not easy to spend 19 hours a day in a room. The officers checked the rooms several times a day. They have taken the sky away from us”;
(d)on 17 April 2020, “…our bodies are getting weaker day by day. There’s not a place for walking here…”;
(e)on 17 May 2020, “[r]efugees who are locked up in the Mantra Hotel (prison) are deprived of sunlight. There’s not an outdoor space for breathing…”;
(f)on 11 September 2020, “The Australian government are diminishing our lives gradually; minimising our existence with each passing day. Our life is the size of a room, a narrow corridor and a kitchen, with a small window to the world and life outside, that fits in the palm of our hands #NoPhoneNoLife”; and
(g)on 11 November 2020, on the first anniversary of the commencement of his detention at the Mantra Hotel, “[l]ast year on 11th of Nov I was transferred to Australia for medical help and since then I have been locked up in Mantra prison. There’s no any proper medication here. They are torturing us. We cannot breathe. They are harassing us. They are demonising refugees.”
3.5.1Other facilities at the Mantra Hotel
There was a smoking room set up in one of the hotel rooms on the third floor, near to the applicant’s room. The applicant suffers from asthma and sometimes the smoke made it hard for him to breathe, and he suffered from night-time coughing fits. After about three or four months the smoking room was moved to the basement.
There was a space in the basement with gym equipment for detainees to use. There was a common area on the third floor which had chairs, laundry facilities, a small fridge, a pool table, television, tables and a ping-pong table. There were always Serco officers in the common area.
3.5.2Disruption due to COVID-19
From on or around 24 March 2020, because of the COVID-19 pandemic:
(a)detainees were no longer permitted to go to MITA for recreational visits or to get fresh air. Visiting MITA had been the applicant’s only opportunity to access fresh air and sunlight, and once those visits stopped the applicant found the conditions of his detention much more difficult;
(b)communal lunch and dinner in the basement was ceased and Serco officers delivered lunch and dinner in disposable packaging twice a day to the applicant’s room; and
(c)until December 2020 the applicant was not permitted to have visitors at the hotel. When visits recommenced in December 2020 the visitors were separated from detainees by a glass partition.
3.5.3The security arrangements
The applicant’s evidence shows that Departmental concerns in relation to security and minimising the risk of escape were central considerations. Amongst other things:
(a)each day, approximately 30 Serco officers walked up and down the corridor of the third floor of the Mantra Hotel, wearing Serco uniforms and carrying radio equipment and handcuffs;
(b)each day at approximately 6:00 or 6:30 am and between 9:00 pm and 10:00 pm at least one Serco officer (but sometimes as many as three) would come into the applicant’s room and do a headcount to check that he and his roommate(s) were there. Serco required detainees to be in their rooms when the headcount took place. If he was asleep the Serco officers would either use a torch or turn on the light to check that he was in his bed. At other times during the day Serco officers would come into his room unannounced for different reasons, sometimes up to 10 times in a day;
(c)when the applicant went from the third floor of the Hotel to the basement to eat lunch or dinner he was always escorted in the lift by approximately two Serco officers. Approximately 10 Serco officers would be in the basement during lunch and dinner to supervise the detainees, one at the back of the basement, two in separate corners and the other officers patrolling the area;
(d)the routine imposed for travelling to and from MITA was that:
(i)before the applicant was allowed to travel to MITA he was first required to undergo a “pat-search” by Serco officers in a dedicated “pat-search room” on the third floor. The pat-search involved him first being scanned with a metal detector and then patted or squeezed on the inside and outside of his arms, his chest, the side of his body, and the inside and outside of his legs. Sometimes he was required to touch the wall and to open his legs wide before being pat-searched. Usually, multiple Serco officers carried out these pat-searches; one performing the search, one keeping a written record of his behaviour during the search; another filming the search; and another sitting behind the desk in the pat-search room. The applicant found the pat-searches distressing.
(ii)detainees were taken to MITA in a minibus or a seven-seater car and were always escorted by Serco officers. Usually four or five officers would accompany them if they were taken by minibus, and three officers if they were taken by car. On arrival at MITA they passed through one gate and then a Serco officer would approach the car to confirm how many detainees and how many Serco officers were inside. Another Serco officer would use a mirror to check underneath the car; and
(iii)before being permitted to return to the Mantra Hotel, the applicant again underwent a pat-search, this time at MITA. Some of the Serco officers who performed pat-searches on him at MITA also worked at the high-risk compound and were “very physical” in their approach to the task of pat-searching;
(e)the routine imposed in relation to visitors was that:
(i)if the applicant was meeting a visitor he was escorted to the basement by approximately two Serco officers. The visits were supervised by Serco officers and the applicant was not allowed to have any physical interaction with the visitor. There were four cameras set up in the basement of the Mantra Hotel and the visits were filmed. If a visitor gave him food such as biscuits or chips when they visited him, he had to eat the food during the visit. That was because he was not permitted to take anything from the visit back to his room on the third floor, even if the food was in a sealed package; and
(ii)the applicant was required to undergo a pat-search both before and after seeing a visitor. If he saw a second visitor on the same day he was required to undergo another pat-search before seeing that visitor, and was pat-searched again after that meeting. If he went to MITA in the morning and in the afternoon, and he saw visitors in between that at the hotel, he might undergo eight pat-searches in a day.
3.6 The conditions in the Park Hotel
On the morning of 17 December 2020 the applicant was transferred to the Park Hotel along with other detainees from the Mantra Hotel. He was allocated a room on the fourth floor, to be shared with another detainee. The room the applicant was allocated had the following basic amenities:
(a)two double or queen size beds;
(b)a lamp;
(c)a small table
(d)two chairs;
(e)a television;
(f)a toilet;
(g)a shower; and
(h)air conditioning.
The two beds in the room were very close together, with only about half a metre between them. The room did not have a window which could be opened which meant that it was impossible to get fresh air into the room, and the air conditioning did not work well. This added to the applicant’s breathing difficulties.
There was glass on one wall of the room, but the applicant had no view of anything except a cement wall. At some point in December 2020 the windows on most of the rooms on the fourth floor of the hotel were tinted, which meant that although detainees could look out onto the street from some of the rooms, supporters outside could not see the detainees. A Serco document titled “SIS Site Risk Assessment” dated 3 December 2020 indicates that the windows were mirror tinted by design so as to ensure that their supporters and protestors could not see the detainees. I find it hard to see a reasonable rationale for cutting off the detainees from sight of people from whom they could have drawn some support. The conditions of their detention were hard enough without further cutting them off from the outside world.
The applicant again complained about the lack of fresh air in his room and his difficulty breathing, and was merely told “you’ll get used to it”. He continued to tweet including by saying:
(a)on 17 December 2020, “I can’t breathe. The living conditions is not better than the Mantra prison. They lied to us. We cannot wave at each other like before. In front of most of the windows there is a wall. It makes us uncomfortable.”;
(b)later on 17 December 2020, “[t]his is the room that 2 refugees should share with each other. No fresh air, it’s just a glass & outside a cement wall which hurt us. People cannot see us any more. The glasses are tinted. This government has attempted to weaken our resistance. Shame on this government.”
3.6.1Other facilities
The other facilities at the Park Hotel included the following:
(a)detainees were permitted to use an open air area on the roof of the hotel which was small, and much of which was occupied by a swimming pool which detainees were not permitted to use. There was a disused bar in that area which detainees could sit at. But because this was the only area in the hotel in which detainees could smoke, the air was usually filled with smoke. The applicant would sometimes go to this area during the day and walk around the edge of the swimming pool;
(b)approximately one third of the fourth floor of the hotel was used as a gym area by detainees; and
(c)there was an area on the first floor of the hotel where visitors could meet with detainees. Visitors had to apply for the right to visit, and approval for visits took approximately five business days. Because of COVID-19, the applicant was not permitted to be in the same physical space as visitors, and any visits had to take place behind glass. He was not able to shake hands or have any physical contact with visitors.
3.6.2The security arrangements
The applicant’s evidence indicates that Departmental concerns regarding security and minimising the risk of escape were also the central considerations in the operation of the Park Hotel. For example:
(a)there were more Serco officers patrolling the corridor of the fourth floor at the hotel than there were at the Mantra Hotel. At any given time the applicant estimates there were approximately 50 Serco officers on the fourth floor, equipped with radios and, I infer, handcuffs;
(b)each day at approximately 6:30am and approximately 9:00pm Serco officers would come into the applicant's room and do a headcount to check that he and his roommate were in the room. The Serco officers required detainees to be in their rooms when the headcount took place. If it was dark the Serco officers would either use a torch or turn on the light to check that the detainees were in their beds;
(c)at other random times during the day Serco officers would also enter detainees’ rooms to check up on them and monitor what they were doing. During some days of his detention at the Park Hotel the applicant counted 10 separate occasions on which Serco officers entered his room;
(d)the regime of mandatory pat-searches at the Park Hotel was similar to the Mantra Hotel. The applicant was pat-searched before going to MITA, and before returning from MITA. He estimates he was pat-searched over 400 times whilst detained at the two Hotels; and
(e)he was escorted by Serco officers to the restaurant on the ground floor of the Park Hotel to eat lunch and dinner at set times each day (between approximately 12:00pm and 2:00pm for lunch and between 5:00pm and 7:00pm for dinner).
Serco documents show the centrality of security and minimising the risk of escape in the operations of the Hotels, including:
(a)the use of static-posted Serco guards in foyers, and elevators, and emergency exit doors, and roving Serco officers for the purpose of escorting detainees during internal movements, and supervising visits and other activities;
(b)managing telephone calls at the Hotels, including keeping records of telephone contact with lawyers, the Ombudsman and Australian Human Rights Commission;
(c)monitoring internet traffic and imposing restrictions such as prohibiting use of gambling websites, creating or posting to personal blogs and creating personal webpages;
(d)searching detainees’ rooms and daily (and at the Park Hotel, twice weekly) fabric checks of occupied rooms and common areas;
(e)perimeter checks of the facility, at least twice daily (or four times daily at the Park Hotel);
(f)entry and exit screening checks, including searching for “contraband” and pat-searches, recorded on body or handheld cameras. The applicant underwent pat-searches throughout the course of a day;
(g)controlling the room keys of detainees, with all locks forming part of a “master key schedule”;
(h)maintaining intelligence collection, analysis and reporting, for the purposes of development ongoing review of the risks at the facility as well as detainee Security Risk Assessments;
(i)confiscation of some items of personal property after having seen a visitor; and
(j)twice daily head counts of the detainees.
4. LEGISLATIVE FRAMEWORK AND PRINCIPLES
At all material times, from the applicant’s medical transfer to Australia in November 2019 until he was granted a bridging visa on 21 January 2021, he did not hold a visa to enter or remain in Australia. He was therefore an “unlawful non-citizen” under s 14 of the Act. It is common ground that throughout that period it was known or believed by the officers detaining him that he was an unlawful non-citizen.
At all material times s 189(1) of the Act provided:
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
As explained in Commonwealth of Australia v AJL20 [2021] HCA 21; 273 CLR 43 at [16] (Kiefel CJ, Gageler, Keane and Steward JJ), detention under s 189(1) has two distinct and sequential operations.
First, it authorises and requires a person in the migration zone to be taken into immigration detention by an officer who knows or reasonably suspects that the person is an unlawful non-citizen. Secondly, it authorises and requires the person, having been taken into immigration detention, to be kept in immigration detention by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen.
Section 189 does not authorise the detention of an unlawful non-citizen in the ordinary sense of the term “detain”, which is defined in s 5(1) to mean “take into immigration detention or to keep, or cause to be kept, in immigration detention.” The power under s 189 is a power to take an unlawful non-citizen into “immigration detention”, as defined, and to keep the person there.
That is confirmed in s 196(1) which at all material times provided that a person detained under s 189 must be kept in “immigration detention”, until one of four specified events occurs. It provided:
(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a)he or she is removed from Australia under section 198 or 199; or
(aa)an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b)he or she is deported under section 200; or
(c)he or she is granted a visa.
…
It is not in dispute that until the applicant was granted a bridging visa on 21 January 2021, none of the events specified in s 196(1) had occurred.
At all material times para (b) of the definition of “immigration detention” in s 5(1) of the Act provided:
"immigration detention" means:
…
(b) being held by, or on behalf of, an officer:
(i)in a detention centre established under this Act; or
(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii)in a police station or watch house; or
(iv)in relation to a non-citizen who is prevented, under section 249, from leaving a vessel--on that vessel; or
(v)in another place approved by the Minister in writing;
…
Pursuant to para (b) of the definition, being in “immigration detention” means being held by, or on behalf of, an officer in one of five types of places described. At all material times “officer” was broadly defined in s 5(1), and included, amongst others, officers of the Department of Immigration, a protective service officer for the purposes of the Australian Federal Police Act 1979 (Cth), persons authorised in writing by the Minister to be an officer for the purposes of the Act, and members of the Australian Federal Police or of the police force of a State or Territory. It is not in contest that that the applicant was held by or on behalf of an “officer”.
Paragraph (b)(i) of the definition of “immigration detention” provided that immigration detention includes being held by or on behalf of an officer “in a detention centre established under this Act.” It is not in dispute that subpara (b)(i) is a reference to “detention centres” established and maintained pursuant to the Minister’s express power under s 273(1) of the Act to “cause detention centres to be established and maintained”. At all material times subs 273(4) provided that “detention centre” means “a centre for the detention of persons whose detention is authorised under this Act.”
5. THE NO POWER TO APPROVE ‘ANOTHER PLACE’ OF IMMIGRATION DETENTION CONTENTION
It is not in dispute that the only authority the Commonwealth had to detain the applicant while he is in Australia is the power under the Act to detain an “unlawful non-citizen” in “immigration detention”. Because the applicant was an unlawful non-citizen, under ss 189 and 196 of the Act, an “officer” (as defined) had a duty to detain him in immigration detention, and had he not been detained in the Hotels an officer had a duty to detain him somewhere else.
The Commonwealth does not contend that it would have been lawful for it to detain the applicant in a place that did not fall within the definition of “immigration detention”. That was appropriate having regard to New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 at [48], [54] per Basten JA (with whom Bathurst CJ at [5], [7] and Hoeben JA at [96]-[97] agreed). The reasoning of Barrett JA (at [86]-[88], [94]) and Sackville AJA (at [102]) was to a similar effect. TD is authority for the proposition that:
(a)a person may be unlawfully detained despite the fact that he or she is not otherwise entitled to be at liberty; and
(b)where detention of a person in one place is authorised, detention of the person in another place which is unauthorised may nevertheless be unlawful.
It is not in dispute that the Minister had and has authority under s 273 to establish and maintain a “detention centre”. The Minister, however, accepts that neither of the Hotels was, in fact, established or maintained under that provision or under subpara (b)(i) of the definition of “immigration detention”.
It is not in dispute that there is no substantive provision in the Act which expressly empowers the Minister to approve ‘another place’ in writing as a place of immigration detention. Further, it is uncontentious that the Hotels were not:
(a)a prison or remand centre of the Commonwealth, a State or a Territory (and therefore do not fall within subpara (b)(ii) of the definition of “immigration detention”);
(b)a police station or watch house (and therefore not within subpara (b)(iii)); or
(c)a vessel (and therefore not within subpara (b)(iv).
It follows that the applicant could only have been in “immigration detention” during the relevant period if the Mantra Hotel and/or the Park Hotel were “another place approved by the Minister in writing” under subpara (b)(v) of the definition.
5.1 The applicant’s submissions
The applicant submits that neither subpara (b)(v) of the definition of “immigration detention” in the Act, nor any other provision of the Act, confers a power on the Minister to approve ‘another place’, in writing, as a place of “immigration detention”. The Commonwealth accepts that there is no substantive provision in the Act which expressly empowers the Minister to approve the Hotels as places of immigration detention, but contends that subpara (b)(v) of the definition of “immigration detention” impliedly confers power upon the Minister to do so.
On the applicant’s argument, there are three available constructions of subpara (b)(v) of the definition of “immigration detention”:
(a)it creates a power for the Minister to approve ‘another place’, in writing, as a place of “immigration detention”;
(b)it does not create such a power, but still has work to do by seizing on the fact of the existence of a “writing” by the Minister granting such an approval; or
(c)it does not create such a power and serves no purpose, it being a vestigial subparagraph left over by legislative mistake.
The applicant submits, and it is uncontentious, that there is a principle of statutory interpretation that statutory definitions are not a source of substantive power; instead they operate as an aid to the construction of the statute. In an often quoted passage in Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 at 635 Barwick CJ, McTiernan and Taylor JJ explained, as follows:
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland (Statutes and Statutory Construction, 2nd ed., vol. 2, p. 687),
‘Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves’.
In Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; 256 CLR 437 at [61]-[62] French CJ, Kiefel, Bell and Nettle JJ referred to the “general principle” that a statutory definition is not a source of statutory power, and said that it can be departed from where there is “a clear, contrary legislative intent”.
The applicant accepts that, in some cases, where a substantive provision (as distinct from a definition) assumes the existence of a power that cannot be located elsewhere in the statute, a court may construe that provision as impliedly conferring that power. He refers to the decision in Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; 157 CLR 290 as an example of that but seeks to distinguish Mayer (and other decisions which have followed it) on grounds including that:
(a)the provisions that were construed in those cases to have impliedly conferred a power were substantive provisions, rather than a definition; and
(b)Mayer was a “difficult case” in which the majority of the Court felt compelled to construe the provision as impliedly conferring power because only then would the appellant have the benefit of a remedy under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in respect of the refusal of the Minister to grant him an entry permit.
The applicant submits that Mayer stands for the proposition that power can be impliedly conferred by a substantive statutory provision that does not in express terms provide for such a power, but only if Parliament’s intent about the operation of the Act would be “wholly frustrated” unless that power is implied. On the applicant’s argument there is nothing to show:
(a)any “clear, contrary legislative intent” such that it is appropriate to construe subpara (b)(v) of the definition of “immigration detention” as anything other than part of that definition; nor
(b)that Parliament’s intent would be wholly frustrated unless subpara (b)(v) is construed as impliedly conferring power on the Minister to approve ‘another place’ of immigration detention.
On his argument, because subpara (b)(v) of the definition does not confer a power for the Minister to approve ‘another place’ for immigration detention, there is no power of approval which the Minister could delegate under s 496(1) of the Act. Therefore, the variously dated written instruments by which delegates of the Minister purported to approve the Hotels as places of immigration detention had no effect; the Minister could not delegate a power he did not have.
The applicant contends, by reference to the legislative history of the Act, that rather than being a source of power for the Minister to approve ‘another place’ in writing as a place of immigration detention, subpara (b)(v) of the definition of “immigration detention” was intended by the legislature to operate by acting on or picking up any such approval, the power for which is found in a substantive provision elsewhere in the Act. He says that by legislative mistake there is no longer a substantive provision for subpara (b)(v) to act on or pick up, and the subparagraph is vestigial with no work to do.
The applicant’s review of the legislative history of the Act commences with the insertion of a definition of “custody” into the Migration Act through the Migration Legislation Amendment Act 1989 (Cth) (the 1989 Amendment Act), which was given assent on 19 June 1989. The 1989 Amendment Act repealed some provisions of the Migration Act and substituted others and also renumbered the sections of the Principal Act. In the 1989 Amendment Act the definition of “custody” was numbered s 5G, but by the renumbering of the Principal Act it became s 11. For clarity I will refer to it as s 11.
The definition of “custody” in s 11 provided, as follows:
Meaning of custody
For the purposes of this Act, a person shall not be taken to be in custody under this Act, or in the custody of an officer, unless the person is:
(a) being held:
(i)in a detention centre established under this Act;
(ii)in a prison or remand centre of the Commonwealth, of a State or of a Territory;
(iii)in a police station or watch house; or
(iv)in another place approved by the Minister in writing; or
(b) in the company of, and restrained by an officer or another person directed by the Secretary to accompany and restrain the person.
The applicant notes, and it is not in dispute, that:
(a)the language of para (a) of the definition of “custody” in s 11 of the (then) Act is very similar to para (b) of the definition of “immigration detention” in the current Act; and
(b)the language of subpara (a)(iv) of the definition of “custody” is essentially identical to the language of subpara (b)(v) of the definition of “immigration detention” in the current Act.
The applicant argues that the definition of “custody” should be recognised as the progenitor of the language of the definition of “immigration detention”, and in particular that subpara (a)(iv) of the definition of “custody” should be recognised as the progenitor of subpara (b)(v) of the definition of “immigration detention”.
The applicant then notes that following the 1989 Amendment Act, the Migration Act included s 92 which was headed “Arrest of illegal entrant”. Broadly, the (then) Act provided that a person was an “illegal entrant” if the person did not, upon entering Australia, hold a valid entry permit (being the forerunner to a visa). Subsections 92(1) and (2) provided that an officer may arrest a person whom the officer suspected to be an illegal entrant and the person so arrested may then be kept “in the custody of any officer or in such other custody as the Minister or the Secretary directs”. The applicant describes the scheme created by the 1989 Amendment Act as involving “permissive detention”.
Next, the Migration Amendment Act 1992 (Cth) (the May 1992 Amendment Act) was given assent on 6 May 1992. It introduced a scheme for mandatory detention for “designated persons” (in broad terms, people who arrived in Australia by boat and who did not have a visa or an entry permit): see s 54K. Section 54L of that Act provided that designated persons “must be kept in custody” (emphasis added). Section 54K provided that “custody” in Part 2 Div 4B (the mandatory detention scheme for “designated persons”) had the same meaning as in s 11 which was introduced by the 1989 Amendment Act.
On 7 December 1992 the Migration Reform Act 1992 (Cth) (the 1992 Reform Act) was assented to, but it did not come fully into force until 1 September 1994. On the same date, the Migration Legislation Amendment Act 1994 (Cth) (the 1994 Amendment Act) commenced. The 1994 Amendment Act amended both the Principal Act and the 1992 Reform Act, as well as renumbering the amended Principal Act.
The 1992 Reform Act introduced a new scheme of mandatory detention into the Act, which was not limited to “designated persons” and related to all “unlawful non-citizens.” That Act inserted ss 3A, 54W, 54ZD and 54ZF, which after re-numbering in 1994 became ss 4, 189, 196, and 198 of the Principal Act, being the central provisions in the current mandatory detention regime. Section 4 introduced definitions of “detain” and of “immigration detention,” in a form relevantly identical to the present form.
The 1992 Reform Act replaced the term “custody” with the term “immigration detention” in most (but not all) places where it appeared in the Principal Act. At the same time, s 11 (which contained the definition of “custody”) was repealed (see the 1992 Reform Act, s 38, Schedule Part 2). In 1994, the Act was again re-numbered so that (relevantly) the definitions section, s 4, became s 5, s 54W became s 189, and s 54ZD became s 196.
The applicant argues that when “custody” as a concept was introduced through the 1989 Amendment Act, there were other sections of the Act which provided the Minister with the power that subpara (a)(iv) of the definition of “custody” in s 11 of the Act assumed; that is, the power to nominate ‘another place’ in writing as a place of “custody”. In particular the applicant points to s 92(2) of the Act (introduced by the 1989 Amendment Act) which at the time provided that a person arrested under the provision “may, subject to this section, be kept in the custody of an officer or in such other custody as the Minister or the Secretary directs”. At the same time s 93(8) empowered the Minister to direct that “a deportee may be kept in such custody as the Minister or the Secretary directs”, pending deportation.
Section 92 was repealed by the 1994 Amendment Act, Sch 1, cl 92. Section 93(8), however, remains part of the Act, having been renumbered as s 253(8) in the present Act and amended, but remaining recognisable. It provides that “a deportee may be kept in immigration detention or such detention as the Minister, Secretary or Australian Border Force Commissioner directs”, pending deportation.
The applicant argues that three points can be drawn from that review of the legislative history:
(a)First, what is now subpara (b)(v) of the definition of “immigration detention” began life in 1989 as subpara (a)(iv) of the definition of “custody”, in what became s 11 of the Act;
(b)Second, at that time the term “custody” was picked up by the mandatory detention provisions inserted into the Act by the May 1992 Amendment Act. That is, s 54K picked up section 11 and its definition of “custody”; and
(c)Third, the 1992 Reform Act (which did come fully into force until 1 September 1994) introduced mandatory detention into the scheme, and the concept of “custody” was replaced by the concept of “immigration detention”. The definition of “immigration detention” was inserted in substantially the form it has assumed since that time and, importantly, the language of subpara (b)(v) of the definition of “immigration detention” was identical to the language of subpara (a)(iv) of the definition of “custody”. At the same time the definition of “custody” in s 11 was repealed; the reference to the definition of “custody” in s 54K was also repealed, and most references to “custody” were replaced with references to “immigration detention”.
The applicant argues that when the definition of “custody” was inserted into the Act through the 1989 Amendment Act, Parliament should be taken as having understood that there were other provisions, s 92(2) in particular, which empowered the Minister to make the kind of written direction that would engage with subpara (a)(iv) of that definition. The applicant contends that, at that time, there could have been no reason to read subpara (a)(iv) of the definition of “custody” (being the equivalent of subpara (b)(v) of the definition of “immigration detention” in the present Act) as conferring a power on the Minister to approve ‘another place’ of custody. It was instead appropriate to understand subpara (a)(iv) as intersecting with a power in ss 92(2) and 93(8) of the Act; they being substantive provisions rather than definitional.
Then with the commencement of the 1992 Reform Act (which did not fully come into operation until 1 September 1994), the concept of “custody” was broadly replaced with the concept of “immigration detention” (albeit not in s 92 which was one of the few sections in which the word “custody” was not replaced). But, unlike the previous scheme, the suite of mandatory detention provisions introduced through the 1992 Reform Act did not contain a substantive provision for unlawful non-citizens (who were not deportees) which engaged with subpara (b)(v) of the definition of “immigration detention”.
On the applicant’s argument, this is not a case where the legislature drafted a definition into an Act to which there is no corresponding power, such that the legislature should be taken to have impliedly conferred power through the definition. Instead, when the definition of “custody” was first introduced into the Act it intersected with a corresponding power (in ss 92(2) and 93(8)) and there could have been no reason at that time for reading the language of the Act as creating a power within the definition itself. Then, when the language of the definition of “custody” was reiterated in the definition of “immigration detention” introduced by the 1992 Reform Act, by legislative mistake there was no corresponding substantive power.
He contends that having regard to his review of the legislative history it is appropriate to construe subpara (b)(v) of the definition of “immigration detention” as making the mistaken assumption of a separately existing power elsewhere in the Act. In that event the Act does not provide power for the Minister to approve ‘another place’ of immigration detention, in writing; the Minister therefore had no power to delegate under s 496(1), and the variously dated written instruments approving other places of immigration detention had no effect. Therefore the applicant’s detention in the Hotels could not have been “immigration detention” within the meaning of the Act, and it was unlawful.
In the alternative the applicant argues that the Court should construe subpara (b)(v) as operating upon the historical fact of the Minister, acting in a purely personal capacity for which he needs no authority under the Act, creating a “writing” which approves ‘another place’ of immigration detention. On this argument, where the Minister creates such a document, subpara (b)(v) operates by seizing upon that document, and the place so approved will become a place of immigration detention. For example, the applicant says that that if the Minister created a document, a “writing”, which said that he or she approved, for a four-week period, the Royal Children’s Hospital as a place of immigration detention under subpara (b)(v), then the Royal Children’s Hospital would be so approved and unlawful non-citizens undergoing medical treatment there could lawfully be detained in that place.
One of the recognised exceptions is expenditure necessary or reasonably incidental to the execution and maintenance of a valid Commonwealth statute. That is the view French CJ expressed, and it accords with the views of the authors of Constitutional Law in Australia (P. Hanks, F. Gordon and G. Hill, 4th edition, 2018, LexisNexis Butterworths at [4.131]-[4.132], p 234), who state:
The effect of the plurality’s reasoning in Williams (No 1) is that the Commonwealth Executive will usually require specific statutory authority, in addition to an appropriation of money, to spend public moneys.
That general requirement for specific statutory authority is, however, subject to a number of exceptions: expenditure authorised by the Constitution (such as s 82); expenditure authorised by a statute, or made in the execution or maintenance of the statute; expenditure on a subject matter of Commonwealth prerogative power; expenditure made in the ordinary administration of the functions of government; or expenditure on a subject matter of the implied nationhood power. The Commonwealth Executive requires only an appropriation to spend money on those matters.
(Emphasis added.)
Finally, well after completion of the trial and submissions (indeed, after I had drafted these reasons) French CJ’s remarks in Williams (No 1) at [34] were approved in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10. The case concerned the 2016 Ministerial Instructions to Departmental officers, and purported decisions made by those officers in accordance with those instructions, in relation to requests for the Minister to intervene under s 351 of the Act. It is not on all fours with the present case, but the explanations by Justices Gordon and Jagot in relation to the scope of the executive power are nevertheless apposite.
Gordon J said (at [88]-[89]):
Executive power for the administration of departments and execution of laws
One of the two limbs of executive power mentioned in s 61 is the execution and maintenance of the laws of the Commonwealth. The term "laws of the Commonwealth" is a reference to statute law. The execution of laws means doing something authorised or required by those laws.
The function is characteristically performed by execution of statutory powers; however, it also extends to doing things which are necessary or incidental to the execution and maintenance of a valid law of the Commonwealth once that law has taken effect. The latter field does not require express statutory authority, nor is it necessary to find an implied power in the statute: Williams (No 1) at [34]]. In that sense, administrative action that is incidental to the execution of a law does not involve statutory power, but finds its source in - and is controlled by - the statute and s 61 of the Constitution.
(Emphasis added. Footnotes other than to Williams (No 1) omitted.)
Jagot J said (at ([269]):
…the relevant provision is s 61 of the Constitution insofar as it refers to executive power extending to the "execution and maintenance ... of the laws of the Commonwealth". This aspect of s 61 of the Constitution has been said to be “a function characteristically to be performed by execution of statutory powers”, but is not so confined: Williams (No 1) at [34]]. In providing that the executive power of the Commonwealth “extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth”, s 61, as Isaacs J said, “marks the external boundaries of the Commonwealth executive power, so far as that is conferred by the Constitution, but it leaves entirely untouched the definition of that power and its ascertainment in any given instance”. As such, this is the “essential starting point, and the extent it marks out cannot be exceeded”.
(Emphasis added. Footnotes other than to Williams (No 1) omitted.)
I do not accept the applicant’s contentions. I consider the scope of the executive power under s 61 of the Constitution extends to doing things which are necessary or reasonably incidental to the execution and maintenance of the Act.
On the assumption (contrary to his primary argument) that the scope of the executive power extends to contracting and expenditure which is necessary or reasonably incidental to the execution of the Act, the applicant then contends that the Commonwealth’s contracting and expenditure in relation to the Hotels cannot properly be said to meet that description.
The applicant argues that the Commonwealth’s contracting and expenditure cannot be said to be necessary because, to use one example, the Minister could bring into existence some “writing” that approves an existing army base as a place of immigration detention, and the Minister could also “authorise in writing” soldiers stationed at that base to be “officers” (see para (f) of the definition of “officer” in s 5 of the Act). On his argument the fact that something might be perceived to be convenient by the Commonwealth does not make it necessary.
I am not persuaded that the word “necessary”, used in the context that it was by Chief Justice French, connotes “necessity” in the ordinary meaning of that word. In Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [101] Gummow and Crennan JJ approved a passage from McCulloch v State of Maryland 17 US 316 (1819) at 413-414 where the Supreme Court of the United States said of the term “necessary”:
Does it always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. ... [The word ‘necessary’] has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports.
In Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim and Ors [2012] NSWCCA 125; 83 NSWLR 52 at [45] Basten JA said:
The word “necessary” can have shades of meaning; it is not of “a fixed character, peculiar to itself” but rather “admits of all degrees of comparison”, in the language of the United States Supreme Court in McCulloch v State of Maryland 17 US (4 Wheat) 316 at 414 (1819) cited by Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [101]. The Court in McCulloch, in the same passage, noted at 413:
“If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.”
See also Bathurst CJ at [8].
Having regard to the above, there may not be as much of a difference between “necessary for” and “reasonably incidental to” the execution and maintenance of the Act as first appears. But I need not decide whether that is so because the Commonwealth does not argue that its contracting and expenditure in relation to the Hotels was necessary to the execution of the Act. Rather, it argues that doing so was reasonably incidental to the execution of the Act.
The applicant says that the Commonwealth’s contracting and expending monies to establish and operate the Hotels as places of immigration detention cannot properly be said to be reasonably incidental to the execution of the power to detain unlawful non-citizens under s 189 of the Act, as that power does not authorise doing anything that the Commonwealth might envisage in relation to the detention of unlawful non-citizens. By way of example, he submits that it could not be reasonably incidental to the execution of the Act for the Commonwealth to enter into a contract, at huge cost, for the construction of a detention centre which is a replica of the Taj Mahal in order that some unlawful non-citizens may be kept in detention there.
He also submits that contracting and spending public monies to lease existing premises such as hotels so as to establish and maintain facilities for keeping unlawful non-citizens in “prison-like” conditions is not reasonably incidental to the execution of the power under s 189 of the Act. On his argument what might be reasonably incidental to the execution of the Act is the identification of, say, a school, or a hospital, or some area of an airport for the ad hoc detention of unlawful non-citizens for short times and/or emergency purposes.
The applicant says that just because the Commonwealth, in fact entered into contracts to establish and maintain the Hotels as immigration detention facilities, instead of establishing detention centres under s 273, or taking existing detention centres out of “mothballs”, does not mean that, objectively, doing so was reasonably incidental to the execution of the power to detain unlawful non-citizens under s 189. And that just because the Commonwealth, in fact, entered into contracts to establish and maintain the Hotels, instead of taking steps to allow more unlawful non-citizens to live in the community in accordance with residence determinations made under s 197AB, or instead of acting more speedily to consider granting bridging visas to people being held in detention, does not mean that, objectively, doing so was reasonably incidental to the execution of the power in s 189.
I do not accept those submissions.
I have no difficulty in accepting that it would not, objectively, be reasonably incidental to the execution of s 189 of the Act to construct a detention centre which is a replica of the Taj Mahal in order to detain unlawful non-citizens. But that is not what happened here. And it does not follow that, objectively, it was not reasonably incidental to the execution of the Act for the Commonwealth to expend public monies on leasing, modifying and staffing an existing hotel so that it could be used as a detention facility. The applicant did not explain, and I do not understand, why that could not be “reasonably incidental” to implementing the scheme of mandatory detention under the Act.
Nor, contrary to the applicant’s submissions, is there anything in the words of subpara (b)(v) which indicate that only expenditure on identifying facilities which could be used for the ad hoc detention of unlawful non-citizens for short term and/or emergency purposes such as a school, hospital or some area within an airport could be reasonably incidental to the execution of s 189. The words of subpara (b)(v):
(a)do not contain any restriction or limitation as to the types of places that the Minister may approve as ‘another place’ of immigration detention, and do not limit approval only to such places; and
(b)do not contain any restriction or limitation which has the effect that only expenditure on identifying such facilities could be reasonably incidental to the execution of the Act. That would restrict the premises approved under subpara (b)(v) only to those which can be approved (and utilised) as a place of detention without the Commonwealth having to incur expenditure in relation to the premises.
The language of subpara (b)(v) does not support the limitations contended for by the applicant.
I accept the applicant’s submission that, in deciding to establish and maintain the Hotels in an attempt to address the capacity constraints in its network of IDFs, instead of taking other steps to reduce the capacity demands, the Commonwealth made choices. But I do not accept that in making the choices that it did, the Commonwealth’s expenditure on establishing and maintaining the Hotels as places of immigration detention was not reasonably incidental to the execution of s 189 of the Act. There is little or nothing in the evidence to show that instead of setting up the Hotels as places of immigration detention:
(a)the Commonwealth should have established another detention centre or reopened a detention centre that had previously been “mothballed”;
(b)the Minister should have opted to make more residence determinations under s 197AB; or
(c)the Department should have more speedily processed visa applications by persons held in detention and granted more bridging visas.
For example, the evidence does not establish the reasonable availability of another mothballed detention centres, nor how many applications for residence determinations or bridging visas were made in the relevant period or how many of those were rejected that should instead have been accepted.
I consider the Commonwealth’s contracting and expenditure was reasonably incidental to the execution of the Act; it was in furtherance of the power under s 198 of the Act.
7.2.2Whether s 32B of the FFSP Act and/or the FFSP regulations provide authority for the Commonwealth to lawfully contract and expend public monies in relation to the Hotels
Having regard to my conclusion as to the extent of the executive power it is strictly unnecessary to decide whether in the relevant period s 32B of the FFSP Act and/or the FFSP regulations provided authority for the Commonwealth to lawfully contract and expend public monies in relation to the Hotels. But as the question was fully argued, and in the event that I am held to be wrong in that view, it is appropriate to deal with the question.
The Commonwealth contends that it had authority for expenditure pursuant to the executive power and it denies that specific statutory authority was required for its expenditure to establish and operate the Hotels as places of immigration detention. However, it contends that in any event it had (and has) such authority under s 32B of the FFSP Act and/or the FFSP regulations.
At all material times s 32B, in Pt 2 of the FFSP Act, relevantly provided that the Commonwealth had power to make, vary or administer an arrangement (defined to include a contract, agreement or deed); if:
(a)the Commonwealth would not otherwise have power to make, vary or administer the arrangement; and
(b)the arrangement is for the purposes of a program specified in the FFSP Regulations.
At all material times, s 41, also in Pt 2 of the FFSP Act, provided:
This Part does not, by implication, limit the executive power of the Commonwealth.
Thus, the Act contemplates two independent sources of power for Commonwealth contracting and expenditure. First, the executive power under s 61 of the Constitution. Second, if the Commonwealth would not otherwise have authority to contract and expend money, then the Commonwealth is conferred with power under s 32B in relation to those arrangements which are specified in the regulations.
At all material times pursuant to reg 16(1)(d), Pt 4 of Sch 1AA of the FFSP Regulations specified the following relevant programs for the purposes of s 32B(1)(b) of the FFSP Act under items 417.017, 417.018 and 417.019 of Sch 1AAA, which provided as follows:
____________________________________________________________________
417.017Onshore Detention Network - Community and Detention Services
Objective: To manage all unlawful citizens placed into immigration detention who did not arrive in Australia at an excised offshore place, except for illegal foreign fishers.
____________________________________________________________________
417.018Offshore Asylum Seeker Management - Community and Detention Services
Objective: To provide support, health and detention services to people in immigration detention, in both community and detention environments, and to offshore entry persons seeking asylum.
____________________________________________________________________
417.019Foreign Fishers - Community and Detention Services
Objective: Two advise on, develop and provide a range of support, health and detention services in community and detention environments for illegal foreign fishers apprehended and detained in Australian territorial waters.
____________________________________________________________________
The Commonwealth principally relies upon item 417.018, and lightly upon Item 417.017. It does not rely on item 417.019, but it contends that, taken together, the three items are intended to comprehensively cover all people in immigration detention in Australia, being:
(a)all unlawful non-citizens placed into immigration detention who did not arrive in Australia at an excised offshore place, except for illegal foreign fishers (item 417.017);
(b)detention services to people in immigration detention in both community and detention environments, and to offshore entry person seeking asylum (item 417.018); and
(c)support, health and detention services for illegal foreign fishers (item 418.019).
The Commonwealth submits that the legislative history indicates that these items operate by reference to the place of initial detention of a person. On its argument s 32B and the relevant FFSP Regulations came into effect on 28 June 2012. At that time, the Act designated persons who arrived at an excised offshore place as “offshore entry persons”, as defined in s 5 of the Act. Then, the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) (the UMA Amendment Act) removed the definition and reference to “offshore entry person” from the Act and introduced the definition of “unauthorised maritime arrival” by inserting s 5AA into the Act. The concept of an unauthorised maritime arrival (UMA) was intended to maintain the same function as that of an “offshore entry person” is borne out by the amendments made by the UMA Amendment Act by which the words “offshore entry person” were to be omitted and replaced with the words “unauthorised maritime arrival” in a number of sections of the Act including, for example, ss 46A, 198, 198AA and 336F: see BXT17 v Minister for Home Affairs [2021] FCAFC 9; 283 FCR 248 at [74] (Markovic, O’Callaghan and Anastassiou JJ). It argues that item 417.018 therefore dovetails with the exclusion in item 417.017 of persons who arrived at excised offshore places, and was intended to capture persons such as the applicant, who arrived at Christmas Island.
The Commonwealth contends that a person’s status as an “offshore entry person” or as a UMA remains with the person, so that “transitory persons” returning to Australia for medical purposes under s 198B of the Act remain “offshore entry persons” (or UMAs). I accept that in relation to UMAs: see BXT17 at [77] and [106], and the same logic applies in relation to “offshore entry persons” such as the applicant.
In light of that legislative history the Commonwealth submits that item 417.018 “Offshore Asylum Seeker Management” should be read as encompassing “offshore entry persons” (or UMAs) seeking asylum. It argues that expenditure by the Commonwealth for the purpose of the detention in Australia of persons in the applicant’s position is therefore supported by item 417.018, because these persons are “offshore entry persons”. It contends that there is no basis in the text of item 417.018 to exclude “transitory persons” because the Act at that time provided (under s 198B) for bringing transitory persons to Australia for a temporary purpose, and as offshore entry persons such persons would require to be detained. It also submits that the applicant’s construction of item 417.018 is overly pedantic. It relies on Wilkie v The Commonwealth [2017] HCA 40; 263 CLR 487 at [92] where the High Court said that the constitutional requirement for Parliament to determine the purpose of an appropriation cannot ignore practical necessity.
I do not accept the applicant’s submissions regarding item 417.018.
First, as is plain from its language, item 417.018 is concerned with expenditure for the provision “to people in immigration detention”, and “to offshore entry persons seeking asylum” of certain services (emphasis added.) The objective of the Commonwealth’s commitment under the item is “to provide support, health and detention services.” It does not authorise any expenditure for the establishment of an immigration detention facility. And it cannot reasonably be said that to create a place in which a person is detained of their liberty is to provide that person with a service. Properly construed, the item covers expenditure for the provision of services to persons held in immigration detention, not the creation of an immigration detention facility itself, such as the Hotels.
Second, when the applicant entered Australia at Christmas Island, an excised offshore place, in July 2013 he acquired the status of an “offshore entry person” (as defined). At that time s 198A(1) of the Act provided that offshore entry persons may be taken to a country in respect of which the Minister had made a declaration under s 198A(3). PNG was such a country and the applicant was taken to PNG pursuant to s 198A(1). Section 198A(4) provided that while an offshore entry person was being dealt with under that section a person is taken not to be in “immigration detention” (as defined).
Upon the applicant being taken to PNG under s 198A he acquired the status of a “transitory person”. Subpara (a) of the definition in s 5(1) of the Act provided that the meaning of “transitory person” included “an offshore entry person who was taken to another country under section 198A”. Offshore entry persons and transitory persons were not permitted to make a valid application for a visa under the Act. At that time it could not reasonably be said that any Commonwealth expenditure in relation to persons in the applicant’s position was covered by item 417.018; he was not (and could not be) “an offshore entry person seeking asylum” in Australia.
Under s 198B of the Act at that time transitory persons could be brought to Australia for a temporary purpose. But upon their arrival in Australia, pursuant to s 46B(1) of the Act, they were prevented from making a valid application for a visa, unless the Minister concluded pursuant to s 46B(2) that it was in the public interest to lift that bar and allow the person to do so. Instead, s 198C provided a specific and limited entitlement for a transitory person, who had continuously been in Australia for more than six months, to have the Refugee Review Tribunal carry out “an assessment of whether the person is covered by the definition of “refugee” in Article 1A of the Refugees Convention as amended by the Refugees Protocol. In relation to transitory persons brought to Australia at that time it could not reasonably be said that any Commonwealth expenditure in relation to such a person was covered by item 417.018; such a person was not (and could not be) someone “seeking asylum” in Australia.
The Commonwealth’s argument boils down to the proposition that, by reference to the legislative history the intention of the drafter of item 417.018 was to cover Commonwealth “expenditure to effect the detention of transitory person seeking asylum”. I do not accept that. First, that could not be so when, as at 28 June 2012, the Act made it clear that a “transitory person” could not be someone “seeking asylum” in Australia. Second, if the drafter wished the item to so provide then it would have been straightforward to use that language.
Third, the position in November 2019 when the applicant first entered Australia was similar. At that time s 198AD imposed a duty upon an officer to take every “unauthorised maritime arrival” to a regional processing country (unless there was a determination under s 198AE in respect of that person). The applicant had, of course, already been taken to PNG and he had been brought to Australia for a temporary purpose under 198B.
At that point s 198C had been repealed, and the description “offshore entry person” had been replaced with “unauthorised maritime arrival”. The applicant was both an “unauthorised maritime arrival” and a “transitory person” (as defined). The definition of “transitory person” provided that its meaning included “a person who was taken to another country under repealed section 198A”.
Pursuant to s 198AH, when a transitory person no longer needed to be in Australia for the temporary purpose for which he was brought there, the duty under s 198AD to take the person back to a regional processing country was re-engaged. That was so even where the transitory person had been assessed to be covered by the definition of “refugee” in Article 1A of the Refugees Convention as amended by the Refugees Protocol.
At that time, s 46A continued to prevent unauthorised maritime arrivals in Australia from making a valid application for a visa, and s 46B(1) continued to prevent transitory persons from making a valid application for a visa, unless the Minister concluded pursuant to s 46B(2) that it was in the public interest to lift that bar and allow the person to do so. Again, at that time, it could not reasonably be said that any Commonwealth expenditure in relation to persons in the applicant’s position was covered by item 417.018; again, he was not (and could not be) someone “seeking asylum” in Australia.
As a fall-back position, the Commonwealth faintly argues that item 417.017 covers expenditure in relation to persons in the applicant’s position. It will be recalled that this item identifies expenditure “to manage all unlawful citizens placed into immigration detention who did not arrive in Australia at an excised offshore place, except for illegal foreign fishers.”
The Commonwealth does not contend that the applicant was an “illegal foreign fisher”. Rather, it argues that if items 417.017 to 417.019 are construed as applying to the place of ongoing detention (rather than the place of initial detention), expenditure for the purposes of detention of persons in the applicant’s position is supported by item 417.017. It contends that, although that item excludes persons who arrived at an excised offshore place, the relevant period of immigration detention in this case occurred after the applicant was brought to Australia under s 198B of the Act. It says that the relevant purpose of both of the Hotels was to house transitory persons brought to Australia for a temporary purpose, and on that understanding, expenditure for such detention would be supported by this item of the regulations.
I do not accept these submissions. Item 417.017 item expressly provides that it does not apply to persons who arrived in Australia at an excised offshore place. The applicant is such a person. As held in BXT17 at [77] and [106] his status under the Act as an “offshore entry person” (which later became an “unauthorised maritime arrival”) and as a “transitory person” are based on his arrival in Australia at an excised offshore place, and that status continues. Had the drafter wished the item to cover expenditure in relation to transitory persons who are transitory persons brought to Australia for a temporary purpose then it would have been straightforward to use that language.
Neither item 417.017 or item 417.018 cover expenditure to detain persons in the applicant’s position. Thus, s 32B of the FFSP Act does not provide statutory authority for the Commonwealth contracting and expenditure to establish and maintain the Hotels as places of immigration detention.
7.3Whether the FSFP Act and Regulations is constitutionally valid
The applicant also submits that s 32B of the FFSP Act is wholly invalid because it constitutes an impermissible delegation of legislative power. It is unnecessary to decide that issue in circumstances where the applicant succeeded on the narrower basis that the relevant FFSP Regulations do not identify a program of expenditure applicable to persons in the applicant’s position.
8. CONFIDENTIALITY
The Commonwealth sought a broad suppression or non-publication order under ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) in relation to parts of the Commonwealth and Serco documents produced in evidence either by annexure to Mr Watts’ affidavit or as part of the Court Book. The application was made on the basis that the documents were commercial in confidence, or that they identified details of places designated as APODs, and such an order was necessary to prevent prejudice to the proper administration of justice.
The onus on a party seeking to persuade the Court to make an order to restrict publication of evidence is “a very heavy one”: Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438; [1999] FCA 198 at [16] (Madgwick J). In Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30] the High Court held that the word “necessary” in s 37AG(1)(a) denotes a reasonably strict test; necessary is a “strong word”; and (at [31]) it distinguished the test of “necessity” from less demanding standards such as whether a suppression or non-publication order would be “convenient, reasonable or sensible”. To establish that a suppression or non-publication order is necessary to prevent prejudice to the administration of justice requires that the Commonwealth must show more than that it is desirable that an order be made: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8] (Edelman J). Embarrassment or reputational damage is not enough to justify a suppression order, as such results are the price of open justice: Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241 at [28] (Jacobson J).
I considered the application for suppression and non-publication orders to be too broad, but there was scope for more appropriately calibrated redactions, for example, so that private houses which had been designated as APODs were not identified and where a detailed breakdown of Serco’s expenditure could confer some commercial advantage on its trade competitors. I indicated that view to the Commonwealth by reference to some specific examples and directed the Commonwealth to file a revised Court Book with more limited redactions. The Commonwealth then did so, but its application for confidentiality continued to go too far, and I directed the Commonwealth to further limit the redactions.
Upon the Commonwealth having again attended to that task I reached the view that the proposed redactions were appropriately calibrated to protect the matters about which the Commonwealth was concerned, and also to take account of the requirements of s 37AG and the interests of open justice. On 12 August 2022 I directed the Commonwealth to file and serve a redacted version of the affidavit of Mr Watts and the Court Book, which it attended to.
9. CONCLUSION
For the reasons I have explained, it is appropriate to dismiss the application. I am not aware of any reason why costs should not follow the event, and I will make such an order unless, within 14 days, either party proposes a different costs order and files written submissions (not exceeding three pages) in that regard. In that event, the opposing party shall file written submissions (not exceeding three pages) within seven days thereafter. Any application in relation to costs will then be dealt with on the papers.
I certify that the preceding three hundred and six (306) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 6 July 2023
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