Behrooz & Ors v Secretary, DIMIA

[2003] HCATrans 458

[2003] HCATrans 458

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A255 of 2003

B e t w e e n -

MAHRAN BEHROOZ

First Appellant

MAHMOOD GHOLANI MOGGADDAM

Second Appellant

DAVOOD AMIRI

Third Appellant

and

THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS

First Respondent

THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD

Third Respondent

AUSTRALIAN CORRECTIONAL SERVICES PTY LTD

Fourth Respondent

Office of the Registry
  Adelaide  No A253 of 2003

B e t w e e n -

AHMED ALI AL-KATEB

Appellant

and

PHILIPPA GODWIN, DEPUTY SECRETARY DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

JULIE HELEN KEENAN, ACTING DIRECTOR OF THE UNAUTHORISED ARRIVALS SECTION IN THE UNAUTHORISED ARRIVALS AND DETENTION DIVISION OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

Office of the Registry
  Adelaide  No A254 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Appellant

and

ABBAS MOHAMMAD HASAN AL KHAFAJI

Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 NOVEMBER 2003, AT 10.04 AM

(Continued from 12/11/03)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Tilmouth.

MR TILMOUTH:   May it please the Court.  Your Honours, can I just deal with three matters that arose yesterday that one way or another we promised to make further inquiries about.  Your Honour Justice Gummow raised the question of the amendment to section 91R.  That came in, your Honours, in Act No 131 of 2001, effective from 1 October 2001, therefore, it would appear not to affect Mr Al Khafaji, my client, or SHDB, but Al Masri would appear to be a different matter since his Tribunal decision was in December of that year.

The second matter is that my learned friend, Mr Bennett, at one stage in his submissions said something about an applicant making a further application for a visa, I think in the context if circumstances changed. I am not sure if much store was placed in it, but could I just mention that, in our submission, if it is relevant at all, there is no right to make successive applications once the application has been disposed of or finally determined in the way defined by the Act which I took your Honours to yesterday.

The relevant sections, your Honours, without reading them are sections 48A and 48B.  The rider to section 48A(1) provides that the applicant:

may not make a further application for a protection visa –

and 48B(2), read with subsection (1), provides that there can be a further application but it is personally considered by the Minister under subsection (2); it is not one dealt with in the Tribunal process. So we do not accept, if that was being forward, that as a matter of course there can be another or successive applications for visas. In our submission, the general scheme of the Act contemplates one.

CALLINAN J:   Section 48B(6) in particular makes it extremely difficult for any further application to be made.

MR TILMOUTH:   That is right.  Subject to very strict limits in administrative law, since that discretion under 48B is a personal one, clearly it ousts any question of the Tribunal or other courts being involved except in very limited ‑ ‑ ‑

CALLINAN J:   The Minister does not even have to consider it.

MR TILMOUTH: That is right. Our point is, your Honours, in effect and for practical purposes, there is one application and one only. The third and final matter is that your Honour Justice Kirby raised the question in the context of section 196, whether in the stage of detention for processing an application, including of course any appeals which have necessarily extended the period of detention, whether or not – how that related to the “as soon as reasonably practicable” issue.

Your Honours, so far as the authorities go, they suggest, as common sense would suggest, in our submission, that if the delay in the processing of a visa or the progress of a matter through the courts of law in remedies available, if that delay lies at the door of the applicant himself or herself, then that is a central matter that can be taken into account as to whether or not what is being done is done reasonably practicably or as soon as reasonably practicably.  The authority for that is the Privy Council decision in Lam.  The citation can be found at footnote 26 of our submissions.  The reference is at page 114 between lines F and H.

KIRBY J:   Where is the “as soon as practicable” in the text?  It is in the text but in judicial exposition, is it?

MR TILMOUTH:   No, the text was rather different in Lamb, your Honour.  It is set out in the comparative schedules that we supplied to the Court yesterday.  The word is ‑ ‑ ‑

KIRBY J:   This is part of the problem with prolonged detention.

MR TILMOUTH:   Yes.

KIRBY J:   You cannot get away from it.  It is often prolonged because of the many opportunities for review and so‑called appeal to the Federal Court and applications to this Court that can be availed of and are availed of quite lawfully and properly, but it does tend to stretch the process out.

MR TILMOUTH:   That is right, but if that is done, as it were, at the instance of the applicant, then that is clearly a matter which would bear upon whether or not the detention was for a period that was reasonably necessary.

GLEESON CJ:   How would you relate that to section 198 in a case where difficulty in removing an applicant results at least in part from the fact that he has destroyed his papers?

MR TILMOUTH:   Well, presumably that would be in effect, if so found, regarded by the Court as some kind of wilful misconduct which would not, as it were, count against those keeping him in detention because it is deliberate actions by the applicant himself in that circumstance which caused the delay.  In our submission, that is comfortably taken care of under the rubric of “as soon as reasonably practicable”.  If a person is deliberately delaying the process in effect to extend the time they remain in Australia, albeit in detention, then plainly, in our submission, that would be highly relevant and perhaps decisive when a court came to consider whether the Al Masri exception, if I can put it that way, would apply.

KIRBY J:   Have your researchers found any other country that has as many opportunities for challenge to refugee decisions as we have in Australia?  In part, they arise out of our constitutional arrangements and they just cannot be avoided, but unless the United States is similar, or Canada, it does seem that we have a uniquely complex and multi‑pronged process of review. 

MR TILMOUTH:   Your Honour, I cannot speak for the United States, except when I come to the Supreme Court decision in Zadvydas.  What I can say, your Honour, is that in Canada and New Zealand they do not, for practical purposes, detain, but there are mechanisms for short term detention under the supervision of the courts. 

GLEESON CJ:   I think you are being asked about something different.  I think you are being asked about the multi‑level process of review of decision‑making that is provided in Australia.  Typically or commonly, a case in Australia will be dealt with by a delegate of the Minister, then that will be reviewed by the Refugee Review Tribunal, then that decision of the Review Tribunal may go to a single judge of the Federal Court, then it may go to the Full Court of the Federal Court, then it may come here. 

KIRBY J:   And then it may come here again on an application under the Constitution. I am not criticising this – this is just part of the current scheme – but it does tend to stretch out detention.

MR TILMOUTH:   Yes.

GLEESON CJ:   I think the question you are asked is, is there any other country in the world that gives an applicant as many opportunities for review of decision‑making as Australia? 

MR TILMOUTH:   I am sorry, I did misunderstand the question.  The short answer is “No”, on our researches – nothing as elaborate, in effect, as our system provides. 

KIRBY J:   It is relevant to the duration of detention, is it not, our system?

MR TILMOUTH:   It could be, if the Court pleases. 

KIRBY J:   I am not saying that we have had or should have or could, even with our constitutional arrangements, have a different system, but the fact is that it does stretch out the period.  If you make an initial decision to detain, then our system spins it out. 

MR TILMOUTH:   Yes, necessarily.  As far as we could ascertain, there is nothing, as I said, as elaborate as ‑ ‑ ‑

GUMMOW J:   Now, this system we have been talking about comes about by reason of the 1992 legislation. 

MR TILMOUTH:   It does, and, of course, its various amendments since. 

GUMMOW J:   Yes, but the watershed was 1992. 

MR TILMOUTH:   Yes. 

GUMMOW J:   Before then – I am looking at Print No 3, which is 1989 ‑ the Act still contained section 77, which is the descendant of the old section 7 referred to in that case in 87 CLR, and that made it an offence for a person to be an illegal entrant, to put it shortly, punishable on conviction by a fine or imprisonment not exceeding two years. The two years kept it as a summary offence, not requiring indictment by reason of the Crimes Act.  Is there any material explaining this shift from the detention under the criminal law by serving a sentence to non‑curial detention?  How did that come about? 

MR TILMOUTH:   I cannot answer that question offhand ‑ ‑ ‑

GUMMOW J:   It is fairly important. 

MR TILMOUTH:   Yes. 

HAYNE J:   It is a question that has to be answered in the light of the report of the Committee to Advise on Australia’s Immigration Policies, a report made in 1988 which saw recommendations including a model Bill for the complete reform of the migration legislation, where at page 114 of volume 1 of that report reference is made to the enforcement side of immigration, compliance and deportation, the thrust of the recommendation being that it should be taken away from the Department and put into the criminal justice system. It was that which was given effect to, I think, in the substantial amendments of the Act that were introduced in 1989 and are mentioned by Minister Hand in his second reading speech in November 1992 when introducing the legislation which, for the first time, brought about administrative detention.

GUMMOW J:   Yes, the old section 77, as it had become, was repealed by section 17 of the Act, 184 of 1992. Now, there is a big change there - 90 years of legislation. There was another direction taken. I am not sure at the moment what the significance of all of it is. It seems to have some significance. We might hear some more on this from the Solicitor, I suppose.

MR TILMOUTH:   Yes.  The significance in general terms, in our submission, would be that, despite retaining the word “unlawful” but for a different purpose, it in effect decriminalised immigration.  We would submit as well what was contemplated in terms of detention was a relatively short‑term period for any of the three purposes in 196.

HAYNE J:   Why do you say that?  Why should it be relatively short-term?  Once you take the term which was taken in Chu Kheng Lim, which says that there is no Chapter III problem in at least a version, the version then under consideration, of a scheme for administrative detention, why do you inject the notion of short‑term?

MR TILMOUTH:   Well, because, in our submission - perhaps if I could go to Lim because this, in our submission, is critical.  What saved the legislation in Lim was the time question.  The legislation was held valid as against Chapter III only because of the inbuilt safeguards in relation to time.  Your Honours, I was intending to come back to section 189 and the point that your Honour Justice McHugh raised yesterday.  Can I postpone that for a moment and go to Chu Kheng Lim (1992) 176 CLR 1 and answer this question because, in our submission, it is decisive. We submit in general terms that the Solicitor‑General has, by using in particular the judgment of Justice Gaudron, misunderstood what we submit is the critical point in Lim, and that is this question of the legislation being held valid under the aliens power only because of the inbuilt safeguards as to time.

Your Honours, can I firstly take you if I may for this purpose to the judgment of Chief Justice Mason.  At page 10, line 3, his Honour refers to the principal judgment of Justices Brennan, Deane and Dawson and agrees with their Honours that the legislative power conferred by the aliens power:

of the Constitution extends to conferring upon the Executive authority to detain an alien in custody for the purposes of expulsion or deportation . . . I also agree that the authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit.

GUMMOW J:   The trouble with the Chief Justice’s explanation, with respect, is that it when it says “for the purposes of expulsion” it seems to assume, because no one was suggesting the contrary, that it is a purpose readily attainable.

MR TILMOUTH:   Exactly.  This is an important part of Lim as well, although it is slightly different than our major point, that the whole ‑ ‑ ‑

KIRBY J:   The problem is that we could make it very easy to expel if, subject to section 75(v) of the Constitution, we just abolished all rights of review.

MR TILMOUTH:   That may be so.

KIRBY J:   And just said “Out”.

GUMMOW J:   No, that still would not work and that is not the point.  The point is it assumes a willingness on the part of other nations to receive, which we now know is often not the fact.

MR TILMOUTH:   Exactly.

GUMMOW J:   The question then is:  how does that feed into this complex of constitutional reasoning which is laid out at 10, which reasoning appears to proceed upon an inaccurate understanding, as we now see, of the relevant facts in international law.

MR TILMOUTH:   I will come to the passage but what the majority said and Chief Justice Mason agreed with, was that the 273‑days cap of itself did not go far enough.

CALLINAN J:   Mr Tilmouth, where is the evidence about the difficulties of getting other countries to accept people?  How do we have any grasp of exactly what the situation is in terms of statistics, in terms of attempts and failures?  It may be the case here that there were difficulties, but for my own part I would need to have evidence in relation to these matters, not just general statements from the Bar table.

MR TILMOUTH:   With respect, your Honour, in each of the three cases, including Al Masri ‑ ‑ ‑

GUMMOW J:   I think the Solicitor concedes it, that is his argument.

MR TILMOUTH:   Yes, exactly.  A lot of it in any event was confidential because it involved governmental communications.

CALLINAN J:   Could you take me to the concession that the Solicitor‑General is supposed to have made.

MR TILMOUTH:   It is inherent in the written submissions.

GUMMOW J:   He says that is why we need the time.

MR TILMOUTH:   Yes, exactly.

GUMMOW J:   Because the situation is fluid.

CALLINAN J:   But that gives us no numerical grasp of it; we have no idea of the extent of the problem.

MR TILMOUTH:   Can I put it another way, your Honours, to try and assist this.  It was put to me yesterday that in effect the proof of the pudding was that Mr Al Masri was released shortly after his application.  As best as we know, your Honours, Mr Al Masri is the only one standing in that category.  We stand to be corrected, of course ‑ ‑ ‑

GLEESON CJ:   Well, there are sources of hard information in relation to this that appear in some of the reported decisions.

MR TILMOUTH:   Yes.

GLEESON CJ:   If you look at the decision of Justice French in one of the cases that was referred to by way of disagreement by the Full Court of the Federal Court in Al Masri, you will find that Justice French sets out a table giving some statistics in relation to people who were in the same category as the particular individual with whom he was dealing in that case.  They were obviously based – indeed, as I recollect his judgment, there was evidence before Justice French from the officer of the Department who was in charge of trying to get these people removed as to what was actually going on in Australia’s dealings with other countries.  So there is hard information about this, typically found in decisions of judges at first instance in the Federal Court.

MR TILMOUTH:   Yes.

KIRBY J:   I think Justice Callinan’s point though is that they may not be a full sample.  For example, if we get cases in this Court from Sri Lanka, there would not normally be a problem in sending people back, even though people whose nationality is Sri Lankan may not particularly want to go in particular cases.  Then you get places like Liberia where there is just no real government and it is virtually impossible.  Then you get stateless people, like Palestinian people, where they cannot get into their country of nationality.  So it is a variety of situations, but I would have thought in the typical case the country of nationality is there and people can be sent back but they do not want to go.

MR TILMOUTH:   As I understand it, your Honours – and that includes these cases before the Court – there is evidence presented by the Department about the individual difficulties and sometimes some broader governmental difficulties.  A great deal depends on the situation in the original country, particularly in the Middle East, of course, and the Afghanistan area, but, as I said, the finding in each of these cases was that on that kind of evidence removal was not reasonably practicable within the foreseeable future.

GLEESON CJ:   It was part of the information recorded by Justice French that prompted my earlier question to you about the significance of the fact that some people might have destroyed their papers.  There was evidence in that case that an Iraqi national would have been accepted by Syria except for the fact that Syria would only accept Iraqis who had passports.

MR TILMOUTH:   Yes.  That is in Justice French’s judgment.  The table is at paragraph 20, but in this case ‑ ‑ ‑

GUMMOW J:   It is WAIS [2002] FCA 1625. Is that the case?

MR TILMOUTH:   That is it, that is the one.  But in the cases at Bar, your Honours, I do not think there is any question of any conduct on the part of any of the applicants in any material respect.

HAYNE J:   But the question of validity, which seems to be the question with which we are grappling, seems to me to be unlikely to be capable of resolution according to some statistical analysis of how often the problem emerges.  The legislation appears to proceed from the unstated premise, or the assumption, that removal will be possible in every case and that the only question, the only variable, is how long it may take to do it.  Does validity turn on length of time?  Does it turn on whether the assumption that it will always be possible is good or bad?  What is the constitutional fact which is relevant either to validity or to proper construction?

MR TILMOUTH:   To answer your Honour, and defer to the question from your Honour Justice Gummow, the short answer is time.  In our submission, that directly flows from the result of the decision in Lim.

HAYNE J:   Well, undoubtedly Lim was concerned with legislation where there was a 273‑day limit.

MR TILMOUTH:   Yes.

HAYNE J:   Leave aside for the moment what you say Lim stands for.  What is it about time that is constitutionally significant?  Before you answer it, let me expose the knife a little.

MR TILMOUTH:   A little more, with respect.

HAYNE J:   Just a little, Mr Tilmouth, not the whole knife yet.  The blade comes later.  Ordinarily, the bare fact of deprivation of liberty and the bare fact of detention is seen as punitive.  All the prisoner wants to know when you go down to the cells afterwards is how long, but it is the fact of deprivation that is the punishment ordinarily.

MR TILMOUTH:   With respect as to the latter, we agree.  In fact, we go one step further.  Detention of itself is prima facie unlawful unless justified.  That is what the Court of Appeal in England said in the recent case of Abbasi relating to the Guantanamo Bay applicant.

HAYNE J:   Maybe, but Lim takes that turn, does it not?  Chu Kheng Lim takes the turn that there can be detention for this purpose.

MR TILMOUTH:   Yes, but limited in time.  Part of the ratio, in our submission, is limited in time.

GLEESON CJ:   What does it mean to say that detention is detention for the purpose of removal in a situation where the capacity to remove is not solely within the power of the Australian authorities or of the detainee?  In that context, what does it mean to say, “You may only detain him for the purpose of removal”?

MR TILMOUTH:   It means, as I put it yesterday, your Honour, if that state of affairs is reached, the purpose is exhausted and, therefore, the power to detain no longer exists.

CALLINAN J:   Mr Tilmouth, why could not the Executive under appropriate legislation and under the aliens power detain somebody so that that person does not go into the community?  You may not agree with it – you may totally disagree with it – but to keep that person out of the community in order that, in the view of the Parliament, that person will not melt into the community and be irretrievable from it and will get social service benefits and other benefits.  Why is that not a legitimate exercise of the aliens power permitting detention?

MR TILMOUTH:   It depends whether those measures are reasonably necessary for the purposes of the aliens power.  Now, the latter ‑ ‑ ‑

McHUGH J:   Why?  It is a law with respect to aliens.

MR TILMOUTH:   But it is a law which has constitutional limitations.

McHUGH J:   Yes, by the description “aliens”.  In Lim I specifically said that such a law would still be a law with respect to aliens, even though it might be invalid because it infringed Chapter III.

MR TILMOUTH:   Yes.  Your Honour said if it went beyond what was necessary ‑ ‑ ‑

McHUGH J:   Take a wartime case.  Why cannot the government, independently of the defence power, lock up enemy aliens for the duration of the war under the aliens power?

MR TILMOUTH:   Well, of course they did, but primarily perhaps under the defence power.  The defence power has another complication because of the necessities of wartime.

KIRBY J:   The aliens power is relatively uncomplicated. 

MR TILMOUTH:   Yes, but it is hedged by constitutional limitations. 

McHUGH J:   Chapter III is one of the most significant impingements on the power to make laws with respect to aliens, because that power is subject to the Constitution. But the power itself is about as wide as it is possible to get under the Constitution.

KIRBY J:   You do not have to go so far as to grapple with everything that could possibly have been done under the aliens power. You just have to grapple with what has in fact been done, in the form of the Act.

MR TILMOUTH:   Yes.  Your Honours, can I answer it this way and then go to Lim, if I may.  In our submission, what saved the legislation, except for 54R in Lim, was time considerations.  The majority specifically said that the 273‑day or nine‑month cap did not go far enough.  What saved the legislation was a point in time lesser than the 273 days, namely, the ability to opt out.  That, in our submission, is the critical point in Lim which marks out that the point of constitutional validity is one that is sketched by limitations of time. 

McHUGH J:   But why?  Your answer may be right, but it certainly does not seem to me at the moment to have anything to do with limitations on the aliens power.  For the moment, leaving aside Chapter III, I cannot see anything to stop the Commonwealth, under the aliens power, from enacting a law that says, “Any alien shall be imprisoned for the rest of his or her life”.  That may be horrific but, as a matter of pure constitutional power, I do not see what is to stop the Commonwealth doing it under the aliens power. 

KIRBY J:   If it is horrific, I do not know that I would interpret “alien” horrifically. It is not the nature of our Constitution.

MR TILMOUTH:   Can I answer your Honour Justice McHugh, in my submission, to rule the way that your Honour supposed would require overruling Lim.  Can I take your Honours ‑ ‑ ‑

McHUGH J:   No, it does not require overruling Lim at all.  In Lim it was held that the legislation was invalid.  It had a 273‑day period in it.  The power to detain is an incident of the power. 

CALLINAN J:   Look at what the joint judgment said at pages 25 and 26 in Lim, at the foot of the page.  It is really saying exactly what Justice McHugh put to you. 

MR TILMOUTH:   Yes, so far as that goes, we do not quarrel with that, if the Court pleases.  But can I take your Honours to page 33?  In our submission, page 33 is where the essence of the Lim decision occurs.  May I read from line 3 of that page, your Honours: 

In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. 

This is the bare characterisation point.

On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien.  In that event, they will be of a punitive nature and contravene Ch. III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates. 

GLEESON CJ:   Where in Lim did anybody advert to the factual possibility that removal may be thwarted by an unwillingness of some other nation to receive the proposed deportee?

MR TILMOUTH:   Nowhere, your Honour, and as Justice Gummow put to me earlier, it was assumed in Lim clearly that the removal was capable of being effected.

GUMMOW J:   That does not tell us what the situation is when it cannot be effected.

MR TILMOUTH:   No, not at all.  Your Honours, can I then go on.  Their Honours, in the passage I have just read and the passages leading up, have held the law to be valid with respect to aliens.  Then they consider the Chapter III implications and they state the principle in the passage I have just read, but then they apply the principle to the facts.  What they did at the balance of page 33, in our submission, is absolutely central to the ruling in Lim.  I will not read that whole passage but what their Honours considered was, first of all, the 273‑days cap that section 54O then provided.  That was the first consideration which in their Honours’ view was relevant on whether the provisions infringed Chapter III.

The second matter at about point 7 on the page was whether or not there had been in effect any inaction by the person seeking to come into Australia.  That is contained in the words “without making an entry application”.  And the third matter, which is about points 7 to 8, was “the finalization of any appeals against, or reviews of, that refusal”.  Those are the three factors, in my submission, which they identified.  At about point 8 their Honours continued:

Those limitations upon the executive powers of detention in custody conferred by ss 54L and 54N go a long way towards ensuring that detention under those powers is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or to enable an entry application to be made and considered.

And I emphasise “go a long way”, not conclusive.

Nonetheless, in circumstances where the facts of the present case demonstrate that Div 4B could authorize detention in custody for a further 273 days of persons who had already been unlawfully held in custody for years before the commencement of the Division, those limitations would not, in our view, have gone far enough were it not for the provision of s 54P(1).

So the majority would have held the old legislation invalid, even with the 273-day cap.

GLEESON CJ:   They just did not advert to the factual problem with which we are confronted.  They were dealing with what they regarded as the ordinary case.

MR TILMOUTH:   Indeed, but with respect, your Honours, it is absolutely essential, in our submission, to appreciate that what saved Lim, irrespective of any complications, was time limitations.

KIRBY J:   I think there is a difference between what you are proposing and what is being put to you.  What is being put to you is because they did not advert to it, therefore their view is invalid because their premise is not right.  But your thesis, as I understand it, is that the principle is still correct if you can only detain for the purpose of deportation and you cannot secure immediate deportation.  As in other countries, you then have to release, perhaps under conditions of reporting or something, but you do not keep the person locked up indefinitely because that runs into our problem in Australia of Chapter III.  That is a different inference that you invite the Court to infer.

MR TILMOUTH:   Indeed.  In my submission, the constitutional limitations which underpin Lim are free of any problem of removal.

GUMMOW J:   The bottom line then is, Mr Tilmouth, which I think is adverted in some of the US discussion of this - the end result is that the illegal entrant foists him or herself into the Australia community by reason of the circumstance, for which neither that person nor the Commonwealth is responsible, namely, the attitude of third countries.

MR TILMOUTH:   The latter is true but the former still gives rise to obligations.

KIRBY J:   It is a long process of foisting.

MR TILMOUTH:   Indeed.

GUMMOW J:   It may be but that is what would happen if you are right about time limitations.

MR TILMOUTH:   Lim is a time case, if I can put it that way.

McHUGH J:   It was, because time was one of the issues in that particular case and, as the Chief Justice put to you, the assumption was that people could be deported.  But the question is:  when does the law which is with respect to aliens go from being a law with respect to aliens and also a law that seeks to punish somebody?  I do not see why there has to be any particular time limitation, as long as you are achieving some legitimate purpose relevant to alienage.  It may be to lock somebody up for the duration of the war.  That does not constitute punishment for Chapter III purposes.

MR TILMOUTH:   But only because of the defence power.

McHUGH J:   No, leave the defence power aside.  It does not seem to me to depend on the defence power.

MR TILMOUTH:   Your Honour, if the premise is that there is no power in the Executive to detain for any purpose or for any longer than is necessary to achieve a proper core function of the Executive - and entry into and exclusion from Australia is admitted to be one of them - in our submission, the only way to make the constitutional limitation on the aliens power work has to be referable in the end result to some time period.

KIRBY J:   Otherwise we run into the problem of Korematsu, which is now generally regarded as one of the most disgraceful decisions of the United States Supreme Court:  rounding up all the Japanese‑Americans and interning them during the war.  They gave them an apology afterwards and a little compensation.  It is not a very good precedent.

MR TILMOUTH:   No.

GUMMOW J:   …..aliens.

MR TILMOUTH:   On aliens, that is true.  Of course, this is a very live subject matter in the United States at the moment.

GLEESON CJ:   What would be the factual outcome in the present cases if we were to come to the conclusion that there may be situations in which the prospect of removal is so remote that it is no longer possible to say that people are being detained for the purpose of removal?  As I have mentioned earlier, I have a little problem about exactly what that expression means.  But suppose that were said.  How would that operate in relation to the facts of the cases with which we are concerned?

MR TILMOUTH:   If the Court pleases, they would be “released” under strict conditions.

KIRBY J:   In a sense their situation demonstrates the difficulty that they face if they cannot get a country to take them back.

MR TILMOUTH:   It does, but it is also, with respect, a consequence of a policy of detention.  These are very much a minority group.

HAYNE J:   You speak of release upon strict conditions.  Where lies the authority for the imposition of conditions?

MR TILMOUTH:   Well, there are two answers to that.  If one assumes for the moment that it is possible, even if remotely possible, that removal might be effected later, then there would be the residual power to do that.

GLEESON CJ:   But the power to impose conditions must depend on the power to detain, must it not?  The conditions may be unacceptable to the person on whom the conditions are imposed.  So you can only impose the conditions if you assume you have a power to detain, absent compliance with the conditions.

MR TILMOUTH:   I understand that, your Honour.  The other view is what your Honour the Chief Justice is putting to me, and I think your Honour Justice Hayne especially yesterday, that once that condition is reached the power is spent and exhausted.  In that situation then the person would have to be released without conditions, and that is a consequence of this legislation.

McHUGH J:   But where do you get the power to impose the conditions if you are required to release the person?

MR TILMOUTH:   The power comes from the implication either in the words and/or by constitutional limitations.

KIRBY J:   This is what most countries in the world do with refugee applicants.

MR TILMOUTH:   Exactly.

KIRBY J:   Virtually all countries in the world, including the United Kingdom, most of the countries of Europe, most of the countries of the world do this.  We do not, but they do.

MR TILMOUTH:   Yes, and, with respect ‑ ‑ ‑

McHUGH J:   That may be, but we have to determine a constitutional question.  We are not here to deal with politics.

KIRBY J:   I am answering the question of how you do it.  If everyone else can impose conditions, one would assume that we could find a way in our imagination to do it.

MR TILMOUTH:   Yes.

GLEESON CJ:   The precise question is, where would you get the power to impose conditions if you did not have the power to detain?

MR TILMOUTH:   The logical answer is you would not because the power would be spent.  I accept that.  The consequence would be that the detention would nevertheless remain unlawful.  Your Honours, can I just finish Lim.  At page 34 the decisive factors in their Honours’ mind at about point 4 was:

In the context of that power of a designated person to bring his or her detention in custody under Div 4B to an end at any time, the time limitations imposed by other provisions of the Division suffice, in our view, to preclude a conclusion that the powers of detention which are conferred upon the Executive exceed what is reasonably capable of being seen as necessary for the purposes of deportation –

So the submission is, your Honours, it is undeniable that the ratio of Lim was that what saved the legislation was a time limitation of something less, and certainly no more, than 273 days.

McHUGH J:   It cannot be the ratio.  That is three Justices, for a start.

MR TILMOUTH:   Justice Mason, in our submission, relevantly agreed.

KIRBY J:   Just take us back to what Justice Mason said in that opening passage.

MR TILMOUTH:   It is ambiguous, I accept, but ‑ ‑ ‑

KIRBY J:   He says:

The agreed facts, the questions stated and the relevant provisions are set out ‑ ‑ ‑

MR TILMOUTH:   And he went on to say:

I also agree that authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers –

et cetera.  In our submission, it is pretty close to agreeing.  What Chief Justice Mason also said at the top of page 12 was:

Thus, a failure to remove a designated person from Australia “as soon as practicable” pursuant to s 54P(1), after that person has asked the Minister in writing to be removed, would, in my view, deprive the Executive of legal authority to retain that person in custody.  So also would a failure to remove a designated person from Australia pursuant to the terms of s 54P(2) and (3).

They being the equivalents to section 198.

KIRBY J:   Where is 54O set out, the one that put a cap on the ‑ ‑ ‑

MR TILMOUTH:   At about page 16, I think – no, it is missing from there.  Page 18, your Honour, and I am told it is subsection Q.

KIRBY J:   Q, not O?

MR TILMOUTH:   Yes.

KIRBY J:   I see, 273 days.

MR TILMOUTH:   Yes, that is right.

KIRBY J:   Where does that magic number come from?

MR TILMOUTH:   From Parliament.

HAYNE J:   What head of 51 is that under?

MR TILMOUTH:   It is nine months.

GLEESON CJ:   What does the expression “failure to remove” mean in line 2 on page 12, in the context of a case such as the present?

MR TILMOUTH:   That is, with respect, your Honour, one of the critical questions.  It may be an absolute reference, in which case it supports our argument, or it may be qualified, the problem being, once again, that the facts that we have here simply were not contemplated in Lim, but so far as it goes, in our submission, what his Honour said at the top of page 12 can only support the conclusion of the other three Judges whose judgment I have taken your Honours to and thus we have a majority.  In our submission, as I say, in the end result, Lim is a time case because the legislation will say because the period in detention would have been no more than 273 days.  An election by the person out of the ‑ ‑ ‑

KIRBY J:   What happened in the Act in its then form if either the process of review in courts, or whatever was the system then, or the inability to get a country of reception interfered with the 273 days? What was the scheme of the Act in those days? You had to be released, is that what happened?

McHUGH J:   No, you got extended.  I mean, you could be held for years.  273 was 273 clear days, if I remember rightly.

KIRBY J:   Section 54Q on page 18 does not talk of clear days.

MR TILMOUTH:   As I understand it from Mr Heuzenroeder, there is a case under 54Q which said, in effect, that if the fault in the delay was in the making of the application, then the time does not count.  I am not sure if you have the reference now but we can provide it.  That, in our submission, was the critical difference.  It was that provision, plus the ability to elect out which, by definition, had to be less than the 273 days because once that expired you were entitled to be released immediately because you were no longer a designated person.

McHUGH J:   Mr Lim had been in custody, if I remember rightly, for two and a half years.

MR TILMOUTH:   Yes, that is why he succeeded, your Honour.  In our submission, there is further support for the view that there is a comfortable majority here in the way that we say because at page 53 Justice Gaudron said that she was - at the beginning of her judgment - in general agreement with the judgment of Justices Brennan, Deane and Dawson except for two matters, those two matters not being relevant, in our submission, for present purposes.  Her Honour, as your Honours know from the submission yesterday, went off on a different tack.  But in essence, in our submission, her Honour too provides a safe majority for our submissions.

KIRBY J:   On 55 her Honour makes it clear:

Detention in custody in circumstances not involving some breach of the criminal law and not coming within well‑recognised categories –

set out in the joint reasons –

is offensive to ordinary notions of . . . just society –

and outside Chapter III.

McHUGH J:   Mr Tilmouth, at page 33 of the joint judgment it is said:

For the purposes of that maximum period ‑

273 days ‑

time does not run while events beyond the control of the Department, such as delay in the supply of information or delay in court or tribunal proceedings, are preventing the finalization of the entry application.

MR TILMOUTH:   Yes.  I overlooked that, your Honour.  That is quite right.  It gets part of the way.

GUMMOW J:   This person in Lim, page 3 indicates arrival in this country 1989, 1990.  It says there had been detention. At some stage I would want to know what the power was of detention in 1989 and 1990, that is to say under the law as it stood before the 1992 ‑ ‑ ‑

MR TILMOUTH:   That power, your Honour, was the old section 88, which is summarised in the materials we put yesterday.

McHUGH J:   We did not get ‑ ‑ ‑

MR TILMOUTH:   I beg your pardon.  In the statutory provisions we presented a summary of yesterday, your Honours, section 88(1) was the operative provision at that time.

GUMMOW J:   “A person who is on board a vessel” - yes, is to be kept in such custody “until the departure of the vessel”.

MR TILMOUTH:   Yes, and it is at page ‑ ‑ ‑

GUMMOW J:   Well, these vessels were not going to depart anyway.

MR TILMOUTH:   No, they were burnt.  They were burnt by the Department.  Of course, in that sense Lim is relevant because they were not able to be removed in the sense contemplated by section 88 because the Department itself had put that capacity out of their own hands.

HAYNE J:   There is some discussion of it at the joint reasons at pages 23 to 24 ‑ ‑ ‑

MR TILMOUTH:   Indeed. 

HAYNE J:   ‑ ‑ ‑ which would serve to explain why, at page 33, their Honours, at the sixth‑last line of the page, refer to them having been: 

unlawfully held in custody for years before the commencement of the Division –

then under consideration. 

MR TILMOUTH:   Indeed.  So, in one sense, Lim has that extra parallel, because there was the inability to remove, because the boats had been burned. 

HAYNE J:   Can I take you back and just understand the framework of the argument at its most general level. The scheme of the Act appears to be you may enter and remain in Australia only with a visa. Step two is, if you enter without a visa, you will be detained and must be removed as soon as possible. There will be cases where that may happen by turning around and putting on the same aircraft or putting on the same ship. But given that the Act provides that you may make a claim to a visa of various sorts, while you make that claim and while that is being considered, you will not be removed.

Now, you say, as I understand it, that detention is not punitive for some part of that time, but becomes punitive at what point?  When it becomes apparent that the person is not removable, what, within some reasonable time into the future?  What is the watershed that you identify? 

MR TILMOUTH:   When one of the three objects of 196 is no longer achievable, or, to take Mr Bennett’s argument, when the three purposes contemplated by 196 are exhausted or no longer applicable.  Can I further add this, your Honours, in our submission ‑ ‑ ‑

KIRBY J:   Just let me get clear, is that for statutory reasons, because thereafter it is not detention with the Act, or is it statutory reasons read in the light of the Constitution, that out of our self‑respect for ourselves our Constitution says you can only enact laws in respect of aliens subject to the Constitution? That brings in Chapter III ‑ ‑ ‑

MR TILMOUTH:   It is both, in our submission ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ and, for our own reasons, we do not have indefinite detention of anyone in this country. 

MR TILMOUTH:   In our submission, it is both. I put the plain statutory argument yesterday, free of the Constitution, and, in our submission, that result is reached by that course taken alone. It is reinforced by the Constitution, as read in Lim, which has clearly temporal limits at the core of the majority decision.  By the way, your Honours, could I add that Justice Gaudron in Lim, at 58, said, at line 3: 

In this regard, I adopt what is said in the judgment of Brennan, Deane and Dawson JJ in support of their conclusion that the power of detention conferred by ss 54L and 54N does not exceed what is reasonably necessary for the purposes of deportation –

and so on.  So, in our submission, her Honour, in that respect too, is part of the majority.  Your Honours, can I come back for a moment, if I may, partly ‑ ‑ ‑

GUMMOW J:   I am sorry to interrupt, but is there any stage of your argument of construction which involves reading down by application of 3A of the Migration Act? 

MR TILMOUTH:   Well, 3A has its own problems.  The reading down would be the limitation, in effect, the Al Masri limitation, to make it valid.  And of course, in Lim itself 54A was held invalid because of the exclusion of jurisdiction, although some Judges, including the Chief Justice, read it down, to read it only excluded jurisdiction in the case of lawfully detained persons.  I will come back to that in a moment.

Your Honours, can I finally on Lim point out that, although his Honour Justice Toohey did not really deal in great detail with the point, his Honour did say at page 46 that what was contemplated was something that was “not . . . lengthy”.  In our submission, that drives us back to the original point yesterday, that apart from the problem we have here not being contemplated in Lim, in our submission, it is tolerably clear that Parliament itself did not intend that there would be an indefinite detention under these provisions. If that is so, then they have to be read in some way to give effect to that intention, apart from the other presumptions that we referred to yesterday about liberty and to make the reading of the Act consistent with international obligations. But clearly, in our submission, Parliament did not intend a lengthy detention and, as I pointed out yesterday, it expressly dealt with the question of delay in deportation but left it out in the context of these two Divisions, 7 and 8.

KIRBY J:   Could you just help me.  What was Justice McHugh’s position, because the headnote rather suggests ‑ ‑ ‑

MR TILMOUTH:   Justice McHugh is perhaps best at pages 65 to 66, your Honours.  At the bottom of page 65:

If a law authorizing the detention of an alien went beyond what was reasonably necessary to effect the deportation of that person, the law might be invalid because it infringed the provisions of Ch III of the Constitution. Similarly, if a law, authorizing the detention of an alien while that person’s application for entry was being considered, went beyond what was necessary to effect that purpose, it might be invalid because it infringed Ch III. But neither “law” would cease to be a “law” with respect to the subject of aliens.

We do not quarrel with that, of course.  Then at pages 71 to 72, your Honours, that second sentence on 71 is important but for time purposes I simply read the conclusion in the last three lines.  Your Honour Justice McHugh said:

But if imprisonment goes beyond what is reasonably necessary to achieve the non‑punitive object, it will be regarded as punitive in character.

GLEESON CJ:   Is there a difference between saying you must do something as soon as reasonably practicable and saying you must do something soon?

MR TILMOUTH:   That is a tricky question, if the Court pleases.

McHUGH J:   No, it is not tricky at all.  There is a very big distinction.  “Reasonably practicable” has been interpreted again and again by the courts to mean feasible, reasonably feasible, and that is different from doing it as soon as you can.

MR TILMOUTH:   Yes, but, your Honours, there is no case, in our submission, which has ever held that “reasonably practicable” in any context has justified indeterminate detention or imprisonment in any context whatsoever.  As I put in the first part of my submissions, all the case law speaks about and talks about the period necessarily coming to an end.  Those words were chosen with that established judicial interpretation well entrenched over a century in the common law courts, including Australia.  That was the interpretation that this Court gave in R v Williams in the context of arrest on suspicion of criminal offences.

Your Honours, can I deal with, if I may – and it is partly associated with the point that is being made now – the matter that your Honour Justice McHugh, in particular, put to me yesterday about section 189, the question being, I think, that how did the argument of construction fit with, in effect, a continuing obligation to detain under 189 under the bare suspicion of the person being an illegal non‑immigrant, ie, not having a visa.

We have two submissions to make, if the Court pleases.  By the way, your Honours, we point out that if there are persons in the community at the moment who were released after the 273 days of the old regime, they would, it appears to us, and we submit, to be subject to re‑detention under 189, even though they were released under the old provisions. 

The two submissions, your Honours, are these.  The key word, of course, in 189 is “detained” and I make the point that this not really a power of arrest, it is a power of detention and it is coupled with the period of detention or duration of detention, as it now is, in 196.  However, “detain” is defined in section 5 and, of course, as in all interpretation provisions in Commonwealth legislation, a definition is subject to the contrary intention appearing, and “detain” appears in page 7 of Reprint 8 at the bottom of that page:

(a)  take into immigration detention; or
(b)  keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.

The limitation, we submit, consistent with our broader submissions about the scheme of the Act, is that detain, as defined, would have implied into it the word “lawful”. In other words, it would read, “(a) take into lawful immigration detention”. That, your Honours, is no different from the way 54R was read in Lim’s Case itself, where the provision was read, in effect, or was to be read, if read down, as confining the section and limiting the jurisdiction of the courts to release from detention to those in unlawful detention.

HAYNE J:   How does that work with the further definition of the term “immigration detention”?

MR TILMOUTH:   Your Honours, can I just delay for a minute.  The pages in Lim are referred to in our footnote 32 where that proposition was sustained.  I am sorry, your Honour, was it ‑ ‑ ‑

HAYNE J:   “Immigration detention” is itself a defined term.

MR TILMOUTH:   Yes, it is.

McHUGH J:   Paragraph (a), in particular, is a bit of a hurdle for you to overcome.

MR TILMOUTH:   It means simply “being in the company of an officer” and so on or, under (b), other persons approved by the Minister.  But, in our submission, it takes no great leap of logic or of legal reasoning to simply put into, as I have said, “detention” the word “lawful” so that the power is confined to taking into detention lawful detention.  That would mean, on our argument, that those in the Al Masri category would not therefore be subject to the continuing section 189 situation.

The other way of working the definition of “detention” would be to read it “lawfully take”.  In our submission, that is a very small step from the reasoning of the Court in Lim.  Now, the second point to make about the definition, your Honours, is of course that there is a rider and the rider is “as are reasonably necessary to do so”.  That rider is distributing throughout “action” and “force”.  It is not confined or disjunctive to any of those and, in our submission, it follows if that is right that it would not be reasonably necessary to take somebody into detention anyway in the Al Masri category, in effect.  In other words, the words “reasonably necessary” qualifies throughout the power to detain through the definition section.

The alternative argument, your Honours, on 189 is, again consistent with our earlier submissions, that the power of detention under 189, for reasons of construction and if not for reasons of constitutional limitation, be read as a power only exercisable for the purposes of the three purposes in 196, and that gets back to our primary argument.  If those purposes no longer exist or pertain, then, in our submission, it follows or it flows back, as it were, that the power of detention under 189 would no longer be available ‑ ‑ ‑

McHUGH J: Mr Tilmouth, your argument just will not deal with 196(3) of the Act. It shows what the Parliament’s intention was and it shows that the Parliament intended somebody would be kept in detention for as long as it was necessary to deport the non‑citizen. It says:

To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non‑citizen from detention . . . unless the non‑citizen has been granted a visa.

KIRBY J:   Well, that is a dubious constitutional validity, even by a court.  That seems to conflict with section 54R, which was struck down in Lim.

MR TILMOUTH:   Exactly.  The short answer is that reading would be akin to 54R.

McHUGH J:   Well, whether it is or whether it is not, the fact is it shows what Parliament’s intention was.

KIRBY J:   It does not matter if it is unconstitutional.

MR TILMOUTH:   With respect, Parliament could not have intended to preclude the jurisdiction of the Court through 196(2) or (3) to release persons in unlawful detention.  Our submission of course is that Mr Al Khafaji and Ms O’Connor’s clients were in unlawful detention.  In other words, you render the same consistent reading of that provision as was rendered in Lim.

McHUGH J:   No, but the argument is circular.  You start off with the assumption they are in unlawful detention.

MR TILMOUTH:   May it please your Honour, I understand that but, with respect, the flaw in what your Honour is putting to me is it completely ignores the other limitations of 189, the “as soon as reasonably practicable” problem, and it ignores the time limitations given to us in Lim, which I have already dealt with.

KIRBY J:   Justice McHugh did not find 54R unconstitutional but the Court did.

McHUGH J:   Neither did Chief Justice Mason because we construed so as not to conflict.

KIRBY J:   I repeat:  the Court found it unconstitutional.

MR TILMOUTH:   Yes.  Now, your Honours, in view of the time period can I deal with the cases in the common law jurisdiction in a rather summary way.  My learned friend Mr Bennett has said the case of Hardial Singh, the decision of Justice Woolf which has been reflected in a number of decisions since, and the decision of the Supreme Court of the United States in Zadvydas, in particular are distinguishable because they involve a discretionary power.  It is conceded, your Honours, that they do involve a discretionary power because the word “may” was used in each case.  Once again, the legislation is outlined in the summary we presented yesterday.  But, your Honours, if that is a distinction which is valid, which, in our submission, it is not, it is a distinction which supports our argument rather than undermines it.  That is because where you have legislation like that before the Court currently which is mandatory and obligatory, there is more reason to imply or read in limitations because obligatory legislation has the greater capacity to wreak Draconian consequences.  Where on the other hand you have a discretionary situation, as you do in those other situations, there is less reason, in our submission, to read in limitations - whether they be textual or whether they be constitutional - and of course, where there is a discretion there is a further safeguard provided by general principles of administrative law where those discretions miscarry.

Now, your Honours, in our submission, therefore, those cases are of significant importance in the context of this case.  In Hardial Singh, which I do not read for time purposes, Justice Woolf read into what we submit is broadly comparable legislation a limitation that the period of detention only pertained for so long as it was “reasonably necessary”.  That is at page 706D to F.  In fact, his Honour gave the Minister in that case – or the Secretary of State, I think – three days in which to present evidence or otherwise he would release.  See page 709. 

That case has been applied by practically every court in the highest point of the hierarchy in common law jurisdictions in the world.  Those cases, your Honours, are set out in our written submission at page 7, paragraph 24, footnote 26.  It is a very distinguished series of courts, in our submission, including the House of Lords in Saadi, the Privy Council in Lam, a Hong Kong case, the Supreme Court of Ireland and the Supreme Court of the United States in Zadvydas.  Every principal court in the common law world that has dealt with the issue has resolved textual construction in the way that we submit it to be. 

Your Honours, in Zadvydas, a decision of the United States Supreme Court, it is true that the decision was governed at least primarily by the due process provision in the United States Constitution, the Fifth Amendment.  But underlying that in any event is a more basic principle, in our submission, which is what I might call the Hardial Singh principle.  The United States Supreme Court also adopted the limitation of what was “reasonably necessary” in the context of the very detention of aliens as we have here. 

GUMMOW J:   I am looking at the bottom of page 689. 

MR TILMOUTH:   That is right, 689 of Zadvydas. 

GUMMOW J:   Now, that all sounds terrific, but what do they in fact mean by “to a period reasonably necessary to bring about that alien’s removal”? 

MR TILMOUTH:   What they did, in the end, your Honour, was actually ‑ ‑ ‑

GUMMOW J:   It is no different to what we have in our section. 

MR TILMOUTH:   That is true, but the underlying principle is more important.  What they did was, at 701, they put a limit of six months, something less than 273 days.  It is about point 5, your Honour.  They fix what they describe in the second line as a “presumptively reasonable period of detention”, and they fixed it at six months.  In effect, the court constitutionalised, so to speak, an absolute limitation. 

GUMMOW J:   By raising a presumption. 

MR TILMOUTH:   Yes, quite so. 

GUMMOW J:   Implying a presumption. 

MR TILMOUTH:   Yes.  The further point to make about Zadvydas, your Honours, was – and this is what the minority seized upon – Zadvydas was not an alien in a detention situation as we have here.  He was a resident of the United States, although a foreigner, who committed criminal offences.  So this was a deportation case, to use our nomenclature, and even then, where there is a stronger argument for stricter conditions of detention, because such people are sometimes regarded as dangerous or unfit to be released into the community by reason of a criminal conviction, nevertheless they imported those limitations. 

GUMMOW J:   He had lived in the United States since 1956. 

MR TILMOUTH:   That is right, he had been a resident for a long period of time.  He went back to Hungary, I think, then came back, but had a very bad criminal record, if I recollect, your Honours.  That case was referred to again without question in the subsequent decision of Demore v Kim, which is referred to in our reply. 

CALLINAN J:   Mr Tilmouth, can I just get one matter clear. I think it is fairly clear. Your reliance is entirely upon the Constitution. You do not suggest that your client has any rights at all under the Convention except perhaps under Article 33.1, is that right?

MR TILMOUTH:   The latter is right, your Honour, and that gets back to the matter your Honour raised yesterday about section 36(3), which is referable to that article your Honour just mentioned.  But our argument is not solely constitutional; it is also, with respect, textural.

MR BENNETT:   Yes.

HAYNE J:   Now, I would be assisted if we could find anything which revealed how or why that change occurred.

MR BENNETT:   Your Honour, I will have that – that will be in the submissions.

GUMMOW J:   So, I mean, the net result is to not criminalise entry but to criminalise through 197A escaping detention.  That is essentially what has happened.

MR BENNETT:   Your Honour, I would not put the one as a quid pro quo for the other.  If the question is asked for the purpose of an argument that the characterisation of the provisions is dictated by the former provisions or by that provision, in my respectful submission, that is not so.  Indeed, the ‑ ‑ ‑

GUMMOW J:   What is the force of the word “unlawful”?

MR BENNETT:   It is merely a word which is used in a definition section, your Honour.

GLEESON CJ:   Does it mean without lawful permission?

MR BENNETT:   Yes, that is perhaps the best way of paraphrasing ‑ ‑ ‑

GUMMOW J:   But in the Austinian sense that is meaningless, is it not?

MR BENNETT:   Yes, your Honour. The draftsperson of the Act is not necessarily taken to be familiar with the ‑ ‑ ‑

GUMMOW J:   Well, perhaps they ought to be.

MR BENNETT:   My learned friend made some submissions about Zadvydas.  Might I simply remind your Honour of one other feature of that case, and that is there is a dissenting judgment which your Honours referred to part of.  That commences at page 705 and your Honours see it is a dissenting judgment by four justices of the nine, so it is not as if this is a decision of a larger majority than that.  It is the barest possible majority.  The language of the dissent is very strong in a number of places.  There was one passage which ‑ ‑ ‑

HAYNE J:   The language of the majority was strong, too, Mr Solicitor.  What do we make of the strength of their language?

MR BENNETT:   Nothing, your Honour.  It is the style that they use in the US Supreme Court.

GUMMOW J:   They did not in classical times, and you are probably on a better footing than Judge Learned Hand’s dissent in what became Shaughnessy 195 F 2d 964 at 970 to 971 which puts, I think, what you want to put in moderate language which appeals to the mind rather than the emotion.

MR BENNETT:   Your Honour, may I have leave to include a reference to that in the submissions?

GUMMOW J:   Yes.

MR BENNETT:   The passage I wanted to tell your Honours about is a passage which appears later in the dissenting judgment at page 711 where they make the point that the effect of the majority decision is that a malevolent country might well make it difficult or time consuming for people to be able to get back to it so as to force the United States under this decision to absorb the people concerned, and the undesirability ‑ ‑ ‑

HAYNE J:   That seems to be just a particular example the minority give of a general proposition that seems to lurk beneath what is said at page 713.  Now, I want to understand whether you invoke some general proposition to do with the relationship between the courts and the conduct of foreign policy, and if you do, what is the proposition?

MR BENNETT:   Your Honour, I only put it in very general terms and that is to say that clearly one reason why the Executive may need to be able to detain for lengthy periods rather than the sort of short period suggested by the majority in Zadvydas is that if one has a short period, it is easy for a foreign country to say, “Well, by delaying our processes for that period, we can force the absorption of that person into the American community”, and that is a factor which, in our respectful submission, goes into the concatenation of factors which build up to the test.

HAYNE J:  Yes, that may be the Realpolitik of it, and I can understand that that may be the Realpolitik of it, but what is the legal peg on which you are hanging the hat?

MR BENNETT:   The legal peg, your Honour, is the words in the test about reasonably capable of being regarded as appropriate to the achievement of the purpose, and one of the reasons why one may need to detain for a longer period is that.  That is the peg on which I hang it.  It is not the same as the peg on which the…..in that case hung it.  In my respectful submission, again, it is available.

My learned friend, Ms O’Connor, referred in her argument to page 10 of her appeal book, and paragraph 9.  Your Honours will recall that she read the last words of paragraph 9:

However, I consider the evidence does establish that removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future.

The Al Masri test.  Just before that, his Honour said:

However, the possibility of removal in the future remained, and officers of DIMIA and the Minister were continuing to make enquiries.  In this case, as in SHFB –

this a double negative one has to read carefully –

I am not satisfied that DIMIA officers, including the second respondent, are not taking all reasonable steps to secure the removal from Australia of the applicant.

So his Honour was satisfied that the Department was taking all reasonable steps and the possibility of removal in the future remained, however, the matter still failed the Al Masri test which, as your Honours have seen, has been held to apply to delays of a few months. 

My learned friend, Ms O’Connor, also submitted that there was no difference between the type of inquiry by courts into the activities of the Executive that would be involved, on the one hand, in determining the reasonable practicability of removal in the near future and, on the other hand, determining whether reasonable efforts were being made.  In my respectful submission, there is a substantial difference of degree between the intrusiveness of the two inquiries.

The first inquiry involves looking at the likelihood of political developments in foreign countries.  It involves asking the question, for example, in this case, what is the likelihood of the establishment of the State of Palestine?  When is it likely to occur?  What will its policy be towards the immigration of people who are of Palestinian descent but from a country like Kuwait?

GUMMOW J:   Well, it has been coming for 50 years.  It may take another 50 years.

MR BENNETT:   Your Honour, that is the sort of problem, that how does the Court determine that?  That is very hard.  On the other hand, for a court to determine whether the Department is doing all that it can reasonably do involves something less than that.  It involves looking at the departmental officer’s confidential affidavit to see what diplomatic steps are being taken, how extensive they are and how serious they are.  That is something which, while there is unfortunately a level of intrusiveness which is otherwise undesirable, it is one which can take place with far less difficulty than the first.  So we would submit they are really quite different exercises.

My learned friend then came to the recent legislation.  May I just point out a couple of things about that legislation.  It was fairly dramatically changed in the Senate.  When it went through on the first occasion – and this is why there are two explanatory memoranda – it contained a range of provisions dealing with interlocutory injunctions in Al Masri‑type cases, in Shaw and Taylor‑type cases, as well as in cases of general criminal deportation.  It was dealing with all those problems and the explanatory memorandum refers to those and refers to the Al Masri situation as one of the situations in which the court is not to grant release on an interlocutory basis. 

Now, that was a legislative response to what was happening.  It cannot, in my respectful submission, be regarded as an acceptance of the Al Masri decision, especially when there was on foot – I have not checked the precise dates – but no doubt at the time steps being taken by the Commonwealth to appeal the Al Masri decision.  So one simply cannot read that first batch of explanatory memoranda that way. 

When it went through in its final form after amendment in the Senate it was far more limited and the explanatory memoranda is also therefore more limited.  That is in the material that my learned friend has annexed to his submissions but it is a little difficult to draw out of it as one has to read various things side by side.

One final thing in relation to the submissions made by Ms O’Connor and that is that during her submissions your Honour Justice McHugh asked about the judgment of Justice Gaudron in Kruger.  We simply note that it is correct to say that although her Honour, as I showed in‑chief, rejected the approach based on Chapter III, her Honour reached a similar conclusion by a totally different route, namely by reading down the powers in section 51.  That was a course which no other Justice took.  In my respectful submission, it does not represent the received doctrine of this Court.

Finally, I come to the submissions this afternoon of my learned friend Mr Burnside.  It is significant that his submissions involve the relevant purpose being the purpose in the individual case.  We submit what follows from Chu Kheng Lim is that the relevant purpose is the statutory purpose.  Of course, when one has a statutory purpose there will often be situations caught up in a general provision where that statutory purpose might be seen to be inappropriate.  One can think of many, many examples of that where legislation has a general purpose but has a particular effect, perhaps outside that purpose, in a particular case.  That does not mean that one reads down the legislation as not applying to that case.  That is the whole point of the – capable of being seen as “reasonably appropriate and adapted” test.  One applies that test, and when one applies it one may well find that there is a particular person in relation to whom someone does not have a particular purpose.  That does not matter.  What does matter is that the purpose of the provision is to achieve certain results.

GUMMOW J:   What is the Commonwealth’s submission in this situation where it can be seen that the attainment of the purpose is impossible?

MR BENNETT:   Your Honour, we submit it is never impossible.

GUMMOW J:   So it is a permanent state of Mr Micawber?

MR BENNETT:   Yes, your Honour, and in the present case there are specific findings well short of impossibility, in both the present cases.

GUMMOW J:   I am not worried about these particular cases.  I am trying to worry about validity.  Now, you say it can never be ‑ ‑ ‑

MR BENNETT:   It is never impossible for two reasons, your Honour.  First, there may be a change of mind or a regime change on behalf of the subject country.  Secondly, some other country may take an altruistic view, or the United Nations may arrange something in some other country.

GUMMOW J:   But, as against that, there can be lifetime detention. 

MR BENNETT:   The Minister has his discretion under 417, which, one would expect, might well be exercised ‑ ‑ ‑

GUMMOW J:   Well, one cannot assume that. 

MR BENNETT:   One cannot assume that, but that is ‑ ‑ ‑

GUMMOW J:   You are not asserting that it would be, are you? 

MR BENNETT:   No, your Honour.  No, I cannot say that. 

GUMMOW J:   So one can dismiss it. 

MR BENNETT:   Well, your Honour, we do not say one can dismiss it.  It is a reason why it is unlikely to happen. 

GUMMOW J:   Why? 

MR BENNETT:   Because no doubt that would be a very powerful factor exercising the ‑ ‑ ‑

GUMMOW J:   That would depend upon the political exigencies of the day, Mr Solicitor. 

MR BENNETT:   Well, Ministers sometimes act beyond that, your Honour. 

GUMMOW J:   Into which one could not begin to peer, from this vantage point. 

MR BENNETT:   No, one could not, your Honour.  It is very hard to imagine a case where one would never be able to remove a person to anywhere ‑ ‑ ‑

GUMMOW J:   I am not worried about “hard to imagine”, I am worried about validity, which, as we know, is a bright line. 

MR BENNETT: Well, your Honour, we submit that, as a matter of logic, one can never say it is impossible. My learned friend had a series of submissions about the Act not authorising particular levels of harshness. The first thing to note is that most of what is normally described as “harshness” in relation to detention is negative, rather than positive.

In most situations in the real world what is described as “harshness” is the failure to apply resources to a situation, rather than a deliberate application of unpleasant resources to a situation.  Indeed, the examples in my friend’s material used from the ex parte proceedings to obtain the subpoena rather illustrate that, where much of the complaint is that the schoolteacher is not there for enough hours, the dentist is not there often enough and matters of that sort. 

That is an area which really it becomes impossible, in my respectful submission, for the courts to intervene in, unless they are going to go as far as some courts in America have gone in relation to subjects like school districts and prisons, where the courts become administrators of huge areas of Executive Government business.  In my respectful submission, the answer to that is, of course, that one does make the separation, which my friend’s submissions say one cannot make, between detention and what occurs within detention.  I have dealt with that in‑chief and I do not need to say any more about it. 

KIRBY J:   Do you have any response to the suggestion that no other country’s legal system has permitted unreviewable extended indeterminate detention?

MR BENNETT:   Your Honour, the answer to that is that different countries face different problems in different situations and that is within the margin of appreciation that is given to the Executive where it has to deal with a problem.

KIRBY J:   It does make one look to be sure that there is a proper constitutional legal foundation for it.

MR BENNETT:   It does, your Honour, and we respectfully submit that this Court has held, and has correctly held in Chu, that there is such a basis.

GUMMOW J:   There is such a basis, but the question at some stage becomes whether, in substance, what is happening is the infliction of punishment for unlawful entry.

MR BENNETT:   Your Honour, one does not determine that by asking, “How unpleasant is it?”  There are many things that are done to people by the legislature or the Executive which are unpleasant and which could be

done by penal courts, especially in these days where imaginative sentences are sometimes imposed.  That does not make them punishment.  To see whether they are punishment one has to look at the statutory purpose and the permitted purpose and one does that here, clearly within the appropriate test – I will not use the words a fourth time in my reply, but clearly within that test what is being done here falls within it.  The detention of people for such time as it takes for processing to be completed and for them to be removed or deported, as the case may be, is reasonably seen, et cetera, within that test.  That is, in my respectful submission, the sole issue.

Subject to all the matters in the proposed additional document – I am reminded that our document will need to deal in reply with whatever my learned friend, Mr Burnside, says about the notice of contention.  Subject to those matters, those are my submissions.

KIRBY J:   Just before you sit down, can you tell me this curiosity of when the Convention slipped out of the Migration Act? Unless my mind is playing tricks, it was once a schedule to the Act.

MR BENNETT:   Your Honour, those appearing with me are of the view that it was never in there.

GUMMOW J:   Yes, that is my recollection of my Federal Court days.

MR BENNETT:   Yes, but I will have that checked.

GUMMOW J:   It was very irritating that it was not there.

KIRBY J:   Where did one used to see it then?  I mean, it used to be readily available.  Now you have to get it off the Internet.  It is referred to in section 36 ‑ ‑ ‑

MR BENNETT:   Yes, that is what I was looking for, your Honour.  It is referred to in section 36, but ‑ ‑ ‑

KIRBY J:   Yes, and in the definition clause ‑ ‑ ‑

MR BENNETT:   I will have that checked, your Honour, to confirm it, but that is certainly my understanding as well.

GLEESON CJ:   Thank you.

MR BENNETT:   If your Honours please.

GLEESON CJ:   Thank you, Mr Solicitor.  We will reserve our decision in these matters.  The Court will adjourn until 9.30 tomorrow morning in Canberra and 9.30 tomorrow morning in Sydney.

AT 3.57 PM THE MATTERS WERE ADJOURNED