Behrooz & Ors v Secretary, DIMIA & Ors

[2003] HCATrans 456

[2003] HCATrans 456

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 -

SHDB

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 WEDNESDAY, 12 NOVEMBER 2003, AT 2.02 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:If your Honour pleases, in the first matter I appear for the first and second respondents with my learned friend, MS M.A. PERRY.  In the second matter, SHDB, I appear for all the respondents and the Attorney‑General of the Commonwealth intervening with my learned friends, MR H.C. BURMESTER, QC and MS S.J MAHARAJ.  In the third matter, Al Khafaji, I appear for the appellant and the Attorney‑General of the Commonwealth intervening, again with my learned friends, MR H.C. BURMESTER, QC and MS S.J MAHARAJ.  (instructed by Australian Government Solicitor)

Your Honour, while I am on my feet might I just, on behalf of all counsel at the Bar table, congratulate Ms Mortimer on the fact that she became a Senior Counsel yesterday and this is her first appearance as Senior Counsel.

KIRBY J:   Could I ask in relation to the first matter listed, should the name not be anonymised?

MR BENNETT:   Your Honour, that depends on the construction of section 91X of the Migration Act, which in turn depends on whether the person is before this Court in his capacity as an applicant for a protection visa.

KIRBY J:   Does the person wish the name to be anonymised?  Because if that was so, that might be a reason for doing it anyway.

MR BENNETT:   Your Honour, we would accept that, if that request were made.

KIRBY J:   Maybe Mr Burnside could tell us.

GLEESON CJ:   Yes, Mr Burnside.

MR J.W.K. BURNSIDE, QC:   If the Court pleases, with my learned friend, MR J.P. MANETTA, I appear for the appellant in Behrooz, and we do not seek an order anonymising his name.  (instructed by Jeremy Moore & Associates)

GLEESON CJ:   Thank you. 

MS D.S. MORTIMER, SC:   If the Court pleases, I appear with my learned friend, MR J.K. KIRK, on behalf of the Human Rights and Equal Opportunity Commission.  If the Court pleases, the Commission seeks leave to intervene in all three proceedings by way primarily of written submissions.  (instructed by Human Rights and Equal Opportunity Commission)

GLEESON CJ:   When you say primarily, what about deleting the word “primarily”?

MS MORTIMER:   Your Honour, we were hoping to develop two points by way of oral submissions.  That application, if the Court pleases, is, as I understand it, opposed by the Commonwealth, but not opposed by any of the other parties.

KIRBY J:   Could you identify just the two little points, without going into them – just identify what they are about?

MS MORTIMER:   Your Honour, the first is the relevance and persuasiveness of the decisions of the Human Rights Committee in terms of the presumption that we refer to in our submissions on the construction of section 196, and the presumption that it be consistent with Australia’s international obligations.   We say, if there ever was a case where this Court ought to ‑ ‑ ‑

GLEESON CJ:   I know what you want to say, but is there anything that you want to add in support of your submission that you ought to be allowed to intervene by way of oral as well as written argument?

MS MORTIMER:   Only that we will be 15 to 20 minutes, your Honour, and we will proceed at the end of the argument for the other parties, apart from the Commonwealth.  If it is not necessary, your Honour, we do not press it.

GLEESON CJ:   Very well, then, we will have to adjourn for a short time to consider the attitude we will take to this application. 

AT 2.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.08 PM:  

GLEESON CJ:   Ms Mortimer, you have leave to intervene limited to relying on written submissions.  If you wish to supplement your written

submissions with further written submissions, then you will have an opportunity to do that within seven days of the conclusion of oral argument. 

MS MORTIMER:   If the Court pleases. 

GLEESON CJ:   Mr Solicitor and Mr Burnside – sorry, we have not taken the appearance of Ms O’Connor, I do not think. 

HAYNE J:   Or Mr Tilmouth. 

MS C.M. O’CONNOR:   May it please the Court, I appear with my learned friend, MS A. HAMDAN, for the applicant SHDB.  (instructed by Hamdan Lawyers) 

MR S.W. TILMOUTH, QC:   If the Court pleases, I appear for the respondent Al Khafaji with my learned friends, MR M.B. MANETTA and MR H.M. HEUZENRODER.  (instructed by Jeremy Moore & Associates) 

GLEESON CJ:   Thank you.  Now, Mr Solicitor, Mr Burnside, Ms O’Connor, Mr Tilmouth, I understand that originally there was some kind of agreement about division of time between counsel.  That, no doubt, has required some amendment in view of what has happened this morning.  If we were to sit until 4.30 this afternoon and tomorrow from 10.00 am until 12.45 pm and 2.00 pm until 4.00 pm, would you be able to divide the time between yourselves adequately for your requirements? 

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   Very well, then, we will sit those hours.  Have you agreed between yourselves on an order of addresses?

MR BENNETT:   Yes, your Honour.

GUMMOW J:   Perhaps you would tell us what it is.

MR BENNETT:   I am sorry, your Honour, I was being the perfect witness and just answering what I was asked.  The order is that I will address first on both matters and then my learned friends have agreed among themselves as to an order which, I think, is ‑ ‑ ‑

GUMMOW J:   When you say “both matters” ‑ ‑ ‑

GLEESON CJ:   There are three matters.

MR BENNETT:   Yes, there are three matters.  I understand that order is Mr Tilmouth, Ms O’Connor and Mr Burnside, and then if necessary I will say a few words in reply.  Your Honours, I propose to deal substantially with the ‑ ‑ ‑

GLEESON CJ:   I am sorry to interrupt you, Mr Solicitor.  There is a certificate from the Senior Registrar that she has been informed by the solicitors for the third and fourth respondents in the appeal of Behrooz that the third and fourth respondents will submit to any order of the Court save as to costs.  Yes, Mr Solicitor. 

MR BENNETT:   Your Honour, there is one other matter concerning parties, and that is that in the Behrooz matter there are two parties described as second and third appellants.  As to both those parties, the appeals are moot because they have been removed from Australia and the nolles prosequi have been ‑ ‑ ‑

KIRBY J:   Could I just ask, were they removed after the grant of special leave? 

MR BENNETT:   Yes, they were, your Honour.

KIRBY J:   Whilst a matter was pending before the Court?

MR BENNETT:   I think a matter which would have become moot because of the nolle prosequi in the ‑ ‑ ‑

KIRBY J:   The dropping of the proceedings that give rise to the issue before the Court?

MR BENNETT:   Yes, your Honour.

KIRBY J:   I am just a little concerned that that was not done.  Can you tell the Court that was not done simply to avoid their being before the Court for the exercise of their rights?

McHUGH J:   Did they not sign requests?

MR BENNETT:   They signed requests, your Honour, yes.

KIRBY J:   Very well. 

GLEESON CJ:   Yes, well, in both of those cases, special leave to appeal is withdrawn.

MR BENNETT:   If your Honour pleases.  That may give rise to some minor consequential matters in relation to the form of order, in the event that I am unsuccessful in that appeal, because the subpoena in its present form refers to matters which would relate only to them.  But that is a matter to which I will come.

Your Honours, I propose to deal with the Behrooz matter first and then the other two matters, but in doing so may I say this.  There is an element of overlap in the submissions, and I will deal with that as I go.

The order, within Behrooz, in which I will deal with matters will be, first of all, the subpoena and the context from the notice of contention.  Secondly, the correctness of the position taken by the judge in relation to the extreme case and the various cases about escape and matters of that sort, and the American cases.  That will lead me into the common issue as to the constitutionality of the provisions in the Migration Act and as to their interpretation, which will be a substantial part of my submissions in the other matters.

I understand that the Court would not wish me to take excessive time dealing with the notice of contention and the subpoena issues.  Obviously those are issues which, in the ordinary course, would not be matters for special leave.  I do need, however, to direct your Honours to those issues with a view to demonstrating the context in which the issue arises because this was not a case, in my submission, which on any view of it made it necessary to go quite as far as the court went. 

Now, first of all, we adhere to supporting the position taken by the court below and I accept that that was a position which we argued for below.  We put the series of propositions of which that was at one end and that one succeeded.  Nevertheless, one is not on this appeal talking about the sort of extreme cases which are used to illustrate the proposition or to illustrate the arguments against the proposition taken by the trial judge.

May I just very quickly start by showing your Honours what the subpoena said.  It is at pages 6 and 7 of the appeal book.  It would of course have been simpler if either at the hearing before the learned magistrate or on appeal to Justice Gray or even before the Full Court if the court had decided the issue on the subpoena grounds, but it did not do so.  Your Honours see it would be hard to imagine a wider or more improper subpoena than this one.  It is, we submit, a subpoena which can only have one purpose, and that is to convert the trial into a type of Royal Commission into the adequacy of conditions at the former detention centre at Woomera.  Your Honours see what is called for is:

documents which came into existence since 1st December 1999 and which:

1.  contain or refer to complaints or concerns about conditions in Woomera;

2.  contain or refer to protests about conditions in Woomera:

3.  contain recommendations or requests for improvement of the conditions in Woomera;

4.  contain reports on:

(a)  protests by detainees at Woomera;

(b)  the physical health of detainees at Woomera;

(c)  the psychological health of detainees at Woomera;

5.  comprise records or reports of incidents or disturbances at Woomera –

are covered by certain procedures.

6.  contain a record or report concerning any of –

and then six people, only one of whom is presently relevant.

7.  contain or refer to the services, facilities, activities and programs designed to meet the individual needs of each of –

those people.

8.  contain or refer to the policy or procedures at Woomera regarding:

(a)  professional visits to detainees;

(b)  social visits to detainees;

(c)  visits to detainees by humanitarian or welfare groups;

9.  contain concerns of or criticisms by:

(a)  United Nations High Commissioner for Refugees;

(b)  Human Rights and Equal Opportunity Commission;

(c)  Amnesty International

regarding the conditions of detention at Woomera.

So it is not a subpoena which is assuming against my submissions that there is some rule that the detention itself becomes unlawful if conditions deteriorate below a certain level.  Assuming there is some such rule, this is not a subpoena designed to flush out that sort of material on its own.  It is designed to go very, very much further, on any view of it.

KIRBY J:   But that would be a matter for argument on the width or over‑width of the subpoena.

MR BENNETT:   Yes, your Honour.

KIRBY J:   It would not be an argument that there is no foundation for it being permitted.  It is a small ‑ ‑ ‑

MR BENNETT:   No, your Honour, but the issue before the Court, the only issue, is whether the subpoena should be set aside.  That is the only issue.

KIRBY J:   Yes, but, as I understand it, your contention was it must be set aside because on no foundation could it give rise to a justiciable question.

MR BENNETT:   Yes, that was one contention we made, your Honour, and that succeeded and that is appealed against.  That is why we say the notice of contention is such that it is sufficiently clear that there is really no issue.  Now, having said that, may I ‑ ‑ ‑

KIRBY J:   Did you at the trial in the first instance put a submission that, if you take out this word and that and if you narrow it down to this or that, then the subpoena would be valid?

MR BENNETT:   No, your Honour.

KIRBY J:   You contended it was wholly invalid because it was misconceived?

MR BENNETT:   And because it was contrary to Small v Commissioner for Railways and that line of cases in its width.  Much was made of the fact that it required the recipient to exercise judgment and matters of that sort.  There was evidence about thousands of hours being spent and the degree of difficulty and there was cross‑examination of the deponent.  That is all in the appeal book and it is all discussed.

KIRBY J:   But in terms of principle, if you were to lose on the point that there is no foundation in law for such an inquiry, then you are knocked out, whereas, if the principle of law is you can have evidence which goes to the question of whether this is “detention within the Act” or that it can go to the question of whether in certain circumstances the common law superimposed on the statute will not permit such detention, then you have a wider inquiry than if it is completely out of court.

MR BENNETT:   Your Honour, if the appeal were to be allowed on that sort of basis, we would submit the appropriate order would also be to uphold the notice of contention so that the Full Court, or a lower court if it were to remit it, could determine whether in the light of what your Honour said the test was any of this material was relevant to that or, if so, which parts of it or how it should be limited.

Now, there was material filed which was said to be filed for the purpose of showing that there was a basis for this.  That material is summarised by his Honour in paragraphs 46 to 69, and I will not take your Honours to it.  It is pages 247 to 254 of the appeal book, and all I want to say about it is that while it is material which is critical of the former detention centre at Woomera, it is material which is very general in its nature and which does not go anywhere near the sort of extremes that are used in illustrating the example that one is allowed to escape from extreme forms of custody.

The issue of whether conditions in a prison can render the imprisonment or detention unlawful, thus justifying an escape or thus justifying habeas corpus, is not a new one.  It has been considered in the House of Lords in a case called R v Deputy Governor of Parkhurst Prison and Ors; Ex parte Hague [1992] 1 AC 58. That case provides the answer which his Honour found in our favour and which we submit is correct. Your Honours see in the speech of Lord Bridge at page 164F, his Lordship poses the question saying:

There remains the question whether an otherwise lawful imprisonment may be rendered unlawful by reason only of the conditions of detention.

This, of course, is talking about penal detention; it is not talking about the present type of detention.  His Lordship deals with it on the next page at 165E where he says:

I sympathise entirely with the view that the person lawfully held in custody – 

that is more general, I suppose – 

who is subjected to intolerable conditions ought not to be left without a remedy against his custodian – 

and we accept that – 

but the proposition that the conditions of detention may render the detention itself unlawful raises formidable difficulties.

And that is the height my friends have to go to.

If the proposition be sound, the corollary must be that when the conditions of detention deteriorate to the point of intolerability, the detainee is entitled immediately to go free.  Its is impossible, I think, to define with any precision what would amount to intolerable conditions for this purpose – 

and he refers to some cases, and says:

The examples given by Ackner LJ of a flooded or gas‑filled cell are so extreme that they do not, with respect, offer much guidance as to where the line should be drawn – 

and that is the type of argument that is put against me here – 

The law is certainly left in a very unsatisfactory state if the legality or otherwise of detaining a person who in law is and remains liable to detention depends on such an imprecise criterion and may vary from time to time as the conditions of his detention change.

The logical solution to the problem, I believe, is that if the conditions of an otherwise lawful detention are truly intolerable – 

and again, it is not limited to penal detention there – 

the law ought to be capable of providing a remedy directly related to those conditions without characterising the fact of the detention itself as unlawful.  I see no real difficulty in saying that the law can provide such a remedy.

He goes on to talk about duty of care and the law of tort, and I can tell your Honours there is a string of cases in Australia - and I can give your Honours the references if your Honours wish them - where prisoners have successfully sued their gaolers for negligently putting them in cells with dangerous prisoners or not taking precautions against self‑injury or giving them dangerous equipment, matters of that sort.

GUMMOW J:   Do you say there could be a duty of care here?

MR BENNETT:   Yes, your Honour, for which we would be liable in tort.  In an extreme case, there may be a criminal offence – cases of assault and matters of that nature.  His Lordship says:

If the custodian negligently allows, or a fortiori, if he deliberately causes, the detainee to suffer in any way in his health he will be in breach of that duty.  But short of anything that could properly be described as a physical injury or an impairment of health, if a person lawfully detained is kept in conditions which cause him for the time being physical pain or a degree of discomfort which can properly be described as intolerable, I believe that could and should be treated as a breach of the custodian’s duty of care for which the law should award damages.

As your Honours will see, when I get to the Migration Act, there is a section requiring that access be given to legal advice for matters concerned with conditions of detention.

Your Honours, that is, as far as we are aware, the most recent English case on the subject.  There is one local case and that is the decision of the New South Wales Court of Appeal, comprising Justices Meagher, Sheller and Powell, in Prisoners A‑XX Inclusive v New South Wales (1995) 38 NSWLR 622. That was a case where there was a claim for habeas corpus which was so framed as to seek relief in the form of the provision of condoms in the prison. The argument was that the danger to their health was so great, if condoms were not provided, that it was an unreasonable form of imprisonment and therefore habeas corpus would lie.

The court rejected that.  At page 627, in the judgment of Justice Sheller, just below B, his Honour dealt with habeas corpus and he said:

In a broad sense, and absent some statutory provision, the writ of habeas corpus ad subjiciendum is available to secure the liberty of a person improperly detained –

The next paragraph:

The appellants argue that the writ will run where the conditions of detention of a prisoner are so harsh or “intolerable” as to be unlawful.  Principally they rely upon Canadian and United States case law –

I will take your Honours to that in due course –

Two sorts of situation have been considered and, in some of the cases, distinguished.

The first is what is called a “prison within a prison”.  That is where a person lawfully in a prison is unlawfully put in solitary confinement, or some form of special sub‑confinement, and seeks release from that special sub‑confinement.  In that sort of case, it has been available, and that involves the phrase “the prisoner’s residual liberty”:

The second involves the subjection of the prisoner to treatment or conditions of imprisonment which may adversely affect the prisoner’s health or threaten the prisoner’s life –

and your Honours will see, the authorities overseas do not support that –

The appellants’ allegations fall into the second class.  They allege that . . . they are at risk of contracting HIV or hepatitis affecting their health and endangering their lives.  Such conditions make the imprisonment unlawful.  The writ of habeas corpus is a remedy.

His Honour then refers to Hague – goes through that and spends three pages on that. Then he refers, at page 630C, to a Canadian decision of Miller v The Queen.  All I need to say about that is, it is useful because it sets out the American authorities, but it is a “prison in a prison” case.  He then goes on to the United States situation and summarises some of those at pages 632 and 633.

But what the American cases do, I will be submitting, is they fall into two categories.  There is the “prison within a prison” cases and there is the conditions cases.  In no conditions case has it been suggested that the detention itself is unlawful.  That has been left open in the United States.  There are some early cases suggesting that it cannot make it unlawful, but more recent cases say it is still open in the Supreme Court.  There are cases where they, under various other constitutional provisions, make orders in relation to conditions in prisons, but of course that is a different sort of situation.

I said, by the way, a few minutes ago that the remedy was the law of tort and possibly the criminal law.  There is another remedy in the ultimate extreme case and that may be the law of necessity.  There is a statement in Hale’s Pleas of the Crown which says that a prisoner may escape from a burning prison for he should not be hanged for refusing to be burnt.  That is the defence of necessity, which is of course a very different situation.

HAYNE J:   That turns on the concept of escape, I would have thought, rather than on the concept of detention.

MR BENNETT:   It does, your Honour.

GLEESON CJ:   And there have been cases, I think, about exactly that in New South Wales in the last few years.  There are cases dealing with the obligation of prisoners who escaped from a fire to come back.

MR BENNETT:   Yes.  The remedy, I suppose, if one is charged with escape, is to plead necessity.  That defence was expressly eschewed here, and that appears at page 254 of the appeal book, paragraph 71, where his Honour says:

There was no suggestion that the defendants were proposing to advance a defence of necessity ‑

and he refers to cases talking about necessity.

Now, I have handed to your Honours the early United States case of People v Whipple.  I have to concede it is not terribly helpful because it is a 1929 decision and the point has been said to be open in the Supreme Court.  I only cite it because it is so directly in point on this issue.  This comes close to some of the examples which Justice Kirby put to me on the special leave application.  Your Honours will see that in the middle of the second page he refers to a case where:

He presented the defense that while in solitary confinement his food consisted of an insufficient quantity of bread and water; that the cell was infested with bugs, worms, and vermin; that the toilet was so out of repair that when it was flushed the water ran out upon the floor; that the cell was without a chair, bed, or other reasonable comforts.  He further claimed that he had been suffering from lung trouble . . . the court, in part, said:  “The quantity of bread furnished appellant was inadequate if the confinement was protracted over many days, but neither this nor the other matters complained of afforded him the slightest justification for escaping from the cell, or attempting to secure his liberty from confinement.”

In this particular case the same conclusion was reached.

KIRBY J:   Would that be decided the same way today?

MR BENNETT:   Yes, your Honour.

KIRBY J:   In a civilised and wealthy country like the United States – just say Guantanamo Bay, that the place is full of vermin and rats and cockroaches crawling over you and bread as your food and a toilet that is broken.  Do you really say that you would not have a justification in law as a human being to endeavour to escape?

MR BENNETT:   No, your Honour.  One has the ability to sue in tort, to seek an injunction.

KIRBY J:   Sue in tort and wait four years before the case comes on.  I mean, really.

MR BENNETT:   Well, your Honour, cases can be heard very quickly where necessary.

KIRBY J:   Well, Guantanamo Bay has not been heard so quickly.  I am just testing whether or not this would still be the law in the United States or speaks for the law in this country.  I would hope we would never have conditions as described there.

MR BENNETT:   One would hope so, your Honour.

McHUGH J:   Well, we have had worse.  I mean, as the Royal Commission into New South Wales prisons showed, at Grafton, the prisoners were met with what was called the “biff reception”.  A new prisoner brought in was just bashed into unconsciousness by guards and would continue to be bashed.

MR BENNETT:   Your Honour, that is a breach of the civil and criminal laws.

McHUGH J:   Of course it is.

MR BENNETT:   There are remedies for that, but it does not justify escape.  It does not make the detention unlawful; it makes what is done unlawful.  That, we fully accept, would be the case.  May I now come to the real issues in the – not the real issues; that is the wrong way of putting it.

KIRBY J:   It is a question of definition.  If you say that if conditions fall below those standards, which are standards of human dignity, are so awful that they do not then respond to the word in an Australian statute, “prison”, “detention”, “punishment”, then a person is not in prison, detention or punishment but in a vermin‑infested cell and therefore entitled to walk away from it, because that is not the lawful punishment for which Australian law provides.  It is definitional.

MR BENNETT:   Your Honour, we would submit, in that case, that is not the way one would characterise it.  One would say, he is lawfully detained but being unlawfully treated.

KIRBY J:   It is you who has cited this case.  It seems a distance from our present case, at least as I understand the present case.

MR BENNETT:   Your Honour, I cited it with some apology, at first, because we discovered it so recently, and, secondly, because ‑ ‑ ‑

KIRBY J:   I have to tell you, I saw prisons in Cambodia which were like this prison here and if I were in such a prison, I would feel duty‑bound, as a human being, to remove myself from it.

MR BENNETT:   If it gets to the stage where the defence of necessity is available, like the burning prison, then, of course, the escape is justified.  But that is not what is alleged here.  What is said here is not that escape is justified, but that the detention is unlawful, and for that reason there was not an escape from lawful detention.

May I turn next to the constitutional arguments which are common to both cases but arise rather more vividly in the other two cases.  The starting point always in these cases is Chu Kheng Lim v Minister (1992) 176 CLR 1. The primary decision in this case was that the former section 54R of the Migration Act was invalid, and it was invalid because it prevented application being made to a court for release from custody even if one was unlawfully detained.

The problem that has arisen is that there is one dictum in the joint judgment of Justices Brennan, Deane and Dawson which has been picked up and relied on against us in these proceedings and others and in the Al Masri Case, which, in a very real sense, this is an appeal from.  “In a very real sense” is the wrong phrase, but, obviously, as was made clear on the removal, the primary purpose of the removals in the second and third cases is to challenge the Full Federal Court decision in Al Masri.

Leave was refused in that case on the basis that it had become moot because of his removal from Australia, but it is the case which relies on the dictum I am about to take your Honours to.  It is a dictum which we assert was not expressly adopted by any of the other Justices, so it is a dictum of three Justices.  It was expressly disavowed by Justice Gaudron in Kruger, and I will take your Honours to that in due course.  It is also inconsistent with what some of the other Justices, including your Honour Justice Gummow, said in Kruger, but I will take your Honours to that.

The passage, however, can, in any event, be explained, if it is read carefully.  It is a passage at page 27.  In discussing Chapter III, their Honours said this, at point 2:

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character.  The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth –

we fully accept that –

That function appertains exclusively to and “could not be excluded from” the judicial power of the Commonwealth –

et cetera.  Thus far, no problem –

In exclusively entrusting to the courts designated by Ch III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form. 

We accept that.  Then they give the example which has caused all the problem:

It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary –

we stress the word “arbitrary”, which enables the passage to be read down –

power to detain citizens –

and that word becomes important later on –

in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt.

That statement on its own is not challenged.  What has caused the problem is the next sentence where they say:

The reason why that is so is that, putting to one side the exceptional cases to which reference is made below – 

they are the cases where one can have imprisonment or detention of one form or another without adjudication of criminal guilt – 

the involuntary detention of a citizen in custody by the State is – 

and, as Mr Clinton said, a lot depends on what the meaning of “is” is in that sentence –

penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

Then there are some references to Blackstone and so on.  They then go on to itemise some exceptions.  It is a fairly short list of exceptions which I propose to add to quite considerably.

GLEESON CJ:   Does it include quarantine?

MR BENNETT:   Yes, your Honour.  Their list includes bail pending trial, the “powers of the Parliament to punish for contempt”, “military tribunals to punish for breach of military discipline” and “Involuntary detention in cases of mental illness or infectious disease”.  Now, that is their Honours’ list.  Justice Gaudron points out that it is a very diverse list which has no common characteristic, and I will come to her judgment in a moment.  But one can add to that list sequestration of a jury in certain cases while it has retired to consider its verdict, or longer in some murder cases under some systems; compulsory conscription of people into the Army where, of course, they are imprisoned quite independently of military offences; police questioning, arrest for a short period for the purpose of questioning.  That was discussed in a case in the Supreme Court of the Australian Capital Territory called R v McKay (1998) 135 ACTR 29 – I will not take your Honours to it.

One could imagine a law having a form of short‑term civil conscription in cases of necessity.  For example, if a river was about to overflow its banks in a Territory and there were power under a territorial law to conscript citizens of that town to put sandbags by the river and be held for that purpose for a short period.  There are all sorts of consensual detentions.  There are press lockups; I suppose the sending of a child to boarding school with the consent of its parents; the Defence Forces where one goes voluntarily into them.  An example of a law under a head of Commonwealth power where there would be a clearly legitimate purpose might be a law saying, in days where these things were less automatic than they are now, that a lighthouse keeper could not leave his or her lighthouse at night while it was on. 

There are all sorts of situations one could imagine, and one’s imagination can run wild, if one wishes, where some form of detention may be applied by the law without the adjudication of criminal guilt for a purpose within section 51.  May I show your Honours what Justice Gaudron said about the passage that I criticise.  Her Honour agreed with the other aspects of the joint judgment.  Her judgment commences at page 53 and she says:

Subject to two matters with which I shall deal, I am in general agreement with their Honours’ –

At the top of page 55, her Honour says this:

Usually, people are detained in custody in consequence of an exercise of judicial power resulting in a determination that they have breached some law which requires or authorizes their imprisonment.  But, as is well known, there are other situations in which persons may lawfully be held in custody.  Detention pursuant to mental health legislation comes readily to mind, as does imprisonment on remand pending trial.

Detention in custody in circumstances not involving some breach of the criminal law and not coming within well‑accepted categories of the kind to which Brennan, Deane and Dawson JJ refer is offensive to ordinary notions of what is involved in a just society.  But I am not presently persuaded that legislation authorizing detention in circumstances involving no breach of the criminal law and travelling beyond presently accepted categories is necessarily and inevitably offensive to Ch. III.  That does not mean that the power conferred by s. 51(xix) permits of laws for the detention of aliens merely because they are aliens.

She goes on to explain why.  Then, in Kruger’s Case (1997) 190 CLR 1, she develops that and describes that as expressing a “tentative” conclusion and comes to a firm conclusion in that direction. At page 107, she puts, at the very bottom of the page, the argument which she goes on to reject:

The argument based on Ch III starts with the proposition that, subject to certain exceptions which do not include powers of the kind here in issue, the power to deprive people of their liberty is judicial power.  It is hen said that, as the Ordinance was made pursuant to a law of the Commonwealth, its attempt to confer power on the Chief Protector or his delegate to deprive Aboriginal people of their liberty was an attempt to confer on them the judicial power –

et cetera.  She then rebuts that, commencing at the bottom of page 109.  Your Honours see, she refers, in the middle of that page, to the passage in Chu and then says, at the bottom of the page:

Arrest and custody pursuant to warrant pending trial, detention by reason of mental illness or infectious disease, and punishment for contempt of Parliament and for breach of military discipline were recognised by Brennan, Deane and Dawson JJ –

She calls it Lim, but in Chu –

as exceptions to the immunity which their Honours would there acknowledge.  And of course, it was held in Lim that aliens might lawfully be detained in custody for the purposes of expulsion and deportation and, also, for the purposes of the receipt, investigation and determination of applications for admission to this country.

At one level, the existence of so many acknowledged exceptions to the immunity for which the plaintiffs contend and the fact that those exceptions serve so many different purposes tell against the implication of a constitutional rule that involuntary detention can only result from a court order.  And that is so even if the supposed rule is one that is subject to exceptions.  Of greater significance, however, is the consideration that it cannot be said that the power to authorise detention in custody is exclusively judicial except for clear exceptions.  I say clear exceptions because it is difficult to assert exclusivity except within a defined area and, if the area is to be defined by reference to exceptions, the exceptions should be clear or should fall within precise and confined categories.

The exceptions recognised in:

Chu, and, a fortiori, the ones to which I refer –

are neither clear nor within precise and confined categories.  For example, the exceptions with respect to mental illness and infectious disease point in favour of broader exceptions relating, respectively, to the detention of people in custody for their own welfare and for the safety or welfare of the community.  Similarly, it would seem that, if there is an exception in war time, it, too, is an exception which relates to the safety or welfare of the community.

and that would apply, of course, to conscription in times of peace, no doubt – 

Once exceptions are expressed in terms involving the welfare of the individual or that of the community, it is not possible to say that they are clear or fall within precise and confined categories.  More to the point, it is not possible to say that, subject to clear exceptions, the power to authorise detention in custody is necessarily and exclusively judicial power.  Accordingly, I adhere to the view that I tentatively expressed in [Chu], namely, that a law authorising detention in custody is not, of itself, offensive to Ch III.

HAYNE J:   What is the proposition you are making, Mr Solicitor?

MR BENNETT:   That, your Honour, while there is a principle, which we fully accept, that the function of adjudging and punishing criminal guilt is exclusively a Chapter III function and cannot be done by the Executive, one cannot assume that a power to detain is necessarily in that category unless one can find some other indicia that that is what is being done.  There is not a general rule in terms of the paragraph I read from Chu.

HAYNE J:   Did not ChuKheng Lim establish that there are at least some circumstances in which detention for what loosely and inaccurately might be called immigration purposes can be validly enacted?

MR BENNETT:   It did, your Honour, but what we are submitting – it did in terms on which my learned friends seized, where the words “to the extent that” and so on was used, but it was done in that judgment on the basis of this starting proposition, that all detention is penal unless it is within one of these special categories.  We submit there is no such principle.  One has to start by saying, “Is there an exercise of judicial power?”  One does not answer that by saying, “Well, it results in detention of an individual, therefore it is”, because not all detention is penal.

HAYNE J:   But the history of the Immigration Act, if you go back behind Chu Kheng Lim time, involved the application of judicial power to effect detention in connection with deportation:  see, in particular, the discussion in Chu Shao Hung v The Queen 87 CLR 575, not I think referred to by the parties. There section 5(6) of the Immigration Act deemed of an offence to be a prohibited immigrant in circumstances allied with the application of the dictation test and permitted sentencing for the offence of being a prohibited immigrant for up to six months and then had this curious addition at the bottom of the section that referred to the executive power to deport.

MR BENNETT:   Your Honour, I will come to the Migration Act and demonstrate that nothing could be further than its present construction, which has come a long way since those days.  It is the antithesis of doing that.

KIRBY J:   Well, we know that that is your assertion, but at the moment the Court has to test your proposition that you cannot have a case where there is effective “punishment” within the Executive Government which would be inimical to the constitutional arrangements of which the joint judgment in Chu spoke.  It just seems to me that there is a point at which if the Executive Government said, “Well, we’ve got a big problem with lawless youth on the streets”, as the government of Brazil have said, or, “We have got a very big problem with drug addicts.  We’re going to round them up and just lock them up”. 

Now, that surely would run into the fundamental postulates of our organisation of society under the Constitution, and that would not be permissible even though perhaps you would say, “Well, we’re doing it for their own benefit. We’re going to give them education. It is not punishment. It is the furthest thing from our mind.” But there would be a point, I would think, where what the joint judgment in Chu said would be upheld by this Court. The present case is not, maybe, that sort of case – I do not know – but the proposition that you can just, within the executive branch, do what you like, even within power, does not seem to me to conform to the division of powers under our Constitution, including the States.

MR BENNETT:   That would involve a characterisation of those laws and there might well be difficulty in characterising those laws as anything other than penal, when one looks at the purpose of the laws.  But that is a long way from this case.

GUMMOW J:   But you come up with the notion of “unlawful non‑citizen”, do you not?

MR BENNETT:   Yes, your Honour.

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

MR BENNETT:   Your Honour, none.  It is a word used in a definition provision, it is simply a defined phrase.  It is not a phrase which necessarily involves the commission of a criminal offence.

GUMMOW J:   If you begin at 87 CLR, with the Act as it stood in those days, you might come to the view that what has happened is that the element of unlawfulness is still there, but does not have attached to it a specific criminal offence; it has attached to it instead some form of detention, and the substance of it is still the same.

MR BENNETT:   Your Honour, my understanding is that if a person arrives in Australia without any right to arrive in Australia, without a visa and without any of the other notices ‑ ‑ ‑

KIRBY J:   This is in the migration zone you are talking about?

MR BENNETT:   Yes, enters the migration zone – that person has not thereby committed an offence.  The person is an unlawful non‑citizen, as in the meaning of that phrase in the Migration Act, but that is simply a defined phrase.  Your Honours see, in section 5:

unlawful non‑citizen has the meaning given it by section 14.

Section 14:

A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.

And that is defined in section 13:

A non‑citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen.

So it is defined independently of the commission of an offence.

HAYNE J:   Is it simply a clumsy way of saying what used to be said by the words “prohibited immigrant”?

MR BENNETT:   Yes, your Honour.  One changes one’s euphemisms.

HAYNE J:   And follows them through a chain of 20 definitions, yes.

MR BENNETT:   Yes.  The important point about this definition is that it is a general definition.  The purposes of the Act are set out in section 4, where it says:

(1)  The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.

And there are various matters to advance that object:

(2)  To advance its object, this Act provides for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain.

so an unlawful non‑citizen is someone who is unlawful in the sense that he or she does not have that right –

(3)  To advance its object, this Act requires persons, whether citizens or non‑citizens, entering Australia to identify themselves –

et cetera –

(4)  To advance its object, this Act provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted by this Act.

Then there are elaborate sections dealing with visas and so on.  The sections we are concerned with here – in section 189:

(1)  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.

Then section 196, where:

(1)  An unlawful non‑citizen detained under section 189 must be kept in immigration detention until he or she is:

(a)  removed from Australia under section 198 or 199; or
(b)  deported under section 200 –

that is criminal deportation, or –

(c)  granted a visa.

McHUGH J:   Are there not two questions involved in these cases?  The first question is, what does the Act authorise?  That takes you to what is meant by “detain” and “immigration detention”, terms – I think they are both defined in the Act.  The second question is, do they permit of a scope that would contravene Chapter III of the Constitution?

MR BENNETT:   Yes, your Honour, and that is why I started with that passage in Chu, because the basis on which it said it did starts with that passage.

McHUGH J:   To be invalid, we have to be talking about a law of the Commonwealth.

MR BENNETT:   And it has to be a law which gives to the Executive Government the judicial power of the Commonwealth.

McHUGH J:   The Act gives a power to detain which is simply a restraint on liberty, in its ordinary meaning.

MR BENNETT:   Yes.

McHUGH J:   What is done by individuals in carrying out that restraint on liberty seems to me to be a different thing from what is authorised by the law permitting somebody to be detained.  One can be detained even though one’s detention is being abused.

MR BENNETT:   Yes, of course.  That was the argument about section 54R, and that is dealt with by section 196(2) and (3), because the first says that:

To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non‑citizen.

So if you should not have been detained because you are a citizen or a lawful non‑citizen, a non‑citizen with a visa, the section does not prevent your release, and then ‑ ‑ ‑

McHUGH J:   The Act authorises you to be detained and you must be kept in immigration detention, and that is a defined term.  Paragraph (b) seems to be the relevant one here:

being held by, or on behalf of, an officer:

(i)  in a detention centre established under this Act ‑ ‑ ‑

MR BENNETT:   Yes.

GUMMOW J:   Then 197A brings in the criminal law further down the chain by saying you must not escape from this detention, whereas under the old system it was at the beginning.

MR BENNETT:   I am sorry, your Honour?

GUMMOW J:   Under the old system, the criminal offence was at the beginning, section 7, the prohibition bit upon entry.  That was the crime.

MR BENNETT:   Yes, that is so, your Honour.

GUMMOW J:   What happens now is the power is given to the Executive to detain and then it is made a criminal offence to escape from that detention.

MR BENNETT:   But that is merely ancillary to the power to detain.  One could have such a ‑ ‑ ‑

GUMMOW J:   …..ancillary.

MR BENNETT:   One could have such a provision in relation to a quarantine establishment or a person on bail or a sequestered jury.  It is merely an ancillary provision.

KIRBY J:   What if an Act said the Executive Government can restrain and detain indefinitely any person who, in the opinion of the Attorney‑General, is a terrorist.  Now, would that be a valid law?

MR BENNETT:   Your Honour, one would have to look at the purpose of the law ‑ ‑ ‑

KIRBY J:   That sounds to run into the Communist Party Case.  That would appear to be a grasp by the Executive Government for the judicial power.  That is essentially what Justice Brennan, Justice Deane and Justice Dawson were saying, I think, and you cannot do that.

MR BENNETT:   Here, your Honour, the decision is, in effect, no decision, because the question whether a person is an unlawful non‑citizen is not something difficult to work out.  It is something which is normally pretty obvious and it can be demonstrated fairly easily.

KIRBY J:   I think it turned out to be difficult in Mr Taylor’s case and ‑ ‑ ‑

MR BENNETT:   Yes, and leave aside Mr Taylor’s case.  That is on its way back to your Honours.

McHUGH J:   What the Act does in terms is authorise detention in, among other places, a detention centre.  So the question is, first of all, are these people being detained in a detention centre?  Secondly, the question is, for what purpose?  And that raises the Chapter III question.

MR BENNETT:   And that Chapter III question is one which, of course, this Court can determine and is determining today.

McHUGH J:   Yes.

MR BENNETT:   But it would be a bootstraps argument to say that the detention is unlawful because it involves a Chapter III question merely because a challenge to it under the Constitution – a challenge which might otherwise fail – involves Chapter III.

KIRBY J:   But I think, as I understand it, the respondent wishes to raise a case that by reason – I think it is the appellant – that by reason of the conditions in which they are kept, this is not detention within the statute and, moreover, it is unconstitutional punishment, which is the province of the judiciary.  That is the way they want to have this material in order to lay a foundation of fact for those contentions, and, so far, they have not been allowed to get even the material in.  That is the ultimate issue which we have to consider.

MR BENNETT:   Yes.  Your Honour, I am more concerned at the moment with the other two cases than with that one.

GLEESON CJ:   I thought you had passed away from Behrooz ‑ ‑ ‑

MR BENNETT:   When I was in the common area, your Honour, in the common area which ‑ ‑ ‑

GLEESON CJ:   On that matter of Behrooz, the principles relating to necessity as justification for escape from detention were considered by the Court of Criminal Appeal of New South Wales in a case of Rogers (1996) 86 A Crim R 542.

McHUGH J:   It came up here.

GLEESON CJ:   No, it is the same Mr Rogers, but it is a different case, I think.

McHUGH J:   I see.

GLEESON CJ:   Mr Rogers had a number of goes.  The same issue was dealt with by the Supreme Court of Victoria in a case of Loughnan [1981] VR 443.

MR BENNETT:   I am indebted to your Honour.  May I just return to the language of section 196.  I had not yet read subsection (3), which also begins with the words “To avoid doubt”:

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

So it is the provision itself which provides the authorisation.  Now, the answer to your Honour Justice McHugh’s question is this.  If there were some invalidity in the provision, that Chapter III issue could, of course, be determined, and subsection (3) would not prevent the court making an order.  That is because, in that situation, subsection (1) would not be a valid provision. 

The proposition I am putting at the moment is that certainly, as a matter of construction, absent that sort of invalidity, the sort of invalidity which infected section 54R just does not apply here, because there is no suggestion of that jurisdiction of the court being ousted. 

Now, I would direct your Honours’ attention to the prepositions.  Subsection (1) uses the word “until”.  Now of course “until” can involve a long wait.  It can involve something continuing forever.  We are all familiar with the expression “until hell freezes over”.  That is a use of the word “until” meaning, in effect, forever, because it refers to an event which will never occur.  The events referred to in subsection (1) in the normal course of events will occur – one or other will occur. 

The other point to notice about them is that they are events which you can never say, in any case, “These events will never occur”.  There are, of course, difficulties in removing people to particular countries.  Often it takes years of diplomatic negotiation before a country is prepared to accept someone.

KIRBY J:   Do you say that if the Executive Government put an unlawful alien in a detention centre and just threw away the key, that would be lawful?

MR BENNETT:   Your Honour, that would not be for the permitted statutory purpose.

KIRBY J:   I realise that, but I am testing what is permissible detention under our Constitution.

MR BENNETT:   No, that would not be, your Honour.

KIRBY J:   Why not?

MR BENNETT:   Because it would not have the purpose.  But one can have the purpose, even though it may take some time to achieve.  The point I make is that it is very hard to imagine a case where the purpose of removal or deportation is one that can never occur.  There is always, particularly in the sort of country which creates difficulties in this area, the possibility of a regime change, a change of attitude.  There is always the possibility that a third country will take a more altruistic view.  There is always going to be some possibility.

Now, of course, there are cases, and your Honours see two of them here, and there was another in Al Masri, where it takes some time.  Al Masri was an example of a case where – Mr Al Masri was a Palestinian.  The problem was not getting the area covered by the Palestinian Authority to accept him, the problem was getting him there.  Each of Israel, Egypt, Jordan and Syria, I think, had refused permission for transit across their territory.  That was what was delaying it.  In the end, Israel was persuaded to recant and to permit him to be transported across its territory and, as a result, his removal was effected.

It is a good example, because it is one which was effected some days after the trial judge had said it was not something which was reasonably likely to occur in the reasonably foreseeable future.  That simply illustrates the “never say never” proposition.  I note that in subsection (3) the word used is “unless”, which, rather more than “until”, admits the possibility that the event may be a very long way off.

We submit, as a matter of construction, it is quite clear what the Act is seeking to do.  The statutory purpose is made clear.  Chu Kheng Lim establishes that that statutory purpose is the purpose to which one looks when one examines whether there is a penal purpose or not.  The other aspect, which I put in support of Justice Gaudron’s position, is that if one applies what was said in the passage we challenge to other forms of criminal punishment, one would obtain quite bizarre results.  One could not, for example, apply it to fines.

A standard method of criminal punishment is the imposition of a fine, but that does not mean that a law which results in a person paying a sum of money is necessarily a penal law, or is a penal law in the absence of some other justification.  It is simply not the default class.  A law requiring a person to pay a sum of money – it may be an acquisition of property under 51(xxxi) and that may be the residual class.  It may be something analogous to a forfeiture.  It may be a fine.  It may be an adjustment of rights between people, in one of a number of contexts.  But one does not say, “Oh, because this is something criminal courts do, unless you can fit it within certain exceptions, it is penal to require someone to pay money”.

One has to characterise it overall by reference to the Act.  One could make the same sort of arguments in relation to corporal or capital punishment or other forms of punishment that are no longer used.  There is no magic about imprisonment.  It is something which the common law gives a remedy for in habeas corpus and in the tort of unlawful imprisonment, so there are remedies in relation to it.  It can, for the reasons I have given, be lawfully applied in a range of cases having nothing at all to do with penality or the imposition of criminal consequences.

Having spent some time saying what the test is not, may I come to what the test is.  Your Honours, this is dealt with in our submissions in paragraphs 14 and following.  It is dealt with extensively in Chu Kheng Lim and in Kruger.  Perhaps the clearest exposition is that of your Honour Justice Gummow in Kruger where, at page 161 ‑ ‑ ‑

KIRBY J:   Could you remind me how it came up in Kruger.

MR BENNETT:   Yes.  Your Honour, it was argued that the power of the protector under Territory legislation concerned with the welfare of Aboriginal people to take, and in effect deprive of liberty, children was penal.  The argument put was, “We don’t accept today that it had a welfare purpose and therefore it was penal”, and the Court held that it had a welfare purpose at the time, although a different view of welfare from that we would of course take today.  At the time of course that was the purpose it was said to have.

In the course of dealing with it, Justices Gaudron and Gummow dealt with the major premise as to whether one could look at a law like this and say, if you take away the other purpose, what remains is penal.  That is not the way you do it.  The way you do it is you look at what the purpose is.  Your Honours see that most clearly – I have taken your Honours to Justice Gaudron.  Justice Gummow dealt with it at 161 to 162.  At 161 your Honour said:

The plaintiffs contend that the impugned provisions of the 1918 Ordinance conferred upon the Chief Protector powers which, consistently with the Constitution, in the Territory might be conferred only upon courts exercising the judicial power of the Commonwealth –

so this also involved the vexed questions under section 122 and judicial power.

They further submit that these laws purported to confer judicial power other than on a court established under a law of the Commonwealth.  The proposition here is that, even if the plaintiffs are wrong in their submission that Ch III applies in the Territory, nevertheless what might be called the judicial power of the Territory might be vested only in a body which answers the description of a court, and thus not in the Chief Protector.  A power of detention which is punitive in character and not consequent upon adjudgment of criminal guilt by a court cannot be conferred upon the Executive by a law of the Commonwealth.

That proposition of course is the one I accepted.

The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non‑punitive objective.  The categories of non‑punitive, involuntary detention are not closed.

So one does not start by asking, “Is it a good thing?  Do we agree with the law?”  There is no doubt of course that no one in the Court then would have regarded this law as an admirable exercise in welfare, but that was not the test.

The powers of the Chief Protector to take persons into custody and care under the 1918 Ordinance were, whilst that law was in force, and are now, reasonably capable of being seen as necessary for a legitimate non‑punitive purpose (namely the welfare and protection of those persons) rather than the attainment of any punitive objective.

Then your Honour refers to various matters in the statute which make that ‑ ‑ ‑

KIRBY J:   That rather suggests that there is a characterisation and that a point will be reached where you will say that was detain and that is punishment unless you can get access to the facts.

MR BENNETT:   Yes, your Honour, I accept that.  One has to look at the law.  If the law said ‑ ‑ ‑

KIRBY J:   But you do not just look at the law surely.  You look at how it operates on the ground.

MR BENNETT:   If the law had said, “Whereas people of a particular race are intrinsically evil and should be detained or should be punished for the things they can be presumed to have done”, and then one had this Act, that clearly would be penal.  But the Act purported to suggest that it was being done for a welfare purpose even though now ‑ ‑ ‑

KIRBY J:   But you just said a moment ago we live in an age of aphorisms in the law and the question cannot just finish with the text of the statute.  Courts have to look at what actually happens, it would seem to me.

MR BENNETT:   No, not what actually happens, your Honour ‑ ‑ ‑

KIRBY J:   You will get borderline cases.

MR BENNETT:   What actually happens cannot make any difference because the statute lays down a simple and absolute rule which either stands or falls.  What actually happens – the purpose of the individual who takes the person in custody is irrelevant in the same way as ‑ ‑ ‑

McHUGH J:   What happens in custody cannot affect the lawfulness of the detention, on the argument against you.

MR BENNETT:   Precisely.

McHUGH J:   If somebody is in prison for seven years, the imprisonment does not become unlawful.  The order of imprisonment does not become unlawful because the person is bashed every day by gaolers.

MR BENNETT:   Precisely, your Honour.

KIRBY J:   I would keep an open mind on that.  A point would be reached where, if there is violence, that is not punishment; that is not the lawful punishment that a court of law in Australia has provided.

MR BENNETT:   Your Honour, I do not suggest it is, but one separates that from the fact of detention.  The fact of detention is lawful.  The beating in the detention is unlawful, is both a crime and a tort and can be dealt with appropriately, if necessary by injunctions, by damages, by prosecution of the gaoler, and no doubt other measures.  But one does not say the detention, or in that case the imprisonment, is unlawful for that reason.  That is the step which needs to be taken in this case.

KIRBY J:   I am sure that there would have been German laws providing for the detention of people and they would have had very nice German words and nouns in their law but they would not, under our conception of our Constitution, be lawful. They would not be punishment. People can escape from them and we would say they are not detention, we would say they are not valid.

MR BENNETT:   But that is our system judging another system.  One might get a different answer if one posited the same question before a German court at the time.

KIRBY J:   I am sure you would have a different answer from a German court in 1937.

MR BENNETT:   Yes, no doubt.

KIRBY J:   The point is we have to learn from these things.

MR BENNETT:   Learning from these things does not require us to say that something is what it is not.

KIRBY J:   That means we cannot call detention that which is not detention, which is the temporary deprivation of a person’s liberty for a limited purpose but which turns out to be highly punitive and undignified, robbing them of their human dignity, if that can be proved.

MR BENNETT:   Your Honour puts to me an ambiguous phrase but if the conduct were to amount to tortious conduct, there is a remedy.  If it were to amount to criminal conduct, there is a remedy.  If it were to be at the level of the burning prison, then one has the defence of necessity.  It was suggested in one case I think that a defence of necessity might be available in the situation where the prisoner is standing at the wall and some dangerous prisoners who are armed with knives and moving in on him and his only escape is to go over the wall, one might have a defence of necessity there, but that would not make his detention unlawful.

The defence is not the defence relied on here and it would go to the escape not to the validity of the detention, it would go to the justifiability of the escape.  I stress that here it is not put that the escape was justifiable.  What this is said to be relevant to is an argument that the whole detention is unlawful and the detention is required by the provisions of the Act to which I have referred.  I referred to Justice Gummow putting the test at page 162 as:

reasonably capable of being seen as necessary for a legitimate non‑punitive objective.

That is a test which we respectfully adopt.

McHUGH J:   Ultimately, you have to go so far as to contend that, in a particular case, you may be able to keep a person in immigration detention for the rest of that person’s life, so long as you have the purpose of preventing the person moving into the Australian community and for the purpose of deporting the person.

MR BENNETT:   Yes, that is one of the legitimate purposes and the purpose of deporting which, as I say, is a purpose as to which, by necessity, one can never say never.  There are, of course, various residual discretions available in the extreme cases.  The Minister has power under section 417 to override the Refugee Review Tribunal’s decision to refuse a protection visa in certain types of cases.

There are other things which can occur.  We are not talking in reality about that – that is the hard case which is used to test my argument.  And, of course, also, when you say a person’s life, that may be a longer or shorter period.

GUMMOW J:   Now, in Ms O’Connor’s appeal, that is the matter that comes to us from Justice von Doussa I think.  Was there not a finding by his Honour that in respect of the person in question there was no real likelihood of prospective removal in the reasonably foreseeable future? 

MR BENNETT:   Yes, your Honour.

GUMMOW J:   She says that is a finding of fact; it is not challenged.

MR BENNETT:   Yes, that is the test that was applied in Al Masri.  Your Honour, we submit that test fails to take into account, as Al Masri itself demonstrates, the difficulties and the fact that things can change.

GUMMOW J:   What is the ground between that and the example Justice McHugh is putting to you of a construction that says you can keep them there forever? 

MR BENNETT:   The example is that one has the purpose.  Notwithstanding that finding ‑ ‑ ‑

GUMMOW J:   Well, you might have a hope, I suppose.

MR BENNETT:   Your Honour, it can be a purpose.  May I just put this, your Honour.  One of the real problems in these cases is this.  At the end of the day, as in Al Masri, a window may open.  That may be a very small window in time.  All sorts of arrangements have to be made.  The one thing one does not want to have to do at that point is find that the person is not immediately available and the person has put down ties which are not easily severed, or that the person cannot be found, or that there are other practical problems.  There are real reasons why, to use the words of the test, it is reasonably capable as being seen as necessary for a legitimate non‑punitive objective, namely, that when and if one does change the mind of the foreign country in relation to the person, or obtain an agreement in relation ‑ ‑ ‑

GUMMOW J:   This man’s state is Palestinian, is it not?

MR BENNETT:   Well, that is the clearest example, your Honour.

GUMMOW J:   So there is no country which has an international obligation to accept him?

MR BENNETT:   No, your Honour.

GUMMOW J:   Because he has no nationality.

MR BENNETT:   That is the case with anyone who is stateless, your Honour, yes.

GUMMOW J:   Yes, that is right.

MR BENNETT:   In relation to Palestinians, of course, in one sense, there ‑ ‑ ‑

GUMMOW J:   He was born in Kuwait, this man, I think.

MR BENNETT:   Yes.  There is an example the other way, because one does not know when and if a state will be formed and what, if there is, its laws will be in relation to the return of persons in this category.  Now, one does not know that, but it is ‑ ‑ ‑

GUMMOW J:   But at the moment, by the Israeli laws, which is what governs, I suppose, he is denied a right of return . . . visitor.

MR BENNETT:   I am not sure of the details of that, your Honour. 

GUMMOW J:   So we can practically treat him as a stateless person.  How does this section work then?

MR BENNETT:   The test, we submit, is for all practical purposes and possible for all time.  Putting it a bit differently, is there still a genuine purpose to effect his removal?

GUMMOW J:   But what does the purpose become?

MR BENNETT:   The purpose become?  Your Honour, one can have a purpose of doing something even though it is likely to take some time ‑ ‑ ‑

GUMMOW J:   By creating some fresh international obligation in some third state, whereby they agree to take this person? 

MR BENNETT:   That is one of the possibilities, your Honour.  Another is persuading – I am assuming that the way your Honour puts it to me is correct, and I am not certain whether it is or it is not, but assuming it is; there are at least a number of possibilities.  There is the possibility of persuading Israel.  There is the possibility of persuading Palestine, when it becomes a state.  There is the possibility of persuading Kuwait.  There is the possibility of persuading a fourth state.  The onus remains on the Commonwealth to use its best endeavours to effectuate the removal as soon as possible, and that onus continues.

HAYNE J:   Well, what is the relevant purpose?  Is the relevant purpose removal simpliciter?  Is the relevant purpose removal to an identified place?

MR BENNETT:   No, your Honour, the first.

HAYNE J:   What does the finding of fact made by Justice von Doussa say, if anything, about that purpose?

MR BENNETT:   I am just finding the passage, your Honour.

McHUGH J:   It is at page 9, is it not, of A254?

MR BENNETT:   Yes, line 45 and it is paragraph 9 on page 10:

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.

That puts it more narrowly than a test which says, “Is it within the class of case in which there is a purpose of removal?”  That purpose is imposed by a statute by section 198(2), he having made a request, “An officer must remove as soon as reasonably practicable”.  So we have that obligation.  Mandamus can be brought to enforce that obligation.

GUMMOW J:   How, other than by the Court exploring the conduct of foreign affairs, at quite an intimate level between ‑ ‑ ‑

MR BENNETT:   Yes.  Your Honour, we would say there is a difficulty with a court exploring the extent of the likelihood of removal to particular places.  That involves problems under the test which his Honour applied because that involves looking at international politics, politics of foreign countries and the likelihood of things happening there and so on, as in the example I gave to the Court a few moments ago.  But the question of whether we are taking all the reasonable steps to “remove as soon as reasonably practicable” is a narrower inquiry which, while it does involve a degree of inquiry into matters courts do not normally inquire into, is, nevertheless, an inquiry which can be made with less trespassing into the foreign affairs of Australia than the first type of inquiry. 

The other section of the Migration Act of which I wish to remind your Honours was section 256.  I only refer to that because ‑ ‑ ‑

KIRBY J:   Is that the “best endeavours” section?

MR BENNETT:   No, that is the section about access to lawyers, your Honour.

KIRBY J:   Did you find the “best endeavours” section?

MR BENNETT:   Yes, that is section 198(2), your Honour.

KIRBY J:   Thank you.

MR BENNETT:   It is the last words of 256, that we have to make:

all reasonable facilities [available] for . . . obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

That would, of course, facilitate a claim in tort.  There are a few other minor matters I need to cover.  There are some recent amendments to the Migration Act referred to in some of the submissions.  All I want to say about those is that they are concerned with a different issue, which is the issue of release on interlocutory process where there is doubt about whether a person falls within section 196 or not. 

They have no relevance, we would submit, to this case, and, in any event, even if they did, one cannot construe a statute by reference to subsequent amendments to it, especially if those amendments are inserted for more abundant caution.  The particular amendments were put in there because of a case called VFAD.

The other minor matter, while I am in that area, is that I should refer to the argument that is raised by the Human Rights and Equal Opportunity Commission in relation to reading down the Act by reference to various United Nations Conventions.  The point we make about that is that this is a case where there is no ambiguity, and even the leading case which puts the proposition at its highest against us – the case of Polites ‑ ‑ ‑

KIRBY J:   You accept that, if there is ambiguity, it can be used to construe the Act to ensure that Australia remains within its international obligations?

MR BENNETT:   Your Honour, there are cases where that has been done.

KIRBY J:   You accept those principles?

MR BENNETT:   I am sorry, your Honour?

KIRBY J:   Do you accept those principles on behalf of your client?

MR BENNETT:   Your Honour, that is a large question, because ‑ ‑ ‑

KIRBY J:   It is raised by the issues before the Court.

MR BENNETT:   Yes.  Your Honour, might I answer that question in the morning?  What the cases recognise, and Polites itself applied, is that one cannot apply any such principle where the legislation is unambiguous, and there is no ambiguity in section 196.  Indeed, it goes out of its way to say, in subsection (3) – and the phrase used was “To avoid doubt”.  In my respectful submission, the proposition is clear.

There is also reliance against us on three foreign cases – I will not take your Honours to them at the moment – Hardial Singh in England, Tan in Hong Kong and Zadvydas in the United States Supreme Court.  The central point we make in relation to all three of those cases, which dealt with long term detention pending deportation or removal, is that in each case there was a discretionary power to detain, and in each case the court interfered in relation to the exercise of discretionary power, as an administrative matter.  So we would submit they simply have no relevance and are of no assistance in the present case.  If they are put for any further purpose, I will deal with it in reply.

Now, your Honours, to summarise, we would submit that the test is that laid down by Justice Gummow in Kruger, and I should add that that test is one which is adopted in a number of the judgments in Chu.  Those are set out in our submissions in paragraph 16 and following, and we have set out a number of other references in Chu as to where judges have made that clear.  The question then is, is it reasonably capable of being seen as necessary for a legitimate purpose? 

It is a legitimate purpose for the Executive to determine which aliens are allowed to enter Australia and for how long and whether they will be returned to the places from which they have come, and to prevent them, in the meantime, becoming members of the Australian community.  Now, that may be a purpose with which one agrees or disagrees.  It may be a purpose which one regards as too wide, or as not wide enough, but, whatever one says about it, it is, in our respectful submission, a purpose which is demonstrated by the Migration Act and is clearly within the aliens power.  That being so, questions of penality do not arise.

It is not a question of balancing.  There is no balancing exercise here.  Either this is an exercise of judicial power or it is not, and there is no other challenge made to it, no other constitutional challenge.  The sole challenge is that, largely based on that sentence in the joint judgment in Chu, because it involves imprisonment or involves imprisonment which is seen to be some say wider than it should be, it is penal.  In my respectful submission, a reading of the Migration Act and an identification of the constitutional purpose demonstrates that it falls within the test of being reasonably capable of being seen as necessary.

CALLINAN J:   Mr Solicitor, can I ask you this question – and I do not suggest that it is any way conclusive of the case – but these appellants have had their visa applications refused, is that correct?  They must have.

MR BENNETT:   Yes, your Honour.

CALLINAN J:   What, if any, protection obligations does Australia owe to them under the Convention?  What is their status?

MR BENNETT:   Your Honour, that is not a matter with which this Court is concerned.

CALLINAN J:   I am not suggesting it would conclude the issue in any way at all, but at the moment I am not absolutely satisfied that it is necessarily irrelevant.  If in fact they are not in any sense refugees that is conclusively determined, not refugees under the Convention, then possibly none of the Convention provisions at all apply to them.

KIRBY J:   Surely you cannot just lock them forever because they do not happen to meet the requirements of the Convention.

CALLINAN J:   I am not suggesting that.  I am not suggesting that it necessarily concludes the matter by any means, but I am not satisfied that it is irrelevant.  It may be that if they do not have any status as refugees then they may be dealt with in a different way entirely from the way in which the Convention requires them to be dealt with.

MR BENNETT:   Your Honour, I will have the relevant provisions turned up overnight and be in a position to take your Honour to them in the morning.

McHUGH J:   Mr Solicitor, it is one thing to say that somebody who is an alien who arrives in the country without the country’s consent can be detained until that person can be removed, no matter how long it takes.  But what about the case of Al Khafaji, where his claim for refugee status was refused only because the delegate concluded that he had the right to re‑enter and reside in Syria and it now turns out that you cannot get him into Syria.  Why is that not a special case that requires some special justification?  Absent the finding that he had a right to re‑enter and reside in Syria, he would have been given a protection visa.  Now it turns out that for the foreseeable future he cannot be returned to Syria, can you justifiably detain him?

MR BENNETT:   The question, your Honour, is whether – and I do not know the answer to this question – he has any right to have the previous decision questioned or to raise the issue afresh.  It is no different to any litigant I suppose who, where there is an adverse decision and subsequently, because of a change in the law or some other reason, a court would come to a different result if the same case were to come before it again.  In one sense that may arise in Taylor, depending on the result in Shaw.

That is, in my respectful submission, what your Honour’s question raises.  Absent any application or pending proceeding, the position is that one simply has a person who is an alien who has no right to be in Australia and the Migration Act provides a certain result.  One does not know ‑ ‑ ‑

McHUGH J:   But can the finding of the delegate bind this Court in the exercise of its constitutional jurisdiction?  That is to say, for constitutional purposes may we not disregard the finding that he could return to Syria and hold that he is a person who is entitled to a protection visa under the Act and that you cannot constitutionally detain him?

MR BENNETT:   Your Honour, he has not made that application and we have not explored what our response would be to it if he were to make it, but that is a matter for another day.  At the moment he is ‑ ‑ ‑

McHUGH J:   But he is maintaining that he should be released.

MR BENNETT:   Yes, your Honour, he is maintaining that but that is a step down the line.  He is maintaining that without having a protection visa, without having obtained one.  The Act makes it clear that without one, or without some other appropriate form of visa, nothing can be done.  There also may be questions about the ability to return him to his country of birth and the question whether that would constitute refoulement or not in the present situation.  There are issues of that nature too which might arise, but they are issues which, whatever relevance they may have to Mr Al Khafaji’s advisers, have no relevance to this appeal.

McHUGH J:   I know that you say he has to get a protection visa but, as Lim’s Case shows, if he is being held and constitutionally he cannot be held, then the Parliament cannot say he can be held until he gets a protection visa.

MR BENNETT:   Your Honour, whether he can constitutionally be held does not depend on whether or not in fact he is a person entitled to a protection visa.  It depends on whether he has one.

McHUGH J:   Well, that is another question.

CALLINAN J:   Mr Solicitor, what about section 36(3) of the Act?  To what extent has that subsection been applied?  I do not recall seeing any cases, that have come to us anyway, in which it has been referred to.  If a person misses out on getting a protection visa, or indeed if a person is applying for one, does a person have to show that he or she has tried every other country and been knocked back?  That is how section 36(3) would appear to read.

MR BENNETT:   Your Honour, it would be construed no doubt in accordance with the general principle that the onus of proving an exception or qualification lies on the person who asserts the exception or qualification, so ‑ ‑ ‑

CALLINAN J:   But this is expressed in general terms without any exceptions.

MR BENNETT:   Yes, but it is in form and substance an exception or qualification, so no doubt the onus would be on us if a person were to seek a protection visa and demonstrate to the RRT that he had a well‑founded fear of persecution in one country.  No doubt the practical onus would lie on the respondent to demonstrate those facts and how they would emerge or – I do not want to get too involved in the procedures of the RRT which are not strictly adversarial in that sense.

CALLINAN J:   But it says “any country apart from Australia”.  Does that mean that there has to be an application to Venezuela and Syria and Albania and whatever else you can think of?

MR BENNETT:   No, it is “all possible steps”.  I think that provision ‑ ‑ ‑

CALLINAN J:   It is not “all reasonable steps”, it is “all possible steps”.

MR BENNETT:   Yes.  The provision has been applied, I think, to a person who would have the right to apply to travel to Israel under the law of return, for example, so it is a section which – it obviously looks at practicalities.  One does not say Albania is looking for migrants and therefore you might have been able to apply in Albania.  There are no doubt questions of reasonableness and ‑ ‑ ‑

CALLINAN J:   Well, I do not know.  I am not sure that that is irrelevant.  What about in this case?  Did Article 31.1 in any of these cases have any relevance?  Were these applicants shown to have come “directly from a territory where their life or freedom was threatened”?  Article 31.1 of the Convention.

MR BENNETT:   I am sorry, I thought your Honour was looking at the Act.

CALLINAN J:   No, I am referring to the Convention now.  You have to pass over a lot of countries to get here from Syria or, indeed, Jordan or any of those.

McHUGH J:   But you have to have a right to enter a country, have you not?

MR BENNETT:   Yes.

McHUGH J:   And even then it is qualified by subsection (5), that if you have a fear that you would be returned to a country where you would be likely to be persecuted subsection (3) does not apply.

CALLINAN J:   Well, accepting all of that, was there any issue in relation to anything of that kind, and as to the directness of their journey to Australia, in these cases?  You might want to think about it, Mr Solicitor.

MR BENNETT:   I will have inquiries made, your Honour.

CALLINAN J:   What I am interested in is precisely what, if any, protection obligations under the Convention Australia owed to these people on the refusal of their visa, because, at the moment – and I am not saying it does – I am not satisfied that it may not affect the question that arises here.

MR BENNETT:   I understood your Honour’s first question that way, and that is what I propose to make inquiries about overnight.

CALLINAN J:   Thank you.

MR BENNETT:   Your Honours, I have finished rather earlier than I thought I had.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Tilmouth.

MR TILMOUTH:   May it please the Court, may I just deal with those questions which have just been raised at a factual level in the matter of Al Khafaji, because, as your Honour Justice McHugh rightly points out, Mr Al Khafaji was found to be a genuine refugee from Iraq and his application was ultimately declined because of section 36(3).  Your Honours will see that those matters are mentioned in our written submissions at paragraph 6, and also see footnote 2.

Now, your Honours, in relation to that matter, if I could take your Honours briefly to the appeal book in the Al Khafaji matter, commencing at page 5.  These are the reasons of Justice Mansfield.  Of course, the appeal by the Minister from Justice Mansfield is the matter removed into this Court.  Justice Mansfield records, at page 5, paragraph 4: 

The delegate accepted that the applicant had a well‑founded fear of persecution by reason of his political opinion or political opinion imputed to him if he were to return to Iraq.  His application was unsuccessful because the delegate concluded that he has effective protection in Syria, including the right to re‑enter and reside in Syria, without the risk of refoulement to Iraq, and that he does not have any well‑founded fear of persecution for any Convention reason if he were to return to Syria.

However, if your Honours go to paragraph 7, your Honours will see that it is then recorded that:

In the meantime, in December 2000, the applicant also signed a request to the respondent, in conjunction with nearly 20 other persons in immigration detention, for the respondent to exercise his power under s 417 of the Act –

which is a personal discretion, if I can put it that way –

to substitute for the decision of the Tribunal a decision granting him and the other signatories a protection visa under the Act.  The signatories were all persons in immigration detention of Iraqi nationality and who had come to Australia from Syria.  The respondent on 9 February 2001 informed the applicant that he had decided not to substitute such a decision for the decision of the Tribunal –

Then, your Honours, at paragraph 9 there was further attempts by Mr Al Khafaji to remain in Australia, or to get a visa, rather, more accurately put:

In about mid 2001 the applicant learned that several of the signatories to the request of December 2000 –

the one in paragraph 7, of course –

had been granted protection visas by the respondent in the exercise of his powers under s 417 of the Act.  He then made a fresh written request to the respondent to exercise that power in his favour, sent on or about 13 July 2001, and to otherwise arrange for his departure from Australia to Syria or to some other country as soon as possible.  He expressed his very strong desire to get out of immigration detention either by being sent to another country or by being granted a protection visa.

That was refused in the letter of 18 July 2001.  So there were those additional attempts through administrative means, as it were, to obtain a visa.  The problem, your Honours, in the Al Khafaji matter was that the detention which had commenced for immigration purposes pending removal since December 2000 – he had been in detention since January of that year, so it is a relatively long period, in our submission, on any view – was that, in effect, the negotiations with Syria had broken down.

Now, the details were confidential and I cannot go any further to it, but they proved impossible, in effect.  Now, your Honours, the findings in each of the two cases before the Court in this respect, and indeed Al Masri, were in each case that there was no real likelihood or prospect of removal in the reasonably foreseeable future.  That finding is in the Al Khafaji matter at page 9 of the appeal book, the whole of paragraph 21 where Justice Mansfield expressly found:

I find that the removal of the applicant from Australia is not “reasonably practicable”, because there is not at present any real prospect of the applicant being removed from Australia in the reasonably foreseeable future.

HAYNE J:   Now, his Honour seems to be tying that to some statutory provision.  Which? 

MR TILMOUTH:   I think, rather to the test in Al Masri, your Honour, see about line 25.  In my submission, this is what he is ultimately driving at.

HAYNE J:   But can it be connected in any relevant way to a statutory provision?

MR TILMOUTH:   Only, in our submission, ultimately to 196 or possibly 198.  This is the limitation, in effect.

HAYNE J:   How, given that we drop the words “as soon as”?

MR TILMOUTH:   Yes, or “as soon as reasonably practicable”.

HAYNE J:   Yes.

MR TILMOUTH:   May I come back to that, if your Honours please, in the context.  But these are the findings which base the order which led to Mr Al Khafaji’s release and there is an express finding, not challenged, that it was not “reasonably practicable”.  And that is in quotes.  That can only be section 198.

HAYNE J:   It is an imperfect quote and it changes the sense, because the composite phrase is “as soon as reasonably practicable”.

MR TILMOUTH:   That is true, but his Honour found, for all intents and purposes, it was not reasonably practicable.  Then his Honour discussed some of the facts.  Can I take your Honours further into paragraph 21, on page 10 of the appeal book, after his Honour referred to the affidavits.  Can I read from line 1:

In my view there is nothing to indicate that there is any real prospect of the applicant being returned to Syria in the reasonably foreseeable future, and nothing to indicate that he can successfully be removed to another country in any measurable timeframe.

The last words are something new, in the sense that they are something different from Al Masri, but what his Honour is finding, in our submission, is that there is no prospect of removal in either the immediate, medium, or long term, on the evidence that was produced before him.  Then his Honour went on to discuss the evidence which also, in his view, justified that conclusion.

Your Honours, the significance of the finding that Mr Al Khafaji was a refugee did have consequences so far as the Convention is concerned and the protocol, but, without reading them for the moment, once the finding of him being a refugee is made, there are some entitlements, in international law at least, including the freedom of movement under Article 26, the prohibition from being expelled under Article 32, and the injunction against refoulement under Article 33, at least.  In that respect, he stands in a different juristic position, at least for international law purposes, than if the finding of him being a genuine refugee had not been made.

Your Honours, can I also point out, by way of introduction, as it were, that similar findings were made about the prospects of removal in the SHDB matter.  Mr Bennett has taken your Honours to that appeal book at page 10, paragraph 9.  Similar findings, of course, were made by Justice Merkel and upheld in the Full Court in the Al Masri Case. Those findings may be found in 197 ALR 246, paragraph [16].

GUMMOW J:   Mr Tilmouth, does 36(3) of the Act reflect any language or qualification in the Convention, or is it simply a piece of our own legislation?

MR TILMOUTH:   I cannot answer that offhand, may it please your Honour.

GUMMOW J:   Can that be checked?

MR TILMOUTH:   But that certainly can be checked.  It might, your Honour, reflect Article 31.1: 

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1 –

and so on.  We will have that further checked, may it please the Court.

GUMMOW J:   Thank you.

MR TILMOUTH:   Your Honours, before I deal with the critical question of section 196, in particular, and what we say ‑ ‑ ‑

HAYNE J:   Just before you do that, did those provisions of the Act which modified the definition of “persecution” have application in these cases?

MR TILMOUTH:   I do not think so, your Honour, I am told, but, once again, may we check that overnight.

HAYNE J:   That is section 91R I have in mind, because, at least in its present form, the Act might be seen as departing in some respects – indeed, some important respects – from the obligations of the Convention.

MR TILMOUTH:   Yes, the former, I think, is to that extent true, may it please the Court, but the former ‑ ‑ ‑

GUMMOW J:   We are using Reprint 8, which includes those changes.

MR TILMOUTH:   Yes, indeed, that is right, and that is the one I have, if the Court pleases, but I will have that checked overnight.  Now, your Honours, may I make a few brief comments about the scheme of the Act before coming back to focus on section 196, and they are these.             Firstly, if the Court pleases, Mr Bennett has already read section 4 and the objects of the Act, but I point out, if the Court pleases, that those objects do not contain any mention of “detention” as such and, in our submission, that could be important.  Could I then take your Honours to section 176 where “detention” does get a mention in terms of parliamentary aspiration or intention.

CALLINAN J:   Section 176?

MR TILMOUTH:   Section 176 which is 141 of Reprint 8, your Honours.  This is Division 6, of course.  It is not the later divisions which are in question here.  It provides that:

This Division is enacted because the Parliament considers that it is in the national interest that each non‑citizen who is a designated person should be kept in immigration detention until he or she:

(a)  leaves Australia; or
(b)  is given a visa.

Now, that, of course, in terms, does not apply to the later provisions which are in subsequent divisions of the Act ‑ 7 and 8 in particular – and your Honours will also note that it relates to designated persons.  Put another way, there is no equivalent in Divisions 7 and 8 with which this Court is principally concerned. 

Now, Division 7 commences at page 147 of Reprint 8, and your Honours have already been taken to section 189 which provides for the “Detention of unlawful non‑citizens”, but your Honours may note that in each case the word appears to be obligatory.  The word “must detain” is included in each of the subsections under which detention can arise.  So subject to Project Blue Sky, there appears to be an imperative duty.  That is in contrast, as your Honours will see, to deportation, which have discretions in relation to detention.

Then there is section 196, which your Honours have been taken to and to which I wish to return in a moment to make some points about both internal construction and constitutional limitation, and 198, of course.  Your Honours, section 198(1) is relevant in each of the three cases Al Khafaji, SHDB and Al Masri, because in each case there had been the relevant asking the Minister in writing to be removed within the terms of subsection (1).  Unlike the case, for example, of B and B, the five children, which your Honours heard last month, in their case there had been no relevant request under 198(1).  If I can take your Honours to 198(6), the other trigger for relevant purposes to the obligation to remove as soon as reasonably practicable is, as your Honours will see in subsection (6)(c)(i):

the grant of the visa has been refused and the application has been finally determined;

That, in a sense, applied in each of these cases as well, but the trigger was subsection (1).

In the case of B and B, the children, neither had subsection (1) been invoked, nor subsection (6), because at the time they brought their application in the Family Court to invoke the welfare jurisdiction, their application for a visa, through their mother, was still on foot.  It had not been finally determined, because this Court had reserved the question of the mother’s case, in which judgment was delivered this year, I think, on 4 February.

There is one qualification, however, your Honours, to the words “the grant of the visa has been refused and the application has been finally determined” because the question of what “final determination” is is also defined in the Act.  At page 18 of Reprint 8, your Honours, in section 5(9) ‑ and there are two subsections to that subsection, but the gist of it is that:

For the purposes of this Act, an application under this Act is finally determined when either:

(a)  a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b)  a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended ‑

That review, of course, appears to relate to the Refugee Review Tribunal decision, relevantly, or, in some other cases, especially deportation, the Migration Review Tribunal. 

But, for practical purposes, your Honours, I think this is fair to put to the Court:  when it is “finally determined” has been taken to be when a court – if an appellate or review process is initiated in the Federal Court ‑ when the court finally determines the matter, simply because if there was removal when a review to a single judge of the Federal Court or an appeal from that review to the Full Court or, indeed, an application for special leave to appeal to this Court were on foot, it would probably be a contempt to remove while the subject matter of their right to remain in Australia was still before the courts. 

So that long explanation is meant to convey to your Honours that for the purpose of the Act “final determination” appears to be at the Tribunal level, but, for practical purposes, it is when litigation is to an end.

Now, your Honours, before coming back to 196, may I make these observations about Parts 7 and 8, and contrast them with Division 9, which is deportation, which is sections 200 and following.  Briefly, for these purposes, your Honours, deportation arises principally under section 201, when non‑citizens commit offences for which certain punishment is prescribed, the order of which is irrelevant for relevant purposes.  Under section 202, the criterion of that imprisonment is set out, but, your Honours, under section 206(2), it is expressly provided that:

The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.

Now, putting aside any problems that that might have, in a deportation case, of a constitutional kind, that provision is noticeably lacking when it comes to the removal provisions with which the Court is now concerned.  The detention provisions, your Honours, in relation to deportation matters is section 253, which appears at 235 of Reprint 8.  Your Honours will see that, in contrast to section 198, “an officer may without warrant detain a person”. 

So whatever may be said precisely about the difference between “may” in 253, repeatedly, and “must” in 189, which is repeatedly used, it may be fairly said, in our submission, that the detention provisions for deportation are less stringent, less demanding, than they are in relation to Division 7 and Division 8.

Your Honours, may I then turn to our points of construction in relation to section 196 in particular.  The section itself is headed “Period of detention”, which may be a clue to its proper interpretation.  I point out that that has been amended in the recent amendment to read “Duration of detention”.  The critical word, in our submission, in section 196(1) is the word “until”.  In effect, in our submission, the Solicitor‑General is asking the Court to read that section as importing from subsection (3) the word “unless” into subsection (1) so that it effectively reads “unless and until”.  That, in our submission, really is the net effect, put as simply as possible, of what the contention is.

In our submission, your Honours, that is an unjustifiable gloss on the section for reasons of both internal construction and also for reasons of constitutional limitation which derive from Chapter III.  If there is ambiguity, which, in our submission, there is, it must surely reside in the word “until”.  “Until” of course itself is a word of general application but, in our submission, however construed and however generously construed to the Commonwealth or the Minister, it as a matter of normal construction at least contemplates that there would be an end to the three purposes which are designated (a), (b) and (c) in the section.  In other words, it entails necessarily coming to an end in some way.

The next point we make about “until” and the ambiguity which it may have, in our submission, is of course that when one goes to 198 and looks at the repetition throughout of the words “must remove as soon as reasonably practicable”, those words themselves, however construed, assume that the removal was capable of being carried out.

KIRBY J:   It is a bit of a catch-22 situation from the Minister’s point of view because on the one hand the Minister under the Act has to respect the right of the detainee to challenge, and in this country more than any other, I think, at four or five levels of the court hierarchy, which necessarily extends the time of the detention.  That being the case, there is a termination point under the scheme of the Act.

MR TILMOUTH:   Yes, there is.

KIRBY J:   You cannot really be heard to complain about the fact that the deportation has extended, can you, if the purpose of the extension is in order for you to exercise rights to try to secure the visa that has been denied at one earlier level?

MR TILMOUTH:   That may be accepted, if the Court pleases, accepting the large “if” which is contained in it.  The bringing to the end in that circumstance of course, exercising domestic rights, is brought to an end by section 198(6).  The point I make, your Honours, is that section 198 itself is consistent with the submission that 196, and indeed the whole scheme of the Act, contemplated a coming to an end of the period of detention.

Of course, what might be a reasonable period might vary according to whether the removal is for the purposes of section 198, which is the case here, or section 200 or whether the grant of a visa or litigation with respect to it is still on foot.  There would be quite different considerations that might apply in each case, but in the end result, in our submission, the whole scheme of these two parts indicates that Parliament intended that the period of detention had to come to an end at some time.

The ambiguity is that it is not spelled out in any great detail, except insofar as section 198 throws light on that matter, and the ambiguity still remains with respect to the word “until”.

Now, your Honours, if it is accepted then, as in our submission it must be, that the section is ambiguous because it does not deal with delay, as the deportation provisions do, then the first point, before we even get to constitutional limitations, is a construction which protects the personal liberty and a construction further in accordance with international obligations, both of which march, for relevant purposes, in the same directions and are dealt with in our written outline paragraphs 19 to 25.

Your Honours, the other point we make is this, that even if it is accepted that the coming to the end is provided for exhaustively in section 198 under the reasonably practicable rubric of the various contingencies set out in the subsections, that those words “as soon as reasonably practicable” are words which have been used in statutes for decades, and indeed for centuries, in the context of justices legislation and they have always been construed, in our respectful submission, in their context as involving temporal limitations themselves.  They necessarily import a time element.  The ultimate resolution of course is a matter of fact and degree and judicial judgment.

More than that, in our submission, the history of the use of this kind of phrase, and indeed this precise phrase, which is also dealt with in our written submissions paragraphs 23 to 24, has always been for a relatively short period of time and has always inherently contemplated a notion that the period covering “as soon as reasonably practicable” would come to an end within a short period of time.

GLEESON CJ:   Do you read the word “is” in section 196(1) as equivalent to “can be”?

MR TILMOUTH:   Probably not, may it please your Honour.  What we would submit is that if it is not possible to remove the person from Australia because there is the finding, as there was in these three cases, that it was not reasonably foreseeable, then in our submission the purpose of removal ceases to exist.  We really put it that way around.  In other words, the whole argument for the Minister is purposive and whilst there is a genuine attempt on the Minister’s argument to achieve that purpose, the detention is lawful.  But, in our submission, as a matter of reading the section and looking at the purpose, if the removal cannot be effected, then that purpose is eliminated, in effect, as a factual matter.  The purpose no longer pertains.

HAYNE J:   Do you say that the time fixed by 198 in its various form has run?

MR TILMOUTH:   Yes, we do, if the Court pleases.

HAYNE J:   How do you do that as a matter of language?

MR TILMOUTH:   Because it is not reasonably practicable any more or any longer.

HAYNE J:   That seems to divorce, as did the primary judge, the expression “reasonably practicable” from the words which precede it.

MR TILMOUTH:   In my submission, no.  Perhaps I should have added those words.  In our submission, what it comes to is that it is no longer “as soon as reasonably practicable” to remove Mr Al Khafaji from Australia.  Once that is accepted, as it is, in our submission, the logical and legal consequence is that the purpose under 196(1)(a) no longer exists.

HAYNE J:   Does it follow that as soon as the first bona fide attempt is made to negotiate removal but is rebuffed that detention must come to an end?

MR TILMOUTH:   No, that is a question, with respect, to fact and degree.

HAYNE J:   Where is the middle ground?  It seems to me you either take that end or you take the other end, and the middle ground leaves you straddling a very uncomfortable barbed‑wire fence, Mr Tilmouth.

MR TILMOUTH:   With respect, if the Court pleases, I have two things to say about that.  There always will be difficulties in individual cases, of course, and it may be accepted that what is not reasonably practicable today may be tomorrow.

GLEESON CJ:   Well, take the case of Mr Al Masri.  Was he in fact removed as soon as was reasonably practicable?

MR TILMOUTH:   Ultimately he was.  He was released by order of Justice Merkel on strict conditions, by the way, as the two people before ‑ ‑ ‑

GLEESON CJ:   But he was released on the basis that it was no longer possible to remove him as soon as reasonably practicable.

MR TILMOUTH:   That is so.

GLEESON CJ:   And some time later he was removed as soon as reasonably practicable.

MR TILMOUTH:   Yes, he was.  Now, that is one case.  That does not necessarily mean a lot but it is accepted as an illustration.  The mechanism ‑ ‑ ‑

HAYNE J:   But it illustrates the dilemma which the construction you urge seems to contain within itself.

MR TILMOUTH:   With respect, it leads to no difficulty or dilemma, to use your Honour’s words, because what happened was Mr Al Masri was released under strict conditions of reporting and so on, conditions like those that appear in the two appeal books here.  Once negotiations or whatever it was continued and it was possible for his removal, he was re‑arrested and he was removed.  Now, with respect, that causes no practical difficulty or, to use the words of your Honour Justice Hayne, no dilemma.

HAYNE J:   You emphasise the strength of the conditions on which he was allowed at liberty.  It seems to me either he is at liberty or he is not, and the imposition of conditions assumes the residue of power is still being exercised.  Now, again, you are in an uncomfortable middle ground it seems to me.

McHUGH J:   And it over looks 189, the obligation on an officer to detain a person that he “knows or reasonably suspects . . . is an unlawful non‑citizen”.  You cannot leave that out of account in determining – I mean, that is a continuing obligation on an officer.  Every time he sees somebody he reasonably knows or reasonably suspects is an unlawful non‑citizen he is obligated to detain the person.

MR TILMOUTH:   That is true, of course, as a bare proposition, but what, with respect, it overlooks is that the problem with detention is that, as I have already put, it has to be for a period or a duration coming to an end.

McHUGH J:   I know you assert that and you try to get it out of the word “until”, but it does not seem to me to be ambiguous.

GLEESON CJ:   What happens to the obligation under section 198(2) if a court declares in relation to section 196 that it is no longer possible to remove a person “as soon as reasonably practicable”.

MR TILMOUTH:   That would be the next point, if the Court pleases.  The obligation to detain would be discharged.

GLEESON CJ:   No, what about the obligation to remove under section 198?

MR TILMOUTH:   Well, that would be, as it were, suspended.

GLEESON CJ:   No, it has gone, has it not, because the conclusion is that it is no longer possible to comply with section 198?

MR TILMOUTH:   In the reasonably foreseeable future.

HAYNE J:   Well, you seem to have got into a dispensing power.

MR TILMOUTH:   Well, that is the argument against us, but that is the way it was read by the relevant judges in the courts below and that is the way it worked in practice.  Our point is, in this respect, that the solution which came from Al Masri per Justice Murphy, and accepted by Justice Mansfield in this case, is a very workable solution because it gives a limitation to section 196, consistent with the obligations under section 198, but allows the removal to take place if the circumstances change.

McHUGH J:   But it just completely overlooks 189 and the definition of “detain”.  “Detain” is defined to mean:

take into immigration detention . . . and includes taking such action and using such force as are reasonably necessary to do so.

You just get into this circular course where the moment he was released an officer has an obligation under 189 to take him straight back into immigration detention, which tells heavily against your argument, Mr Tilmouth.

MR TILMOUTH:   It may, your Honour, as a matter of statutory construction, but as a matter of practicalities, in our submission, it really would not arise because of course there would be a court order.  In any event, you could only detain, in our respectful submission, under 189 for the purposes of removal.

GLEESON CJ:   What would be the precise terms of the court order?

MR TILMOUTH:   They would be terms relating to reporting and conditions, including the obligation to surrender if and when the Minister again decided that removal was a possibility.  That is in fact what happened in Mr Al Masri’s case.  He was then rearrested, a stay was sought, it was granted for a short period.  An application was made to declare that arrest unlawful, and Justice Merkel refused it because he found that the facts were then that removal was possible – in fact it was imminent.

GLEESON CJ:   Is that a convenient time, Mr Tilmouth?

MR TILMOUTH:   Yes, if the Court pleases.

GLEESON CJ:   We will adjourn until 10 o’clock tomorrow morning.

AT 4.30 PM THE MATTERS WERE ADJOURNED
UNTIL THURSDAY, 13 NOVEMBER 2003