Commonwealth of Australia v AJL20

[2021] HCATrans 68

[2021] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  

No C16 of 2020
  No C17 of 2020

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

AJL20

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 APRIL 2021, AT 10.00 AM

Copyright in the High Court of Australia

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth:   May it please the Court, I appear with MR G.R. KENNETT, SC, MR C.J. TRAN and MS N.A. WOOTTON for the Commonwealth in both appeals.  (instructed by Australian Government Solicitor)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR N.M. WOOD and MR J.E. HARTLEY for the respondent in each appeal.  (instructed by Human Rights for All)

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, these two appeals were removed into this Court by orders made under section 40 of the Judiciary Act, which your Honours will find at pages 119 and 122 of the core appeal book.  There is no need to go to them.  The respondent is an unlawful non‑citizen whose visa was cancelled under section 501(2) after he was convicted of intentionally causing serious injury and sentenced to a term of imprisonment of three years. 

As a result of the cancellation of that visa, he was taken into immigration detention under section 189 of the Migration Act.  Over the years that followed there was a considerable amount of litigation concerning the cancellation decision which your Honours do not need to concern yourselves with.  But on 11 September last year the respondent was released from immigration detention after Justice Bromberg ordered that he be released forthwith, and your Honours will see that order behind tab 5 in the core appeal book at page 84. 

The result of that order was that despite the fact that the respondent is an unlawful non‑citizen and despite the fact that he no longer holds a visa as a result of having committed a serious crime, he has been living in the Australian community since September last year.  Justice Bromberg made the order for release in circumstances where the Commonwealth had, since 25 July 2019, not taken steps that should have been taken to remove the respondent from Australia as soon as reasonably practicable in compliance with the duty imposed on Commonwealth officers under section 198(6) of the Act.

The central issue in the appeal is whether the admitted failure of Commonwealth officers to take the steps that they should have been taking under section 198(6) had the result that the respondent’s detention ceased to be authorised by sections 189 and 196 of the Act and for that reason became unlawful.

That issue is directly raised by the second ground of appeal in each of the notices of appeal.  Your Honours can see behind tab 7 in the core appeal book the notice of appeal in one of those proceedings and ground 2, at page 91:

The primary judge erred in concluding that ss 189(1) and 196(1) of the Migration Act1958 (Cth) did not authorise the respondent’s detention.

That is the core issue in the case.  To avoid any misunderstanding, I seek to emphasise at the outset that it is no part of the Commonwealth’s case to say that the Court does not have power to grant relief to a person who is detained unlawfully.  The debate is about whether or not the Act authorises detention in circumstances where there has been non-compliance with the breach of duty in 198.  That is the issue.

On looking at the notice of appeal in the other proceeding, which is behind tab 8 at 197 of the core appeal book, it seems to us on reflection that ground 3 obscures that issue and that ground, ground 3 in that appeal, is not pressed.  The argument that underpins it is an argument about re‑detention under 189.  We maintain that argument, but it is part really of the proper construction of the regime and so, to the extent necessary, that argument will be advanced under the rubric of ground 2.

To give your Honours an understanding at a very high level of the argument before developing the steps in it in detail, can I give you this roadmap of the essential outline of the case on appeal.  We submit first that by legislation in the clearest of terms, Parliament has both authorised and required immigration detention to continue until the actual occurrence of one of the events specified in 196(1), which for convenience I will call terminating events.

Next, while Parliament has linked the occurrence of the terminating events to enforceable duties found in different parts of the Act, some express, some implied, to bring about the terminating event, it has not conditioned the lawfulness of detention on compliance with those duties.  Instead, if breach of those duties occurs, then that breach attracts a remedy to require officers to comply with the duty that Parliament has imposed upon them, and in that way, it is possible to enforce the occurrence – the bringing about of the terminating event that ends detention.  It remains subject to the control of the Court, through that mechanism.  But, until the terminating event actually occurs, the Act authorises and requires detention which therefore remains lawful.

Our submission is that that scheme arises both from the intractable meaning of section 196(1), but it is also the only meaning, in our submission, that is consistent with the scheme that Parliament has enacted to govern the presence of unlawful non‑citizens in Australia.

Finally, in our submission, Chapter III of the Constitution provides no reason why those words and that scheme cannot be given effect in accordance with their terms, in particular, the separation of the legislative power and the judicial power does not deprive Parliament of the power to prevent the entry into the Australian community of non‑citizens who have been denied permission to enter until such time as they are actually removed. 

That is the outline of the case.  I will develop the various steps within it by following a structure consistent with the headings your Honours will have seen in the oral outline that we have provided.  So, first, I will make some brief submissions about the stage of the analysis at which the constitutional principles are relevant; second, turn to the construction of 196 and the scheme of which it forms part; third, assess that scheme across the breadth of its operations against Chapter III, identifying the limits from Chapter III from Lim, Al‑Kateb, and M76, then address the consequences of - if 196(1) operates in the way that we have identified, dealing with the enforceability of the temporal limits; and, finally, say something briefly about Plaintiff S4.

In the decision below, and you see this, without turning to it, at paragraphs 17, 40 and 44, for example, and also in the respondent’s submissions against us, there is a rolling together of statutory construction and constitutional principles.  In our submission, a significant cause of the error below was that, having failed to separate those constructional and constitutional questions, the result was that constitutional principles were deployed to arrive at a construction that was not open textually, and that was not required constitutionally. 

So while the respondent, for example, at 73 of their submissions says - goes so far as to say it is an error to separate the constructional question from the constitutional principle, which we submit is a surprising submission when one looks at Al-Kateb, which is exactly what the Court did there, separating those two questions quite distinctly, that separation, we submit, is apt to produce a result that neither the Act or the Constitution requires. 

In our submission, the appropriate approach is that discussed by your Honour Justice Gageler in NAAJA’s Case (2005) 256 CLR 569. We have not given your Honours that because we are relying just on one sentence of it at paragraph 79. At paragraph 79 your Honour Justice Gageler said, in addressing two possible constructions of the Act:

Only if each were reasonably open in the application of ordinary principles of statutory construction could the prospect of constitutional validity or invalidity legitimately bear on the choice between competing constructions; and only then if the court were satisfied that one construction would lead to validity and the other to invalidity.

So, in our submission, if we understand your Honour correctly, the appropriate approach is to look at the Act and construe it in the ordinary way.  If that construction is valid, then the Constitution does not require any modification of the meaning that emerges, applying ordinary principles.

In our submission, that kind of approach is consistent with the way that the Court has now, on a number of occasions, including quite recently, explained how questions of validity are to be approach where it is said that legislation contravenes a constitutional limit.  The Court has explained, and I am going to take your Honours briefly to Palmer, that it is often appropriate to commence the analysis by considering whether, on its proper construction, the law across the full range of its operations complies with the constitutional limit because if it does, the statute is just given effect in accordance with its terms.

You do not need, in that scenario, having reached that conclusion, to ask any constitutional question in the application of the statute to particular cases or to adjust the interpretation of the statute in particular cases because the Court has already concluded, having tested the legislation across the range of its operations against the limit, that it complies.

So any exercise of power that complies with the statutory limits necessarily also complies with the constitutional limits and within a regime of that kind, having concluded that the statute is valid across the range of its operations, it is the role of administrative law to address any contravention by officers of the statutory limits that Parliament has specified.

Those limits are not irrelevant.  On the contrary, they are critical because they show why the legislation fits within the constitutional principles and executive action then has no ramifications for validity, it just has ramifications for the validity of the executive action taken in any particular case.

While we do not think the Court has ever applied that analysis specifically in a Chapter III context, as a matter of principle, in our submission, there is no conceptual reason why it does not equally apply to that context as it does in 92 context or implied freedom context.

In some respects, that is a context that provides a very ready forum for that kind of process because the question in a Chapter III context is:  does this legislation purport to confer the judicial power of the Commonwealth on a body other than a court?  That is a prime example of a constitutional question to be answered at the level of the construction of the statute.

I will not detain your Honours at any length because for five of your Honours this will be fresh in your minds, but could I ask the Court to go to Palmer v Western Australia [2021] HCA 5, decided earlier this year - it is in volume 5, tab 18 of the joint appeal book. Since the joint appeal book was prepared, it has been reported in the ALJRs. It is 95 ALJR 229, but your Honours do not have that version.

There were four judgments given in Palmer and on this point, in our submission, they were unanimous as to the appropriate approach. If one starts with the joint judgment of your Honour the Chief Justice and Justice Keane at paragraph 63, under the heading “A constitutional limitation”, your Honours there accepted a submission put by Victoria:

that the principal question reserved for this Court can and should be answered by reference to the authorising provisions of the EM Act rather than by reference to any particular exercise of those statutory powers –

under the Act.  That was identified as according with what had been decided in Wotton, which is discussed in the next paragraph, which in turn had built upon what Justice Brennan said in Miller, addressed at paragraph 65.  Reading the second line of 65:

the exercise of the statutory power to condition the parole order might be subject to judicial review . . . but the question of compliance with the constitutional limitation is answered by the construction of the statute.

Your Honours then quote from the key passage in Wotton:

“if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down . . . any complaint respecting the exercise of power . . . does not raise a constitutional question -

It raises an administrative law question.  At paragraph 67, your Honours explain that while the clarification of this mode of analysis is admittedly recent and perhaps explained in part by developments in administrative law, the approach taken in Wotton is that which should now be followed. 

At 68, your Honours recognise that “difficult questions may arise” in the context of broad discretions and we accept that that is so, but in our submission, the current case that your Honours have before you is a situation that is particularly apt for the application of this analysis because not only do you not have broad and general discretions, you have no discretion at all.

Parliament had mandated that the executive officers act in particular ways in particular circumstances and the question is, having mandated that officers must act in particular ways in particular circumstances, has Parliament created a regime that complies with Chapter III?  If yes, that is the end of the constitutional question and one just deals with the actions of officers in an individual case by enforcing the duties imposed on them using administrative law. 

Your Honour Justice Gageler at 118 addressed the same issue.  This is on page 37 of the judgment.  Dealing specifically at 118 with executive action that derives its legal force and effect from statute, your Honour says:

the relevant operation of each constitutional guarantee is solely as a limitation on legislative power-

meaning, as your Honour explains in the next paragraph, that there are two distinct questions that need to be answered – a constitutional question and a statutory question.  The statutory question is whether the action is authorised.  The constitutional question is whether the statue complies with the constitutional guarantee. 

While the questions can converge, as your Honour explains over the next few paragraphs, particularly in the context of broad discretions, the answer is the same as the answer I identified before, that that is not this case here.  We have no discretion at all.  So at 127 the appropriate approach in the second half of the paragraph:

The constitutional question so isolated was whether the provisions of the Act . . . are sufficiently constrained in their terms to allow a conclusion to be reached that imposition of a burden of that nature meets the requisite standard of justification across the range of potential outcomes.

That is the burden that I am proposing to take on, that the power of detention conferred by sections 189 and 196 is sufficiently constrained in its terms as a matter of statutory construction to be justified across the range of potential outcomes and that a breach by the Executive, while attracting remedy, does not mean that the statute does not operate consistently with Chapter III.

Your Honour Justice Gordon at 200 and 201, in our submission, likewise endorsed – so your Honour referred to Wotton, Miller and Banerji and identified the approach taken in those cases had been correct in principle, and then at 202 said:

Thus, the question is whether, on their proper construction, ss 56 and 67 of the Act comply with the constitutional limitation of s 92, without any need to read the Act down . . . Put differently, do those sections, by their terms, confer a power that “is so constrained that its exercise cannot be obnoxious –

there “to the freedom”; here we say to Chapter III.  Your Honour Justice Edelman at 224 identified the premises underlying Victoria’s submissions that:

questions of constitutional validity should be determined at the level of an empowering statute –

Your Honour accepted that that is appropriate in some cases, held that it is not appropriate in others, again picking up as we understand, your Honour, the broad discretion problem, which is why at 226 your Honour says will not always be appropriate to adopt that approach, but at 227, cases where it is appropriate are identified as including those where the legislation:

expressly [incorporates] sufficient limitations as to be facially compliant with the Constitution -

So, in our submission, the approach adopted in Wotton and now even more clearly explained in Banerji and Palmer is an approach that is apt to this case and it means that structurally the proper legal analysis is first to construe the provisions, 196 in particular, but in its context, second then to consider, having construed the provisions, whether across the range of their operations they accord with Chapter III, which for reasons I will develop, we submit they do, and that conclusion having been reached, section 196 validly applies in accordance with its terms and ground 2 should be upheld.

The next step of the analysis then is when assessing the validity of executive detention for any particular non‑citizen, one tests the validity of that detention only against the statutory limit in its terms.  If the officer has failed to comply with the limit - any particular duty, then the Court can enforce compliance with the duty, in that way requiring officers to bring about the terminating event, but the breach of the duty does not re‑enliven in some way a constitutional question involving the assessment of purposes or anything to do with Lim or Al-Kateb because that question has been answered.  For that reason, Justice Bromberg erred in reasoning that the conduct of the Executive could involve a departure from the purposes of detention that Parliament has mandated in its valid regime.

So, for that reason we would submit that your Honours should start with the construction of the Act separately from questions of constitutional principle, and could I ask you to turn to the Act, volume 1, tab 1, starting at section 4, the objects, where Parliament has, in my submission, made itself very clear:

(1)The object of this Act is to regulate, in the national interest, the coming into, and presence –

So both arrival and presence:

in, Australia of non‑citizens.

(2)To advance its object, this Act provides for visas permitting non‑citizens to enter or remain –

and this is the important part:

and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain.

So the right comes from visas, and visas are, in our submission, to be the only source of the right to enter or remain, and then subsection (4) refers to, again:

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

The Act then establishes what has been referred to in some of the authorities as a “binary division”, which your Honours see particularly at sections 13 and 14 of the Act, which I think might be at page 46 of the joint book.  So the binary division is between lawful non‑citizens and unlawful non‑citizens.  Lawful non‑citizens – sorry, we will start at unlawful.  Section 14 says:

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

So that is the binary division.  If you are not lawful, you are unlawful.  When are you lawful?  Section 13 tells us:

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

So unless you hold a visa, you are in the unlawful non‑citizen category.  That is important because one then goes to 189 of the Act, which I think might be on the next page in your Honours’ bundles, and 189 headed “Detention of unlawful non-citizens” – so detention of non‑citizens without a visa:

If an officer knows or reasonably suspects that a person in the migration zone . . . is an unlawful non-citizen, the officer must detain the person.

Justice French, in a case I will come to later, described those words as “imperative and uncompromising in their terms”.  Justice Hayne, with Justices McHugh and Heydon, relevantly in agreement in Al-Kateb, in a passage I will not take your Honours to now, but in two sentences said:

the provision is mandatory; the legislature requires that persons of the identified class be detained and kept in detention.  No discretion must, or even can, be exercised.  No judgment is called for.  The only disputable question is whether the person is an unlawful non‑citizen.

In our submission, it is quite plain textually that this provision operates based on a person’s status, and nothing else.  If a person holds the status of unlawful non-citizen – he is known to hold that status or reasonably suspected of holding it – they must be detained.  That is the case, without according any significance as a matter of construction to some version, whether objective or subjective, of the purpose of the detaining officer – that the Act just does not make that matter.  What matters is whether the officer knows or reasonably suspects that a person has the relevant status.

For reasons I am going to come to, that is not to say that purpose is irrelevant, purpose is relevant, but the purpose in question is the purpose of the Parliament in mandating – in imposing that duty in the form in which it is there imposed.  It is not a purpose that fluctuates with the officer who is giving effect to the duty there imposed.

Can I then turn to section 196 of the Act, which is the most important provision for the purpose of this appeal. This is within Part 2, Division 7 of the Act, which is a different division to the part dealing with removal, where 198 is found. They are proximate but not collocated within the same division of the Act. Section 196(1), which is the leading provision, addresses the situation of “an unlawful non-citizen detained under section 189”. Such a person:

must be kept in immigration detention until –

and then there are four circumstances identified.  In our submission, just before coming to those circumstances, the notion of being “kept in detention until” contemplates an ongoing or continuous state of affairs that is to be maintained until something happens.  Now, the somethings that can happen are identified in the four terminating events, one of them, the last one in (c), is being granted a visa.  In our submission, it is obvious textually that one cannot say that that could not read – that terminating event as occurring when the person should have been granted a visa.

That is the case notwithstanding that when one goes to other provisions of the Act, there are duties to consider valid visa applications, and duties under section 65 of the Act to grant visas if the criteria for the visa are satisfied.  So there might be situations – there have occasionally been such cases before this Court – where the Court can see that visa criteria are satisfied and could order a person to be granted a visa.  Your Honours did that in S297 (No 2), for example.

But the fact that there might a legal right to be granted a visa does not mean the terminating event has arrived because the person should have been granted a visa.  In our submission, that reading accords quite plainly with the object your Honours have seen in section 4(2), that the Act is to be the only source of the rights to be in the community and until you get the visa there is no right.

For reasons I will come to, that construction is also supported by 189, because if one were to release a person before they get the visa, they would have to be detained again by reason of 189, because they would be an unlawful non‑citizen. 

The other three terminating events all concern removal in various ways: deportation, removal, or beginning to deal with a non‑citizen under 198AD, which is removal to a regional processing country, or, relevantly here, removal from Australia under 198 of the Act. Section 196(1) tells us that a person:

must be kept in immigration detention until:

(a)he or she is removed –

In our submission, just as one cannot read (c) “should have been granted a visa”, one cannot read (a) “should have been removed”, or “ought to have been removed”.  The section textually fixes attention upon the occurrence of the event.  Justice Bromberg’s reasons actually go even further than “should have been removed”.  Your Honours will see, I will not take you to it, but at 81 and 89 of his Honour’s reasons, his Honour’s conclusion was that detention ceases to be authorised not when the person should have been removed, but when an officer has failed to take sufficient steps pursuant to the duty of removal. 

So that there is an assessment made that officers should have been doing more to comply with their duty under 198 and at the moment they have not done enough, detention, on his Honour’s view, ceases to be authorised by that provision – even though that will evidently be before, perhaps well before, the person is removed from Australia under 198.

What, in our submission, that involves is taking a very clear objective statement of the time when the detention ceases to be authorised, and replacing it with a highly contestable, uncertain condition by which officers are somehow supposed to ascertain whether they should comply with what Parliament has required them to do and to detain, or whether they should release because a judgment may be made that they have not done as much as they should have done to remove someone in circumstances where that is a complex process involving international negotiations and other matters of that kind.

In our submission, the plain meaning of 196(1), that detention is authorised, must occur until the terminating event happens, is reinforced by subparagraph (3):

To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non‑citizen from detention –

and it is the parenthetical words that are important here in reinforcing the meaning of (1):

(otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa -

which is (c).  So that is again saying a court can release if one of the terminating events has happened, but not otherwise.  Now, that would be problematic if detention was unlawful otherwise.  But Parliament has proceeded upon the correct footing that under this regime, detention is lawful as long as none of those four events had actually occurred.  So that constructional conclusion is powerfully reinforced by subparagraph (3).

Your Honours of course are not approaching the construction of these provisions against a blank slate.  They have been looked at by the Court before on a number of occasions, for various different purposes, most relevantly, or most analogously to the present case, in our submission in two cases, in Al-Kateb and Plaintiff M76 – and I take your Honours now to both of those cases, starting with Al‑Kateb (2004) 219 CLR 562, which is in volume 3, tab 5 of your Honours’ books.

I am going to now, consistently with the structure that I have outlined to your Honours, focus on the constructional parts of the judgment and I will come back to the constitutional parts when I reach that stage of the argument. In our submission, the Court split on construction in this case four/three. The majority found that section 196 means what it says. Indeed, reflecting the view that the words are intractable, that construction has been followed since. No application has been made to reopen it.

In any event, when an application was last made to reopen it, which was in M76, your Honour the Chief Justice and Justice Keane in your joint judgment, and Justice Hayne in a separate judgment, all said that even if the construction in Al-Kateb was wrong, it still should not be reopened, that it stood for long enough as a matter of statutory construction, Parliament has amended the Act many times since and, whatever the merits of the contest at the time of Al-Kateb, the construction that was adopted should stand.

The leading judgment, as your Honour the Chief Justice and Justice Keane recognised in M76, is Justice Hayne’s judgment and Justice Heydon agrees with his Honour and Justice McHugh agrees with his Honour on the statutory construction point.  Can I ask your Honours to start at paragraph 210 in Justice Hayne’s judgment under the heading “The scheme of the current provisions”.  Your Honours will see there that before coming to the construction of the particular provisions, in particular 189, 196 and 198, his Honour thought it important to start with some comments about the scheme of the Act, which are identified there as:

having three principal features.  First, non-citizens may enter Australia if they have permission (a visa) . . . they may remain in Australia for so long as they have . . . a visa to do so.  Secondly, if a non-citizen has entered Australia without permission, or no long has permission to remain here, that non ‑citizen must be detained. Thirdly –

and most importantly here:

the detention of a non-citizen is to end only upon that person’s removal or deportation from Australia or upon the person obtaining a visa -

That is the scheme.  His Honour repeats those essential features at 223, but I do not need to take your Honours to that.  As his Honour points out at paragraph 211:

The hypothesis for consideration of all of the arguments . . . must be that the person whose detention is in question is someone who does not have permission to remain in Australia.

That is the starting point.  One then goes on to 217 under the heading “The critical features of detention” where his Honour identified two critical features of the provisions:

First, the detention required is for an indeterminate length of time.  Its duration is bounded by the occurrence of events –

which we submit is the natural textual meaning of 196 and evidently how his Honour read it:

which, if they happen, will happen at a time which cannot be identified.

Then at paragraph 218, the second sentence:

Detention comes to an end upon removal or deportation or the granting of a visa.

Again, consistent with the occurrence of the relevant events.  At paragraph 226 in his Honour’s reasons a couple of pages on, his Honour makes that point even clearer in the first sentence:

The period of detention is fixed by reference to the occurrence of any of three specified events.

There was no reference at that point to the regional processing regime, which is why there were three rather than four:

Detention must continue “until” one of those events occurs.

His Honour then accepts, in the next sentence, that the occurrence of the event of removal:

is affected by the imposition of –

the duty in 198 to bring the event about.  We absolutely accept that that is so, but the various passages I have taken your Honours to so far all, including the first sentence of that paragraph, expressly recognise that it is the occurrence of the events rather than the existence of a duty to bring about the event that fixes the endpoint.  Now, our friends, in their written submissions, make much of the last sentence at paragraph 226:

so long as the time for performance of that duty has not expired, s 196 in terms provides that the non‑citizen must be detained.

In our submission, our friends seek to get too much out of that sentence, which must, of course, be read in the context of his Honour’s reasons as a whole, which contain repeated references to the terminating event being occurrence of removal or the grant of a visa, and his Honour’s emphasis on the significance of the scheme, whereby visas are the only source to be in the community.  In our submission, it is a very long bow to suggest that in that sentence his Honour is contemplating that non‑citizens without visas are to be released into the community.

EDELMAN J:   Mr Solicitor, do you accept that generally when Parliament creates a statutory power or duty, then that power or duty is one that must be performed only for the purposes for which it has been created?

MR DONAGHUE:   Yes.

EDELMAN J: Is the duty under section 196 a duty to detain for all purposes, or is it a duty to detain for the purposes of deportation within a reasonable time?

MR DONAGHUE:   It is not the latter, your Honour, and that was one of the main points of the argument in Al‑Kateb, it is not purposive in that sense.  When one looks at the scheme as a whole, it is purposive in that sense, but one needs to look at the scheme as a whole.  The purpose of 196, in our submission, to anticipate where I will go on the constitutional argument is to require the detention of a non‑citizen who has been refused permission to enter until that non‑citizen is actually removed, in order to prevent the non‑citizen entering the community until removal occurs. 

So it is – accepting Parliament’s power, which no one, I think, doubts, to decide whether or not non‑citizens are to be permitted to enter the community, where permission has been refused, the only way to give effect to that refusal is to detain the person until they are removed, and that is ‑ ‑ ‑ 

EDELMAN J: Is that, in effect, to say that the purpose of section 196(1), focusing on (a) for the moment, but the purpose of 196(1) is a purpose of detention until removal, and that the purpose of 196 is not shaped by 198?

MR DONAGHUE:   Not shaped by it.  Affected by it, in that the duty to bring about the terminating event might well affect the operation of 196, but not shaped by it, yes, your Honour.  The purpose is to require the detention until removal happens, that being the only way to give effect to the decision to exclude.  That, in my submission, is what Al‑Kateb and M76 hold.

In our submission, it is important with the various – and really it is just a matter of sentences that our friends pick out at various parts in Justice Hayne’s judgment which we submit, read as a whole, is strongly against them.  It is important to read the occasional sentences that they rely upon in the context of the issue that the Court was resolving in Al‑Kateb. 

The debate was, notwithstanding the terms of 196 that appear on their face to require detention until the terminating events happen, could removal occur much earlier than those events happening if as a factual proposition removal could not occur in the reasonably foreseeable future.  That was the debate.  The Court by majority answers the question:  you cannot cease to detain prior to the occurrence of all of those terminating events because the text of the Act and the scheme of the Act are too clearly against that. 

So the debate for the most part was not focusing on the issue that is now before the Court.  That was not really in play at all.  There was no question in Al‑Kateb of detention after removal should have occurred.  We submit the case is useful because the same reason that led to the rejection of the argument that was before the Court in Al‑Kateb, exactly the same reasoning also requires the rejection of the argument here. 

But the arguments were not exactly the same and so one cannot safely pick a sentence here or there out of any of the judgments and treat them as pointing against the conclusion that one sees on a fair reading of the judgments as a whole.  Returning to Al‑Kateb at 241, Justice Hayne again makes ‑ ‑ ‑

STEWARD J:   Just before you get to 241, can I ask you, Mr Solicitor, there is a reference at 229 in the reasons to “the time for performing the duty imposed by s 198” had not arrived at yet.  It is the third‑last sentence:

Nor is it to say that the time for performing the duty imposed by s 198 has come.

Do I read that as there being a period of time when you are not under a duty under 198 yet?  Is it only alive when it becomes reasonably practicable to deport?

MR DONAGHUE:   Yes, it is.

STEWARD J:   So that if there is a state of affairs or it is not reasonably practicable, your duty is not yet engaged?

MR DONAGHUE:   Well, your duty to remove is not yet engaged and therefore you are required to be detained under 196 until such time as both the duty is engaged and performed.

STEWARD J:   So in such a case mandamus would not run yet until it became reasonably practicable?

MR DONAGHUE:   Yes, indeed, because there would be nothing that could be done.

STEWARD J:   Thank you for that.

MR DONAGHUE:   I should perhaps expound that answer in this way.  We accept that it is not expressed in the terms of 198 but implicit within it that officers are under a duty to take steps to try to bring about removal as soon as reasonably practicable.  So the duty to remove is not engaged, but that is not to say that people can just do nothing and in a case such as the present, in our submission, if there has been non‑compliance, mandamus would go to require officers to take the steps that they need to take to bring about removal.

GAGELER J:   So if the duty was incapable of performance, that would be in the territory of the constitutional issue that was raised in Al‑Kateb, would it not?

MR DONAGHUE:   Yes, it would, but as we understand it, Al‑Kateb while it stands, is authority for the proposition that the fact that the duty is incapable of performance does not affect the legality of the detention in the meantime because Parliament has authorised that detention and was entitled to do so in order to prevent non‑citizens who have no right to enter the community from so entering. 

So that removal cannot be understood as removal simpliciter, the act of putting a person on a plane, removal is explained more generally in Al‑Kateb as including the purpose of denying entry into the community until removal, and that purpose can be achieved, and remains the operative purpose until such time as removal becomes reasonably practical, and then it shifts to a duty to put the person on the plane. 

I was taking your Honours to 241 in Justice Hayne’s judgment, under the heading “Protection of fundamental rights and freedoms”, where his Honour, in effect, rejects the principle of legality‑type reasoning that explained the minority construction in that Act, on the basis that the sections were too clear.  So reading from five lines down:

Reading the three sections together, however, what is clear is that detention is mandatory and must continue until removal, or deportation, or the grant of a visa.  The relevant time limitation introduced . . . by s 198 –

means that you can - as I have already explained, affects the time at which that duty ends, but, as his Honour says in the last line:

The words are, as I have said, intractable -

there channelling a word that Justice French had used as a member of the Federal Court.  The other point that I should have noted but passed over is, just to ask your Honours to go back to 219, where his Honour makes a point that is also picked up in your Honour the Chief Justice and Justice Keane’s judgment in M76.

GORDON J:   What paragraph was that?

MR DONAGHUE:   Paragraph 219, your Honour.

GORDON J:   Thank you.

MR DONAGHUE:   At the end his Honour says, the last few sentences:

The questions which arise about mandatory detention do not arise as a choice between detention and freedom.  The detention to be examined is not the detention of someone who, but for the fact of detention, would have been, and been entitled to be, free in the Australian community.

That really bears upon the appropriateness of habeas as a remedy in this situation.  His Honour is recognising, as is picked up in some of the other cases, that this is a regime - and it is obviously critical to its validity - this is a regime concerning the detention of people who do not have a right to enter unless that right is granted to them.

GORDON J:   Is that consistent with 236, where his Honour is looking at a question of construction and statutory language, and talks about:

upon what event would a duty to detain re‑emerge?

It is about the third‑last line of 236.

MR DONAGHUE:   Indeed, his Honour – it is consistent with it, and his Honour there is grappling with the kinds of questions that, in our submission, explain why Justice Bromberg was wrong in a part of his reasons to which I will come, as treating this judgment as supporting his approach, because Justice Hayne was saying, well, if the Act ceases to authorise detention at some point, and the unlawful non‑citizen is released into the community, what do you then do with the duty under 198?  When does it bite?  How do officers know when they are or are not supposed to re‑detain? 

That is a real problem that arises in this very case.  This respondent has been in the community for six months without a visa, notwithstanding the scheme of this Act.  Justice Bromberg said, I am going to grant that release because you cannot immediately re‑detain.  Our friends say against us, well, he did not mean that, you can re‑detain in certain circumstances, but it places the Commonwealth in a difficult situation to – if they re‑detain in the face of an order for immediate release, then there is an obvious possible contempt problem, if one does not know where the boundaries lie, and in an Act that needs to be given practical effect on the ground, that is a powerful reason against reading the Act as operating in that way.

GORDON J:   There may be a middle ground, of course.  It may be that Justice Bromberg went too far and recognised that there was a detention which it was unlawful, having regard to the requirements or the considerations of 197C – and yet ignored, in effect, the statutory command of 189, in other words.

MR DONAGHUE:   Yes.  We accept that in the face of 197C, it would have been quite open to his Honour to say to the officers involved, “You have not been doing what 198 of the Act requires.  I understand you have been trying to avoid breach of non‑refoulement obligations, but that is not what the law requires.  Do what the law requires”.  That would have been an appropriate response to the facts that his Honour had before him.  But the order that was made, not so, in our submissions, for the reasons I am developing. 

Justice McHugh’s reasoning in Al‑Kateb was to relevantly – his Honour largely adopted Justice Hayne’s reasons.  He dealt with the statutory construction in just three paragraphs, from 33 to 35.  Our friends rely on the middle paragraph, but we invite your Honours to read them all, and submit that the middle paragraph obviously must be understood in the context of the first and third.  So his Honour agrees with Justice Hayne, so for starters that picks up all of the paragraphs I have already taken your Honours through - must:

be kept in immigration detention until he is removed from Australia.  The words . . . are unambiguous . . . The words of the three sections are too clear to read them as being subject to a purposive limitation –

and I pass over 34 for a minute, 35:

The unambiguous language of s 196 – particularly sub‑s (3) – indicates that Parliament intends detention to continue until one of the conditions expressly identified therein – removal, deportation or granting of a visa – is satisfied.

In our submission, that is pretty clear, as his Honour’s adoption of Justice Hayne’s reasoning.  It is true that in the middle paragraph in 34, his Honour does talk about detention extending beyond the time when removal has become reasonably practicable.

We make two points about that.  One, as I have already submitted, that was not the factual scenario in Al‑Kateb, and there as no occasion to decide whether detention after that point was or was not lawful.  But two, his Honour nowhere in paragraph 34 says that detention would be unlawful.  His Honour correctly, in our respectful submission, recognises that detention is not supposed to continue under this regime after removal becomes reasonably practicable.  One has no argument from us on that point.

But the response to that is to require removal, once removal is reasonably practicable, consistently and in implementation of the scheme, rather than to subvert or make orders that require other officers of the Commonwealth to act inconsistently with their statutory obligations.  So the officer under 198 breaches his or her duties, and that means that other officers who are supposed to detain cannot comply with theirs – that is not an outcome coherent with the Act.

GAGELER J:   In paragraph 34 he is addressing what he has described as the principal issue in the first sentence of this judgment, is he not?

MR DONAGHUE:   Your Honour, I had read that reference - his Honour, in my submission, regarded the principal issue as being the power of the Parliament, the constitutional question - which his Honour of course resolves in favour of the Commonwealth.

In 34, under the heading “First issue”, he is dealing with the constructional proposition really to set them at one side.  In my submission, he is saying the words of this provision are clear – they do not allow the non‑citizen into the community, and that is what throws up the constitutional issue upon which he then focuses.

GAGELER J:   Thank you.

MR DONAGHUE:   So, insofar as our friends are seeking to get some joy from paragraph 34, in our submission they are not really giving effect to what his Honour is conveying.  I do not want to detain your Honours any longer on Al-Kateb, but finally the fourth member of the majority, Justice Callinan, at 298 again says the language is “clear and unambiguous”

It requires detention of aliens until such time as they are granted a visa or removed from Australia.

So it is entirely consistent with the passages I have already taken your Honours to.

Could I ask your Honours also to go to the other judgment I mentioned, which is Plaintiff M76 (2013) 251 CLR 322, volume 4, tab 9 of the joint book. This was one of a number of attempts that were made in quick succession to overrule Al-Kateb.  The issue was not reached because of an unrelated error that meant that the process of giving consideration to the exercise of power under 46A was not complete and because that process was not complete it was not necessary for the Court to – detention was going to be lawful whether or not Al-Kateb was overruled.

So, in the joint judgment of Justices Crennan, Bell and Gageler, the issue was not decided, and Justice French I think also did not decide the question.  But Justice Hayne and your Honour the Chief Justice and Justice Keane both did address the constitutional question and I am going to the joint judgment of the Chief Justice and Justice Keane to identify what your Honours said about the construction of the regime, starting at paragraph 181.

Really what I am seeking to emphasise is that there is, in my submission, no distance between the way your Honours construed the regime here and the way that Justice Hayne, with the agreement of Justices Heydon and McHugh, did in Al-Kateb.

This part of your Honours’ reasons is responding to the dissenting reasons in Al-Kateb as to the construction of the Act, focusing on Chief Justice Gleeson’s judgment, which had been picked up in M47 by Justices Gummow and Bell as the appropriate encapsulation of the dissenting view.  Your Honours are giving - at 181 identifying two questions arising out of the then Chief Justice’s approach, whether the Act is “silent” on the question of detention where the assumption underlying 198 is false, and second whether the plaintiff had a fundamental right to be at liberty.

Dealing with the first of those two questions at 182, your Honours summarised the scheme, in terms consistent with Justice Hayne’s summary at 210.  From the second sentence:

The scheme of the Act contemplates that only those aliens who hold a visa are entitled to be at large in the Australian community . . . The circumstance that the language of ss 189, 196 and 198 is not qualified by any indication that the mandate requiring detention depends upon the reasonable practicability of removal . . . is eloquent of an intention that an unlawful non-citizen should not be at large in the Australian community -

that is, eloquent in the intention that the situation that presently exists with the respondent should not occur.

At the end, detention under 196(1) is mandated in unqualified terms “until” the non-citizen is removed or granted a visa.  Then at 183, your Honours point out that the contrary construction of 196 and 198 failed to take account of the fact that those provisions are part of a scheme that includes 189 and point out that even if it were accepted that 196 ceases to authorise detention at some prior point, the person would then just immediately need to be re‑detained under 189.

Justice Bromberg was critical of this aspect of your Honours’ reasons and it is in a paragraph I am going to come to in just a moment.  His Honour attributed to what your Honours say there the proposition that it cannot be reconciled with the other High Court authorities.  In my submission, that is quite wrong, and what your Honours said is entirely consistent with the other authorities and recognises the importance of 189 in the overall constructional question.  But I will come back to that in just a moment after finishing with these paragraphs.

Paragraph 184 addresses the second question, whether there is a right to be at liberty.  Your Honours in terms identify:

an alien’s right to be at liberty in Australia . . . as a matter of statutory entitlement under the Act, rather than as a “fundamental right”.  The view of the minority . . . that the Act leaves room for the possibility that an alien who is an unlawful non‑citizen may lawfully be at liberty . . . derives no support from the language of the Act.

Your Honours then in the next paragraph explain that that is consistent with Lim because Lim recognised that the status of aliens means that, while obviously an alien in Australia is not an outlaw, their rights and liabilities are different in important respects, including because of the liability to exclusion or deportation.  Paragraph 186 emphasises that the Act serves:

to exclude the plaintiff from the Australian community, she having no right under the Act to enter, and be at large in, that community.

So that is the purpose that I put in answering Justice Edelman a short time ago.  As a matter of ordinary language, your Honours say at 187 the Act does not allow non‑citizens:

to go at large in the Australian community.  Notwithstanding the high value accorded to individual liberty in the tradition of the common law, and even though a less stringent regime might have been adopted, it is hardly surprising that the Act operates to prevent entry into the Australian community save pursuant to authority granted under the Act.

We submit by parity of reasoning the same is true here.  Just as an unlawful non‑citizen who cannot be removed is according to Al‑Kateb not to be released into the community, an unlawful non‑citizen who could be removed likewise is not to be released into the community without a visa.  Instead, effect is to be given to Parliament’s intentions by enforcing the limits that Parliament has set by requiring compliance with the duty.

Justice Hayne’s reasons in this case indicate that his Honour adheres to the view that he – or adhered to the view that he had expressed in Al‑Kateb, and I will just take your Honours to it briefly.  It starts at paragraph 115 under the heading “The scheme of the Act” on page 363.  His Honour again commences by stressing the importance of the scheme to the construction of the particular provisions.  At 116 his Honour refers to the binary structure of the unlawful non‑citizens in 13 and 14 that I have already taken your Honours to.  The last lines on that page in 117:

must be kept in immigration detention until the occurrence of one of the terminating events –

Then at 118 his Honour says, reading from about three or four lines down:

Sections 189, 196 and 198 provide powers of detention and removal in aid of effecting a fundamental purpose of the Act, namely, providing that those who are not citizens of Australia may travel to and enter Australia and may remain in Australia only if they have permission to do so. No provision of the Act countenances any middle ground between being a lawful non‑citizen . . . and being an unlawful non‑citizen –

and yet this case is really about whether there is middle ground.  His Honour says, finally, in this case, at 127, that:

Understood in that way –

that his Honour has described, 196:

takes its place as a provision which is central to effecting the overall purpose of the whole of Pt 2 (ss 213‑214) of the Act.  That purpose is to control the arrival and presence of non‑citizens in Australia.  Mandatory detention under and for the purposes of the Act is the means which the Parliament has adopted to assert control over the arrival and presence . . . Detention under and for the purposes of the Act in accordance with those provisions serves the purpose of controlling the arrival and presence of non‑citizens in Australia.

We respectfully adopt that analysis and, to foreshadow where I will be coming to on the constitutional part of the case, we say that there is nothing about the separation of powers that prevents Parliament from giving effect to that purpose of controlling the arrival and presence of non‑citizens in Australia. 

I said Justice Bromberg was critical of part of your Honours’ reasons at 182 and 183.  Can I ask your Honours to go to that in the core appeal book, behind tab 4, and your Honours will see the discussion commencing from page 51 of the core appeal book, paragraph 57, where his Honour quotes, in a large block quote, those two paragraphs, 182 and 183 from M76, and the first point his Honour makes is at the end of 58.  He says:

Whilst obviously commanding great respect, those observations do not form part of the ratio –

and then he says at 59:

The difficulty in accepting that –

That is true, they are not part of the ratio, we accept that:

The difficulty in accepting that those observations should govern the proper construction of ss 189, 196 and 198 is that they are not readily reconciled with the preponderance of High Court authority, including Al‑Kateb itself.

There is then a reference to the minority in Al‑Kateb, which we submit does not assist.  Paragraph 61 then turns to the majority in Al‑Kateb, recognises that Justice Hayne’s judgment is the leading judgment, but then picks three paragraphs from Justice Hayne’s reasons, 243 and then the two paragraphs your Honour Justice Gordon identified, 236 and 237, as if they are reflective of the main point that his Honour Justice Hayne was making, but in both of those paragraphs, what Justice Hayne was doing was rejecting highlighting problems that would arise on the view that he did not favour.

So at 243 he is dealing with whether you can impose conditions on release, on habeas, and he says, well, if the detention is not lawful then surely you are entitled to release, and where then does the power to condition that release come from, if there is an entitlement to be in the community?  His Honour was definitely not saying, in that paragraph, anything supportive of the proposition that detention ceased to be unlawful, or that it did not leave room for the conclusion for 189 to have the operation that your Honours the Chief Justice and Justice Keane had accorded to it.

Likewise at 236 and 237, for the reasons I have already addressed in answering Justice Gordon, his Honour was highlighting the problem that would arise in giving sensible operation to 189.  He was not suggesting that 189 would not operate in accordance with its terms.  So one of the reasons that the Commonwealth relies upon to reinforce the strong textual meaning of 196, that it authorises detention until the event happens, is that if it did not mean that, then how do you give operation to 189?

Justice Bromberg sets that aside on the basis that the recognition in M76 of that very problem is inconsistent with authority, but his analysis, in our respectful submission, just does not bear that out.  To the contrary, the need to read the provisions together, and the express duty to detain any non‑citizen who does not have a visa, without more, that being what one finds in 189, just is not dealt with at all.  So, in our submission – and this is the end of our constructional submissions – both the text in 196(1):

kept in immigration detention until –

four things, all of which are events, removal in three ways or the grant of a visa, subsection (3) reinforcing that it is only when one of those four things happens that a court could order release, pointing to the proposition that detention is to be lawful until those things happen, and the scheme more generally, including the object in subsection (4) that it is only when non‑citizens have visas that their only source of authority to be in the community is to come from the Act and the Act gives that authority only through the grant of visas, all of that points to the proposition that as a matter of construction this Act does not contemplate a situation where a non‑citizen without a visa can ever be in the community and the situation which has prevailed since September last year in respect of the respondent is a complete aberration in the face of this regime.  If the regime is valid, as a matter of construction it does not permit the circumstance which has arisen as a result of the order made below.

That is all I seek to say by way of construction.  That then takes us to the second part of the analysis, which is whether, if the regime is understood, construed in the way I have just identified, it is valid across the range of its operations because if we can make that proposition good, then the constitutional question is complete, and one then turns to administrative law to enforce the limits.

In order to identify whether this scheme does comply with Chapter III across the range of its operations, I need to identify the nature of the Chapter III limit and one see that initially formulated in Lim and refined in Al‑Kateb.  So I need to take your Honours to both of those cases.

Starting with Lim (1992) 176 CLR 1, which is in volume 3, tab 6 of the joint book, while your Honours have very often been taken to this case, in fact in this case we are taking your Honours to it for some slightly different purposes to usual and therefore to some slightly different parts of the analysis.

Your Honours will recall that the leading judgment is that of Justices Brennan, Deane and Dawson.  In relevant respects, Justices Mason, Gaudron and McHugh all agreed with their Honours, but there was a marked division within the Court as to the validity of section 54R.  That part of the case is a part that our friends place great reliance on.  We submit that that is rather than to focus on an outlying issue rather than the key issue in the case for reasons I will develop.

The whole Court upheld the validity of section 54L, which was in relevantly the same terms as 196(1) – that is, there was a unanimous upholding of the precursor of 196(1).  That is the matter I am going to develop first before dealing with the 54R point.  Starting with the joint reasons of Justices Brennan, Deane and Dawson, if your Honours go to page 29 of the reasons.

There is a heading “Exclusion, Deportation and Detention of an Alien”.  The familiar passage that aliens within the country enjoy the protection of the law.  But, as your Honours the Chief Justice and Justice Keane highlighted tin M76, that does not deny that the status of an alien differs from the status, rights and immunities of a citizen in a variety of important respects.  The most important difference lies in the vulnerability of the alien to exclusion and deportation and the consequence is, as explained hereunder:

significantly to diminish the protection which Ch. III of the Constitution provides –

and there is then a discussion of, which I do not need to take your Honours through in detail, the importance of the power to exclude or expel aliens as a matter of sovereignty, and to its very long history, and quite a number of authorities to that effect are discussed.  If your Honours go – and there is also a discussion of Koon Wing Lau, which I will deal with in reply, if I need to.

Koo Wing Lau, there was a constitutional issue in Koo Wing Lau, but it was not a Chapter III issue – it was whether there was a sufficient head of power to support the law.  The entirety of the discussion about the purpose of deportation is just a discussion of the construction of the particular effect of the discretionary power to detain conferred by the Act that was then in issue.  It is, in our submission, of no assistance to your Honours; but if I need to say more about it I will deal with it in reply.  At 32, the Court, near the top of the page, holds that:

the legislative power conferred by –

the aliens power:

encompasses the conferral upon the Executive of authority to detain . . . an alien in custody for the purposes of expulsion . . . for the purposes of executive powers to receive, investigate and determine an application –

for admission.  So they are identified as, in effect, in the nature of exceptions to the familiar principle that their Honours have identified on the previous pages about the limits of the detention in custody, and the circumstances in which executive detention in custody can be authorised.

So their Honours affix as within power those purposes:  expulsion, and receiving, investigating and determining applications for admission.  They then turn, near the bottom of that page, to start to apply those principles to the provisions that were then actually in issue, starting with section 54L, which they identify as:

the pivotal section of Div. 4B.  It requires that, subject to s. 54Q –

which I will come to – but that is the time limit, the 273‑day time limit that then existed:

a “designated person –

not at this time an unlawful non‑citizen:

must be kept in custody” unless and until –

their Honours put it:

he or she is removed from Australia or given an entry permit.

So they read it as requiring detention unless or until removal.  The actual terms of 54L are back at page 17 of the report.  It does not use the words “unless and until”.  It says must:

be released from custody if, and only if, he or she is:

(a)removed from Australia . . . or

(b)given an entry permit –

If your Honours are looking at that, can I also ask you to note subsection (3):

This section is subject to section 54Q.

So the legislation dealt with the relationship between the mandatory ongoing detention and the time limit by subjecting the obligation to detain until one of those two events, expressly by subsection (3), to the time limit, which – that is important when we come to the 54R argument.

So, of a provision, relevantly the same as 196(1) in that it required detention to continue if and only if, or unless and until, removal or grant of a visa, the Court says valid, constitutionally valid, and it says that at page - having identified the test, which is the same test as we submit now needs to be applied to test whether this regime is valid across the range of its operations.  The test is at the top of page 33:

In the light of what has been said above, the two sections –

So that includes 54L:

will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made –

and their Honours, jumping ahead a little, so I will come back to the balance of 33, but if your Honours turn over the page to 34, halfway down 34, you will see the holding that:

the powers of detention in custody conferred by ss. 54L and 54N are an incident of the executive powers of exclusion, admission and deportation of aliens and are not, of their nature, part of the judicial power of the Commonwealth.

That leads to the answer unanimously given at the end of the judgment that section 54L and 54N are valid.  That is the way the question was answered.  So their Honours applied that test at the top of 33 to a regime that included a near‑identical equivalent of 196(1) and held that it satisfied the test.  Why?  Well, your Honours see the reasons from the middle of 33 through to the middle of 34, and the mode of analysis was entirely consistent with the Palmer approach we have urged on your Honours in that, in the first full paragraph on 33, you will see:

The powers of detention in custody which are conferred upon the Executive by ss. 54L and 54N are limited by a number of significant restraints imposed by other provisions –

So the mode of analysis is to say, well, we have this mandatory power of detention, but let us look at what the other provisions say about limits that might confine the circumstances in which that detention can occur, and their Honours then go through those limits and come to the conclusion that the provision is reasonably capable of being seen as necessary. 

The first part of the discussion concerns time limits that do not have any equivalent in the Act now, so 54Q is a 273‑day time limit, albeit one that stops and starts depending on whether various steps were being taken in the application process, and the detail of it does not matter.  Section 54P(2) also imposed a time limit in that if a person had not applied for a visa within a period of two months then there was likewise an obligation to then remove them. 

Their Honours say, having looked at that, those helped, they are limits, but they would not have been enough by themselves to satisfy the test.  The critical thing, and this is right at the bottom of the page:

those limitations would not, in our view, have gone far enough were it not for the provision of s. 54P(1).

Section 54P(1) is the equivalent of 198(1), the provision that says that if an unlawful non‑citizen requests removal, they must be removed, and that, as your Honours will see at the top of 34, was critical to the conclusion that the regime is valid, because it means that if at any point a non‑citizen says “Enough, I do not want to be here any more.  If you are holding me in detention to separate me from the community, I want to leave”, the non‑citizen can make that request and there is then a statutory duty to allow them to remove.  It was that fact that caused the Court to conclude that there was a sufficient limit on the mandatory detention arising under 54L to mean that the regime was still, to apply the test at 33:

reasonably capable of being seen as necessary for the purposes of –

detention or removal – sorry, for the purpose of, they use the word “deportation” but it means removal.

EDELMAN J:   Presumably your argument would be that, even if there were a request for removal and that request had not been complied with, that would not invalidate the detention.  It would simply render the Executive liable to an order for mandamus compelling removal.

MR DONAGHUE:   That is my submission, yes, because when one is characterising the regime and assessing the legislation, is this legislation capable of being seen as necessary, we submit it is because Parliament – it would be quite different if there was no capacity to enforce that removal because then Parliament would have created a regime that contemplated ongoing detention at the discretion of the Executive. 

But once Parliament says, “I’m going to limit that by imposing an enforceable duty to bring about a terminating event”, Parliament has done what it needs to do to link its regime - to ensure that its regime falls within the constitutional requirement.  Then if officers seek to breach it in the same way as happens across the realm of cases - we never say legislation is invalid because executive officers might breach it.  We say the legislation is valid and then the Executive must do what Parliament requires.  I note the time, your Honour.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn briefly.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11:32 AM:

KIEFEL CJ:   Yes, Mr Solicitor. 

MR DONAGHUE:   Thank you, your Honour.  Your Honours, I have nearly completed my submissions about the reasoning relied upon in Lim in upholding the precursor of 196(1) 54L and I would emphasise that at top of page 34 the Court relied in particular upon the fact that a non‑citizen could bring their detention to an end by requesting removal under the then equivalent of 198(1) as the critical feature in ensuring that the regime met the test that it was reasonably capable of being seen as necessary for the purpose of deportation.

Of course, just as is the case under the present regime ‑ and it merely picks up a question your Honour Justice Edelman asked me – there is a possibility in particular cases that even if such a request was made, that an officer might not have complied with it, and that a remedy might be needed to enforce that duty.

The existence of that possibility plainly did not cause the Court to think that section 54L was invalid.  There is nothing in the reasons to suggest that and the answer given at the end, on the last page of the report, is that section 54L is valid.  That answer would not be right if our friend’s contention is correct, that the possibility of executive non‑compliance with the regime is enough to generate a constitutional difficulty.

That is why, in our submission, our friend’s argument, which they made in writing and is repeated in their oral outline, that limb is fatal to our case – without us needing to apply to reopen it – just, with respect, is not correct.  Lim unanimously upholds the equivalent of 196(1) because the regime, including the duty under 54P(1) in particular, the 198(1) equivalent, is enough to satisfy the constitutional requirement.  That is what they held.  The possibility of non‑compliance in particular cases does not have any consequences for the validity of the Act on their Honours’ reading.

Now, rather than grapple with the way the Court upheld 54L, our friends place really all their reliance in the reasoning on Lim on the way that the Court dealt with a different section that does not now appear in the Act, 54R.  If your Honours turn to the next page of the report, page 35, you can see the Court turns to 54R – this is the provision upon which the Court divided four‑three, with the three members of the minority reading it down and holding that it did not operate to prevent release from unlawful detention, and on that view was valid; the other members of the Court held that in its terms, because it purported to prevent release from lawful detention, it was invalid.  So the terms of the provision, as your Honours can there see:

“[a] court is not to order the release from custody of a “designated person”.

A designated person was a more complicated concept than an unlawful non‑citizen.  It was not just a straight matter of whether or not a person is a non‑citizen with or without a visa, there was a whole list of different criteria that had to be satisfied.  It was possible to remain a designated person, amongst other things, even after the statutory time limit in 54Q, the 273 days had expired.

That had the consequence that – and indeed there were a couple of different ways under this regime but 54Q was the clearest, where detention that started as lawful required by 54L could become unlawful.  So that if one takes the case of a person lawfully detained for a long time, so that the 273‑day limit in 54Q expires, in its terms 54L then ceased to authorise detention because subsection (3) of 54L said that that provision operates subject to 54Q.

So one would then have had a position where the regime on its face did not even purport to authorise detention.  But then you come to 54R and 54R says:

A court is not to order the release from custody of a designated person.

That unsurprisingly elicited the reaction from the Court.  Parliament has purported to say that even though this regime obviously does not continue to authorise detention at this point, the Court cannot order release, and that is what caused the majority to hold the provision invalid.  The current equivalent of that – 196(3) ‑ does not have the same vice.  It expressly does not purport to stop people being released from unlawful detention.  It does not apply to designated persons.  It applies to the category of unlawful non‑citizens that I have already addressed.

So that while it is not surprising that 54R was held to be invalid, that is not a consequence that really goes anywhere in terms of the ramifications for this case.  One does see, and I do need to grapple with the reasoning at the bottom of 35 and on to 36, so your Honours will see that in the joint reasons from the last three lines there is an example:

The reason why that is so is that the status of a person as a “designated person” does not automatically cease when detention in custody is no long authorized by Div. 4B.  One example of such circumstances would be a case where a designated person continued to be held in involuntary custody notwithstanding that ss. 54L and 54P had become inapplicable by reason of the provisions of s. 54Q(1) or (2).

So that is the example I have just been dealing with:

Another would be a case where a designated person continued to be held in custody in disregard of a request for removal duly made under s. 54P(1).

Another example would be under 54P(2), which was the two‑month time limit.  My friends I think say that is the answer to the case, that detention would be unlawful because of those provisions.  But the Court was not here dealing with the validity of 54L; it was dealing with the validity of 54R.  Section 54R, as your Honours have seen, purports to or provides that:

A court is not to order the release from custody of a designated person.

Sorry to ask your Honours to jump around, but if you go back to the statutory provisions set out at 54L, you will see in 54L(2) that the way that Parliament has framed that requirement is:

A designated person is to be released from custody if, and only if –

one or other of those two things occur, that is, removal or grant of an entry permit.  So the statutory concept of release from detention that is used in 54L is a requirement that includes not just being granted a visa and let out, but being taken out of the country – being released from detention by being removed.  That, in our submission, is significant because if means that in its terms 54R did not just purport to prevent habeas, it would also have prevented the remedy that we say is the appropriate remedy for unlawful non‑compliance.  It would have prevented mandamus to require removal, in its terms.  If that is correct, then all of those examples are readily explained.

It certainly seems that 54Q was at the front of mind in the Court’s analysis and that that was the most obvious provision that showed why 54R was invalid.  But even the other examples that their Honours give there are explicable in the terms that I have just provided.  But the ultimate point is that here we are not having an argument before the Court today about 54R or any equivalent.  We are having an argument about 54L or its modern equivalent in 196(1), and it is not open to read the unanimous upholding of that provision as if it does not mean what the Court said that it means, which is that “the pivotal section” – this is the bottom of 32:

the pivotal section . . . requires . . . a “designated person must be kept in custody” unless and until he or she is removed from Australia or given an entry permit.

That provision, understood or construed in that way, is according to the unanimous court in Lim valid.  So far from being an obstacle to our success, Lim, in our submission, strongly supports the conclusion that the current regime complies with the constitutional limit identified by our friends as the seminal holding in Lim.

The same follows from Al‑Kateb.  I am not going to spend long on Al‑Kateb because, in my submission, it clearly endorses the validity of the existing regime.  Indeed, there are express holdings within the case that apply in the test in Lim that the current provisions are valid.  One sees that, for example, in Justice Hayne’s reasons at 260.

I would take your Honours to Justice McHugh’s reasoning, particularly at paragraph 45 and following because this was picked up subsequently, including by your Honour the Chief Justice and Justice Keane in M76, and it has been referred to thereafter in the footnotes in the joint judgment of six members of the Court in M96A.  If your Honours go to paragraph 45 in Justice McHugh’s reasoning, this is in the constitutional part of his Honour’s judgment, he says:

A law requiring the detention of an alien takes its character from the purpose of the detention.  As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non‑punitive.  The Parliament of the Commonwealth is entitled, in accordance with –

the alien’s power:

and without infringing Ch III . . . to take such steps as are likely to ensure that unlawful non‑citizens do not enter Australia or become part of the Australian community ‑

The paragraph which I have just read is endorsed in terms by your Honour the Chief Justice and Justice Keane in M76A.  His Honour then develops that reasoning in the paragraphs that follow, particularly at 46 and 47.  Paragraph 47 is a more detailed explanation of why the separation of the judicial power of the Commonwealth from legislative and executive power does not impact on the power of the Parliament to require the detention of non‑citizens who have entered without permission.  At paragraph 48, his Honour stresses that point again.  There is nothing in the same provisions now in issue that prevents the Court:

examining any condition precedent to the detention of unlawful non‑citizens.

And we would say similarly compliance with the duties that bound or limit detention:

Nor is it possible to hold that detention of unlawful non‑citizens ‑ even where their deportation is not achievable ‑ cannot be reasonably regarded as effectuating the purpose of preventing them from entering Australia or entering . . . the Australian community.

The same is true of provisions that require detention until removal actually occurs when combined with an enforceable duty to bring about that terminating event. 

I will not take your Honours to it, but Justice Hayne’s and Justice Heydon’s reasons, particularly at 254 to 255 and 266 to 267 are to the same effect.  In our submission, the majority in Al‑Kateb, holding these provisions to be valid, does so on the footing that when one applies the constitutional test in Lim are the provisions reasonably capable of being seen as necessary for the purpose of removal.  That is applied in a context that recognises that removal there extends to preventing entry into the community until removal actually happens, as Justice McHugh said in paragraph 45.

That analysis was picked up in Woolley, in the passages that we have cited in our oral outline, and I will not take your Honours to Woolley.  It was also, as I have intimated, picked up in M76 251 CLR 322. Can I take your Honours briefly back there - it is volume 4, tab 9, starting with Justice Hayne, again just to make clear that his Honour’s views on the validity of these provisions were in no way ambiguous, and quite contrary to what our friends put against us. So at paragraph 130, in his conclusion on the constitutional analysis, having said he upholds – or does not need to repeat all the reasons given in Al‑Kateb, Justice Hayne says:

Chapter III of the Constitution does not limit the powers –

conferred by the aliens power:

in a way which precludes the enactment of those provisions –

including 189, 196, 198, or:

their continued valid application to the plaintiff.  A law which requires the detention of a person who has no permission to travel to and enter Australia and no permission to remain in Australia until that person is removed from Australia does not constitute any exercise of the judicial power of the Commonwealth . . . It is a law within the legislative powers of the Parliament and is valid.

Your Honours, the Chief Justice and Justice Keane, came to the same conclusion at paragraph 205 - from 202 your Honours turned to the validity of the provisions.  At 202 you endorse Justice French’s observations as a member of the Federal Court in Ruddock v Vadarlis about the central aspect of sovereignty, to be able to control the entry and presence in Australia of non‑citizens, and then at 205, your Honours endorse the remark of Justice McHugh from Al‑Kateb that I have just read.  At 207, you likewise pick up comments of Justice Hayne, with Justice Heydon again agreeing in Re Woolley, and I will not read 207 to you, but we rely on 207 also.

The plurality reasons in this case, Justices Crennan, Bell and Gageler, did not need to reach this issue, but did make brief observations about Lim.  Your Honours will see that discussion at page 369 through to 370 in particular, picking up at the end of 138, the seminal holding in Lim, that I have already taken your Honours to:

reasonably capable of being seen as necessary –

At 139, explains that the necessity there in question:

is not that detention itself be necessary . . . but that the period of detention be limited to the time necessarily taken in administrative processes . . . The temporal limits and the limited purposes are connected such that the power to detain is not unconstrained.

There is nothing about our submission that is inconsistent with that.  We accept that there are constraints, temporal constraints, enforceable constraints.  It is just that detention does not become unlawful until those constraints are enforced, so the capacity to enforce the restraints means that the obligation to detain can validly continue until the events in question occur, and similarly, at 140, identifying:

The constitutional holding in Lim –

requiring detention to be:

limited to such period of time as is reasonably capable of being seen as necessary for the completion of –

the purposes.  Well, we submit that when one applies that test to this legislative regime, construing the regime, Parliament has created a regime that is reasonably capable of being seen as necessary for those purposes, because it has not purported to authorise unconstrained executive detention.  It is purported to authorise detention until a terminating event occurs, and then it has imposed duties, enforceable duties, to bring those events about.

So, the regime, as a matter of construction across the full range of its operations, complies with that constitutional limit.  That, in essence is why we submit that, applying the approach in Palmer, one tests the legislation, properly construed, against the limit, and concludes that it is valid, and then the question of case‑by‑case compliance falls to be determined by applying normal administrative law principles.

That is all I seek to say about the constitutional aspect of the case.  One then comes to what that means in practice, in terms of how the law then is to be applied, and the submissions I am about to make are really dealing with ground 1 of both appeals, because your Honours will recall that Justice Bromberg found - I will not take your Honours to it, but at 75, and then applying that finding at 128 and 171, that the reason that detention was no longer authorised or lawful was because his Honour said there had been:

a departure from the permissible purpose for the detention –

by which his Honour seemed to mean a departure by the executive officers who were doing the detaining required by the legislative provisions that your Honours have been addressing.  Our submission is that is not a meaningful concept, that the purpose of detention in these authorities focuses attention not upon the purpose of the detainer, whether subjectively ascertained or objectively ascertained, it focuses attention on the reason that the legislative regime requires detention to occur.  One sees that recognition of the focus being Parliament’s purpose in a few of the authorities, in S4 at paragraph 29, that I will come to ‑ ‑ ‑ 

GORDON J:   And 26 as well, I think, is the other place where purpose seems to be dealt with in different terms.

MR DONAGHUE:   Paragraph 26, your Honour?

GORDON J:   Yes, paragraph 26 of S4.

MR DONAGHUE:   Of S4.  One also sees it in M96A.  Picking up the purpose which the Act contemplates is what the Court, six members of the Court said in M96A, so understood in that way, the concept of purpose is illuminating, consistent with Lim, but does not contemplate the kind of exercise that his Honour Justice Bromberg engaged in, which seemed to contemplate that, in some way, by failing to discharge their duties under 198, somehow the particular detaining officers can trump Parliament’s purpose in mandating detention in the circumstances your Honours have seen, and substitute or depart, by departing, some different purpose that is of an unauthorised kind.

It is quite an anti‑rule of law conclusion to say that officers of the Executive could in some way dispense with the mandatory detention regime, or could mean that the mandatory detention regime does not operate if they fail to do what they are required to do, that the better answer is to give effect to Parliament’s regime by ordering officers to do what they are required to do, rather than by displacing the operation of the regime that Parliament has created.

That is the way that this – I withdraw that, I will come to that in one moment.  Our submission that one focuses on – that the capacity to obtain judicial review with respect to the terminating events is sufficient to ensure compliance with the constitutional limit in Lim is borne out by the way the Court approached the constitutional challenge, again, to these same provisions, that was advanced in Plaintiff M96A (2017) 261 CLR 582. Could I ask your Honours to go to that case, which is volume 4, tab 10.

Your Honours might recall this was a case about persons brought from offshore processing centres to Australia for a temporary purpose.  The argument that was advanced was that when people were brought here for medical treatment and then detained, that was inconsistent with Chapter III because detention for medical treatment was not one of the identified purposes.

Your Honours said no, that is a misunderstanding, there is a difference between the temporary purpose for which someone is brought to Australia and the purpose for which they are detained.  Those people were detained for the purpose of removal once a condition precedent had been met, which was that they no longer needed to be in Australia for the temporary purpose for which they were brought here.

But in form, the proceeding was a challenge to 189 and 196.  You will see at paragraph 1 in the joint judgment of six members of the Court, it was a demurrer – the issue on the demurrer is the validity of 189 and 196 to the extent that they purported to authorise the detention of those brought here for temporary purposes.  At paragraph 18, near the end of the paragraph, the last few lines:

As we explain below, the Act has the effect that the person will be kept in immigration detention whilst in Australia (s 189).  That immigration detention must continue until the time of removal –

196(1), again consistent with everything we have put to this point, and then at 19, 189 and 196 are discussed:

Section 196(1) provides that an unlawful non-citizen must be kept in immigration detention until the happening of one of four events -

That is how your Honours describe, we submit quite correctly – our friends, I think, say that is just describing the effect of the section, but that is exactly our point.  Your Honours are there describing how the section operates consistently with the other authorities until the happening of the terminating event.

In paragraph 21, near the end, having identified the limit in Lim, the seminal holding in Lim in the middle of 21, there are two discrete attacks identified, the second of which was focusing on “the time necessarily involved in the particular case” and the Court then addresses and rejects both of those attacks and we particularly emphasise what your Honours say at 29 through to 32 – sorry, I should have mentioned the first line of paragraph 27:

The purposes which the Act contemplates ‑

we respectfully submit quite correctly locating the purpose at the level of statutory construction.  Then, dealing with the duration of detention, from 29 onwards, there was a submission that those sections are invalid in that they permit:

the detention of transitory persons for a time which was incapable of being objectively determined -

relying on S4 at 29:

submitted that the period of detention . . . is governed only by the question whether and when the person “no longer needs to be in Australia” for the relevant purpose –

That was said to be for two reasons, because the period was not:

capable of objective determination by a court at any time, and from time to time; and secondly, because the temporal limits are not connected with the permissible purposes –

That is the most important one here.  In paragraph 31, your Honours found that 189 and 196 met the first requirement, detention could be ascertained “at any time, and from time to time”.  But then at 32:

The duration of the detention of transitory persons who are detained under s 189 of the Act is able to be objectively determined at any time, and from time to time. At any time it can be concluded that detention in Australia will conclude if any of the various preconditions explained above are met. One precondition is that detention in Australia will come to an end under s 198(1) as soon as reasonably practicable after the transitory person asks the Minister, in writing, to be removed –

In our submission, what your Honours are saying is that because the Court can objectively determine whether the events that bring about the terminating events have happened, can it necessarily enforce the limits that this scheme complies with the Lim requirements?  That, as we read it, is our very argument in this case, that the requirements from Chapter III had been explained and developed, including in the plurality judgment in M76 as requiring the limits of detention to be enforced, and at paragraph 32 it is found that they are.  Your Honour Justice Gageler gave separate reasons to the same effect, relevantly in concluding at paragraph 45, dealing with the same point that I have just been addressing:

the duration of the detention is capable of objective determination by a court at any time and from time to time. From the moment of the commencement of the detention under s 189, duration of the detention is made by s 196(1(a) and (aa) to depend on performance of the duty to remove –

It is the performance of the duty that triggers the end of detention, not the existence of the duty.  That reading of the way this regime works and of the appropriate remedy being mandamus is a reading of the regime that actually has a long history.  My friends I think say the long history does not help in the Federal Court because some of the cases preceded many of the relevant authorities.  They postdate Lim but they precede Al‑Kateb and the cases that follow. 

But in our submission – and I will not take your Honours to many of them – but there was a line of cases in the Federal Court that looked at these provisions and said they mean what they say and when there is non‑compliance with the duty, the appropriate result is not release, but mandamus to enforce the duty. 

Their Honours actually - Justice French in one case that I will come to and Justice Beaumont in another – regarded that as a straightforward and obvious application of the law in the context of these provisions and, in our submission, their Honours were right to do so.  Nothing that has happened in the subsequent cases detracts from the clarity and correctness of their analysis. 

The Justice Beaumont case we have handed up I think in an extra bundle to your Honours.  Depending on the form your Honours have it in, it might be in an extra book marked Part D, tab 7, but it is NAES v Minister.  I hope your Honours have that.  Have your Honours located that? 

Justice Beaumont in this case determining an application for habeas in a matter argued by experienced public law counsel on both sides regarded the application as misconceived.  Obviously, we are not relying on this in any way as a binding precedent.  We just submit that the analysis from an experienced judge determining a matter brought by experienced counsel might be of some persuasive assistance to your Honours.  If you look at paragraph 11, you will see Justice Beaumont concluding that the application for habeas was:

fundamentally misconceived.  Even if inexcusable delay on the part of the Department had been demonstrated –

a question his Honour did not resolve:

the only appropriate remedy, in my view, would have been an application for mandamus compelling “the officer” upon whom is placed the statutory duty prescribed by s 198 to remove the applicant “as soon as [is]reasonably practicable” -

No such remedy is sought here.  His Honour then explains that in part by reference to a decision of Justice Murphy in this Court in a tax case, drawing a contrast with the situation where there is an obligation to determine a taxpayer’s objection within a timely fashion and he makes the point in paragraph 14 that it would not be suggested that if the application was not determined quickly enough it should be treated as allowed, for some reason.  Instead, the remedy would be to make the officer do what they are required to do to grant mandamus to enforce a decision.  His Honour explains at paragraph 15 that even:

if inexcusable delay had been demonstrated, the Court would issue mandamus . . . this form of relief would give effect to, rather than undermine, the statutory scheme, and accordingly would be the appropriate type of remedy in a case of the present kind. By contrast, an order for release made in circumstances other than the three terminating events prescribed by s 196 would undermine the legislative scheme, and, accordingly, would be beyond the Court’s competence.

It is exactly the same analysis that we are putting to you now.  So we cannot claim originality, but not only was it accepted there but it was regarded as obviously right.

Justice French, as a member of the Federal Court, engaged in a similar analysis in the case of WAIS v The Minister for Immigration, volume 5, tab 19.  Again, going to it very briefly, at paragraph 47 ‑ I think I foreshadowed to your Honours that his Honour had described 189 as using “imperative and uncompromising” terms.  You see that at 46 of his Honour’s reasons.  At 47, his Honour addresses 196:

The obligation which it creates is unqualified and in terms unlimited in time except by reference to the . . . terminating events.

At 49, his Honour discusses the obligation to remove.  In the third line:

That removal necessarily terminates the continuing detention under s 196. That the removal must take place “as soon as reasonably practicable” after a written request or final refusal of a visa . . . does not, on the face of it, import any express or implied limitation upon the obligation to detain the unlawful non-citizen under s 196. That obligation or liability is terminated by the event of removal.

There is discussion at paragraph 50 of Al Masri and then at 56 is the conclusion:

I have serious reservations as to its correctness. Were a constructional choice available . . . I would have little hesitation in adopting it . . . The language of s 196 however seems to me to be intractable. The detention there prescribed is ended only by one of the terminating events. The removal obligation for which s 198 provides does not seem to have been enacted for any purpose protective of the rights . . . facilitates the expeditious removal from Australia . . . The remedy for a failure in the discharge of that duty may be mandamus, possibly directed to the Minister . . . The Parliament has specified precise criteria by reference to particular events, upon which detention under s 196 will terminate. It is difficult to see how the Court can in effect legislate another limiting condition.

So I rely upon those judgments for their persuasive value in that they reflect an identical analysis to that the Commonwealth now advances, some 20 years ago, and in our submission, nothing in the intervening authorities discharges them or undermines them. 

That leaves only, in the oral outline, paragraph 11, concerning S4.  Your Honours will have noted from a review of Justice Bromberg’s judgment that S4 was by far the most significant authority that influenced his Honour, so we have given you, I think, in our oral outline, yes, in paragraph 11 of the oral outline, many of the references where his Honour is discussing the effect of S4, which is, in our submission, undoubtedly treated as the leading authority, and that far overshadows any discussion of Al‑Kateb or M76, or even Lim, beyond the identification of the seminal holding.

It is a striking feature of our friends’ submissions, and indeed, their oral outline, that S4 gets almost no mention.  Indeed, we think it is not mentioned at all in our friends’ oral outline, which is, we submit, reflective of a correct appreciation that S4 is not really the most relevant authority here.  S4 was not a constitutional case, was not about the legality of detention. 

The plaintiff in S4 had been granted a visa, and his argument was that the grant of that visa was invalid, because it had the effect of cutting across other statutory processes that had been underway, so it was all about – the argument in S4, all about whether one statutory power, abstracted from another statutory power, having regard to the facts that were in play.

The Court analysed the provisions in question in this case, principally for the purpose of establishing that when a process was underway that prolonged a person’s detention, for the purpose of informing whether or not there should be an exercise of a non‑compellable power in section 46A, that accommodation, prolongation of detention, was subject to a time limit or not. 

The Court held that because, when these inquiries were underway, the regime accommodated, did not require removal - the obligation to remove was effectively suspended while the inquiries were underway to inform the exercise of that power, the Court held that there had to be an implicit time limit on the taking of those inquires because otherwise, if there was no time limit, detention would be at the unconstrained discretion of the Executive.

We have no difficulty with any of that, but the analysis that was undertaken of the provisions now in question was all undertaken for the purpose of establishing that there was a timeframe restriction upon the inquiries that were being undertaken because that was then a step in the abstraction argument, that the power under 195A did not extend to the grant of the visa that was then challenged. 

But none of that was directed to the legality of immigration detention, let alone to the legality of immigration detention after one of the terminating events should have occurred but had not occurred.  No one made any arguments about that.  There was no discussion of Al‑Kateb, of M76, of any of those cases. 

So it is not particularly helpful to take a discussion in a completely unrelated context and to focus on it to the exclusion of the squarely relevant authorities.  It may be for that reason that that is why our friends are not doing that.  Justice Bromberg did not, and we have – really, the reasons I have already given explain why the Act should be construed as we have.

In the circumstances I think, your Honours, with the Court’s permission, it might be more sensible for me to not try to pre‑empt what may or may not be done with the case, and if I need to say anything further about it, I will deal with it in reply.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.

MR DONAGHUE:   If the Court pleases.

KIEFEL CJ:   Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  Your Honours will see from our oral outline that the order I was proposing was firstly to make some observations about the issues the Court needs to decide, which will take hopefully a slightly broader approach to the issues than has been taken this morning; that will be the first topic.

I will then offer the Court our construction of the key provisions, on the face of the provisions, before coming to the authorities.  Then when I come to the authorities, which will be section C, we will submit that Lim is direct authority on construction as well as on the constitutional question.  And having dealt with Lim, I will deal with the other authorities on construction.  I will then turn to the Chapter III argument per se, and then finally the question of remedy.

Your Honours, on the conceptual issue that the Solicitor commenced with this morning, there is no substantial difference between the parties, subject to one point I will note.  We agree that the correct order is first construction, then second constitutional validity.

We agree that at the stage of construction, constructional choices need to be open on the language of the provision, before one can resort to the proposition that the legislation should be construed consistently with the Constitution, if at all possible; there is no dispute as to any of that.

If the provisions are intractable, in the manner the Solicitor contends, we then submit they are invalid under Chapter III in their operation in the present circumstance.  If the provisions are first construed and then found to be constitutionally valid, we agree there is then, of course, an administrative law question, and we agree that one does not confuse the Constitution with the administrative law.

The one point of disagreement between us is this. At the stage of construction, it is our contention that the limits as to purpose and time which arise from section 198 go to whether the detention is authorised and therefore valid under section 196.

So at the stage of construction, we submit that if there is a breach of the limits, the detention is unauthorised, is invalid and therefore opens up remedy.  And the remedy will be at least damages for false imprisonment, and subject to the submissions I want to make in answer to your Honour Justice Gordon’s question, in a proper case extend to habeas.  But before one gets to the remedy – which is certainly false imprisonment, damages, and we submit habeas in a proper case – the anterior construction question is, does the breach of the limits go to the authority to detain and its lawfulness and validity?

That is the essential construction difference between the parties.  We submit a breach does go to authority and lawfulness and validity.  The tenor of the Commonwealth’s submissions is that a breach of the limits does not go to those matters.

KIEFEL CJ:   What do you say the purpose is, Mr Gleeson, for the process of construction?  What do you identify as the purpose of the scheme of the Act?

MR GLEESON: Your Honours, the overall purpose of the scheme of the Act is identified through the objects. There is no difficulty with that. When it is brought to sections 189, 196 and 198, purpose is to be looked at at two levels, which are not to be confused.

At the level of the statute, the purpose of the detention arises from, in particular, section 198, which is the purpose of the detention is either, during what I will call stage 1 ‑ which is considering the grant of a visa – the purpose is probably compound, it is preventing the person entering the community pending that decision, but it is also keeping the person available so they can ultimately be removed if the decision is adverse.

At what I will call stage 2, which is our case, once all possibility of a visa has evaporated, the purpose of detention is solely to facilitate removal as soon as reasonably practicable under section 198. Of course, your Honours know that through the process of residence determinations which arose under the amendments post‑Al‑Kateb, there is the possibility, through executive discretion, that a person might be in the community although under that control while they are in the removal phase.  We are not that case.

KIEFEL CJ:   What do you say to the wider purpose of preventing the entry of an unlawful non‑citizen into the Australian community?

MR GLEESON:   We say two things, your Honour.  Firstly, at the level of the construction of the statute, that purpose is undoubtedly there, but it sits next to a fundamental assumption that the Executive will comply with the duty to effect the removal as soon as reasonably practicable.

Because of that proposition, the very stark issue raised by this case – and I will need to come to section 197C, which so far has been an unhappy orphan in this appeal – the Court is faced with this very stark circumstance.  It is not a case where some people were a bit slow, or some people were trying hard but were careless or negligent.

What has happened under this scheme is that Parliament, in 2014, passed the provision section 197C, which indicates in unequivocal terms – your Honours will have it in volume 1, at page 55 – that when one is at the stage of the removal duty, it is irrelevant whether there are non‑refoulement obligations in respect to the person.  That section – I will come to the extrinsic material in a moment – was deliberately passed to reverse what was perceived to be the effect of the decisions of this Court, that at the stage of removal, the Parliament would not intend Australia to breach non‑refoulement obligations without using clear language.

The Parliament said: you asked, here is the clear language. The effect of that is that since 2014, on the statute books, and 2017, when the decision was construed by Justice North, in the context of “my client”, it has been perfectly clear to the Commonwealth that under section 198 they cannot refuse to send AJL20 to Syria on the ground that that would put Australia in breach of international law. That is the duty. It is a harsh duty, but that is the duty.

What has happened in this case, in the very extraordinary facts one would hope not to be repeated, but found by Justice Bromberg and not challenged, the Commonwealth put in place a policy of denying section 197C, and the policy was, notwithstanding what the Parliament has said, we will keep this person in detention for such indefinite period as appeals to us, in preference to performing our duty under section 198. And it is proper, in those circumstances, to characterise the actions of the Commonwealth as a deliberate prolongation of detention, purportedly under section 196, in defiance of the duty under section 198 as confirmed by section 197C.

So coming back to your Honour’s question, any appreciation, at least in our submission, of purpose, needs to recognise that the Court is confronted with the quite extraordinary position where the Commonwealth says, and acted for a year, and continued to defend at trial, and did not take up the opportunity of Justice Bromberg that he would receive any further evidence before judgment, the Commonwealth’s position is we will not perform the duty of removal, which is the purpose which grounds the detention in the first place.

So if one then asks the questions from S4, we do not abandon S4, but we accept it is, of course, a very different fact case, what is the purpose and what is the time limit?  The purpose that was set for detention, which was lawful, was to effect removal as soon as reasonably practical.  If one asks why is the Commonwealth actually detaining, at least up until the habeas, this person ‑ and you have not heard an answer to this question this morning or in the written submissions ‑ why are they detaining him for that year until the court granted habeas?

It is not for the purpose of removal, because they have set removal aside.  It is hard to avoid the proposition that the detention is either purposeless, it is arbitrary, because it is to continue for so long as the Commonwealth pleases, ignoring its duty of removal, subject only to what?  The possibility of that detention being foreshortened if someone moves mandamus and gets mandamus.

KEANE J:   Or your client makes a request to be removed.

MR GLEESON:   Your Honour, that would in fact not alter, with respect, the situation, because the request would be a further trigger for the same duty to remove as soon as reasonably practicable, and the answer ‑ ‑ ‑ 

KEANE J:   But if he had made a request for removal, there would have been nothing, would there, to – nothing to stop a court making an order for mandamus that he be removed.

MR GLEESON:   Well, would there be anything to stop that request?  I will not avoid your Honour’s question but the first thing I would say is of course a person in my client’s position would not be expected to be making such a request.

KEANE J:   Or the section.  The statute recognises that he may.  It is hard to say he would not be expected to do it when the section creates a right and when presumably he has the benefit of legal advice.

MR GLEESON:   Yes.  But, your Honour, the question is whether that possibility, even if that were available and even if that would follow, how does that feed back into (a) construction and then (b) constitutional limitation in a circumstance where the duty of removal has been triggered in any event?  It was triggered 25 July 2019 when the last chance of a visa evaporated.

KEANE J:   It has not been performed because the officers in question have been acting upon irrelevant considerations.

MR GLEESON:   It is a little stronger, with respect, your Honour, than irrelevant considerations.  It is certainly that.

KEANE J:   Well, it is not unnecessarily strong, is it?  Section 197C says it is irrelevant whether the Commonwealth has non‑refoulement obligations.  So 197C is saying in the performance of your duties do not concern yourself with whether Australia has non‑refoulement obligations.  They have acted upon the irrelevant consideration in that they have, perhaps not culpably, on the basis that they have been concerned that Australia might have non‑refoulement obligations in relation to someone like your client.

MR GLEESON:   Your Honour, what happened when this legislation came in – and I will take you to it in one second – was the Executive said to the Parliament, “This looks like a harsh section which appears that it may place us in breach of international law.  Don’t worry, because if a person arises in this very situation what will happen is, we have a panoply of discretionary powers available to us whereby we will avoid that problem”, and the discretionary powers included protection visa, included a 195A.

So the Parliament was never told what will happen is that officers, perhaps non‑culpably, will decide to prefer mercy over the law.  The Parliament was told the exact opposite, that we are putting a section in which will tell the world that Australia does treat removal, irrespective of non‑refoulement, but it will never hurt anyone because we will exercise discretionary powers.  What this case arises ‑ and why it is so stark, it is not carelessness, slackness, delay. 

The Executive has said two things: one, we know that is the duty under 197C. We will not perform it and we are actually persistent in that view; and two, to the extent we have discretionary powers which will alleviate the hardship, we will exercise none of them. That is a fair characterisation of what has happened. In the context of that, the question we frame, at the level of construction at least, is where the limit in section 198 which feeds back into section 196 and provides you the purpose and the time – remove as soon as reasonably practicable – is being disregarded by the Commonwealth Executive, perhaps as an irrelevant consideration, does that go to the continuing authorisation to detain that person?

If it does go to that continuing authorisation and renders that detention unlawful from that time on, one then asks the question of remedy, has Parliament precluded the ordinary remedy of false imprisonment, and you have heard not a word in writing or orally to suggest that false imprisonment would not be available, and the second‑best outcome for this person would be to uphold the finding that the detention was unauthorised from 25 July 2019, and allow the damages to be assessed, as his Honour has indicated.

Then the second question is, has the Parliament evinced an intention that the ordinary remedy, granted as a matter of right but not course, where detention is unlawful, habeas is to be excluded, perhaps because of the scheme of the Act, the purpose of the Act, and you are limited to a different remedy with a different onus, and a different purpose, namely mandamus.  That is the way we would submit the issues need to be grappled.  We submit, it is wrong to collapse this ‑ ‑ ‑ 

KEANE J:   On the other side it is said to you, not just that the officers of the Commonwealth were authorised to continue the detention, but they were obliged to, in the sense that they were obliged; whatever else their obligations were, or their authorities were, they were under an obligation not to admit your client to the community, because he did not have a visa.

MR GLEESON: Yes.

KEANE J:   They had no authority to do that, they had no authority to take the step of releasing him into the community.

MR GLEESON: Your Honour, I will come to various steps in our argument, but one of them will be that, in a number of the cases, and it goes back to Koon Wing Lau, it goes back to Park Oh Ho, we submit Lim, there is an appreciation by the Court that the purpose for the detention, which is what has kept it within constitutional limits, that is at the statutory level, informed by the Constitution, can, on the particular facts of the case, be exceeded, or disregarded, or abandoned.

KIEFEL CJ:   Mr Gleeson, a difficulty I am having conceptually is this.  I am a little confused about whether you are talking about a statutory purpose or you are talking about the purpose of the Executive, and I am having difficulty – I seem to elide the two, it might be my misunderstanding of what you are saying, but the quality of the actions and the motivation for the Executive acting in the way it did, by policy or otherwise, and howsoever that cast, adjectivally, the failure to fulfil a duty – I am just having trouble seeing how that informs the question of what the statutory purpose is in relation to detention.

MR GLEESON: Thank you, your Honour. I am seeking not to confuse those two questions. The statutory purpose set by the statute, in the context of this person, is driven by section 198, it is to remove him as soon as reasonably practicable.

KIEFEL CJ:   That is at one point, but in the scheme, the scheme of the three sections operating together, it is a wider purpose, is it not?

MR GLEESON: Yes. The purpose was, at the beginning, because he was an unlawful non‑citizen, did not have the visa, he was to be segregated from the community by section 189. Then 196 built on top of that, and said he was both authorised and required to be detained. And all of that was with a view to what the Court described in some cases as the leading provision, section 198, which is what is the point of all this, which is either removal “as soon as reasonably practicable”, which is our case, or at the earliest stage, considering ‑ ‑ ‑

KIEFEL CJ:   The duty in accordance with the purpose of the scheme is to keep a person in detention until removal or the grant of a visa effectively can be obtained – that is the effect of the authorities?

MR GLEESON:   It is to keep them there for the purpose and for the time necessary to achieve those ultimate ends, which are either consideration of visa or removal.

EDELMAN J:   Is your argument ultimately really just a particular application of the general approach that a statutory duty or power is to be read not literally, but as confined to the identified purposes of the general statute?  And if so, is your approach to read 196 as a duty to detain, but to do so only for so long as it is reasonably necessary for the purposes of – or reasonably practicable for deportation?

MR GLEESON:   That is at the core of our approach, your Honours.  Your Honours, it may be convenient if I go directly to Lim because – these are slightly out of order.  But we submit that Lim provides you with solid support on the construction question, before you get to the Constitution.

GAGELER J: Mr Gleeson, at some stage I would really be assisted by us all looking at section 196, and you telling us exactly how you read it.

KIEFEL CJ:   Perhaps you could do that now.

MR GLEESON:   Yes.

KIEFEL CJ:   I think it might be a good lead‑in to Lim.

MR GLEESON: It sounds like it. Our first observation is this: it applies to unlawful non‑citizens detained under section 189. Under section 189 the usual case will be mandatory detention, that is subsection (1), and that is the one we are most familiar with, and subsection (3) is also mandatory. But it should be observed that there are some cases under section 189 where detention is permissive – subsections (2), (3A) and (4) ‑ and they appear to concern persons who are in certain outer reaches of Australia.

So, by the time one gets to section 196, most people caught by it, but not all people, are there because of the mandatory duty under section 189. The second observation is that, yes, it says:

must be kept in immigration detention until –

and then one sees the four events that follow.  Relevantly, under (a), this is our third observation, until the person:

is removed from Australia under section 198 or 199 –

So, the construction exercise has to bring together the force of the “until”, together with the concept that it is removal “under section 198 or 199”. So, to take a very clear case, a little different to the present, but not much different: if, for example, the person is being kept in detention as a matter of fact because the Executive wants that person to be available to give evidence in a criminal prosecution. They were the facts that this Court contemplated in Park Oh Ho (1989) 167 CLR 637, which is page 463 of the volume.

Such a person would no longer, we submit, be within lawful detention under section 196, because they were not being kept there until removal under section 198, they were being kept there for a purpose which the statute had not authorised as a valid purpose of detention, namely ‑ ‑ ‑

KIEFEL CJ:   But there might be an exception in the sense that Lim refers to.

MR GLEESON: I am sorry ‑ ‑ ‑ 

KIEFEL CJ:   There might be an exception to the Lim principle, according to Lim.  Do not worry about it.

MR GLEESON: No, I am sorry.  In that case, at the construction level, the question is are they being kept until removal under 198, if they are being kept, in fact, to be a witness in a case, and then secondly, yes, with respect, your Honour is correct that if we were wrong on that construction question, there still would be a question ‑ ‑ ‑ 

KIEFEL CJ:   They would come under another head, but I am distracting you from your construction.

MR GLEESON:  Yes, but ‑ ‑ ‑ 

GAGELER J:   As I am understanding, the central point of your construction is that you read into the word “until” a purposive element of the detention, is that right?

MR GLEESON: Yes, yes.

GAGELER J: The purpose, relevantly, here, when you look at section 198, is the performance of the duty, is that right?

MR GLEESON: Yes, yes.  As opposed to a view which is “until” simply means you are to be kept there for as long as it takes, perhaps forever, as long as it can be said that one of those four terminating events has not occurred in fact.  Now, when I come to Al‑Kateb, I will seek to put ‑ ‑ ‑ 

KIEFEL CJ:   I was going to ask you how you square this with Al-Kateb.

MR GLEESON:   Well, apart from showing it is grappling with a different issue, I will show your Honours that in each judgment of the majority, including many passages you were not referred to this morning, there was a contemplation that the duty of removal might descend.  But to take up your Honour Justice Steward’s question, the ultimate time for performance may not yet have arrived in Justice Hayne’s view because of impediments arising from overseas.

But every time Justice Hayne looked at that question, he appeared to contemplate that there could be cases where in fact the time had come for performance of the duty and his Honour then was very clear that, if the time has come for performance and the duty is not performed, in his Honour’s view the world was then completely binary, the detention was unlawful and in his Honour’s view you could not even attach conditions to habeas – it is either lawful or unlawful.

I will need to come to Al‑Kateb this afternoon but at the construction stage that is the sort of import that we seek to give to section 196(1).

KEANE J:   So that when the time comes, when the duty is to be performed, the result is not that the court orders the duty to be performed; the court orders something entirely different.

MR GLEESON:   The result is that the court responds to the fact that the failure to perform the duty has gone, on the proper construction, to the continued authority to detain and the court responds to that fact, the lack of continual authority to detain, by the remedy which answers that as a writ of right.

Part of the issue in this case is that it is very easy to say mandamus solves all.  In most cases, mandamus is not there to enforce the limits around detention.  This is the particular case where it is the breach of those limits which arguably, as a matter of construction or constitutional limitation, has gone to the continuing authority to detain and that is at the point at which the observations your Honour Justice Keane and the Chief Justice made in M76, which we obviously have to grapple with, about the scheme of the Act.

Taken even at full value, your Honours were not confronted with the situation we have here, where one has the failure to perform the duty which is what is prolonging detention.  And one of the concerns in all of the cases of the Court in recent years has been prolongation of detention and how that impacts upon the construction of the scheme and its validity.

So S4, while a very different case, was one where the fact the 46A process was voluntarily undertaken, prolonged the detention which would otherwise occur, and that had consequences when one came to construe the power under 195A. So, in a case where the Executive does not engage in detention for the purpose of removal under section 198, thereby prolonging the detention, one is then saying what is the answer the Act provides to that as a matter of construction or constitutional limitation.

While I am on your Honour Justice Gageler’s question, as to subsection (3), the parties radically differ as to the role it plays.  That section is the functional replacement of section 54R which was found to be invalid in Lim.  The Solicitor said this morning that 54R is no longer in the Act.  In fact, it is in the Act, it is section 183, because what has happened – I am not sure if your Honours have the full Act ‑ ‑ ‑

KIEFEL CJ:   No, we do not.

MR GLEESON:   ‑ ‑ ‑ but the Division 4B which Lim considered has remained in the current Act as Division 6, commencing at section 176 going through to section 187.  So 54R, which was found to be invalid, is now section 183, and that section the Court would take to be invalid because of the ruling in Lim. 

When you come to 196(3) – which is its functional equivalent – it has a slight difference in language with the carve‑out but it is, perhaps, difficult to see whether that was designed to do something different to 54R.  What, in fact, happened – your Honours may appreciate this – the 1992 Migration Reform Act – which has created the current scheme – was assented to on 7 December 1992.  That Migration ReformAct brought the provisions broadly into the current form and included the equivalent of 196(3).  Lim was decided the next day, on 8 December. 

With the knowledge that Lim had struck down section 54R, the Parliament subsequently passed an Act deferring the commencement of the 1992 Act until 1 September 1994. So, what that means is that section 196(3), which was relied upon today as strengthening the Commonwealth’s construction, in fact, was passed without the immediate knowledge under Lim, that its predecessor was invalid but was then left on the books even with that knowledge.  I see the time, your Honours.

KIEFEL CJ:   Thank you.  The Court will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  Could I complete the submission on the role of section 197C in the case and then move to Lim.  The materials that I referred to on section 197C are in volume 6 commencing at page 984 which is the explanatory memorandum.  The purpose of section 197C is set out in quite a few places in that – I am sorry, it commences at page 998.

GORDON J:   What tab number is that, sorry, Mr Gleeson?

MR GLEESON:   Yes, so that is ‑ ‑ ‑

GORDON J:   I apologise.

MR GLEESON:   Yes, it should be in volume 6.

KIEFEL CJ:   I think it is tab 23, Mr Gleeson.

MR GLEESON:   Tab 23, thank you, your Honour.  The document – I am going to particularly page 1163 – to go straight to the heart of it is that paragraph 1132 says what the section is doing and the following paragraphs say it is intended to reverse the decisions in this Court in Plaintiff M61 and Plaintiff M70, particularly as interpreted in some Federal Court decisions and the purpose – 1137 – said very clearly is to restore what is said to be the earlier jurisprudence that removal powers are separate from and completely independent of any provision in the Act which might be interpreted as implementing non‑refoulement obligations. 

Then 1142 is the assurance to the Parliament that the Executive would ensure that the non‑refoulement obligations would be met by the exercise of the discretionary powers.  To similar effect, page 1244 in the middle, the Executive recognised that the provision might appear to be inconsistent with non‑refoulement obligations but that would be dealt with on an administrative basis.

In terms of the findings of his Honour, which are not contested, if your Honours could go please to the judgment, at paragraph 121 there is a finding that the Department put in place a policy inconsistent with section 197C, paragraph 122 not based on any misunderstanding and at 123 his Honour said that:

the Commonwealth cannot act as though s 197C does not exist.

Your Honours, coming to Lim, could I first identify the then scheme and show its relevant similarity to the present scheme. It is in the materials at page 338, which should be in volume 3 at tab 6 – and just to annotate those provisions, section 54L is the close equivalent to section 196(1) and section 54P(1) is the equivalent to section 198(1), 54P(2) is equivalent to 198(5), 54P(3) is equivalent to 198(6) and 54R is the equivalent, but for a few words, of section 196(3). That is the equivalence.

Then if I could pick up the decision of Justices Brennan, Deane and Dawson, noting the passage that you have been taken to this morning, commencing at page 29 of the judgment, but particularly at the foot of page 30, the top of page 31, this is said:

In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to –

and I emphasise this part:

authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective.

So that critical limit, that it is restraint to the extent necessary to make the deportation effective, is taken to be the jurisprudence of the Court.  At that point, reference is made to the decision which the Solicitor said this morning you can ignore, save for what he says in reply, Koon Wing Lau v Calwell. 

We would ask you not to ignore that decision because clearly, on this page, the judgment has treated it as of considerable significance in understanding the position that the jurisprudence of the Court had reached.  From this decision, admittedly under a mandatory deportation, but that not being of destruction to our principle, you will see from the extract of Chief Justice Latham, the important passage near the end of the page:

Section 7 does not create or purport to create a power to keep a deportee in custody for an unlimited period.  The power to hold him in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls.

I then emphasise the next part:

If it were shown that the detention was not being used for these purposes the detention would be unauthorised and a writ of habeas corpus would provide an immediate remedy.

We observe there that the power of detention receives a limit by reference to purpose and, if it can be shown in fact that the power of detention is being used for a different purpose, that excess of the limit goes to the authority to detain and the remedy is habeas corpus.

Pausing there, the two critical steps of our argument are present.  Firstly, if you accede the limits which are attached to the purpose for the detention, that deprives the continuing detention of authority and, secondly, the remedy of habeas corpus is available, one might immediately say in contrast to the Commonwealth’s argument which would limit you to mandamus to compel the officer to put you on the vessel.

Following Chief Justice Latham, the Court briefly says that similar comments were made by Justice Williams, with the concurrence of Justice Rich.  The manner in which Justice Williams put it is rather pertinent to the present case.  You will find that at page 452 of this volume.  At about point 8, Justice Williams said that:

a deportee may only be kept in custody pending his deportation and until he is placed on board a vessel for deportation from Australia -

Pausing there, the language is “until”, which is reminiscent of section 198, but his Honour goes on:

so that, if it appeared that a deportee was being kept in custody not with a view to his deportation but simply with a view to his imprisonment for an indefinite period, the custody would be illegal.

Your Honour the Chief Justice asked me this morning whether we are blurring or otherwise not being sufficiently clear about how purpose comes into our argument.  We submit it comes in at two levels.  The first is the statute will on its proper construction tell you the permissible purpose for the detention.  In Koon Wing Lau, it was a view to deportation on a vessel.

KEANE J:   Is it also the case that the person in question was otherwise entitled to be in Australia?  It seems that the persons to whom the Act in that case applied were persons who entered Australia during a period of hostilities and as an alien.  It does not seem to be suggested that there was any problem though about their residence, save for the process of deportation.

MR GLEESON:   I believe that is correct, your Honour. Unless I say otherwise, I accept what your Honour has said. Interestingly though, it thus puts the case functionally equivalent to those parts of section 198 that I showed you this morning, the perhaps unusual cases where it is permissive detention within certain parts of Australia. So when we get to – if I could just finish on ‑ ‑ ‑

KEANE J:   Sure.

MR GLEESON:   When we get to the hard question your Honour asks me about under 196, that is in respect of provisions which must sit together with 189 and 198.  At 189 level, it is applying to both mandatory and permissible detention.  The scheme may not be completely identical in Koon Wing Lau but what seems to be important is, even though you do not see in words “The purpose is X”, what you see is – because it is detained until deported upon a vessel, the Court has said that has given you a purpose and a legal limit for the detention.

Then, to answer your Honour the Chief Justice, the second level of purpose is if it can be shown on the facts, which will usually be a very difficult exercise but succeeded here, that the purpose for which the power is being deployed is inconsistent with – antithetical to the purpose set by the statute, that is the point at which the detention becomes unlawful, number one, and then the remedy will be, we would say, false imprisonment damages and ordinarily habeas.

KIEFEL CJ:   But the purpose you are talking about is the Executive’s purpose in that latter scenario, is it not?

MR GLEESON:   Yes, exactly, your Honour.  It is the purpose for which the Executive is purporting to use the power or carry out the duty that is being imposed upon them by the Parliament.  We did not shy away from the fact.  The Solicitor says there can only be one purpose here.  The purpose comes from the statute, the purpose is removal ‑ ‑ ‑

KIEFEL CJ:   But you are saying that the Executive’s purpose is not the same as the statutory purpose?

MR GLEESON:   Only in the case where the purpose is shown not to be the statutory purpose does that matter then deprive the detention of the authority which it received from the statute, and then a habeas is opened up.  So coming back to Lim at pages 31 and 32, we submit it is of significance that the judgment of Justices Brennan, Deane and Dawson treated Koon Wing Lau, even though it is under, as your Honour Justice Keane points out, a slightly different scheme, as being an important statement that the power is within constitutional limits if there are limits on the power, which limit the detention to that which is, using the words at the top of page 31:

necessary to make the deportation effective.

I should also mention of course, although Justice Dixon’s statements in Koon Wing Lau are not there cited, I believe they of course become critical in Al‑Kateb and later cases and they are found on page 447 where his Honour said ‑ ‑ ‑

GORDON J:   What page of the case is this, sorry?

MR GLEESON:   It is page 581 of 80 CLR at about point 6.  Reading the provisions together:

the words “pending deportation” imply purpose.  The two provisions together mean that a deportee may be held in custody for the purpose of fulfilling the obligation to deport him until he is placed on board the vessel.

That is the literal reading of the provision.  But his Honour goes on:

It appears to me to follow that unless within –

In that case, “a reasonable time”; in our case as soon as reasonably practicable:

he is placed on board a vessel he would be entitled to his discharge on habeas.

So that is where the proposition comes from.  Returning to Lim at page 32 at point 3, when the Court draws all this together the Court is construing undoubtedly the limits of section 51(xix) of the aliens power, but also considering whether Chapter III requires any different result, and we would emphasise in about the middle of that paragraph, when the Court says that the power to detain is incidental to the power to admit or deport, the Court says this:

Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch. III . . . The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power –

So it is the limits on the authority coming from the purpose enforceable by habeas which we submit is what saves these provisions from a Chapter III problem, and so in our outline we have indicated - at least our attempt in paragraph 9 – to capture the ratio of Lim and that ratio is a compound one. 

The first aspect of it is what is the constitutional principle, and it is that provisions authorising executive detention are valid only if the detention they require and authorise is limited to what is reasonably capable of being seen as necessary for, in our case, removal, and we get that from page 32 and of course from the top of page 33 of Lim.  So, to be valid, the limits must meet this test.  Then the second part of the ratio is why it was that 54L and 54N were valid on that test, and that really can be seen starting from page 33 at the end of the first paragraph:

On the other hand, if the detention which those sections require and authorize is not so limited –

the authority is not an incident of the executive power.  It is punitive; contravenes Chapter III.

Now, that sentence was not emphasised this morning, but that is the entry point for the absolutely critical section that commences at about point 3, or line 20 on page 33.  It goes all the way over to line 25 on page 34, and this tells us why 54L and 54N survived validity.  The Solicitor says yes, they survive validity, you see the conclusion at page 34, lines 20 to 25.  That tells you these provisions are valid in all their operations.  That is the proposition that is put in paragraph 6 of the Commonwealth’s outline.

What that submission overlooks, critically, is that part of the ratio is why were those provisions valid in all their operation?  The reason they were valid is that they contained limits, as a matter of statutory construction, limits on the authority to detain, which, if exceeded, would be enforced by habeas.  Now, what were those limits?  One needs to look at the whole of this page and the next page to see what the limits were.  Could I just pick it up at just before line 30.  It says:

Section 54P(2) requires that a designated person be removed from Australia as soon as practicable after he or she has been in Australia for at least two months (or a longer prescribed period) without making an entry application.

That is section 198(5). Then:

Section 54P(3)requires the removal . . . as soon as practicable after –

finalisation of all chances for a visa. That is section 198(6). That is the limit in our case. So that limit in our case, and the surrounding limits. The judgment goes on to say these:

limitations upon the executive powers of detention in custody conferred by ss. 54L and 54N go a long way towards ensuring that detention under those powers is limited to what is reasonably capable of being seen as necessary for the –

relevant purposes.  So what is critical there, and this perhaps crystallises the debate between the parties, the judgment is telling us that these are limits upon the powers of detention.  These are not matters sitting in a separate silo.  They are limits upon the power of detention, enforceable by habeas, and it is because there are such limits, and only because of such limits, that the sections survive validity.  Now, at the foot of the page ‑ ‑ ‑ 

KEANE J:   But the sections are invalid in all their applications and the sections are valid notwithstanding a failure on the part of the Executive to observe them.

MR GLEESON: With respect, your Honour, could I put it just exactly differently.  The sections are valid in all of their operations because the limits which have been attached to the sections, including 54P(3), 198(6), go to the authority conferred by the sections, and can be enforced by habeas.

KEANE J:   Yes.

MR GLEESON:  Our submission is that that is the construction of these identical provisions, that the limits do not sit in a silo, the limits go to the authority to continue to detain the person, and they are enforceable by writ of right under habeas.  That is what Justices Brennan, Deane and Dawson said, and that is what the Commonwealth does not want to face up to, and that is why, in their construction submissions, they did not say a word about this case.  They say it is about Chapter III only. 

We submit that in this absolutely crystal‑clear paragraph, their Honours have confronted the very question this case turns on, and they have told us that the limits upon executive powers of detention in custody, powers, limits on executive powers of detention in custody, are the reason that it survives Chapter III problem and if that ‑ ‑ ‑ 

KEANE J:   Because of what they tell you about the character of the law, because they tell you that the character of the law is one that can be seen to be necessary for the purpose of deporting.

MR GLEESON:   Yes, and why, we say why in an absolutely critical passage, which you were again not taken to this morning – at the foot of the page the Court says those limits went a long way towards validity, but not good enough.  What you needed was 54P(1), the one your Honour asked me about this morning.  That gives you the power to bring the detention to an end.  The next sentence, the one the Commonwealth evades, if I could read it out:

Once such a request has been made, further detention in custody is authorised by Div. 4B only for the limited period involved, in the circumstances of a particular case, in complying with the statutory requirement of removal “as soon as practicable”.

Now, that sentence, we would submit, is fatal to their case.  You have not heard a word confronting that sentence this morning because what that has told us, in the very simplest case where I request removal, the further detention is authorised only for the limited period involved in the circumstances of the case, in complying with the statutory requirement.  Coming back to your Honour the Chief Justice, that is where we see the two levels at work – that “in the circumstances of” – I am sorry.

EDELMAN J:   Why does that submission then not require you to reopen Al-Kateb?

MR GLEESON:   I am going to come to Al‑Kateb.  But first of all the short answer, nothing in Al‑Kateb overturned Lim.  Nothing in Al‑Kateb sought to overturn Lim.

KIEFEL CJ:   Mr Gleeson, had you finished your answer to my question?

MR GLEESON:   No, I do not think I had, your Honour.  Thank you, your Honour.  What I was seeking to put to your Honour was, our submission that we have one question at a level of the statute, then we have a question at the level of the circumstances of the particular case, is seen here in this passage.  What we are looking at is whether what is required in the circumstances of a particular case to comply with the statutory requirement of removal as soon as practicable. 

Now, we are not talking about thoughts in the heads of executive officers, we are not about subjective purposes or anything else.  It is what is required in the circumstances of the case to comply with the requirement of removal as soon as practicable?  Your Honours, there is an issue that I wish to face up to at that point which has not been perhaps squarely fronted by either party.

There are two ways of reading that requirement – and let us take the practical example of the present gentleman.  One way of looking at it is, objectively, what period of time was required from 25 July 2019 to get a Syrian travel document and have the man removed to Syria?  That is one possibility of – way of understanding this.

The second way of understanding it is that so soon as the Executive departs from the requirement of removal as soon as reasonably practicable, it has at that point abandoned the purpose which is made lawful by the statute.  His Honour Justice Bromberg faced up to the possibility that that could be an issue in the case.

It turns out that in this appeal the Commonwealth is not seeking to agitate that point, and the reason for that is in paragraph 20, I believe it is, of the Commonwealth’s written submissions, where what they have said to you is that it would not matter which of those two approaches you take, their view is the detention is authorised until removal in fact, and you do not have to choose between those two earlier views. 

Justice Bromberg, with respect, faced up to this question around paragraph 87 of the judgment, which is an important paragraph.  He observed the two different approaches.  He observed it is not the subject of submissions.  His understanding, based upon inter alia, S4, is that it is the first approach, namely:

an objective assessment of whether a detention is for a particular purpose . . . not whether or not the purpose has been achieved.

He then reads Justice Hayne in Al‑Kateb as potentially preferring the second approach, the one I described as how long in fact does it need to get a Syrian travel document, and this will come back to your Honour Justice Edelman’s question, because even on Justice Hayne’s view, there is ‑ ‑ ‑ 

KIEFEL CJ:   What his Honour says about Justice Hayne’s approach is not correct, is it?

MR GLEESON:   It is, your Honour.  I am going to come and show your Honour it is correct in a moment.  But in any event, let me come to that.  His Honour says they are the two approaches.  He prefers the former, but what he then says, importantly, at 88, at least importantly for this particular individual, and for setting the principle, is that even if you take the case that:

the arrival of the time for the removal of the applicant as soon as reasonably practicable marks the point of departure of purpose from the detention, the result . . . would not have differed.

The reason for that was his approach to the onus of proof.  The onus of proof, it seems well settled, is on the Commonwealth to justify the detention, and in this particular case, as his Honour records at paragraph 88:

The Commonwealth made no attempt to establish that –

the time, as soon as reasonably practicable for removal, had not been reached. 

Your Honours, with that slight diversion, could I come back to Lim and just complete the critical part.  On page 34, our submission is that what the judgment has held is that, as part of the ratio, the reason that 54L and 54N remain incidents of executive power of exclusion, admission, and deportation, and not part of the judicial power, is because an excess of limits such as 54P would go to the continuing authority to detain, enforceable by habeas.  Now, that is what we submit in our outline at paragraph 9(b) is the second aspect of the ratio of Lim.

STEWARD J:   Mr Gleeson, may I ask a question just so that I understand your argument.  Is it a necessary feature for validity that the remedy for excessive detention be habeas corpus?

MR GLEESON: Thank you, your Honour, could I answer that in two parts?  It is a necessary feature of our argument that excess of the limits deprives the detention of authority, that is the first step.  That will at least found damages for false imprisonment.  That is the minimalist position I am seeking to advance.  To come directly to your Honour’s question, it is not necessary to that minimalist position that habeas follow. 

STEWARD J:  So you accept that other public law remedies in order to enforce limitation might be available?

MR GLEESON:   No, because if we are correct on that first point that excess of the limits goes to the authority to detain ‑ we have damages in tort, put that aside – the public law remedies that will be available are those targeted to that unlawful detention and holding in custody and the remedy as of right but not of course for that situation is habeas.

EDELMAN J:   But that might only get you habeas for a fraction of a second or mandamus then kicks in.

MR GLEESON:   That is possible.

GORDON J:   That was the point I was putting to the Solicitor this morning.

MR GLEESON:   Yes.  I was going to come to that right at the end, your Honours, but it is relevant here.  His Honour did not find that, having found that the excess of limits deprive the authority of detention, he would give a habeas remedy which would leave this person and such persons in the community forever without any further form of control over their behaviour.  He did not find that.

What he said was, in this very particular case where the Commonwealth – and this is why the facts matter a little, and this is paragraph 175 of the judgment – had formed a policy not to comply with section 197C, they had maintained that policy consistently throughout and even at the stage of the hearing there was no suggestion we will now return to compliance with the law and in paragraph 129 the parties were given a chance to update the evidence before the judgment was delivered and no such updating occurred.  So they are quite extraordinary circumstances.

The Commonwealth said, “We are going for broke in this case.  We do not intend to comply with 197C.  We are not going to say our policy has changed.”  In those circumstances, what his Honour said is that there was no reason not to grant habeas and you will see that at paragraph 175.

KIEFEL CJ:   Mr Gleeson, I take it that you would not suggest that the Court should grant a remedy which would undermine the higher statutory purposes of the statute?

MR GLEESON:   Put at that level, of course, your Honour, no.

KIEFEL CJ:  Which is why I understand I think your focus upon a purposive approach to provisions such as section 196 and the purposive element there brings in timing as a very important aspect of the purpose, whereas, if you look at the statutory purpose, as I think Justice Keane has pointed out, as being not to permit someone to enter the Australian community without a visa as being the wider purpose to which the scheme as a whole reflects, habeas corpus would be contrary to that purpose. It would undermine it. What you would do is you would look to mandamus, would you not, which is why purpose is so essential to your case?

MR GLEESON:   It is essential, and it is why my answer to Justice Steward was most slow and labouring, but I was trying to indicate that the anterior question before remedy is legality or authorisation.  Does the excess of the limit go to the detention and deprive it of its authority?  If it does, then ‑ ‑ ‑

KIEFEL CJ:   Well, everyone can accept that there is a failure to exercise a duty.

MR GLEESON:   But what has not been accepted by the Commonwealth is that that failure in any way deprives the continuing detention of lawful authority.  The Commonwealth is making the very extraordinary proposition that the person remains lawfully detained, properly detained, cannot get any remedy ‑ ‑ ‑

KIEFEL CJ:   But what is the effect of habeas corpus then?  You have someone who becomes a class other than an unlawful non‑citizen.  What is the status of the person?

MR GLEESON:   Your Honour, it is a troubling concept.

KIEFEL CJ:   Well it is, it is ‑ ‑ ‑

MR GLEESON:   I accept that.

KIEFEL CJ:   ‑ ‑ ‑ something of a conundrum really.

MR GLEESON:   It is a conundrum, and one asks why does the conundrum come about?  Are there purposes more than one in the statute ‑ ‑ ‑

KIEFEL CJ:   Purposes within purposes.

MR GLEESON:   Purposes more than one in the statute, and one asks ‑ ‑ ‑

KIEFEL CJ:   Well, they are at different points of time.

MR GLEESON:   Yes, but look at what the Executive told the Parliament was meant to happen in these cases, by putting 197C in.  What was meant to happen was do not worry about non‑refoulement because one or more of the discretionary options will be exercised.

KIEFEL CJ:   But speaking for myself, I just do not understand how that informs statutory construction or the constitutional question.

MR GLEESON:   Let me try this way, your Honour.  If one asks what were the available powers as a matter of statute or constitutional limitation, in this situation, prior to judgment, what were the powers and what were the duties, the answer was that on the one hand that there was a duty to remove to Syria ‑ that was there, because that was the obvious to remove as soon as reasonably practical; on the other hand, there was a series of discretionary powers to grant any number of visas, which could have been a protection visa, it could have been a 195A visa without application, it could have been the classic sort of visa which the Court knows perhaps is granted in order to avoid Al‑Kateb cases coming back to this Court, which is a temporary bridging removal visa.

What the Commonwealth could have done, if they were not wanting to send the man to Syria, was to do what is done every day of the week with typical Al‑Kateb type people, and grant a highly conditional visa, so the person is regularised, they are in the community but it is a temporary bridging visa and as soon as the Commonwealth finds a country other than the place of refoulement, the conditions on the visa lapse, the person is taken into detention, they are sent away.

So, if one looks at how the Act was meant to work together as a whole, the assumption was in fact what the Executive told Parliament, you will never get this terrible conundrum, because we will responsibly exercise our discretionary powers over here, and you do need to worry that there will ever be a problem under 197C.

What this case has come about because is only of a situation one could not imagine of the Commonwealth saying we will not perform the removal duty, on the one hand; on the other hand, we will not exercise the power obviously available to us to regularise this alien’s condition and what we will do is we will just tell the Court that this detention remains lawful and you have no remedy to grant, no damages, no habeas.  That is the way the case has come about.

So, if one asks immediately prior to the order of habeas corpus was there a way the whole scheme could work together coherently, the answer was yes, it required an exercise of administrative discretion which the Commonwealth refused to do.  It is only following that particular way of exercising discretions and denying duties that this problem has been created.  So Justice Edelman says will it only be habeas for a second. 

We accepted below, I am told before Justice Bromberg, and we still accept, that the way this scheme works in this very unusual difficult situation is that the purposive element which comes out of 198 controls both 196 and 189 as a concept that Justice Hayne referred to in paragraphs 236 to 237 of Al‑Kateb, and if the Commonwealth were to resume the lawful purpose of removal of this gentleman as soon as practicable to the obvious place, Syria, then at that point – and Justice Bromberg has accepted this – at that point the duty under section 189 would descend again, and that is an unpleasant option for this person if that were to happen, but we have to accept that is the logical consequence of our argument.

If the Commonwealth, on the other hand, were to grant him some form of visa, his status in the community would be regularised.  It is only if the Commonwealth refuses those causes of action that the jarring situation that your Honour correctly put to me, with respect, arises, and it only comes about because of a situation one could never have contemplated when the Parliament passed this Act.

GORDON J:   Why would you not assume, if you pick up Justice Edelman’s point of there being this very small moment when habeas could bite, that 189 does not come back in and that the Commonwealth would not comply with its duty set out in 189, consistently read with 198 and 196?

MR GLEESON:   Sorry, your Honour, the way I was putting it, can I just be clear, is based on the current remedy which is, yes, habeas, but without mandamus.  The person is in the community.  Why would you not assume for the very reason that Justice Bromberg took such care to invite the parties ‑ paragraph 129 – if there is anything you wish to tell me about a change in circumstances, please tell me.  So, in other words, the Commonwealth went to the hearing and then went to judgment saying, the circumstances you should act upon are we do not intend to observe 197C.

GORDON J:   Is that what that is directed at?

MR GLEESON:   Yes, it was directed to give the Commonwealth in particular every chance to come back to the Court and say, this is what our actions and intentions are in respect to this person, and partly that was because your Honours know the first period it was absolutely clear‑cut, there was zero activity.  The second period there was some desultory activity for Lebanon, but Syria was completely disregarded, disregarded in the sense the Commonwealth said, we will not refoule to Syria.

So, Justice Bromberg was almost, one might say, pleading with the Commonwealth in particular, “Is this really the basis upon which you require me to decide the case?”  You will see in paragraph 175 that in those very particular circumstances his Honour said, cross‑referring to paragraphs 60 to 64, that he was persuaded that there would be a particular consequence under 189.

GORDON J:   Then why does not mandamus bite then in relation to that moment?  So, if you are right up to this point, why does not mandamus bite then in terms of directing the Commonwealth to do what they should have done?

MR GLEESON: Well, again, your Honour, my answer is in two parts.  If I was right this far, the detention was unlawful throughout the period, and ‑ ‑ ‑ 

GORDON J:   We have come to the point where, as I understand your argument, if you are right, you have a detention which is unlawful, which has a scintilla of a moment because of 189, why does not mandamus then bite immediately to direct the Commonwealth to comply with 189 read with 196 and 198?

MR GLEESON: Thank you, your Honour.  Without being more pedantic than I am, the point I am at in the argument is the detention has been unlawful since 25 July 2019.  The Court is considering what order Justice Bromberg should have made in September 2020.  The first order that he made, or contemplated in paragraph 3, which is referral for damages for false imprisonment, is not shown to be subject of any error.  That should happen no matter what.

The next question then is should his Honour have granted habeas, or, query, should his Honour have granted mandamus?  Now, your Honours, this might seem overly technical, but the learned Solicitor this morning dropped ground 3 of the habeas appeal and that was the ground which had foreshadowed potentially there might be some error in discretion in granting habeas as opposed to mandamus.  That has gone.  So, the Commonwealth’s case is now confined to a case of power that this statute prevents habeas ever being granted in this situation.

EDELMAN J:   But I think what, at least for my purposes, what I am trying to understand is why is habeas necessarily opposed to mandamus?  Even if everything that you have said right up to now is accepted, that means that there is a right of habeas, but why is there not also a duty, or a power of mandamus, to compel the Commonwealth to do that which they ought to have done, which is to deport within a reasonably practicable time?

MR GLEESON: Your Honour, we had sought to deal with this in paragraph 7 of our outline, which is that the writs serve different purposes and may bear different onuses.  Habeas remedies the unlawful detention, mandamus remedies the failure to perform the removal duty.  Different writs may be sought in different cases for different reasons.  I am not saying it can never be mandamus, it could be both.

Now, in the classic case that your Honour Justice Keane put to me, a request under 198(1), send me as soon as reasonably practicable, one might think that mandamus would be high on the queue for the appropriate remedy in the discretion, but it does not mean that it will always be mandamus.  And when I say they serve different purposes and bear different onuses, if we can just think about it practically, all of the authorities are with habeas, because it is remedying the invasion of liberty, the substantial onus is cast on the State, as the detainer, to justify the detention.

However, with mandamus, a traditional approach would probably be the onus rests on the plaintiff to prove the breach of the duty.  If we think of the territory we are in, which is removing people to foreign places, who will have the knowledge of whether the duty has been complied with?  Obviously, the source of the knowledge will be in the hands of the State.

So what habeas does, if the person can properly bring the remedy, is bring the detainer to the court to say, justify the detention and bring forward such factual material as you have to justify it.  With mandamus, it may be exceptionally difficult for a person or their lawyers, ethically, to know that there has been a sufficient non‑compliance with the duty to even plead the case.

EDELMAN J:   It is accepted here, is it not, that there is a breach of the duty?

MR GLEESON:   We got to the point because habeas was brought and it was partly contested but, in the end, either accepted or found that there was a breach of duty.  I am trying to make a broader point, not just about our particular case.  If the question is, “In this case, should we have got damages plus mandamus, as opposed to damages plus habeas?”, I would submit that is now excluded because ground 3 of the appeal has been dropped.  If the question is the more general one, “Can you ever get habeas?”, my submission is it is available but whether you actually get it may depend on the circumstances of the case.

GLEESON J:   Mr Gleeson, did your client seek mandamus?

MR GLEESON:   No.

GLEESON J:   So how does the possibility of the Court ordering mandamus arise?

MR GLEESON:   We submit it does not, your Honour.  Your Honour, my client did not seek mandamus.  The Commonwealth obviously cannot seek mandamus against itself unless the Attorney‑General seeks it against the Minister.  That did not happen either.  So no one had put mandamus in the ring, and in the amended defence in the habeas proceedings the Commonwealth did not plead that the court, if satisfied the detention was unlawful, should have issued mandamus instead of habeas.  So not only not sought, which is fatal to it, that is the end of it, but there was no discretionary argument about character raised.

So the only way mandamus was in the ring was in the sense in which the learned Solicitor has put it, which is he can argue as a matter of construction that the statute leaves this detention lawful.  Therefore, you could never get habeas and logically he is correct.  If the detention was authorised, habeas has gone.

The other unhappy orphan in the case, the damages for false imprisonment, you have not heard a word about it.  The reason the Commonwealth must say logically they are not available is that there was no tort, no authority.

KEANE J:   They say that because your client was never entitled to be at liberty, which is why they say there was no entitlement to habeas as well because, while the Commonwealth officers may have been at fault, their fault did not alter the position required by the statute which was that your client be detained until either given a visa or removed.  They point to the availability of mandamus simply to make the point that one does not construe the statute as if there is no remedy in a case where the Executive Government does not comply with Parliament’s requirements.

They are just simply making the point that, if there is a failure of duty on the part of the Executive Government, then the duty can be enforced by mandamus and that is the way the limits on the Commonwealth power to detain can be enforced.  But you do not have sort of a magic moment where the intention that an unlawful person in the migration zone, who is not permitted to be in Australia, suddenly gets to be entitled to be in Australia because the Executive Government has not done its job.  It does not sort of alter Parliament’s dispensation.

MR GLEESON: Your Honour, I think, without repeating submissions I have made, the best way I can answer that, because we are submitting, firstly, what your Honour has put is wrong, as a matter of construction, and secondly, if it is right, it is beyond Chapter III ‑ I have got to get to Chapter III ‑ but the best thing I can do to add something additional, perhaps, is to complete what I was putting in Lim, because my submission is Lim is contrary to what your Honour has just put.

So if I could come to section 54R, and we now try and understand why section 54R was invalid, and again this was glided over rather speedily this morning.  At the foot of page 35 the judgment is examining circumstances or examples in which:

a designated person continued to be held in involuntary custody notwithstanding that ss. 54L and 54P had become inapplicable by reason of the provisions of s. 54Q(1) or (2).

So that is the easy case, where the 237 days has been exceeded.  That is treated as an example of the person unlawfully being held in custody.  But then, on page 36:

Another would be a case where a designated person continued to be held in custody in disregard of a request for removal duly made under s. 54P(1).

So the Court is giving this of an example where the designated person is unlawfully held in custody, so the excess of limit is going to the lawfulness of the detention, and then another example, 54P ‑ ‑ ‑ 

KEANE J:   But is that not the point, that the invalidity of 54R arose because it was requiring a court not to say that that which is unlawful is unlawful?

MR GLEESON: Exactly, your Honour, and ‑ ‑ ‑ 

KEANE J:   That is why – that is the vice.

MR GLEESON: So, your Honour, if I could take that thought, that language is very closely reminiscent of what is at 36, point 3.  After speaking of 54P(2), which is again one where failure to remove as soon as reasonably practical, the Court says:

but could no longer be lawfully held in involuntary custody in Australia pursuant to the provisions of the Division.  It is unnecessary to seek further examples.  Once it appears that a designated person may be unlawfully held in custody in purported pursuance of Div. 4B, it necessarily follows that the provision of s. 54R is invalid.

But why?  The Solicitor said this morning this might be because the courts – the judgment was worried that mandamus was being excluded.  He did not read on to lines 30 to 40.  If I could read that out:

A law of the Parliament which purports to direct, in unqualified terms, that no court, including this Court, shall order the release from custody of a person whom the Executive of the Commonwealth has imprisoned purports to derogate from that direct vesting of judicial power . . . [it] manifestly exceeds the legislative powers of the Commonwealth and is invalid.

So what the judgment thought was wrong with 54R was that it purported to take away the ability to grant habeas in respect to continuing detention which was unlawful by reason of the breach of section 54P, relevantly section 198. Now, to that reason I submit to your Honour this is a construction of the equivalent provisions which renders the breach of the limits, something which renders the continued custody unlawful, and makes available habeas.

STEWARD J:   Mr Gleeson, do you say that the Act that the High Court was looking at, at this time, contained the regime that currently exists for the distinction between “unlawful” and “lawful” non‑citizen and section 4 and objects, and so on?

MR GLEESON:   The answer to that directly is no.  What it did was create the functionally equivalent regime for a subclass of non‑citizens.

STEWARD J:   Does it matter that all those people who are “designated persons” had to be put in detention for the purpose of considering whether to issue them a visa, whereas following, I think, the 1992 Reform Act, we introduced bridging visas for such people?

MR GLEESON:   All of the people in this class had to be put in detention, exactly the same as now happens to the larger class, no doubt.

STEWARD J:   Nowadays, it is only those who are “unlawful” non‑citizens.

MR GLEESON:   I might not have answered your Honour’s question correctly.  The former Act to which Division 4 was inserted in 1992 had within it a similar distinction between “lawful” and “unlawful”, although using different languages.  In short, it was an Act which provided for mandatory deportation of any persons without an entry permit, as it was described then, but permissive detention.  But the basic idea that you needed a valid entry permit to avoid mandatory deportation from Australia was in this act.  What Division 4B did was to go one step further with this cohort and say for you it is mandatory detention as well as mandatory deportation.

Your Honours, on page 337, which is the report at page 16 ‑ ‑ ‑

STEWARD J:   Is this still Kheng?  Is this still Lim?

MR GLEESON:   Yes, still in Lim.

STEWARD J:   Thank you.

MR GLEESON:   Section 54J of Division 4B is the functional equivalent of section 4, which is now the object section for the whole Act.  The difference was that for this narrower class, the very same type of regime was enacted as now applies to the whole.  It must be observed that when Justices Brennan, Deane and Dawson spoke of the excess of the limits leading to the custody being unlawful and habeas being granted, that grant of habeas would have had to sit next to the object in 54J.  That is why I said to your Honour the Chief Justice there are a number of purposes here, and this judgment stands for the proposition that the unlawful holding of the person in custody remedied by habeas should be given priority over what are otherwise the very important objects in section 54J.

Your Honours, the last thing on Lim was in the minority, on section 54R, one sees the very same construction issues at play.  We have referred to this in our written submissions, but Justice Mason, at page 10 in the first full paragraph, agreed with what we would say is our paragraph 9(a) of the ratio.  And at line 25 he agreed with what we would say is paragraph 9(b) of  the ratio.

He then disagreed in respect of 54R.  But in doing so, at the foot of page 11 of the judgment, indicated a number of circumstances in which a designated person may not lawfully be held in custody under Division 4B and says, in a passage reminiscent of some later statements in this Court, including S4 and other cases:

What initially begins as lawful custody under Div. 4B may cease to be lawful by reason of the failure of the Executive to take steps to remove a designated person from Australia in conformity with Div. 4B.

And he then gives three examples:  54P(1), 54P(2), 54P(3).  So, our very case, P(3), his Honour said that would:

deprive the Executive of legal authority to retain that person in custody.

Your Honour Justice Gordon, that is what I am putting as step 1 of our argument, the excess of the limit deprives you of legal authority to retain.  Step 2 is the remedies that you then get.  His Honour dissented, of course, because he read down section 54R to not have that effect.  Justice Toohey agreed with Justice Mason on this point; that is at the foot of page 50.  And Justice McHugh dealt with the point at the top of page 68, and footnote 42.

Your Honours, in our outline – given the time, I will try and do this very briefly.  At paragraph 12 we respond to a submission in the Commonwealth’s reply that you should apply the principle in CSR v Eddy to basically ignore everything I have put for the last hour, because none of it represents ratio or reasoning, it really represents the Court merely assuming things without relevant argument.

Your Honours, in bullet point form, the CSR v Eddy principle, which is in supplementary authorities Part C at page 45, paragraph 13, is you can only disregard parts of the ratio if the Court:

assumed its correctness without argument.

There is a lengthy, helpful footnote including Sir Nicolas Browne‑Wilkinson’s decision in In re Hetherington; we have also provided the authorities.  In Re Hetherington is found in Part D; it is particularly at page 190.  You did not hear anything orally this morning to advance that argument that Lim – perhaps one of the more important cases in the history of this Court – really just was some judges assuming things without argument.

The Court there did not assume matters without argument.  The Commonwealth has prepared – or we have, I am not sure – a supplementary book of further materials.  It has the arguments in Lim, both in writing and orally.  It is tolerably clear that Mr Griffith for the Commonwealth was putting in play the construction of these provisions in aid of an argument that they were constitutionally invalid.

In the transcript of argument, Justice Deane in particular at pages 21 and 22, Justice McHugh at page 42, Justice Deane at page 73, Justice Dawson at page 73, put to counsel, particularly Mr Griffith, the very sorts of matters that emerge in Lim.

Your Honours, could I come to Al‑Kateb, commencing with Justice Hayne.  If your Honours could start with paragraph 197, this was a case where at trial the non‑citizen ran two arguments.  The first is our case and the non‑citizen failed to get the fact‑finding necessary.  The finding that was obtained was the one which created Al‑Kateb.

Coming to your Honour Justice Edelman, the first thing to observe about Al‑Kateb is that everything said by any of the judges, majority or minority, was in the context that it was a case where the Executive was doing everything reasonably possible to try and comply with its duty.  It is tolerably clear from the other judgments, in particular Chief Justice Gleeson, that that was the basis upon which the case was decided. 

Paragraphs 204 to 209 are relevant to your Honour Justice Steward’s question as a summary of the change made by Migration Reform Act1992.  Paragraph 217 is relied upon and it is an important paragraph for identifying certain critical features of detention.  Paragraph 219 is relied upon by the Commonwealth and it is also important.  It must be taken into account in reading this judgment. 

EDELMAN J:   Is the difference between you and the Commonwealth then that the Commonwealth sees Al‑Kateb as a fortiori this case, but you say this case is stronger for your client than Al‑Kateb because you say this case is a “will not” case, whereas Al‑Kateb is just a “cannot” case?

MR GLEESON:   Yes, and your Honour Justice Gageler in ‑ Justices Gageler, Crennan and Bell in M76 captured Al‑Kateb as a case where it was incapable of fulfilment.  This is the case where ‑ ‑ ‑

KIEFEL CJ:   Was it incapable of fulfilment or not yet capable of fulfilment?

MR GLEESON:   That was the dispute between your Honours’ judgment, but whichever way that was put, this is an a fortiori case.  This is the case where it is apparently capable and it is deliberately not being done.  What I want to come to is that between paragraphs 224 and ‑ ‑ ‑

KIEFEL CJ:   At 219 of course his Honour refers to the fact that there is not “a choice between detention and freedom”.

MR GLEESON:   Yes, and that is important.  That is relied upon by the Commonwealth.  It has to be taken into account, we submit in the context of the case where the assumption of Parliament that the Executive is doing its duty is being complied with.  But when one comes to 224 through to about 227, you did not hear a word about those paragraphs this morning.

What you will see in 224 is that his Honour says that in terms of what 198 and 196 require, the legislation does not differ in any fundamental respect from Koon Wing Lau.  So the case which the Commonwealth says you can ignore was actually not only central to the plurality in Lim, but it was central to Justice Hayne’s analysis.

His Honour Justice Hayne cited Justice Dixon for the passage that I took you to a little earlier, including that unless the person within a reasonable time is placed on the vessel, he would be “entitled to his discharge on habeas”.  So, noting the case in a different context, Justice Hayne has found considerable assistance from Koon Wing Lau, including the relevance of habeas.  Now, in that context, at paragraph 225, his Honour starts to speak of both purpose and time.  So, his Honour reads:

The present legislation, prescribing the period of detention as it does, may therefore be read as providing for detention for the purposes of processing any visa application and removal 

That is the high‑level purpose. 

But that does not decide the point of how long that detention may persist.  It does not decide when that purpose (of detention for removal) is spent.  It does not decide that the time during which a person may be detained is “a reasonable time”.  Here the period of detention is governed by the requirement to effect removal “as soon as reasonably practicable”.

Now, your Honour Justice Edelman asked the Solicitor this morning a question along these lines: does the Commonwealth accept that the period requirements in section 198 constrain the detention in 196? The answer was, well, no they do not constrain but they affect, and what he means by “affect” is they affect not in any sense that goes to authority or validity. Here is Justice Hayne saying the period of detention under 196 is governed by the requirement to effect removal as soon as reasonably practicable. We would regard that as a fairly strong statement that 198 is governing 196. Then his Honour says in 226:

The period of detention is fixed by reference to the occurrence of any of three specified events.  Detention must continue “until” one of those events occurs.

The relevant event under 198 is removal.  That is an event, the occurrence of which is affected by the imposition of a duty by 198 to bring it about as soon as reasonably practicable.  We rely upon the whole of that paragraph, but coming to the last sentence:

The duty to remove must be performed within that time. And so long as the time for performance of that duty has not expired, s 196 in terms provides that the non‑citizen must be detained.

Now, we would have thought, your Honours, that in those sentences, his Honour is expressing the view that the obligation to detain under 196 prevails during such period as the time for performance of the duty under 198 has not expired.  That is the second of the two views that Justice Bromberg recognised in paragraph 87.  Your Honour the Chief Justice asked me about it.  We submit what his Honour said is an accurate capturing of this part of his Honour’s judgment.  Justice Hayne, we would submit, is recognising at a minimum that if the time for performance has expired under 198, that affects, goes to, the authority under 196.

KIEFEL CJ:   But his Honour is not really addressing that.  His Honour, in 226, is leading up to what he says in 229, which is to say that there may not have been a point at which the duty comes into effect.  His Honour is forward looking.  He is not looking back at a situation, whereas here the duty should have been performed but was not performed.

MR GLEESON:   Yes.  With respect, your Honour, that is a fair observation.  That is the central thing his Honour is getting at.  The duty has descended, we would say, but what his Honour describes as the time for performance, when you can actually complete the duty, may be still in the future because of events that are occurring.

KIEFEL CJ:   The point his Honour is seeking to make, though, which is important for Al-Kateb was, whilst the duty remains unperformed and the performance of the duty has not expired, the citizen must be detained.

MR GLEESON:   We do not cavil with that, your Honour.  That is Al‑Kateb.  That is, with respect ‑ ‑ ‑

KIEFEL CJ:   Al-Kateb does not give either party a perfect answer.

MR GLEESON:   It does not.

KIEFEL CJ:   But it says much about the statutory scheme and the extent of the duty which has regard to the purpose of the scheme.

MR GLEESON:   So each side is looking at it for its extended implications. 

KIEFEL CJ:   Yes.

MR GLEESON:   It is not grappling with our problem and one strand in it seems to favour the Commonwealth, which is to say binary scheme, fundamental purposes, high level, but another strand, if I may finish, your Honour, is every time his Honour is construing what it is that 196 is doing, his Honour is looking at 198 as, to use his language, “governing” or “affecting” or “controlling” or, we would say, consistent with Lim, “placing limits around the legality of detention under 196”, and that we see as of some assistance at least to our side.

Ultimately, we would say the case which is governing on construction is Lim, but I am only delaying your Honours with this temporarily for the purpose that Al-Kateb, which is a second‑order case, with respect, on this question has quite a lot in it which points in different directions, given that this precise issue was not in play.

Now, as your Honour says, that leads up to 1229 and you have been taken to that.  Could I then emphasise at 231, what his Honour is doing at 231 is, with respect, grappling with the argument which Justice Gummow put on the other side of the coin at paragraph 122 that the purpose could be regarded as spent once it was no longer reasonably practicable.  His Honour is saying the purpose is not spent merely because the efforts that have been made so far are not successful and then at the end of that paragraph, his Honour says:

The legislature having authorised detention until the first point at which removal is reasonably practicable, it is not possible to construe the words used as being subject to some narrower limitation such . . . as “a reasonable time”.  The time for removal is fixed by this legislation by reference to reasonable practicability.

In the minority, Chief Justice Gleeson at paragraph 18 took a different view to Justice Gummow, which was that the detention was in suspense rather than spent, but we accept that Justice Hayne represents the majority.  Your Honours, there are two really important paragraphs to which only partial attention was given this morning.  The first is paragraph 236 - I believe your Honour Justice Gordon asked a question about 236.

GORDON J:   And 237.

MR GLEESON: And 237 is, with respect, absolutely critical.  In 237 his Honour discerns a limitation on the operation of both 189 and 196, identified in Al Masri, and the error that he sees in Al Masri is that you cannot transform 189 and 196, but what you can do is you can transfer the limit.  So transference is to treat the duties in 189 and 196 as governed by the obligation to remove as soon as reasonably practicable under 198.  What you cannot do, says his Honour, is transform the limit into a different one, remove “as within a reasonable time”.  That stands as part of the ratio of Al‑Kateb, and we do not challenge that. But we do take that for the proposition that a transference to sections 189 and 196 of the very thing 198 requires is a permissible form of construction.

Your Honours, the other provision which his Honour Justice Bromberg placed some reliance on in the judgment is 243.  I accept his Honour there was dealing with a different question primarily, which is whether you can attach conditions to habeas.  His Honour disagreed with Chief Justice Gleeson and Justice Gummow who said you could.  My understanding is the Court has not conclusively resolved that question, whether conditions can be attached to habeas, but Justice Bromberg discerned from 243 that when his Honour said:

If the detention is not lawful, it must end.  It is not to be replaced with some other set of limitations . . . If the detention is unlawful, the only order which a court may make is an order requiring the person to be discharged –

His Honour is drawing a close link between unlawful and habeas as the remedy for that situation, and that is why I have sought to place so much reliance on the first step of our argument, which is excess of the limits renders the detention unlawful. 

Your Honours, in the two other judgments of the majority, apart from Justice Heydon, who agreed, Justice McHugh again did not have to grapple with our question, but at paragraph 34, which the Commonwealth says does not hurt its argument, Justice McHugh says:

Detention under s 196 for the purpose of removal under s 198 will cease to be detention for that purpose only when the detention extends beyond the time when the removal of the non‑citizen has become “reasonably practicable”.

That seems to contemplate the second view of paragraph 87 of Justice Bromberg, that detention can cease to be for the statutory purpose in that circumstance, and that would seem to contemplate that you can have the inquiry at the level of the statute as to purpose, and you can then have the inquiry as to the circumstances of the case.

Justice Callinan, who I think I would have to accept against our case took a relatively stern view of the imperatives in this statute, even Justice Callinan made some observations which do not sit comfortably with the Commonwealth’s case.  Can I give you some examples.  Paragraph 290:

Even if the purpose of deportation appears unlikely to be achievable within a foreseeable period it does not mean the purpose is not still being sought to be, and cannot be, implemented at some time.

His Honour seems to contemplate that the sections require attempts to fulfil the purpose.  In the next paragraph ‑ ‑ ‑

KIEFEL CJ:   Or his Honour is reflecting what Justice Hayne has said about the possibility that it is judged as at now you cannot say it, but it might in the future be possible.

MR GLEESON:   Potentially, your Honour, although when one reads it together with 291:

It would only be if the respondents formally and unequivocally abandoned that purpose –

it would no longer be for the purpose.  His Honour seems to contemplate that you can abandon the purpose in fact.  I gather the Commonwealth’s argument would be the detention would still be authorised and lawful, that your only remedy would be mandamus, perhaps not according to Justice Callinan.  Next, paragraph 294, reference to Lim:

The yardstick, and with respect rightly so, was “purpose”, the existence, that is the continuing existence of the relevant purpose of deportation.

We would read that as continuing existence in fact.  Paragraph 295 in the middle, his Honour again seems to suggest the case might be different if:

the purpose of the detention, deportation, has been . . . abandoned.

Paragraph 298, near the end:

So long as the purpose . . . has not been abandoned –

No difficulty, and paragraph 299:

The test is not whether the Minister harbours a hope, but whether she continues to have the intention of removing the appellant from the country.

So in each of those passages his Honour contemplates, we would submit, that there can be an inquiry into the circumstances of the case to see whether the purpose required by the statute is being performed.

Your Honours, in terms of the other authorities ‑ if I could do it relatively quickly – I referenced this morning Park Oh Ho, which is at page 463.  This was the case about the powers being used to detain someone to get their evidence.  The passage is at page 643 of the report or at the bottom of 470 of the book.  The relevant section:

authorizes the detention . . . “pending deportation”.  That means, in our view, during such time as is required for the implementation of the deportation order.  It does not authorize the indefinite detention in custody of a person for some ulterior purpose, such as the purpose of being kept available as a witness in a pending criminal prosecution.

So the detention was held unlawful because it was being pursued for a purpose inconsistent with the statutory purpose.  That, we submit, indicates the type of analysis that is available. 

Your Honours, in the subsequent authorities of the Court, which should be in volume 4, M76 of course the case where an attempt was made to reopen Al‑Kateb, it was not reached on the facts but three of the Court determined Al‑Kateb should not be reopened.  The observations of your Honour the Chief Justice and Justice Keane are relied upon heavily by the Commonwealth.  They were of course not made in the context of the present type of issue.  They were made in the context of a case where in fact because of the Court’s ruling on the anterior issue, the detention was authorised because they were still at the stage of visa consideration.  It was not even yet at the stage of removal. 

In the passages relied upon, commencing around 172, we would agree, with respect, that 172 and 174 accurately capture the ratio of Al‑Kateb as a matter of construction in a case, as I say, very different to ours.  Then at 175 through to 178 there are a number of extracts from Justice Hayne in a number of those passages I have been to earlier and the Solicitor has been to as well.  Those passages which at best are neutral on the present question and, on our submission, may provide some assistance our way including, for example, a number of the passages that I have already been to. 

What is important in 179 and following is when your Honours rejected Mr Niall’s argument that Al‑Kateb was wrongly decided, you did so in a context where Mr Niall’s argument – you will see it from the report at page 328 of the report, lines 1 to 10, page 481 of the bundle – was very much that the majority in Al‑Kateb did not give sufficient attention to legality.  That was Mr Niall’s foothold to assert clear error in Al‑Kateb, and your Honours refer to that in paragraph 180. 

We would submit that provides the context in which your Honours deal with the two questions:  181, the question of silence; and 184, the question of fundamental right or not.  Obviously enough, we are not putting Mr Niall’s argument, we are not in Mr Niall’s case, and we would invite your Honours’ comments to be read in that light.

In paragraph 182 we would draw attention to the words in parentheses near the end.  Your Honours, with respect, have correctly recognised that post‑ Al‑Kateb the ability to make a residence determination was introduced under section 197AB.  That provides a weakening of the binary scheme because it means that a number of non‑citizens without a visa may be in the community and, indeed, they are, and as I mentioned this morning, that provision which is a salutary provision as a matter of public policy is the one that tends to be used to prevent Al‑Kateb‑type people remaining in detention for the rest of their life.

When your Honours come to paragraphs 186 to 187, we would submit that all needs to be read in the context of does the statute permit the non‑citizen to be in the community without a visa in circumstances where it may not be possible to deport them in the reasonably foreseeable future, without your Honours addressing but what if the Executive has disregarded the limits which we would submit are attached to the detention ‑ ‑ ‑

KIEFEL CJ:   Mr Gleeson, I am not sure whether you answered the question put to you earlier which is reflected in paragraph 183, which is that, even if it were accepted that section 196(1) ceased to authorise continuing detention, section 189 would require the immediate detention again of the person. Do you accept that as correct?

MR GLEESON:   Thank you, your Honour.  I should have been clearer.

KIEFEL CJ:   It is probably my recollection.

MR GLEESON:   No, no, your Honour, perhaps I was being evasive.  The answer I think I might have commenced to give is that that result would not necessarily follow in every case.  It may follow quite strongly in the Al-Kateb‑type case, because you would simply say you are being released on the one hand because it is not reasonably practical to remove you in the near future – but how can you, from that fact, find any qualification in the imperative duty into 189?  That is the context in which we understand that to be made.

In our case, paragraph 175 of Justice Bromberg, we would not accept that that follows because if the findings are unchallenged, that the Commonwealth’s position is we will not perform the 197C duty, that qualifies the 189 duty.  The 189 duty is there to detain a person for the purpose of removal.  While ever the Commonwealth’s position remains, we will not remove you even though we are required to, that would flow back into 196 and 189.

KIEFEL CJ:   Does that amount to saying whilst the Executive remains recalcitrant in relation to its duties that they also somehow come under an obligation not to exercise their power under 189?

MR GLEESON:   It says their power and duty under 189 cannot be exercised for a purpose inconsistent with the statute.  So, if I take the Park Oh Ho Case, if the excess of the limits was detaining a person just for their evidence, if that person was ordered to be released upon habeas, if a Commonwealth officer purported to detain the person again, under 189, for that same purpose, which is contrary to the statute, section 189 would not authorise that activity, we would submit, nor require it.

STEWARD J:   But does not 189 turn on the classification of the person as an unlawful non‑citizen, and then once you are in detention, you would say under 198 it is for the purpose of removal or grant of a visa, but I am not sure that the Commonwealth’s subjective mistake about 197C can stop someone from being an unlawful non‑citizen.

MR GLEESON:   I cannot dispute that, your Honour.  They are an unlawful non‑citizen, the mistake cannot alter that.  The question is whether the “must detain that person”, whether that obligation, when 189 is read together with 196 and ultimately 198, is constrained by the same limit that it is detention for the purpose of, in the present case, removal, because if it were read beyond that as detention for some other purpose, that would be beyond the construction, and certainly beyond the Constitution.

Your Honours, conscious of the time, I want to make sure I have said something about Chapter III separately from what I have said about construction.

GAGELER J:   Mr Gleeson, perhaps you could just take this on notice, but I am interested in the legislative history that took us from the form of the Act considered in Lim to the form of the Act, relevantly sections 189, 196 and 198 that we now have - is that covered somewhere in the written material?

MR GLEESON:  What we have done in the supplementary book of authorities, Part B, is include the 1992 Reform Act, which was assented to the day before Lim was decided, and we have included in that the explanatory memorandum, which, particularly at pages 6 through to 9 or 10, discusses what is being done by the Reform Bill, and what we take from that is that, in effect, the Division 4B scheme for designated persons was generalised to be the scheme for non‑citizens, essentially for purposes of simplification and uniformity, but not with any intent by Parliament to undermine the principles which came to be laid down in the Lim Case.

GAGELER J:   You said that this received the royal assent the day before Lim, so that is ‑ ‑ ‑ 

MR GLEESON:  Yes, so the principles, which came to be decided in the Lim Case, so you do not see a word in here to say the need to keep what we will now call the unlawful non‑citizens away from the community is so compelling, what we intend to do by this generalisation of the scheme is to authorise the detention until the occurrence of the event, even if the limits are being exceeded.  So there is not a suggestion of that. 

Then what I sought to explain was that the – while there was assent on 7 December 1992, under section 5 it was meant to commence on 1 November 1993, it was a subsequent statute which made some minor, immaterial amendments to the form of the legislation, but pushed back commencement until 1994. 

By the time that it was commenced, through that amended statute, the Parliament was well aware of the limits imposed by the Lim Case, so the model was designed while Lim was reserved.  The model was confirmed after Lim was decided, and that provides some assistance for the view that the Parliament was not intending to produce the result the Commonwealth argues for. 

Your Honours, the Chapter III argument must arise in this circumstance - the provisions there, the intractable meaning that the Executive is required to keep people in detention until the occurrence in fact of, relevantly, removal, including for such period as the Executive, does not comply with the duties in section 198 and so the Parliament has intractably authorised the detention for that period.

Now, why does that offend Chapter III? The first reason is that on this view we are in the territory of arbitrary detention at the whim of the Executive. It is arbitrary detention because it will be prolonged for such period as the Executive fail and refuse to comply with the duties in section 198, subject only to the possibility of that prolongation being foreshortened, if someone, perhaps the person in question, can plead and make good a case for mandamus.

The arbitrariness comes from what I have just put, that subject to that possible foreshortening the Commonwealth gets to decide – the Executive gets to decide – how long that prolongation will be.  That prolongation is of itself not for the purpose of detention.  That is prolongation because the Commonwealth simply prefers detention to the performance of its duty. 

Now, in terms of the Lim principle, that to be valid the limits must be such as are reasonably capable of being seen as necessary to achieve the purposes, it cannot be said to be reasonably necessary to achieve the purposes to authorise that form of arbitrary detention at the hands of the Executive. 

EDELMAN J:  That arbitrary detention that you are referring to, is that the same as what the joint judgment in Lim characterises as punitive? 

MR GLEESON:   Yes, Lim is properly to be characterised as punitive and as a vesting of the judicial power in the Executive.  The second proposition is that in assessing that limit and the reason it is breached the focus must be on whether that form of detention is reasonably capable of being seen as necessary, et cetera, having regard to the purposes of, relevantly, removal for the person in question.  The test is to be dealt with at the level of the person in question. 

The reason I say that is I do not think it has been clearly said to you in writing or orally today, but there has been a waiving of a suggestion by the Commonwealth that the only way it can make its scheme work is for a statute which says “for such periods as the Executive breaches these limits, nevertheless the detention remains lawful”. 

There is just a slight inkling there of an argument devoid of constitutional fact that the only way you can make this sort of scheme function is to give the Commonwealth this authority even during the periods when it disobeys the law.  We would ask your Honours to reject that argument if it has been made.  There are no constitutional facts which would support it.  There are no facts proved at trial which support that type of argument and the focus really must be on the individual level.

Then our next submission is that the mere potential availability of mandamus to compel performance of the duties does not ensure that the Lim limit will not be transgressed and there are many circumstances which can readily be imagined as to whether mandamus is not or cannot be sought and cannot be issued so as to ensure detention is limited to the Lim limits.

GORDON J:   Could you explain that last bit?  I did not quite understand that submission.

MR GLEESON:   Yes.  There could be many circumstances in which mandamus either is not or cannot be sought.  Pausing there, what I have in mind is where, because the knowledge of whether the duty is being complied with lies in the bowels of the Commonwealth, the potential plaintiff or his or her lawyers with their ethical duties simply may be unable to plead a non‑compliance with the duty.  It is hard to see how you can do it as a plaintiff in mandamus unless you have some form of admission that the Commonwealth is not performing its duty or a circumstantial case can be made.

EDELMAN J:  As a practical matter it would be rare, if you are right, that a plaintiff would ever seek mandamus rather than habeas corpus.

MR GLEESON:   As a practical matter, that is right.

EDELMAN J:   If ever.  What circumstances would a plaintiff ever say, well – assuming they have not invoked the provision asking for removal.

MR GLEESON:   That is the circumstance in which they may practically do it, if they have asked for removal.

EDELMAN J:   That is a different duty.  That is a duty to remove if requested.  Would there ever be any circumstance where a plaintiff would invoke the duty to require removal within a reasonable period of time if they be entitled to habeas?

MR GLEESON:   Your Honour, I do not want to say never, because I do not want to overstate it or preclude the possibility.  What I am saying is it is difficult to think of when mandamus is going to be a suitable remedy, particularly where this is the duty and the ‑ ‑ ‑

EDELMAN J:   It is not - the question is not asked necessarily adversely to your argument, because it may be that the weaker the possibility of mandamus the less likely it would be that the statutory scheme should be construed in a way which created a duty that was devoid of any substantive enforcement.

MR GLEESON:   Yes.  That is what I was attempting to put, but I did not want to overstate that you could never, or you would never seek mandamus.  It may be possible, but it is a weak remedy for this duty in this circumstance, and very difficult for the lawyers to say, “I’ve got enough evidence to prove the duty is not being performed” because ordinarily, even the alien would assume that the Executive is conscientiously attempting to perform its duty, and it is probably having difficulty getting in contact with the authorities of the relevant country.  So to limit it to mandamus, we submit, does not satisfy the Lim test. 

Of course, it is of very great significance that you do not see a word in Lim that the limits are ones which can be satisfied by mandamus.  You see in multiple places that I have been to that habeas is the remedy for a breach of the limits and that essentially comes back to this, your Honours.  It is the different purposes of the writ.  Habeas is the writ directed to the unlawfulness of the detention.  Mandamus is the writ directed to the performance of the duty.  To collapse the Lim principle into mandamus we submit would be quite erroneous.

Your Honours, I am conscious of the time.  I presume there needs to be some time for reply.  What I have not covered, just to identify it orally, I have not covered the subsequent cases S4, M96A – there are probably one or two others in that category.  We have given you some submissions on them in writing. 

We do not abandon S4. We do not abandon what Justice Bromberg said about it. We accept it is a different case. But we do submit that in each of those subsequent cases, properly read, there are some relatively strong statements from the Court drawing together the authorities that the limits arising from section 198 around purpose and around time, are limits which go to the heart of the legality of this detention under section 196. We would submit, looking at those later cases, recognising their context, it is very difficult to square with them that the Court is sanctioning the approach taken by the Commonwealth in this case.

Your Honour Justice Keane, at the risk of attempting to re‑answer a question previously answered unsuccessfully by a green note, could I suggest to your Honour that perhaps in Koon Wing Lau at page 551 of the CLR at line 25, there may be a suggestion that at least one of the persons was an alien and might have been caught by some of the other provisions in the Act.  Those are our submissions, your Honours, thank you.

KIEFEL CJ:   Thank you, Mr Gleeson.  Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, early in my friend’s submissions your Honour Justice Gageler questioned can you explain how your case is reconcilable, how 196(1) is to be read.  In my submission, that question was never satisfactorily answered. 

A possible construction that your Honour Justice Gageler raised with my friend before lunch that he tentatively adopted was that “until” had some purposive element to it.  Later this afternoon the submission was put by reference to Al‑Kateb that what one should do is transfer the temporal limit from 198 to 196, which is quite a different way of limiting the provision.  If one does transfer the 198 limit, it is not at all apparent how one redrafts.  He or she is removed from Australia under 198, to some conception of a reasonable, practicable timeline. 

EDELMAN J: One possible interpretation would be, at least in relation to (1A), to read the words under section 198 as though they appeared before the word “until”? I mean, it is not – slightly changing the grammar, but it gives effect to the purpose that the respondent says underlies the Lim limits to section 196.

MR DONAGHUE:   Your Honour, two answers.  One, the proposition that “until” should be read purposively in that way was an argument advanced in Al‑Kateb and M76 and directly rejected, so one sees, for example, Justice Hayne dealing squarely with that very argument at 126 in M76 and explaining that that is not an available textual reading, so that is one answer. 

The other is that even if one does read it purposively, the purpose is properly identified in the wider way that we did before lunch and that your Honour the Chief Justice put back to Mr Gleeson on a number of occasions as preventing entry into the community of a person who has been refused permission to enter until such time as they are removed.

If that wider purpose, which Mr Gleeson accepted, is found in the Act as a whole, and one sees it clearly from section 4, is identified, then that purpose continues to be served, even if there is executive default.  Now, the executive default should attract remedy, we accept that, but the executive default does not change the fact that the purpose of keeping a non‑citizen who lacks permission to enter out of the community until removed continues to be served by the detention that 196 requires.  So, even if it is read purposively it serves the purpose. 

I am also reminded that if one were to be rereading the provision or readjusting it in some way, it needs to work coherently with the other paragraphs, including the grant of a visa paragraph, and that is quite difficult to do, in my submission, to treat the terminating events as not actually requiring the occurrence of the events. 

Second, a brief point about 54R held invalid in Lim, and 196(3), it was not apparent to us until today that is was being said that 196(3) suffered the same vice as 94R.  It has been argued many years ago in the Full Federal Court that 196(3) was invalid for the same reasons as 94R in Lim and the Full Federal Court rejected that argument.  The case is NAMU v The Minister (2002) 124 FCR 589 at 10 and 13. I do not need to do more than give your Honours the references.

In that context I would note, in answer to your Honour Justice Steward’s questions about the scheme, the binary nature of the scheme, that it is significant that at the time that Lim was decided, save for the quite specific category of designated persons that, from memory, had less than 400 people in it, there was nothing unusual in the Act as it then stood about the notion that people might be in the community even though they did not have a permanent right to remain.  That was the scheme.

So, the idea of an order for release under habeas of a person under that scheme was much more readily accommodated than this scheme, which quite clearly says unless you have a visa, you must be detained.  The generalisation of this specific regime for designated persons to all persons is what created the systemic difference, the scheme‑wide difference that Justice Hayne so emphasised in Al-Kateb and in M76.

Your Honours will recall at the start of his submissions Mr Gleeson said that there was agreement between the parties as to lots of the conceptual principles, including at the level of the relevant analysis.  That is, as we understand it, that one construes the Act and then tests the Act against constitutional limits – not individual exercises of executive power.

But despite that acceptance, there were then repeated efforts to inject the executive purpose into the relevant analysis.  Mr Gleeson said to your Honour the Chief Justice a few times that there are multiple levels of purpose in play.  But the way that that was sought to be developed was by cases such as Koon Wing Lau and Park Oh Ho, which are cases about discretionary detention in a deportation context.

In the context of discretionary detention in a deportation context, it is easy to see why a purpose of officers matters because if the officers are not exercising a statutory power conferred on them for a proper purpose, they are acting ultra vires, and the detention that would otherwise be authorised is not authorised because there has been an invalid exercise of executive power.

Nowhere, at no point, has the respondent explained how you can take that kind of analysis and apply it to a case where the executive officers have no choice.  Their purpose cannot vitiate the detention because the detention is required if the person detained has the status of unlawful non‑citizen.  In our submission, there is no explanation for how one gets the multiple levels of purpose.  If one takes the Palmer approach and tests this Act against the Lim principle, it leaves no room for the purpose of individual executive officers to vitiate what would otherwise be lawful detention. 

As to Lim – I will not take your Honours back to it – our friend spent quite some time on pages 33 and 34 of Lim.  What is undertaken on those pages is a test of the statutory limits of the scheme against the constitutional principle.  Mr Gleeson said to your Honours many times that in this discussion the Court says that habeas is the appropriate remedy.  Your Honours will not find the word once in that discussion.  There is no reference of habeas at all in this part of the judgment.  The Court just does not say that that is the appropriate remedy for a breach of the legal limits.

Your Honours will recall that Mr Gleeson said Al-Kateb is a subsidiary case because the precise issue in play here was not in play there.  That is true, but if one is to adopt that kind of analysis, it is even more true of Lim.  There was simply no question in Lim about whether detention ceased to be unlawful after the point when removal should have occurred.

The facts in Lim were that there had been – a refusal to grant visas had been quashed, that application remained outstanding, and the question was whether the applicants should be released from detention while their visa applications were being considered.  So neither case, neither Lim nor Al‑Kateb squarely deals with the issue that your Honours now have to decide. 

The point is the point your Honour the Chief Justice made about what they tell us about the scheme, about how the scheme works in terms of the binary divisions that it creates, but Lim certainly in no way supports the idea that habeas is the correct remedy, and the proposition that there is some passage at the top of page 34 that is fatal to our case is, with respect, just not tenable.

GAGELER J:   What is your answer to the sentence at the top of page 36, this is an example of a case that would – where detention in custody is no longer authorised?

MR DONAGHUE:   Yes – the sentence after the 54Q sentence?

GAGELER J:   Yes.

MR DONAGHUE:   Yes.  So, their Honours are here explaining not that 54L cannot apply, but that 54R, in purporting to prevent the grant of a remedy, is invalid.  The remedy, in our submission, in that situation, is to require officers to comply with the duty to remove by granting mandamus, but that would have been an order, under this scheme, for release from detention, because removal was one of the ways 54L says detention – it refers to release from detention either by grant of a visa or by removal.  So in its terms 54L just said the Court cannot do anything about a situation where a person should have been removed.  We agree that is unlawful.  If we did not have the mandamus answer here, then there would be no ‑ ‑ ‑ 

KIEFEL CJ:   I think you meant 54R.

MR DONAGHUE:   Yes, exactly.  So 54R falls over, but 54L is valid.

KEANE J:   Their Honours actually say that when they get to page 36 about halfway down the first full paragraph on the page:

A law of the Parliament which purports to direct, in unqualified terms –

et cetera.

MR DONAGHUE:   I accept that, your Honour.  I think that was deployed against us, but it is the same answer really that if there was nothing that the Court could do to remedy the situation of the ongoing detention despite breach ‑ ‑ ‑

KEANE J:   It is beyond the power of the Parliament to make such a law.

MR DONAGHUE:   It was put a few times – and this is related to the point I have just made – about executive abandonment of the purpose.  Two points about that.  One, in our submission, our friends very considerably overstate what one can fairly read from paragraph 129 of Justice Bromberg’s judgment.  Justice Bromberg had given the parties an opportunity to update the evidence if circumstances had changed, and that did not happen.  That is all his Honour was saying there. 

In fact, as the discussion that follows shows, the Commonwealth never abandoned the purpose of removal – said we will not remove you.  The Commonwealth was trying to remove to Lebanon.  It was not trying to remove to Syria.  We have not tried to defend that.  We have accepted that 197C operates in such a way that there was a default by the officers in that circumstance.  But there was no abandonment or wilful disregard of the law save insofar as, we submit, for legally erroneous but understandable reasons the Commonwealth officers were pursuing removal to a different place.  That is the first point.

The second point is really I think probably the one I have already made, that the whole notion of an executive abandonment of purpose of detention suggests that the Executive has authority to abandon purpose.  But where do the officers get the authority to abandon the purpose that Parliament has imposed lawfully upon them?  It is not, in our submission, a useful concept.

Habeas and mandamus - there has been some discussion as to the relationship between them.  One point that perhaps has not emerged is that if your Honours go to 198 of the Act in subsection (6), which is the applicable subsection, your Honours will see there that the first of the limbs that shows when 198(6) is engaged, (a), is that:

the non‑citizen is a detainee –

Once you release the non‑citizen from detention, the duty and power to remove from under this subsection does not exist.  So there is a tension between the notion that habeas could be granted to release, and then the Act could be given effect in accordance.

It would only work if there were to be habeas for a moment, re‑detention then immediately under 189 and then it would be possible to give effect to the duty to remove.  But the more coherent operation of the scheme would be to recognise that 196(1) means what it says.  It requires and authorises detention until the actual event of removal, and then the power to remove arises naturally under 198(6).  That is the complete constitutional analysis, because that law is reasonably capable of being seen as necessary for the purpose of removal and separation from the community until it occurs.  Then officers who do not comply with that duty should have the duty enforced against them. 

As to Al‑Kateb, your Honour Justice Edelman put to my friend that perhaps this is a harder case because this is a “will not” case and that was a “cannot” case.  In my submission, this case is perhaps better viewed as a “did not” case.  It is true that the officers did not know what they should have done, but the difference is that a court - this Court or a Federal Court can remedy that and if they grant mandamus then the Act will be complied with and removal will occur. 

Al-Kateb is harder because there was no out in Al-Kateb.  There was no capacity to grant mandamus and bring about the end of detention.  There was the possibility squarely confronted by the Court of indefinite detention in that case.  Yet even then, the purpose of keeping people without permission to enter separate until removal could occur was valid and served by these provisions. 

Our friend made a point about the end of 226 where Justice Hayne referred to the purpose of removal expiring.  In my submission, his Honour was not saying that if you reach the point where removal should have occurred, and an executive officer has not complied with their duty to remove at that point, then the duty to remove expires such that the non‑citizen just gets to stay forever thereafter.

That is obviously not what his Honour meant.  The duty does not expire.  The duty to remove does not expire until it is given effect.  It continues to exist until the officer complies with it, and so understood there is no difficulty explaining his Honour’s remarks at 226. 

Finally, as to Lim, the last point made about Chapter III, the Lim limit is about whether the law properly construed complies with Chapter III.  It cannot fail to do that because of the possibility that officers of the Executive will breach the duties imposed on them by that law.  If that were the case one could never asses the validity of a legislative regime by looking at the text of the law and the limits that Parliament has specified because there would always be the possibility that executive officers will breach the limits or exceed their powers. 

Perhaps another way of putting that is that defiance of the law, even if it were to be shown, would not be within the range of available outcomes that one has to take into account in assessing compliance with Chapter III.  The right approach is the Palmer approach, to police those limits by judicial review, so that Parliament should not be seen here to be pursuing a purpose of authorising arbitrary detention such that the Executive can detain irrespective of whether or not it is giving effect to removal.  That is not what Parliament is doing.  Parliament has specified the purpose and created limits that enable a court, if necessary, to ensure that those limits are respected.  Unless the Court has any questions, those are our submissions.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 4.19 PM THE MATTER WAS ADJOURNED