Falzon v Minister for Immigration and Border Protection

[2017] HCATrans 230

[2017] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S31 of 2017

B e t w e e n -

JOHN FALZON

Plaintiff

and

MINISTER FOR IMMIGRATIOIN AND BORDER PROTECTION

Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 NOVEMBER 2017, AT 10.18 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:   If it please the Court, I appear in this matter with MR D.P. HUME, for the plaintiff.  (instructed by Zali Burrows Lawyers)

MS A.M. MITCHELMORE:   If the Court pleases, I appear with my learned friend, MR C.J. TRAN, for the defendant and for the Attorney‑General for the Commonwealth, intervening.  (instructed by Australian Government Solicitor (Immigration))

KIEFEL CJ:   Yes, Mr Lloyd.

MR LLOYD:   In a bundle which we have provided to the Court this morning, there is an affidavit of service of the section 78B notice and such responses as have been received.  I regret that it was not filed as it should have last we, but I would seek leave to have that filed today in the Court.

KIEFEL CJ:   Yes, that is in order.

MR LLOYD:   There are no facts in dispute in these proceedings, so I need go to the application book only for one purpose, and that is to note on page 24 that – AB 24 in paragraph 14 my client, Mr Falzon, was an “Absorbed Person” and obviously the status of my client per se cannot affect the validity of it, but it does show that the powers in this case, when one considers whether or not they are punitive, we say it would be relevant that it extends to persons who have been absorbed into the Australia community and whether or not their segregation from the Australian community should be characterised as punitive in nature.  So, we note that that is so.

KIEFEL CJ:   Is that a defined term?

MR LLOYD:   It is ‑ ‑ ‑

KIEFEL CJ:   Because he was the holder of a specific visa as well, was he not?

MR LLOYD:   Yes, an absorbed person is a visa – we also have in the materials we handed up today a bundle of provisions from the Act – the Migration Act. Section 34 is a definition which results in a grant of an absorbed person visa by operation of law to persons who meet the description in section 34(2), and the critical element here is that before the date of 1984 the person has ceased to be an immigrant, so they have become absorbed into the Australian community. The effect of that was that they fell outside the power of the immigration power in the Constitution which is why at the time that section 34 was brought in there was a swapping of the basis of the Migration Act to the aliens power to be able to continue to capture and regulate people who had ceased to be immigrants. 

Turning then to our substantive submissions, our first proposition is that the power to punish criminal guilt is exclusively judicial in character.  We address that contention in our written submissions in‑chief, on pages 4 to 5, at paragraphs 23 to 25.  At paragraph 27 of the Minister’s submissions in‑chief – I am sorry, their submissions – the Minister accepts that a law may impose detention for punitive purposes only in the exercise of judicial power.  That is enough of an acknowledgement for our purposes, so we simply rely upon our written submissions in that respect.

We would add that it is sufficient if punishment is one of the principal purposes of the law.  In that regard we rely upon the decision in Re Woolley (2004) 225 CLR 1. Relevantly, at paragraph 61, in the judgment of Justice McHugh, his Honour deals there with whether some things are the “principal objects or purposes” and whether one of them is punitive. I also refer to paragraph 82, also in his Honour’s judgment.

So we say that if punishment is one of the principal purposes that would be enough to lead to the exercise of the power needing to be exclusively judicial in character.

NETTLE J:   I am sorry, Mr Lloyd, I cannot hear you.

GORDON J:   Sorry, Mr Lloyd, we cannot hear you.

MR LLOYD:   Sorry.  If punishment is one of the principal objects of a power, we would say that would be itself sufficient to mean that the power involves ‑ is of a character that is exclusively judicial in character.

EDELMAN J:   So do we accept that a purpose of punishment is not merely a purpose of inflicting some adverse consequence upon a person?

MR LLOYD:   Not merely.

EDELMAN J:   Yes.

MR LLOYD:   It may be more than that.

EDELMAN J:   That it would require, for example, one of the usual justifications for punishment such as deterrence, rehabilitation, retribution.

MR LLOYD:   Well, as will become clear, we say that laws to the effect that detention which involves the deprivation of liberty is of itself, of its nature, punitive.  And subject to there being some justification shown, the default characterisation of a law that imposes detention or causes detention is that it is punitive.  Now, that is not to say that there cannot be other justifications and that other purposes cannot become the sort of pre‑eminent and only purpose, having regard to all the circumstances, but we do not say that those matters have to be established because detention is of its nature punitive, we say.

KEANE J:   Mr Lloyd, is your case that the exercise of the power to cancel the visa is itself the exercise of a power to punish?

MR LLOYD:   We rely upon the fact that the cancellation of the visa leads inevitably to the ‑ at least, the liability to be detained.  There is an immediate change in the legal status of the person so that they are susceptible of being detained and that – the Act itself refers to that cancellation as resulting in detention.  We say that when one has regard – when one is trying to characterise the power in section 501(3A) one has regard to the legal effects and consequences of that exercise of power and so it is at least in part coloured by the fact that a cancellation leads to detention.

NETTLE J:   So is the cancellation punitive?  The act of cancelling the visa, is that a punitive act?

MR LLOYD:   We say it can be characterised as punitive when it leads to detention and when, in the circumstances, having regard to all of the circumstances, it is properly characterised as punitive of character.

GORDON J:   Punitive or just a detriment?  Not every detriment is punitive in nature ‑ cancellation of the visa.

MR LLOYD:   We would accept that there would be instances where cancellation of a visa would not be punitive.  If you were overseas and you were never – and it was cancelled while you were overseas and you were never detained as a result that might not be one but a cancellation which leads to and is intended to lead to detention – I mean, in this case, the whole purpose of this provision was to allow detention to be extended ‑ ‑ ‑

KIEFEL CJ:   But cannot that same be said of other provisions for cancellation of visas which are not put in doubt ‑ which have not been considered to be provisions which fall foul of Chapter III?

MR LLOYD:   It can be said of other provisions.  We say that the features of this provision – there are a number of them which we get to at the end of my submissions – together distinguish this from all of the other powers.  There are important factors, like this is a mandatory power.  There is no discretion.  There is no element of looking at whether or not there is a need to detain to protect the Australian community.

KIEFEL CJ:   But the purpose remains the same, does it not?  The cancellation of a visa is part of the exercise of a power to expel a person.

MR LLOYD:   It can lead to that.  In the case of this power the cancellation is, as it were, a default by reference to the two criterion that have been served with a provision for revocation so that issues can be considered during the revocation process while the detention is continued.  That is unlike, for example, section 501(2), which is a different power of the Minister to cancel, which is a power I note which is available to the Minister in every case where this power is available.

So the Minister could, if the Minister wanted to, for a person in detention give the person procedural fairness under section 501(2) in advance while the person is still in criminal detention because this power only applies to people in criminal detention.  So the power under 501(2) could be exercised and procedural fairness could be given. 

This is a special power that allows for, in fact – I do not want to say “automatic” – the mandatory cancellation for people who just meet two criteria and then detention continues, including beyond the period of any criminal detention, until the Minister is satisfied one way or the other under the revocation power.

KEANE J:   Mr Lloyd, under section 501(1), the Minister has power to refuse a visa on the basis of a failure to meet the character test.  Is the refusal of a visa a punishment or a penalty?

MR LLOYD:   Certainly not per se.  If, for example, somebody is not in Australia and they are refused a visa, I do not think anyone would suggest that was a punishment or a penalty.

KEANE J:    No.

MR LLOYD:   If they have come to Australia ‑ and I will come to this later – in terms as used by this Court “uninvited and unheralded” looking for an entry permission, then it may be that detention of such a person, who has never been part of the Australian community, has never been lawfully within Australia, is not seen as punitive because the purposes of having a mechanism to allow them to be processed before they are either removed or permitted to enter is not punitive in nature.

That is one of the reasons we distinguish that kind of power.  That is a power for somebody who has never been here, never been part of the Australian community.  All the people that 501(3) deals with are people who have been part of the Australian community, including my client, somebody which has been absorbed into the Australian community and who are then kept in detention and had their criminal detention extended while the Minister thinks about whether or not to revoke what is a mandatory cancellation.

GAGELER J:   Mr Lloyd, you have taken us to Woolley, according to the headnote in Woolley, sections 189 and 196 fall within section 51(xix) of the Constitution and do not infringe the judicial power of the Commonwealth because they do not authorise a detention which is punitive in nature. Do you accept that?

MR LLOYD:   We are not challenging those provisions.  We accept that there are at least many instances where that is so and this was one of the instances.

GAGELER J:   So you will need to take us, I think, precisely to what aspects of the legislation you say produce a detention which is unlawful, because as I read those provisions they are the ones that cause, authorise and continue the detention.

MR LLOYD:   I accept that.  Our case is that it is section 501(3A) which, as it were, enlivens the detention powers by reference only to people who have a particular criminal record, so linked to their criminal sentences, and who are serving a criminal sentence.  So there are two criteria, they are both directed towards their criminal sentences, and then we say that requiring detention for those people and extending, as is usually the case and intended to be the case, that gives a character to that power – 501(3A) – which makes it judicial in character because that cancellation is for the purposes of detention, and so the detention in that context has a character which is perhaps different to the previous context, none of which we challenge.  So the decision in Woolley was, of course, done prior to the enactment of these provisions that we challenge.

NETTLE J:   Is not the cancellation for the purposes of deportation rather than incarceration and the incarceration is simply to hold him so long as is necessary to go through the formalities and other steps requisite before he can be deported?

MR LLOYD:   It can be.  In the case of section 501(2), where there is procedural fairness upfront, the person gets a chance to say everything, the Minister reaches a state of satisfaction after having heard everything, then the Minister is, in a sense, reaching a final decision on all of the relevant materials and deciding that this person should be removed from Australia and it may well be that detention in that context is properly seen as being protective pending removal.

In this context, the Minister has not considered everything.  The Minister can only consider two things.  Everything else is an extraneous consideration, only comes in during the revocation process, and it is only at the revocation stage that everything is considered and the people are kept in detention while the Minister is looking into all of those matters.  So, in that sense, it is of a different nature to somebody who is detained pending removal.  These people were detained pending a decision on revocation.

BELL J:   In a case in which the person seeks revocation of the cancellation decision as opposed to acceptance of deportation.

MR LLOYD:   That is so.  We would say that the Minister, at the very least, would detain the person under this power for 28 days.  That is the period of time within which somebody could seek revocation.  As in my client’s case, he was due to be released on, I think, 14 March last year.  A decision was made on 10 March to cancel his visa and he would have 28 days to seek revocation.  At the very least, his detention would be detained, in his case, for another 24 days.  But of course, if he does seek revocation, as one would expect would be anticipated for people who have been lawfully within Australia, then it takes longer.  In my client’s case it took almost another 10 months after the revocation application for a decision to be made.

GAGELER J:   So your case is about the period between the decision under section 501(3A) and the decision under section 501CA, that period alone?

MR LLOYD:   That is perhaps the most critical period for our purposes, your Honour.  We say it is punitive.

NETTLE J:   But he still gets deported.  How does it avail you?

MR LLOYD:   During that period we say that the person is being held because the legislation takes a kind of a default view without looking at protection, but just by looking at people who have suffered criminal sentences or somebody who is serving a criminal sentence who has previously had a criminal record of a particular kind they are then, by default, said to be cancelled and then, while the person stays in detention, a decision is made on revocation.  Only after the revocation decision is made can it be said that the person is really being held for removal.

NETTLE J:   But does voiding the incarceration period or demonstrating that it is unlawful get you to the point where you demonstrate that the deportation is unlawful?

MR LLOYD:   We would say that if 501(3A) is invalid, as we say, because it involves necessarily this extended period of detention, at least up to the period of the revocation decision, then it would be unlawful and so the decision in this case would be set aside.

KEANE J:   But is not the problem with that argument that it produces the result that, if you are successful in this case, your client is not only freed from detention but he also remains in Australia without a visa?

MR LLOYD:   He would not remain without a visa; he would have a visa.

KEANE J:   So if you are successful, he is somehow or other deemed to have a visa?

MR LLOYD:   No, not at all.

KEANE J:   He just never lost it.

MR LLOYD:   The cancellation having been ineffective we seek to have a declaration of certiorari that the cancellation decision be set aside.

KEANE J:   So the result would be not merely that your client is not in detention but that your client is lawfully here as well?

MR LLOYD:   Indeed, and, of course, the Minister is free to exercise his powers under section 501(2) or (3), if (3) be apposite, to make a decision to remove him.  So it is not like our case leads to some terrible result.  Indeed, on our view, the Minister could have, at any time during the eight years when my client was in detention, exercised the power under section 501(2), provided my client procedural fairness and then there would have been enough time to do every conceivable review within that eight‑year period.

KIEFEL CJ:   Is not the difficulty with that, though, that once that power of cancellation is exercised there would be an obligation to take steps to remove him from Australia, and there is a time question then.

MR LLOYD:   Your Honour raises an interesting question as to how that works.  If your Honour is correct, and your Honour may well be correct ‑ ‑ ‑

KIEFEL CJ:   I do not think it is a novel proposition; I think it has been held by this Court, has it not, that steps must be taken to remove a person as soon as practicable.

MR LLOYD:   A lot might turn on what “as soon as practicable” means.  If, for example, a person has committed murder then on one view that person could, facing 25 years in gaol, go to the Minister and say, “You are bound, under section 501(3A), to cancel my visa.  I’ve done this sentence, I’m in detention.  You have no discretion.  Please cancel my visa.  Now you are bound to remove me.”  So, rather than spend 25 years in gaol, I will be removed.

NETTLE J:   That is not your case, is it?

MR LLOYD:   No.

NETTLE J:   It does not arise here.  Your complaint is that the power was exercised, not that it was not.

MR LLOYD:   No, indeed.  But I mean it turns under a question which, again, I was going to come to because there is a difference between the parties as to exactly whether or not removal would be required.  We anticipate that the Minister would take the view that a person is not – it is not reasonably practicable to remove somebody until their criminal detention has expired.  That is one possible way they might explain it.  We do not think the Minister would take the view that he has to remove somebody way before the end of their criminal detention because we are not aware of any case where that has ever happened.

NETTLE J:   But you have served the minimum term.  There is nothing that makes it impracticable to deport you now, is there?

MR LLOYD:   No, indeed.  So what the Minister did was wait until my client got parole and then took him – having cancelled him four days before that became effective, then maintained his detention after that period while the Minister looked at, for nine months, whether or not to revoke that and to take into account anything that he considered.

KIEFEL CJ:   Could I ask you about the detention in what you have called this critical period?  Do you accept that he is detained under section 189 or 196?

MR LLOYD:   At the moment, my client certainly is detained under sections 189 and 196, so the power is relied upon.

KIEFEL CJ:   We are not concerned with any question of ultra vires, the detention being for this period of possible revocation being ultra vires, those powers?  I am just wondering because at paragraph 8 of your outline you talk about him being detained simply – he is not being detained simply to facilitate deportation or removal.  I just wonder what territory we are in.  We are not really in an area involving the source of the power to detain but rather the connection between section 501(3A) and those powers. 

MR LLOYD:   Yes, we have not challenged the validity of section 189 but we say if our challenge to 501(3A) is correct because it is properly understood as a power which confers judicial power then it would be invalid then the cancellation would be invalid, so my client would then, once again, hold visas and he would then be released from detention until some subsequent decision is made, if at all.

NETTLE J:   Rather than hold 501(3A) to be invalid, why not hold that 189 and 196 insofar as they apply to a 501(3A) application are invalid?

MR LLOYD:   We would say that the case works perhaps a little bit like in the decision in Roach, that 501(3A) was added at a time when section 189 and 196 were already there.  We do not say that those powers were invalid in any of its other contexts.

NETTLE J:   No, no, only in its application to 501(3A).  Section 501(3A) itself would still stand, it would just be the joinder of 189 and 196 to it that would not.

MR LLOYD:   That is one way of looking at it.  We would say that by adding section 501(3A) to the existing Act that led to a position where there was then a scheme which allowed for non‑judicial executive detention and that was invalid and the appropriate way of dealing with that invalidity is to find that the amending Act was invalid and thereby remove the provision which led to the invalidity under the scheme.

GORDON J:   Do you propose to take us to the elements of the scheme that you say make good that proposition that there is a non‑judicial executive detention?  I think it is a question Justice Gageler asked you and that is how is it that you say that arises – a reference to what you have just put to us?

KIEFEL CJ:   I suppose you would if we gave you a moment to continue.

MR LLOYD:   If I can say this, I think it is, I suspect, uncontroversial that when a person’s visa is cancelled then under section 189(1) ‑ and I think we have set that out in that additional bundle of materials we have and I think it was also previously in the Minister’s powers ‑ section 189(1) gives rise to an obligation on an officer ‑ which is a very broadly defined term and we have included the definition of that in our bundle ‑ to “detain” the person.  I think we have also set out the definitions of “detain” which is also fairly broad and also “immigration detention” which includes prison.  So, somebody could be serving criminal sentence in a prison and they could be detained in the exact same prison that they are serving their criminal sentence in.  So, that is section 189, gives rise to that duty. 

Then there is a requirement that the person be kept in detention ‑ that is in section 196 – and we place some reliance upon section 196(4) which says:

Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation –

So this idea is the detention is “as a result of the cancellation”.  That is a legislative concept; it is not just something we say happens practically, although obviously it does.  It is intended to happen, under section 501:

the detention is to continue unless a court finally determines that the detention is unlawful, or that the person [who is] detained is not an unlawful non‑citizen.

One sees in (5):

To avoid doubt, subsection (4) or (4A) applies:

. . . 

(b)whether or not a visa decision relating to the person detained is, or may be, unlawful.

So in this case, for example – I am not saying we would have done this – but we could not come to this Court and say our client should be released because we have a good argument that it is unlawful that Parliament has provided that these powers under section 501, which includes 501(3A), that the default mandatory cancellation is effective until a court declares it invalid, and we rely upon that.

GAGELER J:   Mr Lloyd, if there is a cancellation under section 501(3A) and a person is taken into immigration detention under section 189(1), and an application is made under section 501CA and the revocation decision is itself revoked, what is the end point of detention under section 196?

NETTLE J:   It has granted a visa ‑ ‑ ‑

MR LLOYD:   It is not the grant of a visa because they have already – the effect of the revocation, as I recall under 501CA, is to negate the cancellation ab initio, but not the validity of the detention.  So, 501CA(5) is:

If the Minister revokes the original decision, the original decision is taken not to have been made.

So, then the person is no longer an unlawful non‑citizen and presumably at some point shortly thereafter they will cease to suspect that he is an unlawful non‑citizen and release him from detention.

GAGELER J:   I see, the condition of being an unlawful non‑citizen would no longer exist?

MR LLOYD:   I think that is how it works.

GAGELER J:   I see.

BELL J:   And 501CA(6) provides that any detention that occurred during part of the period prior to the determination is lawful.

MR LLOYD:   Yes, so in the case of at least 501CA, the cancellation happens by this mandatory provision, it cannot be challenged on any interlocutory basis, you must be kept in detention for a period until a court finally determines the invalidity and the detention is deemed, as it were, or made to be valid.  We rely upon that to add what we say is an important issue when one goes to characterise the power under 501CA as judicial ‑ of a judicial character, is that it has a very high measure of inclusiveness.  Now, it is not inclusive like an order of a court, but the fact that it cannot even be challenged in a court on an interlocutory basis makes it very unique, at least.

KIEFEL CJ:   This might be an appropriate time, I think, to come to the question of the features of 501(3A) which you say possess this character.

MR LLOYD:   Certainly.  I, in fact, have not actually in my mind finished my first point but I am content to address that.  So, going to section 501(3A), it can be seen that it is engaged – in determining the character and purpose of a power conferred by statute, that includes consideration of all the circumstances and I skipped over that but I do not think that is controversial anyway.  So now I will relate what we say are the relevant circumstances here. 

So, in (3A) of section 501, the first element is that the person has to have a criminal record characterised either as a “substantial criminal record”, which means being convicted of one or more crimes totalling at least 12 months, or having committed “sexually based offences involving a child”.  So that is the first limb that turns on the Minister’s satisfaction.

The second limb turns on the person “serving a sentence of imprisonment” and those expressions “sentence” and “imprisonment” are both defined in subsection 12 in ways that expressly draw attention to the person being in “punitive detention”.  That is how imprisonment is defined, and sentence is “any form of determination of the punishment for an offence”.  So immediately the criteria both relate to somebody who is or has committed criminal offences and the person who is currently in what might be called criminal detention.

The second criteria – not that we make much of this but we noted – seems to be a jurisdictional fact as opposed to the first one which turns on satisfaction, or perhaps I should say the second one is a jurisdictional fact which seems to turn on the objective truth of the matter as opposed to the Minister’s satisfaction. 

We say that the power is apt to extend the period of detention beyond that specified and I think there is some extrinsic material which indicates that one of the functions served by 501(3A) is where the Minister has not exercised one of the other powers while the person is in detention.  It allows the detention to be continued beyond the criminal detention, and certainly that is what it did in my client’s case. 

So his criminal detention finished on 14 March and then his detention continued after that point until the revocation decision was made.  Now, of course, it continued even beyond that as well, but we are principally focused upon that period.  We say the additional detention attracted by reason of the criminal record and the existing criminal punishment added additional punishment to the persons concerned. 

BELL J:   Would that require that where a person who has a substantial criminal record within the meaning of the provision, or who has been convicted of a sexually based offence involving a child is facing a court and the court is contemplating the imposition of a sentence of imprisonment, the court could properly take into account in its sentencing function that a consequence would be the cancellation of visa and detention pending deportation because it is punishment?

MR LLOYD:   We do not say that the cancellation of the visa alone is punishment; it is the cancellation of the visa in conjunction with the extension of detention.

BELL J:   You talk of extension of detention.

MR LLOYD:   Yes, your Honour.

BELL J:   I am having some difficulty grasping what you mean by “extension of detention”.  The visa is cancelled; the person then comes under the 189, 196 regime.  What is the element of extension of detention effected by 501(3A)?

MR LLOYD:   If somebody is serving a sentence of criminal detention in a prison then one of the things that 501(3A) permits is, as it did in this case, a few days before the end of the criminal sentence ‑ the cancellation decision is made in a mandatory way and then the person, whenever the criminal detention ends ‑ and the criminal detention becomes immigration detention at the end of the criminal detention.

BELL J:   The fact that the person is detained consequent upon the cancellation of the visa – I just do not understand the notion of the extension of the criminal detention.

MR LLOYD:   We say that this power applies only to people who are currently in criminal detention; it does not apply to anyone else.  Everyone is currently being detained for some offence and rather than, as is the case – or as was the case, the criminal detention would come to an end and then one of the Minister’s powers under 501(2) or (3) would be exercised.  If (2) was exercised, you would be out in the community and free.

BELL J:   So this is an argument that the Parliament lacks the power to determine to exclude from the Australian community aliens who are in custody and who have either a substantial criminal record or a record for a sexually based offence against a child?

MR LLOYD:   No, not at all.  We do not say that the Parliament cannot do that.

BELL J:   If it chooses to exclude persons from the Australian community by way of cancelling their visa, if they answer that description, what is the difficulty?

MR LLOYD:   What we say is, if somebody has, say, a substantial criminal record, a substantial criminal record could be very old.  It might not suggest the person poses any threat to the Australian community.  They might be in prison for a week for some fine defaulting.  Nonetheless, the Minister is still bound in that case to exercise this power.

BELL J:   Because the Parliament has made a judgment about circumstances in which aliens will be excluded from the Australian community and it may be a harsh judgment.

MR LLOYD:   We say it is not precisely that because Parliament has also set up a revocation scheme whereby everything could be considered including whether the person poses any threat to the Australian community but a person who has been in criminal detention has to stay in detention while the issue of whether or not they are a threat to the community is considered.

That happens only while a person is in detention.  In that sense, the power, to the extent that there is any protective element at all, is overly broad.  It does not capture people from whom Australia needs protection.  Everybody, whether they need protection or not, has to stay in detention while the Minister takes his nine or 10 months to work out whether or not Australia does need ‑ ‑ ‑

KIEFEL CJ:   Is that circumstance, though, so different from the situation which prevails where visas are cancelled and people remain in immigration detention while the question of whether they are an unlawful non‑citizen is finally determined?

MR LLOYD:   There are different powers.  If a visa is cancelled under section 501(2) for example, then the person has had the opportunity to put every argument they want and the discretion to cancel involves an assessment of the protection of the Australian community.  So the Minister will have, in exercising that power, decided that the person would be a threat to the Australian community. 

We say that, in all the other powers under section 501 that there is what the Full Federal Court has described as a common thread running through them, that they provide a protective purpose.  We say 501(3A) is different to that because it cancels first and looks later as to whether or not there is any need to have done the cancellation.  In the meantime, the person stays in detention, whereas that is not the way it works under the other powers.

KIEFEL CJ:   So it is the protective purpose that you are drawing on here?

MR LLOYD:   Yes.  We say whereas the other powers can be seen to serve a protective purpose, 501(3A) does not serve a targeted protective purpose.  It captures people who may pose no threat whatsoever and then they stay in detention while the Minister considers that.  That is not the position in relation to the other matters.  Even where the Minister can exercise the power under 501(3), which is a power to be exercised without the provision of natural justice, the Minister has to take into account whether or not it is in the national interest to cancel and that would and has been said to involve some assessment of the protection of the Australian community.

So there is a protective element to that as well, a decision made prior to someone then going into detention, whereas this provision is unlike all of those.  There is a detention and then a consideration of protection, if at all – it is not even required – at a later point in time.  We say that distinguishes this power from all of the other powers.

KIEFEL CJ:   I think we have taken you out of your order of propositions.

MR LLOYD:   Perhaps I will just go back and see what I have not done.  I think I have addressed proposition 1.  Proposition 2 is simply that one must look at all the circumstances.  Again, my friend has, in her submissions at paragraph 27, indicated that the Minister accepts that for the purpose of characterising a law one should look at all the circumstances and they rely upon the same paragraph, 58, from Re Woolley, as we rely upon.

EDELMAN J:   Is not one of the key circumstances that the period of detention is in no way tied to the criminal offence?  In other words, the period of detention is a period of detention pending an ultimate removal.  It is not a period of detention that will vary according to the severity of any offence.

MR LLOYD:   That is the result of 501(3A) – that is so.

EDELMAN J:   Does that not mean that the purpose is protective rather than punitive?

MR LLOYD:   Well, we would say not.  We say the fact that it picks up on people who are serving criminal sentences and it extends the period of detention until the Minister looks at the issue under 501(3A) just shows that, to the extent that there is a protective element, I accept that in a revocation application a client can say, “I’m not a threat to the Australian community” - they can advance it and if the Minister accepts that, that could provide a basis in a non‑compelling way, in a non‑compulsory way, to revoke the decision.  But it need not and we say that when one has regard to that, the character of the detention is as an extension of the existing detention, which is in the nature of punishment, until the Minister comes to consider any claims made under the revocation power and it should have that character.

NETTLE J:   I am sorry, but why do you say that the punitive purpose of the criminal detention carries over into the immigration detention?  Why is it not that the punitive purpose finishes with the criminal detention and then begins the deportation purpose for the immigration detention?

MR LLOYD:   I did not mean to say and I should withdraw if I did say – I do not say that the criminal purpose, criminal punishment, continues over.  What we say, which is my next point, is that detention is of its nature punitive because it deprives someone of their liberty.  That is not to say that necessarily all detention will ultimately have that character.  But as a default it is punitive.  It is also punitive to the extent that it segregates people from – or can be punitive in the sense that it segregates people from their community.  So not only can they not be free but other people cannot access them and they cannot interact freely with the community.

They are both elements that are of their nature punitive. What we say, which I think is our maybe third proposition, is that the default position when it comes to detention is that the exercise of a power that leads to detention is penal or punitive in nature and one needs a law that can be justified as being for some other appropriate and justified purpose that does not conflict with Chapter III of the Constitution to give it a different character.

KIEFEL CJ:   Is it not put against you that if a law purports to give a Chapter III power it cannot be justified?

MR LLOYD:   I accept that that is put against us.  At one level, that works in my favour because it makes it more absolute than the need for proportionality but, nonetheless, there are instances where detentions have been found to not ultimately to be properly characterised as penal so although it is the default characterisation, we say, and we refer to the cases which we set out in our submissions at paragraph 29 for the notion that it is a default position, it is not to say that every matter will always have that characterisation because one has to look at all the circumstances, but what we ultimately say is one then looks to see in what circumstances the default has been displaced and it has been displaced. 

Perhaps if I can address this point before going back to finish my last proposition - if I put it in two ways, first of all, we say that at common law there was no executive power to deprive a person of liberty.  There is a person, not just citizens, but any person of liberty and in relation to that we rely upon the decision of this Court in M68 257 CLR 42 and draw the Court’s attention, in particular, to the reasons of your Honour Justice Gageler in paragraphs 147 through to 149 to show that there was no common law power to deprive it and that ultimately as shown from the passage extracted from Lim in paragraphs 149 it could be done if “justified by valid statutory provision”.  If the characterisation is the detention was punitive it would not be valid.  If it is not characterised in that way, then it may be valid.

In the same case, in the reasons of your Honour Justice Keane, in paragraph 260, there is a passage there where your Honour refers to an extract from Plaintiff M76, and the decision of Justices Crennan, Bell and Gageler.

KEANE J:   Is it the point that all these cases, including starting with Chu Kheng Lim itself, are all supportive of the proposition that immigration detention for the purpose of ensuring the availability of the unlawful non‑citizen for deportation is a legitimate non‑punitive purpose?

MR LLOYD:   That is so, your Honour.

KEANE J:   And one is not concerned with general notions of protecting the Australian public, one is simply concerned with detention that is justified as ensuring the efficacy of provisions that contemplate deportation.

MR LLOYD:   Or removal.  Yes, your Honour.

KEANE J:   Or removal.

MR LLOYD:   In the passage at paragraph 260 it is said that the only circumstances are the two cited there:

the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation –

presumably they also included “removal” –

or necessary to enable an application for an entry permit to be made –

We say that, at least during the period from the mandatory cancellation through to the revocation, the person is not being held to facilitate removal because there is no proposal that they would be removed or even that they would be eligible for removal at that period of time.  They are being detained while that process is in place.  That process is not an application for an entry permit, which is the next example.

KEANE J:   You do not see that as being functionally the equivalent of the restoration of the right to be here granted by the visa?

MR LLOYD:   No, your Honour, we do not.  If I can take your Honour to Plaintiff M76/2013 (2013) 251 CLR 332, we say that that notion of an entry permit gets forceful description in this case in paragraph 207 in the joint judgment of your Honour and the current Chief Justice:

That being so, immigration detention is readily characterised, not as a mode of punishment for an offence, but as a means evidently capable of serving the purpose of ensuring that an alien who presents uninvited and unheralded at the border with no right to enter Australia does not do so while consideration is given by the Australian government –

Now, we say it is one thing to say people who have never been here and who have no right might be held in detention while they are seeking to get a right, but we are dealing with people who, in my client’s case and in many cases covered by 501(3A), could be absorbed into the Australian community.  They are not in the same position.  They have been lawfully here.  Their visa has been cancelled.

KEANE J:   They have been lawfully here because they have had a visa.

MR LLOYD:   That is so.  They have been lawfully here because they have had a visa, or more than one visa, and their visa has been cancelled by reference to two indicia leading to a revocation process to decide, in effect, what to do after a fuller and complete consideration of that person’s circumstances.  So they are being held in detention, not protective of the Australian community because many of them there will not be justifications for protection, it is just by the default 2 criteria which do not, for reasons I will come to, necessarily impute a protection threat.

So we say it is a different kind of detention to that which has been considered in Lim and referred to in M68, and that detention of a person who has been absorbed into the Australian community and who is kept away from the Australian community while all the circumstances are being considered has a different character to detention of somebody who has never been part of the Australian community and who is applying for the first time to get in. 

GAGELER J:   That means you would have a problem with a cancellation under section 501(3) as well.

MR LLOYD:   No, because under section 501(3) it has been held that the Minister – a matter for consideration for that is whether or not it would serve the protection of the Australian community.  In those circumstances, detention under 501(3) could be seen as being protective rather than punitive and having that character – that character being protective. 

So we say 501(3), detention done pursuant to that after the Minister has decided that it is in the national interest that the person have their visa cancelled in a context where that is said to involve a need to consider protection of the Australian community does sufficiently have a different character to a provision where the protection issue is left to a later time while the person is in detention, whether or not they pose any threat to the Australian community.  So no one has formed even a view at the time of the cancellation under 501(3A) that the person is a threat to the Australian community.

KEANE J:   Mr Lloyd, you seem to be establishing a dichotomy between punitive and protective as if, if it is not protective, it must be punitive.  But when one looks at this section in its context, which includes 501(1), where plainly a decision can be made on the basis of a failure to pass the character test to refuse a visa, not on the basis of necessarily protecting the Australian community from a threat but just making a choice to prefer, given that places for immigrants are finite, to prefer someone who is law‑abiding over someone who is not.  I mean, it is just the choice; that it is not about protecting the community necessarily.  It is just taking a view that in the public interest the public interest is perhaps better served by having immigrants who are law‑abiding rather than immigrants who are not.

MR LLOYD:   The truth is that – your Honour says I am making a dichotomy between punitive and protective.  I did not mean to suggest that protective is the only non‑punitive purpose that might be justifiable. 

It may well be that the notion of removing somebody, making somebody available for removal, is not protective.  That would be so, for example, for somebody who is not in any way criminal but has overstayed a visa, perhaps innocently, nonetheless that they would be able to be brought into detention to facilitate removal. 

That would be an example and that is one of the two examples stated in paragraph 260 of M68 coming from Lim as a purpose.  I do not mean to say that, but what I do say is that the default position when someone is going to be taken into detention is that it is punitive and one looks to see what the justification is. 

Accepting that facilitating removal can be a justification, we say my client was, at least throughout the period of revocation, not being detained to facilitate removal, but that they are being detained while the revocation process is going on.

We say that the default position there is punitive in character.  It does not lose that by reason of the notion that at the end of the day if the revocation decision is unsuccessful then detention at that point would be for the purposes of removal.  At the earlier point it is not for that purpose, nor is it for the purpose of having somebody who is, unheralded and uninvited, seeking permission for the first time.

It is somebody who, as in my client’s case, was part of the Australian community for 61 years and it is no leap to suggest that being detained for that person and separated from the only community that he is a part of is punitive in character.  We say that 501(3A) is apt to lead to that kind of detention which is different to the other kinds and that the exceptions identifying in that paragraph should not be extended to cover this kind of case.

BELL J:   Accepting that it is understandable that a person who has been absorbed into the Australian community and who is in the situation of your client would seek to have the Minister consider revocation of the decision, nonetheless, as a matter of analysis, presumably the person whose visa is cancelled and who then is taken into immigration detention could say to the Minister in writing that he or she does not seek to have revocation considered, in which case his or her detention would extend for no longer, one assumes, until whatever steps were taken to procure removal.

The matter I am raising with you is the functional analogy with the person who applies for the entry permit and whose detention is justified on Lim principles during the period when that person’s application for the permit is under active consideration.

MR LLOYD:   I suppose we would say from the point of the cancellation and using this case as an example, there are four days when the person is in criminal detention.  There are then 24 days after that that the person could seek revocation.  Now, accepting – I accept what your Honour says that he could, in theory, have said just take me and that would have brought the detention to an end but certainly that is not required and the validity or the nature of the detention which is necessarily imposed by the scheme should not be able to be – have a different character by reference to the fact that some person could voluntarily depart the country but they are ‑ ‑ ‑

BELL J:   Why does not that affect its characterisation as punitive or otherwise?

MR LLOYD:   We say that the scheme is one where it is intended to extend the detention while the revocation process is in place and perhaps I should refer the Court to the extrinsic material to the explanatory memorandum which, I think, was in our list and dealing with item 8 which is section 501(3A) and (3B) and, in particular, paragraph 34:

The intention of this amendment is that a decision to cancel a person’s visa is made before the person is released from prison ‑ ‑ ‑

BELL J:   Sorry, what page is this?

MR LLOYD:   Page 8 of the document that I have.

KIEFEL CJ:   Page 8.

MR LLOYD:   It is at paragraph 34.

BELL J:   I see, thank you.

MR LLOYD:   So it is:

to ensure that the non‑citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.

So that the scheme was intended to prolong detention while the revocation process was in place and in that process is the only occasion when even the issue of protection would be considered and we say that the mere fact that it is a possibility, unlike for the other powers under section 501 where it all is done prior to the cancellation, here it is only done later while the person is in detention and that gives it, we say, a different character. 

GAGELER J:   Mr Lloyd, I may have misunderstood, but for the purposes of section 501(3A)(a) a person does not need to be currently in detention, do they – that is currently in prison?

MR LLOYD:   You have to – (a) and (b) and conjunctive, you have to be in prison.

GAGELER J:   I see.

MR LLOYD:   You do not have to be in prison for one of those offences.  You could have had a substantial criminal record in 1975, be in prison for two days for fine defaulting and then the cancellation is mandatory.  So, it is conjunctive but conjunctive in a way whereby the criminal punishment that you are serving is not necessarily the criminal punishment that led to the relevant record.

I think I had not quite finished what was our second proposition, which is the “all the circumstances” proposition, and all I wanted to add to the cases that we have referred to is that we potentially go further than the Minister.  They accept that one should have regard to all the circumstances. 

In our paragraph 24b) and c) – and I should apologise for this - I think we have two paragraphs 24.  Only one of them has a b) and c), however.  It is the paragraph 24 that appears on page 6.  We do not know if it is controversial but to the extent that it is we rely upon the notion that “in all the circumstances” includes having regard to the effect or consequences of the exercise of power helps to colour it.  So I think that is all I wanted to say about that ground.

The next point is the default position point.  I think that I covered that.  The next point is that the default characterisation applies whether the power is directed to citizens or aliens.  All the cases that we referred to, for example, in paragraph 29, are all expressed in that way, and in paragraph 31 we set out references to a number of other authorities which are also expressed in that way, and reject the notion that aliens do not get to equally enjoy freedom from detention, at least non‑enemy aliens.  I am not sure if that is controversial, but I suspect it might be.

KIEFEL CJ:   I thought it was the question of the status of a person as an alien was said to be a highly relevant matter in characterising ‑ ‑ ‑

MR LLOYD:   Yes, well, we do not say – maybe I should make this clear – we do not say that it is irrelevant.  We accept that there are certain instances where detention will be seen as being justifiable for aliens and the two instances noted in Chu Kheng Lim and through those line of cases ‑ ‑ ‑

KIEFEL CJ:   But I think the point – the point made I think is that an alien is by nature vulnerable to laws of this kind.

MR LLOYD:   Well, I suppose our starting point is that there is no common law power for the Executive to do detention of this kind, so it can only be done by laws.  Then the laws have to be valid laws having regard to Chapter III, so they cannot be laws that are properly seen as detention of a punitive nature, and accepting that the two classes described in M76 as the only two classes in which Chapter III is not contravened, we say we do not fall within either of those two classes and those classes should not be expanded to this kind of case.

That then leads back to a point which I had started on which was discussing what are all the circumstances.  I think I had got through to the notion that we say that the exercise of the power will at least often involve an extension of detention.  It was intended to do that, as the extrinsic material shows.  It did it in my client’s case, but it does leave open – at least, we accept that there is a possibility that in other cases the power could be exercised earlier.  I have foreshadowed that already as to exactly what the correct analysis of that is.

We characterise in our submissions in‑chief the idea that if a decision is made – let us say somebody is serving criminal punishment of eight years and, at the end of the first year, a decision is made under 501(3A) to cancel the visa.  We said that that has the consequence of converting the detention into immigration detention.  The Minister took issue with the characterisation as “converting”. 

It does, however – I mean, it is not entirely clear how the scheme works.  At the very least, upon the cancellation the person in criminal detention is liable to immigration detention.  They could be detained at any time the Minister sought to detain them and there is a duty ‑ ‑ ‑

BELL J:   But are they not being held on the warrant, consequent upon the criminal conviction?

MR LLOYD:   They were being held on the warrant.

BELL J:   What effect does the cancellation of the visa have on the authority of the governor of the institution in which they are being held to hold them?

MR LLOYD:   I do not say that it invalidates that.  Maybe the better way of looking at it is rather the conversion is concurrent detention.  But certainly what could happen is an immigration officer could ask the governor to detain the person on their behalf as well.  They have that power.  “Detention” is defined in a way to include that.  It includes prisons and a governor could hold that person.  In theory, it would seem that an immigration officer has the power to detain the person while the person is in criminal detention. 

Now, I am not suggesting that would be done but at the very least, it could be done.  At least it could be done to the extent that the criminal warrant or the warrant is under State law and not pursuant to Commonwealth conviction.  There might be questions that are different in relation to that where section 109 would have no role to play.

It is not ultimately essential for our purposes other than to say if it works the way that we think the Minister thinks it works – is that the person is liable to be in immigration detention, but that they do not treat the person as being able to be removed then, in practice, the person is either in immigration detention for the extent of their criminal detention as well as in criminal detention.  So it still means that the immigration detention is completely coterminous with actual punishment that is taking place, which we say only adds to rather than subtracts from the characterisation of that kind of detention as being punitive in nature.

NETTLE J:   Is it coterminous because an officer acts under 189 or automatically?

MR LLOYD:   It would be coterminous at least when an officer did act.  So if an officer said to the governor of a prison we have cancelled this person’s visa, he has now lied to the immigration detention.  I do not want to bother going taking him in and bringing him to Villawood.  I want you to hold him and immigration detention extends to your prison, will you hold him on my behalf and detention includes someone being held on behalf of an officer, if the governor says yes to that, then the person would then be in immigration detention as well as in criminal detention.

NETTLE J:   But if the officer does not move under 189, then there is no automatic conversion into coterminous detention?

MR LLOYD:   That might be so, but the Act has to be construed ‑ ‑ ‑

NETTLE J:   No, it is a question, it is not an assertion.

MR LLOYD:   All I want to say is the Act is premised on the idea that the officer has a duty to do that, and so one should construe and characterise powers by reference to the assumption that duties will be carried out.  It would not seem to be consistent with the Act that an officer would not carry out the duty just because the person was in criminal detention.  There is nothing that says or expressly allows that.

KIEFEL CJ:   Does the reference to coterminous detention explain what you mean in paragraph 10(b) of your outline when you say:

such that the incidents of immigration detention take their contours from criminal detention -

or is it another point?

MR LLOYD:   Yes.  So what we are saying there is if the section 501(3A) power is done early in someone’s sentence then the detention is coterminous with criminal detention and that is what we mean by taking the contours of the criminal detention.  The immigration detention is done at the same place potentially and at the same time as punishment for criminal detention.

Alternatively, it is done at the end of the criminal sentence and then the detention is extended, and we say for the reasons I have already canvassed that that should be seen as punitive in character because it extends a period of detention having regard to the criminal offence that the person was serving beyond the period that the court considered appropriate for that offence.

GAGELER J:   Mr Lloyd, I am just trying to relate that submission to the facts in this case.  According to the chronology, Mr Falzon’s visa was cancelled shortly before he was due for release on parole.  The facts go beyond that.

MR LLOYD:   Do the facts go beyond that?

GAGELER J:   Yes.  Do we know what period we are talking about?

MR LLOYD:   If your Honour wants the dates, on page 23, I think, of the book ‑ ‑ ‑

GORDON J:   Paragraphs 1 and 3.

MR LLOYD:   I thank your Honour.  So the decision – original decision to cancel was made on 10 March, and one sees that earlier in the book on page 10, and he was released or due to be released from criminal custody on 14 March in paragraph 3, and so then after that period he has been at an immigration detention centre, not at prison.

GAGELER J:   This question of what you call coterminous ‑ you could equally call it concurrent detention – bristles with difficulties.  It means that two persons can have custody of the same other person’s body, according to your submission.

MR LLOYD:   Yes.  There is a vehicle for the Minister to avoid that in the Act.  It is not a mandatory vehicle but there are provisions that deal with criminal justice certificates and criminal justice stay visas.  So the Minister could avoid that consequence.  If a State applies for a criminal justice stay certificate then a criminal justice visa could be issued to facilitate the person staying in prison and in those circumstances, because the person would then cease to be an unlawful non‑citizen, they would not be held in detention.

That is all discretionary and it is not clear that that has happened or would happen but we accept that there are very real questions that if there is coterminous detention it is potentially problematic because, for example, under section 256 of the Act, which I do not think either party has given you, that gives people in immigration detention certain rights.  They may be rights that they did not have or do not have by reference to their criminal detention.  So there may be issues, but ‑ ‑ ‑

BELL J:   But they are not issues that are factually raised here because it is accepted that the non‑parole period had expired at the time he was taken into immigration detention at the Yongah Hill facility.

MR LLOYD:   That is so.

KIEFEL CJ:   Nor is it an essential feature of the provision itself, the legislation.  It is just something that you posit as a possible problem, is it not, but unlikely given all of the difficulties which would attend the Minister acting while the person was in criminal detention?

MR LLOYD:   Yes, save for the fact that the Minister is bound.  If the Minister reaches the relevant state of satisfaction, he is bound to cancel the visa.  That leads to officers being bound to bring someone into immigration detention and then everything flows from that.  It is possible that there may be ways under the legislation for the difficulties to be assuaged.

KIEFEL CJ:   Or for it to be construed by reference to other obligations that the Minister has in face of criminal detention imposed by a State and interfering with it.  We are not really in this territory in your client’s case.

MR LLOYD:   No.  I only deal with it because theoretically there are two circumstances in which this power would be exercised.  There is the current circumstance, which is in my client’s case and seems to have been the exact circumstances that the legislature had in mind, which is, toward the end of their criminal detention the automatic or the mandatory cancellation happens and then the detention is continued.  The intention is to have them in detention while revocation is being considered.  That is what happened in this case.  That is clearly what was intended.

KIEFEL CJ:   Yes.

MR LLOYD:   I deal with the other point only to the extent that at least in theory it could be done earlier and I need to – the case is put against me that would immigration detention in that context have the same punitive character as the one that I say it has if it is an extension of the criminal detention.  I say it does because then it would be coterminous with criminal det.  So it is no less punitive in nature, but that is all I seek to get from that.

KIEFEL CJ:   I see, thank you.

MR LLOYD:   I think then I am up to maybe about paragraph 11 on the outline.  So, looking at the features of 501(3A) - and here these are matters which do not go to the detention itself, these are matters which we say are other indicia that might make – that give the power under 501(3A) something of a conclusive nature.  It is obviously not as conclusive as a court order but it is a fairly high level conclusiveness. 

So first is that there is no merits review.  The second is the provisions that I have taken the Court to already - section 196(4) and (5)(b) which preclude any interlocutory relief so that while the person is in this detention they must be kept in detention even if it is unlawful.  That is what the legislation says.  Even if it is unlawful, even if the cancellation decision is unlawful they have to be kept in detention until a court finally determines that it is unlawful.  So, that gives it a certain conclusive character. 

There is section 503A of the Act which is I think in our original bundle of materials.  That deals with the protected information.  In cases where there is protected information there is a regime which precludes the Minister from providing the protected information to somebody during the revocation stage thereby ‑ ‑ ‑

KIEFEL CJ:   Has this remained - this is the provision that is dealt with by Graham?

MR LLOYD:   In Graham.  So, in Graham the Court held that part of that regime was invalid so that a court could, once judicial review processes had been put in place, obtained that information but the remaining parts of the scheme still mean that the Minister cannot even at the Minister’s choice give the information to my client unless section 503 – well, it is not even then but there is a power under section 503A(3) which allows the Minister to make a declaration to give the information to certain otherwise - to certain persons.  That is the only power that the Minister has.

Although the provision in terms does not preclude the Minister from actually just giving the information, the Federal Court in Vella held that that was the proper construction and this Court refused special leave so I think it is now the proper construction of the provision that the Minister has no discretion to provide that protected information to the person during the revocation stage.

GAGELER J:   Mr Lloyd, these are all features, according to your outline, of cancellation having “a significant degree of conclusiveness”.  What does that mean?

MR LLOYD:   What it is relevant to is in determining whether or not section 501(3A) is in fact vesting judicial power in the Minister.  It is more likely to be so characterised if the power is conclusive in nature.  I do not say at all ‑ ‑ ‑

GAGELER J:   I still do not know what it means.  What do you mean by ‑ ‑ ‑

GORDON J:   Do you mean final?

MR LLOYD:   Indeed.  So when a court makes an order it has a nature of finality and while obviously a decision under 501(3A) does not have that same level of finality, it has, let us say, more than is typically the case in relation to administrative decisions.  So it is therefore more readily seen or characterised as involving judicial power.

KEANE J:   Why is it not just simply that Parliament has been highly prescriptive and stated its prescriptions in very closed terms?

MR LLOYD:   Well, I accept that that is what it is and what I am saying is in a context where it has done that in relation to a power that causes detention with all the other features I have already discussed as detention being as a default characterisation punitive, and we say no reason here to depart from that characterisation, it makes that characterisation and the tightness of it more able to be characterised as the vesting of a judicial power in the person.

If, for example, it was more open to be challenged, say, on an interlocutory basis and whatever, then it might be less susceptible to that characterisation.  So all we are saying is it adds something to the picture.  It is part of all of the circumstances.

To finish this point off I would note that there is no duty to make a revocation decision within any timeframe, at least not a specific timeframe, so that allows for an extended nature and difficulties in challenging.  Where the cancellation is revoked the detention clause is deemed to be valid.  I have taken the Court already to that provision.  The cancellation decision is not rendered invalid if either of the offences, the subject of the criminal record, or the offence that justified the imprisonment are set aside. 

So, if the Minister makes one of these mandatory decisions and then the next day the Court of Appeal sets aside the conviction it is still a valid cancellation decision and if the revocation decision has been made, it is then a decision that is even more final, with the Minister’s power being functus at that point.

The next point I would address is in relation to the legal operation.  I think I have probably addressed this already, but we say that 501(3A) results in detention by reason of section 189 and we note that that causal link is a link that the Act itself recognises in section 196(4) and we say all of that is part of the circumstances that need to be considered.

The next issue I would address is that it should not be concluded to pursue a non‑punitive purpose.  What we rely upon here is we say that the provision imposes a duty to exercise the power just when those two criteria are satisfied.  There is no discretion involved in the exercise of the power.  The Minister, in their submissions, says that there is no material difference between a duty and a discretion from a constitutional analysis point of view.  We say that that is, with respect, wrong.  If there is a discretion, the discretion can readily be read as subject to the need, for example, to look at constraints, so it might be quite possible, if there was a discretion, to imply that the need for protection of the community was it was a mandatory relevant consideration.  However, that is not possible when there is a duty which excludes any other criteria.

Here the Minister is neither obliged nor permitted to consider protection of the Australian community.  We say that is a reason for thinking that it is not a character of that decision‑making process.  The Minister has effectively a choice between exercising a power which is conditioned on protection of the community, section 501(2), and a power which is not, 501(3A).  So that again suggests that it is a power designed to extend detention and not simply about protection of the community.

Other features we say which shows that it is not directed to protection of the community are that the substantial criminal record can be old.  There is no limit to the age or whether it is stale or anything of that kind.  The person could be serving a short sentence.  I will give an example:  fine defaulting.  It could be not associated with any threat to the community, completely unconnected to the past criminal record.  The current sentence of imprisonment might have been set aside on appeal.  The current sentence of imprisonment might reflect a concern for general deterrence or objective seriousness of the offence and no element of specific deterrence. 

All of those features, which could typically arise – there is no allowance for any of that, which suggests that the decision‑making power in 501(3A), putting aside what can be raised in the revocation, is not about protecting the community.  It is obviously not a jurisdictional fact that the person poses a risk or that the Minister forms a view about that.  The provision operates and the person must be detained even if the Minister was satisfied that the person has been fully rehabilitated.  The detention caused by 501(3A) could well exceed the period of the sentence that allowed the power to be exercised.  It is no aspect of the scheme that the person must ever be assessed in relation to whether they are a threat to the community.

Likewise, there is no obligation on the Minister to revoke the cancellation if satisfied that he is not a threat to the community, so that is not an express requirement under the revocation provisions.  So we say all of those features work together to reveal that 501(3A) cannot be justified on a notion that it is not punitive because it serves a protective purpose.

I think it is put against us that the purpose is the purpose of segregating persons from the community.  Now, to the extent that that is said to be protective, then everything I have said answers that.  To the extent that it is just another purpose which is somehow said to be justified, we say that all detention segregates people from the broader community and that is actually one of the very things that makes it punitive in character.  It is not a non‑punitive justification for detention.

So, having regard to that, we say that the fault characterisation of this power is that it is punitive in nature is not a sufficient valid non‑punitive justification for the power.  It extends detention, we say, unlawfully and contrary to Chapter III.  It is a form of executive detention that is not justified.  The appropriate orders are the orders we seek.  We do not apprehend that the Minister takes issue with the orders we seek if the Court were to accept our argument that section 501(3A) were invalid.  May it please the Court, they are our submissions.

KIEFEL CJ:   Thank you, Mr Lloyd.  Yes, Ms Mitchelmore.

MS MITCHELMORE:   May it please the Court.  The Court should have a copy of an oral outline filed on behalf of the defendant and the Commonwealth Attorney‑General.  The provision in issue in these proceedings is section 501(3A) of the Migration Act which requires the Minister to cancel a non‑citizen’s visa if the Minister is satisfied that the non‑citizen does not pass the character test because of the operation of specified parts of section 501(6) and is serving a full‑time custodial sentence.

There is a long history, in my submission, of the legislative conferral on the Executive of the power to cancel visas, including on the prescribed basis of the conviction and punishment of a non‑citizen for criminal offences.  Although such a power operates on the basis of a prior judicial judgment and punishment of criminal guilt, the exercise of the power does not involve the exercise of judicial power, and the purpose of the power is not punitive.

Once exercised, the visa cancellation renders a non‑citizen unlawful and liable to removal and detention pending removal, or for the purposes of considering visa status, may obtain. But again, in my submission, detention for those purposes is not unlawful and it does not cloak the exercise of the power in section 501(3A) with a punitive purpose, such as may bring it into conflict with Chapter III of the Constitution.

I wanted to first address some aspects of the legislative scheme.  Turning first to section 4 of the Act which is, obviously, the Act’s objects and the provision with which the Court is well familiar, but can I emphasise that subsection (1) provides the object of the Act, the overriding object is:

to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.

Subsection (4) provides that:

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

Sections 13 to 15 of the Act then deal with the various status of non‑citizens and I note section 15 of the Act provides that to avoid doubt:

if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non‑citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.

So, just emphasising the change in status upon visa cancellation from a lawful non‑citizen to an unlawful non‑citizen.  If I can come then to section 501 of the Act, it deals with refusals or cancellation of visas on character grounds.  The character test in subsection (6) or when a person does not pass the character test is common to each of the provisions of section 501 which empower the Minister to refuse to grant a person a visa or to cancel a visa.

Subsection (6) defines when a person does not pass the character test.  A number of the paragraphs in that subsection, including those with which the Court is here concerned, are formulated by reference to the exercise of judicial power.  So, for example, paragraph (a):

the person has a substantial criminal record (as defined by subsection (7)) ‑

and the relevant paragraphs of subsection (7) for the purposes of section 501(3A) are subsection (7):

(a)       the person has been sentenced to death; or

(b)       the person has been sentenced to imprisonment for life; or

(c)the person has been sentenced to a term of imprisonment of 12 months or more –

So they are the three parts of subsection (7) and substantial criminal record which apply for the purposes of subsection (3A) of the Act and they indicate, in my submission, a high level of judicial assessment of the seriousness of the offending that is concerned.  I think my friend mentioned also perhaps being sentenced to imprisonment for two or more terms which equate to 12 months.  That is subsection (7)(d) which does not apply in relation to subsection (3A) of the Act.

I should also note subsection (6)(e) which is the other basis on which the Minister might be satisfied that the person does not pass the character test for the purposes of section (3A).  That is where:

a court in Australia or a foreign country has:

(i)       convicted the person of one or more sexually based offences involving a child; or

(ii)      found the person guilty of such an offence, or found a charge against the person proved for such an offence –

or found the charge against the person proved for such an offence:

even if the person was discharged without conviction –

So, again, in my submission, there is a concern on the part of the legislature with a particular type of offending which it has considered perhaps to be of a serious nature.  By the test, if one looks at subsection (3A) the Parliament is marking out for consideration for cancellation in that instance persons with particular characteristics which are indicative of antisocial behaviour such that it is in the public interest to cancel the visa and to remove.

There are of course, in relation to subsections (1) to (3), other parts of the character test that the Minister might consider in deciding whether to refuse or to cancel.  Subsections (1) to (3) confer discretionary powers on the Minister to refuse a visa or to cancel a visa.  The discretion in subsection (1) is enlivened “if the person does not satisfy the Minister that the person passes the character test”.  The discretion in subsection (2) is enlivened if:

(a)the Minister reasonably suspects that the person does not pass the character test; and

(b)the person does not satisfy the Minister that the person passes the character test.

So there is no need for positive satisfaction on the part of the Minister that the person does not pass the character test if, for example, the person does not make any submissions to the Minister in response to an opportunity to accord natural justice, the person has not satisfied the Minister that the person passes the character test and it would be sufficient in those circumstances for the Minister to cancel on the basis of the reasonable suspicion.

Subsection (3) also confers a discretion to refuse or to cancel, to which natural justice does not apply, which is again enlivened on a reasonable suspicion that a person does not pass the character test but also satisfaction on the part of the Minister that refusal or cancellation is in the national interest.  As with subsection (3A) there is no notice required to be given to a person in advance, but there is then an opportunity after cancellation or refusal to make representations to the Minister.

There is, in my submission, no difference between subsection (3A) and subsections (1), (2) and (3) in terms of a required connection with a prior judicial determination as to the commission of an offence and punishment therefore, noting that for the purposes of subsection (3A) not passing the character test is limited to the definition of “substantial criminal record” as defined in subsection(7)(8)(c) and subsection (6)(e).

There is a difference between the provisions in that the obligation to cancel a person’s visa under section 501(3A) is treated not on the basis of reasonable suspicion of the Minister that the person does not pass the character test but rather the positive satisfaction on the part of the Minister that the person does not pass the test, together with the fact of the person in question serving a sentence of imprisonment on a full‑time basis in a custodial institution for an offence against a law of the Commonwealth, the State or Territory.  If those conditions are satisfied, then the Minister must cancel.  There is, the Commonwealth accepts and the Minister accepts, a duty to cancel in those circumstances.

KIEFEL CJ:   When does the duty arise, referring of course to the conversation about whether or not there can be a coterminous or concurrent detention?

MS MITCHELMORE:   Your Honour, in order for the duty to arise, there would at least need to be knowledge on the part of the Minister that there is a person serving a full‑time sentence of imprisonment at any given time who also does not pass the character test for the purposes of paragraphs (a) to (c) of subsection (7) - all of subsection (6)(e). So there would need, in my submission, to at least be knowledge and it would only be at that point that the duty would call for exercise.

GAGELER J:    Does the Minister have any duty to consider 501(3A)?

MS MITCHELMORE:   In my submission, no.  The provision operates in mandatory terms so as to require the cancellation if those conditions are met.

GAGELER J:   The Department may well have knowledge that somebody is in prison and has a criminal record that would satisfy paragraph (a).  If the Department does not put the information to the Minister in a way that allows the Minister to be satisfied, is there any problem?

MS MITCHELMORE:   I think what your Honour is putting to me is in terms of their ‑ ‑ ‑

GAGELER J:   What I am putting to you is in practical terms and, on one view, can form a plea with the legislation how this would work would be at the end of the sentence, a day or two before the end of the sentence, the Minister would be provided with a brief which would allow the Minister to form the state of satisfaction and until that state of satisfaction is actually formed by the Minister, there is no duty on the part of the Minister to cancel the visa.

MS MITCHELMORE:   Yes.

GAGELER J:   I am really putting that as a question.

MS MITCHELMORE:   Yes, but in my submission that would be how the provision would operate.  Of course, if the Minister is aware – there might be arguments about constructive knowledge perhaps – but if the Minister is aware in advance of matters which could give rise to the state of satisfaction in advance of parole arising for consideration, that would be a circumstance in which the duty would arise to be exercised within a reasonable time, in my submission.  That would then potentially give rise to the issue of the coterminous or perhaps parallel regimes under the State and the Commonwealth legislation.

Digressing for present purposes – and my friend referred to this – there is a regime in the Migration Act which contemplates that situation and makes provision for the granting of criminal justice certificates by either a State authority or the Commonwealth Attorney‑General, the effect of which is to stay any obligation to remove an unlawful non‑citizen in circumstances where, for example, the visa has been cancelled.  That is for the Court’s reference.  I do not have the provisions to hand up to the Court but it is Subdivision AA of Division 3 of Part 2 of the Act.  Section 153 of the Act provides:

Subject to subsection (2), if:

(a)this Act requires the removal or deportation of a non‑citizen; and

(b)there is no criminal justice stay certificate or criminal justice stay warrant about the non‑citizen;

any other law, or anything done under any other law, of the Commonwealth or a State . . . not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation.

Subsection (2) deals with breaches of orders of various courts, but the mechanism by which that action is stayed is the issuing by the Attorney‑General of the Commonwealth in the case of a Commonwealth offence, or authorised officers in the case of a State offence, are to issue certificates that have the effect of staying the non‑citizen’s removal or deportation.  The criterion on the basis of which that decision is made is that an unlawful non‑citizen is to be or is likely to be removed or deported.  Looking at the Commonwealth offence section, 147:

the Attorney‑General considers that the non‑citizen should remain in Australia temporarily for the purposes of:

. . . 

(iii)the administration of criminal justice in relation to an offence against a law of the Commonwealth –

or State, and:

the Attorney‑General considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non‑citizen for the relevant purposes . . . will meet the cost of keeping the non‑citizen in Australia.

So there is a regime by which both the Commonwealth immigration regime and the State criminal detention regime can operate, but it is certainly not the case that the cancellation of the visa operates to convert the criminal detention into immigration detention or, in my submission, to extend the criminal detention.  That necessarily has to end upon expiry of the warrant of commitment if not before in circumstances where someone is released on parole.

BELL J:   Just to confirm, for practical purposes it might be inferred that the Department regularly becomes aware of aliens who are serving sentences of imprisonment and would have some mechanism to bring the matter to the attention of the Minister in the immediate period before the expiration of the minimum term of the sentence.  So, one would not standardly go down the criminal justice certificate path.  Is that, as a practical matter, how it works?

MS MITCHELMORE:   It may be, your Honour.  I do not have precise instructions.  It would depend on the particular facts, but certainly that is one way that it could potentially operate.

GAGELER J:   It is by no means obvious to me that a criminal justice stay certificate can be granted in respect of a person who is serving a term of imprisonment.  I just do not see that in the language.

MS MITCHELMORE:   I see.

EDELMAN J:   You would also have the question of, if such a stay certificate were granted for a person serving a period of detention, how that would work with sections 189 and 196.

MS MITCHELMORE:   If the stay certificate applies, the effect is certainly to stay the removal of a non‑citizen until such time as the stay certificate is revoked.

EDELMAN J:   But does the detention then become concurrent immigration detention, stayed immigration detention, and detention under a sentence?

MS MITCHELMORE:   It may, your Honour, but for the purposes of the argument that I am meeting today, in my submission, it does not relevantly affect the arguments that my friend was putting in terms of whether or not the criminal detention is extended or converted.

NETTLE J:   I think what he said was that if there is a decision made under 501(3A) early in a sentence such that the prisoner continues thereafter to serve not only the criminal sentence but also be held concurrently in immigration detention, the immigration detention takes its profile or its character from the fact that the man is being held for a criminal offence and is to that extent punitive.  It is not being held for deportation because that is ex hypothesi years down the track, but being held in immigration detention in order that he may serve out the remainder of his sentence.

MS MITCHELMORE:   But in that instance, your Honour, the person is still – if the regimes are operating in parallel, the person is still serving the sentence, and that is a result of an adjudgement of criminal guilt by a court involving the exercise of judicial power.  The argument put against me is that by reason of these matters, section 501(3A) involves the Minister in an exercise of judicial power and, in my submission, that does not follow from the argument that my friend has put.

NETTLE J:   Can it be said in your submission that in the sort of circumstances postulated, namely, a long period of concurrent prison and immigration detention, the immigration detention is for the purposes of deportation, and if not then for that, for what?

MS MITCHELMORE:   Well, if the criminal justice provisions to which I have referred are operating, the person is granted a visa as a result of the provision of a stay certificate.

NETTLE J:   Problem over, yes.

MS MITCHELMORE:   Which means that at that point the person is not unlawful and the issue does not arise, of course, subject to Justice Gageler putting to me that the certificate does not arise in the circumstance where someone is in detention, but I might need to look at that.

GAGELER J:   Yes, and I must say, if you have what is called operational inconsistency within the meaning of section 109 when a Commonwealth authority and a State authority both try to seize the same shipwreck, it would be surprising if there is not operational inconsistency in circumstances where they both assume control over an individual’s liberty.

MS MITCHELMORE:   Yes, it may be.  As I have said, it is for that reason that the Act attempts, at least in my submission, to address that issue, to stay the operation of the immigration removal regime while the person continues to serve their sentence.

GAGELER J:   Well, it depends what you mean by the removal regime.  The question is custody.

MS MITCHELMORE:   Yes.

GAGELER J:   Or detention.

MS MITCHELMORE:   Or custody pending removal, yes, I accept what your Honour says.  But, insofar as an obligation on the part of a prison officer to detain in immigration detention, so far as that arises, I should indicate that, in my submission, that arises at the point of the officer knowing or reasonably suspecting that a person in the migration zone is an unlawful non‑citizen.  So, again, there is a requirement, if one is talking about a State prison officer, for that officer to know or reasonably suspect that the visa – the pre‑existing visa of the non‑citizen has been cancelled in order to trigger any obligation under sections 189 and 196. 

GAGELER J:   It is a little bit troubling though if you have a statutory regime that really depends for its working on people not being told things.

MS MITCHELMORE:   I understand what your Honour is putting to me.  It may not be an issue that needs to be determined for the purposes of this case.  Coming back to section 501(3A), the obligatory nature of the cancellation is not, in my submission, indicative of an intention to punish the non‑citizen in any relevant sense, let alone to additionally punish them for the criminal offending in question.  Rather, it constitutes a legislative judgment that the category of persons marked out by the two features in question are not to remain in Australia in the interests of the object in section 4(1) of the Act.

The criteria by which the cancellation decision is to be made are not punitive in character and the absence of the discretion does not, in my submission, operate to convert the cancellation decision from one that is not punitive into one that is.  If I can then come to section 501(CA), there is, of course, no obligation to have a provision of that nature and if there was no such provision then the issue that my friend raises with this interregnum period as to between cancellation and revocation would not arise. 

But the decision to cancel is by legislation to be accompanied to subsection (3) as soon as practicable after making it, in a way that the Minister considers appropriate, written notice setting out the original decision, particulars of the relevant information and an invitation to the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations.

So, if representations are made, subsection (4) confers a power to revoke the original decision which is treated, as my friend said, as it not having been made.  In other words, it operates to restore the position on the basis that the Minister is satisfied either that the non‑citizen does not fall within the category of persons to which subsection (3A) applies, for example, because they do in fact pass the character test; or the non‑citizen does fall within that category but there is nonetheless another reason why he or she should be permitted to remain, and the reference to “another reason”, in my submission, is broad and would accommodate a consideration of those matters which one might consider would be taken into account under the discretionary pathways in section 501(1), (2) and (3).

GAGELER J:    How do you say that section 196 authorises release from detention in circumstances where the Minister exercises power under section 501(CA)(5)?

MS MITCHELMORE:   In my submission, in circumstances where the original decision is revoked and subsection (5) provides that the original decision is taken not to have been made, in effect, as I submitted, restores the position such that the person is not an unlawful non‑citizen and at that point ‑ ‑ ‑

GAGELER J:   Does it do so retrospectively?

MS MITCHELMORE:   Not so far as the detention is concerned, your Honour.  The provision is made in section 501(CA)(6).  So any detention that occurred is lawful.  For the purposes of characterising the detention it does not retrospectively operate to restore the position of the person but it restores the visa that the person held previously, such that from that point they are a lawful non‑citizen, they are taken always to have been a lawful non‑citizen and there is thus no basis for section 189 to operate.

GAGELER J:   It is already operating.  I am asking about 196.  The person is actually in detention.

MS MITCHELMORE:   Yes.

NETTLE J:   There would be no warrant to keep him there if he is an unlawful non‑citizen.

MS MITCHELMORE:   That is right.  So subsection (1) is premised upon the status of a person as an unlawful non‑citizen detained under section 189.  From the point of restoring they are not, at that point, an unlawful non‑citizen so that the condition in subsection (1) does not continue to operate.

GAGELER J:   And subsection (4) does not apply.  You do not need a court to make that determination.

MS MITCHELMORE:   In my submission, no.  Sections 189 and 196 require unlawful non‑citizens to be detained and kept in immigration detention until they are removed, deported or granted a visa.  The cancellation under subsection (3A) renders a non‑citizen unlawful and liable to immigration detention pending his or her removal.  That is the case with any non‑citizen who has the status of being unlawful and detention is for that purpose.

Detention while the Minister is first awaiting representations regarding revocation and then considering those representations is also, in my submission, not punitive but rather is for the purpose of consideration of visa status.  In either case, the detention is not punitive and the detention does not bear any of the usual purposes of criminal punishment that would attend criminal sentencing processes.

Accordingly, it is my submission that section 501(3A) does not confer a power that can be described as inherently judicial such that it can contravene Chapter III.  It operates by reference to the status of particular non‑citizens deriving from conviction and current imprisonment but then sets up its own normative structure by imposing the consequence that the person’s visa is cancelled to the possibility of revocation.

Satisfaction as to the sentence being of a particular character and the current serving of a sentence of imprisonment for an offence does not involve any determination or punishment of criminal guilt, and I have referred in the outline to the decision or the reasons of Justice Gummow in Fardon v Attorney‑General for Queensland (2004) 233 CLR 474 where his Honour observed at paragraph 74 that – and this related to the continuing detention order regime which hooked onto the fact of a person being a prisoner – that:

the making of a continuing detention order with effect after expiry of the term . . . did not punish him twice, or increase his punishment for the offences of which he had been convicted.  The Act operated by reference to the appellant’s status deriving from that conviction, but then set up its own normative structure.

Then, at paragraph 108:

the factum upon which the attraction of the Act turns is the status of the appellant to an application by the Attorney‑General as a “prisoner” (s 5(6)) who is presently detained in custody upon conviction for an offence of –

particular characters.  As I have noted, subsection (3A) is a provision directly concerning whether a particular category of non‑citizen should be permitted to remain in Australia.  In both its legal and practical operation the section requires the Minister to cancel the visas of non‑citizens and the criteria upon which that requirement operates are, in my submission, bases upon which a sovereign state might reasonably decide to remove non‑citizens offending which has resulted in a particular level of punishment and/or a period of full‑time incarceration.

There are of course numerous statements in the authorities dealing with laws of a similar character to the effect that Parliament can prescribe whatever reasons it thinks fit for allowing aliens to enter or remain, and again I have given a reference to the decision in Koon Wing Lau v Calwell (1949) 80 CLR 533 at pages 558 to 559 in the reasons of Chief Justice Latham with whom Justices McTiernan and Webb agreed. What his Honour the Chief Justice there said was that:

The Commonwealth Parliament may, in my opinion, for the purpose of selecting immigrants to be deported, adopt this or any other circumstance as a criterion as Parliament thinks proper . . . In my opinion there can be no objection to the validity of a provision which makes the prohibition of entry or remaining in Australia of persons who are immigrants dependent upon any condition which Parliament thinks fit to select.

The authorities also recognise that expelling an alien on such a basis does not constitute punishment for an offence and therefore does not involve an exercise of judicial power.  The judgments, for example, in Ex parte Walsh; In re Yates (1925) 37 CLR 36 draw a distinction between punishment for a crime, which is a matter for the judiciary, and deportation as a political precaution that is exercised by the political branches to prevent future conduct that may offend the peace, order or good government of the Commonwealth.

I think I have given the references in my outline.  I do not need to take the Court to the pages, but the relevant references are to the reasons of Chief Justice Knox at page 59, the reasons of Justice Isaacs at 95 to 96, and the reasons of Justice Starke at 132 to 133.  The reasons of the Chief Justice and Justice Isaacs were referred to with approval by Chief Justice Latham in O’Keefe v Calwell (1949) 77 CLR 261 at 278, and repeated by his Honour Chief Justice Latham in Koon Wing Lau v Calwell at page 555.

On the basis of those authorities, the courts have consistently found that the power to cancel a person’s visa, consequent upon a criminal conviction, does not involve punishment for an offence and is therefore not inconsistent with Chapter III of the Constitution. It is true that following cancellation under the subsection a non‑citizen will be liable to a scheme of mandatory detention pending removal for which the Act provides with respect to all unlawful non‑citizens pursuant to sections 189 and 196.

But as I have just said those provisions apply in the same way and for the same purpose as they apply to any other unlawful non‑citizen, and the fact that the extrinsic materials to subsection (3A) indicate Parliament appreciated those consequences does not alter, in my submission, the legal character or the practical effect of the provision itself.

In any event, in my submission, section 501(3A) is not contrary to Chapter III in circumstances where the ultimate purpose of cancellation of the visa is removal from Australia.  That is subject pursuant to section 501(CA) to a process by which the unlawful non‑citizen may be able to convince the Minister that the legislative judgment that Parliament has made should not, in his case, be made and the previous position should be restored either because he or she does, in fact, pass the character test or there is some other reason.  But that does not make any part of the detention of the non‑citizen whose visa has been cancelled pursuant to that subsection punitive. 

KIEFEL CJ:   Would not the same position arise on your submission even if section 501(3A) contained the detention power?  I mean, what I am saying is, is it critical to your argument that it is contained somewhere else? 

MS MITCHELMORE:   No, it is not.

KIEFEL CJ:   It would still be non‑punitive?

MS MITCHELMORE:   That is right, your Honour, yes, that is correct, with respect.  But in any event the period of detention is not, at any stage, for a punitive purpose.  It does not relevantly impugn the purpose that section 501(3A) serves.  The purpose and effect of that subsection is to require cancellation of a visa in order to remove from the Australian community a category of aliens whom the Parliament has determined should not be a part of the community due to their record of criminal offending unless the Minister determines that their visa status should be reinstated by revoking the original decision.

In my submission, it is clearly open to Parliament to form the view that people serving a full‑time custodial sentence, who also have a substantial criminal record, constitute a group that should not be allowed to form part of the Australian community and to legislate accordingly, subject of course to the possibility of revocation.

GAGELER J:   Ms Mitchelmore, you may not be able to point to it immediately, but which is the provision that authorises removal once a person is taken into custody and is in detention under 196.  It must be 198 or ‑ ‑ ‑

MS MITCHELMORE:   It is 198, your Honour, it might be 198, yes.

GAGELER J:   Do you know which bit, it is ‑ ‑ ‑

MS MITCHELMORE:   I will have to check, your Honour, yes.

GAGELER J:   Yes, thanks.

MS MITCHELMORE:   There are a number of bits of that section which I would need to – perhaps if I can take that on notice, your Honour ‑ ‑ ‑

GAGELER J:   Yes, of course.

MS MITCHELMORE:   ‑ ‑ ‑ and give your Honour an answer but, your Honours, in my submission, none of the plaintiff’s arguments as to why the purpose is punitive relevantly operate to infect the exercise of the cancellation power in subsection (3A) with a punitive character and the reliance of my friend on the extrinsic materials does not, in my submission, relevantly alter the proper characterisation of the sentence.  Nor, in my submission, does the absence of any discretion relevantly impact upon the punitive nature or otherwise of the cancellation pursuant to subsection (3A).

As I have submitted, it is no more than a legislative judgment marking out these particular people with these characteristics and there is an opportunity to consider after the event pursuant to the power of revocation, but that does not relevantly render the exercise of the discretion or the absence of an exercise of discretion determinative or even contributing to the characterisation of the subsection as punitive.  Just to answer your Honour Justice Gageler’s question – the relevant part of section 198 is subsection (2B).

GAGELER J:   Section (2B).

MS MITCHELMORE:   Yes, of section 198.

GAGELER J:   I am not sure my version has a (2B).

NETTLE J:   Neither has mine.  I think in this version it is in (2).

MS MITCHELMORE:   I see.  I am told by my friend, Mr Lloyd, that this subsection was not there at the time of the enactment of section 501(3A).  I would need to check.  But it would seem that there would need to be a provision of that nature, certainly by the time of cancellation of the plaintiff’s visa, that that provision ‑ ‑ ‑

KIEFEL CJ:   Perhaps you could do that over the luncheon adjournment.

MS MITCHELMORE:   Certainly.  If the Court pleases.

KIEFEL CJ:   The Court will adjourn until 2.15 pm.

AT 12.40 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Ms Mitchelmore.

MS MITCHELMORE:   Your Honours, just two points of clarification before I sit down, but the first was your Honour Justice Gageler asked a question as to when removal of unlawful – removal from Australia would be triggered in this case.  I referred the Court to subsection (2B) which was enacted or inserted into the Act pursuant to the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017. So it commenced on 23 February 2017, which explains why it is not in the version before the Court.

Prior to that time, the part of section 198 that would apply would depend upon the circumstances of the particular non‑citizen whose visa has been cancelled.  So, for example, in this case, absent (2B), subsection (5) of section 198 would appear, in my submission, to be applicable where:

An officer must removal as soon as reasonably practicable an unlawful non‑citizen if the non‑citizen:

(a)       is a detainee; and

(b)neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;

regardless of whether the non‑citizen has made a valid application for a bridging visa.

On the other hand, if, for example, a non‑citizen whose visa has been cancelled on character grounds makes an application for a protection visa, which is a visa for which such persons can make an application, subsection (6) may apply, which is where the person has made a valid application for a substantive visa and:

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

(ii)the visa cannot be granted; and

(d)the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone. 

So it will depend upon the particular circumstances of the non‑citizen in question as to which part of section 198 is engaged.

GAGELER J:   So your submission is that at the time Mr Falzon was taken into custody it was section 198(5) that set the limit of detention?

MS MITCHELMORE:   Yes, that is right.

GORDON J:   Can I ask you about item 22 or section 22 of that amendment Act which seems to suggest that 198(2)(b) had some retrospective effect.  Does that impact on it at all?

MS MITCHELMORE:   I have not considered item 22, your Honour, I may need to do so.

GORDON J:   Or section 22 of that amendment Act.  The Act that inserted (2)(b) would seem to suggest that it is inserted by item 11 and applies in relation to a decision made before or after commencement of this item.

MS MITCHELMORE:   So that may have operative effect in relation to the plaintiff, yes, your Honours.  Yes, that would be right.  The other point of ‑ ‑ ‑

NETTLE J:   Before you go from that, (2A)(c) has nothing to do with it, then?

MS MITCHELMORE:   No, your Honour.

NETTLE J:   Nothing.  Where it relates to the invitation of submissions under 501C, 501C relates to ‑ ‑ ‑

MS MITCHELMORE:   That relates to the cancellation under section 501(3) as opposed to (3A).  The other point I wish to make about the statutory scheme was coming back to the issue Justice Gageler raised with me as to ‑ ‑ ‑

KIEFEL CJ:   Just before you go on, Ms Mitchelmore, perhaps you could provide the Court with a note about section 198(2)(b) and its operation.

MS MITCHELMORE:   Yes, I can certainly do that, your Honour.  The other question or issue that was raised just in relation to the operation of the criminal justice visa provisions was how the certificate could apply in a case such as the present.  The answer may lie in the definition of “administration of criminal justice,” which is in section 142 of the Act.  That is defined to mean, relevantly, for present purposes:

the punishment by way of imprisonment of a person for the commission of an offence.

So when, taking as an example the Commonwealth criminal justice stay certificate, the Attorney‑General considers the non‑citizen should remain in Australia temporarily for the purposes of looking at (iii) of paragraph (b) of section 147(1):

the administration of criminal justice in relation to an offence against a law of the Commonwealth –

would include the punishment, so the service of the sentence by way of imprisonment of a person for the commission of an offence.  Then it is the granting of the criminal justice stay certificate that triggers the criterion for the criminal justice stay visa.  It works that way.

GORDON J:   Just so that I am clear, does that mean that for the purposes of having had the stay certificate issued, one goes to 152 and finds that that does not limit the power of detention ‑

MS MITCHELMORE:   Yes.

GORDON J:   ‑ ‑ ‑ so therefore you must, conditioned on a certificate, apply for the visa under Subdivision D?

MS MITCHELMORE:   That is correct, your Honour, yes.

GORDON J:   That is a visa to permit a non‑citizen to remain temporarily in Australia ‑ ‑ ‑

MS MITCHELMORE:   That is right.

GORDON J:   ‑ ‑ ‑ consistent with the criminal justice stay visa?

MS MITCHELMORE:   That is right.

GORDON J:   Subject to the 158 criteria?

MS MITCHELMORE:   Yes.

GORDON J:   So you need both:  you need the certificate and the visa.

MS MITCHELMORE:   And the visa, yes.  Your Honour is correct, with respect.

GAGELER J:   An offence against the law of the Commonwealth is not an offence against the law of a State, I take it?

MS MITCHELMORE:   No.  Separate provision is made in section 148 for a State criminal justice stay certificate.  That is where a State authority can similarly issue a certificate with respect to a State law.  The Commonwealth Attorney‑General issues the certificate in respect of offences against a law of the Commonwealth, and the State authorised official for a State if the authorised official is of the view that:

the non‑citizen should remain . . . temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State –

He then issues the certificate and then it triggers the requirements for the visa.  In the present case where there are offences against the State of Victoria, the Victorian authorities can grant the stay certificate and that then triggers the requirements for the grant of the visa. 

KIEFEL CJ:   I am sorry, Ms Mitchelmore, how did you say that one reads the administration of criminal justice so that ‑ ‑ ‑

MS MITCHELMORE:   It is defined, your Honour, in section 142 of the Act to include, in paragraph ‑ ‑ ‑

KIEFEL CJ:   The punishment by way of imprisonment.

MS MITCHELMORE:   Yes.

KIEFEL CJ:   Thank you.  Would you mind adding to your note the operation of the provisions that you have just referred to?

MS MITCHELMORE:   Certainly, your Honour.

KIEFEL CJ:   And if we could have that within seven days.

MS MITCHELMORE:   Certainly.  If the Court pleases.

KIEFEL CJ:   Thank you.  Yes, Mr Lloyd.

MR LLOYD:   On that topic, can I note that I think it is probably accepted by the Minister that at least in the first instance the detention will be coterminous in the sense that there will be immigration detention and criminal detention at the same time. 

There is this possibility, that the State may issue a criminal justice certificate and then the Minister, under section 159(2), has a discretion ‑ and using this term, “in the Minister’s absolute discretion” ‑ issue a visa.  So it is not like it is other visas where, if you meet the criteria, he is bound to issue a visa.  So the Minister could decide not to issue a visa and then the immigration detention could continue throughout the process.  There is nothing in the Act which ‑ ‑ ‑

KEANE J:   Why would it operate that way?  Why would it not mean that the Commonwealth law prevails and the person in detention is removed?

MR LLOYD:   It could mean that.  So, in the circumstances of somebody convicted of murder who, a week later, faces automatic cancellation, all the mandatory provisions in the Act would suggest that the Minister is bound to cancel the person’s visa.  The officer is bound to take the person into detention and then the officer is bound to remove them as soon as it is reasonably practicable.

Now, there is a question as to whether or not it would be considered to be reasonably practicable.  This Court has suggested that it is not reasonably practicable to remove somebody while they have litigation on foot, for example.  It might be that it is not reasonably practicable to do so while they are serving a sentence and section 109 is not a complete answer.

It is a Commonwealth offence; in section 109 you would have to then undertake a reading of the Migration Act with whatever the Commonwealth provisions are under which somebody is detained and which is the relevant one.  If you came to the view that in relation to a Commonwealth offence it is not reasonably practicable to remove someone, you might say that reasonably practicable would extend also to State offences.

GORDON J:   This scheme provides – the provisions that Ms Mitchelmore has just taken us through, including the ones that are set out in Part 2 of Division 4, include the effect of a criminal justice visa which entitles the person to be released from detention because they are therefore not in immigration detention but in detention consistent with the criminal sentence, that is what 161 provides for – the effect of a criminal justice visa:

A criminal justice stay visa for a non‑citizen:

. . . 

(b)if the non‑citizen is in immigration detention, entitles the non‑citizen to be released from that detention.

It clearly identifies that the detention will not be immigration detention, but detention consistent with their criminal sentence.

MR LLOYD:   Yes, certainly, as soon as somebody has a visa they are not an unlawful non‑citizen, and that would bring the immigration detention to an end, if that works.  But my first point was that the Act does not ensure – if I go back a step and say it has been – questions have been asked as to what is the relevance of this because it is not this case, and I suppose we would say the Court in characterising the power has to have regard not just to the circumstances of this case, but all of the normal circumstances that could arise with the exercise of this kind of power.

If it is exercised early in someone’s sentence, then at least as soon as it is exercised they are liable to immigration detention.  Now, it is true that if the State asks for it through exercising a criminal justice stay certificate and if the Minister in his absolute discretion under section 159(2) issues a criminal justice stay visa, then at that point the immigration detention would stop until the criminal justice stay visa comes to an end, which would in the normal course be in those circumstances when the detention comes to an end.

But, nonetheless, that does not have to happen.  There is nothing in the Act that makes that happen.  There is just a facility for it to happen if the State takes the action it can take and if the Minister decides to take some action but apart from that the scheme is that immigration be coterminous.

GAGELER J:   That is your word.  Do you get any hint of that in any secondary material or is it being considered judicially?  It is just a very strange concept and obviously raises a constitutional issue that has not been ventilated.

MR LLOYD:   No, as far as I am aware there is no case on it.  There are hardly any cases on criminal justice visas or certificates at all.  My knowledge is there is one involving whether or not there is a denial of procedural fairness in cancelling one and it has been held that there is no obligation to accord procedural fairness.  That was a case where the person was being – was staying here as a witness, not as an accused and once the prosecutor decided not to have them as a witness any more the visa was cancelled and they objected to the cancellation and it went away.  But there is not much law in the area in the terms of decided cases. 

EDELMAN J:   If reasonably practicable deportation under 189 and 196 were to include a necessary delay in circumstances such as where a person is in the middle of a period of detention then you would not need section 142’s extended definition of “administration of criminal justice”, would you?

MR LLOYD:   When your Honour says 196, the reference in 196 to deportation is of course to a different thing.  It is not removal under 198.  It is deportation in different circumstances.  But, putting that aside, if the question is if that was understood to allow for a period of kind of abeyance until that became available – now, I think the way section 196 works, perhaps it is worth going back to that – perhaps my answer this morning was not accurate in terms of section 501. 

I had suspected that if the person was granted a visa or restored – or the visa was restored, they would then cease to be an unlawful non‑citizen detained under section 189 and therefore not fall within it.  But, in a sense, that does not make sense of paragraph (c) which expressly mentions if he or she is granted a visa.  If the concept of the person not being detained under 189 as soon as they were not an unlawful non‑citizen was correct then (c) would have no work to do and it clearly does have work to do.

Subsection (1) then needs to be read with subsection (4), which is subject to (a), (b) and (c), but not subject to the restoration of a visa as opposed to the grant of a visa.  In those circumstances, the person whose cancellation is under 501:

the detention is to continue unless a court finally determines [either] that the detention is unlawful, or that the person detained is not an unlawful non‑citizen.

If the person becomes an unlawful non‑citizen by reason of the revocation power, at least on one view, this legislation keeps you in detention until you go to the court.  Now, that is a ridiculous outcome, but that seems to be because section 196 has not been adjusted to deal with revocation cases as opposed to granting of visa cases.

GAGELER J:   So you read the opening words of section 196(1) as referring to the status of the person at the time they were detained under section 189?

MR LLOYD:   That seems to follow from the fact that it does talk about:

he or she is granted a visa.

If it was simply meaning that you ceased to be detained under section 189 if you could not again be detained under section 189, which is what I mooted this morning, then (c) would be irrelevant.  Having said that ‑ I do not want in any way to mislead the Court ‑ there is subsection (2), which is an avoiding of doubt provision, but subsection (4) is not subject to subsection (2).  Subsection (4) seems to say the only circumstances in which somebody whose detention is a result of a 501 cancellation, unless that is not read ambulatorily so as to include 501(3A) when it was inserted, it would apply and so they are the only circumstances in which someone gets out of detention is in subsection (4).

GAGELER J:   Do you have a submission on how it is to be read?

MR LLOYD:   We would say that that only exacerbates the punitive nature of detention, at least in the circumstances of our case.

GAGELER J:   You cannot just say it is a mess and therefore it exacerbates the problem.  You have to explain the pathway of reasoning by which it makes section 501(3A) more like an exercise of judicial power.

MR LLOYD:   What it does is it provides the end point in cases of section 501.  In cases of section 501 where there has been a cancellation – obviously, in many cases under 501 if there is a 501(2) cancellation then the Minister might say, this would result in indefinite detention, I am going to grant you a bridging visa.  That would fall within 196(1)(c) because it would not be a revocation‑type power; it would be a granting of a visa type power.  Absent that, we say the proper construction – the only sensible construction – of 196(4) is that it exhausts the circumstances for the release of somebody who has been detained as a result of the cancellation of section 501.

Now, I accept that that has happened in circumstances probably where this power was not revisited after revocation power was inserted, but nonetheless it says what it says and we say on its face that means that even where there is a favourable revocation, although no doubt no one would take an action against the Minister for releasing them early, they should not be released until the court makes the relevant determination.

NETTLE J:   Why cannot you read the verb “kept” in its natural and ordinary sense of keep?  So if the person is not an unlawful citizen, there is no warrant to keep them within the meaning of 196(1).

EDELMAN J:   Consistent with 196(2).

NETTLE J:   That must  - not must be but seems to be the case if you look at 501C(6), the effect of which is that if the Minister revokes the original decision it is as if it never were.

MR LLOYD:   Well, it says “must be kept until” and until one of four things, one of which is ‑ ‑ ‑

NETTLE J:   The point I am making is he is not an unlawful citizen, therefore you cannot keep him under (1).  He is not an unlawful citizen because the decision which purportedly made him one is as a result of its revocation as if it had never been.

MR LLOYD:   I understand what your Honour says.  That means one would read the expression “detained under section 189”, as it were, as explaining a subcategory of an unlawful non‑citizen rather than simply defining the fact of somebody having been in that position. 

NETTLE J:   Yes.

MR LLOYD:   But if that were the correct view, so that really this is only a power to keep unlawful non‑citizens in detention, then (c) would not be needed because as soon as someone is granted a visa they would not be an unlawful non‑citizen so you would not need (c) at all because ‑ ‑ ‑

NETTLE J:   You might be ex abundante cautela, like so many other provisions in this Act.

MR LLOYD:   Well, I am not sure I can take the matter further than I have.  In my submission, this Court has – or at least members of this Court have indicated that these four sources in 196(1) are the exhaustive ways of getting out of detention and cases have been decided on that and I think M76 is one such case.  Justice Hayne talks about that and its importance or significance of identifying it for identifying the purposes of detention.

Now, if it is to be understood that there are other ways of getting out of detention, that might carry implications for the cases which have worked on the basis that these are the only four ways of getting out of detention.  That is all I want to say about that issue.

At one point my friend was asked about when the duty arose and there was a suggestion that maybe when the Minister became aware of it.  There are two points to note about that.  One is at the very least it would be when the Minister and the delegate became aware of it, or delegates, any section 501 delegate.  So it is not as limited. 

Secondly, we have already made the submission that section 501(3A)(b) is clearly not turning upon the state of satisfaction about something, but about an objective fact, so arguably the duty arises when that objective fact exists rather than when somebody is aware of it or subject to a state of satisfaction about it.  That is all I want to say on that point.  There was some suggestion that really these are very serious offences and that that should be taken into account.

KIEFEL CJ:   Is it possible to read 501(3A)(b) as referring to a point in time at any time during which the person is serving so that there is no obligation to act at the first time when it comes to one’s attention?

MR LLOYD:   In my submission, if the Minister has reached the state of satisfaction in (a) then the duty in (b) arises.

KIEFEL CJ:   Except that in practical terms it would be (b) which gives the signal for the Minister to consider the matter and arrive at a state of satisfaction.  I mean, you could invert them, could you not, because that would be in a practical sense what triggers section 501(3A)?

MR LLOYD:   I think I understand what your Honour is putting to me.  In my submission, it would not always work that way.  For example, the Minister might have somebody who has committed an offence, has time on their hands, only has a reasonable suspicion, and then exercises the power under 501(2) or thinks about exercising the power, says “I reasonably suspect you have a – you do not pass the character test and I am thinking about cancelling you”.  The person then says, “As it turns out you are right, I do not pass the character test because I do have these convictions but I have got all these children here and I am a good bloke and here are all these other good reasons why I should be allowed to stay”.  The Minister says, “Good point, I accept that”.  But then a week later the person goes into detention for a two‑day fine offence. 

Now, notwithstanding that the Minister has already considered and come to the view that the person does not pass a character test and decided in the exercise of discretion not to exercise the power, this provision compels the person to be re‑enlivened, for the cancellation to be made automatically, and for the person then to be detained until the revocation process comes to fruition.  So, at that point it does have these curious results because it does not allow for protective elements or previous ministerial assessments to even be taken into account in whether or not the power is exercised.

GAGELER J:   Mr Lloyd, can the power under section 501(3A) be delegated?

MR LLOYD:   Yes, it is not a personal power.  It was a delegate in this case.  I should say the revocation in this case was by a Minister, but the exercise of the power was by a delegate.

GAGELER J:   Can the revocation power be delegated?

MR LLOYD:   I think so.  There is nothing saying it cannot be, so I think that would mean that it can be.  There was also a submission made that 501(3A) reflects a legislative judgment that the people who fall within it are not to remain in Australia.  We would say, first of all, that is not even a fair characterisation.  One can only get to that view if one ignores that 501CA was enacted at the same time in the whole revocation process.  Certainly the extrinsic material indicates that the purpose of 501(3A) was to keep people in detention while the revocation process is being considered.

It is not just because Parliament thought that those people inevitably have to be removed but only that they should be detained while an assessment is made as to whether or not they – whether the revocation should be made.  That is the first point.  The second point ‑ ‑ ‑

KIEFEL CJ:   That detention would be to facilitate removal in the event that it is not revoked, would it not, that is the purpose of the detention?

MR LLOYD:   With respect, in my submission, that is not the purpose.  It is to facilitate the revocation process and I understand it has been suggested that that is analogous to calling somebody who is applying for a visa for the first time, and I have already said in my submission it is different because you are taking someone out of their existing community and they were lawful and it is different to somebody who arrives unheralded and uninvited but it is not the same as somebody who has been determined to be removed.  Here, they have just been – the visa has been cancelled with a process created to decide whether or not to restore it to them and the detention is to keep them separated while that process takes place.

KIEFEL CJ:   Another view of it is that the decision of cancellation is made at the outset.  They are liable to be removed and the revocation process is added on to that and they maintain ‑ the detention is maintained for the purpose of ultimate removal if that process does not succeed.  It depends how you look at the process, does it not?

MR LLOYD:   Well, I accept that all of it has to be taken into account for the characterisation of section 501(3A).

KIEFEL CJ:   But once a decision is made to cancel a visa, the exposure is to removal.  That is your case.

MR LLOYD:   My case is once the decision to cancel has been made, they are immediately liable to be detained.  They are liable to be detained until they are taken out of detention under one of the ways of taking someone out of detention in section 196.  Removal is only one of those ways.  Being granted a visa is another way and perhaps being restored a visa is yet a further way.  They are all options.

Until you are at a position where the visa has been cancelled and the Minister is, as it were, wanting to remove you, then you are not being held for the purposes of removal.  In the circumstances of somebody who is having the possible revocation or the cancellation decision considered, they are not being considered by the Minister to be removed.  No one is looking at removing them and it would not be lawful, we would say, to remove them in those circumstances.

BELL J:   This depends on your contention that the process of application for revocation of a cancellation decision is relevantly different to the process contemplated in Lim in relation to an applicant for an entry permit or a visa?

MR LLOYD:   Yes, certainly it is premised upon that.  We would put a lot of other things to it apart from that, but we say that in the context of somebody who is part of country and in the context where it only applies to people who are currently experiencing criminal punishment and it amounts to an extension of that detention.

BELL J:   When you talk of the “extension of the criminal punishment”, part of the scheme must take account of section 198(1) which requires the:

officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.

MR LLOYD:   Yes, that is so, but for people who do not want to be removed ‑ ‑ ‑

BELL J:   Yes.

MR LLOYD:   ‑ ‑ ‑ and some of those people presumably will get revocations and all those people are detained presumably if there are revocations, at least in some of the cases, the Minister will be satisfied that they were not threats to the Australian community.  So in all of those cases people have been detained for the revocation process, not for the purposes of removal, and not because they are a threat to the Australian community.  They are just detained ‑ ‑ ‑

KEANE J:   Surely they are detained for the purpose of ensuring their availability for removal if the application for revocation does not succeed; that must be right.

MR LLOYD:   Your Honour, on that view, Chu Khen Lim only needs to have one option which is you do not even need the notion that the purpose of detention while somebody is applying for a visa because ultimately if they do not get the visa they are going to be removed.  So that analysis then

suggests that in every case, because removal is one of multiple options, all detention is for that purpose because that is one of multiple options. 

We say that when there is a scheme that allows for an automatic trigger of a cancellation pending then an assessment of all of the circumstances of the individual and the person to be held in detention while that assessment goes on, that detention is for the purposes – well, we say it is punitive. 

Ultimately, in that regard, we had our argument about one looks at the purpose.  We say that detention is punitive.  In a sense you start with this:  what is the purpose of the Act?  What it does is at least the purpose of the Act.  If detention is punitive, in what circumstances – because the scheme causes detention, it must be punitive.  That would be the nominal position.  We know that there can be circumstances in which it is possible, having regard to all of the circumstances of the legislation, to say that, notwithstanding that the scheme causes a detention which is punitive in its raw nature, there can be a higher purpose which can sufficiently subsume the punitive nature of detention but that the power does not have that character.

One instance of that is if you are about to remove somebody or you want to remove somebody and you hold them until the plane arrives or until arrangements are made for getting them a travel document, or that kind of thing.  We accept that in those circumstances it is kind of an efficiency‑based detention.  It is still punitive in a sense but, looked at as a whole, expecting that the detention would not be that long, it might be able to be characterised as not punitive in nature.  This is not that. 

This, we say, is a detention only directed to a very narrow class of people, people who have already suffered criminal detention, and people who may or may not pose a threat to the Australian community and they are to be detained while that assessment is taking place.  We say that that does not provide any higher purpose that is sufficient to exclude the normal Chapter III principle that only a court should impose periods of detention.  If it please the Court, they are our submissions in reply.

KIEFEL CJ:   Mr Lloyd, you might like to respond to the notes that the Minister is going to provide.  Could I revisit the times and say for the Minister’s notes within five days and then any response five days after that?

MR LLOYD:   Thank you, your Honour.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns until 10.15 am tomorrow.

AT 2.52 PM THE MATTER WAS ADJOURNED