Grech, J. v Heffey, J.M

[1991] FCA 737

Re: JUNE GRECH and ANTHONY GRECH
And: JACINTA MARY HEFFEY and THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT
AND ETHNIC AFFAIRS
No. V G279 of 1991
FED No. 737
Administrative Law
(1991) 106 ALR 570
(1991) 34 FCR 93

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Ryan J.(1)

CATCHWORDS

Administration Law - Judicial review - decision of prescribed authority under Migration Act - illegal entrant - detention in custody - duty to inquire whether reasonable grounds for supposing person to be an illegal entrant - discretion to release presumptive illegal entrant - no express or implied power of prescribed authority to incorporate in order for release conditions which would be legally enforceable - whether prescribed authority can take into account in exercise of discretion an undertaking as to future conduct given by presumptive illegal entrant.

Migration Act 1958 (Cth) - ss. 92 and 95

Re Sawarnjit Singh (unreported 18 July, 1984)

Julius v Bishop of Oxford (1880) 5 App Cas 214

Metropolitan Coal Company of Sydney Ltd. v Australian Coal and Shale Employees Federation (1917) 24 CLR 85 and Ward v Williams (1955) 92 CLR 496 referred to.

HEARING

MELBOURNE

#DATE 29:10:1991

Counsel for Applicants: Mr K.H. Bell

Solicitor for Applicants: Juliano Ford and Co.

Counsel for Respondents: Mr R.R.S. Tracey

Solicitor for Respondents: Australian Government Solicitor

ORDER

It is declared that on its proper construction, s.92(4) of the Migration Act confers a discretion on a prescribed authority to order the release of a person from custody notwithstanding that the prescribed authority is satisfied that there are reasonable grounds for supposing such person to be an illegal entrant.

The secondnamed respondent pay the applicant's taxed costs of and incidental to this application.

The application be otherwise dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision of a Stipendiary Magistrate, Ms Jacinta Mary Heffey, made on 18 October 1991 in respect of the applicant who had been arrested as a supposed illegal entrant under s.92(1) of the Migration Act 1958. That sub-section provides:

"(1) An officer may, without warrant, arrest a person whom the officer reasonably supposes to be an illegal entrant."

1. The learned Stipendiary Magistrate made the decision complained of as "prescribed authority" within the meaning of the Migration Act - ss.95(1), (2), (3), (4) and (6) of which relevantly provide:
   "(1) The Minister may appoint as a prescribed authority for the
   

purposes of sections 92 and 93 a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory or a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than 5 years' standing.

(2) The Governor-General may arrange with the Governor-in-Council

of a State for the performance by persons who hold office as Police, Stipendiary or Special Magistrates in that State of the functions of a prescribed authority under sections 92 and 93.

(3) Notice of an arrangement under sub-section (2) shall be

published in the Gazette.

(4) Where an arrangement under sub-section (2) is in force, a

person who holds an office specified in the arrangement is a prescribed authority for the purposes of sections 92 and 93.

(6) A prescribed authority shall make a thorough investigation

of the matter which he or she is required to inquire into, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit."

1. On 18 October 1991, the second respondent applied to her Worship for authorization for the applicant to be detained in custody for a further seven days. That application was made under s.92(4) of the Migration Act which is in these terms:
   

"Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is an illegal entrant and, if the prescribed authority is satisfied that there are such reasonable grounds, he or she may, in writing, authorize the detention of that person in custody, but otherwise the prescribed authority shall order that person to be released."

1. On the hearing of that application, it was submitted on behalf of the present applicant, Ms Grech, that the learned Magistrate had a discretion to release Ms Grech from custody either absolutely or subject to conditions. On the other hand, counsel for the second respondent Minister argued that s.92(4) imported no discretion but obliged the learned Magistrate, once she was satisfied that there were reasonable grounds for supposing Ms Grech to be an illegal entrant, to authorize her detention in custody.

2. According to an affidavit filed in support of the present application:
   

"After hearing all the evidence and submissions her Worship held that she had the power to release the applicant from custody but that, interpreting sub-s 92(4), (9) and (10) together, she did not have the power to release the firstnamed applicant from custody on conditions. She further held that even if she did have the power she would not be minded to release the firstnamed applicant from custody based on the evidence that she heard that day."

1. It is not clear from that summary whether the learned Magistrate upheld the contention advanced on behalf of the Minister or took the view that she had a discretion to release the applicant notwithstanding that there were reasonable grounds for supposing her to be an illegal entrant but that such discretion was not accompanied by a power to impose conditions like a requirement to report at specified intervals to the immigration authorities. At all events, the matter has been argued before me on the basis that I should consider whether, on its proper construction, s.92(4) confers any discretion in the circumstances of this case, and that I should determine the present application by making a declaration in accordance with the construction which I adopt. By that means, it is expected that some guidance will be afforded when the same or another magistrate as a prescribed authority, considers tomorrow whether to extend the period of detention in respect of Ms Grech.

2. Reliance was placed by the learned Magistrate and before me on a judgment of Kaye J. in the Supreme Court of Victoria in Re Sawarnjit Singh (unreported 18 July 1984) where his Honour was called on to consider what was then s.38(3) of the Migration Act (as amended by Act No. 117 of 1979) which provided:
   

"Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a prohibited immigrant and, if the prescribed authority is satisfied that there are such reasonable grounds, he may, by writing under his hand, authorize the detention of that person in custody for such period as the prescribed authority is satisfied is reasonably required in order to enable the Minister to consider whether that person is a prohibited immigrant and whether a deportation order should be made in respect of him, but otherwise the prescribed authority shall order that person to be released."

1. In Singh's Case, the applicant's detention in custody had been authorized for seven days from 29 June 1984 and twice extended for a further seven days on 6 and 13 July 1984. His Honour observed at p 2:
   

"It was submitted by Mr Little, on behalf of the applicant, that the further periods of detention authorised by the Magistrates were outside their powers and therefore void and, in consequence, the further detention of the applicant beyond the first period of the order made on 29 June was illegal. The submission is based upon the language of section 38, (3), (3)(a) and (4) of the Migration Act. In my opinion sub-section (3) of the Act requires a person to be brought before a prescribed authority for the purpose of the prescribed authority making an initial investigation. That investigation is directed to whether there are reasonable grounds for supposing that the person is a prohibited non-citizen. In the event of the prescribed authority being satisfied that there are reasonable grounds for so supposing, he must then authorise the detention of the person for a period to enable the Minister to decide two questions: those question are whether the person is a prohibited non-citizen and whether a deportation order should be made in respect of him.

By sub-section (3)(a) the order which the prescribed authority is required to make under the second limb is limited to a period not exceeding seven days. The purpose of detention for that period is to enable the Minister to decide as a fact or as a question of fact and law whether the person is a non-citizen, and, furthermore, whether a deportation order should be made in respect of him. There are, therefore, two matters for the Minister to consider. The period of time of the detention of the person is to enable the Minister to make those two decisions. They may not be decisions which he is able to make within that limited period. And so it is under sub-s. (4) the prescribed authority is empowered to extend the period of detention.

It was submitted on behalf of the applicant that the period for the detention in the first place cannot exceed seven days, and that sub-s. (4) does not enable the extension of the period to extend beyond seven days from the period of the authorized detention. It was submitted that accordingly the total period for which a person may be detained after an authorization order has been made is limited to seven days. In deciding the question of construction I have taken into account the wording of sub-ss. (3) and (4) before the section was amended by Act No. 117 of 1979. At that time sub-s. (3) provided:

"The prescribed authority may by writing under his hand authorise the detention of that person in custody for such period not exceeding seven days from the date of authorization." The phrase "not exceeding seven days from the date of authorization" was removed by the amendments; and sub-s.(3A) was inserted providing that the period for which detention in custody of a person brought before a prescribed authority may be authorized under sub-s.(3) shall not exceed seven days from the date of authorization or such longer period from the date of the authorization as the person consents to. It is seen, therefore, that the amendment which was effected was by the insertion of the words "or such longer period from the date of authorization as the person consents to". In effect the amendment operates to enable the prescribed authority to fix a period of detention for a period in excess of seven days if the person consented to a longer period. Sub-s.(4) was amended by substituting for the words "the last preceding sub-section" the words "in sub-s. (3)".

In my opinion, the effect of the amendments is not to limit the period of detention of a prohibited non-citizen to a total period of seven days. The effect of it is to enable the prescribed authority to fix in the first instance a period of seven days or with the consent of the person concerned a longer period of time. Furthermore, the amendment does not detract from the authority of the prescribed authority to extend the period of detention beyond seven days."

1. It is clear from that passage that Kaye J. was concerned only with the question of whether a prescribed authority had power to extend a period of detention beyond an initial seven days. It is true that he did suggest that "in the event of the prescribed authority being satisfied that these are reasonable grounds for so supposing the person to be a prohibited non-citizen, he must then authorize the detention of the person for a period to enable the Minister to decide two questions"; (emphasis added). However, I do not understand his Honour to have ruled that the prescribed authority had no discretion to refrain from authorizing any period of detention at all. That question was apparently not argued. I consider that his Honour was concerned only to convey by the word "must", that there were two criteria which the prescribed authority had to take into account in fixing a period of detention assuming an intention to authorize one. In the light of the provisions of s.38(3) as it then stood that conclusion was, with respect, unexceptionable.

2. To uphold the contention of Counsel for the Minister I have to decide that despite the use of the words "he or she may ... authorize the detention" the legislature intended to impose a mandatory requirement to authorize detention once the prescribed authority is satisfied that there are reasonable grounds for supposing that the person is an illegal entrant. The word "may", particularly when used in indicating a function reposed in a public officer is clearly capable of that effect; see e.g. Julius v Bishop of Oxford (1880) 5 App Cas 214. However, Isaacs and Rich JJ. in Metropolitan Coal Company of Sydney Ltd v Australian Coal and Shale Employees' Federation (1917) 24 CLR 85 added, at 96, this footnote to Julius v Bishop of Oxford:
   

"The rule in Julius v Bishop of Oxford 5 App Cas, 214, is not that wherever the word `may' is used in connection with a public office it means `shall.' Nor, if the Legislature confers a right by the same word and states certain conditions, does it necessarily follow that the word imposes a duty on the proper officer, irrespective of all other considerations. The true rule is thus stated by Lindley M.R. in Southwark and Vauxhall Water Co. v Wandsworth District Board of Works (1898) 2 Ch 603, at p 607, speaking of the words `it shall be lawful':- `These words may, no doubt, under certain circumstances impose a duty as well as confer a power, but it is for those who contend that they do both to make good their contention. Nothing can be clearer on this point than the judgment of Lord Cairns in Julius v Bishop of Oxford."

1. To similar effect, the Full High Court observed in Ward v Williams (1955) 92 CLR 496 at 505:
   

"In considering the correctness of this interpretation it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. "The authorities clearly indicate that it lies on those who assert that the word `may' has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning" - per Cussen J.: Re Gleeson (1907) VLR 368, at p 373. "The meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power' - per Lord Selborne: Julius v Bishop of Oxford (1880) LR 5 AC 214, at p 235. One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred is described by Lord Cairns in his speech in the same case. His Lordship spoke of certain cases and said of them (they) appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised'. (1880) LR 5 AC, at p 225."

1. In my view an insurmountable obstacle to the contention that the words "may ... authorize the detention" impose a duty and do not confer a discretion is raised by their use in close proximity in the self-same sub-section to phrases using the imperative "shall". It cannot be doubted that the prescribed authority is under a duty to inquire into the existence of reasonable grounds for supposing the person to be an illegal entrant. Hence sub-s.(4) stipulates that the prescribed authority "shall inquire into the question ...". Likewise if the prescribed authority declines to authorize detention there is no alternative to the release of the person so the sub-section peremptorily concludes "the prescribed authority shall order the person to be released." The use of the word "may" in sub-ss(1) (2) (5) (6) (9) and (10) of s.92 can similarly be contrasted with the use of "shall" in sub-ss (3) and (7), and like contrasts are revealed by s.93.

2. I find nothing in the word "otherwise" which precedes the concluding direction for release in s.92(4) to contradict the construction which I prefer. In my view, that indicates only the negation of the two prerequisites for authorization of detention, namely satisfaction that there are reasonable grounds for supposing the person to be an illegal entrant, and a positive exercise of the discretion to authorize detention. Nor does the undoubted discretion conferred on the Minister or the Secretary by s.92(9) to order release either unconditionally or subject to conditions and the stipulation in sub-s(10) of consequences for breach of a condition so imposed, exclude a discretion in the prescribed authority to order release. It is true that there is no express or implied power in the prescribed authority to incorporate in an order for release, conditions which would be legally enforceable. That is not to say that a prescribed authority may not have regard to an undertaking as to future conduct given by a presumptive illegal entrant. However, that is a matter going to the grounds on which the discretion may be exercised, not to its existence. In the same context it should be noted that when s.38 became s.92 by amendment effected by Act No. 59 of 1989 sub-s(7) was amended to stipulate that the power of the Minister or the Secretary could be exercised either unconditionally or subject to conditions and sub-s(7A) (now s.92(10)) was inserted. Before that the power conferred by what was then sub-s.(7) was not materially different from that conferred on the prescribed authority by sub-s.(3) which was the counterpart of the present s.92(4). It can hardly be thought that the Legislature intended by such an indirect mechanism fundamentally to change the nature of the power conferred on a prescribed authority.

1. I am reinforced in the conclusion to which I have come by the fact that the power conferred by s.92(4) is reposed by s.95 in persons who are or have been judicial officers or legal practitioners of at least five years standing. By application of the approach in Ward v Williams (supra) at 507 that is a consideration of some weight in favour of the conclusion that authorization of detention is not to follow automatically from a finding that reasonable grounds exist for supposing a person to be an illegal entrant.

2. For these reasons, I propose to declare that on its proper construction, s.92(4) of the Migration Act confers a discretion on a prescribed authority to order the release of a person from custody notwithstanding that the prescribed authority is satisfied that there are reasonable grounds for supposing such person to be an illegal entrant. The applicant has succeeded on the sole point on which the proceedings in this Court have turned and she should have her costs of Application VG 279 of 1991. However, because the decision of Ms Heffey is no longer of any operative effect, I decline to make any other order on that application which is otherwise dismissed.