Hassan & Others v Australasian Correctional Services Pty Ltd & Others No. Scciv-02-465

HASSAN AND OTHERS V AUSTRALIAN CORRECTIONAL SERVICES PTY LTD AND OTHERS
[2002] SASC 127
Civil (Ex Tempore)

LANDER J: Prior to 29 March 2002, the plaintiffs in these proceedings were detained at Woomera, pursuant to provisions of the Migration Act 1958 (Cth) (the Act) particularly Part 2, Division 7 of that Act. It is alleged that on 29 March 2002, the plaintiffs escaped from the detention centre at Woomera. They were subsequently apprehended by the authorities and with the exception of two of the plaintiffs, were brought to Adelaide where they arrived at 5 am on 31 March 2002. The other two plaintiffs were taken to Port Augusta where they were incarcerated in the police cells.
I shall refer to the plaintiffs collectively without further reference to the Port Augusta detainees, whose separate history is irrelevant for the purpose of a determination of these proceedings.
The plaintiffs remained in the city watch-house at Adelaide until they were brought before the Magistrates Court at 11.30 on 2 April 2002 where they faced the court charged with escaping from the detention centre. At that time, each of the plaintiffs made an application to the Magistrate to be released on bail. Each of them was granted bail, and each of them entered into a bail agreement to attend before the Magistrates Court on 31 May 2002 to answer their respective charges. Each of the plaintiffs signed their bail agreement by 5:00pm on 2 April 2002.
Notwithstanding that they had been granted bail, all of the plaintiffs were returned to the watch-house. They remained in the watch-house under the control of the South Australian Police until sometime between 2:00pm and 3:00pm on 3 April 2002. At that time, officers employed by the first respondent arrived at the city watch-house and since that time those persons have had the plaintiffs under their control.
It is not entirely clear from the evidence before me whether the plaintiffs have been under the control, a term which I use in a neutral sense, of both the first respondent and the South Australian Police since 3 April 2002 or only under the control of the first respondent. In the end result, I think nothing much turns on that.
On the evidence before me the plaintiffs, who have been detained pursuant to Division 7 of Part 2 of the Act, are unlawful non-citizens.
The first defendant, Australian Correctional Services Pty Ltd, entered into a contract on 27 February 1998 with the Commonwealth of Australia to provide services to the Commonwealth in relation to detention centres which have been established and maintained by the Commonwealth. The Minister of Immigration has power pursuant to s 273 of the Act to establish and maintain detention centres within the Commonwealth. A detention centre is a centre for the detention of persons whose detention is authorised under the Act: s 273.
The first defendant has contractual obligations with the Commonwealth to provide services to those detention centres under a service contract. As part of its contractual obligations the first defendant must comply with all relevant legislation, policy and procedures and provide all services efficiently and in accordance with industry best practice, and immigration detention standards. It also has a contractual obligation to insure that each of its affiliates complies with all applicable laws.
Furthermore, as part of its General Agreement, the first defendant has undertaken to comply with a Detention Services Contract. That second contract provides that the first defendant will provide services from the start date of the contract for each detention facility. Detention facility has the meaning given to ‘detention centre’ in the Act. The first defendant therefore, has an obligation to provide services for each detention centre from the date of the commencement of that agreement for that facility.
In doing so, the first defendant must provide wide ranging detention services including guarding detainees within detention centres, catering, cleaning, providing health, welfare and education services and providing escort and transport services. There are other contractual obligations imposed upon the first defendant to which I need not refer. The first defendant has a specific obligation to satisfy itself that the detention of any person is authorised by the Act and that every place of detention is an authorised place of detention under the Act.
The plaintiff’s claim that they are presently unlawfully imprisoned in the city watch‑house in South Australia. In these proceedings, issued yesterday, the plaintiffs have sought orders including declarations, orders for judicial review in the nature of prohibition, mandamus and orders for habeas corpus directed to both the first, second and third defendants.
The orders sought are:
1A declaration that the conditions of confinement of the applicants to the cells at the Adelaide city watch-house in South Australia under the control of the Commissioner for Police in South Australia (“the said cells”) constitutes unlawful imprisonment.
2A declaration that the conditions of confinement of the applicants to “the said cells” constitutes unlawful detention under the Act.
3A declaration that the conditions of confinement to the “said cells” constitutes a breach of the contract between Australasian Correctional Services Pty Ltd ACN 050 054 389 (“ACN”) and the Commonwealth of Australia is in breach of the Commonwealth Immigration Detention Standards.
4A declaration that the conditions of confinement of the applicants to the said cells constitutes a breach of the United Nations Standard Minimum Rules for Treatment of Prisoners and the United Nations Basic Principles for the Treatment of Prisoners (“the United Nations Prison Standards”).
5A writ of habeas corpus be directed to the officer in charge of the Adelaide city watch-house of the South Australian Police Department in Adelaide, South Australia requiring that the applicants be released from the “said cells”.
6In the alternative, a writ of habeas corpus be directed to the public officer of the ACN requiring that the applicants be released from the “said cells”.
7An order by way of prohibition be directed to the ACN prohibiting it from exposing the applicants to conditions in the said cells which are in contravention of detention under the Act, in breach of its contract with the Commonwealth, in breach of the Commonwealth Immigration Detention Standards and in breach of “the United Nations Prison Standards”.
8An order by way of prohibition be directed to the ACN to prohibit it from transporting the applicants to an immigration reception and processing centre other than Woomera, as this would constitute contravention of detention under the Act be in breach of its contract with the Commonwealth, be in breach of the Commonwealth Immigration Detention Standards and in breach of “the United Nations Prison Standards”.
9An order by way of mandamus be directed to the ACN directing it to comply with the conditions of detention under the Act, its contract with the Commonwealth, the Commonwealth Immigration Detention Standards and “the United Nations Prison Standards.”
The issues raised by these proceedings are factually difficult and legally complex. This is no criticism of any of the parties, because the matters are urgent, but the papers were provided to me only shortly before I came into court. Affidavits were handed up during the course of arguments and other facts were referred to by all counsel during argument. Consequently, I have not had an opportunity to study the facts in any detail. Furthermore, I have not had the opportunity of reading the Act with the degree of thoroughness that these proceedings and the parties deserve.
All three counsel addressed me on a number of aspects of the law which I have not had an opportunity of researching. Indeed I have not had an opportunity of reading some of the cases to which counsel referred. However, it is necessary that a decision be given in these proceedings immediately for two reasons.
First, because if the plaintiffs are correct. Particularly in relation to the claim for habeas corpus, then they should be released. Secondly, because I have been advised from the bar table by the first defendant that the Minister of Immigration intends, at some time before noon tomorrow, to give a direction as to where the continued detention of these plaintiffs should take place.
In those circumstances I feel obliged to give a decision, even though I feel that I have not had anywhere near adequate opportunity to research the facts or the law. However, I have been greatly assisted by all three counsel who I am sure have done their very best to instruct me on the facts and the law. To a greater extent than usual I need to rely upon the submissions of counsel.
At the outset of this hearing, which I raised with plaintiffs’ counsel, the issue was whether this Court had jurisdiction to make any of the orders sought or whether the orders sought fell within the extensive jurisdiction of the Federal Court. It occurred to me on reading the papers, immediately before coming into court, that this Court lacked jurisdiction and that any jurisdiction to make orders of the kind sought, particularly habeas corpus and judicial review, lay within the jurisdiction of the Federal Court.
However, counsel for the plaintiff submitted that this Court did have jurisdiction and in particular relied upon a decision of the Full Court of Western Australia, Dien v The Manager of the Immigration Detention Centreat Port Hedland (1993) 115 FLR 416. In that case the Full Court determined that a State Supreme Court did have jurisdiction to determine the legality of detention under a law of the Commonwealth and to grant habeas corpus under the Act.
The first defendant on the other hand has submitted that this Court has no jurisdiction to entertain these proceedings. It asserts that a question of the construction of the Act is purely the province of the Federal Court. In particular the first defendant has relied upon Division 2 of Part 8 of the Act, which it claims gives the Federal Court exclusive jurisdiction. Counsel pointed out that those provisions had been passed subsequent to the decision of the Full Court of Western Australia.
In the end result, and somewhat unusually, I will not decide the question of jurisdiction. It is of course always important for a court to determine whether it has jurisdiction before it embarks upon the hearing and any decision. A court should notice jurisdiction even if the parties themselves do not. In this case the matter should be decided without having first deciding the question of jurisdiction because I have simply not had a chance to read the decisions relied upon or to research the matter in any way.
It was argued on behalf of the plaintiffs that their detention was unlawful. In particular it was argued that the first defendant was not complying with its contractual obligations to the Commonwealth and particularly in respect of its obligations under the Detention Services Contract.
It was argued that the plaintiffs were being kept in conditions of squalor. That they were being kept out of any articles which would assist them with their hygiene. That they were not being provided with appropriate clothing. That the conditions in which they were being kept were inappropriate. That they were suffering injury to their health. That they were being refused interaction with relatives and friends. That they were being inappropriately fed and that their cultural differences were not being recognised. It was submitted that, as a result, they were being treated in conditions which, to put the matter in the most neutral sense on the plaintiffs’ case, were inappropriate. In those circumstances it was argued the plaintiffs were not being detained in accordance with the strictures of the Act. It follows, it was argued, that the plaintiffs ought to be released and be transported to their previous accommodation at the detention centre at Woomera. In that regard the plaintiff sought a writ of habeas corpus directed to the first defendant and, insofar as is necessary, to the second defendant.
Counsel for the second defendant argued that the order being sought was not really in the nature of a writ of habeas corpus.
A writ of habeas corpus is issued for the purpose of releasing someone from unlawful custody. The orders being sought however, were not the release of the plaintiffs but the transportation from an unsuitable form of custody to another form of custody, which the plaintiffs would maintain was unsuitable but less unsuitable than the one in which they are presently being held.
Putting aside that issue, the question still has to be resolved as to whether or not the plaintiffs are being unlawfully detained. There can be no doubt that their detention in the city watch-house up until the time of granting bail and possibly until the time of the execution of the bail agreement was lawful. So much is agreed by the plaintiffs. The question is whether or not that lawful imprisonment became unlawful after that time.
‘Officer’ is defined in s 5 of the Act as:
“(a)an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph;
or
(b)a person who is an officer for the purpose of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c)a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d)a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e)a member of the police force of an external Territory; or
(f)a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g)any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.”
As can be seen, an officer includes a member of the police force of a state or a person who is authorised in writing by the Minister to be an officer for the purposes of the Act. Clearly those under the command of the second defendant are officers for the purpose of the Act. It was asserted by the first defendant that its employees were persons authorised in writing by the Minister to be officers for the purpose of the Act. No contrary contention was put by the plaintiffs who, of course, were not in a position to argue otherwise.
Section 189 of the Act provides:
“(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
(2)If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a)is seeking to enter the migration zone (other than an excised offshore place); and
(b)would, if in the migration zone, be an unlawful non-citizen; the officer must detain the person.
(4)If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter an excised offshore place; and
(b)would, if in the migration zone, be an unlawful non-citizen; the officer may detain the person.
(5)In subsections (3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.”
It follows that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain that person. There is no argument that the area is a migration zone. It follows that a police officer who knows a person is an unlawful non-citizen must detain that person.
It was argued by the second defendant that all of his officers were obliged to detain each of the plaintiffs after their admission to bail because of the injunction in s 189 of the Act. The same argument was advanced by the first defendant who argued that all of its employees, who were officers, were under an obligation to detain each of the plaintiffs because they knew the plaintiffs to be unlawful non-citizens.
The first defendant and the second defendant therefore argued that at the respective times, to which I have referred, they detained each of the plaintiffs in accordance with their obligations under s 189 of the Act. In my opinion, those arguments are sound. Both the first and second defendants had an obligation to detain. The question then is whether or not the detention which has been imposed by the first defendant and the second defendant remains lawful.
It was submitted by the plaintiffs that the watch-house is contained within the definition of ‘immigration detention’ contained within s 5 of the Act:
“(a) being in the company of, and restrained by:
(i) an officer; or
(ii)in relation to a particular detainee - another person directed by the Secretary to accompany and restrain the detainee; or
(b)being held by, or on behalf of, an officer:
(i)in a detention centre established under this Act; or
(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii)in a police station or watch house; or
(iv)in relation to a non-citizen who is prevented, under section 249, from leaving a vessel - on that vessel; or
(v)in another place approved by the Minister in writing; but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).”
There is no doubt that immigration detention includes a detention centre established under the Act including a prison, a remand centre, a police station and a watch-house.
Consequently, there is no doubt that the particular watch-house comes within the definition of immigration detention. However, in my opinion, that does not make a watch-house a detention centre. Immigration detention is a state not a place.
It was fundamental to the plaintiffs’ argument that the watch-house was a detention centre and therefore a detention facility within the meaning of the Detention Services Contract and hence the first defendant was obliged to carry out all of the contractual obligations imposed upon it by the General Agreement and by the Detention Services Contract.
In my opinion, that does not follow. The watch-house, whilst it is included in the definition of immigration detention, does not thereby become a detention centre or a detention facility.
In my opinion, because the officers of the first defendant are carrying out their responsibilities under s 189 of the Act, those officers are not also required to carry out separate contractual obligations which are imposed upon those officers’ employed under the two agreements to which I have referred.
In my opinion, the detention by the second defendant’s officers and later the first defendant’s officers, of the plaintiffs in the watch‑house did not give rise to any obligations on the part of the first defendant to carry out any of the obligations contained in either of the contracts between the first defendant and the Commonwealth. It follows, therefore, that there is no breach of any contract established on the part of the first defendant with the Commonwealth and therefore the detention by the first defendant of the plaintiffs in the city watch-house was not and is still not unlawful.
Two other arguments need to be mentioned. The plaintiffs’ argument raised the question as to whether or not a lawful detention can become unlawful by reason of the conditions in which a person is imposed. In my opinion, that matter need not be answered.

The matter was considered by the Court of Appeal in New South Wales in Prisoners A to XX Inclusive v State of New South Wales (1995) 38 NSWLR 622. However, I think on a very quick reading of that case it left the matter unanswered. I think the matter can also be left unanswered in this case because I am not satisfied, in any event, that the conditions in which the plaintiffs are kept and detained, at present, are such that it could be said that a previous lawful detention has become unlawful.
The first defendant argued that if I was against the first defendant on all other matters I still could not make an order because of the provisions of s 196(3) of the Act which provides:
“(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted via a visa.”
For the reasons already given I need not decide that point.
In my opinion, for the reasons I have given, the plaintiffs’ claims against all three defendants must be dismissed.
I reserve the question of the first defendant’s costs.

[2002] SASC 127

5 April 2002