Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M23 of 1992
B e t w e e n -
CHU KHENG LIM, AI HUI TANG,
CHINH PO LIM, YOU RY LIM, VAN
VIA DINH, DALY GOAL, KIM SUA
LIM, MUI HUI TAN, MANT TAING,
VAN CHIN PHU, CHI MENG CHEU,
VAN HAI TROUNG, SOK LEE POUV, CUI UI SUA, LIM KIM CHU, LIM CHI TECK, LIM CHI LENG, LIM CHU
SUOL, TRUONG VAN HOACH, KHAV
CHAN LANGE, LIM KIM MUOI, LIM
SOUL LEANG

First-named Plaintiffs

LY IENG, THOU DALES, THOU
RUTHANAC, OEUM VAN YIV, OEUM
VAN KIM, LY TRAI, LIM CHHEANG,
PHAU HEANG. LIM MAKARA, LIM
WILLIAM VUONG AI LE, HOK KOUN,
KAUV NET, LAO SOKHUN

Second-named Plaintiffs

and

Lirn(2)	7/8/92
MASON CJ BRENNAN J DEANE J DAWSON J
TOOHEY J
GAUDRON J MCHUGH J

THE MINISTER FOR IMMIGRATION,
LOCAL GOVERNMENT AND ETHNIC
AFFAIRS

First-named Defendant

and
THE COMMONWEALTH OF AUSTRALIA

Second-named Defendant

Case stated

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 AUGUST 1992, AT 9.50 AM

(Continued from 6/8/92)

MASON CJ: Yes, Mr Shaw.

MR SHAW:

If the Court pleases, we have overnight had the

opportunity of reading those additional papers
which my learned friend handed up yesterday. In
our submission, most of them are not relevant to
the questions which are subject to consideration,
but something is said in them and said twice which
leads us to retrace our steps a little in what we
said yesterday.
In the second submission called "Defendants' Supplementary Submissions-2" at page 5 in

paragraph 12 at the bottom of the page, the
submission says:
There are rational reasons why Parliament
might have seen fit to distinguish between
certain non-citizens arriving by boat and
those arriving by air. Because of the
controls at Australian airports, and the
controls which airlines are required to carry
out at the point of departure, it is much more
difficult for an airline passenger
surreptitiously to enter Australia undetected
than it is for a person arriving by boat.
There is therefore a need to provide stronger deterrents for unauthorised boat arrivals.

And there is a reference to Hansard:

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"The Government is determined that a clear
signal be sent that migration to Australia may
not be achieved by simply arriving in this
country and expecting to be allowed into the
community ... Australia cannot afford to allow
unauthorised boat arrivals to simply move into
the community. "

And then it goes on:
It appears that the reason that the Act is
limited in operation to certain non-citizens
arriving in Australia between 19 November 1989
and 1 December 1992 is because Parliament
perceived a need to address the pressing
requirements of a current situation. The Act
was intended to operate as an interim measure
pending a comprehensive program of legislative
amendments -

and so on.
Those words, about the pressing requirements of the current situation are repeated in the third
submission on page 3 in paragraph 7 and that is a
reference to the Hansard which is attached to the
defendants' original submissions and at the back
there are some pages from Hansard and at page 2373,
in the first column, the Minister says, the third
line:
The present proposal refers principally to a
detention regime for a specific class of
persons. As such it is designed to address
only the pressing requirements of the current
situation.

It then goes on to acknowledge the need for a wider consideration to be given to the basic issues of
entry and so on.

The legislation was passed in April/May 1992.

By that time, of course, November 1989 was well in
the past and so far as concerns the first
plaintiffs, if one looks at the pressing
requirements of the current situation as at April
1992 one sees that nothing seems to have occurred -
at least nothing is referred to as having happened
between November 1989 when they arrived and April
1992 except that they had made an application for an entry permit; they had been refused that; they
had been refused refugee status. Applications were

made to the Federal Court. When the applications
came on the determinations were set aside by
consent and an application was made for interim
release to the Federal Court and that application
was adjourned.

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What was then pressing, in the current

situation, was the possibility that the court might
not see as necessary the further retention in
custody of these applicants in the way in which the

Minister apparently did. And it may be perfectly
true that so far as these persons were concerned,
the Minister saw the current situation as having a pressing requirement, but the pressing requirement
was what it was feared the court would do and, in
our submission, it is plain that this legislation
was passed in order to interfere in the judicial
process and to regulate the orders which the court
might make in the application which was on foot
under section 16 of the AD(JR) Act or section 23 of
the Federal Court Act. And, as for there being a
pressing necessity, if one looks at the court book
one sees, at page 16 in paragraph 39, a pleading in
the Statement of Claim:
There are approximately twenty-three thousand
applicants for refugee status within Australia
at the present time who are not detained in
custody, and who are of various race, colour,
or national or ethnic origin.

If one goes to page 52 in the defence of the

defendants, one sees that that paragraph is
admitted and if one turns to the outline of the
defendants' submissions and one turns to

attachment A, which commences at the page which
would be 19 if it were numbered, the defendants
have there set out unauthorized boat arrivals in
Australia from November 1989 to June 1992 and one
sees that it commences with the Pender Bay in
November 1989 and continues up until May 1992. The
total of those persons is 350, so one has the
contrast between 23,000 and 350, at the best, for
the defendants, and one sees that in April 1992 the
position was that there had been no arrivals since
December 1991.

So the pressing requirements of the current

situation amounts to a statement that it seemed
expedient to the Minister, in view of what it was
feared that His Honour Mr Justice O'Loughlin might
do in the Federal Court, that the exercise of his
discretion should be interfered with and, in our
submission, that, if it be true, is plainly a
usurpation of the judicial power of the
Commonwealth.
The next thing we would say, by way of

retracing what we said yesterday, is that that part
of the definition of "designated person", which is contained in paragraph (e), which is the bit about the Department giving a designation by giving an
identifier and so on, demonstrates, in our

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submission, that whatever else may be said about
the custody which is imposed by this legislation,
and however lawful it may be, the mildest word one
could apply to it is "arbitrary", and the significance of that, if that be true, in
connection with the covenant, is obvious.
If I might then go back to where we were

yesterday. In section 54L there is a provision
that:
a designated person must be kept in custody.

And we had submitted yesterday that that was really a direction about how whoever was concerned with
the treatment of these people should treat them,
including the Court.
In connection with this, might we draw

attention to the Builders' Labourers case in the
New South Wales courts in relation to the New South
Wales legislation. That is reported in (1986)
7 NSWLR 372. In that case a challenge was made to
the New South Wales legislation on the basis that,
amongst other things, it usurped judicial power and
that the Parliament of New South Wales could not do
that.
The terms of the legislation were different

from the terms of the legislation that was
considered by this Court in relation to the
Commonwealth legislation and the challenge failed
on the basis that the powers of the New South Wales
Parliament were not restricted in the - the terms of the New South Wales legislation are set out in
the judgment of Chief Justice Street at page 377 of
the report. Just below the letter D, the
Chief Justice said:

There is, in my view, a relevant contrast

between the form of the legislation under

consideration in the High Court and the form

of the 1986 Act. Section 3 of the 1986 Act is

in the following terms:
"(l) The registration of the State Union

under the Industrial Arbitration Act 1940
shall, for all purposes, be taken to have been
cancelled on 2 January 1985 by the operation
of, and pursuant to, the Industrial
Arbitration (Special Provisions) Act 1984.
(2) In addition, the action of the

Minister administering the Industrial
Arbitration (Special Provisions) Act 1984 in
giving or purportedly giving, before the
commencement of this Act, a certificate

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referred to in that Act shall (to the extent,
if any, that that action was invalid) be
treated, for all purposes, as having been
valid, and the certificate shall
correspondingly be treated, for all purposes,
as having been validly given from the time it

was given or purportedly given. Subsection (4) is:
(4) Except in so far as the parties to any
such proceedings (being proceedings pending
incidental to the proceedings incurred by a
immediately before the commencement of this
party to the proceedings shall be borne by the
party, and shall not be the subject of any
contrary order of any court.

And His.Honour says:
It is convenient to consider first whether
s 3(1), 3(2) and 3(3) are to be properly
characterised as an interference with the
judicial process itself rather than the
substantive rights at issue in the

proceedings. The 1986 Act, whilst intended no
doubt to be the same in effect as the
Commonwealth Act pronounced upon the High
Court, differed in substance from the
Commonwealth Act. At the time it was passed
there was pending before this Court a dispute
as to whether the registration had been
cancelled on 2 January 1985. Section 3(1)
does not enact that the registration was

cancelled on that day; s 3(1) is a direction
that the registration "shall, for all
purposes, be taken to have been cancelled" on
that day.

Similarly, s 3(2) does not enact that the
Minister's certificate was valid, but rather
that it shall for all purposes be treated as
having been validly given.
The provisions of s 3(1) ands 3(2) appear to me to be cast in terms that amount
to commands to this Court as to the conclusion
that it is to reach in the issues about to be
argued before it. Rather than substantively
validating the cancellation of the
registration and the Ministerial certificate,
Parliament chose to achieve its purpose in terms that can be characterised more
accurately as directive rather than
substantive.

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I am of the view in so doing Parliament infringed the test laid down by the High Court
in the Australian Federation case and that in
consequence the 1986 Act is to be regarded as
an exercise by Parliament of judicial power.
If there were any room for serious doubt

upon the judicial character of s 3(1) and
s 3(2) of the 1986 Act, s 3(4) amounts, in my
view, to a clear interference by Parliament
with the judicial process. Litigation had
been commenced in the Administrative Law
Division of this Court in February 1985 in
which the Federation was the plaintiff -

and he goes on and explains why. But the point we
seek to make from that reference is that the mere
fact that one might by some other legislation have
achieved an outcome which did not differ materially
from the outcome in respect of some particular
plaintiffs or litigants from the outcome which
would be achieved by the provisions under
consideration. And if one had adopted that other course it might be valid, is nothing to the point.
One has to look at what these provisions do, and if
they interfere with the judicial process that is
that, even although one might have achieved
substantially the same results so far as the
particular people are concerned by doing something
else.
In our submission, one has here in section 54L

something which is, as His Honour said in that
case, directive rather than substantive, and it is
nothing to the point, so we would submit, for my
learned friend to say, "Well, the same outcome
might be achieved by legislation which regulates
rights", for it is clear, in our submission, in
view of the terms of section 54S to which we
referred yesterday, that what is being sought to be

by the provisions of the Amendment Act. rights are not otherwise affected than are provided interfered with is the exercise of rights, and that

BRENNAN J:

Mr Shaw, is a person who answers the description

of "designated person" liable to be kept in custody
otherwise than under Division 4B?

MR SHAW:

The answer to that is yes, he might.

I think the

answer is yes, he might, and the plaintiffs were
being kept in custody and what was being sought was
their release pursuant to the powers of the court
in the AD(JR) Act and the Federal Court Act. What
is being submitted here is that one has a regime,
as it were, which is established generally to apply
to the generality of aliens which provides for, in
some circumstances, their being kept in custody,

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but for any decisions about that or in relation to
applications which may be made, to be subject to
review by the courts and to the power of the

courts. ·
In our submission, what the Parliament is

seeking here to do is simply to say, "Well, yes, it
is true that you, the courts, generally have these
powers which might, in these cases, persuade you to
make an order which provides for the release of
these particular people - subject to some
conditions, no doubt, but you might order their
release". What this Act is attempting to do is to
say that the court is not to have that power or
make such an order, and that that is so is made
express in section 54R.

BRENNAN J:

I understand that. What I do not understand at

the moment, because I am not familiar with the Act
sufficiently, is what effect, what substantive
effect, was achieved in relation to persons
answering the description of designated persons by

the enactment of Division 4B? I understand what
you say about the effect upon the pending
litigation but absent that consideration, did
Division 4B affect the substantive rights or
liabilities of persons answering the description of
"designated persons"?

MR SHAW: It affected them, I think, Your Honour, only in

the way that if litigation was on foot, that is to
say if it was already on foot or if it was
thereafter commenced, the orders that could be made
were restricted.

DAWSON J:

What provision are they being held under at the

moment?

MR SHAW:

They are being held under this, but leaving that

out - - -

DAWSON J: Prior to this one, what were they being held

under?

MR SHAW:

Your Honour, there is some question about whether

they are being held pursuant to section 88 or
section 92, and that depends on whether or not they
have entered Australia and that depends on which of
those sections it is; depends on a definition of
entry into Australia which says, in effect, that,
"Although·you are here, if you have been in custody
as defined, all the time, then you are not to be taken to have entered, in the sense of the Act".
But it is either section 88 or section 92.

BRENNAN J: Is it not important for us to understand that,

because as I understand your present argument, what

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you are saying is that this division was directed
to control the exercise of judicial power, as
distinct from affecting substantive rights?

MR SHAW:

Yes.

BRENNAN J: Well now, we need to understand, do we not,

whether it did or did not affect substantive
rights?

MR SHAW:

Yes, but just to confine the question,

Your Honour, for the moment to the first
plaintiffs, for example: in their case, and I know
there are other cases, but in their case it
affected plainly what the court might do, if it is
valid, in the proceedings which were on foot before
Mr Justice O'Loughlin and it affected what the
court might do by affecting what is otherwise a
perfectly general discretion to do what appears
just between the parties, by saying, "In relation
to you,-that perfectly general discretion is not to
be exercised by making an order for your release".
That being, as it were, the background, one can, in our submission, concentrate on those persons as
sufficient examples for the purpose of all the
other people and the question really comes down to,
in our submission, that being the background,
looking at the provisions of the amending Act and
seeing whether it operates in its terms on rights
or on what courts may do.

TOOHEY J: But, Mr Shaw, when you describe or refer to

"rights", in this context what are you referring
to? Are you saying anything more than that the
court, faced with an application under the
Administrative Decision (Judicial Review) Act,
where a person seeks to challenge a decision under
the Migration Act, is empowered to release that
person from custody pending determination of the
application?

MR SHAW:

I am not saying any more than that, Your Honour.

TOOHEY J: Is that a right? If it is a right, it is a right

associated with the application to the court.

MR SHAW:

It is a right in court or something, I do not know

how one would describe it.

TOOHEY J:	It is certainly a power in the court.
MR SHAW:	It is a power of the court and I suppose,

Your Honour, the difficulty is that, as one knows,
right is a very general word and it can describe

all sorts of different things. You can say, in a
perfectly sensible way, "I've got a right to go to
court and ask them to do this", although you have

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no right, as it were, to insist that the court do
this.

DAWSON J: But you have a right to the exercise of a

discretion?

MR SHAW:

You have the right to the exercise of a

discretion, yes, but the way in which this amending
Act seeks to operate is, as it were, it accepts, as
I suppose it had to, the underlying legal structure
and it engrafts on to it these provisions which
relate to this special class and what it does, in
relation to this class, is not alter the provisions
of section 88 or section 92, not alter the
provisions of section 16 of the AD(JR) Act or
section 23 of the Federal Court Act. It does not
seek to do that, directly, but what it seeks to say
is in relation to the particular people who are
covered, "You must be kept in custody.", and then
it is said, "Well, the effect of that is that
although the Federal Court has, pursuant to those
Acts, these perfectly general powers, the exercise
of which we remain entitled to go and seek, when
you get there the court is restricted in relation
to this class in a particular way".

DAWSON J: If it had said, "No applicant for refugee status

shall be released from custody", you would have no
case?

MR SHAW:

Your Honour, I am not sure that that is

necessarily so.

DAWSON J: A much weaker one.

MR SHAW:

We.would have a much weaker one.

When I have got

through taking the Court through the provisions of
the Act and said what additionally we want to say
about that, the point we want to come to and what
seems to be the difference between the way in which

we have sought to put the case on this point and
the way in which my learned friend has, is that my
learned friend seeks to go through a number of
indicators and say, "Well, it's not that and
therefore it's not an interference with judicial

power.". We rather say, "What you've got to do in
each case is look at all the aspects of it and
although it is conceivable that you might have a case in which one of those aspects was present -
and you would say there was not an interference
with judicial power - nevertheless, when you have
the whole one can see that there is an interference
with judicial power and that seems to have been, in
our submission, the way in which the courts have
approached the question.

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MASON CJ:

Mr Shaw, I could understand it if you could bring

this case into the category that consists of
existing antecedent legal rights with a denial of
the court's ·power or jurisdiction to give effect to
them, but at the moment I do not understand you to
be doing that.

MR SHAW:

No, Your Honour, no.

What we are - except in one

sense, Your Honour, the sense that Justice Dawson put to me, what we are saying is the right to the exercise of the discretion which exists under
section 16 and section 23, is interfered with in
the sense that the discretion is limited.

MASON CJ: Yes, but it is a case, is it not, in relation to

which the substantive rights does not exist
antecedently, but comes into existence in
consequence of the exercise of jurisdiction by the
court under the pre-existing legislation.

MR SHAW:	I suppose, Your Honour, it depends on -
MASON CJ:	which way you classify it.
MR SHAW:	Partly on which way you classify it and partly on

what one means by the right comes into existence by
exercise of the jurisdiction. One might equally
well say, before one invokes the jurisdiction, one
has a right to apply for its exercise, and that
jurisdiction is of - the discretion is of a
particular nature and the right to have that whole
discretion exercised has been limited in this
particular way.

TOOHEY J:

Is it right to say that the jurisdiction of the

court is interfered with in any way, as opposed to

~ts powers. The availability of the Administrative
Decisions (Judicial Review) Act remains to these
plaintiffs, does it not?

MR SHAW:

Yes.

TOOHEY J: But within the framework of an application made

under that Act, the court's power which it
otherwise has to release them from custody pending
determination of the application is removed from
the court. So it is not the court's jurisdiction that is interfered with, in a technical sense, it
is the power of the court in the exercise of its

jurisdiction to make an order of this sort. I do
not think·it is just semantics, I think it may be a
matter of some importance.

MR SHAW:

Your Honour, in our submission, it has always been

thought to be a sensible question to ask, "Has the
court jurisdiction to issue an injunction?", for
example, or a question of that kind, and in that

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sense jurisdiction does include what you may do in
consequence of coming there and invoking the
court's powers.

TOOHEY J: But it is right to say, is it not - and I am not

critical, but it is right to say that the
availability of remedies under the (Judicial

suggesting that the answer to this is in any way only in the area of the power of the court to
release them pending determination of an
application that these questions arise?

MR SHAW:

Yes, that is certainly true, Your Honour.

If I

might then go to section 54M, that provides when
custody commences, with a reference there to
paragraph ll(a) and paragraph ll(b), that seems to
mean section ll(a) and ll(b) of the principal Act.
Then, section 54N provides that an officer may
arrest designated persons who are not in custody,
and in subsection (2), provides that that power,
which is conferred by subsection (1), even applies:
to a designated person who was held in a place
described in -

section -
ll(a) or a processing area before commencement
and whose release was ordered by a court.

So there is an express conferring of power despite
what a court might have previously done.
In section 54P there are provisions about

removing designated persons from Australia if they
ask to be removed or if they have not made an entry
application within a specified period or if they
have made an entry application that has been
refused and the proceedings are finalized and so

on. Then there are various provisions which relate
to what might be called dependants.
Then section 54Q limits the period of custody

to a period of 273 days, that is to say
approximately nine months. The Court will see that
subsection (1) provides that the custody provisions
apply to somebody who was in Australia at the time
the Act was passed, in effect, 27 April 1992:
if the person has been in application custody
after commencement -

of the Act -
for a continuous period of, or periods whose
sum is, 273 days.

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Then subsection (2) deals with persons who were not in Australia on 27 April 1992 if they have made an entry application and after the making of the
application, they have been in application custody
for, in effect, nine months.
So that in respect of people who were here at

the time the Act was passed, the same period of
custody is provided after the commencement of the
Act as is provided in respect of people who were
not then here, despite the fact that, as was the
case in relation to the plaintiffs in these
proceedings, applications for entry permits or
refugee status or whatever had previously been made
and despite the fact that decisions had been made
and they had been conceded to be faulty, as appears
from the order that was made by His Honour in the
Federal Court proceedings.
So_ that again, there is a purpose demonstrated

of imposing custody after the commencement of the
Act really in a way which, in respect of the distinction which is drawn between the two classes
of persons, is irrational. It may be said, I
suppose, that like - first of all, nine months is
not all that long, and I suppose in one sense that
is true, but so far as custodial sentences are
concerned, it must, one would have thought, exceed
the average length of custodial sentence in
Australia, so most must be shorter than that.
But quite apart from that, assuming that that

be imposed in order to send the clear message that
the Minister referred to, it may be, I suppose,
that the Minister is treating these persons like
Admiral Bing, whom the Court will recall was shot

to encourage the others. My learned friend says he
was hanged. What I was going to put is not
affected by the way he met his death, but the fact
that he did, since what I was going to submit that

whatever effect it was meant to have in respect of the others, it would be difficult so far as he was
concerned to regard that as anything other than

punishment. No doubt that was his dying thought,
however it was that he died.
It is, in our submission, not to the point to

say, well, this is done for deterrent purposes
since, after all, it is a well recognized element
in the imposition of punishments in this country
that one of the things you take into account is
deterrence and that element in no way, in our
submission, diminishes the quality of this custody.
Application custody is then defined in a way

which seeks to exclude periods during which there

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are court proceedings and such things, and then
section 54R says, in terms:
A court is not to order the release from custody of a designated person.

And, in our submission, that provision is clearly directed to courts, because it says so in terms,
and I think there is no other provision of the Act
to which we need refer.

BRENNAN J:

Mr Shaw, if Division 4B affects the substantive

rights of persons answering the description of
"designated person", is it right to say that the
subjection of a person to Division 4B depends upon
the exercise of a departmental discretion to
allocate an identifier?

MR SHAW:	Yes, Your Honour.
BRENNAN J:	So that at all events in relation to those who

might answer the description of having come into
Australia after the commencement of this Act, their
liability to Division 4B depends upon that
departmental discretion?

MR SHAW:	Yes, Your Honour.
DAWSON J:	So it could only be one person, in theory?

MR SHAW: In theory, yes.

DAWSON J:

And that one person, if he goes to the court,

knows what the result will be.

MR SHAW: Indeed, Your Honour. If I might go briefly to the

authorities I referred to about how one describes
judicial power, the first of the cases is the
Boilermakers case in - - -

DEANE J:

Mr Shaw, how does it affect your argument if one

reads down 54R on the basis that it could not act
as a prohibition to this Court in terms of granting
a constitutional writ or habeas corpus?

MR SHAW: There is an application, Your Honour, to uplift

the Federal Court proceedings to this Court, which
has in fact been -

DEANE J: Needless.to say I was not encouraging that; I was

just asking you a question.

MR SHAW: All I meant to say, Your Honour, by saying that,

was that if the section were read down in that way
it would mean that such proceedings would have to
be dealt with in this Court, if this Court was the
only Court that had the complete panoply of powers.

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DEANE J: What I was in effect putting to you was this:

you reads this strictly, a person apparently
remains a designated person after the 273 days and
R would say a court could not order his release,
but if somebody came to this Court and sought
habeas corpus on the basis that there was no law
justifying his being held in custody, I would doubt
that the Solicitor-General - perhaps I should not
say that - it is at least possible that the
Solicitor-General might say, "Well, 54R obviously
cannot prevent this Court granting habeas corpus".

MR SHAW:

But Your Honour is there contemplating something

after the nine months is up.

DEANE J: Well no, if for any other reason the detention was

unlawful.

MR SHAW: Well, Your Honour, in our submission, if one were

to read the section down in that way, it would
seriously limit the effect of the Act and would
deprive it of the effect it was intended to have.

DEANE J:

I follow that, but the point of my question was if

you read the section down in that way, it takes
away a considerable amount of the force in the
argument that you invalidate the rest of the
provisions by reason of 54R,

MR SHAW: It certainly affects that, Your Honour, yes. If I

might refer first of all to the Boilermakers' case,
94 CLR 254 at 278, in the judgment of
Chief Justice Dixon and Justices McTiernan,
Fullagar and Kitto. In the large paragraph
Their Honours say:
The judicial power, like all other constitutional powers, extends to every authority or capacity which is necessary or

proper to render it effective. The judicial

power of which s 71 speaks is not to be
defined or limited in any narrow or pedantic
manner. With respect to the matters comprised
within ss 76, 77, 78 and 79, it rests with the
Parliament to make laws affecting its content
or exercise. Legislative powers too are
involved in some of the provisions of ss 71,

72, 73 and 74. And it must not be forgotten
thats Sl(xxxix) expressly empowers the
Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the federal judicature. What belongs to the
judicial power or is incidental or ancillary
to it cannot be determined except by
ascertaining if it has a sufficient relation
to the principal or judicial function or

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purpose to which it may be thought to be
accessory.

Then in Davison's case, 90 CLR 353 at 366,
Chief Justice Dixon and Justice McTiernan, in the
paragraph which commences at the bottom of the page
say:
Many attempts have been made to define

judicial power, but it has never been found
possible to frame a definition that is at once
exclusive and exhaustive.

And then in Hu.mby's case, 129 CLR 231 at 249,
Your Honour the Chief Justice at the bottom of
page 249, the paragraph commencing right at the
bottom, says:
It as then argued that sections 5(3) and (4)
constitute a usurpation by the Parliament of the judicial power of the Commonwealth which
is vested by Ch. III in the federal
Judicature. "Usurpation of the judicial
power" is, as the judgment of the Judicial
Committee in Liyanage v The Queen makes plain,
a concept which is not susceptible of precise
and comprehensive definition. In the context
of the Commonwealth Constitution, it must
signify some infringement of the provisions
which Ch. III makes respecting the exercise of
the federal judicial power. What that
infringement is in the instant case, the
argument did not condescend to make clear.

And then, the last reference is Liyanage itself,
(1967) 1 AC 259 at 289. There the Privy Council
said this in the paragraph which commences just
below half-way down the page:

in respect of the Minister's nomination, usurp But do the Acts of 1962, otherwise than
or infringe that power? It goes without
saying that the legislature may legislate, for
the generality of its subjects, by the
creation of crimes and penalties or by
enacting rules relating to evidence. But the
Acts of 1962 had no such general intention.
They were clearly aimed at particular known
individuals who had been named in a White
Paper and were in prison awaiting their fate.
The fact that the learned judges declined to
convict some of the prisoners is not to the
point. That the alterations in the law were
not intended for the generality of the
citizens or designed as any improvement of the
general law is shown by the fact that the
effect of those alterations was to be limited

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to the participants in the January coup and
that, after these had been dealt with by the
judges, the law should revert to its normal
state.
But such a lack of generality in criminal

legislation need not, of itself, involve the
judicial function, and their Lordships are not
prepared to hold that every enactment in this
field which can be described as ad hominem and
ex post facto must inevitably usurp or

infringe the judicial power. Now do they find
it necessary to attempt the almost impossible
task of tracing where the line is to be drawn
between what will and what will not constitute
such an interference. Each case must be
decided in the light of its own facts and
circumstances, including the true purpose of
the legislation, the situation to which it was
directed, the existence (where several
enactments are impugned) of a common design,
and the extent to which the legislation
affects, by way of direction or restriction,
the discretion or judgment of the judiciary in
specific proceedings. It is therefore
necessary to consider more closely the nature of the legislation challenged in this appeal.

And then they go on. Now, in our submission, those
words are applicable here but when one looks at all
the surrounding circumstances, it is clear, in our
submission, that these provisions are directed at,
amongst others, specific persons who include the
plaintiffs. The situation at which the legislation
was directed was that there were proceedings on
foot in which it was feared that the court might
order a release and the legislation, by way of
restriction, affects the discretion of the court in
those specific proceedings.

MASON CJ: Would it matter, Mr Shaw, if the legislation was

directed at rights in specific proceedings but its
effect was to alter antecedent rights?

MR SHAW:

Your Honour, it might not be possible to answer

that question absolutely in that one might have to
look at more circumstances than that. But the
answer is it might be possible to do that validly.
That is not to say it would necessarily be so in
all cases.
But what we point to are the particular
matters which we refer to in our argument at

page 15, in paragraph 25. We point to each of
those aspects of the legislation and what we submit
is that although it might be possible to have
legislation which perhaps had only one of those

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characteristics and be able to say it was not in
particular circumstances in the light of other
circumstance.s, not a usurpation of judicial power,
in these circumstances it is because of the
combination and because of the background against
which the legislation was enacted and the effect it
was plainly intended to have.
That was what we wanted to say by way of

addition to our argument in respect of the first matter we raise. If I might go to the second of
them, which commences in our outline at page 16,
we - - -

MASON CJ: Before you move to that, Mr Shaw, could you

identify for us what is the ambit of the discretion
which the Federal Court had that is affected by the
1992 legislation. In other words, what were the
parameters of that discretion and what was the
legal foundation for it?

MR SHAW: If Your Honour pleases. This is the

Administrative Decisions (Judicial Review) Act,
section 16 confers powers on the court on an
application for an order of review and the power in
question is the power in section 16(l)(d). It
gives the court power to make:
an order directing any of the parties to do,
or to refrain from doing, any act or thing the
doing, or the refraining from the doing, of
which the Court considers necessary to do
justice between the parties.

And section 23 of the Federal Court Act gives the court power:
The Court has power, in relation to matters in
which it has jurisdiction, to make orders of

such kinds, including interlocutory orders,
such kinds, as the Court thinks appropriate.
and to issue, or direct the issue of, writs of

And in the case of Msilanga - and I simply refer to
this as the latest of a considerable line of
cases - 105 ALR 301, it was held by the Full Court
of the Federal Court that the power to grant relief
in the court included power to direct police and
that the power is to be widely construed appears in
Park Oh Ho, 167 CLR 637, at 644.

TOOHEY J: But, Mr Shaw, we are not concerned here with

orders of an interlocutory nature, are we? I ask
you that because something you said earlier rather
suggested that we might be but, in fact, the
application to review the decision of the

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particular officer or the Minister refusing refugee
status was itself set aside, was it not?

MR SHAW:

The order was set aside but the proceedings

TOOHEY J: Well, the decision was set aside - - -

MR SHAW:

I am sorry, the decision was set aside, but the

proceedings are still on foot.

TOOHEY J:	Which proceedings?
MR SHAW:	Those proceedings.

TOOHEY J: Well yes, but what does that mean? Leaving aside

questions of custody, ordinarily the proceedings
would then have come to an end, would they not? In

other words, the matter was remitted to the
appropriate person for reconsideration and that, I
would have thought, would be the end of the
proceedings.

MR SHAW: Well, Your Honour, what happened, in fact, was

that instead of the proceedings being brought to an
end when that order was made on, I think, 15 April,
the proceedings were adjourned in order that this
application could be made.

TOOHEY J: But I take it the adjournment was brought about

solely by reason of the application to be
discharged from custody.

MR SHAW:

Not only, Your Honour.

It was partly

that and

partly that declarations had also been sought that
they were wrongfully held in custody. So there was
still another aspect of the case.

TOOHEY J: Casting a little more widely, the matter stood

over not because of the substantive application
itself which had been dealt with, but because of

ancillary applications to be discharged from
custody.

MR SHAW:

Your Honour, I do not know that the application

for a declaration that the custody was illegal
could be regarded as simply ancillary, but
certainly it was adjourned because it was not seen
to be complete in relation to the custodial matter
for one reason or another.

TOOHEY J:

Could I- just ask you one more question to clarify

the matter: putting aside issues relating to
custody, had the application itself been disposed
of by the court?

MR SHAW:

The answer is yes, Your Honour.

In relation to

the second matter, the argument rests on the

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proposition that it is not possible pursuant to the
foreign affairs power to enact provisions
purportedly giving effect to a treaty but
inconsistent with them. That that is the law is
supported by - and I will not go to the passages -
Burgess, 55 CLR at page 659 to page 660, and the
Tasmanian Dam case, 158 CLR 1 at page 131 to
page 132.

DEANE J: Mr Shaw, can I take you back for a moment. There

are two ways that the type of argument that you
have been putting can be presented. One is to say,
"Look at the operation of this Act, look at what it
empowers. It goes beyond power and is inseverable
in terms of its application to these particular
plaintiffs." The other is saying in so far as this
Act does what it purports to do to these
plaintiffs, it is invalid.
It- seems to me that you have only put the

argument in the second way and you have not put it
in terms of showing us the scope of people to whom
this Act applies, its general application and so

on. Am I correct that that is so?

MR SHAW:	No, Your Honour.
DEANE J:	My question was quite ambiguous.
MR SHAW:	When I said "no", Your Honour, what I meant was -
I did not mean to seem to be saying that rather

than that in fact I had not said it. We did want to
say both things, Your Honour. It lies at the
foundation of the way in which we put the case that
here one has a Migration Act which regulates
matters in relation to what one might call the
generality of aliens.

DEANE J: For example, am I correct that an exempt

non-citizen for the purposes of the Migration Act

can be lawfully in the country without either a
visa or an entry permit?

MR SHAW:

The answer to that is yes, I think, Your Honour.

DEANE J: Then if you were putting the general argument,

would we not need to know, for example, who and
what classes of people are exempt non-citizens in
terms of if what Justice Brennan suggested
yesterday is correct, that if any of them goes out
on a boat· in the territorial sea during this period
they can automatically be put in custody at the

whim of an executive officer. I am not suggesting

what I am putting to you is correct. I am just
trying to understand, if you are putting this case
on the general application of the Act, and an

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argument that it is not severable, what the general
application of the Act is.

MR SHAW:

Your Honour, the Act provides a different regime

for people who arrive by boat and people who arrive
by air and a different regime depending on whether
or not you in fact entered Australia.

DEANE J: The Act being the Migration Act?

MR SHAW:

The Migration Act, yes, Your Honour, and the

relevant provisions are in sections 88, 89 and 92.
It is submitted that one has a whole series of
general provisions in the Migration Act which deal
with migrants generally.

DEANE J: And which apply differently to exempt

non-citizens?

MR SHAW: Exempt-non-citizens, as Your Honour will have

seen, are defined in the definitions section. It
includes diplomats - - -

DEANE J: Well, it includes almost anybody who may be

prescribed or any class of that prescribed.

MR SHAW:

Yes.

DEANE J: Let me not divert you at this stage, but it does

seem to me that if you are putting the case in the
wider way, we do need to know who is caught by
these provisions apart from people in the situation
of your client.

MR SHAW:

Your Honour, that depends on - first of all one

has to be a non-citizen and then you have got to be
in Australia and you have got to have not presented
a visa and not have been granted an entry permit.
Then, Your Honour, if you satisfy that description,

it seems to be open to the Department to give

anybody who satisfies it this identifier. No
doubt, Your Honour, it was not intended, or was not
in the minds of those who enacted or drew the
legislation, that the Department would give an
identifier to somebody who happened to be a non-
citizen but to have sailed, for example, from
Tasmania to Melbourne or to, maybe, Americans who have sailed from the West Coast through the Pacific
Islands and ended up in Australia.

DEANE J: Well, you say that, except the Act very carefully

refrains from saying "has entered Australia by
boat", and makes the provision, "who happens to
have been within a particular part of Australia".

MR SHAW:

Indeed, but all I was really saying was this,

Your Honour: once one satisfies the general

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descriptions there seems to be this discretion
about whether or not you give a designation or not,
and that seems to be perfectly general. And there does not seem to be any way of either reading down
(a) or reading down (b). (a) would seem to apply
if you have been on the boat wherever it was the
boat left from, even if it left from Australia, and
all it says is, "Have you been on a boat in the
territorial sea between these particular dates?"
And there does not seem to be any way in which one
can say, "Well, that only means particular sort of
boats, or boats which have left from a particular
source, maybe Indo-China, or Indonesia, or South
Africa, or wherever it may be."
So one cannot, it would appear, read that

down, and the way in which the operation of the
division seems to be sought to be confined to
whoever it was was in mind seems to be by operation
of (e),-and (e) seems to operate by giving a
discretion to the Department about whether they

will or will not give a designation. Presumably
it would be possible to withdraw a designation.
Whether a designation attaches to one forever like
a taint in the blood, or whether it can be
withdrawn is not altogether clear, but at any rate
whether or not one initially gives it seems to
depend simply on the exercise of a discretion. And
in that way it would seem that the operation of the
Act is intended to be confined in some way, and it does not seem to be possible to say, for example,
that you cannot give a designation to an exempt

non-citizen. It would seem to be that you could.
The consequence is that you have a general

regime relating to aliens, a general regime
relating to administrative decisions, and general
powers conferred on the court by the Federal Court
Act. Then you have this division engrafted on to

And, in our submission, both in relation to the the Act which does not apply generally in any way and is restricted arbitrarily in its operation. first argument we put and in relation to the second
argument we put, the arbitrary operation of the
division in respect of this particular defined
class is of great importance.
What we attempted to put in the second

argument was that, because - I think I just
referred to the Tasmanian Dam case, 158 CLR 1 at
page 131 to 132, in the course of the judgment of page 132, Your Honour says:
The fact that the power may extend to the
subject-matter of the treaty before it is made
or adopted by Australia, because the

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subject-matter has become a matter of
international concern to Australia, does not
mean that Parliament may depart from the
provisions of the treaty after it has been
entered into by Australia and enact
legislation which goes beyond the treaty or is
inconsistent with it.

And that kind of approach is adopted in Richardson
v Forestry Commission, (1988) 164 CLR 261, and the
relevant passages are at pages 289, 303, 311 and
342.
My learned friend in his outline, at page 9 in

paragraph 31, says that we do not say that there
has been a breach of the covenant but, in our

submission, that is not so. We do say there has
been a breach of a covenant and, in particular, we
rely on Article 9 and, in our submission, the way
in which that matter is dealt with in my learned
friend's supplementary submissions which are
numbered 2, is inadequate, because the article in
paragraph 2 of those supplementary submissions -
they are the ones which are numbered 2 - my learned
friend refers to part of Article 9(1), but not the
whole of it. The covenant is set out as a schedule
to the Human Rights and Equal Opportunity
Commission Act. It is the second schedule.

BRENNAN J: What does this argument lead to, Mr Shaw?

MR SHAW: Well, it leads to the submission that the

Migration Amendment Act is ineffective on a
different ground from the usurpation of judicial
power argument.

BRENNAN J:

Why?

MR SHAW:	Because it takes these steps.	It says,
"Well" -

BRENNAN J: Given inconsistency with the treaty - - -
MR SHAW:	Yes.
BRENNAN J:	what is the consequence?

MR SHAW:

What is said is this:

the effect of the Human

Rights Commission Act, is not, it is true, to give effect to the covenant as if every provision of it
were a provision of municipal law and as if each of
those provisions gave rise to rights which were
enforceable as such in the courts. That is true.
But the Act seeks to rely on the foreign affairs power - - -

BRENNAN J:

The Human Rights Commission Act?

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MR SHAW:

Yes, Your Honour, to justify its provisions and

those provisions set up the commission itself and
give rise to rights to make complaints to the
commission, gives rise to powers in the commission
to make investigation, gives rise to powers in the
commission to take steps to conciliate and bring

about settlements and all that sort of thing. So
that it is submitted that in those circumstances

the covenant is given some effect. It may not be
complete effect but nevertheless some effect in
municipal law.
Then it is said that the provisions of the

Migration Amendment Act are inconsistent with the
provisions of Article 9. If one assumes that that
is so, then it would seem that had the Human Rights
Commission Act, when it was originally enacted,
said, "Well, we give this limited effect to the
covenant but with this limitation, that no step is
to be taken in relation to the provisions about
custody which are made for these particular people
in the Migration Amendment Act." Our submission
would be that you could not have brought Article 9
into effect subject to that qualification because
the qualification is, as it were, internally
inconsistent with Article 9.

BRENNAN J:

I understand the argument but I am not sure

where it leads.

MR SHAW:

Then one is faced, it is submitted, with a

dilemma. On what one would have regarded as
ordinary principles of construction, when one has
two Acts of a Parliament which has complete power
to pass each of them, one would ordinarily say,
"Well, the later Act, if it affects the operation
of the earlier Act, is intended to have that effect
and the earlier Act is simply qualified in its
operation to the extent that the second Act
provides."

That, it is true, is the ordinary way in which one would regard a later Act passed which is
inconsistent with an earlier one. But there is
something odd - I do not know whether "odd" is the
right word - unusual in the operation of external
power because when something is enacted pursuant to
it which consists in giving effect to a treaty, the
ways in which the Parliament may do that are
limited and one can only give effect to the
subject-matter of the treaty by enactments which
are consistent with it. It is perfectly true that

you can give effect to part of a treaty. One could
have given effect to some of the articles and not
others of the articles, for example.

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BRENNAN_J: This seems to me to lead to a question of

whether or not one construes the two Acts of the
Parliament together in some way, is that right?

MR SHAW:

Yes, Your Honour.

BRENNAN J: Well then, you look at section 54T and you see

what the parliamentary intention is.

MR SHAW:

Your Honour, if you look at section 54T, one sees

that is says in section 54T:
If this Division is inconsistent with another
provision of this Act or with another law in
force ...
(a) this Division applies; and
(b) the other law only applies so far as it is
capable of operating concurrently with this
Division.

Now, in our submission, those words contemplate a
qualification of the operation of the other law
only to the extent that the division cuts them down
and our submission is that, making the other
assumptions which it is necessary to make, this
division cannot operate concurrently with Article 9
as it is brought into force, with Article 9 only

being cut down to a certain extent. If Article 9
is affected in the way in which we say it is, it
goes altogether, and our submission is that that
being so the Act does not contemplate that the -
when I say "the Act does not contemplate", the
Migration Amendment Act does not contemplate that
it will have an effect on another law which is very
much wider that the specific effect it would have
if it were able to cut it down only to a certain
extent.

So, the question arises, in those

circumstances, whether one should say, "Well, it is
the intention of the Parliament in enacting this
second law that, whatever effect it may have on an
earlier law, even if it wholly repeals - say it
wholly repealed the Human Commission Act - never
mind, that is the effect it was intended to have",
or one says, "Well, Parliament cannot really have
intended that", what it is saying is, "We intend to
leave all these other provisions operative in a
general sort of a way", and that is the way the
matter seems to be approached in section 54S. So, a difficulty arises about how one

interprets the intention of the Parliament. Does
one say, "Well this is the later Act, Parliament
must have intended that whatever its consequence
may be, even if it is, for example, wholly to

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repeal the Human Rights Commission Act", or can one
say, "Parliament certainly could wholly repeal the
Human Commission Act if it wanted to", and if it was clear that it meant to do that, that would be
effective, but it is not clear that it did mean to
do this in this case and, indeed the provisions of

section 54T suggest it is not so. So one has the
question of a choice - - -

BRENNAN J:

On the latter choice, what do you say is the

effect of the Migration Amendment Act?

MR SHAW:

We would that it is clear that the Act did not

intend to operate in a way which wholly excludes
Article 9 from the way in which the covenant is
brought into effect by the Human Rights Commission
Act, and if that is right, if one can assume that that is so, then you have, as it were - and it only
arises because of the - - -

BRENNAN J: What-effect has it got on the operation of the

Migration Amendment Act if that is right?

MR SHAW: It brings it down.

BRENNAN J: What, so this is invalid?

MR SHAW:

Yes.

BRENNAN J: Because unless it is invalid it impliedly

repeals or destroys the foundation of the Human
Rights Commission Act?

MR SHAW:

Yes.

DAWSON J: But, of course, it does not do that because the

particular provision on which you rely is not in
the Human Rights Commission Act.

MR SHAW:

Your Honour, one has to make a number of

assumptions before you get to that.

DAWSON J:	My word, one does.
MR SHAW:	It really arises out of the way in which the

Parliament gets power to enact the provisions of a
treaty or or whatever it might be.

DAWSON J:

I was going to question that.

You read the

passage from the Tasmanian Dam case, but that is a
fairly restricted old-fashioned view of the
external affairs power according to current
thought, is it not. It is the international
concern which is the basis. There is no magic
about a treaty, it may be that the treaty marks out
the boundaries of the international concern, but

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the treaty itself cannot be the basis, as I read
the cases, apart from the legislative power.

MR SHAW:

That may be so, Your Honour, but for this purpose

it does not matter in the sense that all one needs
to say is one cannot do something which is
inconsistent with - - -

DAWSON J: Why cannot one? That is Burgess' case, I know,

but that has gone.

MR SHAW:

Our submission is that the cases show that one can

only do things which are, as it were, consistent
with the international - - -

DAWSON J: Burgess' case says that.

MR SHAW:

The passage I referred to of Chief Justice Mason

in - - -

DAWSON J:

I have difficulty with that. For instance, let

us say that the convention goes but the matter

remains a matter of international concern. Does
the law then become invalid?

MR SHAW:

What we would put, Your Honour, is simply that the

power to enact the provision is limited in a way in
which powers to enact things under the other
headings of section 51 are not, 52 are not -

DAWSON J: But you do not read the external affairs power,

as it were, bounded by the bounds of the
conventions into which Australia has entered.

MR SHAW:

In our submission, that is one of the bounds.

There may be other ways in which - - -

DAWSON J:

You have to look for the real thing that

underlies it. If you look at Mr Justice Stephen's
judgment in Koowarta, you find it is international

concern. It may be that the treaty does mark out the limits of international concern, but that is
not necessary, is it? If it is international
concern, then you do not have to legislate
consistently with the treaty.

MR SHAW:

The argument depends on that limitation.

If that

limitation does not exist, then the argument has
got no basis at all, but it really depends on -

DAWSON J: -I am not saying that I like the direction in

which all·that carries you, nevertheless.

MR SHAW:

I understand that Your Honour is saying that.

really depends on the nature of the power and what
one should say Parliament's intention is if the
power is limited in the way we submit that it was.

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The point rests on the inconsistency with Article 9
and the inability under the power to do something
which is inconsistent with the treaty. If that is
not the law,_ then there is no point.
If I might then go to the second question. In

respect of that, my learned friend says in effect
that the second question is hypothetical and should

not be answered. He says that in his submissions

at page 13 in paragraph 4.2. The second question
is, the Court will recall, if the provisions of the
Migration Amendment Act are invalid, are the
defendants bound to have regard to the covenant,
convention and the protocol in exercising their
discretion in respect of the applications for

release. My learned friend says that if the
Migration .Amendment Act is invalid, that question
should nevertheless not be answered because it is
hypothetical.
In- our submission, it is not hypothetical.

First of all, my learned friend says in
paragraphs (i) and (ii) that different
considerations may apply to the exercise of the
discretion depending on whether or not the custody
is under section 88 or section 92. It is true that
different considerations may apply in some respects
in respect of the exercise of discretion under
those sections, but my learned friend says nothing
to suggest why in this respect there should be any difference. In our submission, there simply is no
reason why it should be so.
So that, in our submission, whatever the quality of the detention or custody, assuming
invalidity of the Migration .Amendment Act, the same
questions arise in relation to the exercise of
discretion.

Then my learned friend says, in

subparagraph (iii) on page 14, "Well, Parliament

might pass some other Act if this Act is invalid".
Well, I suppose so it might, then it might always
be so, but that provides no reason not to answer
the question in the absence of that legislation.
Then my learned friend says, "It may be determined
too that the plaintiffs should no longer be
retained in custody". Well, if my learned friend
is prepared to say to the Court, "If the Act is
invalid they won't be retained in custody" then, of
course, the question does become hypothetical but
one takes· it from his resistance that he is not
going to say that, so if he is not going to say it,
then they will be sought to be detained under the
existing provisions of the Act and the question
arises. It cannot possibly be hypothetical.

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Then my learned friend says, "Well, we don't

assert any provision of the convention or protocol
to have any specific bearing on the applications

for release". That is subparagraph (v). In our
submission, that is simply not so since, if one looks at paragraphs 4, 17, 19, 30 and 32 of the
statement of claim it will be seen that we do say
that and, in our submission, it seems to be a very
odd submission to say that if these provisions are
invalid it is simply hypothetical to consider
whether or not these conventions or international
treaties or whatever they may be are something
which the decision maker is bound to take into
account. It is obviously a question which arises
at once, it is submitted.
Now, if that is so, then my learned friend says, and rightly says in this respect, "Well, I
can say that the provisions are either not at all
or not wholly part of the municipal law in the
sense that they give rise to immediately

enforceable legal rights". Now, that may be so,
but, in our submission, that is really only the beginning of the question. It is true that the
question was approached in that way and in that way
only by some members of the Court in Kioa, but the question was not there addressed whether, assuming
the provisions not to be part of municipal law in
the sense that they give rise to immediately
enforceable rights, nevertheless they are matters
which are required to be taken into account in the
exercises of discretions to which they are
relevant - perhaps I should not use that word -
germane.
Our submission is, and we do not need to go

this far, that the executive may restrict its
discretions or may impose upon itself duties to
take certain things into account simply by its own
act without there being any law, in the sense of

something passed by Parliament, to impose that

restriction. An ordinary example is, the
executive, a minister or a department, by entering
into a contract, obviously affects the discretions
which it would otherwise have. In our submission,
it is - - -

BRENNAN J:	You mean binds itself contractually to the exercise of a statutory discretion?
MR SHAW:	No, I meant it simply bound itself. All I am

saying is~ the executive can bind itself in various
ways by its own Act.

BRENNAN J: But we are talking here about the exercise of

discretion under a statute, are we not?

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MR SHAW:	Yes we are.
BRENNAN J:	And I thought your hypothesis or your analogy

was that by contract that could be done.

MR SHAW: That is the first step.

BRENNAN J: And is it right?

MR SHAW:	I am sorry, Your Honour, I have obviously answered a question Your Honour was not intending to answer.
All I was intending to say by the contract example
was not that by contract the executive may bind
itself in relation to a statutory discretion; all I
was intending to say was that it may affect what it
would otherwise be free to do, simply by entering
into a contract. And then we go on to say, well
one is simply not here in a situation in which the
executive is unaffected by other laws. It is perfectly true that the Migration Act itself does not say, you will have regard to, for example, the
Covenant on International, Civil and Political
Rights, but one does not need to have an enactment
in the Migration Act itself. If there is some other provision of the law which says that that is
an appropriate matter to take into account then, in
our submission, it has to be taken into account.
And if one looks -

BRENNAN J: That is a major step, is it not? You are

saying, if there is something which can be taken
into account, there is a duty to take it into
account.

MR SHAW: Well, Your Honour, it depends partly, I suppose,

on what the other provision is, but if you look, Your Honour, at the Human Rights Commission Act,
one sees in section 11 that amongst the functions
of the Commission are:

(e) to examine enactments, and ..... proposed

enactments, for the purpose of ascertaining
whether the enactments or proposed enactments,

as the case may be, are, or would be,
inconsistent with or contrary to any human
right -

and human right is defined so that it is, in
effect, the rights created under the covenant or
declared by the other declarations.
(f) to inquire into any act or practice that
may be inconsistent with or contrary to any
human right, and:

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(i) where the Commission considers it
appropriate to do so - to endeavour, by
conciliation, to effect a settlement -

or if there is no settlement -
to report to the Minister -

or -
(ii) to promote an understanding and
acceptance, and the public discussion, of
human rights in Australia.

And it goes on to make other provisions of the same

general kind. And it is submitted that that being
the purpose of the Commission, the Commission
having been set up by a Commonwealth Act and the
Commission's function being, amongst other things,
promotion of acceptance of human rights in
Australia, it would be odd if the executive, when it had given to it a general discretion by the
provision of another Act of Parliament, was free,
not only entirely to negate a human right, but was
free not even to consider whether or not human
rights were being negated.

DAWSON J:

Is there not some recent English authority on

this, that the old Wednesbury principle has to be
modified when there is a covenant, I think it was
the European Convention, so that it is not just a
question of reasonableness, but whether
international obligations have been observed in
exercising discretion? I will have a look at it at

lunch-time. I think there is.

MR SHAW:

Whether it says they must be taken into account,

Your Honour, I am not sure. I think I know the

case Your Honour is referring to. We can have a

look at lunch-time. But what I am putting here,

Your Honour, is that it does not simply rest on the
existence of international obligations here. Here
one has an Act of the Parliament itself which is
directed towards the promotion of acceptance of
human rights.

DAWSON J: Which is proposing some duties on a human rights

commission, that were obligations.

MR SHAW:

Yes, and -

DAWSON J: But why should that affect the discretion under

the Migration Act, unless it is a fact that the
discretion has to be exercised not only reasonably,
but consistently with obligations?

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MR SHAW: Our submission, Your Honour, is this: that

enactments of this kind at least indicate an
intention to make the provisions of the enactments
that are referred to provisions which it is the
policy of the body politic to promote, and if that
is so, then, it is submitted that the executive
cannot be free simply to say, "We will not take
into account this thing which another Commonwealth

body is set up to promote. We will just simply
ignore it." That is not to say that they could not
take it into account and decide, "We will not give
effect to it", but simply to say, "This is a matter
which must be taken into account because it is a
matter which it is true not the Migration Act
itself, but other Acts have demonstrated a concern
about." And it is not as if the provisions of the
Migration Act and the discretions conferred by that
Act, and indeed any other Act to which the
conventions might be relevant, are being exercised
in a va5=uum.
The circumstance in which the power is to be

exercised is a circumstance which includes these
other provisions of the law, and the other
provisions of the law, as we would say, indicate an
intention that the provisions of the international
treaties ought to be taken into account, at least
in the sense of considering them.

DAWSON J:

It is a very complicated way of putting what I

think you are putting. Why should you not just
say, "In the exercise of a discretion which is
otherwise unfettered, you have to take into account
international obligations"?

MR SHAW:

Your Honour, it is perfectly true you could do

that.

DAWSON J: Well, you do not put it that way.

MR SHAW:

We do, Your Honour.

We do put that.

The first

argument is - and we set these out at page - - -

DAWSON J:	I mean, you have a discretion to issue television licences, for instance. You have to take into
account freedom of speech, that sort of thing.
MR SHAW:	It is at pages 39 and 40. What we put is that the

first step is that even without any other provision
in any other law of Australia, international
obligations are something which have to be taken
into account, even if not given effect to, but have

to be considered. And secondly, we say we are
simply not in that situation where there is simply

nothing but the treaty. One is in a situation
where the Parliament has, in fact, passed other
laws giving partial effect, at any rate, to the

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provisions of the treaty, and in those
circumstances, it is submitted that it is not open
to the defendants to simply ignore these
provisions, if they happen to be germaine to the
exercise of their discretion, unless the Act says

you can ignore it. And, of course, it does not
here.

DEANE J:

Mr Shaw, all these provisions say "the Department

will do this". What tells us what "the Department"
means and who is authorized to make a decision
which the Department is required to make? It would
be relevant here, for example, whether the
Department is bound to act in accordance with what

the Minister directs. Do not let me hold you up,
perhaps those with you can find - - -

MR SHAW:

I do not know the answer to the question, if

Your Honour pleases. We will endeavour to find out. Those were the additional matters that we
wanted to put to the Court, if the Court pleases.

MASON CJ: Yes, thank you, Mr Shaw. Yes, Mr Solicitor.

MR GRIFFITH: If the Court pleases. My learned friend,

Mr Shaw, yesterday referred to the relevant dates as expressed in the definition of "designated
person" in section 54K as being irrational or

selected out of the air. In connection with that,
may I hand to the Court - my learned friend has
copies - an extract from the Annual Report of the
Department of Immigration, Local Government and
Ethnic Affairs.

MR SHAW:

I would just say to the Court that my learned

friend refers to these additional matters without
our agreement to do so.

MR GRIFFITH:

I would just indicate to the Court my learned friend said that to me. At page 56, Direct Boat

Arrivals, that is the first extract. It states

that - and this is during the year 1991:

five boats holding 158 people claiming to be
from Indochina arrived on Australia's northern
shores. Along with those in 1989-90, the
boats were the first direct arrivals of asylum
seekers from Indochina in ten years.

So we would put it that such information as there
is would indicate that in fact the commencement
dated related to what could be as the first arrival
of the second wave of boat arrivals, the earliest
being some 10 years before; there had been a
10 year break so there was no problem for the
legislature to address.

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Attached to this report is what is termed a

special article which appears in the report, When a

"Small Boat" Arrives. We just give that to the
Court for background information as to what is
stated in the departmental report as the process of
dealing with boats when they arrive on
non-scheduled services with people who apparently
intend to stay here.
My learned friend also referred to the

termination date 1 December 1992. If I could take
the Court firstly to the extracts from Hansard
which are attached, as part of our submission. My
learned friend has already referred to part of the

second reading speech of the Minister which
commences as attachment B, two pages after page 18
where the Minister, at page 2373, which is four
pages in in the extract, refers to:
this legislation is only intended to be an

interim measure. The present proposal refers
principally to a detention regime for a
specific class of persons. As such it is
designed to address only the pressing requirements of the current situation.

And he indicates in the next paragraph that:

It is my intention to recommend to Ministers a
comprehensive program of legislative
amendment -

generally to provide for the ongoing mechanisms.
In connection with that, may I hand to the

Court a copy of three press releases from the
Minister which are dated July 1992 which do confirm the fact that it is contemplated in the next Budget session of Parliament to bring such legislation

forward. I will not take the Court to the detail
of these press releases. It takes us back to

the Court, but there is a statement in the first of Salemi's case, in a way, handing a press release to
the press releases that there are going to be
changes dealing with border control, and the Court
will see that the second press release deals
specifically with the issue of power of detention
and indicates that there is to be legislation
providing for a uniform power of detention. It is
interesting after the Air Caledonie case that the
press release indicates that Australian citizens

will be required to produce proof of citizenship on entry - that appears in the first page of the first
press release - and then one sees in the second
press release a general statement of intended
principle with respect to the detention of persons
who do come here without a legal right to enter or

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to remain, and the basic structure expressed by the
Minister is that they will be detained pending
their removal from Australia and pending
consideration of any claim in respect of which they
claim a right to stay in Australia.

BRENNAN J: What is this to prove, Mr Solicitor?

MR GRIFFITH:

Your Honour, merely to answer my learned

friend's submission that the Act is plainly
irrational and has plucked dates out of the air.
What we say, Your Honour, is that the commencement
date had a rational basis as, as it were, the new
wave of boat people after a 10-year interval, and
the termination date is not one intended in any way
to be analogous, as we infer my learned friend made
it, to Liyanage legislation enacted only for a
specific purpose in specific proceedings,
Your Honour, but merely happens to be there because
it was contemplated that within a short time
frame - seven months or so - there would be
general, as it were, re-enactment of the regime

covering the situation. So we say that it removes
the suggestion that there is a particular, if you
like, ad hominem motive behind this legislation in
having a termination date. That is as far as we
take it, Your Honour.

BRENNAN J: But that, I suppose, is to be determined by

reference to the operation of the Act, is it not?

MR GRIFFITH:

Your Honour, we would entirely agree.

We say

that my learned friend made the point there is no

reason stated for section 54J of the Act. We would
say, Your Honour, that the legislation need state
no reason. But my learned friend has postulated to
the Court as part of his argument that, as a matter
of fact, there are no reasons, there could be no
rational reasons, and the Court should act on the basis of that assumption in taking a view that it
is ad hominem legislation transgressing, if you

like, the Liyanage principle.

BRENNAN J: But if one does look, for example, at 54J in the

context of paragraph (e) of the definition of
"designated person", it appears that the national
interest which the Parliament has besetted itself
to have considered is one which turns, at least for
the future, on the exercise of departmental
discretion to give it an identifier.

MR SHAW:

Can I deal with that issue in two parts,

Your Honour? Firstly, the question of
New Zealanders which was raised yesterday,
Your Honour, and the issue of possible other exempt
persons which were raised during the course of

argument this morning, Your Honour. The position

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in respect of New Zealanders and exempt persons
within the definition of section 4, Your Honour, is
that they have no requirement of having either a
visa or an entry permit.
It is our submission, Your Honour, that this

legislation is clearly directed, and only directed,
to those persons who arrive in Australia as

non-citizens who do require a visa and an entry
permit. That is confirmed, Your Honour, when one
looks at section 54L, in our submission, which
provides for the release from the specified custody
as being when a person is:
removed from Australia under section 54P; or
given an entry permit under section 34 or 115.
Your Honour, if under the legislative scheme

of the Act one is either a New Zealander or an

exempt person who does not require an entry permit,
we submit it would not be possible or permissible
to construct Division 4B as in any way potentially
applying to those persons so that if they happen to
go fishing for flounder outside Sydney Heads as,
for example, an ambassador to Australia, it could
be regarded as a residual discretion for those
persons to be given an identifier under
paragraph ( e) .
So our submission is, Your Honour, that the

Act only applies to those persons who come in circumstances whereas a non-citizen though would be required under the Act to present a visa and to be granted an entry permit.

BRENNAN J: It certainly does not say that, does it?

MR GRIFFITH:

No, Your Honour, but any contrary construction

we submit is absurd.

BRENNAN J:	Why is it?
MR GRIFFITH:	Your Honour, firstly because it would involve

a theoretical possibility that a range of persons,
ranging from a visiting Head of State through to
the average New Zealander coming to Sydney for a
week's holiday and riding in a boat outside the
Sydney Heads, could be subject to the regime of the
Act and subjected to custody and being only permitted to end that custody by being removed from
Australia ·under section 54P, or as section 54L
says, "given an entry permit" which, as the Act
applies to them, they do not require.

DEANE J:

I am no doubt wrong, Mr Solicitor, but I had the

impression that the Act allowed exempt

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non-citizenship status to be removed by executive
decision.

MR GRIFFITH: There is a gazettal power in addition to the

list in section 4 of the Act, Your Honour.

DEANE J:

No, not to be added to, but that somebody with

exempt non-citizenship status, to be deprived of it
by executive decision.

MR GRIFFITH:

Your Honour, whatever provision there is as to

this we say should not be construed as coming
within the purview of Division 4B.

DEANE J: All I was suggesting was if that executive power

exists in any event and thereafter requires an
entry permit, the notion that "designated person"
applies is not quite as self-evidently absurd as
may otherwise be the case.

MR GRIFFITH:

Could we say, Your Honour, sufficiently

self-evident, that it is clear, and one can, we
submit, go to the second reading speech if need be
to see the intended purpose of this Act and its

target. The section was section 16, Your Honour,
which says:
The Minister may, in writing, declare, in
relation to an exempt non-citizen, that it is
undesirable that the exempt non-citizen be
permitted to enter Australia or to remain in
Australia.

So that would seem to be a provision to take the
person under the provisions of the Act otherwise
which would apply.

DEANE J: It would not be surprising to find a combination

of section 16 and the Act being available to catch

MR GRIFFITH:

Your Honour, in our submission it would be

astonishing.

BRENNAN J:

Why?

Because somebody would then be liable to

be locked up?

MR GRIFFITH:

Your Honour, the Act is dealing with the

relationship to a boat on a territorial sea. It

could have been expressed otherwise. It could have
said, "A person who has arrived in the territorial
sea from overseas by boat", but one can see that
might have a problem of proof in a particular case
if a person happens to be within the territorial
sea in a boat to prove that they came from
somewhere else. They might have said they were

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just fishing for flounder and not coming in from
overseas.

DEANE J: But that means that it is intended to apply to

people who just happen to be in a boat.

MR GRIFFITH: With accumulative definition, Your Honour. If

someone came here in circumstances, Your Honour,
they are a non-citizen; they are required to have presented a visa and they have not; they have not been granted an entry permit; they are not exempted
non-citizens and they are in Australia; it is
possible then, Your Honour, that they might be
given an identifier.

DEANE J: The proposition to the contrary of that is that,

looking at this when you see (a) and see that it
intentionally does not say coming to Australia, but
being on a boat in the territorial sea, the
inference is, really, that (a), (b), (c) and (d)
were intended to be as wide and handsome as they
can be, leaving everything to the good faith of
someone in the Department to carry out government
policy and only apply it to people within the
category of people that the government had in mind.

MR GRIFFITH: Well, we would submit, not all that wide,

Your Honour. It cannot a reasonable construction
to say, "Oh well, that means that, say, if there
are 22,000 other persons here at the moment who are
applicants for refugees status, who are in
Australia, without having a valid entry permit,
that the Act would intend to attach to them by the
happenstance that they happen to go fishing one day
in a boat".

DEANE J: But you see, you look at it and (b) and (d) are

cumulative, but we know there are thousands of
people who do not need to have presented a visa and

we know that those people who have a visa may be lawfully here without an entry permit, which means it is very hard to say it is not intended to apply
unless somebody was obliged to present a visa.

MR GRIFFITH:

Your Honour, our first bit is to say, in

obvious construction of the part, it is intended only to apply to those persons, Your Honour, who
are in a position that they, as non-citizens, were
persons who should have presented a visa and
required an entry permit for entering into
Australia~

DEANE J: Boat - - -?

MR GRIFFITH: Yes, and have not got it. The regime of the

Act does not attach to other persons.

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DEANE J:

So if it turned out that somebody on one of these

boats came from a country whose citizens did not
need a visa, they cannot be made a designated
person, even though they needed an entry permit?

MR GRIFFITH:

Your Honour, there is no such category.

instructions are, there are New Zealanders,
Your Honour, by category of country,
Norfolk Islanders and this individuals of exempt non-citizens.

DEANE J:

I had assumed that all the places that we can

enter without a visa, that the citizens of those
can enter here without a visa. That is wrong, is
it.

MR GRIFFITH:

Your Honour, I hesitate to introduce a note of

levity, but there is that story, allegedly true, of
an Englishmen asking in the city for a visa from
Australia House and when he reached the question,
"Do you_ have a criminal record?", the answer was
meant to be, "I did not realize that was still essential", but the fact is, Your Honour, that
English people need a visa to come to Australia;
all do, except those, Your Honour, in the category
of 'exempt non-citizens' as my instructions have

it, and New Zealanders. We do not have reciprocal
arrangements as other countries do, Your Honour.
I will have those instructions confirmed over

lunch-time, Your Honour, but that is my
understanding of what the position is.

BRENNAN J: A visa or an entry permit, or both?

DEANE J: Well, both is what has been said.

MR GRIFFITH:

Your Honour, the visa is something you get before you come here, so you will not be admitted

on an aircraft, which is the usual method to come

to Australia, unless you have it in your passport

which follows upon the visa.

and when you arrive here you get the entry permit

So, Your Honours, we have made our submission

saying that one should regard this provision really
for the reasons stated by my learned friend, as

much as those stated specifically in the

parliamentary debate, the second reading speech, as

directed to a particular area and it is not, in our

submission, appropriate to read it as having a

larger potential application than that which is

intended.

Also we would submit to the Court that in the

case of dealing with this entry of non-scheduled
arrival of boats in Australia of persons who intend

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to come here for the purpose of, in effect,
imposing their presence on Australia without a
requisite visa or without it being granted an entry
permit. It is the case that those persons may well
and often do choose not to produce any documents of
identity; they just arrive and obviously, in some
cases, they regard it as appropriate to come
without passports or identifying documents. Their
intention is to come here and to stay in Australia,
in one way or another, possibly by applying for
refugee status; possibly by just clandestine
arrival.
Now, in respect of that, obviously there must

be processes for identifying those persons and it
may assist the Court if I hand to the Court a
document which has been prepared by the Department
of Immigration and Local Government and Ethnic
Affairs, which is an explanation of the identify

given to unauthorized boat arrivals. I have given
a copy of this to my learned friend and I suppose
we take it, he objects to that too.

BRENNAN J: This is dated 5 August 1992?

MR GRIFFITH: Yes, Your Honour.

BRENNAN J:

So one cannot look at this document for the

purpose of understanding what the understanding of
the Parliament was at the time of the passing of
the Act.

MR GRIFFITH:

Your Honour, I had another document here dated

earlier and I just had this updated, in effect, but
we could get an earlier version. The earlier
version I did not hand to the Court because it had
more factual information, including this fact that
often these people destroy the documents. But if
Your Honour sees the date as material I could hand
to Your Honour the earlier copy.

BRENNAN J: It is a question simply of endeavouring to

understand what is the nature of the function of
giving an identifier under paragraph (e).

MR GRIFFITH:

Your Honour, this document was handed to the

Court with the intention of explaining that and it
does, as my instructions are, I could have them
confirmed over lunch, state the position as it was
in May when the amendment was introduced to the
bill. But to remove doubt, I could hand to the
Court after lunch copies of the longer form of this
document which has further information stating
that.

BRENNAN J: Perhaps it is even more relevant to ascertain

whether the procedures of giving an identifier have

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without legislative or regulatory authorization
been changed departmentally.

MR GRIFFITH: Since the first boat arrived here?

BRENNAN J: Well, at all, because if "identifier" in

paragraph (e) is intended to relate to that which
by departmental practice is an identifier, then it
would seem that the discretion reposed in the
Department by paragraph (e) is susceptible of definition by the Department itself.

MR GRIFFITH:

Your Honour, "identifier", of course, is not defined in the Act but we say what it is is the

designation by number of arrivals.

My learned

friend mentioned to the Court yesterday that for
the first two boats it was by initial of the boat,
with consecutive numbers, and the difference is in

subsequent arrivals, and those arrivals are listed

in the appendix A to our submissions, there is a

different designation of not having the letter but

merely a three-digit number.

BRENNAN J: Perhaps it is manifest, Mr Solicitor, but as I

would read paragraph (e) at the moment, the
question of who is to fall within the definition of
"designated person" depends entirely upon
departmental discretion both as to the manner of
giving an identifier and as to the policy which
might underlie the giving of identifiers. If I am
wrong about that then I would be pleased to know.

MR GRIFFITH:

We would accept, Your Honour, for the purpose

of argument that a decision to give an identifier
would be something which would be a decision made
under an enactment which would be amenable to
review.

BRENNAN j: Subject to the ordinary requirements of natural

justice?

MR GRIFFITH:

Your Honour, it is a question of what it is an

identifier for. We say the identifier merely gives
a mechanism to identify people who in the ordinary
course do not have passports or satisfactory
identification documents when they arrive in
Australia as persons who desire to enter Australia,
have not presented a vise and have not been granted
an entry permit.
Your Honour, we say, as a matter of operation

of ordinary administrative practice, this
identifier is merely the mechanism of process of

those people as they step off the boat. And as we
understand the case of the first plaintiffs and the
second plaintiffs here, this is what happened to
them. They stepped off the boat in Darwin and they

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were given these identifier numbers, PBl to 26 and
Bl to 119, all the persons on the boat. There is
not really much scope to review on the basis of

natural justice. We say that it is just applying
the regime of identification as part of the process of your arrival and claim to be permitted to enter.

McHUGH J: But it has very significant consequences for the

person involved. The moment the designation is
given by identifying the person, that person is
automatically taken into custody.

MR GRIFFITH: Exactly, Your Honour. Now, if some person

wants to review that, under the Administrative
Decisioins (Judicial Review) Act they could,
Your Honour, but if they arrived in Darwin on a
boat in the circumstances of those who arrived on
the Pender Bay and the Beagle, Your Honour, we
would suppose that such proceedings would be
futile._ What could the complaint be? It has the
consequence, and that is the intended consequences,
but where, we submit, is an appropriate ground of
administrative complaint?

McHUGH J: Well, there may be none but it does not mean that

the rules of natural justice might not apply.

MR GRIFFITH:

Your Honours, it would be a question of the

circumstances of what they are.

McHUGH J: These aliens are being segregated from all other

aliens.

MR GRIFFITH: Yes, Your Honour, by specific legislation.

McHUGH J:

By departmental fiat.

MR GRIFFITH: Acting pursuant to Division 4B, Your Honour.

McHUGH J:

No, not pursuant to Division 4B at all; in

accordance with what the Department decides to do.

MR GRIFFITH: But it has relevance, statutory relevance, by

reference to - - -

McHUGH J: Well, it does, it has consequences, enormous

consequences.

MR GRIFFITH: Yes, Your Honour.

McHUGH J:

But it is not merely a case of the Act operating

on some objective facts. One objective fact
depends upon the discretion of the Department which
singles out particular aliens.

MR GRIFFITH: Well, Your Honour, if it is regarded as a

discretion in the context, one is dealing with the

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situation of processing people when they step off a
boat on uninvited arrival in Australia, persons who
intend to come here with the intention, if they
can, of being admitted permanently to stay here.
Now, Your Honour, one must have some process and
this provision of definition recognizes that. Our
ordinary principles of administrative review would
enable that process to be challenged.
If the Court pleases, it must be remembered in

this case that there is no claim by any of the
plaintiffs that their detention in custody is
unlawful to the extent that they do not claim that they are not designated persons, and perhaps it is appropriate if I mention to the Court that it is
our submission that these persons, being persons
who prior to the coming into force of Division 4B
on 6 May were persons in custody under section 88
of the Act, they were persons who arrived here by
boat and were taken into custody off the boat.
When one looks at section 88, and this is
particularly relevant for both question 1 and
question 2, there is no power under section 88 for
release to be ordered by administrative order, of
those persons.

BRENNAN J: What part of section 88 allowing custody?

MR GRIFFITH: Your Honour, subsections (1), (2) and (3) give

a discretion to an authorized officer to direct
persons to be kept in custody and subsection (5)
enables them to be returned to the vessel - which
of course covers the case of when a person arrives
on a ship perhaps as a stowaway or an absconding
crew member or something of the sort - the person

can be sent off in that vessel. Of course, that
does not operate in relation to these vessels
because they come and they do not leave, they get
burnt. It was never intended by those who brought
them here for them to leave.

Subsection (6) provides for the period of

custody to end when the person receives a valid
entry permit and it says that the custody ends:
unless he or she is the holder of a valid
entry permit -

because they should -
be expeditiously removed from Australia.

And subsection (8) says:
A person who is taken ashore pursuant to
subsection (1) or (3) is to be deemed for the
purposes of this Act not to enter Australia

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unless and until the person is granted a valid
entry permit.

and that is the provisions my learned friend
Mr Shaw referred to.
So it is the defendants' case that all of the

plaintiffs here are persons detained in custody
under section 88, not section 92 which has
different provisions in relation to custody, and it
is the custody which, as far as administrative law
is concerned, is one which only terminates not on
the basis of any power of interim release, but when
there is removal from Australia, deportation, or
there is a grant of a valid entry permit. That is
the two circumstances.

BRENNAN J:

What then was the subject-matter of the

proceedings before the Federal Court?

MR GRIFFITH:

Your Honour, the subject-matter of the

proceedings was that to obtain a valid entry permit
it was necessary for certain provisions to be
satisfied, particularly as set out in
regulation 117B which has been amended at various
times, and I prefer not to have to take the Court
through the amendments of the legislation because
it is a tortuous trail that would have grave danger
of myself unwittingly leading the Court astray.

DEANE J:

Mr Solicitor, if Mr Shaw's clients are deemed for

the purpose of the Migration Act never to have
entered Australia, how are they designated persons?

MR GRIFFITH:

Your Honour, they are designated persons because they are physically here.

DEANE J: .But section 8 says they are deemed never to have

entered Australia, so how in any context like this
can (b) and (d) apply if it only applies to people
who should have -

MR GRIFFITH: Your Honour, it is like the provisions at

airports.

DEANE J:	It is only an airport? I see.
MR GRIFFITH:	You have not entered Australia until you have

left the airport.

DEANE J: There is.nothing like that in terms of ships?

MR GRIFFITH:

No, Your Honour, but it is the same concept of

legal entry, which is when you get the entry permit
and being physically here, and physical entry,
Your Honour, you are here, but you are not lawfully
here. And it is quite clear the definition of

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"designated person" deals with physical entry.
Perhaps, Your Honour, this confusion of language,
the fact that it is common, can be reflected in the
fact that in the agreed facts in the questions
before the court the expression "entered Australia"

is used when the respondents meant physically here, and the plaintiffs, as we understand it, argue that
they are talking about "entry" in the meaning of
the Act.

BRENNAN J: What was the apprehended release of these people

by order of the Federal Court?

MR GRIFFITH:

Your Honour, I am sorry, I was explaining

Regulation 117B. Can I finish doing that and lead
to Your Honour's question?

BRENNAN J:

I am sorry, yes, of course.

MR GRIFFITH: Part of the requirements to get an entry

permit under Regulation 117B in the case of these
applicants is to be granted refugee status which,
as the Court is aware, is something that is not a
status under the Act, but a status which, by
reference to the convention definitions and the
various committees of which there are - I will not
take the Court through the procedures - but that
was the procedure.

Now, each of the plaintiffs - - -

DEANE J: Could I just take you back to my problem, and that

is, if what you say about these people is right,
why is it not that section 88(8) says they are - deemed for the purposes of this Act not to
enter Australia unless and until the person is
granted a valid entry permit.

MR GRIFFITH:

From the point of view of legal entry,

Your Honour, that is the case. But the trouble is

they are here. They are free to go at any time,
but they choose not to.

DEANE J:

I am just saying I have trouble seeing how, if

they are deemed never to have entered Australia for
the purpose of the Act, the argument that (b) and
(d) only applies to persons who have passed the
point of lawful entry without the requisite entry
permit applies to these people.

MR GRIFFITH: Your-Honour, section 88 is a section which has

existed for many years. It was previously
section 36, being designed to be the boat turn
around provisions - if I can term them in that
way - historically traditional provisions of a
migration Act. Division 4B, we submit,

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Your Honours, came in over the top of that and
said, this is the new regime that applies to these

people. Once Division 4B came into force, we
submit it does not matter what section 88 says.
Their custody continues under section 54J and following of the Act, so that one goes to
Division 4B to see the control of custody and my learned friend will recollect we referred the
Court, more than once, to section 54S, referring to
the fact that its operation does not affect other status and also to the consequence that after the expiry of the period of nine months, then the rest
of the Act applies.
So that, Your Honours, my point was that until

the enactment of this provision the provision of
the plaintiffs was controlled under section 88 and
we submit that under section 88 there is just no
provision for the exercise of a discretion by the
Ministe~ or any designated person, departmental
person, whatever the definition, for release from

custody. The mechanism of the Act is that the
custody should end either by the person going
overseas by boat - the same boat, a different boat,
or by aircraft - and provision for another boat
requires the consent of the master; provision for
an aircraft does not require the consent of a
master, or by being admitted to enter Australia,
which presumably would be by the grant of an entry
permit.

DEANE J: But the point that I was really directing my

question to is this: if section 88(8) applies to
these people, or applied to these people at the
time this amending Act was enacted, is the position
not that they had not committed any offence and
were not illegally within the country?

MR GRIFFITH:

Your Honour, there is no issue of offence in

relation to these people under Division 4B.

DEANE J: Well then, is not the position that they were not

illegally within the country.

MR GRIFFITH: Your Honour, they are physically here without

having presented a visa or being granted an entry
permit, and we submit that -

DEANE J:

I follow that, but you see, we were approaching

this on the basis that these people were all

properly in custody. I had assumed that that meant
that they were illegal entrants and, I must
confess, I had also assumed that they had committed
some offence in coming in. Well now, looking at
88(8), am I correct that this Act applies to people
who had committed no offence and who were not
illegally within the country?

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MR GRIFFITH:

Your Honour, we accept that the mechanism

operation of the Act in this respect are not on the
basis of offence and dealing with offenders, but
dealing with the process and application of the
laws controlling who may and who many not enter,
remain and depart from Australia if a non-citizen

and not entitled to remain here. So that the point
we were seeking to make is that absent Division 4B
the position of the plaintiffs was that they were
in custody, their applications for refugee status
had been determined and the status had been

refused. The proceedings in the Federal Court were
directed primarily to the issue of setting aside
that determination not admitting them to refugee
status.
There was, as my learned friend indicates, a

consent order as to that and the issue of refugee
status was remitted for determination,
redetermination, according to law. In this case it
was an _issue of natural justice, as I understand,
and that process continues now.
So that in a real sense the plaintiffs had

been successful in their application in the Federal
Court and it was held over the issue of whether or
not, as a matter of interim and interlocutory
relief, for reasons that have not yet been put in
argument anywhere, the court should exercise its
power as was put in the proceedings then under
section 16(1)(d) of the Administrative Decisions

(Judicial Review) Act to order interim release. My
learned friend mentions also section 23 of the
Federal Court Act here.

TOOHEY·J:	When you use the expression "interim or interlocutory", Mr Solicitor, do you mean by
reference to the ultimate fate of the application for refugee status or the ultimate fate of the
proceedings still on foot before the Federal Court?
MR GRIFFITH: Your Honour, until my learned friend said that

there was still a proceeding on foot challenging
the lawfulness of the arrests, we took it the only
proceeding on foot was the issue of interim release
pending the redetermination of refugee status. If
that was granted on reconsideration, that would be
the end of the matter; one would expect an entry permit to issue and the plaintiffs to be released
into the community.
If that were refused, one would expect another challenge, one would suppose, and we expect the
argument would be, "Well, they've been here since
1989. All this is taking a long time. They should
be released." To a considerable extent - and
perhaps picking up Your Honour Justice Deane's

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remark referring to me personally - I am perhaps
responsible for this because I argued the case of
Chan unreported before Justice Stephen some years
ago, arguing on the Beauchamp principles there
should be a ·power to release on a balance of
convenience pending determination of, in that case,
a constitutional challenge to an order for
deportation.
As has been indicated by my learned friend's reference to the Full Court decision in Msilanga,
Chan was referred to there as authority for this
proposition. But we understand the basis of the
application going no further than an ordinary
exercise of an interlocutory power of the Court to
grant interim relief.

BRENNAN J: It was the operation of Division 4B, so far as

custody is concerned, merely a change of the
statutory source of authority to keep these people
in custody?

MR GRIFFITH: That is really our first submission,

Your Honour. We say that the statutory provision
itself provided that from an administrative point
of view under section 88, the custody continued.
Your Honour, there was no specific power in the
Court to review custody because there was no primary power for a decision to be made to release
from custody. When it was put as it was in this
case that notwithstanding the absence of any
mechanism providing for release, the Court may make
an order by way of interim injunction pending
resolution of some matter - it is arguable what the
matter was in the Federal Court in this case, but
perhaps one could imagine a challenge to the
validity of the custody.

As we have put in our submissions,

Your Honour, one can see at the least an argument
that the statutory powers of the court under

section 16(l)(d) and section 23 could support an
exercise of the court's jurisdiction to grant
interim injunction, interlocutory relief pending
determination of whatever the issue was before the
Court.
Now we submit, Your Honour, all that

Division 4B has done is to amend, in a relevant
way, section 16(l)(d) and section 23, to say that
in the case of proceedings concerning designated
persons in their custody - or perhaps if the
proceedings do not concern their custody - that the court should not have power to order release. But,
Your Honour, in its relevant operation to the
circumstance of the plaintiffs, we submit it has

that very narrow ambit of operation. It is an

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exceptional power that has only been exercised in
one or two cases - Chan is one that I mentioned; it
is referred to in the report of Msilanga,
105 ALR 301. Msilanga is another.
Your Honour, we will in our submissions make

the point that there is a difference between a case
where one challenges the validity of the custody
and where one merely is seeking an interim order
for a relief from custody pending the resolution of some issue such as whether or not you are a refugee
by ordinary administrative exercise of power.
But, Your Honour, in essence our submission is this Act is merely directed to the issue of - in as
much as the statute is relied upon for the power,
those two sections I mentioned - of narrowing their
operation and saying that they do not impose or
provide power on the court in respect of designated
persons.
May I try and deal with this issue with the matter raised by Justice Deane earlier this
morning, the question of the relationship of the
operation of Division 4B and the constitutional
power of this Court. Well, of course, it is self
evident that nothing in this Act could affect the
constitutional powers of this Court or the powers
conferred on this Court under the Constitution, but

in this case section 54T makes it quite clear. It
says:
If this Division is inconsistent with another
provision of this Act or with another law in
force in Australia, whether written or
unwritten, other than the Constitution:
(a) this Division applies; and

(b) the other law only applies so far as it
is capable of operating concurrently with

this Division.

And I should point out that the Minister in the
Second Reading Speech at page 2374 referred
specifically to preserving the constitutional

jurisdiction. He also made another observation,
but there is no attempt at all to trespass on the
constitutional jurisdiction of this Court. But we
would accept, of course, that any person could
approach this Court or any other court and allege
that they·are not designated persons; they could
allege that they are citizens who are being treated
as designated persons, and in that case that issue
could be before the court and this Court would have
a power to order release of that person as part of

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its interlocutory powers in respect of matters
before it. But that is not the case here.
There is no issue that these persons are other

than designated persons. As we understand it there
is no issue that all the parts of the definition,
(a), (b), (c), (d) and (e) apply. We submit that
there is no issue presently before the Court
challenging the lawfulness of their custody. There
is merely an application in the air for them to be
released pending the redetermination as has been
ordered in connection with successful proceedings
to challenge the initial determination refusing
refugee status.

McHUGH J:

Mr Solicitor, does 54R add anything to the Act,

or is it just surplusage?

MR GRIFFITH:

Your Honour, we feel it does not add anything

at all, in the context that, as we put to the
Court, in relation to the operation of section 88 certainly there is no mechanism in the Act

providing for release from custody. We would
submit that the operative - - -

McHUGH J: Having regard to the terms of 54L, it is

difficult to see - - -

MR GRIFFITH:

Your Honour, it seems to be hammering a nail

which is already right down at floor level, we

would submit. Your Honour, it might be argued - my
learned friend is very creative - that absent that
provision, section 54L would be subject to
section 16(l)(d) and section 23.

MCHUGH J: Yes.

MR GRIFFITH: In a real sense, Your Honour, perhaps the

Court can make the assumption that Parliament, as
one of its reasons in passing this legislation, was

to deal with the possibility that that might be argued and Parliament, Your Honour, we would say as a matter of substantive law, has made it quite
clear firstly that the custody is to continue if
lawful, as is provided in the Act; and secondly,
that inasmuch as there is defined by other laws of

Parliament powers of courts to make interim orders, those powers are, from the date of commencement of
this part being introduced into the Act,
Division 4B, are not to include powers to deal with
this cust<;>dy.

BRENNAN J:

Why do you say "not to include powers" as

distinct from "not to exercise the powers"?

MR GRIFFITH: Well, Your Honour, perhaps it is the same

point that Justice McHugh put to me, that 54L

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really confirms what we say is the position anyway
under Division 4B, that it is clear that this
regime of custody is one which Parliament has
provided, it is to be controlled by its terms, with
custody and release from custody being as is
provided basically on removal, which can be
voluntary or involuntary, or grant of an entry
permit. Dealing with this issue of custody, we do
remind the Court that the plaintiffs' custody,
however long it has been and however long it
continues under this provision, is voluntary
custody on their part. They came voluntarily to
Australia and they are free voluntarily to depart
at any time.
Whilst they are now here, having come here

voluntarily, not being entitled to do so, they
choose to take advantage of the laws of Australia,
including the mechanisms to apply for entry and to
review in our courts the operation of the
decision-making process in relation to those
applications. That is what the plaintiffs do and,
of course, there is no complaint about that but it
is the case that throughout this process this is a
voluntary activity of behalf of each of the
plaintiffs.

McHUGH J: If they are genuine refugees, it is an

inappropriate use of the term "voluntary", is it
not?

MR GRIFFITH:

Let us look at that, Your Honour. We submit

that the position is that Australia is discharging
its obligations in respect of the refugee
convention. There has been a consideration of
their position and after the setting aside by that
in the Federal Court there is further consideration and I am instructed that recently, and certainly in
the near future on it, there is going to be cases
of some of these people who will be admitted to

entitlement on anyone claiming refugee status to refugee status. That is the ordinary process of law. But we say, Your Honour, there is no
say they should be permitted to enter the country
with the possibility of assimilating into the
community to the point that they cannot be found in
the face of a legislative regime which clearly
expresses the fact that they are not to do that.

McHUGH J: Except under the terms of the covenant then,

taking before the courts to have their rights or
their status determined.

MR GRIFFITH:

Your Honour, if there is any slowness in

considering their applications they have the rights

at any time to take that up. In this case there

was a decision and that was challenged. We submit

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that is not a matter of complaint. These decisions
do take time, there are many applicants, they each
have to be, as the Court has held, considered

individually and not in a globe way. But we
submit, Your Honour, that that gives no entitlement
for a person who claims refugee status to say that
they should have the rights of a person who has the
right lawfully to be in Australia because they are
a citizen or because they have an entry permit.
Perhaps I have sufficiently made the point

that the Act, we submit, is not at all one in
respect of punishment. It is not at all in respect

of involuntary detention. It is dealing with what
is to be done with people who choose to stay here
rather than remain, while their unsolicited

applications for entry here are considered. And
Parliament has made it clear, whatever the choice is, that in respect of those persons who are
designated persons, they are to be treated in a
particular way.
My learned friend, in his submissions,

submitted that there was really no reason for

section 54J - no stated reason. We would submit as
to that that Parliament need state no reason, that
it is for Parliament to determine in respect of
which persons arriving in Australia and persons in
Australia, applicants for entry permits, should be
dealt with. In the alternative we would refer the
Court briefly to the extract of Hansard, attachment
B which is attached to our materials, and if I
could give the Court just quick page references to
that - the extracts are not very long, but the
particular statement at page 2372, which is the
third page of Hansard, Appendix B to our
submissions, left-hand column, the Minister states
that:
The Government is conscious of the
extraordinary nature of the measures which

will be implemented by the amendment aimed at

boat people. I believe it is crucial that all
persons who come to Australia without prior
authorisation not be released into the
community. Their release would undermine the
Government's strategy for determining their
refugee status or entry claims. Indeed, I
believe it is vital to Australia that this be
prevented as far as possible. The Government
is determined that a clear signal be sent that

migration to Australia may not be achieved by simply arriving in this country and expecting
to be allowed into the community.

Australia will, of course, continue to honour its statutory and international

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obligations ..... The Government has no wish to
keep people in custody indefinitely -

and he indicates in the right-hand column that the
purpose is merely to enable the applicant's
application for refugee status to be admitted or
refused. If they are refused, they have to leave
Australia. Then he goes over at page 2373, as I
have already referred, at the top in the left-hand
column, to indicate that the legislation is an
interim measure.
One will see also in the debate a unanimity of expression of view as to these issues, in

particular at page 2374, where it is acknowledged
by the opposition in the right-hand column that the
legislation is seen as tough. There is a reference
at page 2375 of the tendency of persons who, if
released from custody, not to be located. At
page 2249 there is a reference to the particular
senator's views as to the appropriateness of the
legislation; similarly at pages 2251, 2252 and
2253.
So, we would submit, an alternative to our

proposition, that the particular reasons for
Parliament to take this action are beside the

point. When one looks at Hansard, there is ample
factual reasons to say that this particular
legislation is directed to deal with a particular
issue for particular reasons.
Could I hand to the Court a document headed

"Power to Release from Custody", which is a summary
of the position before the commencement of
Division 4B. It really summarizes the propositions
I put to the Court a few moments ago.

McHUGH J:

Mr Solicitor, do the materials reveal anything of

the circumstances of the 23,000 applicants for time, as to how they arrived here or what? refugee status within Australia at the present

MR GRIFFITH:	We do have affidavits which we could deliver to the Court, which have been prepared for the purpose of the Federal Court proceedings, that do
contain material about that. We are a little bit
conscious of feeding material to the Court that my
learned friend might say, well, this is evidence
rather than fact from a report, and it might be
contentious; I do not accept that here, I would not
accept it down below, because we have several
affidavits that are very useful in that area, Your
Honour, but we would expect their deponents would be cross-examined. So, if pressed, Your Honour, I
will seek to tender them - - -

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MCHUGH J:	No, no.
MR GRIFFITH:	Your Honour, I think it can be taken that

there are many thousands that have arrived here by
scheduled, one could assume, air services, because
there are hardly any scheduled boat services, that

point has been reached, Your Honour, that they may
only lawfully stay in Australia if they be granted
the appropriate entry permit for permanent stay in

they have been admitted to Australia and that the not in custody; some are, many are not, so I think
the Court can act on that assumption, Your Honour.
But, Your Honour, that is really to do no more

than confirm the fact that we already know that
this Division 4B is not intended to deal with those
people who arrive regularly by scheduled services.
It is directed to those persons who come
irregularly by boat and have to be dealt with on

arrival·. I know it does not say, "by boat", but we
have already made our submissions as to that.
But we would submit that it matters not that

there is a ratio of 360 or whatever to many
thousands. The appendix A to our submissions does
list the number of boat arrivals in the material I
have already given to the Court. That material
would include the number of arrivals since 1980,
although the first to arrive, as my learned friend
pointed out, is the first plaintiffs arriving
28 November 1989.
There reference in Hansard to the fact that

the date that the Division 4B was passed further
arrivals were expected within days and that is
confirmed by the second page of this annexure which
shows the Jeremiah arrived with nationals of China
of 10 May in Darwin after the coming into force of
the Act, perhaps unexpected as it might have been

but a few days later 12 Polish nationals arrived by
boat.

McHUGH J: Both parties seem, in one way or another, to have

supplemented the case stated?

MR GRIFFITH: Yes, Your Honour.

I hope it is acceptable

practice, but we always take the view in the case
stated that we should agree on the relevant pleaded
facts from the point of view of getting a question
to be stated by the judge. But it being a
constitutional case, it must always be the case
that the Court should inform itself as best as may
be to the relevant facts, and it is often difficult
at the formulation of the actual question to be

clear what are all the facts. It does seem, in a
practical way, if I could suggest to Your Honour

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and the Court, that by getting to the point where
one seems to have the facts as put by the plaintiff
in the question, one then can come to grips with
the issues and take a view as to what factual
material it is appropriate for the Court to have
from a constitutional point of view. But
Your Honour is correct in that observation. It
might be to go the long way round to have a trial
on the facts before the case comes to the Court.
But the point we make from this document, of

course, is that it would seem that the Act applies
to those designated persons already in custody

under section 88 or section 92, if any are under
section 92, those persons who subsequently have
arrived, and any of the potential numbers who might
arrive. There might be 10,000 who arrive between
now and 1 December. But the submission we would
make is that it does not matter whether they are
Poles or from whatever, however many come, they
will all be subject to the operation of Division 4B
in respect of them, excepting, of course, that
includes the mechanisms of having an identifier
under paragraph (e) of the definition.
We would also make the point as was said by

Justice Latham in Koon Wing Lau v Calwell,
80 CLR 533, that the fact that there may be
hundreds rather than thousands of members of a
particular class does not matter from the point of
view of validity. It is our submission that it
would not matter for the purposes of validity if
there was only one person who was a member of this
class. That is a natural enough corollary to the
obvious intended operation of the Act that it
should discourage arrivals.

MASON CJ: Mr Solicitor, if it is convenient, we will

adjourn now and resume at 2 o'clock.

MR GRIFFITH: If the Court pleases.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

MASON CJ: Yes, Mr Solicitor.

BRENNAN J: Mr Solicitor, before you commence, could I just

ask you one question arising out of something you

said before lunch. You said that the plaintiffs

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had been detained under the provisions of
section 88(1), (2) or (3). Looking at section 88,
two things occur: one is that you must be either
under (1) or (2) or (3); the second is that if the
boats are burnt then I presume they can be kept in
custody forever.

MR GRIFFITH:

The answer is, no, Your Honour, because they

will be dealt with under this section by either
being granted an entry permit, going voluntarily
overseas, or being put on a vessel or aircraft.
But if Your Honour's point to me includes in it the
query whether it would be within power to provide
for indefinite custody if someone who is - - -

BRENNAN J:

No, it seems to me that one of the critical

problems that we have to face here, perhaps in
terms of reasoning, but at least in terms of
judgment writing, is to understand what was the
change that was worked in relation to the
plaintiffs by the introduction of Division 4B.
Now, in order to do that one needs to understand
what was their liability to have been kept in
custody under the provisions of section 88?

MR GRIFFITH: Yes, I accept that, Your Honour. The position

under section 88 as we understand, Your Honour, is
that the person will be detained in custody until
that custody ended, either by being granted an
entry permit, by voluntarily leaving Australia, or
by being returned in, if it was not this vessel, another vessel or an aircraft, out of Australia,
and the custody would continue until one of those
three things happened.

BRENNAN J: Under (1) or (2), it is until the boat leaves,

is it not?

MR GRIFFITH: Your Honour, that is assuming that this

particular boat does not leave. I thought that

Your Honour's question made that assumption.

BRENNAN J:

When the boat does not leave, what provision

applies?

MR GRIFFITH: If the boat does not leave, Your Honour, the

provision is subsection (5) or subsection (8).

BRENNAN J: But that is in relation to a person under (1) or

(2). Does subsection (1) or subsection (2) apply
to them?

MR GRIFFITH: Apply to these people?

BRENNAN J: Yes.

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MR GRIFFITH:

Your Honour, subsection (1) would apply to

them. Perhaps elucidating what was discussed
before lunch, Your Honour, the fact that a person
comes here and is then detained on arrival does
not, in our submission, constitute an offence.
They become an unlawful non-immigrant subject to
the custody provisions and being dealt with either
by being in effect deported, Your Honour, or after
due process admitted to Australia.

BRENNAN J: Is this the proposition, that the plaintiffs

fell within subsection (1) and became prohibited
entrants and were on that account liable to be kept
in custody indefinitely in the case of the boats
being burnt, subject to subsection (5)?

MR GRIFFITH:

And (8), Your Honour, and also the power

voluntarily to leave. There is always the capacity
for the person voluntarily to leave, Your Honour.
-

BRENNAN J:	I frankly do not see that, but you may be right.
MR GRIFFITH:	Your Honour, the custody is for the purpose of preventing their entry into Australia until such time either that it is arranged that they leave or
that they lawfully enter. That is what the custody
is directed to, nothing more.
BRENNAN J:	I understand that you say that, that it is the object of the section to provide custody for that
purpose. Is it a matter of reading down the
section in order to limit it to that purpose?
MR GRIFFITH:	Your Honour, if a person desires to leave

voluntarily - I understand that is Your Honour's
point, that that is not expressed in the Act - you
leave voluntarily either by being on another boat
or being on an aircraft.

BRENNAN J:

Now, let us assume that there is somebody in

custody under subsection (1) and he wants to leave
on an aircraft. What is the provision which allows
him to say, "At my option, I am leaving on
tomorrow's aircraft"?

MR GRIFFITH:

Your Honour, subsection (5) could enable him

to do that. Your Honour, the purpose of these
provisions is not to keep people in Australia when
they do not want to stay here.

BRENNAN J:

I hear .you saying that, but looking at

subsection (5), it is:
may be returned to the vessel or ..... placed on
board.

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It is a passive direction, and the actor, one would
think, is the Department or the officer.

McHUGH J:

Was there not a case here, Zarke or Znaty or

something like that, years ago, where somebody
wanted to go somewhere else and they said he could
leave.

MR GRIFFITH:	Yes.
McHUGH J:	The Department sent him to -
MR GRIFFITH:	And there have been other cases that have

headed this way that have never determined that
issue of whether you have a choice of where you go
but that is on deportation, I think.

TOOHEY J: That is on deportation, yes.

MR GRIFFITH:

Where you have a choice, not on voluntary departure. But, Your Honour, perhaps it is a

matter I should seek specific instruction but my
understanding is that persons who have no right to

stay here and do not wish to stay here always are

free to go.

If they make their own arrangements

then they can leave.

I will have that confirmed

but that is my understanding of the position that these provisions are to apply custody in relation

to entry into Australia; nothing in respect of

departure from Australia and departure can
voluntary or involuntary.

But, Your Honour, perhaps the intention of

looking at section 88 is because it is, as I
mentioned earlier, an historical provision dealing
with the boat turn-around provisions, that it is

coming from a time when everyone came here by boat;

some were entitled to stay here, some were not. In
those days, it was thought when boats came here
they left; that seems to be not the case nowadays.

Not many boats come here with passengers but they

seem to stay rather than go.

That could be put as one of the reasons,

firstly, why there should be a specific provision
enacted; and secondly, why, as we have seen - and I
was going to hand the Court now an explanatory
memorandum confirming - there is going to be a
thorough going review of the legislation to provide
for a uniform regime.

BRENNAN J:

My question was not necessarily posed to your

ultimate submission, I just wanted to understand.

MR GRIFFITH:

Your Honour, perhaps can I explain further.

If a boat person arrived here and was not detained
on the boat, for example, landed and he was

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detained after landing, it would seem section 88
would not apply and section 92 would be the
relevant section. As we understand it that is not
the case here in respect of any of these
plaintiffs.
If the Court pleases, I am informed that the

practice is that if a person desires to go, they
are always permitted to go, but I suppose we can
add an obvious comment, Your Honour, if that
permission was not granted it would be an obvious
one for review, but we cannot contemplate that

happening. But it is the case, if the Court
pleases, that persons who arrive on a boat may be
detained under section 88, or if they get off the
boat without being detained and are detained within
Australia, then section 92 would apply, which has a different regime.

BRENNAN J:

The curious thing is that 92(5)(a) seems to

contempiate precisely that situation but there is
no corresponding provision in 88.

MR GRIFFITH:

Yes, Your Honour. Our explanation is because

88 is an historical turn around one.

BRENNAN J: That is right; in other words it is for the

ocean liners that have stowaways or who bring in a
load of illegal immigrants.

MR GRIFFITH: Yes, Your Honour, but it also deals with

people who arrive here on a boat who are not

entitled to have entry. Now, Your Honours, there
is no point me saying again that one could do it
better in modern legislation, other than say that
it does not lookalike it is going to happen. Should I mention again Regulation 117B which,
in its present form, is the relevant regulation
providing for an issue of domestic protection
temporary visa, but I would like to make clear to

the Court, I think I did before lunch, that the
grant of refugee status is but one element of
obtaining such a visa, but it is the crucial
element; there are other elements that are to be
required, but the course of the plaintiffs'
application was to get the refugee status and then
advance through the other requirements of
Regulation 117B to receive a domestic protection
temporary visa under Regulation 117B.
May I hand to the Court yet more material consisting of the explanatory memorandum of the
Amendment Act and also a contemporaneous media

release by the Minister. I do not wish to detain
the Court with this material other than to refer to
the outline on the first page of the explanatory

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memorandum which, we submit, confirms the direction
that this Act should be directed to "boat people",

as we have referred to them. And also I would
refer the Court to the next page dealing with the
definition of "designated person", where there is a
reference to the definition of giving an identifier
with a specific reference to Pender Bay arrivals.

The media release confirms - - -

MASON CJ:	Why are you referring to the media release?
MR GRIFFITH:	Your Honour, because of the concern about the question as was put as we understand it before
lunch, that the issue of identifier might be a
matter of unreserved administrative discretion.
And the submission we wish to make is that when one
looks at the legislation, and assisted by the
explanatory memorandum, one sees that the
identifier is something which is to be applied as
of course to people who arrive here as boat people, we say, being the target of this legislation. That
is as far as we wish to put it.

In further response to Your Honour

Justice Brennan's question before lunch in respect
of the minute headed, "Explanation of the
Identifier" dated 5 August, it does seem to me on
rereading the earlier letter dated April I referred
to that there is more factual information than
contained here, and I am obtaining copies of that
earlier letter to give to the Court so it is as

fully informed as I am. I now have them - if I
could hand those to the Court.
I do not desire to detain the Court on this

letter other than to indicate that it shows that
there was a developing practice in respect of
designators and identification numbers which, it
would seem, did not reach its final form until

about the time of the passing of the Act. We do
not see that as having any material effect on the
plaintiffs' case in this matter because, of course,
the relevant issue for the attachment of Part 4B is
whether or not there is an identifier.
Of course, in respect of the plaintiffs,

certainly by the time the Act came into force and
this case coming into this Court, there is. It
does seem that there is a history of the

development of methods of identification. The
context, as I explained to the Court, that many of
these arrivals did not have any identifying
documents and were difficult to keep identified as
particular persons.

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We would submit that no law would be

inconsistent with chapter III even if the impetus
or motive of the legislation was to deal with one
particular situation involving only one particular
group of people, because many laws are enacted in
response to a specific problem, and even if the
problem was isolated to just one circumstance and
unlikely to reoccur, we submit that would not
affect the validity of the legislation.
I referred the Court to the statement of

Chief Justice Latham in Koon Wing Lau v Calwell.
The page reference which I did not give is 80 CLR
552, where Chief Justice Latham said:
The question which arises as to the power of the Commonwealth Parliament to deal with such
a situation is the same whether there are many
thousands of such persons or, as is possibly
the case, only some hundreds.

If I could refer the Court by way of reference to
Reg v Cann, (1989) 1 NZLR 210, where the Court of
Appeal of New Zealand was dealing with legislation
which was admittedly directed to one situation
occurring in court a few days after the legislation
was passed.
One other matter of correction is that I have

referred the Court to annexure A of our materials,
and the correct number of arrivals is not the 360-
odd I think my learned friend referred to, but 460
arrivals to date, including those arrivals after
the date of the Act.
Now, may I mention briefly our submission in respect to the plenary power in respect of aliens?
We submit that the aliens power can be used in
conjunction with or alternatively to the
immigration power, to exclude aliens from the

country and to prescribe conditions under which

they may enter and also to deport them. Now, this
goes right back to the statement of the
Chief Justice in Robtelmes v Brenan, (1906) 4 CLR

395, at page 404, and it has never been doubted
that this power extends to making laws that
providing where an alien is unlawfully in a country
that person is apprehended, that person may be
taken into custody and expelled and the decision of
this Court in Koon Wing Lau v Calwell, 80 CLR 333,
is sufficient authority for that.
We submit then that the aliens power and, if

needs be, but not here, the immigration power,
extends to making of the law which says if an alien
comes to Australia without permission that person is free to depart at any time, but otherwise must

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stay in detention pending a decision as to whether
that person is to be permitted to enter. Such a
provision does not make that person guilty of an

offence or inflict any punishment. It is merely a
means of giving effect to the rule that an alien
cannot enter Australia without permission.
An alien who comes to Australia cannot assert

a right to enter the community, we submit, pending
a decision whether permission to enter will be
granted or refused, particularly if the statutory
regime dealing with that consideration excludes the

possibility of entry. So much is consistent with
what the Chief Justice said in Salemi's case,
137 CLR 404. Here, of course, the Amendment Act
does not provide for any indefinite detention of
aliens. The person is intended to be kept in
custody only pending consideration of their
application. That might be a lot less than the
273-day-period designated in the Act.

A person is to be released under

section 54L(2)(b) if the person is granted an entry
permit. A person must be removed from Australia as
soon as practicable if that person asks the
Minister, in writing, to be removed. If the person does not make an entry application within the prescribed period, or if the entry application has
been refused and all appeals and reviews have been
finalized, section 54P(l) and (2). And, of course,
a designated person going to be kept in custody
under this division for the periods prescribed by
the Act that my learned friend has already taken
the Court to.
So the Act provides only for the detention in

custody of aliens who have not been given
permission to enter Australia but who desire to
remain here pending consideration of their entry

applications, in circumstances where they have the

capacity to depart earlier if they wish. In that
way, we submit, the Act itself is clearly a law
which relates to the status of aliens and within
the heart of the power. Having made that short
submission, may I treat our submissions in our
written submissions paragraph 1.2 to 2.7 - that is
on page 5 - as read, and then if I may I would like
to say something shortly to the Court on the issue
of the relationship of this Act to the jurisdiction
of the Court.
We do not dispute, of course, that a law could not make an immigration official's determination
conclusive as to whether or not the Act applies to
a person. That is always open to a person by some
judicial process to show that that person is not a
designated person.

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But of course what the provisions of

section 54L, N and R of the MLgration Act do is
they apply only to persons who are designated

persons. They do not prevent a person from
bringing proceedings to say that they are not
designated persons and, if a court determined that
a person was not a designated person, then nothing
in this Act will prevent the court ordering that
person's release.
We submit it is not necessary for the Court in

this case to consider what interim relief might be appropriate to be granted, in the Federal Court or
here, if the proceedings were brought to determine

the lawfulness of the person's detention. The
Court, of course, could make an order for
preservation of the person to the extent of
ordering that they not be deported overseas, and
this Court has made orders of that sort in the
past - it was made in the unreported Chan case that
I mentioned.
If a person sought a determination that that

person was not a designated person, it is possible
to imagine a situation where a court could take the
view that it was appropriate for the person to be
ordered to be released, although it is rather
difficult to see how that could be even a
possibility in all but the most extraordinary
circumstances.
Where there is no question that a person is a

designated person, and it is not disputed that the
provisions of the Migration Act require that person
to be detained, it is our submission that there is
no inherent power in the court to order the release
of that person.

McHUGH J: What about on an interlocutory basis? Suppose

the court thought there was an arguable question as

to whether a person was a designated person. Does
the court have power to order the release?

MR GRIFFITH:

Your Honour, we would suppose that that could

be a possibility, subject to any statutory
restriction on that. In this Court, we do not
argue that there would be any restriction on that
but there is certainly an indication it was a
factor to be taken into account as to the
parliamentary view on release into the community
and we would submit that would weigh heavily.
When one looks at the Msilanga decision in

105 ALR 301, to which my learned friend referred
the Court, one sees there a case where the court
looked at the matter, we submit, on the basis of
there there was a claim that the deportation order

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was unlawful, so that in dealing with the

two principal judgments - of which the Chief jurisdiction to make an interim order, we say the
Justice concurred in both - Justice Beaumont and
Justice Burchett, approached the issue from the
point of view of balance of convenience in a case
where the lawfulness of the detention was in issue.

We submit that in this case the lawfulness of the detention is not in issue and it is not put in issue for the purpose of the exercise of any power
in such circumstances, we submit, by merely a
paragraph of the application before the Federal
Court which raised that. In truth, the proceedings
in the Federal Court concerned setting aside and
obtaining orders for reconsideration of the
application for refugee status. That order was
obtained by consent, and the reconsideration

proceeds. We submit that in a real sense the
proceed~ngs in the Federal Court are confined to
one issue, namely the issue of interim relief
pending determination and finality on the issue of
whether or not the plaintiffs can establish and be
granted refugee status, either on the
redetermination or on further application to the
court under the Administrative Decisions (Judicial
Review) Act.

In that situation, we submit, as a plain principle, there is no power in the court to grant
bail to persons lawfully in custody merely for the
purpose that it would seem to be convenient or the
best thing for the particular plaintiffs, in the
face of legislative provisions which provide,
without exception, for continuing custody.
We have handed to the Court our first

supplementary submission last night headed No

Inherent Power to Grant Bail. I will not take the
Court through that document other than to reiterate

the points which you have just made and on page 3,
where we refer to the Msilanga case, we refer to Justice Beaumont's judgment, it is a judgment of
the Full Court, as I mentioned.
We submit that those decisions, and the others

that we do refer to, are all in the context that it
has never been suggested that in cases where there
is not relevant proceedings considering the
lawfulness of the person's detention under these
sections of the Migration Act, that the courts
would have any inherent power to grant, in effect,
bail. Perhaps bail is an inappropriate term
because we are not here dealing with criminal
proceedings. But perhaps it is useful as an
analogous term.

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Then if we could pass, in passing reference, to paragraph 2.9 of our submissions on page 6. we
refer to the Canadian cases, firstly, of Alamazoff
where we cite an extract from the Chief Justice of

the Manitoba Kings Bench judgment in that case. We
would refer particularly, but I will not take the

Court to the passages, of the Court of Appeals in both Manitoba, R v Coleman, and the Ontario Court of Appeal, Re Rojas v Reg, where we submit that
there is similar view taken by the Court.
There are passing references in these

decisions to the position in respect of the United States constitutional provisions. I do not intend
to take the Court in any detail to the United
States law because we have handed the Court our
supplementary submission 4, which briefly
summarizes the constitutional position in America
as we see it. In summary, we submit, suffice it to
say there seems to be very little in the way of
constitutional protection to aliens before their
lawful admission into the United States.
Perhaps I could give the Court just one

supplementary reference which confirms that and
that is Medina v O'Neill - I will not take the
Court to this - 838 F 2d 800, at page 803. That is
a 1988 decision where it was held that excludable
aliens in detention are entitled to be free from
malicious infliction of cruel treatment and gross

physical abuse. So the limit is limit to right
against, in effect, physical mistreatment and not

much more. I just take that as a contrast to
indicate that under American constitutional
provisions there is very little in the way of
constitutional protections. There are some
statutory protections and they operate according to
their terms but not constitutional.
Of course, as we note on page 6, paragraph 2.9, this Court has accepted that

would submit the principles of the Canadian cases deportation is not imposed as a punishment and we
would apply equally here.
So, in a real sense - we say this on page 7 of

our submissions - it may be that section 54R is
redundant in its terms in indicating that there
should not be release in that we do submit that
there is no statutory power to order release and,
of course, my learned friend relies on the
provision·of two statutes to establish that there
is a power in the court to order release.
Of course, we would say it is a corollary of

my learned friend's reliance upon statutory
provision that those statutory provisions can be

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directly modified and we would submit that one
thing is clear from the mandatory terms of this
Act, and perhaps that could have been more politely
expressed - certainly perhaps not less strongly
expressed - that it is intended that there should
be no orders made for persons to be able to enter
the community without having a valid entry permit
first issued to them.

DEANE J:

Mr Solicitor, would you maintain that 54R was

applicable in a case where the 273 days had expired? That would give it some operation.

MR GRIFFITH:

Your Honour, there is a difficulty of

construction of the Act on this 273 days, because
an obvious construction intention is to say, it was
intended to provide for a regime with a limit to
say, well, all the procedures should be exhausted

in 273 days with the stop-time provisions taken
into account.

DEANE J:

You mean, after 273 days ceases to be a designated

person?

MR GRIFFITH: Yes, Your Honour, but the way the Act is

drafted, it does seem that there could be some
mandatory operation. Your Honour, I have sought
instructions on this and I am afraid the best I can
do is to say that that was unintended, and what was
intended, Your Honour, was that one would then fall
back on the other provisions of the Act.

DAWSON J: And you would still remain in custody.

MR GRIFFITH: Under 88.

DAWSON J: Under 88.

DEANE J: Depending on whether there was another provision.

MR GRIFFITH: Yes, depending on another provision, but

Your Honour, we have to live with what literally
the Act properly construed does.

DEANE J: Because it could well be, as a quite distinct

argument, that 54R could not apply in those
circumstances.

MR GRIFFITH:

Yes, Your Honour.

My instructions say it was

not intended to, Your Honour, so perhaps we are
never going to have an argument about it.

DEANE J: Now, what about 540? If there is a challenge to

E, I mean, 540 can really only validly determine it
if it could also say and the certificate could
determine A,B,C and D.

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MR GRIFFITH:

Your Honour, we would be quite happy to argue

this case is that was not there - if O was not
there - because there is sufficient of a regime. I
mean, the question comes, Your Honour, what does it
do? The answer is, Your Honour, it probably does
little in practice, because persons to whom this
Act apply, Your Honour, are persons who have in
fact got a designated number. It would have made my life simpler arguing today to merely say it is
prima facie evidence, Your Honour, and that would

be a matter of proof. It is not in dispute in this
case, as we understand it, or in any other case,
but it perhaps leads to a theoretical argument,
Your Honours, as to whether such provision, on its

own, is valid. I do not know whether the Court
wishes me to go far down that track, because we do
not see the question of validity of view as
decisive to any issue before the Court today.

DEANE J: Well, it would seem fairly apparent if, as I must

confess my prima facie impression is, 540 is bad,
it would seem fairly obvious that it would be
severable, if that was all.

MR GRIFFITH: Yes, of course, Your Honour. Could I say

something about it just to perhaps excite
Your Honour not to express a view on it unless it
is necessary for the case, Your Honour. We would
not dispute that section 540 could say nothing
about a constitutional fact, that there could never
be such a provision to operate in respect of a
constitutional fact, and that is established, if
anything, by the Australian Building Construction
Employees' and Builders Labourers' Federation v
Commonwealth, (1986) 161 CLR 88 at pages 95 to 96
and authorities there cited. So, we accept that,
Your Honour, but we would say as a matter of proposition, but hope this is not the case to decide it, that there is no reason why Parliament
should not provide for the conclusive determination

of other non-constitutional facts, if there is
particular reason for it to do so.

DEANE J: But you see, the problem about it would be this:

put to one side the fact the person is likely to be
in custody under some other section, but assume E
is not satisfied and that the person is being held
in custody, then, as a matter of law, he is being

held in custody unlawfully. Now to allow or
provide that the E question and therefore the
lawfulness of the custody question could be
determined by a certificate seems to me to be
plainly inconsistent with Chapter III.

MR GRIFFITH: Well, Your Honour, we concede it is getting

close and there is an interesting argument, but
perhaps just in an attempt to hold the Court off

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from deciding this if it is not ..... , can I just
give some passing references, which I would hope
would hold the line for another day, Your Honour.
I must say it is the first time I have ever had to
argue a section such as this, because one does not
come across them very often.

DEANE J:

Perhaps fortunately.

MR GRIFFITH: Yes, the only other ones I can think of,

Your Honour, are things about certificates or for incorporation of that sort that are by-the-by. But could I mention that firstly the Australian
Communist Party case, 83 CLR 1 at 222,
Justice Williams is indicating that if a person is, in fact, within the aliens power, we would submit,
and His Honour was referring to the aliens power
there, the law will be supported even if it
provides for conclusive determination of some fact
about that person. Perhaps it is a just passing
historical reference.
The Court have had regard to similar

provisions in the concept of conciliation and

arbitration. R v The Court of Conciliation and
Arbitration; ex parte Grant, 81 CLR 27 at pages 51

to 52. We do agree, Your Honour, the BLF case at
page 95, 161 CLR, raised the issue of whether such
provisions could interfere with the Chapter III

judicial power, but did not answer it. And that is
why we say, "Well, perhaps it is best to leave it

here". We do accept, Your Honour, of course, in
taxation, MacCormick v Federal Commissioner of
Taxation, 158 CLR 622 at 643, on the obvious issue
of incontestable tax and the related issue; and if
we could also refer to Milicevic v Campbell,
(1975) 132 CLR 307, particularly pages 316 to 317
Justice Gibbs, and 318 to 319 Justice Mason; and
lastly Williamson v Ah On, (1926) 39 CLR 95. But
having said that, Your Honour, we do accept that
properly in issue, it is certainly a serious point

on whether that would be consistent with
Chapter III.

DAWSON J:

Mr Solicitor, does Division 4B have any

discernible purpose, having regard to the fact that
the person was in custody anyway, other than to
deal with applications under the relevant sections
of the AD(JR) Act and the Federal Court Act?

MR GRIFFITH:

We say no, Your Honour.

I think one

makes - - ·-

DAWSON J:

It is directed at that.

One would be able to

infer, having regard to its limited scope, perhaps
directed at the application which was to be made to
Mr Justice O'Loughlin.

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MR GRIFFITH:

Your Honour, the policy part of that is clear

and cannot be - but I am just saying, in in saying
yes, Your Honour, Parliament has made it quite

clear in unusual terms. It wants to get the result

no one enters. Your Honour, the legislation gives
no administrative right to obtain entry without the
permit. The legislation, section 88 gave no right,
as a matter of administrative discretion, to obtain
entry.

DAWSON J: Can I just put the question again? It was

designed to counter the possibility of persons being released under, and I have forgotten the

section, the AD(JR) or Federal Court Act. Would it
be fair enough to say that?

MR GRIFFITH:

Your Honour, I am seeking to answer by saying

that looking at the clues Parliament has left, that
looks like the case, that they want to ensure that
whilst there is no structure provided in the Act
for administrative discretion to enable release,
the only mechanism would be a court one, and this
has the effect perhaps in direct words of cutting
it out.

DAWSON J:

You would say they could have done that by an

amendment of the AD(JR) Act or the Federal Court
Act, but they chose to do it this way.

MR GRIFFITH: Yes, Your Honour, it might have been better to

have done it that way. We say, in effect, all this
law does is to specifically exclude this sort of
case from section 16(l)(d) and section 23, and

really no more. It could have done it in better

language. It could have done it in more direct
language. It could have done it in less offensive

language. One can see that because it would seem
it was directed to a problem about court
proceedings rather than administrative action, you
can see the language of the Act is directed to

courts rather than power or - - -

DAWSON J:

You say it is no more a usurpation of the

judicial function than if it were provided that
bail shall not be granted in murder cases.

MR GRIFFITH:

Exactly, Your Honour. We have said in our

printed submissions: mandatory life sentence for
hijacking an aircraft - same thing. That is what

the court does. The problem is, Your Honour, when
one gets close enough to these people as people who
have committed no offence, who have a sincere
desire to enter Australia, who have been detained
for lengthy periods, one can obscure the basic
issue of, we say, legislative power in respect of
aliens that we are dealing with here.

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BRENNAN J:

Mr Solicitor, I regret to say I am still having

trouble with sections 88 and 92. If my trouble has
any foundation, the case seems_ to me to wear a very
different aspect. In other words, if section 88 is
intended to cover people who are on board a vessel
and who come within the provisions of (1), (2) or
(3), then, as I read it, they can be taken off the

vessel to be kept in custody. If taken off the
vessel to be kept in custody, their taking off
deems them not for the purposes of the Act to have
entered Australia.

MR GRIFFITH: Yes, Your Honour.

BRENNAN J:

It would not cover cases where persons have not

been taken off boats but have got off boats and
have entered Australia and who are on that account
illegal entrants for the purposes of section 92.

MR GRIFFITH: Yes.

BRENNAN J: Being an illegal entrant for the purpose of

section 92, they come under the regime provided by
that section. If they come under the regime
provided by that section, they can be kept in
custody for the limited periods and for the
prescribed purposes contained in sections 4, 5 and
6 .

MR GRIFFITH:

Yes, Your Honour.

BRENNAN J: If that is so, it seems to me that there might

well have been - in fact there probably were -
substantial arguments that whatever time might have
been permitted under 92 had well and truly expired
in this case.

MR GRIFFITH: Your Honour, this case is about section 88.

BRENNAN J: If section 88 does not have any application,

Mr Solicitor, then they were in illegal custody,
were they? If so, we then come to the stage of
Division 4B which puts people in custody by

executive action. The question is whether it is
possible, in exercise of the aliens power, for the
Parliament to provide for people to be put into custody by an executive decision that they should
be in custody - not by application of an Act but by
an executive decision.

MR GRIFFITH: Your-Honour, our starting point is to say that

that is an issue that does not arise in this case.
The issue before the Federal Court was whether or
not a determination refusing refugee status should
be set aside. There has never been an issue before
the Federal Court argued or determined or waiting

Lim( 2)

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to be argued as to whether this custody is under
section 88 as the defendants say.

BRENNAN J:

I appreciate that, but I thought the case that

we were dealing with was the constitutional
validity of Division 4B.

MR GRIFFITH:

Your Honour, in connection with the

plaintiffs, on the basis we say where it is
admitted that they are in lawful custody under
section 88 as part of the facts that come to the
Court.

BRENNAN J: Is that common ground?

MR SHAW:

No, Your Honour.

MR GRIFFITH: Well, it has never been asserted otherwise,

Your Honour.

BRENNAN J: Well, whether it is asserted otherwise or not,

the case has to be considered in terms of
constitutional power, one would have thought,
either on the basis that they are in custody under
section 88, in which case one looks at the
operation of Division 4B upon that situation, or
that they were not, in which case one looks at the
operation of Division 4B on that situation.

MR GRIFFITH:

Your Honour, the case is that they were.

There has been no issue in this case at all other than to deal with the question of refugee status
and interim release.

BRENNAN J:

Mr Solicitor, for myself I must say I am not

assisted by a submission which simply says that
they were without agreement or containing of a
statement in the case stated or without some clear
application of the words of section 88 to the facts

of the case.

MR GRIFFITH:

I am sorry Your Honour is not assisted, but we

can only respond to the case as it is brought,
Your Honour, and the case was brought in connection with applications for interim release as a
constitutional case to this Court after a court had
order reconsideration of a determination for
refugee status. The issue of lawfulness,

Your Honour, has not arisen at all. If Your Honour
and the Court feel that you cannot proceed to
determine·the case because there is not an
affirmative issue between the parties on that point
which has been determined as a matter of law and
fact for the Court to answer the questions, then
the case would have to be adjourned to enable that
to proceed.

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But Your Honour, we do submit that the question of validity of the operation of this Act,
in the circumstances - because we submit that it
takes over application of the regime providing for
custody of persons who are lawfully in custody
under section 88 - is not something to be
determined in the abstract on an assumption to be
made by this Court that the custody of these
plaintiffs is not under section 88, a matter which
has never been put at issue before any court,
including this Court.
Your Honour, having said that, if then

Your Honour is looking at the issue from the point
of view of saying, "Let us assume there is no
lawful custody under section 88 or section 92 in
respect of a person to which this Act operates", we
would submit that there is still no difficulty in
respect of its operation; that if, in fact, there
is a pe~son - and I would like, for our example, to
confine myself to someone who in fact arrives in an
unauthorized way by boat in Australia and if I
could put to one side examples of fishing off the
heads in Sydney Harbour, but someone who in fact
has come here by boat, abandoned the boat, and is
present in Australia perhaps six months on, is an
unauthorized entrant and an alien, who has done
none of the things of presenting a visa, not been
granted an entry permit; has been on a boat because

he came by boat, and is in Australia. We would
submit, Your Honour, if such a person is detected,
it is perfectly within power for the Department, in
an ordinary way, to give that person an identifier
under (e) and for the regime of the Act to apply to
them. Why should there be a difference in a
constitutional sense between persons who are
detected at the point of entry or apprehended from
the point of view of section 92 after they leave
the boat but before the operation of the Act, and

those which have remained undetected until now? We

submit, Your Honour, that the reach of the aliens

power is the same. None of those persons is
intended by the legislature, by Parliament, to be
permitted to remain as part of the Australian
community until such time as they are granted an
entry permit. And if they are not granted an entry
permit by proper procedure, then those persons will

leave either voluntarily or by deportation. We
submit there is no problem of - - -

BRENNAN J: Well, the only question I raise is whether or

not in such a case the subjection of a person to
the regime of Division 4B is validly affected by a
provision which makes the operation of 4B dependent
upon paragraph (e) of the definition.

Lim( 2)

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MR GRIFFITH:

Your Honour, we can make but two responses to

that. The answer to that is: no, and secondly,
Your Honour, we say that question does not arise
here, so the Court need not determine that, the
point of view of validity of operation to that

person. I do not think I can take it any further,
Your Honour, but we do submit that the - - -

DAWSON J:

So what you say is that a person to whom this

part applies will, by reason of other provisions of
the Act, either be in custody or be liable to be in
custody by reason of those other provisions.

MR GRIFFITH: Yes, he could have been apprehended under

section 92, up to the operation of the Act - - -

DAWSON J:	By reason of statutory provisions?
MR GRIFFITH: Yes, Your Honour.	I am sorry, I did not make

that clear but, yes, but - - -

DEANE J: But that needs the qualification, does it not,

Mr Solicitor, in terms of as I followed your answer
to Justice Brennan, 4B will apply to a person in
custody regardless of whether his custody is or is
not unlawful.

MR GRIFFITH: Yes. Thank you, Your Honour, for pointing

that out, yes.

DEANE J: But no, that does not help you.

MR GRIFFITH:

No, but that is true, yes.

DEANE J: But, I mean, if he is being held unlawfully in

custody under, say, section 92, when the time has
expired, 4B would purport to block access to the
courts for him by, as it were, making his custody
lawful, pursuant to a decision under (e). It is
probably an extreme case.

MR GRIFFITH:

I would not want to put it, if Your Honour

pleases, "access to the courts" but his position so
far as present entitlement to relief which
presumably would be the matter most interested to
him rather than a theoretical cause of action for
the detention in the past, Your Honour, will be
determined by the present law.

DEANE J: Your correction is correct in that what I was

putting to you was on the basis of 54R and you
having their full unfettered operation, but on the
basis we have been discussing, it could, at least,
theoretically apply to such a person - - -

MR GRIFFITH:

I am not really interested with that ....

operation and, Your Honour, underneath it, if a

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person, indeed, is a person who just cannot be a
designated person because they are an Australian
citizen, Your Honour, of course there could be
application to the court an order for release
whatever the Act says.

DEANE J:

No, I did not mean to threaten you again with R

and U.

MR GRIFFITH: Thank you, Your Honour.

DEANE J: So, I was correct in what I said.

MR GRIFFITH: Yes, but we do contend that the Act does have

application both to those in custody at the time it
came into force, and also those who are amenable,
we say, by reason of being "boat people", if the
Court now understand we use that expression, and being detected, are given an identifying number,
which we say is a matter which could be reviewed in the ordinary way under the AD(JR) Act, or whatever,
but if such a person was detected and given an
indentifier number one is at a bit of a loss to see
how such a review would have much success.
If then, we could treat as read our

submissions up to paragraph 2.13, could I save the
time of the - - -

McHUGH J: Could you just help me, Mr Solicitor? Your

submission is that the custody was under 88(1), (2)
or (3), was it not?

MR GRIFFITH: Yes, Your Honour.

McHUGH J:

But you can only keep them in custody for the

purpose of those sections until the departure of
the vessel from its last port of call - - -

MR GRIFFITH: If it ever departs, Your Honour. If it does

not depart you have got to do something else.

McHUGH J: Having done that, where do you - the persons kept

in custody, how does the person then get the right
to go?

MR GRIFFITH:

Your Honour, it is not a right but you may

apply for an entry permit and if that is granted,
in the case of - - -

McHUGH J: Supposing it is refused?

MR GRIFFITH:

Your Honour, if it is refused you will be

deported. You will be put on another vessel or
aircraft.

McHUGH J: Under what provision?

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MR GRIFFITH:

Your Honour, firstly, you could be put on one

under subsection (5) and, subject to confirmation
of my instructions, I suppose the ordinary
deportation provisions of the Act which apply
whether or not you are in custody.

McHUGH J: But the person detained under 88 does not seem to

have any rights to voluntarily go.

MR GRIFFITH:

Your Honour, I think I had this debate with

Justice Brennan before lunch. We submit that it is

so implicit you can always voluntarily go. You do
not have to read a negative inference from not
seeing it in section 88. But we do admit that the
turn-around provision does not fit all that happily
with ships that come one way and do not leave. But
that is really the precipitating factor for this
review of all the legislation. But if a detention
is under section 88, we say it does not cease to be under 8~ because the ship is destroyed and does not
leave.

McHUGH J:

I was just wondering, at one stage, as to whether

or not the person originally put in custody
under 88 may be arrested under 92?

MR GRIFFITH:

It is hard to see why they should be,

Your Honour, if they remain in detention.

McHUGH J: That is right.

MR GRIFFITH:

If they go out in the community then 92 would

seem to be it. So that, Your Honour, if any of
these detained people - I think it is common
knowledge that one vessel was abandoned on the
coast and the people were detained inland, then

obviously they would not be 88 cases. One supposes

they are being dealt with under 92. May I just get
instructions on the deportation point. If the
Court pleases, I am told that people under 88 do

mechanism that is used. For 88 it is 88 but these not get deported, they go under 88(5), that is the accept that they can go voluntary at any time.

GAUDRON J: That tends to suggest all the more that 88 does

not apply in this case.

MR GRIFFITH:

Your Honour makes a suggestion but if and when

the plaintiffs issue or take proceedings on that
point it will be before the court on the particular
facts and.be determined and perhaps come up here on
appeal or removal. But we submit that that is not
a matter presently at issue before the parties in
this Court or, we say, in any other court.

Lim(2)

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BRENNAN J:

We have got to approach this, on your argument,

on the footing that they are in lawful custody at
the time that this Act commenced?

MR GRIFFITH:

I hate to say the Court have got to do

anything, Your Honour, but we say that is the case
before the Court.

BRENNAN J: Yes, that the problem that the Court is faced

with is on the hypothesis that the plaintiffs were
in lawful custody at the time when this Act came
into operation, clause 4B has a valid operation.

MR GRIFFITH:

Of a marginal sort in cutting down the power

in respect of interim orders of courts.

BRENNAN J: Yes.

I suppose my problem is one which arises

on the alternative hypothesis and that is if they
were not in lawful custody at the time when the Act
came into operation, what then is the effect of the
Act?

MR GRIFFITH:

Your Honour, I think I have already sought to

make a submission that from now on their custody is
lawful, whatever it was in the past. Perhaps could
I add one extra thing, Your Honour, it does remain
our first proposition that really the entire Act is

for the abundance of caution. We say it has never
been determined that a court has this interim power
where lawfulness of custody is not in dispute and
our submission made, which we have made to the

Court, is that the Court has no power. It does not

have it under 16(l)(d) or 23 either to order. So
if that submission is correct, Your Honour, the Act
does not add anything. It is just for abundance of caution that makes it clear that the Court does not
have that power.

DEANE J:

I do not want to take you round in a circle and I

think I am possibly doing this, but that, of

course, raises the question: do you say that the
Act only applies to people in lawful custody or do
you say it applies regardless of whether they are
in lawful custody or not because, if you say the
latter, you must make good either that it is valid
in its application to people who are not in lawful
custody or that somehow, not by any process of
severability but by the introduction of a
qualification, one alters the words of the Act to
apply only to people in lawful custody.

MR GRIFFITH:

Your Honour, our primary submission is to take

the latter course and do it the hard way, as it
were, but in the alternative, we would say it has a

narrower operation, but we say it is clear from the
terms of the Act, and we know what Parliament

desired as the end result.

It wanted to ensure

Lim( 2)

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that in no circumstances people either entered or
remained within the community when they were not

holders of an entry permit. So that is the
direction of the law, Your Honour.

DEANE J:

I follow that, but it does seem if that be so that

we either have to face a severability
consideration - severability does not seem the
right word - or alternatively, we have to face the
question of validity of 4B in applying to people
who are not in lawful custody.

MR GRIFFITH: Yes, Your Honour, we say the result is the

same, because the Act intends to impose a - - -

DEANE J:

I follow you say that, but I was just trying to

define the area of the inquiry.

MR GRIFFITH:

Your Honour, we would say as a matter of

principal submission that the aliens power does
enable legislation to provide for persons who are
within the community as aliens, not holders of a
lawful entry permit, may be detained in custody and
that the mechanism for that detention we say is

something for the Parliament to provide. Of course
it involves an element of administrative decision
and exercise of administrative power. That
necessarily must be so in the course of identifying
such persons and providing for the mechanics for
them to be taken into custody.
Section 92 of course is in slightly different

form, because there is a discretionary eleme.nt.
Section 88 also has a discretionary element. It
says, "may be taken in custody"; it does not say,
"must be taken in custody". But we submit that the
result is the same, that it is directly within the
aliens power to provide for a regime for such
detention not as punishment, but for the purpose of
operation of the provisions of the Migration Act,

having regard to the refugees' convention as
appropriate, and proper procedures under that,
having regard to the obligation of natural justice
and the proper application principles of
administrative law that can be enforced by such
person in the court; to get a result, one would
hope, within a reasonable time, meanwhile to
provide for detention and for that person not to be

a member of the community. I think I have said
that sufficiently.
May I hand to the Court contentions dealing with a submission that we submit this is not ad
hominem legislation or ex post facto legislation.
I will not take the Court in detail through this;

it speaks for itself. We have made the point that
the legislation covers every person who comes

Lim( 2)

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within the description during the relevant time
period and we have explained why there is no
analogy with Liyanage because there is a

termination of the period. We say that there is
legislation dealing here with an issue of the
general position of persons - not citizens - but

persons, the generality being those who come here,
we say, without a right to do so in non-scheduled
boats with the intention of entering Australia when
they have no visa or entry permit to do so.
The fourth page of this document I hand to the

Court makes short submissions about - we say the
legislation is not ex post facto, and I think the
argument I have had with the Court is sufficient to
establish the point we make that the legislation

does not do anything on past events; it merely
attaches to circumstances as they are at the time
the Act is passed and then applies according to its
terms.
We would also submit that the legislation is

not discriminatory in any way. There was
originally an insertion in the plaintiffs' material
of a reference to racial discrimination but that
has not been pursued, but we say the fact that it
is directed at a particular class of non-citizens
does not in any way make it a discriminatory law.
Even if it did, our submission would be that the
elements of discrimination are those for the
Parliament to determine and we refer to what
Your Honour Justice Brennan said in Leeth v The
Commonwealth, at paragraph 14 of Your Honour's

unreported judgment of 25 June 1992. We have
already referred to the particular facts which we
say would justify the attention Parliament have
given to that issue.
I refer very briefly to the submissions made

on the alternative basis of my learned friend in
answering question 1 by reference to the

international covenant and the extent to which that
has been enacted as part of Australian law. We
have furnished the Court with our supplementary
submission 2 directed to the issue of arbitrary

detention. My learned friend referred to
paragraph 3.1 of our submissions as not picking up
the reliance placed on article 9 and perhaps by way
of explanation we could say that we were working
from a first draft of the plaintiffs' submissions
which we received that did not refer to article 9,
but now that it has we attach this submission which
we make to say that there has been no breach of
article 9.
Our immediate next submission is that that

does not matter; the Court need not determine

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whether or not there has been a breach of article 9
because our submission is that - of course, the
obvious submission is that the convention is not
part of Australian law and we make that as of
course. But the structure of the Human Rights and
Equal Opportunity Commission Act 1986, of course,
is to confer functions on the Commission under
section 11 and, in particular, if I could refer to
ll(l)(e) and (f):
to examine enactments, and (when requested to
do so by the Minister) proposed enactments,
for the purpose of ascertaining whether the
enactments or proposed enactments, as the case
may be, are, or would be, inconsistent with or
contrary to any human right, and to report to
the Minister -

and also -
(f~ to inquire into any act or practice that
may be inconsistent with or contrary to any
human right.

So the very operation of the Act is not to enact the convention as part of Australian law, but to
set up a commission to report if there are acts
inconsistent with the convention, including the
passing of legislation, Acts of Parliament.
So that if there was any contention - and we

are very anxious to make out the contention that
there is no breach of the convention, but if there
were, the very function of the commission under
section 11(1) of the Human Rights and Equal
Opportunity Commission Act is to report to the
Minister and, if necessary to the Parliament, that
that has occurred so that then Parliament and the
executive would be aware of that and, no doubt,
would be in a position to consider the issue and
what action was appropriate to deal with it.

So that we would submit that whatever - I

think it is a bird my learned friend was trying to
get into the air with this, but it has not got any
wings, or certainly too heavy to fly, and if it got
off the ground, we would submit, it would be a bird
flying in one short circle because whatever problem
there might be in respect of the Act, and we submit
on a clear construction there is one, we submit as
a matter of obvious and necessary statutory
construction, even without section 54T, nothing
asserted as an act in contravention of article 9 of
the convention could in any way dissipate or affect
the clear intended operation of the Division 4B.
If for no other reason, that is stated in

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section 54T, quite specifically, but without that
our submission is the result is the same.
So that, for that reason we do not feel it is

necessary to deal with my learned friend's allusion
to the question of limitations under the external
affairs power, once one has enacted perhaps to the
full extent of a convention, whether or not there
is any power under the external affairs power to
retract a part of that enactment without repealing
the whole; we say that it is a fanciful submission
and one that the Court need not, at least in this
case, address in determining that no argued issue
of breach of the convention could impact in any way
upon the operation of this part of the Migration
Act.

If we could turn then to the question 2. We

have handed to the Court a document,
"Supple~entary -

BRENNAN J:

Mr Solicitor, before you come to that, could I

just ask you one further question. How does one
deal with section 80 of the Acts Interpretation Act in relation to the Migration Amendment Act 1992 and
its application to proceedings then pending before
the Federal Court?

MR GRIFFITH: Well, Your Honour, we say that in this case

the operation of the Act itself is clear.

BRENNAN J:

So that it expresses a contrary intention to

that which is in the Acts Interpretation Act.

MR GRIFFITH:

We say with absolute clarity, Your Honour.

BRENNAN J: Absolute clarity.

MR GRIFFITH: Yes, it intends from the moment of its

operation, Your Honour, to apply to provide the

substantive law by reference to which judicial
power will be exercised from the time of
commencement and, Your Honour, that is reinforced,
of course, by its first provision dealing with anyway, from reading Hansard, that it was desired
to produce the result in all cases, including these
first and second plaintiffs.
Your Honours have our supplementary submission 3 on the Refugees' Convention and

Refugees' Protocol. I will not take the Court
through that, other than to make the submission
that we say that there is no breach of the
convention, but again say the Court need not
determine it. We would refer briefly to the
judgment of Justice Stephen in Simsek v Macphee,

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(1982) 148 CLR 636, particularly pages 643 to 645
and, for example, at page 643 Justice Stephen says:
The ref_erence in the Convention to a right of
representation applies only to those who have
been recognized as possessing refugee status;
what the Committee is concerned with at
present is the anterior question of whether
the applicant is indeed entitled to that
status.

But if we could just refer the Court to our submissions on this general issue of the convention
to say that it is our submission, although it is not relevant for the Court to determine, we say, that there has been no breach of the convention.
Turning to the question itself, of course this

question was stated as one which related to the
claim as put by the plaintiffs in their statement
of claim, but it is our submission that the
question does not relate to any matter in issue, or
which could be regarded as related to being in
issue or which lawfully could be in issue, to be
determined in respect of the plaintiffs'
application intended to lead to admission to
refugee status and the grant of an entry permit and
entry to Australia.
The question is predicated, of course, on the basis that it is only to be answered if the Act is
held invalid. If an assumption made that there is
some parts of those sections which have
difficulties, we would submit that none the less it
is inappropriate for the Court to consider whether
any of the defendants have a legal duty as

expressed in this question. We say, firstly, that
there is presently no application by the plaintiffs to the defendants to consider release from custody. We say there has never been an application to the

defendants to consider their release from custody. There has been an application to consider and grant their application for refugees status, and that was
the issue dealt with by the Federal Court.
We say further we have made our submissions

sufficiently on section 88, that there is no
mechanism under the Act for there to be an
application made by the plaintiffs to the
defendants for release from custody, and we can
point to no provision of the Act under which the
defendants will ever be under a duty to decide
anything which might be determined the plaintiffs'
applications for release from custody.
If there were such an application, well then the first question would be, "Is it an application

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which could be made under the Act?", and then the second question would be, I suppose, for it to be
considered. But the points we attempted to make in
paragraph 1.2 of our submissions my learned friend
took the Court to, really, we say, stop at the
threshold one, is that the only issue before this
Court, in our submission, is whether or not there
is a power in the Federal Court incidental to
having ordered reconsideration of the application
for admission to refugee status, pending the
determination of that by the defendants to order
release into the community. That is the matter
which was before the Federal Court. That is the
matter which has formed the subject-matter of the
writ and that is the matter which is the
subject-matter of question one, in our submission.
No part of that involves an application of the

defendants considering any application for release
from custody and our submission is that the
question for that reason must be regarded as

entirely hypothetical. We also make the point in
paragraph 2 that at the very least we say that the
case has proceeded on section 88 applying. Putting
the plaintiffs' position at the highest, it seems
they are asserting - although that has not been an
issue in proceedings - that their custody, if
anything, is under section 92, or purported to be
under 92.
But, of course, if that is a difference, that is an issue which would have to be determined
before you get to the point of saying is there any
relevant provision in the Act applicable to the
plaintiffs whereby they are entitled to apply for
release from custody and any of the defendants are
obliged to consider that according to the law. necessary predicate, we submit, to consider such a question.

What we do say, and we say that in our last

submission, paragraph 2.13, is that if there were a
relevant decision-making capacity, we submit there
is a difference in principle between the way the
plaintiffs predicate their question to the Court,
namely, "Is there a duty to have regard to these
matters?", to the approach which was indicated by
Your Honour the Chief Justice in Minister for
Aboriginal Affairs and Peko-Wallsend, 162 CLR 24 at
page 40, as to whether or not a decision maker was
able to have regard to the conventional protocol of
such matters.
So an alternative submission would be, if

there were an application for release which was
something that any of the defendants or those

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acting for them were obliged to consider, the only
issue would be whether or not regard might be had,
not whether there was a legal duty to have regard
to it, and we would suppose that a decision maker
at large could have regard generally to the issue
of human rights, civil rights, refugee convention,
as part of the ingredients of making a decision.
And, of course, they would; aspects of humanity
which always are part of the decision-making
process. But we submit that is the converse of the
plaintiffs' submissions that there is a duty. In the intervening paragraphs, paragraphs 2.2
to 2.12, we make the positive case that the
question should be answered no, if answered but we say that for strong reasons it should be answered, yes.
Could I mention to Justice Dawson: I think the

English case that Your Honour was Brind - - -

DAWSON J: It was Brind, yes, thank you, and in that the

proposition I was putting was rejected.

MR GRIFFITH: Yes, and, of course, that was dealing with the

question of whether one regards the law as being
consistent with convention obligations.

DAWSON J:

It also addressed the question of whether, where

there was a discretion, the discretion should be
exercised taking into account international
obligations, and it was held that whilst you were
free to take it into account, you are not obliged
to.

MR GRIFFITH: Yes, thank you, that is what we were going to

say, Your Honour, that that went in the direction
of our submissions in paragraph 2, we say, that the
answer is no, there is not a duty to do so, and
that is obvious for the reasons we state as well as
for the reasons that the House of Lords stated, we

submit, so that we do say to the Court that
although question 2 is one stated as arising out of the plaintiffs' pleas, in fact it does not arise in
any relevant way out of anything where the
plaintiffs have a relevant interest or where there
is any provision of the Act to be availed of. As to what matters a Federal Court judge should have
regard, if it does become a position that there is
the jurisdiction under section 16(l)(d) or
section 23, we submit that is a matter for argument
for that judge to determine, and if the judge gets
it wrong, then the appeal processes will correct
it. If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Shaw.

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MR SHAW:

If the Court pleases. The answer to Your Honour

Justice Deane's question about Department is, I
think, section 19A(3) of the Acts Interpretation
Act.

DEANE J: It takes you part of the way. It does not really,

for the point of view of your argument, do much to
identify the decision maker.

MR SHAW:

No.

Your Honour, apparently wrongly, we thought

that the answer to the question asked by
Your Honour Justice Dawson was Derbyshire County
Council v Times Newspapers.

DAWSON J:

No, it is Brind.

MR SHAW: In that case, there is another one. That is

(1992) 3 All ER 65. It does deal with the
question taking into account international
obligations although the situation is rather
different in England now because of its membership
of the European Community.
As to section 88 of the Migration Act, my

learned friend said very often that the detention
was under that section; that is leaving out
Division 4B. That is not something which we accept or which is accepted for the purposes of the case
stated. Our submission is that all or some of the
plaintiffs are detained under section 92, not
section 88.
My learned friend raised the question of the

possibility of release from section 88 detention.
Release so far as the Court is concerned was
considered and held possible in the case of
Singthong v the Minister, 80 ALR 147, and it is a
decision of His Honour Mr Justice Burchett in the
Federal Court and the relevant part of the decision

starts at page 154, right at the bottom and goes
over for the next few pages.
As to whether release is possible, if the

detention were section 88 detention, in our
submission, contrary to what my learned friend said

it is, and although it is true, as Your Honour
Justice Brennan observed, that there is no
provision in section 92 which parallels the
provisions of section 92(9), the subsections of
section 88, which are relevant, that is (1), (2)
and (3), all say "may be kept in custody", not

must. "May be kept in custody", and the first one
is, in fact, they all substantially are, "May be
kept in such custody as is directed by an

authorized officer". The terms are not exactly the
same but that is what they all amount to.

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It would seem in those circumstances that not only could somebody who is detained under that
section be released if it was decided by an
authorized officer that that was appropriate that
that should happen but the exercise of powers under

that section depends on a positive act. By "a
positive act", I mean that it does not operate as
Division 4B does simply by force of its own
effect.It depends on the existence of some positive
decision to keep people in custody.
Accordingly, in our submission, it does not

follow that if Division 4B withers away section 88
will necessarily take its place, even if it
happened to be the appropriate section. There is
this dispute about whether or not the detention,
leaving out Division 4B, is under section 88 or
section 92.

DEANE J:

Mr Shaw, I am having trouble following how there

can be <lispute. If the detention is under
section 88, an authorized officer has had to give a
certain kind of direction. If it is under
section 92, a prescribed officer has had to make
orders and if those orders have not been made the
person has to be released.

MR SHAW:	Yes.
DEANE J:	You say that they are being held under section 92.

Does that mean you say that the orders under
section 92 have been made, because they have
obviously been held a lot longer than is
permissible without such orders?

MR SHAW:

Your Honour, whether it is section 88 or

section 92 depends on facts. The facts it depends
on are whether or not all or some of the plaintiffs
actually entered Australia before they were placed
in custody.

DEANE J: But I just do not follow. Surely an authorized

officer has made a section 88 order or a prescribed

officer has made a section 92 order. Nobody is
going to have said, "I'm either an authorized or a
prescribed officer and I either order or".

MR SHAW:

No.

DEANE J: Which is it, or is it neither?

MR SHAW:

Your Honour, detention cannot lawfully be under

section 88 if somebody before an order is made has

entered Australia. The position is that our
contention is that all or some of the plaintiffs
did enter Australia before they were detained, so

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that the relevant section is section 92 and not
section 88; but there is a dispute about that.

DEANE J: But if the Commonwealth says they are not under

section 92, presumably it has not made a section 92
order, which means how can you say they have been
held under section 92? It is either section 88 or
nothing, is it not, at this stage?

MR SHAW:

What Your Honour says is correct.

DEANE J: Well, I do not know. There may well be an order

under section 92. I do not know.

MR SHAW:

I should have said, Your Honour, we would say that

the appropriate section is section 92 and not
section 88, but I am not sure what the answer to
Your Honour's precise question is because I was not
thinking of it in precisely the terms Your Honour

was putting it to me. I am informed, Your Honour,
that in-recent times the detention has purported to
be under section 88. At an earlier stage there was
some dispute about the powers under which section

were being used, and one of our claims was, and
still is and has not been determined, that the
detention was, in fact, illegal because the terms
of the various sections had not been complied with.

MASON CJ:	Where was that claim made?
MR SHAW:	It is perhaps that ought to have been in the - I

do not know what one calls it - the court book, I suppose. What I was looking at, Your Honour, was
the application for an order of review, and what I
was doing was paraphrasing the fifth claim, in that
order to review, which is this: "A claim under
section 16(l)(c) of the Administrative Decisions
(Judicial Review) Act (1977), the applicants'
detention at the Cook Point Detention and
Processing Centre, Port Headland in the State of
Western Australia, is illegal." That is not in

there are other claims in similar terms and we relation to all the applicants, I am told, but
could supply those, but those claims certainly have
been made.

DEANE J: But if what you say is correct, on your argument,

some of your clients are not only not being held
under section 92; there is the position where
section 92 contains a statutory direction that they
be released.

MR SHAW:

Yes, Your Honour.

DEANE J: Well, it is all a bit difficult for us to try and

write a judgment.

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MR SHAW: Well, it was simply this, if Your Honour pleases.

The question arose in the course of argument this morning whether or not it was the relevant section
so far as what one should assume would operate if

Division 4B were not valid. The appropriate
section to be referred to or which could be relied
on is section 88 or section 92 and the fact is that
claims have been made that the detention is
illegal; that has not been determined, as I said to
Your Honour Justice Toohey this morning, as have
not the applications for release, because of the
coming into force of Division 4B; and there is a
dispute about whether or not the relevant section
to be applied, assuming one were to be applied,
would be section 92 or section 88, at least in
respect of some.
What we were going on to submit was that if

what has happened, as it apparently has, is that
provisions of Division 4B are inoperative and the
the keeping in custody is now pursuant to
Minister desires one or other - or the Department, whoever is the relevant person - wants to rely for
the purpose of continuing or renewing the custody
on the other provisions of the Act, then section 88
or section 92 will have to be invoked, assuming
them to be appropriate.

TOOHEY J:

Mr Shaw, I had always understood, at least from

the time the case began this morning, from what we
were told, that Division 4B was raised as an
obstacle to the exercise of power by the Federal
Court, either pursuant to section 16(l)(d) of the
AD(JR) Act or section 23 of the Federal Court Act,
to the exercise of power under one or other of
those provisions. Now, that is a case that is
understandable. But it is an entirely different
case to say that Division 4B is an obstacle to an
order by the Federal Court for the release of

someone who is unlawfully in custody.

MR SHAW:

Your Honour, the historical fact of the matter is

that provisions seem to have been enacted - that is
not right, they were enacted - at a time at which
these proceedings had been commenced in the Federal
Court; there had been orders in relation to the
decisions which had already been made and it would
appear, and my learned friend seems to accept, that
they were enacted with in mind ensuring that orders
were not made in those proceedings for release
pursuant to the powers which existed under
section 16(1)(d) of the AD(JR) Act and section 23
of the Federal Court Act.
But to say that that was the first object in

mind in the sense of the first operation of the

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provisions of the division does not mean to say
that that is its only operation.

TOOHEY J:

No, but it has a vital bearing upon the case that

is brought before this Court, does it not?

MR SHAW:

Indeed, it does, but what we say is this, that the

first object of the Act is the historically urgent
object, namely to affect, as we would say, the
discretions available to the Federal Court in the
particular proceedings. But it is clear enough, it
is submitted, that the provisions of the Act were
not confined to those particular proceedings;
indeed, they were intended to relate not only to
those proceedings but to any other proceedings at
all which might be brought by anybody who fell
within the description of a designated person.
It is easiest to see, perhaps, and this is why we concentrated on it first, or maybe because the
learned- juniors were involved in the litigation,
but the first thing they saw as being affected were
the existing proceedings. But the Act is clearly,
it is submitted, intended to go wider than that
because the words apply to all designated persons
who are not confined simply to these plaintiffs, but it goes considerably wider; and they apply,
in our submission, to all courts including this
Court, in any application which may be made to it
in respect of the detention of anybody who is a
designated person.

TOOHEY J:

But when you put the case that way I take it what you are saying is this, that the particular matter

that gave rise to the present proceedings was a

challenge to the power of the Federal Court to
exercise power either under the AD(JR) Act or the
Federal Court Act. But in determining the effect

of Division 4B upon that power, it is relevant to

consider the breadth of the operation of

Division 4B, and if it appears that it goes more

widely than that, that of itself may bring down the

division.

Is that the way the case is put?

MR SHAW: Indeed. That is the way the case is put, yes,

Your Honour. What is said is, as it were, the
provisions of the division are directed to courts
in general in respect of any proceedings.

DEANE J: But that, really, does not answer the problem in

that the Solicitor-General approached his case
argument the way I understood the case against him
to be put and under encouragement from me said,
"Well, in so far as persons not lawfully in custody
are concerned I either have to justify the Act in
relation to them but it does not really matter here
and I would said it is severable." It is now

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appearing that on the case that has been made it is
argued that at least some of the plaintiffs are in
custody under section 92 in circumstances where,
putting to one side 4B, there is a statutory
obligation requiring that they be released
forthwith.
That is not the way I had understood the case was being put but it seems to be, on one approach,
the case that is there. If I did not apprehend the
Solicitor-General's approach he can correct me but
I feel partly responsible for his approach.

MR SHAW:

Your Honour, the aspect of the presentation of the

argument that Your Honour has referred to has
really arisen out of questions asked by Your Honour
and questions asked by Your Honour Justice Brennan
saying, "Well, it is significant in understanding
the effect of Division 4B to look at what provision
of the Act would be applicable if Division 4B did
not exist and to see how that would operate,
assuming for the moment that Division 4B is not
there."
When one is asked those questions and then one goes to section 88 and one goes to section 92, and
when the difference between my learned friend and I
about the relevant section is remembered, then it
appears as I took it - I do not know that we, for
our part, would say by reason of Your Honours'
fault, as Your Honour did - by reason of the
questions that the Court has asked, it has been
made plain in the course of argument that it is
wrong because of the terms of the Act to look at it
as confined in its operation, even although it was
originally directed,as a first step, at these
proceedings which are on foot.
When I say "these proceedings which are on

foot" I mean "these other proceedings which are on
foot", and that in relation to the effect which the

division may have on those proceedings - even if
one confines it to that - it is significant in
examining the constitutional validity of the whole
division to see what is its operation not only in
respect of those proceedings, since one can hardly
sensibly sever those out from all the rest of its
operation since it is so general, and one can see
it has an operation in general which operates on
the powers of courts, not only pursuant to
section 16 and section 23, but otherwise as well.
If I could perhaps put it this way: in the case of outlines of argument, when they are handed
up, it is sometimes said that the outline ought not
inhibit the development of argument in the course

Lim( 2)

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of the case. Well, it was not an outline, exactly,
but that is what has happened, Your Honour.

BRENNAN J:

Mr Shaw, the problem arises in this way, does it

not, that given that the primary object of the
legislature is to affect the proceedings that were
then pending, the legislature has power, given the
appropriate head of power, to change substantive
law so that the decision of the court will be
affected by the changes thus made, if the

legislature does change the substantive law. The
problem therefore arises as to whether 4B

relevantly changes the substantive law. I would
have thought that is at the heart of this problem,
whichever way you approach it.

MR SHAW:

Yes.

BRENNAN J: And therefore, if it be the fact that some of

the plaintiffs did not fall within 88 or 92, but do
fall within 4B, then it follows that 4B has a very
substantial operation upon their rights or
liabilities, and the question then arises, can 4B
do what it purports to do in relation to those
plaintiffs in the way in which it purports to do
it, namely by bringing them within the
classification "designated persons".

MR SHAW:

First of all, Your Honour, one may affect, as it

were, substantive law either directly or by
affecting the remedies available in respect of
whatever rights one has.

BRENNAN J:

I was seeking to draw distinction between them,

because one may say that this remains the
substantive law, but the remedy which flows from it
cannot be given. That might be an inappropriate
attempt to interfere with the exercise of judicial
power, but if there is a change in substantive law,
so that the court applying the law as it then

stands is bound to give a particular decision, it
does not necessarily follow that there is any
interference with judicial power.

MR SHAW: That is so, Your Honour.

BRENNAN J: Well, it is not a question of what the

legislature, as it were, had in mind, but the way
in which they have purported to carry their
objective into operation.

MR SHAW: Indeed, Your Honour.

BRENNAN J: Well then, do we not have to consider the

problem of what 4B does, either in relation to
those who are already in lawful custody or those
who are not?

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MR SHAW:

Yes, Your Honour.

BRENNAN J: Well, thus far I have not understood your

argument to go to the question of the capacity of
4B validly to change the substantive law applicable
to those who would otherwise not be liable to be in
custody.

MR SHAW:

Your Honour, the provisions of the Act obviously

apply to not just the plaintiffs, but to a whole
range of other people - there are not very many,
but there are certainly more than the plaintiffs -
and they have arrived in Australia, up to date at any rate, at a number of different times, and the
terms of the Act apply to them and the plaintiffs,
irrespective of any particular facts which relate to their arrival, so long as they did arrive, and
so long as they fall within the definition of
"designated persons", and that means, so long as
they were on a boat in the territorial sea in the
appropr~ate period, so long as they fulfil the
other three necessary conditions, and so long as
there is an identifier.
Division 4B seems to say that in respect of

all these people, whether they actually entered
Australia or not, whether they validly entered
Australia or not - by that I mean legally entered descriptions, whether or not you are then - by
"then" I mean when the Act comes into operation or,
presumably, when you get the identifier - the Act
will apply and the custody which the Act - that is
to say Division 4B - provides for might then be
justifiable on Division 4B grounds only or on
Division 4B grounds and on some other ground. For
the moment one does not know what it is but all
sort of other grounds; one cannot be sure.
So that the Act operates, in our submission,

without distinguishing at all between the position

of persons who fulfil the description of
"designated person" and whether or not there is any other justification for their being in custody. It
does that by affecting the remedies which are
available to them in courts either by way of
exercise of discretion or, presumably, pursuant to
habeas corpus or whatever it might be.
So that we would submit that what the Act does

do is what Your Honour described, namely seek to
affect remedies available in courts without
affecting rights. In our submission, that is a
usurpation of judicial power.
My learned friend suggested that the fact that

somebody who was subject to detention under

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section 4B might escape it by leaving Australia
meant that the punishment was, as it were,

voluntary or the detention was voluntary. It is
submitted that the fact that it is possible to
escape from a pain or penalty does not destroy the
nature or the quality of something as being a pain
or penalty if it otherwise would.
We refer to the Archie Brown case which is in

(14) 2nd Legal Edition at page 484, and the
relevant passage is at 488 in the first column
which refers to the history of bills of attainder
and bills of pain and penalty and it points out
that historically, some of them permitted the
designated parties to escape the penalty, while
others did not. Archie Brown is the case about
communists being banned from union office on the
ground that they were likely to foment political
strikes. That was held to be a bill of attainder.
My-learned friend said that under the aliens

power or under the migration power one could pass a
general law providing for the detention of all
aliens if one wished, and it may be that one could
pass a law providing in different terms from these
for what was, in effect, all aliens being dealt
with in a particular way. But the fact that the
generality of persons may be dealt with in that way
does not, in our submission, support a law of this
kind as not being a usurpation of judicial power,
and it is, it is submitted, of no real assistance
to say, "Well, you could pass a law providing, for
example, for no bail in murder cases". Maybe you
could, but that would be a law applying generally
to all persons accused of murder without the
elements which, in this case, we say, lead to the
conclusion that there has been a usurpation of
judicial power.
My learned friend referred to the Canadian

case of Alamazoff. That is referred to in his

submissions at page 6 in paragraph 2.9. The dicta
or sentences which he quotes are, in our
submission, inconsistent with the view taken in this Court of the ambit of habeas corpus in the
case of Ex parte Walsh and Johnson; In re Yates,
(1925) 37 CLR 36 and the relevant passage is in the
judgment of Justice Isaacs at page 75 and the
following. If the Court pleases, those were our
submissions in reply.

MASON CJ: Yes, thank you, Mr Shaw. Mr Solicitor, It

occurs to us that you may be at some disadvantage
having regard to the way in which the plaintiffs'
argument has developed and been shaped in reply,
because it now seems that the plaintiffs' case is
presented on a more comprehensive basis than was

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put in-chief. Now, in those circumstances the
Court would be prepared to offer you the
opportunity of putting further submissions to the Court in writing or, if you preferred, the option
of having the case relisted at some later stage for
the purpose of hearing further oral argument from
you?

MR GRIFFITH:

Would the Court permit me to reserve my option

and advise the Court?

MASON CJ: Yes, but I perhaps should also say there is this

outstanding issue as to the legality of the
custody. Fairly obviously, if that issue could be
resolved, it would assist the Court in preparing a
judgment. All I think I should say to you is this:
perhaps it is a matter that you would want to
consider, whether that outstanding issue should be
resolved at this stage.

MR GRIFFITH:

Your Honour, I am not sure of the extent to

which it can be resolved as a matter of fact. So
far as the defendants are concerned, they have
acted throughout on the basis that the detention of
all the plaintiffs is under section 88. They do
not choose and have not relied on section 92.
If three of the plaintiffs assert, as a

relevant matter before this Court, that their
detention under section 88 is unlawful, that would
be an issue of fact and law to determine,

Your Honour. I do not know whether it turns on the
fact of "Have they entered Australia before they
were taken off the boat?", but that would be a
matter of fact, Your Honour. There might be a
matter of construction if they went ashore for a
swim, say, on ..... and got back on the boat, whether
none the less section 88 applied to them. But that
seems to us, Your Honour, to be an issue of fact
that we cannot really advance in this Court.

MASON CJ: At this stage, yes.
TOOHEY J:	It may have to be the subject of a remitter,

depending on the view reached by the Court.

MR GRIFFITH:

Your Honour, if the plaintiffs want that to

remain in issue in this case, we cannot resolve it
by agreement. If the case is for the plaintiffs
that the detention they asserted, not just for
these three plaintiffs but all the plaintiffs, is
unlawful under section 88, it would not be our case
to say that it was lawful under section 92 because
we have not relied on section 92 for the reasons
pointed out.

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Now, if that is the case that is put,

Your Honour, we make the point that whatever was in
applications in the way of alternative claims for
relief, it has never been put as an issue; the
issue was, as we understood it and understood it
agreeing to the case corning to this Court, the one
of whether or not, as a way of interim relief - and
it seemed to us that is how it argued really
through until this morning - it does seem to us,
Your Honour, there is a problem for us in the Court that we would seem to be in a state of prematurity
for the constitutional argument, and we cannot
agree on those underlying facts and circumstances,
Your Honour. If the plaintiffs' primary case is that the detention is unlawful, we would have thought, Your Honour, that is something that should
be sorted out before the case comes back here.
Your Honour, we, in our argument, made it

clear that nothing in this legislation is relied
upon to-exclude in any way the habeas corpus
jurisdiction of this Court and the Chapter III
jurisdiction of this Court, and throughout,

Your Honour, we have regarded the case as one that

did not concern a claim for unlawful attention. So
thank you for the invitation, if Your Honours
please, but I wonder whether it is not appropriate
now or some time in the near future, to address the
issue of whether of not there should be a rernitter
if the plaintiffs truly are raising these issues as
being relevant to their case on the constitutional
point which they wish to put before this Court. We
do not want to stand in their way, but it does seem
to us, Your Honour, there is a false position on
both sides if we have these unspecified statements. My learned friend seemed in his reply to be saying, well, we are saying it is 92. Well, Your Honour,
we have never said it is 92; we say it is 88 or
nothing. And if the plaintiff wanted to have a
case about that, Your Honour, it has had its chance
so far and this is the first we have heard about

it, as a litigation where there is a genuine point
to run, as distinct from a general claim that the
detention is unlawful that has not been pursued.

MASON CJ:

Mr Shaw, do you wish to say anything in response

to what has fallen from the Solicitor?

MR SHAW:	On which subject, Your Honour?
MASON CJ:	On the application that he makes that either now

or at some time later the Court should give
consideration to remitting this issue before
delivering judgment on the question of
constitutional validity.

Lim( 2)

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MR SHAW:

If Your Honour would permit me to speak to my

juniors about that. Your Honour, we are very
concerned about time in the sense that these people
have already been in custody for, now, a long
while.

MASON CJ:

So you do not want a remitter?

MR SHAW:

We do not want a remitter.

What we would prefer

was for the Court to decide all the issues on the
material before them.

MASON CJ: That it can decide on the materials currently

before it?

MR SHAW:

Yes, Your Honour.

MASON CJ: Yes, Mr Solicitor.

MR GRIFFITH:

Yoµr Honour, I think our submission would then

be that the Court should decide the case as it
seemed to be until very late in the day today on
the question of whether this Act does validly
affect the alleged power under section 16(l)(d) and
section 23. That would seem to be the case as it
has proceeded, Your Honour. If then there is a consequence or an issue left open, that would be something that could be addressed by the parties.

MASON CJ: Yes, we will bear that submission in mind,

Mr Solicitor.

MR GRIFFITH: Well, in that case would Your Honours see that

it is not necessary to give me the option of
further argument as part of that?

MASON CJ:

If you wish to put further argument to the Court,

you have that opportunity.

MR GRIFFITH: Thank you, Your Honour. Could we indicate to

the Court that we will indicate by Tuesday whether
we would refer a written submission or further
argument?

MASON CJ: Yes. Subject to that the Court will reserve its

decision in the case.

AT 4.06 PM THE MATTER WAS ADJOURNED SINE DIE

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[1992] HCATrans 225

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing

Jurisdiction

consideration in	the High Court and the form
of the 1986 Act.	Section 3 of the 1986 Act is
in the following	terms:

critical, but it is right to say that the availability of remedies under the (Judicial	suggesting that the answer to this is in any way only in the area of the power of the court to
release them pending determination of an
application that these questions arise?

proper to render it effective.	The judicial
power of which s 71 speaks is not to be

partly that declarations had also been	sought that
they were wrongfully held in custody.	So there was
still another aspect of the case.

whim of an executive officer.	I am not suggesting
what I am putting to you is correct.	I am just

it seems to be open to the Department to give
anybody who satisfies it this identifier.	No

And, in our submission, both in relation to the	the Act which does not apply generally in any way and is restricted arbitrarily in its operation.	first argument we put and in relation to the second
argument we put, the arbitrary operation of the division in respect of this particular defined
class is of great importance.

section 54T suggest it is not so.	So one has the
question of a choice - - -

remains a matter of international concern.	Does
the law then become invalid?

not be answered.	He says that in his submissions
at page 13 in paragraph 4.2.	The second question

something passed by Parliament, to impose that
restriction.	An ordinary example is, the

Your Honour, I am not sure.	I think I know the
case Your Honour is referring to.	We can have a
look at lunch-time.	But what I am putting here,
Your Honour, is that it does not simply rest on the

the Court, but there is a statement in the first of	Salemi's case, in a way, handing a press release to
the press releases that there are going to be
changes dealing with border control, and the Court
will see that the second press release deals specifically with the issue of power of detention
and indicates that there is to be legislation
providing for a uniform power of detention. It is
interesting after the Air Caledonie case that the
press release indicates that Australian citizens
will be required to produce proof of citizenship on entry - that appears in the first page of the first
press release - and then one sees in the second press release a general statement of intended
principle with respect to the detention of persons
who do come here without a legal right to enter or

we know that those people who have a visa may be	lawfully here without an entry permit, which means	it is very hard to say it is not intended to apply
unless somebody was obliged to present a visa.

(Judicial Review) Act to order interim release.	My
learned friend mentions also section 23 of the Federal Court Act here.

providing for release from custody.	We would
submit that the operative - - -

to deal with the possibility that that might be argued and Parliament, Your Honour, we would say as	a matter of substantive law, has made it quite
clear firstly that the custody is to continue if
lawful, as is provided in the Act; and secondly,
that inasmuch as there is defined by other laws of
Parliament powers of courts to make interim orders, those powers are, from the date of commencement of
this part being introduced into the Act,
Division 4B, are not to include powers to deal with
this cust<;>dy.

entitlement on anyone claiming refugee status to	refugee status. That is the ordinary process of law. But we say, Your Honour, there is no
say they should be permitted to enter the country with the possibility of assimilating into the
community to the point that they cannot be found in
the face of a legislative regime which clearly expresses the fact that they are not to do that.

at any time to take that up.	In this case there
was a decision and that was challenged.	We submit

point has been reached, Your Honour, that they may only lawfully stay in Australia if they be granted the appropriate entry permit for permanent stay in	they have been admitted to Australia and that the not in custody; some are, many are not, so I think
the Court can act on that assumption, Your Honour.

particular boat does not leave.	I thought that
Your Honour's question made that assumption.

country and to prescribe conditions under which
they may enter and also to deport them.	Now, this

applications, in circumstances where they have the
capacity to depart earlier if they wish.	In that

the lawfulness of the person's detention.	The
Court, of course, could make an order for

the Manitoba Kings Bench judgment in that case.	We
would refer particularly, but I will not take the
Court to the passages, of the Court of Appeals in both Manitoba, R v Coleman, and the Ontario Court of Appeal, Re Rojas v Reg, where we submit that
there is similar view taken by the Court.

would submit the principles of the Canadian cases	deportation is not imposed as a punishment and we
would apply equally here.

clear in unusual terms.	It wants to get the result
no one enters.	Your Honour, the legislation gives

section, the AD(JR) or Federal Court Act.	Would it
be fair enough to say that?

really no more.	It could have done it in better
language.	It could have done it in more direct
language.	It could have done it in less offensive
language.	One can see that because it would seem

those which have remained undetected until now?	We
submit, Your Honour, that the reach of the aliens
power is the same.	None of those persons is