Minister for Immigration and Multicultural Affairs & Ors v MZAPC

[2024] HCATrans 80

[2024] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P21 of 2024

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Appellant

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Second Appellant

THE RELEVANT OFFICERS ACTING UNDER SECTION 198 OF THE MIGRATION ACT 1958

Third Appellant

and

MZAPC

Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 NOVEMBER 2024, AT 10.04 AM

Copyright in the High Court of Australia

____________________

MR P.D. HERZFELD, SC:   Your Honours, I appear with MR J.G. WHERRETT for the appellants and on behalf of the Attorney‑General of the Commonwealth of Australia, intervening.  (instructed by Australian Government Solicitor)

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR A.F.L. KROHN, MR C.J. TRAN and MS A.R. SAPIENZA for the respondent.  (instructed by Pinnacle Lawyers)

GAGELER CJ:   Yes, thank you, Mr Lenehan.  Mr Herzfeld.

MR HERZFELD:   Thank you, your Honours.  Would your Honours please take up the core appeal book and turn to the reasons of the primary judge, tab 2, page 29.  Your Honours will see in paragraphs 51 and 52 a contrast given by the primary judge between the respondent’s previous unsuccessful application for an interlocutory injunction with that before the primary judge.  Paragraph 51 is the previous application which failed, and that challenged the legal foundation for the duty to remove the respondent from Australia, and then paragraph 52 proceeded on the basis on the undoubted duty to remove the respondent from Australia being forthwith engaged.

Having regard to the further amended notice of contention filed in this matter following the first hearing in August, both grounds for an injunction are now in issue before your Honours, although only the second was in issue before the Full Court below.  We propose to structure our oral submissions to deal with them in turn.  So, turning to the first basis, that raises the question of the effect of the respondent’s request for the exercise by the Minister of personal non‑compellable powers.

As your Honours know, because there is no duty on the part of the Minister to consider the exercise of those powers, they involved the making of two decisions by the Minister.  The first is procedural, that is, to a decision either to consider exercising the power or not to consider exercising the power.  The second is substantive, that is, a decision to exercise the power or not to exercise the power. 

The Court has relevantly considered how these kinds of powers intersect with the duty to remove a person on two previous occasions:  Plaintiff M61 and Plaintiff S4.  In both of those cases, the Minister had made a procedural decision in respect of the person concerned to consider exercising the power.  Can I take your Honours first to Plaintiff M61.

GAGELER CJ:   Just before we do that, Mr Herzfeld – and I am sorry if we are going over ground that I should be familiar with – we are proceeding on the basis that the plaintiff has established a prima facie case for relief, I understand.

MR HERZFELD:   A prima facie case for declaratory relief as to the excess of power on the part of the officers that ‑ ‑ ‑

GAGELER CJ:   Yes.  Has anyone formulated the declaration to which the plaintiff is prima facie entitled?  It would be helpful to me if there was some crystallisation of that.

MR HERZFELD:   I think that is probably a question more for Mr Lenehan than for me.

GAGELER CJ:   Probably.  I would just like to see the target.

MR HERZFELD:   I understand.

GORDON J:   But what do you think it would be?

MR HERZFELD:   We assume it would be formulated in the same way as the declaration in Davis.

GAGELER CJ:   I see.  And then we are proceeding on the basis of the balance of convenience – it favours the grant of the injunction?

MR HERZFELD:   If there is power to make it, yes.

GAGELER CJ:   So, the sole question is power?

MR HERZFELD:   The sole question on our appeal is power.

GAGELER CJ:   Yes.

MR HERZFELD:   On the notice of contention, if it is established that the duty to remove is not engaged, then we accept there was power.

GAGELER CJ:   And the source of the power if – what is the source of the power?

MR HERZFELD:   We obviously say that there is not one ‑ ‑ ‑

GAGELER CJ:   Of course you say that, but if you are wrong what is the source of the power?

MR HERZFELD:   As we understand it, if the duty to remove is not engaged, it is just the ordinary Federal Court’s power to grant an interlocutory injunction to preserve the status quo.  If the duty to remove is engaged, the question of power is very much a matter of controversy.  As we understand, what is put against us is said to be the power of the court to protect its own processes, like a freezing order.  But I will come back to that when I deal with our appeal, because on the notice of contention – which I am going to deal with first – the real question is whether the duty to remove is suspended – I will come back to the exact meaning of that language – by the making of a request for the exercise of one of these powers before a procedural decision has been made.  And that is what I want to turn to now.

GLEESON J:   So, we are proceeding on the basis that there is a prima facie case established in relation to propositions a and b in ground 1 of the further amended notice of contention?

MR HERZFELD:   I will have to find it.  Yes.

GLEESON J:   Thank you.

BEECH‑JONES J:   Mr Herzfeld, there is also – if there is an arguable case that the duty to remove is not engaged, do you accept in those circumstances there is any power to grant an injunction?

MR HERZFELD:   There is a procedural difficulty with that approach.  First of all, I am going to make submissions to your Honour that there is not an arguable case.

BEECH‑JONES J:   I understand that, yes.

MR HERZFELD:   But it would be procedurally very unsatisfactory for your Honours to resolve the point on an arguability basis because it would mean that we have all wasted vast amounts of time and money litigating the question in this Court, and we have done so because of a procedural decision by the respondent to run the case before the Full Court on a basis quite different to the notice of contention now.  It would mean that the Court would not end up resolving, on a final basis, whether the making of a request in fact defers the obligation to remove, and in the absence of resolution by this Court to that question, it is leading to a series of first‑instance judges granting interlocutory injunctions on the basis of arguability.

Further, it would mean that the Court would not reach a conclusion on our appeal about whether an injunction can command officers not to follow the law, and that is the point on which we were granted special leave.  That point only arises at the interlocutory stage, and the Court will then leave uncorrected what, on our submission, is a very egregious expansion – and an incorrect one – by the Federal Court of its power to grant injunctions.

GORDON J:   Is that any more than to say that you want a serious question to be tried?  You want the first limb of the injunction power to be addressed?

MR HERZFELD:   We do, but not simply on an arguability basis.  It would be an unsatisfactory resolution for your Honours to say, we have heard argument from Mr Herzfeld and Mr Lenehan about whether the making of a request means the removal duty is not engaged, we are not going to decide, actually, who is correct, we are just going to decide that is arguable, and that is enough for an interlocutory injunction to be sustained.  And I think that is the question your Honour was ‑ ‑ ‑ 

BEECH‑JONES J:   Not quite.

GORDON J:   No – that is why I asked.

MR HERZFELD:   I may have misunderstood your Honour’s question, I am sorry.

BEECH‑JONES J:   If it is concluded or, as I understand it, the power to remove is qualified where a request has not been lawfully dealt with, and we are not deciding finally whether the request was lawfully dealt with – that was the scenario to which I was directing you.

MR HERZFELD:   I am sorry.  Yes.

BEECH‑JONES J:   Yes.

MR HERZFELD:   But what I was perhaps wrongly anticipating was arguing against your Honours deciding the legal question only on an arguability basis, if I can put it that way.

BEECH‑JONES J:   I understand.

MR HERZFELD:   Can I take your Honours, then, to Plaintiff M61/2010E 243 CLR 319, in the supplementary joint book of authorities, volume 2, tab 6, at page 139. Now, there was a debate in this case about whether the Minister had, in fact, taken the procedural decision to consider exercising the power in respect of a class of persons including the plaintiffs, and the Court concluded that the Minister had taken that procedural decision. Your Honours can see that reflected in the summary at paragraph 9(a). Your Honours will see:

Because the Minister has decided to consider exercising power –

Without going to it, the detailed reason for that factual conclusion was that a ministerial announcement of 29 June 2008 constituted the making of a procedural decision, and the reasoning for that is at paragraphs 37 to 52 and 66 to 70.  So, this was a case where a procedural decision was found to have been made.

It is in that context that the Court reasoned about detention and removal. Can we direct attention to these passages. First, paragraph 23. From here to paragraph 25, the Court is discussing the removal obligation, recognising that someone is detained until they are removed. Their Honours identified at 24 a textual reason for section 198(2) “as permitting detention for those purposes” – in other words, not requiring removal while the processes are being undertaken following the procedural decision. The reasoning given at 25 was that:

Section 198(2)(c) expressly contemplates that –

a person:

covered by 193(1)(c) –

which covered the particular plaintiffs:

could make a valid application for a substantive visa that can be granted –

But 46A meant that no one could make such an application unless there was an exercise of power by the Minister under 46A(2) – that is in the last seven lines:

The fact that s 198(2)(c) contemplates the making of a valid application for a substantive visa . . . suggests strongly that s 198(2) should be read as permitting detention while steps are taken to determine whether the person detained should be permitted to make such an application . . . under s 46A(2).

Then, moving to paragraph 35, the Court, after considering the purposes of the scheme, reached its conclusion that 198(2)(a), the obligation to remove:

“as soon as reasonably practicable” should be read as accommodating the making of inquiries . . . “to enable the Minister . . . to decide whether to allow an application –

That is, under 46A(2).

GORDON J:   What paragraph was that please, Mr Herzfeld?

MR HERZFELD:   Paragraph 35.

GORDON J:   Thank you.

MR HERZFELD:   It:

should be read as accommodating the taking of steps for the purpose of informing the Minister of matters relevant to the possible exercise of power . . . Assuming the relevant steps were taken promptly . . . detention . . . would be lawful.

Then paragraph 36 came on to discuss the premise which I have already identified.  It does not identify whether there has already been an exercise of power under those sections, what is meant by the taking of steps.  The Commonwealth and Minister had submitted that the inquiries that were being made were not taken under either of those provisions but were a non‑statutory exercise of power.  The Court rejected that on the facts, as I have said, in the following paragraphs.  The conclusion of law then reached comes again at paragraph 64.  It was there rejected that:

a statutory power to detain –

which obviously was engaged until removal:

permits . . . detention at the unconstrained discretion of the Executive.

That was said to lie at the heart of the Commonwealth submissions because the Commonwealth submissions were that that was permitted and removal was not required while a person awaited the possibility of an exercise of power under those provisions and while a non‑statutory process was being conducted.  That was rejected in paragraph 65, and one of the reasons it was rejected was that simply resting it on the:

possibility of an exercise of power under –

those provisions was:

a very uncertain basis for determining whether detention is lawful –

It:

should not be adopted . . . Instead, accommodation –

had to:

seek a firmer statutory foundation.

The “firmer statutory foundation” is then explained at paragraph 71.  It rested in the fact that there had there been a procedural decision by the Minister, and the accommodation which was referred to, as your Honours will see in the last five lines:

The accommodation is founded upon the taking of the first step towards the exercise of those statutory powers:  the decision to consider their exercise.  It is not founded upon necessarily uncertain prognostications about whether exercise of the available powers will ever be considered.

Those reasons support the notion that steps taken after a procedural decision by the Minister, including steps to inform the Minister about the exercise of the substantive power, are accommodated by way of a necessary implied exception to the removal obligation.

Once a procedural decision is taken, a substantive decision, which the Minister, on this hypothesis, has decided to consider making, may thereafter be made, and the consequence of that substantive decision may be the removal obligation no longer applies.  And there is therefore necessarily implied an exception to the removal duty to ensure that the favourable substantive decision that the Minister has decided to consider is not rendered moot.

So, the duty to remove is suspended or postponed or deferred for the period during which the consideration that the Minister has decided to undertake in fact takes place.  That consideration, including the steps necessary to inform the Minister needs to be taken promptly, as the court said.  The reason it needs to be taken promptly is no time being specified in the Act for that consideration in the usual way it has to be done within a reasonable time.

If the reasonable time expires, there is no duty on the Minister to make a substantive decision because that would contradict the express terms of the Act.  Rather, it is just that the removal obligation, and hence the detention, is prolonged, and the removal obligation is suspended or postponed or deferred only for a reasonable time after the procedural decision has been made, and after which removal has to be performed.

That analysis is the answer to a hypothetical that was put to me by the Chief Justice at the hearing in August, where a person in detention requests the exercise of one of these powers, and there is a brief to the Minister, and the Minister has the brief sitting on his or her desk, and the Minister will consider it as soon as practicable.  It is also the answer to a question I was asked by Justice Gleeson on the last occasion, whether the Minister can ask an officer not to remove a person while the Minister is considering the person’s request for removal.

In fact, once the Minister has made a decision to consider the request, the obligation – and, indeed, the power – to remove is suspended, or postponed, or deferred for a reasonable time so that the Minister can decide whether to exercise the power or not.  That is Plaintiff M61.  Can I next go to Plaintiff S4, please.

GORDON J:   Will you come back to consider why that form of analysis does not extend to the circumstances of this case, where there has not been a procedural decision made?

MR HERZFELD:   I will, because that is the central issue – so, I will come back to that, I just want to set up these cases first.

GORDON J:   Thank you.

MR HERZFELD:   If your Honours then turn, please, to Plaintiff S4 253 CLR 219, supplementary joint bundle tab 7, page 181. If your Honours turn to paragraph 2, again, your Honours will see from that paragraph that this was another case where the Minister had made a procedural decision to consider the exercise of power. The case actually did not concern the question of how steps taken after a procedural decision were to be accommodated by the removal duty; the point was not the subject of argument between the parties, but, nonetheless, there is dicta on that question in these reasons.

If your Honours turn to paragraph 27, your Honours will see there a description of the purpose of detention “once the Minister decided that he would consider” a case.  It is:

for determining whether to permit a valid application for a visa (by making inquiries –

and so on:

and thereafter . . . either for removal or for the processing of the permitted application.

Then the Court said that: 

Because detention . . . can only be for the purposes identified, the purposes must be pursued and carried into effect as soon as reasonably practicable.

Your Honours will then see, dropping down to paragraph 35, again here a slightly different mode of analysis, that: 

the requirement to remove . . . as soon as reasonably practicable is . . . the leading provision, to which provisions allowing consideration of whether to permit the application . . . are to be understood as subordinate.

So, those powers themselves have to pursued “as soon as reasonably practicable”.  Then, a conclusion, as your Honours will see, that all of those steps have to be done:

as soon as reasonably practicable.  Otherwise, detention will be unlawful. 

As explained by this Court later in AJL20, the reference there to detention becoming unlawful if the steps are not taken as soon as reasonably practicable does not mean that detention become tortious, rather it just means that a lawful non‑citizen can seek mandamus to compel removal.

If your Honours then go to paragraph 58, however, your Honours will see in the last two lines on the page: 

without the Minister deciding whether to permit the plaintiff to make a valid application for a visa, the powers to remove the plaintiff from Australia do not apply and may not be engaged.

That paragraph, consistently with M61, rather supports the notion of the accommodation between the removal duty and the steps taken after a procedural decision reflects, as I explained, an implied exception to the removal duty.

The other passages of dicta in Plaintiff S4 to which I have taken your Honours do support an alternative way of looking at that process of accommodation, namely, that it is simply part of the time encompassed within the notion of “as soon as reasonably practicable”, and that that includes the time taken to take steps after a procedural decision.  As I will explain in a moment, it does not matter for the purposes of this case which form of analysis is adopted, because, on either view, the making of a procedural decision by the Minister is the critical step.  But conceptually, in our submission, the better understanding – which is more consistent with Plaintiff M61 in which the point was argued and decided as part of the ratio of the case – is that there is a necessarily implied exception to the removal obligation, and it is that which permits the taking of steps within a reasonable time.

We say that because to try to fit that notion of accommodation into the words “as soon as reasonably practicable” is just difficult to square with the ordinary meaning of the word “practicable”.  Without going to it, Justice Gummow said in Al‑Kateb at paragraph 121 that in the present context it simply means:

that which is able to be put into practice and which can be effected or accomplished.

Again, without going to them, the decisions of the full Federal Court in M38 and NATB – to which we have referred in our written submissions – explained how reasonable practicability of removal is really directed to practical considerations in terms of the capacity to remove.

The fact that the Minister has taken a procedural decision to consider a person’s case does not mean that removal is impractical in that sense.  They could still, as a matter of practicality, travel on a plane, for instance.  The words “as soon as reasonably practicable” do not, in our submission, explain why the Act does not require removal once the Minister has taken a procedural decision.  The better explanation, consistently with Plaintiff M61, is that there is a necessarily implied exception.  Ultimately, in our submission, that is not going to be determinative in this case, but we were conscious of your Honour the Chief Justice’s request on the last occasion to understand our analysis of the notion of accommodation and that is it.

Can I then move to the critical point about which your Honour Justice Gordon asked me, which is why, on either approach, the making of a procedural decision by the Minister is the critical first step.  I will explain that on the implied exception approach first, and then I will turn to the reasonable practicability removal approach.

Assuming that the accommodation to which Plaintiff M61 refers is by way of an implied exception, the critical point on which Plaintiff M61 in fact turned is that once a procedural decision has been made by the Minister to consider a case, a statutory process is engaged, and it is a statutory process involving a determination by the Minister that he or she wishes to consider the case.  In fact, it was held in Plaintiff M61 at paragraph 71 – to which I took your Honours – that it was that statutory process which provided the foundation for the implication and, hence, the suspension or postponement or deferral of the duty to remove.

In this case, one does not have such a decision by the Minister.  One merely has the making of a request by a person for the exercise of one or other of the non‑compellable powers.  But the mere making of a request is expressly given no legal significance by the Act as each of the powers makes clear that the Minister has no duty to consider exercising them, even when the Minister is requested to do so by a person.

The Court unanimously recognised the significance of a procedural decision in marking the distinction between a process with a basis in the statute and one that is not based in the statute in SZSSJ 259 CLR 180. Would your Honours please take that up. It is in the supplementary joint volume of authorities, volume 2, tab 5, page 107. If your Honours please turn to paragraph 54 in the reasons, your Honours will see here the Court drawing a distinction between processes where the Minister has made a procedural decision, and that means that any subsequent process by the department has a statutory basis, but where the Minister has not made a procedural decision, any process by the Department is not one which has a statutory basis.

Now, I will come back to the Court’s decision in Davis, but nothing in it casts doubt upon the fact that steps taken prior to a procedural decision by the Minister are not steps taken under the statute.  In fact, that was part of the source of the problem in Davis.  The situation of uncertainty prior to any procedural decision by the Minister and the suggestion that that situation supplies a basis for prolonging a person’s detention while the removal duty is suspended or deferred was expressly rejected in Plaintiff M61 in paragraph 71 as a sufficient foundation for the accommodation to which the Court referred. 

It is precisely the making of a procedural decision and that it indicates that the Minister wishes to consider the exercise of a power in respect of a person or a category of persons that takes the matter outside the realm of the uncertain prognostications as to whether the exercise of powers will be considered.  It is the procedural decision that gives sufficient concreteness to the possibility of an exercise of the substantive power that supports the permissibility of a person’s continued detention, and that was part of the ratio of the decision in Plaintiff M61 at paragraph 71.

Furthermore, it is the making of a procedural decision that the Minister wishes to consider exercising the power that then gives content to the length of time for which the removal duty may be postponed or suspended or deferred.  The time is that which is reasonable for the Minister to consider exercising the power, and that will include a reasonable time to provide the Minister with information directed to the Minister’s decision.  So, that is based on the implied exception analysis.

EDELMAN J:   Why is there an implied exception?

MR HERZFELD:   For the reasons in Plaintiff M61.

EDELMAN J:   Yes.  Which are?

MR HERZFELD:   The reconciliation between the fact that the removal obligation will not apply if someone is granted a visa; that there are cases where someone cannot be granted a visa without the exercise of the non‑compellable power; and that to reconcile those, one has to – if there has been a procedural decision, that is a sufficiently concrete basis to say that there may be an exercise of that power, and there is therefore a reasonable time to consider it.

EDELMAN J:   Is that a sort of long‑winded way of saying that – and that is not directed at your submission – it requires a longer explanation, but the underlying basis for the implication is the need or the recognition that the right to have an application considered not be defeated or stultified?

MR HERZFELD:   Not precisely.  It is once the Minister has decided to consider it, not having the right stultified.  But that is the critical distinction, because otherwise ‑ ‑ ‑ 

EDELMAN J:   Why are you adding those first few words?  What do those first few words, the words “once the Minister has decided to consider it”, what do they add to the importance of the underlying basis of the implication?

MR HERZFELD:   They add, as explained in M61, as I said, as part of the ratio of that decision, that one is not dealing simply with an uncertain possibility of an exercise of power, during which time someone’s detention will be prolonged.  And they do so in circumstances where it is the procedural decision that means one is dealing within the Act, and that is why any implication about the operation of the Act is marked by that point.

EDELMAN J:   But that assumes, and M61 assumes, that all of the processes had, to date, been complied with.

MR HERZFELD:   It does not assume that.  It holds that, regardless of anything else, the procedural decision is the thing that marks the beginning of the deferral.  The matter about which your Honour has asked me is simply immaterial to that line of reasoning.

EDELMAN J:   I am not sure I read it as saying “regardless of anything else”.  I am not sure I can read that into the reasons.

MR HERZFELD:   That might – my submission is that there is nothing respecting the earlier process, because the Court said, effectively, the Commonwealth’s argument, which was all about a non‑statutory process, whatever it contained, was simply an insufficient foundation to rest the implication.  So, that is that mode of analysis.

If, alternatively, the accommodation to which Plaintiff M61 refers takes effect through the length of time encompassed by the expression “as soon as reasonably practicable”, it is nonetheless the case that the making of a procedural decision by the Minister is critical.  That is because what constitutes “as soon as reasonably practicable” must be determined in all of the circumstances that are within the statutory scheme relevant to the obligation.

Not all circumstances are relevant in this sense.  For example, the Full Court of the Federal Court explained in NATB that the consequences for a person if they are removed to another country – consequences in the other country – are just not relevant to the question of whether removal is reasonably practicable.  That is because the Act deals with those consequences in other ways by the grant of the protection visa scheme and so on. 

But those consequences – while, in general, part of the circumstances – are not relevant ones for deciding “as soon as reasonably practicable”.  Here, likewise, as we have explained, the Act ascribes significance to the making of a procedural decision by the Minister.  It can thus be accepted as relevant to the content of what is reasonably practicable, after a procedural decision has been made, that steps may need to be taken to inform the Minister directed to making a substantive decision.   But the Act ascribes no legal significance to the mere making of a request; it expressly disclaims that as having legal significance.

Therefore, the mere making of a request is not a matter that is relevant to whether removal is reasonably practicable.  To treat it as relevant would be to inject into the content of reasonable practicability of removal, and hence prolongation of a person’s detention, the necessarily uncertain prognostications to which the Court referred in Plaintiff M61, absent any indication by the Minister that the Minister has any desire at all to consider the exercise of the substantive power.  Again, the rejection of that notion was part of the ratio of the decision in Plaintiff M61. 

GAGELER CJ:   Mr Herzfeld, on any view, we have more than the mere making of a request here, have we not?  We have the making of the request followed by a purported but legally an effected dealing with the request.  Does that make a difference?

MR HERZFELD:   No.  Your Honour is right; I was using “mere making of a request” as a shorthand.  Our submission is that it is the making of a procedural decision to consider, and as I said in answer to questions from his Honour Justice Edelman, however the request was dealt with does not give rise to something that engages the accommodation to which Plaintiff M61 referred. 

EDELMAN J:   Your submission would be exactly the same.  If the request had been made and a rogue departmental official who knew of the Minister’s direction that requests of this nature should be directed to the Minister, looked at the request, and thought, no, I do not think this one should be considered by the Minister, and made a unilateral decision not to refer it to the Minister for consideration, that is the sort of circumstance that would be encompassed within your irrelevancy category. 

MR HERZFELD:   I will come back to the significance of instructions, but immediately, two answers to that.  First of all, if the Minister’s instruction took effect as a procedural decision to consider, which it could do, that would not be so.

EDELMAN J:   A procedural decision to consider requests of this nature, not this particular request.

MR HERZFELD:   Understood.  As soon as we are dealing with a procedural decision to consider, then whether it is a category decision or an individual decision, we are in the territory of accommodation of removal.  In relation to a non‑statutory instruction – which is possible and I will come back to that – the Act is to be construed – and, again, I will show your Honours the authority for this – on the basis that departmental officials will comply with those instructions.  It is not to be construed on the basis of the kind of circumstance about which your Honour questions me.

GORDON J:   The point is, though, that we are in this third category.  The third category we are in is cases where we do not have either the direction to consider, or we have a non‑statutory instruction which addresses this particular request either by kind or specific, and so the question which arises is:  when you have this category which is not subject to either of those two forms of direction or instruction, how is it that a departmental officer can make the decision absent either of those steps having been taken?  That is the lacuna we are in.

MR HERZFELD:   Well, I will deal with that expressly in detail, but the short answer is that the default position under the Act is that unless there is an instruction that the Minister wishes to consider things, there is no obligation to bring them to the Minister’s attention, but I will come back to that.

EDELMAN J:   We may even be in that category that you are conceding is one that the implied exception would apply to.  If we take the case at its highest and assume that the guidelines are invalid, then, taking the guidelines out of the picture, it may be that there is an extant request for cases of this category to be referred to the Minister.

MR HERZFELD:   There is no basis to say, even at a prima facie case level, that the Minister has made a procedural decision in this case.  The guidelines are not suggested, if they were valid, to have taken effect in that way and ‑ ‑ ‑ 

EDELMAN J:   Sorry, a procedural decision as to cases that fall within a category which would include this case.

MR HERZFELD:   The guidelines were invalid as non‑statutory instructions.  They cannot become a statutory decision to consider by being invalid.  So, quite apart from the authority of Plaintiff M61 which, in our submission, in paragraph 71, actually determines that question, on either view of the notion of accommodation, trying to extend a removal obligation and, hence, prolong detention before a procedural decision by the Minister involves intolerable imprecision and uncertainty, and that can be seen in five respects.

The first is that the respondent contends that removal cannot occur until a request is brought to the Minister’s attention.  It is entirely unclear what that means.  It cannot mean that the Minister must read the request, because that would impose a duty contrary to the Act on the Minister to consider the request.  What less than this is required is opaque.  It would seem to be something involving the Minister personally, because these are personal powers, but, for instance, whether it is sufficient that there is brief about the case put on the Minister’s desk, whether the Minister has to be told the brief is there, is entirely unclear.  The respondent’s final reply says it is a duty to tell the Minister that a person has made a request, but even that remains opaque.  What must the Minister be told about the request?  So, that is the first aspect of the intolerable imprecision and uncertainty.

The second aspect is that, precisely because the making of a request is given no significance by the Act, it is unclear, on the respondent’s argument, why removal is only precluded in cases where a person has requested an exercise of power in their favour.  When it comes to the powers in question, cases involving requests are no different, expressly, from any other circumstance.  So, it is unclear, on the respondent’s argument, whether removal would be precluded where a request is made on someone else’s behalf or on behalf of a group of people, perhaps even without the subject’s knowledge.

It is unclear what the respondent’s position is where there is no request at all, but an officer of the Department thinks that the Minister might want to consider a particular case and starts to prepare a brief for the Minister.  On the respondent’s argument, it would seem that simply because an officer is preparing a brief to the Minister about a particular case, the removal of that person would be precluded and their detention prolonged, even though, when the brief is given to the Minister – this being one that the Minister has not said that he wishes to consider at all – the Minister could simply ignore it.  That is the second problem.

The third problem is that the Act does not impose any limit on the number of requests a person could make or which could be made on their behalf.  So, on the respondent’s argument, removal could be stymied by the making of repeat requests, each of which would need to be brought to the attention of the Minister, whatever that may mean.  And if the respondent contends there is some basis for exceptions to their contention, it is entirely unclear on what basis within the Act such exceptions would be recognised.

Fourthly, it is unclear on the respondent’s argument what is to occur after a request is brought to the Minister’s attention, whatever that means.  If the respondent accepts that the person must thereafter be removed as soon as reasonably practicable, it is not apparent what the purpose is of bringing the request to the Minister’s attention.  If the respondent contends that removal is to be yet further delayed to give the Minister an opportunity to decide whether to consider the request, it is unclear for how long.  And in the real world, if removal was attempted without any indication from the Minister, there would inevitably be litigation about it contending that insufficient time had been given to the Minister to consider the request.

So, the reality is that, on the respondent’s approach, to be able to remove unlawful non‑citizens who have made requests to the Minister for intervention, the Minister would have to make a positive procedural decision not to consider a particular request, and that inverts the position under the Act where the Minister has no duty to consider the exercise of these powers at all, whether requested to do so or in any other circumstances.  Indeed, because the respondent’s argument draws a distinction between cases involving requests and those not involving requests, which is a distinction entirely unsupported by the Act, the respondent’s position tends to a consequence where no person can be removed at all, absent a positive procedural decision by the Minister not to consider their case.

The fifth difficulty is that a critical component of the respondent’s position is that the Secretary has an enforceable duty to bring a person’s case to the attention of the Minister where there is a request.  That is a critical component of the respondent’s contention because otherwise a person could not be removed and, hence, could continue to be detained until their request was brought to the Minister’s attention, but there would be no constraint on how long it would take for that to occur.  That is why the respondent is driven to contend for a duty on the part of the Secretary to bring requests to the Minister’s attention.

Now, the respondent identifies no provision of the Act which imposes such a duty.  The respondent is therefore contending for your Honours to recognise the implication of such a duty.  That invites Lord Mersey’s aphorism cited by this Court in Minogue v Victoria that it is a strong thing to read into an Act words which are not there and, in the absence of clear necessity, a wrong thing to do.  There is no clear necessity for the implication of the duty upon which the respondent’s case depends, and that is so for four reasons.

First, as I will show your Honours in a moment, this Court accepted in Davis that it is within the power of the Minister to give a non‑statutory instruction to officers of the Department as to the occasions, if any, on which the Minister wishes to be put in a position to consider making a procedural decision.  Such an instruction can deal with matters such as precisely how the Minister wishes to be briefed – in other words, what does it mean to have the case drawn to the Minister’s attention – as well as the exclusion of things like repeat requests. 

If the Minister gives such an instruction, officers of the Department will follow it as an aspect of the responsible government for which the Constitution provides.  Without going to it, see the discussion on this point of your Honour the Chief Justice and Justice Gordon in Comcare v Banerji at paragraphs 72 and 149 to 150, and see also the discussion in Davis at paragraph 26.

Now, in the light of that ability of the Minister, there is no need to imply an obligation on the Secretary to bring to the Minister’s attention every request or to imply the content of such an obligation because the Act leaves it open for the Minister to decide whether and, if so, how they wish that to occur.  That is the first reason the implied duties are necessary.

Secondly, we have identified in our supplementary written submissions at paragraph 40 many provisions of the Act which expressly impose duties on the Secretary and, had Parliament intended to impose a duty on the Secretary of the kind for which the respondent contends, it is to be expected that it would have been done expressly in that context.

Thirdly, each of the provisions conferring non‑compellable powers on the Minister expressly provides that the Minister is under no duty to consider whether to exercise the power.  It would be incongruous with this to impose a duty on the Secretary compellable by an order for mandamus to ensure that the Minister can perform a function that they have no duty to perform and have given no indication that they wish to even consider performing.  The respondent’s case suggests an implication – a necessary implication in the Act of a duty to bring a request to the Minister’s attention, even though the Minister can under the Act simply ignore it, the Minister having given no indication that they wish to have the case brought to their attention.

Fourthly, in relation to this duty point, the lack of clarity about what it means to bring a request to the Minister’s attention, why the asserted duty only applies in cases of requests when the Act gives requests no special significance, and how the asserted duty accommodates obviously necessary exceptions – for instance, repeat requests.  The lack of clarity about all of those matters are all factors pointing strongly against the existence of such a duty. 

Contrary to a point made in the respondent’s final reply, drawing a distinction between those cases where the Minister has made a procedural decision to consider and those where the Minister has made no such decision, presents no difficulty where the Minister’s procedural decision involves specifying certain criteria for cases the Minister wishes to consider.  Officers may, of course, need to take some time to decide whether a particular case fits within those criteria.  While it is unknown whether a person fits within those criteria, it is therefore unknown whether they can be removed or not, and so removal is not reasonably practicable until that has been determined.  That says nothing at all about deferring removal, absent any procedural decision at all by the Minister. 

EDELMAN J:   Can you just point me very briefly to the paragraphs of the respondent’s submissions where they say there is a duty upon the Minister to consider the request? 

MR HERZFELD:   They do not say that.  They point to the duty on the Secretary to bring the request to the Minister’s attention.  I was not suggesting that they say that in terms for various reasons I have already outlined.  Some of their submissions have a tendency to that conclusion as a matter of substance, but I was not suggesting that they make that submission in terms. 

Can I then deal on this branch of the case with the decisions of this Court and the Full Federal Court in Davis 97 ALJR 214. First, would your Honours turn to the decision of this Court – that is volume 7 of the original bundle of authorities, tab 39. The power in issue in this case was set out in paragraph [10]. It was one of the non-compellable powers. The Minister had issued instructions to the Department about which cases should be referred to the Minister – your Honours can see a reference to that in paragraph [2] of the reasons.

In the joint reasons, at paragraph [14] there is an analysis of the power in question consistent with the analysis that I referred to – that is, that the decision‑making involves two distinct decisions, neither of which the Minister is obliged to take; the procedural and the substantive decision.  Your Honours will also see in paragraph [15] again the recognition that the procedural decision is a step taken under the statute.

There is then a discussion about the ways in which the Minister can permissibly exercise the power, including by reference to classes of case, but this is limited, as explained in paragraph [18] – that is, the Minister could not, in substance, delegate the decision‑making power to make a procedural decision.  And that, as I will show your Honours in a moment, was ultimately the problem with the instructions in this case.

Then your Honours will notice in paragraph [19] there is the reference to the power of the Minister to issue a “non‑statutory instruction”, and that is the capacity to which I referred earlier.  Without going to it, it is recognised also in the reasons of your Honour Justice Edelman at paragraph [169] and the reasons of your Honour Justice Jagot at paragraphs [253] and [312].  So, what paragraphs [18] and [19] together reflect is the point that we made earlier, that it is the making of a procedural decision which demarcates steps taken under the statute and with statutory significance, and steps taken before a procedural decision which are not steps taken under the statute.

If your Honours then jump down to paragraph [29], your Honours will see there the necessary implication of the conferral of the procedural decision‑making capacity personally on the Minister that non‑statutory executive power could not be exercised effectively to do that thing.  And that was the problem with the impugned instructions.  Your Honours will see that in paragraph [38], about halfway through the paragraph:

However, it is impossible to avoid the conclusion –

And the conclusion was that the impugned guidelines, in substance, sought to have, through an exercise of non‑statutory power, officers performing a function which the Act exclusively conferred on the Minister.  We, here, are not dealing with a case such as that.  We are dealing here with a case where the Minister has given no instructions validly effective in law whatever.  And the Court’s reasons in Davis do not deal with such a situation at all.

What the respondent’s submissions amount to is a contention that where there is no instructions, no non‑statutory instructions, every request must be brought to the Minister’s attention, because otherwise the officer who decides not to bring a request to the Minister’s attention is really making a procedural decision which is for the Minister alone, not to consider a request.

GLEESON J:   Mr Herzfeld, I am sorry, I do not understand.  The first ground in ground 1 of the further amended contention is that the departmental officer has assessed against the ministerial guidelines.

MR HERZFELD:   Yes, but those guidelines are the ones which are invalid.  So, this is not a case like Davis, where the – sorry, your Honour is right.  It is a case like Davis in that sense, but not for the argument that we are presently addressing.  The argument we are presently addressing is the contention that while the non‑statutory process is being engaged in, the removal obligation is suspended.  And that is not something which is dealt with in Davis at all.

The way the respondent tries to bring his case or his contention on this ground within Davis is to say that if an officer, where there is no valid instructions from the Minister, does not bring a request to the Minister’s attention, then the officer is in substance making – according to the respondent – a procedural decision not to consider the request.  And that is said to be beyond the power of the officer, for similar reasoning to Davis.

But the flaw in this analysis is that the default position under the Act is that unless the Minister chooses to consider a case, the case need not be considered.  Absent an instruction from the Minister, an officer’s not bringing a request to the Minister’s attention does not involve the officer usurping the Minister’s choice whether to consider the case, it simply involves the officer giving effect to the default position under the Act, where the Minister has chosen not to put in place a mechanism departing from that default position which would allow the Minister to be in a position to consider the case if the Minister wishes to.

BEECH-JONES J:   So, absent any guidelines at all, if the departmental officers threw every request in the bin, no problem?

MR HERZFELD:   Yes, and the Minister has power to remedy, that if the Minister wishes to.  The Minister can give a non-statutory instruction, or the Minister can issue an instruction which takes effect as a first-stage decision, and if the Minister does that ‑ ‑ ‑

EDELMAN J:   Actually, your argument gets even more absurd if you have a situation where the Minister had issued guidelines saying:  I want to see every application, but those guidelines, for some reason, happened to be invalid and the Department then decided to throw every application in the bin – even then, you would say that there is still no problem.

MR HERZFELD:   Your Honour is contemplating, with respect, an absurd situation where guidelines which are on their face valid are nonetheless disobeyed wholesale by the Department.  That is not a realistic ‑ ‑ ‑

EDELMAN J:   I am testing the limits of what seems to be a fairly extreme submission.

MR HERZFELD:   One does not, with respect, properly test a submission by reference to absurd and distorting examples.  This Court has said that on a number of occasions, and with respect, that the circumstance your Honour has posited to me falls into that category.

GORDON J:   Can we step it back a bit?  Instead of suggesting that it is the officer usurping and making the procedural decision itself, the default position is that the Minister “may” consider.  Is not the consequence of your construction that the Minister never gets to consider the “may consider”, and that is not the default position of the Act?

MR HERZFELD:   The consequence is that if the Minister wishes to be in a position to do so, the Minister has an ability to give instructions to bring about that result.

GORDON J:   Here, in this case, that ability has been taken away, on your construction.

MR HERZFELD:   It has not been taken away; it is just that there is no instruction from the Minister to do so, and further, there has been no procedural decision by the Minister which would defer the obligation to remove.  There is no difficulty at all in the operation of this scheme when one recognises that the Minister has a power to make a procedural decision if the Minister wishes to, about a category of case or about an individual case, or the Minister has the facility to give non-statutory instructions.  And all of the difficulties are, therefore, entirely within the capacity of the Minister to control.

STEWARD J:   And consistently with that, the Minister could issue an instruction that says, I do not wish to receive any requests for two years?

MR HERZFELD:   The Minister could do that.

STEWARD J:   I think that was considered in Davis to be valid.

MR HERZFELD:   The Minister could do that – or no requests except certain objective categories.

GORDON J:   What happens if a new category comes to light?  What happens if there is a new fact within the Department that has not been the subject of either the Minister’s consideration or any given ability to issue an instruction.  Instructions do not come from a Minister, whether in a form of statutory or non‑statutory instructions, out of the blue; they come because the Department has gone to him or her and said, first, either there is this new situation and we want to raise it with you or, second, to pick up Justice Steward’s questions, as a matter of pragmatic dealing with a volume of cases, one has to identify for either a period of time or a category of case, a process, I assume the Minister receives and acts upon at least some form of advice or instruction in relation to those matters.  What happens then, on your theory?

MR HERZFELD:   So, two things.  One, the Minister could, if the Minister wished to do so, issue a series of instructions that said:  and I also wish to have put before me any case not falling within those, to deal with the kind of unexpected case.  But, two, nothing that we say stops the Department in its proper discharge of its responsibility of bringing things to the Minister’s attention.  What we are dealing with is not that question, there is no prohibition on the Department, in the proper discharge of its duties, drawing things to the Minister’s attention.

What we are dealing with is the respondent’s contention that if someone makes a request and there is no decision by the Minister that they wish to consider it, nonetheless there is a duty on the part of the Secretary to bring that to the Minister’s attention and until that occurs, that person cannot be removed, which is a much more radical proposition than simply the proper administration of the Act.

EDELMAN J:   You are leaving out the part of the respondent’s submission ‑ ‑ ‑ 

MR HERZFELD:   I am sorry, your Honour, I missed the beginning.

EDELMAN J:   You are leaving out the part, constantly leaving out the part of the respondent’s submission that the guidelines may be invalid.

MR HERZFELD:   Again, on my submission, for the reasons that we have given, it is the procedural decision, which these guidelines do not constitute, which marks the difference between a case where the removal obligation is deferred and where it is not, for the reasons I have already given, and the consequence of the respondent’s submission otherwise are all of the things that I have mentioned.

GAGELER CJ:   Mr Herzfeld, can I step back a little from the argument and put to you the scenario of the Department placing a request before the Minister for a procedural decision, the Minister in fact making a decision.

MR HERZFELD:   A procedural decision.

GAGELER CJ:   Making a procedural decision which is affected by a jurisdictional error – for example, taking into account an irrelevant, impermissible consideration.  Now, if the plaintiff were able to come along to the Federal Court and establish a prima facie case that the Minister’s procedural decision was affected by jurisdictional error and that the balance of convenience favours remaining in the country until a final decision can be made by the court, is it your case that the statute nevertheless requires the removal of the individual?  It must be, I think.

MR HERZFELD:   So, your Honour is contemplating, just for clarity, a procedural decision by the Minister not to consider ‑ ‑ ‑ 

GAGELER CJ:   Correct.

MR HERZFELD:   ‑ ‑ ‑ because otherwise the situation would not arise ‑ ‑ ‑ 

GAGELER CJ:   Yes.

MR HERZFELD:   ‑ ‑ ‑ and a challenge to the validity of that decision ‑ ‑ ‑ 

GAGELER CJ:   Correct, yes.

MR HERZFELD:   ‑ ‑ ‑ like in M61, which could only result in a declaration, because the Minister could simply ignore it.  Yes, that does not suspend the removal obligation.  In the real world, there may be all sorts of reasons why removal is not possible forthwith, but, as your Honour says, the consequence of drawing the line at the making of a procedural decision is that there is no deferral so as to allow the next steps, if there is no procedural decision to consider – and that is just a structural feature of the Act.

GAGELER CJ:   So, it really does not matter whether it is an invalid exercise of executive power by a departmental officer or an invalid exercise of statutory power by the Minister which results in the non‑making of the procedural decision; either way, the duty is required to be performed.

MR HERZFELD:   The duty to remove is required to be performed.  Of course, again, in the real world it might matter whose decision is impugned, but, at the level of the construction of the Act, what your Honour says is correct and follows, for the reasons that we have already pointed out, from the significance for the prolongation of someone’s detention of the concreteness of the foundation provided by a procedural decision and the insufficiency of a foundation for prolonging detention of uncertain prognostications – to pick up the language.

BEECH‑JONES J:   A decision not to consider, you accept, is a “decision” under the Statute.

MR HERZFELD:   Yes.  It was part of the reasoning in Davis.

BEECH‑JONES J:   And is your answer to the Chief Justice’s question that no injunction would issue – does that not run into your argument on the other ground about when the scope – because if the practical outcome of what would be relief, saying go back and make it again, could be a decision to consider ‑ ‑ ‑

MR HERZFELD:   Yes.

BEECH‑JONES J:   ‑ ‑ ‑ you might be into the territory where that might get you an injunction.

MR HERZFELD:   That is the second part of the case.  I was answering the Chief Justice’s question within the framework of the first part of the case ‑ ‑ ‑

BEECH‑JONES J:   I see.

MR HERZFELD:   ‑ ‑ ‑ but what your Honour says is right.  Can I next then turn to the Full Court’s decision, please, in Davis 288 FCR 23 at the supplementary joint book of authorities volume 3, tab 10. The respondent relies, in this decision, on the dicta of Justice Charlesworth for the proposition that there is a duty on the part of officers to bring a request to the Minister’s attention. A key part of her Honour’s reasoning is what appears firstly at paragraphs 259 to 260. Your Honours will see in 259 that her Honour characterised a departmental officer as intercepting a:

request (without lawful authorisation) –

and that amounting:

to a purported exercise of a discretion not to consider the request –

And it said in 260 that:

The legislature could not have contemplated that –

because it:

contemplates that the Minister is to be made aware that an occasion for exercising the procedural power has arisen.

Now, there are a number of problems with that reasoning, in our submission.  The first is that the making of a request has no legal consequence under the Act, and so it is inapt to speak of the request being intercepted.

But, secondly, the Minister, as I have explained, has power to give a non‑statutory instruction as to the occasions, if any, on which the Minister wishes to be put into the position to consider making a procedural decision.  It is entirely within the Minister’s control.  And so, the existence of the Minister’s power to make a procedural decision does not therefore necessarily imply a duty on the part of officers to make the Minister aware of a request for the Minister to exercise that power, because the Minister has the ability to give instructions about when that should be so.

Thirdly, her Honour seemed to contemplate that if the Minister has given an instruction that the Minister does not wish to be in a position to consider the request, there will be no duty in relation to such a request.  Your Honours can see that, first of all, in 262:

In the absence of the Guidelines I consider the duty just identified to be . . . enforceable by a writ of mandamus.

And then, jumping over to 268:

It is the Guidelines that confer the necessary authority to not refer the request.

But that inverts the default position.  It proceeds on the incorrect basis that the Act assumes the Minister is to be put in the position of considering all requests unless the Minister says otherwise.  That is, frankly, a highly unlikely approach to the Act, given the likely number of the requests, the demands on the Minister’s time to be expected and the obviously extraordinary nature of these powers.  It is not to be assumed that the Act takes the approach that all such requests must be put before the Minister unless the Minister says otherwise.

Fourthly, her Honour’s reasons, contrary to what her Honour said, gain no support from a previous decision that her Honour mentioned at paragraph 257, Bedlington v Chong.  Your Honours will see the sentence that her Honour bolded, but what her Honour ignored was the rest of the paragraph, which made it clear that the Full Court was actually offering no support to the conclusion that her Honour reached.

In light of those difficulties, both Justices Besanko and Mortimer expressed reservations about Justice Charlesworth’s reasoning.  If your Honours turn to paragraph 121 – this is in the reasons of Justice Mortimer – at the end of 121, her Honour referred to Justice Charlesworth’s reasons, and in paragraph 122, Justice Mortimer was:

GAGELER CJ:   Can I just go back to that.  You do not deny the utility of the declaration?

MR HERZFELD:   No.

GAGELER CJ:   All right.

MR HERZFELD:   The fourth and final point concerns proposition 9 of the respondent’s oral argument.  I want to just try to clear up any confusion about this.  On this branch of the case, the court has concluded that the obligation to remove the respondent was not deferred by the making of his requests – was not enlarged by the making of his requests.  On this branch of the case, there was at the time that the respondent instituted his proceedings, at the time he sought his injunction – at all of those times, as soon as the Federal Court concludes its proceeding, there was a duty to remove the respondent which was ready for performance.

The only thing that interrupted the performance of that duty was the injunction granted by the primary judge.  That was the premise that the Full Court decided the case upon.  If we are in that territory, there is no question of the duty not being absolute, or the duty accommodating practical considerations, because the premise for this part of the argument is that at a reasonable time – “as soon as reasonably practicable” – has arrived and is ready for performance and is not deferred at all.

In truth, the respondent in those circumstances advanced no oral submissions to your Honours to defend the Full Court’s decision, because all of the submissions ultimately collapsed in fact into the notice of contention ground.  That, with respect, is a very strong indication that if the notice of contention is rejected, our submission that the Full Court was wrong should be accepted. 

Those are the four reply points. 

GAGELER CJ:   Thank you.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow. 

AT 3.03 PM THE MATTER WAS ADJOURNED