Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2023] HCATrans 106

[2023] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M4 of 2023

B e t w e e n -

SOMBEAU NUON

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIEFEL CJ
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 AUGUST 2023, AT 1.32 PM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR N.M. WOOD, SC appears with MR J.R. MURPHY for the applicant.  (instructed by Victoria Legal Aid)

MR R.C. KNOWLES, KC appears with MR A.F. SOLOMON‑BRIDGE and MS K.R. McINNES for the respondent.  (instructed by Sparke Helmore)

KIEFEL CJ:   Yes, Mr Wood.

MR WOOD:   If it please the Court.  This case raises two important questions of construction, one of the law of Victoria, the Children, Youth and Families Act, the question being whether, to quote the Full Court, “retribution and thus punishment” is a permissible purpose of sentencing children and youth, as the Full Court held at 48.  The Commonwealth question under the Migration Act is the definition of imprisonment.  Is it exhaustive, as the applicant contended, or extensive, as the primary judge and the Full Court held?  Put another way, if detention consequent to a conviction is not properly characterised as punitive as per 501(12) and no deeming provision like 501(9) is engaged, is it still imprisonment as per 501(7)(c)?

Both questions are inherently important, having regard to the subject and their consequences, including liberty.  The question concerning the State Act is particularly appropriate because, we submit, it is quite clear that there is tension not only between different judgments of the Victorian Court of Appeal but also now, strangely enough, between the Victorian courts and the Federal Court.  There is also the potential for the resolution of a State question to impact on sentencing and other jurisdictions that have similar bespoke youth sentencing regimes, in particular the Youth Justice Act (Qld) which was adverted to by Justice Kerr in the case called Ahmed v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 557 at [8]‑[15], albeit without resolving the issue.

I will take the two questions in turn.  First, the construction of the CYF Act.  Historically, at common law, courts have had regard to certain purposes in making sentencing decisions.  Veen v The Queen (No. 2) is a typical case cited in that respect reasonably approved in Muldrock v The Queen.  They include protection of society, deterrence both specific and general, punishment in the sense of retribution, and rehabilitation or reform.

Parliaments have, on occasion, seen fit to modify these purposes by statutes – typically, by way of expansion.  We submit that there is a strong argument – in the context of the CYFAct – that Parliament has done so here by limitation.  In particular, it has excluded punishment or retribution as a purpose of sentencing, as well as – as has been established in the Supreme Court – general deterrence and denunciation.

GLEESON J:   So, your argument really centres on the word “punitive” in subsection (12), is that right?

MR WOOD:   Yes.  We need to win on construction of both Acts, and our essential proposition – for the purposes of the Migration Act – is that “punitive detention” in subsection 501(12) means detention for a punitive purpose.  I will elaborate on that in a moment.  If we are right on that, the second link of the argument is concerning the State Act and, we say, in that respect, it is reasonably clear – at least there is a strong argument – that punishment and sense of retribution is not a permissible purpose of sentencing.

In terms of the State Act, I can be more brief, even though it is a question that has great significance, for the reasons I have explained. The strength of the argument is apparent simply by comparing section 5(1) of the adult Sentencing Act1991 which identifies all of the traditional purposes of sentencing, including punishment or retribution, denunciation and specific and general deterrents, on the one hand, and, on the other hand, section 362 of the child CYF Act, which includes some but not all of the traditional purposes of sentencing and, critically, excludes punishment or retribution as well as general deterrents and denunciation, as the Supreme Court has held in other cases.

GLEESON J:   So, if the purpose of detention in this case following on a conviction was not punitive, what do you say the purpose was?

MR WOOD:   It was consistent with the purposes allowed under section 362, which includes, fundamentally, rehabilitation.  There is a long list of purposes identified there, but what is critical to our argument is that those purposes do not include punishment being one of the well‑recognised traditional purposes of sentencing.

KIEFEL CJ:   A rehabilitative purpose does not deny the punitive nature of the detention, though.

MR WOOD:   Not necessarily, but the comparison, as the Court of Appeal held in Minister for Families and Children v Certain Children, is stark.  I do not necessarily need to take the Court to that case, but I will mention a couple of paragraphs.  So, it was not just the comparison of the respective list of purposes in the two Acts that was salient.  It was also, in particular, section 482 of the CYF Act, which concerns the nature or form of custody that has to be established by the Secretary under the Act.

At paragraph 66 of that Court of Appeal judgment – Minister for Families and Children v Certain Children (2016) 51 VR 597 – was the effect of 482 is that young persons are:

entitled to have his/her needs (physical, social, emotional, intellectual, cultural, and spiritual) ‘catered for’ –

That the “form of care” was required to be one which was in the child’s “best interests”.  That was held at 69 to be consistent with the “informing philosophy of the Act”, which was said to be “exemplified by 362(1)”, and the critical paragraph on which we rely is 70, where it was said that:

The contrast with the provisions of the Sentencing Act 1991, applicable to adult offenders, is striking.  There is no mention here of punishment or denunciation.

GLEESON J:   What does it mean when it talks about relative severity of a sentence?

MR WOOD:   The relative severity of a sentence – in other words, there is a hierarchy of sentences, of which detention in a youth justice centre is the highest in the order – the available sentences are all set out in 360.  We do not dispute that the higher one goes up that hierarchy the greater the effect – and in some respects it might be thought the punitive effect on the individual that is the subject of the sentence.  If their liberty is constrained for a long period of time, that is, no doubt, in some respects an unpleasant experience.

But it does not follow that punishment is a purpose for the imposition of that sentence as a matter of the construction of the Act, and indeed we think there is clear support for that proposition in the Court of Appeal judgment that I have just taken the Court to.  There is a range of other judgments – you certainly see in K v The Queen in 2011 held that general deterrence was incompatible with the clear objectives and plain language of 362(1), in the case of The Crown v AM, a 2021 case, it was held that denunciation by the same process of logic is similarly an impermissible purpose ‑ ‑ ‑

GLEESON J:   What about the definition of sentence in subsection (12):

sentence includes any form of determination of the punishment for an offence.

You say that “sentence” has a different meaning in the state legislation?

MR WOOD:   We say that there are two different pieces of legislation – one of the points I wanted to come to is that one of the tricks of this case, I think, is that sometimes the word punishment is used in different senses.  Sometimes, it is used in the sense of picking up the purpose of a sentence, Veen v The Queen being an example, section 5 of the adult Act being illustrative of punishment as a purpose of sentencing. 

Sometimes it is used to describe simply the outcome, in other words, the sentence, the disposition – what was the punishment for the offence?  That ambiguity, or two senses of the word, was recently discussed by the New South Wales Court of Criminal Appeal, a case called Azariv R; Al‑Talebi v R [2021] NSWCCA 199 at 57, but it was also that that distinction is drawn by Justice Middleton, the primary judge in this case at paragraphs 70 to 72, where by reference to dictionary definitions, his Honour identifies one sense of the word punitive in 1a of the dictionary definition as for the purpose of punishment, and in 1b essentially being the outcome, the disposition, the result, the punishment in that sense.

His Honour, ultimately, on that question of the construction of 501(12) of the Migration Act, concluded that punitive detention was apt to pick up the second – in other words, the broader – sense of the word punishment, and that is the sense in which it is used in the definition of sentence, itself in 501(12).

Now, one of the obvious reasons, we submit, why his Honour was wrong to so conclude, and the Full Court was also wrong to agree, is that if that were so, if the word “punitive” and the definition of imprisonment in 501(12) was referred to the outcome, it would be completely otiose, because 501(7)(c), like the other relevant limbs of the character test – so 501(7)(c) read with the definition of sentence in 501(12) will entail that the detention in a facility or institution must be the consequence of the determination of the punishment for an offence.  In that sense, that broad sense of the word “punishment” as referred to in Azari – so putative on Justice Milton’s construction in the definition of imprisonment in 501(12) – would be completely otiose.  It would have no work to do. 

The second reason why the preference for the broad understanding of punitive and the definition of imprisonment is wrong is that it renders provisions like 501(9) otiose.  Parliament has seen fit to deem in certain sentences the consequence of which is detention, to deem them to be taken to be sentenced to a term of imprisonment in circumstances where otherwise it would not be apt to describe the disposition that way – might well be regarded as not apt to describe the disposition resulting in a person having to reside in a drug rehabilitation scheme or in a particular location in order to get across what would otherwise be the limits naturally flowing from the definition of “punitive detention” in 501(12).

Now that very point was elaborated – we submit, was not correctly decided by the Full Court here, but support for our proposition came from a case called Brown where the subject was 501(8) and the deeming effect of 501(8).  The premise for the Full Court’s reasoning in Brown back in the day was that a sentence to periodic detention was not aptly to be described as a sentence to imprisonment and, therefore, that is why the deeming effect of 501(8) would be required.

We submit that there is plainly a live debate and a reasonable argument, both that within the meaning of the Child Act, punishment is not a permissible purpose, but critically for the purposes of the Migration Act, that the word “punitive” in section 501(12) of the definition of “imprisonment” is doing the work of describing “purpose”.  That is also a more natural, textual fish, given that the word “punitive” is being used as an adjective and a qualifier of the word that follows, which is “detention”.

Just briefly coming back to the State Act for a moment before I come back to the Migration Act, it is, of course, true that there are statements in some of the judgments of the Supreme Court that suggest, to the contrary of the position that we are putting, and, in particular, stand in tension with the reasoning of the Court of Appeal in Certain Children.  So, the court below emphasised the observations of Justice of Appeal Beach in Webster v The Queen where his Honour held at 78 and 80 that:

just punishment is also a relevant issue.

And must be “factored in”.  His Honour gave no explanation, however, for how that cohered with section 362, and his Honour’s reasons were given in dissent and find no reflection in the reasons of the majority.  It is true, also, in Moresco in 2018, at paragraph 51, the Court of Appeal observed, in passing, where the issue was not critical that detention in a youth justice centre is:

by its nature, also punitive, but its focus is on the development and rehabilitation of its detainees.

But it is not clear the sense in which the court used the word “punitive” there, noting the two quite distinct senses in which that concept is deployed in different settings.  There was no discussion of section 362(1), and, in any event, it stands at least in stark tension with the observations of the Court of Appeal in Certain Children.  We say that there is a strong argument that punishment is not a permissible purpose of sentencing under the CYF Act.

Now, in terms of the Migration Act, I have made some submissions already for why the word “punitive” is best regarded as being understood as qualifying the concept of detention in the definition there, and qualifying in the sense that it is detention for a punitive purpose, and I have explained that otherwise it would be otiose.

Can I say to the next aspect of the Commonwealth question whether or not the definition there is extensive, as the Minister contends, or exhaustive, as we contend.  We say that the inclusive form of the definition of imprisonment and indeed the definition of sentence is apt to clarify or elucidate the outer boundaries of the root concept identified therein.  It says:

imprisonment includes any form of punitive detention –

Something that is a form of punitive detention that might not meet the traditional description of a prison, so long as it is punitive, falls in.  Likewise with “sentence”:

any form of determination of the punishment for an offence.

That is the clarificatory or elucidative work that the inclusive form of both of those definitions provide.  But there is, we submit, very little to commend the construction that something could be imprisonment or a sentence even in the absence of what the definition supply being the root concept.  In other words, “punitive detention” in the case of imprisonment, or “determination of the punishment for an offence” in the case of sentence.  Indeed, we submit that to go that far, as the Minister does and the court below did, would be productive of uncertainty as to the scope of the concepts. 

It would also be apt to give rise to a degree of absurdity.  If you apply that logic to the definition of the word sentence, it would have the consequence that someone might be sentenced within the meaning of 501(7)(c) even if there has not been the determination of the punishment for an offence, which would appear to admit absurd possibilities like being ordered to be detained by edict of a dictator or autocrat, or something of that like. 

We submit, again at the very least, the position that we have presented, that yes, both of those concepts are elucidative of the root concept, so as to clarify that in the case of imprisonment, for example, you might have a facility not styled as a prison that falls in, but not as extensive of the root concept identified therein. 

We submit, your Honours, that from a purposive perspective it makes sense why the definition of imprisonment would be construed as to find to punitive detention in the sense of detention for a punitive purpose.  Historically, the predecessor to section 501 of the Migration Act was expressly confined to making assessment of a person’s character, which was explained by the Federal Court, in many cases, as meaning their enduring moral qualities.  Obviously, over time, the character test has expanded in many articulated ways.  However, it has done so, we submit, because those additional limbs serve as convenient proxies for identifying when a person is of character concern.

We say that this is a case ripe for debate, in that respect, about whether or not a disposition of a criminal process, the result of which is that a person is required to be detained for a period but in a place that best promotes their best interest and caters for their many needs, is not done, at least expressly, under section 362 in circumstances that admit of punishment or denunciation as purposes.  There is a real question of whether or not to construe the limb of the character test in the way that the Minister is.  That does, indeed, represent an obvious proxy to questions of character, or not. 

We say that one is able to view the statutory scheme coherently on the basis that punitive detention is the root concept.  It is the concept that identifies the convenient proxy and that, on occasion, the Parliament has expanded by deeming‑in certain dispositions to be deemed to be sentences of imprisonment, like the periodic detention provision in subparagraph (8), like the residential drug rehabilitation provision in subparagraph (9), but has not done so with respect to children, which is an outcome that would make sense in light of the well‑recognised body of research concerning the limited psycho‑social maturity of children.

The final point that I wished to make, your Honours, is that contrary to the reasoning of the Full Court below, it does not follow that because section 362 of the CYF Act admits of sentencing a person for purposes including specific deterrents, that punishment or retribution is a permissible purpose by that means of analysis.  This Court, quite recently in a case that I have adverted my friend to, in a case called ABCC v Pattinson (2022) 274 CLR 450, particularly at paragraphs 15 and 17, was looking at civil penalty schemes where the essential ratio of the Court is that in those statutory schemes, deterrence is the only object of the civil penalty regime, but where it has been held, in a number of cases, that retribution and denunciation have no part to play at all.

It simply does not follow, from the proposition, that specific deterrence is a permissible purpose of disposition under 362 of the CYF Act, that it necessarily follows that punishment must be part of that. 

That is just a logically flawed position, in our submission.  For those reasons, we say, these are questions of significance, particularly the question of the construction of the State Act in light of the conflict in authorities and the fundamental effect that it has on the criminal sphere, and that we have a reasonable, indeed, strong argument on construction on both Acts.  For those reasons, in our respectful submission, special leave should be granted.

KIEFEL CJ:   Yes, thank you, Mr Wood.  The Court will adjourn to consider the course that it will take.

AT 1.50 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.55 PM:

KIEFEL CJ:   We need not trouble you, Mr Knowles.  In our view there are insufficient prospects of success in an appeal in this matter.  It is an inappropriate vehicle to resolve any difference of views as between intermediate appellate courts.  Special leave is refused with costs.

The Court will now adjourn until 2.30 pm.

AT 1.56 PM THE MATTER WAS CONCLUDED