NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor

[2023] HCATrans 153

[2023] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S28 of 2023

B e t w e e n -

NZYQ

Plaintiff

and

MINISTER FOR IMMIGRATION CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 NOVEMBER 2023, AT 10.00 AM

Copyright in the High Court of Australia

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MS F.I. GORDON, KC, MR J.S. STELLIOS and MR T.M. WOOD for the plaintiff.  (instructed by Allens)

MR S.P. DONAGHUE, KC, Solicitor-General of the Commonwealth of Australia:   May it please the Court, I appear with MR P.D. HERZFELD, SC, MS Z.C. HEGER and MS A.M. HAMMOND for the defendants.  (instructed by Australian Government Solicitor)

MR P.M. KNOWLES, SC:   May it please the Court, I appear with MS M.F. CARISTO for the Australian Human Rights Commission as amicus curiae.  (instructed by Australian Human Rights Commission)

MS R.C.A. HIGGINS, SC:   May it please the Court, I appear with leave as amici curiae for the Human Rights Law Centre and the Kaldor Centre for International Refugee Law with my learned friends, MR A.M. HOCHROTH, MR J.R. MURPHY and MS K.E.W. BONES.  (instructed by Human Rights Law Centre)

GAGELER CJ:   Mr Lenehan, would it be convenient to start by clearly identifying the factual basis upon which the matter is proceeding? 

MR LENEHAN:   Yes, that was what I was going to do with some introductory remarks about where your Honours are headed.  So, if your Honours have our amended originating application, dated 31 October 2023, and if you look to page 2 of that document, just to identify the relief that we are seeking and how it then fits into the question your Honour the Chief Justice just asked.  So, paragraphs (4) and (5) are prayers for habeas corpus or an order in the nature thereof.  Paragraph (6) is then an alternative:  a mandatory injunction to the same effect.  Paragraph (7)(a) is a declaration.  Your Honours see that that is as at 30 May 2023, and 7(b) is similarly a declaration from that date.  Then paragraphs (8) and (9) are more general declarations as to validity and construction.

Now, 30 May 2023, of course, is the relevant date because, when the special case was first agreed, it was as at that date.  That is then the context for – if your Honours have our supplementary book of materials which contain the amended special case – that the questions of law at page 16 arise.  So, questions (1) and (2) concern past detention as at that date, 30 May 2023.  Questions (3) and (4), then, are detention since that date.  Question (5) – can I note, this is agreed between the parties, your Honours.  The additional words that were added to that question – question (5) – with respect to his detention as at 30 May 2023, were included by accident, and they should be, it is agreed, deleted.

So, the questions then raised two central issues, the construction issue – questions (1) and (3) – and the constitutional issue – questions (2) and (4).  We start with the current state of the law, which is Al‑Kateb, and it stands for these two propositions on the construction issue.  Sections 189 and 196 authorise the detention of a person even if there is no real likelihood or prospect of the person being removed in the “reasonably foreseeable future”, and then on the constitutional issue in that operation, the provisions do not infringe Chapter III.

We accept that we require leave to reopen those propositions, and your Honours have seen that we deal separately in our written submissions – and we will do the same today – with those two aspects.  In doing so, we are accepting that your Honours may, for example, decline to grant leave on construction but grant leave on the constitutional issue, and we also accept that the application of the John’s factors differ slightly as across those two aspects of the case.

GAGELER CJ:   We will not be dealing with reopening as a separate or discrete issue.  You should present the entirety of your argument.

MR LENEHAN:   Yes.  So, Ms Gordon will be addressing the construction issue and she will then address the John’s factors at the conclusion of that point.  And then, I will be presenting the constitutional part of the argument and I will then supplement what she says in respect of the John’s factors at the conclusion of that point.  I understand your Honour’s point, so we will treat that as a conglomerate.  So then, dealing with the facts ‑ ‑ ‑

EDELMAN J:   Just before you do, the questions and your submissions seem to be structured on the premise that the constitutional aspect and the construction aspect are independent of each other.  Is there any part to play, on your submissions, with section 3A of the Migration Act?

MR LENEHAN:   Yes, there is.   So, if your Honours were persuaded by the constitutional submissions, then that would, of course, weigh heavily in favour of the construction for which we contend, so they are interrelated in that way. 

EDELMAN J:   Would that then mean that the question would be answered if that submission were accepted on the construction argument or on the constitutional argument?

MR LENEHAN:   I think the logic of that is that it would be answered on the construction argument, but the construction would be informed in the way that your Honour has just identified by some sort of partial disapplication or reading down of the provisions.

EDELMAN J:   Thank you.

MR LENEHAN:   So, if your Honours then turn back to the special case, again in the supplementary bundle of materials volume 1, can I start with some background which your Honours find at pages 9 and 10.  So, you see there that my client is a Rohingya from Myanmar – this is at paragraphs 1 through to 7.  His precise age is unknown, but it is between 28 and 30 years old – in paragraph 2.  He is not a citizen of Myanmar and he is unable to obtain that citizenship.  He is not a citizen of any other country and he has no travel document.  He is a stateless person.

If your Honours then move over to pages 10 to 11 and paragraphs 8 through to 18, that sets out the circumstances of his arrival in Australia and his criminal offending which your Honours see in paragraph 14.  Can I also ask your Honours to note paragraph 16.  So, since May 2018, he has been in immigration detention.  That is the first day that he was released on parole, which is also the first day that he was eligible for parole.

JAGOT J:   Was he actually released on parole?

MR LENEHAN:   I am sorry, your Honour?

JAGOT J:   Was he actually released?

MR LENEHAN:   No.

JAGOT J:   No, he was just taken.

MR LENEHAN:   Yes.

JAGOT J:   Because he did not apply for – I mean, the parole provisions did not come into effect.

MR LENEHAN:   Yes, that is correct.  The basis of his detention changed, in other words.

JAGOT J:   Yes.

MR LENEHAN:   If your Honours look, then, to page 11, and the top of the page, paragraph 18, you see that he is still in immigration detention.  So, that has been the position for a total of five and a half years.  Then, in paragraph 19, you see that he applied for the visa there referred to while he was still in prison on 27 June 2017.  Next paragraph, some three years later, his application is refused on 30 July.  Now, that date is relevant because your Honours will have seen from our written submissions at paragraph 4, we say that determination meant that his visa application was finally determined as at that date, and that then enlivened the duty of removal under section 198(6), a provision that your Honours are very familiar with and which Ms Gordon will be coming back to address you in some detail.

The first date on which the duty on the Commonwealth Executive arose to remove my client as soon as practicable started well over three years ago.  Now, we do not understand that to be disputed in our friends’ written submissions, but, in any event, if your Honours look back to the special case, and over the page, page 12, and paragraph 27, you see that my client then requested removal on 9 May 2022, and so that enlivened the further duty under section 198(1) of the Act, now over 18 months ago.

Your Honours can see that on 7 February – this is in paragraph 26 of the special case – the Minister refused to consider either the so‑called dispensing power under section 195A or the residence determination power in respect of my client.  From that point – this litigation commences on 4 April 2023, and the special case is then agreed on 30 May 2023.  At least at that time, there were – the parties agree – no viable options for removal identified.  You see that at page 13, and paragraph 31.  However, the Department was, at that date, proposing to make inquiries of Bangladesh and Saudi Arabia – and I will come back to those.  Your Honours should note, also, in particular paragraph 32, which records that:

The Department has never successfully removed a person, who has been convicted of an offence involving sexual offending against a child, to a country other than a country which recognises the person as a citizen.

That is relevant which I come back to the current prospects of removal, which I will do shortly.  If your Honours then look down to the bottom of page 13 and over to 14, and paragraphs 34 to 38, you will see that that sets out the position in relation Myanmar and why the plaintiff cannot be removed there.  Then, at paragraphs 39 through to 41, the position regarding Bangladesh.

That is really the background as to why the Commonwealth proposed to make inquiries of that Country but, also – see paragraph 41 – why those inquiries were very unlikely to bear any fruit.  Your Honours might also note paragraph 40, which refers to a proposal to seek more information from the United Nations High Commissioner for Refugees – I will come back to that – but your Honours might infer from paragraph 39 that the Commonwealth has known since 2018 that my client had family members in Bangladesh but no inquiries appear to have been made to that country – at least, as at 30 May 2023, where you see recorded in 40, the intention to undertake those inquiries referred to.

Over the page on 15 and paragraphs 42 through to 44 you see there are a similar set of facts recorded as regards Saudi Arabia, and then paragraph 44, essentially the same conclusion regarding the prospects to removal to that country, and again, paragraph 43 you see there is a proposal as at 30 May 2023 to see further information from the UNHCR.  That analysis then leads down to paragraph 45, which was the fact originally agreed when the special case was first agreed.  That is, as at 30 May 2023 my client could not be removed, and then:

(b)there was no real likelihood or prospect of the Plaintiff being removed from Australia in the reasonably foreseeable future –

(c)as a matter of reasonable practicability, it was unlikely that the Plaintiff would be removed from Australia in the foreseeable future.

I will come back ‑ ‑ ‑ 

GAGELER CJ:   This may be a matter of just a verbal formula, but what is the difference between (b) and (c)?

MR LENEHAN:   Your Honour, I was going to come back and address that in a moment by reference to the authorities.  We say, really no difference.  They are just different identifications of the facts and the authorities, but ultimately the question is the same, and I wanted to show you Al‑Kateb and Al Khafaji to show you how the Court has dealt with that in the past.

GORDON J:   To state the obvious, the distinction between (a), (b) and (c) is that (a) is dealing with the present, i.e. as at now, and (b) and (c) are dealing with the future.

MR LENEHAN:   Yes, that is exactly so.  So, there is a degree of future‑looking, and that has been expressed in different ways in the authorities, but the differences, we say, are slim and ultimately should not concern your Honours.

GORDON J:   Which is the view which was reached by Chief Justice Mortimer in Sami.

MR LENEHAN:   It is.  Your Honour is, as usual, ahead of me.

STEWARD J:   Can I ask, Mr Lenehan, do we take it that there is no agreement about whether the matters stated at paragraph 45 continue to exist today?

MR LENEHAN:   I think that is absolutely right, your Honour.

STEWARD J:   So, what are we to do?  Do we need to make findings of fact based upon the affidavit materials or ‑ ‑ ‑

MR LENEHAN:   Yes, that is what I am going to be inviting your Honours to do. 

STEWARD J:   You will tell us what facts you want us to draw?

MR LENEHAN:   Yes, I am about to.

STEWARD J:   Do I take it that that fact-finding exercise is necessary to answer questions (3) and (4)?

MR LENEHAN:   Yes.

STEWARD J:   But not 1 and (2)?

MR LENEHAN:   No, that is correct.

STEWARD J:   Thank you. 

MR LENEHAN:   Just to make this crystal clear, we, of course, seek a declaration as at the May date.  Your Honours are very familiar, see Unions (No 3), Plaintiff M68, that there is utility in that sort of declaration, and declarations in respect of past declaration of liberties in the special case.  So, even if something different happens and my client is permitted to be removed to the US, we would say that we are entitled to that, for declaratory relief, in any event.

Now, to answer more directly your Honour Chief Justice Gageler’s question, we say the ultimate factual finding recorded in the special case in 45 is equivalent to the finding that was made in Al-Kateb.  Can I invite your Honours to turn up that authority for the first time today – it is in volume 3, tab 14.  When your Honours have it can I invite your Honours to look to the reasons of Justice Gummow at page 603 of the report or 447 of the joint bundle, and paragraph 105.  His Honour there sets out the factual finding made by Justice von Doussa.  We would emphasise the first sentence of that finding, where his Honour accepts that:

the possibility of removal in the future remained, and officers of [the Department] and the Minister were continuing to make inquiries.

And further:

I am not satisfied that [Department] officers, including the second respondent, are not taking all reasonable steps to secure the removal from Australia of the [appellant].  However, I consider the evidence does establish that removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future.

So, that is the 45(b) formulation.  Can I just note, as a side point, we have included the decision of Justice von Doussa in the additional authorities that we have provided to the Court.  I do not need to take your Honours to it, but it is SHDB and that finding that Justice Gummow extracts is at paragraph 9 of that decision, when your Honours come to look at it.  Now, your Honours know, if you go back to the reasons of Chief Justice Gleeson, at paragraph 3, which is 416 in the joint bundle or 572 of the report.  His Honour says, referring to Al Masri, that a way of characterising that factual finding is that “the purpose of removal” is “incapable of fulfilment”, and that is what we say is really the ultimate legal inquiry.

So, I am separating there the sort of findings of fact that you see recorded in the cases and reflected in paragraph 45.  But that, we say, for both construction purposes and the constitutional question, is what engages the relevant constraint.  In putting it that way, his Honour is clearly not saying that removal will never be possible.  You see that on the same page in paragraph 1, towards the top of page 572 of the report:

There are, however, exceptional cases, where a visa application has been determined adversely to an alien, or an alien has requested removal, but removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future.

If your Honours then turn to – continuing that theme – paragraph 13 in 575 of the report, you will see in the middle of that paragraph his Honour accepts a submission that was made by Mr Bennett pointing out that:

international circumstances change, sometimes rapidly and unpredictably, and that it will rarely, if ever, be possible to say that removal will never become practicable.

Then a similar point appears at paragraph 18, which is 576 of the report, and again, about two‑thirds of the way through that paragraph:

It cannot be said that it will never be reasonably practicable to remove him.  The primary purpose of his detention is in suspense, but it has not been made permanently unattainable.

So, clearly contemplating that things may change, but as things stand, not capable of fulfilment in the way that his Honour identifies.

GORDON J:   Can I just ask, that is incapable of fulfilment at two points, now and in the future?

MR LENEHAN:   Yes, yes.  Can I just direct your Honours to the reasoning of the other judges in the minority and how they approached this factual question.  So, first Justice Gummow at page 608 at paragraph 122, and we say that is a similar idea – this is the first sentence:

If the stage has been reached that the appellant cannot be removed from Australia and as a matter of reasonable practicability is unlikely to be removed –

that is when his Honour’s constraint arises.  Then Justice Kirby, your Honours find at page 615, or 459 of the joint bundle, and it is paragraph 145, and the first part of that paragraph records the factual findings made by Justice Von Doussa, and then:

As a matter of reasonable practicality, therefore, it is proper to infer that he will be unlikely to be removed in the –

reasonably:

foreseeable future.

Can I test your Honours’ patience a little by also asking you to look to the companion case, that is the case of Al Khafaji, that is in volume 4 of the joint bundle at tab 26, and it is 1315 is where the decision starts.  Can I ask your Honours to look to, in the reasons of Justice Gummow, paragraph 16, which is 671 of the report or 1322 of the joint bundle, and his Honour there sets out the reasoning of Justice Mansfield in that case and there are two passages there.  You see the first passage:

“I find that the removal of [the respondent] from Australia is not ‘reasonably practicable’ because there is not at present any real prospect of [the defendant] being removed from Australia in the reasonably foreseeable future.

Your Honours should note the second passage that is extracted there, where his Honour at about a third of the way through that passage says:

I accept the director’s evidence that ‘with persistence’ there is some prospect of [the respondent] being successfully removed from Australia to a third country, possibly including Syria, after ‘protracted’ steps are taken, but the period of time over which those steps may be taken – assuming, which is by no means clean that they are ultimately successful – is indefinite and is certainly not of short compass.  There is no material to suggest [the respondent’s] removal from Australia will probably or might necessarily be effected within a time span of (say) several months.

That factual position was the basis on which his Honour then makes the finding that you see extracted in the first part of the passage.  Now, if I can ask your Honours to go back to the reasons of Chief Justice Gleeson at paragraphs 1 and 2, and page 667 of the report, you will see that his Honour is obviously treating that finding as a basis for reaching a similar conclusion to which he reached in Al‑Kateb, and you see the same approach, going back to Justice Gummow but a little further on in his reasons, at page 673 and paragraph 22, where he says:

The findings of Mansfield J set out earlier in these reasons lead to the conclusion that ss 198 and 196 no longer mandated the continuing detention of the respondent.

And then you see a similar conclusion by Justice Kirby at paragraph 25 on that same page.  We take from those cases that there is no, I will call it, talismanic magic to the various formulations of the circumstances which enliven the statutory and constitutional limits which were argued for in those cases.  They are, as I said before, just differing characterisations of the facts as found directed to the ultimate legal enquiry, which, as I have said before, is really whether removal is reasonably capable of being achieved or, Chief Justice Gleeson’s term, capable of fulfilment.

EDELMAN J:   It does not mean capable of fulfilment literally, because one just does not know that.

MR LENEHAN:   Yes.

EDELMAN J:   Is it any different from the very‑rich vein of jurisprudence in relation to loss of a chance in the law or torts, where many cases have said that there needs to be a real chance that is something that is more than just speculative, and “speculative” would just be speculating on possibilities that might exist, but one does not whether they would eventuate or not.

MR LENEHAN:   Yes, your Honour, I think I can accept that it falls within that same general area of inquiry.

EDELMAN J:   And one sees the same sort of language that is used all the way through those cases in different verbal formulae.

MR LENEHAN:   Yes.  The Court is obviously grappling in a familiar way with things that may or may not come to pass. 

GAGELER CJ:   But there is a difference between what is likely to come to pass or not come to pass and what might come to pass.  Some of these formulae skate between those two.  It may not matter for the purpose of this inquiry, it may not matter for the purpose of your case, but it may matter for the way in which any legal principle is formulated.

MR LENEHAN:   Yes, and I do not propose to trespass on her territory, but your Honour’s will have seen that our friend, Ms Higgins, proposes to address your Honours in more detail on that.

GORDON J:   Just so I understand, in Sami the Commonwealth put forward a test which you have seem to have adopted in your submissions.

MR LENEHAN:   Yes, which we said was sufficient for our case.  Yes.

GORDON J:   And Ms Higgins adopts what she accepts is a lower threshold, which is what you put in Sami.  I just want to be clear, is it the position that you – I could not quite work out from your outline, what is your position now on the test you propound?

MR LENEHAN:   Your Honour, we do say that the ultimate legal test is that that I have identified:  is removal reasonably capable of being fulfilled?  So, looking at that ultimate purposive point.  To the extent that we need it on the further facts that have emerged, we would embrace what Ms Higgins puts in terms of the lower threshold and likely which ‑ ‑ ‑

EDELMAN J:   When you say “lower threshold”, a higher threshold for the Commonwealth?

MR LENEHAN:   Yes, that is so.

GAGELER CJ:   One very simply way of putting it would be to ask:  is removal likely in the recently foreseeable future?

MR LENEHAN:   Yes, that comes close to Justice Gummow’s formulation in Al‑Kateb.  That is so.

GORDON J:   Well, he does not use the word “reasonably foreseeable future”, or Justice Kirby did not.  He just had “foreseeable future”.  So, this is why I just want to know exactly what it is that you propound as your test.  At some point it would be useful, Mr Lenehan, from my perspective.

MR LENEHAN:   Yes.  Can I consider that and come back to your Honours on that point?

GLEESON J:   Perhaps I could ask a question as well.  My understanding is that it is sufficient for you, and perhaps you are putting a very low test which is simply that there are other countries in the world, and it is a logical possibility that, at some point in time, one of those countries might accept your client.  So, there is actually no factual foundation for the possibility beyond the actual existence of other countries in the world.

MR LENEHAN:   Yes, which is the same position, of course, that Justice Mansfield averts to in Al Khafaji.  So, we do that is entirely sufficient for our purposes.

The upshot about – and I will refer to your Honour Justice Gordon with the precision that your Honour has rightly asked for – is that as at 30 May 2023, my client’s position was analogous, we say, to the position of Mr Al‑Kateb and Mr Al Khafaji.  That meant, in terms of what we say is the test for the enlivening of the two constraints, that his removal was not reasonably capable of being achieved.  So, it is in those circumstances that we say as at 30 May 2023, that his detention was not authorised by the statute as a matter of either construction – construction in the way your Honour Justice Edelman has identified, that is by reference to the constitutional constraints – or as a matter of constitutional law.  So, that is the past.

Can I then turn to the present factual situation and picking up your Honour Justice Steward’s inquiry.  The starting point is the fact as at 30 May 2023 in paragraph 45, and we then ask rhetorically what has changed.  Now, given this is a habeas case, we say the agreement as to the factual position as at 30 May 2023 discharges the evidentiary onus that we bear to put the lawfulness of detention in issue.  On one view, it is then for the Commonwealth to explain why the events that have occurred since that time mean that as at today, paragraph 45 does not remain the position.

Your Honours have obviously read Sami.  We say that is the approach, which Justice Mortimer suggested was the correct approach at paragraph 36 to 41 of Sami.  But if the burden falls on us to explain why it is that that remains the position, we say the following.  If your Honours can take up again the book of further supplementary materials and turn to page 85, which is one of the exhibits to Mr Stephens’ affidavit, you will see this is an email which sets out the position as at 12 September 2023 ‑ ‑ ‑

EDELMAN J:   So, Mr Lenehan, for those of us that are working electronically, could you just let us know of the affidavits of Mr Stephens it is that you are referring to?

MR LENEHAN:   Sorry, your Honour, yes.  It is the 31 October 2023 affidavit, which is in the book of further materials, tab 2.

GLEESON J:   The exhibit seems to refer to swearing the affidavit on 26 October.  I am just looking at page 85.

MR LENEHAN:   I am so sorry, your Honour.  Your Honour is right.

GORDON J:   The 12 September email is that exhibit, though, I think.

MR LENEHAN:   It is.  It is MS26.  Can I ask, do your Honours all have it in one form or another?  So, this is an email of 12 September 2023.  It is useful because it sets out the position, as at that date.  In the book of further materials, you see that on page 87.  This is an email from a person within the Department to support engagement with Ministers – that is at the bottom of page 86.  On page 87, you will see that there is a reference to the “status” of these proceedings.  Then, the author sets out engagement with Bangladesh and Saudi Arabia.  By this time – and your Honours see that Bangladesh has confirmed that a person in my client’s position has “no right to enter Bangladesh”, but the Department is still – this is the second open, I will call it, dot point preparing another approach.  Then, next dot point:

The Department has also had recent engagement with Saudi Arabian officials –

and your Honours see, in the next dot point, they have:

affirmed, in unambiguous terms, that they were not interested in accepting any individuals with his broad circumstances.

Then, a few points down:

Importantly there is however no real prospect or likelihood of . . . being removed to Bangladesh or Saudi Arabia.

Pausing there, none of this is particularly surprising.  It just confirms the position that was anticipated as at 30 May 2023, as your Honours saw before.  We then see a further development – this is the last one before the redactions:

The Department is also preparing to approach officials from 5‑eyes countries to determine the possibility of resettling –

the plaintiff.  There is then a series of redactions.  Then, on page 88 – can I just inquire, your Honour Justice Edelman, am I using page references that your Honour ‑ ‑ ‑

EDELMAN J:   Yes, that is fine.  Thank you.

MR LENEHAN:   So, you then see reference to the scheduling of this hearing and then further detail about Bangladesh and Saudi Arabia and details of why the person has expressed the view that they do on page 87.  Then, page 89, it is reiterated again – this is about the third dot point on the page:

there is no real prospect or likelihood of . . . being removed to Saudi Arabia.

Then, the approach to Five Eyes countries being contemplated and then a large series of redactions.  So, based on all of that, we say that your Honours can comfortably infer that by 12 September, nothing had happened that had any real bearing on the correctness of the fact that your Honours have in paragraph 45 of the special case.  If anything, we say the position is clearer in the sense that the responses from Bangladesh and Saudi Arabia were as anticipated all along – that is, no. 

GLEESON J:   What, if anything, can we draw from the fact that approaches have not previously been made to Five Eyes countries?

MR LENEHAN:   Your Honour, that reflects a view by our friends’ instructors that those approaches were unlikely to be successful, we would say.

STEWARD J:   So, just to make it clearer, as at 12 September, the three what were agreed facts at paragraph 45 persist?

MR LENEHAN:   We say they do, your Honour, yes.

STEWARD J:   Yes.  So, they are the facts you would have us make at that stage?

MR LENEHAN:   Yes.

STEWARD J:   Is there any evidence of any attempts to remove him prior to these inquiries you have just taken us to?  So, were there attempts made in 2018, 2019 and so on?

MR LENEHAN:   Your Honour, I am told not.

STEWARD J:   So, all of this is fairly recent?

MR LENEHAN:   Yes.

STEWARD J:   All right.  Thank you.

GLEESON J:   Do we infer anything from the lack of any attempt?

MR LENEHAN:   Well, the same point, your Honour, that it is unlikely to be met with success.  The employees of our friends obvious have significant experience in this area, they make the judgments that they do about the prospects of removal, and what they do reflects those views.

So, I get to the September date and then your Honours see that as at that time under the shadow of this litigation – and it appears under the direction of Ministers.  Just to give your Honours the reference to where you find the intervention of the Ministers, that is in volume 2 of the supplementary book and at 527, which is the affidavit of Mr Gavin.  But if your Honours would then move to page 134 of the first volume of the supplementary book, you will see that idea is then put in motion, I will call it, on 27 September with an email from Niall – you see this on 134 and 135 of the supplementary book – to RDs, which we understand means regional directors.  And if your Honours look on page 135 you will see a number of things recorded.  So, there is a brief outline of the case and you will note – I am sorry, your Honours are still getting there.

So, under the heading “Brief outline of the case”, but it is significant that your Honours see there “(For your eyes only)”.  There is some description of the background and some description of my client’s criminal offending and sentencing.  We ask your Honours to infer from the words “for your eyes only” that this is not for communication to the Five Eyes partners.  What is communicated to the Five Eyes partners appears in a document headed “Talking Points”, which I will take your Honours to in a moment.  There is also a brief outline of the Department’s actions so far which at least partly answers your Honour Justice Steward’s question before.

If your Honours then move down to “Approaches to 5EYES Counterparts” you see the point that I made before:

Attached are TPs that outline the background of the individual, the reason for approaching your counterpart/s and potential privacy sensitivities that may be raised.  Please note, at this stage, we are unable to provide personal details on the individual.

There is then a request, further down the page, that the approach be “made urgently”, and by no later than the 2 October.  Can I note that that date is one day before the Commonwealth’s submissions were due to be filed in this proceeding.  Over the page – or a few pages, on 137, you see the talking points, and you see in even more anodyne terms, this is about the third dot point, the reference to my client’s criminal history.  So, the RDs are to inform the Five Eyes partners that the individual has a criminal background.  Nothing more, not even the serious crime reference, which your Honours see in the email, and nothing about the length of sentence.  The intention is to:

Seek advice on the country’s willingness to consider accepting this individual – would current policies and/or visa settings enable this?

Then, if your Honours move forward in the book to 139, you see that some responses start to be received.  The first response is 28 September 2023, this is an email relaying what comes back from the United Kingdom Home Office and indicating that they were not minded to accept the individual.  Then a few pages on, 143, you will see there is an initial doubtful response from the New Zealand Government, and then that doubt is confirmed a few pages on, at 147, in the email dated 29 September, “Gday Niall”, and you see, 147 to 148:

there are no special humanitarian pathways available in the New Zealand system which would fit the circumstances of this individual –

et cetera, and so, as I understand the facts, would not encompass this person.  Then, a few pages on, 151, you see a negative response from Canada:

In Post’s experience this response –

which is attached:

is as close to a ‘no’ as we are likely to receive.

Then, finally we get to the email that the Commonwealth hangs its hat on, which is at 154.  This is an internal email recording what has resulted from the approach to the United States.

You will see that the author has spoken to someone who we understand to be a person in the US State Department.  They are seeking further information and are:

happy to “have –

what is described as:

a hard look” at the case –

But immediately following that, they advise:

They’d need to know more detail about the criminal issue –

and your Honours have already seen that the only information that they had was very slight about that issue:

They’d need to confer with DHS and USCIS –

That is the Department of Homeland Security and the US Customs and Immigration Service.  If they “wanted to progress” the matter, that:

They’d likely need to receive the case via UNHCR or US Embassy in Canberra –

and then seek an interview with my client.  Now, further information is then provided to the State Department on 11 October, your Honours have that document at page 164, and it is only at that time – see the heading “Criminal History” – that the full details of my client’s offending are revealed to the United States.  Then, over a few pages to 167 ‑ ‑ ‑

STEWARD J:   Sorry, what was the date of this document, sorry, Mr Lenehan?

MR LENEHAN:   Your Honour, it is provided on 11 October.  Your Honours see that from Mr Stephens’ affidavit.

STEWARD J:   Yes, I see.

MR LENEHAN:   So, I was then at page 167, and it is the email that appears a little down the page, 17 October 2023, and the person in the State Department says that they:

have reviewed the information and consulted with DHS colleagues.

But:

I still need to talk with the Australia desk here at State before getting back to you.

From there, your Honours move to the affidavit that I think your Honours received yesterday, that is an affidavit of Ms Lenagh‑Maguire, and it is at page 5 of that affidavit, an email dated 28 October, and this is again from the US State Department person:

Sorry it has taken this long to get back to you.  I just spoke with –

another US official:

about this and he will run it by his leadership for consideration as a matter of policy.  Once we have steer, and if it is possible, we can discuss the likelihood of this person being approved through the US Refugee Admissions Program.

And then the only further information that your Honours have before you is at page 8, an email of last Friday, which is from the Australian official:

Thanks so much for the update below.  Really helpful.  I just wanted to touch base again this week to see how it was going.

Now, we have seen through the disclosure process that has been operating between our friends’ solicitors and us, some further emails.  They do not say very much.  Our friends may wish to put them into evidence; we have no problem with that – in fact, that probably should happen.

GAGELER CJ:   Can I take it that the four affidavits that are in the materials are taken to be read?

MR LENEHAN:   Yes.

GAGELER CJ:   And the exhibits admitted?

MR LENEHAN:   Yes, your Honour, I should do that.  As we understand it, there are no objections to any of the material in that affidavit of materials; certainly not from us.  I was just giving evidence from the Bar today which was to the effect that Saudi Arabia has said a definite “no”, and that the position with the United States has not moved on from the last email that your Honours saw.

GAGELER CJ:   There is an opinion expressed by Ms Balzary in the last paragraph of her affidavit, page 461.  She just says:

It is impossible for me to predict the prospects of him being accepted for resettlement by the United States –

That really is the position, is not it?

MR LENEHAN:   It is.  It is. 

GORDON J:   And also the last one.  So, just the continuation of the sentence:

or to describe any set process or pathway that might be followed –

that is, it is impossible to do both aspects?

MR LENEHAN:   Yes, that is so.  That is a succinct statement of opinion of the current factual position.  Your Honours may therefore not need to look too closely at the additional material that we have included, which sets out the decision-making pathway as a matter of US law.  That would need to be followed.

GORDON J:   That is why I asked you whether or not – the last sentence of that paragraph.

MR LENEHAN:   Yes, so if your Honours wish me to address your Honours on that, I can, but otherwise, perhaps to the extent I need to, I will do so in reply.  In very short summary, the position under United States law is that my client would be an inadmissible alien because he has committed what would be regarded as a crime of moral turpitude.  So, he would be relying on a series of discretions to be exercised in his favour, which seem to be of uncertain nature, and certainly uncertain timing, before any of this would produce anything that would see him removed from his current plight.

STEWARD J:   So, the factual findings you seek us to make today, that would apply today, are the three limbs of 45?

MR LENEHAN:   Yes, correct.  Yes, and nothing ‑ ‑ ‑

STEWARD J:   As at 7 November, et cetera.

MR LENEHAN:   Yes.  As I say, we start from the position where we say our friends bear the onus, but we say, for the reasons, that I have just taken your Honours to, your Honours would comfortably infer that nothing has changed.

Now, that then almost gets your Honours to the joy of hearing Ms Gordon, which will be a pleasant break for your Honours, but before you get there, I wanted to address you on one further preliminary point which applies both to Ms Gordon’s part of the argument and to mine, and that is the debate that your Honours have seen between us joined by us in our reply at paragraphs 7 to 8 about the framework, I will call it, for approaching both the construction and the constitutional issues, and what my client’s position is in terms of liberty.  The Commonwealth, in paragraph 35 of our friends’ written submissions, say that your Honours approach the questions that arise here on the basis that:

while Australian citizens have a fundamental right to liberty that engages the principle of legality, the same is not true of –

aliens.  And our friends say that they have at most some sort of qualified:

statutory entitlement under the Act –

As I say, we respond to that at paragraphs 7 to 8 of our reply.  Our essential point is really this.  Our friends are conflating, we say, two quite different ideas.  The first is the undoubtedly correct proposition that a non‑citizen in Australia without a visa has no right to remain in Australia.

EDELMAN J:   An alien.

MR LENEHAN:   Sorry, an alien, yes.  But that does not lead to what our friends say is the second point – whether that person has any or any qualified right to personal liberty.  Can I illustrate that by taking your Honours to a very familiar authority, but one that is worth revisiting.  That is this Court’s decision in Bolton v Beane – which your Honours have in volume 6, tab 36.  Can I ask your Honours to go to, at page 528 to 529 – it is 2017 and 2018 of the joint bundle – a very familiar passage from Justice Deane, but one that is picked up ‑ ‑ ‑

STEWARD J:   Can you just give the Commonwealth Law Report volume?

MR LENEHAN:   I am so sorry, your Honour, yes.  It is 162 CLR.

STEWARD J:   Thank you.

MR LENEHAN:   Your Honours see at the passage starting at 528 and then going over to 529, words that are picked up in many other authorities including Lim:

The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action.

Then, read on over the page – referring to the important availability of habeas corpus – at 529:

It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric.  They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land.  They represent a bulwark against tyranny.  They provide the general context of the present case.

We say they equally provide the important context of this case.  Now, it is true that Mr Beane – see what is further said on 529 – was lawfully in Australian territory at that time – I will come back to that point with Lim, but just while your Honours still have Beane, if you can note the reasons of Justice Brennan at 520 to 521, again talking about the fundamental freedoms guaranteed by ancient principles of the common law, and then on 521, just before the quote from Brixton Prison towards the bottom of that page:

And thus the laws of this country secure the freedom of every lawful resident, whether citizen or alien, from arrest and surrender into the custody of foreign authorities –

And your Honours – I will just give your Honours the references but not take your Honours to them, but you find a similar idea in the reasons of Justice Gaudron at 547 and then the joint judgment of Chief Justice Mason and Justices Wilson and Dawson agree in substance with her Honour’s reasons at page 517.

So, we say the starting point is clear, at least for lawful residents – citizens or aliens – they are entitled to be free within the country, free within the territory, absent some statutory authority to the contrary.  And in terms, then, of the qualification “lawfulness”, and the point that I made before, can I ask your Honours to turn, for the first time, to Lim, which your Honours have at volume 3, tab 16 – for your Honour Justice Steward, it is 176 CLR 1 – and to page 19, which is part of the reasons of Justice Brennan, Justice Deane, and Justice Dawson. And your Honours see:

Under the common law of Australia and subject to qualification in the case of an enemy alien in time of war, an alien who is within this country, whether lawfully or unlawfully, is not an outlaw.  Neither public official nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law.

If your Honours look down to the authority that is cited for that proposition in footnote (38) you see, amongst other things, Bolton but also Kioa.  And so, we say, that is an unambiguous endorsement of the proposition that even unlawful aliens are entitled to freedom from detention in the absence of statutory authorisation or judicial warrant.  And we pick up what your Honour Chief Justice Gageler said in Plaintiff M68, that is a statement about the common law, but it is also a statement about the Constitution.

Perhaps if I can invite your Honours to go to Plaintiff M68 quickly, and that is at joint bundle volume 5, tab 31 – for your Honour Justice Steward, 257 CLR 42. If your Honours then go, in the reasons of Chief Justice Gageler, to paragraph 146 and following, you will see there is a quote in 147 from Bolton, that is from Justice Brennan in Bolton; and then, 148, Justice Deane, the passage that I went to before, and then 149, Lim, and then, your Honours see at the foot of that page:

Those statements of principle are not disputed in the present case.

But the Commonwealth and the Minister were somewhat “equivocal”, and the point that was sought to be made was that those are not statements about Commonwealth executive power, they were perhaps rather statements of the common law.  Then, over the page at 152, that submission was, in fact, put in unequivocal terms by our learned friend, the Solicitor, then acting for Transfield.  Transfield’s submission was, squarely, that those statements were solely about the common law and nothing to do with Executive power.  Your Honour rejects that argument.  If your Honours turn a few pages over to 104 of the report, and 1750 and 158, you will see where your Honour addresses it – starting with “the history of habeas corpus”.  Then, 159, making clear that this has a constitutional dimension:

The inability of the Executive Government of the Commonwealth to authorise or enforce a deprivation of liberty is not simply the consequence of the absence of any prerogative power on the part of the Executive Government to dispense with the operation of the common law.  It is the consequence of an inherent constitutional incapacity which is commensurate with the availability, long settled at the time of the establishment of the Commonwealth, of habeas corpus to compel release from any executive detention not affirmatively authorised by statute.

Your Honour goes on, at 162, to further develop the idea of that inherent constitutional incapacity and then notes, at 163:

The Commonwealth Parliament can consistently with s 61 of the Constitution, confer a statutory power or authority to detain on the Executive Government.  In addition to finding an available head of Commonwealth legislative power, any Commonwealth law conferring such a power or authority must pass muster under Ch III of the Constitution.  

Which is the background for the argument today.  So, in summary, what we say, is that the plaintiff, once he was within territory, had a common law right to personal liberty.  In other words, an immunity or freedom from detention.  That is an Hohfeldian idea of rights and correlative immunities.  Your Honours see a useful discussion of that idea in the article that we have included in the bundle from Jeffrey Gordon.

That freedom can only be taken away by the Executive if it is authorised to do so by statute, but any statutory authority that purports to provide that authorisation must be consistent with Chapter III.  So, we then say from that, the plaintiff had a personal liberty within Australia in the sense of being free from Executive detention and that that is distinct from our friends’ point, whether he had a right to be within territory.  Undoubtedly, he did not have that right. 

So, it follows from what I have just said that it is not correct to say that you approach my client’s position as a matter of some sort of qualified statutory entitlement.  He has, we accept, no right or entitlement to be within the territory, but that does not take away his freedom from Executive detention; he is not an outlaw.  I will come back to this, but some of the reasoning in Al‑Kateb – particularly in the reasons of Justice Hayne – is not consistent with that starting position.  And to the extent that our friends are relying on those passages and that idea, we say, they are wrong. 

EDELMAN J:   But this is not pure Executive detention under section 61. This is, on the Commonwealth’s argument, Executive detention under statute.

MR LENEHAN:   Yes, yes, it is – but then, the further important point that has to pass muster under Chapter III.  At this point, I was proposing to hand over to Ms Gordon.  I do note the time.  I am not sure if your Honours were minded to take the break.

GAGELER CJ:   We are minded to take the break, and that would be a convenient time to do that now, if you have finished your part of the submissions.

MR LENEHAN:   Yes, yes, I have.  Thank you, your Honour.

GAGELER CJ:   The Court will take a 15‑minute adjournment.

AT 11.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.25 AM:

MS GORDON:   May it please the Court.  As Mr Lenehan indicated, my task is to persuade your Honours that the construction of the Act adopted by the minority in Al‑Kateb, and in particular by Chief Justice Gleeson, was correct and that the Court should now revisit that issue of construction.  I will deal with the merits first and then with the question of reopening.  By way of summary, the construction for which we contend is that adopted by Chief Justice Gleeson, being that where the purpose of detention cannot be fulfilled, the duty and power to detain are suspended.  Of course, I will come back to that in more detail, but just to forecast the endpoint.

Before I come to the provisions critical to this case, I would like to take the Court to an aspect of the reasoning in Lim which is insightful because it does deal with the question of indefinite detention.  Your Honours will recall that in Lim the provisions of central importance to that case in Division 4B were introduced sometime after the plaintiffs in that case had been detained.  Before the introduction of those provisions, there was a provision that was relied on as authorising the plaintiffs’ detention, and that was section 88 of the Migration Act.

Your Honours do not need to go to it, but you will find the text of that provision in that joint bundle at tab 5.  For my purposes it is sufficient to take your Honours to the decision in Lim. That is at tab 16 of the bundle, (1992) 176 CLR 1, starting at page 20 of the decision. This is, your Honours, in the decision of Justices Brennan, Deane, and Dawson, with which the Chief Justice relevantly agreed.

Your Honours will see there, in the first full paragraph, a description of the problem and the reliance on the only available provision, which was section 88 of the Act.  Then their Honours set out section 88(1) and (2), and your Honours will see that from the middle of the page.  It is sufficient to read subsection (1) because the two subsections are in, relevantly, similar form, but subsection (1) of section 88 provided that:

A person who is on board a vessel (not being an aircraft) at the time of the arrival of the vessel at a port, whether or not that port is the first port of call of the vessel in Australia, being a stowaway . . . may –

(a)      if an authorized officer so directs; or

(b)     if the master of the vessel so requests . . .

be kept in such custody as an authorized officer directs at such place as the authorized officer directs until the departure of the vessel from its last port of call in Australia or until such earlier time as an authorized officer directs.

Now, if your Honours go to, then, page 21, one sees the joint judgment’s analysis of the effect of that provision.  Before I get to that, of course, the point we rely on here is that that provision has a similar structure to the provisions in the present Act, in the sense of authorising detention until the occurrence of a particular event.  Their Honours, on page 21, place some emphasis on the heading to that provision, the heading being “Custody of prohibited entrant during stay of vessel in port”.  Drawing from that:

the provisions of the section are intended to have a strictly temporary operation.

And we will come to what we say is the equivalent heading in section 196.  Then, the key reasoning, your Honours, begins halfway down the page of page 21:

The plaintiffs had, at the time of the commencement of Div. 4_B, been held in custody for almost two and one‑half years in the case of the firstnamed plaintiffs and a little over two years in the case of the secondnamed plaintiffs.  The explanation of that prolonged detention in custody in purported pursuance of s. 88 is that the vessels on which the plaintiffs arrived will never be leaving Australia.  They were, the Court was informed, burned.  The view was apparently taken by the Minister’s Department that, in a case where a vessel can never leave because it has been destroyed, temporary custody under s. 88(1) and (2) can continue indefinitely.  As has been seen, however, that approach to the construction of the section was mistaken.  The period of custody authorized by s. 88 was merely a transitory one pending the departure of the relevant vessel after a temporary visit to a port or ports in this country.  Once the relevant vessel no longer existed (or, for that matter, once it became apparent that the relevant vessel would never depart), the temporary period pending departure, in which a person could lawfully be held in custody pursuant to s. 88, came to an end.

What one sees there, your Honours, is precisely the kind of reasoning ‑ ‑ ‑

GAGELER CJ:   It is not precisely the reasoning, is it, because here there was impossibility; the vessel no longer existed. 

MS GORDON:   Quite, your Honour.

GAGELER CJ:   Chief Justice Gleeson accepted possibility.

MS GORDON:   Quite.  Really, that is the response of the Commonwealth to reliance on this case, and the reason I wanted to go to it, because it highlights, really, the two themes of this case, the two themes in the construction debate.  The Commonwealth says, well, one cannot compare the vessel in section 88 to the plaintiff because there one could demonstrate impossibility, but here one can never demonstrate impossibility – one response.  The other response is, well, there is one was dealing with a discretion, not a duty.  I will come to address those two things in more detail but, in my submission, it is useful to understand the issue in that way, because those are really the two answers.  The inability to demonstrate impossibility is very important to the judgment of Justice Hayne, to which I will come.

With the introductory themes, in that sense, defined, if I could bring your Honours then to look at the core provisions of the Act with which we are concerned here.  Your Honours are no doubt familiar with them and I will not dwell on them in detail in the abstract.  If your Honours have the current version of the Act, which is behind tab 3 of the bundle, the first key provision is section 189(1):

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.

Then we move to section 196, headed “Duration of detention”.  Just picking up the point made by their Honours in Lim about section 88, we would say that, just like the heading there, the heading “Duration of detention” connotes a temporary detention.  Then, most critically, 196(1):

An unlawful non‑citizen detained under section 189 must be kept in immigration detention until –

relevantly for this case:

(a)he or she is removed . . . under section 198 or 199 –

That takes us to 198, which prescribes a number of different obligations to remove as soon as reasonably practicable, arising in different circumstances.  Relevant to this case is (1):

An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.

Then, as Mr Lenehan adverted to:

An officer must remove –

This is subsection (6):

as soon as reasonably practicable an unlawful non‑citizen if –

I will not read those provisions, but effectively if the visa application has been completed and completed adversely to the detainee.

GORDON J:   You accept there are two duties, the 198(1) and 198(6) duty?  That is, there are two duties.

MS GORDON:   Yes, your Honour.

GORDON J:   They, relevantly, are the same in terms of their effect?

MS GORDON:   In terms of construction, yes.

GORDON J:   Thank you.

STEWARD J:   Ms Gordon, can I ask you, is any part of your statutory analysis relied upon the changes made to 197C and the removal of the obligation to refoul where we have protection obligations?

MS GORDON:   Your Honour will see that referred to in our written submissions.  It is not a central focus of our construction argument, but we do rely on it in that way.

STEWARD J:   Thank you.

MS GORDON:   Now, before I come to the reasoning in Al‑Kateb, I did want to advance some uncontroversial propositions about the relationship between these three provisions, but, of course, since Al‑Kateb that relationship has been examined on a number of occasions.  The following propositions about the provisions are uncontroversial.  What I propose to do is simply state the proposition and give the reference without taking your Honours to the cases.

The first one is that when describing and justifying detention as being under and for the purposes of the Act, it will always be necessary to identify the purpose of the detention.  That is in paragraph 26 of the judgment of the Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219, and that is volume 6, tab 34.

GLEESON J:   Are these propositions set out in your outline?

MS GORDON:   They probably will not be in terms, your Honour, because of the summary nature of the outline.

Secondly, the Act authorises detention for only three purposes, two connected to visa application processes and the other, relevantly, the purpose of removal.  That is from the same paragraph in Plaintiff S4.  Lastly, the Act contemplates detention in the context of, relevantly, an enforceable duty to remove as soon as reasonably practicable, such that the duration of the detention of an unlawful citizen must end.  That proposition is found in paragraphs 44 to 45 in the judgment of Chief Justice Kiefel and Justices Gageler, Keane and Steward in the Commonwealth v AJL20 [2021] 273 CLR 43 at volume 3, tab 17.

The reason I wanted to touch on those – they are not at issue in this case but what they establish is that detention under the Act is of its essence detention, the rationale of which is removal unless a visa is granted – and it is detention with a finite duration.  Then the conundrum thrown up by the present fact is that the plaintiff’s detention has no end in sight.  I will not revisit the factual submissions which Mr Lenehan has put, except – and I will come to this a little later, but the formulation that we rely on is that given by Chief Justice Gleeson in the Al‑Kateb case at paragraph 1, who puts the issue this way:

removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future.

As I say your Honours, I will come back to that.  Now, I would like to turn, if I could, to the competing reactions to that state of affairs in Al‑Kateb.  If could start, your Honours, with the judgment of Justice Hayne who gave the leading judgment of the majority on this question.

There are really three aspects of Justice Hayne’s judgment to which I wish to take the Court.  The first is his Honour’s discussion of the purposive nature of detention under the Act.  The second, his Honour’s discussion of the difficulties, in his Honour’s view, insuperable with the construction advanced by Mr Al‑Kateb.  And thirdly, the relevance of Mr Al‑Kateb’s lack of entitlement to be free in the community.  So, turning to that first aspect, which is the purposive aspect, could I ask your Honours to start at paragraph 217 of the reasons of Justice Hayne.

GAGELER CJ:   We are having a little difficulty hearing you.  It might be just a matter of speaking more precisely into the microphone.

MS GORDON:   Of course.  Apologies, your Honours.  Is that better?

GAGELER CJ:   I think that is better.

MS GORDON:   Now, Justice Hayne begins his analysis by identifying what his Honour terms the critical features of detention under the Act, and his Honour says:

The arguments advanced in this and the other matters against the validity of the provisions for mandatory detention of unlawful non‑citizens proceeded from the identification of two critical features of the provisions.  First, the detention required is for an indeterminate length of time.  Its duration is bounded by the occurrence of events which, if they happen, will happen at a time which cannot be identified at the start of the period of detention.  Secondly, it is now recognised that there may be cases where the events upon which detention will cease may not happen, or at least will not happen for a very long time.  

Having outlined the critical features of the detention under the scheme as his Honour saw them, his Honour then – and could I ask your Honours to pick up the discussion at paragraph 224.  At 224, his Honour says:

The provisions requiring detention of unlawful non‑citizens do not expressly refer to the purpose of detention.  Rather, s 189 requires officers to detain unlawful non‑citizens and s 196 identifies the period of detention.  In this respect, however, the legislation does not differ in any fundamental respect from the provisions considered in Koon Wing Lau v Calwell.

Your Honours, I think we provided you that case in the supplementary bundle, but in that case, section 7(1)(a) of the War‑time Refugees Removal Act enabled a deportee:

“pending his deportation and until he is placed on board a vessel for deportation from Australia” be kept in such custody as the Minister or an officer directed.

So, again, one had that formulation of, albeit that it was a discretion, an authority to detain pending an event:

Dixon J said that they “mean that a deportee may be held in custody for the purpose of fulfilling the obligation to deport him until he is placed on board the vessel” (emphasis added) and that “unless within a reasonable time [the person to be deported] is placed on board a vessel he would be entitled to his discharge on habeas”.

I pause there to note that his Honour does not regard Koon Wing Lau as distinguishable because it concerned a discretion.  The logic of the language and the use of concepts such as “pending” and “until” meant that the detention authorised was to be regarded as temporary detention.  And then his Honour at 225 says:

The present legislation, prescribing the period of detention as it does, may therefore be read as providing for detention for the purposes of processing any visa application and removal.

So, his Honour there accepts the purposive aspect of detention which was reflected in the propositions I have put to you from Plaintiff S4.  But then – and this is a point of divergence from the minority, but that does not decide the point of how long that detention may persist.  I am not going to go to everything his Honour says.  I am not meaning to avoid passages, but just in the interests of time, I am just going to highlight the ones I want to rely on.  At 227, his Honour addresses the meaning of “as soon as reasonably practicable” and his Honour says:

It may be accepted that “as soon as reasonably practicable” assumes that the event concerned can happen, and that, if there is any uncertainty, it is about when the event not whether it will. 

So, again, in my submission, his Honour is there accepting the legislative assumption that the detention will be temporary.  Then his Honour goes on to discuss what that means for a person such as Mr Al‑Kateb.  Your Honours will find that key discussion from 228 to 231.  In summary, his Honour reasons that – and your Honours will see the conclusion at paragraph 231:

Because there can be no certainty about whether –

And “whether” is important there:

or when the non‑citizen will be removed, it cannot be said that the Act proceeds from a premise (that removal will be possible) which can be demonstrated to be false in any particular case.

I make the following brief submissions about that aspect of his Honour’s judgement.  First, his Honour accepts the purposive underpinning, the purposive rationale for detention in this case.  His Honour accepts the legislative assumption that detention will be temporary, but then his Honour reasons, by reference to the facts of Mr Al‑Kateb that one can never be confident that removal will never occur.  So, the assumption can never be demonstrated to be false, unlike the boat in Lim and under section 88.

His Honour understands the concept of “reasonable practicability, in my submission, as a legislative allowance for an inherent future uncertainty dependent, amongst other things on international cooperation.  And indeed, his Honour expressly contemplates in paragraph 231 and 217 that removal may never happen.  That is the first aspect of his Honour’s reasoning on which I wish to dwell.  The second aspect ‑ ‑ ‑

GLEESON J:   In that paragraph, he seems to at least state that that does not deny the purpose of removal, but he does not explain why that would still be congruent with the purpose of removal.

MS GORDON:   With respect, we embrace that, your Honour.  In my submission – and I will endeavour to draw this out when I come to the Chief Justice’s judgment in the same case – Justice Hayne is asking a different question to the question which the purposive underpinning of the Act demands.  He is asking is it possible that the duty will become capable of performance, rather than is it capable of performance or on the facts, as they are likely to be, in the reasonably foreseeable future.

GORDON J:   Just before you leave 231, is the last sentence in paragraph 231, though, recognising that habeas was available once the point of reasonable practicability had come around?

MS GORDON:   Potentially, your Honour, but that is it, I think, being overtaken.

GORDON J:   It might have been, but I am asking you – we are dealing with Al‑Kateb now.  I am asking if that is how you read that last sentence in Al‑Kateb.

MS GORDON:   Yes, your Honour.  Now, the second aspect of Justice Hayne’s reasons to which I wish to take your Honour was that part of his judgment where he deals with the perceived difficulties and the construction being put forward by Mr Al‑Kateb.  Those are, in a sense, signalled at paragraph 233, where he says:

This additional set of reasons for rejecting this construction of the provisions turns upon how the criterion for deciding whether there is a real likelihood of removal would be formulated, and upon how the three critical provisions (ss 189, 196 and 198) would then be read –

Then, in the subsequent paragraphs, 234 to 237, his Honour elaborates on those concerns.  How does one formulate what his Honour refers to as the criterion:

upon what event does the duty to detain re‑emerge?

and, really, what is involved here is a transformation of the statutory text, rather than construction.  We make the following submissions about those.  First, as Mr Lenehan submitted this morning, we would not embrace the language of “criterion” in the sense his Honour did.  Rather, the various verbal formulae advanced, and which were discussed this morning, are, really, different ways of describing the circumstance where the purpose of removal or the duty of removal are incapable of fulfilment.

While it is evidently a matter of evaluation – and, in the abstract, potentially difficult to formulate the test, if one adopts that language – in my submission, the various formulae convey the same thing.  Again, when I come to the judgment of Chief Justice Gleeson, in our respectful submission, his Honour conveys the point very clearly when he refers to:

removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the reasonably foreseeable future.

In terms of when the duty would revive, again, in our submission, there is no particular difficulty, as a matter of fact, of employing that language and understanding that the duty revives when removal is possible.

Lastly, to the extent that there are difficulties in evaluation, or in coming up with an entirely satisfactory formula in the abstract, these, of course, need to be weighed against the difficulties with the alternate construction, which is that someone in the plaintiff’s position might be detained indefinitely, and potentially, permanently.  So, it was a second aspect of Justice Hayne’s reasons.  Now, the third aspect.  I will ask your Honours to turn to paragraph 219 of his Honour’s judgment.  The last sentence of that paragraph is as follows: 

The detention to be examined is not the detention of someone who, but for the fact of detention, would have been, and been entitled to be, free in the Australian community.

That starting point has evidently been influential at the forefront of a number of judgments of this Court.  Indeed, Justice Heydon began his judgment in M76 by asking rhetorically:  how can you claim a right of release into the country when you have no legal right to be here?  Now, Mr Lenehan has already addressed the caution with which one must approach that starting premise, because a vulnerability to removal is not the same thing as a vulnerability to detention.  Mr Lenehan would no doubt elaborate on that, in the context of the constitutional issue.

Secondly, in this case, “release” would not be tantamount to a permission to remain, because the person released would remain vulnerable to be removed, when that became possible.  So, there is no disturbance of the starting premise, to the extent that it is a valid premise.  Your Honours will see a good articulation of that, with respect, in the decision of the Full Federal Court in Al Masri at paragraph 128. I am not going to take you there, but the reference is (2003) 126 FCR 54, and that is at tab 46 of volume 8 of the authorities.

STEWARD J:   Ms Gordon, on your case, how are we then to read section 189, assuming all is well?  We need to read it down, or add to it, or what?

MS GORDON:   Well, one reads it as tethered to the purpose of removal. 

EDELMAN J:   What your submission really is, it is the line of cases from Walton v Gardiner, and Katsuno, and cases which say, when you have an open textured provision, you read the application and scope of the provision as no further than the purpose of the provision, I think, which a number of the judgments in Jones last week had emphasised.

MS GORDON:   Yes, your Honour, and I believe your Honour’s judgment in AJL20 also discussed those principles; it being uncontroversial that detention is for the purpose of removal, one would not understand section 189 as authorising removal where that purpose is incapable of fulfilment. 

STEWARD J:   So, they might have added the words at the end for the purposes of removal, but you say, given the statutory context, that purpose must always be present before you detain.

MS GORDON:   Precisely.  And that is, we would say, the upshot of the relationship between the provisions as analysed by this Court over a succession of cases.

STEWARD J:   Thank you.

MS GORDON:   That is why also, your Honour, the decisions in Koon Wing Lau and the decision in Lim about section 88 are quite important, because the attitude of the Court there is not, we would be rewriting the statute, it is because the detention has a purpose and that purpose is exhausted, one understands that the detention is no longer authorised.

Justices McHugh and Heydon agreed with Justice Hayne on the construction.  Your Honours will find that at paragraphs 33 and 303, respectively.  I did need to take your Honours separately to the judgment of Justice Callinan because his Honour explicitly embraced the proposition that the validity of detention depended on the Executive not abandoning the purpose of detention.  Your Honours will find the key reasoning on this front at paragraphs 292 to 299.  But if I could just ask your Honours to turn to 294, where his Honour refers to Lim and then said:

The yardstick, and with respect rightly so, was “purpose”, the existence, that is the continuing existence of the relevant purpose of deportation.

. . .

The finding that the prospects of this appellant’s removal are currently slight does not in my opinion place this appellant in any relevantly special position.

I am sorry, I am now reading from 295:

The fact that deportation may not be imminent, or even that no current prediction as to a date and place of it can be made, does not mean that the purpose of the detention, deportation, has been or should be regarded as abandoned.

Then, over at 298 to 299, his Honour says – rejecting the submissions that have been put to him as to the unlikelihood that Parliament would have legislated for indeterminate detention, his Honour says, at 298: 

These submissions cannot be accepted.  The statutory language is clear and unambiguous. 

Then, from pages 661 over to the next page, he says: 

So long as the purpose of detention has not been abandoned, a statutory purpose it may be observed that is clearly within a constitutional head of power, it is the obligation of the courts to ensure that any detention for that purpose is neither obstructed nor frustrated.

In the following paragraph, his Honour makes clear that what he has in mind is the subjective purpose, where he says:

The test is not whether the Minister harbours a hope, but whether she continues to have the intention of removing the appellant from the country.

GAGELER CJ:   Does that survive AJL20? 

MS GORDON:   It could not, your Honour, and that is really part of a submission that I was going to make a little later about the difficulty with this judgment, and one reason is because at least one of the judges in the majority expressly relies on subjective purpose as the touchstone.  Justice Hayne, I do not think, expressly puts his view one way or another, but we are left with a position where, on that front, it is not consistent with AJL20.

If I could then come to the judgment on which we place particular reliance, and that is the judgment of Chief Justice Gleeson.  Now, at paragraph 1, your Honours – and I have now referred to this a number of times, but the Chief Justice frames the issue for consideration in these terms, and this is at the bottom of paragraph 1 on page 572:

There are, however, exceptional cases, where a visa application has been determined adversely to an alien, or an alien has requested removal, but removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future.  What happens then?

Then at paragraph 3, the Chief Justice says that he agrees with the judgment of the Full Court of the Federal Court in Al Masri that:

a person in the position of the appellant is entitled to be released from immigration detention, if and when the purpose of removal becomes incapable of fulfilment.

STEWARD J:   Is there a difference between that expression and the way it was expressed in paragraph 1:

not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future –

versus “incapable of fulfilment”?

MS GORDON:   The way it is phrased in paragraph 3, your Honour, it is phrased as focusing solely on the present, whereas the way it is expressed in paragraph 1 makes an allowance for it becoming possible but in a way that tethers it to facts known at the time.  So, looking at things now and not looking at what might happen in the future:

removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future.

We would say, in brackets, based on what we know now.

GAGELER CJ:   On the balance of probabilities.

MS GORDON:   Yes, your Honour.  Now, I then just wanted to highlight – of course, we rely on the whole of the judgment of the Chief Justice, but I did want to highlight where we say the key passage of the reasoning is.  That begins at paragraph 14, which starts with a proposition which is very significant in this case in the context, particularly, of the principle of legality, that:

The Act does not in terms provide for a person be kept in administrative detention permanently, or indefinitely.

Then his Honour outlines the argument put by the appellant:

The appellant contends that it is also capable of another meaning.  It may mean that the appellant, who is being kept in detention for the purpose of removal, which must take place as soon as reasonably practicable, is to be detained if, and so long as, removal is a practical possibility, but that if, making due allowance for changes in circumstances, removal is not a practical possibility, then the detention is to come to an end, at least for so long as that situation continues.

Then he describes the respondent’s argument at 16.  The respondents submitted:

that the Minister, and the relevant officers referred to in s 198, may have the purpose of removing a detainee as soon as reasonably practicable, in accordance with their statutory obligations, even though removal is not currently practicable, and is not likely to become practicable in the foreseeable future.  They may have such a purpose for years.  They may have it for the whole of a detainee’s life.

Then in the next paragraph, which is probably the meat of his Honour’s analysis on the key constructional issue, his Honour says this, and which I think really answers the question your Honour Justice Steward put to me about how one analyses the relationship between sections 189, 196 and 198:

The legislation operates, with reference to the appellant, upon the combined effect of two imperatives.  He must be removed from Australia as soon as reasonably practicable.  And he must be detained until he is so removed.  The first imperative is compound in its nature.  It assumes the possibility of removal.  It requires, not merely removal, but removal as soon as reasonably practicable.  The second imperative, which builds upon the first, is, in terms, unqualified.  As a matter of ordinary language, it is open to the construction that, because of its textual relationship to the first imperative, it is subject to a cognate qualification.

That is, the imperative to detain assumes the possibility of removal.  Then his Honour goes on:

This is supported by the purposive nature of the power (and duty) of administrative detention.  The primary purpose of the appellant’s detention, after the completion of the process of examining his application for a visa and after his request that he be removed, was to facilitate his removal.  A secondary purpose may well have been to prevent his entry into the Australian community in the meantime.  The primary purpose, however, is plain.  The purpose is objective.  What is in question is the purpose of the detention, not the motives or intention of the Minister, or the officers referred to in s 198.

And, with respect, we embrace that paragraph and the reasoning therein.  Then, I think – then his Honour, really, goes on to discuss the principle of legality, and at 19 your Honours will see the Chief Justice says:

Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts.

And he ends that paragraph by saying:

“[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”.

Then he goes on to address that in the context of what was put to his Honour, which was the respondent’s submission that the terms of the statute were general but clear.  The point is that generality is not sufficient when one is dealing with the proposition being put of the real possibility of indefinite or permanent detention.  I think I can probably conclude my discussion of the Chief Justice’s judgment in 22, where he again, in a sense, comes back to the construction point and draws the threads together.  His Honour says:

In s 196, the period of detention of the appellant is defined by reference to the fulfilment of the purpose of removal under s 198.  If that purpose cannot be fulfilled, the choice lies between treating the detention as suspended, or as indefinite.  In making that choice I am influenced by the general principle of interpretation stated above.

Being the principle of legality, and:

I am also influenced by the consideration that the detention in question is mandatory, not discretionary.  In a case of uncertainty, I would find it easier to discern a legislative intention to confer a power of indefinite administrative detention if the power were coupled with a discretion enabling its operation to be related to the circumstances of individual cases –

And then, the last sentence:

The absence of any reference to such considerations, to my mind, reinforces the assumption that the purpose reflected in s 196 (removal) is capable of fulfilment, and supports a conclusion that the mandated detention is tied to the validity of that assumption.

STEWARD J:   Again, just to be clear, the capacity of fulfilment fails, in your submission, where there is no capacity today and that is likely to prevail in the foreseeable future.

MS GORDON:   And no capacity in the circumstances is likely to prevail, yes.

STEWARD J:   Yes.

GLEESON J:   Is that reasoning affected by amendments since Al‑Kateb?

MS GORDON:   Your Honour might have in mind the submission put by the Commonwealth that the introduction of provisions like section 195A, permitting visas to be granted in the public interest, and perhaps the possibility of residence determinations.  We say, firstly, those provisions are, in a sense, peripheral; they do not really tell us much about the construction of the core provisions, which, in the end, will depend on the words of section 189, 196, 198.  However, we rely on them to this extent that those provisions in a sense introduce an element of nuance into what the Commonwealth would submit is a pure binary scheme; they introduce an element of flexibility.

Moreover, they introduce an element of flexibility that is on one view capable of moderating the nature of the obligation in section 189.  What I have in mind there is your Honour Justice Edelman’s analysis in AJL20 where your Honour points out that the availability of alternatives might well be understood to affect the scope of the duty in section 189, if I have not misunderstood your Honour’s judgment.

EDELMAN J:   Is not what the Chief Justice is saying, at paragraph 22, that where he refers to the power being coupled with the discretion enabling its operation to be related to circumstances of individual cases, that the construction that he prefers might not prevail if there were provisions like section 195A or 197C?

MS GORDON:   Yes, with respect, your Honour, that may be so.  I had in mind his Honour was referring to a set of more specific provisions, but your Honour is quite right.  His Honour has in mind a different kind of detention regime, which is a discretionary detention regime that would depend on whether the circumstances of the individual, required – justified the detention to go on and on.

GLEESON J:   Which seems to be different from a public interest discretion.

MS GORDON:   It is, your Honour.  Yes, sorry, I think I was confusing – I was answering your Honour’s question.  But to the extent that we are dealing with here, his Honour – and in a sense, this is probably relating to an argument that, I think, again, is put in this case that the fact that it is mandatory helps the Commonwealth.  But what his Honour is saying here is that it does not, because it is so black and white.  Does that ‑ ‑ ‑

GAGELER CJ:   I had understood the Chief Justice to be accepting that the duty to detain under section 189 continued, that the period of detention provided by section 196 was, in some ways, suspended, and that, during that period of suspension, habeas corpus was available to provide for some kind of conditional release.  In that way, you would not get into an endless loop of release, immediate detention under section 189 – but habeas corpus seemed to be critical to the operation of the statutory scheme of suspension, as his Honour saw it.  Is that a correct reading of his judgment?

MS GORDON:   Well, I am not sure if I am understanding your Honour’s question correctly, but yes, to the extent that that was the remedy for the detention that ceased to be authorised but, in my submission, his Honour was also really relying on the intrinsically temporary nature of the authorised detention related to its purpose.

GAGELER CJ:   I have never really understood the basis upon which conditional habeas corpus could be ordered in this scenario.  Can you explain that?

MS GORDON:   Well, his Honour certainly did not have any difficulty conceptually with conditional habeas corpus being ordered, and I think his Honour discusses that - - -

GAGELER CJ:   No, I have read it.  I am asking you to explain how that can be so.

MS GORDON:   Your Honour, could I take that question on notice, because I want to give it a proper answer and I think my answer on the fly may not be adequate.

GAGELER CJ:   Yes.

GORDON J:   Can I rephrase why, in the same context, I could find no authority which justified habeas on conditions other than Al-Kateb where the Chief Justice seems to suggest that there are some conditions capable.  There is a debate also, I think, between the High Court and the Federal Court as well, because it is at least said that somehow there is some Federal Court power – which I could not quite understand either, as well.  So, it may be that those additional matters might be considered too.

BEECH-JONES J:   Ms Gordon, can I ask you a further question? The passage in paragraph 22, is this right, that it is contemplating two concepts of purpose that you have to characterise, one is the purpose of this particular person’s detention, objectively ascertained?  And then, comparing and contrasting that with what is determined to be the purpose of the detention authorised by the statute.  Are they the two purposes one is talking about?

MS GORDON:   Yes, what is involved is a comparison between the purpose authorised by the statute and the detention in this case and whether it is detention for that purpose, objectively ascertained.

BEECH-JONES J:   And on the characterisation of, say, your client’s detention, is effectively determined by the question of whether, I think, the one proposal, reasonably practicable or reasonably possible in the foreseeable future, so that once that view is formed, it is no longer said to be detention for the purpose of removal.

MS GORDON:   Yes, your Honour.

BEECH-JONES J:   I see.  And you embrace – maybe I misunderstood Mr Lenehan’s answer – do you embrace a formulation that is between likelihood and bare possibility, or is your primary position I think what Ms Higgins puts as a question of likelihood or non-likelihood?

MS GORDON:   Yes, I am conscious of not wanting to overstep my authority, but we embrace the submissions of the Human Rights Law Commission – but our primary submission is that those formulations really are designed to answer the same fundamental question, which is the question posed in paragraph 1 of the Chief Justice’s judgment:  is it capable now, and in the circumstances which are likely to prevail.

BEECH‑JONES J:   Thank you.

MS GORDON:   Conscious that I have taken a question on notice, I was proposing to move on from the Chief Justice’s judgment – which we respectfully rely on.  Of course, his Honour’s construction argument has subsequently been agreed with by Justice Gummow and Justice Bell.

If I could turn to the arguments put against us in the case on the construction argument, they are, in summary, these:  the text is intractable and what we have termed in our submission the “temporary detention construction” involves a rewriting of the text; the temporary detention construction is contrary to the scheme of the Act and its binary structure, because only non‑citizens who hold a visa may enter or remain in Australia; thirdly, the difficulties in application.

Now, in going through Justice Hayne’s judgment, I have sought to, in a sense, address those submissions because they were at the forefront of his Honour’s judgment, but if I could summarise those now as a way of drawing the threads together.  As to the text being intractable, in our submission, that is just not right.  For one thing, we have members of this Court taking a very different view of what the legislation means, which is at the very least a clue that the text may not be intractable.  But, your Honours – and I tried to draw this out when I went through the judgment of Justice Hayne – there is inherent tension between the evidently temporary concept of detention, detention for the purpose of removal, and the idea that detention could be permanent because removal is impossible.

GAGELER CJ:   Well, perhaps the text is not intractable if one takes into account the contemplation in section 3A that the operation of the provisions might, in some circumstances, go beyond legislative power.  I do not think that is a point in your favour at this point – of your argument.

MS GORDON:   No, and as Mr Lenehan made clear, I am, in a sense, putting the constitutional issue to one side and I am seeking to persuade your Honours that the text is not intractable because of the tension to which I have referred.

EDELMAN J:   What do you mean by “intractable”?  We see decisions – not commonly, but decisions saying the word “black” can mean “white”, the word “not” can be ignored.  How is any text ever intractable?

MS GORDON:   With respect, your Honour, I would embrace that.  The proposition that the text is intractable is the submission put against us.  All I am seeking to submit ‑ ‑ ‑

EDELMAN J:   I think Lord Hoffman once construed an instrument that said 13th of February meant 12th of February.

MS GORDON:   Quite, your Honour, but in this case the statute goes a measure beyond that in terms of its open textured‑ness or its ability – it raises a genuine constructional choice, is all I am seeking to submit, contrary to the submission of the Commonwealth.  As I have already submitted, the argument premised on an assumption of purpose, or temporary detention involves no rewriting of the text.  As to the submission that the temporary detention construction is contrary to the binary structure of the Act, as I have already submitted, that binary structure is preserved because a person remains liable to removal once removal becomes possible.  Your Honours, that concludes what I wanted to say about the merits of the competing arguments in Al‑Kateb ‑ ‑ ‑

STEWARD J:   Sorry, can I ask – I am sorry, Ms Gordon, I asked you a question about section 189 and how you read that.  Can I ask you how you would ask us to read 196:

An unlawful non‑citizen . . . must be kept in immigration detention until –

removal?

MS GORDON:   Again, your Honour, one reads it as a provision that confirms the legislative assumption of temporary detention, and that is the effect of “until”.  Again, a construction that, as I have mentioned, was one, for example, adopted without difficulty by Justice Dixon in Koon Wing Lau.  We read it as – they are really being premised on the detention being temporary and leading inexorably to the conclusion that if the purpose of removal – the purpose that we see expressed in subsection (a) – is not practicable, is not possible, is not capable of fulfilment, then the authority to detain ends.

STEWARD J:   Is it simply a case of disapplication to that person, so that one 196 – we do not need to read it any particular way, it just does not apply.  Is that how it is put?

MS GORDON:   Yes, your Honour.

STEWARD J:   Can I ask you a related question – if you want to answer this later on, please do so.  When we talk about the purpose of removal and its need to be present, there will, of course, be cases where the Department is actually actively seeking to remove someone in circumstances where it is very unlikely they will be removed.  Is that a case where the purpose is no longer present, or is the point, really – you are talking about cases where the purpose may be present but, on the facts and circumstances, can never be fulfilled, or are unlikely to be fulfilled?  If you want to have a think and – because I have interrupted the flow of what you were saying.

MS GORDON:   No, no.  Given your Honour’s offer, I might take your Honour up on it just so I do not do the argument a disservice.

STEWARD J:   Sure.

GORDON J:   Ms Gordon, I am going to ask a number of questions about the language of the provisions themselves just so that I can understand.  I understand that you adopt Chief Justice Gleeson’s construction, but I would be at least minded for my part to be helped by you just stepping through the way you see them work.  As I had understood from your written submissions, there were really, in effect, three propositions, and I just want to make sure I have them right or wrong.

The first is, you say, you start with a constructional choice, and you have identified why you think that choice arises, which therefore requires you then to go to the provisions and work out what is the proper – on your view, what is the preferable construction.  Is that your starting point?

MS GORDON:   Yes, your Honour.

GORDON J:   You start with the text of 189.  Is that as I understand it?

MS GORDON:   Well, yes, your Honour, subject to the inevitability.  They need to be understood together, 189, 196 and 198.

GORDON J:   I understand that.  As I understood the submission, the way that you took 189 was to suggest that the detention it authorises is not without limit of time or absence of purpose.  So that, in a sense, one has to look at 189, read it in the context of 196 and 198, that is the way in which one reads 189, by reference to the language of “until”.

MS GORDON:   Yes.  Amongst other things, yes.

GORDON J:   I am sorry, I missed that.

MS GORDON:   Yes, your Honour.

GORDON J:   In relation to purpose by reference to 198, removal from Australia.

MS GORDON:   Yes, “until” plus removal, that gives you the purpose that then underpins is the rationale for detention.

GORDON J:   Then the textual link between 189, 196 and 198, you rely upon what Chief Justice Gleeson said at 17.  Is that the position?

MS GORDON:   Yes, your Honour.

GORDON J:   That is, it is defined by reference to both the fulfilment of the purpose or removal.

MS GORDON:   The fulfilment of the purpose of removal, your Honour?

GORDON J:   Yes, sorry, I meant to say “of removal” under 198.

MS GORDON:   Yes.

GORDON J:   Then the next step in the logic, as I understand it, in terms of construction, is that where that duty to remove is incapable of fulfilment then you have the assumption underlying this section is, in effect, removed.  “Removed” is probably not the wrong word.  I think you might have used “falsified”, but it is no longer there.

MS GORDON:   Yes.

GORDON J:   That is the way one reads those sections together?

MS GORDON:   Yes.

GORDON J:   What do we take at all from 196(4) and (5)(a) and the other contextual provisions within this part?  Do we take anything from them?  The reason why I ask is we have to work out whether or not this preferred construction as a matter of looking at the provisions themselves operates together and can be read together.

MS GORDON:   Yes.  I do not think that, in my submission, the other provisions of 196 – 196(2) and (3) are evidently relevant in the sense that they are there providing sort of a direction about release, and subsection (3), I think, might be raised in this case – it has certainly been raised in others – as a matter of construction, because it says that:

To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non‑citizen from detention . . . unless the non‑citizen has been granted a visa.

Our answer to that is that of Chief Justice Gleeson which one would understand the reference to “detention” in subsection (3) as being to lawful detention.

GORDON J:   In your submissions, I thought that you had drawn support from the language in (4) and (5)(a) by way of drafting being different from that which had been put before.

MS GORDON:   Yes, we did, your Honour. 

GORDON J:   Do you rely upon those matters still here in this approach to construction?

MS GORDON:   Yes, we do, your Honour, in the sense that there we have an express identification of the possibility, which is lacking and which led, of course, the Chief Justice to emphasise the relevance and the principle of legality.

GAGELER CJ:   Is there any difference between Justice Gummow and the Chief Justice on the question of construction?

MS GORDON:   There is in Al‑Kateb, your Honour, a difference in the way they express their views.  But, then in M47 (No 1), Justice Gummow positively endorses the Chief Justice’s construction in Al‑Kateb.  I can get your Honour the reference on that, but I think while there may have been a different way of expressing it in Al‑Kateb, by the time we get to M47 (No 1), there is a convergence.

GAGELER CJ:   So, where are we at in your argument?

MS GORDON:   That is a good question, your Honour.  I think I was going to move to reopening.

GAGELER CJ:   Yes.

GLEESON J:   I just have a question.  I was not sure that you have fully dealt with the nature of the binary structure.  As I understand the key binary, it is between lawful non‑citizens and unlawful non‑citizens, and the key characteristic of a lawful non‑citizen is that that person has a visa.

MS GORDON:   Yes. 

GLEESON J:   The visa is something that gives them permission to travel to and enter Australia, and to remain in Australia.  I am not sure how your observations about removal really engage with the problem of that binary.  Is it really possible to reconcile that with the difficulty of construing 189, 196 and 198?

MS GORDON:   In my submission, it is possible, your Honour, because the person who is released, if our argument is correct, still remains vulnerable to removal if and when the duty of removal becomes capable of fulfillment.

GLEESON J:   But there is no duty to provide them with a visa?

MS GORDON:   No, quite.  But they would not be in the position of a person who had been granted that kind of entitlement.

GLEESON J:   No.  But then, where would they be?  They could not enter Australia, they could not remain in Australia, and they would not have a visa.

MS GORDON:   They would not have a visa, but they would be free in Australia if that distinction – it is a distinction – I was trying to the find the passage in Al Masri because the Full Federal Court there, with respect, explains the point better than I have. 

GLEESON J:   I am not sure that this is fatal to your argument, but it seems to me to be an important problem.

MS GORDON:   Yes.  It is put that it is positively inconsistent with a scheme which envisages that only a visa can entitle non‑citizens to be, in a sense, released from detention.  But we answer that at two levels.  We say – and this is the point that I have been trying to put – that the kind of release that is contemplated if the detention is unauthorised is not equivalent to an entitlement to stay because of this inherent vulnerability to removal.

Secondly, it is not entirely clear how far this binary vision is pressed.  Is it pressed to the point of saying detention need not be tethered to the purpose of removal?  If that is the submission that is put, we reject that.  We say that, on any view of the current authorities, detention must be for the purpose of removal.

GAGELER CJ:   Ms Gordon, perhaps you could move to your arguments about reopening and then come back to these strands after lunch.

MS GORDON:   Yes.

EDELMAN J:   Just before you do, I understand that over lunch you will look at what is related to the first point that you just made, which is the vulnerability of the plaintiff to be re‑detained and deported if the circumstances changes.  That, as I understand it, relates to the point that you are going to look at about the nature of an order for habeas corpus and the extent to which it can be conditional.  Two authorities you might wish to look at are McHugh v Minister for Immigration (2020) FCR 602 at paragraph 21, and in Re Hastings (No 2) [1959] 1 QB 358 at 371.

MS GORDON:   Thank you, your Honour.  Your Honours, I will endeavour to deal with reopening very briefly.  We, of course, acknowledge the strongly conservative cautionary approach to be adopted in deciding whether to overturn an earlier decision of this Court, but nevertheless submit that the decision in Al‑Kateb ought to be reopened and, as Mr Lenehan explained, I am really dealing with reopening on the construction issue.

As the Commonwealth emphasises, there have been a number of applications to reopen Al‑Kateb which have not been determined because it was not necessary to reach the issue.  Some judges have positively said that leave ought not to be given and others have said to the contrary, but, in our submission, it ought to be reopened, your Honours.  Of course, the primary reason, as I have endeavoured to show, is that, in our submission, the reasoning of the minority was, with respect, the correct approach to statutory construction. 

Turning to the John’s factors in turn, whether it was a principle carefully worked out in a significant succession of cases, in our submission, it was not.  Indeed, it was this Court’s first step in a series of cases that have examined the relationship between the provisions and, indeed, the jurisprudence that has developed is, in significant respects, intentioned with aspects of the majority judgment.  Could I just refer to two aspects of that. 

One is Justice Hayne’s contemplation that detention under the Act may never end, whereas when one comes to AJL20, one sees the emphatic statement that detention under the Act must end.  And the second, to which I have already taken your Honours, is the relevance of subjective purpose expressly relied on in the judgement of Justice Callinan in Al-Kateb, not the subject of express discussion in the judgment of Justice Hayne but, certainly, not consistent with AJL20.

The second argument – an argument that is put against us relying in particular on the judgment of Justices Kiefel and Keane in M76 – is that the legislature knew about Al-Kateb, and it has left those provisions alone.  It has done nothing to rectify the situation and that, therefore, one would presume that the legislature has endorsed and accepted the construction of those provisions given by the majority in Al-Kateb.

Now, this argument, with respect, is dealt with very well in the submissions of the Human Rights Law Centre at 41 to 43, and we respectfully adopt those.  But I would emphasise one matter, in terms that when one looks at the authorities for the principle that legislative inaction of this kind would be understood as decisive, that is not borne out when one looks at the authorities cited for the principle in the Commonwealth’s submissions.  And I will give your Honour a reference.  They are the authorities in footnote 47 of the Commonwealth’s submissions and I am afraid they are not in the bundle of authorities, but there is a decision in Thompson v Judge Byrne (1999) 196 CLR 141 at 40 where an analogous history of legislative reaction, I suppose, to a judgment is said to provide further confirmation of a construction otherwise adopted by their Honours but was described as not being conclusive.

The citation for that proposition, that it could not be conclusive, was a judgment of Justice Dixon in a case of Reynhoudt (1962) 107 CLR 381 at388 where Chief Justice Dixon referred to the artificiality of that presumption in the context of the mechanics of modern lawmaking. And as I say, your Honours, this is dealt with in the written submissions.

Now, in terms – the other argument put against us, not only has the legislature not touched the provisions at issue in this case, but they have introduced some other provisions.  And this comes back to the question your Honour Justice Gleeson asked me, and in particular the Commonwealth relies in paragraph 18 of their written submissions on amendments made in 2005, and in particular, explanations given for those amendments in the explanatory memoranda and the statement of compatibility.

In our submission, really one needs to focus on the text of the new provisions and nothing in the text of those provisions ties them to the prospect of permanent or indefinite detention.  And they do not imply that indefinite, permanent detention are part of this statutory scheme.

Now, the second John’s factor, your Honours, whether there was any difference in the reasoning of the majority – and I have already endeavoured to address that by pointing out the different approach of Justice Callinan.  The third factor is “inconvenience”, and in our submission, the facts of this case demonstrate the force of Justice Bell’s observations in M47/2012 that:

To say that the decision has not produced inconvenience is glib.

The person in the plaintiff’s position has been detained for over three years, since the duty first arose.

GLEESON J:   “Inconvenience” is really the wrong word.  I am wondering if there is really a similar but different justification for reopening which is just about the harshness of the consequences of the legislative scheme as interpreted.

MS GORDON:   Quite so, your Honour, and I think that was the point that Justice Bell was really trying to make – that “inconvenience” could not convey what really was at stake.

GLEESON J:   That raises another question in my mind, which is, what facts do we actually have about the consequences of the regime since Al‑Kateb?

MS GORDON:   In terms of whether the decision has been acted upon?

GLEESON J:   In terms of whether anyone has experienced detention in the absence of any reasonable possibility of removal.

MS GORDON:   We have the facts of this case, but I do not think there are before the Court facts relating to, say, numbers on a more general level.  We will endeavour – there is some material in the amended special case book referable to the decision in Trail which might go some way to answering your Honour’s concern about that aspect.  There is another aspect which is really, has the decision in Al‑Kateb being independently acted upon in a manner which militates against reconsideration.

We would emphasise that last part.  Evidently it has been acted upon, but nothing before the Court would persuade it that it has been acted upon in a way that militates against consideration.  Really, the Commonwealth’s submissions just amount to an assertion that it has been acted upon.  Noting the time, your Honours, I think that concludes what I need to say about reopening.

GAGELER CJ:   You have completed your reopening argument?

MS GORDON:   Yes, your Honour.

GAGELER CJ:   And you have a couple of questions to answer.

MS GORDON:   Yes.

GAGELER CJ:   Then we hear from Mr Lenehan.  Mr Lenehan, how long do you expect to be?

MR LENEHAN:   Your Honours, I think we are a little behind time.

GAGELER CJ:   I fear we are.

MR LENEHAN:   I will endeavour to cut down some of what I was proposing to say.  I was hoping to sit down by 3.30 pm, we may be a bit longer than that – I think – at the moment.

GAGELER CJ:   We will aim for 3.30 pm.  Thank you.  The Court will now adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MS GORDON:   Your Honours, as briefly as I can, just before handing over to Mr Lenehan I will endeavour to answer the outstanding questions.  Firstly, your Honour Justice Steward’s question which posited a scenario where Department was making inquiries, but the reality was those were likely to lead to nothing, if I have understood the scenario correctly.  Again, we come back to the formulation, the question will be, is it possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future:  is removal possible?  Despite those inquiries, the answer to that might be, no, it is not possible.

STEWARD J:   So, it is not an absence of purpose, it is an absence of fulfilment of purpose?

MS GORDON:   The possibility of fulfilment, yes, your Honour, but which in turn illuminates objectively the purpose.

STEWARD J:   It is a question of fact and degree of when that moment arises.

MS GORDON:   Yes. 

GAGELER CJ:   It is not the possibility, is it?  You use the expression “possibility of fulfilment”; it is not that.  Chief Justice Gleeson was accepting the possibility of ‑ ‑ ‑

MS GORDON:   Mere possibility is not sufficient – no, quite right, your Honour.

GAGELER CJ:   “Improbability of performance” was what seemed to trigger the approach that he took.

MS GORDON:   Yes, quite right, apologies if I confused the issue.  In answer to your Honour Justice Gordon’s ‑ ‑ ‑

GORDON J:   Just before we get there, sorry, can we just go back to the test.  Is someone from your side going to go through and identify what you mean by the – I think I asked Mr Lenehan this question before he sat down, especially in relation to the approach taken by Justice Mortimer in Sami, where her Honour set out at paragraphs 157 to 158 some, in effect, ways in which you might look at the various tests.

MS GORDON:    Yes.

GORDON J:   Is someone going to identify that for us and walk us through that from your perspective, or is that something we are to divine ourselves?

MS GORDON:   Yes, as Mr Lenehan said, that is something that will be the subject of Ms Higgins’ submissions in some detail, going through ‑ ‑ ‑

GORDON J:   I see, so you are relying on Ms Higgins completely for that?

MS GORDON:   Well, not completely, in the sense that we do rely on what she will say but we have endeavoured to – I think Mr Lenehan, when he went through the facts today, endeavoured to why on these facts, one would say, not possible.

GORDON J:   I apologise.  Thank you.

MS GORDON:   So, I was about to quickly endeavour to give a response to your Honour Justice Gordon’s question about authorities regarding the remedy of habeas on conditions.  The only real additional authority that I can give your Honour is some passages from the judgment of Justice Gummow in M47/2012.

GORDON J:   Yes.

MS GORDON:   That is at JBA volume 5, and the paragraph numbers are 108 to 109.

GORDON J:   Yes.

MS GORDON:   There his Honour is really making a similar point to that that the Chief Justice was making in Al‑Kateb about the historical use of habeas in a bail context and the fact that that could be granted on conditions.

GORDON J:   Which is not really applicable here in this sense, is it, by analogy.  If one has habeas and one is granted habeas then, as I think you accept, if the circumstances change, the person could be re‑detained.  In other words, if at some point it became consistent with your test, there was a real prospect of removal rather than no real prospect of removal then, as I understand your position, the person could be detained for that purpose and for that removal at that time.

MS GORDON:   Yes, your Honour.

GORDON J:   Is that anything more than what was, in effect, trying to be addressed by Chief Justice Gleeson and Justice Gummow?

MS GORDON:   In our submission, that ability to be re‑detained is not dependent on conditional habeas, and it really follows from the statutory power becoming unavailable and then being re-enlivened.

EDELMAN J:   Why do you need conditions, if the grant of habeas does not prohibit a re‑detention if the circumstances change?

MS GORDON:   Your Honour, in our submission, we do not need conditions, and the submission is not put against us that habeas in this case would need to be granted on conditions, and that poses some difficulty for statutory construction.  The issue, in that sense, has not crystallised.  I was, really, responding to a question about the permissibility of conditions, if

they are necessary, but in our submission, they are not a necessary part of the argument.

GORDON J:   Thank you.

BEECH‑JONES J:   Ms Gordon, these references to bail and the discussion of Chief Justice Gleeson, was that not in the context of them being interlocutory orders?  Interlocutory release, which is now addressed in the statute, not final release?

MS GORDON:   Your Honour, the discussion of Chief Justice Gleeson was in the context of orders made in the Federal Court that were interlocutory, but the point of principle about the grant of bail traditionally being done by an order of habeas and being done on conditions, I do not understand to depend on that distinction, and indeed – or not indeed, but the case to which Justice Edelman referred, In re Hastings [No. 2] [1959] 1 QB 358 at 369, really makes good that historical proposition of bail being granted by that means, habeas on conditions.

For the avoidance of doubt, we do not say that our argument depends on the ability to grant habeas on conditions, nor is that put against us as a reason why the construction argument fails.

BEECH‑JONES J:   But just in that context, if this – if a court was to grant final relief, in this context, of habeas on conditions, what would it then do if the conditions were breached?  Would it revoke the relief?

MS GORDON:   Your Honour, I think the answer would be contempt.

If it please the Court, I will now hand over to Mr Lenehan.

GAGELER CJ:   Thank you, Ms Gordon.

MR LENEHAN:   Your Honours, can I note but pass over what we have said in writing at 24 to 29 regarding the framework for assessing the Lim principle.  The propositions that we put there, as we understand it, are not seriously disputed between us and, in any event, they are confirmed by this Court’s recent judgments in Jones and Benbrika (No 2). 

Picking up on that, the framework of analysis confirmed by those two cases essentially involves this:  first, identify the putative legitimate non‑punitive purpose of the law; that is Jones at 40.  Second, determine whether the law is properly characterised as having that purpose – see Jones at 43.  We say that framework is an orthodox application of Lim and has been settled for some time, but to the extent there was any remaining doubt about that, it has now been dispelled by Jones.

Adopting that framework, your Honours will have seen that there appears to be a dispute between us at both stages.  So, the first stage is correct identification of the purpose, and I will identify that controversy by reference to the written submissions.  In our submissions at paragraphs 30 and 31, we say the purpose could only be removal from Australia or, more precisely, the purpose of facilitating, effectuating or providing for a person’s removal.  You will see in contrast the offerings at paragraphs 46 and 48 identify the permissible purpose as either segregation pending removal or exclusion from entry into the Australian community, the second by reference to Lim.  I will return to those arguments after first putting our primary submission.

Before I get to the substance of that can I say how we say the Court ought to approach the identification of a legitimate non‑punitive purpose.  In the interests of time, I will do that by reference to a series of propositions.  Your Honours will find the references, largely, in our outline at paragraph 6 and so I will refer, in shorthand, to those.  The first point is, a number of members of the Court have emphasised what is, perhaps, obvious – that is, that the exceptions to the default characterisation of the tension are properly regarded as exceptional.  See, for example, your Honour Justice Gordon in Benbrika (No 2) at paragraph 62 and, also, your Honour Chief Justice Gageler in Garlett at paragraph [140]. 

Secondly, of course, the authorities established that those categories are not closed, but seen in particular in your Honour Chief Justice Gageler’s reasons in Garlett, again at [140], your Honour said this:

“[t]hey are, and should –

This is by reference to a statement of Justice Kirby in Fardon which your Honour said appeared to be correct:

“[t]hey are, and should continue to be, few –

and those that have been discerned should be:

justifiable for reasons of history or reasons of principle developed by analogy with the historical derogations from the norm”.

An example of that, perhaps, in practice, is what your Honours did in Benbrika (No 2), where the Commonwealth asked the Court to develop a new exception to the Lim principle in the context of denaturalisation, but your Honours rejected that as not being supported by historical or functional considerations.

Third, we say that the principle animating what I am going to call a “cautious” approach to the exceptions was correctly explained by your Honour Chief Justice Gageler in Benbrika (No 1) at 78, and again in Garlett at paragraph 144 in a way that we say is then taken up in Jones at paragraphs 40 to 44.  The essential notion has a few parts.  It is that the non‑punitive legislative objects that will sustain an exception to the Lim principle must be both non‑punitive and legitimate.

The second term, “legitimate”, is a term that is used to indicate the breadth of permissible ends your Honours know in the context of the implied freedom analysis.  That is to say, it is not enough for an object to be non-punitive, although that is essential.  “Legitimate” is a further qualification, and that qualification – this is the fourth point – signifies as it does in the area of the implied freedom, compatibility of the law with the constitutionally‑prescribed system of government.  That is the point your Honour Chief Justice Gageler makes in Garlett at 144.

That, in turn, as your Honour said, requires attention to the values protected by that system and the relevant constitutional principles to be applied.  And, in that context, your Honours have stated a number of times what those values are – see most recently your Honour Justice Gordon in Benbrika (No 2) at paragraph 51.  So, twofold:  first, the historical judicial protection of liberty against incursions by the legislature or the Executive; second, the protection of the independence and impartiality of the judiciary so as to ensure the judiciary can operate effectively as a check on legislative and Executive power.

Now, those matters, the structural constitutional protections and their underlying constitutional values which they reflect are correctly described as lying at the core or the heart of our system of government.  That is a point made by your Honour Chief Justice Gageler again in Garlett at 125 and 133.  And so, it is because we say of that point that their very centrality lying at the heart of the system of government, that particular care is required to ensure that that arrangement and those important values are not undermined or subverted by an overly broad approach to the exceptions to the statement in Lim. 

That dictates, then, the approach that we have contended for in paragraph 29 of our written submissions, picking up what was said by Justices Callinan and Heydon in Fardon which your Honours do not have in the bundle, but we have extracted the relevant passage.  That is, that the Court ought to be – the term they used was:

vigilant in ensuring that the occasions for non‑punitive detention are not abused or extended for illegitimate purposes. 

That notion, the need for vigilance, was also noted by your Honour Justice Gordon in Garlett at paragraph 174.  The last point is that, in putting all of that we do not think we are departing from what your Honour Justice Edelman said in Benbrika (No 2) at paragraphs 86 to 88 – that is, what we are doing there, we do not think involves the development of an independent implication in the nature of a right to personal liberty or some aspect of the rule of law.  We are simply putting that as a way of coherently interpreting the constitution and looking to the substantive goals or values underpinning it to guide the resolution of controversies regarding its application.

Now, armed with those propositions, we say you can see that doctrinal approach from the outset in Lim itself.  We say that tells you how one approaches the scope of the legitimate non‑punitive objects in the current context.  At that point, can I invite your Honours to go back to Lim, which, again, is in volume 3, tab 16, page 544.  Can I ask your Honours to note that I am not, of course, going to read the canonical passage at 27 to 28.  At the foot of 28 the point that that statement – and this has been said a number of times – of principle is founded on a particular view of the relationship between the individual and the State, the essence of that relationship is that the individual is ruled by the rule of law and the law alone, footnoting to Dicey.

The point that arises from that is the point that I made before.  Because that observation about the relationship between the individual and the State is a bedrock value underpinning the constitutional structure, the principle stated at page 27 is then to be regarded as the norm.  Then, of course, the Court goes on to recognise that there are – this is at page 28 – a number of classes of exceptions, but again, the point of that was really to emphasise their exceptional nature.

We say it is not to be understood as giving licence to undermine the deeply‑entrenched structural protection just described apparent from the characterisation of that notion as an immunity at 28 to 29.  It is true that these observations are made by reference to citizens, but it has since been made clear – see Falzon at paragraph 33 – that the same protective principle applies to aliens.  So, it is important to bear those matters in mind when you then come on the following page at 29 to consider the way their Honours then analysed the position of aliens.

Their Honours introduce the topic under the heading “Exclusion, Deportation and Detention of an Alien”, noting that while an alien within the country enjoys the protection of our law, their status, right and immunities differ from those of a citizen, and the most important difference, of course, is said to flow from the common law and provisions of the Constitution.  I note the reference in that introductory passage to exclusion, which is something that our friends seize on.

Your Honours need to read that reference carefully.  It footnotes to [67].  At [67] at the bottom of the page, you see it goes back to footnote [54].  That, in turn, takes your Honours back to page 26 and, when your Honours go back there, you will see [54] refers to, as the first authority, Robtelmes.  I will not take your Honours to it in the interests of time, but can I just read to your Honours what that passage says.  So, Chief Justice Griffith, referring to the Privy Council’s decision in Cain, says:

“The power of expulsion is, in truth ‑ ‑ ‑

STEWARD J:   Sorry, Mr Lenehan, what page?

MR LENEHAN:   In Robtelmes, your Honour?

STEWARD J:   Yes.

MR LENEHAN:   Yes, it is 400, and the joint bundle reference is 2198.

STEWARD J:   Thank you.

MR LENEHAN:   So, about halfway down the page, his Honour says:

“The power of expulsion is, in truth, but complement of the power exclusion.  If entry be prohibited it would seem follow that the Government which has the power to exclude should have the power to expel the alien who enters in opposition to its laws.”

So, as we read that passage, all that he is referring to in talking of exclusion is preventing an alien from physically entering Australian territory.  What is being said, coming back to Lim, is that that can be done.  The government can choose to admit, as an alternative, an alien or, if the alien has physically entered the territory, then deport.  But it does not have in mind some broader notion, which is what our friends seem to take from it, of segregation from the community in an unbounded way.

EDELMAN J:   The reasoning in Robtelmes has to be also understood in light of the decision itself and the facts.  This is a case about deporting British citizens in 1906.

MR LENEHAN:   Yes, we are a long way from where our friends want to be, your Honour.  That is so.  Can I then come back to 29 and 30, and so what their Honours then go on to explain by reference to both the common law and the Constitution is the point that they make at the outset, that is that there is a vulnerability to exclusion, in that sense, or deportation.  If your Honours look to page 30, at about point 6, and this is again referring to Cain, you will see the notion is that there is a power to deport and an:

associated power to confine under restraint . . . to make deportation effective –

Then, as to the Constitution, see what follows at 30 and 31 making a similar point in relation to the aliens power.  You see there, again, the notion of restraining, at the top of 31:

an alien in custody to the extent necessary to make the deportation effective.

And so, where one then goes over to page 32 and sees, really, the statement of the exception, where detention is conferred for the purpose of the exercise of that power it is detention that is incidental to its exercise and takes on its character, but note the words – and these are words that your Honour Justice Gordon emphasised in Benbrika (No 2):

The reason that is so is that, to that limited extent –

Not some broader free‑floating exception operating generally on alien status:

authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth.

That is entirely correctly described as involving a “narrow range” of circumstances, that is the description that your Honour Justice Edelman made in AJL20 at 128, and it is that limited legitimate non‑punitive purpose that is then injected into the reasonably necessary test on page 33. It is that narrow identification of the legitimate non‑punitive purposes that supports the detention of aliens which, in the way that I explained when I addressed your Honours before, coheres with the point that I noted appears at the outset of Lim.  That is, referring to Bolton, aliens no less than citizens benefit from common law freedoms and the inherent constitutional incapacity of the Executive to detain, absent affirmative statutory authority.  Having made that point at the outset, the authors of the joint reasons in Lim can be understood as being careful not to go further than was dictated by those historical and structural matters on which they rely in arriving at what we are describing as a carefully‑crafted exception.

Now, the way that I have just explained Lim and the exception has been understood in the way that I have been putting in later authorities of this Court, and I will not take your Honours to them, but I will give you the references.  That is how Lim was explained by three members of the Court, including your Honour the Chief Justice, in Plaintiff M76, and your Honours have that in the joint bundle at volume 6, tab 32 and it is at paragraphs 138 and 139.

That is also how Lim was explained by five members of the Court in Plaintiff S4.  Your Honours have that in volume 6, tab 34, and the relevant passages are paragraphs 25 through to 27, which is JBA 1943, or 231 of the report.  Now, our friend will no doubt come back and tell your Honours that that is a case all about construction, but their Honours are there summarising what was said in Lim and giving their explanation of that holding.

GORDON J:   In S4 at 25 they identify three purposes.

MR LENEHAN:   They do.

GORDON J:   Do you make any point about that as to its consistency with Lim?

MR LENEHAN:   Yes, we say that is entirely consistent with Lim, and the word – I am just ‑ ‑ ‑

GORDON J:   They do two things in S4.  They identify at 25 the three purposes which, as I understand, you say are consistent with Lim, and then in 26, adopt the reasonably capable if necessary test.

MR LENEHAN:   They do, and then say lawfully the purpose, the statutory purpose, reflecting those constitutional limits can only be one of those three purposes, and those are the three – we are here, of course, talking about removal, but it is not said by our friends to be any of the other two purposes identified in S4.

GORDON J:   Thank you.

MR LENEHAN:   Just to complete my brief excursion, without taking your Honours to the authorities, that is also how Lim was understood by five members of the Court in Falzon, and that is at paragraphs 24, 29, 39 and 63, and again, I will not take your Honours to that.

Now, as I mentioned before, our friends’ response to that is that we have stated the legitimate non‑punitive purpose of immigration detention too narrowly.  Again, that is in paragraph 46 of their written submissions.  They, as your Honours have seen, highlight the terms “segregation” and “exclusion” which have been used in the authorities from time to time in explaining their preferred legitimate non‑punitive purpose.

We make a number of responses to that.  The first is segregation – we do not understand our friends to put this, but it perhaps comes out in some of the judgments in Al‑Kateb, and I will take your Honours to those later, but we say segregation per se as amended itself, itself is not a legitimate purpose.  Our friends, as we understand it, do not advance that sort of proposition.  If they do, then I will address that in reply.

But can I note for now an important point, because some of this does come from Al‑Kateb, about how Justice Hayne, the author of the leading judgment in Al‑Kateb, described the references in that case to exclusion and segregation.  Your Honours can see that in Re Woolley, which is, in our submission, a helpful authority to understand much of the discourse in this area.  So that is volume 6, tab 38.  Can I note first – I am not going to take your Honours to this part of the reasons – Justice Gummow makes various criticisms of this notion of exclusion at paragraphs 135 to 148.  We have referred to that in our reply, I will leave your Honours to read that.

What I wanted to do at the moment was direct your Honours to Justice Hayne’s response to that, which is at paragraph 222 – that is 75 of the report or 2180 of the joint bundle.  What his Honour does there at 222 is first refer to his reasoning in Al‑Kateb and the conclusion that the Act did not infringe the constraints that flow from Chapter III.  Then he goes on in that same paragraph to say:

Further, immigration detention is not detention for an offence but it excludes the person who has entered Australia from the community which he or she sought to enter.  It excludes that person from the community by segregating him or her from it though, of course, while segregated that person is not beyond that community’s law.

So, you immediately see from that last part and then from the next sentence, it is not some broader notion of exclusion.  What it seems to have in mind is physical exclusion.  That is then made clear in the paragraph that follows, paragraph 223, where he responds more directly to Justice Gummow’s criticism of this idea.  In essence, Justice Gummow’s criticism is that the references to exclusion and segregation in Al‑Kateb seem to be drawing on, I will call them “inapt ideas”, which have either ceased to be of contemporary relevance or are drawn from constitutional contexts, the immigration power, that are non‑analogous.  What Justice Hayne is doing in 223 is seeking to make clear that, in referring to segregation or exclusion he is not going that far – this is a little way down on page 76:

Rather, it is used to describe the consequences visited by the Act upon aliens who do not have permission to enter and remain in Australia.  The Act requires that such persons be detained in immigration detention.  The consequence of that detention is that they are excluded from the community they have sought to enter and it is their status of alienage which provides the critical connection with constitutional power –

et cetera.  That then brings to mind the point that has been made a number of times by the Court, and that is that it is important when thinking about the objects and the constitutionally‑permissible objects that a statute might pursue to distinguish between the legal purpose of a Statute on the one hand and its consequences or its effects on the other.

That was a point that your Honour Justice Edelman made in AJL20 at paragraph 134. A similar point was made by your Honour Chief Justice Gageler in Alexander at paragraph [101], where your Honour talked about distinguishing between:

the “purpose” (or “object” or “end”) of a law –

and:

the “manner” (or “means” or “mechanism”) by which the law is designed to achieve that purpose.

Your Honour went on to refer to the decision of the Canadian Supreme Court in Moriarity at paragraph [105] of Alexander, and made this point:

if the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them.

That is the danger, really, we say, of our friends’ analysis.  It is why we say the references in – your Honours will have seen that they refer to the joint reasons in AJL20, to the segregation – why those references do not have the significance for which our friends contend.

Can I note, first, about AJL20, that what the joint reasons do – sorry, your Honours have that at volume 3, tab 17 – so, from paragraph 20 and following, the joint reasons seem to summarise many of the authorities that I have just been to, including Lim and Plaintiff S4, and so we say that it is unlikely – and the reference for S4 appears at paragraph 27, page 64 of the report – and it is the passage that your Honour Justice Gordon and I discussed just a moment ago, referring to the three limited purposes which are permissible under the Act.  So, we say it would be surprising if the majority in AJL20 were purporting to develop a new and different permissible purpose without expressly saying so when the Court was referring expressly to that line of authority.  But, we say, that the ultimate explanation for all of this – your Honours see in paragraph 61 ‑ ‑ ‑

JAGOT J:   Paragraph 61?

MR LENEHAN:   Paragraph 61, yes, of the reasons in AJL20. So, that appears at page 76. Their Honours analyse – what their Honours say there is:

the segregation of unlawful non‑citizens, both before they are admitted pursuant to a visa and in order to facilitate their removal if a visa is not granted.

Those are the things that 189 and 196 require.  So that, we say – in particular, looking at the words “in order to” – has the separation that I have identified before.  The first aspect, segregation, really just describes the effect or consequence of executive detention.  It is the last words, “in order to facilitate their removal”, which identifies the most important aspect of the relevant non‑punitive, legitimate purpose to which the Act gives effect.

So that, we say, is entirely consistent with the line of authority to which the joint reasons refer and to which I have referred your Honours in very short terms earlier.  We say, you can see the same analysis in the earlier passages that our friends place reliance on – so that is paragraph 28 and then 44.  Paragraph 28 appears on page 65.  So, what is referred to there is segregation pending removal.  So, the critical aspect of a legitimate purpose there lies in the words “pending” removal, which assumes that that thing, “removal”, is something capable of fulfilment.

And that is why, this is in paragraph 28, from S4 – in the further quote that appears there, has “removal” – this is in the final part of the quote – is identified as the event which, failing all else, “must occur”.  And if your Honours think about it, if it were otherwise – if segregation per se or some broader segregation‑related object was permissible – the Lim exception, the narrow Lim exception that I have identified earlier in my submissions, would really collapse, because the Executive could then detain to segregate, even if removal could never be achieved. 

GORDON J:   So, your short point is there is a distinction drawn between segregation pending removal and segregation for the purpose of removal or for deportation.

MR LENEHAN:   Yes.

GORDON J:   That is your short point.

MR LENEHAN:   It is.

GORDON J:   And your second point is that, in a sense, if one analyse it in the means-and‑end analysis, the Commonwealth has collapsed means and ends into one box.

MR LENEHAN:   It has, yes.  Your Honour puts it far more succinctly than I do, and we embrace that.

GORDON J:   No, no, I am just making sure I understand your argument.

MR LENEHAN:   Yes.

GLEESON J:   Mr Lenehan, how does that reading of paragraph 61 fit with the two citations of Justice Hayne’s, paragraph 254 in Al-Kateb?

MR LENEHAN:   I am just going back to 61 – I am sorry, your Honour.  So, your Honour, that is the point that I made before about the freedom that an alien has, and so his Honour’s reasons there do appear to proceed from the premise that a person in the position of my client does not have that freedom, and we do say that is wrong.  That was not essential to the conclusion of the plurality in AJL20, so we would not say your Honours take anything from that that is inconsistent with what I have been putting.

GORDON J:   Can I ask another question along those same lines?  In Al‑Kateb, at a level of generality, I think it was put that the purpose of detention for removal would not be spent until it had been “reasonably practicable” to remove the non-citizen concerned.

MR LENEHAN:   Yes.

GORDON J:   In AJL20, the majority at 71, that seemed – is that consistent with what is at 70 to 71? That a failure to remove a person “as soon as reasonably practicable” does not affect the lawfulness of the detention?

MR LENEHAN:   No, we say it is not, your Honour.

GORDON J:   What is the answer?

MR LENEHAN:   So, the circumstances that arose in AJL20, of course, are quite different to the circumstances of this case.  That is the point that your Honour and Justice Gleeson explained in that case:  the Executive was refusing to perform the duty.  Whereas in this case, and this is the reason, then, for ‑ ‑ ‑

GORDON J:   I am sorry, I just missed what you just said then.  I did not hear what you just said then.

MR LENEHAN:   So, that was the point that your Honour Justice Gleeson and your Honour made, that in that case the Executive was refusing to remove.  It is not the case that your Honours are confronted with here, which is the Executive cannot remove, that it is not reasonably practicable.  And so, that then explains the qualification that is made earlier in the joint reasons at 26 on page 64, where their Honours expressly say that the correctness of the constitutional holding in Al-Kateb does not arise for consideration in the present case.  It did not arise because the facts were entirely different.

GORDON J:   Thank you.

MR LENEHAN:   So, that is how we explain the legitimate non-punitive purpose.  That of course, again, in Jones and Benbrika (No 2) is not the end of things, the court then goes on to consider the relationship between that purpose and the means the law adopts to achieve it.  And I will move to that now, your Honours, having just spent some time considering it, are very familiar with what is involved.  And so, it is captured in a test adopted in Lim at page 33, whether the detention authorized is:

limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.

And so, going to the reasons in Jones at 43, your Honours know that the term “necessary” is then to be understand as meaning “reasonably appropriate and adapted”.  So, as your Honours in the joint reasons then said, that is:

ultimately directed to a single question of characterisation:  whether the power to impose the detriment conferred by the law is properly characterised as punitive and therefore exclusively judicial.

Your Honour Justice Steward in Jones generally agreed with that part of the joint reasons at 197.  Your Honour Justice Gordon at paragraph 78 adopted a similar approach, referring to the inquiry as involving consideration of whether the provision is sufficiently tailored to the achievement of the purpose.  Your Honour hastened to indicate that the label of “proportionality” was:

misleading to the extent that they import notions of structured proportionality.

Which I am not going to be advancing.  But your Honour did not seem to be troubled by the use of that term in some, I will call it, looser sense.  Your Honour Justice Edelman said that structured proportionality could be applied as a relevant analytical tool.  That is at 151, although your Honour noted that the Lim formulation did not demand it.

Your Honour was content to apply the appropriate and adapted formulation in Jones, see 156.   Now, as with the identification of a legitimate non-punitive purpose, your Honours in the joint reasons and also your Honour Justice Gordon made clear that that question must be undertaken in a manner that is faithful to the constitutional values safeguarded by the Lim principle which I identified before and you see that in Jones at paragraph 44, and also in your Honour Justice Gordon’s reasons.

Your Honours in the joint reasons in Jones also make clear that one does not approach that question in a way that constrains the analytical techniques to be applied in the abstract, and, as I have noted, your Honour Justice Gordon made a similar, perhaps stronger, point about structured proportionality.  The course of authority prior to these decisions – we say that they are not entirely overtaken by Jones and Benbrika (No 2) – nevertheless establishes that there are a number of matters that will point one way or the other in the particular context that arises here.  That is what we have sought to capture in our three conditions which we say are all failed.

I will explain each in turn.  I am going to do so by reference to some of the doctrinal ideas that have been canvassed by this Court in dealing with the relationship between means and ends in other constitutional contexts, notably the implied freedom.  But, of course, I am not going to do the thing that I have just said I will not do, that is, impose some sort of doctrinal straightjacket in doing that.  In a way that, we say, is really similar to the area of the implied freedom before McCloy.  They can be regarded as useful tools of analysis which we do say points to the correct result, but are not to be applied that is limiting on the Court.

Can I start with the first condition, and in the interest of time I will do this by reference to our written submissions.  We identify what that condition is in paragraph 34 of our written submissions.  We say there that where a Commonwealth law authorises detention for an identified purpose, that purpose must be one that is reasonably capable of being achieved or capable of fulfilment, and we advance that on the basis of a number of authorities that we have collected there.  Can I, perhaps, take your Honours to just one, which is Plaintiff M68, and your Honour Chief Justice Gageler’s reasons at paragraph 184.

BEECH‑JONES J:   Sorry, Mr Lenehan, what was that paragraph number again?

MR LENEHAN:   Paragraph 184, which is in the joint bundle, your Honour, page 1757, or page 111 of the report.  Your Honour there says:

The duration of the detention must be reasonably necessary to effectuate a purpose which is identified in the statute conferring the power to detain –

That is an aspect of what we have called the second condition, but – and this is the first condition:

which is capable of fulfilment.

Then, over the page, as part of paragraph 185 – so the top of 112 – your Honour says:

The requisite connection with that role –

This is referring to the regional processing arrangement:

would be broken were the duration of the detention to extend beyond that reasonably necessary to effectuate that role or were that role to become incapable of fulfilment.

Your Honour Justice Gordon, dissenting in the result, adopted a similar formulation, or similar qualification, at paragraph 392 of the report.   Can I say what is perhaps obvious, which is the language of incapable or capable of fulfilment is clearly not directed to the ongoing existence of good‑faith efforts on the part of the Executive to remove.  It is clearly looking at the other side of the equation:  are those efforts in what I will call a real‑world sense reasonably capable of bringing that statutory object to pass?

That analysis involves a step that can broadly be said to resemble the rational connection test in structure proportionality – and again I hasten to say I am not doing what your Honour Justice Gordon says I should not do.  To demonstrate that and to stay friends with your Honour Justice Gordon, can I note in McCloy your Honour Chief Justice Gageler, also eschewing structure proportionality, said that that kind of examination of the rational connection with permissible end could be applied in the implied freedom context, and your Honour used it to explain the result in Unions (No 1).

Your Honour made the point that absent some rational connection between the relevant criterion of legal operation and the asserted end, it may not be possible to conclude in that case that the restriction on political communication imposed by the law is explained by the laws pursued of the putative object or putative purpose.

So, applying that here, if the putative statutory object said to justify detention – which, as we say, can only really be removal – is not reasonably capable of fulfilment, then that connection between means and ends adopted in the law and the permissible object is broken – see again M68 at 185.  That has the consequence that the detention is not, in these circumstances, able to be explained by that asserted non‑punitive legitimate purpose, and so the consequence is that the Act will not – or the detention that is authorised will not escape its default characterisation as punitive in that particular operation.

Now, we think our friends do not disagree with us that the first condition is one that is required.  The dispute rather seems to be that we have stated the permissible purpose too narrowly and that is wrong really for the reasons that I gave before.  But our friends’ submission on this aspect illustrates the flaws in their own argument – see paragraphs 47 and 48 of their written submissions – because it seemingly said in that part of their argument that the first condition will invariably be met because in all cases actual removal to some third country will remain a possibility, including in the case of a refugee because the circumstances in their home country may change at some time in the future.  That seems to have in mind that the permissible purpose removal is, in that sense, reasonably capable of being achieved even though it is nothing more than a hope which may or may not come to pass at some undefined point in the future.

So, we say that mistakes what was said in the authorities that I have just referred your Honours to.  What is involved here is the capacity to fulfil a statutory object, not whether there exist ongoing good faith efforts to seek to do so.

GAGELER CJ:   So, the argument against you seems to be that it is enough to be shooting at the target; there does not have to be any realistic prospect necessarily of hitting it.

MR LENEHAN:   Yes, and we say that cannot be right.

GLEESON J:   Does that perhaps describe the difference between what is possible and what is conceivable?

MR LENEHAN:   Yes, it may.  Now, we say your Honours would not adopt the shooting at the target approach because, if that were acceptable, the permissible exceptions for the detention of aliens is not limited, in fact, to a narrow range of circumstances – using again your Honour Justice Edelman’s words from AJL20 – their detention would be constitutionally permissible in all circumstances, provided the Executive is in some way bound to undertake what I will call the charade of working towards a punitive object of removal – shooting at the target is sufficient.  We make, again, the point that I made before.  That is, the Court should be very wary of undermining the important values protected by Chapter III when considering a suggested approach which involves that very broad approach to the exceptions to the statement in Lim.

Now, that takes me to the second condition which we understand that our friends also do not dispute.  That is, where a Commonwealth law authorises detention for an identified purpose, the duration of the detention must be limited to what is reasonably capable of being seen as necessary to achieve that purpose.  That is a more precise articulation of the test from Lim.  It is founded upon Chief Justice Gleeson’s explanation of Lim in Re Woolley, which was then picked up by three members of the Court, including your Honour the Chief Justice in Plaintiff M76, which your Honours have at volume 6, tab 32 of the joint bundle, if I can invite your Honours to briefly go to that authority.  The relevant passage is at 369 and 1885.

BEECH-JONES J:   Mr Lenehan, could you explain to me what the difference between this and the first condition is again?

MR LENEHAN:   Your Honour, the first condition is that the object must be capable of fulfilment, and I think your Honour has in mind that these may be related, and they are because – and this is really what we are saying:  if something is incapable of fulfilment, then it cannot be said to be reasonably necessary in terms of duration.

BEECH-JONES J:   But when you are using “capable”, you mean not reasonably capable?

MR LENEHAN:   We do.

BEECH-JONES J:   Yes.

MR LENEHAN:   And I am about to tell your Honour that it is essentially for the same reasons that we say the first condition is not satisfied that the second condition is not satisfied.

BEECH-JONES J:   I am sorry, I took you off your course.  You were going to M76, is that right?

MR LENEHAN:   I was.  So, what is said at paragraph 139 – and your Honours see at the foot of the page footnote (112) by reference to Woolley – is that the:

holding in Lim is not that detention itself be necessary for the purposes of the identified administrative processes but that the period of detention be limited to the time necessarily taken in –

those things.  Then paragraph 140:

The constitutional holding in Lim was therefore that conferring limited legal authority to detain a non‑citizen . . . is limited to such period of time as is reasonably capable of being seen as necessary for the completion of –

those things.  So, reading it ‑ ‑ ‑

GORDON J:   Can I just ask one question about that.  That language is the language that has been adapted by you in the second condition?

MR LENEHAN:   Yes.

GORDON J:   Is that any different from what is put at paragraph 35 of your written submissions?  I will ask a different question – it is intended to be to the same effect?

MR LENEHAN:   It is, yes.  I hope I have not strayed from those.  If I have, I will be hearing from you.

GORDON J:   Thank you.

MR LENEHAN:   Looking at it in that way, your Honours would understand that there is some resemblance – and, again, I am hoping not to get in trouble with your Honour Justice Gordon – to the necessity aspect of the McCloy text.  It is an inquiry about the particular relationship between the asserted permissible end and the means that the statute adopts to achieve them.  It has not been understood as involving a broader inquiry – see what is said in M76 – about less restrictive measures or whether the detention, itself, is necessary, so it involves ‑ ‑ ‑

EDELMAN J:   Your first condition bears some resemblance to the first stage of that inquiry and legitimate purpose.

MR LENEHAN:   Yes, yes, it does.  I am making that point, your Honour, but I am saying that these things were in play prior to McCloy and were used by ‑ ‑ ‑

EDELMAN J:   They might have been in play for centuries but just in different language.

MR LENEHAN:   Yes, yes.  I am hoping to make all of your Honours happy.  We do say – I am going to steer away from dangerous territory and take your Honours back to Justice Brennan’s idea in Cunliffe – which your Honours do not have in the joint bundle. I will just give your Honours the reference – 182 CLR 324. His Honour refers there to Tasmanian Dam ‑ ‑ ‑

GORDON J:   What page, please?

MR LENEHAN:   Page 324.

GORDON J:   Thank you.

MR LENEHAN:   And talks about this idea:  if the means are excessive, the purpose, or object, that the law achieves does not pervade and explain the operation of the law to an extent which warrants the overall characterisation of the law as non‑punitive.  So, that idea has this in mind.  That conclusion will point again to the default characterisation – that is, it is, in fact, being inflicted for punitive purposes.

Then, returning to the good point that your Honour Justice Beech‑Jones made to me before, we do say that that condition is not satisfied – either that we do so for, essentially, the same reasons that we say the first condition is not satisfied, because if removal is not reasonably capable of being achieved, it cannot be said that the continuing detention of my client is reasonably capable of being seen as necessary for that purpose.

Now, your Honours will have seen that in our written submissions we seek to draw a contrast with the facts in Lim because – and I think Ms Gordon took your Honours to this part of the report this morning – at page 34, joint bundle 587, the conclusion of the majority was that the relevant provisions in that case complied with the second condition only because it was always within the power of the detained person to bring his or her detention to an end by requesting to be removed, under the equivalent of section 198(1).  And, your Honours saw before, my client has made a request to be removed, but despite that request, there is, and was since May 2023, no real prospect of his detention ending in the reasonably foreseeable future.

Briefly, our friends say that AJL20 expressly holds that this condition is satisfied. You see that in the written submissions at paragraph 44, but that that has to be read in light of the passage that I directed your Honours to earlier in the joint reasons. That is, the express observation that no challenge was made to the Constitution or hobbling in Al-Kateb, and that the correctness of that decision did not arise for consideration.  So, the particular operation of the Act that we impugn here, we say, is not addressed by the reasoning in AJL20, and it does not stand in our way.  Now, the third condition ‑ ‑ ‑

STEWARD J:   Just before you move on, can I ask a question which you may not be able to answer in a meaningful way.  These tests expressed in the language of generality are easy to understand, but they are going to be very difficult to apply in the real world on a fact-by-fact basis.  Can I ask you this:  if we had to go back into lockdown and the borders closed in circumstances analogous to what we had some years ago, would you say that your first condition for all people in detention cannot be reasonably fulfilled? 

MR LENEHAN:   Your Honour, I may need to think about that, and I will refer to your Honour ‑ ‑ ‑

STEWARD J:   That is the thing that worries me about expressing the tests at these levels of generality, is that once we hand down our decision, depending on which way it goes, the Federal Court, for example, will be met with lots of cases, and they will want some guidance.

MR LENEHAN:   Your Honour, can I answer that question in this way.  Obviously, if we are right, there will then be more cases which will test the limitations of the constraint.  That is ‑ ‑ ‑

STEWARD J:   That might be the only answer you can give me. 

MR LENEHAN:   Yes, I think it is.  But that, of course, is simply what happens with this Court’s pronouncements on these difficult areas of law, and then the subsequent development of the jurisprudence by initially lower courts. 

STEWARD J:   We do the easy stuff.

MR LENEHAN:   I am not sure I would put it that way, your Honour. 

BEECH-JONES J:   Mr Lenehan, would you seek to resolve the outcome in AJL20 with what you contend by saying AJL20 holds that a subjective purpose for those administering the law not to, in effect, affect removal does not render it contrary to, effectively, Chapter III or outside the Act, but an objective characterisation that that is not reasonably capable of occurring does?

MR LENEHAN:   Yes, yes, that is a useful way of reconciling the authority with what we say.

GAGELER CJ:   Or another way of reconciling it, which may be stating the same thing in different words, is that AJL20 said the appropriate remedy for non‑fulfilment of the statutory duty is mandamus.

MR LENEHAN:   Yes.

GAGELER CJ:   You would say that, in your case, mandamus would be futile.

MR LENEHAN:   I was about to make that very point in coming to the third condition, your Honour, and I was going to do that by reference to Mr Trail’s case, which your Honours have in the bundle but which no doubt your Honour has already read.

GAGELER CJ:   I am sorry, I spoiled it for you.

MR LENEHAN:   No, you were saving me time, your Honour.  So, the third condition then is set out in paragraph 38 of our written submissions, and so the point there is really that not only must the statute ensure that the duration of attention is not excessive measured against its permissible purpose, it must do so in a way that imposes what we will call relatively tight constraints upon the Executive, such that the duration of any form of detention and thus its lawfulness must be capable of being determined by a court and ultimately this Court at any time and from time to time.  Ms Gordon referred to that idea in the course of her address this morning.

I will not take your Honours to the authorities where that has been clearly said, we have collected them in our written submissions.  They include Plaintiff S4 and Plaintiff M96A.  But that has in mind, particularly the passage in 96A at paragraph 31, that:

Parliament cannot avoid judicial scrutiny of the legality of detention by criteria which are too vague to be capable of objective determination.

Vagueness as a matter relevant to validity in other contexts has been considered as something which is able to be scrutinised when looking at the relationship between means and ends.  For example, although the position on this point is not entirely clear, Browne suggests that it may be a matter which is relevant to the extent of the burden in an implied freedom context.

Now, in this context, it has a more pressing significance, we say, because it brings to bear the second of the values or rationales for Chapter III’s strict separation of federal judicial power from Executive and legislative power that your Honour Justice Gordon noted in Benbrika (No 2) at 51.  That is, ensuring that the judiciary can operate effectively as a check on those things – legislative and Executive power – and reflecting a particular concern with the possible arbitrary exercise of power.

So, the effect of that is really to require a particular kind of close connection to exist between the permissible end and the means adopted by Parliament to pursue that end, and in limiting the duration of a detention such that it is not excessive measured against its permissible purposes, Parliament is therefore required to do so via concretely ascertainable criteria capable of enforcement in a court.  For the reasons that I just gave to your Honour the Chief Justice, we say that is essentially fruitless in this case because, were we to seek mandamus, we would be told it was futile and the case would fail.

GORDON J:   The other difficulty about it may very well be that the inquiry for habeas, as distinct from mandamus, is radically different.  That is, the facts one is asking about are different.

MR LENEHAN:   Yes.  Yes, your Honour, that is so.  I think we have picked up the references in our outline, but we do rely on the manner in which your Honour Chief Justice Gageler reasoned in NAAJA.  Just to give your Honours the references, in the interest of time, at paragraphs 98 to 101 – your Honour was in dissent in that case but the other members of the Court reasoned that the law was valid by adopting a constrained construction of the law.  But we say that aspect of your Honour’s reasons or reasoning is a useful way of understanding the issues that arise in this case under the third condition.

I need to move on to our last point which is the leave to reopen Al‑Kateb on constitutional grounds.  Your Honours, I am noting the time.  I am going to ‑ ‑ ‑

GAGELER CJ:   Proceed, economically.

MR LENEHAN:   Thank you.  So, I will not repeat what Ms Gordon has already said regarding the John’s factors.  As regards the third and fourth factors, I do not have anything to add.  I am going to now focus on, really, the first two John’s factors, bearing in mind what your Honour Justice Edelman said in Vunilagi that those things can be understood as concerning the force of belief that the result or ratio decidendi of an earlier case cannot be justified as a matter of legal principle.

The essential difficulty, we say, on the constitutional side of things with the reasoning in Al‑Kateb is that the members of the majority either regarded themselves as free not to apply the Lim principle at all, or else did so in a way that did not correctly apply that principle.  Using the language in some of the reopening cases, it follows from that that we say that the decision stands isolated from the otherwise unbroken line of authority stretching from Lim to Benbrika (No 2) and Jones.  Before I go to the actual reasoning in Al‑Kateb, your Honours will have seen that we say a useful way of ‑ ‑ ‑

EDELMAN J:   Does any of this matter?  I mean, if your submission is right that the majority in Al‑Kateb are inconsistent with Lim, do we need to go through the John’s factors?  We need to decide which decision is right.  What would the John’s factors really add to the question of reopening?  One of them has to be reopened, on any view, if your submissions are right.

MR LENEHAN:   Yes, that must be so.  And that is a shorter way of getting to where I want to be.  So, we would adopt that.  I think I do need to take your Honours through the reasoning though in Al‑Kateb to say what the flaws are.  I was proposing to do that initially because Justice McHugh in Woolley provides a helpful overview.  Taking your Honours briefly to that case.  Your Honours have Woolley behind – in volume 6, at tab 38, and the relevant part of the report is page 29, and 2134 of the joint bundle.

GORDON J:   Sorry, Mr Lenehan, what page of Re Woolley?

MR LENEHAN:   It is page 29 of the report, your Honour, or 2134 of the joint bundle, and I am looking, initially, at paragraph 66.  What your Honours see in paragraph 66 is that the plaintiff in this case argued for a two‑stage analysis, being the analysis which is now accepted to be correct in Benbrika (No 2) and Jones.  What his Honour Justice McHugh goes on to do is, at paragraphs 69 through to about 70, 71, summarises the course of authority, starting with Lim, as to the test for the validity of legislation authorising Executive detention.  Then, see paragraph 71, his Honour says:

Until the decision of the Court in Al-Kateb, the weight of judicial dicta, therefore, favoured the “reasonably capable of being seen as necessary” test.

But then read on, down the bottom of that page:

None of the Justices in the majority in that case applied the “reasonably capable of being seen as necessary” test as the determinative test for ascertaining whether the purpose of the detention was punitive.

And then, top of 2316, or 31 of the report, points to the part of his Honour’s own reasons in Al-Kateb that established that.  He said:

“[a]s long as the purpose of the detention to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community –

As long as it has that purpose:

the detention is non-punitive”.

And then paragraph 72 goes on to deal with the reasons of Justice Hayne.  I will come back in a little bit more detail to Justice Hayne’s reasons in Al‑Kateb itself, but we say that Justice McHugh correctly observed that the focus of his Honour’s reasons was not the Lim test, which his Honour regarded – see the extract from Justice Hayne’s reasons in Al‑Kateb in paragraph 72 of Woolley.  His Honour regarded it as a test more apposite to the question of whether the law is 51(xix) law.  Over the page, 2137, and paragraph 75, referring to Justice Callinan’s reasons, notes that:

nothing in his Honour’s judgment suggests that he took the view that the validity of a law that authorises detention depends on whether the law is “reasonably capable of being seen as necessary” –

Rather, see the last part of the quote which Ms Gordon took your Honours to this morning:

The yardstick, and with respect rightly so, was ‘purpose’, the existence, that is the continuing existence of the relevant purpose of deportation.”

We say that is an accurate and useful summary of why the reasoning in Al‑Kateb went wrong.  Can I then develop that further by asking your Honours to go back to Al‑Kateb which, again, your Honours have in volume 3, tab 14.

GAGELER CJ:   You do not need to challenge Woolley?

MR LENEHAN:   Your Honour, if I do, then I would seek that leave.

GAGELER CJ:   I am not suggesting you do, but – all right.

MR LENEHAN:   Of course, Woolley is about the conditions of detention and not the duration so I think, considering that further, I will stop making reopening applications on the run.  Can I invite the Court then to go to Al‑Kateb.  Starting again – but I can do this briefly because of what I have just done with Justice McHugh’s reasons.  This is at page 584 of the report and paragraph 44.  You will see in that passage his Honour says:

However, a law authorising detention will not be characterised as imposing punishment if its object is purely protective.

So, from his Honour’s perspective, it all boils down to the question of whether there is a legitimate object, so that is only the first stage of what I will call the Benbrika/Jones framework.  Your Honours see no further inquiry on his Honour’s approach as to whether the means is appropriate and adapted.  That is the second stage of the Benbrika/Jones framework, and that is entirely consistent with what your Honours just saw was his Honour’s explanation of his own reasoning in Woolley.

Paragraph 45, that is the critical passage that his Honour identified in Woolley as the crux of his reasoning, which has the same problem.  You also see there what might be taken to be a holding that segregation is a non‑punitive legitimate purpose, to use the language of Jones, but the authority that he cites in support of that proposition, O’Keefe, does not establish that detention for that purpose is non‑punitive.  It has exactly the same problem that your Honour Justice Edelman identified before by reference to Cain and Robtelmes.  But, as I mentioned before, as we understand it, our friends do not seek to defend this aspect of the reasoning or, rather, that particular object as some sort of standalone permissible object. 

The reason for that is really obvious.  We address that in writing at paragraph 49 of our written submissions.  But the essential point there is that the exception would eat the rule.  There would be no need for the carefully delineated exception in Lim because detention of aliens in all circumstances – not the narrow circumstances that your Honour Justice Edelman refers to in AJL20 – would be permissible. 

Can I then move on to Justice Hayne’s reasons.  If I can ask your Honours to look – again, Ms Gordon took you to those parts of his Honour’s reasons dealing with construction, and I want to then pick up the ball at paragraph 248, on page 645, where his Honour first refers to Lim and then, over the page, 646, and 251, your Honours see there is extracted the critical statement from the joint reasons in Lim.  Then, over the page, 647 of the report, or 491 of the joint bundle, your Honours see that his Honour seems to assume that the test of validity posed in the joint reasons in Lim, was concerned with the identification of – he italicises:

purpose of detention –

But, as your Honours know, that is not the point of the test.  Identification of the purpose is simply the first step of the analysis – see again, Jones and Benbrika (No 2) ‑ ‑ ‑

EDELMAN J:   In short, your submission is that if Justice McHugh and Justice Hayne are taken strictly, then, for example, in relation to quarantine, a law that says that quarantined people shall be – or someone with an infectious disease shall be quarantined for 20 years, would satisfy the requirement because it satisfies the first condition, even though it does not satisfy the second.

MR LENEHAN:   Precisely, yes.  So, I will move on.  Your Honours should note that paragraph because our friends say that your Honours understand Justice Hayne is there applying the Lim test.  We say, if he in fact is, he has misunderstood it.

JAGOT J:   So, what paragraph were you referring to there?  Paragraph 251?

MR LENEHAN:   Yes, your Honour, it was 251 which goes from 646, but the passage that our friends like, in particular, is over the page on 647, following the quote.  It does not stand, for the reasons that I have just given – their argument, that is.  So, if I can then move down the page, his Honour then makes three points, but they are really criticisms about that test – the Lim test.  The first point in 253 is something that I have noted before – and that is what Justice McHugh picked up in Woolley – he says that it is:

a test more apposite to the identification of whether the law is a law with respect to aliens –

That needs to be rejected because it is plain from Jones – in all of the reasons in Jones – that this is, in fact, the test to be applied in the Chapter III context.  There is then, in 254, what appears to be a kind of a side point.  That is, that no discretion is required, and there is no judgment to be made, and there is nothing more that bespeaks that than an exercise of judicial power, but that really reveals the misunderstanding, we say, of the Lim principle, and the important point that the default characterisation of executive detention is punitive.  We also see there another reference to the matter that I addressed earlier today, that is, a denial of the premise that a person in the position of my client has liberty.

Over the page, top of 648, you see the second point.  This is really a point about the scope of the heads of power, not Chapter III.   But what his Honour says there regarding Lim and the notion that there is implicit in the joint reasons in Lim some sort of confined understanding of that power is not right.  Their Honours in Lim at 26 were clear that the laws prima facie fell within the aliens power because they concerned the subject matter of a people power. 

The question, because of the caveat that appears in the chapeau to section 51 of the Constitution is, of course, whether they passed muster under Chapter III.  And that is a different question, we say, to the head of power question.  But his Honour’s conflation of those questions then leads, in that paragraph and in the next paragraph, to the notion that segregation is in some way a permissible purpose or will be acceptable for Chapter III purposes.  His Honour also says in 256 that he does not think that:

the Ch III question . . . can be answered by asking whether the law in question is “appropriate and adapted” or “reasonably necessary” or “reasonably capable of being seen as necessary” –

et cetera.  And again, that is plainly wrong post-Jones.  Then his Honour’s third point further down the page in 257 starts by referring to the statement of the Lim principle, but then in 258 he says that the principle:

appears to assume – 

This is by reference to Justice Gaudron’s reasons in Kruger:

that there is only a limited class of cases in which executive detention can be justified. 

Now, that is correct.  That is what the principle does, in fact, assume.  But his Honour then says that that is at least open to doubt.  We say that reveals a further wrong turn, because there is no doubt about that position – again, certainly after this Court’s decisions in Jones and Benbrika (No 2).  He then seems to link the test back to a head of power idea, but again, that is the wrong focus, and you see that same error carried through in 259 and 260.

BEECH-JONES J:   Mr Lenehan, you would not deny, though, that when you are looking at Chapter III and detention in the context of different heads of power, there is a certain interrelationship – that is, when you are looking at quarantine or, more controversially, looking at wartime, there is some interrelationship between head of power and Chapter III considerations.

MR LENEHAN:   Your Honour, that is certainly the starting point.  But then, in the way that your Honour saw before, what is done in Lim is to craft something more narrow.

EDELMAN J:   The difference may ultimately be, really, just a formal one as to whether you describe it as a Chapter III limitation or as a head of power limitation, with one exception, that if it is a Chapter III, the judiciary could do it.

MR LENEHAN:   Yes, yes, that is so.  Now, starting at paragraph 261, his Honour then seems to consider another possibility, that is, that the line‑drawing exercise might be concerned with whether the consequences could be characterised as something punitive.  Now, that may come closer to what was said to be the point of the inquiry in Jones at 43.  But you will see that his Honour emphasises the point that the consequences are not inflicted on that person as “punishment” for any actual or assumed wrongdoing.

Again, that is beside the point, because detention is prima facie punitive, and, see Benbrika (No 2), punishment cannot be imposed by the Executive, even if it is unconnected with the adjudgment of guilt.  Your Honours said that at paragraphs 41 in the joint reasons – 55 to 69 in your Honour Justice Gordon’s reasons, and Justice Edelman at paragraph 90.

His Honour then, at paragraph 263 says that the root answer to all of this is that the laws are “not punitive”, and he says he is going to “explain why that is so”.  And then the explanation that follows at 264 to 266, again, does not bring to account the default characterisation of detention as punitive.  It assumes instead that there is some sort of a need to bring it within Hart’s classical understanding of the central case of punishment, which results – see 266 – in further emphasis on the fact that the “detention is not detention for an offence”.

We have noted in our written submissions the criticism of that approach, and again Jeffrey Gordon’s helpful article that the Court has in the bundle.  We do say it elevates form over substance, which is the very thing that, from the outset in Lim, was said by this Court to be important not to do.  Your Honour Justice Edelman in referring to Hart has also made observations about the care required in applying those observations, including in Alexander, at paragraph 238.  Finally, his Honour, at paragraph 267, says it is only if there is some kind of “immunity from detention” that it becomes:

right to equate detention with punishment that can validly be exacted only in exercise of the judicial power.

Then notes that any immunity must be qualified, and we accept that is true.  He then, in the next sentence, says that that turns on “the identification of those qualifications”; again, that is also true.  But the error appears in what comes next:

That must be done by references to the purpose of the detention.

That is correct in part, but again, that is only part of the question and is really only the first stage of the test adopted in Jones.  Here, again, your Honours see no recognition of the second stage of that reasoning.  But perhaps the more fundamental problem appears in the next sentence, accepting what your Honour Justice Beech‑Jones put to me before, it is assumed that the qualification is:

gleaned from the content the heads of power –

and we say that really collapses the Chapter III question with the scope of the head of power, and what really follows from that is this point – and this is perhaps a fuller answer to your Honour’s question – if the Lim principle could be qualified by reference to what laws are within a head of power, then it would have no operation, because Chapter III is a limit on laws that are otherwise within a head of power.  The aliens power, for example, operates by reference to status.

So, if Justice Hayne were right, the qualifications in Chapter III would be any power of detention that operated on aliens per se, but that is precisely what we say Lim rejects.  Instead, Lim makes clear that the qualification exclude, admit, deport is an historically‑based exception informed by matters of territorial sovereignty, and is narrow.  So, we say like Justice McHugh’s approach, Justice Hayne’s reasoning is not compatible with a contemporary understanding of the Lim principle and we say that also points powerfully in favour of reopening.

Now, I do not need to take your Honours extensively through Justice Callinan’s reasons, because the essential vice appears in paragraph 294 of his reasons and the reference to “purpose” and “yardstick”.  As I said before, that only goes as far as the first stage of the Jones analysis.

So, returning, then, to the question of reopening, what I have just said reveals strains within – sorry, just to complete the picture, Justice Heydon, of course, agreed with Justice Hayne.  But we do say there are strains within the three lines of reasoning that I have just identified, but more fundamentally the difficulty with that reasoning is that it is not compatible with the contemporary understanding of the Lim principle as enunciated by this Court in Benbrika (No 2) and Jones.

So, picking up again on your Honour Justice Edelman’s point from Vunilagi, we do say that adhering to that decision cannot be justified and as a matter of legal principle should be revisited, and that is particularly so given the third and fourth John’s factors advanced by Ms Gordon.

Can I just say two further things – I am so sorry to have outstayed my time.  Your Honour Justice Gleeson asked Ms Gordon a question about John’s factor 3, and whether there was information before the Court about, for example, the position of people more generally.  We have received from the Commonwealth a further document that we would like to provide to the Court which does provide that information, and we can do that overnight, with the Court’s leave.  I should say, we have only just received that document from the Commonwealth.

GAGELER CJ:   Yes, you have that leave.

MR LENEHAN:   The final point was to come back to a matter that your Honour Justice Edelman asked me this morning, that is, the relationship between the two arguments.  In terms of reading down, there are then two pathways.  One would be partial disapplication, the idea that your Honour developed in Clubb.  The other would be the course apparently commended itself to Justice Gummow in both Al-Kateb and Plaintiff M47, that is, that the constitutional considerations lead one to the construction that Ms Gordon advanced this morning.

Unless your Honours have any further questions, those are the submissions for the plaintiff.

GAGELER CJ:   Thank you.  Now, let us assess the timing, here.  Mr Knowles, were you planning to go next?

MR KNOWLES:   Your Honour, our leave was conditioned on an appearance of 20 minutes, that is what I was planning on, but if the Court would prefer less, then we will accommodate that.

GAGELER CJ:   No, no.  I just want to know.  Ms Higgins, how long do you expect to be?  Very well.  Mr Knowles, you should proceed.

MR KNOWLES:   If the Court pleases.  In our oral outline, we have separated the issues into ones of statutory construction and constitutional validity, but as already identified, there is an overlap or at last an intertwining between the two.  I do not want to repeat a lot of what Ms Gordon has said about construction this morning, but there are a couple of matters which, in paragraphs 2 and 3 of my oral outline, I do wish to emphasise.  Overarchingly, however, the Commission’s primary point is that, on a proper construction, the Act permits detention for particular purposes, and that itself is premised on an assumption that those statutory purposes are capable of fulfilment.

In that regard, we will adopt Ms Higgins’ submission on the proper verbal formulae for determining the limits of when a purpose becomes incapable of fulfilment in the relevant sense.  The textual basis for the proposition that I have just put in terms of the requirement that the statutory purpose be capable of fulfilment was a matter which was addressed in part in an exchange between your Honour Justice Gordon and Ms Gordon this morning, but can I seek to elaborate on that slightly.

It is uncontroversial that the outer limited for the duration of detention are prescribed by removal and when removal will occur.  But, in our submission, section 196 and 198 do not only supply a temporal limitation; they supply a purposive limitation, and the reason that detention is only permitted until one of the events in section 196(1) happens is because of the assumption that I have indicated previously that achievement of that purpose is possible.  Textually, your Honour Justice Gordon referred to the reference in the chapeau to section 196(1) to the word “until” and I embrace that as being a link to the statutory purpose.  Further, that word in the chapeau is linked in subsection (1)(a) to the purpose of removal, and your Honour mentioned that.

I would also rely on the reference in section 198 to removal being required “as soon as reasonably practicable”.  Now, in terms, that could be construed only as a temporal requirement, but because of the engagement with the language of reasonable practicability, in my submission it also, if not expressly certainly impliedly, makes the connection between the possibility of the purpose being achieved and the lawfulness of the ongoing detention.

Now, that as it is put is consistent with the approach of Chief Justice Gleeson in Al‑Kateb, but I did want to return to what is put in paragraph 3 of my oral outline about one matter that Chief Justice Gleeson did identify as significant in his construction was that an approach which imposed a purposive limit was easier to discern in the context of a mandatory detention regime rather than a discretionary one.  I wanted to address specifically the introduction since the decision in Al‑Kateb of some limited discretion on the duration of detention introduced by section 195A and section 197AB, which are the Minister’s personal powers.

If one has regard to what Chief Justice Gleeson refers to in paragraph 22 of Al‑Kateb then it is apparent that he was having regard to a form of detention, or at least discretion, that would take into account matters including, expressly, the risk to the community and the danger of absconding of any particular individual. 

But section 195A and the residential determinations provisions in section 197AB do not achieve that type of discretionary form of detention.  In part because, to use the language of Chief Justice Gleeson, it is not a regime where the power to detain or the duty to detain is coupled with the discretion.

The duty in section 189, that is, the duty to detain, and the duty in 198 to remove are duties imposed on officers as defined in section 5, are the discretions introduced post‑Al‑Kateb, are vested with the Minister – they are non‑delegable and non‑compellable in the sense of the Minister having no obligation to consider the exercise of those discretions.  Further, they are based on a different criterion than that which Chief Justice Gleeson considered potentially relevant in paragraph 22, that is they are based only on the criterion of the public interest, and the Minister’s assessment of that public interest.

So, far from the introduction of some limited discretions actually telling against the type of construction that was undertaken by Chief Justice Gleeson, in our submission the existence of the Minister’s non‑delegable, non‑compellable, and largely unconfined discretions actually makes Chief Justice Gleeson’s construction more compelling.  We refer to – I do not need to take your Honours to it, because I accept it is a statement made in a slightly different context – but we refer to what the Court said in Plaintiff M61, that it would be unlikely that Parliament would intend that the indefinite detention of a person would depend only on unconstrained ministerial discretion.

I do not go as far to say that sections 195A and 197AB are entirely unconstrained, but the point remains good that one would not assume that Parliament intended that it would be left to a non‑compellable discretion of the Minister to determine whether or not the duration of detention in a context where removal is not likely.  Can I also add one final point to the arguments that we make about the introduction into the scheme of those discretions.

The defendant at paragraph 18 of their written submissions makes the point that that is an example of Parliament acting on the basis of the decision in Al‑Kateb.  It is correct that the purpose of those amendments was to ameliorate the hardship of a regime of detention that was otherwise mandatory, but that purpose is not undermined by the construction which we propose.  The discretions in sections 195A and 197AB can still serve an ameliorative purpose in cases other than cases which engage the limitation which we propose in this case.

It is also the case that, although Parliament can be taken to have been aware of the decision in Al‑Kateb when introducing the amendments, it is not necessarily the case – and in my submission the extrinsic material can be a little of an unsure guide in this regard, but it is not necessarily the case that Parliament is taken to have endorsed the correctness of that construction.  To make that point good, I refer back to paragraphs 15 and 16 of our written submissions, where we refer to the introduction of amendments which are not principally relevant in this case, but the amendments in section 196(5), which were introduced in a limited purpose in respect of a limited class of detainees to prevent release on an interlocutory basis.

The point of raising that here is that those amendments were made a time when Al Masri represented the law.  Parliament did not seek to overturn the statutory construction finding in Al Masri and accepted it in the same way – or that it can be presumed to have been cognisant of it in the same way that Parliament was cognisant of Al‑Kateb.  The mere fact that amendments were introduced following a decision would not be taken to be decisive in the context of an act that is amended as frequently as this one.

Your Honour Justice Steward asked Ms Gordon a question this morning about the relevance, if any, of section 197C.  The relevance, in our submission – and we address this in paragraphs 19 and 20 of our written submissions – is that if it is accepted that detention is only permitted for as long as removal remains a possibility in the reasonable foreseeable future then it should also be accepted that section 197C, as it is now enacted, reflects an intention that Australia’s international obligations in relation to non‑refoulement will be observed through the exercise of Ministerial discretion.  That is uncontroversial.  That is, effectively, what the extrinsic material provides.

Unless removal to a third country is possible, which is not necessarily the usual case, in a situation where a protection finding has been made and section 197C applies, Parliament will be taken, on the defendants’ construction, to permit and, in fact, require ongoing detention – and, in fact, indefinite detention – again, unconstrained only by the discretions conferred by section 195A and 197AB – again, relying on what was said in Plaintiff M61.  That is a most unlikely construction and one that ought be avoided.

Your Honour Justice Gleeson referred, in the context this morning, to the defendants’ submission that the Act assumes a binary distinction between unlawful non‑citizens who must be detained, on one hand, and lawful on‑citizens who are free to live in the community, on the other hand.  One response to that, as Ms Gordon put it, is that the binary distinction assumes the lawfulness of the detention.

It can also be said or responded to in this way:  the binary distinction or classification between unlawful non-citizen and lawful non-citizen is present throughout the Act, but it is not absolute, and it is not without exception.  One exception, albeit of a narrow class, is the class of non‑citizen non‑aliens of the type recognised in Love.  Another, perhaps quite different, exception are people subject to residential determination orders under section 197AB.  For the purposes of the Act, they are detained in immigration detention but in name only.  They are free to live in the community and it is not apparent that that regime creates any particular difficulty that there are people free in the community without visas.

Another exception to the general binary distinction is that referred to in footnote (11) of page 7 of our submissions, which are a small category of cases in the Federal Court which have determined that that court has power to release some non-citizens on an interlocutory basis.  So, the point we do not deny is that there is a distinction in the Act, but we do deny that it is binary in all senses.  The final point which I wish to address is the issue of international law, which we raised at paragraph 4 of our written submissions.  In Al-Kateb the majority’s basic position, subject to something that I will come back to from Justice Hayne, was that the principle that a statute ought to be construed as consistent with international law could not be given a lot of work in the context, because the language was not sufficiently ambiguous.  That is, that there was no constructional choice. 

Justice Hayne addressed the issue in more detail at page 642 of the report’s paragraph 238, but as we have said in writing his Honour did not address the issue of arbitrary detention and the prescription on arbitrary detention in Article 9.  Rather, his Honour took the view that it would seem unusual that detention authorised by law would be contrary to Article 9, but as the authorities, which we have referred to in writing and particularly – I do not need to take your Honours to it in light of the time, but particularly the authorities of the United Nations Human Rights Committee indicate that detention may, even if justified by law, become arbitrary if it is no longer having regard to its circumstances, reasonable or necessary.

The type of approach consistent with some of the constitutional principles that Mr Lenehan has addressed, but also in the specific context of immigration detention, the Human Rights Committee, in its general commentary, has indicated that the inability of a State party to carry out the expulsion of an individual, because of statelessness or other obstacles, does not justify indefinite detention.  Once one accepts that there is a constructional choice permitted by the Act, or at least available on the Act, then the desire for consistency with international law becomes compelling.  We have also referred to – and this is the final point we will make, referred to, in the oral outline, some authorities of comparative jurisdictions.

I do not need to take your Honours to them, and we accept, especially on questions of statutory construction, much will turn on context

and the words used.  But there is an underlying approach to construction reflected in part in the principle of legality, but not only in that, which is consistent across the jurisdictions which we have surveyed, including the United Kingdom and the United States.  My oral outline in paragraph 5 does seek to say something about the question of constitutional validity, but that has already been covered in far more depth by Mr Lenehan.  I will not expand up on that and I think, consistently with the time requirements, they are the submissions of the Human Rights Commission.

GAGELER CJ:   Thank you, Mr Knowles.  Ms Higgins, can you usefully use five minutes or so?

MS HIGGINS:   Yes, your Honour.  Your Honours, I propose to address one aspect of the construction question by focusing on the two different formulations of the test under section 198(1) of the Migration Act.  As your Honours appreciate, the amici submit that, on the proper construction of sections 189, 196 and 198 of the Act, the point at which detention ceases to be authorised or required by the Act, and the evidence, should be assessed by inquiring whether as a matter of reasonable practicability it is unlikely in the foreseeable future that the non‑citizen will be removed from Australia. 

BEECH-JONES J:   So, Ms Higgins, when you say “unlikely”, do you mean more probable than not?

MS HIGGINS:   Yes, your Honour, and I will come to that, and I will show your Honours in the authorities where that notion has been developed. 

GAGELER CJ:   Do you need the preliminary words “as a matter of reasonable practicability” in that formulation?  They seem to clutter it up a bit.

MS HIGGINS:   Can I say this, with respect, your Honour:  your Honour’s suggestion earlier “is removal likely in the reasonably foreseeable future”, has a greater elegance than the existing formulations in the case law and we would adopt it.

GAGELER CJ:   No, I am just wondering whether those words add anything.  Do they qualify what follows?  What work are they doing, if any?

MS HIGGINS:   They are, your Honour, to some extent delimiting the timeframe across which the assessment would occur, and I will come to that, but it is likely that that could be picked up in “the reasonably foreseeable future”, for example, in the formulation your Honour advanced earlier.

GORDON J:   That is what I wanted to ask.  Are they not just doing the same work?

MS HIGGINS:   They may well be, your Honour, yes.

GORDON J:   If they are not, what extra work are they doing?

MS HIGGINS:   In my submission, it is only directed to the timeframe over which assessment would occur in order to achieve the purpose of detention.

GAGELER CJ:   I know you are putting this in the context of the construction question, but would it be the same formulation at the end of the day that would be the constitutional limitation?

MS HIGGINS:   Yes, your Honour.  We say it would be, and we say – and I cannot develop this in any depth, given the constraints of time, but that if sections 189, 196, and 198 were construed such as to authorise and require detention even where removal is unlikely to be reasonably practicable in the foreseeable future, that detention would not be limited to what is reasonably capable of being seen as necessary for the purpose of removal, and thus fails one of the Lim conditions.

We submit, also, in respect of the third Lim condition, that if the test entertained only a non-fanciful prospect, it would be extremely difficult for a court to meet the third condition of ascertaining from time‑to‑time whether it was satisfied, so that the test we formulate for construction would be framed in analogous terms for constitutional validity.

EDELMAN J:   Is your test ultimately a balance of probabilities test?

MS HIGGINS:   Yes, your Honour.

EDELMAN J:   And do you say that the Commonwealth has the substantive onus on a habeas application?

MS HIGGINS:   Yes, your Honour.  On the balance of probabilities.

EDELMAN J:   So, the Commonwealth basically has to prove in each individual case in which a habeas application is brought, and as soon as the evidentiary onus is discharged, that, on the balance of probabilities, in the foreseeable future, a person will be deported.

MS HIGGINS:   Yes, your Honour.  On the balance of probabilities, removal more probably than not can be achieved in the reasonably foreseeable future.

STEWARD J:   “Can be” or “will be” achieved?

MS HIGGINS:   Will be achieved, your Honour.

STEWARD J:   Thank you.

MS HIGGINS:   The formulation we advance differs from the principal way in which the plaintiff has ‑ ‑ ‑

EDELMAN J:   Sorry, just on that.  How will the Commonwealth ever be able to discharge that without something very close to an acceptance by a foreign country?  The habeas applications brought, let us say, one month, two months after detention.  How, before the Court, would the Commonwealth be able to establish that it is probable that the person will be deported in the reasonably foreseeable future without any evidence of acceptance by a foreign country?

MS HIGGINS:   Yes, your Honour, can I answer that in this way.  We submit that an assessment of what is “reasonably practicable in the foreseeable future” will require a process of evaluation of all facts in each case, and at the time of the hearing that will be the facts known at the time of the case.  It will be a requirement of the Commonwealth, extrapolating from those facts, that it can discharge the burden of proof referrable to the test framed in terms of probabilities.  So, there will have been interactions that predicate sufficient confidence that it appears likely, more probable than not, that a foreign country will accept the non-lawful non-citizen. 

GORDON J:   Is that what Justice Mortimer did in relation, in Sami, what you have just put to us, in relation to the test you just propounded?

MS HIGGINS:   It is very close, yes, your Honour. 

GORDON J:   Is there any difference?  In other words ‑ ‑ ‑

MS HIGGINS:   It is substantially the same, the precise language may be different slightly, your Honour, but the effect of the test is the same.

GORDON J:   So, in that sense – “unlikely” means “not probable” rather than “not possible”.  One has to take into account the facts – it is the facts at the time of the hearing, and it depends upon all relevant circumstances, as a matter of factual analysis.  That is, the scope of the analysis. 

MS HIGGINS:   Precisely, your Honour, and the kinds of matter to which your Honour there alludes, how long attempts of removal have been underway, the extent of the plaintiff’s corporation and the like would be matters that inform that forward-looking assessment at the point of a hearing.

GORDON J:   At 156, 157 and 158, her Honour talks about it not being a guessing game:  it is not “hoping” or “tossing a coin”, it is something more concrete than that.

MS HIGGINS:   Yes.

GAGELER CJ:   Nor is it necessary to have a clear pathway to “removal”, is it, on this analysis?  One could have a number of contingencies that are still in play, and yet the result within a reasonable time can seem to be probable.

MS HIGGINS:   Yes, your Honour, with respect.  And another circumstance that might exist is that the Commonwealth could show that the person falls within a class of persons who have been removed in a timely fashion in the past.  There might be a class approach to removal that might also facilitate satisfaction of the burden.  But we adopt respectfully what your Honour the Chief Justice has said in terms of there not necessarily having to be a clear pathway.

GORDON J:   Her Honour said you do not have to have – you can be awaiting a response from a third country and still, in effect, reach the conclusion that it is unlikely for removal.

MS HIGGINS:   Yes, with respect, your Honour.

BEECH‑JONES J:   Ms Higgins, would you accept that all the factors that were put to you would equally be brought to bear if the test was a realistic possibility?

MS HIGGINS:   Yes, your Honour.  Yes.  Your Honours, I notice the time.

GAGELER CJ:   Yes.  The Court will adjourn until 9.45 tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 8 NOVEMBER 2023