Park & Ors v Minister of State for Immigration and Ethnic Affairs

[1989] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S27 of 1989

B e t w e e n -

PARK OH HO

First Appellant

KO JUNG WOONG

Second Appellant

LEE JUNG IN

Third Appellant

CHUNG BONG YOL

Fourth Appellant

SONG BANG JIN

Fifth Appellant

LEE JAE EUN

Sixth Appellant

( HAM BUM HOON

Seventh Appellant

and

Park(2)

THE MINISTER OF STATE FOR

IMMIGRATION AND ETHNIC AFFAIRS

Respondent

MASON CJ
DEANE J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 SEPTEMBER 1989, AT 10.17 AM

Copyright in the High Court of Australia

C2T/1/JM 1 7/9/89

MR K.R. HANDLEY, QC:  In these matters, if the Court pleases,

I appear for the appellants with my learned

friend, MISS P.M. KAVANAGH. (instructed by

Barlow & Co)

MR C.N. STEVENS:  In these matters, if Your Honours please

I appear for the respondent, with my learned

friend, MR R.N. GREIG. (instructed by the

Australian Government Solicitor)

MR HANDLEY:  Your Honours, there was a mishap in the

preparation of the appeal books, but I take

it that Your Honours now have transcriut copies

of the judgments of Mr Justice Merling- and -

Mr Justice Foster in the Full Court.

MASON CJ: Yes, we have. It seems to have been a major mishap

in the pr~paration of the-appeal books.

MR HANDLEY:	Yes, I wondered about the - - -
MASON CJ:	It is hardly comprehensible that anyone could

have thought in the circumstances that they were

complete and in order.

MR HANDLEY:  Yes. I have not looked too carefully at

the certificate of correctness at the back of

the appeal book, Your Honour, but I agree, with

respect, with what Your Honours have said.	Would
Your Honours prefer that we worked off the

Australian Law Report report of the Full Court decision?

MASON CJ:  No, I do not think it matters, Mr Handley.

I think we can work off the separate copies

of the judgments that have been provided.

MR HANDLEY:  Yes, if I the Court pleases. I think both

of us at the Bar table could work off either.

MASON CJ:  Yes.

MR HANDLEY:  If the Court pleases. Mr Justice Davies,

at first instance in the Federal Court, made
an order setting aside ab initio the deportation

orders made by the Minister's delegate in respect

of the appellants. That is the order made on-

20 August 1986. On appeal that decision was upheld

by a majority of the Federal Court by -

Mr Justice Sweeney and Mr Justice Foster.

Mr Justice Morling would have set aside
Mr Justice Davies decision and would have unheld

the validity of the de,ortation orders of

20 August 1986.

C2Tl/2/JM	2	7/9/89
Park(2)

MR HANDLEY ~ontinuing):  On the basis that three judges of

the Federal Court have held that the orders were

void ab initio and there is no notice of cross

appeal or notice of contention, we will proceed to develop our submissions through the judgment of Mr Justice Foster which, with respect, we adopt

and will be adopting. Would Your Honours be good

enough, then, to turn to the judgment of

Mr Justice Foster. His Honour sets out sufficiently

for present purposes the facts and the relevant

statutory provisions.	Going to page 4, Your Honours,
the first two lines:

It is clear that all the appellants

entered Australia illegally on the 26th
July, 1986.

Next paragraph:

The appellants were arrested -

His Honour does not mention the date of the arrest

but they were, in fact, arrested on the same day. under s. 38 of the Act

that is, the MIGRATION ACT -

which provides for arrest by an officer, without
warrant, on the basis of reasonable supposition

that the person arrested is a prohibited

non-citizen within the meaning of the Act.

The section authorises the keeping of the

person arrested in custody and for his

being brought before "a prescribed authority"
within 48 hours after arrest. Thereafter,

detention may be authorised for periods of

not more than seven days by the prescribed

authority upon his satisfaction that there
are reasonable grounds for supposing that

the person detained is a prohibited

non-citizen. These periods of time are

such as to enable the Minister to consider

whether a person is a prohibited non-citizen
and whether a deportation order should be

made. Once such an order is validly made,

the non-citizen's custody changes from
custody under s. 38 to custody under s. 39

whereby he is detained "in such custody as

the Minister or an officer directs - pending

deportation".

C2T2/l/SH	3	7/9/89
Park(2)

l1R HANDLEY (continuing):  Page 5:

There is no dispute that the appellants,

being non-citizens and having entered

Australia without appropriate entry

permits, were thereby "prohibited

non-citizens". They were quite legally

arrested by officers of the Commonwealth

after entry into Australia, pursuant to
section 38, and thereafter legally

detained at the Detention Centre at

Villawood. Their further detention was

authorised by a prescribed authority,

being a magistrate at the Fairfield Local Court, on three occasions thereafter, the last occasion being on the 15th August, 1986.

Before the expiration of the seven day period

of detention then authorised, a deportation

order was made on the 21st August which

resulted in their detention thereafter being

deemed to be pursuant to section 39 of the

Act. It is the lawfulness of this order

and the detention thereunder which

constituted the major issue before the trial

judge.

And then, turning over, if we may, to page 10:

I am firmly of the view that in no

circumstances may a deportation order be

made, or maintained in existence, for the
purpose of detaining the subjects of it in

custody for any period in excess of that

which is reasonably necessary to arrange

for their compulsory removal from

Australia. For my part, I am not prepared

to accord to the words of section 20(2)

any efficacy to confer continued validity

upon a deportation order or detention

pursuant to it once a situation has arisen

whereby detention has ceased to be for the

purpose of deportation. (Continued on page 5)

C2T3/l/JH	4	7/9/89
Park(2)

MR HANDLEY (continuing):

In particular, I am satisfied that a

deportation order can never be legally

made or maintained for the purpose of keeping

persons in custody to ensure their

availability as witnesses in a prosecution.

Those, of course, were the facts in this case.

It is a fundamental principle of statutory

construction that there is a presumption

against an intention by the Legislature to

invade common law rights. As O'Connor, J.

said, in the well known passage in

POTTER V MINAHAN .....

"It 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

irrestible clearness; ani to give any such

effect to general words, simply because they

have that meaning in their widest, or usual

or natural sense would be to give them a

meaning in which they were not really used."

The common law right in question here is the

right to personal liberty. It is the most

fundamental of the human rights protected by

the Common Law.

His Honour then quotes from REG V BOLTON EX PARTE BEANE,

the case about the US marine, and that, of course,

is now reported, and I do not trouble Your Honours,

it being a very recent decision, to do other than give

the reference to the report in the Commonwealth Law

Reports, and that is 162 CLR 514.

Then, at the bottom of page 11:

In my view, sections 18, 20 and 39 of the Act

provide no warrant for the detention of any

person other than for the limited purpose and

period referred to in the passage quoted from
the judgment of Davies, J.

And then, over to page 14, commencing just after the quotation:

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Park(2)

MR HANDLEY (continuing): It is undisputed that from the time

when the deportation order was signed, no attempt

was made to give effect to it until November.

That is 1986.

In the meantime, the appellants had been detained

in custody despite mounting requests on their

part to be released and sent home to Korea. In

my view, it was a total misconception of the

power given by section 39 to regard it as

enabling the appellants to be detained indefinitely

to ensure their "availability for deportation".

I am satisfied	that, on the evidence before
him, the Trial	Judge was amply justified in
inferring that	the August 1986 Deportation
Order was made	for a purpose not authorised by
the statute.

I am also quite satisfied that his Honour was

correct in ordering, pursuant to s.16 of the

ADMINISTRATIVE DECISIONS,{JUDIClAL REVIEW) ACT

1977 that the Deportation order be set aside ab

initio.

And then, going over to page 15:

As I hold the view that the appellants were detained -

line three

from the 20th August, 1986 without lawful
warrant, I find it unnecessary to consider

the question whether later decisions to retain

them in custody despite their requests to be

released can properly be identified and then

characterized as decisions under "an Enactment".

Of course, for the purposes of jurisdiction under

the (JUDICIAL REVIEW) ACT -

It seems to me that it is of no real relevance to consider whether decisions were in fact made or whether the appellants pleas were simply

ignored. The simple fact is that their

detention was unlawful.

C2T5/l/CM	6	7/9/89
Park(2)

MR HANDLEY (continuing):  And, Your Honour, at page 21,

Mr Justice Foster concluded:

that the appeal be allowed to the extent
that I have indicated and would also propose

that a declaration be made that the detention

of the appellants pursuant to the purported

deportation order of the 20th August, 1986

be declared unlawful.

Your Honours, if I could just very briefly make

good the submission that Mr Justice Davies had held

that the deportation order should be set aside

ab initio. Your Honours would be good enough to

look at page 92 of the bound appeal book, at line 17
His Honour said:

In deciding whether to make an order setting aside the deportation orders ab initio, I

have regard to the nature and effect of the

error in the decisions. In my opinion, the
defect affecting the deportation orders was of

such significance that the deportation orders

should be treated as a nullity.

(Continued on page 8)

C2T6/1/DR	7	7/9/89
Park(2)

MR HANDLEY (continuing):  At page 93, line 13:

I am of the view that the deportation orders

should be set aside ab initio.

Then, at page 94, line 2, His Honour considered

whether there was jurisdiction to set aside

particular orders made between August 1986 and December.

McHUGH J:  Why are you taking us to this material? This

is not an issue in these proceedings.

MR HANDLEY:  No, it is not. I am just picking up the

fact that the orders were set aside ab initio

by Mr Justice Davies and not leaving it to my

say so. It is not, as Your Honour says,

challenged in this - - -

McHUGH J: A cross appeal against that was dismissed

and there has been no application for special

leave to appeal against that, is that right?

MR HANDLEY:  Yes, Your Honour. I am not doing it other

than just to make it clear to the Court that

three judges of the Federal Court were of the

view that these orders should be set aside

ab initio. Then I will be proposing to

conclude my submissions.

Mr Justice Davies, at page 105, line 18

said:

I shall therefore set aside ab initio

the deportation orders of 20 August 1986.

He did not make a declaration that detention was

unlawful. Mr Justice Sweeney, whose judgment

is in the appeal book at page 121, said at line 18:

His Honour's findings in respect of these deportation orders were in my opinion

amply justified by the evidence before him.	I respectfully agree with his decision to
set them aside ab initio and with his reasons.

And he would dismiss the cross appeal. Mr Justice

Sweeney, however, refused to make a declaration

and he a3reed with the reasons of the trial judge

for taking that course.

We would simply submit that given the

prolonged period of detention of the appellants in
custody pursuant to deportation orders,which if

valid authorized the commencement of such
detention but which had been set aside ab initio,

there is no reason why, in the exercise of a sound

judicial discretion, a declaration of right should

not have been made as proposed by Mr Justice Foster.

C2T7/l/JM	8	7/9/89
Park(2)

For those reasons, if the Court ~leases, we

submit that the appeal should be allowed and

that this Court should grant a declaration

as proposed by Mr Justice Foster. If the

Court pleases.

MASON CJ: Thank you, Mr Handley. Yes, Mr Stevens.

MR STEVENS:  If Your Honours please. The exercise of

powers in this instance devolved unon two

distinct streams of the MIGRATION ACT: the initial

custody which was pursuant to section 38 and the

subsequent detention pursuant to section 39. The respondent

in these proceedings is solely the Minister

The Minister, however, can act either personally

by his delegate, or through his officers. In

this instance the learned trial judge considered

the matter as far as it being a revie,-1 of

an administrative decision. He then allowed in

relation to that application for a review certain
relief but, notwithstanding the availability of a declaration under section 16 having regard to the

circumstances then existing and as he found them,

declined to make that further declaration.

His Honour considered that there was some

doubt or uncertainty as to the identity of the various

officers who had made relevant decisions in resuect

of that aspect and/or in terms of the ambiguity- as

to the persons against whom such a declaration may

ultimately lie; not expressed in those words,

but the conclusion and the inference I would be

asking to subsequently draw.

Mr Justice Sweeney adopted the reasoning of the learned trial judge and accordingly, following

that reasoning through, ultimately declined to make

a like declaration and in fact followed it throueh

both in terms of dismissing the appeal and the · ·

cross appeal.

(Continued on page 10)

C2T7/l/JM	9	7/9/89
Park(2)

MR STEVENS (continuing):  Mr Justice Merling differed in

the context of determining that the conduct of

the officers could be reasonably ascribed to being the conduct of the Minister; he having initially determined that the appeal should be

allowed he then on the premise of having
construed the conduct of the Minister as attaching
to the actions of the officers and that they

acting, as it were, as the delegates of the

Minister could then consider the situation in

relation to the unlawful conduct and then, had

he made the initial finding favourable to the appellants

would have been minded to have made such a

declaration.

Your Honours, so far as section 39 of the

MIGRATION ACT is concerned, if I can take

Your Honours to it, it allows an arrest of a

deportee in the circumstances where pursuant to

subsection (1) :

an order for the deportation of a person

is in force -

Were the matter to have commenced pursuant to

section 39:

an officer -

is entitled -

without warrant -

to -

arrest a person whom he reasonably supposes

to be -

such a person, the subject of a deportation order.

And, pursuant to subsection (6):

A deportee may be kept in such custody as the Minister -

and, again, it is -

or an officer directs -

and, then:

(a) pending deportation, until he is placed

on board a vessel -

et cetera. And then, pursuant to section 39(7):

C2T8/l/JH	10	7/9/89
Park(2)

Notwithstanding anything contained in

this section, an authorized officer may

at any time order the release of a

person who is in custody under this

section.

In this instance the detention pursuant to section 39 arose pursuant to section 38(6), that being the

consequence that:

If, while a person is in custody under this

section, an officer informs that person

(whether before or after he has been

brought before a prescribed authority) that a deportation order is in force in relation to him, the preceding provisions of this

section cease to apply in relation to him

..... and he shall be deemed to have been

thereupon arrested under section 39 -

and the persons who are purported to effect arrests

then are -

by the officer having his custody or, if

he is not in the custody of an officer, by

the officer who so informs him.

Both "officer" and "authorized officer" are defined

first instance. "Officer" is defined on page 3

in section 5(1) of the Act and if I can take

as being:

in relation to the exercise of any power or

the discharge of any duty or function

under this Act, means -

(a) an officer of the Department;

(b) a person who is an officer for the

purposes of the CUSTOMS ACT 1902;

(c) a member of the Australian Federal Police or of the police force of a State or

an internal Territory; or

(d) any other person who is, or who is

included in a class of persons who are,

authorized by the Minister to exercise that power or to discharge that duty or function.

C2T8/2/JH	11	7/9/89
Park(2)

MR STEVENS (continuing):  As Your Honours will note, the

definition of "officer" under category (d) is,

in fact, the like wording as that for "authorized

officer" which is similarly defined under

section 5(1):

"Authorized officer", in relation to the

exercise of any power or the discharge of

any duty or function under this Act,

means a person authorized by the Minister

to exercise that power or discharge that

duty or function.

Before continuing, it is then relevant that in so

far as section 39 relies upon and flows from the

making of a deportation order, the deportation Drder

power is contained in section 18 of the MIGRATION ACT,

that being to the effect:

The Minister may order the deportation of a person who is a prohibited non-citizen

under any provision of this Act.

The Minister then being able to act either personally

or by his delegates but the absence there being of

"authorized officers", it can only be of the Minister

directly or by his delegates. Then, similarly, in

relation to the execution of that deportation order,

it is governed by section 20(1):

Where the Minister has made an order for the

deportation of a person, that person shall,
unless the Minister revokes the order, be

deported accordingly.

One had, in this subject application, as earlier

stated, a series of decisions that were sought to

be reviewed and canvassed. If I can take

Your Honours to the final form of the application,

it having gone through a number of amendments. It

appears at page 1 of the appeal book.	The relevant
decision there sought to be reviewed was decision (c)

being the review of the decision of the respondent,
namely, the Minister of State for Immigration and
Ethnic Affairs, that:

The Applicant be detained in custody pursuant to s.39 of the MIGRATION ACT, 1958. (Date of

Decision:  20th August, 1986 to -

2 December 1986.

The particulars in relation to that aspect of the decisions appear at page 3 in relation to the

decision. They actually commence at line 43 on page 2:

C2T9 /1 /SH	12	7/9/89
Park(2)

The Applicant was detained by the Respondent

from the 26th July, 1986 to the 2nd December, 1986.

He was detained pursuant to s.38 of the MIGRATION

ACT, 1958 and from the 20th August, 1986 to the

2nd December, 1986 he was detained pursuant

to s.39 of the MIGRATION ACT.

The application then refers to section 20, section 18

and then, on line 7:

He was held in custody pursuant to s.39 of the

MIGRATION ACT, 1958 from the 20th August, 1986

to the 2nd December, 1986. The Applicant alleges

that he was detained by the Respondent for a

purpose unrelated to s.39 of the MIGRATION ACT,

1958, or indeed any other section of the said

Act, and that he was accorded no opportunity to

be heard -

and other recitation.	The deportation order itself
is not reproduced in the appeal books.	The receipt

which was attempted to be furnished appears at page 6

of the appeal book. We have six copies of the

deportation order and, additionally, Your Honour,

we have six copies of the submission which was relied

upon which led to the making of this deportation order

again, unfortunately, which is not included within the

appeal books but which is relevant.

(Continued on page 14)

C2T9/2/SH	13	7/9/89
Park(2)

MR STEVENS (continuing): Turning at this stage to the

deportation order, Your Honours will note that the
deportation order dated 20 August is signed by the

delegate of the Minister, but it does no more than
expressly act as a deportation order pursuant to

section 18 of the MIGRATION ACT as to the deportation.

The same order, of course, was signed in like terms

for each of the other applicants.

That deportation order followed a submission

to the delegate, Mr Tuchin, being the Acting

Regional Director, Sydney.

MASON CJ:	Why are we looking at the submission?
MR STEVENS:	Your Honour, it is to follow the reasoning both

of Mr Justice Davies and Mr Justice Sweeney and,

additionally, in relation to the distinction which

was drawn by Mr Justice Merling as to it being the

conduct of the Minister to show that ultimately,

in relation to this aspect, it becomes a question of

discretion for the trial judge in part which the

trial judge was not willing to accede to in terms of

making that further declaration and that, additionally,

the conduct subsequent to 20 August cannot be
properly viewed as but one decision as to justify

or allow such a declaration.

I do not need to take Your Honours to the

substance of the submission but rather to the final

page which deals with the recommendation and the

decision which was then before the relevant
decision-maker, it being a decision totally
unrelated to the question of custody pursuant to
section 38 or section 39. It is only on that

aspect that I need to take Your Honours to it.

The purpose is expressed at the first page:

To recommend that you adopt the findings on

material questions of fact and the assessment

set out below and if you accept the assessment:

i) refuse the concession of a supervised
voluntary departure;

ii) sign the attached order for the deportation

of PARK Oh Ho.

On the fifth page of the submission is then the

heading of the recommendation and, again, it repeats,

as it were, the purpose:

C2Tl0/l/DR	14	7/9/89
Park(2)

If you accept the findings on material questions

of fact and the assessment set out above it is

recommended -

i) and ii) again -

If you do not accept any of the findings or

assessment you are invited to add reasons for

your decision.

It was submitted by Mr Wilson, Acting Assistant Director, Enforcement; with Mr Joseph, Director,

Immigration Branch. The decision then appears at

page 6 and the decision there of Mr Tuchin is:

Concession of supervised voluntary departure

refused.

Attached Deportation Order signed.

J.R. TUCHIN

Acting Director for New South Wales

Delegate of the Minister of State

and then the next page being the deportation order.

That exercise of power, then, was by the delegate of the Minister pursuant to those powers. The

appellants, at that time, were in detention in

Villawood pursuant to section 38. The deportation

order was then served and the acknowledgement as
referred to on page 6 was unsigned but in terms of

the affidavit of the appellants is acknowledged as

having been so served.

(Continued on page 16)

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Park(2)

MR STEVENS (continuing): Nothing, I think, turns upon that

aspect, other than drawing to the attention of

the Court that so far as the deportation order was

concerned it was an exercise of power, expressly by

and the alternatives, was not in any way directing himself to the consequences of the

a delegate of the Minister, and that delegate of the of deportation

custody detention.

DEANE J: Why, in your view, did Mr Justice Davies hold that

the deportation order was a nullity?

MR STEVENS:  So far as Mr Justice Davies was concerned, he

found that the making of the deportation order was vitiated by an error, namely, failing to take into

account a relevant consideration.

DEANE J:	And the Full Court?
MR STEVENS:	Mr Justice - - -

DEANE J: - - - Sweeney adopted Mr Justice Davies and - - -

MR STEVENS:	That is right.
DEANE J:	Mr Justice Foster
MR STEVENS:	Mr Justice Foste½ for like reasons, adopted that

finding, yes, Your Honour; that the original

deportation order be set aside, and so far as

Mr Justice Morling, for other reasons, he determined

that that was capable of still maintaining a life

and ought not to have been so set aside.

DEANE J:  Would it be true to say that underlying that view was

the view that the deportation order, in effect, was a farce in so far as the requirement that it be made to

deport was concerned, and that it was really an order

made so people could be kept in custody and be available

as witnesses.

MR STEVENS:	With respect, Your Honour, the timing of the deportation order and the knowledge then of Mr Tuchin,
as far as the evidence before the learned trial judge
and before the court, was silent, other than in
relation to inferences to be drawn from subsequent
documents and with the benefit of hindsight.

(Continued on page 17)

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Park(2)

DEANE J:	But Mr Tuchin was acting on the basis of Mr Wilson putting before him the relevant
considerations.
MR STEVENS:	Yes, Your Honour, and adopting those relevant considerations.
DEANE J:	And those considerations are quite silent about the keeping of the person, Mr Park, in custody
indefinately,as it were,so that he would be
available as a witness.
MR STEVENS:	Well,Your Honour, so far as that point in

time, namely as at the 20 August, there was

no evidence as to the future intentions or

estimates of time. Those estimates of time arose

at a point subsequent to the 20, ·· August where,

on one Draconian estimate,it was even horrifyingly

thought possibly 18 months, but the first knowledge

of that was at a date subsequent to the signing of

the deportation order.

DEANE J:	But the views against you,as it were,relate those
things back, do they not?

MR STEVENS: That is right, Your Honour, but the consequence

there is- if one can go to the next step, what

would be the effect of making such a declaration and

one can consider within that context as to whether
or not both the learned trial judge and/or

ultimately by way of the numbers in the Full Court,

whether such a declaration be appropriate or to

be a acceded to by this Court.

DEANE J:	I was not seeking to suggest anything against your
argument.  I was simply trying to make sure I
understood the underlying basis upon which the
argument must be considered.
MR STEVENS:	Certainly, Your Honour. So far as that underlying

basis, if I might phrase it slightly differently:

one then has the situation that the consequence of

the making of such a declaration would be to

determine as between the respondent ~linister and

each of the appellants that there has been, for
the period as sought, from the 20 . August to the

2        December, an unlawful detention.

C2Tl2/l/CM	17	7/9/89
Park(2)

MR STEVENS (continuing): That thereby characterizes that

unlawful detention as being by the Minister,

by his delegates, or by reason of the Minister delegates but rather in relation to officers of the Department, the consequence then arising
personally as distinct from it being the

that so far as those officers be concerned, such

a declaration would lead to the Minister being

made vicariously liable in relation to that

tortious act of the particular officers by which

the detention after 20 August was maintained

and it therefore precludes the Minister from being

able to ventilate, or even in terms of put forward by way of evidence in relation to any other period of time such a consideration of the conduct.

It in fact has the effect of removing from the

Minister the very potential disclaimer of

vicarious liablity which this Court found still

to exist as recently as in OCEANIC CREST.

So far as that circumstances is concerned,

it is submitted that that was a course ap~ropriate

to be adopted by the trial judge in withholding

such relief and similarly appropri6te to be

withheld by this Court in precluding such relief
when the matter hc.s not beer• ft:lly canvassed or

appropriately canvassed before the trial judge

and all of the facts and associated circumstances

in relation to the expiration of that period of

time have not otherwise been before the Court.

McHUGH J:  But Mr Justice Davies found that Mr Tuchin must

have had in mind that the deportation orders

would serve to authorize the~detention of the

applicants and the implementation of the orders

could be suspended pending resolution of the

issues with the Director of Public Prosecutions.

That means, does it not, (a) that the order was

made for an improper purpose; and, (b) that he

was a party to the unlawful detention of the

appellant? (Continued on page 19)

C2Tl3/l/JM	18	7/9/89
Park(2)

MR STEVENS:	Your Honour, it is, with respect, a question of considering the inferences to be drawn in
relation to the particular purpose of the
litigation then being so considered. The
application before Mr Justice Davies and
considered by the Full Court of the Federal Court
was an application for an order of review of
certain decisions. It was not necessary, so far as Mr Justice Davies was concerned, to go further and
consider what the status of the officers were or the various decisions were or, in fact, those other aspects which are more properly ventilated in
relation to a common law proceedings or wrongful
detention or improper purpose.
McHUGH J:	But, section 16(1)(c) 0£ the

(JUDICIAL REVIEW) ACT enables the court to declare

the rights of the parties in respect of any matter

arising out of the decision, do they not?

MR STEVENS:  Yes, Your Honour, but if one considers

section 16 as being within the scope of the

ADHINIST:RATIVE DECISION (JUDICIAL REVIEW) law as

being another embodiment of the same powers that

exist in the Federal Court pursuant to section 23

or section 32, it has to be for the purposes of

the principal relief. In other words, so far as

that aspect is concerned, it is in relation to the

validity of a decision or of the associated relief

but not, with respect, in relation to matters

that are outside the immediate purview of such

relief.

McHUGH J:  Well, the section says:

On an application for an order of review

in respect of a decision, the Court may,
in its discretion, make all or any of the

following orders:

.....

(c) an order declaring the rights of

the parties in respect of any matter to

which the decision relates.

Well, why was not the unlawful detention a matter to which the decision related?

MR STEVENS:  So far as the unlawful detention is concerned,

that has a different effect as far as being to
that which it relates. It is the consequences of

prior acts but by different persons.	What one has
there is, if one were to - - -

McHUGH J:  Well, it may be, ·other pe"rsons may .. be involved, but·

is it not sufficient for the purpose of making a

declaration that l'1r Tuchin was a party?

C2Tl4/l/JH	19	7/9/89
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If he made an order for the wrongful purpose of

authorizing somebody to be held, why would he not

be a tortfeasor and why could he not be sued

in a common law action?

MR STEVENS:  Well, Your Honour, there would be no reason

why he potentially would not be within the scope

of such litigation.

McHUGH J:	Yes.
MR STEVENS:	But, one comes back to the fundamental aspect

here that the named respondent is of the Minister;

so far as the Minister is concerned he may act by

his delegate and then may be liable for the acts of
his agent. But, in addition, so far as the
detention and the custody pursuant to section 39
are concerned, they are by the actual officers.

It was not contended before the learned trial judge

nor was there any evidence to the effect that

Mr Tuchin was the person who directly led to the

bringing about of the custody pursuant to section 39.

McHUGH J:  But, it does not have to be.

MR STEVENS:  But, Your Honour, so far as the associated

relief is concerned one would then consider the

consequential steps if it be in relation to parties

then properly before the Court. The effect of

section 38(6) leading to a translation of custody

from one form of custody to another is not done by

a delegate of the Minister. It is, in fact, a

consequential circumstance by reason of an officer
of the migration department choosing to do two
things: one, being aware of the signing of a
deportation order, if he be an authorized officer,
determining not to release the person the subject
of the deportation order from custody and then,
secondly, arresting the person or notifying the

person of the existence of such a deportation order.

Now, so far as those steps are concerned, they are

actions carried out by an officer, or authorized

officer of the department, which are exercises of

power quite separate and distinct from the

exercises of power by the Minister. They are

instances of the exercise of power by the independent

or - as an exercise of the independent discretion

of each of the relevant authorized officers of the

department.

C2Tl4/2/JH

20   7/9/89

Park(2)

McHUGH J:  I can understand your point if the appellant

was seeking a declaration against - that someone

or other unnamed officer had unlawfully detained

the appellant but that is not what he is seeking.

Why is he not entitled to get this declaration

because it arises out of this very order that has

been set aside and which was made on the findings

for the purpose of unlawfully detaining the appellant?

MR STEVENS:  With respect, Your Honour, so far as the arising

out of the making of the order, it does not, per se.

The detention up to 15 August and for the next seven

days after that operative date was able to be maintained

pursuant to section 38 and then the consequences of that

are the need to take the person, if that detention is

sought to be extended, pursuant to a prescribed person

such as a magistrate.

One then has a situation that as at 20 August,

when the deportation order is delivered to the person,

of there being on one hand a statutory consequence

under section 38 and on the other hand there being

the exercise of discretion by the relevant migration

officers as to how to implement or whether to implement what will be the consequences of the furnishing of such

a deportation order and that one, therefore, has on
one hand the actions by which the deportation order

come into being and then separately and distinctly

pursuant to other provisions and other powers, the

considerations of custody. Not all persons the

subject of deportation orders will have been in

custody or will necessarily remain in custody and the determination to place somebody in custody or

release somebody from custody are discretions within
the authorized officers and are separate and distinct

from any considerations in relation to the making of

a deportation order.

If one has, however, as a consequence of a

tainting of a deportation order with an improper

purpose or of not having been properly made, that

that thereby necessarily taints any related
circumstance	is to therefore mean that the

actions of an officer with an independent discretion
automatically come back and become the consequential

actions of the delegate or of the Minister himself

and, with respect, it is for those - - -

McHUGH J: That is not the case that is put against you. The

case that is put against you is that Mr Tuchin himself

was a party to this, so he made his decision

for the purpose, at least among other things, to

unlawfully detain the appellant. Why can you not

get a declaration that, therefore, he was unlawfully

detaining him?

C2Tl5/l/SH	21	7/9/89
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MR STEVENS:	For the purpose, Your Honour, that there was no evidence before the learned trial judge nor was
that the consequence of this distinction in terms of sections 38 and 39 of the MIGRATION ACT; that Mr Tuchin's conduct bringing about a wrongful or an invalid deportation order did not have the consequence of affecting the custody of these people.
The custody was deter~ined pursuant to sections 38
and 39, not pursuant to the making of the deportation
order and it is because of that circumstance that the making of such a declaration is inappropriate; that the learned trial judge and Mr Justice Sweeney
were conscious that so far as the question of "officer"
was concerned, it was given a wide definition and,
as the trial judge Mr Justice Davies on page 94
of the appeal book referred to, if I can take Your Honours to it. This is the substantial thing:
that one should be reluctant to consider consequential
steps when there is not the precise evidence or
the precise ventilation before the trial judge and
when the trial judge has, as it were, either had
an absence of evidence or an insufficiency of evidence
to lead to him bringing about what is a discretionary
declaration.

At page 94, commencing at line 2, His Honour

there was considering the attack upon the decisions

about the detention in custody.	At line 5,
His Honour said:

The date of the decisions was given as
20 August 1986 to 2 December 1987. Although

it may be assumed from the fact that the

applicants were kept in custody that directions

must have been given pursuant to s.39(6) of
the Act, the evidence does not disclose what
decisions were taken or when they were taken

or by whom or even whether the decision-makers

were officers of the Department of Immigration

and Eth n i c A f fa i r s . The term "o f f i c er " i s

given a wide definition - (Continued on page 23)

C2Tl5/2/SH	22	7/9/89
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MR STEVENS (continuing): His Honour then goes on in

characterizing the absence of that evidence to say:

These proceedings are not an action for unlawful

imprisonment. If they were, it could well have

been sufficient to prove the detention and to

put forward grounds tending to show that any

decisions authorising the imprisonment must have

been taken for an improper purpose. But, these proceedings seek orders of judicial review with

respect to decisions.

Then, again, coming back to this absence of

certainty, His Honour said:

In the absence of identification as to the date

and terms of decisions as to who was or were the
decision-maker or decision-makers, it is not

appropriate that any order by way of judicial

review should be made. I therefore do not

consider these decisions further.

His Honour, within that context, then went on in

terms of the actual decisions, he had already been

prepared and determined at page 105, line 17:

I shall therefore set aside ab initio the

deportation orders of 20 August 1986 and shall

declare that the maintenance charges demanded

are not payable by the applicants, but shall

otherwise dismiss the applications.

Now, if Your Honour is considering the consequential

or related relief, that is precisely the effect of

what His Honour's decision was to declare that the

maintenance charges were not payable because

His Honour there had before him sufficient evidence

to say, "Those maintenance charges flowed from what

I have found to be a deportation order which is

void ab initio. Accordingly there can't be any
maintenance charges and, accordingly, I determine

to set those aside."

However, in relation to the nature of the

detention, the learned trial judge was not satisfied

as to the evidence before him; as to the identities

or the periods or even the series of decisions.

Now, that was the reasoning which His Honour had

adopted and, with respect, it is submitted that that

was an appropriate reasoning to be followed. That

reasoning was followed by Mr Justice Sweeney and

Mr Justice Sweeney adopted and quoted the relevant

passage of Mr Justice Davies' judgment in coming to

the same view.

MASON CJ:  On your view, when did detention, under section 38,

cease?

C2Tl6/l/DR	23	7/9/89
Park(2)

MR STEVENS: It would appear to be 22 August or 23 August, it

being a date seven days after the last time on which

the person had been taken before a magistrate.

MASON CJ: That was pursuant to section 38(6)?

MR STEVENS:  Yes, Your Honour. I am sorry, Your Honour said,

"pursuant to section 38(6)". No, Your Honour, because

if one were to have a deportation order under

section 39 set aside then that deportation order

never had any effect.

MASON CJ: Yes.

MR STEVENS: Therefore, the custody could never have been under

section 39, it would only be under section 38. So far

as section 38 is concerned, it requires the person

to be taken back bP.fore a prescribed authority and

under section 38(3A):

The period for which the detention in custody of a person brought before a prescribed

authority may be authorized under sub-section (3)

by that prescribed authority shall not exceed

7 days - - -

MASON CJ: Yes, I follow.

MR STEVENS:	- - -from the date of the authorization.
So, on that view, the evidence as referred to

by Mr Justice Foster was that the last date of

authorizatio~ under section 38,was 15 August.

Therefore, the last date upon which in the absence of some authorization there could have been an extention of the custody under section 38, would be

seven days later - the 22nd. So far as the learned

trial judge was concerned, he had no evidence before

him in relation to these periods of custody, post

20 August 1986.

DEANE J:  Is it suggested on behalf of the Minister that the

detention of Mr Park after that date was not in

purported pursuance of the powers conferred by

section 39?

MR STEVENS:  So far as the Minister is concerned, it is

submitted that the detention after 20 August was a

detention effected by the authorized officers pursuant

to an independent discretion which ought not to be

the subject of a vicarious liability of the Minister;
it not having been explored for the purposes of
administrative law is unnecessary to have so blurred

the issue in relation to administrative review,

Your Honour.

C2T16/2/DR 24 7/9/89

Park(2)
DEANE J: That was not what I asked you. What I asked you

was, is it suggested by the Minister or, if it

helps, by anyone else, that the detention after

the section 38 period was in purported pursuance of

the powers conferred upon the Minister, or was

other than _in purported pursuance of the powers

conferred upon the Minister and his officers by

section 39 of the Act?

MR STEVENS:  At some point after the 20 August, no,

Your Honour.

DEANE J: Well then,if that is so and if this man has

been detained unlawfully, pursuant to powers

conferred on the Minister and his officersby
section 39 of the Act, what is the real basis on
which the Minister now says that Mr Park is not

entitled to a declaration to that effect?

MR STEVENS: 

The real basis, Your Honour, is that those

decisions and those periods of time were never
before the learned trial judge, were never

scrutinized, were never the subject of appropriate

determinations.

DEANE J: 

But the case cries out and you say that nobody can

suggP-st to the contrary that this unlawful detention

was in purported pursuance of powers conferred upon

the Minister and his officers by section 39 ot the

Act.

MR STEVENS: 

Yes,Your Honour.

DEANE J: It seems to me that we are asked to play some strange

sort of game.

MR STEVENS:  With respect not, Your Honour, in so far as

Your Honour a decision for an administrative review

and the conduct flowing from that decision, are

matters appropriate to be reviewed and relief

associated with it to be furnished. But,with respect,

where there is an absence of particularity in

relation to the decision-making processes or the identities of decision makers and the absence of

any attempts by applicants in first instance or

subsequently to pursue that course of conduct or

that identification, and when there is alternative
relieve and alternative proceedings by those parties

on foot then, with respect, it issuhni.tted that

it is appropriate to confine applications for

administrative review to that which is strictly and

only reasonably necessary, but not to embark upon

a consequential relief where there are other matters
to be canvassed and where, in the absence of those
decisions having the effect contended for by the

appellants, they can be properly and subsequently

ventilated.

C2Tl7/l/CM	25	7/9/89
Park(2)

GAUDRON J:  Mr Stevens, I do not follow the relevance you

ascribe to decisions by officers and authorized
officers. If the deportation order is to be

taken as set aside ab initio, there was no

power under 39 to make such decisions.

MR STEVENS: That is right Your Honour, but so far as - - -

GAUDRON J: 

And on the same basis that we treat the deportation

order as not having been made, we treat the
decisions as not having been made.

MR STEVENS:  But,Your Honour, if I may try and articulate more

precisely., if one has the circumstance of a

deportation order that is relied upon and that
deportation order ceases to have any force and

effect, the steps that rely upon that deportation

order lack the initial threshold entitlement,

the p~~-~cndition that is necessary for it. But so

far as that subsequent exercise of powers are

concerned, they are not and one would consider that

it would always be exceedingly unlikely to be,

exercised by the Minister.

In the same way as police officers or many other

parties have particular discretions and duties
pursuant to their position to carry forwar~ those

persons rely upon certain threshold criteria, if

however they either lack the reasonable basis for

their belief or the establishment of the pre.,.condition

necessary for the exercise of their power. If it

is an independant power that they are exercising

then their employer officer of the Crown cannot

be liable for it, but the consequences of making the declaration, in this instance, would lead to

that very circumstance and it is to draw that

distinction - - -

GAUDRON J:  The point is there is no discretion, no path,

independent or otherwise under 39, if there is

no deportation order. Is that not right? (Continued on page 27)

C2Tl7/2/CM	26	7/9/89
Park(2)

MR STEVENS:	That is right, Your Honour, yes.
GAUDRON J:	I do not know why we are concerned about these

people who thought they were making decisions.

MR STEVENS:  So far as their timing of their decisions

is concerned they still have an availability

of having considered the decision pursuant to

section 38 and as to whether or not there were

any other steps associated with that, it was

unnecessary for the learned trial judge to be

troubled by that evidence or to have considered

those facts and circumstances, a point about which

His Honour made the express finding. The learned

trial judge confined himself solely to the

administrative law aspect, as distinct from these

related inconsequential steps.

DEANE J:	What if Mr Park had still been in gaol, or in
custody, would you say that he would not have
been able to have obtained a declaration that the decisions that he be held in custody were
null and that he should just, as it were, wait
in gaol until somebody else decided to intervene?

MR STEVENS: Far from it, Your Honour. If one were to use

the instance of the American sailor, Mr Beane,
there the habeas corpus is directed both against

the Minister of Defence but also against the

person who has detained him, and in that instance

I think it was.the Commander of HMAS Penguin

or some like institution. In this instance if

you were seeking those declarations then they would

be directed against both the Minister and also

against the officer who has exercised that detention,

one would imagine the manager of Villawood Detention

Centre or how that particular office is described,

as distinct from merely naming the Minister as the

respondent and then having as a consequence an

issue estoppel or res judicata as between the

Minister and these people as distinct from the

particular and precise decision makers and it removes,

with respect, the opportunity. If one turned it

around the other way, it is submitted that to

enable such a declaration it therefore brings into

being a greater concern and is contrary to the

interest of public policy if a decision maker,

before determing to vary custody or arrest a person

then has to consider separately and independently

the validity of the deportation order, or whether
the conduct which he seeks to implement is going

to be valid or may be valid.

So far as that is concerned, he has a

discretion to arrest or not arrest, to detain

or release. But if he then has, for the purposes

of exercising that discretion, necessarily to
consider further, "Do I have an appro1)riate

condition precedent to exercise my powers?", in

C2Tl8/l/JM	27	7/9/89
Park(2)

relation to the prohibited non-citizen, it is

expressed as to a reasonable cause in terms of

section 38(1). But so far as the deportation

order is concerned, it is epxressed in a way

that enables him, pursuant to section 38(6),

to rely upon that as a satisfactory pre-condition

to change the nature of the detention without

needing to inquire but still to separately

consider the exercise of the power that he has,

the opportunity to detain or release. If one

then casts that obligation vicariously upon the

Minister it then calls for a change in terms of
the conduct. It is contrary with respect to
the very concept of the public policy. It is a
different consideration later on if the Minister
or the department stand to indemnify the particular

decision maker in terms of detention. But, with

respect, that is a quite different issue and that

be a vicarious liability sheeted home to the Minister or not? In terms of public policy considerations the argument was put forward that

is the very concern which was before the High

Court in the case of GROVES V THE COMMONWEALTH.

it would be inappropriate on public policy

grounds to allow such a vicarious liability to

be sheeted home, that it would make things

difficult. But it was dismissed on the premise

that so far as that is concerned, so long- as

there can be an indemnity that will not be

disruptive to the morale of the armed forces.

DEANE J:	But the declaration sought is not that the
Minister personally imprisoned Mr Park. It is simply that the deportation order, having been
found to be a nullity ab initio,his unlawful
detention, which was purportedly based on it and which the Minister has sought to justify,
was unlawful.

(Continued on page 29)

C2T18/2/JM	28	7/9/89
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MR STEVENS:	Yes, Your Honour, but it still then means, in the context of there being other relief being
pursued by these appellants, that so far as the period
between 20 August and 2 December it creates an issue
estoppel that so far as the Minister is concerned, he
cannot complain that he is other than liable for that
consequential period.

GAUDRON J:  I must say, I do not follow that. It will certainly

bring about a situation that the Minister cannot

challenge the unlawfulness of the detention.

MR STEVENS: But, Your Honour, the declaration is, in terms of

that period, from 20 August to 2 December 1986 that is

being pressed as being the declaration and the

appropriate declaration to be so made.

DEANE J: Well, change the declaration to 22 August to 2 December,

do you still oppose the declaration?

MR STEVENS:	Yes, Your Honour, in so far as it is against the Minister and in so far as it presupposes that there
has not been an independent exercise of discretion by
officers independent from the Minister or the
delegates of the Minister.
TOOHEY J:	But how would that exercise of an independent
discretion affect the matter so far as the Minister
is concerned? There is no saving provision in the
Act that preserves the actions of officers. Is there some basis upon which you suggest that the detention,
not being warranted in terms of section 39, it ean
be upheld on some other basis?
MR STEVENS:	The actions of the officers may not be able to be

upheld, Your Honour, but the actions of the Minister are, it is submitted, because he does not need to be

troubled by the independent exercises of that

discretion. There is, it is submitted, not necessary

to go into the precise saving provisions in the

exercise of these particular sorts of power.

(Continued on page 30)

C2Tl9/l/FK	29	7/9/89
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MR STEVENS (continuing): Whereas once upon a time there

was no saving provision in relation to powers of

arrest by police officers, that position in fact

has been reversed as it were by statute; that

there there is an accepted tortious liability for

the independent discretions to arrest or not arrest.
Here, though, the effect of the declaration is
to deem the Minister as distinct from the officers
acting independently to have brought about the

unlawful detention.

DEANE J: But that is not so. All it says is that their

detention was unlawful from point A to point B,

that detention being based on an invalid deportation

order in circumstances where the Minister has sought

to uphold both the deportation order and the

detention.

MR STEVENS:	And the effect there being, Your Honour, to preclude so far as any individual officer is
concerned - or, so far as the Minister is concerned,
at least - any issues of reasonable belief or
reasonable basis in relation to some of the
threshold issues in respect of common law
proceedings.

DEANE J: If they sued the Minister he could not contest

the unlawfulness of the detention. He has every

chance of doing that but he certainly could

contest that he was vicariously liable for the

actions done by the officers of his department

if he could think of an argument that was likely

to convince a court that that was so, if he was

sued as the Commonwealth.

MR STEVENS:  Your Honour, so far as that aspect is concerned,

that is the point that I had sought to press upon

Your Honour; that the finding of such a declaration

would, in fact, remove any argument on the part

of the Minister that he has not been vicariously

liable because there is the express finding that	the Minister has, as between these parties, brought
about unlawful detention.

(Continued on page 31)

C2T20/l/SH	30	7/9/89
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MR STEVENS (continuing): There is a declaration that there

has been, as between the Minister and these parties,

an unlawful detention. And, with respect, that

finding then precludes the Minister from being able

to argue the exclusion in terms of vicarious

liability.

McHUGH J:	Was the Minister a proper party to these proceedings?
MR STEVENS:	The Minister was a proper party in relation to deportation orders, yes, Your Honour.
McHUGH J:	How does that come about?
MR STEVENS:	Because the deportation order was signed by the Minister by his delegate.

McHUGH J: Exactly. Well then, that means that what Mr Tuchin

did was done on behalf of the Minister and the

Minister is responsible. If Mr Tuchin did something for the purpose of unlawfully imprisoning somebody, why is not the Minister liable for that?

MR STEVENS: Because, Your Honour, with respect, Mr Tuchin is

not liable for the - it is not the innnediate and
necessary consequence of the brin~ing about of the

deportation order that there will be detention and

that there will be retention in custody.

McHUGH J:  But in this case there is a precise finding that

he did what he did for the purpose of having the
appellant detained. If he did that, why is he not

responsible?

MR STEVENS:  Your Honour, so far as that was concerned, that

was for the purposes of bringing about the deportation

order.

McHUGH J:  I know that but he did it for a specific purpose.

I asked you earlier and I thought you agreed with me

that in an action for tort Mr Tuchin could be

held responsible for the unlawful imprisonment of the

appellant.

MR STEVENS:  Yes, Your Honour.

McHUGH J: Well, if that is the case, why is not the Minister

liable for it as well?

MR STEVENS:  Because, Your Honour, so far as Mr Tuchin is

concerned, to the extent that he has purported to act

as a delegate for the Minister, he has only acted in

the context of the deportation order.

C2T21/l/PLC	31	7/9/89
Park(2)

MR STEVENS (continuing):  He has not acted as a delegate

of the Minister in relation to his conduct as

an officer or authorized officer, having a

separate and distinct discretion so that is why,

with respect, I seek to draw the distinction

between those powers which are exercised by the

Minister by his delegate and those separate and

independent powers that are able to be exerci~ed

by each of the officers or authorized officers.

McHUGH J:  I am sorry but I am just not following this

because it seems to be that everything that

Mr Tuchin did, in this case he did as delegate of

the Minister and if that is the case I cannot see

why the Minister is not responsible.

MR STEVENS:  Well, Your Honour, so far as Mr Tuchin is

concerned the end of his involvement, with respect

it is submitted, is the signing of the deportation

order. The signing of the deportation order had

no effect, per se, upon a separate decision to

retain or release the appellants in custody.

GAUDRON J:	Well, Mr Tuchin knew he was in custody when he signed the deportation order, did he not, that is
an assumption?
MR STEVENS:	That is part of the submission, that they

were in

GAUDRON J: 

And, we can take it that he knew that having

signed the order he would be deemed to be arrested
under section 38(6) of the MIGRATION ACT and he

would thereafter be detained at least until

somebody made a decision to release him?

MR STEVENS: 

But, so far as Mr Tuchin is concerned, he

would not bring about that consequence; that would
be brought about by a - - -

GAUDRON J:  .. Well,. ~ he would bring about the consequence

that he would be detained until somebody exercLs2d
the power to release him?	Some person authorized

under section 39 exercised the powers under

section 39(6), I think, to release him.	He knew
that, did he not, he must have?

C2T22/l/JH	32	7/9/89
Park(2)

MR STEVENS:  That is right, Your Honour.

GAUDRON J: And that any person - - -

MR STEVENS:  That would be the reasonable inference to be

drawn.

GAUDRON J:	- - - signing a deportation order knowing the person is in custody and knowing the Act would
not only know that that was what he was doing but
that would, in fact, be what he was doing.
MR STEVENS:	With respect not, Your Honour, in so far as

inevitably there would be a period of time that

has passed between the preparation of a submission, the consideration of the submission and the signing of the deportation order and the service of the

deportation order. There is a separate discretion

reposed if there are circumstances that have changed or that justify a release and, in that context - - -

GAUDRON J:	Who was going to release him under 30(a)?
MR STEVENS:	Any authorized officer under section 38 or

section 39, subsection (7) in each instance, has

the discretion:

Notwithstanding anything contained in this

section ..... at any time -

to order the release of the person.

GAUDRON J:	But he was told he was in custody.
MR STEVENS:	Yes, Your Honour.

GAUDRON J: Well, I would have thought one was only then

arguing about whether or not somebody thought he

made a decision which he was not entitled to make.

One would be arguing entirely about hypothetical

matters without a legal substratum at all.

MR STEVENS: With respect not, Your Honour. It is submitted

that we are considering in one part whether or not
the trial judge was appropriate in terms of declining
to give that discretionary relief and whether or not

the trial judge within the exercise of the discretion

considered that a matter more appropriate to be

considered or ventilated in the light of fuller

evidence than was necessary to be considered and

reviewed by him.

GAUDRON J: Whether he was right to think that is the issue

here.

MR STEVENS:  I am sorry, thank you, Your Honour. So far as

Mr Justice Davies' remarks are concerned, I have

C2T23/l /SH	33	7/9/89
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taken Your Honours to that. The adoption of those

remarks by Mr Justice Sweeney appears at page 130

at line 21. His Honour there reviewed and considered

the submission on the part of the appellants as
to their entitlement for the declaration and then
repeats the quote that I have taken Your Honours
earlier to as to the breadth of "officer", the
absence of the evidence or the evidence not disclosing

the necessary identity and then, at line 25,

Mr Justice Sweeney goes on:

In my opinion, no reason has been shown -

to justify any contrary view and then considered

that it would have been necessary to consider other

matters if he had gone on to that course.

DEANE J: Mr Stevens, can I take you back to page 137 of

the appeal book.

MR STEVENS:	I am sorry, page 127 of the - - -
DEANE J:	Page 137.
MR STEVENS:	Page 137?
DEANE J:	Yes.

MR STEVENS:  I am sorry, Your Honour. My appeal book, as

far as the further numbers cease at page - - -

DEANE J:  That is the notice of appeal, right at the

end.

MR STEVENS:	Thank you, Your Honour.
DEANE J:	The declaration that is sought is set out there.
Now, if you change 20 August to 22 August, does
the Minister dispute the complete accuracy of that statement in the light of the finding that the
deportation order was a nullity?
MR STEVENS:	Yes, Your Honour, so far as -

DEANE J: Well, what does he dispute? Does he say the detention

was not unlawful?

MR STEVENS: 

So far as it is appropriate to make that

finding as against the Minister. That is the
dispute if the date were to be from 22 August.

DEANE J: 

But he does not dispute the accuracy of it? It

seems that your point is, really, that these people

should sue the public servant rather than the

Commonwealth. Well, now, if that is so, why would

that declaration stop the Minister from saying,

C2T23/2/SH	34	7/9/89
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"I accept that their detention pursuant to the

deportation order was unlawful but I, in my
capacity as a Minister of the Crown am not

responsible." If they have got relief, it is

against the public servants who did it	That
declaration would not preclude that.

(Continued on page 36)

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MR STEVENS:  Your Honour, the reason for not acceding to

such a declaration or seeking to avoid the

consequences are that there is no utility or no

need for that declaration to be so made

especially in the findings of the trial judge that

he was dissatisfied about a sufficiency of

evidence that might -

DEANE J:  But, these are people who have been unlawfully

detained on the Minister's deportation order on
the basis that that justified their detention and

the Minister has sought to justify their detention

as valid. Now, that being so, why is it not

appropriate to make that very declaration against

the Minister?

MR STEVENS:  Because, Your Honour, so far as the Minister

is concerned he does not seek to appeal in

relation to the finding that the deportation order

was properly set aside but, from that finding, the necessary or consequential that by reason of that the detention was unlawful. And, the cavil there is in terms of there being a sufficiency of

concern on the part of the trial judge to withhold

that as being an appropriate discretionary

declaration, an alternative consideration of the
withholding on the basis of that declaration that

there were alternative proceedings between these

parties which the trial judge considered to be a

more appropriate occasion and forum to ventilate

the consideration of that issue and that reasoning

having been adopted by Mr Justice Sweeney, we seek

to support it before Your Honours.

McHUGH J:	But, as late as the Full Court hearings, the Minister was ascerting to the world that the
appellant was lawfully detained.  Now, in that
context, why is not a court entitled to say, "Well,
we will now make a declaration as against the
Minister that the appellant was unlawfully
detained"?
MR STEVENS:	Well, Your Honour, that would then be a case

of considering whether or not it was appropriate

to grant or make such a discretionary declaration,

it being an exercise of discretion by the trial

judge to withhold that relief. And, the trial
judge having considered that he had insufficient

material before him that would justify the making

of that - and in that sense we comP back to the

principles of HOUSE V R and the

like as to the appropriateness of exercising such

a discretion - it is submitted that for the same

reason that there was no exercise of discretion

by the trial judge and ultimately but, because of

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different numbers,that there was no discretion

by the Full Court to make such a declaration, that

it is inappropriate for this Court also. If one

were to consider, so far as the basis of

Mr Justice Morling having been willing to

deviate as it were from his finding in respect of the initial deportation order to consider the appropriateness of the conduct, His Honour

considered at page 14 the question as to the

opportunity to have been able to consider the

initial deportation order. On line 5 on page 14,

His Honour considered that he could reach a

different conclusion from that of the learned

trial judge because there were:

inferences -

drawn -

from documents and undisputed facts -

and although there had been cross-examination

there was no aspect by the trial judge -

based upon the credibility of witnesses.

Following from that, at the final paragraph on that

page, His Honour then went on to say:

It was further submitted that a decision must

have been taken by somebody to keep them

in custody, that that decision was unlawful,

and that the trial judge ought to have made

declarations to that effect and awarded

damages to each of the appellants.

His Honour, in fact, broke that up then into two

categories but the very concern expressed by

His Honour there:

that a decision must have been taken by

somebody to keep them in custody -

highlights this circumstance that the somebody,

acting as a delegate of the Minister or as an officer

or as an authorized officer and that, so far as

that consideration is concerned, His Honour,

at page 15 -

GAUDRON J:  But, that is not strictly accurate, is it,

Mr Stevens? Or, you suggested in your answer to

me that that is not accurate. The situation was

they would be kept in custody until somebody

decided otherwise, not that somebody must have made a

decision to keep them in custody.

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MR STEVENS: Well, Your Honour, there would by necessity

under section 38 and on the evidence before the

learned trial judge have been a review of the

custody. There were in fact a series of applications

at a date subsequent to the 20 August which were

considered.

GAUDRON J: Well,we do not know.

MR STEVENS: Well,there was material before Mr Justice Morling,

which I can take Your Honour to, which disclosed

that there were requests by these people

GAUDRON J: Yes, it is clear there were requests.

MR STEVENS:  Yes. And that so far as that is concerned I

think it is a reasonable inference, so far as

Mr Justice Morling was concerned, that there is

an implied rejection of the requests for release,

such that within that somebody having received

a request for release, and that power existing under

subsection {7) -

GAUDRON J: It is still an irrelevant consideration though

because the question under 39 is whether somebody

decides to release.

MR STEVENS: Certainly, Your Honour, but I was just taking

Your Honour in terms of the phraseology of

Mr Justice Morling, with respect, is appropriate

in the context of there having been requests for

release.In the absence of a release,it being an

implied statement that people obviously had not

acceded to those requests.

TOOHEY J:  Once a deportation order is made, Mr Stevens,

section 38 has run its course, has it not?

MR STEVENS:	Yes, Your Honour.
TOOHEY J:

Now, does there not have to be some decision

by someone to place the deportee in custody

pursuant to section 39?

MR STEVENS: Section 38(6) allows three

circumstances to arise, it is submitted,Your Honour.

The first is that as soon as the person who is

already in section 38 custody is notified by that

circumstance by a particular officer if he is in
custody, that will have the effect of changing the

custody to section 39 or, alternatively, if he

has been arrested by such an officer then that

officer, if he still has his custody as well, would

be the arresting person, and the third circumstance

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would be that the person having a discretion,
notwithstanding anything contained in the section

pursuant to subsection(?), to have chosen not to

release him either under section 38 or section 39.

MASON CJ:  Mr Stevens,on this question as to whether the Court

ought to make a declaration that there has been an unlawful detention, is it not significant that in these very proceedings in this Court now you are

still maintaining that the detention was lawful?

MR STEVENS: With respect,Your Honour, what I seek to contend

is not necessarily that the detention was lawful or

w.lawful but railier that it is inappropriate to make

such a declaration adverse to the Minister and that

the Minister should not be the subject of - I do

not seek to not answer Your Honour's question, but

it is differently phrased that I seek to put the

response.

MASON CJ: What about paragraphs 10 and 11 of your outline

of submission? Do not they assert plainly that

the detention was lawful?

MR STEVENS: Well, so far as 10 and 11 are concerned

Your. Honour, it is s~l::initted that that is the basis so

far as a particular officer or authorized officer,

at the time until the decision be set aside,

is entitled to rely upon, that there is a validity

or an effect to a decision even if it is a-_nullity

or· later void, until it be so set aside.

MASON CJ: In other words that the decision and the order

until set aside operated as justification for the

detention.

MR STEVENS: Yes,Your Honour. And that so far as that is

concerned -

MASON CJ:  So, you are still submitting that the detention

was lawful in that sense.

MR STEVENS:  But that, with respect,Your Honour, is in terms

of a circumstance potentially between an

officer and the app.ellants, as distinct from the

Minister.

MASON CJ: r follow that but that is ·the. submission tilat YO\l. are putting

on behalf of the Minister now?

MR STEVENS: Yes,Your Honour. And if I could now take

Your Honours to page 15 of Mr Justice Morling's

decision which then characterizes as to his

variation in pathway.

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MR STEVENS (continuing): His Honour, at line 4, went on to

say in reference to Mr Justice Davies' decision:

His Honour thought that there was insufficient

identification of the decisions to keep the
appellants in custody, and of the persons who
made those decisions, to justify the making

of any orders of review under the JUDICIAL

REVIEW ACT.

His Honour then said:

Although, for reasons which I shall presently

state, I think his Honour was correct in

refusing to grant the relief sought, I do not

agree in the reason given by his Honour for

reaching that decision. Plainly, decisions were

taken to keep the appellants in custody. The

evidence discloses that they made several requests

to be released. Those requests were made to

the person in charge of the Villawood Detention

Centre and appear to have been forwarded to

officers in the Department. It is true that it

was not possible to identify which officer or

officers decided that the appellants should be

dept in custody. However, it is reasonable to

infer that the decisions were adopted by the Minister and I think they should properly be

regarded as his decisions. To treat them

otherwise would be to deprive the appellants of
the remedies of the JUDICIAL REVIEW ACT by
reference to considerations of form rather than

of substance.

It is in relation to His Honour's consideration that

it was reasonable to infer the decisions were adopted

by the Minister. That then ultimately led to

His Honour being able to find that, as against the

Minister, had he not earlier set aside the decision

that such a declaration would have been able to be

made.

It is submitted that, for the distinction, as I

have put, as to Minister, delegate of the Minister,

officer and authorized officer, that it is not

appropriate or, alternatively, is not reasonable to
infer that the decisions were adopted by the Minister,
there being the separate and distinct potential
exercises of discretion by such persons, and again
tha~ in terms of the OCEANIC principle, it is
inappropriate to infer such a vicarious liability

in terms of even the adverse adoption of a decision

by the Minister, in those circumstances.

So far as Mr Justice Foster is concerned - as my

learned friend has taken Your Honours to - at page 15

is the essence of His Honour's considerations on that

C2T26/l/DR	40	7/9/89
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aspect. His Honour, having considered that there

having been a detention:

from the 20th August, 1986 without lawful

warrant -

he found it -

unnecessary to consider the question whether

later decisions to retain them in custody

despite their requests to be released can
properly be identified ..... It seems to me that
it is of no real relevance to consider whether
decisions were in fact made or whether the

appellants pleas were simply ignored. The

simple fact is that their detention was

unlawful.

Now, Your Honours, where we would contend for

a different circumstance is: it is submitted that

there were a series of decisions in response to the
pleas; the effect or the potential effect of those

decisions, if they solely considered section 39

release as distinct from section 38 release or,

alternatively, failed to take the person before the

necessary authorized magistrate, it still makes it

inappropriate, in our submission, to make the

necessary declaration in that context, there having

been evidence that there were a series of decisions

and there having been the finding by the trial judge

that there was an insufficiency of evidence to

satisfy him as to the nature of such steps.

Unless one is adopting the approach of

Mr Justice Morling and considering that such decisions

are automatically to be accorded to having been
adopted by the Minister, that it is inappropriate

and/or alternatively lacks the necessary utility of

making such a declaration. One might ask rhetorically,

"So far as the appellants are concerned, having

achieved the setting aside ab initio of the

deportation order, as against the Minister, is there

any utility able to be achieved by making such a

declaration?" If there is a utility, and it is
submitted there is not in the context and in the
findings of fact, if there is a utility is it
appropriate that the trial judge having withheld that

discretion,was he wrong in having exercised that

discretion to withhold the relief, was he wrong in

not having considered such facts and materials as

he did have before him as distinct from consider it

unnecessary to go beyond those findings of fact for

the purposes of the administrative review.

C2T26/2/DR 41 7/9/89

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In our submission, the course adopted by the

trial judge and the course then approved by

Mr Justice Sweeney was an appropriate course and

that, so far as Mr Justice Morling was concerned,

the adoption by the Minister, with respect, was not
able to be made or, alternatively, was not within the
purview of an appropriate step by the Full Court to
make, such as to render the initial exercise of discretion

of the·trial judge inappropriate.

(Continued on page 42)

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MR STEVENS (continuing):  So far as that aspect is concerned,

it is submitted that the statements by Your Honours

in the decision of JACKSON V STERLING INDUSTRIES,

in terms of characterizing both section 23 and

section 32 of the FEDERAL COURT ACT remain apposite
in terms of reviewing the potential exercise of
discretion to withhold the declaratory relief, it being

well accepted that to withhold a discretionary

remedy is, itself, an exercise of discretion, and so

far - - -

TOOHEY J:	Your argument, Mr Stevens, really assumes that there
is a utility in making the declaration, otherwise
you would not be concerned about it.
MR STEVENS:	One never likes to face unnecessary hurdles, perhaps,

Your Honour, in that context.

TOOHEY J:	But it is only the implications that a declaration
may have to so~ further proceedings, as I understand the argument, that really has you on your feet this
morning.

MR STEVENS: In large part, I think that is correct, Your Honour.

TOOHEY J: 

So, it is the utility that the declaration may have

but the utility that it may have for the appellants

would be the matter of concern.

MR STEVENS: 

Perhaps that then highlights, Your Honour, the

reluctance with which an appellate court should
interfere when the trial judge has not himself

considered there to be a sufficiency of material before

him to enable him to make such - or be unwilling to
exercise such a discretion.

TOOHEY J: Well, I understand that, but that is a somewhat

different argument.

MR STEVENS:  So far as the caution in terms of suggesting there

be an absence of utility, it is submitted that

if Your Honours were of the view that there still

remains the course open to the Minister as to this

vicarious liability, and the strength of the

OCEANIC CREST decision, which, by reason, so far as

it is concerned, has adopted the earlier decision of

ENEVER, that that, if accepted, would remove that

utility to the appellants. It would not shut
forth from the respondent being later able to argue

the absence of vicarious liability

TOOHEY J:	Have the proceedings in the Federal Court been exhausted?
MR STEVENS:	Yes, Your Honour.

TOOHEY J: There is no pending relief that could bring the appellants

back before the Federal Court if a declaration, of the

sort that they now seek, were granted?

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MR STEVENS:  No, Your Honour.

TOOHEY J: Yes, thank you.

MR STEVENS:	If I can take Your Honours to JACKSON V STERLING INDUSTRIES LTD, (1987) 162 CLR 612, considering
principally the question of the availability of
MAREVA injunctions in the Federal Court, but so far
as the questions of the associated or accrued
jurisdiction as to section 23 and section 32, in the joint judgment of Mr Justice Wilson and
Mr Justice Dawson at page 618 at point 9, it is
submitted that those same remarks, when one is
considering ancillary and related relief, are apposite in terms of considering the appropriateness of a
discretion under section 16(l)(d) of the
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW):

Associated matters at common law or under

State statute law form too wide a category

to fall within any accrued or pendent jurisdiction

which that Court may have ands. 32(1) has been

held to do no more than confer jurisdiction upon

the Federal Court in associated matters which

arise under Commonwealth laws but in respect of

which jurisdiction has not otherwise been

conferred .....

However, the declaration of the Federal

Court as a superior court is to be given

effect as far as it can be and ..... carries with

it such implied power is is necessarily inherent

in the nature of the juricial power itself.

At point 4:

Be that as it may, it cannot be suggested that

either the power to grant relief under s. 23 or

an implied power to prevent an abuse of process

extends to the creation and enforcement of rights

in addition to those for the protection or

enforcement of which the jurisdiction of the
Court is invoked.	The power given bys. 23

is expressly limited to the making of orders

in relation to matters in which the Court has

jurisdiction and it does not extend the jurisdiction

of the Federal Court. Nor could that Court's

implied power be employed to create and enforce

new rights.

(Continued on page 44)

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MR STEVENS (continuing): At page 620, in the judgment

of Mr Justice Brennan:

As Toohey J points out, s. 23 confers on

the Federal Court such powers as are necessary

or incidental to the exercise of that Court's

jurisdiction. But that is not to say that	the Court's discretion to mould relief is at
large. The relief which the Court is authorized
to give does not extend beyond the grant of
remedies appropriate to the protection and
enforcement of the right or subject-matter in issue. In this case, an interlocutory remedy
was sought and granted.

Then, in Mr Justice Deane's judgment at page 622,

dealing initially with:

Section 23 ..... confers upon the Federal Court a broad power to make orders of such kinds, including interlocutory orders, as it "thinks

appropriate". Wide though that power is, it

is subject to both jurisdictional and other

limits. It exists only "in relation to

matters" in respect of which jurisdiction
has been conferred ..... Even in relation to such
matters, the power is restricted to the making
of the "kinds" of order, whether final or
interlocutory, which are capable of properly
being seen as "appropriate" to be made by the

Federal Court in the exercise of its jurisdiction.

TOOHEY J: What use do you make of JACKSON V STERLING?

MR STEVENS: 

That so far as the characterization of the

breadth of section 23 and the restraint that is
inherent in terms of it not being as far reaching

as on the face of the words, that same restraint

and that same breadth of applciation, it is

submitted, oueht to be applied to section 16(1)(d)

of the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT.

TOOHEY J: 

Do you mean as a matter of policy, not as a

matter of jurisdiction· or power?

MR STEVENS:  That is right, Your Honour, and that so far

as the construction or the construing of the

words in section 23, in so far as the language

is similar to that as exercised in section 16,

it confers a like construction and a like restraint

to be imposed upon the breadth of that discretion.

If Your Honours consider sections 15 and 16

of the ADMINISTRATIVE DEC IS IONS ·(JUDICIAL REVIEW) ACT

allow to the Court, in terms of section 15, the

relief in relation to interlocutory aspects and

then, in terms of section 16, it is all pre-supposed

C2T28/l/JM	44	7/9/89
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on the exercise of a discretion, including,

in terms of paragraph (a), as to the quashing

or the setting aside of the decision or the part of it, and again, with effect from the date of the order of the Court or such earlier

or later date as the Court specifies. Then,

similarly, in terms of subsection (d) the:

direction any of the parties to do, or
to refrain from doing, any act or thing
the doing, or the refraining from the doing,

of which the Court considers necessary to do

justice between the parties.

If one looks to subsection (d) as being the

appropriate exercise I have suegested as to

the removal and the denial - subsection (c) being

the declaration of the -

rights of the parties in respect of any

matter to which the decision relates -

it is submitted that one should there draw the

distinction in this instance between the conduct

which sought to impose a maintenance charge,

that maintenance charge being the direct

consequence under section 21A of there being

a deportation order and of there being a custody

detention. That consequential relief on one
hand and the alternative declaration in relation

to an unlawful detention when there is nothing

that automatically flows in the Federal Court

between those parties as a consequence of it.

It is submitted that in the alternative,

either the vicarious liability protection available
to the Minister renders that an unnecessary

declaration, or alternatively, that the discretion

of the trial judge in the absence of a sufficiency

of information renders it an unnecessary or

an appropriately withheld discretion.

(Continued on page 46)

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MR STEVENS (continuing): Unless there be some further aspect

with which I can assist Your Honours, they are

the submissions we seek to put on behalf of the

respondent.

MASON CJ:  Yes, thank you, Mr Stevens. Mr Handley.

MR HANDLEY: If Your Honours please, the correct date for

any declaration, should one be made, is, in our

submission, 20 August and not 22 August. On

20 August, a deportation order was made and the

effect of that under the statute was to put an

end to the detention pursuant to section 38 and

to commence detention pursuant to section 39.

I ask Your Honours to look briefly at page 120

of the appeal book where section 38 is set

out in the judgment of Mr Justice Sweeney. The

section commences at the bottom of page 119 but

I do not have to trouble Your Honours with

subsections that appear on page 119 but at

page 120 in subsection (3) dealing with the

magistrate, line 3:

If the prescribed authority is satisfied

that there are such reasonable grounds,

he may, by writing under his hand, authorize

the detention of that person in custody for - a particular purpose -

for such period as the prescribed authority

is satisfied is reasonably required in order

to enable the Minister to consider whether that

person is a prohibited non-citizen and whether

a deportation order should be made in respect

of him -

Then, subsection (6):

If, while a person is in custody under this

section, an officer informs that person .....

that a deportation order is in force in relation

to hiw, the preceding provisions of this section cease to apply in relation to that

person and he shall be deemed to have been

thereupon arrested under section 39 by the
officer having his custody or, if he is not
in the custody of an officer, uy the officer

who so informs him.

Now, the moment the deportation order is made,

Your Honour, the custody is transferred from

section 38 to 39 and the effect of the magistrate's

order ceases.

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GAUDR0N J: It is actually the minute he is informed,

Mr Handley.

McHUGH J:	He has to be informed.
MR HANDLEY:	Yes, I beg Your Honours' pardon but- - -

GAUDR0N J: Is there any difference on that?

MR HANDLEY:  There is no difference, Your Honour, because

on page 6 - - -

GAUDR0N J: Eighteen hundred hours on 20 August.

MR HANDLEY:  Yes. The receipt on page 6 of the appeal book

is for the - signed by Mr - well, it is not signed

by Mr Park but there it is and it is served on "AN",

abovenamed, I suppose,"at 1800 hours, 20 August,

refused to sign".

GAUDR0N J: That assumes, of course, that it is the information

that converts the custody and not the deportation

order.

MR HANDLEY:  Well, it does not matter, in this case, Your Honour.

GAUDR0N J: Well, you say so -

MR HANDLEY: 

Unless one is concerned

GAUDR0N J: 

- - - but if that is right, then it might be the

information which makes the custody legal and not
the deportation order.

DEANE J: It might be the information that brings about the

deemed arrest but the custody has to be justified

under section 39 which seems to be your escape route.

MR HANDLEY:  Yes, Your Honour, indeed. The information

terminates custody under section 38 and effects

an arrest under 38(6) and section 39 is quoted	in full in the judgment of Mr Justice Morling at
pages 16 and 17 and 39(1):

(Continued on page 48)

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MR HANDLEY (continuing):

Where an order for the deportation of a person is in force, an officer may,

without warrant, arrest a person whom he

reasonably supposes to be that person,

and a person so arrested may, subject to

this section, be kept in custody as a

deportee in accordance with sub-section (6).

Subsection (6), over the page:

A deportee may be kept in such custody as

the Minister or an officer directs -

(a) pending deportation -

et cetera and then subsection (7):

Notwithstanding anything contained in

this section, an authorized officer may

at any time order the release of a

person who is in custody under this

section.

So, custody continues until a decision is made to

release. And, Your Honours, Mr Justice Foster,

in our submission, was correct in what he said

at page 5 of his judgment and this is from about

point 4 on the page to point 5, the word "before"

is on the left-hand margin:

Before the expiration of the seven day

period of detention then authorised -

that is on 15 August -

a deportation order was made on the

21st August -

that is a slip, the correct date was 20 August

as appears from the copy order which Mr Stevens

handed up -

which resulted in their detention thereafter

being deemed to be pursuant to section 39

of the Act. It is the lawfulness of this
order and the detention thereunder which

constituted the major issue before the

trial judge.

Your Honours, the only other matter that we wish

to put concerns Mr Stevens' submission at

paragraphs 10 and 11 and, Your Honours, we are

somewhat taken by surprise by that submission and

we do not have all the authorities readily at hand

C2T30/1/JH	48	7/9/89
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but there is a well settled distinction between

invalid judicial warrants, on the one hand, and
invalid executive warrants or orders, on the other.

Invalid executive warrants, unlike judicial

warrants, when later set aside ab initio, do not

protect persons who acted on those warrants in the

meantime. That is impliedly stated by

Mr Justice Deane - he only states the position

with regard to judicial warrants - but the converse

is impliedly stated with regard to executive

warrants in re BOLTON VEX PARTE BEANE, 162 CLR 528;

and the position with regard to judicial warrants

later set aside is referred to, dating back to

a decision in the time of Lord Cokei by four

Justices of this Court in THE COMMISSIONER FOR

RAILWAYS V CAVANOUGH, 53 CLR 220 at 225, where

Their Honours say:

Acts done according to the exigency of

a judicial order afterwards reversed are

protected: they are "acts done in the

execution of justice, which are

compulsive".

But, Your Honours, that principle does not apply

to executive warrants and it has got something to

do with the rule of law.

TOOHEY J:  Mr Handley, this is rather like going back to

square one, but, can you just encapsulate again the basis upon which it is said that this Court should interfere with the decision not to grant a

declaration. I understand the argument so far as

it perhaps represents an attack on Mr Justice Davies'

reasons but, that aside, why is it said that a

declaration is necessary or appropriate, or however

it is put?

MR HANDLEY:	Your Honour, section 22 of the FEDERAL COURT ACT, I think, imposes a statutory duty on the court to
multiplicity of legal proceedings.
grant complete relief so far as it can to avoid (Continued on page 50)

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MR HANDLEY (continuing):  As Mr Justice Foster said

in a passage that I iust quoted and, indeed,

as has been discussed in argument in this Court

in the last half and hour or so:

It is the lawfulness of this

order and the detention thereunder -

it is the lawfulness of the detention thereunder -

which constituted the maior issue

before the trial iudge.

Having decided that that matter having been

litigated, that is the lawfulness of the appellant's

detention, the Court should grant, and is under an
overriding statutory duty to grant, complete relief,

so far as the Court can - we do not challenge the

question of damages - but a declaration. The

refusal to make a declaration, Your Honour, is

a refusal to complete proceedings in an appropriate

way when the issue has been litigated and in the
face of a continued refusal to acknowledge the

unlawfulness of the appellant's detention.

Now, as to the utility of it, Your Honours,

it is established - at page 128 of the appeal book

Mr Justice Sweeney refers to - perhaps I should

start again. An action is pending in the

Supreme Court of New South Wales at the suit

of the appellants against the Minister, and only,

at the moment, against the Minister, for damages

for false imprisonment, and that is referred to

in a number of places in the appeal book and I

need not trouble Your Honours with those

references for the moment. At the bottom of page

page 128, the last two lines, and the top of

page 129, Mr Justice Sweeney said:

Each appellant, if deported, could

apply for dispensation from the usual

embargo that a deportee should not be

allowed back into Australia within

5 years, so as to enable him to

participate in the conduct of the

action against the Minister in the

Supreme Court.

DEANE J:  Why would they be suing the Minister, Mr Handley,

as distinct from the Commonwealth?

MR HANDLEY:  Well, Your Honour, the principle that

Mr Stevens referred to from time to time about
the lack of vicarious responsibility for the acts

of officials pursuant to statutory power is

presumably the basis of that decision. Needless

to say, no final decision has been made that the

C2T3 l /1 /HS	50	7/9/89
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Minister should be the only party, but at the

moment that is the situation.

MASON CJ:	What stage have those proceedings reached?
MR HANDLEY:	A statement of claim has been filed and

served, Your Honour.

MASON CJ:  Has a defence been filed?

MR HANDLEY:  I do not believe it has. At the time of the

special leave application there were some questions

asked as to whether the Minister would file a
defence putting in issue the lawfulness or the

unlawfulness of the detention. A defence has

not yet been filed, Your Honour.

Your Honour, in our submission, in terms of

HOUSE V R, in answer to Justice Toohey's question,

the discretion to refuse this relief has

manifestly and, with respect, seriously

miscarried. The matter having been fully

litigated, now up to the High Court of Australia,

even before this Court chose to grant special

leave to the highest Federal Court, it was a

gross mis-exercise of discretion to refuse to grant

a relief of a declaration where the matter had

been litigated, and fully litiga~d, and everything

follows, in our submissio~ from the fact that the orders were set aside ab initio in the context of the sections of the MIGRATION ACT to which we have

referred. If the Court pleases.

MASON CJ:  Thank you, Mr Handley. The Court will consider

its decision in this matter and adiourn until

10.15 am tomorrow.

AT 12.14 PM THE MATTER WAS ADJOURNED SINE DIE

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