Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor; Plaintiff M106 of 2011 by his Litigation Guardian, Plaintiff M70/2011 v Minister for Immigration and Citizenship
[2011] HCATrans 223
[2011] HCATrans 223
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M70 of 2011
B e t w e e n -
PLAINTIFF M70/2011
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Melbourne No M106 of 2011
B e t w e e n -
PLAINTIFF M106 OF 2011 BY HIS LITIGATION GUARDIAN, PLAINTIFF M70/2011
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON MONDAY, 22 AUGUST 2011, AT 2.16 PM
Copyright in the High Court of Australia
____________________
MS D.S. MORTIMER, SC: If it please the Court, I appear with my learned friends, MR R.M. NIALL, SC, MR C.L. LENEHAN, MS K.L. WALKER, MS E.A. BENNETT and MR M.L.L. ALBERT, for the plaintiffs. (instructed by Allens Arthur Robinson Lawyers)
MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with MR G.R. KENNETT, SC, MR S.P. DONAGHUE and MR N.M. WOOD for the defendants. (instructed by Australian Government Solicitor)
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR C.J. HORAN, to seek leave to intervene in M106 on behalf of the Australian Human Rights Commission intervening. (instructed by Australian Human Rights Commission)
FRENCH CJ: Yes, you will have that leave, Mr Jackson. Yes, Ms Mortimer.
MS MORTIMER: If the Court pleases, the Court should have before it an outline of oral argument. I can inform the Court that I will be addressing the Court on all matters except the guardianship matters. My learned friend, Mr Niall, will address the Court by way of oral submissions in relation to those. If the Court pleases, we propose to follow the outline fairly closely save that your Honours will notice that there is no reference in the outline to the legislative instrument ground. That has been rendered irrelevant because of the registration of the declaration by the Commonwealth last Thursday on 18 August with effect from 19 August, so there will be no argument towards that ground.
Your Honours, before I go to the legislation, which is, of course, central in this matter, I want to take the Court, in part because of the short time that everybody has had to get to the facts, to some of the key factual events and to do those in chronological order. Your Honours have the application book. Can I take your Honours first to the first event that we say is significant which is the letter of 7 May 2011 by the first defendant. Your Honours will find that on page 529 of the application book. That is attachment 27.
FRENCH CJ: I do not think that is right, is it?
MS MORTIMER: It is not right. It should be attachment 27 on page 539, I apologise. That is the joint statement by both Prime Ministers in relation to the arrangement that was announced that day. In the next attachment at page 543 of the application book your Honours will find the letter from the first defendant to Mr Metcalfe, the Secretary of the Department of Immigration. Now, that is the letter which directs that:
no processing of any asylum claims is to occur in relation to offshore entry persons who are intercepted or arrive directly in Australia after 7 May 2011.
The first defendant also indicates to Mr Metcalfe in that letter that he will not be considering the exercise of any of his powers under section 46A or section 195A of the Migration Act. The Court will see in the second paragraph there Mr Bowen says that it is his expectation that:
such individuals will be taken to Christmas Island and removed from Australia . . . In practice, this will involve individuals being removed to Malaysia or another country with which transfer or processing arrangements are agreed –
Those, in our submission, would form part of the plaintiff’s case in absolute terms in terms of what was to happen to these people. Thereafter, there was a briefing note which went to the Minister on 24 May. That is attachment 32. Your Honours will find that at page 582 of the appeal book. By this briefing note the Minister was asked to agree –your Honours will see:
as a matter of routine, the Department will use the removal power under s 198(2) of the Migration Act . . . to remove offshore entry persons –
and the Minister was asked to –
note your consideration of making declarations under s 198A(3) –
Now, this is a matter on which I will return on several occasions. Many of the Commonwealth’s documents in relation to the way the Minister was briefed in this matter invoke section 198(2). We will submit that nothing turns on the invocation in the departmental documents of that. The question the Court will have to decide is, what is the source of power to take these people? Nevertheless, the Court will note that most of the documents on which the Minister was briefed do invoke and are expressed in terms of section 198(2). Over the page, if the Court pleases, under the heading “Key Issues” there is a reference to the direction that was given by the Minister on 12 May that:
until further notice, no processing of any asylum claims is to occur in relation to offshore entry persons –
Just below the first redacted piece in that document the Court will see the way that it is anticipated that these people will be dealt with:
the general approach will be for irregular maritime arrivals (IMA) to be transported to Christmas Island and taken into immigration detention prior to their removal to another country.
There is then some redacted parts over which privilege is claimed. We then come to, on page 585 of the application book, a heading “Section198A(3) declaration”. The way that the Minister is advised about this is that there is, nevertheless, merit in him making a declaration. Now, that again, of course, is the language which conforms with the way the Commonwealth puts its case to this Court. The Minister is advised that the declaration would:
symbolise government confidence that the transfer arrangements are protection-sensitive and may ameliorate some potential public criticism that it is not so.
Again, that is the perspective that the Commonwealth brings to what use might be made of a declaration. Our submission is that it is much more than that. Although we will not shy away from submitting to the Court that there is, in a sense, a symbolic but necessarily symbolic aspect to it, that is, it is a declaration by a state party to the Convention to other state parties to the Convention of how this country is going to deal with asylum seekers that invoke protection claims.
We say, in that sense, there is some legal symbolism that attaches to a declaration – not the kind of symbolism that the briefing note is talking about here. The next event in the chronology we move really then to what happened on 25 July 2011 and the entering into of a political arrangement between the Governments of Australia and Malaysia. That is attachment 30 which the Court will find at page 554 of the application book. This arrangement is expressly said in clause 16 not to be “binding on the Participants”. That is on page 563 of the application book.
FRENCH CJ: That can only be, in a sense, relevant to international law, can it not, or international obligations?
MS MORTIMER: Yes, your Honour, yes, but it is relevant – does your Honour mean relevant to the arguments in this case?
FRENCH CJ: No, when I say “legally binding” – when it says “legally binding” – within what framework are we talking?
MS MORTIMER: Yes, your Honour, that is right, as a matter of international law; that is so.
GUMMOW J: Has this agreement been tabled under the arrangements between the Executive and the Parliament?
MS MORTIMER: I am not aware if it has, your Honour. We will find out. The other clause that I just want to draw the Court’s attention to now is Clause 8, which is on page 558. When we get to the guidelines and the pre‑removal assessments that are done in relation to individual people, your Honours will see references multiple times in those documents to this arrangement – by this arrangement Malaysia has agreed to abide human rights standards. The only clause in the agreement that deals with that, the arrangement, is clause 1, where it says – clause 8, paragraph 1 where it says:
Transferees. . . will be treated with dignity and respect and in accordance with human rights standards.
Following the signing of that arrangement the Minister was given a briefing note, or a submission, which your Honours will find at attachment 34, page 589 of the application book, and this is the document to which I will return in argument in some detail, but just to note some points of it, the Court will see under the heading “Timing” the note this:
Urgent: Please action on 25 July 2011 following signing of the Transfer and Resettlement Arrangement with Malaysia to ensure appropriate legal mechanisms are in place to effect transfers under the Arrangement.
The Minister is then asked to:
1.agree . . . that the Department will effect the duty to remove an unlawful non‑citizen under s 198(2) –
and it is said to be that that duty will be effected, the Court will note –
by exercising the power in s 198A(1) –
and the Minister agrees to that by circling “agreed”. The Minister is then asked to:
2.agree, on the basis of the material in this submission, that Malaysia meets the criteria set out in subsection 198A(3) –
and the minister does agree. He is then asked to:
3.sign the instrument of declaration –
and he is asked to:
4.note that this submission supersedes advice –
that he was given. There is quite a lot of detail in this submission that I will come back to when I address the Court about our grounds concerning the formation of the Minister’s satisfaction if we are otherwise wrong about the matters in section198A(3) being jurisdictional facts. The declaration, your Honours will then find as attachment 33 at page 587 of the appeal book. The final event that occurred on 25 July 2011 was a new direction by the Minister to his officers, and your Honours will find that behind – it is attachment 35 at page 623 of the application book. In that direction letter to Mr Metcalfe, the Minister refers to the earlier direction to which I took the Court, and then the Minister formally directs Mr Metcalfe to this effect ‑ ‑ ‑
GUMMOW J: What page are you reading from?
MS MORTIMER: Page 624, your Honour. The Minister formally directs Mr Metcalfe to this effect; first, that:
Processing of any asylum claims . . . in relation to offshore entry persons who were intercepted or who arrived . . . after 7 May 2011 and on or before 25 July 2011 –
is to occur in Australia. That is a reversal of the direction of 12 May. The Minister indicates in relation to those people that he is “prepared to consider exercising” his discretionary powers under section 46A and 195A. Secondly, there is to be:
no processing of any asylum claims . . . in relation to offshore entry persons who are intercepted or who arrive directly in Australia after 25 July 2011 –
The Minister makes a direction in similar terms to the one on 12 May 2011 about not wishing to consider the exercise of any of his powers. He says:
It is my expectation that such individuals will be taken to Christmas Island and removed –
We come then, if the Court pleases, to what happened to the individuals, and I am going to, for the purposes of this introductory chronology, concentrate on the first plaintiff, Mr Shah ‑ ‑ ‑
FRENCH CJ: Can I ask whether that direction was tabled?
MS MORTIMER: Your Honour, our understanding is that, if your Honour is referring to section 499 of the Migration Act, that there is time until 21 September to table it – that is our calculations – if it is in fact a direction pursuant to that section. The Commonwealth has not relied on that as a source of power in its submissions. There has been no source identified for the direction.
We come now to the arrival of the first plaintiff in Australia, and paragraph 21 of the agreed statement of facts states that he arrived on 4 August 2011, and that is at page 5 of the application book. He was detained pursuant to section 189(3) of the Migration Act. Your Honours will find that detention notice behind tab – it is attachment 6 on application book page 79. That detention notice invokes section 189(3), and ‑ ‑ ‑
FRENCH CJ: This is just an administrative form, is it, not under the regulations?
MS MORTIMER: I do not believe there is a form prescribed, your Honour, no. It states that the officer concerned – in the second‑last paragraph – has formed a reasonable suspicion, and then there is a reference which we take to be the only regard that is had to the nature of this being a discretion:
having regard to the circumstances of your arrival and to relevant government policy, I have decided to detain you under section 189(3).
There is then, in the last paragraph, a reference to section 196 of the Act and what that requires. It will be part of our argument, your Honours, that 196 of the Act has no role to play where there is a declaration under section 198A in place, and I will develop that argument when I get to the statutory provisions.
The other information that was given to Mr Shah is what appears at attachment 5 at application book 77. He agreed, at line 10 on page 36 of the application book, that this is what was read to him and the other persons who arrived on the boat as a group statement. It repeats, about halfway down the box – firstly it says, if the Court pleases, under the little subheading “Purpose” that its purpose is to:
inform new IMA arrivals, who are subject to removal to another country –
no qualifications there –
of the reason for their detention and prepare them for detention procedures.
There is then an introductory script about what has happened to the person so far and which provisions of the Act they are subject to. Then again there is, in the script about halfway down, a group statement that says –apparently this is what the officer says to the group – that the officer suspects that they are unlawful non‑citizens and invokes the same language that I have just taken your Honours to in relation to the individual detention notices. There then appears to be a script to the effect that:
If you are a child, I am satisfied that in all circumstances your detention is a measure of last resort.
That again appears to be a statement that is made to the group en masse in terms directed at all children who might be in that group.
FRENCH CJ: Does that have its origin in some policy? It is not statutory, is it?
MS MORTIMER: The reference to detention as a measure of last resort, your Honour, is a reference to the language in section 4AA of the Migration Act and the policy there that that is supposed to be the circumstances in which children are detained. The language in that section – just to remind the Court – is subsection (1):
The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
Now, having had that notice read and having had an individual notice served on him, the same day that he arrived Mr Shah was interviewed. Your Honours will find that at attachment 7 at page 80 of the application book. We make the general observation that many of the questions in this document are really directed at extracting information from these individuals about people smuggling, to use that term, and how they arrived and who helped them to arrive, but on the second page under the heading question 16, “Which countries did you transit on your way to Australia?”, the Court will see references to Mr Shah, like many of the plaintiffs, having come through Malaysia, into Malaysia and then left from Malaysia. That assumes some significance in relation to one of our arguments about the individual circumstances of these plaintiffs and how they ought to have been dealt with.
A couple of pages over on this form, page 85, your Honours will see the reference to the arrangement between the Malaysian Government and Australia and noting that people may be transferred to Malaysia and then asking this plaintiff whether he had any reasons that he should not be removed. He is recorded here as giving some answers to that about the treatment that he has previously experienced and that he expects to experience in the future. He is then asked some more questions that are really directed at awareness of Australia’s policies rather than anything to do with his claims. Having had that initial assessment undertaken, the next day Mr Shah was subjected to what is called a “pre-removal assessment”. Your Honours will find that as attachment 8 to page 88 of the application book.
This document records, firstly, his personal details and then the matters that were before the person that conducted this pre‑removal assessment. The second last dot point, your Honours will see that the interview that I have just taken the Court to was one of the documents that was before this officer. The assessment then goes through a number of matters, including, your Honours will see on page 91, the possibility that Mr Shah may have “protection claims against Malaysia”. This is the matter, in our submission, that is common. I do not think it is unfair to say that because many of the plaintiffs are Shi’a Muslims, that being the predominant religion of Hazaras from Afghanistan, and there were questions raised about the status of Shi’a Islam in Malaysia. Your Honours will see that discussed in detail on page 92 of the application book about the third paragraph down that:
Shi’a Islam is a banned religion in Malaysia –
some facts that the assessor records about the need for Shi’a Muslims to –
practise their religion in secret, keep a low profile and do not preach to other Muslims in Malaysia –
the monitoring by the Malaysian government of “the activities of the Shi’a community” and steps that have been taken by the government to:
‘halt the spread of the faith in the country’, including issuing fatwas against the sect and monitoring and controlling the production of materials promoting Shiism.
There is then some reference to the reports about the detention of Shi’a Muslims, and towards the end of that page that:
The director of the Selangor Islamic Religious Department, who authorised the arrests, said the Shi’a doctrine was a threat to national security –
and so forth. The discussion of that is undertaken in some detail about two‑thirds of the way down on the next page, page 93 of the application book, the assessor in the paragraph that starts:
I acknowledge that Shi’a Muslims were arrested –
the assessor concludes that the risks were not of a kind that could be seen to really affect this particular plaintiff and forms that conclusion in the next paragraph, in the last sentence of the next paragraph.
GUMMOW J: All of this is triggered by what the writer said at page 91 in the second and third paragraphs under “Assessment”?
MS MORTIMER: Yes, your Honour, it is, because it is clearly – and your Honour will see that when we come to look at the procedures and the guidelines that underlie this assessment – it is clearly stated that the purpose of this assessment is to ensure that Australia is abiding its obligations of non‑refoulement and is not sending a person to a country where they would otherwise have a well‑founded fear of persecution against that country as well.
GUMMOW J: That understanding perhaps informs the construction of 198A, does it not?
MS MORTIMER: We submit it does, your Honour; we submit it does. Now, the final document in terms of the facts that I wish to take the Court to is what happened on Sunday, 7 August 2011. That is attachment 15 at page 255 of the application book. This is on the same day that an application was made for an interlocutory injunction in this Court. This is the decision record under section 198A(1) in relation to the plaintiff to take him to Malaysia. That is, at the moment, all I want to take the Court to by way of a chronology and an introduction to the facts that sit behind this case.
FRENCH CJ: Some of the inquiry, I suppose, in the pre‑removal assessment might be thought to go behind some of the matters the subject of the declaration, that is (iv).
MS MORTIMER: Your Honour, we would submit, perhaps, not go behind them but go beyond them is the way that we make that submission because we certainly submit that it is a part particularly of the discretion under subsection (1) in section 198A in relation to individuals, that an officer has to look at how this individual is going to be treated when he or she is taken to the declared country.
Now, if the Court pleases, all of the plaintiffs’ arguments about the constraints on the exercises of power against them turn on the construction of various provisions in the Migration Act as it now stands, but to understand those arguments, we submit there are really three steps that must be undertaken. Firstly, one must go back to the introduction in 2001 of this suite of legislative changes, but then one must look at the pre‑existing scheme upon which those changes were imposed and then one must construe the effect of those changes.
So to start with, by going back to what happened in 2001, and a convenient description of that is found in the judgment of this Court in Plaintiff M61/2010 v Commonwealth (2010) 272 ALR 14. The parts that I want to direct the Court’s attention to out of M61 at this stage by reminding the Court of what was said in paragraph [27], that is:
that, read as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol.
The Court notes that in some respects the Act may then have gone beyond those, but then in the last sentence in that paragraph observes that:
Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well‑founded fear of persecution for a convention reason.
The Court then turns to look at the historical context in which those provisions were enacted and we submit that for the purposes of this case the Court, of course, can take that context as it is stated in M61 and the Commonwealth must do the same. The key aspects that we wish to emphasise are, firstly, in paragraph 30, the note about the introduction of 46A and in paragraph 31, the note about the parallel provision, the introduction of section 198A. Then in paragraph [33], the reliance on the characterisation as part of the documentation that was before the Court in M61 of what the specific strategy was all about and what that documentation said is extracted at the bottom of page 22 of the Australian Law Reports, notably that last sentence:
The Pacific strategy in no way detracts from these obligations.
That is the obligations under the Convention. A similar point is made in paragraph [34] of M61 on page 23 where another part of the documents relating to the Pacific strategy is extracted and they note that the legislation:
has two mechanisms that reflect Australia’s obligations under Article 33 –
a framework to enable the Minister for Immigration and Multicultural and Indigenous Affairs to decide whether to allow an application –
So that is 46A:
the ability to take unauthorised arrivals who have entered Australia at excised offshore places –
In paragraph [35] the Court then makes the observation that the removal power or the duty, the removal duty in section 198(2) must be read as accommodating the taking of steps to allow the Minister to be informed so that he can decide whether to exercise his powers under that onshore alternative of the two, but that is really where the analysis in Plaintiff M61, because of the circumstances of that case, was able to stop and there was no need in that case to go on and analyse the second of the two mechanisms that that document was talking about because it was not in issue.
Throughout the assessment of our argument in this case about why no different analysis in principle should be applied to the construction of section 198A are these propositions. Firstly, the ones that I have just taken the Court to in M61, that is, the Act operates on the assumption that Australia is responding to its protection obligations in the way that section 198A operates and that it is doing so through two different streams since 2001 as an alternative to the visa scheme.
Those streams are delineated by reference only to the place at which asylum seekers arrive, and only the place. There are no other characteristics of these asylum seekers that the legislation fastens on to treat them any differently, or to treat them in any lesser way. So we submit that there is nothing in the text or context of the 2001 amendments that suggests that by reason of the place at which these people arrive they will be afforded lesser standards of protection than the Convention requires or lesser standards of processing than the Convention requires.
The other point which I wish to make early on in the argument is that running through much of the plaintiff’s argument in terms of the way that we ask the Court to construe the provisions, is that fundamental rights are at stake and there are three; liberty, obviously, freedom of movement and bodily integrity and the freedom from assault. The proposed conduct of the Commonwealth interferes with all three of those rights. So that the nature of the rights at stake, in our submission, permeates the statutory construction that is at heart the task of the Court in this case. I say that together with the role of the rule of law which goes hand in hand with the place that is accorded to fundamental rights in statutory construction. Now, that becomes a particularly important point in our argument about why those criteria in subsection 198A(3) are jurisdictional facts.
That being, in summary, what the purpose of the introduction of the 2001 changes was, can I turn now to what the scheme looked like when those changes were introduced. This is really relevant to illustrate why, in our submission, the pre‑existing regime of mandatory detention, 196 and 198 does not apply, and your Honours will find the pre‑existing regime behind the Commonwealth – the Commonwealth has provided a couple of sets of legislative material, and the first one headed “Defendant’s Index to Legislative Material” – it has got about 26 tabs in it, if I can ask the Court to go to that?
Your Honours will find behind tab 1 in that set of material the Migration Reform Act 1992, and in that the fundamentals of the scheme that was introduced there. The first of them is on page 3921 of that extract, what was then section 54W, the introduction of mandatory detention. That is what became section 189(1). Since 1992 this legislative scheme has operated on the premise of mandatory detention, with release in Australia only being by way of visa. Now to ameliorate mandatory detention, this piece of legislation also introduced the concept of bridging visas, which your Honours will find in – pardon me, your Honours.
HAYNE J: Page 3885, section 26C, is it?
MS MORTIMER: I am grateful to your Honour Justice Hayne, yes, thank you, underneath “Protection visas”, and that is adverted to in the extrinsic material as expressly introduced so as to ameliorate the effect of mandatory detention. Your Honours will see that reference in the extrinsic material behind tab 2 on page 54 of the explanatory memorandum, in paragraph 223, where there is a reference to prior to the introduction of the Migration Reform Act, custody being discretionary, and paragraph 223 says that that is changed, and that:
Persons qualifying for bridging visas will assume temporary lawful status and this status will mean there is no obligation to detain or continue to detain them.
The next principal feature ‑ ‑ ‑
HAYNE J: Well, you need also, I think, to look at page 19 of that explanatory memorandum, paragraphs 28 and 29, I think.
MS MORTIMER: Yes, your Honour, that is so. The next aspect of the scheme is the introduction of the class of visa known as protection visas and that was achieved by section 26B of this Act on page 3885 of this reprint, and that is what became section 36. Then in section 54ZD on page 3923 of the reprint, under the heading “Period of detention”, the equivalent of section 196 of the Act and across on the next page, section 54ZF, the precursor to section 198.
Now, the propositions that we seek to draw from the scheme as it existed at that time are these, that the essentials of this scheme, which remained in place from 1992 until 2001, revolved around processing refugee claims through the visa system and removing those who were unsuccessful, that is, after an assessment, and that this was occurring within a regime where detention was mandatory. So those were, we submit, the two essential features of this scheme onto which the changes in 2001 were superimposed.
Now, the changes in 2001 were effected by two pieces of legislation, Act No 127 of 2001, which your Honours will find in the same bundle behind tab 19. When one looks at the extrinsic material, certainly at the second reading speech, this is seen as the lead piece of legislation and it is through this piece of legislation that section 46A is introduced and the excision regime is introduced. The second reading speech for this piece of legislation your Honours will find behind tab 20. Mr Ruddock informs the Parliament, in the first column, about three or four paragraphs down that there are three interrelated Bills; the Excision Bill, a Consequential Bill – that is Act No 128 which I will come to in a moment – and finally a Bill to enhance our border protection to deal with validation of actions taken in relation to the Tampa.
The Minister then goes through a number of policy issues that the government says were being addressed by this suite of legislation. Over on to the next page, page 30870, in the first column, three paragraphs from the bottom, the Minister says:
This first of the three bills is designed to fulfil the commitment the Prime Minister made on 8 September to excise some Australian territories from the migration zone.
The Minister then describes what that effect will be. Halfway down the next column, on page 30870, the Minister says:
The package should not be misinterpreted as ‘fortress Australia’ legislation.
Australia will continue to honour our international protection obligations.
The Minister then sets out why Australia can be proud of its record to date, but why Australia will not in the circumstances facing it then tolerate the integrity of its borders being breached.
The second piece of legislation – what the Minister then described as the consequential Bill – is Act No. 128 of 2001, which is behind tab 22, and it is by this piece of legislation that what we submit are the other two key components of the separate scheme are introduced. The first are the amendments made to section 189, the detention section. So by adding subsection (3), which applies to a person who is “in an excised offshore place” and adding subsection (4), which has a broader geographic operation “in Australia but outside the migration zone”, a discretion is conferred on an officer whether to detain such persons or not. That, we will be submitting, is a significant departure from the scheme that had otherwise existed since 1992. It is also by this Act that section 198A is introduced into the scheme.
So what we submit occurred by these changes is that an entirely new scheme to deal with asylum seekers, operating, we submit, from the opposite premise to the one that had prevailed until that point was introduced – that is, that the premise prior to this time was that people would have access to the visa system. The premise post this time was that if you arrived in a certain geographic location you would have no access to the visa system unless the Executive decided that you should.
For these people there was no mandatory detention; there was discretionary detention, but running right through this scheme was the undertaking that Australia would continue to honour its international obligations under the Convention but was going to do so through different means. We submit that the place to start looking at why this is a different scheme is to start with section 189(3) and section 189(4), the discretionary detention regime. If your Honours have a copy of the reprint, it is probably a good time to turn to that.
We make two submissions about, relevantly, section 189(3). Obviously it ought to be construed as conferring a discretion. I do not understand there to be any debate between my learned friend and I about that. We then submit that it is also to be seen as operating in an ambulatory way and capable of being exercised from time to time in accordance with the usual principles under section 33(1) Acts Interpretation Act. There is a need, in our submission, for some flexibility in the way this discretion to detain will operate, particularly when one comes to examine how it is that this form of immigration detention is to cease so that it works effectively with the rest of the scheme established under section 198A.
The old scheme was predicated on immigration detention for all and the new scheme is not. That is because, in our submission, it mostly contemplates taking people out of the country and doing so without them being kept within the statutory definition of immigration detention. That is because there is a point in time, in section 198A, where immigration detention ceases and something else starts, and I need to take your Honours now to the language of what that something else is in section 198A.
The language of what is being done with these post‑2001 offshore entry people is not the language of removal. A different verb is used, we submit, deliberately so. It is the verb “take” and that is the way that the power is conferred on an individual officer in relation to an individual person under subsection (1).
By subsection (4) of 198A a person who is “being dealt with under this section” is deemed “not to be in immigration detention” and, in our submission, when that is read with the authorisation of the use of restraint and force in subsection (2) where that authorisation clearly contemplates that those powers will be exercised within Australia, not just outside it, there is a point at which immigration detention ceases and being dealt with or taken commences before a person is removed from Australia.
Our construction of subsection (4) and when that concept of being dealt with starts is that it must be related to the decision under subsection (1), that is, there first must be a decision to take an individual, because subsection (4) is couched in the language of an individual, an offshore entry person who is being dealt with. There can be no dealing with that offshore entry person until a decision under subsection (1) has been made. In relation to Mr Shah, if the Court thinks back to the chronology we just outlined, that decision was taken on 7 August 2011. From that moment, in our submission, he was being dealt with under section 198A and was deemed not to be in immigration detention. Thereafter, the coercive powers that could be exercised against him were sourced and were only sourced, in our submission, in section 198A. For that reason, in our submission, section 196 does not operate.
GUMMOW J: On this way of going through the legislation, you do not really need an Anthony Horden argument, do you?
MS MORTIMER: No, your Honour. Section 196 has no operation because the person is not being any longer detained under section 189. That has ceased. The moment the person is being dealt with, Mr Shah’s case on 7 August 2011 ‑ ‑ ‑
GUMMOW J: Where do we find the document of 7 August? Just remind me again.
HAYNE J: Page 255, attachment 15.
GUMMOW J: Thank you.
MS MORTIMER: I am grateful to your Honour Justice Hayne. From that moment there was no longer by operation of the deeming provision and, in our submission, any detention under section 189. So section 196 does not operate, in our submission, on a person in Mr Shah’s position thereafter and for that reason, neither does section 198.
FRENCH CJ: You say the decision to “take” collapses into “take” for the purposes of subsection (4)?
MS MORTIMER: Deal, your Honour, yes. So the decision to ‑ ‑ ‑
FRENCH CJ: To deal with, I am sorry, yes.
MS MORTIMER: That is right, your Honour. One has to fix a point in time when that dealing with starts, and in our submission the logic of the scheme and the language suggests it is once the decision to take has been made.
HAYNE J: The proposition that 198 is not engaged is a proposition, is it, that depends upon 198(2)(a) not being engaged?
MS MORTIMER: Yes, your Honour, and in particular 193(1)(c). So that ‑ ‑ ‑
HAYNE J: You say that is because, as I understand it, the person is no longer a person detained under?
MS MORTIMER: That is right, your Honour.
HAYNE J: Is that the way the argument runs?
MS MORTIMER: That is the way the argument runs. In that sense, we submit, there are no disconformities or lacunae in this scheme. What we see consistently with the purposes that this Court adverted to in M61 is an entirely separate stream of dealing with people, exercising coercive powers over them, but for a different purpose so as ‑ ‑ ‑
FRENCH CJ: Now, at the point at which this decision was taken on 7 August the detention centre gates were not opened and your client told to walk out.
MS MORTIMER: No, your Honour.
FRENCH CJ: So what is the basis for the continuing restraint on movement?
MS MORTIMER: Your Honour, it has to come from section 198A, either expressly or by implication, because there is no other source for it, and we accept that it does not in terms contemplate that, but just as section 189 does not in terms contemplate the use of force, but one would imply it if necessary in relation to a person in detention. So the release, your Honour, is in that sense a notional release, a conceptual release.
GUMMOW J: 198A(2) is inclusive, not exhaustive, is it not?
MS MORTIMER: That is so, your Honour, that is so. So the implication ‑ ‑ ‑
HAYNE J: You cannot place a person on a vehicle or vessel until you have power over their body before then?
MS MORTIMER: No, your Honour, and it is implied into, in our submission, the verb “take”. That is, there is no suggestion that these people will necessarily be willing to go, but they are being taken, which is, in that sense, a coercive kind of activity.
CRENNAN J: It is a process too, on one view.
MS MORTIMER: Yes, your Honour, that is right. Now, that is why, in our submission, it is correct to look at the scheme as an entirely separate one. On the basis of that being our argument, I will now turn to why the next proposition is that the validity of the declaration under subsection (3) is critical, because if that declaration is invalid then there is no power to do with these people what is proposed to be done.
Your Honours, that is a matter that is addressed in our outline that I have handed up, from paragraphs 3 to 6, and I want to start with what this declaration is about in section 198A(3). Our proposition is that the four factors or criteria that are set out in section 198A(3) are the minimum content that is required to exist in a country before a declaration can be made. There is, we accept, more work for the discretion of the Minister to do than the existence of that minimum content. We do not suggest that it is not open to the Minister to look beyond that minimum content to what might exist on the ground, but for a number of reasons, which I will come to ‑ ‑ ‑
GUMMOW J: The Commonwealth seems to turn it the other way round; in other words, by looking to the ground rather than to the anterior matters you are looking to.
MS MORTIMER: As I understand it, your Honour, the Commonwealth imposes a different construction on those criteria.
GUMMOW J: Yes.
MS MORTIMER: That is so, and, as we understand it, the Commonwealth says they are nothing more than considerations in that sense.
CRENNAN J: They also refer to practical reality, but you seem to be suggesting that the questions to be asked are in relation to legal obligations.
MS MORTIMER: That is what we describe, your Honour, as the minimum content. We are not suggesting that it is impermissible to go beyond that, but what we are suggesting is that the function of a declaration under this provision is to tell the world – and I use that deliberately, that is, Australia telling its fellow contracting states under the Convention – that it is sending these people to a place where there are the necessary international and domestic legal protections for these people and that it is a declaration of what the minimum requirements are before one can have what the Commonwealth calls the practical reality, because the language in this section, in our submission, is not necessarily about practical reality.
The matters that we look to for that I will come to in a moment, but if I just go on the structure of the section for a moment. The declaration, we say, provides a public statement of the minimum content. The Minister in exercising his discretion to make that declaration outside the existence of that minimum content may look at other matters and that is a global assessment in relation to all asylum seekers, not the ones that are being sent but the ones that are already in the other country. So it is a public declaration of the situation in that country for asylum seekers who are presently in that country.
KIEFEL J: You mean it has a temporal element?
MS MORTIMER: Yes, your Honour, we submit it does. The closer individual assessment which absolutely requires one to look at what is happening on the ground is the exercise under subsection (1) and that is the workhorse of the “on the ground” assessment, in our submission. So that this structure is there for a reason. It is there to enable a public declaration to be made of minimum content so that everybody can be satisfied that the people that are being coerced and taken out of Australia are not going to a system that, in terms of legal standards, is materially different.
FRENCH CJ: Your two distinct arguments here, as I understand it, are, firstly, that as a matter of objective reality there is a deficiency in terms of the jurisdictional facts properly construed and understood and, secondly, that if that is not a basis for invalidating the declaration, the declaration is amenable to judicial review on the basis that the Minister did not properly construe and apply the criteria irrespective of the objective reality?
MS MORTIMER: Your Honour, yes, there are those two stages. We say the Commonwealth adds a third one. The Commonwealth says this is not even a matter of satisfaction, it is less than that so long as it is done in good faith and it is an important aspect of the Commonwealth’s argument which we attack, that the Minister can declare black to be white so long as he does it in good faith. My learned friend says it is no part of his argument. In our submission, it must be. We submit that the existence of those four criteria is one of two things. Our principal contention is that they must exist objectively and the Court can determine whether they exist. Secondly, the Minister must be satisfied on ordinary principles that they exist, which includes construing them correctly and asking himself the right question about what he is doing under that declaration.
KIEFEL J: Do you say that subsection (3) of section 198A ought to be construed in light of Australia’s protection obligations which are otherwise found in the Migration Act in accordance with what was said in M61?
MS MORTIMER: Absolutely, your Honour. Absolutely.
KIEFEL J: But – could I just add – there might be two aspects then to it. One is the clear obligation under Article 33 not to refoule and the second might be what Australia may have additionally undertaken, as seen in the procedures that you have referred to earlier. In M61 it was said that Australia may have actually undertaken more than it was obliged to do.
MS MORTIMER: Yes, your Honour.
KIEFEL J: And there might be a question whether some of the matters in the criterion in subsection (3) actually go beyond Article 33.
MS MORTIMER: They clearly go beyond Article 33, your Honour, and we deal with this ‑ ‑ ‑
GUMMOW J: Is it necessary for your case that they go beyond Article 33?
MS MORTIMER: Pardon, your Honour?
GUMMOW J: Is it necessary for your success that they go beyond Article 33?
MS MORTIMER: It is necessary to construe what they mean, your Honour, and our construction of them is that they incorporate protections that are beyond Article 33, and we deal with that in paragraph 28 of our submissions. We say that there are a number of – that is why it is so critical ‑ ‑ ‑
GUMMOW J: What does this word “protection” then mean?
MS MORTIMER: That is the point, your Honour.
GUMMOW J: Protection against what?
FRENCH CJ: Does it mean the same thing?
MS MORTIMER: We submit that – and this is what we submit in paragraphs 27 and 28 – that protection means the protections that are accorded to a person who claims to be a refugee. They are more than non‑refoulement. They include the rights not to be penalised for seeking protection, to be provided with basic survival and dignity rights, to be provided with documentation, to be guaranteed religious freedom. We itemise them in paragraph 28 of our written submissions. So we submit that when one comes to ask the question, as one must, what does that phrase “provides protection” mean, it is not simply incorporating a non‑refoulement obligation. It is incorporating all the kinds of protection ‑ ‑ ‑
GUMMOW J: But they are rooted in the Convention.
MS MORTIMER: Yes, your Honour, absolutely. Then the mode by which they are implemented into domestic law is a matter for each nation state.
FRENCH CJ: The need for protection that is assessed in (i) is to be seen, is it not, in the context that they are persons seeking asylum and there is assessment of a need for protection. One might see that, for example, as referring to protection against the apprehended harm or fear of persecution that would qualify the asylum seeker as a refugee under Article 1A.
MS MORTIMER: Yes, your Honour, that is right.
FRENCH CJ: But then when one gets to protection for persons seeking asylum pending determination and so forth, I wonder whether that might not have a wider meaning?
MS MORTIMER: Your Honour, that runs into the difficulty of giving the same word a different construction in the same provision ‑ ‑ ‑
FRENCH CJ: Of course.
GUMMOW J: But at different time scales.
MS MORTIMER: Yes. Your Honour, in the first criterion, we submit that the emphasis there is really on the access to procedures and they must be effective procedures. We place some emphasis in our submissions on that word “effective” because that is where, in our submission, there is some signal that one is looking also for some implementation in domestic law, because if there is not any implementation in domestic law, it is difficult to see how in any real sense the procedures can be effective if they cannot be enforced.
KIEFEL J: Where do you say the specified country’s protection against refoulement appears in the criteria in subsection (3)?
MS MORTIMER: In (iii) and (ii), your Honour, both of those. The kind of protection that is encompassed in (ii) ‑ ‑ ‑
KIEFEL J: It is included in those two?
MS MORTIMER: Yes, it is, your Honour.
KIEFEL J: But not in (i)?
MS MORTIMER: No, because the focus of (i) is on what is the quality or the nature of the procedures that is in place in that country.
KIEFEL J: To give them the status as a refugee, which incorporates ‑ ‑ ‑
MS MORTIMER: Yes, your Honour.
GUMMOW J: That might be your strongest attachment to M61, I guess, the procedures under (i) for assessment.
MS MORTIMER: Your Honour, in our submission, that is an absolutely integral part of the scheme. The whole purpose and the only legitimate purpose that the Parliament has authorised for taking these people to a country the subject of a declaration is to assess their need for protection. That is why it is being done, because it is an alternative means of discharging Australia’s own obligations by saying here is a country with legal equivalence, in that sense, and these people can be given the same standards of assessment and the same standards of protection in a legal sense as they could be given here.
GUMMOW J: Even if what we do here goes beyond the Convention?
MS MORTIMER: Yes, your Honour. That is why we describe it as a minimum content. It is not designed to replicate or duplicate. Here, for example, there may not be any merits review.
FRENCH CJ: It has to be the effective procedures ‑ ‑ ‑
MS MORTIMER: That is so, your Honour. It has got to be something capable of being enforced and capable of ensuring that it is not a second class assessment that people get.
KIEFEL J: I think there might be a little confusion about when you say “Australia’s obligations”. It is put against you by the Commonwealth that they do not include assessment of a person for the status of refugee, that the Convention obligations are really limited to non‑refoulement to an unsafe place, that is, to give them safe haven.
MS MORTIMER: Your Honour, as I recall, we respond to that by directing the Court to the decision in Mayer and what was said there about there being two components to the obligation. I think that is in our reply submissions. If the Court gives me a moment, I will turn that up. We say essentially in that report made it clear that there are two components to the obligation, non‑refoulement and determination.
GUMMOW J: Whereabouts in Mayer? That is 157 CLR 290?
MS MORTIMER: Yes, your Honour.
GUMMOW J: Page 299, I think.
MS MORTIMER: Yes, your Honours, 299 to 300, particularly the last part of 300:
The most that the Convention and Protocol do is to require that a State Party determine whether or not a person who is within or is claiming or seeking entry to its territory is a “refugee” at the particular time and, if he or she is, to define what that State’s actual obligations are in respect of that particular person in the particular circumstances in which he or she is placed.
HAYNE J: But it is the second part of that sentence “to define what that State’s actual obligations are in respect of that particular person” that would be apt, I suspect, to take up provisions in the Convention like Article 17 concerning wage‑earning employment, Article 20 concerning rationing or Article 21 concerning housing.
MS MORTIMER: Yes, your Honour, that is so.
HAYNE J: A question with which I suspect you must grapple is whether, I think particularly 198A(3)(a)(iii) when it speaks of “provides protection to persons who are given refugee status, pending” leaving the country where they are, encompasses the protections of that kind, that is, protections about access to employment, welfare and the like.
MS MORTIMER: Your Honour, that is why we submit that the most appropriate content to give to the word “protection” is the full panoply of rights that it is in the Convention, because throughout those criteria different aspects of the protections under the Convention assume different prominence, and once a person has been given refugee status then work rights, housing rights, those sorts of things are the things that kick in at that stage. What the declaration is doing, in our submission, is telling the world that the specified country provides those things, and in our submission, “provides” in that sense looks at provides through its legal system.
Now, the final component, in terms of looking at the language that is used in subsection (3) is to look at what is meant by (iv), and that the declaration, in our submission, must – that there must exist, before the declaration can be made, the fact that the country “meets relevant human rights standards”. In our submission, the only way to understand a term like that in a provision such as this is to look, as we say at paragraph 39 of our written submissions, at what are the generally accepted human rights obligations under international law.
FRENCH CJ: Is this the first time that expression found its way into the Act? It is in 91D, but that came in later, did it not?
MS MORTIMER: It is in 91D, your Honour.
FRENCH CJ: That was later, was it not?
MS MORTIMER: Your Honour, as I stand here I am not sure of the chronology. It is also in 91N(3), yes, your Honour, and that provision predates the 2001 amendment, section 91N. We understand that came in, in 1999. There is not a lot of authority that we could find to assist the Court, in terms of previous judicial consideration of what that kind of phrase might mean. We have, in footnote 25 of our written submissions, given your Honours a reference to Chief Justice Gleeson’s decision in Forge at paragraph 28. That is reported, if I might just take your Honours briefly to that, at (2006) 229 CLR 223. No, I am sorry, your Honours may not have that volume, that is our fault.
FRENCH CJ: It was not on your list.
MS MORTIMER: It is not very much help, in any event, if the Court pleases, but it does ‑ ‑ ‑
FRENCH CJ: Be sure to pass that on to former Chief Justice Gleeson.
MS MORTIMER: I apologise if that was how it sounded, your Honour. I did not mean that at all, of course. Your Honour, it has been a long two weeks. That passage, at paragraph 28, does advert to the notion, when one is looking for standards and human rights standards, one looks to the key international instruments. Now, in our submission, that is an obvious construction to give to (iv). It is difficult, in our submission, to see what other work standards could objectively be seen to do if it was not to measure against international obligations, such as the ICCPR. That would be, in our submission, one of the most obvious ones. Another one that we refer to in paragraph 39 is the Convention Against Torture, and the Convention on the Elimination of All Forms of Racial Discrimination – those kinds of ordinary, in the sense of commonly accepted, human rights instruments.
Moving then from what we say is the construction in terms of the language that is used in subsection (3) to why we say it is appropriate to look at those matters as jurisdictional facts, and we deal with that in our submissions from paragraph 46 onwards. In paragraph 46 we set out a number of matters that we have drawn from the authorities in terms of how one approaches the decision of whether something is or is not a jurisdictional fact, starting with the obvious one – that is, the language of statute. For the reasons that we have advanced, when one looks at the language of this statute there are matters of objective fact if you construe it in the way that we have suggested that are easily ascertainable.
There are a number of other matters about the language that we say lend support to the proposition that they are jurisdictional facts, the first being – and this is one that is common to many of the authorities on the issue – there is no language of opinion or satisfaction in that provision at all. That kind of language which is familiar in this legislation in particular is not used.
GUMMOW J: I am not sure what the Commonwealth says is the jurisdictional fact, if there is one, or whether there is not one.
MS MORTIMER: In subsection (3) my understanding is the Commonwealth says there are none.
FRENCH CJ: The declaration is the jurisdictional fact to enliven the power.
MS MORTIMER: Yes, your Honour, in one; that is so. We submit that that is an important contextual reason why one would see the declaration as a jurisdictional fact, because when one looks at what is the power that it enlivens, it enlivens a power against an individual and it is a power of a coercive nature. So in that sense the need, in our submission, for what is set out in subsection (3) objectively to exist is seen as a greater one.
We submit that the use of the word “declare” is also significant. In our submission – and we have developed this a little at paragraph 50 of our written submissions – it suggests, in our submission, a revealing of what the true situation is. It does not and should not be construed as contemplating that what can be revealed is something other than the true situation. It does not suggest that there can be any element, in our submission, of arbitrariness about what is occurring in relation to the declaration of a specific country.
FRENCH CJ: One might test it by asking or contrasting it with a form of subsection (3) that says the Minister may declare that a country is a declared country for the purposes of subsection (1).
MS MORTIMER: Yes, your Honour.
FRENCH CJ: Full stop.
MS MORTIMER: Full stop. That is the sum total, in our submission, of where the Commonwealth submissions end up, that really it is nothing more than the identification of a country and if that is all that was intended, in our submission, there would be no need for those criteria to have been set out by the Parliament, even if one puts to one side the whole context and purpose of 198A sitting alongside onshore assessment under 46A – onshore assessment doing these things for the same group of people. But putting all that to one side, it would have been sufficient for Parliament simply to say the Minister can declare this country as a specified country, we accept that. There is, as I have said, the notion of the declaration being by one state party to the Convention to other state parties about how it is dealing with its obligations.
I am now moving to paragraph 52 of our written submissions. The second criteria, aside from the statutory language that is often looked at when one is dealing with whether something is or is not a jurisdictional fact, is what the purpose of the provision is and that is where, we submit, it is important to come back to what the Court said in M61, that the purpose is not removal per se at all for the reasons that I have advanced, that there is a specific and confined purpose for taking offshore entry people to another country, and it is to ensure that their claims can be processed and that at the level of the obligations under the Convention, they will receive the same kind of protection that they might have got here.
HAYNE J: But it is not just that their claims can be processed, but also that, in that other country, after their claim has been processed, if they are found to be a refugee, then other consequences of a kind described in subparagraph (3) are engaged.
MS MORTIMER: Yes, your Honour, of course. I accept that. That is so. There are those sequential purposes. The effective assessment of their claims and then ‑ ‑ ‑
HAYNE J: If it was concerned only with assessment of claims, what are (2), (3) and (4) doing in the Act?
MS MORTIMER: That is so, your Honour. I accept that. It is looking at what happens to those – well, it is looking at a number of things, your Honour. In my submission, it is looking at what happens to those who are found to be refugees and are they going to be given – in a sense that carries a legal obligation, are they going to be given the protection that they should be.
HAYNE J: I understand at the heart of your argument to be the proposition that (1) to (4) are the reflex of the obligations Australia undertook as a signatory.
MS MORTIMER: Yes, your Honour, that is so, and whether onshore it provides more than that is beside the point, but that this is the minimum content.
HAYNE J: You use this expression “minimum content”. What do you mean by it? Are you saying that those are necessary but may be not sufficient conditions for satisfying (3)(a) or are you saying something different from that?
MS MORTIMER: We submit that for the jurisdiction to make the declaration to arise, those things must objectively exist but that it is conceivable that one might have a country that is a signatory to the Convention and has laws on its statute book which appear to reflect those international obligations, but in practice ignores them. That is where there is room for the operation of the Minister’s discretion, in our submission. But for the jurisdiction to arise, for the discretion to be exercised, there must be that minimum content. Objectively, that legal regime must exist. The Minister is then not persuaded ‑ ‑ ‑
FRENCH CJ: But there are matters of judgment in some of these criteria. Take the term “effective procedures”, does one say that effective procedures objectively exist absent some judgment about what constitutes ‑ ‑ ‑
MS MORTIMER: Your Honour, we submit that the judgment, such as it is, is a relatively confined one. We submit the notion of effective procedures is about having procedures that are enforceable by those concerned to ensure that their needs for protection are met.
FRENCH CJ: Do we not need to know also something about the content of the word “protection” as it appears in (ii) and (iii), as well as in (i), to know what kind of judgment is required? If it is a kind of evaluative judgment, that might militate against the notion that there is some sort of objective criteria which we as a court could judge.
MS MORTIMER: That is so, your Honour, and it is true that the more evaluative or subjective the criteria or the language are, the less a court may be inclined to see that as a jurisdictional fact, although, in our submission, what the authorities show about that is it very much depends on the statutory context, so in Mount Isa Mines, something about significance in the environment was seen as far too subjective, but other cases look at issues that certainly have a qualitative aspect to them, like whether a report is substantially favourable to an employee. So it is not that the cases are all one way saying that just because there is an evaluative judgment, it cannot be a jurisdictional fact.
FRENCH CJ: The question is, I suppose, whether properly construed some of these criteria necessarily involve the formation of an opinion by the Minister as distinct from the ascertainment of some fact.
MS MORTIMER: Well, your Honour, that depends on the width that is given to the construction of the word “protection” and our submissions give it a relatively confined construction and we rest it on the provision of protection that the Convention – provision of a legal protection is what we rest it on. We do not then suggest that in exercising the discretion once the jurisdiction has arisen, the Minister cannot look beyond that.
GUMMOW J: But you can have an opinion which is a jurisdictional fact. That has been plain as a pikestaff, has it not, since Chief Justice Latham in Connell; Ex parte The Hetton Bellbird 69 CLR 407 at 430, which is quoted often enough?
MS MORTIMER: Yes, your Honour. That is really our alternative submission, but that is the other way that the section can be construed, but the jurisdictional fact is the formation by the Minister lawfully asking himself the right questions of whether those things exist.
HAYNE J: The real sting in that proposition is what is covered by asking himself the right question and that is a question you answer by first construing the Act.
MS MORTIMER: Yes, your Honour, that is so. That is where we really take two points that we advance in different ways through this case. The first is that even if that is the proper approach to the section, what it is requiring is the Minister to form an opinion as a jurisdictional fact. The opinion that is being formed under (i) to (iv) is an opinion about the legal system and about the existence of legal obligations.
FRENCH CJ: That gets you into the second line of argument, does it not, fallback position?
MS MORTIMER: It does, your Honour.
FRENCH CJ: Not asking whether these things exist objectively.
MS MORTIMER: That is so.
FRENCH CJ: Whether in coming to an opinion that they did the Minister properly construed them.
MS MORTIMER: That is so, yes, your Honour. But we do not proffer a different construction even if that is the way that you characterise the function that is to be performed. We say the construction remains the same and it is what those criteria are directed to, the existence of legal obligations of protection internationally and domestically for asylum seekers in that country at the time that the declaration is made.
HAYNE J: Can I understand that proposition better than I presently do. Is the proposition that a necessary, maybe not sufficient, condition for making a declaration is the existence of legal obligation – let us leave aside for the moment whether that is domestic, international or both – to provide access, provide protection, provide protection?
MS MORTIMER: Yes, your Honour, it is. The final two matters that I should address that the authorities deal with in terms of coming to a view about whether these are matters that should be objectively determined by the Courts are the ones that we deal with at paragraph 57 and then at 58. Paragraph 57 is what is called “inconvenience” and, in our submission, unlike perhaps some cases, this is not one where that ought feature or trouble the Court in the sense that a declaration is not an event that is going to happen very often. It is not like this is a decision‑making process per individual where, if the Court had to determine the facts objectively for itself, a great deal of inconvenience would flow from that. These are numerically small decisions and most importantly, in our submission, for this argument is what we say at paragraph 58 and onwards.
Your Honours, cases like Cabal, which is No 4 on our list, and Foster, which is No 9 on our list, both of those being out of the extradition context, are cases where the single judges in those decisions emphasised the nature of the rights at stake. We submit that that is a very important matter here because the effect of this declaration is to trigger interferences with liberty, to remove freedom of movement and to authorise assaults on people if the occasion legitimately arises. Once the declaration is made, there is no other way to avoid those consequences, that is, it is the existence of the declaration from which all those effects on liberty flow.
If one is to give prominence, as we submit it should be given, to the need for judicial supervision over the infringement of those kinds of fundamental rights, the way to do that is to see the existence of those criteria as matters that must be objectively determined to exist before Parliament intended that the kinds of things that are then going to be done to these people could be done. Because, bear in mind, in our submission, and as the facts of this case show, there is precious little other opportunity for people who are in this position to get any access to judicial supervision over what is occurring to them.
If it is not about the objective existence of these facts in this declaration, what happens to them from thereon will happen very quickly and in remote places. For all the content of a document like the pre‑removal assessment that I took your Honours to, the reality of this situation is that nobody is going to be able to come to court to ask for judicial review of something like that because they are going to be taken from the country. So the thing that can be properly judicially supervised before interference with fundamental rights is the existence of these criteria in that declaration. If these people’s rights are in that sense to be protected, it is by a court supervising that those minimum criteria exist before there is authorisation to go any further and not otherwise.
In terms of whether, if we are right and those criteria are jurisdictional facts, should this Court be persuaded objectively that those facts exist in relation to Malaysia, we deal with that from paragraph 60 of our written submissions onwards. As we understand the Commonwealth’s response to our paragraphs 60 through to 64, there is no dispute about those propositions. Indeed, much of the briefing material –and I will take your Honours to that when I come to the arguments about the Minister’s satisfaction – said exactly these things. So there was no dispute before the Minister and there is no dispute here that objectively, if we are right about the construction, those things do not exist in Malaysia and are not provided by Malaysia.
The submission we make about the effect of the arrangement and operational guidelines is at paragraphs 65 and 66 of our written submissions and our submission about that is that those documents are irrelevant to the Court’s assessment of whether these facts objectively exist for a number of reasons. Firstly, the arrangement is non‑binding and the operational guidelines can have no better status than that, but more importantly they say nothing about the situation legally in Malaysia for asylum seekers generally. All they deal with is what is promised in an unenforceable way to happen for these 800 people. Now, that is not the question that subsection (3) is directed to.
If I can turn now, your Honours, to what we say about the alternative way that we put our arguments about subsection (3), that is, if, as your Honour Justice Gummow suggests, the proper construction of these provisions is that the jurisdictional fact is the Minister’s satisfaction. We make two arguments about that and the first one and perhaps the most prominent one is that the Minister asked himself the wrong question because our submission is, indeed, he asked himself how these asylum seekers that were going to be transferred were going to be treated.
FRENCH CJ: You are putting that as a matter of jurisdictional error, are you?
MS MORTIMER: Yes, your Honour, that is right, we do. The factors that we put in that submission are these. Firstly, we say, that the evidence demonstrates that there was a clear reliance on the arrangement and the existence of the arrangement, and I need to take your Honours back to the ministerial briefing note, attachment 34 at page 589. The factors that we say emerge from the evidence to support the proposition that the Minister was directing his attention to the arrangement are these; firstly, the chronology and the timing. Your Honours will see under the heading “Timing” on that briefing note that the sequence of events is that this submission comes to the Minister:
following signing of the Transfer and Resettlement Arrangement –
and it is after that, and only after that, that he is asked to sign the declaration. What he is asked to agree to is “on the basis of the” – and this is paragraph 2 under “Recommendations”:
on the basis of the material in this submission –
he is asked to agree “that Malaysia meets the criteria”, and he does agree by the circling of that word. The emphasis, we submit, in this briefing note is on the arrangement, and in our submission, when one looks at the evidence as a whole, a way to test this is to ask whether on the evidence but for the arrangement would that declaration have been made, and we submit the answer to that is clearly no. The briefing note over the page, at page 591, under the heading “Declaration ‑ ‑ ‑
GUMMOW J: There is a problem at 592, line 4, is there not? Whoever wrote this document said there was a “clear commitment”. Now, to a lawyer at any rate, the word “commitment” carries some freight, and the freight does not seem to be carried by the relevant provision of the understanding, which does not create any international obligation between two sovereign states.
MS MORTIMER: That is so, your Honour. This document elevates, in our submission, the significance of the arrangement, to a level that is understandable in a political context, but has no legal significance, and the focus in that part that your Honour Justice Gummow has pointed to is clearly on ‑ ‑ ‑
GUMMOW J: I was referring to clause 16.
MS MORTIMER: Yes, your Honour, that is so. There is no commitment in any sense other than a political one.
GUMMOW J: And perhaps clause 10 as well. This word “commitment” appears again on line 18.
MS MORTIMER: In clause 1 of the arrangement, your Honour?
GUMMOW J: No. I am looking at this document at 592, line 19, “The Government of Malaysia has also made a commitment”.
MS MORTIMER: Yes, your Honour, that is so.
GUMMOW J: And in the last sentence, “has committed” ‑ ‑ ‑
MS MORTIMER: “[H]as committed to providing Australia with an opportunity”, yes, your Honour. So there are two things, in our submission, to note about that. Firstly, it is clear that it is the arrangement that is being used as the comfort for the way these people are going to be treated and ‑ ‑ ‑
FRENCH CJ: That word “commitment” seems to be taken out of the arrangement under “(clause 10)”, is it not, commitment to the Government of Malaysia?
GUMMOW J: The word “commitment” is then explained in clause 16 as referring to intentions and political commitments.
MS MORTIMER: Yes, your Honour, and then the adjective is dropped from the briefing note.
KIEFEL J: In relation to the assurances contained in the arrangement between Australia and Malaysia and the Minister’s approach to the questions under section 198A(3)(a), do you rely upon there being any temporal element in the inquiries which would arise under subsection (3)? That is to say, that they may be addressed to the present condition rather than what might take place if assurances are fulfilled.
MS MORTIMER: Yes, your Honour. We submit that there is a temporal component, and we have said that in our written submissions, by the use of the present tense in that subsection. At the time the declaration is made, what is the situation? So that political commitments about what might occur in the future do not go anywhere near that criterion, nor do – and I will come to this in a moment – nor does the evidence of the Minister on his affidavit that is filed and relied on in this proceeding, that he understands generally that Malaysia is moving towards a system of treating refugees better. That, we accept, might be something ‑ ‑ ‑
FRENCH CJ: This is the conceptual shift.
MS MORTIMER: Yes, your Honour, that is right. Now, that might be something that if the jurisdiction otherwise arose objectively, the Minister can then look at to be assured that the legal framework that is in place is going to be observed and implemented, but it is not a substitute for the task in subsection (3) to look at what might happen in Malaysia if the conceptual shift occurs.
KIEFEL J: Do you call in aid in this regard to the present tense used in subsection (3) to the replacement or the continuing obligations of Australia under the Convention?
MS MORTIMER: Yes, your Honour, we do.
KIEFEL J: So that would have to be satisfied on the day in which a declaration was made?
MS MORTIMER: That is right, your Honour. On the day on which the jurisdiction is said to arise, when the declaration is made, objectively, one is looking at what the situation is in the specified country then, not in the future. We do submit that.
To the extent that what is, in our submission, prominent in this briefing note is the unenforceable political arrangement combined with what might happen in the future in Malaysia. Those matters direct the Minister to the wrong question for the making of the declaration, as does paragraph 12 which deals with consultation with the UNHCR and the UNHCR’s opinion, as recorded in this briefing note, that the arrangement and the operational guidelines, the final draft might be workable. Now, that is perhaps, in our submission, an unfair paraphrase of what the UNHCR said to the Minister when one looks at the letter and the aide‑mémoire which are a couple of pages further over.
FRENCH CJ: There was a letter dated 21 July also from UNHCR, I think, which I do not think is referred to in this.
MS MORTIMER: No, your Honour, that is right. That is not in the ministerial submission.
CRENNAN J: The last few lines of paragraph 12 do indicate that the support of the UNHCR is conditional on the arrangement being implemented with full respect for human rights standards directing attention to the future and any risks the future holds rather than to the present.
MS MORTIMER: And, your Honour, in our submission, to a finalisation of how the arrangement is to work. That has not yet occurred. So a long way away from the language in subsection (3) because this is the UNHCR saying, as the briefing note reveals, well, we are looking at a draft of the arrangement and the operational guidelines and it may be workable, but as the aide‑mémoire that is a few pages further over on page 598 of the application book reveals, in the last two dot points on that page – the third dot point, your Honours, is where the phrase “workable” appears in about the fourth line of the third dot point.
So the UNHCR is expressing an opinion on a draft arrangement, together with operational guidelines, and it expresses the opinion – uses the phrase “workable”, but then the very next dot point says:
that its position is and remains conditioned upon proper protection and vulnerability safeguards determining the pre‑transfer/pre‑removal assessment process in Australia, prior to the taking of any decisions on who will be transferred under the Arrangement and when.
The aide‑mémoire notes in the last part of that paragraph that –
the pre‑transfer process must, in UNHCR’s view, be particularly sensitive to the best interests of the child –
The final dot point again reinforces the conditional nature of the UNHCR’s position –
upon the Arrangement being implemented with full respect for human rights standards.
There is nothing wrong, we accept, with the minister looking at this material if, and only if, the jurisdiction objectively has arisen under subsection (3). We accept that once that has happened, there is nothing wrong with him then assessing beyond those objective facts what the situation on the ground must be, but what the Minister is being advised about and, in our submission, acts upon here is directing all of his attention to those matters rather than to the criteria as they exist at the time he is making the declaration. The Commonwealth, if the Court pleases, relies in part in answer to this and on some evidence by the Minister on what was said by DFAT in attachment B to this ministerial submission and then what the Minister says about that.
Now, if the Court pleases, I note the time. It is going to take me a little while to go through attachment B.
FRENCH CJ: Yes, all right. We will adjourn until 10.00 am tomorrow.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 23 AUGUST 2011
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