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 & Anor

[2011] HCATrans 224

[2011] HCATrans 224

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 TUESDAY, 23 AUGUST 2011, AT 10.02 AM

(Continued from 22/8/11)

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Yes, Ms Mortimer.

MS MORTIMER:   If the Court pleases.  I was about to take the Court to attachment B to the ministerial submission, which the Court will find on page 595 of the application book.  Now, it is attachment B that the Minister deposes to having had regard to and it is attachment B which the Commonwealth relies on as demonstrating to the Court that the Minister asked himself the right question when making the declaration.  The structure of attachment B, we accept, certainly follows the four questions that subsection (3) poses, but the content of the document is, in our submission, another matter.  Under the first question:

Does Malaysia provide access, for persons seeking asylum, to effective procedures for assessing their need for protection?

The answer discloses that it is not Malaysia that provides anything; rather, that it is that Malaysia allows the UNHCR access to persons.  The second sentence notes that:

Malaysia itself is not a signatory to the Refugee Convention, and does not make such assessments on its own behalf.  The UNHCR undertakes all activities related to the reception, registration, documentation and status –

and that the UNHCR has had some success in accessing people in need of protection who have been detained.  That is all the answer to the first question says.  The second question is:

Does Malaysia provide protection for persons seeking asylum, pending determination of the refugee status?

The answer to that in the first sentence is no. 

As a non-signatory to the Refugee Convention, Malaysia does not itself provide legal status to persons seeking asylum, but it does allow them to remain in Malaysia [again] while the UNHCR undertakes all activities –

The UNHCR is then noted as having observed that:

“there were credible indications that forcible deportations of asylum seekers and refugees had ceased in mid-2009.” 

The numbers of asylum seekers present are then drawn to the Minister’s attention; 92,700 refugees and asylum seekers that are registered with the UNHCR in Malaysia.  There is then a breakdown of the countries from which those people have fled.  The final thing that is said under the second criterion is that the number of refugees and asylum seekers has doubled, that many of them have been in the country for years and that there are:

a large number of persons of concern to the UNHCR who remain unregistered. 

Now, in our submission, there is a plain answer of no to the first part of that question and there is nothing in the content of the rest of that answer that says anything about the protection afforded by Malaysia to these people.  The third question:

Does Malaysia provide protection to persons who are given refugee status, pending their voluntary repatriation –

Again the answer is no:

Not being a party to the Refugee Convention –

the submission says –

Malaysia does not grant refugee status or asylum or have in place legal protections –

Again what the submission says is that Malaysian authorities generally co‑operate with the UNHCR.  That is the content of the answer to that question.  On the answer to the fourth question, the submission commences with the proposition, which we accept that:

A number of fundamental liberties are enshrined in Malaysia’s Federal Constitution –

It omits the matters which are contained in the agreed statement of facts before this Court in paragraphs 43 and 44 about the distinction that the Malaysian constitution makes between the fundamental rights it accords to citizens and those that are not accorded to non‑citizens.  The rest of that first paragraph then goes on to depose to some aspects of Malaysian law; the Internal Security Act to allow for detention without trial, the retention by Malaysia of the death penalty and the administration of Malaysia of caning as a form of judicial punishment.  The submission then notes that:

Amnesty International quotes the Malaysian Government as indicating 29,759 foreigners –

that is a category, in our submission, into which all these transferees fall –

were caned between 2005 and 2010 –

The next paragraph under that heading then sets out some negative facts about the access of refugees and asylum seekers’ means to sustain themselves.  The next paragraph then notes the principal human rights conventions to which Malaysia is not a party and then notes the ones to which it is a party.  The proposition that we seek to advance on the basis of this document is that its content tends entirely against a basis for the satisfaction of the criteria under subsection (3).  It makes, in our submission, when all of the evidence is considered, particularly the rest of the submission, the only available inference that even if it was taken into account, what was the reason for the making of the declaration was the political arrangement between Malaysia and Australia. 

The political arrangement, unenforceable as it is, is the only positive thing on the material about the way that asylum seekers and refugees may in the future be treated in Malaysia.  The political arrangement says nothing about how all asylum seekers are presently treated in Malaysia.  The Commonwealth relies on an affidavit by the first defendant, in our submission, in an attempt to cure what are otherwise the obvious deficiencies in the material.  If I can take the Court to that, it is at page 970 of the application book?

FRENCH CJ:   Sorry, what page?

MS MORTIMER:   Page 970, your Honour.  In that affidavit, the Minister deposes to his involvement over some period of time, since December 2010, in negotiations, and in paragraph 7, he deposes to his clear belief about a “significant conceptual shift” in the thinking of the Malaysian Government.  All these are matters about what the Minister believes, in our submission, may or may not happen in the future, in terms of the desires of the Malaysian Government, and that evidence, in our submission, goes no higher than that.

Paragraph 9, for example, is similarly equivocal.  It simply deposes to the Malaysian Minister having made statements that Malaysia was “considering allowing work rights for all asylum seekers”, a possibility for the future and nothing more on that evidence, in our submission.  In paragraph 11 of the affidavit the Minister then deposes to having had regard to the submission that I have taken the Court to.  In paragraph 12 the Minister says this, and we submit that this being the evidence that the Commonwealth ‑ ‑ ‑

GUMMOW J:   Do we not have to look at paragraph 11?

MS MORTIMER:   Paragraph 12, your Honour; I am sorry.  We submit that this being the evidence that the Commonwealth has sought to place before the Court on this, the Minister can be held to the language that he has used and no more.  What he deposes to in paragraph 12 is his understanding that he needed to consider whether Malaysia met the criteria in subsection (3) generally.

That is evidence of nothing more than what those words say, in our submission, an understanding that the Minister needed to consider that.  It says nothing about having considered it, whether he relied upon it in making the declaration.  In paragraph 13, the Minister deposes again to having taken material into account, out of the submission and also in relation to his knowledge, but the knowledge that he deposes to is about what he believes will happen in the future and nothing more.  In a change of language upon which, which placed some emphasis, in paragraph 14, the Minister deposes to relying upon the arrangement.  In our submission, taking that change of language into account, in combination with the contemporaneous material in the ministerial submission, the conclusion that the Court should reach is that the reason for making the declaration was the existence of the arrangement, and if that is right, then the Minister has asked himself the wrong question for the purposes of subsection (3).

May I turn now to the next ground?  I am about to turn now, if the Court pleases, to grounds that relate to section 198A(1) and the miscarrying of the discretion that is reposed by that provision in the officers.  We deal with this in paragraphs 85 to 95 of our submission.  The first point to make very clear is that the way that the argument about how the officer dealt with the potential exposure of the plaintiffs to Malaysian law is a considerations argument.  That is, we do not seek, and we do not have to seek before the Court, to make a case that Malaysian law, in fact, will be applied in a particular way so that these people will be prosecuted and convicted of offences.

What we say is that if, as we submit is clear, a key consideration under subsection (1) is to look at a person’s individual circumstances then necessarily where a person like these plaintiffs have been to Malaysia before, entered unlawfully and exited unlawfully, a mandatory thing for the decision‑maker to look at is whether that person will be exposed to any prosecution because of that previous unlawful entry and exit.  In our submission, there was sufficient material before the decision‑maker to raise that issue.  Now, I took the Court in the opening chronology to the entries on that first interview form where the transiting through Malaysia was noted.  That is at application book 80.  I will not go back to that ‑ ‑ ‑

FRENCH CJ:   That was three days, was it?

MS MORTIMER:   Yes, your Honour, that is so.  In order to understand ‑ ‑ ‑

HAYNE J:   Why is consideration of this a mandatory consideration?

MS MORTIMER:   Your Honour, because we submit that it is a key part of an individual’s circumstances and the individual’s circumstances are what the discretion in subsection (1) mandates, otherwise it has no differential operation from any of the other provisions.  So that when a decision is being made, and the language in that subsection deals with the singular, it looks at an officer taking a person, then it directs attention to the individual circumstances of that person.  That is indeed the way that the guidelines that are framed are framed, and we would say correctly so, but they omit what in our submission is an important consideration, which is for the officer to look at whether these people have been to Malaysia before.

BELL J:   This is in a context in which the Minister in his interview, which is attachment 36 at application book 627, says that:

80 to 90 per cent of boat arrivals in Australia begin their boat journey –

in Malaysia.

MS MORTIMER:   That is so, your Honour.  It is a notorious fact, but more than that, more than it being a notorious fact, it is also a fact that was clearly before the decision‑maker on the evidence in this matter.  Now, to advance this submission and also to lay the groundwork for the submissions that I will be making about fettering, I want to take the Court to the two sets of guidelines ‑ ‑ ‑

FRENCH CJ:   Sorry, before we get to that, can I just ask what options are, as it were, available to an officer confronted with the possible exercise of the discretion under 198A(1)?  One obvious option is to take the person to a declared country or one of a number of declared countries; I suppose there might be more than one.  Another option might be, I suppose, that instead of taking the person to a declared country it may be that the person has identified a safe third country, in respect of which they have a right to reside.

MS MORTIMER:   Yes, that would not be precluded, your Honour.

FRENCH CJ:   Then that would happen under other provisions, 198(2) perhaps, or 198(1) perhaps, voluntary.

MS MORTIMER:   On the assumption, yes, your Honour, that there had been sufficient investigation for that factual basis.  Yes, your Honour, that is so.

FRENCH CJ:   Yes, okay.  So the line of territory that you are exploring is something apart from those categories of case.

MS MORTIMER:   Yes, your Honour, and this is where these arguments need to be taken together with our arguments about fettering because what we submit is that from the start this was a scheme that had two limbs.  It had under section 46A an onshore processing limb and section 198A an offshore processing limb and there is nothing in the text of the legislation or the context to suggest that they were not intended to be able to operate with some synchronicity.

GUMMOW J:   If the officer decides not to move under 198A(1), which is what you are hypothesising, I think ‑ ‑ ‑

MS MORTIMER:   Yes, your Honour.

GUMMOW J:    ‑ ‑ ‑the offshore entry person is no longer being dealt with under the section.

MS MORTIMER:   No, that is so, your Honour.

GUMMOW J:   So subsection (4) would be lifted and they would be back in immigration detention, would they not?

MS MORTIMER:   They would be subject to the discretion to detain, yes, your Honour.  They would be exposed again to an exercise of that discretion under section 189(3) and there are two ways that discretion could be exercised.  The other question then is, well, then what else is to happen to that person?

FRENCH CJ:   But they do not get out of that detention in a formal sense until the officer has made the decision to take.

MS MORTIMER:   That is our construction, your Honour ‑ ‑ ‑

FRENCH CJ:   On your submission, yes?

MS MORTIMER:   Yes, that is so.

KIEFEL J:   What if the decision is vitiated by the declaration being invalid?  Does that mean that subsection (4) of section 198A does not apply and they are back in immigration detention?

MS MORTIMER:   Yes, your Honour, they remain detained.  The premise on which our construction operates is that there is a valid declaration in force which triggers the discretion in subsection (1) and once that discretion is exercised to take a person, it is at that point in time that the person is then being dealt with under that section.  We accept there are two constructions.  It is perhaps also possible that one is dealt with as soon as consideration starts.  That might be more problematic, not for us, but it might be more problematic.  We accept the more symmetrical construction is, that it is once a decision is made under subsection (1) to take a person that they are being dealt with.

KIEFEL J:   This may affect your argument on the exclusivity of the procedures under 198A.

MS MORTIMER:   No, with respect, your Honour, it does not.

KIEFEL J:   If immigration detention remains the case, if the declaration is invalid?

MS MORTIMER:   No, your Honour, because ‑ ‑ ‑

KIEFEL J:   If they remain in immigration detention, whether 198(2) can then be applied.

MS MORTIMER:   The person is then back in immigration detention.  We accept that.  The question is then, what can be done with them.  They remain a person who is claiming to be a refugee and they remain a person whose claims to be a refugee have not been determined, although they have invoked Australia’s protection obligations and they are in its territory.  Now, in those circumstances our fundamental proposition is the Act does not authorise their removal with undetermined claims, articulated undetermined claims.  They are exposed to discretionary detention and we submit the way the scheme is intended to operate in those circumstances clearly is by 46A.  What we have here – and this is the argument that I will come to in a moment – is a complete fettering by the Minister of his discretion under 46A.  He has said, “I’m not looking at anybody”.

CRENNAN J:   Another possibility if they remain in immigration detention and the effect of subsection (4) is suspended is to be taken to another declared country.

MS MORTIMER:   Yes, your Honour, that is so.  There may be another country available that for that individual does not pose the risks that have been assessed in relation to the first declared country.  That is absolutely right.

HAYNE J:   Does not that answer reveal that we are embarking on a process of overelaboration because the arguments you are presently engaged in presenting are arguments that reflect back on the content to be given to 198A(3)(a)?  If they are given particular content, the difficulties to which you now point at least recede.  I am not sure whether they altogether depart, but we are engaging at the moment on a path that seems to me to overelaborate what until this point in the argument was being presented as a binary choice, the binary choice being process onshore or process offshore in accordance with protections under 198A(3).  You want to add a frill or curlicue to that, as I understand it, is that right?

MS MORTIMER:   Your Honour, we seek to give some work to do to the discretion in subsection (1), which is clearly conferred as a discretion in relation to an individual.  One must ask, how is it?  What are the bounds of that discretion?  What work is it to do that is different to the work the declaration does?  Now, I accept your Honour’s point that the way that we approach the construction of subsection (3) is that the declared country, particularly (ii), will provide protection, and encompassed in that are notions such as not prosecuting people for their illegal entry into the country by reason of their attempt to claim asylum.  We accept that.

KIEFEL J:   But protection at international law might not mean protection against the domestic laws of a State who is taking refugees in.

MS MORTIMER:   No, your Honour, that is right. 

KIEFEL J:   But in that regard, would not the decision‑maker be entitled to look at the exemption order being either made or promised to be made by Malaysia?

MS MORTIMER:   Yes, your Honour, but he did not.  If the Court looks at that pre‑removal assessment, there is no reference to the exemption order in it, none.  It was not in operation at the time the decision was made and there is no reference to it.  There was a total failure to look at what might arise because these people had entered and exited Malaysia unlawfully beforehand.  It just was not addressed.

CRENNAN J:   If you obtain permanent injunctive relief on the basis of your alternative argument that the Minister has asked himself the wrong question in relation to subsection (3)(a) (i), (ii) and (iii), we would not get to this issue, would we?

MS MORTIMER:   No, your Honour, we would not, because the valid declaration is the precondition to this power being exercised. 

HAYNE J:   Now, in understanding the protections of which (3)(a) speaks, there may be a question whether those protections extend to matters of the kind dealt with in Article 31 of the Convention.  Article 31 of the Convention deals with refugees unlawfully in the country of refuge.

MS MORTIMER:   Yes, your Honour, that is so.

HAYNE J:   And prosecution for illegal entry and the like. 

MS MORTIMER:   That is where I had ‑ ‑ ‑

HAYNE J:   Hence my comment about overelaboration.

MS MORTIMER:   I understand, your Honour.  There is a sense in which the arguments that we put about the exercise of discretion are in the alternative.  Your Honour Justice Crennan is quite right, that we do not get to them if we are right about the construction of subsection (3) and the validity of the declaration.

BELL J:   If your challenge to the validity of the declaration succeeds, it follows that there was no valid exercise of the purported power under sub (1) and on that basis, the person has remained in immigration detention under 189(3), is that right?

MS MORTIMER:   Yes, your Honour, that is right.

BELL J:   Does that require any consideration of the relief that you claim in terms of the permanent relief?  This is at application book 3 in relation to M70?

MS MORTIMER:   It could, your Honour.  It could require reconsideration of that in the sense that there would be – if the declaration were to fall and there were therefore no valid declaration in respect of a country, then it is right that there could be no imminent threat.  As we understand it, there is no other declared country.  That is our understanding.  There is nothing on the material before the Court to suggest that there is any intention to take the plaintiff anywhere else and if that is right, subject to what the Commonwealth will advance to this Court about its power to remove under section 198(2), the injunction may not be necessary.

HAYNE J:   But if injunction were to be framed, it would be framed, I would have thought, by reference to removal to Malaysia or taking to Malaysia.

MS MORTIMER:   I accept that.

BELL J:   And it would be taking.

HAYNE J:   Taking to.

MS MORTIMER:   Yes, your Honour, I accept that.  Then it would depend on the Court’s view about the Commonwealth’s arguments about 198(2).

GUMMOW J:   About?

MS MORTIMER:   Section 198(2), your Honour, because it is a key plank of the Commonwealth’s arguments that it can do all this under section 198(2) and that will need to be dealt with obviously.

In those circumstances, I think there is no more I need to develop by way of oral submission about the considerations argument.  We have set that out in our written submissions.  If I can turn briefly then to the two fettering arguments that we put, and they both also only arise if it is necessary to look at the exercise of discretion under subsection (1) because both of them go to the constraints that we say have been put on the exercise of that discretion?  The argument about the fettering of the officers’ discretion is the most straightforward one.  We deal with this in our submissions at paragraphs 96 to 102, and in reply at paragraphs 17 to 26.  The evidence on which we rely is the letter of 25 July 2011 that I took the Court to at the start of my oral argument, that is attachment 35 at page 624 of the application book.

It has been our submission – no exceptions or qualifications to it – and when one looks at the guidelines for removal, which are attachments 9 and 10 in the court book, I will not take the Court to those in detail, but they appear at application book 106 and then application book 121, those guidelines do two things.  Firstly, they start with the assumption that consistently with this direction of 25 July these people are to be removed.  That is the operating assumption for both sets of guidelines.  The second feature that we emphasise out of them is that nowhere in those guidelines will you find an option about these people remaining in Australia.  The closest one gets to that is what appears at application book 118, and it is important to also look, in our submission, at 117 under heading “10”.  Under heading “10” there are three options said to be permissible recommendations, “no impediments to removal”, “impediments to immediate removal but removal can proceed”, “longer term impediments to removal”.  There is no fourth option, no removal and processing in Australia.

BELL J:   If one reads that with the protection guidelines at 122, there is recognition that:

There may be exceptional cases where country information, when weighed against the protections contained in the Arrangement, may result in  a situation where pre‑removal assessment officers nevertheless feel that further advice is required –

MS MORTIMER:   That is as far as it goes, your Honour, further advice.  There is a heading at application book 118, “Management of people who are not removed”.  Bearing in mind, and it is important to bear this is in mind, this is the operating document on which the 16 plaintiffs were to be

taken out on 8 August and all it says is options for dealing with these cases are being finalised.  In reality, the Minister’s direction of 25 July 2011 is operating to preclude anything but staged removal.  It is completely precluding the use of 46A and onshore processing.  It is not intended to allow any real exercise of discretion under section 198A(1).

That perhaps sufficiently develops in combination with our submissions in paragraphs 101 to 102 and in reply in paragraphs 17 to 20 why we say that the Minister’s fetter on his own discretion is unlawful.  It is not that we necessarily seek any relief about that, but that representation in the letter of 25 July permeates the entire treatment of these people and precludes any fulfilment of Australia’s protection obligations to them onshore through the only mechanism available to them, which is 46A.  That perhaps assumes a little bit more significance in my learned friend Mr Niall’s argument about the way that children are being treated under this arrangement.

If the Court pleases, those are the only matters which I wish to advance by way of oral argument on the issues that affect all plaintiffs.  My learned friend, Mr Niall, will address the Court briefly on the matters that affect our only plaintiff in 106 as a minor.  If the Court would indulge us with a slight shuffling of the Bar table.

MR NIALL:   If the Court pleases, I seek to develop four propositions to support the conclusion that the Minister has acted in breach of his duty as guardian by giving the direction and allowing the taking to Malaysia of the second plaintiff and, secondly, to refer to the need for consent under section 6A of the Immigration (Guardianship of Children) Act.  Can I identify the four propositions firstly, your Honours.  The first is that section 6 of the Immigration (Guardianship of Children) Act imposes a duty to act in the best interests and to avoid harm and it is a duty conferred for the protection of the welfare of the child and to assist in settlement.  I will take your Honour shortly to section 6.

The second proposition I will seek to develop is that the duty under the Guardianship Act co‑exists with and is not diminished by the duties imposed under the Migration Act and that it is necessary to give effect to the special protection to a vulnerable class of non‑citizen children specifically catered for.  The third step of the argument is the taking of plaintiff M106 to Malaysia is not in his best interests and exposes him to harm without the protections of a guardian.  The final step or proposition is that by directing his officers, that he will not consider his powers and by failing to stop the taking to Malaysia of the plaintiff, the Minister has breached his duty to act in his best interests to avoid harm and without due consideration.  Can I take your Honours first to section 6 of the Immigration (Guardianship of Children) Act.

GUMMOW J:   I suppose the first question is, what is meant by the phrase “arrives in Australia”?

MR NIALL:   Yes, your Honour.  In our submission, it simply means physically present in the country, does not require any lawful permit to enter and it operates in respect of every non‑citizen child who comes to Australia and fits in the definition of 4AAA and that there is no restriction and, as we apprehend it, the defendants do not identify any restriction in relation to the word “arrives”.

HAYNE J:   It may be noted that the definition of “non‑citizen child” uses the expression “enters Australia as a non‑citizen” which is a phrase found in the Migration Act definition or a cognate phrase used in respect of offshore entry person, a person who “entered Australia at an excised offshore place” and “became an unlawful non‑citizen because of that entry.”

MR NIALL:   That is so, your Honour.

HAYNE J:   It is the same kind of language.

MR NIALL:   It is the same language.  One of the changes since 1946 when the Act was enacted, which was based on the immigration power in 1946, amended subsequently a number of times and then picked up the concept of non‑citizen in 1983 at the same time and with the commencement of the Migration Amendment Act 1983 it commenced at the same time. So the conversion of the Migration Act to the aliens power as the seat of the legislative authority was mirrored in this Act at the same time.  The structure of section 6 itself is in identical form as originally enacted in ‑ ‑ ‑

GUMMOW J:   Just going back to 4AA.  So 4AA(1)(b) “enters Australia as a non‑citizen” you would say that does not have any further division between enters as a lawful non‑citizen or an unlawful non‑citizen within terms of 13 and 14 of the migration structure?

MR NIALL:   That is so, your Honour.  It does not draw any distinction between of the migration – that is so, your Honour.  The original historical context, of course, was quite different in 1946 in relation to the children in respect of which it was intended to have principal operation, but over the course of the 60 years it has been adopted and applied in a variety of circumstances.  In one of the 1994 amendments the Minister responsible specifically referred to the two principal categories of children caught were people coming to Australia to be adopted and unaccompanied refugee children. 

KIEFEL J:   In any event, you have a concession in paragraph 22 of the statement of agreed facts that the Minister is the guardian under section 6.

MR NIALL:   That is so, your Honour.

GUMMOW J:   I do not think we can always acts on concessions.

MR NIALL:   If your Honour pleases.

GUMMOW J:   Particularly in a matter of this significance.

MR NIALL:   The construction, which is the non-discrimination between, enters in 4AAA(1)(b).  Can I identify in section 6 what we say are the four principal elements of the duty which have been present since 1946.  They are, firstly, that it is an exclusive guardianship, including to the exclusion of the parents.  Secondly, it is a continuing guardianship.  The third is that it imposes a paramount duty to protect welfare, and one gets that from the language of the rights, powers and duties, obligations of a natural guardian, and the fourth proposition, that it is a public duty rather than a private one.

GUMMOW J:   Those words “or leaves Australia permanently”, see those in section 6?

MR NIALL:   Yes, your Honour.

GUMMOW J:   Yes:

until the child reaches the age of 18 years or leaves Australia permanently –

Does that encompass being taken under 198A?

MR NIALL:   We would submit that the effect of the taking would terminate the guardianship by placing the person in the position where they are leaving intended to be permanently and without any right to return.  The significance, as we will come to, in relation to the breach is that the significance of the taking will be to terminate the statutory guardianship and replace it with no legal guardianship whatsoever and nothing in place to ensure the welfare or the protection of the child.

FRENCH CJ:   How do the provisions of the Act otherwise cease to apply?

MR NIALL:   They can cease to apply by reason of a declaration that the Act does not apply, which is section 11, and originally in 1946 when it was based on immigration power this Court held in Henry that it ceased to apply when the child ceased to be an immigrant. So once there was absorption of the child as a member of the community, the Act ceased to apply. Your Honours, that is reported in 133 CLR 369. The Court held that the Act ceased to apply once the child became absorbed, applying the principle of the Court in Ex parte Walsh and Johnson; In re Yates, which is ‑ ‑ ‑

GUMMOW J:   That is because it would be beyond constitutional power.

MR NIALL:   That is because of the immigration power and ceasing to be an immigrant, but what we also get out of Henry, while it is open – it is R v Director-General of Social Welfare (Vic); Ex parte Henry – is the scope of the Act covers not just welfare, but also the encouragement of settlement as a member of the community.  Your Honours will see that exemplified at page 381 in the judgment of Justice Mason where his Honour refers to the power.  The migration power:

extends to the making of laws for the general welfare and protection of immigrant children . . . They may be justified as laws which tend to facilitate the admission of immigrant children into the Australian community –

So one of the fundamental precepts of the Act was not just immediate welfare, but also incorporation or assimilation into the Australian community and, we submit, that organising principle continues even though since 1983 it has been supported by the aliens power in relation to non‑citizen children.

FRENCH CJ:   Just so far as section 11 goes, this exemption of children from the Act, does that have the effect that the Minister can, as it were, cast off the burden of guardianship in relation to a particular class of child, simply by written order?

MR NIALL:   That would appear to fit within the child included in a class if specifically mentioned.  It would be reviewable in the Administrative Appeals Tribunal under section 11A, but it would have that effect.  Now, in terms of this concept that the duty of guardian is paramount and public, that is supported both by the language of section 6 itself and including some of the extrinsic material.  If I could briefly take the Court to the second reading speech of the 1946 Act, which is in the defendant’s supplementary material bundle at tab 6?  The Act as enacted is in tab 5.  One of the notable features is the little change in structure that the Act has undergone in the last 60 years.  If your Honours turn to the second reading speech of the Minister, and over on 3369 in the second column, the Minister referred to:

The overriding responsibility of the Commonwealth in respect of all migrants, including the application of its social service legislation, applies in greater force perhaps to children.

There is a further reference to that:

It is, therefore, incumbent on the Commonwealth to see that child migrants are properly accommodated and cared for –

Then it is identified that –

The only way in which this can be achieved is by vesting in the Minister for Immigration an overriding legal guardianship in respect of all such children.

Then down the bottom of that column there is a reference to the Commonwealth assuming responsibility.  Now, it is significant, in our submission, that although the appointment of the Minister as the Minister for Immigration is not mandated by the Act, it was always understood and referred to that it would be the Minister for Immigration who held this guardianship, and that is relevant when one comes to comparing the extent to which the Migration Act might reduce or impact upon ‑ ‑ ‑

GUMMOW J:   The administrative arrangements made by the Governor‑General on 14 October 2010, which is the last one, I think, simply adds this Act to the other Acts administered by the Immigration and Citizenship Minister.

MR NIALL:   That is so, your Honour.  It has always been ‑ ‑ ‑

GUMMOW J:   But it need not be so.

MR NIALL:   No, it need not be so.  There is nothing in the Migration Act which would suggest that it would be incongruous for the duties of the Immigration Minister, or the Migration Minister, to also hold the duties of guardian of the children.

The theme is repeated in the amendments in 1948, and if I can take your Honours briefly to the second reading speech which is not in that bundle but is on the defendant’s list of authorities?  The amendments in 1948 provided some additional protections by allowing the most important perhaps are twofold.  One is the ability to give custody to non‑government agencies, and the second was to require the consent of the Minister before a child might leave.  If your Honours turn to again the Minister’s speech over on the first column, the reference to the:

overriding legal guardianship in respect of all immigrant children –

and the Minister goes on in the second paragraph –

The most important consideration is how the interests of immigrant children can be best served –

A little bit further down the second amendment, which is a requirement of consent which emerged in 6A, is intended to safeguard similarly the best interests of the immigrant child.  So the legislative history demonstrates the primacy of the duty of guardian that was given to the Minister.  The defendants submit that the nature of the duties were frozen in time back in 1946 and were private in nature, and we address those matters in our written submissions, but even in 1946 it was plainly intended that the duty of guardian would be exercised in the best interests of the child and related to assisting in settlement.

Could I turn to the second proposition, which is the requirement to read the Migration Act together with the Guardianship Act, starting with the strong presumption that the two Acts should be read together?  We point to just a few matters which show that they need to be read together.

GUMMOW J:   You keep saying read together, why not read concurrently?

MR NIALL:   They can be read concurrently but in a way where both duties are complied with, and certainly we submit that it is not possible to read the Migration Act as allowing the Minister to act inconsistently with the duty of guardian to the extent that he is able to act conformably with it.

GUMMOW J:   Does the material before us indicate any engagement of section 6A?

MR NIALL:   No, your Honour, in respect of the plaintiff, no engagement with section 6 and no engagement with section 6A.

GUMMOW J:   Is it adverted to in any of the materials?

MR NIALL:   Yes, your Honour.  There is a reference to ‑ ‑ ‑

GUMMOW J:   I mean the materials before the Migration Minister.  Do they touch on his concurrent administration of the Guardianship Act?

MR NIALL:   I do not believe so, your Honour, no.  Certainly, in relation to the direction that was given on 25 July, it was before the plaintiff arrived in the country.  It is not in any way identified by reference to the interests of children who might come after that date and who will be wards of the Minister.  There is some consideration in the material but not to suggest that the guardianship has been taken into account.  If I can just address – perhaps deal with the facts in relation to the plaintiff to show how it has been applied?

If your Honours first go to page 265, this is the “Biodata and Personal Circumstances Interview Form”.  Ms Mortimer took your Honours to the one in relation to the first plaintiff.  If your Honours go to 269, and this is a statement that was taken on the day he arrived, he identifies that he is a minor.  He does not have a guardian.

Malaysian Govt are beating + torturing the refugees so if it’s possible, please assess my claim here.

Then he makes some further references that:

the Malaysian Government is not a good government, they are beating the refugees.

And:

I feel very sad + depressed that they are sending me back to Malaysia –

The next step in the chronology was the pre‑assessment interview, but before coming to that, can I take your Honours to some of the passages in the pre‑removal guidelines which informed that interview.  If your Honours go to page 107, your Honours will see at the top a specific reference to the Minister’s direction of 25 July 2011.  At 109, in the middle of the page, it said

The Pre‑Removal Assessment Process for Transfers to a Third Country for Processing is distinct from the Minister’s guardianship responsibilities under the IGOC Act.  Consistent with this, the Pre-Removal Assessment Process for Transfers to a Third Country for Processing should not be conducted by anyone who also exercises the Minister’s delegated guardianship powers under the IGOC Act.

So there is a conscious not taking into account the duties at that point.

FRENCH CJ:   That, in effect, a process yet to be undertaken in respect of this plaintiff.

MR NIALL:   The process is being undertaken and has been undertaken.

FRENCH CJ:   The ICOG process, I mean, if there be one.

MR NIALL:   In our submission, it will not get undertaken because the Minister has indicated that he is not proposing to exercise any of his powers.  He has not referred to the ICOG Act and his expectation is that the people who have arrived after the relevant date will be taken to Malaysia for processing.  There is nothing in the material to suggest any means or mechanism by which the matter would come back to the Minister for the consideration of his guardianship duties. 

BELL J:   At 109 of the application book at about line 13 there is the reference to:

All minors will have a best interests of the child determination –

Do we have in the material some indication of what that involves?

MR NIALL:   We do not, your Honour, but what we do have when one gets to the removal process in the pre‑assessment interview at page 283 ‑ ‑ ‑

FRENCH CJ:   That presumably would be a reference to the Convention on the Rights of the Child requirement, would it?

MR NIALL:   Yes, your Honour.  That is what is picked up at 283.  It identifies the best interests of the child assessment being undertaken upon arrival in Malaysia by the UNHCR.  Your Honours will see that in the paragraph:

Under the terms of the Arrangement, the International Organization for Migration (IOM) and the UNHCR have undertaken to provide specific support ‑ ‑ ‑

At 282 there is a reference to an assessment under Article 3 of the Convention, but the identification of when and how that process is to take place is at 283 and identifies Malaysia as the place in which it is going to occur.  That assessment, the pre‑removal assessment, which commences at page 275, identifies, starting at 277, some claims that the plaintiff made about Malaysia.  That is dealt with at 278.  There is a reference at the bottom of 278 that:

The Government of Malaysia maintains an official list of 56 sects of Islam it considers ‘deviant’ –

relating to Shia, which is the form of Islam that the plaintiff practises.  There is reference upon 279 to the discrimination in relation to Shia Muslims in Malaysia, but at 280 it is the decision‑maker concludes by reference to the arrangement that the sending of the plaintiff to Malaysia would be:

consistent with Australia’s international obligations under CAT, ICCPR and CROC.

GUMMOW J:   But there is no attention in this material to the statute.

MR NIALL:   No, your Honour.  The ultimate conclusion about what will happen to the plaintiff should he be taken to Malaysia is identified at page 283.  In the middle of the page there is the reference to the best interests assessment which I have taken your Honours to.  In the next paragraph it says:

As [he] travelled to Australia without an appropriate caretaker, community contacts in Kuala Lumpur will identify a suitable person or family in the community and establish foster arrangements.  This arrangement would address language, ethnicity and religious issues . . . Where such arrangements cannot be made, shelter arrangements will be put in place.

HAYNE J:   That refers in a footnote to something called “Operational Guidance for Vulnerable Persons in Malaysia”.  Do we have that in the application book?

MR NIALL:   Yes, your Honour.

BELL J:   At 526.

MR NIALL:   It commences at 526, attachment 23.

HAYNE J:   Thank you.

MR NIALL:   What is notable about it is, consistently with Article 8 of the arrangement which Ms Mortimer took your Honours to yesterday, it is in entirely uncertain, indefinite and non‑binding terms.  In paragraph 4 there is the observation:

Need to discuss arrival arrangements for vulnerable clients, including UAMs, with the Malaysians especially in regard to accommodation, care and security.  We anticipate that the Malaysians may need to engage the Social Welfare Department –

Then there is a reference in point 6 to the “best interests” assessment, and at the top of 527, the use of “community contacts”.  What we submit emerges from that is that there is absolutely nothing in place that would address in anything like the legal obligations on the Minister the position of the plaintiff.

It is the case in relation to Plaintiff M106 that the formal 198A decision has not yet been made, so there is no counterpart to the decision that your Honours were taken to at 256, but when one looks at the direction of 25 July and looks at the pre‑assessment interview, it is clear that it is not a question of if the plaintiff will be sent to Malaysia, but a question of when.

FRENCH CJ:   The direction of 25 July is a direction for the purposes of the administration of the Migration Act?

MR NIALL:   That is so, your Honour.

FRENCH CJ:   There seems to be an assumption in what is said at 109 of the case book in the pre‑removal assessment process that the pre‑removal assessment process for the purposes of the Migration Act will be, as it were, hived off from whatever is to occur under the Immigration (Guardianship of Children) Act because it is not to be done by someone who has a delegation from the Minister under the latter Act.  There does not seem to be any indication of how the latter process is engaged.  Is that right?

MR NIALL:   In our submission, what the Court ‑ ‑ ‑

FRENCH CJ:   You are saying it is precluded by the ministerial direction, but the point I am making to you is that that is under the Migration Act.

MR NIALL:   There is nothing in the material to suggest any means, consideration, prospect of the matter returning to the Minister under either of his Acts.  Indeed, his expectation, clearly expressed, is that everyone will be removed by reference to the cut‑off date of 25 July and without regard to the circumstance of the child.  There is nothing in the material which would suggest that that is not the course that will be adopted.

Perhaps that is made good, in our respectful submission, in relation to pre‑removal assessment where the impediments to removal are specifically identified at 288.  Your Honours will recall that Ms Mortimer identified the three possibilities:  no impediments, some impediments and long‑term impediments.  At 288, under the heading “Summary of conclusions”, the decision‑maker identifies that the plaintiff:

has a vulnerability issue that is an impediment to immediate removal . . .  Relevant support services for an unaccompanied minor should be in place as per the Arrangement prior to removal to Malaysia.

That is repeated at 290 and the top of 291.  The only matters identified are that “UNHCR should be notified” and “IOM should be notified”, both in respect of things that they will be doing in Malaysia.  The ultimate conclusion and recommendation is at 291 where the officer says:

I recommend:

. . . 

there are impediment(s) to immediate removal, however removal can proceed subject to the relevant actions being taken prior to removal, as outlined above. 

In our submission, the plaintiff is inexorably being taken to Malaysia on the State of the evidence without any consideration of the duties and whether they constrain the migration duties or are concurrent with the migration duties, the position is that they will not be taken into account.

Can I summarise why we submit that it is not in his interests to be taken to Malaysia.  We deal with this at paragraph 125 of our written submissions, but can I just summarise them.  Firstly, the guardianship will be terminated and, secondly, no replacement will be put in place.  Ironically, in our submission, it would put the plaintiff in a very similar position to an immigrant child, or perhaps a worse position, prior to 1946 if he came to Australia, that is, with no legally enforceable protections, and it was the very purpose of the Immigration (Guardianship of Children) Act to impose those legal protections. 

When one looks at the position in Malaysia, it lacks legal force.  There are not any arrangements in place and it is extremely ad hoc.  Further, it is clear that the removal is against the wishes of the plaintiff and that he is liable to be removed by force.  He is losing the opportunity to be processed in Australia and he is being sent to a country where there is no legal protection in relation to asylum seekers.  That is made good in relation to DFAT cable attachment B at 595.  Further, he is exposed to risks in Malaysia, punishment for past illegal entry and discrimination in relation to his religion.

In our submission, there is nothing in the material that even suggests a pretence that the removal to Malaysia is in his interests.  There is not one word to suggest that it would be in his interests or that the use of force which is authorised by the Act would be applied for his welfare.  In our submission, it is clear that the move to Malaysia, as contemplated, would be against his interests and in breach of the duty.

Can we then complete the fourth aspect of the submission by encapsulating the breach that we attribute to the Minister.  Firstly, we say the Minister is in breach of his duty by giving the direction of 25 July.  Secondly, we say the Minister is in breach by failing to give consideration to his welfare, including by considering whether or not to exercise his powers under 46A and 195A, and he is in breach by failing to take any action which would be open to him and available to him to prevent the departure.  In our submission, he either has to give due consideration to those matters or, we would submit, take those steps under 46A or 195A in order to ensure the welfare of the plaintiff. 

We do not submit that it would not necessarily be possible to send an infant or a child to another country for processing, but that would depend on a specific assessment that the decision is in the child’s best interest, including, for example, family reunion or some other reason where another country might provide advantages which Australia cannot.  In our submission, if the Minister is in breach, the decision or threatened taking of the plaintiff is unlawful because it proceeds on an erroneous and unlawful breach of duty and, in our submission, the position is that that unlawful act is threatened.

GUMMOW J:   So looking at 6A of the Guardianship Act, you say the words “shall not leave” encompass “is not to be taken”?

MR NIALL:   We do, your Honour.  We say as an alternative basis section 6A requires consent.  “Leave” simply means departure, which would accommodate being taken.  Indeed, when 6A was introduced, the words, I think, “enticed”, “induced” or “taken” were used in relation to the consent.

GUMMOW J:   Subsection (3) creates an offence.

MR NIALL:   It does, your Honour.  Then the question is the extent to which subsection (4) is applicable and, in our submission, subsection (4) does not apply to either 198(2), to the extent that it is applied, or 198A.  We make that submission on two bases; one, from the language and, two, from the purpose.  In relation to the language, the phrase that Parliament has used is “regulating the departure” and that is in contrast to section 8, which was also in the original form, which dealt with laws relating to a subject matter.  In our submission, the words “regulating the departure” does not include a law that brings the departure or mandates or requires the departure to occur.  That construction accords the purpose, which is entirely protective, that consent is a necessary but not sufficient requirement for a ward to be taken or to leave the country.

HAYNE J:   A requirement for consent intersecting with compulsive powers of removal might also be understood as bringing to the attention of the guardian whether the compulsory removal should be challenged.

MR NIALL:   We would adopt that with respect, your Honour, yes.  It accommodates, of course, the circumstance where the guardian is not the Minister for Immigration but might have been appointed under administrative arrangements by some other Minister, but wherever the duty is reposed, it requires the consent of that person subject to restrictions in subsection (2), which is that consent cannot be refused unless the Minister is satisfied that the granting would be prejudicial to the interests.  So if it was neutral to the interests or advantageous to the interests, consent cannot be withheld, but the Minister would have direct themselves to that question.  In our submission, there is no consideration; indeed, the defendants contend they are not obliged to consider section A in relation to the proposed action or the taking of the plaintiff. 

The Court asked whether a decision to give or withhold consent was reviewable under the Administrative Decisions (Judicial Review) Act.  In our submission, it is.  It fits within the definition, specifically section 3(2) of decision, which includes the giving or withholding of consent, and it is not a privative clause because it is not made under the Migration Act.  So it is not part of Schedule 1 to the AD(JR) Act.  So it is not excluded and it applies.  So for those two independent reasons, the breach of duty and the lack of consent, in our submission, the threatened removal, threatened taking of the plaintiff would be unlawful.

GUMMOW J:   What relief would you get based on 6A?  What specific relief would you get if you were to succeed only on 6A? 

MR NIALL:   In our submission, we would be entitled to an injunction in the absence of consent under section 6A or, alternatively, declaratory relief on the basis that the proposed or threatened removal under 198A in the circumstances in respect of the plaintiff would be unlawful in the absence of consent.  Unless there is anything further, they are the submissions for the plaintiff. 

FRENCH CJ:   Thank you, Mr Niall.  Yes, Mr Jackson. 

MR JACKSON:   Your Honours, we intervene, of course, only on the question just mooted in relation to the intersection of the Immigration (Guardianship of Children) Act, to put it shortly, and the Migration Act.  Your Honours, could I deal with one thing and that concerns a question your Honour Justice Hayne asked my learned friend a few moments ago concerning the terms of section 4AAA of the Immigration (Guardianship of Children) Act, and that sets out the three criteria to be satisfied if a child is to be a non-citizen child under subsection (1) of that provision. 

Your Honours, the term “non-citizen” is itself defined in section 4 simply to mean “a person who is not an Australian citizen”.  Your Honours, could we just say that if one looks at the present case, the applicant would appear to fall within the three tests set out there.  The suggestion that a person who enters Australia unlawfully might not be able to satisfy section 4AAA is, in our submission, one which should not be adopted or accepted because persons in the situation of the present plaintiff fall directly within those provisions and, in our submission, there is no immediately apparent reason why one would add any more words to the terms of those provisions and there is no especially compelling reason, in our submission, why one would add to the definition in section 4AAA(1) any words or concepts not there stated.

Your Honours, the second point on which we seek to address a submission concerns the proposition that was mounted, perhaps floated might be a better description, in the paragraph 100 of the Commonwealth submissions that the operation of the Immigration Guardianship Act has in some way an historical aspect to it that is fixed in the aspect of the 1940s and should not be treated as having a contemporary application.  Your Honours, a contention along those lines, in our submission, does encounter some difficulties.  In the first place, it is not at all clear historically that at the time of its first enactment that provisions of the Immigration Guardianship Act were intended to have so restricted an ambit.  The words of the provision, at that point, do not support that. 

The second thing is that it has been amended on a number of occasions up to relatively recent times and it is a provision which has, which is capable of having, an enduring application to varying circumstances and it would be unusual, we would submit, heterodox to treat a common law statutory provision capable of having an enduring application to varying circumstances as applicable only to or limited in some way by the events which led to its introduction.  Your Honours, the better view, in our submission, is that it applies to any unaccompanied child who comes here intending to be a permanent resident and they should be under the guardianship of a Minister.

Your Honours, the nationality, background and relationship to Australia of the children to whom the Immigration Guardianship Act applies has varied from time to time and will vary, your Honours, whilst no doubt at the time when it came into force its intended primary application may have been to those who had been sent to Australia under one scheme or another but, we would submit, on any principled interpretation of the Act, it would also have applied to the orphan child of parents who had been officers in the SS and might still be philosophically unreconstructed. 

Your Honours, if one moves further into the second half of the 20th century, it would seem to have applied to the boat people, the children who came as boat people to Australia from South Vietnam, a country with which Australia had been in alliance.  All the classes of persons to whom I refer are persons who would fall within the definition.  Could I turn to a third point, your Honours, the question of different Ministers.  No doubt it may be said that it is at the moment ‑ ‑ ‑

GUMMOW J:   Is this paragraph 103?

MR JACKSON:   I am sorry, your Honour?

GUMMOW J:   Is this paragraph 103 of the Commonwealth?

MR JACKSON:   I think it is, your Honour.  I do not have it immediately here.  Yes, it is, your Honour.  The position, in our submission, is simply this, that under the provisions of the Guardianship Act, the Minister who is the Minister to administer that Act is given certain powers and has certain obligations cast upon the Minister.  The Minister may or may not, although to date has been, the Minister also administering the Migration Act.  The operation, as a practical matter, of the duty of the Minister under the Guardianship Act is one that has to be dealt with in the light of the circumstances as they appear, but the duty of the Minister as guardian under the Guardianship Act is one to act in the best interests of the child in question, not merely, your Honours, to take into account a question of the best interests of the child.

The duty of the Minister as the guardian is one to act in the best interests of the child.  Now, there is a difference, of course, and a very significant difference, between on the one hand, as one sees in the document that was referred to, page 109, and the document at page 283 and so on – there is a difference between saying, I’m here to exercise or to advise in relation to the exercise of a power.  One of the issues to be taken into account is the best interests of the child.  That is a feature to be taken into account.  Your Honours will see the distinction drawn in those documents on the one hand, and on the other hand, to have a person who is acting in the best interests of the child.

If it be that there are different Ministers administering different Acts, the position is likely to be that the function to be performed by the Minister as the guardian Minister is to advocate on behalf of the child what the Minister in that capacity regards as the best interests of the child.  If, on the other hand, the position is that the Minister is first administering both Acts then one has to take into account that Parliament has recognised that there are two Acts.  Your Honours, one has in those circumstances a situation where the Minister in his or her capacity as guardian, because a statutory duty is imposed upon him, has to take what is the action that is in the best interests of the child.

The reason for that, the reason that one must look beyond non‑refoulement is explained by Professor Hathaway in another passage in his text.  That is not presently before the Court.  I just want to hand that up, if I might.  It is at page 159.  This part of the text is dealing with the de facto circumstances that arise when a person arrives, and at page 159 the author says this:

This dilemma –

that is, the dilemma of how to deal with people who have not yet been assessed –

can only be resolved by granting any person who claims to be a Convention refugee the provisional benefit of those rights which are not predicated on regularization of status, in line with the Convention’s own attachment requirements.

There is then a quotation from the UNHCR which is also in our written submissions.  Your Honours will see the footnote there, footnote 20, the author explains what those rights are, that:

These include rights which are subject to no level of attachment, rights which inhere in refugees simply physically present, and – once the requirements for status verification have been met –

then more rights flow.  There is a cross-reference by Professor Hathaway to two other chapters and if I can just might inform the Court what one finds there.  Chapter 3.1.1 is the chapter that deals with the core rights of non‑discrimination and non‑refoulement and general standards of treatment and 3.1.2 deals with those refugees physically present in a State and other core rights such as freedom of religion, freedom from penalty for illegal entry and only necessary constraints on freedom of movement.

So those are, in our submission, the categories of rights that are properly comprehended by the notion of protection once a person is in the State.  So those are the things that by the declaration, in our submission, the Minister ought to be examining as to whether they exist as a matter of legal obligation in the country to which he proposes to make a declaration.

HAYNE J:   Whether those rights exist as a matter of legal obligation in respect of persons whose assessment is not complete?

MS MORTIMER:   Yes, your Honour.

HAYNE J:   What about persons in respect of whom an assessment has been made that they are refugees?  What is the ambit of the protection you say the Minister should look to for those persons?

GUMMOW J:   Having regard to paragraph (iii) of section 198A(3).

MS MORTIMER:   Yes, your Honour.  That is the third category that Professor Hathaway refers to in that footnote 20, where he picks up a cross‑reference to chapter 3.1.3 of his test which deals with refugees lawfully present in a State and those kinds of rights are protection against expulsion, more generous guarantees of freedom of movement and self‑employment, so a slightly larger category.

HAYNE J:   But take, for example, religion, freedom of religion and freedom to, I think, educate children, religion of choice?

MS MORTIMER:    They, your Honour, are rights that, in our submission, attach once an asylum seeker is physically present. So they come under (ii).

HAYNE J:   They are the first class, you say?

MS MORTIMER:   They are the second – the first classes ‑ ‑ ‑

HAYNE J:   Sorry, they are the class of persons awaiting determination?

MS MORTIMER:   Yes, your Honour, that is so.  For those reasons, we submit that to construe section 198A consistently with what we say are the relevant Convention obligations, one must see it as a mode of discharging Australia’s obligations in the sense that I have just addressed the Court about.  There is, in that sense, no analogy to be made with the safe third country provisions, because there is a fundamental difference in the purpose and operation of section 198A from those provisions.  Australia does not

know and decides not to inquire about whether another State has an existing protection obligation to these people.  Instead, it seeks to discharge the Convention obligations as we have described them by sending them to a country that it declares will do so in the manner that is legally required.  The whole inquiry is shifted to this other country, and it is in that country that inquiry about safe third countries, if at all, will occur.

The durable solution, the end point for people like this, is not necessarily going to be that declared country.  That is the key difference, and that is why there is a limit in (iii) in its language.  This is a provision with a fundamentally different purpose and object from those safe third country provisions in the Act, and needs to be construed accordingly.  If the Court pleases, those are the submissions in reply.

FRENCH CJ:   The Court will adjourn briefly to consider what course it should take.

AT 4.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.17 PM:

FRENCH CJ:   The Court will reserve its decision, which it expects to deliver on Wednesday, 31 August 2011 at 2.15 pm.  The Court is otherwise adjourned to 10.15 am on Tuesday, 30 August 2011.

AT 4.17 PM THE MATTER WAS ADJOURNED