Plaintiff M76/2013 v Minister for Immigration Multicultural Affairs and Citizenship and Ors

[2013] HCATrans 201

Replacement Transcript

[2013] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M76 of 2013

B e t w e e n -

PLAINTIFF M76/2013

Plaintiff

and

MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Defendant

THE OFFICER IN CHARGE, SYDNEY IMMIGRATION RESIDENTIAL HOUSING

Second Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

COMMONWEALTH OF AUSTRALIA

Fourth Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 SEPTEMBER 2013, AT 10.15 AM

Copyright in the High Court of Australia

____________________

MR R.M. NIALL, SC:   If the Court pleases, I appear with my learned friends, MS K.L. WALKER, MR C.L. LENEHAN and MS A. RAO, for the plaintiff.  (instructed by Allens)

MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia:   If it please the Court, I appear with MR S.P. DONAGHUE, SC and MR N.M. WOOD, for the defendants.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, Mr Niall.

MR NIALL:   If the Court pleases.  The Court should have an outline of propositions to be advanced by the plaintiff in oral argument.  We have also handed to the Court some additional legislation to identify the Acts which were amended since the last reprint relevantly.  A principal alteration is the repeal of section 198A, to which I will come in due course.

If the Court pleases, the three principal areas on which I seek to develop in the course of oral argument is, firstly, that there was an error in the processing of consideration under section 46A of the Act, with the consequence that section 198 is not available to remove the plaintiff because there has not been that lawful assessment of Convention obligations as they are incorporated into the Act.  The second area of oral argument will be that sections 189, 196 and 198 do not authorise the continued detention of the plaintiff in circumstances where it is not reasonably practicable to remove her; that is, there is no real likelihood or prospect of removal in the reasonable foreseeable future.

In order to advance that proposition, we will seek leave to the extent necessary that the Court should reconsider and overrule the holding in Al‑Kateb, principally for the reasons given by Justices Gummow and Bell in Plaintiff M47.  In short, we contend that the principle of legality was either not properly applied or given insufficient consideration in the construction adopted by the majority in Al‑Kateb.

The third principal area of oral submission will be that if the construction for which Chief Justice Gleeson and Justice Gummow and Justice Kirby found in Al‑Kateb and Justice Gummow and Justice Bell in M47 is not accepted, the contrary construction offends Chapter III.  Can I deal then firstly with the first series of propositions in relation to the position of the plaintiff?  The plaintiff, of course, is an offshore entry person arriving on 8 May 2010.  She was detained under section 189(3) and then subsequently 189(1).

Section 46A applies to her, such that she cannot apply for a visa in the absence of the Minister exercising the power in 46A(2).  We note that section 198A was potentially available mechanism for assessment but is no longer available, it being repealed.  The scheme of which 198 is exemplar is replaced by 198AA which does not apply to the plaintiff.

In our submission, the facts establish that the Minister commenced consideration of exercising the power in 46A(2) in relation to the plaintiff.  As part of that process, undertaken under guidelines, inquiries were made after the decision to consider exercising the power and for the purpose of informing the Minister of matters that were relevant to the decision whether to exercise one of the dispensing powers found in section 46A. 

Can I turn to the nature of the assessment that was undertaken in relation to the plaintiff and starting with the first proposition in our outline, the starting point – and it is a constraint on section 198, the removal power – is that a person is not amenable to removal under section 198 without an assessment of their claims for protection unless under 198A.

In terms of that assessment for protection, that is not a Convention obligation but rather the extent to which the Convention is incorporated in domestic law under the Migration Act.  We have given in proposition 1 authority for that proposition in Plaintiff M70 at various paragraphs to which I will not take the Court. 

That starting point that 198 is not available without an assessment then turns to the question of the type of assessment that can be undertaken under section 46A.  In relation to that process, it took the form of an assessment process under guidelines in relation to the plaintiff and the first point is that that process was statutory.  It prolonged detention and it was subject to legal limits.  Your Honours will see the limits that were expressed by the Court in Plaintiff M61 – I will take your Honours to the judgment of the Court in Plaintiff M61. 

KIEFEL J:   Just before you do, could I ask you, does the plaintiff maintain her status as an offshore entry person when she is moved into the migration zone and directions are made for her to be detained somewhere else?

MR NIALL:   She does, your Honour.  The definition in section 5 of “offshore entry person” is a person who has at any time entered Australia at an excised offshore place and became an unlawful non‑citizen because of that entry.  That definition applied to her at the time of entry and it continues to apply to her.

KIEFEL J:   Why does it continue?  Is that because that status is immutable once it is acquired?

MR NIALL:   That is the way we see the concept of unlawful non‑citizen remaining in the Act and that once you have entered you get that status and you can be dealt with in a number ‑ ‑ ‑

KIEFEL J:   But you can be an unlawful non‑citizen without being an offshore entry person.  I am interested in the particular aspect of her being an offshore entry person because it is that to which section 46A attaches.

MR NIALL:   It is, your Honour.

KIEFEL J:   Accepting that she remains an unlawful non‑citizen.

MR NIALL:   Of course.

KIEFEL J:   She has entered Australia at an excised offshore place but then she is removed to somewhere else.

MR NIALL:   She is not ‑ ‑ ‑

KIEFEL J:   She is moved to Western Australia.

MR NIALL:   Yes, she has moved.  Sorry, your Honour, she is not removed.

KIEFEL J:   She is moved.

MR NIALL:   She is moved.

KIEFEL J:   By an act of the Minister.

MR NIALL:   By an act of the Minister, which brings her ‑ ‑ ‑

KIEFEL J:   In the migration zone.

MR NIALL:   ‑ ‑ ‑ in the migration zone.  There is nothing that movement on the ordinary definition or reading of the definition of offshore entry person would still apply to her.

KIEFEL J:   In the event of ‑ just for clarity, whilst I have interrupted your flow, I regret it, at an early point, could I also ask you what you say is the status of the decision in the special case book at page 213, the decision of 24 April 2012, advising the plaintiff that she is ineligible for the grant of a permanent visa?  What section is that decision made under?  What status does it have?

MR NIALL:   It has no status other than as an indication of the officer’s assessment of how the Act would apply to her in the event she was able to apply for a visa.  She was ineligible to apply for a visa because of section 46A.

KIEFEL J:   You mean it is meaningless?  It is advising her of rights that she does not have?

MR NIALL:   Well, she certainly did not have a right to apply for a visa and this purports to explain the reason why the 46A power was not exercised in her favour, identifying the existence of Public Interest Criterion 4002 which, of course, the court held was invalid and not a relevant criterion for the grant of a protection visa.  What we say happened was that there was an assessment of her entitlement to a protection visa, in the event ‑ to be relevant in the event ‑ ‑ ‑

CRENNAN J:   You mean a proleptic assessment?

MR NIALL:   Yes, for the purposes of determining whether or not the Minister should lift the bar under section 46A.  The assessment that is undertaken is in advance of an assessment which would by force of statute take place under consideration of an application for a protection visa, but it is an assessment which, in our submission, the Malaysian Case mandated happen either under 46A or under the offshore processing regime.

KIEFEL J:   But this stands as a decision that her request to be considered will not be referred to the Minister.

MR NIALL:   That is so.

HAYNE J:   Why is it any more than evidence that the process of consideration under 46A has miscarried?

MR NIALL:   That is precisely what we contend it evidences, that is, that the starting point is that the process under 46A has to reflect the statute – that is, the statutory entitlement and the criterion for the grant of a protection visa.  That is a combination of 36, 65 and 501.  That was the assessment which 46A allowed for, and the assessment miscarried.  That being so, there has been no lawful assessment under 46A.  The Minister cannot be compelled by mandamus to conduct such an assessment ‑ ‑ ‑

KIEFEL J:   Can a declaration, nevertheless, be made?

MR NIALL:   A declaration could be made ‑ ‑ ‑

KIEFEL J:   It seems we are almost invited to make it, given the statement in the special case at paragraph 23A, which is a frankly curious statement.

MR NIALL:   A declaration could be made.  An injunction could be granted to restrain removal prior to what I will call a valid assessment and, in our submission, because 198 is not available in relation to the plaintiff, her detention is not for the purpose of removal.  So there are three consequences, we respectfully submit, for the position that the Minister now has produced, namely, the starting point or the first premise is that the assessment does not reflect the Act.  The second step in the argument is that 198 is not available.  The error in assessment affects legal rights and would be subject to relief.  The relief would be declaratory and injunctive, and the absence of the availability of removal would render her detention for that purpose unlawful.

HAYNE J:   Well, it may be, I do not know, that it would require consideration of a question expressly reserved in Offshore Processing.  The Commonwealth parties in their submissions at paragraph 68.2 assert that Offshore Processing establishes that:

the Minister is not bound to make a decision at the second step “no matter what” the result of any inquiries undertaken by the Department –

No doubt we will hear from the Solicitor whether or why that is consistent with what I think may be a point expressly reserved in Offshore Processing, and a point which, if it is expressly reserved, may invite attention to in what circumstances mandamus can go, having regard to the high constitutional purpose of mandamus long recognised before Federation.

MR NIALL:   Yes, your Honour, and as we would approach it, the position of the Court in M61 243 CLR 319 at paragraph 77 identified in the first sentence that:

the Minister was not bound to exercise the power under either s 46A or s 195A –

with the consequence that the person did not have a right ‑

to a particular outcome.

Now, of course, at least in this case, the process of consideration has commenced by the Minister and our contention is that having embarked on the process it must be completed, and it must be completed in a way which the middle of that paragraph identifies, namely, it must be procedurally fair and it must address the relevant legal question or questions.  The right of a claim of liberty from restraint is directly affected, and in 78, the Minister having decided to consider the exercise of power under 46A or 195A, the steps that are taken are steps towards the exercise of those statutory powers.

The existence of a duty may be properly expressed is that there is no duty to make a favourable outcome after the assessment process.  A mandamus would not go to the exercise of the power in section 46A(2) as it is expressed.  The only power in 46A(2) is a favourable power so mandamus would not go to compel that exercise.  Our contention is that the Minister has to continue to consider the process having embarked on it and is under a duty to do so.  Mandamus goes to that point.  But, at all events, even without mandamus, the consequence is at the 198 stage.

As your Honour Justice Hayne identifies, the position not decided is in paragraph 100 of the reasons for judgment in relation to certiorari to quash recommendations and the Court went on to say that:

Nor is it necessary to examine whether, or how, the proposition . . . might permit or require modification to accommodate cases such as the present, where the right that is affected by conducting the impugned process of decision making is a right to liberty.

Now, in our respectful submission, the analysis in terms of 46A and its duty or absence of duty really finds reflection in section 198 and that even in the absence of mandamus, or with mandamus, section 198 is not available. 

Can I turn to the question as to the content of the relevant consideration and I might return to this question of whether it can be stopped or whether it can be subject of mandamus because there is, in our submission, a critical issue as to what the content of the legal questions required to be considered under an assessment and, in our submission, the answer to that is in paragraphs 88 and 89 of the judgment in M61 where the conclusion is expressed in the second sentence of 88 that:

Exercise of the power –

that is, the 46A power -

on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act –

That is developed in paragraph 89 where it is stated that:

the fundamental question to which the assessment and review processes were directed had to be understood as whether the criterion stated in s 36(2), as a criterion for grant of a protection visa, was met.  Necessarily, that question had to be understood by reference to other relevant provisions of the Migration Act, and the decided cases that bear upon those provisions.

Now, of course, the issue in M61 was an error in the question of whether the refugee meeting Article 1A and in our submission ‑ ‑ ‑

HAYNE J:   No, the question in M61 at least included the assertion in the RSA documents that you can have regard to court decisions but you are not bound by them.

MR NIALL:   Yes, your Honour.  It found practical application, in terms of the decision was it in relation to an Article 1A decision, the person was found not to be an Article 1A refugee.  In the context where the decision‑maker and the assessment had identified that he or she was not bound by the Act or needed not to have regard of judgment of a court, and that is the passage that is being responded to – that is the point that is being made in 88 and 89. 

Now, the point I made that Article 1A was a relevant point of inquiry in M61 was only to make this further point, that the Act does not only operate in relation to 36(2) in relation to protection obligations, the lynch point, or the point that brings the elements together in the statutory - under section 65, which of course requires the meeting of the criterion and not disqualification by reference to section 500 and section 501, so it is the whole ambit not just what in some aspects is called positive obligations versus negative obligations, but putting aside that language, it is the whole of the statutory response to the Convention that was critical for the assessment, and that is not what occurred.  We make the point in paragraph 5 of our oral submissions by giving references to Plaintiff 47 as to how section 500 and section 501 also interact in this statutory scheme with the protection obligations.

GAGELER J:   Mr Niall, I would be assisted if you related that submission in paragraph 5 to the text of section 46A.  Do you say it has to be read down in some way?  Do you say public interest is limited?  I am just not following ‑ ‑ ‑

MR NIALL:   There are two – the text of 46A identifies the facility to make a valid application for a visa.  So that straightaway ties the power to an application for a visa relevantly in this case to a protection visa.  The other textual link in section 46A is in 198(2) which provides that:

An officer must remove as soon as reasonably practicable –

a person who has either not made a valid application or has made one that has been determined.  In M61 the Court identified those two textual links as providing the basis upon which any assessment under section 46A has to be tethered to the statutory provisions for a protection visa.

HAYNE J:   There may be a third textual link in 196(1)(c).

MR NIALL:   Yes, your Honour, and those textual links not found solely in section 46A itself were described in paragraph 25 in M61. 

GAGELER J:   I understand the submission that the Minister in assessing the public interest under section 46A has to accord procedural fairness and cannot act on a mistaken understanding of the operation of other provisions of the Act, but you are contending for some closer and I think your language is “tethering” and I just do not understand that.

MR NIALL:   The link, in our submission, is the text in 46A, which identifies the valid application, and the proposition in 88 in M61 that the exercise would be pointless if it was not directed to the criteria for a protection visa criterion.

GAGELER J:   So is the proposition that the Minister, in assessing the public interest under section 46A(2), can only do so against potential visa criteria?

MR NIALL:   We do put that submission, but another way of approaching it is - the approach taken in 88 and 89 is that one does not get to the consideration of applying for a guided visa application unless you ask by reference to the criteria under which such an application might be granted.  That is why, in our submission, 46A is linked and there is an aspect of text but there is also two contextual issues.  One is the incorporation of the Convention and the other is the fact that there is detention continuing, that is the statutory detention, by virtue of this process.  So all those three things coming together requires that the consideration in 46A be directed to the legal question and the legal question is informed by the content of the particular visa in respect of which the Minister is considering lifting the bar.

HAYNE J:   I think you may need to shell out two quite distinct questions.  One question is what is the ambit of 46A generally?  One would then go off into Browning’s Case about public interest et cetera and public interest is a very broad concept of a kind that the Court has looked at generally.  But the second and distinct question may be in the events that have happened, what is the exercise that is being undertaken?  In particular, given that somebody is detained under and for the purposes of the Act, and more particularly is detained for the undertaking of the RSA process, then the question that the Minister confronts may be more confined than the generalised question of how large a power does 46A give the Minister.  I think you may need to keep distinct the point at which you enter the maze.  Are you entering the maze at the point of detention of this person for this process or are you entering the maze at the point of what does 46A mean?

MR NIALL:   We apply 46A as it applies to this particular person in the circumstances of detention, and the detention is either non‑statutory and unlawful because it is not for a purpose linked to the statute or it is for a statutory purpose.  In M61 the Court held that it was for a statutory purpose because detention for the purpose of considering whether or not to lift the bar was capable of being accommodated within 198(2) so we do draw the link together in terms of the application of section 46A.

In the event that a lawful assessment has been undertaken for the purposes of section 46A in those circumstances and the matter comes back to the Minister for decision, we do not contend that the public interest would require the bar to be lifted and application to be made.  It may be that, the assessment process being completed, the Minister determines that it is not in the public interest to lift the bar and that is the proposition in M61 at 88, that you are not bound to achieve a particular outcome regardless of the assessment process.

KIEFEL J:   Does the plaintiff continue to be detained for the purpose of the RSA process given that it has been halted?

MR NIALL:   No, your Honour.

KIEFEL J:   So she is detained for the purposes of removal, but there has been no decision about her status made?

MR NIALL:   That is so, and we say, on the authority of the Malaysian Case, that 198(2) is not available in those circumstances because the Act contemplated an assessment and when one looks at the content of 46A divorced from the circumstances of detention or divorced from the particular circumstances where an RSA is to be applied for the purposes of prolonging the detention you have also got to take into account, at least prior to August 2012, the facility to remove the person or take the person to an offshore entry processing place.

KIEFEL J:   But if it is said that she is detained for the purposes of removal, there having been a decision made about her status as a refugee, which is the matter that the Act addresses, the only decision that could possibly equate to that is the decision that we first referred to, that is the decision that she is not entitled to make an application for a visa.  Could that stand as a decision about her refugee status?

MR NIALL:   It stands as a decision.

KIEFEL J:   It is not a decision under the Act is your point?

MR NIALL:   Either a decision not to exercise the power under 46A(2) or a decision erroneously not to engage with the power in section 46A(2) having embarked on the process in the beginning, so there are two possible ways to construe what is happening.  Either the Minister is saying through the policy that he has promulgated and the decision at 213, or the statement at page 213, the Minister is refusing to exercise the power in 46A(2) in respect of that person, but of course doing so on the basis of an erroneous understanding of the law or, alternatively, is simply stopping consideration, full stop.  Either way does not enliven the removal power. 

The circumstances in which the circumstances of the plaintiff rested where they are can be explained, at least in some part, at the ministerial guidelines commencing – or perhaps firstly the position in 2009 at 201 of the special case book.  Now, this was an expression of policy by the Minister, not in the circumstances – this is 2009, prior to the plaintiff coming to the country, that – over on 201:

Unless there are extenuating or special circumstances those requirements –

that is for identity and security checks –

should be applied before seek bar to be lifted under Sect 46 A(2).

That policy was formalised in March 2012, and your Honours will see that commencing on page 203.  Now, this was issued on 24 March 2012, so this predates by a month the letter that your Honour Justice Kiefel directed my attention to, which was 24 April.  Your Honours will see, 204 at the top of the page:

The purpose of these guidelines is to:

·explain the circumstances in which I may wish to consider exercising my public interest power –

Now, in the circumstances of the plaintiff, that is inapt because the consideration had already commenced through the process of the RSA which had been completed in September 2011.  That assessment your Honours will see, perhaps to go slightly out of sequence, at 193, yielded satisfaction that the plaintiff met the definition of a refugee set out in Article 1.  Your Honours will see that at 193, paragraph 6 is the finding, and your Honours will also see at page 188 that the person undertaking the assessment concluded that:

the claimant does not come within Article 33(2) of the Refugees Convention –

that is, the plaintiff was not excluded by reference to Article 33 ‑ ‑ ‑

FRENCH CJ:   The Minister’s response to the subsequent departmental submission, which I think covered 32 offshore entry persons, was in respect of those for whom health and security checks were outstanding, that he would not consider lifting the bar until the health and security checks.  So the only issue that he was leaving for determination, as it were, was the health and security check process.

MR NIALL:   That is so.

FRENCH CJ:   That is from 2009.

MR NIALL:   In respect of this particular plaintiff, there was a deal of assessment – quite a sophisticated assessment – based on Article 1A, Article 1F and Article 33.

FRENCH CJ:   That had all preceded ‑ ‑ ‑

MR NIALL:   That had all preceded that, but it was the purpose for which she was detained.  So the submission we make is that where the Minister says, I may wish to consider exercising my power under 46A, misdescribes what had happened because the consideration had already been well underway with only one or two elements remaining.  If the Court goes back to the policy that was formulated in April 2012, your Honours will see this concept of cases being brought to my attention, and not being brought to my attention, and right in the middle of page 205, the Minister notes that he:

may only exercise my power . . . if it is in the public interest . . . 

I will generally only consider the exercise of my public interest powers in cases which are referred . . . 

The public interest may be served by . . . an OEP . . . that may engage Australia’s protection obligations –

and then the Minister makes a reference to –

Where it is believed that an OEP presents character issues that indicate that they may fail the character test . . . the public interest may be served by allowing these issues to be assessed through the statutory process.

Then there are the cases to be referred, 8, dot point 1.  Was the plaintiff – albeit that there was an understanding that the plaintiff was foreclosed by criterion 4002 but, of course, that is not a valid public interest criterion for the grant of a protection visa.  Your Honours will see down the bottom of 205:

where my department has conducted an assessment . . . which has found that an OEP engages Australia’s protection obligations –

but would objectively fail the character test under section 501.  Again, that may be a description of the plaintiff – may or may not be a description of the plaintiff but it certainly could accommodate the plaintiff.  Then there are cases which are not to be brought to my attention, and your Honour will see that the particular ones that seem to have animated the Department was page 207, second dot point:

found to engage Australia’s protection as provided for in 36(2) of the Act but has received an adverse security assessment –

Also over, perhaps on 206, the second dot point under paragraph 10, where the Department has been conducted:

and the OEP does not appear to satisfy or is awaiting to satisfy the relevant Public Interest Criteria for the grant of a PV. 

FRENCH CJ:   Well, does that, in effect, reflect the position that had already been taken by the Minister in his response to the 2009 submission?

MR NIALL:   I am sorry, your Honour?

FRENCH CJ:   In the 2009 submission, the Minister said I will not look at 46A(2) of lifting the bar until you have gone through the security assessments, and now here he is saying do not refer until.  So are those two positions consistent?

MR NIALL:   Or do not refer in the event that.

FRENCH CJ:   Or is awaiting to.

MR NIALL:   Or is awaiting to, I beg your Honour’s pardon.  So to the extent it is awaiting to would probably be consistent with the 2009 position.  Now, the model of referring or not referring is given expression at 208 at the bottom, last paragraph, where your Honours will see that if you fall within the public interest it will:

be brought to my attention . . . as part of an omnibus submission so that I may consider exercising my power.

In effect, that might be apt to describe the submission in relation to the 29 people that were referred back in 2009, effectively an omnibus submission listing the people -

However, if a case falls within Section 8 . . . and also contains [other] information –

by reference to section 11 –

I wish to have these cases referred to me via an individual submission with the relevant information provided.  This means cases that raise character or security concerns should be brought to my attention via an individual submission and should include any relevant information that may fall within . . .  Section 11 –

Now, that was published by the Minister in March.  So it is that policy which provides some explanation for the letter that was generated on 24 April 2012.

The errors that we identify with that process can be summarised in this way.  Firstly, there is a misconception about what is contemplated by consideration by the Minister, that is, the concept that the consideration does not start until there is a referral.  Secondly, there is a misunderstanding by reference to criterion 4002.  Thirdly, there is a misunderstanding by reference to the concept that the Minister can simply stop considering in the absence of a complete assessment and that is a function of what the nature of the assessment is.  There are two approaches – either the Minister could be compelled to complete the consideration in those circumstances or, alternatively, our primary submission is that simply 198(2) is not available in those circumstances.

FRENCH CJ:   By complete assessment, you mean an assessment which addresses all of the relevant legal criteria for the grant of a protection visa.

MR NIALL:   That is so.

FRENCH CJ:   Valid criteria.

MR NIALL:   That is so. 

CRENNAN J:   But not limited to that.

MR NIALL:   But not limited to that.

CRENNAN J:   Having regard to the public interest.

MR NIALL:   Of course.  That is not the content of the public interest.  It is an assessment process that has to take place in the circumstances that are identified, namely, no taking to another country and a person claims to be a refugee seeking asylum.  But, having completed that process, ultimately the public interest needs to be applied.

GAGELER J:   Can I just go back to your three propositions?

MR NIALL:   Yes, your Honour.

GAGELER J:   Do the first and third come down to saying the Minister had, in this case, in fact commenced consideration?

MR NIALL:   Yes, your Honour.

GAGELER J:   The Minister having in fact commenced consideration, the Minister was obliged by section 46A to complete the consideration personally.

MR NIALL:   That is so.

GAGELER J:   Can you expand on the second point which related to 4002?

MR NIALL:   In fact this assessment that took place in 2011 and then the fact that it was not referred to the Minister relied in part – and we would submit a significant part – on the failure, or the understood failure, of the plaintiff to meet Public Interest Criterion 4002.  Public Interest 4002 was identified as not being a valid criterion that could be imposed by regulation on a protection visa and we infer that by reference to – or it is manifest by reference to the terms of the basis of the policy by which it was not referred and the letter from the Department of 24 April recording the fact that it had not been referred, in the language there expressed which, in terms, identifies 4002.

Now, the defendants say that there were two independent bases and the other independent bases were simply the existence of the security assessment, but the existence of the security assessment had no significance of itself other than potentially the source of an evidentiary matter to the criteria under the Act for the granting or withholding of a protection visa.  So that is why at page 214 the observation that one of the public interest criteria that must be satisfied is that you have not been assessed by 4002.

FRENCH CJ:   There has been no suggestion, has there, that the existence of a security assessment feeds into the general public interest overlay?

MR NIALL:   Not as we apprehend it.

HAYNE J:   Can I take you back to an area that you have already dealt with in your submissions but I need to understand better than I presently do.  I understood your submission to be that at the end of the process commenced by RSA, if that process revealed that the person concerned would meet the criteria for grant of a protection visa, relevantly would meet the valid criteria for grant of a protection visa, the Minister might nonetheless on other considerations conclude that 46A(2) was not engaged. 

Now, the point I need to understand is this.  What weight, if any, is that giving to the fact of detention, prolongation of detention while a process is undertaken, a process which, so far as presently I understand it, is a process directed, at least the documents suggest, a process directed and directed only to satisfaction of what then were understood to be the valid criteria for a protection visa? 

Is the position that the Minister, having prolonged the detention of a person for the undertaking of a process of that kind may at the end of it say, “Well, that process came out in your favour, but for altogether other reasons, no, I will not exercise the 46A power which has led to your being detained for whatever period it took”.  Now, that is a proposition which I think needs to be brought to the surface and explored.

MR NIALL:   Our submission is that the prolongation of the detention is relevant to the engagement of 46A and 198 at the conclusion of a lawful and valid process, by which I mean procedurally fair in addressing the legal questions as we would posit them.  We would submit that the public interest position would be large enough to accommodate a declining to lift the bar but we recognise that in the particular context the two must, or could, be read together so as to limit the power in section 46A.  The difficulty in circumscribing the width of the language in 46A(2) and the concept of public interest is a factor which would tell against circumscribing the power in 46A(2).

FRENCH CJ:   Is the range of matters that the Minister could consider relevant to the public interest constrained in any way by the process that has been undertaken?  For example, could the Minister at some point say, “Right, I have decided to introduce a new policy, there is going to be a quota on the number of offshore entry persons from Sri Lanka for whom I will left the bar”, perhaps even towards the end of the RSA process or after the RSA process has been completed, in favour of the applicant?  I am using that as an example to ask is there a constraint by reason of the process?

MR NIALL:   We would submit there is and the constraint is the constraint imposed by the fact of detention and the reason for which 46A was inserted into the Act which was as a companion provision with 198A to allow processing and protection.  To use public interest in a way which was to undermine or be inconsistent with that process would undermine the purpose for which section 46A was introduced and by that process of statutory construction the constraint would operate in relation to the public interest.

FRENCH CJ:   Well, the public interest is at least constrained by the scope and purposes of the Act, I suppose.

MR NIALL:   Yes.

FRENCH CJ:   The question is how precise the constraints that that might impose.

HAYNE J:   Can we point the question up in this way?  Assume there is no difficulty about removing a particular applicant.  Let us take a person who is an unlawful non‑citizen who comes from New Zealand.  Let us take an easy example of that kind.  No question about removing them to New Zealand.  They are a New Zealand national.  Can the Minister – if that person comes ashore in Christmas Island – cause them to be detained for the purpose of undertaking the RSA process which, let it be assumed, takes a week, or no more than that?  But then at the end of that – assume it comes out in favour of the person concerned – I have probably, thereby, insulted a friendly nation – but assume it comes out in favour of the person concerned, can the Minister then turn around and say, well, you have been detained for the purposes of that process, but now, no, remove.  That seems to be detention at not only the behest of the Executive but it may, perhaps, wear a rather larger and less congenial face also.

MR NIALL:   We do submit that 46A is constrained by assessment and removal and, therefore, constrained by detention.  If there is detention for a purpose, namely, determining whether or not the person would fit within the scope of a protection application in this statutory scheme, then it would subvert the scheme to detain for that purpose and then frustrate the achievement of that purpose at the end.  So the public interest can be read down in that way – linked, as it is, to detention and the purpose for which detention may occur.

CRENNAN J:   Are you saying then that on one view you have to have a section 46A(2) decision?  You cannot leave that aspect of the process constructively undetermined, as it were.  That gives rise to a legal defect on this analysis.  So even though there is nothing compellable in relation to reviewing the result, the process has to be completed.

MR NIALL:   We do submit the process has to be completed.

CRENNAN J:   I mean, that is where mandamus might come in of a very limited kind.

MR NIALL:   It may.  We have seen the operation of the constraint at the other end – 198 – that you were detaining someone for a particular purpose.  It is accommodated within the statutory scheme because it leads to the consideration of whether or not the person should apply for a protection visa.  The person is identified as having someone for a protection visa.  To refuse a visa or refuse the permission to get the visa in those circumstances, or to not even come to the question, would not ‑ ‑ ‑

CRENNAN J:   It means a decision that has to be made as part of the process has been left unmade, if I can put it that way.

MR NIALL:   That is so.

CRENNAN J:   That is why I was talking about constructively unexercised.

MR NIALL:   Yes, that is what we say.  There is some support for the proposition in the Full Court of the Federal Court in SZQRB 210 FCR 505, which is in our authorities, a judgment of five members of the Court, and there is consideration of the judgments of this Court in M61 and M70 at page 544, paragraph 200.  Justices Lander and Gordon identify some propositions which their Honours consider can be derived from M61 and M70, and I will just note those if your Honours please.  But if your Honours go to 269, perhaps 267, and this is a case where at issue was an ability of an injunction to issue to stop removal, and at 267 their Honours ‑ ‑ ‑

FRENCH CJ:   What page was that?

MR NIALL:   Page 554.

FRENCH CJ:   Thank you.

MR NIALL:   So this was a case that differed somewhat from M61 in the sense that there was an expressed intention by the Minister to remove - your Honours will see that in 267 - without obtaining an ITOA assessment, and the ITOA is an assessment of the complementary protection obligations rather than directly the Convention obligations, and the Minister said in his decision of 21 September that regardless of whether the assessment was factually or legally correct he intends to remove.  Their Honours say:

In other words, the Minister threatens to remove SZQRB from Australia even if SZQRB is a person to whom Australia owes protection obligations and in contravention of Australia’s international obligations.

In the last sentence of 269 their Honours note:

The Migration Act does not authorise the detention of an unlawful non‑citizen for the purpose of an assessment of that kind which is then abandoned and the unlawful non‑citizen is then removed.

Once the Minister has detained an unlawful non‑citizen for the purpose of assessing that unlawful non‑citizen’s claims for protection, the Minister must complete that assessment before the Minister removes that non‑citizen from Australia.  The Migration Act assumes that the Minister will comply with Australia’s international obligations . . . before the Minister allows a non‑citizen to be returned . . . 

That is not to compel the Minister to exercise any of the powers under s 46A . . . It is to simply require the Minister to comply with the Migration Act, which makes detention lawful for the purpose of assessing an unlawful non‑citizen’s claims for protection.

Now, in that case that holding supported an injunction and a declaration, or was part of the reasoning to support the declaration and the injunction.  Justice Flick expressed concurrence at 342, and ultimately an injunction issued against the Minister to enjoin removal.  So, their Honours there, in our respectful submission, using M61 and M70, approached it not so much as a mandamus question, but as an injunction enjoining removal and we would submit that the consequence of which we have outlined, but it may be that the consequences of the errors which we have identified would lead to a limited form of mandamus to complete, but constructively, failure to exercise the decision in 46A.

That is what I wanted to say orally about the first general proposition dealing with the process that was adopted in relation to the plaintiff.  If it is convenient, I will then take the Court to the construction question in relation to the continued detention.

FRENCH CJ:   What would the form of the order be if it were mandamus?  What would the Minister be required to do to complete ‑ ‑ ‑

MR NIALL:   To complete the consideration.

FRENCH CJ:   To complete an assessment of whether the person would be eligible for the grant of a protection visa in the event that he lifted the bar, is that how it works?

MR NIALL:   That would be the substance of it, to complete the assessment.

FRENCH CJ:   And then the question is, is there any other consideration?  I think he accepted that there was, albeit a constrained one, the public interest consideration as to whether or not the bar would be lifted.

MR NIALL:   That is so.  Of course, in the absence of such an order, the high point of the stated case is paragraph 23A of the case stated, which is at page 32 of the special case book, where “In the event that the Court declares” an error, what is said is:

consideration would be given by the Department . . . to whether the Plaintiff’s case should be referred to the Minister for the possible exercise of his power –

Now, that provides no basis – putting aside mandamus, of course ‑ but no basis that that proposition in 23A will address the errors for which we have identified because the ball is in the Minister’s court by virtue of his personal power under section 46A, and one of the major errors is this barrier that the policy erects between conducting an assessment process and then not providing information ‑ ‑ ‑

FRENCH CJ:   Well, the position is though he has actually through his departmental officers undertaken this assessment process because the plaintiff is being held in detention for that purpose.

MR NIALL:   That is so, your Honour, but ‑ ‑ ‑

FRENCH CJ:   He has put his foot in the water of 46A.

MR NIALL:   But he has also said, I do not want to hear any more, I do not want to hear the results, or I do not want to hear anything about this plaintiff in certain circumstances, and all 23A does ‑ ‑ ‑

FRENCH CJ:   I am just going through the legal characterisation process for the purpose of identifying to whom mandamus is directed and what it says.

MR NIALL:   It has to be directed to the Minister, but in the absence of mandamus on the basis, for example, the Court said that the non‑compellable power in 46A would not support mandamus, even of the limited type of which I have been making submissions, the observation that the Department might refer or might not refer something does not at all address the problem which we have identified in our submissions and it would mean that the continued detention is not for a statutory purpose or authorised, and on that basis it would be unlawful.

Can I now turn to the construction of 189, 196 and 198 of the Act?  Can I start immediately with the text, and start with section 196?  The language of section 196 requires that a person detained under 189 – and, in our submission, the plaintiff was originally detained under 189(3) and then 189(1) –

must be kept in immigration detention until –

and we emphasise the word “until” –

she is removed from Australia under section 198 –

Putting aside the other subsections for the moment, and moving over to 198(2), that power or duty requires that the officer:

must remove as soon as reasonably practicable –

the person to whom the provision applies.  So immediately one sees some temporal considerations.  The first is that the non‑citizen be kept until the event in (a), and that event must occur “as soon as reasonably practicable”.  So there is both a temporal limitation found in the combination of sections, and also attention is directed to the concept that removal will be reasonably practicable, that is, that it can be achieved and can reasonably be achieved.

GAGELER J:   Does not the language “as soon as reasonably practicable” suggest that reasonable practicability may be something in the future?

MR NIALL:   Yes, but not something which has no real likelihood or prospect in the reasonably foreseeable future.

GAGELER J:   Is that the line that you draw?

MR NIALL:   It is, if your Honour pleases.

HAYNE J:   And what is the textual footing for that?  Is it reading the word “until” in 196(1) as connoting purpose, because the knife in it – so that you know there is a knife coming – the knife in it is how does that work with 196(1)(c)?  You cannot have purpose, can you, reading “until” as connoting purpose in connection with 196(1)(c), can you?

MR NIALL:   We identify “until” as identifying a time period that is coming.  The time period is given some further content in 198(2).  “Until” does not mean unless, that is, it does not say, must be kept in detention “unless” one of the things happen in paragraph 196(1)(a) to (c).  Now, just as a matter of construction, the word “until” can be constrained.  In the judgment of the Court in Koon Wing Lau 80 CLR at page ‑ ‑ ‑

BELL J:   It is at page 533.

MR NIALL:   Yes, thank you, your Honour.  The text of the relevant provision here can be seen in a couple of places but conveniently in the judgment of Justice Dixon at page 581, where the text of the relevant provisions are identified.  Section 5 deals with the making of an order for deportation and section 7 provides:

“A deportee may‑(a) pending his deportation and until he is placed on board a vessel for deportation . . . be kept in such custody as the Minister or an officer directs.”

Sir Owen Dixon, in responding to an argument that the provision was invalid as authorising indefinite detention, notes at about point 5 of the page that:

The language is imperative.  In s. 7(1)(a) I think that the words “pending deportation” imply purpose.  The two provisions together mean that a deportee may be held in custody for the purpose of fulfilling the obligation to deport him until he is placed on board the vessel.  It appears to me to follow that unless within a reasonable time he is placed on board a vessel he would be entitled to his discharge on habeas.  In these circumstances the provision is, I think, a law with respect to the removal of the alien or refugee and falls within the respective powers justifying that removal. 

So, in our submission, his Honour, in very similar structural provision, identified that the word “until” connotes within a reasonable time and if it is not so done a writ of habeas would issue.  Justice Williams dealt with the submission at page 586, about point 6 of the page where, after referring to the section, his Honour says:

The Act does not provide that a deportee shall be deported from Australia within a specified period.  It was submitted that under this provision a deportee could be kept in custody indefinitely and never deported, so that it is not a law with respect to the deportation of aliens at all but a law which in substance and effect authorizes the indefinite incarceration . . . a deportee may only be kept . . . until he is placed . . . so that, if it appeared that a deportee was being kept in custody not with a view to his deportation but simply with a view to his imprisonment for an indefinite period, the custody would be illegal.

Now his Honour is identifying there, it was a discretionary detention, this concept of with a view to his deportation.  Now, that is not just the existence of the purpose but the ability and intent to give effect to it.  Very similar, in our respectful submission, to the construction favoured by Chief Justice Gleeson and Justice Gummow in Al‑Kateb, and to similar effect, page 555 in the judgment of the Chief Justice where his Honour down at point 8 of the page notes the submission of invalidity based on “unlimited imprisonment”, referring to various authorities about the ability to remove an alien, and over on 556 his Honour the Chief Justice says:

Section 7 does not create or purport to create a power to keep a deportee in custody for an unlimited period.  The power to hold him in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls.  If it were shown that detention was not being used for these purposes the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy.

Now, again, at one level his Honour is identifying the existence of purpose but plainly, in our respectful submission, there must be some capacity to place as a real probability or possibility, as a practical reality, the placing of the deportee on a vessel.  Were that aspect to be frustrated, it would be no answer for the Minister to say, well, I am simply waiting for the unarrivable ship which there is no reasonable prospect of it arriving in the reasonably foreseeable future because that would authorise contrary to the approaching Lau indefinite detention.  That authority provides, in our respectful submission, a good guide to the textual construction in 196 and 198; in a sense, section 7 joined the two together.

The second point which we make about the text is that it proceeds on an assumption that removal can be achieved.  Now, not only is the language of reasonable practicability used in 198(2), but it is built on an assumption that in international discourse a person will be entitled to return to his or her country of nationality and that that country of nationality would be expected to take them, so the concept of practicability has to be seen in that understood context.

In M70, if your Honours would turn to it at 244 CLR 144 at page 190, in the judgment of four members of the Court, starting at paragraph 91, at this point their Honours were considering the construction of 198, and 92 identifies as part of that construction exercise that:

Ordinarily, Australia would look, in the first instance, to a person’s country of nationality to receive that person.  Australia would do that on the footing that it has long been accepted, as a principle of international law, that the national of a country has a right to re‑enter.

It is a “principle of customary international law”, and then there is the qualification in paragraph 93.  So the assumption of reasonable practicability is not one that is just imposed but one which is built on the context of the removal power.

KIEFEL J:   Can you say that there is no real prospect of her removal to a safe third country when the question of resettlement in India seems not to be concluded?

MR NIALL:   The evidence at least gets to what we will say is the sufficient point of no real likelihood or prospect of removal in the reasonably foreseeable future.

KIEFEL J:   How do you say that?  The process has not been concluded, has it?  The Department was considering whether to take further steps to see if it was possible.

MR NIALL:   None of those steps have to date yielded any success and the defendants identify their position at paragraph 13 of the defendants’ submissions.

KIEFEL J:   The matter, as far as we are concerned, concludes with the letter from the plaintiff saying that the family members are refugees in India, they have no right to sponsor, but she does not feel comfortable asking her family.  Has there been any inquiry made of India?  I am looking at the special case book, page 298.  That seems to be the last piece of information that we have.

MR NIALL:   There is no – just looking to see – perhaps I will return to it – whether India was one of the countries.

HAYNE J:   Well, there are some confidentiality issues floating around in all of this, which we need to be quite sensitive to.

MR NIALL:   Yes, I will just identify that in a moment if I may, but of course the Department has had information about that country since the very beginning and the defendants’ position, who are in charge of those inquiries, is revealed at paragraph 13 of their written submissions, where there is the submission that:

It would be open to the Court to conclude, on the facts presently known, that there is “no real likelihood or prospect of removal in the reasonably foreseeable future” –

We would invite the Court to make that finding on the basis of the evidence and that submission by the Commonwealth.

FRENCH CJ:   Now, your constructional approach in relation to 189, 196 and 198 would be the same if she were in the position of having requested removal and the various inquiries and so forth had been made.

MR NIALL:   Yes, your Honour.

GAGELER J:   Mr Niall, can I just ask how it would work practically?  Now, you say there being no real prospect of removal in the reasonably foreseeable future, there is no continuing power to detain so the plaintiff must be released into the community.  Now, if the plaintiff is then walking down the street and runs into a migration officer, does that migration officer have the duty to detain her under section 189?

MR NIALL:   I will start from a slightly anterior point.  Section 189 forms part of the trilogy of provisions all directed to purpose.  So it only authorises and it is expressed as a reasonable suspicion because there may be circumstances in which you might not know whether the person is liable to be removed, might be a citizen in fact, but it has got to be for that purpose, so that is why it is based on reasonable suspicion.  If that purpose is not available, then the arrest power is no longer available.

Now, it may turn on the knowledge in a particular case of the officer as to whether the suspicion that the officer had was reasonable in the circumstances where the power is not enlivened in the absence of a purpose, but in point of principle, 189 is not available if it is not in aid of the ultimate purpose of removal.

CRENNAN J:   It would be possible, would it not, for – to be this combination of circumstances, removal potentialities not being quite exhausted, however one puts it, but inquiries are being made.  In relation to a person held in detention in those circumstances there is no bar, is there, to that person being held in what is now called community detention?  Is there?

MR NIALL:   No – the subject of a residence determination?

CRENNAN J:   Yes.

MR NIALL:   So there would be no bar to a residence determination, subject ‑ ‑ ‑

CRENNAN J:   Because the person would still be in detention for the removal purposes, purposes of exhausting removal potentialities.

MR NIALL:   Subject to the existence of the power of the Minister personally to exercise it and it is remaining in detention.

KIEFEL J:   The Minister has previously exercised that power under section 197(a)(b) in this case.

MR NIALL:   Correct, your Honour, and then revoked it upon the issuing of the security assessment.  But that potential restraint which is perhaps less onerous is still a restraint, it is still a deprivation or interference with liberty.  It still requires statutory authority and it would still need to be purposive.  If there is a disconnect between the purpose, either because the purpose is not there or it is not reasonably – the relationship of its attainment is not established, then it would not matter on our argument which form of detention the Minister chose in terms of the legality of the detention.  Just before I move on to something - Justice Kiefel, there is also the additional finding in paragraph 71 of the special case in relation to the views of the ‑ ‑ ‑

KIEFEL J:   Yes, thank you.

MR NIALL:   Now, the constructional choice which we identify, and which was identified by their Honours Chief Justice Gleeson, Justice Gummow and Justice Bell, is a choice between, on the one hand, if it never becomes practicable to remove, the detainee must spend the remainder of her life in detention, and if removal ceases to be a practicable possibility, the detention must cease for as long as the situation continues.  Your Honours will see that constructional choice in M47 at paragraph [117].

KIEFEL J:   I am sorry, what paragraph was that?

MR NIALL:   Paragraph [117], your Honour.  Now, if that be, and we respectfully submit it is the constructional choice that is available, the principle of legality has special force because it requires that in order for the first of the two constructions to appear, it must appear with irresistible clarity, and the absence of considering the point and the absence of direct language, in our submission, means there is a failure to evince the necessary clarity.

FRENCH CJ:   Are you saying there is – I am looking at 48 of your written submissions – a lacuna which you refer to, I think, as the interstices, which is simply filled by common law freedoms.

MR NIALL:   That is so, your Honour, and that is what I wanted to turn to immediately, which in a sense separates our construction with that of the defendants, and that is the starting point.  The starting point for the defendants appears to be that in order to engage with liberty for an alien you must first identify permission.  So the necessary precondition for liberty is a grant of permission ‑ ‑ ‑

FRENCH CJ:   Permission to enter and remain.

MR NIALL:   Precisely.  In our submission, that is to misconstrue the starting point.  The starting point is the right to liberty, and the right to liberty is the same for an alien and a citizen subject to the availability of a particular purposive exception.

KIEFEL J:   I do not understand that, I am sorry.  How is it the same for an alien?

MR NIALL:   The right to liberty is more qualified for an alien because of the facility of the State to legislate for its constraint by reason of the status of the alien and the circumstances of a rendering.  The question for the doctrine of legality is not the width of the power to interfere with the right; it is a question of the construction of the statute that purports to do so.  So the starting point is, in the absence of legislative authority, there is a right to liberty for both alien and citizen.

KEANE J:   In the case of an alien it is the right to be at liberty in Australia, is that what you are saying?

MR NIALL:   Yes.

KEANE J:   That is the starting point.

MR NIALL:   That is the starting point.

KEANE J:   The starting point is the right to be at liberty in Australia.

MR NIALL:   Once you are within the territory.

KIEFEL J:   How can you say that when the Migration Act’s purpose is to deal with the question of entry into Australia?

MR NIALL:   The question is how the Act operates in respect of an alien who is within the territory, relevantly, and the point I am making is that ‑ ‑ ‑

HAYNE J:   What are we to make of the paragraph in the stated case that says that the Department “would consider a declaration made by the Court”?  It seems rather carefully drawn.  I just need to know, Mr Solicitor, how carefully drawn.  Is it saying, yes, we will consider it and ignore it?  Surely not.

MR GLEESON:   It is not saying that, your Honour.

HAYNE J:   Thank you. 

MR GLEESON:   Your Honours, the final matter was the question of relief.  We dealt with that in the written submissions at paragraphs 78 to 81.  What was said in the last sentence of 79 was intended to make perfectly clear what I have just said in answer to your Honour’s question.  Paragraph 80 raises the plaintiff’s claim that they can succeed, both on finding an error in the process and also obtain an order to habeas.  That, we submit, would not follow if the plaintiff succeeded in some relief such as declaratory relief.  The consequence would be that the process was required to continue in accordance with law and that would explain the character of the detention.  I am not sure if your Honours had any other questions for me.

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

MR NIALL:   If the Court pleases, can I firstly just address two matters raised with me?  Justice Gageler asked about the consequence of non‑compliance with a condition.  Can I just give your Honour a reference to section 235, which makes it an offence not to comply with the condition in relation to work?  So there is one condition.  The rest do not have that criminal element to it.  The other matter was something that Justice Kiefel raised with me about the definition of offshore entry person and its continuation post‑removal.  The matter was considered by Justice McKerracher in Sadiqi v Commonwealth (2009) 181 FCR at paragraphs 184 to 186.

FRENCH CJ:   Was that Justice McKerracher, was it?

MR NIALL:   I beg your Honour’s pardon, it was.  In terms of reply, our learned friend in answer to a question from your Honour Justice Hayne addressed the definition of security applied by ASIO and whether it was as broad as the ASIO Act or narrower.  If I could take your Honours to court book 264, which is effectively extracted in other parts of the court book, but the Court will see it in a slightly fuller form, and your Honours will see in 1, paragraph a and b the recommendation which follows section 35 of the ASIO Act.  Then footnote 1, which is at the end of paragraph (a), refers to security.  In the footnote, it says:

Security for the purpose of the Migration Act and Regulations has the same meaning as security in section 4 of the . . . ASIO Act –

Now, security, of course, is not defined in the Migration Act, and has the expanded definition in section 4, and paragraph c and d at the bottom of that page, to which my learned friend the Solicitor referred, particularly in paragraph d, there is a reference to Australia’s security which picks up the statutory definition included in its extended form in section 4.

In support of the submission that Al‑Kateb should not be reopened, can I hand to the Court an extract of the judgment of the Court in Babaniaris 163 CLR in particular at page 13 in the judgment of - where Justice Mason at page 13 deals with the considerations which might attend overturning authority in relation to statutory construction.  I will not read it to the Court but, in our submission, it is applicable.  Your Honours will see in the middle of page 13:

The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute.

In that regard and in this context we would direct attention to Justice Gummow’s reasons in M47 at paragraphs 118 to 120 where his Honour deals with the question of intention. 

Finally, can I deal with the submissions advanced in relation to segregation as an available purpose and make this submission?  Once entry, that is physical entry, has been effected into the country the purpose moves from detention for the purposes of removal.  Segregation does not authorise detention on some assumption that it is for the purposes of placing the person in an identical position to the person who would have been denied entry.  In other words, the fact of entry confers protections on the person which are not conferred on someone who is outside of the territory and physical presence is a significant factor which differentiates a person who has been denied entry as someone who is within the territory and the circumstances of the plaintiff gives a good context for that because it is not right to say that she has no level of integration in the community in circumstances where she is married and has children, one of which is a citizen, two of which are permanent residents.

So the fact of detention does not mean that there is segregation to the point of all exclusion and in our submission the only point justifying detention is the limited one of removal once the person has entered and to that effect, can we just finally direct the courts or remind the courts of the passage in Lim 176 CLR at 32 where in the joint judgment it is identified by reference to 51(xix) the:

authority to detain . . . for the purposes of expulsion or deportation . . . in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power . . . Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Chapter III’s exclusive vesting . . . to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth.  When conferred upon the Executive, it takes its character from the executive powers -

Now, in our submission, that stands as authority that once one is moved to the question of no longer considering permission as available option for the non‑citizen, the question is and only is whether the detention is for the purposes of deportation.  If it is outside of that, and the purpose of deportation necessarily limited by the capacity to achieve it, if it is outside of that it falls out of the limited extent of authority which their Honours identify.  They are the only matters in reply, if the Court pleases.

FRENCH CJ:   Thank you, Mr Niall.  The Court will reserve its decision.  The Court adjourns to 9.30 on Wednesday, 11 September in Perth.

AT 3.55 PM THE MATTER WAS ADJOURNED