Plaintiff M96A-2016 & Anor v Commonwealth of Australia & Anor

[2017] HCATrans 49

[2017] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M96 of 2016

B e t w e e n -

PLAINTIFF M96A/2016

First Plaintiff

PLAINTIFF M96B/2016

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MARCH 2017, AT 10.18 AM

Copyright in the High Court of Australia

____________________

MR C.J. HORAN, QC:   May it please the Court, I appear with MS F.I. GORDON, for the plaintiffs.  (instructed by Victoria Legal Aid)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR P.D. HERZFELD, for the defendants.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Horan.

MR HORAN:   Your Honours, the powers conferred by section 198B of the Migration Act are novel.  The section confers power to – on Commonwealth officers, to bring a person from another country to Australia for a temporary purpose.  This proceeding concerns not the exercise of those powers themselves but the interaction of section 198B with the powers conferred by sections 189 and 196 to detain a non‑citizen who is in Australia without a visa.

The plaintiffs submit that the detention of a transitory person who is brought by the Commonwealth to Australia under section 198B offends the separation of judicial power under Chapter III of the Constitution. The involuntary detention of the transitory person in such circumstances cannot be characterised as an incident of the executive powers to exclude, admit or deport non‑citizens.

We say the case does not fall directly within the principles – it attracts the principles considered in the case of Chu Kheng Lim but it does not fall directly within the recognised qualifications in that case in that the purpose of the plaintiffs’ detention is neither to consider or determine an application for permission to enter or remain in Australia nor to facilitate or give effect to their removal from Australia.

The circumstances in which the Executive may be authorised to detain a person in custody without a judicial determination of guilt are limited and, although the exceptional cases are not closed, those categories should not be extended or supplemented to cover the present case.  So the ultimate submission of the plaintiffs is that their detention during the period they need to be in Australia forms part of the judicial power of the Commonwealth and cannot be validly conferred on the Executive. 

Now, the first topic that I wanted to cover was to begin with an identification of some of the key features of the legislative regime.  Turning first to section 198B, the section confers power on an officer, as defined in section 5, to:

bring a transitory person to Australia from a country or place outside Australia –

for a temporary purpose.  I will turn shortly to the definition of “transitory person”, but may I just note that the provision was inserted by amendments in 2002.  That is well prior to the more recent amendments in 2012 which introduced the current regional processing regime in Subdivision B of Part 8.  But after the introduction of that regime, the power in section 198B has been amended in a manner that significantly expands its scope and, although we do not necessarily make any concession about the validity of detention in the period prior to those amendments, we say that those amendments do affect or may affect the character and purpose of detention of a transitory person in Australia under the provisions as they apply now.

The launching point to consider the scope of the power is to look at the definition of “transitory person” in section 5, which I think is at page 27 of the reprint.  That definition now covers:

a person who was taken to a regional processing country under section 198AD –

with which the Court will be familiar from other cases.  It is worth noting that the provision also covers other classes of person which is to be expected because this definition predates the introduction of regional processing and the main categories are persons who were taken to another country under the former section 198A which was the power under which the Malaysian declaration was made.  There is also coverage of people who are taken to a place outside Australia under the Maritime Powers Act and then even a residual category of persons who were on board the MV Tampa in 2001, in the events that immediately predated the Pacific strategy amendments. 

Now, the coverage of that definition does not contain any express provision about whether a person may lose the status of “transitory person”.  There is no termination point at which a person is no longer a transitory person and then, on its face, outside the terms of the power conferred by section 198B.

In some ways that is akin to the definition of “designated person” under the provisions considered in the Lim Case, in which several members of the Court noted that there was no provision for the cessation of that status once a person had been classed as a designated person.  Now, in practical terms, there might be limits on the point at which the power under section 198B can be exercised in relation to a transitory person, both practical limits and legal limits, but the point to note is that all that is necessary to fall within the terms of section 198B is to fall within the definition of “transitory person”.

In connection with that, when first introduced – and this is one of the amendments I referred to earlier – the definition expressly excluded a person who had already been assessed to be a refugee for the purposes of the Refugees Convention.  By that exclusion, the power conferred by section 198B was effectively confined to persons whose protection claims were still being assessed offshore and could not be exercised in respect of persons whose claims had already been considered and accepted.

Now, in 2013, by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act, that restriction was removed and it is now possible for a person taken to a regional processing country to remain a transitory person for the purposes of section 198B even when that person has been assessed to be a refugee within Article 1A of the Convention. 

In passing, I would make two observations about how that lifting of that restriction sits with some of the observations made in Plaintiff M68, which was the case that dealt with the Commonwealth’s participation in regional processing.  It is noted at paragraph 5 of that case that a person in Nauru who had been assessed as a refugee would receive a temporary settlement visa, so their regional processing centre visa which initially but no longer required a person to be detained at the Regional Processing Detention Centre, that visa was transformed into what is called a Temporary Settlement Visa and that meant, by being accepted as a refugee, the person was no longer detained in Nauru, but also significantly was entitled to leave and re‑enter Nauru.

The second aspect of Plaintiff M68 which is relevant in this regard is that at paragraph 2 of the judgment of Chief Justice French and your Honours Justices Kiefel and Nettle, it is noted that the reference to regional processing ‑ in connection with regional processing, the reference to processing was taken to refer to the determination by the regional processing country of claims by UMAs to refugee status and, in that context, it was held that the Commonwealth could only participate in the detention regime in Nauru for so long as it served the process of processing in that sense, and that is at I think paragraph 47(e).  So, in other words, the Commonwealth could not itself participate in detention in a regional processing country such as Nauru beyond the point at which protection claims have been favourably determined.

Now, those persons are still within the scope of section 198B so that, although those persons are not detained in Nauru and can leave and re‑enter Nauru and the Court implicitly accepts in Plaintiff M68 that the Commonwealth cannot participate in their detention on Nauru, they still remain within the scope of the power to be brought to Australia and, in the Commonwealth’s submissions, detained in Australia.  Your Honour Justice Bell made observations to similar effect at paragraphs 77 and 101 in relation to the termination of processing.

The other limit on – original limit on section 198B which has been removed, which we say is significant, was contained in former sections 198C and 198D, and under those provisions the operation of section 198B was subject to a time limit of six months after which the transitory person could seek to have their protection claims assessed in Australia I think by making an application to the Refugee Review Tribunal, and that potentially led to the grant of a visa.

There were some specific qualifications on that for people who were unco‑operative and so someone could not simply delay their removal in order to bring themselves within that entitlement.  But, putting to one side unco‑operative detainees, under the original provision that was envisaged the person who was being processed offshore could be brought to Australia for a temporary purpose in support of that offshore processing but if they remained in Australia for longer than six months they could bring their processing onshore and make an application to the Tribunal which would ultimately lead to consideration of the grant of a visa by the Minister. 

Now, although it is unnecessary to consider the validity of detention under those powers that can more readily be seen as detention for the purpose of considering whether to grant permission to enter, certainly in relation to the period after the six‑month limit had been reached and the person was then held in detention pending assessment of their claim by the Refugee Review Tribunal. 

The next feature I wanted to touch on was the purpose for which a transitory person may be brought to Australia.  The section refers to a “temporary purpose” and it is common ground between the parties that those purposes are the subjective purposes of a relevant Commonwealth officer or officers and although the purposes encompass purposes that might be seen as being intended to be for the benefit of the transitory person, such as bringing someone to Australia for medical treatment, they remain purposes of the Commonwealth and they are also not expressly limited to purely beneficial purposes. 

So that apart from being temporary, in the sense of non‑permanent, there is no express limit on the nature of the purpose and the extrinsic material suggested some examples which included giving evidence in criminal proceedings but those examples were presumably intended to illustrate rather than exhaust the potential scope of the power. 

Apart from noting the temporary nature and the fact that the purpose cannot be foreign to the subject matter, scope or object of the Act, the defendants do not point to any clear limit on the purposes for which the power can be exercised.  A section does not provide any ready limitation.  It is clearly a power of potentially wide scope.  It can be exercised - taking, for example, the acknowledged purpose of bringing someone to Australia to give evidence in criminal proceedings, a power in those circumstances is really being exercised for – in circumstances which have traditionally been covered by particular visa classes. 

So the Act has always provided for criminal justice visas to enable somebody to enter or remain in Australia for the purpose of giving evidence in criminal proceedings.  But for this power the Commonwealth could not require someone to stay – well, I think there is power to give a certificate which might require them to stay to give evidence without being granted a visa, but in general there were mechanisms – there remain mechanisms to fulfil that purpose through means other than bringing a person from overseas to Australia.

Now, there is no reason why that purpose would be limited to criminal proceedings and another example might be bringing a transitory person to Australia to give evidence in civil proceedings to which the Commonwealth is a party, such as proceedings in tort against the Commonwealth for conduct at a detention centre. 

It may be at its widest the question might arise about whether the Commonwealth could even bring a person to Australia for the purposes of prosecuting that person for criminal offences such as offences relating to people smuggling which would, if it had that scope, be difficult to reconcile with the ordinary processes for extradition both under the Extradition Act and other international arrangements.  But the main point is that those purposes are very much at large and they are purposes of Commonwealth officers and purposes of the Commonwealth. 

The next point which flows from that is that a person brought to Australia by the Commonwealth under section 198B does not enter without permission, and we say this is critical to a consideration of the existing authority on the executive power to detain non‑citizens as an incident of the power to exclude or deport from Australia.  Section 42(2A) provides an exception to the general position that a non‑citizen must not travel to Australia without a current visa. 

Now, we say that the consequence of that is that a transitory person who is brought to Australia by the Commonwealth under section 198B does not need a visa to travel to Australia and enters Australia with the implicit, if not explicit, statutory permission and permission of the Commonwealth to enter.

Now, it is expressly provided that that does not affect the person’s status as an unlawful non‑citizen – that is in subsection 42(4) – but it nevertheless means that it is inaccurate to proceed from a premise that the person has entered Australia unlawfully.  So that rather than exercising its sovereign rights to exclude the person from Australia, the Commonwealth has exercised those rights to bring the person to Australia for a temporary purpose of the Commonwealth or of an officer of the Commonwealth.

The next key feature of the scheme is that while in Australia a transitory person has no right to apply for a visa.  That arises from section 46B.  The Minister does not have a duty to consider whether to exercise the personal discretionary power to allow a transitory person to make a valid visa application and in the present case the Minister has not embarked on any consideration of the exercise of that power. 

So we say, and I will come to this later, that the plaintiffs are not being detained pending the completion of – pending consideration of an application for a visa, nor pending the completion of the steps involved in the process of lifting the bar.

KIEFEL CJ:   But when the officer forms the view that the transitory person no longer needs to be in Australia for a temporary purpose there is a duty to remove them.

MR HORAN:   Yes, and in a sense that is where the nub of the issue between the parties is reached, is that what is the effect of that temporal limit on the purpose to detain before that point is reached. 

But my point for present purposes is that it is not detention pending visa consideration and it is not detention pending removal, and this will be an issue ‑ this is a contested issue between the parties but we say there is no duty to remove a transitory person from Australia until he or she no longer needs to be in Australia and this is the subsection to which your Honour the Chief Justice referred, section 198AH(1A) which suspends the operation of the obligation to take the transitory person to an RPC during that period while they need to be in Australia for the Commonwealth’s purposes.

So, we say the application of that limit requires, first, the identification of the temporary purpose for which the person was brought to Australia, although that may well be often a purpose held by different Commonwealth officers to the ones considering the question under 198AH(1A) but those officers will need to have regard to the subjective views of the officers who brought the person to Australia and then assess whether or not the need for the person to be in Australia for that purpose subsists, or is no longer the case.

It is not a question of assessing whether or not the purpose has been achieved.  It is a subjective view as to whether or not, irrespective of the achievement of the purpose, there is an ongoing need for the person to be in Australia for the temporary purpose for which the Commonwealth brought them here.

KIEFEL CJ:   When you talk about Commonwealth purposes, you are really saying no more than that it is a purpose that an officer of the Commonwealth has determined is appropriate.

MR HORAN:   Yes, and I use that as a shorthand, but as I emphasised earlier, that can be a purpose; we point out that the power does not depend on request or consent or acquiescence of the person the subject of the power, it is exercised at the initiative of the Commonwealth officer and in that sense ‑ ‑ ‑

KIEFEL CJ:   But it may be a response to a request or to a condition relating to the person.

MR HORAN:   Certainly, it is capable of covering situations in which there is an explicit request to be brought, for example, for medical treatment to a place which has better facilities ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR HORAN:   ‑ ‑ ‑ but it extends beyond that.  In the present case, to the extent that the facts give rise to the present controversy, irrelevant to the constitutional issue, it is a case where the plaintiffs were brought to Australia for the purposes of medical treatment.  It is not alleged in the pleading that that was done without consent but nor is it alleged that it was done – the question of consent is not traversed in the pleadings and so is not really raised on the demurrer.

KEANE J:   Except that your case has to be that even if there is a request, even if the transitory person is brought to Australia in response to her particular request, the detention here as a transitory person, for the purposes for which she has asked to be brought here, is unlawful.

MR HORAN:   Yes.  So, if the Commonwealth accedes to that request and decides to exercise the power to bring the person here, then it does so knowing that it has no power to detain the person here.

KIEFEL CJ:   Strictly speaking, it would follow that the Commonwealth should not accede to the request.

MR HORAN:   It does not necessarily follow from that.  If the Commonwealth were to be exercising – there are different questions in relation to the use of force or restraint, which section 198B contemplates, as to whether or not that would raise questions of legality.  In a sense, they are not relevant directly here because there is no direct challenge to the validity of the action of bringing the plaintiffs to Australia, on the facts of this case.  But that does not say anything about the question of the authority to lawfully detain in Australia once they are here.

KIEFEL CJ:   Yes.

MR HORAN:   In essence, we say, the scheme contemplates something akin to granting a visa to the transitory person, here the plaintiffs.  If the Commonwealth accedes to that request, brings the plaintiffs to Australia with permission to enter, or at least to travel to Australia without a visa and implicitly to enter and, perhaps even more implicitly, to remain in Australia, pursuant to that the consequences of that power it is tantamount to, in substance, granting permission akin to what could otherwise be done by granting a visa.

NETTLE J:   Cannot the Commonwealth grant conditional permission to enter, with the condition being that they be detained?

MR HORAN:   We say no. 

NETTLE J:   Because?

MR HORAN:   We say because that would be in – certainly if it were done involuntarily.

NETTLE J:   …..say involuntarily.  If someone asks to come here, the Commonwealth says, “Yes, you may so long as you remain detained”.

MR HORAN:   If it was not involuntary then it probably would fall outside the general proposition in Lim, so it would be accepted as a condition of entry.  And there may also be a power to regulate or control the presence in Australia of transitory persons short of imposing involuntary detention, which would not offend Lim, but that is not the scheme that the Commonwealth has pursued.  It is, in a blanket sense, prescribing that anybody who is brought to Australia under this section must be detained for so long as they need to be in Australia for the temporary purpose unless granted a visa, but there is no right to apply for a visa and no duty to consider whether or not to grant a visa.

So, in essence, the default position of someone brought here under the Act is that they must be detained. We say that, just as one could not impose a – bring someone to Australia and force a condition on them that they be involuntarily detained as a condition of entry, here if someone is brought to Australia, irrespective of consent, then their detention in Australia bears the character of imprisonment.

NETTLE J:   Is not your real complaint that there is no power to bring people here in these circumstances without their consent?

MR HORAN:   That is not our specific complaint but if that were a consequence of – I do not think our argument is driven to limit the power of the Commonwealth to bring persons here in a manner which would not result in their involuntary detention in Australia but there are different questions as I alluded to earlier about whether you could ever exercise coercive power in order to bring the person here which would involve a necessary restraint and detention in the process of bringing which might also offend Lim if it were done without consent.

EDELMAN J:   How does the lack of consent fit with section 198(1)?

MR HORAN:   We say that that section, on its proper construction, does not apply to persons who are governed by the Subdivision B regional processing regime.  They are covered by the – they are exhaustively covered by 198AD and in connection with 198AH.  Now, I was going to come next to that question so perhaps I can ‑ ‑ ‑

BELL J:   Just to understand the picture as you put it, a transitory person who requests in writing to be removed from Australia, even if the circumstances in terms of the temporary purpose remain present but the person submits an application in writing, your contention is that there is no requirement under the Act that they be removed?

MR HORAN:   Yes, and that is – unless it leads to an officer forming the view, based on that request, that they no longer need to be in Australia for the purpose.  So it is governed by the 198AH(1A) temporal limit and it does not have a facility to, in effect, thwart the reason why – potentially, at least, to thwart the reason why the person was brought to Australia by requesting their immediate removal.

BELL J:   Well, now, you and the Commonwealth are at odds in that regard.  If, contrary to your argument, 198(1) applies, what does that do to your case?

MR HORAN:   It is not fatal to our case because part of – one of the reasons we say it should not be construed as applying relates to the difference between the general removal power to any country and the specific power to take to a regional processing country. 

Now, the consequence of that in a case such as the present is that if someone has a protection claim and has been taken to a regional processing country for the processing of that claim and they are brought to Australia during that period, if they were to request removal under section 198(1) they could be taken to any country, not just back to Nauru or the regional processing country, and they could even, because the Commonwealth has now removed any restriction derived from non‑refoulement obligations on the general power to remove, they could even be removed back to the country in respect of which they claim a well‑founded fear of persecution. 

We say that, first of all, is a reason not to construe the section as being applicable to somebody who has arrived and been taken for processing in a regional processing country but the second level is that if that is not correct and the power applies, it is not one that is, in practical terms, capable of being resorted to by someone in the position of the plaintiffs unless they withdraw and abandon all claims to protection, notwithstanding that their claims have not yet been determined in Nauru. 

That would be inconsistent, we say, with the whole idea of the regional processing regime, acknowledging that as the Court pointed out in Plaintiff S156 that the Act does not say anything about what will happen in the regional processing country but, nevertheless, the scheme is there to enable claims to be processed in that country.

One of the factors that is taken into account in designating those countries is whether or not the country will comply with non‑refoulement obligations.  If someone were brought here for a temporary purpose and were forced to give up their protection claims in order to request their removal it would really set at naught the ongoing processing of those claims in the regional processing country.

So it is both a legal reason that bears upon the construction that we contend, but even if it does not go strictly to the availability of that power to request removal, it goes to whether or not it is in fact a real safety valve of the nature that in Lim’s Case the joint reason is regarded as what they described as the ability to bring to an end the detention.  Here it would not be really an ability to bring to an end the detention unless the plaintiffs abandoned forever their claims to protection.

KIEFEL CJ:   When a person such as the plaintiff is brought into Australia under section 198B, is not that person an unlawful non‑citizen to whom section 198 applies?

MR HORAN:   They are not because section 198(11) excludes persons to whom 198AD applies.  This does give rise to a problematic issue of construction.  It is in a way a lacuna, an ambiguity in the interrelationship between section 198 on the one hand and Subdivision B on the other.

If someone arrives in Australia as an unauthorised maritime arrival, there is no question that, if there is an available regional processing country, then the person must be taken to that country or one of those countries unless the Minister makes a determination under section 198AE.  The purpose of this exclusion in subsection (11) was to make sure that the general powers of removal did not undercut the gateway to the regional processing regime.

EDELMAN J:   It does not work the other way around, though.  Section 198AD is not excluded from the operation of 198.  In other words, if 198(1) were to have effect, then 198(1) could still be subject to 198AD, could it not?

MR HORAN:   With respect, I think that would reach the same result that having requested the Minister or an officer would not be under a duty to remove as soon as practicable unless ‑ ‑ ‑

EDELMAN J:   It would be under a duty to remove as soon as practicable to a regional processing country under 198AD(2).

MR HORAN:   But only if the condition in 198AH(1A) were satisfied.  As soon as one goes to 198AD, one has to read it in light of that condition that it applies if and only if the person relevantly no longer needs to be in Australia.

EDELMAN J:   That is why I asked you first of all because 198AD is not subject to the same restriction as the 198(11) restriction.  It does not work in that direction as well, does it?

MR HORAN:   It is subject to a different restriction and that is that once one is prima facie within section 198AD and broadly speaking that is an unauthorised maritime arrival who arrived after the relevant commencement date, which I think was 13 August 2012, then they are to be taken to a regional processing country subject to the exceptions in AE, AF and AG, but AH is an additional limitation on the application of that obligation which applies specifically to transitory persons and it makes it clear that a transitory person who is a person relevantly brought back to Australia after having been taken to a regional processing country can only be taken to the regional processing country under section 198AD if the conditions in that section are satisfied.

So it is not that 198AD excludes section 198; it simply operates separately from section 198.  Where the lacuna arises, which might be a similar point to what your Honour Justice Edelman is raising, is that there is some ambiguity about how one applies subsection (11) in the light of section 198AH.  The defendant’s construction is that, while the person needs to be in Australia, section 198AH is not satisfied, and that means that section 198AD does not apply.

KIEFEL CJ:   Therefore 198(11) is not engaged.  Why is that not right?

MR HORAN:   Section 198 is not engaged.  Well, we say that cannot be right for the reasons we have given in our reply.  One is, it would enable someone brought here potentially without consent or acquiescence for, say, a Commonwealth purpose to give evidence in criminal proceedings to then as soon as they got here request to be sent back, and the Commonwealth will not have – it would render at nought the purpose of the officer in bringing the person here.

The second reason is the non‑refoulement consequence that it would enable removal ‑ simply by being brought here for a temporary purpose, the person would then become while they needed to be here subject to removal anywhere that they had a right of entry, including their country of origin, but as soon as they no longer needed to be here, that door would shut and they could only be taken back to Nauru.  So, it is a very anomalous result.

Now, we point in the explanatory memorandum to this section, which is the – it is on our list of authorities in the supplementary list, or perhaps it was in the original list.  It is the explanatory memorandum to the Migration Legislation Amendment (Regional Processing and Other Measures) Bill.  The relevant item was item 24 which added the new subsection (11), and at paragraph 101 of the explanatory memorandum, and on to 102, it is made clear that:

The purpose of this amendment is to clarify that the powers to remove . . . under section 198 –

do not apply to a person who is required to be taken to a regional processing country.  Then:

Where an offshore entry person –

who is now called an unauthorised maritime arrival:

is not a person to whom new section 198AD applies, because of new sections 198AE, 198AF or 198AG, the power to remove under subsection 198(2) –

so notice not (1), but 198(2) will be available.  But the point of that material is it shows that the purpose for this exclusion was to pick up the non‑application of regional processing by operation of those exceptions in AE, which is the Minister determining that the person is not to be subject to regional processing, AF and AG, which are to do with the existence and availability of a regional processing country.

But what is not mentioned at all in that extrinsic material is a person to whom there is a suspension of the obligation under section 198AD because of 198AH and, even in the drafting of the sections themselves, 198AH is not treated as the same – having the same function as the other exceptions because the terms of 198AD(1) render that section subject to AE, AF and AG but not to AH – AH is a very specific provision which suspends the duty while someone needs to be in Australia for the temporary purpose, and we say that all one needs for that situation is to look at subsection (1A) of 198AH.

The fact that a similar subsection has always existed in section 198 itself does not alter that conclusion.  The defendants I think make a submission that that is there to preserve the coherence of the regime for people while they are in Australia before they need to be returned, but in fact it is not there for that purpose at all.  It could never apply to a transitory person because that person as soon as they no longer need to be in Australia would be subject to 198AD and not section 198.  So the terms of section 198(1A) cannot be intended to cover unauthorised maritime arrivals who are brought here as transitory persons. 

What it is there for are the people who are transitory persons from before regional processing was introduced, the classes of transitory person that predate regional processing, and that limitation has been picked up and re‑enacted in relation to the transitory persons in section 198AH.  Interestingly, this might cut both ways, but if one looks at subsection (1B) and (1C) of section 198, they make more explicit that an unlawful non‑citizen who is not an authorised maritime arrival is governed by those sections. 

That perhaps cuts both ways because I am suggesting that that is the way in which subsection (1A) should be read also, that that covers an unlawful non‑citizen who is not an unauthorised maritime arrival because those persons will have been – if they are not excluded from 198AD through one of the three exclusions will be governed by Subdivision B and in a way that is analogous, perhaps remotely analogous, to the approach the Court adopted in the Malaysian Declaration Case, which was to say that former 198A was exclusive in dealing with sending persons to a declaration country to the exclusion of section 198.

One reaches a similar conclusion here that the regime for governing taking people to a regional processing country, which includes bringing them back and sending them between Australia and the regional processing country, is intended to be governed by Subdivision B, not by Subdivision A.  That is essentially the point at which we arrive in our construction argument.  But in answer to your Honour Justice Bell, it is not – it may be important in the constitutional argument but it is not essential because even if there is an ability to request removal, we say that would not of itself be sufficient in this case as it was in cases like Lim to convert an unlawful detention into an incident of executive power.  In part, that is linked to our submission that this whole regime is not premised upon a person seeking to enter Australia without permission.  It is dealing with people who are brought to Australia at the behest of the Commonwealth.

GAGELER J:   Can I just understand the submission?  I think it just comes down to this, that the class of transitory persons is larger than the class of unauthorised maritime arrivals and in respect of unauthorised maritime arrivals who are brought to Australia under section 198B, section 198AH applies to the exclusion of section 198.

MR HORAN:   Yes.

GAGELER J:   Yes.

MR HORAN:   The only qualification to that would be if the Minister makes a determination under section 198AE which ordinarily might be made before they were taken to the regional processing country in the first place, but there is no reason why that could not be done while they were in Australia for a temporary purpose and that, I think, would disapply or disengage Subdivision B in a way that would bring them back within section 198.

Usually, I would imagine if that is done, it would often be allied with a decision to lift the bar.  So, rather than to make a determination to exclude regional processing so that the person could be removed, it may be allied with an exercise of power to allow them to apply for a visa here but there may be categories of persons, and I think the Commonwealth refers in a footnote to one of the determinations that has been made which effectively ensures that persons who do not make protection claims do not get caught up in regional processing.

KIEFEL CJ:   But section 198AH cannot apply to a transitory person who is in Australia for the temporary purpose, whilst that purpose is being carried out.  Is that right?

MR HORAN:   Well, section 198AH applies but it disapplies section 198AD.

KIEFEL CJ:   Yes, that is right, yes.

MR HORAN:   We say, that governs when the ‑ ‑ ‑

KIEFEL CJ:   You are quite right, 198AH(1A) would apply ‑ ‑ ‑

MR HORAN:   If and when the person no longer needs to be in Australia.

KIEFEL CJ:   Australia, that is right.

MR HORAN:   Then, that is a coherent reading of triggering the obligation to take them back to the regional processing country.  Now, they are our submissions, essentially, on the construction issues and on the relevant features of the legislative regime for the purposes of examining the purpose and legality of detention. 

If I could turn to the relevant constitutional principles, what is perhaps referred to by shorthand as the Lim principle has been recently restated in decisions of the Court in a way that makes it clear that the principles for which Lim stands as authority are those derived from the joint reasons of Justices Brennan, Deane and Dawson, with whom Chief Justice Mason agreed and that is made clear in Plaintiff M76 in the judgment of Justices Crennan and your Honours Justices Bell and Gageler at paragraphs 138 to 140 which refer to what is described as the constitutional holding in Lim.

There are other cases in which Chief Justice Gleeson had previously expressed a similar sentiment, that the relevant principles for which the case is authority are those in the joint reasons and turning to the restatement first of those principles in Plaintiff M76 they largely summarise and restate the elements of the reasoning of Justices Brennan, Deane and Dawson in Lim, but relevantly to the present controversy it is implicit in paragraph 138 that the holding to be derived from Lim is that:

laws authorising or requiring the detention in custody by the executive of non‑citizens . . . will therefore be valid, only if:  “the detention . . . is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.”

Now, their Honours go on to note that that test of reasonable necessity is directed to temporal aspects, the duration of detention, so I am not relying so much at this point on the question of “reasonable necessity” or “reasonably capable of being seen as necessary” but it is implicit that the default characterisation, if I could use that term, of involuntary detention of both citizens and aliens is that it is to be characterised as an exercise of judicial power unless it falls within a qualification to the general proposition that such authority is ordinarily only conferred as an incident of judicial power.

NETTLE J:   If a transitory person is brought back from a Regional Processing Centre without their permission, as it were, does not detention begin at the moment they are removed from the processing centre?

MR HORAN:   Yes, it may do, and that is the question which is not directly raised on the facts of this case but might ‑ ‑ ‑

NETTLE J:   But it is, is it not?  Surely all your arguments go to whether or not there is power in the Commonwealth to bring people back, as it were against their will, from a Regional Processing Centre for a temporary purpose?  If there is, there is power to lock them up or detain them; if there is not, there is no power to bring them.

MR HORAN:   Yes, but in this case there is no controversy about the manner in which the plaintiffs got to Australia and there is no allegation that it was done forcibly or without consent.  The pleading in paragraph 12 alleges that they were not told that they would be detained and they were not told how long they would be kept in Australia for.  That might go, in a broad sense, to the question of informed consent but it is not suggested that they needed to be restrained or detained in order to exercise the power under section 198B.  But your Honour is right, that a consequence of the plaintiffs’ arguments in this case would be likely to prevent detention from the - - -

NETTLE J:   The instant of departing the centre.

MR HORAN:   The door of the plane - it might be a nice question about when the Commonwealth laws apply, because while on Nauru there would be the question of Nauruan law to take into account.  But insofar as the Commonwealth needs authority to detain, its exercise of that authority begins at the first exercise of power under section 198B.  But in this case we do not go back that far in our challenge, and that is not because we are being selective; it is simply because there is no dispute about involuntary detention in bringing the plaintiffs to Australia.  On the pleadings there is no dispute about that.

NETTLE J:   It is just that if there is power to bring back then detaining persons who are so brought back would seem to be reasonably capable of being seen as necessary for the purpose of bringing back.

MR HORAN:   That becomes my next point because we say that is not one of the executive powers that relevantly attracts the qualification that is being spoken of in Lim.  It is clearly an executive power conferred on the Commonwealth by statute to bring transitory persons back but it is not like the power to exclude, admit or deport - a power, an incident of which is an authority to detain. 

Under the statute, of course, it is an incident of that power that detention follows.  Both section 198B(2) makes that clear in authorising the use of force and the exercise of restraints but also as a matter of construction we do not say that section 189 does not – is not engaged as a matter of construction but although it flows from the exercise of that power that the person is detained, we say for constitutional purposes it cannot be regarded as an incident of executive power in the same way that preventing the entry to Australia of someone who seeks to enter without permission is regarded and has always been regarded. 

That is what Lim is based upon.  It is the sovereign right to prevent entry and to remove – to prevent entry from those who do not have permission to enter and to remove those who do not have permission to remain in Australia.  We say the present case does not fall within those categories because it is somebody who is brought to Australia and does not enter unlawfully, has a statutory permission to travel to Australia and, we say, an implicit permission to enter and remain in Australia while the condition based upon the need for them to be in Australia is not reached.

KIEFEL CJ:   Is it a critical aspect of your argument that the purpose of detention is the same purpose as that for which the person is brought to Australia?

MR HORAN:   We do submit that, your Honour.  Whether that is critical to our argument ‑ ‑ ‑

KIEFEL CJ:   Well, it might be if the purpose of detention is otherwise – if the purpose of detention is to keep the person from the wider community, as has been put.

MR HORAN:   That is right.  There are really two alternative bases upon which the Commonwealth puts the purpose of detention as opposed to bring in to Australia which, as your Honour points out, the Commonwealth seeks to divorce the purpose inquiry for the purposes of section 198B on the one hand and detention on the other.  The two avenues are one, it is detention for the purpose of removal at some future point - and I will return to that – we say that cannot be the case where there is no subsisting duty to remove and the duty will not arise until some indefinite point in the future, a point that depends, at least, in the first instance, on an executive opinion. 

But, the second purpose the Commonwealth relies upon is the purpose of segregation, pure and simple, that there is a valid, permissible purpose to prevent any non‑citizen from remaining – entering or remaining in the Australian community.  Now, our submission in relation to that ‑ ‑ ‑

KIEFEL CJ:   You say that has a temporal problem as well?

MR HORAN:   Yes, but we also say it has a more fundamental problem in that the – all of the cases which have addressed segregation - and I will go to a couple of examples in a moment - have looked at the issue in the explicit context of people who do not have permission to enter Australia at all or remain in Australia.  It is in that context that segregation is permissible as what Chief Justice Gleeson called a secondary purpose which is incidental to the primary purpose of deportation or admission or prevention of entry.  So one starts with the Lim executive powers to admit – to exclude, admit or deport – and segregation can be a secondary purpose to those executive powers but it is not an end in itself and ‑ ‑ ‑

EDELMAN J:   Is the purpose of which Lim speaks and which is quoted in Plaintiff M76 an objective purpose or a subjective purpose?

MR HORAN:   It is ultimately an objective purpose insofar as the court can characterise the detention by reference to the objective purpose from all of the circumstances ‑ ‑ ‑

EDELMAN J:   How does one then assess that by reference to what is common ground to be the subjective purposes under the regime in the Act?

MR HORAN:   Well, in one sense, one does not reach that point because we say once – if it is accepted that the purpose of detention is the subjective purpose for which the person was brought to Australia, we say that does not attract a qualification to the general proposition in Lim.  So it is not necessary for a court to look at that purpose in determining whether or not it is permissible to detain.  It simply says that in relation to persons who are brought to Australia by the Commonwealth and who are not seeking to enter without permission, that detention is not an incident of any recognised executive power to exclude, admit or deport.

In relation to the question of the segregation really is a standalone purpose, we say that the starting point for considering that submission is to look at what Justice Gaudron said in Lim, although her Honour was looking at a different issue at page 55.  There about halfway down the page in the context of saying that – of expressing what has become a minority view, that this is not a question of Chapter III, there is no necessary infringement of judicial power in authorising detention in custody of a citizen or an alien.  Instead her Honour adopts a characterisation approach, but it is clear under that approach her Honour says:

That does not mean that the power conferred by s. 51(xix) permits of laws for the detention of aliens merely because they are aliens.

Now, that does not explicitly refer to the question of segregation.  Insofar as it relies on characterisation, we say that the position would be no different by reason of the limitation derived from Chapter III that the joint reasons consider.

The point about segregation was considered further by Justice Gummow in later decisions, and if I perhaps go first to Al‑Kateb, noting that Justice Gummow was in dissent on the principal issue of construction in that case, but at paragraph 131 where his Honour is addressing the differences between the joint reasons and Justice Gaudron in Lim, his Honour Justice Gummow notes that:

Although it proceeds on a different basis, the result of Gaundron J’s analysis is consistent with the view expressed by Brennan, Deane, Dawson and McHugh JJ that the power of the Parliament to authorise the administrative detention of aliens is not at large and that the power does not extend to authorise detention for any purpose selected by the Parliament. 

Justice Gummow goes on at paragraph 140, to return to this point, that “the purposes are not at large”, the purposes for which the Executive may be authorised to detain, and at the very fifth last line on page 613:

Nor can there be sustained laws for the segregation by incarceration of aliens without their commission of any offence requiring adjudication, and for a purpose unconnected with the entry, investigation, admission or deportation of aliens.

His Honour made similar but perhaps slightly lengthier observations in Re Woolley, which was handed down around the same time, at paragraph 150. In that context, in responding to the point about the purpose of segregation from other persons at large in Australia, his Honour acknowledges that that will be a law with respect to aliens, but then his Honour relies on Lim as authority for at least the proposition that:

putting the defence power to one side, a law cannot be upheld under the aliens power if it provides for the segregation by incarceration of aliens . . . for a purpose which, in the conclusive opinion of the executive branch, is sufficiently connected with the entry, investigation, admission and deportation of aliens.

And then perhaps more relevantly to your Honour the Chief Justice’s question:

Still less can the purpose of the incarceration, which is identified in such a law and determined in each case by the opinion of the Executive, be unconnected with any of the above matters and rather be concerned solely with the prevention of aliens becoming “de facto citizens” or members of the “Australian community”.

GORDON J:   Is not the reason why those examples are given, picked up by Justices Crennan, Bell and Gageler in M76, that is, the link between the temporal limits and the limited purpose – that is, in each of those cases one can identify (a) a purpose and (b) a limit to the extent to which or the time for which that person is going to be detained?

MR HORAN:   They are connected and certainly they are reasonably necessary to be seen as being for those purposes is said to be directed not to the reasonable necessity of the detention itself, to the purpose, but the temporal aspect.

KIEFEL CJ:   Why do you say the purpose of detention is not the purpose of removal when the person no longer needs to be in Australia, which is to say it is no longer practicable for them to be in Australia?

MR HORAN:   There are two reasons.  The first is that, unlike in a case such as Al‑Kateb, where there was a subsisting duty that remained unperformed to remove, so the duty was to remove as soon as practicable, that duty was current and continuing, but the time for its performance had not yet arrived.  This is different.  Section 198AH(1A) suspends the obligation to take to a regional processing country altogether, so that it is a future purpose.  We concede that once that purpose is enlivened, the power to detain is attracted or there would be constitutional power to detain.

KIEFEL CJ:   Why can it not be an extant purpose while they are in Australia that is still subsisting?

MR HORAN:   In essence, because it is connected firstly to my point about the fact that entry and presence in Australia is not without permission from the relevant authorities.

KIEFEL CJ:   But it is not a grant of permission?

MR HORAN:   No, but they are not ‑ ‑ ‑

KIEFEL CJ:   Are you saying there is some inconsistency with detention?

MR HORAN:   We say there is an inherent contradiction between saying that the Commonwealth is bringing a person to Australia and saying that it is exercising a sovereign right to exclude that person from Australia.

KIEFEL CJ:   So, you are using that so as to deny that it can be the Commonwealth’s purpose to remove them.

MR HORAN:   While it will have a purpose to remove at a future time, but we distinguish Al‑Kateb on the basis that ‑ ‑ ‑

KIEFEL CJ:   But you say it cannot be the Commonwealth’s purpose to detain them for removal, later removal in Australia, because the Commonwealth has brought them to Australia.

MR HORAN:   Yes, and it is because they are not, like in Al‑Kateb, subject to an act of duty to remove which is being actively progressed but is being frustrated by circumstance, but it remains current and continuing, although unperformed.  Here, the point at which there is a duty to remove as soon as practicable, is not reached until the condition is satisfied and ‑ ‑ ‑

KIEFEL CJ:   But the duty is, as you have described it, it is not an immediate duty to remove under 198(1); it is a duty to remove as soon as reasonably practicable and that arises when there is no longer any need for them to remain in Australia for the temporary purpose.

MR HORAN:   Yes, but my first point is ‑ and perhaps it might be said to be a semantic distinction, we say it is more than a semantic distinction ‑ that there is a difference between that duty which is currently imposed but subject to future performance, based upon reasonable practicability ‑ ‑ ‑

KIEFEL CJ:   Or subject to a condition of practicability rather than future performance but it is part of ‑ the duty is circumscribed by that ‑ ‑ ‑

MR HORAN:   Yes, in a sense that is our point, that there is a duty, circumscribed by that condition, whereas we say ‑ and perhaps the defendants will say that there is no distinction ‑ but we say, under 198AH(1A), there is no duty unless and until there is no longer a need to be in Australia and at that point there is duty to remove as soon as practicable.  But the second vice of that leads into the point about temporal limit and the criteria by which the temporal limit is bounded because the second objection to the way this scheme operates is not just that there is no subsisting current duty to remove, but that it will not arise until an executive officer or officers form a state of mind based upon that need to remain in Australia for a temporary purpose.

KIEFEL CJ:   Well, is the distinction not that the duty will not arise until that point but that the duty cannot be exercised until that point?

MR HORAN:   Well, in our submission, it is the former, but it might not matter for the second point does not turn on that distinction between whether it is a current or a future duty.  There is a related but independent objection that the criteria by reference to which the duration of detention is bounded, themselves entrusted to executive opinion, and we say that is very different to, I think, Justice Hayne in, it might be in Al‑Kateb, makes note of the fact that detention depends solely upon the question whether or not a person is an unlawful non‑citizen and that is a justiciable issue which can be objectively determined by a court and does not depend on executive opinion.

Now, in fact the authority to detain is not – arises on reasonable suspicion that someone is an unlawful non‑citizen under section 189, but it has never been suggested that a court cannot itself determine the fact.  So that in the ordinary course an unlawful non‑citizen can say, “I can’t be detained because I’m not an unlawful non‑citizen”, and, similarly, that duty to perform removal as soon as reasonably practicable raises justiciable issues.

Now, there are cases in the Federal Court which point out that it is not a jurisdictional fact in the sense that if the Minister or an officer decides that it is reasonably practical to remove someone, that person cannot go to the Federal Court and say on the facts it is not reasonably practicable.  But we are talking about the converse here and the question is whether, if the person suggests that it is reasonably practicable to be removed then the courts can determine whether or not the point has been reached where, despite it being reasonably practical to remove, the Commonwealth is not taking steps to remove them.

In a sense, looking at Plaintiff M76, for example, and perhaps tying some of these strands together to look at what your Honours Justices Kiefel and Keane said in that case, because it relates to both the point of – the duty to remove and the question of segregation - so at pages 384 to 385 your Honours are looking at the question of persons who in the context of a discussion about whether a person who is an unlawful non‑citizen has any entitlement to enter the community and be at large in the community, it is clear from paragraph 207 on page 385 that that is in the context of:

an alien who presents uninvited and unheralded at the border with no right to enter Australia -

Now, in relation to the temporal issues, in Re Woolley Justice Hayne, as I mentioned earlier, drew attention to the vice of having the period of detention and the lawfulness of detention depend upon the opinion or will of the Executive.

At paragraph 224 in Re Woolley, his Honour notes at the middle of the page that:

Continued detention under s 196 is predicated upon the person being an unlawful non‑citizen.  It does not depend upon the formation of any opinion of the Executive.  In particular, it does not depend upon the formation of any opinion of the Executive about whether detention is necessary or desirable whether for purposes of investigation or any other purpose -

whereas in the present case the continued detention or such time as the person needs to be in Australia for the temporary purpose does depend upon the formation of or non‑formation of an opinion by officers of the Commonwealth Executive about whether the point has been reached that the person no longer needs to be in Australia.

KIEFEL CJ:   But that is so only if you regard the purpose of the detention as being the same as the purpose for which they are in Australia. 

MR HORAN:   It can be so regardless even if the purpose is removal when that condition is reached.  It is still a condition which does not satisfy the principles that the Court has laid down for determining the temporal limits to detention.  The most recent example or expression of those limits is in Plaintiff S4 at paragraph 29 and in that context the judgment of the Court stresses that:

The duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time.  Otherwise, the lawfulness of the detention could not be determined and enforced by the courts, and, ultimately, by this Court.

The other point that emerges from this case and also from Plaintiff S156 is that the criteria against which that lawfulness, both the duration and the lawfulness of detention, must be fixed at the start of the detention.  Now, here, we say even if the detention is for the purpose of removal, it is removal firstly when an officer of the Executive forms a state of satisfaction that the person no longer needs to be in Australia for the relevant temporary purpose and, secondly, as soon as reasonably practicable after that time.  But we say that those two criteria, in particular the first of those criteria, do not readily satisfy the requirements – the principles expressed in Plaintiff S4 at paragraph 29.

GAGELER J:   The first of those criteria is that set out in section 198AH(1A)(c), I think.  Why is that not just a jurisdictional fact, using Justice Gummow’s terminology?

MR HORAN:   It would be a matter of construction and in some ways it raises a similar question to the question of construction that arose in the Malaysian Declaration Case about whether a particular requirement was objective for determination of the Court – or subjective.  The Commonwealth’s position, and we do not dissent from their position, is that this depends in the first instance, at least, on the satisfaction or non‑satisfaction in the mind of a Commonwealth officer.

GAGELER J:   What does that mean “in the first instance”?  Obviously, any statutory criterion to be applied by an executive officer needs to be addressed in the first instance by that officer but it is either something to be determined in the exercise of a power granted to the officer or something that must exist before the power can be exercised.  What I am suggesting is that a natural reading of this paragraph puts it in the second of those categories.

MR HORAN:   The Commonwealth puts it in the former and says that the courts have a supervisory jurisdiction by way of the ordinary judicial review grounds, which would essentially mean that, in practical terms, the only way in which the Court could intervene if there was non‑satisfaction or a failure to be satisfied of that criterion would be if it was not reasonably open to any reasonable decision‑maker not to be satisfied. 

GAGELER J:   That is the Motor Vehicle Reports. 

MR DONAGHUE:   I hesitated before reading that but I think that is right. 

GAGELER J:   Was his Honour focusing on this ‑ ‑ ‑

MR DONAGHUE:   Yes, at quite some length, in fact.  Not this provision but this question.  There is quite an extensive discussion of jurisdictional facts.

GAGELER J:   Of the theory of it. 

MR DONAGHUE:   Of the theory – yes, indeed.  He was not concerned with this provision but the theory of it was a provision expressed in apparently objective terms which came to be applied only through the medium of an officer forming a view.  So it was structurally similar to the relationship between these two provisions.  I did not mean to suggest that it was directly on point.

So whether jurisdictional fact or not, in my submission, because of the Australian Mount Isa Mines line of authority that we have referred to in our written submissions, there is capacity for a court to test whether or not the preconditions that are identified in 198AH(1A) are met or not.  As your Honours Chief Justice French and Justices Kiefel and Bell said in NAAJA every statutory power is limited by reference to subject matter, scope and purpose and there is likewise, therefore, capacity to test by judicial review whether in any particular case the detention that is occurring pursuant to these provisions has gone beyond that which is properly authorised by the subject matter, scope and purpose of the provision. 

The capacity to test those things is, in our submission, what is necessary in order to meet the requirement that the validity of detention can be tested at any time and from time to time because provided you can do those things, once tested if the Court is satisfied that the removal power is not engaged then it would follow that the detention required by 189 and 196 is lawful.

Finally, your Honours, there is a proposition put against us debated this morning, particularly in the context of some questions your Honour the Chief Justice asked my friend about the concept of the removal power being enlivened of the relationship between the conditions on the removal powers and the existence of a removal obligation. 

If your Honours could go back to section 198 of the Act, you will see in section 198 that there are in fact a number of distinct removal powers that are conferred by this provision.  So subsection (1) has been the focus of some attention this morning.  The preconditions are that removal is reasonably practicable and that the person has asked the Minister in writing to be removed.

In (1A) they are the same as the conditions that have been the main focus of attention in argument.  In subsection (2), in addition to removal being reasonably practicable, which you see in the chapeau, there are a number of other conditions including in 2(c), either, the person:

(i)has not made a valid application for a substantive visa . . . or

(ii)has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone -

and where the application has been finally determined, which means no longer subject to merits review and I could go on.  There is a whole series of different preconditions.  In our submission, it is not right, as our friends have done, to separate out the reasonably practicable condition and to say, well, the removal power was enlivened in Al‑Kateb because there was a desire to remove Mr Al‑Kateb and he would have been removed once removal became reasonably practicable.

The fact is, in that case, removal was not reasonably practicable so one of the preconditions to the enlivenment of the power to remove had not been met but similarly in relation to, to take for example, 198(2), if an applicant has made an application for a substantive visa that has not been finally determined, then the removal power under subsection (2) is not engaged because there is a precondition that has not yet been met. 

There is a visa application out there in the world, not yet determined and until that application is determined, there will not be occasion to consider whether removal is reasonably practicable and until removal is reasonably practicable, there will not be a removal.

In our submission, it is not right to say that detention cannot be for the purpose of removal unless all of the different preconditions in the different paragraphs of 198 have been satisfied.  Detention can be for the purpose of removal.  It is just that the removal cannot occur until the relevant preconditions, whatever they may be, have been satisfied.

So much is confirmed, if confirmation be needed, by the analysis of the whole Court in M61, which I will not take your Honours to but your Honours will recall that a critical part of the reasoning in that case was that even though an unauthorised maritime arrival was prevented by section 46 of the Act from making a valid application for a visa – so that if you just looked at the conditions in 198(2), it would have seemed textually that all of those conditions were satisfied and that the person, the unauthorised maritime arrival, would have needed to be removed - the Court held that, properly construed, that power accommodated the making of inquiries directed to whether or not the person should be permitted to make an application for a visa under 46A, so that the removal power was not enlivened because it was necessary for it to accommodate the making of such inquiries as were necessary to inform that judgment by the Minister.

But none of that had the consequence that detention could not lawfully occur, and the purpose of that detention was described, including in S4, as detention primarily for the purpose of removal but for the more complex purpose of allowing consideration to be given to whether or not a visa application should be permitted and, if not, for the purpose of removal. 

In our submission, our friends cannot escape the conclusion that this detention is for the purposes of removal simply because the actual power to remove has not yet been engaged because some of the preconditions to removal have not yet been satisfied.

Your Honours, the last point we seek to make orally is just really by way of clarification.  Your Honours will understand that, as a result of the further amended statement of claim, a challenge has been added to the residence determination that was made with respect to the plaintiffs on 12 December last year. 

The grounds on which that challenge is advanced appear in paragraph 24 of the further amended statement of claim, on page 24 of the supplementary demurrer book.  There is only one ground of challenge and it is that the second defendant, the Minister, purported to make the residence determination when the plaintiffs were not:

a.lawfully required or permitted to be detained under s 189 of the Migration Act; or

b.lawfully detained under s 189 of the Migration Act.

That pleading is explicable by reference to the terms of section 197AA, which may not be in the folder of authorities, although, if your Honours are working from the main Act, you will see it. 

The terms of that provision are that all of the provisions in the Act concerning residence determinations or that the subdivision concerning residence determination applies to a person who is required or permitted by section 189 to be detained or who is in detention under that section.  So, in essence, the proposition that the plaintiffs advance is that because the precondition in 197AA was not satisfied the residence determination was invalid.

We do not challenge that argument but it is, we submit, important that the Court appreciate that it is not part of the case or the demurrer that the residence determination is invalid because it infringes Chapter III.  In particular, it is not part of a case that the person who is the subject of a residence determination is detained in custody in a way that would engage the Lim principle. 

The plaintiffs have not alleged that and they do not allege that the residence determination is invalid for that reason.  The question whether a person who is the subject of a residence determination is detained in custody is a large question of potentially significant importance not litigated here because our friends contend for invalidity on a different basis.  They say if you could never have been detained under 189 proper for constitutional reasons, then the statutory power does not extend.  It is that point and that point only that is raised in the case.  Unless I can be of any other assistance, those are our submissions.

KIEFEL CJ:   Yes, Mr Horan.

MR HORAN:  If your Honour pleases, just on that last point, I think I conceded or accepted that the Parliament could regulate or impose conditions or control presence of a transitory person in Australia through conditions short of involuntary detention and so my learned friend is correct that we do not say that the residence determination and its conditions per se offends Chapter III.  The amendment to the statement of claim was simply to respond to the recent development by which a residence determination was made and it really raises the same constitutional and constructional issues that the principle issues on the demurrer.

Can I make just five brief points by way of reply?  The first is in relation to the constitutional principles and we submit there is no basis to revisit what has been called the general proposition which formed an essential part of the constitutional holding in Lim.  As I have submitted earlier this morning, that does not involve a separate inquiry into whether detention is punitive or involves punishment or hardship or distress.  It is the deprivation of liberty or, more correctly, the involuntary deprivation of liberty which is what is characterised as punitive, subject to the qualifications, and the reason question is whether the qualifications are attracted which permit an alternative characterisation of that deprivation of liberty.

The punitive character of detention is not the lens through which the question was addressed in Lim but it was the premise for that general proposition, so it is a conclusion rather than a touchstone of the constitutional question.  The question is involuntary deprivation of liberty which Blackstone called imprisonment – confinement or imprisonment – is punitive unless it falls within a qualification. 

We do not, as my learned friend submits, say that the categories are closed.  Those categories are clearly not closed, they are not exhaustively spelt out in Lim, but we say this case does not fall within the four corners of the recognised qualification in Lim which turns upon, or is derived from, the vulnerability of aliens to exclusion or removal from Australia and this is not within the scope of that purpose.

The second point is the possibility of mixed purposes.  In cases like Plaintiff S4 each of the purposes was within a recognised exception in Lim, so one had a mixed purpose of consideration whether to permit entry with the ultimate purpose of removal if permission was not granted. 

Now, that is a different situation from, I think, as your Honour Justice Edelman was asking earlier, mixed purposes where one of the purposes is not within a recognised qualification.  Likewise, my learned friend’s reference to section 198(2) in a way does not address the point because again that does not identify the purpose of detention as removal.  It simply identifies the conditions which would engage those mixed permissible purposes under Lim, firstly, making a visa application and having it determined and if it is rejected, removal.  But, again, this is a different situation where somebody is brought to Australia and detained for the purposes of removing them from Australia. 

Now, the third point is that the fact that removal is what is called the necessary endpoint is not sufficient and that can be illustrated by looking at another situation of any person who is granted a temporary visa authorising stay for a limited period, let us say, a tourist visa, authorising stay for three months.  You could not, for example, cancel that visa and the associated right to remain in the community but not proceed to remove that person as soon as reasonably practicable. 

So one cannot divorce the entry and presence into Australia from entry into the community and the premise of all of the cases – all of the judgments my learned friend refers to, Justice Hayne and, with respect, your Honours the Chief Justice and Justice Keane are looking at that issue of entry into the community and liberty in the community on a premise of the ability to deny or remove the permission to enter or remain in Australia, not to deny or remove permission to remain in the community but not withdraw permission or authority to remain in Australia.

In the case of a criminal justice visa, for example, it does not accommodate a situation where somebody can be brought to Australia under a criminal justice visa coercively, in the sense that they are given a visa which then requires them to come to Australia.  In a sense, the distinction that this case turns upon is divorcing the sovereign right to exclude and remove aliens, divorcing that from the right to be at liberty in the community. 

The fourth point is that past unauthorised entry to Australia is not material to the current basis for detention, and that appears from Plaintiff M68 where the Court held that the Commonwealth powers in relation to removal came to an end when the plaintiff was delivered into the custody of Nauru. 

So, the fact that the plaintiffs in this case accept that they were validly taken to Nauru under section 198AD, with respect, is irrelevant to any constitutional question that arises on the appeal.  In relation to the two conditions about duration of detention, the first one – an additional point which might be raised is whether or not this is the requirement that the purpose be identified in the statute, in one sense the particular purpose under section 198B is not delimited in the statute other than by providing for a person to be brought here for a temporary purpose.  The purpose is in fact formulated under the statute by an officer.

But in relation to the second condition we do not say that there is a need to determine the duration of or length of detention at any time, but we say the nature of the conditions, whether a person needs to be in Australia for the purpose, do not meet the requirement of determining whether or not at any particular time the conditions for detention have come to an end.

The mere existence of jurisdiction under section 75(v) cannot itself supply the means of meeting that second condition because, of course, that jurisdiction will always be there and it would effectively render that second condition incapable of any operation if all that was necessary was to invoke the supervisory jurisdiction on judicial review.

The final issue I would raise is in relation to the construction issues.  I do not want to go back into the detail at any great length, but a suggestion was made by my learned friend that the plaintiffs’ submissions suggest that an unauthorised maritime arrival or a transitory person might be in limbo if they were not able to be brought within section 198 and that our submission was that the two regimes operate completely independently. 

That is a misconstruction of our submission.  We do not deny that the regional processing regime can be excluded through sections 198AE, 198AF and 198AG.  That is what section 198(11) was inserted for, as clearly demonstrated in the explanatory memorandum.  The exclusions under those sections are not materially different from the suspension of application of the duty under section 198AH, and that distinction, we say, is clearly drawn from both the terms of the statute and in the explanatory memorandum when it addresses this issue. 

The other point about that carve‑out is that it is necessary to pick up unauthorised maritime arrivals who were not subject to regional processing, in other words, to whom section 198AD has never applied and my understanding is that there is a category who arrived before the commencement date who, despite being unauthorised maritime arrivals, are not subject to the obligation under section 198AD. 

But, ultimately, our submission is that as a matter of construction the only way that section 198 can apply to a transitory person is if one of the exclusions in section 198AE, ministerial determination, or AF and AG in relation to, for example, there being no available regional processing country, that is the only circumstance in which a transitory person can fall back into section 198 and otherwise they are exclusively governed by the interrelationship of sections 198AD and 198AH.  If your Honours please, those are the submissions.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns until 10.00 am tomorrow. 

AT 3.12 PM THE MATTER WAS ADJOURNED