Ruddock and Ors v Taylor
[2005] HCATrans 65
[2005] HCATrans 065
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S421 of 2004
B e t w e e n -
PHILIP RUDDOCK
Appellant
KAY PATTERSON
Second Appellant
COMMONWEALTH OF AUSTRALIA
Third Appellant
and
GRAHAM ERNEST TAYLOR
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 2 MARCH 2005, AT 10.19 AM
Copyright in the High Court of Australia
__________________
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with my learned friend, MR G.T. JOHNSON, for the appellants. (instructed by Australian Government Solicitor)
MR C.J. BIRCH, SC: May it please the Court, I appear with my learned friend, MR D.P.M. ASH, for the respondent. (instructed by Teakle Ormsby Conn Lawyers)
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If the Court pleases, I have prepared a one page document headed “Order of Appellants’ Submissions” which simply indicates the order in which I will deal with the matters in the submissions. It does not add anything or present anything. It is simply a table of contents to enable the argument to be followed by your Honours and my learned friends more easily.
GLEESON CJ: Thank you.
MR BENNETT: What I propose to do, your Honours, is to spend five minutes just going through this document to show your Honours what the various arguments are and how they fit together and then to deal with them individually. Your Honours will recall that one way the case can be put against us is that because of the decisions in the two matters that came to this Court, the one by consent and then the ultimate hearing, each of the Minister’s decisions cancelling a visa was set aside and the effect of the writs was that it was done retrospectively. Therefore, it is put against us, the respondent had a visa – whether he was an alien or not – and insofar as he had a visa, at least, if he was an alien, he was a lawful non‑citizen. What we say in relation ‑ ‑ ‑
KIRBY J: Can I ask – I raised this in the special leave application – I just have a difficulty with the structure that you presented to us. If in fact there is no problem whatever in the constitutional validity and application of the provisions of the Migration Act such as was held to exist by the order of this Court in Re Patterson; Ex parte Taylor, and if the subsequent decision in Shaw indicates that the holding of the Court is that there is no constitutional problem in removing an alien, then, subject to any procedural unfairness that was done to Mr Taylor, does that not provide the real starting point? Because it knocks away what was thought to be the constitutional difficulty of doing anything in respect of a non‑citizen, but non‑alien, for constitutional purposes – non‑migrant as well.
MR BENNETT: It does, your Honour, but it does not result in my appeal being successful on its own, because of the possibility of what I have put as the first argument against me.
HAYNE J: Why does one begin there? Why does one not begin in the Act?
MR BENNETT: Your Honour, that is what we do.
GUMMOW J: That is what you are trying to do in your point 1.
MR BENNETT: That is what I do in point 1a, your Honour. That is my first point. What I am doing is giving the heading at the moment. The argument against me, as I understand it, is that the writs are retrospective, ergo no decision cancelling the visa, ergo he had the visa, ergo, he was not an unlawful non‑citizen, ergo ‑ ‑ ‑
GUMMOW J: That is not the question under 189, though, is it? The question is whether he could reasonably be suspected.
MR BENNETT: Precisely, your Honour, that is my answer to it, and that is 1a ‑ ‑ ‑
GUMMOW J: You would have to say the High Court divided 4:3 that there could be a reasonable view either way.
MR BENNETT: Precisely, your Honour. Mr Justice Meagher said that to suggest the contrary would be “impious”, in the course of his Honour’s judgment.
GUMMOW J: Then we have to work out who the relevant officers are who did the detaining.
MR BENNETT: Yes, well, that is 1b.
GUMMOW J: Yes.
KIRBY J: But my problem remains that any answer to the reasonable suspicion, which was founded on the decision of this Court in Re Patterson; Ex parte Taylor, is at least arguably knocked away by the subsequent ruling of the Court concerning the scope of the aliens power as applicable to people like Mr Taylor. Therefore, it is not a question of impiety, it is a question of the application of the principles of constitutional law as expounded by the majority of the Court, and what consequence Shaw has for the earlier decision in Ex parte Taylor.
MR BENNETT: That is 2b, your Honour. That is my answer to the issue estoppel argument.
GUMMOW J: But you never get there, if 189 is valid, and no one seems to suggest it is invalid.
MR BENNETT: Your Honour, I get there on the first argument.
GUMMOW J: Yes, I know.
MR BENNETT: Yes, well, my friend gets there on the first argument.
GUMMOW J: Yes.
MR BENNETT: But, your Honour, the starting point is, as we say in 1a, that the officers reasonably suspected under section 189. Therefore, if I can put it slightly colloquially, there was no false imprisonment, because the imprisonment was not false.
KIRBY J: They might have had their subjective feelings, but how could it be reasonable if it defied the Constitution? The world is full of very suspicious people and they are all over the place, especially nowadays. They are not relaxed and they are not comfortable. They are constantly suspicious. Now, that cannot be what “reasonable suspicion” means.
MR BENNETT: No, your Honour, but we say that ‑ ‑ ‑
KIRBY J: It cannot just be the whim of a particular officer. There are policemen that I have seen in courts who suspect everything of everybody, and that cannot be the test. The test is whether it is reasonable suspicion, and if it is in defiance of the Constitution, if you say, “Well, I reasonably suspect that this is an alien”, when the person is not an alien under the Constitution, that cannot be reasonable.
MR BENNETT: Your Honour, with respect, we submit the authorities establish it can be reasonable to suspect something, even if that involves an error of law.
HAYNE J: Let it be assumed that the person in question is in fact an Australian citizen. Let it be further assumed that that person, for whatever reason, announces to an officer that he or she has unlawfully entered the country, being a citizen of another country. No more being known, is section 189 properly engaged under the “reasonable suspicion” limb in the facts described?
MR BENNETT: Yes, your Honour, that is my point 2a. We call in aid Milicevic v Campbell and Williamson v Ah On.
KIRBY J: Your theory is that it is a purely subjective question whether the person has a subjective suspicion?
MR BENNETT: It must be reasonable, but it can be reasonable although it involves an error of law. I will take your Honours to the authorities on that in a moment. As a matter of power, the section is capable of applying to a person who is a citizen, because it is incidental to the aliens power that a person may have to be detained for a short time to determine that the person is not an alien.
The simplest example of that, I suppose, is when an Australian citizen arrives at Kingsford Smith Airport from overseas with an Australian passport, but there is a long queue before the passport can be produced to the officer. If the person seeks to try and leave the building without going through the queue and producing his or her passport, no doubt the person would be held until such time as the person had got to the front of the queue. That is a detention we all undergo, which is reasonably ancillary to determining whether or not we are aliens when we arrive.
KIRBY J: But that is not because officers have a reasonable suspicion that all those people lining up are foreigners and aliens.
MR BENNETT: No, your Honour, it is an analogy.
KIRBY J: Because that is an administrative procedure that is designed to supervise the border.
MR BENNETT: Yes, your Honour, but one would not be able to bring an action for false imprisonment for being not permitted to leave until one had got to the front of the queue.
KIRBY J: But it would not be because of reasonable suspicion.
MR BENNETT: No, it would not, your Honour.
KIRBY J: It has nothing to do with the case.
MR BENNETT: Well, your Honour, it does have this to do with the case. It is a fortiori, because there, there is not even a reasonable suspicion. It is simply that it is ancillary to the aliens power, which involves exclusion of certain people. It is ancillary to that that those who are permitted to enter have to go through a procedure which requires them demonstrating that fact, and that may involve, as in that case, a very short period of detention, if one wants to use that word.
KIRBY J: This was not a short period. This was months and months of the present respondent’s life.
MR BENNETT: It was, your Honour, because it involved appeals to this Court and difficult questions of constitutional law.
KIRBY J: Did the Minister have the power to release the respondent during the pendency of the litigation? He had, after all, lived in Australia for decades before ‑ ‑ ‑
MR BENNETT: There is power, your Honour, to impose forms of immigration detention which do not involve being kept in a facility. For example, provisions under which one could live at one’s home and report and matters – there are various procedures which are available. The person is still in immigration detention, as defined, but is not physically detained.
KIRBY J: Without taking up too much time, would you refresh my memory of the circumstances that led Justice Callinan to indicate that he was going to release the applicant and that that led to the consent orders and then the second period of detention?
MR BENNETT: Your Honour, I do not think that was in evidence. The assumption was that it was a natural justice issue in relation to the decision and it was done by consent.
KIRBY J: It was only done by consent when Justice Callinan made it clear that he intended to make the orders.
MR BENNETT: Yes, that is so, your Honour.
KIRBY J: I ask the question because, at least on the face of the sequence of events, there might be thought to be a case here of the brutish appearance of obdurate administration, that, having gone and got the orders from Justice Callinan, within a relatively short time he was rearrested and put into detention. At that stage, his position was well known and that he had arguments was well known.
MR BENNETT: No, your Honour, that is, with respect, not correct. On the second occasion, there was a fresh decision. It is not suggested by anyone that that decision was in any way affected by any of the factors that led Justice Callinan to make his consent orders. It was a fresh decision, which had fresh defects, as we now know. That is why in the first part of my submissions I accept, as I must, that the decisions to cancel were set aside retrospectively, but the officers, of course, had no way of knowing that that was going to happen. No one suggests that they should have done so.
Both officers gave evidence. It was not challenged that they acted bona fide and it could not be challenged that they had a reasonable suspicion in each case, except on the technical argument about whether an error of law can amount to a reasonable decision. As Justice Meagher said, had anyone suggested to the officers on either occasion the argument that succeeded with four members of this Court, for different reasons, in Patterson, the officer – it was he in one case and she in the other – had the officer been a distinguished constitutional lawyer, the officer would have said, “Nolan’s Case is an answer to that, a 6:1 decision of the High Court. Therefore, I reasonably suspect you are an unlawful non‑citizen.”
KIRBY J: Does that mean that the question is whether, where a subsequent decision says that that earlier foundation for the reasonable suspicion was erroneous in constitutional law, the issue is whether that requires one to follow through the consequence of the constitutional invalidity, or whether one says, well, because the subjective belief was based on what was then available as the statements of constitutional law, then that is enough?
MR BENNETT: The latter, your Honour.
KIRBY J: But that means that one does not give effect to what the Constitution says, on the assumption that Ex parte Taylor was the correct statement of the constitutional principle.
MR BENNETT: Your Honour, if that reasoning were applied through, every person who is acquitted of an offence, but denied bail pending trial, would have an action for false imprisonment, notwithstanding that the police officer reasonably suspected.
KIRBY J: Yes, but, if your theory is correct, you undermine the carrying into force and effect of the Constitution as truly understood.
MR BENNETT: No, your Honour. The Constitution does not say that if a person is truly not an alien, it is not incidental to an aliens power, which permits statutes dealing with aliens in particular ways, to say that if a person is reasonably suspected of being an alien and that needs to be determined, maybe the constitutional issue needs to be determined, the person can be detained while that is determined. In the same way, the criminal law may give a person a right to an acquittal for a large number of reasons, many of them based on high principle, perhaps some based on the Constitution.
GLEESON CJ: We are not here dealing with a power of detention, we are dealing with a duty of detention.
MR BENNETT: Yes, your Honour.
GLEESON CJ: It is section 189(1) that puts the “mandatory” in the phrase “mandatory detention”.
MR BENNETT: Yes, your Honour.
GLEESON CJ: But if you are dealing with mere powers of arrest, as distinct from a duty, reasonable suspicion is usually the criterion by reference to which the lawfulness of the exercise of the power of arrest is determined, is it not?
MR BENNETT: Yes, your Honour.
GLEESON CJ: Well, now, what if an arresting constable’s reasonable suspicion is based on an error of law, whether it be an error of constitutional law or an error of construction of a statute?
MR BENNETT: Your Honour, that issue was decided in favour of the submission I put by this Court in Little’s Case, by some dicta in a Queensland case called Veivers, which I will take your Honours to, and we would submit the law is that a reasonable mistake includes a mistake of law.
GLEESON CJ: Did not that issue come up in Coleman v Power?
MR BENNETT: Yes, your Honour, it is dealt with in Justice McHugh’s judgment in some detail.
GUMMOW J: About paragraph 131.
MR BENNETT: Yes, and I will take your Honours to that when I come to that part of the argument. There are some questions which need to be looked at in that area, and I will need to take your Honours to the cases on that.
GLEESON CJ: But it must be not uncommon for police to exercise or purport to exercise powers of arrest, based on a reasonable suspicion which involves an error of law.
MR BENNETT: Yes. The classic case was Veivers, where there was a demonstration at the demolition of an old hotel in Brisbane, and the police officer arrested someone and charged the person with trespass on enclosed lands. As a matter of law, the lands in question were not enclosed lands, because they were not ancillary to a building, and what was said was, well, there was a reasonable suspicion and the fact that it turned out to be erroneous as a matter of law did not prevent that operating to justify the arrest.
HAYNE J: There is always a difficulty about translating decisions like Veivers from one context to another. There, the relevant statutory words were: “it is lawful for a police officer who believes on reasonable grounds”. It may be that that is the same effect as the particular statutory formula we have here, but, as I say, it would seem to me the question is the construction of this Act.
MR BENNETT: Yes. Your Honour, just taking the words on their own, one could hardly say that the officers did not reasonably suspect. They both were called to give evidence and they were both cross‑examined and their evidence in the relevant respect was not challenged. What they each said was, “I was notified the visa had been cancelled, I checked that there was no other visa, and, having made those inquiries, I considered that section 189 applied and required me to take him into detention”.
The evidence of the first officer is at pages 126 to 127 of the appeal book and the only cross‑examination was to establish that he, or she in the second case, relied upon and took into account the fact that the visa had been cancelled, which, of course, was done. The evidence of Mr Crighton is at pages 126 to 127 and the evidence of Ms Campbell is at pages 129 to 130. In each case the officer formed the view that there was a duty, because of the fact that he had a visa and the visa had been cancelled and no fresh visa had been granted. Their bona fides were not challenged. There was just the argument that the proposition involved an error of law.
HAYNE J: Do I understand that the case at trial was a case that first accepted that the detaining officers did suspect; second, that their suspicion was based upon the cancellation; third, that suspicion, what, cannot be held to be reasonable because later events in this Court revealed that the cancellation was unlawful?
MR BENNETT: It was not so much that, your Honour. The trial judge seems to have taken a view somewhat similar to that, but in the Court of Appeal the view seems to have been taken that section 189 had no application to Mr Taylor, which we say was not, of course, something held by this Court at all. We say section 189 applies to Australian citizens, to aliens who hold visas and to anyone who is the subject of a reasonable suspicion.
HAYNE J: Well, so much may be thought to be apparent from 196, for 189 has to be read with 196. The two have to be read in a way that they can work as a congruent whole. That in turn may present an apparent question, perhaps a real question, about the meaning to be assigned in 196(1) to the opening expression “an unlawful non‑citizen detained under”. That is to say, is that referring to someone who, in truth, is an unlawful non-citizen or is it referring to a person of a kind identified in 189(1) as a person known or reasonably suspected as falling within that category?
MR BENNETT: Your Honour, it may mean the first in 196(1), because 196(2) makes it clear that if the person turns out to be a citizen or a lawful non‑citizen, the section does not prevent the person’s release. If the section stood alone, it might have, but the effect of 196(1) and (2) together with 189 is that a citizen or lawful non‑citizen who is reasonably suspected of being an unlawful non‑citizen may be detained, and, as soon as the truth is ascertained, the person is released under 196.
HAYNE J: Well, not so much as soon as the truth is ascertained, but so soon as the reasonable suspicion of being an unlawful non‑citizen fails, whether because it is demonstrated to be false absolutely or the reasonableness of the suspicion, for some reason, fades.
MR BENNETT: Yes. In the normal case, the effect of a determination, either by a court or administratively, that the person is in fact a citizen or lawful non‑citizen would mean that no reasonable suspicion would remain.
HAYNE J: Plainly so.
MR BENNETT: And that is made clear by 196(2).
HAYNE J: But the consequence may be, it may not be, that that, when read with 189, may reveal something about the reach of reasonable suspicion. It may perhaps, I do not know. It may reveal that reasonable suspicion can still be held even if later, whether by 4:3 or 7:0, this Court says that the constitutional substratum is otherwise than previously thought.
MR BENNETT: At that point, there could no longer be a reasonable suspicion, and, of course, here the person was released as soon as that occurred. Had he been detained after that, of course, there would have been a problem. The obligation to detain arises where the officer has the reasonable suspicion, and, at least until that determination, if there is a reasonable suspicion the detention is authorised, whether or not the person is a non‑citizen and whether or not the person is a lawful or unlawful non‑citizen. Section 196(2) shows quite clearly the appreciation of the drafter that 189 might apply to a person who turns out to be a citizen or lawful non‑citizen, as is obviously the case and 189 is an express requirement that detention occur in the meantime.
KIRBY J: In Veivers effect was given, I think, to the Police Powers Act or some provision in the Criminal Code in Coleman. That was raised, but Justice McHugh in his reasons referred to the difficulty that is presented by asserting that something can be reasonable in the face of the Constitution. If the Constitution says that this is the law, then – I just have a difficulty, Solicitor, in drawing the conclusion that it can be reasonable to have a mistaken view of the Constitution because that undermines obedience to the basic law of the nation. I can understand with statutes and so on that Parliament can do what it likes but in the face of a constitutional norm, that sort of provision runs into the difficulty that you are undermining the basic law of the country.
MR BENNETT: Your Honour, the first problem with that is the problem referred to by Justice Meagher.
GUMMOW J: Forget about him for a minute. In a way, what has been put to you is a Lange problem, is it not? It is the notion that the common law must conform to the Constitution. The question is: how does that notion work itself out as to the adjustment in the common law that is required? That is the fundamental question, it seems to me, this law of tort.
MR BENNETT: Simply in this way, your Honour. We say the way it works itself out here is very simple, and this is really going to the validity of the provision in this sense. It is my paragraph 2a. It comes back to cases such as Milicevic v Campbell and Williamson v Ah On. In Milicevic v Campbell the trade and commerce power permitted the Commonwealth to prohibit possession of imported heroin. It did not permit the Commonwealth to prohibit the possession of heroin which had been entirely made in Australia. That is a matter for State law, not under the trade and commerce power. The statute prohibited the possession of heroin which was reasonably suspected of having been imported. The High Court held that was clearly incidental to the prohibition on the importation of heroin.
Williamson v Ah On was a migration case where the onus of proof in relation to a person found in certain circumstances in Australia who claimed to be a non‑alien lay on that person in relation to an offence of unlawfully being here. Again, the High Court held that there was no reason why one could not reverse the onus of proof in that situation even as to what was a constitutional fact. The phrase “constitutional fact” appears in the discussion in that case.
I will take your Honours to those decisions in due course but what they make clear is that where one has a power and in order to enforce some aspect of the power one needs to do something in order to determine whether a person is subject to it and the doing of that act may involve deprivation of liberty or some other interference with a person’s rights, that is justifiable under the incidental aspect of that power.
It is not contrary to the Constitution that an Australian citizen is detained while it is determined whether the person is an alien or not. It is simply incidental to the necessary determination in order to enforce the existence of the constitutional power against people to whom it does extend.
McHUGH J: Yes, but it may be that such a law is valid as the law was held to be valid in Milicevic, but we are looking at the end of the process. What is the position when, constitutionally, the Commonwealth has no power? Is it your proposition that if the Communist Party Dissolution Act provided for the arrest and detention of persons reasonably suspected of being communists, that they would have no cause of action for false imprisonment, notwithstanding the Commonwealth had no constitutional power to enact the Act?
MR BENNETT: Your Honour, that example is different to this case for this reason. If there were no aliens power at all, and there was no power under which the Migration Act as a whole could have been passed, then that question would arise, if one could not ‑ ‑ ‑
McHUGH J: Yes, but in the Communist Party Case Sir Garfield Barwick argued strenuously that the defence power extended to protecting these peacetime activities, because of the war in Korea and so on.
MR BENNETT: And the Court held that it did not.
McHUGH J: Exactly.
MR BENNETT: Here there is no question that the aliens power extends to aliens validly that we ‑ ‑ ‑
McHUGH J: No, at the moment I have no problem about thinking that, on its face, 189 is valid, but it seems to me that is a different question as to whether, when it is held that somebody does not fall within its scope, that person does not have a cause of action. It is, as Justice Gummow pointed out, it seems to me that if at common law that might be the case, the common law just has to conform to the Constitution.
MR BENNETT: But, your Honour, here the person is within – let us assume in the Communist Party Case, and this is the true analogy, that the Act validly applied to communists, but was incapable of applying to mere socialists. Let us assume that, that the Act permits the arrest of a person reasonably suspected of being a communist, while it is determined whether or not the person is a communist. A socialist is arrested who is not within the power, but he is reasonably suspected of falling within the category of people validly within the power. The officer making a mistake – if it is a mistake of fact or a mistake of law does not matter for this purpose. The Act is valid insofar as it permits the arrest of the person reasonably suspected of being in the prohibited class. That is the analogy to the Communist Party Case. It is ‑ ‑ ‑
McHUGH J: It is not an analogy to what I was putting to you. I have no trouble about seeing such a provision as valid if the head of power exists, as in Milicevic – you were dealing with the Customs Act, and the law about suspicion was incidental to the exercise of that power. But I want a lot of argument to persuade me that the Commonwealth, as opposed to a State, can detain somebody when they have no constitutional power to do so on the reasonable suspicion of a person, and, when it is declared that they have no power, that that person has no cause of action against the Commonwealth. I want a lot of argument to persuade me that our Constitution allows the Commonwealth to do that.
MR BENNETT: Your Honour, the short argument is that it is incidental to the aliens power to detain persons who are reasonably suspected of being aliens pending a determination of whether they are or not, in the same way as it is reasonably incidental to the trade and commerce power, to the prohibition on the importation of heroin, to not merely arrest, but convict and punish a person for possession of something which is reasonably suspected of being imported. The incidental nature arises there because of the difficulty of determining whether heroin has been imported or not, and therefore, in order to effectuate the valid prohibition on imported heroin, one is permitted to prohibit the possession of something which is very similar to it; it is incidental to it.
McHUGH J: Actors Equity v Fontana establishes the Commonwealth cannot deem a fact to be a fact for constitutional purposes.
MR BENNETT: No, your Honour, I do not seek to do that.
McHUGH J: It seems to me you are coming very close to it when you say, “We can’t deem you to be an unlawful non‑citizen, but you have no cause of action if we say we reasonably suspect you’re an unlawful non‑citizen”.
MR BENNETT: Well, your Honour, suppose there was a law saying that a group of officers would be appointed with power to require every person present in Australia to demonstrate that the person was not an alien, and a person who was born in Australia of Australian parents, an Australian citizen in every way, refuses to attend before that officer and challenges the validity of the law which directs the person to do it. The law, we would submit, would be incidental to the aliens power, even though it has an effect on non‑aliens, in much the same way as in the case about migration officers, Cunliffe. The officers concerned in Cunliffe were not aliens, but the aliens power permitted something to be done in relation to them. One does not simply say, “Oh, they’re not aliens, so the aliens power does not apply to them”. They are doing something relevant to the aliens power. Here a person who is reasonably suspected of being an alien, where one needs to determine if the person is or is not, is in the same incidental category.
McHUGH J: Let us test it this way. Supposing, instead of relying on the common law, the Migration Act had been amended to say, “No cause of action shall lie at the hands of any person detained under section 189”. Given Antill Ranger, could the Commonwealth say that was a valid law of the Commonwealth?
MR BENNETT: Your Honour, Antill Ranger is a completely different case, in my respectful submission.
McHUGH J: I knew you would say that. You say it is an immunity case?
MR BENNETT: Yes, your Honour. If one does not permit the recovery of a tax exacted under circumstances where the common law would give a right of recovery because the tax is invalidly imposed, then by doing that one is in effect imposing the prohibited tax. One is doing the very thing that falls within the prohibition in section 92. One is simply doing it indirectly. That is not this case at all.
First of all, we are dealing with a power rather than a limitation on power, and in relation to a power it is simply a misdescription of the scope of the aliens power to say it applies to certain people and does not apply to others. The word “apply” has an ambiguity about it. The power is a power to deal in certain ways with aliens. If doing so ‑ ‑ ‑
HAYNE J: It is a power to make laws and the question is a question about the validity of the law.
MR BENNETT: Yes.
HAYNE J: Is there any challenge to the validity of 189?
MR BENNETT: Well, the way the Court of Appeal put it, yes. They say this is a person to whom those sections do not apply. The Court has held that constitutionally – and I will come, as I say, to the estoppel arguments – he is not subject to the aliens power, therefore his detention was wrongful, et cetera, therefore section 189 had no application and so on. We say it is the wrong question to say – and it arises out of the ambiguity of the word “apply” when one says the Act constitutionally applies to a non-alien. It can, as it did in Cunliffe and as it did in Milicevic in relation to non‑imported goods. It is simply incidental to a power to deal with X that one may have to pass a law dealing with non-X in order to deal with X where it is incidental to do so, and it is as simple as that. And that is why I gave the analogy of the queue at Kingsford Smith Airport. The Australian citizen is not entitled to say “I’ve read that sentence in Air Caledonie which says I have a right to enter Australia, so I’m not going to wait until I get to the front of the queue; I am going to walk out”.
KIRBY J: Yes, but that is a completely different case. This is administration for the purpose of maintaining the border and allowing people through. What you are putting up is exactly what Justice McHugh has been saying you cannot out of respect for and maintenance of the Constitution. You are trying to say, “Though we thought we had the power to deal with you this way because you were an alien, the High Court having now clarified in Ex parte Taylor that you are not an alien, nonetheless we won’t worry about that. We will forget the Constitution and the constitutional exposition and we’ll just say it was done and it is valid”. Well, that is to downgrade the maintenance of the basic law of the nation.
MR BENNETT: Your Honour, my answer to that is very simple and it is that the Constitution does not say that you cannot deal with a person who is not an alien in the ways in question. The Constitution says there is power to deal with aliens and there is power to do things incidental to dealing with aliens and it may be incidental in doing things by legislation to aliens to do things which affect non-aliens. Cunliffe is a very good example of that, and one could think of other examples.
McHUGH J: But if the District Court was a court of common law pleading, an issue would have arisen in this way. You have pleaded certain facts which you say is a defence to a common law cause of action. The question is whether those facts constituted a defence at common law, including the fact that you acted under this particular statute. Now, if it was a court of strict pleading, the plaintiff replication would have confessed and avoided your plea by saying that ultimately the High Court declared that the plaintiff was not an unlawful non-citizen and that would have been pleaded as an answer to your defence. You would have then had to demur to that.
MR BENNETT: Yes.
McHUGH J: That raises the question, does it not, as to whether or not the common law permits the Commonwealth to rely on a reasonable suspicion case in a situation where it has held the constitutional power does not in fact extend to that situation?
MR BENNETT: Well, your Honour, the court has not said that. What the court ‑ ‑ ‑
McHUGH J: Well, it has said that he is not an alien.
MR BENNETT: Yes.
McHUGH J: And you relied on the aliens power.
MR BENNETT: Yes.
McHUGH J: You did not rely on the immigration power, just the aliens power.
MR BENNETT: Yes, and the aliens power permits one to deal with people who are not aliens where that is incidental to dealing with people who are aliens.
McHUGH J: That is true. Sorry, let us accept that premise. The question then is, though, whether the common law, conformably with the Constitution, would permit that. Not a question of statutory construction, not even a question of constitutional power. It seems to me it is a question whether the common law should permit such a defence.
MR BENNETT: The common law says nothing about the validity of the Act.
McHUGH J: I know it does not, but this is a common law pleading.
MR BENNETT: And I have pleaded a section ‑ ‑ ‑
McHUGH J: You are in the common law.
MR BENNETT: I have pleaded a section of an Act which I am submitting is valid.
GLEESON CJ: There is a question of timing involved, is there not? If the issue is the reasonableness of the suspicion that was entertained, then who decides that and when? Do we not decide that now? Subject to any estoppel that might exist, if the common law raises as a question for decision the reasonableness of the suspicion that these officers held, then we decide that now, do we not?
MR BENNETT: Yes, your Honour. The common law only raises that as a matter of statutory interpretation, because the validity of the statute ‑ ‑ ‑
McHUGH J: No, I do not see. The point is, you may well succeed on this particular point because determining the question of reasonableness at this point of time, given the subsequent decision, may mean that the defence was a good defence. But I am interested in the question of principle.
MR BENNETT: Yes.
McHUGH J: And that is as to whether or not the mere fact that the Commonwealth says something or one of its officers can act on reasonable suspicion and it turns out that there is no link with a constitutional head of power, whether or not that provides an answer to a common law action. And that is a question of common law principle.
MR BENNETT: Your Honour, if there is no link with a constitutional head of power, it does not, but we say that the incidental power extends to justify section 189 in its application to non‑aliens. It is as simple as that. In the same way as Cunliffe did. One did not say, “Oh, this immigration adviser is not an alien, so he is not within the power”. He was doing something which related to aliens. Here the nexus to the aliens power is the reasonable suspicion, which can be dispelled once the matter gets to a court.
McHUGH J: Yes, I know, but the common law has provided a defence to false imprisonment, a defence of reasonable cause, and reasonable suspicion, in the case of a constable, for example, at common law, was held to be an answer. But this seems to me to be a common law question as to whether the common law should permit or should extend to a case like the present.
MR BENNETT: Your Honour, it is not a common law defence, it is a statutory ‑ ‑ ‑
McHUGH J: It is not a statutory defence.
MR BENNETT: It is not a defence, your Honour, we say the arrest ‑ ‑ ‑
McHUGH J: It is pleaded in bar to a common law action.
MR BENNETT: What is pleaded, your Honour, relevantly – of course there are other things – on pages 8 and 9 is that it was lawful detention – I am paraphrasing – because of section 189, because their officers held a reasonable suspicion and that meant the statute provided for the detention.
McHUGH J: But that is the issue, is it not? Is it a lawful detention for the purposes of the common law? Assuming against you for the moment that the Court has held that it was not a lawful detention, then the question is as to whether 189, which enabled you to act in that way, ought to be recognised as a defence. Maybe it should and maybe it should not.
MR BENNETT: That involves the issue estoppel issues and so on.
GUMMOW J: Not just that. Is there anything in Hazelton we should look at on this? That is the case of the Pacific Islanders ordinance, remember?
MR BENNETT: Yes, I do, your Honour.
GUMMOW J: It is 5 CLR.
MR BENNETT: Yes. Your Honour, that case is distinguishable for this reason ‑ ‑ ‑
GUMMOW J: I am just worried about the principles, 445 at 460.
MR BENNETT: Yes. What happened there was that the ordinance was simply not in force in New South Wales. The defence was an exoneration under the ordinance which said one could not be sued for anything done under the ordinance. Now, as a matter of construction it clearly was not done under the ordinance if the ordinance was not enforced in New South Wales and that really is all the case decided. Indeed, even that was only obiter because it was not strictly – if the ordinance was not enforced in Australia the defence could not apply anyhow, but the Court said even if one did seek to apply that defence, as a matter of construction it did not apply because it only applied to things done under the ordinance and the detention in New South Wales was not under the ordinance because it was not ‑ ‑ ‑
GUMMOW J: It was an action for wrongful imprisonment.
MR BENNETT: Yes, your Honour.
GUMMOW J: Sir Samuel Griffith said:
The mistake of the respondent was neither as to a matter of fact nor as to the construction of a law of New South Wales, but as to the existence of such a law. In the words of Bayley J, in Cook v Leonard there was no colour for supposing that the act done was authorized.
How would that square in ‑ ‑ ‑
MR BENNETT: Yes, but, your Honour, ultimately we say it is a construction case.
KIRBY J: This seems to me to be a bit of a Trojan horse. You have not only the power, which is the core, you then have the penumbra of that which is incidental to the power and involved in it and then you have the penumbra of the constitutional incidental and now the Commonwealth wants to have a further – it is getting like Saturn with all of its moons - of a reasonable suspicion that takes it even further beyond. Where are we in upholding the constitutional power? That is our duty.
MR BENNETT: But the constitutional power is a power with section 51(xxxix) to do things in relation to aliens and matters incidental thereto. The short question is, is it incidental to the aliens power to detain a person reasonably suspected of being an alien, pending the determination, as long as one has a provision, as one has here, in effect, requiring release as soon as the suspicion ceases because it is determined either by a court or as a factual matter, administratively, that the person is not an alien.
KIRBY J: The trouble with it, though, is that it gives a very large and, I think, new power to the Commonwealth to say, “Well, we are going to detain anybody who we reasonably suspect may once have gone to a lighthouse, we are going to detain anybody that we reasonably suspect is involved in terrorist activities, in interstate trade and commerce”. I mean, it is really pushing the envelope and I do not like the direction.
MR BENNETT: Each of those would involve very different considerations. The first would be invalid, because the lighthouses power would not extend, as a matter of nexus, to dealing with a person who had once had a connection with a lighthouse, so ‑ ‑ ‑
KIRBY J: Yes, but suspicion is infinitely varied. There are very suspicious people out there and officials who have lots of suspicions. This is the problem with pushing it on the foundation of suspicion.
MR BENNETT: Your Honour, it has been the law in relation to the power of arrest of constables both at common law and by statute ‑ ‑ ‑
KIRBY J: That is true, but we are in the realm of constitutional law. Our duty is to the Constitution and to ensuring against the excessive use or incorrect use of power. That engages a different dialogue.
MR BENNETT: Well, your Honour, suppose the ‑ ‑ ‑
KIRBY J: It is not such a bad consequence, if I can respectfully say so tentatively, that if it turns out that the Commonwealth does things under the Constitution which, by the elucidation of the Constitution in this Court, turn out to have been ill‑founded, that in such circumstances people who have lost their liberty are entitled to recover damages as a consequence. That is not such a bad result and, after all, it is the result that was found in this case. Footnote, the foundation for the belief was an intermediate position between Nolan and Shaw that has now been undermined by Shaw, and what is the result of that? But assuming we are in the intermediate period, it is not such a bad consequence for upholding the Constitution that if it turns out that the belief was ill‑founded in a mistaken view of the Constitution, that that gives people remedies where they have been detained to get damages as a consequence.
MR BENNETT: Your Honour, we do not have the action for damages for breach of the Constitution that the United States has developed.
KIRBY J: No, but we do have damages for wrongful arrest, and if the arrest was founded on an ill‑conceived notion of the Constitution, it is not such a bad result that the courts uphold the liberty as being taken away in consequence of a mistaken view of the Constitution.
McHUGH J: And if your argument is right, we might have to develop a Bivens v Six Unknown Named Agents cause of action.
KIRBY J: I do not encourage that.
MR BENNETT: Well, your Honour, that is the normative argument of Professor Jane Stapleton, which was adopted by Justice Ipp. But the question in this case is not going as far as that. The simple question is, is it incidental to a power over aliens to deal in the way section 189 deals with persons reasonably suspected of falling into that category prior to the ultimate determination which, if they are not subject of the power, will result in their release? And that, in my respectful submission is classically within power, within the implied incidental or the express incidental power. The ultimate proposition is as simple as that.
KIRBY J: In this case it took an awfully long time of detention, two very extended periods. There is an outbreak of detention not only in this country but in other countries. There is a lot of detention going on and as far as I am concerned it is a matter that has to be reined in in the terms of the Constitution.
MR BENNETT: Your Honour, the great bulk of it with the exception of one recently notorious case and perhaps this case is concerned with aliens, so it is not a matter of the scope of the aliens power as it is here. The reining in to which your Honour refers has nothing to do with this argument. This argument is simply concerned with the fact that the ultimate issue is one which the officer may not be able to determine. People do not normally wear placards around their necks saying “unlawful non-citizen”.
GLEESON CJ: Does the proposition that a reasonable suspicion can involve an error of law possibly involve an oversimplification? The passage in Sir Samuel Griffith’s judgment that Justice Gummow just mentioned seems to suggest that there may be relevantly different kinds of error of law.
MR BENNETT: Yes, and there are a number of cases which discuss that which I will take your Honours to. There is a case in England about an invalid by-law which I will take your Honours to in due course. Here, of course, it is not so much an error as to the relevant fact, it is an error as to the ‑ ‑ ‑
GUMMOW J: It is an error as to the standing of Nolan.
MR BENNETT: In one sense, even if the officers concerned had never heard of Nolan, which one assumes they probably had not.
GUMMOW J: It is an error as to the view of the standing of Nolan and the operation of stare decisis.
MR BENNETT: But, your Honour, that does not prevent one having a reasonable suspicion.
GUMMOW J: Exactly.
MR BENNETT: Can I even put this example, your Honour. Let us assume that the officer is a distinguished lecturer in constitutional law and is thoroughly familiar with all the constitutional arguments and issues. That officer ‑ ‑ ‑
McHUGH J: This is a hypothetical case, is it?
MR BENNETT: Very much so, your Honour. That officer would be entitled to say there is an issue which may go either way in the High Court, but in the meantime, because there is a possibility that it will go one way ‑ ‑ ‑
GUMMOW J: This issue had been in the High Court and it had gone one way and that is what Nolan decided.
MR BENNETT: No, it had not, your Honour, not at the time of the detention. There was no detention which is sued for after the decision of this Court in Patterson.
GUMMOW J: I am talking about Nolan.
GLEESON CJ: The old case.
MR BENNETT: The old case, yes.
GUMMOW J: Yes, that is my point.
MR BENNETT: Yes, that puts it even more highly. The officer would be entitled to have a degree of certainty about it.
GUMMOW J: Exactly.
GLEESON CJ: But where does this dichotomy between errors of law and errors of fact leave the first detention? The first detention in the present case was based upon a cancellation of a visa which was later, if I could use this expression, set aside on an unknown basis. Is that right? By consent, as it were.
MR BENNETT: Yes, your Honour. I think we deduced from something that was said at the time that it was natural justice, but, so far as the evidence is concerned, it is an unknown basis.
CALLINAN J: I think what happened is that I made some observations, did I not, without giving a judgment, and adjourned the matter. Is that not what happened?
MR BENNETT: I am not sure, your Honour. It was not in the ‑ ‑ ‑
CALLINAN J: Surely that can be ascertained.
MR BENNETT: I have no objection to ‑ ‑ ‑
CALLINAN J: It is a matter of public record what I said in open Court.
MR BENNETT: It is, your Honour. There are problems with introducing evidence into this Court. Strictly, it is a matter ‑ ‑ ‑
CALLINAN J: I do not know whether there are. It is part of the proceedings in this Court. I do not know whether you need evidence of that, do you? It is a matter of public record.
KIRBY J: I am going to look it up on the Internet.
GLEESON CJ: There is no suggestion that the officer was a student of the proceedings in the Court, is there? Presumably, all the officer knew at the time of the arrest was that there had been a cancellation of the visa, and we now know that that cancellation was later quashed.
MR BENNETT: Yes, your Honour. There is a statement in your Honour Justice Callinan’s judgment in Re Patterson; Ex parte Taylor in paragraph 355, and perhaps I should read that, because I think that answers the question that is asked about this:
On 16 March 2000, I heard an application by the prosecutor for prerogative relief pursuant to s 75 of the Constitution. I then indicated that I would, subject to the clarification of one factual matter, be minded to grant an order nisi on the ground of a breach of the rules of natural justice but not on any ground of unreasonableness.
That is where the natural justice came from, that passage –
I adjourned the matter to 18 April 2000. The respondent in those proceedings consented to orders of the kind that I had been minded to make. Accordingly on 12 April 2000 I made orders absolute by consent ‑ ‑ ‑
GLEESON CJ: Where does a situation like that fit into the kind of problem we are looking at in relation to your argument 1a? Forget about the Re Patterson; Ex parte Taylor/Shaw line of country and just deal with the problem for the moment in relation to the first detention, that arises out of the fact that there was an order of the Court setting aside the cancellation of the visa in circumstances where it was the cancellation of the visa that was the basis of the suspicion.
MR BENNETT: Your Honour, our answer to that is that the officer, having seen a document which purported to be a cancellation, reasonably suspected that the person was an unlawful non‑citizen. The officer would have had that suspicion had the document been a forgery which some malicious person had produced, if it was liable to be set aside and was subsequently set aside for some reason concerned with the jurisdiction to make it, or for any of a number of reasons, but the officer had a reasonable suspicion. It does not even necessarily involve a mistake of law. The officer could in theory – and I stress only in theory – have said, “There may be some argument about natural justice here and it may well be, therefore, that he’s a lawful non‑citizen, not having validly had his visa cancelled, but I reasonably suspect”.
CALLINAN J: Mr Solicitor, it was only orders nisi that I intimated that I would make, was it not?
MR BENNETT: The order absolute was made by consent by your Honour.
CALLINAN J: My intimation was only with respect, was it not – I am not asserting this, but I think I said that I would make orders nisi, did I not, sitting as a single Justice? I may have done, but I do not think I suggested I would make orders absolute.
MR BENNETT: Yes. Your Honour says:
Accordingly on 12 April 2000 I made orders absolute by consent.
HAYNE J: Look up five lines, will you, Mr Solicitor:
I would, subject to the clarification of one factual matter, be minded to grant an order nisi ‑ ‑ ‑
MR BENNETT: Yes, and that was on 16 March. His Honour goes on and says:
I adjourned the matter to 18 April 2000. The respondent in those proceedings consented to orders of the kind that I had been minded to make. Accordingly on 12 April 2000 I made orders absolute by consent –
So ultimately, his Honour made orders absolute by consent.
HAYNE J: The only intimation his Honour gave was a willingness to grant order nisi.
MR BENNETT: Yes, that is so, your Honour, but the fact is the orders were made by consent and we accept the consequence of that and the retrospectivity implicit in the orders absolute. But that does not mean that the officers did not have, seeing the document prior to those events, a reasonable suspicion that the person was an unlawful non-citizen.
KIRBY J: That was on the foundation of the legislation that introduced the requirement of British subjects in the 1990s - I think it was 1992 - to have these visas. Before that, it was assumed that they were Australian nationals.
MR BENNETT: Yes.
KIRBY J: That is what Re Patterson said was the mistaken assumption of the Parliament in 1994 that they needed those visas.
GUMMOW J: 1984.
KIRBY J: It might have been earlier - 1974 it might have been.
MR BENNETT: Yes. That was something which the officers did not advert to, but there was still a reasonable suspicion that the person fell within the relevant category.
KIRBY J: But only on the basis that though a British subject, Australian voter, Australian national in his view, was within the ambit of the aliens power, which according to Re Patterson was a mistaken assumption, totally and completely flawed.
MR BENNETT: It was an assumption your Honour – the officer no doubt relied on the legislation and the ‑ ‑ ‑
KIRBY J: The constitutionally flawed legislation. That was the holding of four members of the Court until the Court’s composition was changed in Shaw.
MR BENNETT: But be that as it may, that does not prevent there being a reasonable suspicion that this person was an alien, and the fact that there may implicitly in that be an error of law, it does not prevent the officer holding the reasonable suspicion.
KIRBY J: Is there any case where the reasonableness of the suspicion has been upheld against the constitutional determination that there was no power? How can it be reasonable if there is no power? It may be subjectively reasonable, but that is not the question in constitutional adjudication, which is to uphold the limits of power. Has there been a case where that issue has been addressed, or is this the first time?
MR BENNETT: This is the first time the issue has arisen in that form, your Honour.
HAYNE J: Because it conflates two questions, and the issue thus posed conflates two questions, namely, a question of the validity of section 501(a) in its application to Mr Taylor.
MR BENNETT: Yes.
HAYNE J: The separate and distinct constitutional question, not I think yet raised in this litigation, about the constitutional validity of that element in section 189(1) comprised by the words “reasonably suspects”. For the argument that is presently under consideration, it seems to me to be an argument that proceeds from the premise that 189(1) can have valid operation only to the extent of authorising an officer to detain an unlawful non-citizen. The question of validity of 189(1), correct me if I am wrong, has not yet arisen in this litigation, has it?
MR BENNETT: Your Honour, we would respectfully adopt everything your Honour has put in that question. It is perhaps put more clearly than I have been doing. The short point is it is incidental to dealing with aliens that one is going in some cases to deal with non-aliens while one determines if they are aliens.
HAYNE J: The conflation occurs from the way in which you put your proposition, Mr Solicitor. The power under consideration is a power under 51, a power to make laws with respect to a subject matter.
MR BENNETT: Yes.
HAYNE J: And the conflation occurs because of this repeated proposition about whether there is power over Mr Taylor or power over persons in the class of Mr Taylor. The relevant question is a question about legislative power. Is 189(1) valid?
MR BENNETT: Yes, your Honour.
KIRBY J: Well, the suggestion, at least as I understand the written submissions, is that a person who is not a constitutional alien cannot enliven 189(1) because you cannot have the reasonable suspicion that a person in the migration zone is an unlawful non-citizen if constitutionally that person cannot be an unlawful non-citizen.
HAYNE J: As I say, the consequence then is that 189(1) cannot have lawful operation, cannot have valid operation, in respect of persons who, in fact, are not unlawful non-citizens. It cannot have operation in respect of persons who turn out to be citizens. It cannot have valid operation in respect of persons who turn out to be lawful non-citizens. Now, that is a field for debate I understand.
MR BENNETT: Yes, well, the answer to the example your Honour Justice Kirby puts to me is this. It just is not a question of the section applying only to particular people. Let us put the extreme example again and assume that a person such as Mr Taylor says, “I came from France and I have no visa”. Assume he asserted that to the immigration officer. One would not say the section cannot apply to him because we know that it cannot constitutionally apply to a British subject who came to Australia at a certain time. One would say there was a reasonable suspicion in this case as to matters that would bring him within the power.
Now, the problem then arises here that the reasonable suspicion may include information as to his origin which would enliven the decision in Patterson, but there is no evidence that the officers knew when he came to Australia or whether he had arrived recently or some time ago. The evidence is that they checked that he had had a visa which had been cancelled; that there was no other visa and acted on the basis of that. Now, had he come to Australia, for example, in 1990, on any of the judgments in Re Patterson he would have been an alien.
KIRBY J: Yes, but he did in fact come in the 1970s or 60s and he was living in a northern town. He went to school in Australia. He doubtless had an Australian accent. He was for all intents and purposes an Australian; claimed himself to be a national within the Constitution. Then the question is how, except by the assumption which the constitutional cases were designed to test, could it ever be a reasonable suspicion that such a person was an unlawful non-citizen, except on the premise that non-citizen British subjects at that time could be unlawful non-citizens.
MR BENNETT: One might suspect, your Honour, that the Minister had acted within the law, whatever it was. One might at least suspect that. It does not follow, of course, that everyone who comes from England develops an Australian accent, but perhaps that is another issue. I do not know there was any evidence about that question.
KIRBY J: When you come in your parents’ arms – anyway, we will not go down that track again.
MR BENNETT: Your Honour, we put, for the reasons Justice Hayne put in his question to me, that, in a sense, it asks the wrong question to say, does the aliens power apply to Mr Taylor? That is not the issue. The issue is, does the aliens power permit a law which is in the form of section 189 which can pick up, in its initial grasp, at least, people who are not aliens? We submit it can, for the reasons I have given.
KIRBY J: And not only allow their detention but require their detention. This is all part of the epidemic of detention. It is not something that one would struggle to push forward and enlarge, as far as I am concerned.
McHUGH J: But, as you implied, much depends upon the question. Let it be assumed that 189 is valid. What do you say about this, that the issue in the case is whether the Commonwealth can justify the trespass to the plaintiff by showing that its officers acted under a statute valid in itself, but which could not constitutionally apply to the plaintiff? Why is that not the real issue in the case?
MR BENNETT: Because, your Honour, I dispute the words “could not constitutionally apply to the plaintiff”. The word “constitutionally” can apply to anyone, to an Australian citizen – Cunliffe is the clearest example of that. It is in a different area, but it illustrates ‑ ‑ ‑
KIRBY J: Remind me of the facts there.
McHUGH J: Cunliffe was dealing with immigration agents.
MR BENNETT: Yes, it was, your Honour, to whom the aliens power would not apply if they were Australian citizens, if the argument is taken to its logical conclusion. One simply cannot say the aliens power does not apply to a non‑alien.
McHUGH J: Yes, I know, but that may be a reason why the statute is valid, in that it may be, in one sense, lawful or authorised – maybe lawful is not the term to use – it authorises his detention for Commonwealth purposes in the first place. But, if it cannot apply to him, is it a defence to an action for trespass to say, “Well, we acted under a statute, we were within its terms – that is, within the literal terms – but it just could not apply to him”?
MR BENNETT: Your Honour, yes. If the statute gives the defence, it gives the defence. Then the question may arise, is the statute valid or invalid? But to say he is not ‑ ‑ ‑
McHUGH J: It does not purport to give a defence. The defence is given by the common law. It is subsumed under the issue of reasonable cause, the onus being on you to show that there was reasonable cause for his detention for the purposes of the common law.
MR BENNETT: Yes.
McHUGH J: I keep emphasising that.
MR BENNETT: And at common law I say, this was a lawful detention because the statute says so. One then gets to an argument about constitutionality, perhaps, but that is the short point and in relation to reasonable suspicion, can I just say this. The passage I was looking for earlier in the judgment of Justice Meagher is paragraph 79 on page 418 where he says:
I cannot see how the officers concerned can be said not to come within the words “reasonably suspects”. After all, their suspicions were shared by three members of the High Court of Australian (including the Chief Justice), whom it would be impious of this Court to suggest were acting unreasonably.
Of course, one may have a reasonable view about the law which is wrong.
KIRBY J: And that was the state of the law for the time that Taylor prevailed until Justice Gaudron left the Court.
MR BENNETT: Yes, your Honour.
GUMMOW J: It was not the state of law at the time of these events. The state of the law at the time of these events was Nolan.
MR BENNETT: Yes.
KIRBY J: The state of the law is the law, and therefore it is a question of ascertaining the law ‑ ‑ ‑
GUMMOW J: The state of the law now is Nolan again.
KIRBY J: Well, that is only because Nolan has been restored by a differently constituted Court.
GUMMOW J: Well, that is irrelevant, is it not?
KIRBY J: It is not irrelevant. It is the fact of history and history cannot be expunged.
MR BENNETT: We would submit all that does not affect the argument in this case which is simply that so long as there is any doubt about the existence of the law, to put it at its highest, one can hold a reasonable suspicion, and that is the point in cases like Veivers. May I just take your Honours to Williamson v Ah On 39 CLR 95 and the judgment of Justice Isaacs is the one which I need to ‑ ‑ ‑
KIRBY J: What are you citing this case to establish?
MR BENNETT: That, your Honour, it is incidental to the aliens power to have evidentiary provisions in that case which may operate, notwithstanding the absence of the constitutional fact that the person is an alien. The challenge there was to the validity of a provision which effectively put the onus on the defendant who was charged with the offence of being unlawfully in Australia to show that he was lawfully here and the argument against the legislation was, there is a constitutional fact, you cannot change the burden of proof in relation to that. That argument failed, although two of the Justices accepted it.
KIRBY J: This was in the heyday of the White Australia policy, of course, and designed to uphold that policy.
MR BENNETT: Your Honour, I am not asking your Honours to do anything in relation to that, obviously.
KIRBY J: No, but it is a social fact ‑ ‑ ‑
MR BENNETT: It is a context ‑ ‑ ‑
KIRBY J: ‑ ‑ ‑ against the background of which this was declared.
MR BENNETT: Yes, your Honour, but the ‑ ‑ ‑
KIRBY J: We have made a little progress, one hopes.
MR BENNETT: Well, perhaps I could read your Honour the whole passage, which includes a reference to that policy. At the beginning of his Honour’s judgment at page 103, his Honour says:
The importance of this case is not easily measurable –
I think by that he means it is very important –
On its decision, as the position presents itself to me, depends the power of the National Parliament to give any effective force to what is known as the White Australia policy, or to any policy of controlling undesirable immigration. Indeed, the main principle contended for as the reason for annulling the relevant legislation would equally apply to seriously weaken other legislative powers, as, for instance, the customs, commerce and aliens. As to immigration, experience and well‑known circumstances have compelled, not only America, but also the self-governing communities of the Empire, as Canada, South Africa, New Zealand, as well as Australia, both before and since Federation, to enact stringent substantive laws in order to safeguard –
various matters –
In most cases, and in late years invariably, special evidentiary provisions have been included without which the main substantive provisions would be of little use. These evidentiary provisions have been found necessary to prevent or counteract the surreptitious or fraudulent evasion of the actual immigration laws by person who in truth are smuggled into the country and are only discovered, if ever, with difficulty. This is the class of persons with which this case is concerned, and, broadly speaking, the only class of persons intended to be reached by the legislation impeached by the respondent.
Then at the top of page 104:
How, then, can this nefarious and dangerous practice be nullified where it escapes detection at the time of entry? The only method so far found effective in which a legislature can provide for such a case and secure obedience to its enactments on immigration is to throw the burden of proof as to membership of the community on the suspected person. A nation has the strongest right to trust its executive officers who are administering the law to be both vigilant and careful to form, wherever necessary, a fair and honest prima facie opinion as to the citizenship of any person within the territory –
et cetera.
GLEESON CJ: I have some difficulty reconciling all that with what appears on page 117 in the middle of the page, in the first sentence of the paragraph beginning with the number 9.
MR BENNETT: Yes, that is a general statement about constitutional validity, your Honour, which is ‑ ‑ ‑
GLEESON CJ: Well, we know that Sir Isaac Isaacs was one of the most outspoken proponents of the White Australia policy, so why are we concerned with this?
MR BENNETT: Well, your Honour, only for this reason – and he was in the majority in that case – only because the case illustrates that where you are enforcing a power such as immigration or aliens, or, as he says, customs or even in some cases trade and commerce, one made need, as part of doing it, to reverse the onus of proof. Now, this goes further. This is not reversing, this is going to the next step of saying reasonable suspicion is sufficient for certain consequences. But the reasonable suspicion is only applied to what one might call interlocutory consequences. It is true that they involve a restriction on the liberty of the individual. I accept that, but it is an interlocutory restriction of a type which is familiar to the criminal process because, as I have shown, your Honours, once the person establishes that he or she is a lawful non‑citizen or a citizen – in the case of being a citizen, of course, not subject to the aliens power in the sense that that phrase is used against me – then the person is released.
The question is to what extent is it incidental to that power to have the consequences dictated by section 189 in the intervening situation while, inter alia, one determines whether the person does or does not fall within a protected group, whether or not the person is in fact an unlawful non‑citizen. We all know that may take time, particularly if in the end it requires the determination of novel constitutional doctrine, as this case did.
An interlocutory restraint, I suppose, is about the most classic example one can have of an incidental power. The Equity Court daily pronounces interlocutory injunctions where in the ultimate action the injunction is set aside or the injunction is not continued and there is no final injunction. The criminal courts daily acquit people who have been imprisoned pending trial. Those are interlocutory and incidental restraints, incidental to whatever particular power is ultimately being exercised which, in those examples I have given, does not extend to a permanent restraint of the relevant type.
KIRBY J: So does the question become whether the suggested constitutional flaw, if it was a flaw, puts this case into a separate class?
MR BENNETT: Your Honour, I am only dealing with the validity of the section at the moment so it is only the constitutional ‑ ‑ ‑
GUMMOW J: The validity of section 189 is not challenged, as I understand it.
MR BENNETT: The validity is challenged in relation to its application in this case on the basis of Taylor’s Case. The argument against me is it is not capable, constitutionally, of applying to a person in Mr Taylor’s position, therefore ‑ ‑ ‑
HAYNE J: That is less than sparklingly clear from the respondent’s 78B notice at 429.
MR BENNETT: Your Honour, that may be so, but that is the argument I have to meet.
HAYNE J: You say you have to meet it.
MR BENNETT: Your Honour, if I do not have to meet it I could almost sit down now.
KIRBY J: I must admit that the way you have put it is the way I understood the respondent’s argument from the written submissions. The respondent does not say that the section is invalid in toto. He just says that it may be valid in its application to lots of aliens, but it was not valid in application to him because at the time the understanding of the law was that he was not an alien or non‑citizen.
MR BENNETT: Yes. Your Honour, it is certainly put that way by the Chief Justice and I will just take your Honours to the passage. At paragraph 15 on page 400 his Honour says:
Each of their Honours in the majority stated that s501 could not apply to the Respondent for constitutional reasons . . . The trial judge held that this conclusion necessarily meant that s189 could also have no application. I agree.
GUMMOW J: That is the problem, is it not?
MR BENNETT: Yes, it is, your Honour.
GUMMOW J: It is a non sequitur, as Justice Hayne’s question was drawing out.
MR BENNETT: In the next paragraph his Honour repeats it:
Section 15, in terms, applies upon cancellation of a visa. When that occurs, the person becomes “an unlawful non‑citizen”. If s501 cannot constitutionally apply to the Respondent, nor can s15. Section 15 covers the field relevantly for present purposes –
That is the definition section –
If the definition of an “unlawful non‑citizen” s 15 cannot constitutionally apply to the Respondent, s 189 can have no application either. In my opinion, that necessarily follows from the majority judgments in the High Court.
That is the proposition I have to meet, and your Honour Justice Heydon’s question earlier demonstrates very clearly, with respect, why that is worng. Mr Justice Meagher says the same thing in paragraphs 68 and 69. He says:
Re Patterson; Ex parte Taylor overruled Nolan’s Case . . . The central concept of the new doctrine enunciated in Re Patterson, Ex parte Taylor was that there were no longer simply two categories, citizen and alien; there was a third category, viz a non‑citizen non‑alien; Mr Taylor fitted into this third category, which consisted of (apparently) any British subject who had resided in Australia permanently since 1984 . . . and that not being a citizen no longer meant being an alien.
The consequences of this concept were that (a) the provision of s 501 concerning the cancellation of visas no longer applied to persons in Mr Taylor’s position; (b) that neither did the power to deport; and
(c) probably neither did the power to detain, subject to one condition.The statutory framework in which the officers of the Department thought they were operating was thus shattered, even though they genuinely thought it still existed. The respondent (Mr Taylor) to this appeal made explicit that no attack was made either on the bona fides –
and so on. So that is the way the case is put against me. Justice Ipp, at paragraph 84 on page 419, agreed with both the Chief Justice and Justice Meagher and then went on to quote Professor Stapelton and put the normative test, which he then applied.
KIRBY J: What I do not quite understand, and no doubt it will become clear, is why you do not mount a frontal argument, saying, “Nolan correctly stated the constitutional rule, there was a short interregnum of error in Patterson; Ex parte Taylor, error has been expunged and correctness has been re‑established by Shaw. At the time the trial judge and the Court of Appeal decided this case, they were bound to and applied error, but the matter is still alive in the judicature, it is before this Court and the true understanding of the Constitution having been restored in Shaw, therefore, this Court will give effect to that true doctrine”.
MR BENNETT: Only because, your Honour, that does not answer what I have called the first argument in my one page document, the argument based on the fact that on both occasions, the decision cancelling the visa was set aside for reasons unrelated to the Constitution. So on ‑ ‑ ‑
GLEESON CJ: It does not provide an answer to damages for the first period of detention.
MR BENNETT: Precisely, your Honour, it does not. That is the reason I have to go into the other areas, and also there is the estoppel argument, which I will come to.
KIRBY J: There is a real problem with estoppel against the Constitution.
MR BENNETT: Yes. The starting point then in 1a, on the basis of a number of cases which we have cited, is that an error of law is capable of falling within the relevant words, even a constitutional error, and the officers reasonably suspected. And we would say, if necessary to go this far, that it would be within the incidental power for the Act to have said this, “If a person claims that for constitutional reasons the aliens power does not apply to him or her, that matter shall be determined by a court and pending its determination the person shall be held at immigration detention”. That would, we submit, be a valid exercise of the incidental power.
The issue has to be determined. It is a different matter once it has been determined, of course, but while it is being determined someone has to lay down what is to occur in the meantime. One sees an example of the same sort of approach in cases like Castlemaine Tooheys where this Court is reluctant to pronounce an interlocutory injunction in the face of a statute against the enforcement of the statute where there is an argument the statute is unconstitutional. One starts with the assumption it is constitutional and interlocutory arrangements are made on that basis except in the most extreme cases. There may be extreme cases where, and there are extreme cases where injunctions are granted, where the subject matter of the litigation might be destroyed and so on. That is not this case. So we submit this is simply not a case where there is any relevant constitutional limitation.
I will not repeat my arguments based on all the cases. They are all set out and we submit that the mistake of law, if that is what was made, mistake of law in believing the Ministers’ cancellation to be a valid cancellation in relation to someone who otherwise required a visa, is on any view, reasonable. As I have said in 1a, that has two consequences. The first is that the officers reasonably suspected. They are not liable and we are not vicariously liable for their actions.
GLEESON CJ: Is that the basis on which the Commonwealth was sued?
MR BENNETT: It was sued on two bases, your Honour. The first is the officers and vicarious liability for them and the second is the Ministers’.
GLEESON CJ: Thank you.
MR BENNETT: We accept that if either is liable, the Commonwealth is liable.
GLEESON CJ: Did the judgment of the judge at first instance involve a finding of vicarious liability for the officers and, therefore, a finding the officers were liable?
MR BENNETT: It seems to have because her Honour took the view that she would not follow Veivers. She said although it was an interstate Supreme Court decision she believed it to be fundamentally wrong. On 367 in paragraph [123] she states the issue:
The defendants rely upon Veivers . . . and remarks made in an dissenting judgement of McMurdo P in Coleman ‑
That is the case that came into this Court -
as establishing that provisions such as s.189 will protect in a case of error of law as well as error of fact.
Then she says at the top of 369:
In any event, I consider that the decision in Veivers is plainly wrong. It is very well established –
and we submit it is not –
that, where an officer arrests or detains a person because he or she “reasonably suspects” . . . but it transpires that the reasonable suspicion was based on a mistake of fact, then the officer will be protected.
That is correct.
It is equally well established –
and we submit there is no case establishing this –
that protection against an arrest/detention based on an error of law should be provided through a protective provision enacted for that purpose.
It is not clear what that means. Then she goes on to say:
The plaintiff propounds the additional argument that, even if s.189 could protect an officer in relation to some mistakes of law, it could not protect an officer where the mistake of law was a mistake about the extent of constitutional power . . . I accept this argument . . . if parliament intends to protect officers acting under a mistake of law, then that intention should be clearly expressed.
GLEESON CJ: I just want to understand whether the decisions in the District Court and in the Court of Appeal involve as part of the holding that the officers were liable, even though they were not parties to the proceedings, and that that was one of the bases of the liability found against the Commonwealth.
MR BENNETT: She certainly seems to assume – my understanding is yes, that she ‑ ‑ ‑
GUMMOW J: Is there any specific passage? I do not think there is, is there?
MR BENNETT: I think it is implicit in the fact that she says the officers cannot rely on a mistake of law for having a reasonable suspicion.
GUMMOW J: Likewise in the Court of Appeal. I think it is said against you that there was some concession on this question of the relationship between the Minister and the officer.
MR BENNETT: Yes. We do not accept that we made a concession, but I will come to that, your Honour.
GUMMOW J: It does not quite sit very well with the structure of the Act. The officer is not the Minister’s creature under the Act.
MR BENNETT: Yes, precisely, your Honour.
GUMMOW J: It would be quite wrong if he was acting under the direction of the Minister. There would be an administrative remedy, I imagine.
MR BENNETT: Yes, that is a different consideration.
HAYNE J: Much of the way in which the reasoning at first instance is case stems from the characterisation of 189 and its relevant operation as some form of protective provision, analogous with what was decided in Little (1947) 75 CLR 94, where I would have thought it was plain the Court was concerned with a protective provision, “No action shall lie”.
MR BENNETT: Yes.
HAYNE J: Rather, I would have thought that the question was not one of a protective provision, it was one about the ambit of the duty imposed by 189 on the officer concerned.
MR BENNETT: I fully accept that, our Honour. We submit the words have an English meaning.
GUMMOW J: And how one then gets into vicarious liability I do not for a moment understand.
MR BENNETT: Your Honour, that is 1b, which I am coming to. If I could just finish dealing with 1aii. We have always submitted that the detention was authorised by section 189. The consequence of that is that no one was liable. There is one sentence in our written submissions in the Court of Appeal which I accept is badly worded – it is my learned friend’s supplementary submissions, it is paragraph 46. If your Honours have my learned friend’s supplementary written submission – yes, there is a supplementary bundle as well, which has the whole document. My learned friends rely, as a concession, on the first sentence of our paragraph 46 in our submissions in the Court of Appeal and what was said ‑ ‑ ‑
KIRBY J: Which paragraph of the written submissions? Is this the respondent’s?
MR BENNETT: The respondent’s supplementary written submissions, your Honour, and it is also in a large fat document called “Respondent’s supplementary additions to the appeal book”.
GLEESON CJ: It is conveniently and sufficiently located, is it not, in paragraph 2 of the respondent’s supplementary written submissions filed on 1 March.
MR BENNETT: Yes, except we say that has to be read in the light of the submissions as a whole, which clearly submitted, as we have at all times, that the detention itself was lawful. The phrase used I think in argument is that it is not false imprisonment because it was not false. It was not false because of ‑ ‑ ‑
GLEESON CJ: Well, there does not seem to be any doubt about that because a large part of the reasoning in the judgments in the Court of Appeal and at first instance was directed to answering that proposition.
MR BENNETT: Precisely, your Honour, precisely. Now, unfortunately in paragraph 46, the first sentence literally is not correct, but it can be - what we said there was:
Of course, if the Ministers were seen as the relevant tortfeasors –
that should read of course, as “the only relevant tortfeasors”. In other words, if the Ministers had carried out the detention ‑ ‑ ‑
GUMMOW J: But they had not.
MR BENNETT: They had not, no, they did not. If they had, section……would provide no defence because the section only applies to an officer. It has to be the officer who forms the reasonable suspicion and the Minister is not an officer as defined.
GUMMOW J: Yes, I mean, there is a power in the Act as we know in 496, is it, of delegation by the Minister, but that is not involved here.
MR BENNETT: That is not involved here.
GLEESON CJ: You accept in your written submissions that it was the reasonable and natural and foreseeable consequence of the Minister’s action ‑ ‑ ‑
MR BENNETT: We accept that.
KIRBY J: ‑ ‑ ‑ that the respondent would have been taken into detention.
MR BENNETT: Subject to the possibility that on cancellation of his visa he would leave Australia, yes. Subject to that, yes.
KIRBY J: Why is that not within the scope of the tort?
MR BENNETT: Your Honour, I do not suggest – I will take your Honour to the ‑ ‑ ‑
KIRBY J: If you have the power and you do things that you know and ought reasonably to know and foresee will lead to people losing their liberty, why are you not the cause of their loss of liberty?
MR BENNETT: Your Honour, because as a matter of direct causation, we submit it is not.
KIRBY J: Why do you have – “direct” being the formula that is used in this tort.
MR BENNETT: Because your Honour, if one goes to all the cases, and most of them are shoplifting cases where the store summons the police and the question is, is the store liable for the resulting arrest, a distinction is drawn between cases where the store detective merely says to the police officer, “This is what has happened”, and cases where the store detective says, “Now, you arrest that person, I want him arrested, I want him taken away” and so on.
KIRBY J: What is the policy in the law in requiring direct causation?
MR BENNETT: That people should not be discouraged from making complaints to the police I suppose in those areas. There is a separate tort of malicious prosecution which of course applies in different sorts of circumstance, but ‑ ‑ ‑
McHUGH J: But frequently raises the same issue.
MR BENNETT: Yes, now ‑ ‑ ‑
McHUGH J: As to whether or not the person who put the facts before a detective is responsible for the prosecution, et cetera, et cetera.
MR BENNETT: Yes, well at its highest, that is all we did here. The situation is analogous, we would submit, if one is drawing analogies, to the store detective who says to the police officer, “This man just shoplifted”, and the police officer then says, “I have a reasonable suspicion ‑ ‑ ‑
KIRBY J: But was the sequence of events the typical sequence? The Minister ticks the boxes in a submission and then it goes down the line to some lowly officer of the Department. It would be a very brave officer of the Department who did not then go and proceed to put the person into detention.
MR BENNETT: Your Honour, there was no evidence suggesting that the Minister in either case had done more than tick the box and the events took their course.
KIRBY J: That then sets in train the steps of the detention and it is an inevitable, necessary and predictable consequence that you concede the Minister would reasonably have predicted.
MR BENNETT: I quibble with the word “inevitable” because of the possibility the person will say, “My visa’s been cancelled. I’m going”. If one had a bureaucrat in the State Department of ‑ ‑ ‑
KIRBY J: It is a very unlikely thing in this case, given that he had no connection whatever with the United Kingdom. At least it would have been open to the trial judge to have thought that that was something that the Minister must have had in his and her mind when the boxes were ticked.
MR BENNETT: Your Honour, I accept that it is the natural and probable consequence, but that is simply not the test in this area.
KIRBY J: Well, if the test is direct, you have a Minister with all the power of a Minister of the Crown of the Commonwealth who ticks boxes, sets in train a course, and you have a lowly official in a country town of New South Wales who then goes and arrests the person the subject of the Minister’s memorandum. It is a little bit unrealistic to say that person will either (a) exercise his or her discretion, if any, and not detain the person; or (b) talk the person into leaving the country. In this case that was a most unlikely result.
MR BENNETT: There is no discretion here, but the person might leave first. Could I give your Honours a number of analogies. One is ‑ ‑ ‑
GUMMOW J: Or might be rearrested by State authorities.
MR BENNETT: Yes. One is if an officer of the Department of Motor Transport erroneously, and without power to do so, purports to cancel someone’s driver’s licence and that person then drives, it is a natural and probable consequence the person is going to be arrested and charged and no doubt convicted. One would not say it was caused by that public servant in that example. It is caused by the person deciding to drive, notwithstanding that there has been an erroneous cancellation of his licence. That is, of course, different – there is a positive act there as opposed to the negative act of not leaving the country.
If one looks at the myriad of shoplifting cases and the reporting to the police cases and so on, the one thing that shines through all of them is that telling the police that the person has committed an offence is insufficient, even if it is virtually inevitable, when one tells the police that an offence has been committed ‑ ‑ ‑
KIRBY J: But is there not a distinction here? A police officer, at least in the theory of the law, has an independent discretion of his or her own, whereas when the Minister ticks the boxes, that sets in train the inevitable purpose and provisions of the statute of the Commonwealth which requires mandatory detention of the person. Therefore, there is no real possibility, or at least it is open to a primary decision‑maker to conclude no real possibility, that once the boxes are ticked, it is not going to have the inevitable consequence of expulsion.
MR BENNETT: Well, expulsion is ‑ ‑ ‑
KIRBY J: Expulsion, and detention as anterior to expulsion.
MR BENNETT: Your Honour, that would be so in most cases where one informs a police officer that a serious offence has been committed, because there is an inevitability, as a matter of practicality, which is what is relied on here, that the police officer will exercise his or her discretion and arrest.
KIRBY J: I just do not think the positions are analogous. Officer of the Migration Department administering the Migration Act in accordance with the Ministers’ memorandum. We have seen lots of these, Mr Solicitor. We have seen them in the cases.
MR BENNETT: If I go to a police station and say I saw X committing a murder, it is virtually inevitable that X will, at least initially, be arrested. Yet, all the cases make it clear that is not my action in the relevant sense. We are not talking about that sort of causation here. We are talking about something which makes the police officer my agent and there is a long line of cases, we have referred to a few of them ‑ ‑ ‑
KIRBY J: Well, if you do not think it is analogous to the police officer with the independent discretions and powers of police officers then these cases just do not touch the point. We are dealing here with mandatory detention.
MR BENNETT: Yes, your Honour, but if one is talking about the degree of likelihood of the event occurring, the degree of likelihood is the same, whether the police officer has a discretion or is bound to act.
KIRBY J: No, we are dealing with the character of the law in question that does not interpose the police constable’s independent discretion, but has an official who has a note from nothing less than the Minister of the Crown in the Commonwealth.
MR BENNETT: Not a note saying arrest this person. The cases draw a distinction and even in the case of the police officer, one may be liable if one says to the police officer, arrest that man, and the police officer acts on one’s express request. The cases draw that distinction. It is not causation in the normal sense of the word. If it were, all those cases would have been decided differently because there is causation in the normal sense. As a practical matter, if I tell a police officer that I saw someone commit a murder, the person will be arrested. That is practical causation with the highest degree of probability and there is no difference in principle merely because the police officer has a discretion to say, “Although you say you saw this murder committed, I am not going to arrest the person”. It is just so unlikely, it is not going to happen. Yet that does not fall within the type of causation we are talking about. We have referred to some of the cases in our submissions. I will not take your Honours through them but Myers Stores v Soo is ‑ ‑ ‑
GLEESON CJ: How do these questions of causation relate to exercises of judicial decision making now?
MR BENNETT: I do not think anyone has ever suggested that the complainant is liable for false imprisonment where there is the interposition of a judicial officer.
GLEESON CJ: What about people like delegates of the Minister who make decisions about visa applications that affect people’s status, immigration status?
MR BENNETT: Well, on the argument that is put in this case, they would be guilty of false imprisonment, if the inevitable consequence of the refusal of the visa is that the person will be held in immigration detention for a further period.
CALLINAN J: What about the Tribunal, the members of the Tribunal?
MR BENNETT: There may be a provision exempting it, your Honour. I do not know if there is or there is not. There may be a general provision which has that effect. But that is the sort of consequence my learned friend’s argument would have, that an administrative decision made under a statute which has a natural and probable consequence, even a highly likely or virtually inevitable consequence – although we, as I say, cavil at the word “inevitable” – is sufficient to make one the person doing it, to make that person one’s agent. That simply is not the law. There is no case which goes that far or suggests that.
McHUGH J: In the area with which I am more familiar, I suppose, false imprisonment in malicious prosecution cases concerned with police officers, it has always been held, has it not, that if a person makes a charge that an officer is under a duty to act, then that person is responsible for the constable’s action?
MR BENNETT: No, your Honour, if the ‑ ‑ ‑
McHUGH J: The reason why actions taken as a result of court proceedings do not found a liability in the complainant is because it is said that the court intervenes between the imprisonment and the initial complaint and the imprisonment flows from the exercise of the discretion of the court, not from the initial complaint.
MR BENNETT: But all the Minister has done here is create a situation in which the officer is likely to form a reasonable suspicion, and almost inevitably, certainly, whatever word one wants to use, will form that reasonable suspicion, assuming the person does not leave on the cancellation of the visa. That is all the Minister has done. That is analogous to telling the policeman the relevant facts.
The fact that the policeman has a discretion does not necessarily affect causation in the relevant sense, because one can create a situation where the exercise of that discretion is inevitable. An example I gave of telling a policeman that one witnessed a murder is in that category. There is no policeman who would not regard that ‑ ‑ ‑
McHUGH J: Mr Solicitor, when the Minister cancels a visa on the ground that the person is not of good character, what other conclusion can be drawn other than that the Minister wants this person deported? Anybody who thinks the contrary does not live in this world.
MR BENNETT: Yes. When you say “wants” ‑ ‑ ‑
McHUGH J: Is directing. That is the whole purpose of it. A submission is put before the Minister. In this case, if I recollect correctly, it puts the arguments backwards and forwards as to whether or not the person should be deported and there it is.
MR BENNETT: And that may or may not involve detention. The person may voluntarily go to the airport and depart without being detained.
GLEESON CJ: It was not just cancellation of the visa. It was cancellation on character grounds, that is, to get rid of him.
MR BENNETT: Yes. Your Honour, why is that different, one asks rhetorically, of the delegate who refuses to grant a visa?
GLEESON CJ: I find that an interesting question. We commonly hear cases involving people who are in immigration detention and the reason they are there is because some delegate has decided that they do not satisfy a criterion for a refugee under an international convention then brought into our legislation, and sometimes we decide that that decision was wrong or there was a denial of natural justice. We quash the decision of the delegate. What is the consequence of that in terms of wrongful imprisonment in circumstances where the legal consequence of section 189 is that by reason of the delegate’s refusal some officer was obliged to detain the person?
MR BENNETT: We say the detention is by the officer, your Honour, and by the officer only. The mere fact that the delegate did something which gave rise to the officer holding the reasonable suspicion does not make it the act of the delegate. It is the act of the officer, and the fact that the officer is required ‑ ‑ ‑
McHUGH J: The common law always drew a distinction, did it not, between proceedings which were the product of ministerial action and judicial action, and if a party employs administrative machinery or ministerial machinery then that person is at risk. I thought that was the law settled in the mal pros cases and the false imprisonment cases since the middle of the last century.
MR BENNETT: No, your Honour. The law in the false imprisonment cases is that one must actively promote, and in that sense cause the – and there are many many cases where the person has – and the distinction in the cases is between the cases where the person says to the police officer, “You arrest that person” even though the officer has an independent discretion, and the cases where the person says to the police officer, “I just saw that person commit a murder”.
GLEESON CJ: But the basis of the Minister’s decision to cancel the visa in this case was that the Minister decided it was in the public interest that this person should be excluded from the country.
MR BENNETT: Yes, your Honour.
GLEESON CJ: So the Minister was actively promoting. Indeed, the Minister had made, in the exercise of the Minister’s discretion, a judgment about public interest related to exclusion to which detention was incidental.
MR BENNETT: Yes, your Honour, incidental and may not occur if the person departs voluntarily. It is incidental. It is not part of the purpose. The purpose is exclusion. The purpose is not incarceration. Incarceration is simply something which may occur if the person does not submit voluntarily to the exclusion for a short – what hopefully would be a short period subject to Al‑Kateb and other cases – for what would normally be a short period, perhaps one should say.
There is no case suggesting that a person who does what was done here or anything analogous to what was done here can himself or herself be regarded as the person making the arrest. The nearest my friend is able to cite is the Spautz Case, which involved a magistrate, and that involved a warrant issued by a magistrate without power. The warrant of course is something which says, “Go out and arrest this person”. That is something very different to creating a situation in which the independent power is going to be exercised. As I said, the suggestion is inconsistent with the line of cases to which we have referred.
There was a short discussion of this in Cubillo, where it was said that the act of taking into custody there was the act of the person alone and that the Commonwealth by having a scheme was not within these cases about actively promoting and causing in that sense. There is a requirement of directness.
I should say one thing about one case which has some dicta which go a bit further than some of the other cases. That is the case of Davidson v Chief Constable (1994) 2 All ER 597. It is one of the cases in this false imprisonment line. I believe it was on our list, your Honours; it certainly should have been. It is a case where there was a ‑ ‑ ‑
McHUGH J: That was the case of the store detective.
MR BENNETT: It is one of the store detective line of cases. I apologise if your Honours do not have it. I had thought it was on our list.
McHUGH J: Was there a dictum in that case? If my recollection is right, the action failed, did it not?
MR BENNETT: The action did fail, your Honour, and it failed because the test I have referred to was not passed. That is not why I am going to the case. I am going to the case for something against me. It is a case where the police officer had the benefit of a statutory provision which protected him but the store did not take the point that the arrest was lawful because the police officer had acted in accordance with his statute.
McHUGH J: It was a pretty surprising decision. The store detective, if I remember rightly, gave false information to the police officer who then went along and arrested the plaintiff, and it was held the store was not liable.
MR BENNETT: Yes, it was held not to be enough, what had been done. It is a useful case in one sense because all the cases are examined, but the part which causes the problem is that, having determined that the police officer could not be liable, the Court of Appeal appears to have assumed that the test then was whether it amounted to some direct procuring or direct request or direct encouragement that they should arrest the plaintiff. We have no problem with that test, but what was not argued in that case and what seems to have been assumed against the store was that one got to that question, notwithstanding that the act of the police officer was a lawful act.
There is a problem with that, and the problem is this. Let us suppose that the person was guilty of shoplifting and the store detective knew that, and assume one has a case where the person is guilty of shoplifting and the store detective presents the police officer with a video of the act taking place and five reputable witnesses who saw it and says to the police officer, “Do your duty, arrest that man. We want that man taken and imprisoned” and so on, and assume he is ultimately acquitted on some basis. If the cases suggesting that that test can override the fact that the police officer lawfully arrested with a discretion mean that, it would mean that the store would be liable for false imprisonment on those facts. That simply cannot be right.
If one takes the analogy to the present case, let us assume an officious Australian citizen standing on a beach in Western Australia when a small boat lands and the officious citizen rings up the Immigration Department and then says to the officer who is sent out, “Officer, those people are clearly unlawful non-citizens; do your duty under section 189”, and does all the things which the cases say are relevant, then if it turns out – whether it turns out or not, if one says the arrest is the arrest of those persons, the arrest of the officious bystander, because he simply used the officer as his agent, the consequence would be that section 189 would have no application if my friend were right, because he is not an officer and his arrest would not be protected. That just cannot be right.
What we say is that the arrest by the officer is a lawful arrest, and that protects everyone. It is not a matter of a defence; it is a matter of the arrest not being wrongful. So this test of promoting and encouraging and so on which is used in the shoplifting cases is one which we would submit cannot have application where the act of the police officer by statute is a lawful act.
McHUGH J: I have some trouble about that. Are there not a number of cases in which it has been held that where the person signed the charge sheet – I think there may be a condition that sometimes the constable has said, “I won’t arrest the person unless you sign the charge sheet”, but when the person has signed the charge sheet, liability has ensued, notwithstanding in one sense that the arrest, from the constable’s point of view, is lawful.
MR BENNETT: Your Honour, most of the cases suggest that you have to go further than signing the charge sheet. There are cases saying that is not enough.
McHUGH J: I know there are, but there are cases where signing the charge sheet has been sufficient to sheet home liability.
MR BENNETT: I do not think that anywhere it alone has been sufficient; it always has to be accompanied by words such as “Take that man into custody” or ‑ ‑ ‑
McHUGH J: I am sure there is at least one case where the constable said, “I won’t arrest this person unless you sign the charge sheet”.
MR BENNETT: I think that may have been in a different category, because there it was treated as being the request, in the context of that statement. Your Honours, the problem with those cases is this, that where one has a statute which says the constable may not be sued if he or she acts reasonably or reasonably suspects, then one can understand that does not assist anyone else. If the section says that where the constable reasonably suspects an arrest is lawful, or in this case compulsory, then there is simply not a false imprisonment. The imprisonment is not false.
That essential element is missing in the same way as it is missing in the person who is held to bail between being arrested and being brought before a magistrate. For that reason, we submit, this test of inducing and causing and promoting and so on has to be read with caution and does not apply at all if the arrest itself is a lawful arrest. That is a subtle distinction, which is not captured properly by the sentence, in our submission.
GLEESON CJ: Well, leave aside the case of the officious Australian citizen that you mentioned. Suppose you have a malicious Australian citizen, who says to an immigration official, “That person there” – giving details to give colour to this allegation – “is an unlawful non‑citizen”, and the immigration official then says, “Section 189 requires me to detain the person”. What is the position then?
MR BENNETT: The person is not liable, your Honour, because the detention itself was a lawful detention under section 189. There may be some other tort, there may be some other remedy. There is certainly a criminal offence being committed there of some sort of public mischief and there may be other offences. There may be an offence of making a false statement under the Migration Act, I am not sure. We would submit that if the section, rather than saying no one can sue or there is a defence, says that in certain circumstances the officer shall or may – it does not matter for this purpose – arrest, then if those circumstances apply the arrest is a lawful arrest and the detention is lawful detention if authorised by that section. No one can be liable for it. It is not a question of the section protecting the Ministers; it is just that there has not been any tort. It is as simple as that.
That is the whole of 1. I have dealt with 2a substantially. I will not repeat my submissions on that. We do rely on Milicevic v Campbell and Williamsonv Ah On. I am passing on now to the totally separate topic of the effect of Re Patterson; Ex parte Taylor.
GLEESON CJ: Is this relevant – I will put it slightly differently. Even if you are driven to this argument but succeed on this argument, there is still an independent argument against you in relation to the first period of detention, is there not?
MR BENNETT: That is my understanding, your Honour. Now, what we say about Patterson; Ex parte Taylor is very simple and it is set out in the four propositions at the bottom of the page I have handed to your Honours, 2bi-iv. What we say is, regardless of the fascinating question of estoppel against the Constitution, which is referred to in a number of cases recently ‑ ‑ ‑
GUMMOW J: Do you deal with that question?
MR BENNETT: No, your Honour. We say that, assuming that there can be such an estoppel, it could not arise in this case for reasons one, two and three, and, in any event, in relation to reason three, there is a higher threshold for it and we cite Wakim for that. Metwally is an example, I suppose, where a party is bound by the conduct of his case and that prevents the party from putting a constitutional argument in this Court. One could have another example if a party were to settle a case in this Court and agree on a certain result and forcing that agreement would not be contrary to the Constitution even if the result was not one required by the Constitution.
GUMMOW J: The estoppel we are talking about is a common law doctrine, is it not?
MR BENNETT: Yes, your Honour.
GUMMOW J: We are back to the Lange question and how the Constitution impacts on that, how Chapter III in particular impacts on it.
MR BENNETT: But our major propositions are 1, 2 and 3. The first is that on no basis did the earlier case extend to the validity of detention on the basis of reasonable suspicion. At the most, it held that at the end of the day he was not an alien but it did not, for the reasons I have given earlier, hold that one could not reasonably suspect him of being an alien, which is the question in relation to detention. That was not the question in Patterson’s Case. In Patterson’s Case the question was whether he could be removed from Australia, whether the Minister had, by cancelling the visa, made him into an unlawful non-citizen, and so on. That issue was decided but not an issue having any relevance in this case. So that is the first point and I have said that on numerous occasions.
The second aspect is that the subsequent decisions in Shaw and in Te make it clear that the case had no relevant ratio, let alone anything which could give rise to an issue estoppel. There were simply differing views expressed by different Judges on a number of aspects. They happened to produce a particular result in relation to the Minister’s decision, but even that result was dictated by the Court’s decision that the Minister acted beyond her jurisdiction, beyond her power. Your Honour Justice McHugh, for example, makes it particularly clear that your Honour’s views in relation to the aliens issue were obiter and were not necessary for the decision that was being made. The primary decision made was – there were two, I suppose – first, that the Minister, as the Parliamentary Secretary, was the right person, and, secondly, that the Minister acted under a constructive failure to exercise jurisdiction because of a particular aspect of the decision, the particular belief under which he was operating. That was the ratio of the case. Various members of the Court then dealt in different ways with the aliens issue and at 2.15 or 2 o’clock I will take your Honours to the passages in Shaw and Te which make it clear that there is no ratio and we would say it follows from that that there is nothing there can be an issue estoppel as to.
GLEESON CJ: How long do you expect to require to complete your argument?
MR BENNETT: Your Honour, I would think the remaining time would be about 15 minutes.
GLEESON CJ: How long do you think you will need, Mr Birch?
MR BIRCH: I think I am going to need close to the time that has been taken by Mr Bennett, assuming that there is a similar quantity of questioning that I have to deal with.
GLEESON CJ: We will adjourn now until 2 pm.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.04 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If the Court pleases. Your Honours, there are a number of loose ends from this morning. The first is, I erroneously told your Honours that the officers did not have any knowledge as to the date when the respondent came to Australia. In fact, at page 124, lines 40 and following, Mr Crighton says that – perhaps I should read the whole passage starting at 35:
A. Correct. My duties were to look at the file and confirm whether that person was of interest to the Department of Immigration; that is, whether the person was an unlawful citizen in Australia.
Q. An unlawful?
A. Non-citizen. I perused the file, and I’ve made a few observations; one was that Mr Taylor wasn’t born in Australia, he migrated here.Q. Just step by step, how did you determine that fact?
A. There was a record on the file of Mr Taylor, stating that he migrated to Australia at the age of eight or nine, and I think that was corroborated by checks – inter‑departmental checks that were made at the time . . .Q. He was not a citizen by birth?
A. He was not a citizen by birth.Q. What else did you look at?
A. I also made some checks on our system to determine whether Mr Taylor was a citizen by acquisition, whether he’d applied for citizenship, whether he’d been granted citizenship, and there was no such record.
Your Honours recall there was a system of registration at the time under which British people born in England, and I think probably elsewhere in the Commonwealth, could register as Australian citizens. It was called “registration” rather than “naturalisation”.
GUMMOW J: And page 125, line 30, is important too. People do not just have one visa quite often.
MR BENNETT: Yes. They did some systems checks to see whether he had any other sort of visa and he did not. That was the first matter.
The second matter concerning the consent order of Justice Callinan, there is a passage in the appeal book at page 252 in the minute to the Parliamentary Secretary, where in paragraph 7 the minute says:
Incorporated in the Ministerial submission –
that is the first one –
were a psychologist’s report and a report from a prison official. Information in these reports were adverse to Mr Taylor but were not put to him for comment so that his responses (if any) could be taken into account by the Minister. This was a breach of the rules of natural justice, which is a ground for the High Court to set aside a decision. As a result, on advice from the Australian Government Solicitor –
which I suppose I have just waived privilege in –
the Department decided to withdraw from litigation in the High Court which had the effect of setting aside the cancellation decision.
So, it was a natural justice matter for failing to put to him matters in those two reports.
Thirdly, I was asked by Justice McHugh this morning about the significance of signing a charge sheet. In Myers Stores v Soo [1991] 2 VR 597 at the bottom of 629 there is a short statement that:
the mere giving of information to a police officer or the mere signing of a charge sheet -
is not sufficient. A similar statement appears in Dickinson v Waters 31 SR 593. No, that does not have reference to it, I am sorry. I had thought it did. I withdraw that.
Your Honour the Chief Justice asked about the basis on which the Commonwealth was held liable, the acts of the Ministers or the acts of the officers. The Chief Justice decided it – this is page 402.1 – solely on the basis of the acts of the Ministers and said it was unnecessary to consider whether the acts of the officers were actionable. Justice Meagher held that the Ministers were liable and specifically held that the officers were not. That was that passage I took the Court to about impiety.
KIRBY J: You really like that passage, do you not, Mr Solicitor?
MR BENNETT: Yes, your Honour.
KIRBY J: You keep coming back to it. Piety had nothing to do with the case. It is about law.
MR BENNETT: Well, it is an appropriate metaphor, your Honour. Justice Ipp agreed with both the Chief Justice and Justice Meagher.
GUMMOW J: It is impossible.
MR BENNETT: I know, your Honour, but he did, so one cannot really discern which view he took of this issue. The trial judge dealt with the Ministers at pages 109 to 111 and found them liable. She dealt with the question of whether reasonable suspicion could exist where it was an error of law and, your Honours recall, declined to follow Veivers. It is not totally clear whether that is in the context of saying that the officers were liable and the Commonwealth therefore vicariously liable, or whether it was in the context of the Commonwealth’s argument that the imprisonment was not unlawful because of section 189. It is not entirely clear what basis she held it on.
The result of all that is that there does not seem to be any decision anywhere that the officers would have been liable or that liability was on the basis of the acts of the officers. It seems, as I say, for different reasons the judges gave, to have been the Ministers. Those are the matters from this morning.
It remains for me to deal with 2bii, iii and iv, which I can do fairly quickly. In relation to 2bii, can I take your Honours to Shawv Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203. The judgment of the Chief Justice and Justices Gummow and Hayne, with which Justice Heydon agreed – it therefore has the force of four Justices – said this at paragraph [33] on page 210:
In argument, various submissions were made as to the authority to be accorded the decision in Patterson. A plain ground for the making of the orders absolute in that case was the constructive failure by the Minister to exercise jurisdiction.
Six Justices in Patterson found against the Commonwealth on that basis –
It is with respect to the other ground, concerned with the scope of the aliens power, that difficulty is encountered.
There is then a discussion of that. Various reasons are given why it is appropriate within the current tests to overrule the decision in Patterson. In paragraph [39] your Honours say:
The decision in Patterson does not rest upon a principle carefully worked out in a significant succession of decisions; the contrary is the case. Secondly, the treatment of the aliens power in Patterson was not necessary for the decisions, because there was a clear alternative basis for the decision. Thirdly, the inconvenience following from the existence of Patterson is indicated by reference to Long –
That was a West Australian decision in the Federal Court where the court in effect said that the decision of Justice McHugh was the only binding authority one could draw from Patterson, because it represented as having the smallest possible group, the lowest common denominator, of the decisions of the four Justices in that case –
Finally, the Minister has moved as quickly as may be in this Court to obtain a reconsideration of Patterson. That case henceforth should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction –
So that is the view taken of it in Shaw. In Te (2002) 212 CLR 162, your Honour Justice McHugh said at paragraph 86:
However, no ratio decidendi with respect to the aliens power can be extracted from the reasoning in Re Patterson.
That was before the decision was effectively overruled in Shaw, that there was no ratio decidendi. One can see that from Patterson itself ‑ ‑ ‑
KIRBY J: One thing that was clear in Taylor was that the previous view of the strict dichotomy between alien status, a constitutional notion, and citizenship, a statutory notion, which was what Nolan had embraced, was overruled by four of the Justices who sat in Taylor. So that supposed foundation of Australian nationality – to use a neutral word in juxtaposition to alienage – was reversed.
MR BENNETT: Yes, I would put that slightly differently, your Honour. Four Justices as part of the reasoning which led them to a particular conclusion expressed that view as part of that reasoning, but in each case derived different conclusions from it as to the application to the different categories of people. The point I am making at the moment about that case is that it was in any event not a ratio view of four Justices. Your Honours can see that from the judgment of Justice McHugh at page 420 of the Commonwealth Law Reports, paragraph 87, where your Honour says:
At the end of the argument, I was unsure whether the prosecutor had made out one or both of these constitutional grounds.
And then your Honour refers to another erroneous aspect, an administrative law ground about:
the erroneous belief that the prosecutor would have an opportunity to make representations . . . Accordingly, I agreed that the Court should make the orders that it made on 7 December 2000. My reasons for concluding that the respondent had erroneously exercised her discretion were the same as those now set out in the judgment of Gummow and Hayne JJ.
Both of whom, of course, expressed a different view on the aliens issue. Your Honour goes on:
Ordinarily, that would be enough to dispose of the case because it is sound policy, acted on time and again by this Court and the Supreme Court of the United States, that constitutional issues should be determined only when it is necessary to do so. However, the other members of the Court have expressed views on the two constitutional issues. In respect of the “aliens” issue, the court is equally divided. In these circumstances, I think it is necessary for me to express a view on the “aliens” issue, particularly –
as the Minister may cancel the visa in the future. So your Honour’s view is, we would submit with respect, clearly obiter. If one subtracts your Honour’s view, that leaves three, so on no view could there be a ratio or a finding necessary for the decision giving rise to an issue estoppel. We submit that for that reason, as was confirmed by the passages I have taken your Honours to in Shaw and Te, there is no relevant ratio which is capable of giving rise to an issue estoppel, except perhaps on the administrative law issue in that case.
The third reason why there is no issue estoppel is that there can be no issue estoppel as to a broad proposition of law. Might I take your Honour to a decision of the Full Court of the Supreme Court of New South Wales in Commissioners of Taxation v Phillips (1917) 17 SR (NSW) 641. I am fairly sure that was on one of our lists. I have copies of it, I am sorry. I hand up a bundle of copies. I have given copies to my learned friend. The facts appear, conveniently, from the headnote. It was a case where there were consent orders allowing the taxpayer’s appeal in relation to deductions in a particular year. The taxpayer contended that that gave rise to a res judicata in relation to subsequent years where the same or corresponding deductions were claimed.
GUMMOW J: Are these not the facts of Hoysted, later, in this Court and the Privy Council?
MR BENNETT: I am not sure, your Honour. In any event, it was held that could not be res judicata. The clearest statement is in the judgment of the Chief Justice at page 643, where his Honour says:
the principle of estoppel by judgment recovered is not open to any question.
And he refers to cases. On the next page at line 6, his Honour says:
But I know of no instance in which the principle has been applied to the interpretation of a Taxation Act. A public general statute, as distinguished from a private or special Act, is not a document dealing with the private rights of one set of individuals as distinguished from others. It is part of the general law of the land, and the nature of the decision upon it which is relied on as a res judicata must be considered in each case. It may be that in some taxation appeals matters are decided affecting the proprietary or contractual rights of the individual in a way which it would not be open to the Commissioners of Taxation to dispute again. But this is not a case of that kind. If the respondents are right in their present contention, this taxation statute has acquired a special conventional meaning as applied to them, which may, when the matter is investigated, be found different from that which is applicable to all other taxpayers. I know of nothing in any of the authorities upon estoppel by judgment recovered which would go as far as that.
If one were to take a modern analogy, if this Court were to overrule the decision in Austin it would not mean that in future years Justice Austin would be paying tax on superannuation contributions on a different basis to every other judge in Australia. There cannot be an issue estoppel which benefits a litigant beyond the very narrow and very specific matter actually decided for the purposes of that case, which was a particular year’s taxation.
KIRBY J: But what would happen if subsequently the Court were constituted by different personalities, different Justices, and they took a different view concerning the Constitution and so held in another case where there was a like challenge Justice Austin could not hang on to his earlier decision could he, or could he?
MR BENNETT: No, your Honour. Only in relation ‑ ‑ ‑
KIRBY J: But the law would then be declared as it was, and would be binding on Justice Austin just as every other citizen and court in the country.
MR BENNETT: Precisely, your Honour. The only thing that he would be entitled to is that in relation to the year of income which the court actually decided the issue in, there would be no reversal of whatever payments or non-payments flowed from – the Commissioner could not sue for the tax for that year, the year that was decided in the first case in relation to Justice Austin in that example.
GUMMOW J: I think you would have to look at what the Privy Council said in Hoysted in 37 CLR 290.
MR BENNETT: Yes, well I have not done that ‑ ‑ ‑
GUMMOW J: On this question of estoppel and the Commissioner which we looked at last year in the case of Metrobus, I think.
MR BENNETT: Yes.
GUMMOW J: This has been a lively area.
MR BENNETT: Yes. Your Honour, if that were likely to reflect the submissions I have made, might I have leave to put in something in writing in relation to it, and my learned friend as well, of course?
GLEESON CJ: Yes.
MR BENNETT: In relation to estoppel against the Constitution, this is something, of course, which the Commonwealth would often be on the other side of arguing. What we say is that we support the proposition which was suggested in the judgment of Justices Gummow and Hayne in Wakim, where ‑ ‑ ‑
GUMMOW J: What is the citation of that?
MR BENNETT: Yes, it is (1999) 198 CLR 511, paragraph 156 at page 590.
GUMMOW J: Thank you.
MR BENNETT: And your Honours there said:
Whether doctrines of issue estoppel or res judicata should be given some different and less stringent application in constitutional litigation was touched on in argument but it is a subject which need not be examined in this case. If what might be called the accepted ordinary principles of res judicata and issue estoppel are applied . . . Mr Amann is not precluded –
et cetera.
KIRBY J: Is a distinction drawn in the cases between, as it were, what the law says and what parties, because of their conduct, can raise and rely on in the courts. Is there a valid difference between those two positions?
MR BENNETT: There may well be, your Honour. For example, cases like Metwally where a party was precluded from putting a constitutional argument by its conduct of the litigation. There is a case in the Supreme Court of New South Wales called Multicon Engineering v Federal Airports Commission, which I will give your Honours the reference to but not take your Honours to, where again, a litigant by its conduct was precluded from taking a constitutional point about the invalidity of a provision. It had relied on the provision in the same case and it was said that precluded it making the point later on.
KIRBY J: There are analogous points raised in cases where parties get out of time and so on.
MR BENNETT: Yes.
MR BENNETT: Yes. I will not take your Honours to that case, I will just give the reference. It is (1997) 47 NSWLR 631. I gave the example this morning, I think, of two parties who compromise a matter in this Court. There is authority in the early days of this Court that the Court will allow an appeal by consent whether or not it forms a view on the correctness of the proposition of law adumbrated below. Obviously that has no precedential value. It is merely what the parties have agreed to and the Court makes the order that the parties agree to. The parties obviously can be bound by their agreements.
It is more difficult to apply the doctrine of issue estoppel in constitutional cases. Generally other remedies are used, for example, the remedy of abuse of process or, as in the case of Mr Skyring, the remedy of a declaration of a person as a vexatious litigant where a person raises the same argument again and again, the same constitutional argument that has been rejected. So there are other methods available for dealing with the problem. We submit that a convenient way of approaching it is to say that one starts with proposition iii that there is no issue estoppel as to a broad and general proposition of law, as opposed to its application to the particular facts, and that that proposition is even stronger in relation to constitutional matters, thus giving the doctrines of issue estoppel and res judicata some different and less stringent application. That is, we would submit, a convenient phrase for the appropriate way of dealing with it.
The final matter is general administrative law and policy considerations. I do not want to say anything more than is said in the submissions in that area beyond saying that the effect of the decision in this case is really to give damages against a decision‑maker for decision‑making which turns out to be liable to be set aside.
KIRBY J: That is one way to express it. The other way, subject to the footnote about the changing understanding of the Constitution in Shaw, is that it is to give effect to the Constitution by preventing a party under a statute or under the common law moulded to the Constitution from claiming something to be reasonable which the Constitution forbids.
MR BENNETT: Your Honour, I think I have dealt with that. We simply submit that the Constitution does not relevantly, even on the basis that the decisions of four Justices in Patterson was correct, forbid anything in relation to what has been done in the present case. The Constitution does not forbid, we would submit, the detention of a person who might, to use a neutral word, be an alien while it is determined whether the person is an alien.
KIRBY J: So we can put any Australian citizen in a detention centre, keep them there for months, maybe years, whilst we are “determining” whether they are aliens or not, and there is just nothing that we can do under the Constitution?
MR BENNETT: It is not a constitutional issue at that point, your Honour.
KIRBY J: Well, it sounds like a constitutional issue to me.
MR BENNETT: Your Honour, in my respectful submission, it is within the incidental aspects of a power to impose an interlocutory solution while it is determined whether a person or object or subject matter falls within the power.
KIRBY J: We have been down that track.
MR BENNETT: Yes. One can apply that to the bankruptcy power, one can apply it to the aliens power, one can apply it to the immigration power. One could apply it to the marriage power, to the divorce and matrimonial causes power, if there was doubt if a person was married and one needed to make interlocutory orders in relation to the children of the marriage while it was determined whether or not the parties were married and therefore
subject to the marriage power. That might have to be done, and that would be incidental to the marriage power or the divorce power, as the case may be.
One could think of numerous examples. One could go through all the powers. It might be harder in relation to the lighthouses power, if one doubted if something was a lighthouse or not. In relation to almost all the powers, one can imagine cases where there is some doubt whether the subject matter of the litigation falls within the power, thus validating the provision in its application to the parties, and an interlocutory solution is desirable while that is determined.
One could hardly imagine anything more incidental than that. That is all that is done here. It may be an interlocutory solution which in particular cases can operate harshly, but that is a matter of policy for the legislature. We have, in our submissions, reminded the Court of cases such as NT v Mengel & Ors and the line of cases which deal with the question of liability of decision‑makers in various ways. We do not extract from that any specific principle applicable in this case. What we say is that it assists in dealing with what Justice Ipp describes as “the normative question”.
The only remaining matter concerns – I was asked this morning about Coleman v Power. We respectfully submit, for the reasons I have given, that the observations made by Justice McHugh in that case in relation to the reasonable suspicion are not correct. The other case which I remind your Honours of in that area, although I will not take your Honours to it in view of the time, is the case of Percy v Hall [1997] QB 924. It is a decision of the English Court of Appeal in a case where a bylaw was held to be invalid and the constables who arrested were sued for false imprisonment.
It was held that they were able to plead the common law defence there of lawful justification, notwithstanding that their belief was an erroneous belief that the bylaws were valid and effective. There is a discussion of the issue in each of the three judgments in the Court of Appeal which we would respectfully commend to your Honours. May it please the Court.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Dr Birch.
MR BIRCH: Your Honours, the present case illustrates the principle that the answers you get depend very much on the questions you ask. We ask different questions from those that have been posed by the learned Solicitor‑General. Can I begin by illustrating how the case comes here because it is important to see how the issues have appeared. We sued three parties in the District Court, each of the Ministers for the tort of false imprisonment on the basis that they were directly liable, having been relevantly the cause or proximate cause of Mr Taylor’s detention.
As the matter unfolded in the District Court, two defences were put forward in answer to that. One, that the orders quashing the decisions of the Ministers had not operated retrospectively, so therefore their conduct had remained lawful up until the date of the making of the orders. That argument was ultimately abandoned in the Court of Appeal. The second issue that occupied a central place in the District Court hearing was the argument that the Ministers were not relevantly a direct or proximate cause of the imprisonment and therefore they simply were not people whom we had made out a case against at the first instance. That has remained in issue in the litigation the whole way through.
It was indicated that the Commonwealth accepted that it would be liable if the Ministers were liable and therefore at trial, if we established the Ministers had been an appropriate cause of the imprisonment and that the orders that were made operated retrospectively, on the issues before the District Court judge we were entitled to a verdict against all three defendants. We put the case, however, on a second basis, and this was also accepted by her Honour Judge Murrell. We said that in addition to the Ministers, those officers of the Commonwealth who directly took Mr Taylor into custody were people for whom the Commonwealth was vicariously liable, and there was no dispute about that, and they were also liable for false imprisonment.
It was in regard to them that section 189 played its role initially in the trial. There were two arguments that we put forward as to why 189 did not protect them. We argued that the relevant error that they had – I should put it a little differently. It is all about asking the right question. They had a suspicion that we were an unlawful non‑citizen. Their ground for having that suspicion did not depend upon any mistaken belief about a matter of fact but a mistaken belief about the legal efficacy of what the Ministers had done.
We argued two principles. We argued that a mistake which was a mistake of law would not be protected by section 189 for the reasons that were given by Justice Dixon in Little v The Commonwealth and we adopted his reasoning and that was accepted by the trial judge and we accepted that the reasoning of Justice Dixon in Little had not been accepted by the Queensland Full Court in Veivers.
HAYNE J: Little was undoubtedly a protective provision, was it not?
MR BIRCH: Your Honour, that is where the confusion has come into my learned friend’s submissions this morning. There are two statutory provisions in Little. What happened in Little – perhaps it is useful to turn to the judgment and to the statute which is set out in the footnote on page 94. The National Security Act provided that:
Any person who is found committing an offence against this Act, or who is suspected of having committed, or of being about to commit, such an offence, may be arrested without warrant –
et cetera. That was the first section, which was the empowering section. The protective section is subsection (3), which appears at the bottom of the footnote. That provided:
No action shall lie against the Commonwealth, any Commonwealth officer, any constable or any other person acting in pursuance of this section in respect of any arrest or detention . . . but if the Governor‑General is satisfied –
et cetera, I will not read it all. What happened was this. Justice Dixon found at 108 – the offences involved going into restricted areas contrary to orders that had been made by a Minister under the Act. His Honour found that one of these orders was invalid on ultra vires grounds, effectively, and, consequently, there was no actual offence committed because there was no restriction order that could have been breached. The argument therefore was that there having been an error of law made by the policeman as to the validity of the restriction order, he could not have had a reasonable suspicion that there had been an offence committed. His Honour deals with this at the bottom of page 109, sorry ‑ ‑ ‑
HAYNE J: It starts at the top of 108, where his Honour refers to the construction of 13(1).
MR BIRCH: Yes, it is at the bottom of 107 I wanted to be, your Honours, my apologies. He said there at the beginning of that last paragraph:
In the general sense the Inspector believed, when he sent Raetz to fetch the plaintiff from the island, that the plaintiff had contravened the order and when, on 10th June, he directed him to be locked up, he believed, in addition, that he would do so again. I take it, too, that Raetz shared these beliefs. But more precisely what the Inspector, and no doubt Raetz, thought was that the plaintiff was legally bound by the order and the direction thereunder not to go to the island –
et cetera. He then continues at the bottom of the page:
But I think their belief also involved a misconstruction or misapplication of the provisions of the order. An order to reside –
et cetera. Then at the top of page 108:
I think that s.13(1) should be read as referring to the doing of acts or the making of omissions which amount to an offence. It means that, if a man is found doing such acts or making such omissions or is suspected of having done or made them or of being about to do or make, then he may be arrested without warrant. But it does not cover an erroneous belief on the part of the constable or officer as to the legal significance or quality of the acts or omissions, actual or suspected ‑ ‑ ‑
HAYNE J: Now, what point of principle do you deduce from Little that bears upon the construction of 189?
MR BIRCH: We say that what section 189 does which is in not identical terms, but shares a similar structure, this refers to a suspicion, whereas 189 refers to a reasonable suspicion. This refers to “may arrest”;189 refers to “shall detain”. But what we say is this, that when an officer is acting under 189, it certainly empowers the officer to take into detention a person who is not an alien if there are beliefs about that person that are capable of rendering the person someone who can be detained. If the officer believes that they are a newly arrived tourist whose visa has expired, then those beliefs if true, are beliefs which lead to the person being a person of the sort who can be detained under the Act, and a person of a sort that the Commonwealth has power to make laws to detain.
HAYNE J: And that is a particular operation you ascribe to 189. What is the principle, whether deduced from Little or elsewhere, that gets you to the conclusion, which I understand you seek to get to, that that is the only operation on its true construction.
MR BIRCH: Yes, what we say is this, that the principle can be explained in this fashion, that the section will empower the officer to arrest or detain where the officer believes things about that person that will be capable of rendering them a subject of the power, but that it cannot be read ‑ ‑ ‑
GUMMOW J: Of statutory power.
MR BIRCH: Well, of the statutory power is the first layer of the argument, your Honour is right, but we say that there is a second layer in this case that even if it was held to empower where there were mistakes in that regard, it would not empower or could not empower where the mistake was of such a fundamental nature that it concerned belonging to a class of people over which the Commonwealth had power to legislate, and so ‑ ‑ ‑
GUMMOW J: This notion of people over whom the Commonwealth has power to legislate which Justice Hayne was exploring with the Solicitor‑General early this morning, you want to bring it back?
MR BIRCH: Yes, well indeed the point was raised by an argument that was offered to the Solicitor‑General by Justice McHugh, what if there was an Act that had empowered an officer to detain someone on suspicion of being a communist, and the argument is, well if there was no power at that time to detain someone on the ground that they were a communist, it would not make sense to suggest there could be a power to detain someone on suspicion of being one. Now what we say is that the ‑ ‑ ‑
GUMMOW J: Well, that would raise questions about the scope of the defence power, and one might have views about that.
MR BIRCH: Well, one can apply the argument similarly here. If, for example, the Commonwealth was to have passed a law or propound an instrument which purported to render a class of people liable to detention as unlawful non-citizens who plainly appeared not to be capable of being aliens, all those natural born people living in some part of the mainland of Australia, and the ‑ ‑ ‑
KIRBY J: What is your answer to the point about queuing up at the airport? I mean it would – given that this is a grant of power, it is not to be narrowly construed. Given that it relates to aliens and definition of whether a person is or is not an alien may sometimes take a little time and proof and so on, given those premises, it really is not consonant with principle to say that you cannot have within the penumbra of the power the opportunity to discern whether a person is or is not an alien.
MR BIRCH: We do not quarrel with that, your Honour. The Act expressly deals with it. It deals with it in section 190, which says that you may be detained on the basis of – there will be a deemed reasonable suspicion if you have charged through the queue at the airport, and then section 191 provides for the circumstances in which you may be released and gives an express power to be released, which does not exist in regard to someone in the hypothetical categories we are dealing with.
HAYNE J: But your contention must be, as I understand it, or the consequence of your contention must be that 190 and 191 are invalid in their operation in relation to persons who ultimately prove not to be unlawful non‑citizens.
MR BIRCH: The point that is raised by Justice Kirby, as I understand it, is that where one is concerned with entry through the gate at Kingsford Smith Airport there has to be a way of lawfully sorting the citizens and the visa holders from the unlawful non‑citizens and all the rest of them. We do not see that there is an issue about a law made for controlling people arriving in the country at a port or an airport, on the one hand, having direct application to the way in which one makes the law to govern the status of someone who is living peacefully in the suburbs or country towns of the nation. It is not as if ‑ ‑ ‑
GUMMOW J: I asked you about 189 and I asked you about the power and you said statutory power. Are you saying the statutory power has to be read in a particular way in 189 because otherwise it would be invalid? Is there any other reason for reading it the way you want to read it?
MR BIRCH: We say that 189 is a formula that has been used. It is very similar in structure to the formula in Little which, following the approach of judges such as Justice Dixon, as he then was, in Little, is held not to cover circumstances other than ones where the person either has committed the offence or is suspected of having committed the offence and the suspicion relates ‑ ‑ ‑
GUMMOW J: The offence provisions went under this Act at some stage.
McHUGH J: Your whole case depends, does it not, on the proposition that the Migration Act contains no comparable provision to section 13(3) and the passage in Justice Dixon’s judgment at 108, which would seem to indicate that if this case had come before his Honour he would have held it was not protected.
MR BIRCH: Our whole case on 189, and 189 in regard to error of law, is not our whole case. We, of course, press liability of the Ministers outside of 189, and we say that even if there was constitutional power to make laws to detain people like Mr Taylor, if it was done using the formula of Little, essentially replicating 189, it was not a strong enough formula to permit the detention in this case being held to be lawful detention so as to be a defence to a claim for false imprisonment.
McHUGH J: It is the paragraph on page 108, is it not, that is ‑ ‑ ‑
MR BIRCH: Page 108 at the top of the page deals with 13(1). What is set out in my learned ‑ ‑ ‑
McHUGH J: That is the equivalent of 189(1), is it not?
MR BIRCH: Yes. What my learned friend’s submissions set out is a passage from Little in which his Honour there says that error of law will satisfy the test of being pursuant to the Act. That is a passage where his Honour was dealing with 13(3), the immunity provision.
McHUGH J: Yes.
HAYNE J: But is not the point that then emerges when you read that first par in 108 that the reading of 13(1) is driven by the conclusion expressed in the second half of that paragraph in 108, namely that 13(3) covers an error as to what constitutes an offence. So his Honour reads, hardly surprisingly, the section as a whole and the Act as a whole and finds that (1) is concerned with, if you like, the factual questions; (3) is the protection for legal error. Therefore, does not the absence of a protective provision in this statute cut down the utility that Little has for your argument?
MR BIRCH: That was a point that was put against us in the Court of Appeal. We say two things to that. I think we say firstly there is an argument I would like to develop in regard to this Act as a whole because when one focuses just on 189 which refers to a power to detain, of course that would be taking it without the context. Your Honour Justice Hayne referred to 196 this morning and we say that in fact when you look at 196, which plainly refers to only an unlawful non‑citizen and says what must be done with an unlawful non‑citizen, there is nothing in that section of the Act which is expressly dealing with and making lawful the detention of someone in the other category. That is a lawful non‑citizen who has been picked up on suspicion but who in truth is a lawful non‑citizen, not an unlawful non‑citizen.
The argument I would like to develop I would like to do a little later in my argument, but my argument is this, that while there is an empowering provision for officers to take people into detention in 189, when one reads the whole of that division it does not properly and adequately provide a code so that one can say the legislature has addressed its mind to how you keep in detention someone who is found ultimately to be a lawful non‑citizen and how you let them go. One of the interesting things about the division is that there is no provision in it at all which says that someone who is a lawful non‑citizen is entitled to be released. The only way they get released is to initiate a judicial review action.
GUMMOW J: Habeas corpus. We have been down this track before, I think.
MR BIRCH: That is still not an application under the Act. There is no section in the Act. One has to appeal to something outside the Act.
GUMMOW J: Why did there need to be one?
KIRBY J: Yes, but that is not unusual. That is because of the basic premise of our law that unless there is some valid legal basis to detain a person, they cannot be detained; they are entitled to liberty.
MR BIRCH: That is right, but where one then ‑ ‑ ‑
KIRBY J: It seems to be a basic principle that is coming under a lot of attack in many countries at the moment.
MR BIRCH: Your Honour, when one is released though, it will often be upon a finding that the detention was and had been unlawful and they are entitled to be released. What is argued here is that, despite any absence of provision dealing with these questions, one can conclude that the Act intends to authorise that detention, although it provides no machinery for someone who is in fact a lawful non‑citizen to be released. One has to go outside the ‑ ‑ ‑
GLEESON CJ: I understand how your construction of “reasonably suspects” relates to what I will call the alienage aspect of the case, but how do you relate it to the problem that affects the first period of detention arising from the decision of Justice Callinan quashing the cancellation of the detention? In other words, what are the facts relating to that problem that you encompass in your concept of “reasonable suspicion”?
MR BIRCH: In both cases, the officers - I think your Honours were taken to some of the evidence - were shown the file which bore the Minister’s signature and the facts that they believed were that there had been conduct engaged in by the Minister, the consequence of which was that the person no longer held a visa. Now, that was a belief which of course implicitly contained a belief that these acts had been legally effective acts.
GLEESON CJ: But where the absence of legal effectiveness results from a denial of natural justice, is that a situation in which if the facts believed or assumed by the officers had been true, the suspicion would have been reasonable?
MR BIRCH: Well, it is the fact that an order has issued which has quashed the legal effect of the decision, which is what ultimately prevents their belief being reasonable for the purposes of the Act. If the Act does not protect an erroneous belief of law, the relevant erroneous belief of law is that here was a legally effective Act. It will not matter what the basis was.
Could I perhaps take this opportunity to develop another aspect of why one would construe provisions like 189 or 13(1) and the Little Case in this particular fashion. It seems quite clear that if reasonable suspicion is to protect against error of law, then one has to engage in an inquiry into what could be a reasonable suspicion or a reasonable belief for a lay person to have about these complex legal issues.
GLEESON CJ: I understand why you characterise the error made in relation to the Patterson v Taylor aspect of the case as an error of law. I am having a little difficulty at the moment in understanding why you characterise the error made in relation to the first period of detention concerning the cancellation of the visa by the Minister as an error of law.
MR BIRCH: The error we say was the – it is an ex post facto event I suppose, but it was the belief that this was a legally efficacious act. Upon the issue of certiorari by Justice Callinan or the order being made absolute, the decision that had been made by the Minister was rendered void ab initio and of no legal effect.
GLEESON CJ: But the reason it was not a legally efficacious act was that there had been a denial of natural justice.
MR BIRCH: That is true, but it is not for the officers exercising their powers under 189 to investigate all of these matters and ‑ ‑ ‑
GLEESON CJ: Exactly.
MR BIRCH: ‑ ‑ ‑ try to form a view. But if one says that 189 is to protect against legal error, in other words, if I have an erroneous legal belief, it will still be protected if it is a reasonable erroneous legal belief, then that seems to inevitably lead into an inquiry into what could be an erroneous legal belief for a layperson who does not have any means of investigating the legal issues and the legal merits.
If one simply says, following what Justice Dixon said in Little, it does not protect against error of law at all, one is not required to embark upon a near impossible inquiry. We have had examples this morning about what if one of the officers was an expert in constitutional law and had heard of Nolan’s Case? It cannot be a realistic inquiry to say, ought these officers to have reasonably believed X about the proper scope of the power, or Y about the proper scope of the power?
GLEESON CJ: In relation to that error that they made in assuming that the Minister’s cancellation was efficacious, where the Minister’s decision was later set aside by an order of the court on the basis of a denial of natural justice, there is an artificiality involved, is there not, in trying to classify that as either an error of fact or an error of law?
MR BIRCH: Well, we would not say there is an artificiality about it. One can look at it this way. What the officers inquired into were things such as, is there a piece of paper here with a signature on it, which purports to be the signature of the Minister, which purports to cancel a visa? In other words, they are not inquiring into the proper construction of the Act, they are inquiring into fairly straightforward matters of administration.
All of those beliefs they held were true beliefs. There were signatures. They were indeed the signatures of the Ministers. The Ministers had purported to do things under section 501. The problem was not a failure by them to properly check signatures or properly check their computers, or to misunderstand or misread the words on the page. The error they made was in failing to appreciate that all of these facts which they observed did not add up to a proper, legal determination of Mr Taylor’s status which rendered him liable to deportation or detention.
GLEESON CJ: If Re Patterson; Ex parte Taylor had been decided in exactly the same way as Shaw was later decided, you would still have your claim for damages in relation to the first period of detention, would you not?
MR BIRCH: We would say we would still have it in regard to the second because – sorry, yes, we say we have it in regard to both, simply by virtue of the writ of certiorari in each case having swept aside any legal effect of the ministerial decision in each case. It was for that reason that the first limb of our case did not, in truth, depend on section 189 as the issues unfolded at the trial, because what was said at the trial was that the certiorari writs were not retrospective and the Ministers were not directly involved. The certiorari point was abandoned in the Court of Appeal and then we come down to a crucial issue which is still alive today, that is, whether the trial judge and Court of Appeal were right to find that the Ministers committed the tort, whether their conduct was sufficiently proximate.
GUMMOW J: What was the tort?
MR BIRCH: The tort was false imprisonment.
GUMMOW J: I realise that, but what made it wrongful?
MR BIRCH: What made it wrongful was that the Ministers had produced a document which led, we say, directly to the detention of our client.
GUMMOW J: Being a detention which had which legal character?
MR BIRCH: Which was unlawful.
GUMMOW J: I see. So we do have to look at 189.
MR BIRCH: No, what we say is this. The questions you ask yourself are, “Did this person directly cause this plaintiff’s detention?” If that question is answered “Yes”, you then turn to ask, “Were they authorised to do what they did?”
GUMMOW J: Who are “they”?
MR BIRCH: “They” are the Ministers in the first instance. What the Ministers did was produce documents which put in train the events and led directly, we say, to our client’s detention. They did not have authority to do that, because they acted in excess of jurisdiction.
HAYNE J: If the detention by the officers was lawful, indeed, required by 189, the Ministers nonetheless are liable.
MR BIRCH: That is the way the Solicitor‑General invites the Court to approach it and we say that is the wrong question. You cannot answer the question, “Was it lawful?”, as if this is an abstract question divorced from the conduct of individual parties. One has to ask, “Did this person cause detention? Did this person have lawful authority to cause detention?” And you can certainly get the result, we say, where one person has lawful authority and another does not, as is the case in the store detective cases. My learned friend honestly acknowledges that they are a problem for him, because in Davidson the police were found to have acted pursuant to 24(6).
GLEESON CJ: If that is right the Minister is always liable for damages for unlawful imprisonment if the Minister’s decision is set aside on any ground.
MR BIRCH: It would still depend upon the particular decision being one with the requisite directness and with the Minister having the requisite level of intention.
GLEESON CJ: A decision to cancel a visa. If a Minister’s decision to cancel a visa is set aside upon any ground, then if the Minister’s decision has resulted in the detention of the individual, the Minister is liable for damages for wrongful imprisonment.
MR BIRCH: All other things being equal, we would acknowledge that, but, of course, the point ‑ ‑ ‑
GLEESON CJ: It has nothing to do with the Constitution and the status of alienage. The proposition is much wider than that. If the Minister’s decision is set aside because there has been a denial of natural justice because of an inadvertent failure on the part of somebody in the Minister’s department to produce to the Minister for consideration some documents that could have been of assistance to the position of the individual and the Minister did not consider those documents, the denial of natural justice means that the Minister’s decision to cancel the visa is liable to be quashed and if it is quashed if the person has been imprisoned, then the Minister is liable for damages for wrongful imprisonment.
MR BIRCH: We say these are straightforward propositions of law that have always been correct and it is ‑ ‑ ‑
GLEESON CJ: Quite, but it goes well beyond vindicating the Constitution.
MR BIRCH: Yes. To avoid confusion let me make it plain that we maintain that we are entitled to uphold the verdict even if the Court concludes that the whole Taylor/Patterson point must be decided against us provided the Court also concludes that the Ministers do not come under the protection of 189, and we say they do not.
GLEESON CJ: Exactly. That is the significance in this case of the fact that the first period of detention would, on your argument, still have been such as to render the Minister liable to an action for damages for wrongful imprisonment by reason of the decision of Justice Callinan.
MR BIRCH: Yes.
HAYNE J: And the consequence is that the Minister is liable in such a case for an imprisonment that follows upon an officer performing a statutory duty, a statutory duty to detain.
MR BIRCH: Yes. Your Honours, the House of Lords grappled with this directly in 2001 in R v The Governor of Brockhill Prison. That concerned an issue which had become a frequent course of litigation in English courts, that is prisoners were detained beyond their proper due release date and in that instance someone had served many days beyond the date correctly calculated. The governor of the prison had calculated in accordance with previously existing law. There had been a new decision suggesting that was all wrong and that under the new principles the plaintiff had been wrongly detained.
The court was invited by the Solicitor‑General to effectively declare that the law of false imprisonment gave as a defence bona fide belief in the correctness of the prior decision. The House of Lords rejected this. They said that that was contrary to the way the tort had always been understood. What your Honour the Chief Justice puts to me is that this has a wide scope and could make officials liable in damages in circumstances where they may have acted bona fide with a belief about the validity of some administrative conduct or instrument or whatever.
GLEESON CJ: I was really intending to relate it to the operation of section 189.
MR BIRCH: We say ‑ ‑ ‑
GUMMOW J: Just before we leave Brockhill, did Article 5 of the European Convention play any part in the reasons?
MR BIRCH: They certainly refer to that and they conclude that that would not have led to any different conclusion. The case turns upon their understanding ‑ ‑ ‑
GUMMOW J: I am just looking at what Lord Steyn says at page 29E:
In my view these provisions rule out the defence that the governor acted in accordance with the law . . . Article 5 reinforces the view which I have accepted.
HAYNE J: Lord Hope at page 38C.
MR BIRCH: Your Honours, they refer to it. My understanding of the decision is this, that while they conclude that it could have been an explanation, they conclude that the common law rules governing the tort of false imprisonment did not acknowledge any defence of acting pursuant to an apparent legal authority which turned out to be invalid.
HAYNE J: This is not a case of acting pursuant to apparent legal authority. The case we are presently considering in the level of discussion we are now having is one where the officers are detaining pursuant to actual statutory obligation which by hypothesis is a valid statute and validly engaged. If that is so, you still maintain, as I understand it, that the Minister can be liable for the imprisonment that results from the officer obeying the lawful statutory command to detain because the Minister’s step which gives rise to the reasonable suspicion was legally infirm. Do I understand the position accurately?
MR BIRCH: No, we do put it a little differently. We put it this way. We say the conduct of the Ministers that made them liable for false imprisonment is the production of the documents purportedly cancelling a visa and the production of those documents in turn to officers in circumstances where it is recognised that this is going to lead in almost certain inevitability to this person being detained. Section 189 says an officer may detain someone if they have a reasonable ‑ ‑ ‑
HAYNE J: No, “shall”.
MR BIRCH: Quite right. Section 189 refers to “an officer” and “officer” is a defined term. It does not include the Ministers, so the Ministers themselves are not acting pursuant to 189 in the conduct that they engage in. What the Ministers do is they engage in a separate action which sets in motion an officer who then acts under 189. Because the officer is acting under 189, if 189 protects him because ‑ ‑ ‑
HAYNE J: What makes it inevitable is that the officer is subject to statutory obligation to do it. You say despite the officer being under statutory obligation to detain, the Minister nonetheless is responsible because the Minister’s decision ultimately is held legally infirm.
MR BIRCH: Because the person is only detained by the officer because the Minister has told them, “I’ve cancelled this person’s visa”. I do not suggest any Minister would do this, but if the Minister produced a document which sent the officers off to detain someone on the belief that they were an unlawful non‑citizen who was a perfectly normal citizen and the Minister had acted improperly, we say there would be nothing surprising about the Minister being liable for other torts that could attach to making deliberately false representations or the like. It would be extraordinary to suggest the Minister was immune from deceit or some other tort based on malice simply because the officer had 189 protection. The officer’s having 189 protection should be no defence either to a false imprisonment claim.
GUMMOW J: Does misfeasance in public office have any connection with what you are saying?
MR BIRCH: It would, in the sense that, had there been the requisite mental state on the Minster’s part, that might have ‑ ‑ ‑
GUMMOW J: Is that not the way the common law deals with the situation?
MR BIRCH: Well, the Solicitor‑General says we should have sued in misfeasance, if at all, knowing that that would have been very difficult, if not impossible, because it is a tort with different elements.
GUMMOW J: Yes. You wanted to hitch onto this direct cause view ‑ ‑ ‑
MR BIRCH: Yes, that is right, your Honour.
GUMMOW J: ‑ ‑ ‑ that comes out of shoplifting cases to apply it here.
MR BIRCH: Indeed, but if there is no relevant difference of principle, then we say there is no reason why the Minister should not be amenable to that tort.
McHUGH J: Mr Birch, can I tell you what my problem with the whole case is. It does not reflect the arguments of the parties, nor the way the case has been conducted, but let me put it to you. The first problem I have is the attempt by the Commonwealth to rely on 189 on itself, because historically, in the 19th century, again and again, public authorities, magistrates, justices, all sorts of people, were held liable for purporting to act under a statute that did not authorise it. In this particular case, leaving aside Shaw for the moment, which I will come back to, it has been held that this section did not authorise what was done.
Now, because that was the position at common law, statutes similar to the Public Authorities Protection Act had to be passed to provide a statutory defence for honestly, or whatever the term was, believing that you were acting in accordance with your powers. They were the equivalent of 13(3) of the case in Little. But no one, before Percy’s Case or before Veivers’ Case, ever suggested, so far as I can recollect, that somebody who reasonably thought he was acting under a statutory power had a defence to an action for false imprisonment. All the cases indicated the contrary. That was why they had to have the saving provision.
What seemed to happened in cases like Veivers and in Percy was to invoke the common law principle concerning arrest of a constable, where the common law provided a defence to unlawful imprisonment, and somehow or other it was sought to bring that across. Now, in Coleman I said you could not do it. Percy seems to suggest you might be able to do it in some stages. Earlier, Chief Justice Griffith seemed to suggest you could not do it in Hazelton’s Case. But in the absence of a statutory provision such as in the Public Authorities Act, or a 13(3), at the moment I do not see how the Commonwealth can defend this action if what they did was outside power.
It seems to me that Shaw says that they were acting in power, and, therefore, I do not see how you can avoid this question of power. If they had the power to do it, then what they did was lawful, and that is a complete answer to a common law action. So Shaw is against you, it seems to me. On the other hand, the way I look at it, if you leave Shaw out of the equation, the Commonwealth is in serious trouble.
MR BIRCH: I want to deal with the question of estoppel and why we can avoid the effect of Shaw but can I just say this, I thought that your Honour was all on my side until you mentioned Shaw because ‑ ‑ ‑
McHUGH J: Well, exactly, yes. That is the whole question of power. This is the problem that I have about the case. Taylor itself held that 189 did not apply to the Commonwealth. Therefore, it did not matter what their suspicion was or anything, they just were acting outside power. It is for the same reasons that Justice Dixon took the view 13(1) did not apply because you cannot protect yourself under the….. It is not even in that area of discourse. You need the immunity provision like 580 of the old Local Government Act (NSW) or 13(3) or the Public Authorities Protection Act 1893 in England or all those specific statutes that have been passed to protect – I mean, magistrates were being sued all the time because they were issuing orders that they had no authority to issue.
MR BIRCH: I want to adopt the first part of what your Honour says. Can I just say in response that we say that there was not appropriate power once the decision that the officers purported to rest their action on was deprived of its legal efficacy because the officers cannot simply ‑ ‑ ‑
GUMMOW J: Why?
MR BIRCH: Because the officers are not detaining someone without any particular belief at all about the person and their characteristics. They are detaining someone because they have some grounds for believing they are an unlawful non-citizen and they cannot suspect or they cannot have grounds for that suspicion if the grounds are not belief of matters that if true are going to be a good basis for detaining the person, but rather a belief in the existence of some decision which in fact has no legal basis or substance at all. What we contend is that the decisions of the two officers were without power in the sense in which your Honour just said a short while ago. It was not the case that they were acting under a regulation that was declared invalid. They were acting because they were under the impression the Minister had exercised power in a particular instance.
McHUGH J: They believed that there was a valid cancellation order.
MR BIRCH: Yes.
McHUGH J: And their belief, according to the decision in this case, was wrong but, as we now know, it was right. What the Commonwealth is really seeking to do in one sense is to take notions, ideas that come out of the public authorities protection cases and apply them to 189(1) and, with the exception of Percy and Veivers perhaps, it does not seem to me it is an argument that ever succeeded or, for that matter, was ever run because there was no – they have to do it in this case because there is no Public Authorities Protection Act type provision. But Shaw says they did have power. If they have power, what they did was lawful.
MR BIRCH: No, Shaw cannot have any effect upon the efficacy of the Ministers’ decisions.
McHUGH J: Why not?
MR BIRCH: Because in both cases writs of certiorari have been issued which have quashed them retrospectively. The most that Shaw can do is Shaw can say that if the case was run today, one of the grounds upon which we succeeded in getting certiorari in Ex parte Patterson would not succeed. That is all that we say Shaw decides.
GUMMOW J: You say it is enough for your argument – and this comes back to what the Chief Justice was putting to you – that an undoubted ground of Patterson was constructive failure to exercise jurisdiction. Is that right?
MR BIRCH: Yes, it is. Your Honour, we have a backup argument that if the power point that Justice McHugh has just enunciated does not work, then the fact that this was not merely a false belief by officers about the power or the efficacy of the exercise of power by the Minister, but indeed it was a circumstance where the Minister constitutionally could not have exercised power to render Mr Taylor liable, provides an additional reason why they could never come under 189. But I do not want it to be thought that I have to win on that point.
GUMMOW J: I know. You are trying to win this case, but the proposition the Chief Justice was putting to you, which I have been putting to you, too, takes this tort very wide.
MR BIRCH: We say that it has this breadth and it may not have been perhaps appreciated, but we are not suggesting we have expanded it beyond its traditionally recognised boundaries.
McHUGH J: Well, except in its application to the Minister, it seems to me that it has been recognised in the past. I mean, magistrates, all sorts of people who made orders in the 19th century, found themselves paying damages for wrongful imprisonment and that was why the legislature had to intervene and give them protection. There is nothing novel about somebody in authority, making an order which leads to the detention of a person, paying damages.
HAYNE J: But the proposition which you advance seems to be a different one, namely, that the decision of the Minister being legally infirm, and deleterious, though lawful, consequences following, the Minister is liable.
MR BIRCH: When you say lawful consequences follow, we say the only lawful consequences could be – leaving aside the argument we have just had about 189 – that if it were not for the officers the officers could say, “We can’t be sued because of 189”. But that, we say, is no different from the store detective cases.
HAYNE J: But the argument is one which seems to be of the same general kind as that rejected in the majority reasons in Northern Territory v Mengel (1995) 185 CLR 307 at 352 to 353, where the argument was that there was a liability in the Territory as a consequence of what was described as the constitutional principle of the rule of law, namely, do something which is unauthorised as government, deleterious consequences follow, ergo liability. Now, that was a chain of reasoning that was rejected in Mengel.
MR BIRCH: Your Honour, we certainly do not embrace that or suggest that that is our argument, for these reasons, that we do not suggest that a mere unlawful administrative decision can give rise to an action in tort, even if it causes loss. We say that the elements of the tort of false imprisonment itself are an effective control. You only get damages for infringement of liberty, and you have to have had your liberty relevantly infringed. No one’s liberty was at stake in Mengel.
Secondly, if it be the tort of false imprisonment, there has to be the requisite elements of directness and intention. If a Minister makes an administrative decision and, in a completely unforeseen manner, it brings about someone’s detention, that will not be actionable either, under this tort of false imprisonment. So we say the tort, properly and traditionally understood, contains substantial inbuilt control mechanisms. It is not about to run out of control.
Your Honour, I am at a point where I wanted to look quickly at this question of the Ministers’ conduct. I need to address the question of directness because it is an important issue in the case, and while there is general reference to what the Ministers knew and understood, it is important, we say, to appreciate just exactly the factual context, because it was, after all, a factual finding that the Ministers’ conduct was a direct and proximate cause. If I could go briefly to the appeal book, I just wanted to refer to a couple of pages that have not been referred to in the decision of the Court of Appeal. They have been referred to, I think, only by number.
KIRBY J: You accept that the adverb “directly” is a necessary component of the cause of action?
MR BIRCH: We do, although we say that that is to be understood in light of the authorities and the traditional legal learning on that subject ‑ ‑ ‑
KIRBY J: Is it sometimes intermixed with “proximate”, is it?
MR BIRCH: Yes, it is. The statement in Soo, which is the Victorian Full Court, repeated by the New South Wales Court of Appeal in Spautz, offers as the formula ‑ ‑ ‑
KIRBY J: Yes, I know Spautz.
MR BIRCH: Perhaps I might just introduce this quick reference to some of the facts by the ‑ ‑ ‑
KIRBY J: Butterworth.
MR BIRCH: Yes. In Spautz, the Court of Appeal referred to Justice McDonald’s statement in Soo, where he said ‑ ‑ ‑
KIRBY J: What page?
MR BIRCH: This is at page 26 in the Spautz decision on 41:
“To be liable for false imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment –
referring to Aitken v Bedwell and Warner v Riddiford –
The act of imprisoning a person either personally or by an agent or by being active in promoting and causing that imprisonment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to a police officer or the mere signing of a charge sheet.”
So with that statement of the test, if I could just refer to page 164 in the appeal book, that contained a handwritten note by an officer of the Department which referred to this as a “difficult case” – this is the handwriting on the right hand side – and one concerning:
the risk of recidivism. Given the landmark nature of a visa cancellation in relation to a permanent resident of 32 years standing I believe this case should go to the Minster for –
I am not quite sure what that word is, it could be “answer” ‑ ‑ ‑
KIRBY J: What page is this, I am sorry?
MR BIRCH: Page 164 of the appeal book on the right hand side:
preferably after an expected new policy instruction –
and then the pages that follow. At page 167 was a letter sent to Mr Taylor before the decision was made, saying that:
Your case will be decided by the Minister for Immigration and Multicultural Affairs, Philip Ruddock. In the event that the Minister decides that your visa should be cancelled, you will become an unlawful non‑citizen.
If you become an unlawful non‑citizen, s 189 of the Migration Act 1958 states you must be detained. If you are detained you will be held in Immigration detention pending any appeals or your removal from Australia.
That warning was repeated again in the letter at 168, and then at 169 through to 189 are the documents that were put before the Minister as preliminary to him making his decision. They go into the nature of the offences and the balancing of the need to protect the Australian community, which is one of the matters referred to at page 184.
At page 183, under Part D there is a heading “Discretion”. It is said:
If you are satisfied that the non-citizen does not pass the character test you must consider the exercise of your discretion to decide whether the non-citizen should be permitted to remain in Australia.
It would be artificial to say that what was being done by the Minister was a decision about whether or not a visa, treating that simply as a statutory instrument, stood or not. What the Minister was being asked to do was, in effect, to decide whether he should be removed.
KIRBY J: But given that the statute contemplates the action by an officer who knows or reasonably suspects, et cetera, given that you accept the presence of the words “directly or proximately” is part of the cause of action, the mind asks the question why did you pursue the Ministers as distinct from pursuing the officers who actually did the dirty work, because they are officers of the Commonwealth.
MR BIRCH: The decision of the Court of Appeal reveals that because the Court of Appeal concluded that we were entitled to our verdict against the Ministers and this brings us, I suppose, to the concession element that perhaps I can answer at this very point. What happened was we won on all ground before the trial judge. In the Court of Appeal there was the express concession referred to this morning which we have quoted in our supplementary submission to the effect that if the Ministers were otherwise tortfeasors they did not come within 189 and that was recognised by the Chief Justice who relied upon it.
GUMMOW J: What does come within 189 mean?
GLEESON CJ: That means they were not obliged to detain anybody? The consequence of not coming within 189 is that you are not under a statutory obligation to detain somebody.
MR BIRCH: Sorry, I have put it very badly, Chief Justice. What was meant was this, that while 189 provided legal authority for the officers which gave them an answer to a claim for false imprisonment, 189 did not give the Ministers an answer to a claim in false imprisonment if ‑ ‑ ‑
GUMMOW J: This is your real answer to Justice Kirby’s question, is it not?
MR BIRCH: Yes, exactly, because even if we were to lose against the officers because they had 189 protection we could win against the Ministers because the Ministers were not protected by it.
KIRBY J: But you have to jump the hurdle of directly or proximately.
MR BIRCH: Yes, all we had to establish was that the Ministers were the direct or proximate cause and we maintain that is still the case here in this Court that if we persuade the Court of that then we should still be entitled to uphold the verdict.
KIRBY J: And you had a factual finding in your favour by the primary judge to that effect.
MR BIRCH: We did. Well, when I say a factual finding, whether 189 of course could protect the Ministers was a legal issue. We had a factual finding ‑ ‑ ‑
KIRBY J: No, but on directly ‑ ‑ ‑
MR BIRCH: On directness, that is correct.
KIRBY J: Causation is ordinarily a factual determination.
MR BIRCH: Yes, in Spautz the Court of Appeal there expressly says the question of directness is a question of fact and in Spautz having laid down the tests, they said that the finding there was a matter that was open to the trial judge on the evidence ‑ ‑ ‑
KIRBY J: And you had concurrent findings of fact in your favour on this point, have you not?
MR BIRCH: Yes, so at page 362, the trial judge’s factual finding was set out in paragraph [109] and ‑ ‑ ‑
KIRBY J: Was that accepted in the Court of Appeal?
MR BIRCH: In the Court of Appeal, this point was conceded, that if the Ministers were found to have been direct causes of the imprisonment so that they would otherwise be tortfeasors they could not be protected by section 189 and we set that out this morning and then in the decision of the Chief Justice at page 402 in the appeal book at paragraph 23 he said:
Each Minister purported to cancel a visa under s501 . . . The contention of the Appellants was that the act . . . is a separate and distinct act from the act of detention under s189. Each act, it was submitted, is done by a different person . . . Detention cannot occur at all unless an “officer” engages in the distinct process under section 189. The Appellants’ submissions concerning the Minister’s liability for the tort conceded that the Ministers were unable to rely on section 189.
And so all we needed to do to win against the Ministers was prove directness. Justice Meagher dealt with the question of causal nexus at paragraph 72 on page 415 of the appeal book.
KIRBY J: Justice Ipp agreed with Justice Meagher.
MR BIRCH: He agreed with the Chief Justice and Justice Meagher.
GUMMOW J: He agreed with what was going – everything that was going.
KIRBY J: I am just asking the technical question as to whether you have concurrent findings of fact at both levels on this issue.
MR BIRCH: We do, yes. We succeeded, essentially, on this point almost alone in the Court of Appeal because there was no finding in the Court of Appeal that the officers were liable to the tort of false imprisonment. That point was adverted to by the Chief Justice but he based his decision on his finding of directness by the Ministers and Justice Ipp concurred with that.
Your Honours, I referred to the passages in the appeal book that dealt with the decision by the first Minister, the honourable Philip Ruddock. I should just quickly mention the page references for the second decision and in particular at page 253. That document is a briefing document that was provided to Senator Patterson and that document said in paragraph 14 at the top of 253 at about line 5:
However, you should note that if a decision to cancel Mr Taylor’s visa is made under s501(3), he will be detained as soon as your decision to cancel is served upon him. He must then be given notice as soon as practicable thereafter of the decision and of relevant information –
Your Honours, from that we say that it was clear that what the Ministers understood their task was was to decide in the exercise of their discretion whether it was fair and proper that Mr Taylor stay in the country or be removed. That was what they were essentially deciding and that was really a decision about detention. Can I just draw together my threads on the question of directness because the authorities nearly all involve store detective cases and things of that nature and it has been difficult to find something which allows a principle to be drawn that matches perfectly with these facts but the decision in Spautz comes very close.
In Spautz’s Case what happened was that a warrant was issued by the magistrate, Mr Butterworth, and, of course, it was not Mr Butterworth that went out and physically took Mr Spautz into custody, it was a police officer acting under that warrant. In this instance the very structure of the act does not involve any further instrument being issued after a decision to cancel the visa and the officers who arrested Mr Taylor were provided with the file containing the memorandum with the Minister’s decision recorded on a copy of it. In other words, the Minister’s decision operates de facto, almost as the warrant, if I can put it that way, in this particular case. Then the officers in turn, then, make their other inquiries and go out.
GLEESON CJ: In a sense both sides in this case are relying on section 389. You are just relying on it for different purposes. Your opponent relies on section 389 to say that the imprisonment was lawful, it was done pursuant to statutory command. You are relying on it to say that the existence of the statutory command demonstrates the causation.
MR BIRCH: Indeed, it is the fact that it is mandatory. If the officers had a discretion in the same fashion as a police officer – for example, if it were the case that upon cancellation of a visa the unlawful non‑citizen was taken before a magistrate or a judge or whatever, and a decision was made as to whether to keep him in detention or to bail him or remand him or the like, there would be no action against the Ministers. It is the fact that it is a mandatory detention scheme which means that their decision is the act which brings about, in the relevantly direct sense, the detention.
GLEESON CJ: Exactly, and then you say, it is the circumstance – to use a neutral word – that the cancellation decisions were set aside, first, by order of Justice Callinan and, second, by an order of the Full Court that produces the consequence that you say follows.
MR BIRCH: That is right. That is the way we have constructed the case.
GLEESON CJ: And it really is, as far as your argument is concerned, beside the point why those cancellation orders were set aside.
MR BIRCH: That is correct, it is. From the case we put against the Ministers in particular, we rely upon, essentially, the writs of certiorari quashing the decisions and the finding of directness, and the directness finding is in turn built upon the very mandatory nature of the legislative scheme, combined with the fact, we say – and it was part of the factual material that the judge at trial was able to take into account – that the Ministers had documents before them making it abundantly clear to them the purpose and effect of their decision. It was very important to fully establish the requisite level of intentionality, and that was available to us because of that documentary material. It was an inference obviously open to the trial judge to find that detention was not some unfortunate or unexpected consequence of the Ministers’ decision, but was contemplated by the Ministers as indeed the logical consequence of what they were doing.
I will not go further into the authorities so far as directness is concerned. We say that if you look at the statements of principle contained in Soo and Spautz, then they plainly encompass what happened on this occasion, understood in the way that I have just described it. And if it be said that this is insufficiently direct, then we would suggest that it would be hard to see why the magistrate Butterworth was found to have been the direct cause of Mr Spautz’s detention. It is difficult, we say, to see how we fail the test and yet Soo and Spautz succeed. One would have thought that, if we fail, those cases were wrongly decided.
GLEESON CJ: If your argument is right, why do we get anywhere near estoppel? If your argument is right, what you rely upon is the orders quashing the decision of the Minister to cancel a visa, and the effect of section 389 of the Act in producing the detention, full stop.
MR BIRCH: Correct, that is our case. That is our principal case.
KIRBY J: But that is only relating to the first period, what I will call Justice Callinan’s ‑ ‑ ‑
MR BIRCH: No, no, it applies to both, your Honour, because in both cases there was a writ of certiorari issued, in both cases there was an ineffectual decision by the Minister and in both cases there was an immediate arrest a few days after the decision.
KIRBY J: Does that mean that you are in furious agreement with the Commonwealth in respect of the foundation for the second order, that it is not what one might call the Nolan/Shaw point but it relies on the other foundation for the writ of certiorari in that case, or does it matter?
MR BIRCH: No, it does not because our ‑ ‑ ‑
KIRBY J: The fact is that judicially a writ of certiorari issued from this Court, a constitutional and superior court, and so that had that effect.
MR BIRCH: Our case always had three layers and the first one was that we could win against all three defendants by showing the Ministers were the direct cause and the Commonwealth was vicariously liable for their conduct and that did not involve us going anywhere near 189 at all.
GLEESON CJ: But if your argument is right, the Nolan/Patterson/Shaw point is a red herring.
MR BIRCH: It is insofar as our first argument is concerned, and I think the learned Solicitor-General and I have been arguing different cases ‑ ‑ ‑
GUMMOW J: Well, if your first does not work, it is not going to be made to work by referring to Shaw, Patterson and Nolan.
MR BIRCH: Only this. If we do not get up on directness against the Ministers - we do get up on directness against the officers. There is no doubt that they physically detained us. The question for the officers is: are they lawfully justified by 189 and that takes us into the 189 and the Shaw/Patterson territory but if we succeed against the Ministers and there is no suggestion that 189 justifies their conduct because it was not conduct under 189, then we never get to the constitutional issue or Shaw or Patterson.
KIRBY J: But the precondition to that is you have to establish the direct link between what the Ministers did and the loss of liberty of your client.
MR BIRCH: True, a matter of fact which we ‑ ‑ ‑
KIRBY J: And you say you have had concurrent findings of fact in your favour on that basis and this Court should not and would not disturb them.
MR BIRCH: True, particularly because we say that the tests, proximate or direct cause or whatever, are hallowed phrases and ‑ ‑ ‑
GUMMOW J: Well, how hallowed?
KIRBY J: Is anything hallowed?
MR BIRCH: Well, hallowed in the sense that Aitken v Bedwell goes back to, I think, 1830 – I will have to get my junior to check – at least 150 years and they were followed in the Victorian Full Court and the New South Wales Court of Appeal and there is no suggestion that the incorrect test was applied. The only way this Court, if it accepted the test enunciated in those cases was the correct test, could disturb the verdict would simply be to reject the trial judge’s findings of fact and the affirmation of them by the Court of Appeal.
CALLINAN J: Do you say the Ministers were officers?
MR BIRCH: No, they were not officers, we say, your Honour and that is why 189 does not help them because they were not acting under 189.
CALLINAN J: Could you not have only got orders against the Ministers under 75(v) if they were officers of the Commonwealth?
MR BIRCH: Well, it might be that they are officers for some purposes but when that word is used in the Migration Act, it is a defined term in the Act’s dictionary and I think it is defined in section 5 and the Ministers were conceded not to be officers ‑ ‑ ‑
KIRBY J: They are officers of the Commonwealth for constitutional purposes but they are not officers for the purpose of the Migration Act.
MR BIRCH: Correct, yes, that is the position. I do not think that is contentious.
HEYDON J: Why not exactly? Why do you say that precisely? Page 13 of the Migration Act, the definition of “officer”. Why is not a Minister an officer of the department? Why is he not the chief officer of the department?
MR BIRCH: Well, if one looks at the definition it says, for example, amongst other things it includes:
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act -
That is not a necessary part of being an officer. It is one way of being an officer, but it suggests that the Minister is someone separate from the officers who can bring into being officers.
CALLINAN J: Why cannot the Minister be an officer and also specify that others may be officers?
MR BIRCH: Your Honour asks me, why can that not happen? I suppose it is not logically impossible, but when one looks at the whole of the Act, can I just say this, before I try to answer too much of it on my feet ‑ ‑ ‑
GUMMOW J: Ministers are appointed under section 64 of the Constitution to administer departments, are they not?
MR BIRCH: Your Honours, it is a point that has always been conceded in our favour. I understand Mr Bennett does not seem to resile from it even now.
HEYDON J: The one thing you have never said until now about those concessions is that they were wrong. You have given eight reasons why the concession to the Court of Appeal should not be allowed to be withdrawn, but among those reasons is not the statement that it was wrong.
MR BIRCH: I certainly maintain that it is, but I am saying that in circumstances where I am not properly meeting the fresh points that are being raised by your Honour. To meet them properly, I would need to look carefully at the point.
GLEESON CJ: Do you not wish to argue, amongst other things, that it would be a very unattractive consequence to construe section 189 as obliging Ministers to go around detaining people?
MR BIRCH: It would have perhaps in this case, given that the Minister was the first person to know that this person was now an unlawful non‑citizen. The Ministers themselves would have had that obligation; that would be right.
CALLINAN J: That does not mean that if he or she could not get somebody to help him or her, they would do it.
MR BIRCH: Yes.
CALLINAN J: There was a Canadian Defence Minister who claimed she had tanks.
KIRBY J: There might be some Ministers who would like to be going around detaining.
MR BIRCH: Yes. Your Honours, it was a point that has never been raised. If it was to be seriously suggested now that the Ministers were officers, then I think I would want to revisit it. Could I perhaps add this, that even if the Ministers were officers, it probably would not help them, because what 189 protects is an officer taking someone into detention, not someone doing what the Ministers did in the sense of procuring other people to do it. So you would have to read 189 in that fashion in order for it to be of any use to them in any event.
GLEESON CJ: If your argument is right, the facts that appear in paragraph 19 on page 249 of the appeal book are no more relevant to the decision we have to make than the facts that appear on pages 244 and 245.
MR BIRCH: I am sorry, I am looking at page 119.
GLEESON CJ: The facts as to the circumstances in which he arrived in Australia, if your argument is right, are no more relevant to the decision that we have to make than the facts relating to the offences that landed him in prison.
MR BIRCH: Certainly not on the first ground in any event, that is certainly true. Your Honours, I think I have thoroughly explored our principal way of presenting our argument which is against the Ministers, and it is based on directness. Can I turn finally to the issue of 189 in the way that it is sought to be used by the Commonwealth. What is said is that 189 provides some form of general authority to keep this particular respondent in custody for the 320‑odd days he has spent, and, therefore, it cannot be the case that he was falsely imprisoned or unlawfully detained and there cannot be, therefore, a claim for damages for it. While we say that that argument simply is not available in regard to the Ministers anyway, I wanted to say two general things.
If one looks at the Act, 189 deals with the way someone goes into detention, that is, by being or being suspected an unlawful non‑citizen. Section 190 is a provision that expressly deals with the queue jumper at the airport or the person who will not show their passport and 191 says that if someone is detained because they are one of those sort of people, that is one of those sort of queue jumpers, they must be released from immigration detention if certain things happen. The point I made earlier on is that there is no equivalent provision permitting somebody under the Act to obtain release if they have been detained in Mr Taylor’s circumstances rather than having been detained at the airport.
When one then turns to section 193 this, in effect, is the provision that deals with how you ought to be treated upon your arrest. Section 194 says that:
As soon a reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:
(a) the provisions of sections 195 and 196 –
This is your entitlement to have your rights read to you, so to speak, and 195 provides:
A detainee may apply for a visa:
(a) within 2 working days after the day on which section 194 was complied with –
They have two days after they are told their rights to apply for a visa. Section 196 I will deal with shortly but that deals with keeping you in detention. There is no provision that deals with the circumstance where you are in truth a lawful non‑citizen and you wish to be released on the grounds that you have been taken into custody by mistake. If one goes to 193(1) it provides that:
Sections 194 and 195 do not apply to a person:
(a) detained . . .
(iv) because of a decision the Minister has made personally under section 501 –
So, if in Mr Taylor’s case there is a purported decision under section 501 which leads to his detention then this excuses compliance with 194 and 195. In truth, of course, if that decision is quashed there will not have been a decision so if one was to then read the Act it might be that sections 194 and 195 should have been complied with. Even if they were complied with they were simply inappropriate because Mr Taylor’s position was not that he needed to apply for a visa but that he needed to be able to establish that he was in truth the lawful non‑citizen that he was. If one then goes to 196, and I can now come to the point that Justice Hayne raised earlier, section (1) provides:
An unlawful non‑citizen detained under section 1989 must be kept in immigration detention until –
one of those three things happens to him, but that cannot apply to someone who was, in truth, a lawful non‑citizen and to answer the question that your Honour Justice Hayne posed our answer is 196(1) presumably can only apply to unlawful non‑citizens and, therefore, there is not a power under 196 expressed justifying the continued detention of someone who was a lawful non‑citizen and 196(2) ‑ ‑ ‑
HAYNE J: Does 196(1) speak to the case of the person reasonably suspected?
MR BIRCH: We say that it cannot because it says that the person must be kept in immigration detention until one of three possible things happen and none of those are relevant to a person who is in truth a lawful non‑citizen and wishes merely to prove that or is, indeed, a citizen taken into custody through mistake.
HAYNE J: Does that not lead to a reading of the provisions of Division 7 which leaves holes in the legislative scheme that are not to be found if 196(1) is read as a reference back to persons of a class identified in 189(1), that reading back being justified not only by the need to read the provisions together but also by reference to 196(2)?
MR BIRCH: What we say is that the holes are there and if filling them by inference would have the consequence of converting what is truly unlawful detention to lawful detention, then that is an inference that the courts should be very loath to draw.
HAYNE J: Plainly so, but if the result of the reading is that there is an unfulfilled obligation repeatedly imposed upon officers under 189(1) to detain, to re‑detain, to keep detaining a person because that person is reasonably suspected, but there is no power, no obligation under 196(1) to keep that person in detention, what do you do? Put the person reasonably suspected into the revolving door at Villawood? Now, that is a remarkable construction of the Act. Why adopt it?
MR BIRCH: What we say is that, when – if you ask of Mr Taylor what was his position so far as the obligation to detain him was concerned, we say he was a person who was entitled to be released at each and every moment that he was in detention. The only thing that stood between him and being released was being able to bring his case before an appropriate court that could make an order, and if that could have been done within 30 days instead of 50 days or 100 days or whatever, he would have been released after 30 days. It was not the case that there was any proper authority to keep him in for any particular period, and he was released immediately upon the making of the orders by the Court.
We also would point out that when the orders are made and he is released, there is not an inquiry into whether an officer any longer holds a reasonable suspicion or anything of the sort. His release pursuant to the orders is done in a fashion which recognises that he has always been entitled to be released and was never lawfully detained. One cannot glean out of 196 or 189 a complete legislative scheme to declare him lawfully detained throughout that period. The most that one can say is that 189 will be a protection to those officers who acted under it. Your Honours, there were amendment ‑ ‑ ‑
GUMMOW J: This notion of “immigration detention” first appears in 196, does it not? It does not appear in 189, does it? It is a defined expression, “immigration detention”.
MR BIRCH: Yes, it is, your Honour. I do not think it appears in ‑ ‑ ‑
GUMMOW J: And these officers come back into the picture.
MR BIRCH: Yes, but, your Honour, 196 we say simply cannot be stretched to cover someone in Mr Taylor’s position, a lawful non-citizen who was being detained and who was at all times entitled to be released.
Your Honours, the final point I wanted to make concerned the changes that were made to this Act because we say they reflect the construction of it that I have just urged upon you. Section 196 has been amended. We included the Act in its current state. It was amended in 2003 in the respondent’s supplementary additions to the appeal book.
GUMMOW J: Reprint No 9.
MR BIRCH: When the respective periods of detention occurred, 196 ran only as far as subsection (3), and (4) and below were added in 2003, and we have also enclosed the Minister’s second reading speech in the supplementary bundle, but they provide that if a person is detained as a result of cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines the detention is unlawful, or that the person detained is an unlawful non-citizen. And what we say those statutory amendments contemplate is the very point that we have been urging, namely that when the Court makes a determination that this person is a lawful non-citizen and should be freed, it is a determination that it is unlawful detention. All that 189 does is protect the officers, and 196 gives no assistance. Your Honours, for those reasons we say that 189 cannot protect.
GUMMOW J: Is there anything in the judgments in Al-Kateb bearing on the relationship between 189 and 196?
MR BIRCH: Yes, there is, and I can give your Honour the paragraph references. It is in a written submission that I only compiled last night and I do not know that I will get time to develop it in full, but in Al-Kateb it is dealt with in paragraph 11 by the Chief Justice, by your Honour Justice Gummow at paragraph – my note is wrong, it is not paragraph 12, your Honour. That deals with it at the beginning of your judgment in Al‑Kateb. Justice Hayne deals with it. Again, I am afraid my notes have let me down. Justice Callinan deals with it at paragraph 292. What your Honour Justice Gummow said was that 189 deals with the taking into custody but the duration of custody and purpose of custody is dealt with under 196, and from that I get this, that one has to look at 196 to decide the lawfulness of the detention. For the reasons I have expressed, it will not operate in this case.
Your Honours, I do want to say something about the estoppel against the Constitution point but I wanted to be brief because it really reflects our final line of defence, if I can call it that. What we say is this, that the fact that there might not be a ratio in Patterson that can be drawn out and applied to people generally does not prevent it operating for the purposes of issue estoppel, because we say that the four Judges in the majority on the constitutional point made a determination that Mr Taylor could not be subject to detention or deportation as an alien.
It may well be that because no general rule could be extracted, forgetting Shaw for the moment, it would not have been practicable to apply any particular doctrine or principle from that case, but we say that does not matter for us because we are in the special situation and even if the class of people affected is down now to a class of only one, we are in that class and so we have the benefit of that finding. I anticipate two things would be put against me. One would be that it was unnecessary because there was an alternative basis.
GLEESON CJ: Exactly. What would it matter to your argument if seven different reasons had been given in Patterson for setting aside the Minister’s order?
MR BIRCH: What we say is that if there are reasons which are sufficient to justify the outcome of the case, they can give rise to an estoppel and, after all, if ‑ ‑ ‑
GUMMOW J: What species of estoppel? What are we talking about, estoppel by record, or issue estoppel?
MR BIRCH: We are talking of issue estoppel.
HAYNE J: And what is the issue?
MR BIRCH: The issue is whether Mr Taylor is a man over whom the Commonwealth has power to legislate to deport as an alien.
KIRBY J: The way, at least possibly, the issue could arise is this. Your case is still before the judicature. There have been developments in the understanding of the Constitution. You are seeking to enforce a judgment for wrongful detention and, as we now know by virtue of the supervention of Shaw, the detention was not wrongful and therefore you cannot be allowed to succeed against the understanding of the Constitution because that would make a mockery of the Constitution for you to recover for a wrongful detention which, by virtue of the supervening understanding of the law, was not wrongful.
MR BIRCH: We say that it should not be expressed as an estoppel against the Constitution or as if we are setting ourselves up against the Constitution. What we say is that the principle of issue estoppel simply reflects the principle that there ought to be a limit on the amount to which parties, where they are identical, can dispute a particular question. So Mr Taylor, for example, hypothetically might be – I do not want to make any concession – liable to the effect of Shaw in other contexts but where one is concerned with the very same periods of detention, the very same ministerial decision, there is no reason why one should not say, following the normal policy that lies behind the doctrine of issue estoppel, that there ought to be an end to litigation on that particular issue between himself and the Commonwealth.
The question of an estoppel involving constitutional law has been discussed by the Court but we have not found a decision which adopts a principle and, indeed, in the Wakim Case in the judgment of Justice Gummow, there is reference to ‑ ‑ ‑
GUMMOW J: Justice Hayne and myself actually.
MR BIRCH: Sorry, your Honour, yes, I think it was a joint judgment.
GUMMOW J: But we referred to the Territorial Senators Case, did we not?
MR BIRCH: Yes, that is right and there is a discussion by Justice Aickin there in which he says, in effect, there is no reason in principle why there cannot be issue estoppel on questions of law. Issues of constitutional law could be different because, for example, if New South Wales and the Commonwealth were to have litigated an issue and to have got a determination and they were issue estopped – indeed, if all the States had been parties to the litigation and all the States were estopped and the Commonwealth – it might be the case then that there would never be a competent party to re‑agitate the issue and they would remain effectively issue estopped until the day of doom.
That might not be a good thing for the development of the Constitution. Those issues cannot play a part in a dispute between the Commonwealth and a private citizen, and it would be, we would say, oppressive to suggest that having lost a constitutional issue against a private citizen, the Commonwealth can simply recommence all over again and litigate it once more on the basis that there cannot be an estoppel against the Constitution.
Given that the doctrine does not of itself have to be restricted – there is nothing doctrinally recognised in the cases that have been referred to by both parties suggesting there cannot be an estoppel involving constitutional law – and the policy reasons discussed in the authorities would not be applicable to a dispute between the Commonwealth and a private citizen, then we say there is no reason why issue estoppel should not apply.
GUMMOW J: Could you just look at paragraph 54 of the Solicitor‑General’s submissions? Page 13, paragraph 54, “where the actual arrest by an officer is authorised by law”. See that?
MR BIRCH: Yes.
GUMMOW J: Now, you join issue with that on your first submissions, do you not?
MR BIRCH: Yes.
GUMMOW J: That is the issue between you on the first point.
MR BIRCH: Indeed, yes. We say 189 simply does not provide authority for the Ministers, but I think what is being argued by the Solicitor‑General now is this, that if somebody performs an arrest who has authority, then, even if they were urged on into it by someone who would otherwise fully be caught by the active promotion test and would thereby be liable, that person is now protected because the first person is protected.
HAYNE J: No, it is an advance on the proposition appearing at page 5 of the Commonwealth’s submissions, paragraph 19, a quote from Trindade, and it is building on the word “wrongful”, which appears in the first line of the quotation. It is a contention that the restraint in fact imposed on Mr Taylor was not wrongful; it was statutorily authorised, indeed required.
KIRBY J: That is what I was trying to express.
MR BIRCH: Yes, that is the way it is put, as I understand it. Now, what it said is this, that if the Ministers were the direct cause so that they would be liable, even though they were not acting – and they were not acting under 189 - if the officer has 189 protection then that is the end of it. The Ministers cannot be liable even if they are otherwise a direct cause. Now that, we say, firstly, is contrary to the concession that was made and relied upon by the Court of Appeal. They expressly conceded the opposite proposition up until ‑ ‑ ‑
GUMMOW J: There is a big debate about that. We have to try and work out some principles.
MR BIRCH: Yes. If one entertains that we say two things. We say 189 is not a section which is a general authorisation of the detention. The survey I made of the whole division and the examination of the provisions, particularly 196, was addressed to that issue. It was an attempt to demonstrate that when one looks at the division as a whole one does not find that this was lawful detention and the amendments that have now been made even speak of a determination of unlawful detention and, therefore, it has not been ‑ ‑ ‑
GUMMOW J: That is another debate.
MR BIRCH: It is a debate about what 189 means because my argument is ‑ ‑ ‑
GUMMOW J: No, paragraphs 19 and 54 I am trying to work out at the moment.
MR BIRCH: Yes. What is implicitly put in 19 and 54 is that 189 makes this lawful detention for all purposes and for all actors.
GUMMOW J: That is right.
MR BIRCH: That is what I am disputing and I want to contend that it is clear that all that 189 does is protect officers. It does not bring about the detention being lawful, and, indeed, if one looks at those amendments which speak about unlawful detention being determined by a court they would make little sense if any officer had a reasonable suspicion and acted under 189 it must follow from what is now suggested by the Solicitor‑General that that would automatically make it lawful for all purposes and that is not consistent with those amendments.
GUMMOW J: I took you off you course.
MR BIRCH: Your Honours, what we had wanted to do was this, to hand up a decision of the House of Lords of Jacobs v London County Council. It has a speech by Lord Simonds which deals with issue estoppel where there are two alternative bases upon which the judgment can be upheld.
GUMMOW J: We used to learn this in law school.
MR BIRCH: Yes.
GUMMOW J: Glanville Williams, Learning the Law.
MR BIRCH: At page 370, at point 3 and following, there is a discussion –and I appreciate there is a discussion of the principle of the ratio rather than issue estoppel – but what his Lordship says is that it cannot be the case because a case is decided and there are two sufficient reasons given that there is no ratio because it could be said of either reason the other reason would be sufficient, and if one was to adopt that view, then the case would decide nothing, and that cannot be appropriate.
What happened here was that the constitutional issue was sufficient to decide the case – this is Patterson v Taylor, of course – as was the excessive jurisdiction issue. If we were here relying on the excessive jurisdiction issue, the Solicitor‑General could come along and say, “But that was really superfluous because the whole decision could have rested just as easily on the constitutional point and, therefore, the comments on jurisdiction are obiter”, and it is our contention that where both reasons were sufficient to fully support the judgment, they both give rise to issue estoppel, and that issue estoppel can then be relied upon to permit the argument we have put in our submissions based on Patterson v Taylor.
HEYDON J: What you have just said is contrary to what the majority said in Shaw in paragraph 39 which, in effect, marginalised Patterson, and said that was not the ratio.
MR BIRCH: What the majority say was that there was no ratio.
HEYDON J: And Jacobs v LCC is the teaching about when a case can have two rationes and it does not really apply, does it, if four Justices of the Court have said that Patterson has no relevant ratio for your purpose?
MR BIRCH: Of course, I am concerned with issue estoppel rather than extracting a ratio ‑
HEYDON J: So shall we tear up ‑ ‑ ‑
MR BIRCH: I suppose I am having it a little each way because the statements of Lord Simonds are concerned with ratio but the fact is that if there is not a ‑ ‑ ‑
HEYDON J: You cannot get an issue estoppel out of dicta, can you?
MR BIRCH: What was presumably meant by the Court in those statements about Patterson was its implication for a rule that could be applied in future cases. It is not as if the Court was plainly contemplating its application to litigation between the Commonwealth and Mr Taylor, so what I would urge is that the Court must plainly have been intending to speak about the implication of the case, generally for other litigants, not its potential to create an issue estoppel for ‑ ‑ ‑
GLEESON CJ: We were not faced in Shaw with the same problem that the Federal Court was faced with in Lange, the reason being that we could form our own view on the issue in question.
MR BIRCH: Yes. What I am suggesting to your Honours is this, that I accept what Justice Heydon draws to my attention. Certainly the Court said that Patterson is to be seen as limited in the way it was and not to have a ratio, but that had been a point that had been made by his Honour Justice McHugh in Te’s Case. We are not concerned with extracting a principle or ratio. All we need is this finding about Mr Taylor, and given that there were two findings, one about the extent of the Commonwealth’s reach over him, and another about the Minister’s exercise of jurisdiction, we say both were cases that were sufficient to uphold the judgment; both were reasons that could found an estoppel.
GLEESON CJ: Thank you, Dr Birch. Yes, Mr Solicitor.
MR BENNETT: If the Court pleases, I do not know if your Honours wish me to complete my submissions tonight. I will expect to be about 20 minutes.
GLEESON CJ: Yes, I think so. Yes, please.
MR BENNETT: If your Honour pleases. Your Honours, first dealing with Little, we make three points. The first is to remind your Honours what was said about section 13(3) in that case at page 113, which is what we rely on; secondly, to point out that what was said in that case about section 13(1) was simply said as a matter of construction. That section provided:
Any person who is found committing an offence against this Act, or who is suspected of having committed, or of being about to commit, such an offence –
Well, if the offence under this Act does not exist, one cannot suspect such an offence. It is a matter of construction, it is not ‑ ‑ ‑
CALLINAN J: But is not his Honour really saying that, without more, unlawful conduct cannot be justified? That is, without more, such as a provision of the kind which section 13(3) is. His Honour is not saying that other provisions cannot be enacted to justify or excuse conduct which would be otherwise unlawful or unjustified.
MR BENNETT: No, your Honour.
CALLINAN J: That is not the only way of excusing people, by having a provision such as section 13(3).
MR BENNETT: No, it is not, your Honour. One can achieve the same result by expressly authorising the conduct.
CALLINAN J: Exactly, and the common law can be changed by any constitutional enactment.
MR BENNETT: Yes.
CALLINAN J: Any constitutional enactment at all can change the common law, which is that unlawful conduct is not protected.
MR BENNETT: Precisely, your Honour. We also adopt what fell from Justice Hayne, that one of the reasons section 13(1) was construed the way it was construed was the existence of section 13(3). That is all I think I need to say about Little.
In relation to Governor of Brockhill Prison, we do not rely, of course, on some common law right to imprison on reasonable grounds. We rely on section 189 and the question is what that section does.
Thirdly, my learned friend made a number of submissions about the direct and proximate cause and the unavailability to the Ministers of section 189, but the problem with my learned friend’s argument is that it simply proves too much. If he were right – I go back to my example of the officious bystander on the beach in Western Australia. Let us assume the officious bystander is the Minister. The Minister is standing on the beach as the boat pulls up and the officer is there, and the Minister says, “Officer, you are an officer of my department. Do your duty and take those people into custody”.
My friend’s argument would be that the Minster cannot rely on the fact that the detention is perfectly justified under section 189 because the officer has the reasonable suspicion. He would say that because the Minister gave the command and directly caused and so on, the Minister does not have that defence; therefore, it is in some way unlawful even if they are really unlawful non-citizens. The point is that to have false imprisonment there must be falsity. It must be wrongful in some way and it cannot be wrongful in the face of section 189 and we have dealt with that to some extent ‑ ‑ ‑
KIRBY J: It may not be wrongful in a suit against those persons but they are not the people who were sued. I understand how you say it is necessary to import it into an action against the Minister but the Minister is not mentioned in 189(1) as he could have been.
MR BENNETT: No, your Honour, I am not relying on 189(1) for this purpose as an exonerating provision. I am relying on it as making what was done lawful, so what the Minister did if the Minister was a party to it to an approximate extent, cannot be – the stream cannot rise higher than the source. If the actual detention is lawful, the act of the Minister cannot be an act of unlawful detention, and that is what we criticise in the shoplifting cases.
KIRBY J: Yes, but the stream and the source has a double edge, if I can mix the metaphors, because here if the Ministers’ decision was flawed or found to be flawed, then the mere fact that somebody a long way down the line in the department has this reasonable belief because he thinks no Minister would ever direct or authorise the detention that was unlawful, then that really is not an answer to the problem of a suit for wrongful imprisonment.
MR BENNETT: Well, your Honour, may I come back a moment. This is what is wrong with the dicta in Davidson’s Case. If you have a provision actually authorising the police officer to make the arrest in the events which have happened and if one has a person who says to the police officer, “Officer, I want you to arrest that man who does all the things that the cases say make it the act of that person”, but there is no statute which gives the private citizen a right of arrest, then if my friend were right, even if the person was guilty of shoplifting, the policeman acted totally lawfully and had the power of arrest and so on, the store detective would be liable.
GLEESON CJ: Well, rightly or wrongly, the argument against you is that you are hoist with your own petard. The argument is that you made a legally ineffective attempt to cancel a visa and the inevitable legal consequence of bringing to the attention of officers of the department that such as purported cancellation had occurred was the arrest of the respondent, so the respondent says, rightly or wrongly, the legal infirmity of the decision to cancel the visa produced an imprisonment of the respondent which was relevantly unlawful.
MR BENNETT: It is that last step, your Honour, which we say just cannot be asserted in the face of section 189. Section 189 is a requirement on officers which makes the resulting detention a lawful detention. Someone who is in some way vicariously responsible – in this case, of course, we say there was not, but if one could have that sort of vicarious responsibility, this makes one vicariously responsible for what was perfectly lawful, and that does not give rise to liability. As I say, I make this submission in paragraph 54 of our submissions, which is what I have basically just been saying.
HAYNE J: Well, the answer that seems to be lying beneath that is that what makes it lawful detention is not the lawfulness of the cancellation of the visa, but the holding of the belief by the officer.
MR BENNETT: Yes, your Honour. To the extent that my friend says, well, there is no provision that leads to release, that flows from 196(2) in the context of the sections read as a whole. And 196(2) makes it quite clear that the person is to be released once it is established in an appropriate way that the person is a citizen or a lawful non‑citizen. That follows as night is day from 196(2). It is certainly expressed in the negative, but it is clearly what follows from it.
McHUGH J: What do you say about the well‑known passage at page 29 in Lim’s Case, in the joint judgment of Justices Brennan, Deane and Dawson, where they said that the regime under consideration in that case could only apply to a non‑citizen, and if it was:
not confined to non‑citizens, would purport both to authorize involuntary imprisonment of citizens by executive designation and to deprive the courts of jurisdiction to order that a citizen, who had been so designated by the Executive, be released from custody if his or her detention in custody was found to be unlawful.
MR BENNETT: Well, your Honour, it was not a view of a majority of this Court. We would disagree with that passage in Chu.
KIRBY J: It sounds very similar to what the House of Lords wrote a couple of weeks ago.
McHUGH J:
Such a conferral upon the Executive of an essentially unexaminable power to imprison a citizen would, for the reasons given above, be inconsistent with the Constitution’s doctrine of the separation of judicial from executive and legislative power and its exclusive vesting of judicial power in the courts.
MR BENNETT: It is not unexaminable, your Honour, because of 196(2) which makes it clear that the detention terminates once the truth is established.
HAYNE J: But it is also the reasonable suspicion. It is not that the officer suspects but that the officer reasonably suspects and that also gives rise to a justiciable issue.
MR BENNETT: It does, your Honour.
HEYDON J: It is not a Liversidge v Anderson.
MR BENNETT: Clearly, once a court had determined the true facts one could not reasonably hold the suspicion. It is an interlocutory procedure, as I have said many times. The passage in Chu we would submit simply is incorrect if it suggests that it is not examinable. It is examinable because once the truth is established the person is to be released. That is the effect of 196(2) although expressed in the negative. Of course, the Act was in a very different form, then.
McHUGH J: I do not know about very different but I think, for present purposes, it was.
MR BENNETT: Yes. We would submit Chu’s Case does not harm us in that regard. Your Honour Justice McHugh referred to the numerous cases where people were held liable in the 19th century and the need for exoneration provisions. Of course, here one has an express provision which to some extent serves both purposes.
McHUGH J: It seems to me that is what the case ultimately turns upon. Certiorari quashed the orders, therefore what you have to say is that for the purposes of 189(1) an officer can have a reasonable suspicion when he has a mistaken belief that a cancellation order was in existence and that the plaintiff was an unlawful citizen even though his belief is based on an error of law or the quality of the acts.
MR BENNETT: It is, at least, partly an error of fact because the officer does not know the factual matters which led to the decisions being quashed on administrative law grounds. It is not an error of law in thinking that they are valid when they are invalid. It is rather not knowing the ‑ ‑ ‑
McHUGH J: He believes the document which he sighted.
MR BENNETT: Yes.
McHUGH J: The evidence is that these officers inspected the files, made other checks. So the question is can you have a reasonable suspicion for the purposes of 189(1) when you mistakenly believe that a document has legal force and effect?
MR BENNETT: All he has to do is reasonably suspect that the document ‑ ‑ ‑
McHUGH J: That is the question, whether it is reasonable.
MR BENNETT: Yes, your Honour. I will not repeat Percy’s Case which we rely on strongly and the references in Veivers and Little and so on. If one really analyses it, it is a mistake as to a matter of mixed fact and law.
McHUGH J: You said that in your submissions.
MR BENNETT: The officer looks at the document, checks to see if there is any other visa and did the checks which the officer did and says, “In the light of all that, I have a reasonable suspicion”, and that, in my respectful submission, is right.
My learned friend relies on Spautz v Butterworth (1996) 41 NSWLR 1. We just say two things about Spautz: first, that the statute in Spautz had a particular provision which made it clear that the magistrate was liable in the relevant circumstances. One statute there said:
Every action brought against a Justice for an act done by him in the execution of his duty . . . shall be an action as for a tort.
Then there were a series of exonerations, and there was reference to:
An action against a Justice for any act done by him in a matter of which by law he has not jurisdiction –
and so on. That is the first thing. The second point of distinction in Spautz is that what the magistrate signed there was not something which caused an officer to have a suspicion but it was something which commanded the officer to do something. It was a very different case to the present one, it was a warrant. If one looks at those cases on direct and proximate cause, the conduct of the magistrate is like the store detective who says to the policeman, “Arrest that man”, so Spautz, we would submit, is of no assistance to my learned friend.
My learned friend referred to the changes to the Act. It is a novel proposition that one can construe an Act by reference to subsequent amendments in that way. But even assuming one could, it is quite apparent from the explanatory memorandum, which my learned friend has conveniently annexed to his submissions in reply, that the amendments had a totally different purpose. There had been a number of decisions in the Federal Court in which the Federal Court had said, in effect, under its general powers to make interlocutory orders, it was entitled to order the release of people pending the determination of matters before the court. What the explanatory memorandum says is that that is something which the Parliament wished to alter, and it altered it by making it clear.
CALLINAN J: Does not the balance of opinion on this Court hold, though, that you do not look at subsequent amendments to construe an earlier form of an enactment?
MR BENNETT: Your Honour, one can, for very limited purposes, but even if one can – and normally one cannot, I would submit – even if one can, to a very limited extent, here it is quite clear what the purpose of the amendment was, and it had nothing to do with the present type of case. It was concerned with orders for interlocutory release. That is made absolutely clear on page 52 of my learned friend’s supplementary additions to the appeal book.
In its judgments, the Federal Court has indicated that if the Parliament wishes to prevent a court from ordering the interlocutory release of a person, it must make its intentions unmistakably clear. This Bill is intended to achieve this. The Bill amends the Migration Act to make it clear that unless an unlawful non‑citizen is removed from Australia –
and I stress the words unlawful and citizen –
deported or granted a visa, the non-citizen must be kept in immigration detention. This applies unless a court finally determines the detention is unlawful, the person is not an unlawful non‑citizen –
et cetera. So, in my respectful submission, the amendment simply does not have anything to say about the present situation.
We have no objection to my learned friend filing his notice of contention, perhaps I should say.
Now, there was mentioned in the course of argument the possibility of further submissions in relation to Hoysted. If that is considered desirable, I ‑ ‑ ‑
GLEESON CJ: You can put any submissions you want to put in seven days, and your opponent will have seven days to answer them.
MR BENNETT: Yes. If your Honour pleases. There is one other passage I should have added to the references to Little, and that is to Webster v Lampard 177 CLR 598 at 608 where in a joint judgment of three Justices of this Court this sentence appears in relation to a defence of a belief:
based on reasonable grounds.” Notwithstanding some ambiguous statements in earlier cases –
and Roberts v Orchard is the example given –
it should also now be accepted as settled that such a defence is available regardless of whether the genuine but mistaken belief was wholly or partly the result of error of law.
And there is a reference to Little’s Case.
KIRBY J: What are you quoting from? I thought you were quoting from Little.
MR BENNETT: From Webster v Lampard, your Honour, and I have given your Honours the reference. It is (1993) 177 CLR 598 at 608 point 1. It is analogous, of course, to other areas of law such as action to set aside a contract where there has been a mistake of fact. That has now been extended to a mistake of law in a case involving the Commonwealth Bank.
McHUGH J: Yes, but their Honours were citing that proposition – it has to be read in the light of the passages they cited from, Little at 110 and 112, and those passages do not bear out the proposition that some naked mistake as to a question of law falls within a protected provision, but it is another question. This is not a protected provision.
MR BENNETT: It is an authorisation, your Honour.
McHUGH J: That is right – it is not, it is a duty which carries with it an implication of a power to detain.
MR BENNETT: Your Honour, the words, we would submit, are simply clear and unambiguous.
GLEESON CJ: And the nature of the mistake in this case is a mistake about the legal efficacy of a purported cancellation decision.
MR BENNETT: Yes, your Honour, but there need not even be a mistake because if the officer forms the view – and this is why I talked about professors of law as officers – if the officer forms the view that there is doubt about it, that it may be that this is invalid, it may be it is not, in which case there is no mistake, the officer is correct in thinking it may be or may not be, the officer still has a reasonable suspicion.
McHUGH J: Yes, but Mr Solicitor, what Webster v Lampard was dealing, as was Little, was whether or not an officer was acting in the execution of his duty when he did certain things to bring himself within the protective provision. In Webster three Justices said that covers mistakes of law. It does not follow that when you are relying on 189(1), which is a power, not a protective provision, that you are in the same territory. Now, it may have the same effect, as you pointed out, as a protective provision if it authorises you. The question is does reasonable suspicion in that empowering section authorise a mistake of law?
MR BENNETT: Your Honour, we would submit it is a fortiori, bearing in mind that section 189 has the twin functions. A command has a double effect. It requires and it authorises and we would submit the reasoning in that case on that issue is in accordance with the trend of modern authorities. I have taken your Honours to the cases in that regard. A person simply may reasonably suspect, even if the person knows, the person makes no mistake, but knows that there is doubt about the legal proposition. Such a person might well say, “The court may go one way or the other on it. There are two possibilities but I reasonably suspect in that situation because it is a possibility”. It is analogous in that respect to the reversal of the standard of proof in Williamson or the effect of the “reasonably suspected” in Milicevic.
McHUGH J: Since you are going to put in some submissions, I would be interested if you can find any case where a provision such as “reasonable suspicion” involving a mistake of law not being a protective provision has been held to justify malicious prosecution or false imprisonment. Nearly 40 years ago I read nearly all these cases from the 19th century and I cannot recollect any that deals with the problem, but maybe there are one or two that do.
MR BENNETT: I will see if I can find one, your Honour, bearing in mind that there are not likely to be many because the problem normally arises, as your Honour says, in relation to protective provisions, but we will see if we can find something on that. If the Court pleases.
GLEESON CJ: Thank you, Mr Solicitor. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.
AT 4.47 PM THE MATTER WAS ADJOURNED
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