Senator Bolkus & Anor v Tang

This case concerned an appeal to the High Court of Australia from a judgment of the Federal Court of Australia. The appellants, Senator Nick Bolkus (Minister for Immigration and Ethnic Affairs) and Joanne McRae (Manager of the Immigration Reception and Processing Centre at Port Hedland), appealed a decision that had declared the ongoing custody of designated persons invalid. The core of the dispute revolved around whether these individuals had been held in custody for a period exceeding the 273 days permitted by the *Migration Act*.

The legal issue before the High Court was the proper construction of Division 4B of Part 2 of the *Migration Act*, specifically concerning the calculation of the 273-day limit for the detention of designated persons. The central question was when the "clock stopped" running on this detention period. The appellants contended that the clock stopped from the moment the Department requested information necessary to process an entry permit application, while the respondent argued for a different interpretation.

The Court was required to determine the meaning of section 54Q(3)(c) of the *Migration Act*, which provides that the 273-day custody period does not run while the Department is waiting for information relating to an application from a person not under the Department's control. The appellants argued that this period commences as soon as the Department makes a request for information, whether to an overseas post, another agency, or the applicant themselves. This interpretation aimed to allow for the necessary inquiries and processing of applications without the custody period expiring prematurely.