SZRWS v Minister for Immigration
[2017] FCCA 3101
•22 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
SZRWS v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 3101
Catchwords:
MIGRATION – Review of decision to issue an Australian Border Force Directive in relation to food brought to detention centres by visitors – prohibition on home cooked food – consideration of the jurisdiction of the Court to review a decision concerning the management of detention centres – impact on the applicant – consideration of an injunction restraining the application of the decision to the applicant.
Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3, 5, 8, 10
Constitution of the Commonwealth of Australia 1901 (Cth), s.75
Evidence Act 1995 (Cth), s.81
Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 10, 15, 16
Migration Act 1958 (Cth), ss.5, 252, 273, 474, 476
Cases cited:
Abebe v Commonwealth (1999) 197 CLR 510
ARJ17 v Minister for Immigration [2017] FCA 263ASIC v Edensor Nominees (2001) 204 CLR 559
Attorney-General (UK) v Guardian Newspapers Ltd (No 1) [1987] 1 WLR 1248; (1987) 3 All ER 316 (HL)
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199Behrooz v Secretary, Department of Immigration (2004) 219 CLR 486
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148Century Metals and Mining NL v Yeomans (1988) 16 ALD 406; (1988) 85 ALR 29
Clamback v Coombes (1986) 13 FCR 55Clark v Commissioner for Corrective Services [2016] NSWCA 186
Craig v South Australia (1995) 184 CLR 163
EPP v Levy [2001] NSWSC 482
French v Chapple [2000] NSWSC 1240
Griffith University v Tang (2005) 221 CLR 99
Hartlepool Gas & Water Co v West Hartlepool Harbour & Railway Co (1865) 12 LT 366 (CA)
Kondis v State Transport Authority (1984) 154 CLR 672
Minister for Immigration v ARJ17 [2017] FCAFC 125Minister for Immigration v Gray (1994) 50 FCR 189
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v SZRKT [2013] FCA 317; (2013) 212 FCR 99
MZYYR v Secretary, Department of Immigration [2012] FCA 694; (2012) 129 ALD 331Ocean Dynamics Charter Pty Ltd v Hamilton Island Enterprises Limited [2015] FCA 460
Palmer v The Chief Executive, Qld Corrective Services & Ors [2010] QCA 316
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1Plaintiff S99/2016 v Minister for Immigration [2016] FCA 483; (2016) 243 FCR 17
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
S v Department of Immigration (2005) 143 FCR 217
S v Secretary, Department of Immigration (2005) 143 FCR 217Samsung Electronics Co Limited v Apple Inc (2011) 217 FCR 238
Sandalciyan v International Development and Construction Pty Limited [2010] FCA 1145SBEG v Commonwealth (2012) 208 FCR 235
Secretary, Department of Immigration v Mastipour [2004] FCAFC 93; (2004) 207 ALR 83
SZSZM v Minister for Immigration [2017] FCCA 819
Applicant: SZRWS
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: COMMONWEALTH OF AUSTRALIA
Third Respondent: SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION
Fourth Respondent: SERCO AUSTRALIA PTY LTD
(ABN 44 003 677 352)
File Number: SYG 2727 of 2017
Judgment of: Judge Driver
Hearing date: 11 December 2017
Delivered at: Sydney
Delivered on: 22 December 2017 REPRESENTATION
Counsel for the Applicant: Mr V Kline, pro bono publico
Solicitors for the Applicant: Holding Redlich, pro bono publico
Counsel for the First, Second and Third Respondents: Ms F I Gordon
Solicitors for the First, Second and Third Respondents: Australian Government Solicitor
Counsel for the Fourth Respondent: Ms P A Horvath
Solicitors for the Fourth Respondent: Wotton + Kearney Lawyers INTERLOCUTORY ORDERS
(1)The first, second and third respondents are restrained by themselves, or their servants or agents, from implementing or continuing to implement the decision evidenced in Australian Border Force Directive 016-2017, being Annexure SC-4 to the affidavit of Sabina Callaghan made on 28 November 2017, in relation to the applicant, insofar as it prevents persons visiting the applicant at the Villawood Immigration Detention Centre from bringing home cooked food to be consumed in the visitors area of the Detention Centre, until the hearing of the principal proceedings herein, or further order in any appellate proceedings arising from this order.
(2)Costs of this application are reserved.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEYSYG 2727 of 2017
SZRWS Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION Third Respondent
SERCO AUSTRALIA PTY LTD
(ABN 44 003 677 352)Fourth Respondent
REASONS FOR JUDGMENT
Introduction and background
1.By a further amended application filed on 14 November 2017, the applicant seeks an injunction restraining the respondents, or their servants or agents, from implementing, or continuing to implement, a decision issued as a direction on 11 August 2017, with a date of effect of 11 September 2017 to restrict the food products which might be brought to persons in immigration detention by their visitors. This judgment concerns the application insofar as it seeks an interlocutory injunction until the hearing of the principal proceedings.
2.The background to the proceedings is that visitors to the Villawood Immigration Detention Centre (Villawood) were notified earlier this year that, as from 4 September 2017, food could only be brought to detainees during visits if:
a)the food is commercially packaged (so it cannot be tampered with), labelled, factory sealed, has a visible and valid expiry date and is identifiable;
b)the packaging is made of carton or soft plastic (not metal or glass);
c)the amount of food is only that which can be consumed during the visit; and
d)the food is consumed in the visiting area and not taken back to detainee areas.
3.The applicant is a detainee at Villawood.
4.The respondents state, in the notification, that they are doing this to provide detainees with a safe and healthy environment because:
a)cooked and raw food quickly becomes contaminated with bacteria and can cause illness if left at room temperature; and
b)if food is not commercially packaged and sealed, there is a risk of controlled and prohibited items entering the detention centre.
5.The decision then lists foods that are prohibited and these include:
a)all perishable foods;
b)frozen meals;
c)fresh fruit and vegetables;
d)tinned food;
e)home cooked meals.
6.The applicant claims that the decision has, and will have, the following impact on him:
a)he has been separated from his family for approximately five years. Previously, when they visited they could spend the whole day, but without the family being able to bring culturally appropriate food, they can only stay for a few hours, as there is nothing appropriate for them to eat;
b)the sharing of a meal is important to help a family connect and enjoy some time together resembling real family time, despite the circumstances of separation;
c)the visit and the sharing of food not only nourishes the applicant’s body but also his soul, and gives him spiritual energy to ease the suffering and the pressure of detention;
d)his family never brought food that was damaged, but was always fresh;
e)the fourth respondent (Serco) does purport to provide halal food, but it is allegedly sometimes mixed up with non-halal food like pork, due to the “lack of organisation” and “no separate kitchen space” to prepare halal meals, thus further limiting his options; and
f)in any event, lunch and dinner are only provided during certain times by Serco, so that on the days when the family visits, the applicant will miss meals as he cannot leave the visitor area.
7.The applicant suffers from Crohn's disease, and has done so since 1990. He claims that this disease has flared up as a consequence of having to eat only biscuits and chips during family visits.
8.For the purposes of the interlocutory application, the applicant relies upon his affidavit made on 27 October 2017. The respondents rely upon the affidavit of Sabina Callaghan made on 28 November 2017 (Callaghan affidavit) and the affidavit of Ashley Dixon made on 4 December 2017 (Dixon affidavit). The applicant deposes as to the impact upon him of the decision. Ms Callaghan deposes as to the background to the policy underlying the decision and Ms Dickson deposes as to the provision of food services at Villawood.
9.The parties filed written submissions prior to the hearing of the interlocutory application on 11 December 2017 and made oral submissions through their counsel on that day.
Jurisdiction
10.Before dealing with the question of whether an interlocutory injunction should be granted, I must be satisfied that the Court has jurisdiction to entertain the application.
Applicant’s submissions on jurisdiction
11.In ARJ17 v Minister for Immigration,[1] Rares J affirmed that this Court has original jurisdiction to decide a proceeding in the nature of that instituted by the applicant, but only in relation to an individual, as opposed to a representative proceeding[2]. That jurisdiction arises under s.476(1) of the Migration Act 1958 (Cth) (Migration Act), which gives this Court the same jurisdiction in relation to a migration decision as that possessed by the High Court under s.75(v) of the Constitution of the Commonwealth of Australia (Constitution).
[1] [2017] FCA 263
[2] at [88]
12.ARJ17 was brought in relation to a decision made under s.252 of the Migration Act, and dealt with an analogous situation, namely whether the Minister had power to remove mobile phones belonging to detainees. The Commonwealth accepted, however, that the case could have been brought under s.273 of the Migration Act.[3]
[3] Ibid. at [8]
13.Section 273 of the Migration Act deals with detention centres. Section 273(1) states that the Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained. Subsection (2) enables regulations to be made, which may make provision in relation to the operation and regulation of detention centres. No relevant regulations have been made.[4]
[4] see [20] below
14.Section 273 is not a privative clause section.[5] Therefore, an action in this Court in relation to a migration decision[6] made under s.273 does not need to show that the administrative decision in question suffered from jurisdictional error.
[5] see s.474(4) of the Migration Act
[6] “migration decision” is defined in s.5 of the Migration Act to include, among other things, “a non-privative clause decision”
15.Recently, in this Court, in SZSZM v Minister for Immigration,[7] Judge Smith held that in a case of this type,[8] this Court has jurisdiction, not only under the Migration Act insofar as the decision does not suffer from jurisdictional error, but also under s.8(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), whether or not suffering from jurisdictional error.[9]
[7] [2017] FCCA 819
[8] SZSZM was also a “mobile phone case” dealing with the same issues as in ARJ17
[9] Ibid. at [34]
16.This Court has wide powers to make orders of such kinds as it thinks fit, and issue writs as it considers appropriate.[10] It has power to make binding declarations of right, whether or not any consequential relief is or could be claimed.[11] It is declared to be a court of law and equity, and thus has power, among other things, to issue an injunction.[12] Thus this Court has jurisdiction to hear this matter and to grant the remedies sought.[13]
[10] Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act), s.15
[11] Ibid. s.16
[12] Ibid. s.8(3). Note this power also arises from its being invested under s.476(1) of the Migration Act with the High Court's powers under s.75(v) of the Constitution
[13] Any argument that the decision challenged in this case is a “primary decision” and therefore this Court would be denied jurisdiction under s.476(2) of the Migration Act, is met by the definition of “primary decision” in s.476(4) of the Migration Act, which is restricted to decisions which can be challenged under Parts 5, 7 and 7AA of the Migration Act in relation to the denial of visa applications by delegates of the Minister. In any event this was not suggested by either party in ARJ17 or SZSZM
Submissions of the Commonwealth respondents on jurisdiction
17.This Court has such original jurisdiction as is vested in it by laws made by Parliament.[14] There are, relevantly, two statutory provisions that confer jurisdiction on this Court:
a)first, s.476(1) of the Migration Act provides that this Court has the same original jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution; and
b)secondly, the ADJR Act permits an aggrieved person to seek review in this Court of a “decision of an administrative character made under an enactment”.[15]
[14] Federal Circuit Court Act, s.10(1)
[15] ADJR Act, ss.3, 5 and 8
Jurisdiction under the ADJR Act
18.Turning first to the ADJR Act, the “policy decision” is said not to have been a decision made under an enactment.
19.Section 273(1) of the Migration Act empowers the Minister, on behalf of the Commonwealth, to cause detention centres to be established and maintained. The Minister’s power in s.273 has not been delegated to any other person.
20.Section 273(2) permits the making of regulations in relation to the operation of detention centres, but, with one exception,[16] no such regulations have been made, and no other provision of the Migration Act makes provision for the kind of decision here in issue, being a decision to make a “general policy” about the conditions of entry for visitors to detention centres.
[16] A regulation regarding medical treatment has been made under s.273: Migration Regulations 1994 (Cth), regulation 5.35
21.While s.273 may implicitly authorise the decision, that alone does not permit the conclusion that the decision was a decision made under an enactment, susceptible to review under the ADJR Act.[17] This was explained by Gleeson CJ in Griffith University v Tang[18] as follows:
In all Australian jurisdictions there are statutes which establish or incorporate particular institutions, such as schools, or hospitals, or universities, or charitable organisations, describe their functions, confer on them powers appropriate to those functions, and provide for their governance. Whatever the principal functions of such an institution may be, the statute by which it is established ordinarily confers upon some governing authority general powers appropriate to the discharge of those functions. It does not follow that any administrative decision made in the exercise of those powers is a decision made under the relevant enactment for the purposes of the AD(JR) Act, or legislation expressed in the same terms.
[17] Griffith University v Tang (2005) 221 CLR 99 at [78] (Gummow, Callinan and Heydon JJ)
[18] Tang at [11]
22.In order to ascertain whether a decision is “made under an enactment” for the purposes of the ADJR Act, it is necessary to go further and ask:[19]
Do legal rights or duties owe in an immediate sense their existence to the decision, or depend on the decision for their enforcement? … [Does] the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under general law but by virtue of the statute?
If the decision derives its capacity to bind from contract or from some other private law source, then the decision is not “made under” an enactment.
(citations omitted)
[19] Tang at [80]-[81] (Gummow, Callinan and Heydon JJ)
23.The decision is said to have no immediate effect on visitors to detention centres or detainees at those centres. It did not bind them. The immediate effect of the policy decision was to oblige certain persons to apply the policy. In particular, Serco employees became obliged, by the terms of its contract with the Commonwealth of Australia (the contract), to comply with the policy in setting the conditions of entry for visitors to detention centres. (The policy itself permits discretionary variations to account for unforeseen circumstances and special needs.) Therefore, the decision is said not to be a decision under an enactment because:
a)no legal rights or duties of the applicant owe in an immediate sense their existence to the decision;[20] and
b)the decision does not derive its capacity to bind from the Migration Act.
[20] Cf the decision in Tang to exclude the applicant from a degree programme
Jurisdiction under the Migration Act
24.As set out above, s.476(1) of the Migration Act provides that this Court has the same original jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution.
25.The expression “migration decision”[21] means:
a)a privative clause decision; or
b)a purported privative clause decision; or
c)non-privative clause decision; or
d)an Administrative Appeals Tribunal Act 1975 (Cth) migration decision.
[21] Migration Act, s.5(1)
26.A non-privative clause decision is a decision made under a provision, or under a regulation or other instrument made under a provision, set out in the table in s.474(4). The provisions in that table include s.273, on which the applicant relies.
27.The Commonwealth respondents contend, for the reasons given above in connection with the ADJR Act, that the decision was not made under s.273 or under a regulation or instrument made under s.273.
28.There are said to be further jurisdictional difficulties, relating particularly to the jurisdiction conferred by the Migration Act.
29.First, because the jurisdiction of this Court is framed by reference to s.75(v) of the Constitution, the applicant is limited to the forms of relief set out in s.75(v), at least in terms of the primary relief sought, which do not include declarations. Yet, in his application, the primary relief sought by the application is a declaration.
30.Secondly, to the extent that the basis for the relief sought is jurisdictional error, the consequence of the decision in Minister for Immigration v ARJ17[22] is that:
a)a decision can only be a “non-privative clause decision” if it was not affected by jurisdictional error;
b)as a corollary of that, if the decision was affected by jurisdictional error, the Court has no jurisdiction and the application must be dismissed;
c)in the alternative, if there is no jurisdictional error and the Court therefore has jurisdiction, the application must be dismissed if the sole basis of the relief sought is that there was jurisdictional error affecting the relevant decision.[23]
[22] [2017] FCAFC 125; see also in ARJ17 v Minister for Immigration [2017] FCA 263
[23] SZSSM at [30] (Judge Smith)
31.The applicant relies on two grounds of judicial review. The first is that the decision involved a breach of the Minister’s duty of care to the applicant. That is not a recognised ground of judicial review. The cases relied upon by the applicant[24] involved an injunction being sought to restrain a continuing breach of duty of care, in the context of a claim in negligence, which the Commonwealth respondents do not concede it is.
[24] Plaintiff S99/2016 v Minister for Immigration [2016] FCA 483; (2016) 243 FCR 17 at [18]ff; S v Secretary, Department of Immigration (2005) 143 FCR 217 at [4]; Secretary, Department of Immigration v Mastipour [2004] FCAFC 93; (2004) 207 ALR 83 at [32] (Lander J); MZYYR v Secretary, Department of Immigration [2012] FCAFC 94; (2012) 129 ALD 331 at [2]. See also SBEG v Commonwealth (2012) 208 FCR 235, in which the Court observed that it was novel to claim an injunction to restrain the commission of the tort of negligence and that “there is no known case of a [final] injunction being granted to retrain the commission of the tort of negligence”, citing Meagher Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed, 2002) at 21-115. That statement was not found in the 5th edition of the book, though there is no reference to any case in which a final injunction has been granted to restrain the commission of the tort: [21]-[105]
32.The second ground involves three sub-grounds: that the decision was made having regard to irrelevant considerations, or without having regard to relevant considerations, or that it was legally unreasonable. If those errors were established, they would amount to jurisdictional error[25] and, therefore, this Court would have no jurisdiction, applying the reasoning in SZSZM.[26] Indeed, subject to some unresolved uncertainty as to the function of the injunction in s.75(v),[27] the applicant must establish jurisdictional error to obtain relief under s.75(v). Irrespective of that uncertainty, which need not be resolved for present purposes, an injunction could only issue to restrain a legal wrong,[28] which in this case is said to be to restrain the implementation of a decision invalidated by jurisdictional error.
[25] As to relevant and irrelevant considerations, see Craig v South Australia (1995) 184 CLR 163 at 179. As to legal or manifest unreasonableness, see Minister for Immigration v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] (Robertson J)
[26] at [30] (Judge Smith)
[27] See Abebe v Commonwealth (1999) 197 CLR 510 at 551-552 (Gaudron J); Cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [121] (Callinan J) and ASIC v Edensor Nominees (2001) 204 CLR 559 at [45].
[28] Meagher Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, 2015) at 21-035.
Resolution on jurisdiction
33.I am persuaded that this Court has jurisdiction to entertain the present application. As noted in the parties’ submissions, Judge Smith discussed the jurisdictional issues at length in SZSZM, with specific reference to s.252 of the Migration Act, but also touching upon s.273 at [104] where his Honour stated:
Section 273 is entirely different to the cases considered in Nystrom including Anthony Hordern itself. Section 273(2) does not, in my view, support the conclusion that there is only one power to regulate conduct in detention centres. The power in s.273(1) to “maintain” carries with it a broad power to do just that. The power to make regulations under s.273(2) creates the ability to make other, more specific, provisions in connection with detention centres; however, that does not mean that it is the only power. If that were the case then, unless and until such regulations are made, there is no power at all to regulate detention centres.
34.I pay particular regard to his Honour’s reasons in that case at [11]-[36], which were made with the benefit of the decision of Rares J in ARJ17. That decision was itself endorsed by the Full Federal Court on appeal.[29] Importantly, at [67], the Full Court stated that decisions made pursuant to s.252 remain reviewable by this Court, notwithstanding that the Full Court found that the Federal Court had jurisdiction to review decisions made under that section.
35.I accept that decisions made under s.273 are non-privative clause decisions, which are reviewable by this Court in the absence of jurisdictional error. In my view, the decision in issue is a decision made under the section because it is the source of the Directive[30] binding Serco in its management of detention centres, including Villawood. The contract between the Commonwealth and Serco pre-dates the Directive and, in effect, permits the Commonwealth to impose new obligations on Serco unilaterally. The contractual rights and obligations of Serco are thus directly affected by the Directive, as noted in Serco’s submissions. The provision to visitors of access to the detention centres is in turn directly impacted by the application of the Directive by Serco in its management of the detention centres.
36.The applicant asserts a breach of the duty of care owed to him by the Minister and his Department. While a claim in negligence has not been specifically pleaded, it is tolerably clear that such a claim is intended from the asserted breach of the duty of care. This Court has jurisdiction, which is co-extensive to that of the High Court under s.75(v) of the Constitution, to grant injunctions restraining the commission of a tort. Likewise, the Court has jurisdiction, derived from the Federal Circuit Court Act, to make declarations in relation to tortious activities. It follows, in my view, that the Court has jurisdiction to grant the injunctive relief sought on an interlocutory basis, pending the outcome of the proceedings.
37.Likewise, I find that the Court has jurisdiction to entertain the application under s.8 of the ADJR Act. The applicant has advanced arguable grounds of review available under s.5(1) of that Act. I find that the decision in issue was made “under an enactment”, namely s.273 of the Migration Act. In reaching that conclusion, I have considered the decision of the Federal Court in Clamback v Coombes[31] which concerned instructions on the management of airports, but I have also had regard to the cautionary observations made by French J (as his Honour then was) in Century Metals and Mining NL v Yeomans.[32]
38.The ADJR Act is remedial legislation and artificial and technical distinctions should not be readily drawn. The ADJR Act was intended to overcome technical distinctions in administrative law rather than create new ones.
[29] [2017] FCAFC 125
[30] See [74(b)] below
[31] (1986) 13 FCR 55
[32] (1988) 16 ALD 406; (1988) 85 ALR 29
Should an interlocutory injunction be granted?
Principles
39.There are two questions to be determined on an application for an interlocutory injunction:[33]
a)has the applicant established a prima facie case (in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief); and
b)does the balance of convenience and justice favour the grant of an injunction or the refusal of that relief?
[33] See, eg, Samsung Electronics Co Limited v Apple Inc (2011) 217 FCR 238 at [52]-[63]; Ocean Dynamics Charter Pty Ltd v Hamilton Island Enterprises Limited [2015] FCA 460 at [26]-[35] (Edelman J)
40.The balance of convenience includes a consideration of whether the refusal of the injunction would have the effect that the applicant will suffer irreparable injury for which damages will not be adequate compensation.[34]
[34] Samsung Electronics at [61]–[63]
41.The issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries, and the apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance.[35]
[35] Samsung Electronics at [67]
The applicant’s contentions on the provision of relief
42.As mentioned above, s.273(1) of the Migration Act gives the Minister, on behalf of the Commonwealth, the power to establish and maintain, detention centres. Decisions like the decision come within the maintenance of Villawood.
43.Had regulations been made for operation and regulation of detention centres, as permitted by s.273(2) of the Migration Act, , then one would first look to see whether the decision did or did not come within what was properly allowed by the Regulations. However, no relevant regulations have been made.
44.In Behrooz v Secretary, Department of Immigration,[36] McHugh, Gummow and Heydon JJ held that whilst conditions in detention cannot be found to deny the legality of that detention, the Migration Act confers no immunity from liability in negligence for breach of a duty of care.
[36] (2004) 219 CLR 486, per McHugh, Gummow and Heydon JJ at [51]-[53]
45.The absence of regulations means that there is nothing to overrule or limit the general law. In Secretary, Department of Immigration v Mastipour,[37] Selway J stated that a detainee retains all of his or her civil rights, other than those taken away by law, either expressly or by necessary implication, and that in such a case “…there is no detailed regulatory regime against which to consider the duty of care owed by the Secretary to Mr Mastipour. In the absence of such a detailed regulatory regime there is no obvious reason for limiting the common law duty of care by reason of some inferred power or duty of the secretary.” The existence of that duty of care was acknowledged by the respondent in that case.[38]
[37] [2004] FCAFC 93; (2004) 207 ALR 83 at [13]-[15]. See also per Finn J at [2]: “The present legislative vacuum is, in my view, potentially unfair both to those involved in the conduct of detention centres and to the detainees.”
[38] Ibid. at [127]
46.The nature of that duty of care was explained by Finn J in S v Secretary, Department of Immigration[39] as being a non-delegable duty (accepted as such by the Minister), where the person upon whom the duty is imposed has undertaken the care, supervision or control of the person to whom the duty is owed, so as to assume a particular responsibility for his or her safety. The relationship of proximity giving rise to this non-delegable duty of care is marked by special dependence or vulnerability on the part of the person to whom the duty is owed.[40]
[39] (2005) 143 FCR 217 at [213]-[219], referring to the dicta of Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 679-687 and of the majority in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-551
[40] Ibid. at [213]-[214]. See also Plaintiff S99/2016 v Minister for Immigration (2016) 243 FCR 17 at [200]-[242] for a discussion of the principles relating to the imposition of a duty of care on a statutory authority
47.His Honour stressed that as immigration detainees are “without freedom and without capacity to provide for their own needs…. Theirs is a special dependence…. The duty imposed on the Commonwealth must accommodate that special dependence and the peculiar vulnerability to which detainees…are exposed.”[41]
[41] Ibid. at [216]-[217]
48.His Honour added that “the duty must also take account of the very distinctive outsourcing arrangements the Commonwealth has been prepared to accept”.[42]
[42] Ibid. at 217; referring to health services, but clearly equally, or indeed more so, applicable to detention services
49.In MZYYR v Secretary, Department of Immigration,[43] Gordon J held that:
The Court has power, in an appropriate case, to restrain the Minister for Immigration and Citizenship’s agents from causing a person’s immigration detention to continue at a place or in a form that constitutes a continuing tort.
[43] [2012] FCA 694; (2012) 129 ALD 331, at [20]
50.In the case at hand, the continuing tort is said to be the breach of the Minister’s non-delegable duty of care, occasioned by the decision, which is allegedly causing ongoing psychological and physical damage to the applicant.
51.Not only have the cases seen the Minister accept that he has a non-delegable duty of care to detainees, but he has “set that concession in stone” in his Procedures Advice Manual 3 (PAM3) under the heading “Duty of care to persons in immigration detention”.[44] The PAM3 states that the Minister’s Department owes “a duty of care to all persons in all types of immigration detention. This means [it is] legally obliged to exercise reasonable care to prevent detainees from suffering reasonably foreseeable harm.”[45] The applicant contends that the harm caused by the decision was reasonably foreseeable. In any event it is said to be a continuing tort which has been drawn to the attention of the respondents.
[44] [P A056] (Lexis Nexis citation)
[45] [P A056.4] 4.What is a duty of care?; See also [P A056.5] 5. Non-delegable duty of care; [P A056.6] 6. Reasonably foreseeable risk of harm; [P A056.7] 7. Reasonable authority
52.The PAM3 also acknowledges that international human rights instruments may inform the standard of care.[46] In particular this would include the International Covenant on Civil and Political Rights (ICCPR). On the facts of this case, relevant Articles which the decision are said to breach are: Article 10 (All persons deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person); Article 11 (Against arbitrary or unlawful interference with family); Article 18 (Freedom to adopt and manifest his religion or belief); Article 23 (The family is entitled to protection by society and the State).
[46] [P A056.2] 2.2 International human rights standards
53.The PAM3 also states that “the standard of care owed to detainees in an IDC [Immigration Detention Centre] is significant because DIBP has assumed responsibility for them and makes most of the decisions about their day-to-day care”.[47]
[47] [P A200.19] 19. Immigration Detention Centres
54.Under “Principles”, the PAM3 states: “persons in immigration detention have the right to maintain their own religious and spiritual affiliations”[48]. It then states: “Specific requirements for religious practices, including food…will be facilitated where possible.”[49]
[48] [P A048-1] 1. Principles
[49] [P A048-3.1] 3.1 Religious requirements
55.Whilst the PAM3 does not have the force of law, and the Minister is not required to follow it, nonetheless failure to do so can give rise to actionable error[50].
[50] See Minister for Immigration v Gray (1994) 50 FCR 189
56.As jurisdictional error is not required to be established in this case, it may be more appropriate to see the PAM3 provisions as an admission against interest, as provided in s.81 of the Evidence Act 1995 (Cth), thus affirming the Minister’s duty of care to the applicant.
57.On the basis of SZSZM, the applicant also asserts causes of action under s.5(1) of the ADJR Act, as he is a person aggrieved by the decision.
58.Under s.5(1)(e) of the ADJR Act, a person who is aggrieved may apply to this Court for an order “that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made”. Section 5(2) then states that a reference in s 5(1)(e) “to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of power; (b) failing to take a relevant consideration into account in the exercise of a power; … and (j) any other exercise of a power in a way that constitutes abuse of the power.”
59.Under s.5(1)(j) of the ADJR Act, a person aggrieved may apply to this Court for an order “that the decision was otherwise contrary to law”.
60.The applicant contends that, in making the decision and acting on it in the manner described above, the respondents took into account irrelevant considerations and failed to take into account relevant considerations, in particular the applicant’s familial and psychological situation.
61.Furthermore, the decision is said to be one which is legally unreasonable in the sense explained in Minister for Immigration v Li[51], and therefore is an “abuse of power” as described by s.5(1)(e) and s.5(2)(j) of the ADJR Act, or is “otherwise contrary to law” as described by s.5(1)(j) of the ADJR Act.
[51] (2013) 249 CLR 332
62.In Li, the majority held that an administrative decision is legally unreasonable if it lacks “an evident and intelligible justification”.[52] That is said to be the situation in the case at hand, where the situation of the applicant has been “completely ignored”.
[52] Ibid. at [76]
The balance of convenience
63.The applicant contends that if his application for an interlocutory injunction is refused, he will have to continue to suffer psychological and physical damage until the hearing of the matter is completed. This could be a substantial period of time, and if one takes into account the possibility of one or more appellate proceedings, a very substantial period of time. This could result in severe damage to the applicant. It could also result in severe damage to his family relations. These are said to be irreparable matters[53] where an award of damages would not constitute adequate relief for the applicant[54].
[53] However, see Gummow WMC, “The Injunction in Aid of Legal Rights – An Australian Perspective” (1993) 56(3) Law and Contemporary Problems 83 at 95, where the author notes that there is no rule that irreparable damage must be established, but rather it is a matter of examining the potential damage to the applicant and taking it into account with other matter
[54] See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [33]
64.The applicant points out that all members of his family are also detainees (though detained in the community), and are thus also owed a non-delegable duty of care by the Minister. He submits that damage to them, or to their relationship with him, is also a matter this Court may consider in the balance of convenience.[55]
[55] See Hartlepool Gas & Water Co v West Hartlepool Harbour & Railway Co (1865) 12 LT 366 (CA) and Attorney-General (UK) v Guardian Newspapers Ltd (No 1) (1987) 1 WLR 1248; [1987] 3 All ER 316 (HL)
65.On the other hand, the risks to the respondents, should the interlocutory injunction be granted, are said to be minimal, if not non-existent. The applicant’s family has never brought any contaminated food to Villawood, nor has it brought food concealing “controlled or prohibited items”. The respondents have not suggested, and could not realistically suggest, that his family ever would do so.
An undertaking as to damages
66.The applicant has offered an undertaking as to damages.
67.In Castlemaine Tooheys Ltd v South Australia,[56] Mason ACJ (as his Honour then was) stated:
The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried and that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
[56] (1986) 161 CLR 148 at 153
Contentions of the Commonwealth respondents concerning injunctive relief
Prima facie case
68.The Commonwealth respondents submit that the applicant has not established a prima facie case.
69.Insofar as the applicant seeks to challenge the decision on the basis of a breach of duty of care, that is not a recognised ground of judicial review. Moreover, as a matter of fact, the proposition that the decision involved a breach of duty of care to the applicant has not been articulated with any precision and does not withstand scrutiny.
70.The challenge to the decision based on relevant or irrelevant considerations and unreasonableness grounds is also unlikely to succeed. It is wholly unclear what relevant considerations are said to have been ignored or what irrelevant considerations are said to have been taken into account. On its face, and having regard to the purpose of the policy stated in background materials, the policy is not manifestly or legally unreasonable.
Balance of convenience
The Commonwealth respondents submit that the balance of convenience and justice favour the refusal of an interlocutory injunction.
The evidence is said not to establish that the refusal of the injunction would have the effect that the applicant would suffer any harm or irreparable harm. In particular:
a)the injunction relates to the outside food policy. However, the applicant’s complaints about the meals provided to him at Villawood (in terms of whether they are prepared to halal standards and whether they are appropriate for the applicant’s medical condition) are not complaints about the policy. If there were a genuine concern about the meals provided to him, allowing the applicant’s family to bring in home cooked food as infrequently as twice a week[57] would not be a solution;
b)the applicant has not put on any medical evidence as to his medical condition and why the diet provided to him at Villawood is inadequate. Only one application for a special food request under the outside food policy has been made, for a birthday cake. According to departmental records, the applicant’s gastroenterological condition is managed through medication and the only dietary indication is a high fibre diet;[58]
c)if the interlocutory injunction were refused, and the outside food policy continued to be applied to the applicant’s visitors, then what he would in fact be denied is captured in the following passage from his affidavit:[59]
Before the policy, my family and I were able to share cultural meals at least twice a week, during the visit time. We could spend the whole day together, because my wife used to bring Egyptian home cooked food such as rise [sic] chicken, meat, pasta, homemade pizza, Arabic pastries … But without the family being able to bring culturally appropriate food, they can only stay a few hours, as there is nothing for them to eat.
d)while the applicant’s interest in eating home cooked meals with his family is real and understandable, it is not an interest that could justify an injunction, particularly having regard to the absence of a prima facie case. Further, there is a certain amount of overstatement in the passage just quoted. It is not the case that there is “nothing to eat”. At the very least, the policy itself permits visitors to bring in food, provided it meets the packaging requirements; and
e)though the applicant claims to have physical and psychological symptoms that have worsened since the policy took effect,[60] no medical evidence has been put on to substantiate this claim.[61]
[57] applicant’s affidavit at [20]
[58] Callaghan affidavit at [16]
[59] at [20]
[60] applicant’s affidavit at [33]
[61] Compare MZYYR
73.The Commonwealth respondents contend that the applicant has not established any need for an injunction to ensure the effective exercise of the jurisdiction invoked.[62] The lack of a prima facie case and the absence of any significant demonstrated harm to the applicant are said to be a sufficient basis to refuse the interlocutory injunction. In terms of detriment that would flow from the grant of an interlocutory injunction, the Commonwealth respondents contend that an injunction applying only in respect of the applicant would lead to unequal treatment of detainees, which could give rise to a perception of unfairness. While there is no evidence of any particular issues with food brought in by the applicant’s visitors in the past, it is apparent that an injunction would also mean that the risks against which the policy seeks to guard would not be guarded against in the case of visitors to the applicant.
[62] see Samsung Electronics at [44]
The position of Serco
74.Serco opposes the application for an interlocutory injunction, insofar as it is directed to Serco. In brief, Serco’s position is:
a)Serco supports and does not add to the submissions by the first to third respondents concerning the Migration Act and the ADJR Act;
b)the decision, being ABF[63] Directive Registration No.016 2017 approved 11 August 2017 (Directive) was made by one or more of the first to third respondents and not by Serco. The applicant asserts no legal or equitable right as against Serco which would give rise to any final injunctive relief. As such there is said to be no serious question to be tried as between the applicant and Serco;
c)Serco has a contractual obligation to enforce, among other things, the Directive. If Serco were to be enjoined from enforcing the Directive, Serco would be placed at risk of being in breach of its contract with the Commonwealth, in circumstances where the applicant’s undertaking as to damages is said to be wholly inadequate. The balance of convenience is said to weigh heavily against any injunction as against Serco; and
d)insofar as the interlocutory injunction is sought against Serco, it seeks that it be dismissed with costs.
[63] Australian Border Force
Resolution – material facts
75.As stated at [3] above, the applicant is detained at Villawood. Since 18 April 2013, the applicant’s wife and children have been housed in premises adjacent to Villawood.[64]
[64] Callaghan affidavit at [15]
76.The Commonwealth owns Villawood, but Serco is contracted to “take full responsibility for the management and control” of Villawood, amongst other detention facilities.[65]
[65] Callaghan affidavit at [11] and Exhibit SC-5, page 35 (Serco contract, clause 3.1(a))
77.One of the services which Serco must perform is to manage visitors to the facilities, including to:[66]
a)develop Conditions of Entry (Visitors) and Visitor Application Forms, to be approved by the Department during the Transition-In Period;
b)create, maintain and prominently display, in agreed translated languages, an Approved Conditions of Entry (Visitors) sheet in the visits registration area;
c)screen Visitors to Facilities on arrival for Excluded, Controlled and Illegal Items in accordance with the Detention Services Manual;[67] and
d)provide tea, coffee, water and biscuits, and arrange for the provision of other food and beverage vending machines in the visitor area.
[66] Exhibit SC-5 to Callaghan affidavit, pages 77-78 (Serco contract, Schedule 2, clause 4.1)
[67] Note that clause 4.1(a)(viii) of the Serco contract envisages the provision of food by visitors: “…unless the Department otherwise approves in advance, ensure that Visitors do not take any property into the Facility with the exception of food brought by Visitors provided that all leftovers are removed from the Visitors area by the Visitor at the end of the visit”
78.At Villawood, the current visiting times are 12:30pm to 8.00pm on weekdays and 10:00am to 8.00pm on weekends.[68] The Serco contract makes provision for visiting hours, including stipulating a minimum of six visiting hours per day.[69]
[68] Callaghan affidavit at [15]
[69] exhibit SC-5 to Callaghan affidavit, page 80 (Serco contract, Schedule 2, clause 4.6(a))
79.Serco has a general obligation to comply with all Department-specific policies.[70]
[70] exhibit SC-5 to Callaghan affidavit, page 37 (Serco contract, clause 3.7)
80.One such departmental policy relates to the food which may be brought in to detention facilities by visitors. That policy is contained in Chapter 8 of the Detention Services Manual,[71] which deals with items not permitted in immigration detention facilities. The purpose and scope of Chapter 8 is described as follows:
The instruction provides [Department] employees, FDSP personnel[72] and Detention Health Service Provider (DHSP) Personnel with guidance on the management of items that may represent a risk to the health, security and good order of immigration detention facilities. Discretionary decisions may be made on an individual basis by the Facility Superintendent and/or Commander Detention Operations in relation to issues that have not been anticipated in this policy.
[71] Extracted as exhibit SC-2 to Callaghan affidavit
[72] “FDSP” means “Facilities and Detainee Service Provider”
81.The current policy for conditions of entry relating to food (the outside food policy) is in the following terms:
For health, safety and security purposes, visitors wishing to bring food items into the visitors’ areas of an IDF[73] may do so if they strictly comply with the following conditions:
· the food is commercially packaged and labelled, factory sealed, has a visible and valid expiry date and its prescribed name is easily identifiable and complies with the Australia New Zealand Food Standards Code;
· food is not contained in any metal or glass packaging;
· the amount of food is proportionate to the needs, duration, and intent of the visit;
· the food is consumed in the visits area only; and
· any leftover food must be disposed of at the end of the visit or removed from the premises by the visitor.
Additionally:
· all food brought in by visitors will be screened;
· no food brought in by visitors is permitted in the accommodation area of the IDF.
…
[73] “IDF” means “Immigration Detention Facility”
Special purpose food
Birthday cakes and special purpose foods are permitted in the visitors’ area provided that an approval has been sought and granted prior to the visit. Special purpose food includes food processed or manufactured for consumption by infants and persons suffering medical conditions (for example, diabetes) that require altered and tailored food…
82.A minute provided to the Minister in July 2017 explained that the purpose of the outside food policy was to “reduce the opportunity of food entering [IDFs] that could present a health and hygiene risk as well as prevent other prohibited items such as weapons, narcotics/illicit substances being brought into IDFs by concealing them in food items”.[74]
[74] Exhibit SC-3 to Callaghan affidavit, page 23
83.The current outside food policy was introduced in mid 2016, but only took effect from August 2017.[75] The decision which the applicant challenges is the decision to introduce the policy or the decision to put it into effect or both. For the purposes of this judgment I considered the relevant decision to be the Directive.
[75] Callaghan affidavit at [5]-[10]
84.It appears from the applicant’s affidavit made on 27 October 2017 that, before the implementation of the current outside food policy, when his family visited him at Villawood, they would bring home cooked meals. Whilst he complains about the food at Villawood, and asserts a relevant health condition, his real grievance is that, since the implementation of the current outside food policy, his family has not been permitted to bring in home cooked meals when they visit. That is in a context where, according to the applicant, the unavailability of home cooked food has effectively limited the time which he can spend with his family during visiting hours.
85.The applicant and his family have only made one special food request on 16 October 2017, for a birthday cake to be brought in, which was granted.[76]
[76] Callaghan affidavit at [17].
86.Villawood is managed and operated by Serco, under a contract with the Commonwealth of Australia, acting through the Minister’s Department.[77]
[77] Dixon affidavit at [1] (the contract)
87.Under the contract Serco is required, among other things, to:
a)comply with any models, plans, procedures, manuals and codes made under the contract;
b)comply with Australian Government policies and policies specific to the Minister’s Department and any changes to those policies;[78] and
c)adhere to directives issued by the Minister’s Department and the ABF.[79]
[78] annexure SC-5, clause 3.1(g), 3.6(b), 3.7 and 3.8 to the Callaghan affidavit
[79] Dixon affidavit at [10]
88.The Directive was issued by the Detentions Operations Branch of the ABF, an arm of the Minister’s Department.[80] In effect, the Directive restricts or prohibits persons from bringing home cooked meals into detention centres (ie for consumption by detainees or visitors, on-site).[81]
[80] Callaghan affidavit at [1]-[11]; annexure SC-4
[81] Callaghan affidavit, annexures SC-3 and SC-4
89.The applicant complains about the validity, legality or legal reasonableness of that Directive. The gravamen of the complaint is that the Directive is invalid or unreasonable because:
a)the sharing of his family’s food with him is an important cultural and familial event, and one that is beneficial to his own psychological and physical health, and that of his family members’;[82] and
b)the underlying reasoning behind the Directive (food safety) is allegedly inconsistently applied and illogical, in circumstances where his family’s food has never made him ill, and the Serco staff at Villawood are allegedly permitted to bring their home cooked meals into Villawood.[83]
[82] applicant’s submissions at [5]
[83] applicant’s submissions at [4]
Serious question to be tried
90.To secure an interlocutory injunction, the applicant must demonstrate the following, in accordance with Castlemaine Tooheys Ltd v South Australia[84] per Mason ACJ, as extracted at [67] above:
a)there is a serious question to be tried, or that the applicant has made out a prima facie case, “in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief”;
b)unless the injunction is granted, the applicant will suffer irreparable injury for which damages will not be an adequate compensation; and
c)the balance of convenience favours the granting of an injunction.
[84] (1986) 161 CLR 148 at 153
91.I accept that the applicant has advanced a serious question to be tried. There is an underlying cause of action in tort as against the Commonwealth respondents and I accept that the applicant has suffered detriment as a consequence of the implementation of the decision. In particular, he has been deprived of a significant connection to his family through the joint consumption of home cooked food during visits. The applicant has been detained in a detention centre for around five years and legitimately contests a decision made by the Minister which would further institutionalise him, by placing a barrier in the way of his maintenance of a connection with ordinary family life.
92.I accept that there is at least the risk, if not the fact, that the continued implementation of the decision in respect of the applicant will expose him to ongoing psychological harm which may be irreparable.
93.As against Serco, there is, however, no serious question to be tried.
94.There is no “free-standing right” to injunctive relief. An injunction must be directed to the protection of an existing legal or equitable right.[85] There is no ground to issue interlocutory injunctive relief where there is no underlying cause of action to be tried, or where such interlocutory relief as sought is not related to the pleaded claims for final relief.[86]
[85] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [15]-[16]
[86] Ibid. (per Gleeson CJ); Sandalciyan v International Development and Construction Pty Limited [2010] FCA 1145 at [71]
95.The gravamen of the applicant’s complaint is the validity or reasonableness of the Directive, over which Serco has no control. Serco is simply required to adhere to and enforce the Directive. It has no discretion not to implement the Directive, or to implement it in a different fashion.[87]
[87] Dixon affidavit at [10]
96.There is no allegation that Serco breached a duty to the applicant or otherwise wrongfully exercised any powers it has in respect of the applicant.[88] For example, there is no allegation that Serco has breached any obligation owed to the applicant in implementing the Directive.
[88] Further Amended Application, Grounds 1 and 2
97.The applicant makes some statements in his evidence regarding whether or not Serco serves halal food.[89] Those allegations are disputed. Serco is contractually obliged to supply culturally appropriate food, and claims it does so, and both prepares and serves food for detainees that meets halal requirements.[90]
[89] affidavit of the applicant dated 27 October 2017 at [6]
[90] Callaghan affidavit at [12] and Dixon affidavit at [5]-[9]
Balance of convenience
98.In my view, the balance of convenience favours the grant of an interlocutory injunction against the Commonwealth respondents. It is a matter for those respondents to consider whether the Directive binding Serco should be modified in the light of the injunction. If it is not modified, the effect of an injunction would be that it could not be applied to the applicant and his family to prevent family members bringing home cooked food to Villawood to be consumed in the visitors area with the applicant. That would provide a significant benefit for the applicant and his family, and only a minor detriment to the Commonwealth respondents. It is Serco which has to administer Villawood and the limitation of the application of the policy to the applicant in consequence of the granting of an interlocutory injunction against the Commonwealth respondents is an incident of its contractual obligations. It is a matter for the Commonwealth respondents to consider whether the policy should be maintained in relation to other detainees and other detention centres.
99.As I have noted above, the granting of an interlocutory injunction will prevent, at least for the time being, the applicant suffering irreparable harm by the removal of what may be his only link to ordinary family life whilst in immigration detention.
100.The balance of convenience separately weighs against granting an injunction against Serco, because of the untenable legal position in which Serco could be placed. Serco is contractually obliged to enforce the Directive.[91] Should an injunction be issued against Serco, it could be placed in the precarious position of being at risk of breaching its contract. Indeed, as I surmised in oral argument, its contract is likely to be frustrated if it is prevented from performing its contractual obligations.
[91] Dixon affidavit at [10]; annexure SC-5 to the Callaghan affidavit, clauses 3.1(g), 3.6(b), 3.7 and 3.8
101.If Serco is placed in that position, the applicant’s undertaking as to damages is likely to be inadequate. The applicant has spent five years in closed detention, not engaged in full-time employment.[92] The applicant’s wife and children presently live in community detention. The applicant has provided no evidence of his, or his family’s, ability to meet the undertaking as to damages should Serco be liable for breach of contract.
[92] applicant’s affidavit at [18]
102.The real value in an undertaking as to damages is relevant when assessing the balance of convenience. Indeed the inability of a party to give a valuable undertaking as to damages is a factor taken into account in assessing the balance of convenience and may even be decisive.[93]
[93] French v Chapple [2000] NSWSC 1240 cited in EPP v Levy [2001] NSWSC 482 [31] and Meagher Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, 2015) at 21-410
103.Further, the balance of convenience weighs against granting the application against Serco because, if granted (and assuming the Directive were not modified in relation to the applicant), it would require Serco to enforce or not enforce the Directive for different detainees at Villawood. For the same reason, Courts have been reluctant to intrude into the administration and management of correctional facilities. This is predominantly because it is inimical to the good functioning and order of the facilities, to adopt specialised and arbitrary arrangements in which some persons receive different (or perceivably preferential) treatment to others.[94] Of course, if the Directive were to be modified by the Commonwealth because of, or in response to, orders of the Court, Serco would be obliged to apply the Directive as modified.
[94] see e.g., Clark v Commissioner for Corrective Services [2016] NSWCA 186 at [31] (per Basten JA) and Palmer v The Chief Executive, Qld Corrective Services & Ors [2010] QCA 316 [38]
Conclusion
104.I conclude that the applicant has established a case for the granting of an interlocutory injunction against the Commonwealth respondents but not Serco. I will make orders accordingly.
105.I will reserve the costs of this application.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 December 2017
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