SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) - [2022] FedCFamC2G 447

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 447

File number(s): SYG 2727 of 2017

Judgment of: JUDGE DRIVER

Date of judgment: 10 June 2022

Catchwords: MIGRATION – injunction to restrain application of a directive restricting outside food being brought into the Villawood Detention Centre by visitors – prohibition on home cooked food – consideration of the jurisdiction of the Court to review a decision concerning the management of detention centres – continuation of an interlocutory injunction – determination of the validity of the decision – claim for damages for a breach of duty of care to detainees arising from the introduction of the outside food restrictions

Legislation:
Administrative Decisions (Judicial Review) Act 1974 (Cth) s 8

Civil Liability Act 2002 (NSW) ss 5B, 31, 32

Commonwealth Places (Application of Laws) Act 1970 (Cth) s 4

Constitution of Australia 1901 (Cth) ss 52, 61

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 14, 18, 134

Migration Act 1958 (Cth) ss 5, 189, 196, 252, 273, 474, 476

Cases cited:
AJL20v Commonwealth [2020] FCA 1305

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568

ARJ17 v Minister for Immigration and Border Protection (2018) 257 FCR 1

Attorney-General v De Keyser's Royal Hotel Ltd [1920] AC 508

Attorney-General (WA) v Marquet (2013) 217 CLR 545

Barker v The Queen (1983) 153 CLR 338

Brown v West (1990) 169 CLR 195

Butchart v Home Office [2006] 1 WLR 1155

Cadia Holdings Pty Ltd v NSW (2010) 242 CLR 195

Clough v Leahy (1904) 2 CLR 139

Coco v The Queen (1994) 179 CLR 427

Davis v Commonwealth (1988) 166 CLR 79

Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309

Edmonds v Commonwealth of Australia (1959) 61 SR (NSW) 527

FJE20 v Minister for Home Affairs [2022] FCAFC 45

Howard v Jarvis (1958) 98 CLR 177

Hurst v Queensland (No 2) [2006] FCAFC 151

Introvigne v Commonwealth (1980) 32 ALR 251

Khatri v Price (1999) 95 FCR 287

Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

Mabo v Queensland (No 2) (1992) 175 CLR 1

Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Minister for Home Affairs v SZRWS [2018] FCAFC 51

Minister for Immigration and Border Protection v ARJ17 [2017] FCAFC 125

New South Wales v Bujdoso (2005) 227 CLR 1

New South Wales v Kable (2013) 252 CLR 118

Pape v Federal Commissioner of Taxation (2009) 238 CLR 1

Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17

Plaintiff S118A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329

Price v NSW [2011] NSWCA 341

Queensland v Congoo (2015) 256 CLR 239

Re Margaret Joyce Staines v Commonwealth of Australia [1990] FCA 512

Ruddock v Vadarlis (2001) 110 FCR 491

S v Secretary, Department of Immigration, Multicultural and Indigenous Affairs (2005) 143 FCR 217

SBEG v Commonwealth (2012) 208 FCR 235

Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83

Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502

South Sydney West Area Health Service v Stamoulis [2009] NSWCA 153

Sue v Hill (1999) 199 CLR 462

Svikart v Stewart (1994) 181 CLR 548

SZSZM v Minister for Immigration and Border Protection [2017] FCCA 819

SZRWS v Minister for Immigration & Ors (2017) 328 FLR 354

SZRWS v Minister for Immigration [2017] FCCA 3101 SZRWS v Minister for Immigration & Ors (No 2) [2018] FCCA 3876

Tanioria v Commonwealth (No 3) (2018) 266 FCR 610

Travel Compensation Fund v Tambree (2005) 224 CLR 627

Thompson v Commonwealth (1969) 70 SR (NSW) 398

Western Australia v Ward (2002) 213 CLR 1

Williams v Commonwealth (2012) 248 CLR 156

Williams v Commonwealth (No 2) (2014) 252 CLR 416

Wyong Shire Council v Shirt (1980) 146 CLR 40

Division: Division 2 General Federal Law

Number of paragraphs: 299

Dates of hearing: 24-28, 31 May, 1, 3 June 2021

Place: Sydney

Counsel for the Applicant: Mr P Webb QC, with Mr M Seymour

Solicitor for the Applicant: Holding Redlich

Counsel for the Respondents: Mr P Herzfeld, with Ms A Hammond

Solicitor for the Respondents: Australian Government Solicitor
ORDERS

SYG 2727 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
SZRWS

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Third Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

10 JUNE 2022

THE COURT ORDERS THAT:
1.The Court declares that the decision to introduce the Outside Food Policy the subject of the Third Further Amended Application is a policy not supported by the Migration Act 1958 (Cth) and is invalid.
2.Subject to any further order of the Court, the interlocutory injunction granted on 22 December 2017 is discharged 21 days from the date of these orders.
3.The Third Further Amended Application is otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND

This case involves a continuation of proceedings commenced in 2017 relating to restrictions imposed by the respondents on bringing food into the Villawood Immigration Detention Centre (VIDC) in which the applicant sought to restrain the respondents from applying the policy to him.
On 22 December 2017, I granted the applicant interlocutory relief.[1]
[1] SZRWS v Minister for Immigration & Ors (2017) 328 FLR 354
On 6 April 2018, the Full Federal Court refused the respondents leave to appeal.[2] On 18 December 2018 I dismissed with costs an Application in a Case for summary judgment for the applicant.[3]The matter thereafter proceeded slowly (due to COVID-19 restrictions and other issues) to a final hearing in May and June 2021.
[2] Minister for Immigration v SZRWS [2018] FCAFC 51
[3] SZRWS v Minister for Immigration & Ors (No 2) [2018] FCCA 3876
In this proceeding, the applicant advances two challenges to the decision to limit the bringing of food into VIDC (and other immigration detention centres) by visitors (the Outside Food Policy).
The first is an administrative law challenge alleging that the Outside Food Policy is invalid. The second is a claim in tort alleging that the Commonwealth has been negligent in applying the Outside Food Policy to the applicant in particular. In particular, the applicant seeks:
(a)a declaration that the Outside Food Policy is not supported by the Migration Act 1958 (Cth) (Migration Act) and is invalid;
(b)a permanent injunction restraining the respondents from implementing the Outside Food Policy in relation to him; and
(c)damages.
The applicant’s administrative law challenge as set out in his Third Further Amended Application (application) was modified somewhat in argument at the first day of the trial.[4] The applicant continues to rely upon the following remaining grounds of alleged invalidity:
(a)that the Outside Food Policy was required to be supported by a regulation under s 273 of the Migration Act but was not;
(b)that the Commonwealth has no common law rights concerning the operation of detention centre premises, relevantly the power to control who or what may enter the premises and on what conditions people or things may do so, either due to provisions of the Migration Act or because no such power is granted under the Constitution and any such power would be inconsistent with s 52 of the Constitution. On 29 March 2021, the applicant filed and served notices pursuant to s 78B of the Judiciary Act 1903 (Cth);[5] and
(c)that the Outside Food Policy was made contrary to law, because the respondents lacked power to make and enforce the Outside Food Policy against the applicant as a general operational policy, and because the Outside Food Policy was made without consideration of any personal circumstances of the applicant. Though expressed broadly, senior counsel for the applicant confirmed at a directions hearing on 22 May 2019 that this ground does not seek to assert any basis of invalidity broader than the more precisely particularised grounds.[6]
[4] See transcript (T) 52.43-54.11
[5] Court Book (CB), Tab 9; no Attorney-General intervened
[6] CB Tab 369, page 122, lines 17-38
In relation to his negligence claim, during the trial, on 27 May 2021, I granted the applicant leave to amend his application such that references to the applicant’s “Crohn’s disease” were amended to refer to the applicant’s “inflammatory bowel disease[7], being ulcerative colitis or Crohn’s disease”.[8] The respondents opposed that amendment application.[9] As amended, the applicant alleges that:
(a)the respondents[10] / the Commonwealth (see Ground 1 of the application) have breached, and are continuing to breach, the duty of care they owe to him;
(b)the application of the Outside Food Policy to him has involved / is likely to involve harm to him, particularised as relating to his family and personal relationships, his cultural needs, his religious practice, and his physical and mental health; and
(c)the application of the Outside Food Policy to him has caused him to suffer psychiatric and physical damage arising from exacerbation of his IBD, being ulcerative colitis or Crohn’s disease, and a psychiatric condition (broadly particularised as stress, anxiety and depression).
[7] IBD
[8] T402.10-404.13
[9] T404.15
[10] see [6] of Application
By their response filed on 12 July 2019, the respondents contend that the application should be dismissed with costs.
The applicant and the Outside Food Policy
The applicant has deposed to arriving at VIDC on 17 April 2013.[11] He had, for many years during his detention, access to food brought to him by his family, including his four daughters and two sons.[12] This access to food was an important element of coping with his diagnosed Crohn’s disease[13] particularly since the food provided at VIDC was not of good quality,[14] undercooked,[15] or non-Halal,[16] which were not problems with the food prepared by his family.[17] The applicant deposed that there are on-going problems with him having sources of dependable, healthy and safe food during his detention.[18]
[11] Affidavit of the applicant 27 October 2017 (Second Affidavit) at [2]
[12] Second Affidavit at [19]-[20]
[13] Second Affidavit at [27]
[14] Second Affidavit at [4]; see also Affidavit of the applicant 22 August 2019 (Third Affidavit) at [5]-[9]
[15] Second Affidavit at [5]
[16] Second Affidavit at [6]; see also Third Affidavit at [18]-[20]
[17] Second Affidavit at [8]
[18] See Affidavit of the applicant 27 December 2020 (Fifth Affidavit) at [9], [14]-[15], [26], [31]-[36]
The Outside Food Policy[19] is framed in permissive terms but a fair reading of those terms reveal the restrictions are substantial. Food may only be brought into a detention centre if:
(a)commercially packaged and labelled, factory sealed, containing a visible and valid expiration date and its prescribed name is easily identifiable and complies with the Australia New Zealand Food Standards Code; and
(b)is not contained in any metal or glass packaging.
[19] Affidavit of Sabina Callaghan made on 28 November 2017 at pages 30-31
The Outside Food Policy also introduces discretions and judgements into decision making concerning such items in requiring that:
(a)the amount of food “is proportionate to the needs, duration and intent of the visit”;
(b)the food is consumed “in” the visits area only; and
(c)“leftover” food must be disposed of or removed from the premises by the visitor.
Though the Outside Food Policy speaks of “special purpose foods” (being for “people suffering medical conditions”), such foods must still be “processed or manufactured”. The expressed purposes of the Outside Food Policy are to provide national consistency in operation of detention centres and “uphold safety, security and good order” in immigration detention facilities.
Jurisdiction
The respondents at least formally submit that the Court lacks jurisdiction to “hear” the application.[20] This was dealt with at the interlocutory stage of these proceedings.[21]
[20] Response to Third Further Amended Originating Application (Response) at D1
[21] SZRWS v Minister for Immigration (2017) 328 FLR 354 at [35]-[37]; see also Minister for Home Affairs v SZRWS [2018] FCAFC 51
Put most simply, the claims, both for a permanent injunction to restrain an apprehended breach of the respondents’ duty of care or for judicial review of the Outside Food Policy, are actionable against the Commonwealth in this Court essentially under s 476(1) of the Migration Act. Damages are also available under s 139 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) (formerly s 14 of the Federal Circuit Court of Australia Act 1999 (Cth).
As the respondents’ pleadings raise a substantive challenge to jurisdiction, the essential question is whether the conduct the subject of the applicant’s complaints (that is, to substantially limit the applicant’s access to food) is a “migration decision” for the purposes of the Migration Act.
A “migration decision” is defined (under s 5 of the Migration Act) as a:
·privative clause decision;
·purported privative clause decision;
·non-privative clause decision; or
·an Administrative Appeals Tribunal Act 1975 (Cth) migration decision.
In respect of the claim based in tort, the conduct of the respondents is (on the pleadings[22]) contended by the respondents to be lawful because of powers said to be exercised under the following provisions:
[22] Response at C2
(a)section 273 of the Migration Act:
(i)if so, ss 474(4) and (6) of the Migration Act renders a decision made under this provision a non-privative clause decision. Accordingly, there is jurisdiction in this Court to hear and determine the claim of the applicant that the conduct of the respondents in enforcing the Outside Food Policy against him under this provision is in violation of a duty of care owed to him;
(b)section 189 of the Migration Act:
(i)if so, a decision made under this provision is a privative clause decision and there is jurisdiction in this Court. The claim for relief is not affected by the limitations explained in s 476 as the claim is one based in tort;[23]
(c)due to alleged “common law powers” of the Commonwealth as an owner of property:
(i)if so, s 134 of the FCFC Act provides jurisdiction in the sense of an authority to determine if there are such powers and if those powers justify the past or apprehended future tortious conduct.
[23] See Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17 at [412]-[459] per Bromberg J
In respect of the claim for judicial review of the Outside Food Policy, the assertion that there is power to create the policy has been similarly based upon the same provisions. Thus:
(a)if the alleged basis for the Outside Food Policy is under s 273 of the Migration Act then ss 474(4) and (6) would render the decision to implement it under s 273 a non-privative clause decision, though this would assume there was no failure of jurisdiction involved in that decision;
(b)as, in this part of the applicant’s claim, it is alleged that there was no power available under this provision to support the Outside Food Policy, then such a decision would be a purported non-privative clause decision, and this would not be a “migration decision”, and this part of the claim would fall outside s 476(1) of the Migration Act.[24] However, there remains jurisdiction under s 8 of the Administrative Decisions (Judicial Review) Act 1974 (Cth) (ADJR Act). This is due to the failure to carve out “purported non-privative clause decisions” in Schedule 1 to that Act. This point was conceded in argument by the Commonwealth in ARJ17 v Minister for Immigration and Border Protection[25] (ARJ17) and the ground alleging error in use of the ADJR Act in these proceedings was not pressed in the appeal in Minister for Home Affairs v SZRWS;[26]
(c)if the alleged basis for the Outside Food Policy is under s 189 of the Migration Act, then the decision is a privative clause decision and hence a migration decision for the purposes of this Court having jurisdiction under s 476(1) of the Migration Act to determine if that power was available to support its creation;
(d)if the alleged basis for the Outside Food Policy is under “common law powers” as an owner of property, then s 134 of the FCFC Act provides jurisdiction in the sense of authority to decide if the Commonwealth has such powers and/or if such powers are sufficient to create policy.
[24] Compare Minister for Immigration and Border Protection v ARJ17 [2017] FCAFC 125
[25] (2018) 257 FCR 1
[26] [2018] FCAFC 51 (see at [4])
Judicial review
The substance of the challenge to the Outside Food Policy is the lack of any statutory source of power to create it. The determination of the claim will depend upon the respondents’ assertion of power(s), relied upon as supporting the Outside Food Policy, and the proper application of the reasons of the Full Federal Court in ARJ17.
ARJ17 concerned the introduction of a policy decision communicated across the immigration detention network that mobile phones would be confiscated. That policy was said to be supported by ss 273 and 189 of the Migration Act and, the Commonwealth also asserted, was in any event a non-statutory expression of opinion that was for officers of the detention network to implement of their own initiative.
Rares J rejected all of the Commonwealth’s contentions, finding:
(a)the power conferred by s 273(1) of the Migration Act “enables the Minister on behalf of the Commonwealth to cause detention centres to be established and maintained…[as] actions of acquiring, leasing or occupying land and buildings, undertaking any necessary building work…and upkeep…of the physical land and buildings…”;[27]
(b)nothing in the Migration Act enabled the creation of a blanket policy applicable to all items of property belonging to all detainees;[28] and
(c)the policy in issue was invalid as unauthorised by the Migration Act.
[27] At [64]
[28] At [95]
Flick J also rejected at [108] the Commonwealth’s contentions, finding that even if a power to maintain a facility included the ability to take steps to ensure it remained a facility at which detention can be “effectively achieved”, that power would not allow the search and removal of property from detainees nor authorise a Ministerial direction or policy directed to that end.
Rangiah J agreed with Rares J and with Flick J.[29]
[29] See [112]
In the applicant’s submission, it is difficult to distinguish any material difference between the policy considered in ARJ17 and the Outside Food Policy. The principle of legalism, invoked to support the outcome in ARJ17,[30] is said to similarly apply in the present case. The Outside Food Policy is said to interfere with recognised common law rights of the applicant, and all detainees, in respect of:
(a)personal liberty;[31]
(b)freedom of association and community;[32] and
(c)interference with commercial activity.[33]
[30] See eg at [84] and [111]
[31] Williams v The Queen (1986) 161 CLR 278
[32] Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364; Rani v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379
[33] Mudginberri Station Pty Ltd v Langhorne (1985) 7 FCR 482; Hayes v Cable (1961) 78 WN(NSW) 735

As I found in granting the interlocutory injunction, the Outside Food Policy also substantially interferes with the applicant’s enjoyment of his family life and aspects of his religious worship in a manner that is said to activate the principle of legalism and require a direct statutory source that authorises its creation in express terms.[34] It is submitted by the applicant that there is no clear and express statutory source of power for the Outside Food Policy.
[34] Coco v The Queen (1994) 79 CLR 427 at 437; see also Al-Kateb v Godwin (2004) 219 CLR 562 at 577 [20] per Gleeson CJ
The applicant contends that, on the reasons of Rares J in ARJ17, neither s 273 nor s 198 would support the creation or enforcement of the Outside Food Policy.[35] As his Honour held, the power under s 273 of the Migration Act is “addressed to the actions of acquiring, leasing or occupying land and buildings”. It is not, of itself, concerned with the conditions of detention of the persons inside those centres. That power is more explicitly conferred under ss 189 and 196.[36] However, that power to detain is expressed to be limited to actions that are “reasonably necessary”.[37]
[35] At [64]
[36] At [70]
[37] At [70]
Accordingly, if the Court adopts a similar analysis, the question is then whether the Outside Food Policy’s broad requirement to deprive all detainees of their access to any food other than that strictly in commercial pre-packaging (and even then at the discretion of an individual officer as to the amount being “proportionate” to “need”) is something that is “reasonably necessary” to do to keep persons like the applicant detained at VIDC. The applicant contends that this cannot be so, since the applicant is still detained, whether or not food brought to him by his family is commercially pre-packaged. It is difficult to see how the type of packaging relates to any condition of the applicant’s detention.[38]
[38] Compare Rares J in ARJ17 at [72]
On the additional reasons of Rangiah J, this latter point has further support from his Honour’s observations that any power that might be exercisable under ss 189 or 196 that required a particular detainee to have food sources limited could not extend to supply power to a blanket policy controlling all of any detainee’s food sources.[39]
[39] see ARJ17 at [127]; see also [124]
Similarly, Flick J found at [108] that though power under s 273 might extend to facilitate action that causes a facility to remain one at which detention can be effectively achieved, again, the detention of the applicant is as effective whether or not food is brought to him that is commercially pre-packaged or prepared by his family. As Flick J found, the power under s 273 could not allow removal of “articles” from detainees.[40] Accordingly, such power should not also extend to restrict access by the applicant to “articles” of food brought to him by his family. In any event, as Flick J held, s 273 could not authorise the maintenance of a detention centre by “Ministerial direction or policy”.[41]
[40] See ARJ17 at [108]
[41] See at [108]
The applicant contends that the present case has no material difference from that in ARJ17 and the Outside Food Policy should be found to be unsupported by either of ss 273 or 196 of the Migration Act.
A “common law power”
Further to the above, the applicant contends that, as the common law would respect and protect his personal autonomy over his diet, as concerning his personal liberty and freedoms associated with a connection to family and exercise of his religion, the principle of legalism would require an explicit statutory power to permit governmental action that inhibits or interferes with those freedoms. Accordingly, the Court is invited to find that the Commonwealth’s reliance on this alleged source of power in the “common law” fails.
The applicant contends, in any event, that this alleged source of power is fraught with difficulty for the Commonwealth since this “source” would be incompatible with the Constitution. This is both because no grant or recognition of “common law rights” as an occupier of property is recognised in any express term of the Constitution, particularly in s 61. Further, no inference of such power could be recognised since s 52 of the Constitution expressly states that Commonwealth activity over Commonwealth places occurs when the Parliament makes laws and this power is described to be “exclusive”. Neither s 61 nor s 52 would permit of another source of power for the Executive to create policies or directions sourced in the “common law”.
The applicant invites the Court to find that the Outside Food Policy is unsupported by any power under the Migration Act, or at common law, and that the conduct of the respondents in purporting to issue it was unlawful.
The claim in tort
If the Outside Food Policy is unable to be enforced against the applicant henceforth, this may limit the need for the applicant to seek relief quia timet in the tortious claim. The applicant submits, however, that this does not prevent the Court from determining the alternative claim in tort since damages are an appropriate remedy.
Principles
Harsh conditions of administrative detention can violate the civil rights of a detainee.[42] The third respondent, the Secretary of the Department of Home Affairs, has an established duty to take care for the safety of detainees.[43] Similarly, the Commonwealth generally has an established duty to take reasonable care to avoid harm to a detainee.[44] The duty has been described as one that is non-delegable, particularly when the concern is for a person suffering from mental illness.[45]
[42] Behrooz v Secretary, Department of Immigration & Multicultural and Indigenous Affairs (2004) 208 ALR 271 at [21] per Gleeson CJ
[43] Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 at [127] per Lander J
[44] SBEG v Commonwealth (2012) 208 FCR 235 at [19] per Keane CJ, Lander and Siopis JJ
[45] S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217 at [199], [207]-[211], [213] per Finn J; AS v Minister for Immigration and Border Protection [2014] VSC 593; MZYYR v Secretary, Department of Immigration and Citizenship [2012] FCA 694 at [20], [55] per Gordon J
The applicant contends that the respondents ought to be held to be under a duty to take care concerning his access to food sources to ensure that these are the most appropriate means to respond to his particular physical and mental health requirements.
Breach
It is submitted by the applicant that compliance with this duty, in a manner other than by the strict application of the Outside Food Policy, would most obviously be by enabling the applicant’s family to continue to provide food for him which accommodates his special needs in terms of the physical effects of his digestive ailment (variously described), as well as providing spiritual and emotional comfort to address his psychiatric condition. It is said to be a dramatic falling short of the requirements of that duty to prevent the applicant any access to such fresh food, prepared for him by his family, merely because it is seen as desirable to apply the broad terms of the Outside Food Policy across the immigration detention network in maximal terms.
The applicant contends that such administration of the Outside Food Policy against the applicant would inevitably expose him to detrimental outcomes in terms of declines in his physical and mental health. There is said to be no contradicting rationale for allowing the implementation of the Outside Food Policy against the applicant in terms of the risks that creates for his physical and mental health.
Further, a decline in the physical and mental health of the applicant is said to be a grossly disproportionate outcome to the objectives of the Outside Food Policy, being the “good order” of the immigration detention network. To the extent that the Commonwealth seeks to explain the objectives of the Outside Food Policy in terms other than those stated in its express terms, the objective is to control outside sources of food in order to prevent the supply of contraband items.[46] The applicant submits that he and the members of his family have never presented any kind of security risk for such contraband (or indeed at all). Accordingly, they do not represent the kind of risk the Outside Food Policy sets out to address in terms of this objective.
[46] Affidavit of Sabina Callaghan made on 14 February 2020 (Background Affidavit) at [17], [19], [32]
Remedy
The applicant submits that the respondents should have been able to operate under the general terms of the Outside Food Policy within the detention centre network, but accommodating the applicant’s particular circumstances, in complying with this Court’s interlocutory orders, over several years now. This demonstrates that a regime can be in place for the applicant to receive food conducive to his health and well-being without major disruption to the good order of VIDC. This should demonstrate that the respondents have no proper basis to request that the Court withhold similar relief on a permanent basis.
Damages are said to be an appropriate remedy to compensate the applicant for the injuries to his health and well-being from the application of the Outside Food Policy to him.
THE EVIDENCE AND SUBMISSIONS
The applicant relies upon six affidavits made by him on 29 August 2017, 27 October 2017, 22 August 2019, 31 July 2020, 27 December 2020 and 4 April 2021. He was cross-examined on that evidence. Issues of credibility were raised in submissions as a result of that cross-examination. The applicant also relied on an affidavit by his daughter made on 22 August 2019, which was not objected to. She was not required for cross-examination.
The applicant further relies upon the affidavit of another detainee (MA)[47] who made an affidavit on 9 April 2021. The respondents contest the relevance of MA’s evidence.
[47] The name has been anonymised
The respondents rely upon two affidavits of Sabina Callaghan (now the Superintendent of Customs Compliance Operations for the Australian Border Force) made on 28 November 2017 and 14 February 2020. Ms Callaghan was cross-examined on her evidence.
The respondents also read three affidavits of Donald James Taylor (General Manager of Serco at VIDC) which were made on 26 February 2020, 4 January 2021 and 1 March 2021. Mr Taylor was cross-examined on his evidence.
The respondents also rely upon the affidavit of Allen Buchan, a Serco employee at VIDC, made on 26 February 2021. Affidavit evidence from eight other detention services officers was proposed to be read on behalf of the respondents and they were required for cross-examination but ultimately only the affidavit of Mr Buchan was tested under cross-examination.
The respondents read affidavits from the following additional lay witnesses who were not required for cross-examination:
(a)Brendan Edward Slape made on 14 February 2020;
(b)Leanne Alice Jane Gabell made on 11 February 2020;[48]
(c)Edgardo Alarma Barcelon made on 11 February 2020; and
(d)affidavits by seven other detention service officers who depose as to their monitoring of food apparently eaten by the applicant.
Expert evidence
[48] Subject to a suppression order
Gastroenterologists - Dr Watson Ng and Dr Siddarth Sethi
The Court heard evidence from two expert gastroenterologists. Dr Watson Ng has been the applicant’s treating gastroenterologist since 2015. Instructed by the applicant, he prepared a report dated 20 September 2019[49] and a supplementary report dated 29 July 2020.[50]
[49] CB Tab 235
[50] CB Tab 270
Dr Siddarth Sethi was called by the respondents. He conducted an examination of the applicant on 11 December 2019,[51] and subsequently prepared a report.[52]
[51] CB Tab 256, page 543
[52] CB Tab 256
Dr Sethi and Dr Ng participated in a conclave, and produced a joint report dated 16 March 2021.[53]
[53] CB Tab 278
There was substantial agreement between the expert gastroenterologists. The respondents submit that both should be accepted as appropriately qualified and truthful witnesses.
Associate Professor Salim Farrar
The applicant relies on a report of Associate Professor Salim Farrar dated 22 August 2018.[54] Associate Professor Farrar is employed by the University of Sydney, and is a specialist in Islamic criminal law, evidence and Islamic banking.[55] At the time of his evidence, he had not written or presented on Halal food or Islamic food consumption.[56]
[54] CB Tab 213
[55] CB Tab 213, page 4
[56] T339.7-8
The respondents submit that Associate Professor Farrar’s evidence should be approached with caution. The respondents submit that in many respects, Associate Professor Farrar’s opinions represent an extreme and unrepresentative interpretation of Islamic law in relation to the requirements for food to be Halal. For example, Associate Professor Farrar:
(a)disagrees with fatwas from the Dar Al-Ifta in Egypt (such as Exhibit R8), a leading centre for Islam and Islamic legal research worldwide,[57] concerning the general permissibility of Muslims eating meat slaughtered in predominantly Christian countries, even where the meat is not slaughtered in accordance with the Islamic method.[58] Though during his oral evidence, Associate Professor Farrar sought to present this as merely one interpretation of the relevant fatwas,[59] that explanation is said to be inconsistent with [30] of his report;
(b)opined that Halal certification from a reputable Islamic organisation was not, “in itself”, sufficient to satisfy a Muslim that meat has been Islamically slaughtered.[60] Instead, unless a Muslim has “certainty” and has “got to that level”, it is not acceptable to consume the meat.[61] His report stated that “If there is any doubt in the mind of the person who wanted to eat the meat, he must not consume it”.[62] Under cross-examination, the only example of a doubt that could be dismissed proffered by Associate Professor Farrar was a doubt based on a dream;[63]
(c)was extremely reluctant to accept the possibility of human error in the process of Islamically slaughtering meat, suggesting on a number of occasions that such a thing would not occur.[64] Associate Professor Farrar was unwilling to accept the proposition that an unreasonable or fanciful doubt would not result in meat becoming Haram for an individual Muslim;[65]
(d)opined that a Muslim may only eat meat prepared by a non-Muslim if he has been “informed by Muslims that this person who is supplying him with the food who may be a non-Muslim is trustworthy in this respect”.[66] When it was suggested to him that the majority of Muslims would not take this approach, he asserted a lack of survey evidence to that effect;[67] and
(e)opined that a Muslim may not sit or eat with people eating Haram food.[68] When it was suggested to him that the majority of Australian Muslims would not take this approach, he asserted a lack of survey evidence to that effect.[69] Even the applicant does not follow this approach.[70]
[57] T339.10-26
[58] CB Tab 213 at [30], page 16
[59] T345.39-346.28
[60] T349.21-24
[61] T356.10-13
[62] CB Tab 213 at [28], page 15
[63] T355.9-11
[64] T352.16-22, 33-34
[65] T355.17-24
[66] T358.5-7
[67] T358.19-21
[68] T359.9-46
[69] T359.38-40
[70] T99.26-42
The respondents submit that even so, as explained further below, even on Associate Professor Farrar’s approach, the applicant would be precluded by his religion only from eating meat provided by Serco. He would not be precluded from eating any other food, such as fish, fruit, vegetables, grains, legumes, milk, eggs and tofu.[71]
[71] T361.8–31
Dr Ryan Williams
The applicant sought to rely on a report of Dr Ryan J Williams dated 15 August 2019.[72]
[72] CB Tab 224
Following objection from the respondents, Dr Williams’ report was admitted on a limited basis. I noted that I took “judicial notice of the fact that the sharing of meals is an integral part of family life and … that the food policy was likely to pose an impediment to the applicant in the performance or the enjoyment of that family life”.[73] Dr Williams’ report was admitted only to “inform or test those propositions”.
[73] T62.40-46
In light of that limitation, Dr Williams was not required for cross-examination. The fact that the Outside Food Policy poses some “impediment to the applicant in the performance or the enjoyment of [his] family life” is uncontroversial. The respondents observe that Dr Williams provides generalised, theoretical statements to that effect, abstracted from any discussion with or examination of the applicant. He opines, for example, that home-prepared foods “serve to provide a ‘homely’ space and mitigate ‘the symptoms of institutionalisation’”.[74] The respondents conceded that, at a general level, that may be accepted.
[74] CB Tab 224 at [28], page 408
Dr Williams also summarises the evidence of the applicant on this topic. That evidence was dealt with during cross-examination of the applicant, as discussed further below.
The respondents submit that the Court should prefer its own assessment of the applicant’s evidence, having seen and heard the applicant questioned on this topic. In their submission, the Court should also prefer the evidence of medical professionals who have examined the applicant.
Psychiatrists – Dr Christopher Ryan and Professor David Greenberg
The Court heard evidence from two psychiatrists. The applicant sought to rely on the evidence of Dr Christopher Ryan, a “consultant liaison psychiatrist”. Dr Ryan prepared an initial report dated 30 September 2019[75] and a supplementary report dated 27 July 2020.[76]
[75] CB Tab 292
[76] CB Tab 330
Professor David Greenberg, a forensic psychiatrist, was called by the respondents. Professor Greenberg conducted a psychiatric assessment of the applicant over the course of more than five hours, split across 30 December 2019 and 6 January 2020, and subsequently prepared a report dated 11 February 2020,[77] and a supplementary report dated 21 February 2020.[78]
[77] CB Tab 307, page 941
[78] CB Tab 326
Professor Greenberg and Dr Ryan participated in a conclave process, and produced a joint report dated 17 May 2021.[79] That joint report includes individually authored contributions from both Professor Greenberg and Dr Ryan.
[79] CB Tab 345
There was a further conclave between Dr Ng, Dr Sethi and Dr Ryan, focused on the intersection between the applicant’s gastroenterological and psychiatric conditions. That conclave resulted in a separate joint report dated 14 May 2021.[80]
[80] CB Tab 290
The respondents submit that the Court should not place any reliance on the evidence of Dr Ryan. They submit that his purported diagnoses of the applicant should be dismissed and given no weight. That is for the following reasons:
(a)Dr Ryan’s fee arrangement with the applicant is considered by his own professional body, the Royal Australian and New Zealand College of Psychiatrists, to be unethical.[81] He has a financial interest in the applicant’s success in this matter, and accepted that there is a risk his opinions would be influenced by that interest.[82] That is in circumstances where, generally, psychiatric conditions often have no objective markers and rely more on the subjective opinions of a psychiatrist;[83]
(b)prior to completing his first report, Dr Ryan did not conduct a psychiatric assessment of the applicant, or indeed meet him at all. Dr Ryan did not draw that circumstance to the attention of the Court in his first report, and Professor Greenberg remained in doubt as to whether the applicant had been examined even after requesting Dr Ryan’s notes.[84] Dr Ryan accepted that a documentary review was an “atypical” approach where conducting an interview is neither impractical nor impossible.[85] It was not impractical or impossible for Dr Ryan to interview the applicant. When questioned, Dr Ryan resorted to a statement that “It would take going out to Villawood. It would be like at least half a day”;[86]
(c)Dr Ryan accepted that, for each of the three diagnoses of the applicant he made, [33] of the applicant’s 27 October 2017 affidavit was “critical”[87] and that he assumed the truth of the applicant’s statements in that affidavit.[88] That paragraph was copied directly by the applicant from a report in 2013, rather than representing his own account of his response to the Outside Food Policy implemented in 2017. Dr Ryan disclaimed expertise to opine on whether such copying cast doubt on whether the applicant had those symptoms in October 2017.[89] Professor Greenberg’s opinion was that the copying raises “the possibility of intentional malingering”;[90]
(d)when he interviewed the applicant in July 2020, Dr Ryan is said to have approached the interview with a view to confirming his first report.[91] That is substantiated by his contemporaneous handwritten notes,[92] which were made on paper that pre-printed the DSM-V diagnostic criteria for the diagnoses he had already made but no others;
(e)Dr Ryan’s interview with the applicant took place after the applicant had conducted a detailed review of Professor Greenberg’s report, and was thereby aware of the relevant DSM-V criteria for a range of conditions including PTSD;[93]
(f)under cross-examination, Dr Ryan suggested that he had wondered whether the applicant’s description of “severe pain” might be exaggerated, but did not draw attention to that concern in his report;[94]
(g)Dr Ryan repeatedly disagreed with the evidence of the expert gastroenterologists in relation to the applicant’s IBD,[95] despite never having published on the topic;[96]
(h)in a number of cases, the academic papers relied on by Dr Ryan had conclusions which were much less definitive than presented by Dr Ryan[97] or which were based on data inapplicable to the applicant;[98] and
(i)contrary to the conclusions reached in his first report, Dr Ryan accepted that there was no basis to conclude from the applicant’s 27 October 2017 affidavit that the applicant’s symptoms met the criteria for PTSD.[99] While he did not accept the same as to his diagnosis of major depressive disorder, consistently with Professor Greenberg’s opinion the affidavit provided no basis for that diagnosis.[100]
[81] CB Tab N6, pages 2, 7
[82] T473.30-38
[83] T474.1-28
[84] T482.14-31
[85] T476.20-23
[86] T478.25-26
[87] T484.20-23
[88] T489.34-40
[89] T487.42-46
[90] T488.25-33
[91] T492.37-42
[92] CB Tab 356
[93] see, eg T512.7-12
[94] T505.30-40
[95] See, eg T315.41-316.15; T317.34-41
[96] T316.17-20
[97] eg T311.33-313.41
[98] eg T321.25-322.6
[99] T540.14-21
[100] T534.5–535.4

I also received the following exhibits:
·A1 – Work group meeting 3; meeting minutes, 29/02/2016;
·A2 – marked map of aerial view of VIDC;
·R1 – extracts from the Australia New Zealand Food Standards Code;
·R2 – proposed Third Further Amended Application as at 22/05/2019;
·R3 – letter from applicant’s solicitors to respondents’ solicitors, 03/10/2019;
·R4 – letter from respondents’ solicitors to applicant’s solicitors, 20/05/2021;
·R5 – Halal certificates x3;
·R6 – letter from Serco to the applicant, 05/02/2018;
·R7 – ASIO Adverse Security Assessment and Truncated Statement of Grounds, 27/10/2020;
·R8 – extract from Dar Al-Ifta website, “Eating meat slaughtered by Christians and Jews”;
·R9 – extract from Parliamentary Library website, “Halal certification in Australia: a quick guide”;
·R10 – extract from “Encyclopaedia of Islam, Second Edition”;
·R11 – Minutes of Hotham DCC Meeting, 08/10/2020;
·R12 – Minutes of Hotham DCC Meeting, 05/11/2020;
·R13 – “Malingering and Mental Health Disability Evaluations”, paper by Charles L Scott and Barbara McDermott.
CONSIDERATION
Applicant’s contentions
The administrative law claim
The applicant places considerable weight upon the decision of the Federal Court in ARJ17.
First, it is important to note that the case concerned two similar but different proceedings:
(a)the first, ARJ17, was a representative proceeding taken in the original jurisdiction of the Federal Court but referred to a Full Court to determine, as a separate question, whether the “blanket policy” was invalid;[101] and
(b)the second, SZSZM, was an appeal from a decision of Judge Smith who had dismissed a claim that the mobile phone policy was invalid.[102]
[101] ARJ17 at [3] per Rares J
[102] ARJ17 at [2]; and see SZSZM v Minister for Immigration and Border Protection [2017] FCCA 819
The Full Federal Court was therefore exercising both original and appellate jurisdiction when it determined the common issue of whether the policy in question was invalid.[103]
[103] ARJ17 at [4]
In terms of understanding the “policy” in question, Rares J explained at [53]-[55]:
On 27 May 2016, the Secretary made a decision, that later came to be set out in Ch 8 of the DSM, that mobile phones and SIM cards are classified as “Controlled items” that detainees are not permitted to possess in immigration detention facilities. The references in Ch 8 to the search and seizure powers of authorised officers under the Act imply that if such items are found in the possession of detainees, they will be confiscated. That is reinforced from the terms of the contract between Serco (the contractor running the detention centres) and the Commonwealth under which Serco’s obligations include “removing and holding in trust all Excluded and Controlled Items detected or received”. Under Ch 8 and under the contract such items are to be returned only when the person who owns the item leaves the facility.
The document announcing the policy was issued on 21 November 2016. It indicated that the Secretary’s policy of confiscating mobile phones and SIM cards was to be implemented from 20 February 2017. That seems to be the only direct relevance of that document.
The “blanket policy” should, accordingly, be understood as a decision made by the Secretary on 27 May 2016 that detainees are not permitted to possess mobile phones and SIM cards within immigration detention facilities and that any such items found in their possession will be confiscated until they leave the facility.
As the reasons of Rares J set out, the policy in question manifested in a change to the Detention Services Manual, specifically Chapter 8.[104] In the extracts quoted from that chapter, the explanation for the policy arose from a perception of a duty of care to detainees and a perceived threat to safety and good order within detention centres from the presence of mobile phones. Mobile phones were thus accorded the status of “controlled items” that were “not permitted” in a detention facility “except under conditions specified by the Department”. The substantial similarity to the Outside Food Policy is said to be self-evident. Ms Callaghan confirmed that each policy was developed at the same time.[105]
[104] ARJ17 at [10]
[105] T27.5.21-414.45-50
Evidence was given in those proceedings that up to the creation of the policy, some mobile phones had been allowed in facilities provided those phones did not have internet access or photographic capabilities.[106] However, this position was changed in November 2016 in an announcement that all phones would be banned from entry and confiscated from within facilities from February 2017.[107]
[106] ARJ17 at [12]
[107] ARJ17 at [12]
Rares J analysed the reasons of Judge Smith who had rejected the claim before him on two bases:
(a)first, that the policy could be based on general search powers under s 252 of the Migration Act;[108] and
(b)secondly, that the policy could be based upon the general power to “maintain” a detention centre under s 273(1) after rejecting the appellant’s claim that there was a limit on this power impliedly arising from s 273(2).[109]
[108] ARJ17 at [17]
[109] ARJ17 at [18]-[19]
A third, related, issue was that Judge Smith had found that the policy could lawfully be directed to authorised officers as a matter of general direction.[110] Other claims of the appellant regarding procedural fairness and/or consideration of international obligations as mandatory considerations, were also rejected by Judge Smith[111] but did not form part of the appeal.
[110] ARJ17 at [22]
[111] ARJ17 at [20]-[21]
In the context of the appeal, and in addressing the separate question arising in the original jurisdiction, the respondents relied upon two sources of statutory power to ground the mobile phones policy: ss 252 and 273(1).[112] As noted by Rares J, further provisions were “relevant”: ss 189 and 196.[113]
[112] ARJ17 at [23] and [27]
[113] ARJ17 at [28]
What follows from the above is that the resolution of the contention as to one source of power in s 273(1), and any limit on that power arising from s 273(2), was a core component of the Full Federal Court’s exercise of its appellate jurisdiction. Given that Judge Smith had found a source of power for the policy in s 273(1), it was only open to the Full Federal Court to overturn that decision if it disagreed with that conclusion. Given that the orders of the Full Federal Court did involve overturning Judge Smith’s original decision,[114] the applicant submits that that must have been the conclusion of the Full Federal Court.
[114] See Rares J at [99] and Rangiah J at [134]
It is important to have regard to the reasons of the members of the Full Federal Court with this particular procedural background in mind.
Rares J was most explicit in his finding that any statutory power under s 273(1) was limited. At [66] his Honour stated:
The general power to make regulations, not inconsistent with the Act, is in s 504(1). It allows regulations to be made that “are necessary or convenient to be prescribed for carrying out or giving effect to this Act”. That power could be used to make regulations relating to the establishment and maintenance of detention centres under s 273(1). However, the specific power to make regulations created by s 273(2) uses the words “operation and regulation of detention centres” to convey a meaning different to “cause detention centres to be established and maintained”. While the word “maintained” conveys ongoing activity, its natural and ordinary meaning, in the context of a power to establish and maintain a place where persons will be held in detention, is that of upkeep and repair of premises so that they will be suitable for use as a detention centre. The power to make regulations under s 273(2) and (3), in contrast, is expressed in language that conveys what is to occur within the physical structures that the Minister may cause, under s 273(1), to be established and maintained, in effect, in good order and condition so as to be suitable to hold detainees in immigration detention.
Flick J stated at [108] the position was “[m]ore open to argument” such that a power to “maintain” a detention facility could extend to:
…carry with it the authority to “maintain” such a facility so that it in fact remains a facility at which detention can be effectively achieved. Preventing that which may facilitate escape from such a facility could potentially, on such an approach, be embraced within the authority to “maintain” the facility.
However, after noting at [108] that s 273(1) was not a sufficient source of power to endorse any search and removal of phones “by way of mere Ministerial discretion or policy”, his Honour later also noted at [110]:
If there be prejudice to the manner in which a detention facility is operated, any such regulation as to the “operation and regulation” of such centres could potentially be the subject of regulations made pursuant toss 273(2) and 504 of the Migration Act as opposed to Ministerial direction or policy.
That is, his Honour explicitly endorsed a similar (albeit not the same) distinction as Rares J had between matters involving the “maintenance” of a facility and any operational matters.
Rangiah J agreed with Rares J and Flick J.[115]
[115] ARJ17 at [134]
Accordingly, there is said to be support in all of the reasons of the Full Federal Court for a position that there is a point of distinction between maintenance of a facility and the operation of a facility. For Rares J: [116]
The power [under s 273(1)] is addressed to the actions of acquiring, leasing or occupying land and buildings, undertaking any necessary building work (in the sense of construction work) and upkeep (in the sense of maintenance) of the physical land and buildings in which persons in immigration detention can be detained…
[116] ARJ17 at [64]
For Flick J, the scope of the power under s 273(1) was wider than any mere physical or building work and would allow for action to prevent the facilitation of escape.[117] However, whatever the way any dividing line between maintenance and operations is drawn between these two positions, it is implicit in the reasons of the Full Federal Court that there is a line and, further, that this limits any power available under s 273(1).
[117] ARJ17 at [108]
The applicant contends that it is therefore part of the statutory scheme established under the Migration Act that the Parliament has intended that any and all operational matters be the subject of regulations (ie made referable to s 273(2)). That power is said to be not merely optional. It is a direction. Thus, as expressed by Flick J, the intention is that such regulations will then cure any “prejudice” that might arise from the lack of power to conduct operations by way of mere Ministerial policy.
Thus the applicant submits that, properly understood, the reasons of the Full Federal Court in ARJ17 do present a complete answer to his administrative law claim. That is, given the statutory scheme intends to have operational matters carried out by reference to powers conferred by regulations:
(a)there is an implicit requirement for such regulations in order to confer any effective authority for any operational matter that would infringe upon personal rights; and
(b)the conferral of this explicit statutory power to carry out operational actions under regulations implies that no other non-statutory executive power can exist.
Thus, if the Court finds:
(a)that the control over the supply of food to detainees by their visitors is an operational matter; and
(b)that interference with the supply of home-cooked food to detainees by visitors represents an infringement upon rights of the detainees and/or their visitors,
then the applicant contends that the Outside Food Policy is unsupportable and invalid for the same reasons as the mobile phone policy was held to be invalid in ARJ17.
For the reasons set out in the applicant’s opening submissions in reply, there is said to be an interference with the rights of the detainee population and their visitors.[118] Accordingly, the Court is invited to make these two findings and hence conclude that there is no available source of power to support the Outside Food Policy.
[118] CB Tab 18 at [9]-[14], pages 32.4-32.5
Further, ARJ17 is said to be a complete answer to the respondents’ reliance on ss 196 and 189 of the Migration Act. At [72]-[73], Rares J stated:
The definition of “detain”, however, would not justify such an approach to the taking of action to remove a mobile phone from a detainee. Such an action is not self-evidently reasonably necessary to keep him, her or others in immigration detention. Nor does the evidence rise to any sufficient standard to demonstrate, objectively, that such an action is reasonably necessary in respect of each and every one of the detainees, or others affected by the policy.
The power attached to the definition of “detain” is conditioned by what is, objectively, reasonably necessary, as an action or use of force, to detain or keep a person in detention. It is not a power that depends on only the officer’s subjective belief as to what is reasonably necessary, as authorities such as George v Rockett (1990) 170 CLR 104establish.
At [109] Flick J stated:
Even if there be found a statutory source of power which could authorise the making of a policy or a regulation giving effect to a generally expressed administrative objective of seizing mobile phones and SIM cards, any exercise of such a power would necessarily have to be proportionate to the power conferred. In the absence of clear statutory language, an instruction that “all mobile phones ... are not permitted” would arguably not be a proportionate exercise of such a power if it did not take into account such a variety of considerations peculiar to individual detention centres and considerations personal to individual detainees…
That is, applying these reasons, there is said to be similarly nothing in the requirement to “detain” a person in immigration detention which dictates that total control over food choices is necessary to this purpose. Any mere potential for a mobile phone to be used to effect escape was not, of itself, sufficient to support a policy seeking to confiscate and ban such items. It is to no different effect that any mere possibility of the smuggling of contraband in food provides any sufficient basis to prevent access to all outside food for all detainees.
The problem identified in ARJ17, and which has come up again in this proceeding, is the blanket nature of what is sought to be done with the Outside Food Policy. The terms of the Outside Food Policy treat all family-cooked food as suspect not for the purposes of directing any particular search or so that Serco staff might be on notice to, on a case-by-case basis, make decisions about detecting contraband or identifying health risks, but in order to completely ban those items from entering the facility even when no contraband or health risk is present. By its terms it is said to demonstrate that it is not something reasonably necessary to maintain detainees in detention but travels well beyond those purposes. Additionally, the evidence of Ms Callaghan is said to have clearly demonstrated that no thought was given in the creation of the policy to the administration of visas or to assisting with deportation events:[119]
As part of the discussions of the working group, do you remember any discussion about how the food policy would assist with processing visa applications, including their investigation and determination?--- No.
And was there any discussion in relation to the food policy that related to how the food policy would assist with the removal of any particular detainee for deportation?--- No.
[119] T 422.6-12
These are the legitimate purposes of detention.[120] Without any intended or evident connection to those purposes, the Outside Food Policy cannot be supported by ss 196 and 189.
[120] AJL20v Commonwealth [2020] FCA 1305 at [38]-[40] per Bromberg J, cf Commonwealth v AJL20 391 ALR 562
The Commonwealth as owner of land
The applicant submits that there is no basis for the respondents’ submission that the Commonwealth enjoys additional “powers” arising from the status of an owner of property. Such powers are:
(a)not explicable by reference to any provision of the Constitution;
(b)impliedly excluded by s 52; and
(c)manifestly excluded by the provisions of the Migration Act.
The Commonwealth is called into existence and hence limited by the text of the Constitution. The absence of any reference to the “Crown” in the Constitution dispenses with the linguistic confusion that arises from having four different potential meanings of that concept as explained in Sue v Hill[121] per Gleeson CJ, Gummow and Hayne JJ. As explained by Professor Saunders, the recent examination of s 61 of the Constitution by the High Court has “minimised reliance on a conception of the Crown to determine the scope of executive power”.[122] The applicant submits that it is not consistent with this modern understanding of s 61 to treat the Commonwealth as a conceptual “person” with “rights” regarding property (this would be “anthropomorphism writ large”[123]).
[121] (1999) 199 CLR 462 at [84]-[92]
[122] Saunders, “The Concept of the Crown” (2015) 38 Melbourne University Law Review 873 at 890
[123] Williams v Commonwealth (2012) 248 CLR 156 at [204] per Hayne J
Thus, there is no reason to read into s 61 any apparent “right” of the Commonwealth to create policy merely from the status of being a landowner.
Rather, as Professor Saunders summarises from the modern case law, s 61 limits Federal executive power to:[124]
(a)powers granted expressly or by necessary implication under statutes;
(b)“prerogative” powers that impliedly ought to be allocated to the Commonwealth (as opposed to those remaining vested in any State);
(c)non-statutory executive powers “peculiarly adapted to the government of a nation”; and
(d)any residual non-statutory executive power not derived from any concept of the Commonwealth as a “legal personality” but in terms of the Commonwealth acting through its various branches under the Constitution.
[124] See Saunders, “Crown” at 891-893 and the references to Williams at footnote 111
The applicant contends that, from this list, it is not apparent that any of these categories is available to support the theory that the Commonwealth can create policy based on the status of being a landowner.
Further, the presence of an explicit statutory power (ie a power under [96(a)]) is said to impliedly exclude any of the other alternatives listed above (ie [96(b)-(d)]). The statutory source of power to conduct the “operations” of a detention centre therefore excludes the possibility of a non-statutory federal executive power to conduct operations, which is said to be the simple answer to the whole of the respondents’ assertions on this point.
In Brown v West[125] at 202 the joint judgment of Mason CJ, Brennan, Deane, Dawson and Toohey JJ stated:
Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute.
[125] (1990) 169 CLR 195
Accordingly, the applicant submits that the question of any so-called “power” arising from the status of the Commonwealth as an owner of the land at VIDC is perhaps moot and need not be addressed since the Migration Act would impliedly exclude that “power” from arising.
The applicant invites the Court to give proper effect to the differential operation of ss 273(1) and (2). In terms, those provisions are said to show that Parliament controlled and allocated the manner in which any executive power is supposed to be deployed within detention centres: with maintenance something capable of being done by Ministerial direction but with operations needing to be done under regulations. As was similarly found in Brown v West it is a necessary implication of this allocation of responsibility that there can be no residual power to conduct operations of a detention centre by reference to some other undefined executive power.[126]
[126] See (1990) 169 CLR 195 at 205

An explanation for this differential allocation of responsibilities might be found in Davis v Commonwealth.[127] There, the “nationhood” aspect of executive power was found by Mason CJ, Deane and Gaudron JJ (at 94) to allow for the incorporation of a company as a means for carrying out and implementing a plan for the commemoration of the Bicentenary. Section 273(2) is said to prevent this from occurring. Any incorporation of the operations would have to be done under regulations. Similarly, the conferral of operational authority on officers must either be under regulations or strictly confined to the express powers otherwise found in the Migration Act. In the applicant’s submission, however, a finding of a non-statutory executive power to conduct operations of a detention centre without regulations expressly contradicts s 273(2).
[127] (1988) 166 CLR 79
Finally, the proposition of such a power is said to be contradicted by s 52 which states that the manner by which the Commonwealth can exercise power in Commonwealth places is through the making of “laws” and not by reference to any residual executive power to create “policy” based on the status of a landowner. Any different result would contradict the outcome in Brown v West.
The Commonwealth’s reliance on the Commonwealth Places (Application of Laws) Act 1970 (Cth) (Commonwealth Places Act) is said to be fundamentally flawed. Any “right” of the Commonwealth to create policy based on its ownership of land would have to be something sourced in s 61 of the Constitution.[128] As such, it is impossible to find that right as part of the “laws of a State” as defined by s 3, and so cannot be the subject of s 4(1) of that Act. Similarly the respondents’ reliance on Svikart v Stewart[129] is not helpful. That case only confirmed that s 52(i) of the Constitution does not apply to Commonwealth places inside a Territory. It says nothing to support a proposition that s 52(i) permits of executive power being deployed for rule-making purposes inside Commonwealth places. That would remain to be determined based upon the text of ss 52 and 61.
[128] Attorney-General (WA) v Marquet (2013) 217 CLR 545 at [66] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Williams v Commonwealth (No 2) (2014) 252 CLR 416 at [76]-[83] per French CJ, Hayne, Kiefel, Bell and Keane JJ
[129] (1994) 181 CLR 548 (at [54] of the respondents’ submissions)
The claim for an injunction against officers of the Commonwealth
The applicant submits that, if there is a “power” available to the Commonwealth by reason of being an owner of property, this so-called “power” is:
(a)not absolute; and
(b)is not and cannot be taken to be similar to a statutory power.
A statutory source of power is always sufficient basis to “justify” what might otherwise be the commission of tortious conduct by an officer of the Commonwealth[130]. However, a “power” to set conditions of entry onto land merely available to any person by being an owner of property is no answer to a claim in tort. An owner of property cannot impose conditions on entry that require a visitor to take all care for their own safety or disclaim responsibility for events that occur while the visitor is on the property. It is the very essence of every claim in tort against an owner of property that any “power” the owner enjoys from that status is subject to, or fails when put against, a claim that something the owner is doing or has omitted to do has caused injury or damage when a duty of care exists between them.
[130] Coco v The Queen
The task of the Court is said therefore to reconcile any such “power” with the claim of the applicant that the exercise of that power is likely to cause harm to him in his particular circumstances. If the most appropriate means of reconciling these positions is to, effectively, exempt the applicant from the Outside Food Policy then this is the appropriate remedy.
Obtaining an order of that kind might have been conceptually more difficult if the Outside Food Policy had a proper statutory basis. In that case, because with the underpinning of statute such a policy should be expected to apply to all persons equally and the Courts would have little or no role in choosing whom to exempt. But in the absence of statutory power, there are simply two competing common law rights at play:
(a)that of the Commonwealth as an owner of property; and
(b)that of the applicant to remain free from reasonably foreseeable harm resulting from actions of the Commonwealth while he is detained.
There is said to be nothing unusual in the Court being called upon to determine which of these is the superior “right” and nothing unusual in a finding that personal harm should be avoided while that person is under the care of and vulnerable to the position of power of an owner.
Duty of care
The existence of a duty of care imposed upon the respondents, concerning the applicant, while he remains in detention, is not disputed on the pleadings.[131] This duty of care is not “novel” in the sense of one needing to be recognised, as a first occasion, by the Court in these particular proceedings.[132] Rather, the duty is admitted. Accordingly, analysis of its scope should be based upon established authority.
[131] See [2(a)], [4(a)], [5(b)] of Response to Third Further Amended Originating Application: CB Tab 2, pages 10-11
[132] Compare, eg, Plaintiff S99/2016 particularly at [201] per Bromberg J
In Howard v Jarvis[133] the High Court confirmed the existence of a duty of care on a police constable “to exercise reasonable care for the safety [of a prisoner] during his detention in custody”. This was because the constable had deprived the prisoner of liberty and assumed “control of his person”. It did not matter that this deprivation occurred pursuant to lawful authority. While in that custody, the duty arose “to exercise reasonable care for the safety of [the prisoner’s] person during the detention”.[134]
[133] (1958) 98 CLR 177
[134] 98 CLR 177 at 183 per Dixon CJ, Fullagar and Taylor JJ
This kind of duty has been held to apply to the exercise of powers of control and direction in the sense that reasonable care ought to be taken with the exercise of such powers “in order to avoid injury to an inmate”.[135]
[135] Price v NSW [2011] NSWCA 341 at [35] per Allsop P
Such duties have been applied in the context of immigration detention. In SBEG v Commonwealth of Australia[136] the Full Federal Court (Keane CJ, Lander and Siopis JJ) held that the obligation was to take reasonable care to avoid harm to the detainee though a consideration also needing to be addressed was “the need to ensure effective detention in accordance with the law”.[137] In S v Secretary, Department of Immigration & Multicultural and Indigenous Affairs[138] Finn J observed from [216]-[218]:[139]
The further characteristic shared with the gaoler-prisoner relationship grows out of the nature of the control exercised over detainees. They are without freedom and without capacity to provide for their own needs, special or otherwise. Theirs is a special dependence but particularly so if they suffer from mental illness.
The duty imposed on the Commonwealth must accommodate that special dependence and the peculiar vulnerability to which detainees known to suffer mental illness are exposed. The duty must also take account of the very distinctive outsourcing arrangements the Commonwealth has been prepared to accept for the provision of health care services.
This case is one of first impression and for that reason it is necessary to approach the standard required of the Commonwealth with some caution. This said, I am nonetheless satisfied that the minimum properly to be expected of the Commonwealth in virtue of its relationship with detainees in an immigration detention centre such as Baxter is that it ensure that reasonable care is taken of the detainees who, by reason of their detention cannot care for themselves: cf Spicer v Williamson 132 SE 291 (1926) at 293. This necessitates that the Commonwealth ensures that a level of medical care is made available which is reasonably designed to meet their health care needs including psychiatric care: see e.g. Brooks v Home Office (1999) 48 BMLR 109 at 114; cf also, although in a setting affected by constitutional considerations, Bowring v Goodwin 551 F 2d 44 (1977) at47. Where, as here, the Commonwealth contracts out the provision of services to detainees it is obliged to see that “care is taken”: cf Kondis, at686; and that the requisite level of medical care is provided and with reasonable care and skill.
[136] (2012) 208 FCR 235
[137] At [19]
[138] (2005) 143 FCR 217
[139] Applicant’s emphasis retained
A duty to take reasonable care for the health and safety of detainees at common law is compatible with Australia’s obligation to ensure that any person deprived of liberty “shall be treated with humanity and with respect for the inherent dignity of the human person” under Article 10(1) of the International Covenant for Civil and Political Rights (ICCPR). Similarly, freedom from arbitrary interference with privacy and family, and the right to freedom of thought, conscience and religion are promoted by Articles 17(1) and 18(1) of the ICCPR. The 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners recognise that it is “necessary to respect the religious beliefs and moral precepts of the group to which a prisoner belongs”.[140]
[140] Article 6(2)
There is said to be no reason why these international law obligations should not inform the scope of the relevant duty imposed on the respondents to take care to avoid reasonably foreseeable harm to the applicant through the application of the Outside Food Policy to him. That is, as expressed in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J:
The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.
In Lim v Minister for Immigration, Local Government and Ethnic Affairs[141] at 38 Brennan, Deane and Dawson JJ stated:
We accept the proposition that the Courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty.
[141] (1992) 176 CLR 1
Breach
Whether analysis of the issue of breach is undertaken by reference to s 5B of the Civil Liability Act 2002 (NSW) (Civil Liability Act) (if applicable) or by reference to the analysis of Mason J in Wyong Shire Council v Shirt,[142] it is not likely to be materially different.[143] The relevant analysis is whether:
(a)there is a probability of harm if care is not taken in the application of the Outside Food Policy to the applicant;
(b)that harm is likely to be significant;
(c)the burden to avoid that risk of harm does not outweigh the taking of reasonable precaution; and
(d)whether there is a social utility in the activity that creates the risk of harm.
[142] (1980) 146 CLR 40 at 47-48
[143] Price at [37] per Allsop P
The applicant submits that the Court would readily and easily find that there are risks of harm to the health of the applicant from the application of the Outside Food Policy to him. These findings can be made as a matter of common sense and, as in Price, “hardly needed expert evidence to illuminate”.[144] The applicant submits, however, on the expert evidence led, that the Court should make findings that there is a probability of harm and that the harm would be significant to the applicant.
[144] Price at [39]
Harm
The applicant contends that the application of the Outside Food Policy to him exposes him to reasonably foreseeable harm in the sense of:
(a)an exacerbation of his medical conditions arising from his IBD and/or his psychiatric conditions and/or the interaction of both;
(b)a deterioration of his relationship with his family; and
(c)interference with the practice of his religion in the selection of food compatible with his beliefs.
These harms are interrelated. The agreed psychiatric evidence is that the applicant’s depression and anxiety (whether symptoms of a Major Depressive Disorder or an Adjustment Disorder with Depressive Mood) can be attributed to significant stressors for the applicant including his gastrointestinal illness, separation from his family, and an acrimonious relationship with the detention centre and government.[145] It is said to follow then that the Outside Food Policy represents a substantial contribution to a risk of future aggravation of the applicant’s depression and anxiety as the Outside Food Policy represents an increase in these stressors as an underlying element or incident of each.
[145] CB Tab 345, page 1261.2
The applicant’s evidence
The applicant has given evidence that the Outside Food Policy would constrain him to eating food provided by Serco.[146] The Outside Food Policy constrains opportunities to eat with his family[147] and eating in a way that minimises his personal concerns about any flaring up of his IBD.[148] He has significant doubts that the food is Halal for him which further limits his options.[149] The combined effects[150] of the limits on his options to eat in a way that protects his health, preserves his family time and promotes the performance of his religious beliefs means he is distressed, depressed and anxious.[151]
[146] CB Tab 23 at [3],
[147] Ibid at [9], [20]-[21], [23]-[24], [30]-[31]; see also Tab 25 at [33]-[38]
[148] CB Tab 27 at [174]
[149] Ibid at [8]; see also Tab 25 at [19]-[24]; Tab 27 at [72(e)]
[150] See CB Tab 27 at [41], page 61
[151] Ibid at [33]
As described in the applicant’s affidavit of 27 October 2017 at [28]-[33]:
I have undergone a Colonoscopy procedure several times, a number of other surgeries and I continue to suffer from this disease. But the condition of the Crohn’s disease was quite good and under control for years. But after the food policy took effect, my disease has worsened and started flaring up. I have bleeding and feel abdominal pain in the right lower quadrant. I started feeling fever, noticed a palpable abdominal mass, and other systemic symptoms like dehydration or rapid heart rate, poor appetite and anaemia. I have started having abdominal bloating or distention, especially after meals. There is urgency in having a bowel movement and I have frequent trips to the toilet. I have started feeling joint pain and started getting mouth ulcers. I have started feeling tired and low on energy. I have started having oesophagus reflux issues with increase in stomach acid levels, especially after eating noodles, chips, processed food like canned and packaged snacks.
On 17 October 2017, I was seen by IHMS Dr Maryam. After having conducted the necessary examinations, she required that I should be sent to Hospital (emergency) immediately because the Crohn’s disease had started flaring up. However, I waited for Serco for two and half hours. Upon their arrival, they asked me to be handcuffed. When I refused, they cancelled the escort.
The new food policy is the end of the line of so much sadness for me. When we first came to Villawood I was separated from my family. That was my first shock. But at least they would come to see me twice a day. Then on 1 April 2016, the Minister made the decision to release my family into the community. But then the Minister and his Department closed the short and safe way which my family could use to come easily to detention in 3 minutes. Then they had to pay $40 transportation to get to me. It became too expensive to come often. That was my second shock.
Now the third shock is this food policy. Once I was informed about it, I realised that I would lose my family. I had the horrible feeling that they are being taken away from me. The fear inside me was exacerbated, and sometimes I was seized with panic – how will I communicate with my family in the future? I am trying to maintain a calm and composed attitude, but every time I try to cope, I find a new cruel decision or unreasonable policy.
The feeling that I am not able to fulfil my role as a father, not able to offer protection to them, is getting worse and worse, now I see them even less, and can’t even share our cultural food with them.
I find now I am distressed by frequent intrusive thoughts. I am suffering intense depression and anxiety, so much worse than before. I also suffer from frequent and intense nightmares. When I am experiencing nightmares or intrusive thoughts, I have distressing emotional and physical reactions, such as fear, heart palpitations, breathlessness, shaking, and feeling sudden changes in my body temperature. All this has got so much worse since the food policy took effect. It revives the memories of separation from my family, and increases the fear for my family, and what will happen in the future.
The introduction of the policy was significant for detainees. Ms Callaghan agreed that the introduction of the Outside Food Policy marked a substantial change for the operations at VIDC.[152]
[152] T418.30-36
Although cross-examined on one aspect of [33], there is said to be nothing inherently wrong with the applicant using the report of Ms Zilenkov to remind himself of his past symptoms. It is said to be incorrect to assert that this passage is plagiarism in its context. The proper context of [33] is that he felt past symptoms re-occurring and, importantly, that “[a]ll this has got so much worse since the food policy took effect”. This part of [33] was not challenged.
The potential for the application of the Outside Food Policy to him to cause a degradation of his conditions is evident from the period in 2020 in which visits to him ceased during COVID-19 conditions.[153] This flaring up was only able to be brought under control by administration of invasive enemas and, even then, the applicant said he still suffers “much pain, mucus and bloating” and has been experiencing “dizziness and loss of balance”[154] and since which he has been “increasingly stressed and depressed and [had] withdrawn from activities”[155] (about which he was not challenged).
[153] CB Tab 27 at [185]
[154] CB Tab 27 at [196]
[155] CB Tab 27 at [198]
The applicant submits that any attempted challenge to his credit should not be sustained by the Court. The applicant has done his best to give honest and candid answers. Despite extensive surveillance of the applicant’s food choices in the respondents’ evidence, and extensive attempts to challenge the applicant under cross-examination, neither showed a person deliberately falsifying claims in order to justify a mere “preference” for family-cooked food. Rather, it is submitted that the applicant has presented frank and reasonable evidence to the Court in order to justify his apprehension that the application of the Outside Food Policy to him will likely harm him physically and psychologically.
The medical evidence
As noted above, it is agreed by the psychiatric expert witnesses that the applicant suffers from conditions of depression and anxiety.[156]
[156] CB Tab 245, page 1261.2
Even if the diagnosis is confined to an Adjustment Disorder with Depressed Mood, as found by Professor Greenberg, then that is a condition having risks for the applicant in terms of his future health, particularly if exposed to significant stressors that the Outside Food Policy represents, particularly in terms of being a “last straw” for the applicant with his family.

The respondents submit that were the applicant and Associate Professor Farrar’s evidence on this point to be accepted, truly Halal meat at VIDC could not be provided unless the following conditions were met:
(a)the kitchen is staffed and supervised by “trustworthy Muslims”;
(b)detainees are given access to the kitchen in order to satisfy themselves as to any doubts they may have; and
(c)detainees are given access to the entire supply chain for food in order to satisfy themselves as to any doubts they may have.
The respondents submit that the exercise of reasonable care by the Commonwealth cannot require such steps.
The applicant claims that he has not eaten red meat at VIDC since before 2017, and also claims that he modified his behaviour in response to Associate Professor Farrar’s report, specifically by ceasing to eat the chicken at VIDC in August 2019. The following points, however, are said to be significant:
(a)first, there is evidence that the applicant continued to eat meat after 2017, and chicken after August 2019. For example, he was observed eating lamb on 19 October 2019,[272] beef on 22 October 2019,[273] and shepherd’s pie on 27 December 2019.[274] He was observed eating chicken on 17 October 2019,[275] and 23 January 2020.[276] That final occasion was the subject of Mr Buchan’s “clear and persuasive” evidence on 1 June 2021;[277] and
(b)secondly, the applicant has chosen not to follow all of the requirements stipulated by Associate Professor Farrar. For example, Associate Professor Farrar’s evidence is that an observant Muslim would not sit or eat with people who are eating non-Halal food. The applicant, however, sits with others while they are eating, and does not concern himself with what they are eating.[278]
[272] CB Tab 159, page 2453
[273] CB Tab 159, page 2463
[274] CB Tab 160, page 2475
[275] CB Tab 159, page 2447
[276] CB Tab 203
[277] T552-554
[278] T99.26-42
The respondents submit that, as a result, to the extent that the applicant claims to feel a religious obligation to comply with Associate Professor Farrar’s opinions, that obligation is felt inconsistently. The evidence also is said to cast doubt on the applicant’s claim that he abstains from consuming the meat served at VIDC. The respondents submit that it is more likely that, since December 2019, when he became aware that his food consumption was being monitored, the applicant has taken further steps to conceal or limit his food consumption to improve his prospects of success in this proceeding. In those circumstances, there is a basis for the Court to doubt the sincerity of the applicant’s religious scruples.
Thirdly, the respondents submit that even if there were a deficiency in the way in which Serco communicates to detainees about Halal food, that would not reflect any want of reasonable care on the part of the Commonwealth. The Commonwealth has imposed contractual obligations upon Serco to do precisely this.[279] Further, it would not demonstrate that reasonable care on the part of the Commonwealth requires it to make an exemption from the Outside Food Policy for the applicant. At most, it could require the Commonwealth to take steps to require Serco to communicate better with detainees about Halal food.
[279] see CB Tab 127, page 1210, clause 2.2(h)(viii), page 1212, clause 2.4(e)
Impact on psychiatric condition
The applicant next alleges that the respondents were negligent because the application of the Outside Food Policy to him has resulted in, or would result in, psychological harm.
It is important to be clear about the basis on which psychological harm to the applicant could result in a liability of the respondents for negligence to him.
In light of the gastroenterological evidence outlined above, the applicant is unable to establish that he has suffered or will suffer psychological harm as consequential harm flowing from physical harm. In particular, the expert gastroenterologists were agreed that the mechanisms posited by Dr Ryan by which the applicant’s gastroenterological and psychiatric conditions may interrelate were either speculative or inapplicable to the applicant.[280]
[280] T311.12-20 (mechanism 1.1); T314.28-36 (mechanism 1.2); T316.40-317.12 (mechanism 1.3); T319.7-40 (mechanism 1.4); T320.12-24 (mechanism 1.5); T321.3-10 (mechanism 2.1); T322.16-42 (mechanism 2.2); and T323.41-324.1 (mechanism 2.3)
As a result, the harm alleged must be pure mental harm. Under s 31 of the Civil Liability Act, there is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. Further, s 32 provides that there is no duty of care to take care not to cause a person mental harm unless it was reasonably foreseeable that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
On the first day of trial, I noted that “detention over a period of years becoming decades must have some adverse impact upon psychological health”.[281] The respondents concede that may be so, but say that it is not to the point. This case does not involve a challenge to the applicant’s detention, it involves a challenge to the application of the Outside Food Policy to the applicant. The issue is whether the application of the Outside Food Policy to the applicant has caused, or would cause, the applicant to suffer a recognised psychiatric illness. It is not whether the applicant’s detention has had that result.
[281] T57.16-18
The applicant has not filed evidence to establish that in his circumstances, a person of normal fortitude,[282] would suffer a recognised psychiatric illness if the Outside Food Policy was applied to him or her.
[282] or his fortitude to the extent that was known to the respondents: s 32(4) of the Civil Liability Act
The applicant has also not filed evidence that the application of the Outside Food Policy to him has caused him to develop a recognised psychiatric illness. Though the applicant’s psychiatric expert, Dr Ryan, diagnoses the applicant with major depressive illness and PTSD, Dr Ryan also opines that he considers those conditions to be long standing.[283] In any case, for the reasons set out above, the respondents submit that the Court should entirely disregard the diagnoses made by Dr Ryan.
[283] CB Tab 292, page 737, lines 11-12; page 746, lines 11-12
The only real issue is whether it can be established that the application of the Outside Food Policy to the applicant will exacerbate whatever psychiatric condition he is presently suffering. The respondents submit that the Court should not accept that contention.
First, the evidence before the Court strongly suggests that the applicant is exaggerating his physical and psychiatric symptoms. Dr Ryan accepted that the possibility could not be discounted, that the applicant’s reaction to the Outside Food Policy is contributed to by his acrimonious relations with authorities, and that it is likely that his reaction to the Outside Food Policy involves an element of defiance against authorities for his distressing personal situation of long-term detention.[284] Exaggeration is common in medico-legal cases, and likely common in cases involving people in custody.[285] Dr Ryan accepted, for example, that the objective evidence concerning the applicant’s ability to concentrate was inconsistent with the applicant’s account.[286]
[284] T496.15-29
[285] T497.39-498.14
[286] T520.19-521.2; 530.4-6
The evidence establishes that the circumstances before the Court involve many of the warning signs and indications for malingering (and hence exaggeration) set out in relevant academic literature.[287] This was extensively explored with Dr Ryan and Professor Greenberg.[288]
[287] Exhibit R13
[288] T498.35ff; T516.1ff
Professor Greenberg’s opinion was that, as further evidence had emerged, his assessment of the applicant had changed from possible exaggeration, to very likely exaggeration, to possible intentional malingering.[289]
[289] T488.25-32
As a result, the position at the close of evidence is said to be as follows:
(a)the Court could accept that the applicant has a real condition of adjustment disorder with depressed mood, as diagnosed by Professor Greenberg;[290]
(b)that is a recognised psychiatric condition;
(c)however, the applicant’s psychiatric condition is not the consequence of any physical harm;
(d)the “significant stressor” for the applicant is that “he has been kept in detention and he’s angry about that, and that he has been separated from his family”;[291]
(e)those stressors have existed from April 2013 to the present;[292]
(f)the applicant’s separation from his family, as understood and described by Professor Greenberg as a “significant stressor”, is the result of the applicant’s detention, and is independent of the Outside Food Policy;[293]
(g)there has been no significant deterioration in the applicant’s mental state over the years he has been in detention;[294]
(h)the Outside Food Policy is a lesser stressor;[295]
(i)the reimposition of the Outside Food Policy may make the applicant angry and unhappy;[296]
(j)in circumstances including that “the main stressor hasn’t caused a significant deterioration”, it is unlikely that the reimposition of the Outside Food Policy would “lead to a significant deterioration” in the applicant’s mental state.[297]
[290] T543.35-44
[291] T466.3-8
[292] T466.17-20
[293] T467.45-468.5
[294] T466.20-25
[295] T466.45-47
[296] T467.5-13
[297] T467.5-13
The respondents submit that in those circumstances, the Court ought not conclude that the respondents are liable in negligence to the applicant on the basis that the application of the Outside Food Policy to the applicant has resulted in, or would result in, psychiatric harm.
Impact on personal relationships, particularly with family
The respondents concede that it may be accepted that the applicant’s family enjoy eating together and that they consider it to be an important part of their family life. It may also be accepted that the application of the Outside Food Policy to the applicant would mean that this cannot generally occur with home cooked food. In that sense, the Outside Food Policy impedes the ability of the applicant to maintain “an ordinary family connection”.[298]
[298] T58.37-40
The respondents submit that this does not, however, involve any breach of duty of care owed by the Commonwealth.
First, it is important to be clear about what the Outside Food Policy does not prevent:
(a)it does not impose restrictions on visitation to IDCs; it does not concern who may visit immigration detention facilities or when they may visit;
(b)it does not prohibit all food brought by visitors to IDCs. Commercially sealed and packaged, non-perishable food is permitted. The applicant accepted that would include: dried fruit, including dates, figs and apricots; nuts; muesli bars; bread in a sealed package; beef jerky or biltong; juice; and iced tea;[299] and
(c)it does not prevent exemptions being made for appropriate occasions or reasons. The applicant has previously received the benefit of an exemption on the occasion of his birthday.[300]
[299] T170.45–171.29
[300] CB Tab 112 at [17], page 929
The Outside Food Policy does not prevent the applicant enjoying visits from his family and eating with them.
The Court could not be satisfied that the reimposition of the Outside Food Policy to the applicant would, in fact, reduce the amount of time he spends with his family by virtue of his family being unable to bring substantial meals.
The applicant’s daughter’s evidence is that, while the interim injunction has been in place, the applicant generally receives the following visits:[301]
(a)three hours on Wednesdays (4:30pm - 7:30pm);
(b)six and a half hours on Saturdays (1:00pm - 7:30pm); and
(c)two to three hours on Sundays (1:00pm to 3:00pm or 4:00pm).
[301] CB Tab 107 at [45], page 899-900
There is no reason that the applicant could not continue to receive approximately 12 hours of visits each week if the Outside Food Policy was applied to him. In particular, visits of that extent could easily be accommodated between lunch and dinner across three days. And during those visits the applicant and his family can share the kinds of foods that the Outside Food Policy does permit or for which exemptions are granted.
Secondly, it is important to recognise that there are matters which the common law has consistently recognised do not constitute “harm” for the purposes of negligence. These include grief, sorrow, anxiety, distress and depression (as colloquially understood). Each of those matters are feelings which most normal people experience in certain circumstances, and are not compensable.[302] The same position applies under the Civil Liability Act in NSW. As already noted, pure mental harm is not compensable unless it consists of a recognised psychiatric illness.
[302] See Balkin and Davies, Law of Torts (5^th Edition), LexisNexis Butterworths, 2013, at [7.42]
Accordingly, the respondents submit that the applicant cannot establish any liability in negligence simply by establishing an impact on personal relationships, particularly with his family. That is not a form of harm which completes the tort. Interference with the “quality” of the applicant’s time with his family is not a harm protected by the law.
Thirdly, to the extent that the Outside Food Policy interferes with the applicant’s family life, this is said to be a necessary consequence of the applicant’s detention required by the Migration Act which therefore cannot sound in negligence. As noted in SBEG:[303]
Immigration detention under the Act involves “restraint by an officer” while a detainee is in that officer’s company, or “being held by, or on behalf of, an officer” in one of the places described in (b) of the definition of immigration detention. That means confinement in a facility and restrictions upon the movements of the detainee so that the detainee is not free to come and go as he or she pleases. Detention necessarily involves the loss of personal liberty, and, usually, of the right to privacy as well: Behrooz (2004) 219 CLR 486 at [13]; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at [5], [222]–[224].
To the extent that the medical evidence was to the effect that the appellant’s condition could be substantially improved by allowing him to come and go as he pleased and to live without the presence of guards, and in a supportive family environment, it is difficult to regard the loss of these amenities as other than a usual incident of detention. A more relaxed form of accommodation, especially one with no constraint on the appellant’s ability to come and go as he pleases, is not available under s 5(1)(b)(v) of the Act. Immigration detention involves, in terms, restraint by an officer and being held by or on behalf of an officer, in a place. And to the extent that the appellant’s psychiatric disorder is attributable to the uncertainties relating to his claim to a refugee visa, these uncertainties are not caused by his detention.
[303] at [54]-[55] (Keane CJ, Lander and Siopis JJ)
Breach of duty: countervailing matters
The respondents contend that even if one or other of the matters relied upon by the applicant were established, that would not of itself demonstrate that failing to make an exemption for him from the Outside Food Policy involves a want of reasonable care on the part of the Commonwealth. It would be necessary to balance whatever harm is suffered by the applicant against the reasons for the policy and against making an exemption for the applicant.
The reasons for the Outside Food Policy have been canvassed above. It is said to have been a tailored response to real risks to health and safety at IDCs. To maintain an exception for the applicant would pose a number of difficulties. First, in circumstances where the applicant has been assessed by ASIO to be a risk to security, it should not be assumed that he himself is free from risk of being involved in the introduction of contraband to VIDC. Secondly, if the applicant were to receive special treatment, that would expose him to risks of the kind about which Ms Callaghan gave oral evidence[304] and also those discussed in the unchallenged evidence of Mr Slape.[305] Indeed, the applicant himself gave evidence of the resentment which can be engendered by special treatment being received by particular detainees.[306]Thirdly, if the circumstances of the applicant are sufficient to mandate an exception to the policy, many other detainees will no doubt claim that their circumstances, too, are such as to mandate such an exception.
[304] T427.16-25
[305] CB Tab 125 at [42]
[306] CB Tab 27 at [66]–[67], T216.41–217.45
Injunction
Finally, the respondents submit that it is important to notice that the relief sought by the applicant is not merely damages for past negligence but an injunction restraining what the applicant contends would be future negligence. The requirements for relief of that kind to be granted were explained by the Full Federal Court in Hurst v Queensland (No 2):[307]
The starting point in considering the appellant’s application for injunctive relief is to note that what is sought is a quia timet injunction. That is, what the appellant seeks is an injunction to prevent or restrain an apprehended or threatened wrong which would result in substantial damage if committed.
In quia timet proceedings, the court will have regard to the degree of probability of apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties. In R v Macfarlane; Ex parte O’Flanagan and Ex parte O’Kelly (1923) 32 CLR 518 Isaacs J observed (at 539):
The Court is not entitled to apply the obstacle of injunction to the contemplated action of a co-ordinate branch of the Government unless not only a case of clear illegality, proved to be calculated to result in a clear injury, is established, but also it is shown that by no other means can injury be averted or sufficiently compensated for.
[307] [2006] FCAFC 151 at [20]–[21] (Ryan, Finn and Weinberg JJ)
The respondents submit that the evidence does not establish that, if the Outside Food Policy is applied to him, the applicant will suffer substantial damage. The evidence does not support any contention that the applicant would be unable to eat a healthy diet because of religious reasons. It does not support any contention that he would be left to eat food that exacerbates his IBD. It does not support any contention that any psychiatric condition from which he suffers would be exacerbated. At most, the evidence establishes that he would be less able to enjoy meals with his family. That is not cognisable harm for the purposes of the law of negligence and is largely an inevitable consequence of the detention required by the Migration Act. It is certainly not the kind of substantial damage required to justify a quia timet injunction requiring an exemption to be made for the applicant from an otherwise valid policy of general application.
At the least, the degree of probability of the applicant suffering any substantial damage is insufficient to justify the grant of the injunction which he seeks. While the degree of probability of future injury is not an absolute standard, the unlikelihood of future harm is said to be a matter which weighs against the grant of a quia timet injunction.[308] The respondents submit that the evidence before the Court does not demonstrate that future harm of a cognisable kind is at all likely to result from application of the Outside Food Policy to the applicant. To the contrary, the evidence establishes that future harm of any cognisable kind is highly unlikely to result from application of the Outside Food Policy to the applicant.
[308] Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261 at 270
Resolution

These proceedings highlight the continuing legal difficulty with the “legislative vacuum” for the operation of immigration detention clearly identified by members of the Full Federal Court in 2004.[309]
[309] Mastipour at [2]-[3] (per Finn J), [8]-[11], [13]-[15], [17] (per Selway J)
The applicant seeks two classes of final relief:
(a)a declaration that the Outside Food Policy is invalid; and
(b)remedies appropriate to respond to the tort claim, being:
(i)an injunction against the respondents to ensure that the applicant may have access to home-cooked and home-prepared food; and
(ii)some measure of damages representing hurt feelings and mental anguish in the period from the introduction of the Outside Food Policy to the making of the interlocutory injunction.
In the event that type of order is made, the applicant would seek costs.
I have come to the conclusion that the Court has jurisdiction to deal with the applicant’s challenge and that the administrative law challenge should succeed but that the claim in tort fails. My reasons for these conclusions follow.
Jurisdiction
I agree with the applicant’s submissions on jurisdiction. Those submissions drew on my finding of jurisdiction in my interlocutory judgment and expanded upon it. Some qualification to my jurisdictional findings in my interlocutory judgment are required, especially in relation to the claim in tort.[310] I find that the Court has jurisdiction to hear and determine the application for the reasons set out above at [13]-[18].
[310] See also the observations of the Full Federal Court on jurisdiction in Minister for Home Affairs v SZRWS
The Court has jurisdiction when understood as the complete authority to determine the whole of the claims brought by the applicant.[311] This foundational jurisdiction has been properly invoked for the reasons set out in the applicant’s opening submissions.
[311] New South Wales v Kable (2013) 252 CLR 118 at [34]; Khatri v Price (1999) 95 FCR 287 at [15] per Katz J
The respondents do not dispute this foundational jurisdiction but, rather, only a small part of the applicant’s claim, and then on an alleged lack of subject matter jurisdiction. That is, it is asserted that if the Court makes a finding that the Commonwealth has “power” to create policy based on a status of ownership of property that might mean that the applicant’s administrative law claim could not succeed by reference to the provisions of the ADJR Act. But this is not the same thing as asserting that the Court lacks jurisdiction. Rather, in that event, it is in the proper exercise of the Court’s jurisdiction to refuse to give relief under the ADJR Act. Even then, any finding that there is a “power” arising from that status would need to be examined in light of the applicant’s claim that such a power, if it exists, cannot be exercised for matters concerning the operations of a detention centre due to s 273(2) of the Migration Act. As such, the source of the Court’s subject matter jurisdiction remains in s 476(1) of the Migration Act, ie because, as the applicant submits, the introduction of the Outside Food Policy was (as will be explained) a decision “required to be made” under a regulation, which is then a privative clause decision as defined.
The Full Federal Court in FJE20 v Minister for Home Affairs[312] recently confirmed this Court’s jurisdiction to grant declaratory relief in relation to asserted invalidity of a decision. The Full Federal Court specifically left open the question whether ss 14 or 18 of the FCFC Act are engaged to deal with a claim in tort for negligence related to a claim for a declaration of invalidity.
[312] [2022] FCAFC 45
The administrative law challenge
Despite the layers of complexity and detail in the parties’ submissions, which I have pondered at length, there are in my view some straightforward propositions on which this aspect of the case turns. As noted above, the applicant’s core proposition in his administrative law challenge to the decision to introduce the Outside Food Policy is that there is no statutory source of power to create it.
Conversely, the core proposition advanced on behalf of the respondents is that no legislative policy is required, because it is based upon the rights of the Commonwealth as an occupier of land.
It is uncontroversial that the Commonwealth, as a body politic, has legal personality. Further, as a legal person, the Commonwealth may acquire and occupy land. It is also uncontroversial that, having acquired land and occupied it, the Commonwealth enjoys such rights as are held in the ordinary course by an occupier of land. The rights of an occupier do not, however, extend to the commission of a crime or a tort. Neither would the rights of an occupier extend to matters incidental to a crime or a tort, such as controlling an unlawfully detained person’s access to family or food. In any event, those rights may be varied or extinguished by statute. As the High Court found in Brown v West at 202, a Commonwealth law may limit or impose conditions on the exercise of executive power so that acts which would otherwise be supported by the executive power fall outside its scope.
Central to the consideration of this issue is s 273 of the Migration Act which is in the following terms:
(1)The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.
(2)The regulations may make provision in relation to the operation and regulation of detention centres.
(3)Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:
(a) the conduct and supervision of detainees;
(b)the powers of persons performing functions in connection with the supervision of detainees.
(4) In this section:
“detention centre" means a centre for the detention of persons whose detention is authorised under this Act.
No regulations have been made under that section.
Absent legislative authority, the executive detention of persons on Commonwealth land by its servants, agents or contractors would be a tort and, probably, a crime. Statutory authority to detain is, however, provided by the Migration Act.
Section 273(1) of the Migration Act deals with the establishment and maintenance of detention centres where those lawfully detained may be held. The section was considered at length by the Full Federal Court in ARJ17. While it is clear from that judgment that s 273(1) empowers the Commonwealth to create and maintain detention centres (on its land or otherwise) it does not authorise an interference with the property rights of detainees. The “maintenance” of a detention centre would clearly include the repair and upkeep of its structure and fabric. It may also extend to the making of rules impacting upon the daily lives of detainees, to the extent necessary to maintain detention centres as places of detention. In my view, that proposition cannot be taken far for two reasons. The first is that Parliament, in enacting s 273, has drawn a clear distinction between the establishment and maintenance of detention centres (which is authorised under s 273(1)) and the operation and regulation of detention centres which Parliament envisaged would be effected by regulations. This is particularly clear in relation to the regulation of conduct and supervision of detainees and the powers of persons supervising them which are specifically dealt with in s 273(3). If regulations had been made authorising the Outside Food Policy, these proceedings would not have been necessary. The problem is, however, that no regulations have been made.
The point was reinforced by Rares J in ARJ17 at [65] and [66] where his Honour stated:
In construing a statute, the court must strive to give meaning to every word of each provision as McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71].
The general power to make regulations, not inconsistent with the Act, is in s 504(1). It allows regulations to be made that “are necessary or convenient to be prescribed for carrying out or giving effect to this Act”. That power could be used to make regulations relating to the establishment and maintenance of detention centres under s 273(1). However, the specific power to make regulations created by s 273(2) uses the words “operation and regulation of detention centres” to convey a meaning different to “cause detention centres to be established and maintained”. While the word “maintained” conveys ongoing activity, its natural and ordinary meaning, in the context of a power to establish and maintain a place where persons will be held in detention, is that of upkeep and repair of premises so that they will be suitable for use as a detention centre. The power to make regulations under s 273(2) and (3), in contrast, is expressed in language that conveys what is to occur within the physical structures that the Minister may cause, under s 273(1), to be established and maintained, in effect, in good order and condition so as to be suitable to hold detainees in immigration detention.
Flick J in that case at [108] stated, not inconsistently:
More open to argument is the scope of the authority conferred by s 273(1) of the Migration Act to “cause detention centres to be established and maintained”. The concept of “maintaining” a detention centre may (perhaps) carry with it the authority to “maintain” such a facility so that it in fact remains a facility at which detention can be effectively achieved. Preventing that which may facilitate escape from such a facility could potentially, on such an approach, be embraced within the authority to “maintain” the facility. Even if that be accepted, it may be queried whether a power to “maintain” a “detention centre” is a sufficiently certain source of statutory power to search and remove articles from detainees. Even if such a construction of s 273(1) were to be accepted, such a construction would not authorise “maintenance” by way of Ministerial direction or policy. Clearer statutory language than that employed in s 273(1) would be required to permit such an interference with the property rights of those being detained.
It is but a short step to find that s 273(1) does not authorise the interference with the property rights of visitors to a detention centre, nor the regulation of the consumption of food, where that regulation is not strictly necessary for the maintenance of the detention centre.
Secondly, the statutory authority to detain, being an authority to do that which would be otherwise tortious and/or criminal, should be interpreted narrowly so as to authorise only that which is strictly necessary for the continuation of detention. So, for example, an interference with property rights, an interference with religious freedom, the imposition of conditions of forced labour, the refusal of contact with persons outside the detention centre, the refusal of access to medical treatment or the forced imposition of a medical procedure would all, in my view, be matters requiring legislative authorisation concerning the operation and regulation of detention centres. More broadly, the applicant enjoys rights conferred by the International Covenant on Civil and Political Rights and an interference with those rights would be actionable without legislative authorisation by regulation.
As Selway J stated in Mastipour at [14], a detainee retains all of their civil rights other than those that are only available to a citizen and other than those taken away by law, either expressly or by necessary implication. Those rights cannot be removed by executive action based upon the common law rights of an occupier of land.
The Outside Food Policy interferes with the personal autonomy of the applicant in a number of respects. First, it interferes with the enjoyment by the applicant of family contact. As I observed in my interlocutory judgment, the applicant is a long term detainee who values the consumption of home cooked meals with his family as a last link with ordinary family life. But for that, he would be completely institutionalised. Secondly, the Outside Food Policy interferes with the applicant’s entitlement (whether soundly based or not) to regulate his own consumption of food for reasons of his health. Thirdly, the Outside Food Policy interferes with the applicant’s practise of his religion. As an observant Muslim, he is expected to satisfy himself that meat he consumes is Halal. It is a matter for him to decide who he trusts to furnish him with Halal meat and who he does not trust in that regard.
The Outside Food Policy is not necessary for the maintenance of detention centres. Based upon the evidence of the Commonwealth’s witnesses, it was directed to achieve uniformity of practice and for the purposes of a precautionary principle, not because of actual experience of an existential threat to the detention centre or those within it by the unregulated supply of outside food.[313]
[313] T427-428
The Outside Food Policy is, in my view, clearly a matter going to the general operation and regulation of detention centres which calls for legislative support by regulation. In the absence of regulatory authority, the food policy lacks lawful authority for its creation and the applicant is entitled to the declaration of invalidity that he seeks.
The negligence claim
Because the applicant’s claim in tort only arises if the Outside Food Policy were found to be valid, it is not strictly necessary to consider it. If, however, I were wrong on the question of the validity of the Outside Food Policy, I would refuse the relief sought by the applicant based upon his claim in tort. In that regard, I agree generally with the respondents’ submissions in relation to the tortious claim as set out above at [208]-[266]. The Commonwealth has not breached its duty of care to the applicant. Adequate steps have been taken to protect the applicant’s reasonable religious requirements and to enable the applicant to protect himself from his IBD. The applicant’s problem is that he does not trust Serco but, taking all of the evidence into consideration, it is my view that he has exaggerated both his health concerns and his religious scruples.
That is not to say, however, that the application of the Outside Food Policy to the applicant should not be reviewed in the hypothetical scenario on which the claim in tort falls to be considered. As is noted above, Exhibit R7 in these proceedings is an adverse security assessment made by ASIO in 2020. That adverse security assessment concerning the applicant was deployed by the respondents, as I understood it (and over the objections of the applicant) in order to show the seriousness of security issues having a bearing upon the Outside Food Policy. That adverse security assessment was preceded by an earlier assessment in 2018 and was, apparently, the reason why the applicant was refused a protection visa.
In Plaintiff S118A/2018 v Minister for Home Affairs (No 4)[314] the Federal Court found that the security assessment process concerning this applicant conducted by ASIO was tainted by a lack of procedural fairness and that the resulting adverse security assessments were thus affected by jurisdictional error. The orders made by Mortimer J in that case will presumably require a fresh security assessment to be made. That carries with it the possibility that the applicant might, at some stage in the future, be granted a protection visa. Obviously, if the applicant is released from detention, the Outside Food Policy will have no further application to him.
[314] [2022] FCA 329
CONCLUSION
The applicant has succeeded in establishing that the Outside Food Policy is invalid. He should receive a declaration to that effect. A continuation of the interlocutory injunction is unnecessary, unless there is an appeal against this judgment. I will make orders to deal with that possibility.
I will hear the parties as to costs.

I certify that the preceding two hundred and ninety-nine (299) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.
Associate:
Dated: 10 June 2022

File number(s):	SYG 2727 of 2017
Judgment of:	JUDGE DRIVER
Date of judgment:	10 June 2022
Catchwords:	MIGRATION – injunction to restrain application of a directive restricting outside food being brought into the Villawood Detention Centre by visitors – prohibition on home cooked food – consideration of the jurisdiction of the Court to review a decision concerning the management of detention centres – continuation of an interlocutory injunction – determination of the validity of the decision – claim for damages for a breach of duty of care to detainees arising from the introduction of the outside food restrictions
Legislation:	Administrative Decisions (Judicial Review) Act 1974 (Cth) s 8 Civil Liability Act 2002 (NSW) ss 5B, 31, 32 Commonwealth Places (Application of Laws) Act 1970 (Cth) s 4 Constitution of Australia 1901 (Cth) ss 52, 61 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 14, 18, 134 Migration Act 1958 (Cth) ss 5, 189, 196, 252, 273, 474, 476
Cases cited:	AJL20v Commonwealth [2020] FCA 1305 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 ARJ17 v Minister for Immigration and Border Protection (2018) 257 FCR 1 Attorney-General v De Keyser's Royal Hotel Ltd [1920] AC 508 Attorney-General (WA) v Marquet (2013) 217 CLR 545 Barker v The Queen (1983) 153 CLR 338 Brown v West (1990) 169 CLR 195 Butchart v Home Office [2006] 1 WLR 1155 Cadia Holdings Pty Ltd v NSW (2010) 242 CLR 195 Clough v Leahy (1904) 2 CLR 139 Coco v The Queen (1994) 179 CLR 427 Davis v Commonwealth (1988) 166 CLR 79 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 Edmonds v Commonwealth of Australia (1959) 61 SR (NSW) 527 FJE20 v Minister for Home Affairs [2022] FCAFC 45 Howard v Jarvis (1958) 98 CLR 177 Hurst v Queensland (No 2) [2006] FCAFC 151 Introvigne v Commonwealth (1980) 32 ALR 251 Khatri v Price (1999) 95 FCR 287 Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Mabo v Queensland (No 2) (1992) 175 CLR 1 Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Minister for Home Affairs v SZRWS [2018] FCAFC 51 Minister for Immigration and Border Protection v ARJ17 [2017] FCAFC 125 New South Wales v Bujdoso (2005) 227 CLR 1 New South Wales v Kable (2013) 252 CLR 118 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17 Plaintiff S118A/2018 v Minister for Home Affairs (No 4) [2022] FCA 329 Price v NSW [2011] NSWCA 341 Queensland v Congoo (2015) 256 CLR 239 Re Margaret Joyce Staines v Commonwealth of Australia [1990] FCA 512 Ruddock v Vadarlis (2001) 110 FCR 491 S v Secretary, Department of Immigration, Multicultural and Indigenous Affairs (2005) 143 FCR 217 SBEG v Commonwealth (2012) 208 FCR 235 Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502 South Sydney West Area Health Service v Stamoulis [2009] NSWCA 153 Sue v Hill (1999) 199 CLR 462 Svikart v Stewart (1994) 181 CLR 548 SZSZM v Minister for Immigration and Border Protection [2017] FCCA 819 SZRWS v Minister for Immigration & Ors (2017) 328 FLR 354 SZRWS v Minister for Immigration [2017] FCCA 3101 SZRWS v Minister for Immigration & Ors (No 2) [2018] FCCA 3876 Tanioria v Commonwealth (No 3) (2018) 266 FCR 610 Travel Compensation Fund v Tambree (2005) 224 CLR 627 Thompson v Commonwealth (1969) 70 SR (NSW) 398 Western Australia v Ward (2002) 213 CLR 1 Williams v Commonwealth (2012) 248 CLR 156 Williams v Commonwealth (No 2) (2014) 252 CLR 416 Wyong Shire Council v Shirt (1980) 146 CLR 40
Division:	Division 2 General Federal Law
Number of paragraphs:	299
Dates of hearing:	24-28, 31 May, 1, 3 June 2021
Place:	Sydney
Counsel for the Applicant:	Mr P Webb QC, with Mr M Seymour
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondents:	Mr P Herzfeld, with Ms A Hammond
Solicitor for the Respondents:	Australian Government Solicitor

SYG 2727 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	SZRWS Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent SECRETARY, DEPARTMENT OF HOME AFFAIRS Third Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	10 JUNE 2022