SZSZM v Minister for Immigration and Border Protection
[2017] FCCA 819
•3 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSZM v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 819 |
| Catchwords: MIGRATION – Applicant currently held in immigration detention – application seeking declaration that a decision by the Minister for Immigration to ban mobile phone possession and use in detention is invalid – whether the respondents have the authority to search detainees for and retain mobile phones – whether the applicant was denied procedural fairness in respect of the decision to search for and take all mobile phones off detainees – no reviewable error – application dismissed. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3(1), 5(1), 8(2) |
| Cases cited: Aged Care Standards & Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428; [2004] FCA 843 Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561; [1984] FCA 220 Bodruddazza v Minister for Immigration & Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration & Multicultural & Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 Other materials: Aronson, Groves and Weeks, Judicial Review of Administrative Action & Government Liability (Thomson Reuters (Professional) Australia Limited, 6th ed, 2017) |
| Applicant: | SZSZM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | COMMONWEALTH OF AUSTRALIA |
| Third Respondent: | SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3461 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 9 March 2017 |
| Date of Last Submission: | 3 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Seymour |
| Solicitors for the Applicant: | Macarthur Legal Centre |
| Counsel for the Respondents: | Mr P. Herzfeld |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant have leave to file and serve an amended application including a prayer for relief under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) by 17 May 2017.
The time for lodging an application for relief under the ADJR Act be extended until 17 May 2017.
Compliance by the applicant with the requirement in r.42.02(1) of the Federal Circuit Court Rules 2001 (Cth) in connection with any amended application be dispensed with.
The application be dismissed.
The injunction granted on 17 February 2017 be dissolved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3461 of 2016
| SZSZM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| COMMONWEALTH OF AUSTRALIA |
Second Respondent
| SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Third Respondent
REASONS FOR JUDGMENT
Introduction
SZSZM is a citizen of Pakistan. The applicant has been in immigration detention in Australia since 15 November 2012, his visa having been cancelled on character grounds on 17 October 2012. Since April 2015 he has been held in the Blaxland compound, a high security compound within the Villawood Immigration Detention Centre (VIDC) in Sydney. The applicant has had a mobile phone throughout his time in detention.
On 21 November 2016, the applicant was told that he was no longer permitted to possess a mobile phone in detention and that if he were transferred to another detention facility he would immediately lose his mobile phone. He was then handed a document in which it was explained that there was a new policy concerning mobile phones in detention and that:
…
Effective immediately, from 21 November 2016, anyone entering an immigration detention facility or being transferred to another facility is not permitted to have a mobile phone and/or SIM card.
If you are not being transferred to another onshore facility you will have a grace period, until midnight 19 February 2017 in which to voluntarily surrender your mobile phones and SIM cards. These items will be held in your ‘in-trust’ property until you leave immigration detention.
…
From 20 February 2017 you will not be allowed to possess or use mobile phones and SIM cards. You will be provided with additional access to land line phones and you will be able to continue to book time to use the internet. To use landline phones you will need to purchase phone cards from the canteen using your points from the Individual Allowance Programme (IAP).
After the grace period, mobile phones and SIM cards will be confiscated as part of routine searches for contraband items in the facility.
…
(Emphasis in original)
On 7 December 2016, the applicant commenced proceedings in this Court seeking, amongst other things, a declaration that the decision to ban and prohibit the use of mobile phones and SIM cards in detention was invalid and an injunction restraining the Minister for Immigration, the Department of Immigration and officers, delegates and agents from acting on that decision. The application was said to have been brought under this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (Act).
On 16 December 2016, the matter came before me for a first court date together with a number of identical applications brought by others in immigration detention. The matters were set down for hearing before me on 9 March 2017.
Prior to the hearing the applicant applied for, and obtained on 16 February 2017, an interlocutory injunction restraining the confiscation of his mobile phone pursuant to the policy referred to in the document given to the applicant on 21 November 2016.
Subsequently, proceedings were commenced by other detainees in the Federal Court of Australia (“Federal Court proceedings”) seeking, in essence, the same relief by the applicants in this Court. Shortly after the interlocutory injunction was granted by me, Rares J granted an interlocutory injunction in the Federal Court proceedings[1]. The terms of that injunction were broader than those which I had made. The relevant order, made on 19 February 2017 was:
1.The Respondents by themselves, their officers, servants or agents or otherwise be restrained, until further order, from taking any step, pursuant to the amendments of Chapter 8 of the Detention Services Manual announced on 21 November 2016 for implementation immediately after 19 February 2017, to seize mobile phones and or SIM cards from persons who are in immigration detention and who currently possess mobile phones and or SIM cards.
[1] ARJ17 v Minister for Immigration & Border Protection (NSD223/2017).
…
(Emphasis added)
Clearly, this order captures the applicant in these proceedings.
The commencement of proceedings in the Federal Court has added a certain level of complexity to these proceedings. The fact that the injunction granted by Rares J covers any applicant seeking relief in this Court, has the result that my determination of these proceedings is likely to have little or no effect in isolation. The rights of the parties will ultimately be determined in proceedings in another Court to which the applicant is not a party. Not only will those rights continue to be affected by the interlocutory injunction already granted in the Federal Court, but any determination by Rares J of the substantive issues before him will, as a decision of a Court higher in the judicial hierarchy, take precedence over any decision made in this Court.
This is reminiscent of the complexities which once arose from the bifurcation of proceedings brought about by s.476(2) of the Act, prior to its repeal and replacement by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth): see, for example, Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 658 [154]; [1999] HCA 21 (Hayne J).
Nevertheless, it remains the duty of this Court to determine the issues before it.
Jurisdiction of this Court
On 2 March 2017, Rares J heard argument from the parties in the Federal Court proceedings on the question whether that Court had jurisdiction to grant final relief in those proceedings.
His Honour was still reserved on that question when I heard this matter on 9 March 2017. The parties before me both agreed that this Court had jurisdiction, and only counsel for the Minister spent any time addressing the issue. The question of jurisdiction is the first matter which I must determine: Re Culleton (2017) 91 ALJR 302; [2017] HCA 3 at [23] (Gageler J); Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174; [2015] FCAFC 70 (Allsop CJ, Katzmann and Gleeson JJ) citing Federated Engine Drivers & Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415; [1911] HCA 31. As will be seen, that question cannot necessarily be considered in isolation of the substantive issues.
After I had reserved my decision, Rares J handed down his judgment on the question of jurisdiction: ARJ17 v Minister for Immigration & Border Protection [2017] FCA 263 (“ARJ17”). His Honour found that the Federal Court “has original jurisdiction to grant final relief to the applicant on the claims to relief in the originating application”. His Honour also granted leave to the respondents to appeal in respect of that conclusion.
The parties in these proceedings were invited to make written submissions as to the effect of his Honour’s judgment in ARJ17 on these proceedings and did so.
I am bound to apply the decision in ARJ17 to the extent that it deals with an issue in the proceedings before me: Suh v Minister for Immigration & Citizenship (2009) 175 FCR 515; [2009] FCAFC 42. Before turning to what was decided in ARJ17 and the consequences of that decision, it is necessary to briefly outline the question that arises in respect of jurisdiction.
Subject to some irrelevant matters, s.476(1) of the Act provides that this Court “has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”.
A “migration decision” is defined by s.5 of the Act to mean:
(a)a privative clause decision; or
(b)a purported privative clause decision; or
(c)a non-privative clause decision; or
(d)an AAT Act migration decision.
A “privative clause decision” is defined by s.474(2) to mean:
A decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion of not), other than a decision referred to in subsection (4) or (5).
(Emphasis added).
Section 474(1) of the Act provides:
Decisions under Act are final
(1)A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Section 474(1) was challenged in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2. Although the constitutional challenge was not successful, the decision of the High Court stripped the provision of much of its content. The Court held that, on its proper construction, s.474(1) allowed judicial review of decisions affected by jurisdictional error. The majority explained, at [76]:
Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] … made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. … Thus, if there has been jurisdictional error … the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act.
The Act was amended in direct response to that decision. Before turning to those amendments it may be noted that, at the same time the so-called privative clause in s.474(1) was inserted into the Act, this Court[2] was given the same jurisdiction as the Federal Court in relation to “matters arising under” the Act: s.483A.
[2] Then known as the Federal Magistrates Court of Australia.
Broadly speaking, the relevant amendments introduced the notion of “migration decisions” and made provision in respect of the jurisdiction of this Court by reference to that term: see [15] and [16] above. Contrary to the earlier position, this Court was (with some exceptions) given jurisdiction in respect of migration decisions, and the jurisdiction of the Federal Court in respect of migration decisions was (again, with some exceptions) revoked. Of course, the jurisdiction of the High Court could not be, and was not restricted. That left the general situation that where this Court had jurisdiction, the Federal Court did not and vice versa.
Another relevant amendment was that review of certain “migration decisions” was no longer available in this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). It will be necessary to return to the provisions of that Act in due course.
As we have seen, the “privative clause” did not work to the extent its plain words might have suggested. The response to this outcome was, in part, to add the notion of “purported privative clause decision” to those decisions which were judicially reviewable. This is the second type of decision that falls within the term “migration decision”. A “purported privative clause decision” is defined by s.5E of the Act to mean:
(1)… a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a)a failure to exercise jurisdiction; or
(b)an excess of jurisdiction;
in the making of the decision.
The third type of decision that falls within the term “migration decision” is a “non-privative clause decision”. This type of decision is a decision mentioned in s.474(4) of the Act, or specified in regulations made under ss.474(5) and 474(6).
Section 474(4) relevantly provides:
(4)For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions Item Provision Subject matter of provision … 7 section 252 Searches of persons … 14 section 273 Detention centres … (Emphasis added)
The present question arises in light of the fact that “non-privative clause decisions” are described as decisions “under a provision”. If that phrase and, in particular, the word “under” is understood in the same way as the phrase “under this Act” was construed by the High Court in Plaintiff S157/2002, then a non-privative clause decision is only a decision that is not affected by jurisdictional error. There is no purported non-privative clause decision in the Act.
In ARJ17, Rares J found that the word “decision” had the same meaning in s.474(4) as it did in the balance of s.474. That is, that it only refers to a valid decision made in accordance with the Act: see [65]. His Honour found, at [77], that the alternative construction (i.e. that “decision” included both valid and invalid decisions) was neither plausible nor textually coherent with the structure of ss.474 and 5E of the Act. The consequences of this construction were explained by Rares J in the following passages:
[84]As explained above, s 476A operates as an express restriction on this Court’s original jurisdiction “in relation to a migration decision”, including a non-privative clause decision. As the Court held in SZSSJ 90 ALJR at 912 [60]-[61], the expression “in relation to”, as used in the cognate provisions of Pt 8 such as s 476, “connect[s] the particular relief sought in a matter to a particular migration decision”.
[85]Here, the relief sought in the originating application includes injunctions against the Secretary, in respect of the new policy and its proposed or actual implementation, to prohibit the seizure of mobile phones and SIM cards from persons in immigration detention and to compel the return of phones and SIM cards that have already been seized. That relief is claimed in a matter within the meaning of s 75(v) of the Constitution, and subject to the operation of s 476A(1) of the Migration Act, is within the original jurisdiction of this Court under s 39B(1) of the Judiciary Act.
[86]However, the applicant claims to be entitled to that injunctive relief on the basis of a decision to implement the new policy that he contends was “no decision at all”, because it involved jurisdictional error, and, thus, is justiciable in this Court’s original jurisdiction by reason of each of s 39B(1) and (1A)(c) of the Judiciary Act. The Commonwealth contends, to the contrary, that the decision was a valid one, being a non-privative clause decision that ss 476(1) and 476A(1) provide is excluded from the original jurisdiction of this Court and instead is justiciable in the Federal Circuit Court at the suit of an individual.
[87]The definition of “migration decision” does not include a decision that, but for its involving or being affected by jurisdictional error, would be a non-privative clause decision. Nor does any provision of the Migration Act or any other legislation create an implication or impose a limitation on this Court’s jurisdiction to hear and determine such a claim for injunctive relief against an officer of the Commonwealth, involving such a decision that is affected by jurisdictional error: Plaintiff S157 211 CLR at 497-498 [48]-[50], 506 [76], 508 [83], 509‑510 [88]-[91]; SZSSJ 90 ALJR at 912 [60]-[62]; Shin Kobe Maru 181 CLR at 421.
[88]The fact that the Federal Circuit Court also has original jurisdiction to decide an individual (as opposed to a representative) proceeding seeking the relief that the applicant claims, on the construction at which I have arrived, is the consequence of the express distinction that the Migration Act, following the enactment of the 2005 amendments, has made between privative and purported privative clause decisions on the one hand and (valid) non-privative clause decisions on the other. The 2005 amendments did not include in the definition of “migration decision”, a decision that is, or was, not made (validly) under the Act in purported exercise of a power specified in s 474(4) and (5).
[89]The construction at which I have arrived allows a representative (and individual) proceeding to be brought in the original jurisdiction of this Court in respect of matters that are not “migration decisions” as defined. This Court is able to transfer any such proceedings if validly brought in this Court by an individual, where that is appropriate, to the Federal Circuit Court pursuant to s 32AB of the Federal Court Act. As noted earlier, there is a live issue as to whether s 32AB allows this Court to transfer a representative proceeding over which it has no jurisdiction.
The applicant in these proceedings relied on [88] of his Honour’s reasons to submit that this Court “should have no concern for its authority to consider the merits of the Applicant’s claims.” That, with respect, does not take into account the full impact of Justice Rares decision. His Honour explained, at [93]:
[93]As I have explained above, if this Court were to find in this, or any other, case challenging a decision as one not made under a provision specified in s 474(4) or (5), that the decision, in fact, was a (valid) non-privative clause decision, the proceeding will be dismissed because the Court has no jurisdiction by force of s 476(1A), and an issue estoppel will be created that the decision was valid. Then, the applicant can choose to challenge that finding on an appeal where the resolution of that appeal will also produce an order of a superior court of record that will quell the controversy as to the validity of the decision. Accordingly, even if this Court concluded that it had no jurisdiction in such a proceeding, its determination would quell finally the controversy as to the validity of a non-privative clause decision.
The consequence of his Honour’s reasoning, insofar as it concerns this Court, is that the applicant cannot succeed in his application as it is brought under the Act for the following reasons:
(i)the Court only has jurisdiction in relation to “migration decisions”;
(ii)the decision in question could only fall within the meaning of “migration decision” if it was a “non-privative clause decision”;
(iii)the decision can only be a “non-privative clause decision” if it was not affected by jurisdictional error;
(iv)as a corollary of that, if the decision was affected by jurisdictional error, the Court has no jurisdiction and the application must be dismissed; and
(v)in the alternative, if there is no jurisdictional error and the Court therefore has jurisdiction, the application must be dismissed because the sole basis of the relief sought is that there was jurisdictional error affecting the relevant decision.
The applicant did not argue that there was, for instance, non-jurisdictional error that might sound in certiorari and there was no suggestion in argument that this Court might have jurisdiction to grant such relief even if it were sought[3].
[3] See, in the context of s.75(v) of the Constitution, the comments of Callinan J in Plaintiff S157/2002 at [120] – [131]; cf. Bodruddazza v Minister for Immigration & Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14 at [61]ff.
The qualification to that conclusion is that, as submitted by the respondents, the Court has jurisdiction under s.8(2) of the ADJR Act in respect of decisions which, if they had not been affected by jurisdictional error, would have been “non-privative clause decisions”. First, that Act applies to certain decisions “under an enactment”: s.3(1). In that context, the word “under” does not exclude the review of decisions that are affected by jurisdictional error: Aged Care Standards & Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428 at [3]; [2004] HCA 843 (Branson J) citing Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561 at 566 (Morling J); [1984] FCA 220; Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 at 374 – 375; [1996] FCA 1283. “Non-privative clause decisions” are not otherwise excluded from the operation of the ADJR Act, whether they are valid (see s.476(3)) or invalid.
There is no question that the applicant is “aggrieved” by the decision in question within the meaning of s.5(1) of the ADJR Act and, as such, is entitled to bring proceedings under that Act in respect of the errors enumerated in s.5(1).
For those reasons, I conclude that this Court has jurisdiction not only under the Act insofar as the decision in question was valid, but also under the ADJR Act whether it is valid or not.
As I have mentioned, the question whether there is actually jurisdiction under the Act cannot be determined in isolation from the substantive issues. Given that the respondents raised the operation and applicability of the ADJR Act, and have not objected to the Court considering the applicant’s arguments in the framework of its provisions, I will determine the issues raised in these proceedings both by reference to the arguments framed by reference to jurisdictional error and, insofar as they are apposite to those arguments, the provisions of s.5 of the ADJR Act. I will grant leave to the applicant to amend his application to include a prayer for relief under that Act as well as an extension of the time for seeking that relief.
The substantive issues in the proceedings essentially concern matters of statutory construction; however, in order to understand how the particular questions arise, it is necessary first to consider the factual background to the dispute between the parties.
Factual background
As will be seen, a non-citizen who is in, or is attempting to enter Australia without a visa, is liable to be detained and kept in detention until, relevantly, he or she is removed from Australia.
The Minister has the power under s.273 of the Act to establish and maintain detention centres for this purpose on behalf of the Commonwealth. A number of these centres have been established around Australia. One such centre is the VIDC where the applicant is detained.
On 12 November 2014, two detainees escaped from a detention centre in Victoria (the Maribyrnong Immigration Detention Centre or MIDC). This was not the first successful escape from that centre. On 14 November 2014, Serco[4] produced a report about the escape. The report noted that shortly before the escape one of the detainees was observed on CCTV[5] talking on a mobile phone. The two escapees made their way to the external perimeter gate where people from the outside were cutting the padlock with bolt cutters. The report concluded that the escape would not have been successful without external assistance.
[4] Serco Australia Pty Limited provides services at the Australian detention centres under contract with the Commonwealth of Australia.
[5] Closed-Circuit Television.
On 1 June 2015, four detainees attempted to escape from a detention centre in Western Australia, the Yongah Hill Immigration Detention Centre (YIDC). Following this attempt, there was an assessment conducted to assess security vulnerabilities relating, amongst other things, to the “management of contraband and potential escape enabling materials.” The report noted that one of the detainees was seen speaking on a mobile phone during the escape attempt and that there was a “suspicious vehicle” parked 200 metres from the entrance of the centre which was suspected to have been the pick-up vehicle (that is, the vehicle in which the planned escapees were hoping to be driven away from the Centre). One of the recommendations made in the report was to “reconsider the policy to remove the possession and use of mobile phones across all detainee cohorts.”
In support of that recommendation the report stated:
…
The use of mobile phone devices is currently excluded to all IMA’s[6] within the detention network and continues to present an increasing problem throughout various centres. The increase in random checks, combined with the targeted or suspected room searches would be an effective step in controlling the use of these items. The current practice and agreement that possession and use of mobile phones are permitted for the s501[7] cohort and not IMAs, has the potential to threaten the security and good order of the centre. The inconsistency in allowing access to mobile phones based on detainee categorisation is emerging as a systemic issue throughout all centres in the network.
…
[6] Illegal Maritime Arrivals.
[7] That is, people whose visas had been cancelled under s.501 of the Act.
The two-tiered approach to the possession of mobile phones in immigration detention referred to in this report had been in place since 2010.
On 14 March 2015, the driver of a car outside the YIDC was seen to be talking on a mobile phone. He then got out of the car and was seen throwing an object over the perimeter fence of the centre. The package was located by an officer and, upon examination, found to contain “green leaf material wrapped in plastic.”
Following a visit to Christmas Island on 7 and 8 October 2015, the Minister requested information on the mobile phone policy within the Immigration Detention Network.
On 28 October 2015, a detainee in the Perth Immigration Detention Centre was threatened by another detainee by text and telephone.
Following a disturbance at the North West Point Immigration Detention Centre (NWPIDC) on Christmas Island in November 2015 all mobile phones were taken from detainees at that centre.
There followed a review of the policy on possession and use of mobile phones in the Immigration Detention Network (IDN). In early 2016 a minute was prepared outlining the conclusions of the review. That minute noted that serious, unmitigated risks arising from the use of mobile phones by detainees had been identified and that the risk was currently assessed as extreme. The major risks identified included the following:
· Escape;
· Use of force incidents;
· Importation of illicit substances;
· Abusive/aggressive behaviour;
· Threats to detainees;
· Contraband;
· Mobile phones being used as currency;
· Protest coordination; and
· Access to inappropriate/abhorrent/radical material.
The control measures recommended to mitigate these risks included the exclusion from the use and possession of all mobile phones from all detainees, within the IDN.
On 27 May 2016, the policy change was approved and the policy entitled “Safety and Security – Items not permitted in immigration detention facilities” issued on 1 July 2016. This policy is contained in Chapter 8 of the Procedures Advice Manual maintained by the Department of Immigration.
An implementation plan, entitled “Operation Ramentum”, was developed following the incidents at NWPIDC. This plan was approved on 17 November 2016. The approval of the plan noted that there had been a significant shift in the composition of detainees within the IDN over the past 12 months. This was due to the increased number of detainees who had been assessed as “presenting unacceptable risks to the Australian community”; that is, people whose visas had been cancelled and who, under the two-tiered policy mentioned at [41] to [42] above, would have been entitled to possess and use mobile phones while in detention.
The plan consisted of a number of stages including:
…
iv)an amnesty period of three months for detainees to hand in mobile phones to Serco
v)staggered ABF[8]-led search operations under the command of IDF[9] Superintendents, starting from 20 February 2017 using Operation Safe Centre protocols
vi)ongoing coordinated search operations in IDFs, as business as usual (authorised under section 252 of the Act).
[8] Australian Border Force.
[9] Immigration Detention Facilities.
On 21 November 2016, an announcement of the new policy concerning mobile phones and its implementation was made. One of the ways in which the announcement was made was by the distribution of a document to detainees. The relevant part of that document is set out above at [2]. The document referred to the amnesty part of the implementation plan as the “grace period” and stated that, after its expiry (that is, 20 February 2017):
… mobile phones and SIM cards will be confiscated as part of routine searches for contraband items in the facility.
As I have noted, two injunctions were in place by 20 February 2017 restraining the further implementation of Operation Ramentum. For that reason, the applicant continues to have the possession and use of his mobile phone. It is clear from the facts stated above, that unless the injunction is maintained, the applicant’s phone is likely to be taken either by an ABF-led search operation, or as part of ongoing co-ordinated searches conducted in detention centres throughout Australia including, relevantly, VIDC.
Consideration
First issue: the authority to search detainees for and retain hidden mobile phones
The applicant argues that the respondents have no authority to take his mobile phone and that to take it would amount to a trespass. He also argues that the decision to take all mobile phones was made in denial of procedural fairness.
The respondents argue that it is lawful to take the applicant’s mobile phone by virtue of ss.5, 189, 196, 252-252G, 256 and 273 of the Act and that there was no denial of procedural fairness.
As the obligation to afford procedural fairness will only be relevant if the Act provides authority for the taking of the mobile phone, it is convenient to deal with the issue of authority first.
This issue raises the proper construction of a number of provisions of the Act. It goes now, without saying, that the search for the meaning of any word must have regard to its context, which means not only other provisions in the Act, but also the mischief which the legislation was intended to address: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
The object of the Act is to “regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s.4(1). Section 4(2) provides that “to advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.”
From the outset then, the Act sets visas as the central means of achieving its aim. It is not surprising, in that context, that there are detailed and stringent provisions in the Act and Migration Regulations 1994 (Cth) concerning the grant of visas, the rights which they give to their holders, the cancellation of visas, and the consequences of a non-citizen being in, or attempting to enter Australia without a visa.
Part 2 of the Act contains the critical provisions for the purposes of these proceedings. It deals with the arrival, presence and departure of non-citizens from Australia.
Division 7 of Pt.2 deals with the detention of unlawful non-citizens. That Division includes the obligation of an officer to detain a person if he or she “knows or reasonably suspects that a person … is an unlawful non-citizen”. That is, a non-citizen who does not hold a visa that is in effect: s.189(1).
“Detain” is defined in s.5(1) to mean:
(a)take into immigration detention; or
(b)keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
Section 196(1) provides that an unlawful non-citizen detained under s.189 must be kept in immigration detention until he or she is removed from Australia, is deported, granted a visa or in the case of a person who arrived by boat without a visa; is taken to a regional processing country.
The Minister is empowered by s.273(1) to cause detention centres to be established and maintained on behalf of the Commonwealth. A detention centre is a centre for the detention of persons whose detention is authorised under the Act.
Division 13 of Pt.2 provides for powers of examination, search, detention and identification. The respondents rely on one of the provisions in that Division for authority to take the applicant’s mobile phone, s.252. That section relevantly provides:
Searches of persons
(1)For the purposes set out in subsection (2), a person, and the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched if:
(a)the person is detained in Australia; or
(b)the person is a non-citizen who has not been immigration cleared and an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa.
(2)The purposes for which a person, and the person’s clothing and any property under the immediate control of the person, may be searched under this section are as follows:
(a)to find out whether there is hidden on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention;
(b)to find out whether there is hidden on the person, in the clothing or in the property, a document or other thing that is, or may be, evidence for grounds for cancelling the person’s visa.
…
(4)If, in the course or a search under this section, a weapon or other thing referred to in paragraph (2)(a), or a document or other thing referred to in paragraph (2)(b), is found, an authorised officer:
(a)may take possession of the weapon, document or other thing; and
(b)may retain the weapon, document or other thing for such time as he or she thinks necessary for the purposes of this Act.
…
The respondents argue that this provision relevantly empowers an authorised officer[10] to do two things. First, it empowers the authorised officer to search the person, clothing and property of a person in immigration detention to find out whether there is hidden on his or her person, in his or her clothing or in his or her property a “thing capable of being used to … help the person to escape from immigration detention”. Secondly, it empowers the authorised officer to take possession of and retain anything so found.
[10] An officer authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner: s.5(1).
The applicant argued that there were several reasons why s.252 did not authorise what was proposed by the document given to him on 21 November 2016.
First, he says that the document proposed the confiscation of a thing and not a search of the applicant or his property.
Secondly, the applicant points to the fact that nothing in the document referred to a search for a “hidden” thing in order to “find out” if the thing was hidden on the applicant.
Thirdly, he argued that nothing in the notice conformed to the requirement to find out if there was a hidden thing with the character of being “a thing … to help the person escape from immigration detention”. The argument was that the words “capable of being used” in sub-s.252(2)(a) applied only to “inflict bodily injury” and not to “escape from immigration detention”. For that reason, he said, unless his mobile phone was immediately being used for the purpose of assisting him to escape detention, it did not fall within the category of things that may be searched for, simply because it is “theoretically possible to be used for that purpose or because other detainees have used phones for that purpose”.
Fourthly, the words “without warrant” in s.252(1) suggest that the provision only enabled what could otherwise be done with a warrant. In this respect, the applicant relied on authorities concerning search warrants, the effect of which was that search and seizure was only permitted in order to yield evidence in connection with the commission of an offence including George v Rockett (1990) 170 CLR 104; [1990] HCA 26; Gollan v Nugent (1988) 166 CLR 18; [1988] HCA 59 and State of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32.
The applicant argued that, the abrogation by statute of a fundamental right, such as the possession of property, required clear words and does not arise by implication: Coco v R (1994) 179 CLR 427; [1994] HCA 15 at 437-438. Further, the immediate context of s.252 required a narrow reading of that provision. That context, the applicant argued, was the escalation from the search of clothes and other things under s.252 to a strip search under s.252A.
Section 252A relevantly provides:
Power to conduct a strip search
(1)A strip search of a detainee…may be conducted by an authorised officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used:
(a)to inflict bodily injury; or
(b)to help the detainee, or any other detainee, to escape from immigration detention.
…
Section 252B provides rules for strip searches conducted under s.252A and s.252C makes provision in relation to items found in a strip search. It relevantly provides:
Possession and retention of certain things obtained during a screening procedure or strip search
(1)An authorised officer may take possession of and retain a thing found in the course of conducting…a strip search under section 252A if the thing:
(a)might provide evidence of the commission of an offence against this Act; or
(b)is forfeited or forfeitable to the Commonwealth.
(2)A weapon or other thing described in subsection…252A(1) that is found in the course of conducting a…strip search under section 252A is forfeited to the Commonwealth.
…
The applicant argued that things found during a strip search may be retained for the purposes specified in s.252C. That is because it “might provide evidence of the commission of an offence” or is “forfeited or forfeitable”. His argument was, that because it would be absurd that a weapon found during a strip search is forfeited under s.252C(2) but can only be “retained” if found during a search under s.252(1), it followed that items retained under s.252(4) “for the purposes of the Act” had to be returned unless they were to be used in evidence or would need to be retained under an order acting like a warrant: see ss.252D, 252E.
The applicant relied on the legislative history of ss.252A to 252G in support of his argument. Those provisions were introduced by operation of the Migration Legislation Amendment (Immigration Detainees) Act (No.2) 2001 (Cth), No.105, 2001. That was shortly after, and in aid of, the introduction of ss.197A and 197B[11] which provide that it is an offence for a detainee to escape from immigration detention or to manufacture, possess, use or distribute a weapon. The applicant argued that this history suggested that the powers of search and retention were conditional on their being restricted to an investigation in connection with the commission of an offence.
[11] Introduced by the Migration Legislation Amendment (Immigration Detainees) Act 2001 (Cth), No.85, 2001
The applicant’s arguments pay insufficient attention to the plain words of s.252 and the context in which they appear. Further, they give unsupported emphasis and meaning to the words “without warrant” in s.252(1).
Before turning to the words of the provision, it is important to note a few matters about its context. First, at a general level, it forms part of the means by which the presence of non-citizens in Australia is regulated. Secondly, and more particularly, it concerns people who, not having a visa, are liable to be detained until they are either granted a visa or are removed, one way or another, from Australia. As already seen, the meaning of “detain” includes taking such action and using such force as are reasonably necessary to keep a person in immigration detention.
Seen in that context, there is no reason to construe s.252 so that it applies only as part of an investigation into the commission or probable commission of an offence. The obligation on officers to detain people they know, or reasonably suspect are unlawful non-citizens, includes the obligation to keep those people in detention until they can be removed from Australia or granted a visa. The purpose of the power to search for items that may have some utility in an escape from detention is to facilitate that continued detention. The fact that escaping from detention and possessing weapons are offences does not affect that purpose. Section 252 was introduced well before the introduction of those offences[12] .
[12] Section 252 was first introduced to the Act as s.37A by s.18 of the Migration Legislation Act 1989 (Cth), No.59, 1989.
Similarly, the fact that there are other powers relating to search and seizure (ss.252A and 252C) does not affect the proper construction of s.252. Not only were they introduced later, but when they were introduced s.252(9) was also introduced. That subsection provides:
(9)To avoid doubt, a search of a person may be conducted under this section irrespective of whether a … strip search of the person is conducted under section 252A.
That suggests that the more extensive and invasive power in s.252A was intended to operate distinctly from, rather than as a substitute for, the power in s.252.
Turning then, to the text of s.252, the first matter of note is that there are two general qualifications to the power of search. First, the search must be for the purposes set out in s.252(1); and secondly, that the person to be searched must either be in detention (sub-s.252(1)(a)), or be a “non-citizen who has not been immigration cleared and an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa” (sub-s.252(1)(b)). Of course, if a person’s visa is cancelled he or she becomes an unlawful non-citizen and must be detained under s.189. In that way, both of the limbs in the second qualification identify the immediate purpose of the power as an aid to the detention of unlawful non-citizens (bearing in mind the expansive meaning of “detention”).
The purposes referred to in s.252(2) are to find out whether there are certain items “hidden on the person, in the clothing or in the property” being searched. There are two broad categories of items, each one relating to one of the types of persons who can be searched. The first is “a weapon or other thing capable of being used to inflict bodily injury” or “to help the person to escape from immigration detention.” The applicant’s construction of this phrase must be rejected. He suggested that the words “capable of being used” only qualify the phrase “to inflict bodily injury” and not the phrase “to help the person escape from immigration detention.” That would make no grammatical sense. It requires the word “capable” to be divorced from the word which it qualifies, namely, “thing”. It also overlooks the distributive function of the word “or”. The ordinary grammatical meaning of the whole paragraph is that the thing to be searched for is:
a)a weapon; or
b)other thing capable of being used:
(i)to inflict bodily injury; or
(ii)to help the person escape from immigration detention.
The same sense is achieved in the more recently drafted s.252A(1): see [74] above.
Understood in this way, the first category of items captures things by reference to the way in which they may be used, not the way in which they are presently being used, have in the past been used, or are intended in the future to be used.
The second category of items to be searched for is a document or other thing that is, or may be, evidence for grounds of cancelling a person’s visa.
The express inclusion of these purposes means that the words “without warrant” do not import any other, overarching purpose for the search. Those words simply mean what they say, that is, that there is no need for a warrant to be obtained in order for there to be authority for a search within the express parameters of s.252(1). There is nothing in the text, context or purpose of the provision or the Act as a whole that supports any construction other than the ordinary grammatical meaning of the words.
The same conclusion applies to s.252(4). The ordinary meaning of that provision is that an authorised officer who finds any of the things mentioned in sub-ss.252(2)(a) or (b) in a search under s.252(1) may take possession of those things and retain it “for such time as he or she thinks necessary for the purposes of this Act.”
Contrary to the applicant’s submission, the “purposes of this Act” are not limited by the operation of s.252C. There, retention by an authorised officer is expressly qualified by ss.252C(3), (4) and (5). Section 252C(3) requires the officer to give a forfeited item (within the meaning of s.252C(2)) to a constable. Section 252C(4) (which is qualified by s.252C(5) in terms which it is not necessary to consider) provides:
(4)An authorised officer must take reasonable steps to return any other thing retained under subsection (1) to the person from whom it was taken, or to the owner if that person is not entitled to possess it, if one of the following happens:
(a)it is decided that the thing is not to be used in evidence;
(b)the period of 60 days after the authorised officer takes possession of the thing ends.
There is no similar qualification to the retention under s.252(4).
The “purposes of this Act” referred to in s.252(4) are not limited by qualifications in any other provision. In the context discussed above, the purposes include the continued detention of unlawful non-citizens until the grant of a visa or removal from Australia.
Section 252 relevantly authorises a person, his or her clothes and other items in the person’s immediate possession to be searched in order to find whether certain items are hidden in those places. If any of those items is found, s.252(4) authorises them to be taken and retained for as long as the authorised officer thinks it is necessary for the purposes of the Act, including the continued detention of unlawful non-citizens. That may or may not abrogate the fundamental rights of the person in question, but that is the effect of the clear words of the Act.
It was not contested that mobile phones are capable of helping a person escape from detention, and in light of the evidence before the Court, there could be no other conclusion.
For those reasons, s.252 authorises the search of detainees, their clothes and other property in their immediate possession by authorised officers to find out if there are hidden mobile phones and the retention of any mobile phones found.
As I have noted, the applicant argued that the notice given to him in November 2016 did not, on its face, engage this provision. First, the notice proposed the confiscation of a thing and not a search of the applicant or his property; and secondly, nothing in the notice referred to a search for a “hidden” thing in order to “find out” if the thing was hidden on the applicant.
The document given to the applicant was part of the implementation of the policy concerning mobile phones in detention. While it gave an indication of what was to occur, given its limited purpose of informing detainees what was to happen rather than explaining the legal basis for it, the absence of any reference to the particular requirements of a search under s.252 has little, if any consequence. More importantly, the notice did state that:
… mobile phones and SIM cards will be confiscated as part of routine searches for contraband items in the facility.
(Emphasis added)
In any event, the implementation plan was expressly stated to include the two following steps:
…
v)staggered ABF-led search operations under the command of IDF Superintendents starting from 20 February 2017 using Operation Safe Centre protocols;
vi)ongoing coordinated search operations in IDFs, as business as usual (authorised under section 252 of the Act).
There is no doubt in light of that statement that the intention was (and remains) to conduct searches under s.252 of the Act.
The respondents also argued that authority to take and retain mobile phones from unlawful non-citizens in immigration detention arose by implication from the Minister’s power under s.273 to cause detention centres to be “established and maintained”. They argued that that power carries with it an obligation to “maintain” the order and security of the staff and detainees at any centre.
I accept that argument. The authority in s.273 is given in aid of the obligation of “officers” to detain unlawful non-citizens. The definition of “detain” in s.5 of the Act, as already noted, includes the taking of any action and the use of such force as is reasonably necessary to keep a person in detention. The evidence here establishes that possession of mobile phones in detention has the potential to assist in the escape from detention as well as to cause harm to detainees. That would be inconsistent with the purpose of the detention provisions in the Act, including ss.5 and 273. For that reason, it is within the scope of those provisions to take and retain mobile phones found in the possession of detainees.
The applicant argued that s.273(2) stood in the way of the respondents’ argument. That sub-section provides that the Regulations may make provision in relation to the operation and regulation of detention centres. The argument was that the effect of this was that any regulation of conduct within detention centres had to be done by way of Regulation.
The argument relied on the decision in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 (“Anthony Hordern”) where the majority said, at 7:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
The principle in Anthony Hordern was discussed in some detail by Gummow J and Hayne J in Minister for Immigration & Multicultural & Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [52]-[59] (“Nystrom”). Their Honours concluded, at [59]:
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power” or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
(Citations omitted)
Section 273 is entirely different to the cases considered in Nystrom including Anthony Hordern itself. Section 273(2) does not, in my view, support the conclusion that there is only one power to regulate conduct in detention centres. The power in s.273(1) to “maintain” carries with it a broad power to do just that. The power to make regulations under s.273(2) creates the ability to make other, more specific, provisions in connection with detention centres; however, that does not mean that it is the only power. If that were the case then, unless and until such regulations are made, there is no power at all to regulate detention centres.
Second issue: denial of procedural fairness
The applicant argued that the decision to take his mobile phone directly affected his rights and interests, and so ought not to have been made, without affording him an opportunity to explain why his mobile phone should not be taken. He also argued that he was entitled to expect that, before any such decision was made, Australia’s international obligations would be considered by the relevant decision-maker. Those obligations were:
·Freedom from arbitrary arrest and detention[13];
·Interference with the right to challenge detention[14];
·Rights to dignity and humane treatment while detained[15];
·Rights against arbitrary or unlawful interference with privacy, family and correspondence[16];
·Freedom of expression[17] and association[18]; and
·Protection of the family[19].
[13] International Covenant on Civil and Political Rights (“ICCPR”), Art.9(1).
[14] ICCPR, Art.9(4).
[15] ICCPR, Art.10(1).
[16] ICCPR, Art.17(1).
[17] ICCPR, Art.19(2).
[18] ICCPR, Art.19(2).
[19] ICCPR, Art.22(1).
The applicant says that the evidence relied on by the respondents demonstrated that there was no consideration of those matters. The immediate difficulty with that submission is that whether or not there was consideration of Australia’s international obligations was never put in issue on the pleadings. In light of that, no inference should be drawn from the absence of reference to that matter in the respondents’ evidence.
In any event, there are two other fundamental reasons for which this particular should fail.
First, it is not clear how the retention of any mobile phone found as a result of a search under s.252 would be inconsistent with any of Australia’s international obligations, let alone the ones identified at [98] above. Thus, any expectation that Australia would adhere to those obligations would be unaffected by a decision to take mobile phones during such a search.
Secondly, the argument appears to be based on the notion that the obligation to afford procedural fairness arises from the existence of a “legitimate expectation”. That notion no longer has any relevance in determining the existence of an obligation to afford procedural fairness. That conclusion was forcefully re-stated by Kiefel J, Bell J and Keane J in Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [30]:
…
The “legitimate expectation” of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.
The issue, then, must be resolved by reference to the statutory and factual context in which it arises.
The “decision” in question is, in fact, the formulation of a policy that is intended to be implemented at the time of searches conducted under s.252 of the Act. The applicant did not argue that it would be impermissible for that policy to be implemented as envisaged for any reason other than the grounds considered here.
The question whether a person exercising statutory powers can be not only guided by policy but also dictated by it, depends on a variety of circumstances including the particular statutory function, the nature of the question to be decided, the character of the decision-maker and the way in which the statutory provisions bear upon the relationship between the decision-maker and the responsible Minister: CPCF v Minister for Immigration & Border Protection (2015) 255 CLR 514; [2015] HCA 1 at 537 [37] (French CJ) and the authorities cited there.
The purpose and statutory context of the power under s.252, coupled with the fact that the power under it is to be exercised by an “authorised officer”, strongly supports the view that the implementation of such a general policy is legitimate. As discussed above, the obligation to detain unlawful non-citizens is not only applicable to all unlawful non-citizens but is a continuing one. That highlights the necessity to maintain the integrity of any detention centre established and maintained by the Minister on behalf of the Commonwealth, and to take all reasonable steps to ensure as far as possible that detainees neither escape nor harm each other.
An “authorised officer” for the purposes of s.252 is an officer authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision: s 5. This creates a direct line of authority from the Minister, Secretary and Commissioner to the officers conducting the search.
Further, with the exception of sub-s.252(1)(b), the powers in s.252 do not, in their terms, depend upon the exercise of a discretion based on a personal assessment by the authorised officer.
Given the nature of the search power in s.252, the obligation to detain, and the identity of the officers who undertake searches under s.252, there is little difficulty in accepting that the conduct of those searches can legally be subject to a general policy such as the one formulated in respect of the possession of mobile phones in immigration detention.
The nature of the particular decision bears directly on the question of procedural fairness. The applicant’s argument focused on the proposition that the decision directly affected his rights and interests. He relied for that proposition on the well-known passage in the judgment of Mason J in Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at 584. However, his Honour explained that duty to afford procedural fairness does not attach to every decision of an administrative character:
…
Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
“… which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and is not subject to judicial review.”
(Salemi [No. 2] (1977) 137 CLR 396 at 452 (Jacobs J))
That passage supports the general proposition that where a single decision directly affects a large group of persons, procedural fairness does not normally require that each person be afforded a hearing: see Aronson, Groves and Weeks, Judicial Review of Administrative Action & Government Liability (Thomson Reuters (Professional) Australia Limited, 6th ed, 2017) 7.170, and the cases referred to in footnote 200.
That proposition applies to the facts of this case. As a consequence, there was no obligation to allow the applicant any opportunity to be heard in connection with the formulation of the policy.
For those reasons, there has been no denial of procedural fairness.
Conclusion
The decision that all mobile phones found during searches conducted under s.252 are to be taken and retained by authorised officers was authorised by the Act and was not made in denial of procedural fairness. For that reason, it was made “under” ss.252 or 273 and so was a “non-privative clause decision”. For that reason, this Court has jurisdiction in relation to that decision under s.476 of the Act.
As the decision was not affected by either any jurisdictional error or by any error identified in s.5 of the ADJR Act, the application must be dismissed. As a consequence, the interlocutory injunction granted on 17 February 2017 will be dissolved.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 3 May 2017
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