Thoms v Commonwealth of Australia
[2022] HCATrans 24
[2022] HCATrans 024
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B56 of 2021
B e t w e e n -
BRENDAN CRAIG THOMS
Applicant
and
COMMONWEALTH OF AUSTRALIA
Respondent
KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 9 MARCH 2022, AT 10.06 AM
Copyright in the High Court of Australia
MR S. J. KEIM, SC: May it please the Court, I appear with my learned juniors, MS K.E. SLACK and MR A.J. HARTNETT, for the applicant. (instructed by Maurice Blackburn Lawyers)
MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth: May it please your Honours, I appear with my learned friends, MR S.B. LLOYD, SC and MR C.J. TRAN, for the respondent. (instructed by Australian Government Solicitor)
KIEFEL CJ: Yes, Mr Keim.
MR KEIM: Resolution of the question before the Court - was the detention of the applicant between 28 September 2018 and 11 February 2020 unlawful - comes down to whether the reading or disapplication proposed by the Commonwealth should or should not be accepted. The applicant contends that the Commonwealth’s approach is not supported by principle and involves an impermissible rewriting of section 189 of the Migration Act rather than a disapplication.
The rather unusual approach of the Commonwealth appears to be derived from an attempt to save as lawful actions taken by its officers, an attempt that finds, in the case of the applicant, no support in the words of section 189, nor constitutional support in section 51(xix) of the Constitution.
Our oral submissions will focus mainly on why a reasonable suspicion, purportedly formed under section 189, is simply irrelevant to provide lawful authority or any obligation to detain Mr Thoms. This will involve responding to some of the submissions made by the Commonwealth in respect of AJL20.
In addition, however, we will address the Commonwealth’s submissions that this Court’s decision in Ruddock v Taylor somehow directs or guides the Court as to the manner in which section 189 should be disapplied in the present case. Both the applicant and the respondent agree that some disapplication of section 189 is required.
The consequence of this Court’s decision in Love was foreshadowed by Justice Gaudron in Re Patterson, which is in the joint book of authorities at pages 1712 to 1713, at paragraph 50. It is at pages 412 to 413 of 207 in the Commonwealth Law Reports. Here, her Honour said the provisions of the Act providing for detention and removal of a person in Mr Taylor’s position, that is, at that time, a non‑alien, have no valid application.
The Commonwealth points out in its submissions at paragraph 7 that the Migration Act has, since 2 April 1984, despite seeking to draw support for its validity from section 51(xix) of the Constitution, not used the term “alien” in its text, with the relevant exceptions in the long title. The legislative design relies on using “unlawful non-citizen” as a proxy for “alien” under the Constitution. This works sufficiently well in all of those cases where the term “unlawful non-citizen” does indeed operate as an accurate synonym for “alien”.
In Mr Thoms’ case, however, the term “unlawful non‑citizen”, which correctly describes him, has no relevance to his ability to remain in his own country, and has no relevance to any power on the part of the Commonwealth to remove him therefrom or to detain him for that purpose. It follows that a reasonable suspicion on the part of an officer that Mr Thoms is an unlawful non‑citizen – the only reasonable suspicion for which section 189 provides – is equally of no relevance.
EDELMAN J: Mr Keim, does that submission mean that if a person such as Mr Patterson, on Justice Gaudron’s approach, were to arrive in Australia with no passport, no documentation – perhaps on a vessel with many other unlawful non‑citizens – there could never be a reasonable suspicion that Mr Patterson was an alien?
MR KEIM: The point that we are making, your Honour, is not that you could not have a reasonable suspicion that he is an alien, it is just that section 189 does not ask the officer to form that opinion. So, if in fact the section was amended to say that an officer can take certain actions on the basis that the officer suspects the person to be an unlawful non‑citizen – and suspects the person not to be a person who came to Australia before 1985 – then the officer would be allowed to form that opinion, and on that basis – you are really asking me in the situation in Re Patterson – it is probably in the situation – it applies better to the present case if the section was amended to read “and also suspects that the person is not an Aboriginal Australian who satisfies the tripartite test”.
In those circumstances, the officer could go through the normal processes to determine who the person is – the normal immigration clearance circumstances – and is then authorised to form an opinion that the person is an unlawful non‑citizen and is not a person who satisfies the tripartite test.
So, the short answer for your Honour’s question is, it is about the way in which the Act is written – section 189 is written – and the disapplication that Love requires in those circumstances, rather than the Constitution ability to provide for officers to exercise immigration control with regard to persons who are unlawful citizens and may also not be indigenous Australians.
EDELMAN J: But you would accept, would you not, that the approach required by section 15A of the Acts Interpretation Act would require disapplication to the minimum degree possible to preserve the validity of the legislation?
MR KEIM: Yes, without offending the principles that one might call the Wentworth Securities principle – except they are nothing like what Lord Diplock said. They were stated in Taylor v Owners ‑ Strata Plan 11564. We come to this, your Honour, because our learned friends purport to rely upon what your Honour said in Clubb v Edwards where your Honour discussed not the disapplication issue, but the alternative reading down issue of reading words into that section of the Act that was under consideration there. Your Honour found that that was impermissible because it was in breach – because it added something that was too much to the section.
We will come later to what we say is the way in which our learned friends seek to rewrite section 189, and we say that that offends those principles as well.
KIEFEL CJ: Mr Keim, is the starting point the construction of section 189 which requires reference to what was said in Ruddock v Taylor as to its purpose and intended operation?
MR KEIM: The starting and ending point are the words of section 189, your Honour.
KIEFEL CJ: It is just that you are starting by disapplying it without really discussing it.
MR KEIM: Discussing section 189?
KIEFEL CJ: The terms of section 189 – its purpose – which might assist with characterisation – and its intended operation which requires reference to Ruddock v Taylor.
MR KEIM: We start with the text, your Honour, which says that an officer is authorised and required to detain upon the officer forming a reasonable – knowing or forming a reasonable suspicion that the person is an unlawful non‑citizen. We do not cavil with the fact that that purpose is to detain unlawful non‑citizens because in most cases unlawful non‑citizens are aliens.
KIEFEL CJ: The purpose might extend to non‑aliens.
MR KEIM: What we say is, your Honour, it does not extend to somebody in Mr Thoms’ case because the words do not comprehend Mr Thoms because it is not supported by section 51(xix).
KIEFEL CJ: What did Ruddock v Taylor have to say about this?
MR KEIM: Ruddock v Taylor said that the constitutional question was not relied upon by the parties in that case. What Ruddock v Taylor decided in the end was that Re Patterson remained good law so far as it related to the administrative law grounds for disqualification of the visa. Ruddock v Taylor was decided on the basis that an officer’s suspicion that Mr Taylor could be an unlawful non‑citizen did not cease to be reasonable in circumstances where – unbeknownst to the officer – the visa still existed – that is, the officer formed a reasonable suspicion on the basis of the cancellation. The cancellation was…..ab initio and, on that basis – what the Court said was that that did not stop the suspicion from being reasonable. We will come specifically to Ruddock v Taylor in due course.
KIEFEL CJ: I will not take you out of your order then.
MR KEIM: Thank you, your Honour.
GAGELER J: I would be assisted in knowing now whether the position of Mr Thoms is relevantly distinguishable from the position of Mr Taylor.
MR KEIM: It is, your Honour, because Mr Taylor was an alien and Mr Thoms is not.
GORDON J: Can I raise a direct question with you about that submission you have just given in answer to – the answer just given to Justice Gageler? If you come back to the text of 189 and one focuses upon the words of 189 and, as I understand it, you accept what was said in Ruddock v Taylor, AJL20 – I know you are going to come to it – but, also, in Makasa last year by this Court about what is reasonable suspicion.
MR KEIM: Yes, your Honour.
GORDON J: One is looking at a set of objective facts at the time of detention.
MR KEIM: Yes, your Honour.
GORDON J: That is what you have to grapple with.
MR KEIM: We say not, your Honour.
GORDON J: Why is that?
MR KEIM: Because there is no issue here as to whether the suspicion was reasonable. The issue here is that the suspicion which was formed is irrelevant to Mr Thoms’ situation because section 189 is not supported in his case because he is not an alien and section 189 is obiter.
GORDON J: That is not the question posed by section 189. The question posed is whether or not an officer knows or has a reasonable suspicion about the things identified in section 189, and then it has to be read with, as I understand at least one argument, consistent with the way in which it was put in Ruddock, the way in which it has been put in other cases with section 196(2). It is the question posed by the section.
MR KEIM: Is whether the person is an unlawful ‑ ‑ ‑
GORDON J: No, whether the officer has a reasonable suspicion that the person is.
MR KEIM: An unlawful non‑citizen.
GORDON J: That is the question.
MR KEIM: Yes, your Honour, and the answer to that is that the suspicion was reasonable.
GORDON J: Well, is not that the end of it then for you?
MR KEIM: My client is an unlawful non‑citizen, but section 189 is not supported by section 51(xix) so far as it relates to Mr Thoms. That is why the question of disapplication arises, just as in the Newcastle Shipping Case those regulations which were purported to apply to intrastate shipping simply did not operate in the same way in R v Hughes. The power of the Commonwealth Director of Public Prosecutions to prosecute did not operate in those circumstances where the details of the offence did not raise a constitutionally supported power.
STEWARD J: Could I ask, just to assist me – you do not deny that section 189 is authorised by 51(xix)?
MR KEIM: We say it is authorised by 51(xix) except in the case of Aboriginal Australians who satisfy the tripartite test.
STEWARD J: Leaving aside those individuals, do you accept that it permits an officer to detain someone who is reasonably suspected of being an unlawful non‑citizen who subsequently is discovered to be, in fact, a non‑alien.
MR KEIM: No, your Honour, because it only operates where “unlawful non‑citizen” is an accurate synonym or proxy for “alien”. It does not ask the officer to form a reasonable opinion as to whether the person is an alien.
STEWARD J: So, do you say the premise of the provision is flawed?
MR KEIM: Yes. Yes, we say it is not flawed in almost every case, but in this case it receives no constitutional support.
EDELMAN J: Well, the extent to which it is flawed may depend upon the extent of the so‑called Pochi limit because, as I understand your submission, it is not just Aboriginal Australians, it is any person who is constitutionally a non‑alien would not be reached by section 189.
MR KEIM: Yes, your Honour. Yes.
KEANE J: So, a person who – an Australian citizen who does not have a passport presents at the entry point and is reasonably suspected of not being an Australian citizen cannot be detained under 189 validly, even though there is a perfectly reasonable suspicion that the person is not an Australian citizen and is therefore an alien.
MR KEIM: Assuming that citizenship amounts to naturalisation – I understand your Honours have a question to that effect before the Court in Alexander ‑ ‑ ‑
KEANE J: No, just take the facts. Someone turns up at the border who cannot prove that he or she is an Australian citizen, can a reasonable suspicion not be formed that the person is not an Australian citizen?
MR KEIM: That is not the question that asked by section ‑ ‑ ‑
KEANE J: No, no, I know it is not the question in this case, but we are testing your proposition as to the operation of section 189, and what seems to be a problem with your proposition is that it does not recognise that 189 is concerned with the process of reception and assessment of people who may or may not be unlawful non‑citizens.
MR KEIM: Yes, your Honour, but if I can just say by way of side comment, that this is not a border case.
GORDON J: This is not a what, sorry? I cannot hear.
MR KEIM: A border case, but in Air Caledonie, the idea of immigration clearance for Australian citizens was, or at least the tax for that purpose, was found to be supported by the Constitution. So we are not suggesting that officials cannot go through a process at the border of asking questions and seeking proof. But the way in which section 189 is written is not designed to deal with anybody who is not an alien, and it must be read down in the case of aliens so that a person cannot be detained simply on the basis that there is a reasonable suspicion that the person is an unlawful non‑citizen.
So, the answer to your Honour’s question is yes, if an Australian citizen, non‑alien, turned up without any proof, section 189 is not designed and is not supported by the Constitution to detain that person. But that is a matter that ‑ ‑ ‑
GAGELER J: All of this would be resolved, would it not, if the definition of “unlawful non‑citizen” in section 14(1) of the Act is read down to exclude a person who satisfies the tripartite test identified in Love? That would be the end of the matter, would it not?
MR KEIM: The way we have approached it, your Honour, is that one generally does not read down definitions, one rather reads down the operative provisions, but the answer to your Honour’s question is yes.
GAGELER J: Thank you.
MR KEIM: Alternatively, you just simply amend section 189 to deal with the case of Mr Thoms and other people who meet the tripartite test.
GAGELER J: Well, we are dealing with section 189 in this case. But there are plenty of other references in the Act to unlawful non‑citizens.
MR KEIM: Yes, yes. But we are taking on board what this Court said in Ruddock v Taylor, and our learned friends make the same submission that it is a bit difficult to say every section in the Act is or is not valid with regard to a particular application, whereas it is much easier – I mean, the Court in Ruddock said, well, just because the Court in Patterson found that section 501 was invalid you cannot say they found that section 189 was invalid, so we are just a little bit wary about approaching the disapplication process by reading down a definition which then may have unintended effects with regard to other sections of the Act.
KIEFEL CJ: But you are not really reading down a definition, are you?
MR KEIM: We are not seeking to, your Honour.
KIEFEL CJ: As I understand it, what you would be saying is, section 189 in its application is, in its application – does not apply to a person who satisfies the test settled by a majority of this Court in Love and Thoms.
MR KEIM: Yes, your Honour. We are saying that section 189 ‑ ‑ ‑
KIEFEL CJ: It would follow from that that but for the decision in Love and Thoms, section 189 would apply.
MR KEIM: Yes, absolutely.
KIEFEL CJ: The question must come down to whether or not the officer had reasonable grounds, prior to the decision in Love and Thoms, for detaining the person.
MR KEIM: No, your Honour.
KIEFEL CJ: Well, I must be missing something in my understanding of logic.
MR KEIM: It is about disapplication, and it is about the terms of section 189. We say that the officer – there is nothing wrong with the officer’s suspicion that Mr Thoms was an unlawful non‑citizen, and that is the opinion that the Act asked the officer to form.
KIEFEL CJ: Is that regardless of whether or not it is a question of law or fact?
MR KEIM: Yes.
KIEFEL CJ: You concede that now? You did not in your written submissions. You accept that there is no distinction drawn on the question of reasonableness as to whether it is a matter of law or fact?
MR KEIM: No, and Ruddock v Taylor is ‑ ‑ ‑
KIEFEL CJ: Holds that to be the case.
MR KEIM: Ruddock v Taylor is authority for that, yes.
KIEFEL CJ: Yes, very well, we are getting somewhere.
MR KEIM: Only, in Re Patterson, Justice Kirby expresses doubt about whether one could have a reasonable suspicion which involves an error with regard to ‑ ‑ ‑
KIEFEL CJ: But Ruddock v Taylor puts that to rest.
MR KEIM: Ruddock v Taylor does not address it in terms of an error of law with regard to the construction or the effect of the Constitution because the question of law which was considered in Ruddock v Taylor was the validity of the visa. That was the mistake of law that the officer made.
GORDON J: I think you are going to have to address on that aspect, are you not, paragraphs 38 and following of Ruddock v Taylor, because it talks about mistakes of law and identifies why you would not draw a distinction?
KIEFEL CJ: It is about the test of reasonableness arising from an understanding of the section and its purpose.
MR KEIM: Yes, your Honour. We say that the purpose of section 189 does not take it anywhere because the words of section 189 are clear – the text is very clear. It says a reasonable suspicion that a person is an unlawful non‑citizen. That has no effect with regard to Mr Thoms. He is an unlawful non‑citizen but the section is not supported with regard to him. That is the disapplication that is required.
GORDON J: But that is not the question. The question is, at the time he was taken into detention, you accept that there was reasonable suspicion – on established facts – giving rise to reasonable suspicion on part of the officer for him to be detained. You accept that.
MR KEIM: No, your Honour.
GORDON J: I thought that is what ‑ ‑ ‑
MR KEIM: No, your Honour. There is a tiny distinction that I make with regard to what you say. Your Honour expressed it in terms of reasonable suspicion for him to be detained.
GORDON J: Established facts giving rise to reasonable suspicion.
MR KEIM: Except all of that, in respect of the words of section 189 – which are that he was an unlawful non‑citizen. We say that does not and never did give a proper basis for him to be detained because in his case that reasonable suspicion is not supported by the Constitution.
GORDON J: Okay, stop. I accept that.
MR KEIM: Yes.
GORDON J: The point was, on your analysis at least, that was because of a mistake about the law. That is, as I understand your argument, what you are saying is he was mistaken as to the law at that time and that is what Ruddock v Taylor addressed.
MR KEIM: Whether he was mistaken as regard to the law or the facts is of no moment. It is whether his detention was supported by section 51(xix) where the reasonable suspicion goes to his being an unlawful non‑citizen. In his case a reasonable suspicion to detain him on the basis that he is an unlawful non‑citizen is not supported by section 51(xix). We are not saying the officer’s opinion was unreasonable. We are saying that the officer’s suspicion is irrelevant to the ability to detain Mr Thoms because there is no constitutional basis to detain him on the basis that he is an unlawful non‑citizen.
GLEESON J: Mr Keim, are you saying that it would have been sufficient in this case if the officer had found a reasonable suspicion or had formed a reasonable suspicion that Mr Thoms was an alien, but you are saying that as a matter of fact what happened was that he formed a reasonable suspicion that he was an unlawful non‑citizen?
MR KEIM: No, your Honour. Our submission is more fundamental than that.
GLEESON J: Right.
MR KEIM: We say that your Honour is correct as a matter of fact, if one goes to the record. But we say that there was no lawful authority to detain him on the basis of a reasonable suspicion that he was an alien because section 189 does not say that. Section 189 could say that. It could be amended to say that. It could be amended in any of a number of ways to deal with this, but the suspicion which is supported by section 189 is a suspicion that he was an unlawful non‑citizen. That is the only suspicion that can possibly be relevant in this case, but section 189 has to be disapplied in the case of Mr Thoms because a reasonable suspicion that he is an unlawful non‑citizen is not supported by section 51(xix) of the Act. That is the effect of ‑ ‑ ‑
EDELMAN J: That is the part of your submission I do not understand. I could understand a submission that says to the extent that Mr Thoms is treated as an unlawful non‑citizen it must be disapplied, in the same way as to the extent that any other person to whom the aliens power does not reach cannot be treated as an unlawful non‑citizen. But your submission seeks to go further than that. It says, well, no – we also need to disapply any reasonable suspicion that a person is an unlawful non‑citizen. That is the step – I do not understand where that step comes from.
MR KEIM: Can I start at the beginning, your Honour. I do not say that Mr Thoms cannot be treated as an unlawful non‑citizen. In fact, various pieces of legislation such as social security legislation is at least being reported as being used by the Commonwealth to prevent social security benefits being given to Aboriginal Australians who are unlawful non‑citizens – who are unlawful non‑citizens but who are not aliens. So, he can be - any significance, any impact on him of being an unlawful non‑citizen that is supported by the Constitution can still apply to him.
KIEFEL CJ: But the Constitution works on laws, not on just simple statutory tests which have regard to state of mind. You do not suggest that section 189 is not properly supported – constitutionally supported in its application to – generally to unlawful non‑citizens.
MR KEIM: That is right, your Honour.
KIEFEL CJ: You say that it cannot apply to a particular class of unlawful non‑citizens who happen to be Aboriginal Australians because of the decision in Love and Thoms.
MR KEIM: Yes, and we are not saying ‑ ‑ ‑
KIEFEL CJ: That arose because of the decision in Love and Thoms.
MR KEIM: Yes.
KIEFEL CJ: So, before the decision in Love and Thoms, it would have been reasonable for an officer to consider that a person was an unlawful non‑citizen because this Court had not spoken. That is the question for you, is it not?
MR KEIM: Yes, your Honour.
KIEFEL CJ: After the decision you are in a position to say that the section cannot apply. That is accepted. But the point is you are not addressing, on one view, the correct question which is, at the point when the officer detained Mr Thoms, was there a reasonable suspicion that he was an unlawful non‑citizen – and that is a pre‑Love, Thoms decision‑based question. The circumstances had not arisen.
MR KEIM: Can I start, your Honour, by mentioning the paragraph from the Uniform Tax Case, which we refer to, that says that, in effect, Mr Thoms never was an alien, that is, the decision in this Court and the constitutional impact that it has operates from 1901. So, that is the first thing.
KIEFEL CJ: But the question here is about unlawful detention, and it works on what section – on the terms of section 189.
MR KEIM: Yes, your Honour, but section 189 ‑ ‑ ‑
KIEFEL CJ: In its application – when it is applied at a particular point of time.
MR KEIM: Sorry, your Honour, I did not mean to shake my head, your Honour. I am sorry, keep on talking, I am sorry.
KIEFEL CJ: Your point is that you do not have to – for the purposes of section 189 and what might be a reasonable suspicion, you do not have to - it does not hinge upon a decision of this Court, the decision in Love and Thoms.
MR KEIM: That is exactly right, your Honour. What we say ‑ ‑ ‑
KIEFEL CJ: But, at the same time, you accept that before that decision, the section would have applied?
MR KEIM: Not to Mr Thoms, ever.
KIEFEL CJ: Even if this Court had never spoken about it?
MR KEIM: No ‑ ‑ ‑
KIEFEL CJ: You acknowledge that between Shaw and Love and Thoms the circumstance did not arise? You acknowledge that in your written submissions.
MR KEIM: I accept that it did not rise before then, your Honour, but the effect of the decision in Love and Thoms is that at the moment, from 1901, Mr Thoms or anybody in his situation was not an alien and could not be detained – he was not an alien, he did not have to be a lawful non‑citizen to stay in Australia, he could not be detained on the basis that he was an unlawful non‑citizen. Any reasonable opinion that he was an unlawful non‑citizen was not supported at any time by section 51(xix).
STEWARD J: Could I ask you, just to test that out, does that mean you do not accept that section 51(xix) authorises the passing of a law that would permit the detention of anyone, whether alien or non‑alien, save, for example, for the purposes of assessing their status?
MR KEIM: Well, certainly Lim’s Case provides the limitation - section 196 - and Lim’s Case indicates that you can only be detained for the purposes set out in section 196. Lim’s Case also says, and AJL20 confirms this, that detention for those purposes is not a punishment and therefore not unconstitutional, because the purposes also time limit the detention, even though it can go for a long time - in the case of Mr Al‑Kateb. I think I am disagreeing with your Honour in this regard ‑ ‑ ‑
STEWARD J: It is just a question directed at authority and power.
MR KEIM: Yes.
STEWARD J: Does the head of power authorise a law to detain an alien or a non‑alien, it does not matter which, for the purposes, let us just say, of assessing their status upon entry to Australia?
MR KEIM: There is no problem with that, your Honour, except section 189 is not phrased in those terms.
STEWARD J: I understand that.
MR KEIM: So, if section 189 were amended to say that a reasonable suspicion that a person is an unlawful non‑citizen and not an Aboriginal Australian who passes the tripartite test, that is constitutionally supported by section 51(xix), as section 189 always has been. But the problem that we come back to, and this is perhaps finally addressing your Honour Justice Gordon’s question and your Honour the Chief Justice’s questions, it comes back then to not the purpose of section 189 or whether the question is an error of law or an error of fact, it comes back to the words in section 189. So section 189 does not say a reasonable suspicion that a person is an alien.
GORDON J: No, it does not, it says reasonable suspicion that a person “is an unlawful non‑citizen”.
MR KEIM: Yes.
GORDON J: That is the only inquiry.
MR KEIM: Yes.
GORDON J: That is the inquiry which takes place at the point of detention.
MR KEIM: Yes.
GORDON J: The question then is, are there, as I think you accept, objective facts sufficient to give rise to that reasonable suspicion. You accept all of that.
MR KEIM: I accept all of that, your Honour.
GORDON J: The question that then arises is, at the point at which it was realised that that section did not apply to that person, as a result of the decision in Love, he was released. What you seek to do is to, in effect, step back from the justification provided for the period of detention by somehow applying it retrospectively. The difficulty for you, I think, is because we are asking a question at the point of detention, and the way to look at it possibly is to say how does this work practically?
The Chief Justice was asking you some very direct and very helpful questions – there may not be likely answers to them. Someone arrives – there is a practical operation of this section – that is what 189 does, sitting with 196(2) – you are right it does have temporal limits, it does have power limits, but you have to address the period in between – the period between the reasonable suspicion and then realising that a mistake has been made – or an error has been made – or they have got the facts wrong. That is the period we are concerned with.
MR KEIM: That is where we say, your Honour, the lack of power – the lack of constitutional support from section 51(xix) ‑ ‑ ‑
GORDON J: What are we talking – lack of power about what? I think this is a question which we cannot quite understand, because you have a power to detain on a reasonable suspicion for a particular purpose. That was what Ruddock v Taylor was dealing with.
MR KEIM: You do not have a power to detain a person on the basis that they are an unlawful non-citizen if they are not an alien because “unlawful non‑citizen” has no relevant operation with regard to a person in the position of Mr Thoms. If the section was written differently, it would be supported by section 51(xix).
EDELMAN J: Can I ask you about that? The example that you gave of the section being written so that it said that an officer who knows or reasonably suspects that a person the migration…..an unlawful non‑citizen and not an Aboriginal Australian – on that example, it would allow, for example, the detention on a reasonable suspicion that a person was an unlawful non‑citizen even if, as it turned out, they were an Australian citizen with six generations of parents and grandparents who were Australian citizens – and they were born in Australia.
MR KEIM: Yes. That does not deal with his Honour Justice Keane’s question. That question is dealt with by immigration detention – or immigration control.
EDELMAN J: But it is perfectly valid in its application to those people, but it is not valid in its application to Aboriginal Australians - that is your submission, is it?
MR KEIM: What I am saying is that immigration control is a different process to immigration detention or detention ‑ ‑ ‑
KEANE J: But immigration control, including detention, is authorised by section 51(xix).
MR KEIM: Yes, it is simply to allow a period of time within which a person provides the evidence required to show that they are entitled to be in Australia.
KEANE J: And, because immigration control is authorised by section 51(xix), a reasonable suspicion that a person is an unlawful non‑citizen is a sufficient justification for detention until the truth can be known.
MR KEIM: Well, it is a justification for the processes involved in immigration control. The situation as regards Mr Thoms was (a) he did not arrive at the airport, but (b), no one said are you an Aboriginal Australian who meets the tripartite test. Now, if he had turned up at the airport and he was asked that question and he produced that evidence, there would be no more inconvenience than in the case of a person who produces their visa or produces their passport.
In terms of convenience, one can simply cure that by amending the Passports Act to allow Aboriginal Australians who meet the tripartite test to have an Australian passport, even if they are unlawful non‑citizens. So, the same sort of convenience can be dealt with, but, your Honour, it is a different set of circumstances to say, before you leave the airport you need to provide evidence as to who you are and allow us to check that out, than to say that you will detain the person for months and years - - -
GAGELER J: Mr Keim, can I put a proposition?
MR KEIM: Yes, your Honour.
GAGELER J: Perhaps you can tell me whether this captures the essence of your constitutional argument.
MR KEIM: Yes, your Honour.
GAGELER J: You accept that it is a law with respect to aliens to confer a power to detain someone reasonably suspected of being an alien.
MR KEIM: Yes, your Honour.
GAGELER J: You say that it is not a law with respect to aliens to confer a power to detain someone reasonably suspected of being an unlawful non‑citizen.
MR KEIM: We disagree with that, your Honour, because we say that it is supported by the Constitution in almost every case because the words “unlawful non‑citizen” are intended to – or were intended to – and in almost every case they accurately provided a proxy or a synonym for “alien”.
GAGELER J: The second part of the proposition needs to be qualified insofar as the unlawful non‑citizen is not an alien.
MR KEIM: Yes, your Honour.
GAGELER J: Yes, thank you.
MR KEIM: So, if you replace the words “unlawful non‑citizen” with “alien”, the problem disappears. But that is not what the section says.
GAGELER J: I follow. But that is your argument.
MR KEIM: Yes, yes.
GAGELER J: Thank you.
MR KEIM: Your Honour Justice Gordon, could I just come back to those paragraphs in Ruddock v Taylor?
GORDON J: Only when you get to them in your argument, Mr Keim.
MR KEIM: Thank you.
GORDON J: But I think, at least for my part, I would be interested to know how it is you distinguish Ruddock v Taylor from the current case.
MR KEIM: Yes, your Honour. It might be easier now I have my reading glasses. This is perhaps where we reiterate a little bit of what I have said in answers to questions from your Honours but, in their submissions, the Commonwealth say, at paragraph 41, that whether a person is a non‑citizen or whether a person is an alien, is to ask the same question. That is incorrect. The expected answer in many cases may be the same but as a matter of law and language, the questions are directed to different things.
One is directed to a statutory status which was thought always to be a proxy for the other. The other, alien, involves a constitutional status. They are not identical and at the point where the proxy relationship breaks down, the questions are no longer equivalent and a constitutional basis for the section collapses. We say that on these questions the Commonwealth reliance on AJL20 is beside the point and of no assistance to it.
The Commonwealth, at paragraph 12 of their submissions, especially footnote 26, cites paragraphs [20], [21] and [45] of the majority’s judgment in AJL20 95 ALJR 567. The case starts at page 2044 of the joint book of authorities. They cite those paragraphs in support of the proposition that:
s 189(1) affects the rights of people whom it is reasonable to suspect do not have a right to be in the community, by allowing such people to be separated from the community until it is determined either that they have a right to be in the community, or they can be removed from Australia.
Paragraphs [20] and [21] of AJL20, which are at page 2053 of the joint book, and page 576 of the report, are also cited at paragraph 38 of the Commonwealth’s submissions. In support of the proposition:
Provided the objective circumstances are such that it is open reasonably to suspect that a person is an alien, s 189(1) will have a sufficient connection with s 51(xix) because it will require the detention of persons who it is objectively reasonable to suspect do not have a right to enter or remain in the Australian community, thereby advancing the purposes of the Migration Act.
But what is being dealt with there by the Court in paragraphs [20] and [21] was the uncontroversial power that arises by reasons of section 51(xix) for the Commonwealth power – sorry, for the Commonwealth Parliament – to deal with aliens. It says nothing about the Commonwealth’s power to do anything with respect to non‑aliens. Paragraphs [20] and [21] are expressly dealing with a situation where, on the facts of that case, the respondent was an alien and an unlawful non‑citizen, and “unlawful non‑citizen” was an accurate proxy for “alien”.
Mr AJL20 was born in Syria and is and was at all relevant times uncontroversially an alien. The reason that section 189 did not need to be read down in AJL20’s case is because AJL20’s detention was with respect to an unlawful non‑citizen who was also an alien. The comments of the majority cited and relied upon by the Commonwealth were made within that context. They cannot and, in our submission, were not intended to be extrapolated to a person in Mr Thoms’ circumstances.
While AJL20’s circumstances are distinct from those of Mr Thoms, what is said by the majority at paragraphs [22] to [27] and [44] is consistent with the approach for which Mr Thoms contends, and is an acknowledgement of the Lim principle, and that the detention must be for a section 196 purpose in the context of aliens, not non‑aliens. As I said before, the section 196 purpose also time limits the detention and prevents it from being a punishment.
There cannot be a section 196 purpose to be effected for a non‑alien in Mr Thoms’ position. As the majority acknowledged at paragraph [35] of AJL20 – that is at page 2055 of the JBA, and particularly in footnote 35, and the ALJR reference is page 578 - a non‑alien does not need a visa to be lawfully in the Australian community and cannot be removed from Australia. On its face the statutory scheme does not require or even allow Mr Thoms to be returned to the community unless his detention comes to an end pursuant to section 196(1), which it cannot. It is that fact that highlights the fact that his detention offends the principle enunciated in Lim, and we set that out at paragraphs 46 and 48 of our written submissions.
The final paragraph to note from AJL20 is paragraph [155]. That is at page 2082 of the JBA, at page 605 of the report, where your Honour Justice Edelman referred to excluding non‑aliens from the detention permitted by section 196(3) by “necessary disapplication”. That brings us, your Honours, to the Commonwealth’s process of disapplication in support of which they principally purport to rely on comments made by your Honour Justice Edelman in Clubb. The Commonwealth’s formulation for the new text of section 189 set out at paragraph 37 of its submissions, is that:
s 189(1) authorises and requires officers to detain every person they reasonably suspect is an unlawful non‑citizen, unless on the facts and law known to the officer at the time the person could not reasonably be suspected of being an alien.
The Commonwealth says that section 189 is to be read in the following manner by way of disapplication. Section 189, “Detention of unlawful non-citizens”:
If an officer knows or reasonably suspects that a person in the migration zone . . . is an unlawful non‑citizen -
and this is where the addition – the reading in of words commences – “and the officer at that time on the basis of facts and law known to the officer at that time could not reasonably suspect with regard to that person that that person is an alien” - that is the end of the additional words:
the officer must detain the person.
We say that the formulation does not deal with the point that the opinion that was actually formed by the officer is not relevant to any basis to detain a non‑alien, nor does it deal with the issue that the officer did not form an opinion that Mr Thoms is an alien, nor was she authorised to. It also has the difficulty that the constitutional power bestowed by section 51(xix) has been rendered dependent upon the subjective ignorance of certain facts and law of a member of the Executive.
Beyond that however, to rewrite section 189 in the way that the Commonwealth posits would cause the reasonable suspicion in section 189 to be – and I am quoting here from the Wentworth Securities principles – no, I am quoting here really from what is provided for in section 3A, it would be different in a substantial respect from what would have been its operation if the reading down had not happen.
We say that this offends the classic principles with regard to construing statutes by reading down a generally phrased provision to have a less expansive effect, namely that the statute with the change does not depart from Parliament’s intention for the statute as a whole and, as I have said, these principles are sought to be captured in section 3A of the Migration Act – that is at page 34 of the joint book of authorities, including section 3A(2)(b), which provides that the valid operation of section 189(1) must not as a result of a reading‑down process:
be different in a substantial respect from what would have been its operation –
if no reading‑down process had taken place.
The valid operation is not only different but the questions that the officer must ask herself have been expanded about threefold. Even expanding section 189 to take into account the terms of the definition in sections 13 and 14, the content of section 189 has always been nothing more than a reasonable suspicion that a person is not an Australian citizen, and two, does not hold a valid visa.
The Commonwealth’s submissions as to reading down radically changed the content of an officer’s required suspicion in a way that Parliament could not have intended. As I have mentioned a number of times, the rewriting of section 189(1) also offends the Wentworth Securities principle as restated in Taylor v Owners - Strata Plan 11564 (2014) 252 CLR 531 at 548, paragraph 38 – we sent that through yesterday as one of the cases we would rely upon. To paraphrase it – it is in the reasons of Chief Justice French and Justices Crennan and Bell – the principles provide that a court is justified in reading down a statutory provision as if it contained additional words – or omitted:
in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision –
but is not justified in the case of:
a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
We say that both of those latter tests are satisfied. What has really happened here is that the decision in Love by this Court has disclosed a gap in section 189, which the Commonwealth is seeking to fill, and the insertion that the Commonwealth argues for is much too big and much too at variance with the language in fact used by the legislature.
The Commonwealth appears at paragraphs 29 to 32 of their submissions to be basing their unusual approach to reading down or disapplying section 189(1) upon what your Honour Justice Edelman discussed in terms of taxonomy of approaches to reading down of statutes in Clubb – and Clubb appears at page – the particular passages appear at about page 954 in the joint book of authorities, and at page 322 of the Commonwealth Law Report. This is the one case which I would ask your Honours to go to – starting at paragraph 434 and perhaps going up to about paragraph 437.
GORDON J: Is this Clubb, Mr Keim?
MR KEIM: This is Clubb, yes, your Honour. It is at page 319 of the Commonwealth Law Report.
KIEFEL CJ: Which tab is it in the joint book of authorities?
MR KEIM: It is tab 11, your Honour, volume 4.
KIEFEL CJ: What was the page, Mr Keim?
MR KEIM: Page 954.
KIEFEL CJ: Of the law report?
MR KEIM: No, sorry. Page 322 of the law report, your Honour. I am sorry, your Honour, I think it is page 292. So, paragraph 426 is at page 319. But the paragraphs I particularly want your Honours to go are paragraphs 434 to about 437, 438 – which is at page 322 of the law report. What we say, your Honours, is there is no logical connection between what is stated in Clubb and the approach to section 189(1) that the Commonwealth urges upon the Court. It is observed at paragraph 426 that section 15A of the ActsInterpretation Act permits courts:
to exercise those powers unless a contrary intention appears in the impugned legislation.
Section 3A of the Migration Act, which I have already mentioned, spells out a specific aspect of the process of interpreting statutes, namely that reading down or partial disapplication is not permitted to cause the valid parts of a statute to have a different meaning to that intended by Parliament. At paragraphs 434 to 437, your Honour Justice Edelman rejected the approach of reading down to section 185D of the Public Health Act (Vic). At 435, your Honour explains how the Act would need to be read down to avoid invalidity, namely, by adding words:
other than in the course of political communication –
Your Honour rejected this on the basis that this would make an insertion that is too big or too much at variance with the language, in fact, used by the legislature – which is in that passage that I paraphrased from Taylor v Owners – Strata Plan 11564 at paragraph 38.
What we say is that the proposed…..the Commonwealth’s partial disapplication purports to do exactly what your Honour held was impermissible in Clubb. It reads words into the provision which require the formation of an opinion by an officer as it is different in subject matter to that which the Act seeks – the section seeks. The Commonwealth asks the Court to rewrite section 189(1) in a manner that certainly involves an insertion that is too big or too much at variance with the language in fact used.
Can we say this, your Honour? Partial disapplication need not be complicated? The generalised expression is given a distributed operation. In respect of those elements embraced by the concept, which are not supported by the constitutional power, in this case, a power to detain on a basis that Mr Thoms is an unlawful non‑citizen, those unsupported meanings simply have no lawful operation. In respect to those elements, which are supported in this case, every other unlawful non‑citizen who is an alien, the provision continues to operate as intended.
EDELMAN J: Mr Keim, speaking at least for myself, it seems to me that you may be confusing two different concepts. One of the reasons in Clubb that I found it necessary to distinguish between the notions of reading down, disapplication and severance was to avoid the application of different principles that apply in relation to each of those different concepts.
I think what your submission is doing is seeking to read the restrictions that apply to a reading‑down process, which is concerned with interpretation of the meaning of words, to a process of disapplication, which is just concerned with what Justice Dixon described as the distributive operation – the application of a provision – they are different concepts.
MR KEIM: Yes. I understand what your Honour is saying and we say this. Both the Commonwealth and ourselves say that this is disapplication. Disapplication, if we take the Newcastle Shipping Case does not involve changing any words in the statute. If we take the R v Hughes case, it does not involve any changes to the words in the statute. It is just that particular operations no longer operate and we say that that is what should be done here.
What our learned friends are doing, we say, is trying to put words into the statute – which is what your Honour referred to as to reading down – and we say that that was impermissible in Clubb, as your Honour indicated. We say that is what is being attempted here, and we say that it is impermissible.
GAGELER J: “Disapplication” is funny terminology to be using in this context where, as a matter of construction, we are asked to read words into section 189 to make it applicable – not to make it inapplicable.
MR KEIM: I agree with your Honour to this respect, that what our learned friends are trying to do is not disapplication, it is some kind of rewriting of the statute.
GAGELER J: Well, it is construction. It is construing the words in a particular way – you might say it goes too far, but it is an exercise in construction – so as to make the provision applicable to someone in the position of your client.
MR KEIM: We do say that is too far. We say it is a very forced construction. It actually asks and assumes that the officer did – even though there is no evidence that the officer did – to form other opinions or to set in place a set of circumstances which are deemed to have existed and then to say that that is disapplication. Your Honour is correct. All that you have in here in terms of disapplication is that in the case of an unlawful non-citizen who is not an alien, the section is not supported by section 51(xix) and simply does not have any effect.
KIEFEL CJ: Well, that is to say you create an exception to the unlawful non‑citizen. That is the addition of words.
MR KEIM: We are not creating any exception because we accept that Mr Thoms is an unlawful non-citizen. We just say the Act has – the section has no operation with regard to him – because section 51(xix) does not allow you to detain people on the basis that they are unlawful non‑citizens if they are non‑aliens. It is simply not giving effect to the section in those circumstances where it is not applied.
What we say is – coming back to what your Honour Justice Gageler said – it is the forced nature of the rewriting that indicates that it is not disapplication. You have to make so many exceptions – you have to create team circumstances to put them around the opinion that was in fact formed to give effect. So, it is not just application, it is some kind of forced application, and we say it is impermissible, your Honour.
KIEFEL CJ: That might be a convenient time. The Court will adjourn for 15 minutes.
MR KEIM: Thank you, your Honour.
AT 11.15 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.30 AM:
KIEFEL CJ: Yes, Mr Keim.
MR KEIM: Thank you, your Honour. Your Honour, we will move now to the last of the three matters that we wanted to deal with, which is responding to our learned friend’s submission that the circumstances in this case are analogous to those in Ruddock v Taylor. Ruddock v Taylor is at page 182, behind tab 24 of the joint book of authorities, and in 222 CLR 612.
We say that the circumstances here are very different and are not analogous to those, in the case of – well, that Mr Thoms’ circumstances are quite different to those of Mr Taylor. By the time the High Court heard Mr Ruddock’s appeal, the decision in Shaw had been made, and Re Patterson no longer remained good law in terms of certain British migrants being alien non‑citizens. The effect of Shaw was stated by his Honour Justice Kirby at paragraph 146. It is at pages 1860 to 1861 of the JBA, pages 652 to 653 of the report. What Justice Kirby said was the effect of Shaw is that:
s 189 of the Act is (and always was) valid in its application to –
Mr Taylor. So, at least in respect of those factual circumstances, one could not get a situation that is less analogous as between the two litigants.
The majority in Ruddock was composed of Chief Justice Gleeson and Justices Gummow, Hayne and Heydon, and at paragraph 35 at page 1832 of the JBA, 624 of the report, they went further than Justice Kirby and said:
In this appeal did not submit that s 189 was invalid. So far as the appeal book reveals, that has never been the respondent’s contention. Rather, the respondent contended in the courts below, and on appeal, that s 189 could not apply in his case because an officer could not entertain the necessary reasonable suspicion. That argument was an argument about the construction of the provision.
As I said earlier, that argument related to the fact that, unbeknownst to the officer, the visa was still extant, and that is the mistake of law to which your Honour Justice Gordon refers.
KIEFEL CJ: In relation to the question of validity, I think it is put against you that the Court of Appeal, from which the appeal in Ruddock v Taylor was brought, proceeded upon the premise that the provision was unconstitutional in its application. I think that was pointed out in argument by the then Solicitor‑General. So it is difficult to accept that the Court was unaware of that as a premise.
MR KEIM: Could I answer in this way, your Honour. At the time that the Court of Appeal dealt with the matter, Shaw had not been decided. So, issues with regard to the constitutionality of section 189 were alive, but that was not the basis on which it was argued below, that is what the majority is saying in section 189. What was argued below was, because of the writs of certiorari that had been issued with regard to both cancellation decisions - one was by consent and one was on administrative law grounds, but arguably also because of the decision in Re Patterson - it was always wrong that the visas had been cancelled.
The decision to cancel the visas was void ab initio and so as a result of that when the officer formed the opinion that Mr Taylor was an unlawful non‑citizen it was not reasonable, it was argued, because he was not an unlawful – because he had a visa at all times.
The way it was argued below was based on a concession that the Commonwealth had made, which was withdrawn in the upper court, but it was argued that the Minister’s decisions to cancel – which were void ab initio in each case – had caused the detention, and it was accepted by both parties that the officer who formed the opinion was not at fault but it was the Ministers that had caused the detention and therefore unlawful detention had arisen as a result of that.
The way in which it was dealt with in the High Court was this. The High Court said that section 189 does not operate in that way, it does not operate as a defence, and also that the mistake of law did not prevent the opinion from being reasonable. So, therefore, the detention was never unlawful because section 189 required and authorised the officer to do it.
So that did not need to go to the constitutional question, and the constitutional question was alive by the time it came to the High Court because Shaw had been decided. That is a rather terse summary of the case in both cases but it was never a consideration of the type of consideration that arises here and it never involved any question with regard to disapplication of section 189.
The Commonwealth submits that as a matter of res judicata – and this is another aspect of their submissions – Shaw could not, and did not, purport to disturb the actual holding in Re Patterson that Mr Taylor himself was not an alien. The Commonwealth at paragraph 16 of its submissions relies on Justice Kirby’s judgment in Ruddock to support that submission, but that submission is much broader than what was actually said by his Honour Justice Kirby. His Honour was addressing the orders made by the Court in Re Patterson, not the Court’s holding, and that can be seen from paragraph 129 which is at page 1855, paragraphs 169 and 170, which are at pages 1866 to 1867 and 173.
The orders made in Re Patterson were writs of certiorari and prohibition to issue on administrative law grounds. No declarations going to Mr Taylor’s constitutional identity for the purposes of section 51(xix) were made and the specific answer to the question in Love did not apply in that case so it was simply writs of certiorari and prohibition.
The writs remain valid on administrative law grounds, even though the constitutional ground had disappeared by the time that Shaw was decided and this Court came to consider Ruddock. The majority’s reasoning at paragraph 27, which is at page 1830, page 622 of the report, says nothing about aliens. It is addressing the nature of the inquiry as it applies to unlawful non‑citizens and it was addressing the opinion of the officer in that case which was based on the apparent fact that Mr Taylor’s visa had been cancelled, but unbeknownst to the officer those cancellations would be declared void ab initio.
Because of that the Court did not, because it was not required to, grapple with the issues that arise in this case. As the Court was not addressing that issue in Ruddock, the case is of no assistance to this Court in resolving the issue before it. Consistent with this, the majority at paragraph 29 – that is at page 1831, page 623 of the report – observed that:
The Court of Appeal did not consider the application of s 189 separately from its examination of the lawfulness of the Minister’s exercise of power.
The argument below and the conclusions of the Court of Appeal were that the Ministers had, by their cancellations, caused the unlawful detention of the officers who formed the section 189 suspicion were not liable because they were excused by section 189. This was not unrelated to the concession by the Commonwealth and the Court of Appeal that the Ministers who made the cancellations were not protected by section 189. This concession was withdrawn in the High Court. This is articulated by the majority at paragraph 31, which is at page 1831 of the joint book of authorities, page 623 of the report.
In Ruddock, it was determined that an opinion can be reasonable and within power even though the cancellation of the visa relied on by the officer was, unbeknownst to her, void ab initio. Mr Thoms has been, at all times relevant to these proceedings, an unlawful non-citizen within the meaning of that term in the Migration Act. That did not change when this Court handed down the decision in Love, and it did not change when the Commonwealth released Mr Thoms from detention for the reasons we have already addressed.
The nature of the test posed by section 189 is entirely irrelevant to his status as a non-alien. Unlike the present case, the officer’s suspicion in Mr Taylor’s case is reasonable and it was held to be – was relevant to the power to remove and to detain for that purpose. Neither the reasoning nor the result in Ruddock v Taylor supports the Commonwealth’s approach to disapplication in this case.
If I can come back, your Honour Justice Gordon, to your questions earlier. We do not challenge that in terms of what she was asked to do, and what she did do, that the officer’s opinion was reasonable. What we say is that section 189 does not operate to make that opinion at any point in time a lawful basis for an obligation, or a discretion to detain. We say that is because section 189 has to be disapplied, because in that operation, it is not supported by section 51(xix). So, we are not challenging Ruddock v Taylor in that way, or indeed, I think, in any way. We just simply say it is of no assistance to the Court here.
We say, your Honours, that section 189 in its application to Mr Thoms is, and always was, invalid. The suspicion reasonable or otherwise of an officer as to him being an unlawful non‑citizen is irrelevant. Those are our submissions, your Honour.
KIEFEL CJ: Yes, thank you, Mr Keim.
MR KEIM: Thank you, your Honour.
KIEFEL CJ: Mr Solicitor?
MR DONAGHUE: Your Honours, the question that has been removed into this Court raises an issue that has confronted the Court before. It arises on the premise that, by reason of this Court’s judgment in Love and Thoms, Mr Thoms has the status of being a non‑citizen, non‑alien. As your Honours know, that is a status that was thought to exist now some 20 years ago in the period of about two years between this Court’s decision in Re Patterson; Ex parte Taylor and Shaw.
In Re Patterson, the Court held by narrow majority that Mr Taylor, a British subject, was not an alien, despite the fact that he was also not a citizen. Mr Taylor thought that as a result of that win in this Court, he was entitled to damages for the period of some 316 days that he had spent in immigration detention before, in the period leading up to the Court’s recognition of that non-alien non-citizen status – in Re Patterson.
He was not alone in thinking that. The New South Wales Court of Appeal thought, in his damages claim, that it was bound by Re Patterson to accept that because of Mr Taylor’s non‑alien status, his detention was constitutionally incapable of having been authorised by section 189 of the Act. So the Court of Appeal on that basis upheld a substantial award of damages to Mr Taylor.
But this Court saw things differently. On appeal here, the Court held that Mr Taylor’s claim for false imprisonment failed. He lost the award of damages he had received because, the Court held, his detention was authorised and required by section 189 on the basis of what was known, or reasonably capable of being known, to the officers at the time they detained him before this Court’s judgment in Re Patterson and, for reasons that I am going to develop, the Court held that whether or not Mr Taylor should be regarded as a non‑alien - that was contrary to the submissions that your Honours have just heard – a live matter of dispute in Ruddock v Taylor, it was not a dispute that the Court needed to resolve because it did not matter. Section 189 validly authorised his detention whether or not he was a non‑alien.
So, for that reason, we submit that the same reasoning that was dispositive in Ruddock v Taylor is dispositive here. Section 189 authorised and required Mr Thoms’ detention in the period prior to this Court’s judgment and your Honour should answer the separate question, no.
In developing that, I propose to structure my submissions in four ways. First, I will make two points about the construction of section 189. Second, in amplification of the opening remarks I have just made, I will identify what the Court decided in Re Patterson and the reason why that decision did not result in Mr Taylor obtaining damages in Ruddock v Taylor.
In dealing with that, I am going to take your Honours in a little bit of detail – although I will try to do it efficiently – to what was actually argued in Ruddock because one needs to be quite careful with paragraph 35 of the judgment in Ruddock for reasons I will develop.
Third, I will apply that reasoning to the facts of this case, which is quick. Finally, I will make some submissions answering what our friends have put about how disapplication works in this case, why disapplication is necessary and when it is necessary and what the limits of that disapplication are.
So, your Honours, can I start with 189 and ask you to turn to that section to make two, I think, obvious but important points? The first is that the suspicion to which the section directs attention is a suspicion about whether a person – so the Act there does not say “alien” or a “non‑citizen” – any person, reasonably suspects that a person in the migration zone is – and the suspicion is about whether the person is a non‑citizen – an unlawful non‑citizen – not about whether the person is an alien.
In choosing that language, Parliament used in 189 the same language that it uses everywhere in this Act to draw a sufficient connection with section 51(xix) of the Constitution. The word “alien” appears in the long title and nowhere else. The way that Parliament ties the whole of the Migration Act to the aliens power is by using the word “non‑citizen” – a word defined in section 5 of the Act to mean a person who is not an Australian citizen.
So, the premise adopted by the parliamentary drafter is the premise reflective of the law as declared by six Judges in the Court in Nolan – and I will not take you to it – but the plurality in Lim – at page 25 which I also will not take you to – described Nolan as having established that the word “alien” and the word “non‑citizen” had become synonymous. That is the way the drafter approaches this. It just treats the word “non‑citizen” as providing a link to the aliens power because, on the law as declared by this Court at the time, they meant the same thing.
Your Honours in Chetcuti (2021) 95 ALJR 704– and I only want to take you to one paragraph in this, but I would ask your Honours to turn it up. It is in volume 7, tab 27 of the joint book. If your Honours could turn in the plurality reasons to paragraph [11], it is recorded there that:
Since 2 April 1984, the Commonwealth Parliament has relied on the legislative power with respect to aliens to sustain the Migration Act.
That date is important because prior to that date the Act was supported by the immigration power. By amendments made that commenced on that date the constitutional foundation was shifted. It is the next sentence that I emphasise:
Subject to providing through s 15A of the Acts Interpretation Act 1901 (Cth) for the Migration Act to have a distributive and severable operation to the extent of any constitutional overreach –
Footnote Pochi:
the Parliament has done so treating all non‑citizens as aliens.
Now, I emphasise that because the first point of statutory construction that I want to highlight arising out of 189 is that, as a matter of construction, just having regard to its terms, the Act applies to anybody who is not an Australian citizen. When it uses the word “non‑citizen” it applies, as a matter of construction, to anyone who is not an Australian citizen, whether or not they are an alien. Aliens and non‑aliens alike are caught by the terms of the provision.
But, as that passage recognises, having adopted that device, that drafting mechanism, there is a possibility of constitutional overreach, and if that possibility eventuates, it is to be dealt with by disapplication, the distributable and severable operation to wind it back within power. It is not to be dealt with by treating the use of the word “non‑citizen” as if it does not provide, in almost all cases, a sufficient link to power.
If Love meant that, by using the word “non‑citizen” in 189 or anywhere else in the Act, that Parliament had, to quote our friends’ reply at paragraph 3, used a criterion irrelevant to alienage, then they would prove far more than they are seeking to prove, because they would call into question the entire constitutional foundation of the Act.
The Act depends upon “non‑citizen” having a sufficient relationship to “alienage”, almost exactly the same meaning, subject to the possibility of partial disapplication by reference to Pochi. It depends on them being the same, so that, in our submission, your Honours should approach the construction of section 189, and, indeed, the Act more generally, on the basis that, save for the sui generis exception that Love recognised in respect of Aboriginal Australians who satisfy the tripartite test, Love did not disturb the previously well‑settled understanding that the use of the words “non‑citizen” and “alien” are, for almost all purposes, synonymous. They convey the same meaning, and to the extent that there is a difference, the answer is disapplication.
So that is why, to foreshadow where I am going to come to in the last section of our submissions, we submit that the way one deals with Love and Thoms in its interaction with 189 is by identifying the extent of constitutional overreach and then disapplying, to pick up your Honour Justice Edelman’s comment to my friend, to the minimum extent necessary to preserve validity.
If you did it differently, and disapplied the word, the term “non‑citizen” so that it never includes people who - or read it down, rather – so not disapplied, but read the term “non‑citizen” down so it does not include people who satisfy the tripartite test, we submit that would create two difficulties.
The first is that it would disapply the Act far more than is necessary to prevent the constitutional overreach. It would be over‑inclusive in its confinement of the Act. Secondly, and perhaps to illustrate the first point, it would do that in a way that was actually profoundly disadvantageous to people who meet the tripartite test.
To illustrate why that is so, if your Honours still have the Migration Act in front of you, can you turn to section 29 of that Act which appears at page 99, I think, of the joint book, or page 67 of the print, the second section in Part 2, Division 3, which is headed “Visas for non‑citizens”. The power to grant visas is found at section 29(1):
the Minister may grant a non‑citizen permission, to be known as a visa –
and your Honours do not need to go on to it, but the application provisions of visa, section 45, provides:
a non‑citizen who wants a visa must apply for a visa –
So, if the phrase “non‑citizen” does not include people who meet the tripartite test, those people cannot apply for and cannot be granted visas. Now, they may not need visas in terms of their capacity to reside lawfully in the Australian community, but that does not mean they do not want them for purposes including, for example, immigration clearance when coming in and out of the country – if you are not an Australian citizen you need to show a visa. If you cannot show a visa, whether or not you could make a nice constitutional argument that you have to be allowed in anyway, that is going to create practical problems.
As Mr Keim’s submissions intimated, there are various other Acts not dependent upon the aliens power but where entitlements to social security benefits of various kinds or other statutory benefits hinges on visa holding status. So that one would not likely conclude, in my submission, that non‑aliens cannot hold visas and to do so would be a consequence of any general acceptance of the idea that there should be a reading down of the definition of “non‑citizen” rather than a disapplication in particular areas where constitutional overreach can be demonstrated. That is my first constructional point. The Act means what it says - when it says “non‑citizen” it includes “non‑alien”.
The second constructional point, again turning back to 189, is that the duty that is detained – and it is of course a duty imposed on an officer – is a duty to detain a person – as I have said, not an alien, not a non‑citizen – who is reasonably suspected of being an unlawful non‑citizen, not only a person who is actually an unlawful non‑citizen or an alien.
It is easy to see – and some of your Honours’ questions to my friends this morning drew this out – why Parliament would have framed the section in that way so as to achieve its policy objective. If one takes, for example, the person who presents at the border – if I arrive at the border with no identification papers or fake identification papers, and I say to the border officer, “You must let me into Australia, I am an Australian citizen” – sure, I am an Australian citizen, but the border officer has no way of knowing that, no way of identifying that, and, if I do that, the officer can, in my submission, plainly have a reasonable suspicion that I am an unlawful non‑citizen or an alien.
Now, they can only detain me while they figure that out, while they work out what the true position is. But the orderly control of the border requires the capacity to – or your Honour Justice Edelman’s example of the ship or the boat with lots of people who arrive, many of whom are unlawful non‑citizens - the orderly administration of the border requires the conclusion that, as part of managing that process, people who cannot be identified as people who have a right to be in the community can be detained.
In fact, your Honours will see in the Act that it deals in terms with the kind of examples that were raised in argument this morning. If I can take your Honours briefly to the provisions. If you turn to 166 of the Act on page 295, you see Division 5, dealing with immigration clearance. The way it works – the key section, 166, provides that:
A person, whether a citizen or a non‑citizen -
So, it is trying to catch everyone:
who enters Australia must, without unreasonable delay:
(a)present the following evidence…
(i)if the person is a citizen . . . passport or prescribed other evidence . . .
(ii)if the person is a non‑citizen – evidence of the person’s identity and of a visa -
So that is would the Act requires you to do, and that is one of the reasons that the tripartite test satisfying a person who may well still want a visa, because they are not going to be able to comply with that provision unless they can do so.
Then, if your Honours go to section 190 of the Act, you see a deeming provision that applies for the purposes of 189, the effect of which is that if an officer is deemed or taken to suspect that a person is an unlawful non‑citizen for the purpose of 189 – so, it is deeming you in to 189:
if, the officer knows, or suspects on reasonable grounds, that the person:
(a) was required to comply with section 166; and
. . .
(i) . . . attempted to bypass . . .
(ii)went to a clearance authority but was not able to present, or otherwise did not present, evidence required by section 166 -
So, in my example of me presenting at the border without any evidence, and saying you have to let me in, I am an Australian citizen, the Act says, actually, no, the officer must detain you because I have not provided the evidence required, so I am deemed to be a person who falls within section 189 of the Act, but only – and this is important, and you see it under 191 – only until I give the evidence of my identity or Australian citizenship, or the officer knows or reasonably believes that the person is an Australian citizen or the person complies.
So, it is temporally founded in this particular regime. But the same temporal boundary would exist, in any event, even if we just look at 189 more generally, together with 196, and your Honour Justice Gordon has made this point by reference to 196(2) – that it makes it plain that the person detained under 189 can be released once it is ascertained that they are a citizen or an unlawful non‑citizen. That provision is interesting because it expressly contemplates that the person detained under section 189 might be a citizen. In terms, it recognises that possibility.
So, as a matter of construction of these provisions – and 189 most relevantly but exculpated by the other provisions I have mentioned – Parliament has deliberately contemplated that it might be that it is authorising the detention of non‑aliens under this provision – Australian citizens or other non‑aliens – provided always that that only happens when there are objectively reasonable grounds to suspect that the person is not entitled to entry. Once those objectively reasonable grounds dissipate, then there should be release.
All of what I have just said to your Honours is reflected, in my submission, in the constructional analysis you see in Ruddock v Taylor. I am going to come back to Ruddock in a moment about the constitutional points but if you could take up Ruddock v Taylor (2005) 222 CLR 612, which is volume 6, tab 24, and turn to page 622. If one starts at the bottom of 621, paragraph 26. The Court starts at paragraph 26 in dealing with the operation in respect of 189 insofar as it requires the detention of people who actually are unlawful non‑citizens. It said, in its operation with respect to people who actually:
are unlawful non‑citizens –
then once a visa cancellation was quashed, the person would have a visa, therefore they would not be an unlawful non‑citizen any more. Therefore, the detention would not be authorised. So, they are recognising that, in that respect, there would be a limit. Their Honours then say in 27:
But that does not exhaust the operation of s 189. Section 189 is directed not only to cases where an officer knows that a person is an unlawful non‑citizen, it extends to cases where the officer reasonably suspects –
their Honours’ emphasis:
that a person has that status. It follows that demonstrating that a person is not an unlawful non‑citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers. Had it been intended –
that it would, the drafting:
would have been much simpler. The section would have read, “an officer shall detain an unlawful non‑citizen”. The reference to an officer’s state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non‑citizens.
Then, developing that a little further in the next paragraph:
it follows from the considerations just mentioned that s 189 may apply in cases where the person detained proves, on later examination, not to have been an unlawful non‑citizen.
If your Honours pause to consider why might it prove that the person was not an unlawful non‑citizen, the possibilities at least include because they are not a non‑citizen at all, they are an Australian citizen on inspection or, it might turn out that they are a non‑citizen but they have a visa, so they are a lawful non‑citizen -at least those two possibilities. But, in the next sentence, their Honours say:
So long always as the officer had the requisite state of mind, knowledge or reasonable suspicion that the person was an unlawful non‑citizen, the detention of the person concerned is required by s 189.
Their Honours must mean, and it becomes clearer later in any event, validly required. So that even if you are an Australian citizen, their Honours are saying, paragraphs 27 and 28, if you are reasonably suspected not to be, your detention is required, validly, we say, by that provision just as a matter of construction.
So, against the background of those two constructional points can I come then to the way that the Court has previously dealt with the issue that it now confronts, first with Re Patterson; Ex parte Taylor and then its sequel in Ruddock v Taylor. Without taking your Honours to it, your Honours can take it that Mr Taylor, who was the plaintiff in both of those cases, was a British subject who had come to live in Australia in 1966 when he was six years old. After his visa was cancelled he made the claim to be a non‑alien raising the issue that has divided the Court numerous times concerning the relationship between being a British subject and an alien, but the details of that debate do not matter. What matters is that by a majority of four to three the Court held that Mr Taylor was not an alien despite the fact that he was not an Australian citizen.
Now, I do not know ‑ your Honours, I was going to take you to Re Patterson but I do not know that I need to do that. Your Honours will see in our oral outline in paragraph 4 there is a bullet point referring to Re Patterson and we have given your Honours pinpoint references in the judgments of the four members of the majority in that case. What your Honours would find in those pinpoints is that all four members of the Court state quite unequivocally that Mr Taylor was not an alien. Justice Gaudron, for example, says that at paragraph 51, and then at paragraph 53 her Honour says:
Because the provisions of the Act . . . are invalid in their application to Mr Taylor, it follows that prohibition lies –
Justice McHugh said he is not an alien because section 501 cannot apply to him constitutionally. As a consequence of that, Justice Kirby said the same thing and Justice Callinan agreed with both Justice Kirby and Justice McHugh.
So there was a clear finding by all four members of the majority that Mr Taylor was not an alien, but their Honours reached that conclusion for disparate reasons, and it was because their Honours reached that conclusion for disparate reasons – and, again, the reasons do not matter – that it was subsequently held in Shaw that Patterson does not have a ratio.
Your Honours would see in the pinpoint references in Shaw that we have given in paragraph 4 as well – and, again, I will not take your Honours to it – that particularly at paragraph 33 the Court makes clear that it is important to look at what Patterson said about the aliens power because of its status as a precedent to make clear for other courts what the precedential authority was or was not of Re Patterson. So their Honours dealt with it in Shaw by saying the case is not authority on the aliens point, it is authority only on the other points that are decided.
That was where the status of Patterson rested as a matter of authority, going forward after Shaw. But, in the meantime, having won in Patterson, Mr Taylor seeks damages for false imprisonment. He had been detained for two different periods of time. The cancellations of his visa had been cancelled twice, the first time by consent and the second time in the judgment in Re Patterson that I have just been referring to. So he was detained up to the first cancellation, that was then quashed by dissent. He was released, then there was another cancellation. He was detained again and then that was quashed by the Full Court in the four/three split.
He said in respect of that total period of 316 days he had been falsely imprisoned. He won at first instance and received an award of $116,000 which, as I said in opening, was ultimately overturned in this Court on the basis that his detention was authorised and required by the statute, the very thing that Mr Thoms here says is constitutionally impossible in respect of a non‑alien.
Now, it seems, as we understand it, that our friend’s answer to this is to say, well, that might be what happened in Ruddock, but, one, they say well he was actually an alien, so your Honour Justice Gageler asked is Mr Thoms the same as Mr Taylor. Our friend said no, Mr Taylor was an alien. That was a matter of live debate in RuddockvTaylor, the parties were not agreed about that.
So, the only difference in my submission is that – to the extent that there is a difference – in Taylor, we had someone who a majority of this Court had held was a non-alien in circumstance where there was maybe a question mark over that status because of the decision in Shaw and whether or not Shaw disturbed the holding as it applied to Mr Taylor personally, in a decision of this Court which obviously could not be appealed – that was what the debate was about.
But the Court – for reasons that I will demonstrate in a minute – was able to sidestep that question – or did not need to resolve that question – because it held that it did not actually matter whether he was an alien or a non‑alien. Just as 189 could authorise the detention of citizens, it can also authorise the detention of non-aliens, and so it validly applied either way, and so the status did not need to be resolved.
But the main point that our friends seem to make to try to escape from the impediment that Patterson presents is that they point your Honours to paragraph 35 – which our friend took you to just before I stood up – where it is true that the court records:
In this appeal the respondent did not submit that s 189 was invalid. So far as the appeal book reveals, that has never been the respondent’s contention.
Therefore, as we understand it, they say, well the argument that we put here about partial disapplication was not put there, so you do not need to worry about Patterson. In our respectful submission, your Honours need to exercise considerable caution with respect to paragraph 35 because, for the reasons that I am about to demonstrate, constitutional issues loomed very large in the argument both in the Court of Appeal but also more importantly in this Court.
Those materials – and I am going to take your Honours through quite a few of them – show that quite clearly Mr Taylor did submit, as one part of his case, that section 189 of the Act could not have any valid application to him. Like Mr Thoms, he did not submit that 189 was invalid in all of its applications. He was prepared to accept or concede the general validity of section 189 in all of its applications. His argument was it did not validly apply to him because he was a non‑alien. In other words, it was exactly the same argument that Mr Thoms is raising here that was advanced in Patterson and obviously unsuccessfully.
So, it seems likely that what their Honours meant in those lines of 35 was that there was no general challenge to the validity of section 189. It was not put, for example, that a reasonable suspicion of alienage did not provide a sufficient connection to power, just as that is not put in this case.
The applicability though was a live question and as your Honours will see when I come back to the paragraphs in the judgment that respond to the arguments I am about to show the Court, there are multiple references, including, for example, at the end of paragraph 34, to whether or not section 189 had a valid application to him.
GORDON J: Is that not what 35 says? Do you not read the first and second sentences as saying exactly that, i.e. there is no challenge to the validity of 189 as a whole, but a challenge to its validity – to its application to Mr Taylor?
MR DONAGHUE: Well, that is exactly what I submit it means, your Honour.
GORDON J: Is not what then follows what they then asked by posing what they see is the right question?
MR DONAGHUE: Precisely, your Honour. So you are anticipating where I am going, but at paragraph 36, their Honours say, the relevant question is whether the provisions of the Act are validly applied. In my submission, there is not a great uncertainty about it, it is just that, if one fixes just on the first sentence that says, well there was no constitutional issue in play, then that obscures the fact that there was a constitutional issue in play, but it was about disapplication in the individual circumstances of the case, rather than any more general point.
Your Honours, can I start – and I will do this very quickly by showing your Honours the way the Court of Appeal had dealt with it, because it is important, in my submission, in understanding this Court’s judgment in allowing an appeal from the Court of Appeal to appreciate that the Court of Appeal quite unequivocally thought that section 189 could not validly operate.
Your Honours will see the judgment at volume 7, tab 33. It is (2003) 58 NSWLR 269. It is true that at the time the Court gave judgment Shaw had not been decided, so their Honours did not need to grapple with that question. There are two judgments relevantly - Chief Justice Spigelman’s judgment with which Justice of Appeal Ipp agreed, and also Justice Meagher’s judgment, with which Justice of Appeal Ipp likewise agreed. So, starting with the Chief Justice at paragraph 1:
For two lengthy periods . . . the Commonwealth of Australia deprived the respondent of his liberty on the sole basis that he was an alien. The High Court has decided that the Commonwealth was never entitled to detain the respondent on that basis.
Then in paragraph 2 it said:
a majority judgment of the High Court refutes -
the proposition that he could be detained because – on the basis of the reasonable suspicion under the Migration Act. So that is the framing of the issue. In paragraph 14 his Honour recognises that Re Patterson did not have a ratio, but he then says at paragraph 15:
Each of their Honours in the majority states that s 501 could not apply to the respondent for constitutional reasons -
and we respectfully agree with his Honour’s analysis on that point, and then said:
The trial judge held that this conclusion necessarily meant that s 189 could also have no application.
His Honour agreed with that at paragraph 15. Then the next paragraph, 16, the last two sentences:
If the definition of an “unlawful non‑citizen” in s 15 cannot constitutionally apply to the respondent, s 189 can have no application either. In my opinion, that necessarily follows from the majority judgments in the High Court.
So, his Honour clearly thought that it followed from Re Patterson that 189 could not constitutionally apply. Justice Meagher at paragraph 67 of his Honour’s reasons on page 283 says, in the second sentence, discussing Re Patterson:
Until that case it was ordinarily assumed that if you were not a citizen you were an alien . . . That that assumption seemed correct is confirmed by the circumstance that the High Court of Australia in Nolan v Minister for Immigration and Ethic Affairs . . . so decided . . .
Re Patterson; Ex parte Taylor overruled Nolan’s case by a four‑three majority . . . The central concept of the new doctrine enunciated in Re Patterson; Ex parte Taylor was that there were no longer simply two categories, citizen and alien; there was a third category, viz, a non-citizen non-alien. Mr Taylor fitted into this third category -
exactly the same as is now the situation post Love. Paragraph 70:
The statutory framework in which the officers of the Department thought they were operating was thus shattered, even although they genuinely thought it still existed.
Paragraph 71:
Armed with this curial decision, Mr Taylor commenced proceedings against the Ministers -
and then there is a discussion about details of the argument that do not then matter. If your Honours go forward to paragraph 80:
In the course of argument many rabbits were chased down many burrows. One in particular deserves some, but very brief, mention. There was some discussion whether, as a result of the High Court decision in Re Patterson; Ex parte Taylor, ss 189, 196 and s 501 of the Migration Act (Cth) were valid. It was suggested they were invalid because unconstitutional, not being supported by any head of legislative power.
That is interesting in that when the plurality in this Court say there was not ever a challenge of that kind, Justice Meagher’s judgment suggested perhaps there had been, at least in passing. But the more important point is the next sentence:
That they were inapplicable to the present case is clear enough, after the High Court decision, but that does not mean they are invalid. I can see no reason why they are not perfectly valid quoad unlawful non‑citizens.
So, both Chief Justice Spigelman and Justice Meagher thought, at least in their applicability to Mr Taylor, it necessarily followed from Re Patterson that 189 did not apply. After that judgment was given Shaw was handed down and the authority with Re Patterson was confined, but, contrary to what my learned friends put to your Honour this morning, that did not mean that the constitutional issues in this case evaporated.
To try to make that good we have given your Honours a supplementary bundle, which I hope that you have, that contains a rather threatening amount of material being essentially most of the key documents that were before the Court in Ruddock v Taylor. So, if your Honours have the supplementary bundle, can I ask you to start at tab 1 where you will see the respondent’s section 78B notice, which was the first 78B notice issued in this Court.
In paragraph 2, the constitutional issue identified in that 78B notice is whether the Court’s holding in Re Patterson has been affected by the Court’s subsequent holding in Shaw, and whether the respondent is entitled to maintain his verdict on the grounds relied upon by the majority in the former case, that is in Re Patterson, which related to the construction of 51(xix). So in this Court the respondent is saying, an issue is whether Shaw means I cannot still rely on what you said about my status in Re Patterson. The Commonwealth follows that 78B with a 78B of its own, issued a couple of months later, which you will find behind tab 2 ‑ ‑ ‑
KIEFEL CJ: I think some of us do not have tabs, so a page number might be more helpful.
MR DONAGHUE: Page 4, I think, your Honour. In that 78B notice, the Commonwealth adds to the issues identified by the respondent in their 78B, an additional issue you see in paragraph 3:
In addition to these issues the appellants give notice of a third issue:
(c)whether section 189 of the Migration Act (Cth) may apply to non‑aliens who are reasonably suspected of being aliens.
So the premise for that, in my submission, is the possibility that Mr Taylor is still a non‑alien, and what the Commonwealth is saying is, if he is a non‑alien, an additional issue in this case is, does the aliens power allow section 189 to require his detention regardless? So both parties think that there are constitutional issues of a nature very similar to those in issue in play in this Court at the time of the 78Bs.
Then the Commonwealth’s submissions, which start at page 9 of the bundle, and here – I do not want to detain your Honours too long on these documents, so if I can move through them fairly quickly, at 1.6 of the submissions on – using the internal page numbering of the submissions, page 2 near the top, listing the questions before the Court, the last question is:
Whether the respondent was constitutionally beyond the reach of sections 189 and 196 –
The Commonwealth says that is in play. It notes the 78B in paragraph 3 that it has issued, which I have just taken your Honours to. If you then go forward to paragraph 20 on page 5 using the internal numbering, there is a summary of the Commonwealth’s submissions as to why detention was lawful, and looking at b) and c) in particular, there is no ratio of Taylor – that is Re Patterson:
Both Courts below erred in finding that because –
of Re Patterson, or because Re Patterson:
determined that the respondent was a person who could not lawfully be removed from Australia, that necessarily meant that the respondent could not constitutionally be detained as a person reasonably suspected of being an unlawful non‑citizen.
The aliens power . . . necessarily extends to the power to make laws with respect to persons reasonably suspected of being aliens –
So the Commonwealth is saying exactly as we are saying here, 189 applied, and validly applied, to Mr Taylor or Mr Thoms, even if they were non‑aliens if – provided a reasonable suspicion existed. That is then developed at paragraph 28 on page 7 of the submissions, where it is said that at its highest, Re Patterson:
had the unstated consequence that a gloss needed to be placed on section 196 so that release would be necessary once it became apparent that the respondent was of a class which, although neither a citizen nor an alien –
That gloss is the partial disapplication of the provision, in effect, once those facts became apparent. The Commonwealth says, it would at least be incidental to power, to extend the provision to apply to require the detention:
of persons who are not in fact aliens –
I am reading the last few lines of that paragraph 28:
(given the required reasonable suspicion), of persons who are not in fact aliens – until such time as it is apparent that they are entitled to remain –
and you will see a footnote to a couple of cases, including Milicevic v Campbell, which I will come to in a moment - I will come to a little later. Then paragraph 32 in fact develops the Milicevic submission, and I note that without asking your Honours to read it now, Milicevic is a relevant authority on whether a reasonable suspicion is a sufficient link to power before concluding, at paragraph 33, that 189 and 196, insofar as they apply to persons who are not aliens, are nevertheless laws with respect to aliens.
So at least so far as the Commonwealth submissions were concerned, it is obviously not right to say that there were no constitutional issues in play in this Court. The Commonwealth squarely and expressly submitted that 189 applied even if Mr Taylor was a non‑alien.
I should note that in the alternative the Commonwealth submitted – and you see it at 20d) and 37 – that the effect of Shaw was that Mr Taylor was in fact an alien. In other words, the Commonwealth submitted there that, as a matter of status, Mr Taylor was an alien. The Court did not decide that submission, and had it decided it none of the points about reasonable suspicion being a sufficient link would have been engaged. As I have already intimated, the reason the Court did not decide it is that it did not need to because 189 validly applied either way.
Turning then to how the respondent dealt with all of that, their submissions start at page 37 of the bundle, and if your Honours note at paragraph 4, again using – the internal page numbering here is in the bottom right‑hand corner, so paragraph 4 near the top of page 2, again identifying the issues. The fourth issue is whether, if Re Patterson has the effect for which the respondent contends – that is, that he is a non‑alien – the appellants are estopped in these proceedings from disputing that determination despite the holding of the Court in Shaw.
So the Commonwealth has said in the alternative, actually you are an alien; the respondent replies by saying, you are not allowed to say that, you are estopped from saying that. Whether or not Shaw has overturned Patterson generally in respect of me personally, the beneficiary of the holding in Taylor, you are not entitled to say that. That was the estoppel issue which you see references to in the judgments in Ruddock.
Then if you go on to paragraph 19 in the respondent’s submissions, bottom of page 4 on top of page 5, one of the submissions advanced apparently as an alternative submission, as you see from about four or five lines down, the respondent does, in the alternative:
also argue that the decision of the Court of Appeal can be upheld on the basis that the officers of the Commonwealth who physically arrested and detained the Respondent on each occasion were not protected by s.189 of the Act because –
go forward to paragraph (b):
Additionally, the determination in [Re Patterson] that the respondent could not be the subject of a Commonwealth law provides a further reason why s.189 of the Act could not empower a Commonwealth officer to detain him . . . The determination still applies to the respondent despite Shaw.
So they are arguing the effect of Patterson is 189 cannot apply to him personally. You will see in paragraph 20 the respondent sought leave to file a notice of contention to raise those issues. I will come to that notice of contention in just a moment. If your Honours then go forward to the end of the respondent’s submissions on page 16, you will see paragraph 82. At the top of the page:
The second limb of the argument depends upon the effect of the reasons relied upon by the majority on the constitutional issue in Ex parte Taylor. The difficulties of extracting a ratio from that case are not relevant to the purposes for which the respondent relies upon it.
Then there is a summary of Taylor which I do not need to take your Honours through, leading to the conclusion at paragraphs 88 to 89. At the end of 88 it is asserting he belongs:
to a class that was neither citizen nor alien.
I will not read those paragraphs to your Honours. But my point is basically that you can see the constitutional submissions are developed over a couple of pages of those submissions, and then immediately following you see at paragraphs 90 to 91 there is discussion of the estoppel point and the estoppel is identified at paragraph 91 as an:
issue estoppel raised in Mr Taylor’s favour is a reflection of the principle –
Sorry, the estoppel is the last sentence of paragraph 90:
that he was not a person in regard to whom power could be exercised -
the aliens power extended. I did not put that well, your Honours, but you can see the content of the estoppel at paragraphs 90 and 91.
The notice of contention is, well – I think if your Honours go to paragraph 60, you will see what was the draft notice of contention – the pages before that are summons seeking leave to rely on the notice of contention and the supporting affidavit. We have attempted – and I believe this Court’s Registry has also attempted to actually find the file version of the notice – I think it was filed in court – and we have not been able to do so. But I have no reason to think that the file version is not the form of the version that appears annexed to that summons. The Commonwealth did not oppose the grant of leave to file the notice of contention, so there is no reason to think it changed.
The second paragraph of the notice of contention, in the second half says:
s.189 will not protect those officers where the mistaken belief concerning a matter of law was a mistaken belief in regard to the power of the Commonwealth to legislate to deport or detain -
In other words, where the mistake is a constitutional mistake, 189 cannot operate.
The Commonwealth’s reply – I will not take your Honours to it, we have given it to you, it is starting at page 61 – paragraph 11 repeats the argument relying on Milicevic v Campbell that 189 was valid even in its application to non-citizens is based on reasonable suspicion.
We then – and I will not detain your Honours on this at any length, but we have given your Honours the transcript of the hearing, and can I just highlight a couple of pages of that. The transcript of the hearing starts at page 67. There are dozens and dozens of pages recounting constitutional arguments in this transcript. So, I will certainly not attempt to highlight them all for your Honours, but if you note for example page 5 of the transcript, Justice Hayne raises an example similar to your Honour Justice Keane’s example this morning about the Australian citizen:
No more being known . . . “reasonable suspicion” ‑ ‑ ‑
KIEFEL CJ: Sorry, what page was that, Mr Solicitor?
MR DONAGHUE: Sorry, your Honour. Page 5 of the transcript.
KIEFEL CJ: I do not think we have that numbering. Can you do it by line reference perhaps?
MR DONAGHUE: I can, your Honour. So line 97, there is an example about detaining Australian citizens and my predecessor Mr Bennett, says, yes, you can detain Australian citizens as a matter of power. There is a similar kind of discussion from about line 325, where Mr Bennett said the view taken in the Court of Appeal seems to have been that 189 had no application to Mr Taylor – which we say was not something held by this Court at all. We say 189 applies to Australian citizens, aliens who hold a visa and anyone who is the subject of a reasonable suspicion – and Justice Hayne responded:
Well, so much may be thought to be apparent from 196 –
with 189. His Honour points out at the bottom of that page, at about lines 363 through to 365, that one could hold a reasonable suspicion even if it was later held 7:0 by this Court that:
the constitutional substratum is otherwise than previously thought -
and Mr Bennett agreed. But the key point that I want to draw – there are really two key passages that I want to highlight. The first appears at line 1082. I am sorry, your Honours, perhaps, we will start at 1061, where Justice Hayne identifies the possibility that there could have been an argument about the constitutional validity of the element in 189(1) comprising:
the words “reasonably suspects” -
and then a few lines later, he says the validity of that:
has not yet arisen in this litigation -
and Mr Bennett says yes. So, that seems to be what paragraph 35 is talking about. Then, at 1082, Justice Hayne says:
the conflation occurs because of this repeated proposition about whether there is power over Mr Taylor or power over persons in the class of Mr Taylor. The relevant question is a question about legislative power. Is 189(1) valid?
MR BENNETT: Yes, your Honour.
KIRBY J: Well, the suggestion, at least as I understand the written submissions, is that a person who is not a constitutional alien cannot enliven 189(1) because you cannot have the reasonable suspicion that a person in the migration zone is an unlawful non-citizen if constitutionally that person cannot be an unlawful non-citizen.
HAYNE J: As I say, the consequence then is that 189(1) cannot have lawful operation, cannot have valid operation, in respect of persons who, in fact, are not unlawful non‑citizens. It cannot have operation in respect of persons who turn out to be citizens. It cannot have valid operation in respect of persons who turn out to be lawful non‑citizens. Now, that is a field for debate –
So his Honour seems – and Justice Kirby’s comment obviously identifies what he understood the argument to be, which we are completely unable to distinguish from the arguments Thoms is advancing now. He is saying exactly the same thing that you see recounted by Justice Kirby there, for example. Then, finally, in the transcript, much of it is relevant and redolent of the kind of issues that your Honours are seeing now, but if you go to line 1357, Mr Bennett says:
I am only dealing with the validity of the section at the moment so it is only the constitutional ‑ ‑ ‑
GUMMOW J: The validity of section 189 is not challenged, as I understand it.
MR BENNETT: The validity is challenged in relation to its application in this case on the basis of Taylor’s Case. The argument against me is it is not capable, constitutionally, of applying to a person in Mr Taylor’s position –
Mr Bennett then goes on to point to various passages in the Court of Appeal judgment that I have noted. So in the 78B notices, in the written submissions before the hearing and at the hearing, and, I should say, about the first 30 pages of this transcript are about constitutional issues, there was a live debate about whether or not section 189 could validly apply to Mr Taylor. It was squarely in play. It remained in play in post‑hearing submissions that were also filed by leave by both parties. I will not take your Honours to the appellants’.
The last thing I want to note in this journey through the record in Taylor is the respondent’s final submissions, post‑hearing submissions, which start at page 176 in the bundle, and again using internal page numbers, if your Honours go to page 3 of that document you will see the respondent’s last word on this was they said:
The respondent does not contend that s.189 is wholly invalid, rather, the effect of the holding by the majority in Ex parte Taylor was that the Commonwealth lacked power to legislate with respect to the detention and deportation of a person in the position of Mr Taylor.
So from start to finish that was in play in the Court, and it is, with respect, quite wrong for our friends to say, well, it was just about an error of law that had nothing to do with constitutional questions. Manifestly not - it was about whether or not 189 needed to be disapplied or could not validly extend to support the detention that had occurred. That is the argument that this Court was dealing with in the passages in Taylor, to go back to this Court’s judgment at volume 6, tab 24, that you see starting at paragraph 30.
Paragraphs 30 through to 36 are the key paragraphs for the constitutional purposes, and they are replete with references to the “valid application” of section 189. You see that phrase in 33, 34, 36 and in 30 itself, so in paragraph 30 their Honours summarise the Court of Appeal, in the middle of the paragraph:
Spigelman CJ held that it followed from what had been decided in Patterson that s 189 could have no valid application to the respondent.
Skipping over the next couple of paragraphs to go to paragraph 33, three lines down, their Honours say:
Patterson did not establish that s 189 could have no valid application to the respondent.
There is a discussion of what it did decide, and then four lines up from the bottom:
But altogether apart from the subsequent consideration of these matters in Shaw, the Court in Patterson did not examine, let alone decide, any question about the validity of s 189 in its application to the present respondent.
Now, pausing on those words “altogether apart from . . . Shaw”, in our submission, they must mean, even assuming the correctness of Patterson, because the effect of Shaw, of course, was to overrule Patterson.
So, if one reads those words as saying even assuming the correctness of Patterson, it did not follow – the Court did not examine or decide any question about validity of 189. Then 34 and 36 are critical. In Patterson, the Court considered the validity of 501 in its application but even if Patterson were to be understood as holding that 501 was invalid in that operation – and they say it was not because of Shaw – but the holding of invalidity is because Mr Taylor is a non‑alien. So, even if Patterson were to be understood as holding that Mr Taylor was a non‑alien, it by no means follows that the respondent was beyond the valid operation of the other provisions of the Act.
His holding of the visa demonstrates why that is so. So, their Honours are noting the kind of point I mentioned in opening about the application of those provisions to non‑citizens and – and we get another “whether or not” – in particular, whether or not the respondent was a person whose visas might lawfully be cancelled – which means, whether or not he was a non‑alien, it does not follow that 189 would never have had valid application to him.
Then, there is paragraph 35 which I have already addressed. Your Honours should note that at the end of paragraph – actually I will make two additional points. When your Honours see references there to the power contention and the estoppel contention, they are both constitutional points when you look at – they are the issues raised when you look at the submissions. But, in any event, their Honours say that before they move on:
it is necessary to say something further about the suggestion that Patterson decided that the respondent was a person to whom 189 could have no application –
and said we do not need to revisit the effect of Shaw on Patterson. Their Honours say, five or six lines down:
It is irrelevant because Patterson did not consider, and did not decide, any issue about the constitutional validity of s 189. It is a distraction because it suggests that it is useful to ask whether the Act, as a whole, applied to the respondent when the relevant question is whether a particular provision of the Act (s 189), when properly construed, validly applied to authorise and require the respondent’s detention.
Now, that is the relevant question. It is utterly implausible to suggest that their Honours did not answer it. That is the question that they answered. It is a question about the valid application of section 189 to the respondent. So, in our submission, it is just not an available reading of this judgment to treat it as not deciding the question that is now before your Honours. Whether or not Mr Taylor is a non‑alien, 189 validly applied to him. That is what the case held.
GORDON J: Is it even more precise than that at a particular point in time?
MR DONAGHUE: Yes. In my submission, the case establishes the valid operation of 189 to a person who is a non‑alien, or who might be a non‑alien, based on a reasonable suspicion. The content of the reasonable suspicion then has a temporal dimension – as I think your Honours’ questions have emphasised. So, what might be reasonably suspected at one point in time, might not be reasonably suspected later. Relevantly – and I will come to this after lunch, quite shortly – the reality of a decision of this Court, identifying the law as being something different than it was before, obviously has a bearing on the existence of a reasonable suspicion. So, what the Court goes on to hold is that the suspicion was reasonable at the time that it was held.
Noting a very short time before lunch, can I just finish by taking your Honours to Justice Callinan in Ruddock who agreed with the plurality. At paragraph 200 of his Honour’s judgment on page 667 – his Honour is here summarising the case that the Commonwealth had advanced and he expressly recognises there was a constitutional issue in play:
As to any constitutional challenge to s 189 of the Act, the appellants submitted that a law may still be constitutionally valid even if its operation depends upon a reasonable suspicion that a state of affairs is within Commonwealth legislative power. Accordingly, s 189 is constitutionally valid to the extent that it permits detention of persons who may not be unlawful non‑citizens, because its operations depends upon the holding by the officer of a reasonable suspicion that the relevant person is an unlawful non‑citizen. That sometimes the suspicion may turn out to be well‑founded, and sometimes not, is not to the point.
The response of that his Honour records at 203 was that it was said:
the provisions of the Act which were said to authorise –
the detention:
could not constitutionally apply to him as a result of –
Taylor. So that is consistent with what I have already taken your Honours to. His Honour then addresses, or deals with, that argument at 233 and 234, on the last page of the report. His Honour says:
The steps in the respondent’s “constitutional” argument in this Court were not entirely clear. The first plank of it seems to have been to the effect that attempts to immunise Commonwealth officers against liability for excesses of power were futile. That is not what s 189 does. It arms officers with a power and burdens them with an obligation, if, but only if they act reasonably, to do an act which is reasonably incidental to the aliens power.
Then, 234:
I cannot regard s 189 as being remote, or in any way disconnected from a reasonable exercise of the aliens power. It is important for its efficacy that there be means available to officers to act expeditiously, and in circumstances in which certainty of status cannot be quickly, or readily established.
That seems to be the point your Honour Justice Keane raised in argument with my friends this morning. We respectfully adopt what his Honour said there. So, six members of the Court, in our submission, decided the case in a way that did involve determination of the constitutional question. I note the time, your Honour.
KIEFEL CJ: Thank you, Mr Solicitor. The Court will adjourn until 2.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Yes, Mr Solicitor.
MR DONAGHUE: Your Honours, I propose to pick up the argument at paragraph 10 of our written outline, but I will need to come back to deal with the points that are made at paragraphs 7 and 8, which I will do at an appropriate time.
KIEFEL CJ: Just before you do, Mr Solicitor. As I understand the applicant’s argument, it is that section 109 does not apply to him because he is a particular class of persons – a non‑alien non-citizen – whereas section 189 applies in its terms to an unlawful non-citizen. As I understand your argument, Ruddock v Taylor says that section 189 is supported by the aliens power and therefore valid. It would follow that Ruddock v Taylor must treat an unlawful non-citizen as synonymous with an alien – does that follow?
MR DONAGHUE: Yes, it does follow.
KIEFEL CJ: That is consistent with the way in which you have approached the interpretation of the Migration Act provision?
MR DONAGHUE: Precisely, your Honour. Precisely. There had not been any relevant changes to section 189 that would create a point of distinction there. But it is that difference that your Honour identifies that largely accounts for the part of the submissions that I still have to make, which is how one grapples with the connection between the use of the statutory language of “non-alien” and the constitutional term “alien”, now that Love has identified a break between ‑ ‑ ‑
KIEFEL CJ: Yes.
MR DONAGHUE: ‑ ‑ ‑ so that is really the main issue I still need to deal with.
KIEFEL CJ: Thank you.
MR DONAGHUE: So, to deal with that, in my submission, the important starting point is that the power – the constitutional power in section 51(xix) is of course a power to make law with respect to aliens. It is not a power confined to making laws binding on aliens, although it does of course include as a paradigm example of the kind of laws that can be made laws binding on aliens. But a law may be a law with respect to aliens even in its application to persons who are not aliens.
One obvious example of that already canvassed a few times in argument today is the application at the border to an Australian citizen – obviously not an alien – but, in our submission, within the reach of the aliens power, at least in that circumstance, because of the objective circumstance that they are reasonably suspected of being an alien.
Another obvious example demonstrated by this Court’s decision in Cunliffe v Commonwealth, which I do not need to go to, is the regime for the registration of migration agents. The migration agents whose rights and obligations were created under that provision were not themselves aliens, but there was a sufficient connection between the regulation of their rights and obligations and 51(xix), despite the fact that they were not aliens because of the connection to ‑ ‑ ‑
KIEFEL CJ: Because they might act for aliens, was ‑ ‑ ‑
MR DONAGHUE: Act for aliens or affect the interest of aliens in the advice that they give – so it was a protective regime, protecting aliens from poor quality or unscrupulous operators. They are just two examples of how, not specifically relevant to this case, but I will come to that in a moment, but two examples of operations of section 51(xix) to support laws that do not directly operate upon aliens.
The question that always needs to be asked at a characterisation level in deciding whether any particular law is supported by a particular head of power is the question of whether there is a sufficient connection between the law and that head of power, where sufficient connection means “a connection that is more than an insubstantial, tenuous or distant connection with the relevant head of power”, that being Justice Dixon’s formulation from Melbourne Corporation, which this Court has applied many times since, including – and I will not take your Honours to it – but you will see at paragraph 10 of our outline, there is a reference to Spence, and your Honours will see at paragraph 57 in Spence the plurality using that formulation of the characterisation test.
In any case where a law actually operates on an alien, the connection between – where 189(1) is operating to require the detention of an alien, then the connection is obvious. It appears without more because, to use the language of Spence at paragraph 58, it:
has a direct legal operation on the subject matter of the power.
So that is the easy case. But the easy case does not exhaust the operation of either 51(xix) or section 189, and in its application to people who are not aliens, but who are suspected on objectively reasonable grounds of being aliens, our submission is that section 189 likewise has a sufficient connection to power, that is, a connection that is more than insubstantial, tenuous or distant.
Indeed, Mr Keim conceded as much in argument this morning, and correctly so. Your Honours might recall that Justice Gageler put to Mr Keim a couple of propositions in endeavouring to try to clarify the boundaries of the argument, and can I just revisit that exchange. As I noted it, the first proposition, with which Mr Keim agreed, was that it would be a law with respect to aliens to authorise or require the detention of someone who is reasonably suspected of being an alien.
So it was agreed that if 189 had said that, that would have had a sufficient connection to power, and that is a formulation, we submit, that would obviously catch a citizen if they were reasonably suspected of being an alien, or a non‑alien if they were reasonably suspected of being an alien.
The second proposition, which is the one that required some qualification in answer, was that, I think your Honour Justice Gageler put to my friend that it would not be a law with respect to aliens to detain someone who was reasonably suspected of being an unlawful non‑citizen, and Mr Keim said no, I would not say that because usually there is a close enough connection between a non‑citizen and an alien for the law to be valid, and then the exchange identified, so there needs to be a qualification, and what my friend put was that the qualification was that you need to carve out people who are not, in fact, aliens.
So, I hope I have not put that in too convoluted a way, but I think it was accepted that a law that requires the detention of someone reasonably suspected of being an unlawful non‑citizen would be, our friends concede, a law with respect to aliens unless it happened to apply to an alien.
The point I seek to draw out is that once it is accepted, as it was accepted in answer to proposition 1, that a law would be a law with respect to aliens if it requires the detention of someone who is reasonably suspected of being an alien, then there is no reason to carve out of paragraph 2 only the case of someone who is actually an alien, because what we are trying to do here is to identify the limit of Commonwealth power. The limit of power is not a power only to make laws binding on aliens. It is conceded to extend to a power to make laws with respect to people reasonably suspected of being aliens.
GAGELER J: Mr Solicitor, I understood the answers to be saying that the gist of the argument that he was putting lay in the difference between the constitutional conception of an alien as articulated in Love and the statutory description of the kind of non‑citizen who is caught by section 189.
MR DONAGHUE: I understand that, your Honour, and that is what I am trying to grapple with, because in the end, and I do not want to jump all the steps I need to make it, but in the end, we accept that, because of the statutory description, in the period after judgment was given in Love, you have a person, Mr Thoms, who was reasonably suspected of being an unlawful non‑citizen. If you just applied the Act, he could not be released, but the Commonwealth did, of course, release him. Why?
One needs to identify the reason that the provision was wound back in that way, and to anticipate where I am going, the winding back, the partial disapplication, is a winding back to the minimum extent necessary not to exceed Commonwealth legislative power. So what I am now ‑ ‑ ‑
EDELMAN J: Mr Solicitor, that would not just be Aboriginal Australians – maybe in practice, that might be the only likely category, but in theory at least, it is anyone who is beyond what is sometimes described as the Pochi limit - - -
MR DONAGHUE: As the Pochi limit, indeed. In theory, that is so because that is the limit of Commonwealth power. So, if you are in that category – but one winds back from this literal application of the statutory language by reason of section 3 I will come to, to cut out any operations of that provision which exceed Commonwealth legislative power. That requires you to identify what is the relevant limit of Commonwealth legislative power, and it is not to make laws binding only on aliens – our friends concede it extends to binding laws requiring the detention of people reasonably suspected of being aliens. So one only winds back to the suspicion.
GORDON J: But that is the point I raised with Mr Keim this morning. It is a temporal question. It is a question about when you are asking that question as well. In other words, in terms of power and duty, one reads 189 literally. The fact of the matter as it happened in Love and Thoms, there was a change – that change brought about a change in the reasonable suspicion, giving rise to – as you would have it – the partial disapplication of section 189.
MR DONAGHUE: Your Honour, I mostly agree with that, but the qualification on my agreement is that, in my submission, the limit of Commonwealth power is people who can reasonably be suspected of being aliens – that is consistent across time – but the application of that limit changes over time.
GORDON J: I think that is – you probably put it more elegantly than I have – but I think that that is right.
MR DONAGHUE: Well, I did not want to quibble with your Honour, but – so certainly in practice it is the decision of the Court in Love that changes things but the Commonwealth power is always a power – always extends to a power to make law not just with respect to aliens, but here, in the context of 189, to make laws with respect to persons reasonably suspected of being aliens.
I am not in any way inviting your Honours to - our friends would have it we are redrafting the section – I am not inviting your Honours to do that at all. The officer should apply the section in accordance with its terms. But the section just stops being…..at the point of the limit of Commonwealth power, so it stops mattering what it says – it just stops operating at that point. What I am trying to do is to identify that point.
GORDON J: The only qualification may be - to that – just so I am clear - is your starting point. In other words, I think you said before lunch that you accept that Parliament had drafted 189 on the basis that “unlawful non‑citizen” was synonymous with “alien” as a matter of – subject of course to the Pochi limit – and in a sense, the working out at the other end reflects the fact that the starting point is not that the concepts are synonymous in a constitutional sense, giving rise to the carve‑out.
MR DONAGHUE: It is working out that now ‑ ‑ ‑
GORDON J: Correct.
MR DONAGHUE: Now that we know they are not synonymous.
GORDON J: Yes.
MR DONAGHUE: It is working that out, exactly.
GORDON J: Thank you.
MR DONAGHUE: Working it out in a way that involves cutting off everything that is beyond power because of the difference, without cutting off anything within. Now, because our friends have accepted in answer to Justice Gageler’s proposition 1 that the law would be valid if it had said “reasonably suspects the person of being an alien”, I do not want to detain your Honours for too long with the submissions I was going to make in support of that proposition. We contend that the concession is correct.
I should just though alert your Honours to the same authority that my predecessor, Mr Bennett, relied upon when he advanced the same argument in Ruddock v Taylor, which is Milicevic v Campbell (1975) 132 CLR 307, which was not, I am afraid, on the joint list, but which has been provided to your Honours and our friends since.
It is a case where – to sketch for your Honours what was involved – it was a case about prohibited imports, a law enacted in reliance on the trade and commerce power, section 51(i). The particular provision that was challenged, 233B(1)(ca), was a law that made it an offence to have in your possession goods which were reasonably suspected of having been imported. It was said that that lacked the sufficient connection with section 51(1).
There was another provision in the same section - subsection (1B) – that provided that on a prosecution for an offence of having in possession goods reasonably suspected of being imported, that it was a defence for the accused to prove on the balance of probabilities that the goods had not been imported. But, nevertheless, the practical effect of the interaction of those provisions is that it was possible to commit to the offence if you were reasonably suspected of having goods that were imported – even if they had not actually been imported – if the defendant could not discharge the burden on them on the balance of probabilities of proving that importation – that the goods had never been imported.
So, there was an area where the offence could be committed even in relation to the goods that had not been imported. All four members of the Court in Milicevic upheld the validity of that provision. For some of their Honours – for Acting Chief Justice McTiernan and for Justice Gibbs – the provision that gave you a defence that allowed the defendant to prove that importation had not occurred, was important to their Honours’ conclusion.
But even if we accept for the moment that that is an important part of the existence of a sufficient connection, in our submission one has something comparable here because with 189 – 189 is authorising detention only for so long as the reasonable suspicion that a person is an alien exists. So, if someone can come along and prove to a court or prove to the officer that, actually, they are not an alien at all, 189 would stop operating. So, the scheme would be analogous – reasonably analogous – to that even on the narrower view in Milicevic.
But, if your Honours have the case, Justice Mason in his judgment at paragraph 320, went out of his way to say, at the end of his reasons, that he would not wish it to be thought that the provision would have been invalid but for the presence of (1B) – which was the defence – and his Honour says, near the end of his judgment, talking first about the purpose of the way that the provision serves the purpose of preventing narcotic goods in Australia in a similar way to the way 189 serves the purpose of controlling the presence of aliens in the Australian community:
The existence of a reasonable suspicion that goods have been imported may constitute a sufficient nexus with the subject matter to bring it within power. The suspicion is not entirely subjective; a court must be satisfied that it is reasonable and in this respect the reasonableness of the suspicion is the subject of judicial determination.
However, the matter does not need to be finally concluded. Justice Jacobs’ analysis, over the page on 321, is to similar effect. I will not read your Honours 321. Professor Zines and his work on the High Court and the Constitution expresses agreement with Justice Mason’s reasons that I have just read to your Honours.
So, we submit that our friends were right to concede the existence of power in circumstances where there is a reasonable suspicion of alienage and Milicevic bears that out – certainly on Justice Mason’s view but even on the narrower view that the connection depends on the capacity to displace it by proof of the contrary of the reasonable suspicion – if I can put it that way.
That then takes me to the proposition that was the content of the exchange I had with Justice Gordon a moment ago which was that, having identified the power – the link to power as a reasonable – including a reasonable suspicion that someone is an alien – one then sees the temporal dimension at work because what is reasonable at any given time, depends upon what is known or reasonably capable of being known at the time that the question is asked – or at the time of the relevant detention in question.
So, one needs to distinguish here, in our submission, between whether, in its application to the applicant pre‑judgment in Love, there was a reasonable suspicion. The answer to that question will determine the answer to the separate question before the Court now. There is then a separate question about the existence of a sufficient connection after Love which explains why the applicant was released.
Can I deal with the detention prior to Love, first, and fairly briefly? This is where I come back to propositions 7 and 8 in our written outline because the detention pre‑judgment in Love is, in our submission, exactly the same as the detention pre‑judgment in Patterson was for Mr Taylor. In both cases there was thought to be a prevailing body of law – indeed, Nolan in both cases was thought to be the applicable governing authority. Then after the detention in question had occurred, the Court declared that there was a third category of non‑alien and the plaintiff was in it, and in Ruddock the Court dealt specifically with that argument at paragraphs 38 through to 40.
So, if your Honours could go back to Ruddock 222 CLR 612, it is volume 6, tab 24, and turn to paragraph 38, you will see there the plurality recording the submission that was made, the argument, and the last few lines on the page:
it was submitted that a belief or suspicion could not be reasonable if it was based on a mistake of law, even if the mistake was not then apparent and was identified only after the detention commenced.
Then their Honours answer that contention in paragraph 40 and there are two key parts of paragraph 40. So the first is the first few sentences:
The short answer . . . is that what constitutes reasonable grounds for suspecting a person to be an unlawful non‑citizen must be judged against what was known or reasonably capable of being known at the relevant time.
Their Honours then identify the relevant knowledge:
when each detention . . . was first effected, Nolan required the conclusion that his visa could lawfully be cancelled –
In other words, what was known or reasonably capable of being known at the relevant time was the state of Australian constitutional law, as declared by this Court, as to status as an alien or not. Then – and this is the second key part – six or seven lines up from the bottom, their Honours say:
Even if Patterson were to be understood as overruling Nolan –
So that is even if Patterson is to be understood as establishing that Mr Taylor is a non‑alien, that is what those words mean:
what were reasonable grounds for effecting the respondent’s detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case.
So the change in the understanding of constitutional law, even if it be understood as there being a change, Patterson having overruled Nolan, did not retrospectively stop the previously reasonable decision from being reasonable. When their Honours go on to apply that – which they do at paragraphs 49 to 51 under the heading “Lawful detention” – the way it is applied is to say, well, each officer had what appeared to be a valid visa cancellation decision, they looked to see whether the respondent had any other visa, upon finding that they did not they detained – and their Honours say at 50:
Plainly, each suspected that the respondent was an unlawful non‑citizen. It was not suggested that either had acted in bad faith. The conclusion that each reasonably suspected that the respondent was an unlawful non‑citizen follows inevitably.
It also follows from that fact, and the reasons given earlier –
which includes the constitutional reasoning:
that the respondent’s detention was lawful and required by the Act.
So that is the answer at paragraph 51 to what their Honours identified as the relevant question back in paragraph 36 and that is why the detention was valid.
We say by parity of reasoning there is unchallenged evidence – which I will not take your Honours to but it is in the case referred book at pages 37 to 38 – that the three officers of the Department who detained Mr Thoms in each case checked to make sure he was not an Australian citizen, checked to make sure that he did not hold a visa, and on the prevailing law at that time formed the inevitable conclusion that he was an unlawful non‑citizen. On that basis, he was detained and that detention does not retrospectively cease to be reasonable. The suspicion that caused that detention does not retrospectively cease to be reasonable because the law changed.
GAGELER J: Mr Solicitor, I may be misunderstanding it, but are you saying that the operative mistake, both in this case and Taylor, was to equate the statutory expression “unlawful non‑citizen” with the constitutional expression “alien”?
MR DONAGHUE: Well, if it be necessary to identify a mistake, yes, that is right. On one view of it, they did not make a mistake, they did what the law required of them at the relevant time, and we subsequently know that there was a constitutional limit that they did not know about, but in my submission, that ‑ ‑ ‑
EDELMAN J: That is the deep jurisprudential question that the House of Lords split on in Kleinwort Benson v Lincoln, to which Justice Callinan refers, as to whether you can have a retrospective mistake as a result of a judicial change in the application of a statute.
MR DONAGHUE: I do not think they are deep waters I need to get into, your Honour.
EDELMAN J: Yes.
KEANE J: Particularly because the question here is not whether someone made a mistake, it is whether they had a reasonable suspicion.
MR DONAGHUE: Well, that is why I did not want to embrace the idea there was a mistake because, in my submission, they had a reasonable suspicion and therefore the detention was valid. Whether, had the facts been different, they would have had a reasonable suspicion is a different question, but having said all of that, the key change is the change that your Honour identified, in my submission, from Nolan, establishing that “alien” and “non‑citizen” are synonymous to the existence of the third category.
GLEESON J: Mr Donaghue, can I just clarify that. How could it ever have been the case that the officers would have had a different suspicion? One thing that seems to be clear throughout is that at any point in time Mr Thoms would have been identified as an unlawful non‑citizen.
MR DONAGHUE: From the moment his visa was cancelled, that is so. We would embrace the proposition that there could never have been, in the period he was detained, any different answer. It would not have been open to the officers to say – if one of them was said by Mr Thoms to the third officer at some point in time - he said, well, I identify as an indigenous person, but the officer could not, on the law as it had then been declared by this Court, have said, that means you are not a – I no longer reasonably suspect that you are a non‑citizen or an alien, it was only once the – upon judgment having been given in Love that that position changed and ‑ ‑ ‑
GLEESON J: So the only thing that could have been different could have been that the officer would have had a different – would have realised that the question of whether he was an unlawful non‑citizen was the end of the matter and that, if they had appreciated, as they now do, that that was not the end of the matter then they would not have detained him in the way that ‑ ‑ ‑
MR DONAGHUE: Any longer, yes.
GLEESON J: Yes.
MR DONAGHUE: But that change does not mean that what they did at the time was not reasonable. That is all there needs to be in order to be within the limits of Commonwealth legislative power, and so there is no basis to disapply. Where that then – so that deals, in my submission, with the pre‑Love detention which is ultimately the subject matter of the special question that your Honours are asked to answer that has been removed into the Court.
I do want to say something as the final topic I address about how the disapplication exercise works post‑Love, really just in order to make sure that, because the breadth of the applicant’s answer to that question is much greater than we submit is justified, and so it might assist your Honours to understand how the Commonwealth sees the disapplication exercise working, even though there is not in issue in the case any detention after the decision because Mr Thoms was, of course, released.
KIEFEL CJ: It is just intended to assist the Court in relation to how it would operate, because no answer is required on ‑ ‑ ‑
MR DONAGHUE: No answer is – I am endeavouring to assist the Court to understand how the disapplication analysis works, as part of my answering ‑ ‑ ‑
KIEFEL CJ: If it was in issue.
MR DONAGHUE: If it was in issue, or to the extent that our friends are saying. Our friends’ disapplication argument makes no distinction, I think, between the pre and post‑detention period. They just say the section can never apply to someone who is a non‑alien. We do draw a distinction because, as Justice Gordon has put to me a few times, there is this temporal dimension to it. But I do not want to detain your Honours at any length, but I do want to make sure that we have been clear about how we submit that it works, and I will not do it at any great length.
The starting point, of course, is that Love recognised the existence of the third category, the non‑citizen non‑alien, with the consequence that, hence, thereafter, a reasonable suspicion that someone was a non‑citizen could no longer necessarily be equated with a reasonable suspicion that the person was an alien. While those questions were the same pre‑Love, they ceased to be the same post‑Love.
So that one could have, as one had with Mr Thoms, the situation after this Court gave judgment, that he was reasonably suspected of being an unlawful non‑citizen, but, nevertheless, it was clear that he should not be detained any longer because the Court had held that he was a non‑alien. So, there was that disconnect.
The existence of that disconnect or disjunction sends one, in our submission, to section 3A of the Migration Act, if your Honours have it - it is volume 1, tab 4 - which is a version of – a more specific version to a Migration Act of section 15A of the Acts Interpretation Act. But it is interesting in the sense that in our submission what it directs the Court to do is to adopt the technique of confining the Act, which Justice Edelman has called, in Clubb, partial disapplication, whereas section 15A leaves open a number of available tools – reading down, severance, partial disapplication.
This seems to be a legislative instruction to approach constitutional overreach as it was described in Chetcuti as by partial disapplication. I say that is so - in subparagraph (1) your Honours will see, subject to contrary intention, if a provision of the Act - so, if 189:
(a)would, apart from this section, have an invalid application; but
(b)also has at least one valid application;
it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.
So, it picks up Justice Edelman’s comment from earlier about the minimum extent. You have to disapply only the invalid applications leaving all the valid applications. Those expressions – “valid application” and “invalid application” – are both defined terms over the page in subsection 5. An “invalid application”:
means an application because of which the provision exceeds the Commonwealth’s legislative power.
A “valid application”:
means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.
So, the inquiry is being made as to the limits of Commonwealth legislative power and one is to read each application of the provision – sorry, I should have said “application” is also defined to mean the application in relation to, relevantly, one or more persons. So, one can go person by person in the application of 189, and if it would be beyond the reach of Commonwealth legislative power to detain a particular person, then that person is carved out from the reach of the provision. It is not about redrafting the section. It is about respecting the constitutional boundary of power.
I do not want to detain your Honours by going into a detailed set of submissions about reading down versus severance versus partial disapplication. We have in our written submissions, at paragraph 31, made some submissions about the nomenclature of this process, drawing heavily on Justice Edelman’s judgment in Clubb, but also on your Honour Justice Gageler and your Honour Justice Gordon’s judgments in the same case.
I will not take your Honours back to it, but my learned friend relied in particular this morning on a particular passage in your Honour Justice Edelman’s judgment at paragraph 436, which talked about it being too big a change to read down to exclude political communication. Your Honour, of course, rejected the reading down, but a few paragraphs later at paragraph 438 said that you can partially disapply, excluding political communication. So, our friend was really using a limit on reading down as if it was transferable to a limit on partial disapplication, whereas in a few paragraphs later your Honour explained why that was not so.
Again, without taking your Honours to Clubb, can I refer you, in Justice Gageler’s judgment to paragraphs 151 and 152 where your Honour Justice Gageler was responding to an argument that the effect of reading down the offence provision there to exclude political communication would have made political communication an element of the offence that the prosecution had to prove beyond reasonable doubt.
Your Honour said that is not right; that is not how partial disapplication works. It does not alter the statement of the obligation. It leaves the meaning of the provision unchanged. It just takes some cases outside of the area of operation. So you did not need – the prosecution would not have needed to prove something was not political communication, even if the section had been confined in the way that your Honour there described.
GAGELER J: Mr Solicitor, in that case we were all dealing with section 15A of the Acts Interpretation Act. I have a recollection that a provision somewhat like section 3A was in some corporations legislation and was considered in Dingjan or at least raised for consideration and there were some views tentatively expressed. Do you have a recollection of that?
MR DONAGHUE: I have a vague recollection, now that your Honour asks me that question. We can look into that, if that would assist your Honour, but I cannot answer it now.
GAGELER J: Perhaps because it is so peripheral to your argument it does not matter, but it may well be that 3A is attempting to do a little more than the traditional understanding of section 15A.
MR DONAGHUE: That is possible, your Honour. We, of course, had both here – 15A and 3A – I am focusing on 3A because it is a more particular – more specific provision. But if your Honours were to form a view that there was a problem with 3A, in my submission, 15A could operate in the way that was explained in Clubb to produce a partial disapplication answer, so I do not submit it ultimately matters.
The reason that I am addressing that, and I have highlighted 151 and 152 in particular, is that our friends have said – particularly they said it in their reply at paragraph 5 and they said it orally this morning as well – that there was some suggestion that 189 might – I think this must be an alternative because the main argument was just that 189 cannot apply at all to people in the Love/Thoms category, but I think it was suggested at one point that if officers formed a suspicion that a person was not a First Nations Australian who satisfies the tripartite test in Mabo, that that might be a kind of way of defining the applicable limit.
The point I am trying to make – perhaps not very elegantly – is that a partial disapplication exercise can never change the question that the officers have to answer, so the only question that the officers have to answer in applying section 189 is the question the statute asks: do you reasonably suspect the person to be an unlawful non‑citizen? But because of the possibility that asking that question the boundaries of Commonwealth legislative power might be exceeded, the Act might not require the detention of that person even though, on its face, it seems to do so, and partial disapplication is about cutting off that extra operation.
Where we submit that that leaves an officer in practical terms is here. The officer asks themselves the statutory question: do I reasonably suspect you are an unlawful non‑citizen? If yes, then prima facie they have to detain. But – and this is where I think perhaps, I respectfully submit, our friends might not have understood how we put this – the officer, like any member of the Executive, is a person who should endeavour to conform their behaviour, mould their behaviour, so as to align with the limits on their authority. Those limits on their authority could only ever be conclusively determined by a court, of course.
So because 3A identifies the limit of reading down by reference to the limit of constitutional legislative power, that is a decision for a court. But the officer, nevertheless, knowing about Love, knowing about 3A and 15A, can say, well, I am going to try to make sure that I do not detain someone who will ultimately be found, or would ultimately be found by a court not to have authority to detain, and they would in doing that be asking themselves the same kind of question that Justice Brennan identified as the President of the AAT in Re Adams, which your Honours heard about recently I think in the Citta Case.
So we have not given your Honours Adams, but to quote one line, Justice Brennan said that this:
implies a competence [on the administrator] to consider the legal limits of that authority . . . mould its conduct . . . The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.
So what the officer does, is entitled to do, is to apply the statutory test, but then to say, well, I do not want to detain someone unlawfully so I will try to consider as best I can what a court would say about whether 189 does actually authorise the detention of this person, which ultimately depends on whether, on the objective material, the person could reasonably be suspected of being an alien, because if the power extends to persons reasonably suspected of being an alien, that will be the question the court asks.
So, if the officer asks the same question, it is not legally effective in any way – it is not reviewed by a court if there is a challenge to the boundaries of Commonwealth legislative power, but it is an appropriate thing for an officer to do to try to avoid exceeding their power. It is the reason why we submit it was clearly open to an officer – I withdraw that.
So, it is easy when the court has declared that the person is a non‑alien, as this Court had done in Thoms, but the practical reality of Love in the period since it was decided is that the Commonwealth officers now are confronted by this problem on a not uncommon basis. They have an apparent duty under the Act to detain people who are unlawful non‑citizens, but they know that the courts might well find that people – well, will find that people who satisfy the tripartite test are not aliens – cannot reasonably be suspected of being aliens – so they have to work out how to give effect to the duty to detain that is imposed under 189.
In practical terms, what they do is that they try to assess whether, on the balance of probabilities, a person does or does not meet the tripartite test. If they think that they do meet the tripartite test, they let them out; if they - - -
EDELMAN J: Mr Solicitor, your test for an officer applying – disapplying the legislation in the same way as the officer would apply legislation based on conclusive judicial decisions is a little broader than that in paragraph 37. It has to be, does it not? It has to encompass the circumstances not of just Aboriginal Australians but in theory, of any one who is able to prove that they are a non‑alien, even if they are also a non‑citizen.
MR DONAGHUE: Except, your Honour, at the moment, there is no one in that category. There is a theoretical possibility, but for an officer to try to ‑ ‑ ‑
EDELMAN J: You have conceded several times in this Court that there are people in those categories. One is just not sure how many there are. Categories that the Commonwealth conceded several times are people who were born in Australia to Australian parents, who are not dual citizens.
MR DONAGHUE: I accepted - so that is a concession about the limits of the first aspect of the aliens power, but it has not been shown that in exercising its power under the first aspect of the aliens power the Commonwealth has ever tried to treat people as an alien that it was not entitled to treat as aliens, except in Love.
So, I accept in theory what your Honour put is open to me, but, in my submission, an officer forming a reasonable suspicion in the absence of any judicial guidance to suggest that a person whom the Commonwealth has treated as an alien actually is not one, would be entitled to detain – and otherwise - but, what I am trying to put to your Honours is that all of this is really by way of prudential behaviour by Commonwealth officers trying not to act unlawfully. It is an assessment of how the court will partially disapply 189 – it is not a re‑interpretational redrafting of section 189.
It has the practical result that an officer – certainly an officer who is aware of some claim that a person meets the tripartite test would be well advised to ask themselves, well, on the material that I have, do they meet that test because if the officer thinks that they do, then there is a decent chance that a court will say, well the detention of that person was not valid.
Because you did not reasonably suspect them of being an alien and because you could not – or rather not you did not – you could not reasonably suspect them of being an alien and because you could not reasonably suspect them of being an alien, 189 is disapplied and your action in detaining them is unlawful, whereas if the officer makes that assessment and says, well, I know you self‑identify as an indigenous person but I have just seen nothing on the material that would show that you meet the other two limbs, then the officer might say, well, doing the best I can, I do still suspect you are an alien and in that situation, the officer would say, well I see no reason why a court is likely to disapply 189, so I should do what the section requires me to do – keep the person in detention and, if the person wants to test that, then of course they can bring a habeas claim and test it – and a court will decide what the limits of the Commonwealth legislative power are.
On the habeas claim, they do not judicially review the officer’s opinion. The officer’s opinion does not matter, beyond their reasonable suspicion of unlawful non‑citizenship. So, in our submission, all of that, really, is by way of saying that when our friends say you just partially
disapply to carve‑out all non‑aliens, they go far wider than 3A authorises because they fail, in that disapplication, to take account of the fact that Parliament’s legislative power extends not just to aliens but to people who are reasonably suspected of being aliens and that the disapplication needs to take account of that aspect of Commonwealth power which is why officers doing their best to behave lawfully also need to take account of that aspect of legislative power – bearing in mind, of course, that the officers have been told by Parliament, you must detain.
So, they are in a tricky position. They have a statutory duty to detain unless that statutory duty is invalid in its application to particular people. That is the line they have to try to navigate.
GAGELER J: You are telling us, though, we do not need to decide ‑ ‑ ‑
MR DONAGHUE: No.
GAGELER J: ‑ ‑ ‑ this point in this case and you are also telling us that there are lots of cases in practice where this point may well arise for determination.
MR DONAGHUE: I am conscious of both of those things but ‑ ‑ ‑
GAGELER J: We normally do not give advisory opinions.
MR DONAGHUE: I know. I am conscious of that also. My objective was really to make clear – because our friends have said the Commonwealth released him – Mr Thoms after judgment – and that shows that they accept that you need to disapply section 189. We do accept that in the way that I have described to your Honour but not in the global kind of way that is put against us. Without identifying the line, we were concerned it would not be clear to your Honours what you should take from his release. So, that is why I addressed that. Unless your Honours have anything further, those are our submissions.
KIEFEL CJ: Yes, thank you, Mr Solicitor. Yes, Mr Keim.
MR KEIM: Thank you, your Honour. Your Honours, our learned friends went to a couple of other sections of the Migration Act and suggested that if your Honours accept our approach to disapplication with regard to section 189, that would be, necessarily, to the disadvantage of Aboriginal persons who satisfy the tripartite test and would have other unforeseen consequences.
We say two things with regard to that. If, in the event there are provisions in the Migration Act which, because of the imprecise language used in the Act – by that I mean by using “unlawful non‑citizens” as a proxy for “aliens” – then that is a matter that can simply be addressed by amending those sections in the Act. But we wish to address the example that our learned friend gave at section 29 – which relates to the ability to grant to a non‑citizen a visa. That visa, of course, according to sections 13 and 14, makes a person a lawful non‑citizen.
We say that section 29 does not have to be read down in the same way as section 189. We say the grant of entry documents – and that is all a visa is – an administrative way of providing entry documents – and the grant of travel documents are not necessarily supported only by the aliens power and the nationhood power and, in most cases, probably the immigration and emigration powers would support those as well.
So, what is peculiar about section 189 is that it provides for detention. It provides for detention that is time limited but can run indefinitely and it provides for removal from the country. They are all liberties that the law is very keen – the common law is very keen to protect. That is quite a different situation where the statutory criteria – by which a visa may or may not be granted – and also the powers that might support the grant of entry documents are quite different to the power – the exclusive power – the aliens power that supports section 189. So, we say, that that comparison between those two sections is not apt.
Can we address your Honour’s question this morning – Justice Keane – if I could just return to that? That related to – you used the term “an Australian citizen”. If an Australian citizen presented without proper travel documents, do we say that that person could not be detained? If I return to that theme, an Australian citizen who is not an Aboriginal Australian who satisfies the tripartite test and who, adopting your Honour Justice Edelman’s points this morning, does not otherwise fall outside the Pochi limits, is quite different from an Australian citizen who does not meet those tests because – the point that we have made throughout this – and the point that distinguishes what we say to many of the assumptions on which our learned friends operate – is that it is the relevance of the reasonable opinion that is formed that is important.
So, if you are not an Aboriginal Australian who satisfies the tripartite test or do not otherwise fall outside the Pochi limits, then the opinion that – the reasonable opinion that you are an unlawful non‑citizen is actually relevant to whether you are an alien or not. So, that distinguishes, in our submission, the example that your Honour gave this morning because it does not matter that you are an Australian citizen – that is, you are not a non‑citizen and, therefore, you cannot be an unlawful non‑citizen.
It does not mean that section 189 does not have power to apply to you because if the opinion is formed and the opinion is correct then the equivalence between “unlawful non‑citizen” and “alien” is satisfied. That is the difference between the example that your Honour asked us about this morning and the situation that is the situation of Mr Thoms.
KEANE J: But, if Mr Thoms is not an alien and an Australian citizen is not an alien, how are they relevantly different?
MR KEIM: That is not the equivalence, your Honour. The equivalence is between an unlawful non‑citizen who is an alien and an unlawful non‑citizen who is not an alien. In the second case, the opinion that the section asks the officer to form and on which the officer is given the authority is not relevant in the second case. In the first case, if the opinion is correct and the person is an unlawful non‑citizen, then that person is an alien.
What we have said consistently is that in most cases section 189 is valid. But, section 189 cannot operate to authorise the detention of a person where the opinion that is formed is not relevant to that person’s status as an alien. That is the case that of Mr Thoms. It may be the case of an Australian, perhaps, whose birth has never been recorded so that they are actually deemed to be citizens by the Citizenship Act but they cannot prove it.
KIEFEL CJ: Have you dealt with the example that Justice Keane just put to you, though, about what is the difference between a lawful citizen and a person who is a non‑alien for the purpose of the application of section 189? Why cannot the same test be applied to them?
MR KEIM: If, in the case of Mr Thoms – as the section requires – an opinion is formed – a reasonable opinion is formed that Mr Thoms is an unlawful non‑citizen, that cannot make him an alien.
KIEFEL CJ: But it does not matter what he is because it hinges on whether there is a reasonable suspicion. It does not matter in fact what he is or is not.
MR KEIM: If the reasonable suspicion was that he was an alien, your Honour’s statement would be correct. But it is a reasonable suspicion with regard to a concept that is constitutionally irrelevant to him because the fact that he is, indeed, an unlawful non‑citizen has nothing to do with his rights to be in Australia. That is the distinction. So, it is not a question as to whether ‑ ‑ ‑
KIEFEL CJ: You are just saying, in its terms, section 189(1) has no application.
MR KEIM: Is not supported by the power, yes. I do need to go back to some sections of Ruddock v Taylor – seeing that it has been addressed so closely by our learned friends. It is tab 24, commences at page 1820 – I wanted to take your Honours to paragraph 14, which is found at page 619 of the report, page 1827. That is where the majority says:
Although the provisions of s 189 were central to the defence filed on behalf of the Ministers and the Commonwealth, the operation of that section was not the chief focus of the reasoning in either the District Court or the Court of Appeal. To understand why that is so, it is necessary to identify not only the way the respondent put his case but also some relevant decisions of this Court.
The next section I wanted to take your Honours to was paragraph 17. That is where the majority notes two things. One is that:
Two years after Patterson was decided, and after the Court of Appeal had given judgment ‑ ‑ ‑
Shaw was decided. Their Honours state the ratio of Shaw for the purpose of the matter before them – which is that:
A majority of the Court also held that Patterson should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister.
So, at the time that the High Court was handing down its decision in Ruddock v Taylor, the only basis of invalidity of the cancellations of the visas were the administrative law bases. There was no possible argument that the decision in Patterson was the basis for any holdings of the High Court in this matter, and the result of that is that any comments by the majority with regard to when section 189 might or might not apply must be obiter in that case.
Paragraph 18 sets out the submissions of Mr Taylor in that case. Those four submissions make it clear that the focus of the High Court was on the effect of the cancellation decision rather than on any conclusions drawn from Patterson’s Case on a hypothetical basis. So, their Honours say:
in its simplest form, founded the respondent’s claim upon three propositions: (a) each decision to cancel the respondent’s visa was legally infirm and, having been quashed by order of this Court, was to be treated as if never made –
That can only be the administrative law grounds because they were the only grounds that were available at this point in time:
(b) the respondent’s detention was an inevitable consequence of the (invalid) decisions to cancel –
So, it was the relationship between the cancellation of the visa and the effective operation of section 189 to justify detention that was an issue:
and (c) because the decisions that brought about the respondent’s detention were not lawful, the detention was unlawful.
Again, that stresses the relationship between the cancellation and the officer’s opinion. Their Honours referred to that as the “unlawful decision contention”. In the next paragraph, the Court goes on to say:
Against the possibility that the unlawful decision contention was rejected, the respondent advanced three other submissions. He submitted that the Court had held in Patterson that there was no power to cancel the respondent’s visa –
and the Court rejected that. That was a wrong reading of Patterson. The argument goes on:
that “even if s 189 protected against mistake of law it could not protect against mistakes about the reach of the Commonwealth power” (the power contention).
Again, that could only come up as a subsidiary consideration because Patterson had by that time been overruled. In paragraph 20, their Honours say Mr Taylor:
further submitted that an officer could not have reasonably suspected that the respondent was an unlawful non‑citizen where the cancellation decision was legally infirm.
One can see by the framing of that argument, that that is focused upon the fact that the cancellation of the visas were cancelled. It did not matter whether it was on administrative law grounds or constitutional grounds or anything else. That was the basis of that argument. So, that was live before the Court:
Section 189 was said not to “protect” officers in circumstances where their belief or suspicion rested on a mistake of law –
But that is not the constitutional mistake of law within the power of section 189. Again, that is the mistake of law as to whether a valid visa was in operation at that point in time. In paragraph 22 – because estoppel – which is discussed at paragraph 21 is not developed to any extent – their Honours say:
The simplest form of the respondent’s argument did not depend upon identifying why the Minister’s decision had been quashed. It was submitted that the relevant fact was that the decision had been quashed. It mattered not whether it was quashed for want of procedural fairness in making the decision, for want of power to make it or for constructive failure in the exercise of jurisdiction.
In this form of the argument, reference was made to s 189 only to make good the second step: that detention was a direct and inevitable consequence of the decision to cancel.
So, it is the relationship between what the Ministers did and the duty on the officers to detain:
When it is recognised that s 189 requires an officer to detain a person whom the officer knows or reasonably suspects to be an unlawful non‑citizen, the second step in the respondent’s argument is readily taken.
There are some references to wrongful detention cases in the rest of that paragraph. In paragraph 24, their Honours say:
The third step in the respondent’s argument was that because the decision to cancel his visa pursuant to s 501 was unlawful, the detention was unlawful.
Their Honours reject that argument by saying:
This conflates two separate inquiries –
Again, that is an argument that based entirely on the fact that the visas were cancelled – not on any constitutional basis. Then, their Honours, in paragraph 25 say:
The first inquiry, about the lawfulness of the decision to cancel the respondent’s visa, turned upon identifying valid legislative power to do so, and upon whether that power had been lawfully exercised. That directed attention, principally, to s 501 of the Act. By contrast, the lawfulness of the respondent’s detention turned upon whether there was statutory or other authority to detain him.
That is their Honours responding to the argument and what they are essentially saying is that if there was a reasonable suspicion – and they say there was because a mistake of law does not obviate that – then it does not matter that the visa had been cancelled:
It may be accepted that in so far as s 189 –
I will skip over – your Honours will be pleased – to paragraph 29 because the next discussion in the next few paragraphs is about the importance that it is a reasonable suspicion and, therefore, it extends beyond the issue that the visa was cancelled. If I can take your Honours to paragraph 29, which is on page 1831, page 623 of the report, their Honours say:
The Court of Appeal did not consider the application of s 189 separate from its examination of the lawfulness of the Minister’s exercise of power. It is convenient to deal at this point with why the Court of Appeal’s reasoning took the path it did.
So, what their Honours are indicating there is that – and there is a discussion in the next couple of paragraphs that I will take your Honours to – what happened in the Court of Appeal with regard to section 189 was not crucial in the Court of Appeal’s decision because the Court of Appeal was saying it was the fact that the visa had been cancelled by the Ministers that made the Ministers responsible and it is just the causal relationship between the two things. Section 189 itself did not matter.
Then, their Honours talk about some of the matters that were discussed in the Court of Appeal. They make the point that the justices in the Court of Appeal had misread Patterson with regard to the effect on section 189. But it is clear those considerations are not relevant. Their Honours say:
In the Court of Appeal, much attention was directed to whether the respondent’s detention was a direct or inevitable consequence of the decision to cancel his visa.
That was the basis on which the Court of Appeal came to that conclusion:
That was treated as the determinative issue. The premise for this reasoning was that the respondent’s detention was necessarily unlawful. Thus Spigelman CJ held that it followed from what had been decided in Patterson that s 189 could have no valid application to the respondent.
But the High Court held that that had not been decided in Patterson.
And although Meagher JA held that the officers who detained the respondent had reasonably suspected him to be an unlawful non‑citizen, and presumably had therefore acted lawfully in detaining him, s 189 (ss 196 and 501) “were inapplicable to the present case”. In his Honour’s view, this “inapplicability” followed from Patterson. Ipp JA agreed in the reasons in the reasons of both Spigelman CJ and Meagher JA. And because the detention was thus assumed to be unlawful, the focus was upon whether the Ministers had brought it about.
But as your Honours go on to say in the next paragraph, the court was wrong about what Patterson had decided. In paragraph 31, their Honours say:
There is an additional reason why the Court of Appeal took the path it did. In their written submissions to the Court of Appeal, the Commonwealth and the Ministers submitted that -
and that sets out the concession which was made. In the second half of that paragraph, the Court says:
the Commonwealth and the Ministers repeatedly sought to characterise that part of s 189 . . . as a “defence” or “excusing provision”.
Their Honours rejected that proposition as well. Over the page, at page 624 of the report, in paragraph 33, again the observation is made that the Court of Appeal had misunderstood Patterson. Their Honours say:
The premise which underpinned the attention given in the Court of Appeal to whether the Ministers’ decisions caused the respondent’s detention is flawed. Patterson did not establish that s 189 could have no valid application to the respondent. After the Court of Appeal gave its judgment in this matter, this Court decided in Shaw that Patterson should be regarded as authority for what it decided respecting –
and this is the limiting factor – this is what Patterson subsequently held – and, of course the Court of Appeal was not aware of this:
s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister.
That is the administrative law grounds:
Patterson established no principle about the reach of the aliens or immigration powers to which effect should be given. But altogether apart from the subsequent consideration of these matters in Shaw, the Court in Patterson did not examine, let alone decide, any question about the validity of s 189 in its application to the present respondent.
GAGELER J: Mr Keim ‑ ‑ ‑
MR KEIM: Yes, your Honour.
GAGELER J: Could you tell me what I am to take from rereading these passages?
MR KEIM: What I am going to say, your Honour – and I am almost at it – is that what the High Court was dealing with in Ruddock v Taylor was the impact of an invalid cancellation of a visa on administrative law grounds on the validity of a reasonable opinion that the person was an unlawful non‑citizen for the purpose of section 189. They held that a mistake of law – including a mistake of law with regard to the existence or not of the visa and the validity or not of the cancellation – still allowed a reasonable opinion that the person was unlawful non‑citizen.
So, the crux of the decision was with regard to (a) the proper construction of section 189 and the proper meaning of “a reasonable opinion”. Then they make some comments in the paragraph that I am just about to come to – which my learned friend relied upon this morning. But those comments with regard to section 189 – and whether the invalidity of section 501 – the presumed correctness of Patterson – are simply obiter in that decision.
The other thing that I want to say with regard to that is that the general observations that the respondent in Ruddock v Taylor relied on some sort of proposition that section 189 could never apply to Mr Taylor does not include, as far as we can tell – on the reading of the material – the proposition that we put today which is the reason why it is not legally effective with regard to Mr Thoms is that the question which is asked is an irrelevant question in his case.
The proposition which seems to have been advanced – in a fairly confused way – both in the High Court and the Court of Appeal – is that anything like section 189 was just ruled out if the person was a non‑alien. That is as we understand the paragraphs that follow. So, (a) it is obiter and (b) the precise argument that was being dealt with – or the imprecise argument which was being dealt with is different to the argument that we are putting here today. Their Honours say, in paragraph 34, if I start – no, I will read the whole paragraph:
In Patterson, the Court considered the validity of s 501 in its application to the present respondent. Even if Patterson were to be understood as holding that s 501 was invalid in that operation, it by no means follows that the respondent was beyond the valid operation of other provisions of the Act.
So, they are expressing a view with regard to that. But it is in terms of “it by no means follows” and, as we say, it is obiter:
Indeed, his holding a visa demonstrates why that is not so. And, in particular, whether or not the respondent was a person whose visa might lawfully be cancelled, and thus a person who might be removed from Australia as an unlawful non‑citizen, it does not follow that s 189 could never have valid application to him.
In this appeal the respondent did not submit that s 189 was invalid.
So, we say, to the extent that those views are expressed in 34, they are obiter. But we also say what is not dealt with there is not that section 189 cannot be amended to say, if you reasonably suspect that a person is an unlawful non‑citizen and not an indigenous person who meets the tripartite test, that there is not constitutional power for that. The proposition that they seem to be demolishing there is, you can nothing like section 189 in the case of a non‑alien and that is not the proposition we are putting here.
Their Honours go on and stress again, in the middle of paragraph 36 on the next page, page 625 of the report:
It is irrelevant because Patterson did not consider, and did not decide, any issue about the constitutional validity of section 189 . . . Asking whether the Act applied to the respondent obscures the more precise question that must be asked in respect of each of the two periods of detention in issue in this case. And in doing that, it is necessary to recognise that the first period of the respondent’s detention terminated when the first decision to cancel his visa was quashed for reasons which were not founded upon any allegation of constitutional invalidity.
There was an argument, in paragraph 37, where it said:
when it is said that s 189 “could not protect against mistakes about the reach of Commonwealth power” it is said, in effect, that s 189 can have no valid application to require detention of a non‑citizen whose visa has not been lawfully cancelled.
One can see there that the power contention which is actually just based simply on if a mistake of law cannot provide a proper basis. That is dealt with in paragraph 38. Their Honours note, in paragraph 39:
The contention was an argument about the construction of the Act and the word “reasonably” in particular. No constitutional reason was asserted for reading the section in the manner suggested.
Our learned friend referred more recently to paragraphs 38 to 40. The formulation which our learned friend uses there in their submissions with regard to the disapplication point is contained in paragraph 40, where their Honour say:
The short answer to the contention is that what constitutes reasonable grounds for suspecting a person to be an unlawful non‑citizen must be judged against what was known or reasonably capable of being known at the relevant time.
But they are dealing with the administrative law, the effect of a cancellation there, when they go on to say:
what were reasonable grounds for effecting the respondent’s detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case. And, as pointed out earlier, Patterson said nothing about the validity of s 189.
So, the cancellation was held to be invalid both on the administrative law grounds and on the interpretation of section 501 – and on the point with regard to Mr Taylor not being an alien – and the mistake of law is emphasised at paragraph 41.
The point that we make – which I have just said to your Honour Justice Gageler previously – is that the reason that section 189 is not supported in the case of Mr Thoms is not because of any lack of power to frame a section that requires a relevant opinion, namely whether the person is an alien. It is on the fact that, in his case, it gives us a criterion that is, in fact, irrelevant.
So, we say, that Ruddock v Taylor expresses some obiter which might be vaguely relevant to the question before your Honours today. It was purely obiter and the question that was obviously dealt with by them is not the question that we are putting to the Court today.
There are a couple of other short matters that I wanted to deal with, your Honours. Just with regard to Cunliffe, we say it is really of no assistance to the Court with regard to this matter. As our learned friends indicated, it is related to a legislation regulating migration agents who, by definition, almost are people who provide migration assistance to people who are actually aliens.
Regulation of the migration agents in that case depends on an actual connection between those non‑aliens, the agents and the persons who are actually aliens. There is no alien in Mr Thoms’ case to provide the connection to section 51(xix) in the way that section 189 is currently framed. There is no alien in Mr Thoms’ case to provide the connection to section 51(xix).
The point is demonstrated in Cunliffe by Chief Justice Mason in recognising that Part 2A of the Migration Act could not be supported as an exercise of the immigration power because some of the entrance applicants were not immigrants. Similar comments – our learned friends in their written submissions refer to the WorkChoices Case and Actors & Announcers Equity Association of Australia v Fontana Films – a connection in both those cases was between other persons who interacted with actual constitutional corporations.
With regard to Milicevic – and I am not sure that we and our learned friends are far apart with regard to both of these cases but we say that the proposition that Milicevic is somehow analogous for the disapplied meaning that the Commonwealth seeks to attribute to section 189 is wrong – not Mr Thoms’ case that section 189 is invalid so far as it applied to persons for whom “unlawful non‑citizen” is an accurate proxy for “alien”.
The noticeable aspect of section 233B(1)(ca) in the prohibited imports legislation is that the words “prohibited import” do not insert any proxy terminology between the concept that activates the support of overseas trade power – namely, import and the provision. This can be seen from the passage at 320 in Justice Mason’s argument, where his Honour says:
The existence of a reasonable suspicion that goods have been imported may constitute a sufficient nexus with the subject matter to bring it within power.
The reference to “imported” is key because that is the nature of the inquiry. It is sufficiently connected to section 51(i). If section 189 said “alien”, it would also be sufficiently connected to section 51(xix) in the case of Mr Thoms, but it does not. They are our submissions in reply. Thank you, your Honours.
KIEFEL CJ: Yes, thank you, Mr Keim. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.
AT 3.38 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Constitutional Law
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Statutory Construction
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