YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor

[2024] HCATrans 47

[2024] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S27 of 2024

B e t w e e n -

YBFZ

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON TUESDAY, 6 AUGUST 2024, AT 10.00 AM

Copyright in the High Court of Australia

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR T.M. WOOD and MS K.E.W. BONES for the plaintiff.  (instructed by Refugee Legal)

MR S.P DONAGHUE, KC Solicitor-General for the Commonwealth of Australia:   May it please your Honours, I appear with MR M.A. HOSKING and MS S. ZELEZNIKOW for the defendants.  (instructed by Australian Government Solicitor)

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with MR B.L. GARNAUT for the Attorney‑General for the State of South Australia, intervening.  (instructed by Crown Solicitor for South Australia)

GAGELER CJ:   Thank you, Mr Solicitor.  Mr Lenehan.

MR LENEHAN:   Your Honours will have seen from the written submissions, and from our oral outline, that we have structured our argument around the four‑step analysis that your Honours are now well familiar with.  That involves asking the following four questions.  First, is the power to impose the visa conditions that we take issue with, prima facie, punitive?  We say yes.  The second question is:  does the power have an identifiable non‑punitive purpose?  We say, in each case, no.  The third question is, assuming that we are not correct on question two, is that identified non‑punitive purpose also legitimate?  Again, we say no.  Then, only if we get to the answers other than we contend for on 2 and 3 do we get to question 4, and that is:  is the power reasonably capable as being seen as necessary for that legitimate non‑punitive purpose?  We would say no.

Now our friends, as we understand it, seem to broadly agree with that analytical framework.  There are some differences.  I will address those along the way.  Can I first show your Honours how the scheme works?  If your Honours take up the bundle, volume 1, tab 5, you have the regulations there.  The regulations, unfortunately, in the print are somewhat inconsistently numbered, so I am going to use the joint bundle numbers, if that is convenient to the Court. 

GAGELER CJ:   We will be working from separate prints, Mr Lenehan, so it would be best if you just give us the regulation numbers.

MR LENEHAN:   Thank you, your Honour, I will do that.  The first aspect I was going to direct your Honours’ attention to was 2.25AA, which appears at 138 of the print that I am using.  Your Honours will see there that this is a regulation that applies to an “eligible non‑citizen”.  That term is defined in section 72(1) of the Act.  Your Honours do not actually have that in the bundle, but I will tell you what it says. 

GAGELER CJ:   We also have extracts from the Migration Act, and we do have that provision with us.

MR LENEHAN:   Thank you, your Honour.  The point of “eligible non‑citizen”, your Honours will see earlier at regulation 2.20, and there are a series of classes of persons who are defined as “eligible non-citizen” for the purposes of section 72 of the Act.  The most important of those for my purposes is that which appears at 132 of the print of the regulations – that is, subregulation (18) – and your Honours will see there something that you will recognise as the NZYQ test. 

Just to explain, that provision was engrafted on to the existing bridging visa provisions so as to provide specifically for this cohort.  If you go back to 2.25AA, you will see that the Minister is then empowered under subsection (2) to grant that class of visa without application.  I should also mention 2.25AB ‑ ‑ ‑

GAGELER CJ:   Mr Lenehan, before you go on from saying the Minister is empowered to grant, what was the actual provision of the Act that confers a power to grant a visa of this subclass? 

MR LENEHAN:   It would be section 65, your Honour. 

GAGELER CJ:   Thank you.  That is the initial visa and then there can be a subsequent visa, and there is another provision that governs that.

MR LENEHAN:   There can be a subsequent visa, yes. 

GORDON J:   Is the distinction between AA and AB that, in a sense, AB is where they have held a visa before? 

MR LENEHAN:   Your Honour is exactly right, and that was the point that I was about to make.

GORDON J:   Does that explain why in this case this applicant had some visas under AA and some under AB – sorry, one under AA and then the rest under AB? 

MR LENEHAN:   Yes, that is correct.  For each subsequent grant it is AB.  AB, unlike AA, see (1)(a) applies only to people who satisfy the NZYQ test.

GORDON J:   Does anything turn on that? 

MR LENEHAN:   No.  No, it does not.  The reason it does not is because the operative provision, in a sense – which your Honours find a little further on in the extract that you have.  That is at page 52 of the print, or 188 of the joint bundle, and it is 0706.12A, which is part of Schedule 2 of the regulations.  No matter which power is used to grant the visa, this provision applies – your Honours see subclause (3) – effectively, only to people who are in the NZYQ cohort.  So, (a) is the AA class, but there is then specifically a requirement that:

there was no real prospect of the removal of the holder from Australia becoming practicable in the reasonably foreseeable future –

Which your Honours know is from NZYQ, and then AB, as I have said, is only that cohort.  So, the primary attention, in our written submissions, is given to subclause (1) of that provision.  And so:

If subclause (3) –

the application provision that I have just been to:

applies to the visa, each of the following conditions must be imposed by the Minister unless the Minister is satisfied that it is not reasonably necessary to impose that condition for the protection of any part of the Australian community –

So, a negative state of satisfaction.  Your Honours have seen that we place some emphasis on that in our written submissions. Then the four conditions appear immediately below that, and it is the first and the last that we are concerned with:  8621 is the electronic monitoring condition, and 8620 is the curfew provision.  Your Honours also see from subclause (2) that there is a prescribed order, and so:

The Minister must decide whether or not to impose each of the conditions . . . in the order in which those conditions are listed in that subclause.

GLEESON J:   Is there an express reference to protection from harm?

MR LENEHAN:   No.

GLEESON J:   It is just protection?

MR LENEHAN:   Yes.  So, your Honour is immediately alive to the fact that that is the formulation that our friends use in identifying the purpose – “from harm” is an addition which you do not find anywhere in either the Act or the regulations.  Even if one could imply it – and this is the point that I am going to be coming back to – that is an extremely broad, putatively protective purpose, and your Honours have seen that we make something of that.

BEECH-JONES J:   Do you accept that that regulation excludes any reasoning process that says, I will protect the community by deterring this person or other people, so that it is purely – for want of a better phrase –protective?  That is, will these conditions stop or minimise the risk of harm?

MR LENEHAN:   Yes, but the problem is the generality of what is involved in that protective idea.  Your Honour will have seen that we take, in particular from what the Chief Justice said in Alexander, the difficulties that flow from that very generally identified purpose and how it slips very readily into something that is punitive.  So, I think I accept your Honour’s point, but we say it does not ultimately matter to our case.  Can I then ‑ ‑ ‑ 

STEWARD J:   Just before you go on.  Do I take it that the Minister’s satisfaction is subject to Avon Downs review?

MR LENEHAN:   It would be, your Honour, yes.

STEWARD J:   Yes.

GORDON J:   Mr Lenehan, would you mind just speaking up just a bit?

MR LENEHAN:   I am sorry, your Honour.  I am trying.

GORDON J:   I think I am getting older and less able to hear.

MR LENEHAN:   Your Honours are so far away. 

GORDON J:   We are so far away.

MR LENEHAN:   If I can then show your Honours the conditions themselves, and so that appears towards the back of the regulation extracts.  It is 212 of the joint bundle, in schedule 8, which is 198 of the print compilation.  The first is the curfew condition, 8620, and your Honours see if that condition is applied to a person – and it was applied to my client – it requires that, in subclause (1):

The holder must, between 10 pm on one day and 6 am the next day or –

Your Honours see there is – and this is related to subclause 2 – the capacity for the Minister to specify other times, and those other times need not be at nighttime, they could be in the daytime, remain at a notified address for the holder for those days.

Then your Honours see subclause 3.  That is where “notified address” is given meaning, and there are essentially three alternatives.  The first is that there is – see 8513 and 8625, which appear earlier in the print – a requirement that the person notify their address or notify any change of address.  That is one possibility for notified address.  The second, in subclause (b), is:

an address at which the stays regularly because of a close personal relationship with a person at that address –

Again, the holder has to notify Immigration for the purposes of that paragraph.  Then (c), there is one further option, which is that the person:

notifies Immigration of an address for that day or those days no later than 12 pm on the day before that day or the earliest day of those days –

There is some capacity for the person to choose the place at which they are confined, but we say nonetheless – and I will develop this – it is a confinement.  That is the curfew condition there.  Then 8621 is the monitoring condition ‑ ‑ ‑

GLEESON J:   I am sorry, Mr Lenehan, is there a carve‑out to deal with a medical emergency?

MR LENEHAN:   Your Honour, there is not.  I am reminded, because all of this operates by reference to offence provisions, there is a reasonable excuse defence, so presumably ‑ ‑ ‑

GORDON J:   That is a reasonable excuse defence to having been charged?

MR LENEHAN:   Having been charged.

GORDON J:   So, there is nothing up‑front.  It is curative rather than preventative.

MR LENEHAN:   Exactly.

EDELMAN J:   It is not really a curfew, is it?

MR LENEHAN:   We say no, your Honour.  We say it is detention.  We say it is a specific place, with a requirement to stay there.  Your Honours have seen that our friends cite all other manners of curfews which involve exclusions from public places, et cetera, but this requires you to stay in a specific place.  That is why we say it has exactly the same character of the detention that is discussed in Lim.  That I will develop.  I was at 8621, which is the monitoring condition, and it requires that the person:

must wear a monitoring device at all times.

Subclause (1).  They:

must allow an authorised officer to fit, install, repair or remove –

that equipment, and then:

must take any steps specified in writing by the Minister, and any other reasonable steps, to ensure that –

those things remain in good working order:

If the holder becomes aware that either of the following is not in good working order –

That is, the monitoring device, or any related monitoring equipment, has to:

notify an authorised officer of that as soon as practicable.

All of those, as I have indicated in answer to the question from Justice Gleeson, are then backed up by offence provisions in the Act.  Perhaps before I get to those, your Honours have the Act behind tab 4, and happily, the numbers are all in a sensible order in the Act provision – at page 142, 76F, that is a provision that interlocks, if you like, with the monitoring condition and it confers very broad powers on authorised officers – which I will come back to – to do a number of things.

The first, in subclause (1), is to do things related to the installing, fitting, maintenance, et cetera, of the monitoring equipment.  The second relates to the:

use and disclosure of information –

And, again, there are very broad powers to do those things.  And then your Honours see “authorised officer” is defined in subclause (6) and it is:

a person who is authorised in writing by the Minister –

I do not need to take your Honours to the authorisation instrument but to tell you where it is, it is in 532 of the special case book and it includes a very wide range of individuals, including the Buddi staff in relation to subclause (2), the:

Collection, use and disclosure of information –

aspect.  Would your Honours also note subclause (3), which works in combination with (1)(a) and (b) and immunises officers exercising the powers under that clause from what would otherwise be a trespass, some sort of non‑consensual interference with a person’s bodily integrity, and we make something of that in relation to our complaint about the monitoring condition and I will come back to that.

Then to go to the point that I have mentioned a few times now but have not yet got to the offence provisions.  If your Honours go back a few pages in the print to section 76C you will see that is the provision relating to, I am going to call it the home detention provision, picking up Justice Edelman’s point.  So:

A person commits an offence if –

they fail “to comply with the requirement” of that condition, and then subsection (2), “a reasonable excuse” defence and acknowledging the point that your Honour Justice Gordon made about how that works.

Then 76D, there are a similar range of offences relating to the monitoring equipment, and your Honours will have seen that my client has been charged in respect of both of these provisions, and the consequence of that, your Honours – or the potential consequence of that, your Honours see some pages on in the print at 141 and section 76DA.  So:

a person . . . convicted of an offence against –

those provisions receives, if they are convicted, a mandatory sentence:

of at least 1 year.

The final point to note about the legislation is the next clause that appears on that same page, that is section 76E, and it governs the procedure in relation to the grant of these visas, and subsection (2) your Honours see that in relation to the decision to grant a visa and the visa is subject to one or more prescribed conditions, that is in subsection (1), that decision:

the rules of natural justice do not apply –

Then in subsection (3) your Honours see there is a perhaps familiar form of provision that your Honours will recognise from the mandatory cancellation provisions in section 501.  There is a limited form of procedural fairness that occurs after the making of the decision, and your Honours will note – compare subsection (3) with (5) – the Minister is required to give:

(i)       a written notice that sets out the decision; and

(ii)      any other prescribed information –

There is none – but is not required to give reasons for that decision.  But then (3)(b), in a form that your Honours will be familiar with, can:

invite the person to make representations . . . as to why the first visa should not be subject to one or more of the conditions –

Then subsection (4), which likewise replicates 501CA:

The Minister must grant the non‑citizen –

a visa:

that is not subject to any one or more of the conditions . . . if:

(a)the non‑citizen makes representations in accordance with the invitation; and

(b)the Minister is –

It is the same state of satisfaction that your Honours saw before, effectively.  So, satisfied of a negative:

that those conditions are not reasonably necessary for the protection of any part of the Australian community.

Now, those provisions were applied to my client – I am sorry.  The last thing that I should note is that by regulation 2.25AE, those conditions are imposed for one year, and as 2.25AE(2) and (3) make clear, if there is then a further visa grant within that one‑year period, the one‑year time starts again.  So, potentially, there can be a series of rolling one‑year applications of those visa conditions of which we complain.  I am not going to take your Honours extensively through the facts in the special case book, but your Honours can see how the provisions operate by reference to the way that they were applied to my client.  In the special case itself, at 29 to 53, you will see the point that I made a little earlier.  That is, there were a series of visas granted to my client.

The visa that he currently holds, which is identified in the special case as the seventh visa – you find that in the special case book, referred to at page 70, paragraph 52 – and the actual notice of that visa grant your Honours will see at page 479 of the special case book.  When your Honours come to look at it, you will see that, consistent with what I said before, there are no reasons given for the decision to apply the two visa conditions of which we complain given in that notification.  There is an invitation, your Honours see, at 480, to make representations about conditions.  Your Honours see the actual conditions that I have taken your Honours to before applied at page 485, and your Honours see 8620 and 8621, which set out, again, the provisions that I have taken your Honours to.

I referred to section 76E of the Act.  If your Honours go back to the special case book at page 70, paragraph 53 – this is in the special case itself – so, this decision and those earlier decisions were not made under section 76E(4), although my client had made representations about the application of the visa conditions prior to that decision.  That then leads me to some developments that have taken place since the original special case.

I think your Honours have an addendum special case book.  If your Honours open that up to page 2 – this is a point that I made before at paragraphs 1 and 3 – your Honours see that it is recorded that my client was arrested and charged with offences under the two provisions that I have taken the Court to, in respect of failing to comply with condition 8621 and 8620.  Your Honours may have also seen that he was charged earlier, in respect of the earlier visas, but because ultimately that was found to involve an invalid grant, the DPP dropped those charges.  But these charges remain extant.

Then, the other point to note is that on 11 July – this is recorded at paragraph 8 of the addendum – there was a decision made under section 76E(4).  That is in relation to various representations that my client made on a number of occasions going back to March 2024.  The decision in respect of the seventh visa – my client’s current visa – your Honours find at page 68 – I do not think that is right, I am sorry, your Honours.

GORDON J:   I think you want 43, do you not?  That is where the decision is in relation to the representations.

MR LENEHAN:   Yes.  And your Honours see some short reasons for decision ‑ ‑ ‑

GORDON J:   Page 42, actually.

MR LENEHAN:   Yes.

GORDON J:   Just so I have the chronology right, is it the position that the representations are made in April, as set out in the addendum, but not responded to until July?

MR LENEHAN:   Yes.

GORDON J:   And that what you get on page 42 is the response to the representations made by your client?

MR LENEHAN:   Yes, that is so, your Honour.  That then leads me to the first aspect of our argument, which is ‑ ‑ ‑

BEECH-JONES J:   Mr Lenehan, I will just ask you about that.  Do you get a visa with no conditions, or not get a visa at all?

MR LENEHAN:   I am sorry, your Honour, I missed that question.

BEECH-JONES J:   If I just look at the bottom of page 2 of the addendum, paragraph 8, that last sentence suggests he did not get a visa, or is it just that he got a visa but – he still got his visa?

MR LENEHAN:   Yes.  So the way the Act works under 76E(4) is that if the Minister is satisfied that those conditions are not necessary for the protection of the Australian community, the Minister grants a new visa without those conditions.

BEECH-JONES J:   And is that what happened?

MR LENEHAN:   No.  The delegate decided not to grant the new visa because they were satisfied that the – in the negative state of satisfaction that the conditions should continue to apply.

BEECH-JONES J:   I see.

GORDON J:   So, the default is, as I understand the way you put it, you have a requirement to impose the conditions unless there is a negative satisfaction.

MR LENEHAN:   Yes.

GORDON J:   Then you have the ability to make representations to seek to have the conditions lifted.

MR LENEHAN:   Yes.

GORDON J:   And that is what we find ultimately concluded at page 42 in relation to the seventh visa?

MR LENEHAN:   That is so, your Honour.  Your Honour gets an insight into how that works in practice at 118 of the addendum, which actually has the real‑life handwritten decision of the delegate.

GORDON J:   I think that is what is at page 42 as well, is it not?

MR LENEHAN:   Yes.

GORDON J:   It is the same document.

MR LENEHAN:   So, that then brings me to how we put our case in respect of the first condition, the home detention provision.  Your Honours have seen that we have two routes to saying that that is prima facie punitive.  The first is that the curfew involves detention of the same kind that was considered in Lim and so therefore attracts the default characterisation principle that your Honours are very familiar with.

The second way, which comes from Alexander and Benbrika (No 2), is that otherwise by assessing – your Honours have used the terms nature and severity of the detriment or infringement of fundamental rights.  The curfew home detention condition has a punitive effect because, we say, consistent with what Chief Justice Gleeson in fact said in Thomas v Mowbray, that it effects a significant infringement of liberty.

On the first route, can I immediately accept the point that our friends have made that Lim uses the term “detention in custody”, but your Honours will have seen from paragraph 13 our written submissions we embrace a point that your Honour Justice Gordon made in Plaintiff M68 to the effect that the words “in custody” should not detract from:

the fundamental point to which Lim is directed –

and that is:

the power of the Commonwealth executive to . . . deprive –

a person of their liberty.  We say your Honour was quite correct to administer that caution and it accords, in fact, we say, with the way this Court has recently articulated the relevant principle in Lim in NZYQ.  Can I ask your Honours to bear with me and turn up that provision.  It is in volume 4 of the bundle at tab 41.  The passage that I want to direct your Honours to is paragraph [39].

STEWARD J:   What was the paragraph?

MR LENEHAN:   Paragraph [39], your Honour.

STEWARD J:   Thank you.

MR LENEHAN:   This is an aspect of the reasons in which all members of the Court joined.  Your Honours see there, your Honours said that:

Expressed at an appropriate level of generality, the principle in Lim is that a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court ‑ ‑ ‑

et cetera.  And so, the concern is, we say, the authorisation of detention by the Executive.  Your Honours made a similar point – I do not need to take your Honours to this – in ASF17.  Can I just give your Honours the reference to those passages.  Your Honours have that in volume 8, at tab 33, in the joint reasons at paragraphs [31] and [32], and then a similar point made by your Honour Justice Edelman at paragraph [58] referring to that passage from NZYQ at paragraph [39].  We say that approach, eschewing the words “in custody”, correctly understands the reasoning in Lim, its emphasis on substance, and the derivation of the principle from long‑standing common law concerns that go back to Blackstone at least.

If I could ask your Honours to turn up Lim, which is volume 3, tab 14, can I make that good.  When your Honours have it, can I ask your Honours first to note what is said in relation to the provisions that were under consideration here.  Your Honours pick that up in the joint reasons starting at about page 16, where their Honours extract the relevant parts of the Act, starting with 54J.  Your Honours see from the onset that the words, the statutory language which has been considered involves being:

kept in custody –

then over to page 17, 54L through to 54N – which is really the operative provisions – that same idea, being “kept in custody”.  If your Honours go a little further, to pages 18 and 19, your Honours see there is a definition expressed in the negative about being kept in custody.  Effectively, it means being held in various places.  At the top of page 19, your Honours see subsection (a)(iv), it includes:

in another place approved by the Minister in writing –

which could be a residence, of course.  So, one way of understanding the words “in custody” as they are used in Lim is that they are picking up on that statutory language, including its potentially broader applications, so places other than detention centres.

We say that understanding of what is said is actually consistent with the critical reasoning which your Honours are very familiar with, over at page 27.  At the bottom of page 27 you see the principle that your Honours are very well aware of.  Then, at 27 to 28, your Honours recall that their Honours referred specifically to what was written by Blackstone as explaining that principle.  Your Honours see at the top of page 28, the passage:

The confinement of the person, in any wise, is an imprisonment.  So that the keeping [of] a man against his will . . . is an imprisonment –

I am going to come back and show your Honours the full context of that quote, which reveals that those words are exactly as broad as they appear and apply to a very broad range of imprisonments.  Then the rest of the passage connects that idea to habeas corpus, and I will develop some more submissions about that when I come back to Blackstone.

BEECH-JONES J:   Mr Lenehan, this does not – so, on your argument, the period of time has nothing to do with it.  So, a 10‑minute curfew would be, default characterisation, as detention.

MR LENEHAN:   Your Honour will recall that in NAAJA it was capped at four hours.  So, brevity, we say, is not an obstacle to our argument, because of the point that is being made here by reference to Blackstone – the fundamental importance of liberty.  We also say that your Honours would accept that broader notion of imprisonment when your Honours look again at the exceptions that appear on that same page.  So, they include:

Involuntary detention in cases of mental illness –

and, of course, that involves a wide range of different measures.  Picking up on what your Honour Justice Beech‑Jones just asked me, the idea of arrest and detention in custody are notoriously, potentially, a very short period of time.  So, we say, putting those things together, both the length of time and its lack of a full‑time requirement, and also the fact that it can take place in a person’s home – neither of those things are, we say, obstacles to the application of the Lim principle. 

I think I have promised a number of times to come to Blackstone.  If your Honours go to the extract that we have included in the joint book in volume 10, at tab 47, I am going to situate the passage in its context.  Can I first invite your Honours to go – the passage, or the extract, starts with book I, and if I can go to page 123, which is 3194 of the joint book, where the author talks about two sorts of rights – “absolute and relative” – and you see, a few paragraphs down:

BY the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature –

Then, if your Honours go forward to page 128 – there are some double‑up pages from time to time, so your Honours might need to tread carefully – you will see at the bottom of page 128, Blackstone discusses the content of those absolute or natural rights, the very last part of that page:

these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property –

Over the page, on 129, you will see there is reference to:

The right of personal security –

That is relevant, when I come back, to our submissions about monitoring and the submissions we make about bodily integrity.  But if I can invite your Honours to go forward to page 134, and next to II, down the bottom, that is where he discusses the personal liberty of individuals, which:

consists in the power of loco‑motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.

Then, if your Honours go a few pages over to 136, and the bottom of the page, that is where you find the passage that is extracted in Lim about confinement.  Making good what I said before, the words “in any wise” are, indeed, as broad as they appear and include imprisonments of the following kinds:

keeping a man against his will in a private house –

so, we apply that directly to the condition that we are dealing with:

putting him in the stocks, arresting or forcibly detaining him in the street –

all of those things are:

an imprisonment.

Then, at the bottom of the page, the sentence commencing “to make”, that is then the further sentence that is extracted in Lim.  So:

To make –

any of those forms of:

imprisonment lawful –

and then your Honours read on to the passage that their Honours quote in Lim and the reference to habeas.  So, that was really the first point that I was seeking to get out of this material – the broad nature of imprisonment.  The second point is to respond to some criticism that our friends make about the way we use ‑ ‑ ‑ 

EDELMAN J:   But this is not just Blackstone.

MR LENEHAN:   No.

EDELMAN J:   There are 250 years of law about false imprisonment in the law of torts that says exactly the same thing.

MR LENEHAN:   Yes.  I am going to show your Honour a recent, very on‑point example, which is Jalloh, directly after this.  But can I just perhaps take up a point that I think your Honour thinks is obvious – but our friends seem to take a different view – and that is in the next part of the Blackstone extract that we have extracted, that is, book III, chapter VIII, the author sets out the requirements for the tort of false imprisonment, and some of those passages were referenced by your Honour Justice Gageler in Lewis.

So, at page 119 in that chapter, 324 of the book, he takes up this same idea of certain absolute rights, absolute and relative rights – he is using those in the same sense in which they are discussed in book I.  And then, if your Honours go forward to page 126 – there are a few page 126s, sadly, but it is 3246 in the joint bundle – there is a II at the bottom of the page; I think it is page 126 that appears just before page 127, and that is where he says:

WE are next to consider the violation of the right of personal liberty.  This is effected by the injury of false imprisonment –

et cetera.  And then, over to page 127 – and this is the passage that your Honour Justice Gageler quoted in Lewis, in referring to the two elements that he refers to there – but, importantly, your Honours see, immediately following that, addressed by that tort is “an imprisonment” in exactly the same sense as the very broad passage which is extracted in Lim.

GORDON J:   Do you mean by the sentence: 

Unlawful, or false, imprisonment consists in such confinement –

Is that what you are referring to?

MR LENEHAN:   Yes:

Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets.

And your Honours see at the foot of that page how all this coheres in the common law.  So, false imprisonment is the way of addressing the injury, and the means of removing it is habeas.

GAGELER CJ:   Mr Lenehan, do you go so far as to equate detention for the purposes of Chapter III with circumstances that would give rise to a tort of false imprisonment?

MR LENEHAN:   We have, your Honour, and we do, yes.

EDELMAN J:   By the State, though.

MR LENEHAN:   By the State is the important – I am grateful to your Honour Justice Edelman, for that qualifier.

GAGELER CJ:   Mr Lenehan, can I just ask, in relation to the right to liberty that one sees articulated in the European Charter, and I think also in the Human Rights Act (UK), has that concept of liberty been equated with those same circumstances, or has it being more narrowly confined?

MR LENEHAN:   It is a somewhat different, multifactorial analysis in the European Charter, your Honour, and that is the reason we say those authorities are not helpful.

EDELMAN J:   But that is because of the margin of appreciation, is it not?

MR LENEHAN:   Yes.  Yes.

GAGELER CJ:   Are you aware of any writing that has compared these two concepts of liberty?

MR LENEHAN:   Jalloh is the authority that I am about to come to, your Honour, and I will show your Honour how those things are lined up or not in that decision.

GAGELER CJ:   Thank you.

STEWARD J:   Just before you go on, is your concept of detention really the same as a law which confines movement?

MR LENEHAN:   Yes.  I am going to show your Honour a passage from Jalloh that we say tells you everything about what ‑ ‑ ‑ 

STEWARD J:   Solves all our problems?

MR LENEHAN:   Yes.

STEWARD J:   Thank you.

GORDON J:   Your answer you just gave to Justice Steward, is that right?

MR LENEHAN:   Your Honour, the fuller answer that I should have given is that it is not simply restricting movement, it is confinement to a location.

GORDON J:   I had understood your submission to be to that effect.  It was confinement to a particular place between particular hours, not just restriction of movement.

MR LENEHAN:   That is correct.

STEWARD J:   So, just on that, would that include, in Australia, a departure prohibition order made by the Commissioner of Taxation?

MR LENEHAN:   I am very worried about your Honour’s vastly superior knowledge of tax law and whether that could involve confinement of a person to a house ‑ ‑ ‑ 

STEWARD J:   It confines them to Australia.

MR LENEHAN:   To Australia, I think, is too broad.

STEWARD J:   Okay.

MR LENEHAN:   But if the effect of it is to give the Executive power to confine a person to a place, that is what we say is involved.

STEWARD J:   Does that mean that if the curfew was to a town, you might have less trouble?

MR LENEHAN:   Vastly different considerations involved, yes.

STEWARD J:   Yes, I see.

MR LENEHAN:   Confined to a town, excluded from certain places – all of the broader examples that our friends give, none of those things are involved in this measure.  So, can I then ask your Honours to turn up Jalloh.  That is in volume 8, tab 37.  This decision involved ‑ ‑ ‑ 

EDELMAN J:   Which tab did you say that was?  Tab 37?

MR LENEHAN:   Tab 37, yes.  The decision was given on behalf of the court by Lady Hale, then Baroness Hale.  In paragraph 1, you will see the point that your Honour Justice Edelman made before about the long history of this common law right to physical liberty, and how it existed:

long before the United Kingdom became party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”).

Your Honours also see, at the end of that paragraph:

This case is about the meaning of imprisonment at common law and –

This is the point that I was making to your Honour Justice Gageler before:

whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 –

The answer given to that is no.  Before I get to that, can I note what your Honours see from the paragraphs that follow about the facts.  So, Mr Jalloh was granted asylum – see paragraph 4 – but then there was a deportation order made against him.  Then, paragraph 6, he received a notice which:

stated that he was liable to be detained . . . but that he would not be detained.  Instead, he would have restrictions imposed upon him –

by the relevant part of the Act:

The restrictions included a requirement to report to an immigration officer –

and:

to live at a specified address –

and to be electronically monitored.  The address was his address in Sunderland.  If your Honours go over the page to paragraph 8, you will see it is apparent in relation to this curfew that there was a capacity to give permission to be away for part of the period, which is not expressly done with the measure that your Honours are dealing with.  You see that from the fact that he was away “without permission” on many occasions, and that was one of the points that was said by the Home Secretary to indicate that this was not detention, but that argument is rejected.

MR LENEHAN:   If your Honours then go down the page to paragraph 10, you will see the issue which was the subject of appeal.  The argument was:

that the curfew did not amount to imprisonment at common law, and second, that if it did, it did not amount to a deprivation of liberty under article 5 of the ECHR –

and that there should be an alignment with that article, or the jurisprudence surrounding it, and the concept of imprisonment under common law.

If your Honours then move into the substantive reasons and go to paragraph 24, this is the point that I was making before inelegantly, in the exchange with Justice Steward and Justice Gordon.  See, particularly, the second sentence.  This is how we likewise identify the essence of imprisonment or detention for the purposes of Lim.  It is:

being made to stay in a particular place by another person.  The methods which might be used to keep a person there are many and various.  They could be physical barriers, such as locks and bars.  They could be physical people, such as guards . . . They could also be threats, whether of force or of legal process.

Of course, the provision here is backed up by the offence provision, so it is of that nature.  Then, if your Honours move to paragraph 26, you will see the argument that I noted was made before – that is, that from time to time Mr Jalloh ignored the curfew, and that that meant that he was not imprisoned, that argument is rejected.  Particularly the last sentence:

he is imprisoned while he is where the defendant wants him to be.

Then, paragraph 28, by reference to a case that is an ECHR case on which our friends rely, but we have said why it does not really assist them, but it was said in that case, JJ, that this kind of measure was a “classic detention or confinement”, and that is what we likewise say.  There is then a discussion your Honours see described at the alternative argument: 

This is that the concept of imprisonment for the purposes of the tort of false imprisonment should now be aligned with the concept of deprivation of liberty within the meaning of article 5 –

That is rejected.  Her Ladyship says in paragraph 33 – it is 273, and then over the page to 274 – that the House is not going to take the “retrograde step”:

to restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR.

That is why we say, essentially, that our friends’ reliance on ECHR authority does not get them very far, because it involves reading in, essentially, conditions of detention, which I am going to show your Honours shortly has always been said not to determine whether a person is detained.

Just sticking with what was held in Jalloh at the moment, we say that that analysis can be readily applied to this measure.  So, here, as in Jalloh, the plaintiff has electronic monitoring, but if, for example, the electronic monitoring condition were invalid or not applied, the constraint, we say, would still be detention in custody, and that is, in part, because there is – as was identified in Jalloh – a means of confining a person with the threat of legal process – see the offence provisions.  Your Honours will also see in the special case book, at page 85 and paragraph 113, it is also agreed that under the scheme there may be “curfew checks” and surveillance.  So, that is another means by which the State enforces its decision to make my client stay in a particular place. 

GORDON J:   Is that to say that, absent the monitoring condition by the ankle bracelet, there is another mechanism for monitoring, and that is random checking of somebody?

MR LENEHAN:   Yes, there is.  Yes.  All backed up, ultimately, by the offense provision.

GAGELER CJ:   Mr Lenehan, can I step back a little bit from this argument.  Absent statutory authority, for the Executive to detain someone, in the common law sense, is a tort.  If there is statutory authority for the otherwise tortious action to occur, then, on your analysis, there is immediately a Chapter III question that is raised about the validity of that authorising legislation; so, in every case where the action would otherwise be tortious for false imprisonment. 

MR LENEHAN:   Where there is detention by the Executive, yes, your Honour.  Because of the point that your Honour made in M68 – that is, there is an incapacity on the part of the Executive to detain anyone.  That can be alleviated by the passing of a law by the Parliament, but then that law, your Honour said, needs to pass muster under Chapter III.  Now, there will be many clear cases where one of the Lim exceptions apply, but that analysis, we say, still does apply.

GORDON J:   Well, it is subject to the exceptions identified in Lim.  There are some identified exceptions to that analysis. 

MR LENEHAN:   Yes, and in many cases, there will be a clear application of an exception.  So, the in terrorem arguments that are put against us, we say, should not deter your Honours from accepting our argument. 

EDELMAN J:   This argument is all directed to this notion of being prima facie punitive, is it?

MR LENEHAN:   It is.

EDELMAN J:   What are the words “prima facie” doing?  What do they add to an examination of whether it is punitive, or whether it is not punitive?

MR LENEHAN:   Your Honour, under the analytical framework that we are advancing, it is what is required to be shown to then require justification of the measure.  Your Honour has a different way of looking at these things, but then moves you into whether the purpose is punitive and legitimate.  So, that is the point of the first step.

EDELMAN J:   So, in what sense are you using the word “punitive”, then?

MR LENEHAN:   In what sense am I using the word “punitive”?  So, it has the broader meaning given in Alexander and Benbrika (No 1), referring to measures that affect rights of a certain nature – we say fundamental rights – and do so to a particular severity; but imprisonment detention has always been a classic case of that.  Now, what we take from Jalloh is that ‑ ‑ ‑

EDELMAN J:   But the difficulty is that you are raising this argument from Blackstone’s notion of fundamental rights or absolute rights.  Blackstone is talking about the right of false imprisonment alongside rights to property and alongside rights to person, but it would be very odd to talk about a prima facie constraint in Chapter III based on rights to property, for example. 

MR LENEHAN:   Your Honour, I would accept that.  Your Honour may have in mind the argument that is being suggested that we are making by our friends, that is, we are potentially bringing in all sorts of Commonwealth measures that may affect things like property, liberty, bodily integrity.  But in each case, it would be a necessary – and this is the nature of the analysis with the monitoring condition – to look specifically at what is involved:  the nature of the detriment, the extent of incursion on those rights, and ‑ ‑ ‑

EDELMAN J:   That is why I ask you what “prima facie” is doing, because as soon as you start asking that type of question, you are asking, well, is this measure properly characterised as a punishment, once you start looking at all of the circumstances.

MR LENEHAN:   Yes.  Well, that is certainly, under this Court’s analytical approach, the way one then moves to, is it justified, and is it justified by reference to a legitimate non‑punitive purpose.  That is the work that we are doing with the first step.

BEECH‑JONES J:   But the justification is always to the end result of whether it is, fundamentally, punitive or punishment.

MR LENEHAN:   Yes.  Of course, a single question of characterisation, but the Court has approached it with that kind of analytical tool or framework.  Your Honours, the other point to make about Jalloh is that it correctly approaches that whole question on the basis that it must be the restraint on liberty during the curfew period.  It is true that, outside of that period, there is no such constraint, but it is the constraint during the period – one third of each day – that we focus on.

GORDON J:   I do not know about that.  I was thinking about that.  So, if I have a period of requirement to live in a particular – or be at a particular place during a particular time, then I must be close enough to that place in order to get there within the time specified.  That is a restraint itself, is it not?

MR LENEHAN:   Yes.  No, your Honour is quite correct, and we embrace that.

GORDON J:   So, when you are looking at the practical operation of this law, yes, it is right that it requires your client to be at a particular place during particular hours – and whether “curfew” is the right label, we will put to one side – but you have to be close enough.  Now, the argument may be, well, you can tell them by 12 noon that you are going to be at a different address, but you still have to be there; it still limits your movements.

MR LENEHAN:   Yes.  So, all of that would be relevant to the nature and severity of the incursion, if we are looking at it through our alternative lens.  But your Honour is quite right.  It colours a person’s life.

STEWARD J:   Can I ask you, Mr Lenehan, on your analysis on this first step, there must be a sliding scale of confinement.  See, we mentioned before that if you were confined to just a city, you would not say that was prima facie punitive.  Perhaps, if you were confined to a large farm, would that be prima facie punitive?  And if so, why?  Or to a large house, a mansion, or a very small house with limited wi‑fi.  What is the principle that tells us where we cross the line?

MR LENEHAN:   Your Honour, there are going to be questions of degree, which is not uncommon in both this analysis and ‑ ‑ ‑

STEWARD J:   I understand there are going to be questions of degree, but what is the question?  What is the discrimen for determining when your confinement becomes prima facie punitive?

MR LENEHAN:   Well, your Honour, we are saying that it is in a particular place, so potentially the farm example would work.  Your Honour would be aware that cases like Mcfadzean – I am not sure if I am pronouncing that correctly, but that was the case where the green protesters were at a logging venue and then were picketed by members of the CMFEU.  That was an area of forest, and the protesters were hemmed in, and that was, nevertheless, a form of confinement.  Of course, these kind of questions have been dealt with in the tort at common law for – as your Honour Justice Edelman noted – hundred of years.  So, there are many analogies that can be drawn on to answer those kinds of questions.

Now, can I return at that point, then, to the submissions put against us focused on detention in custody.  Our friends from the Commonwealth do not give that concept any real separate meaning apart from the submission that the curfew is not the same as the full‑time detention that was considered in Lim and NZYQ.  Our friends from South Australia correctly accept that we are not here talking only of detention in a prison, but they submit that there is something more involved.  In paragraph 12 of their written submissions, there is something more, it is some sort of:

loss of autonomy and privacy.

But that, we say, blurs the distinction that this Court has drawn a number of times between what it means to be detained – and I think this might answer some of your Honour Justice Steward’s questions – the conditions of detention – so, the large mansion.  That has always been approached as things that are discrete.

Your Honours can see that in Behrooz, which is behind tab 12 of the authorities.  In particular, in the reasons of Chief Justice Gleeson, if your Honours turn to but perhaps largely pass over paragraphs 19 and 20 where his Honour is dealing with Lim, but then if your Honours go to the top of page 499, and within the last part of paragraph 20, the argument here was that immigration detention would become punitive because of the conditions of detention which were said to establish its punitive nature, and therefore justify escape.  His Honour says, about two‑thirds of the way down the paragraph on the top of 499:

In the case of a citizen, what is punitive in nature about involuntary detention (subject to a number of exceptions) is the deprivation of liberty involved.

He then goes on to deal with the exception regarding aliens discussed in Lim.  Then, paragraph 21:

That being the nature of the power of detention, there is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive, and an invalid exercise of judicial power.  Whatever the conditions of detention, the detention itself involves involuntary deprivation of liberty.

The idea that we say is at the heart of Lim:

For a citizen, that alone would ordinarily constitute punishment.

Your Honours made a similar point in NZYQ, at paragraph 28.  I do not need to take your Honours to that.  Your Honours will find similar reasoning in Justice Callinan’s reasoning in Behrooz, at paragraph 218.  The point that we make is that our friends from South Australia and the Commonwealth have conflated those same two issues.  The essential point, we say, is being kept – that is, confined – to a particular location, irrespective of the conditions of that confinement, amounts to detention for constitutional purposes.

So, your Honours will have seen in paragraph 37 of the Commonwealth’s written submissions, they then identify five points of distinction.  We say that each of those points of distinction really involve conditions.  The first point – and I have already adverted to this – the fact that the plaintiff can go other places, accepting what your Honour Justice Gordon said about the limitations imposed there, for two‑thirds of the day, does not tell your Honours that this does not amount to detention.  That is a matter that is relevant to conditions ‑ ‑ ‑

BEECH‑JONES J:   When you say this, are you really saying that it is a regime for detention eight hours a day?

MR LENEHAN:   Yes.  Your Honour has our point.  I mentioned before that there is a capacity to choose, up to a point, where you are confined during the curfew period, and your Honours recall subsection (3), which allows a person to choose a number of locations, but that does not change the extent of the control over liberty once the person is at the place where they are to be confined.  I mentioned Mcfadzean before, the protestors there also chose to be in the particular logging area and were given a further choice by the CFMEU members to leave.  But, having made that choice, the confinement that was then applied to them was held to be capable of giving rise to detention.

Ultimately, that claim failed for another reason, because it was found that they had another means of egress, but that does not detract from the point.  So, we say that the choice of address may, for some people, who have a choice of different locations to be confined, alleviate the burden of the detriment, but they are still being made – and, again, see the passage from Jalloh – to be confined in a particular place by another person.

So, we apply those same points to the other matters that our friends rely on.  The fact that you can communicate with people while confined, again, that goes to conditions.  The fact that the default hours, at least – although not always, because the Minister can vary them – are between 10.00 pm and 6.00 am, are at a time when people are likely to be asleep – that also goes to conditions of detention, although, for some people, your Honours have seen in the case in my client, that is a considerable burden.  The same point applies to our friends’ point about the fact that you can request the Minister to change those hours.

Now, I was about to move to Thomas.  I do notice the time, and I am not sure if your Honours were taking the ‑ ‑ ‑

GAGELER CJ:   We do propose to take the morning adjournment.  If this is a convenient time, we will take it now.

AT 11.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.27 AM:

GAGELER CJ:   Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  Your Honours, the Solicitor‑General and I have been speaking about time over the break, and we wondered whether your Honours might be minded to cut the lunch break by 15 minutes, then I would finish by 12.30, which we think will allow us to finish well within the day.  Not well – within.

GAGELER CJ:   You are asking us to sit until 1.00, is that correct?

MR LENEHAN:   I am.

GAGELER CJ:   Very well.

MR LENEHAN:   Thank you, your Honours.  I am sorry to ask that indulgence.

I was moving to Thomas.  Your Honours have seen that our friends say that Thomas is against this entire argument.  The proposition that we think that they draw from Thomas is that one can conclude, without any of the analysis identified in cases like NZYQ, that a power to impose the home detention condition will not offend Chapter III.  Now, we say that is not a correct understanding of what was decided or what was argued in Thomas.

If I could perhaps first show your Honours – I am so sorry, Thomas is in tab 28, volume 7 of the joint bundle.  If your Honours would go to part of Mr Merkel’s argument, which appears at 311 of the report.  It is towards the bottom of that page, starting with Fardon.  Your Honours will see that in reliance upon Fardon, what Mr Merkel put was that the principle from Fardon, building on Lim, should be extended to:

preclude substantial deprivation of liberty by the State short of detention in custody.

So, your Honours immediately see there that Mr Merkel conceded a point that we do not concede, that is, that what was involved in the curfew condition in this case was something different to “detention in custody”.  So, your Honours are then faced with a point not argued, which is one reason for not regarding Thomas as difficult for us.  But what Mr Merkel was arguing – see over the page – and your Honours will recall that Justice Gummow in Fardon conceived this as an absolute proposition – that, effectively, a Chapter III court simply could not be involved in what I will loosely call “preventative detention”.

Now, if your Honours then move into Chief Justice Gleeson’s reasons, that is certainly how his Honour understands the argument.  So, if you go to page 330 and paragraph 18, you will see that is where he records the argument that was put:

the restriction on liberty involved in the power to make a control order is penal or punitive . . . and . . . exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

And then, about halfway through that paragraph:

We are concerned with preventive restraints on liberty by judicial order.  Fardon was an example of preventive detention in custody –

and then gives apprehended violence orders as an example of:

restrictions on liberty falling short of detention in custody.

And then you see – and this makes good what I was saying before – the “absolute proposition” is what he rejects:

that, under our system of government, restraints on liberty, whether or not involving detention in custody, exist only as an incident of adjudging and punishing criminal guilt.

He immediately goes on to say that:

the circumstances under which restraints on liberty may be imposed by judicial order other than as an incident of adjudging and punishing criminal guilt are carefully confined, both by the Parliament and by the courts –

which we say has in mind the sort of Lim, NZYQ analysis, but not an absolute bar:

but we are here dealing with a different argument.  The proposition on which the plaintiff’s argument depends is too broad.

You find a similar approach to that submission in the joint reasons of Justice Crennan and Justice Gummow, starting at about paragraph 115.  So, you see again there was an attempt to:

transmute what was said in Fardon (to which we adhere) –

And your Honours know that in cases like Benbrika (No 1) this Court has said that what his Honour held in Fardon in considering the Commonwealth’s hypothetical argument was not correct, but was being sought to be extended to, your Honours saw before, something less than detention in custody.  And so that is the point that their Honours make in 116, that:

Detention in the custody of the State differs significantly in degree and quality from what may be entailed by observance of an interim control order.

But, nevertheless, your Honours see, down the page at 118, their Honours refer to an example of where such a preventative remedy is granted or was granted by a court which did involve detention.  And, having referred to that example and the other examples at 116, 117, 119 and 120, their Honours unsurprisingly get to the point in 121, that:

The matters of legal history relied upon do support a notion of protection of public peace by preventative measures imposed by court order, but falling short of detention in the custody of the State.

And so, they are rejecting Mr Merkel’s very broad submission that any such legislation is repugnant to Chapter III.  Now, your Honours know from this Court’s later authorities – Vella, Benbrika (No 1), and Garlett – that less absolute forms of that argument will not be rejected so quickly and will require the further analysis that we take from NZYQ explaining Lim.  And so, we say that Thomas can be understood, really, as no more than rejecting the argument that was put, which is really not our argument.

I should say, in 121, the implicit carve‑out for detention in the custody of the State – that is unsurprising, in light of Justice Gummow’s views in Fardon, but, again, that aspect of his Honour’s reasons has not found favour with this Court – see again, Benbrika (No 1).  So, we say, contrary to what our friends seem to say in respect of Thomas, that it does not follow that this kind of measure, equating the control order to the home detention condition in this case, precludes our argument.

We say that is clear – I will just give your Honours, in the interests of time, the reference to the way Thomas was explained by your Honour the Chief Justice in Vella, which your Honours have at volume 7, tab 31.  At paragraph 171 your Honour referred to the need for that kind of measure to be justified, and said that it was justified because:

the criteria to be applied by the court . . . are legislatively tailored to the achievement of a legislatively specified protective outcome.

In other words, a non‑punitive legitimate purpose.  And that is exactly the form of analysis that we seek to bring to bear here.

EDELMAN J:   They were dissenting reasons, though.

MR LENEHAN:   They were, I accept that, your Honour.

EDELMAN J:   On that point as well.

MR LENEHAN:   I am reminded that that was because of the construction point that your Honours in the plurality developed, so we do say that that aspect is correct in point of principle.  I am reminded that in Vella, your Honour Justice Gordon made a similar point at paragraph 204.

STEWARD J:   Paragraph 204?

MR LENEHAN:   Paragraph 204.

STEWARD J:   Thank you.

EDELMAN J:   Also in dissent.

MR LENEHAN:   Also in dissent.  But, really, the key aspect of Thomas and why it does not stand in our way is that Mr Merkel just put the argument too high.  Understandably, because he was seeking to apply what it was that Justice Gummow said in Fardon.

the appellant’s submission conflates two separate issues, of the unlawful authority to detain, on the one hand, and of the conditions within detention on the other.  The constitutional requirement of the exercise of judicial power by the judiciary is only infringed if the conferral of authority to detain does not fall within an exceptional class . . . The question –

Then skipping a few lines:

cannot be concerned with a qualitative assessment of the conditions of detention.  It is concerned with the purpose of the law –

Your Honours, we say, therefore, that the statement that the plaintiff has relied upon from Chief Justice Gleeson can be put to one side as being addressed to a separate question.  We say that, of course, when one looks at nature and severity, one will have regard to much more than mere detention and will look to all of the other kinds of deprivation of liberty that might be at stake in the paradigm case – detention in custody.

BEECH-JONES J:   So, bad detention does make extension punitive, but the issue in this case is with the form of detention that engages Chapter III?

MR WAIT:   Yes, your Honour, and that is to be undertaken at the analysis of considering the nature of the regulations.  The final submission that I can make very much by reference to what we have put in writing is simply to

say that if the Court does take up the invitation to re‑open Thomas v Mowbray then, consistent with the strongly conservative cautionary principle affirmed in NZYQ, it should only do so if it can now be said to be manifestly wrong.  At footnote 50 of our written submissions, we have collected the references to the many occasions on which that test or synonymous tests have been endorsed by this Court. 

In contending for this approach, we do not intend to import an exacting test or a very definite rule, to use Justice Dixon’s phrase.  Rather, we simply say that it is important that an earlier authority is not overturned merely on the basis that the current court forms a different view on the merits of an existing precedent.  To adhere to such an approach, importantly, does not deny that it might be appropriate to overrule an authority that has come to be seen as an outlier in the stream of authority.  Rather, it means that – to adopt the language of Justice Aickin in Queensland v The Commonwealth – the error has been made manifest by later cases. 

So, in NZYQ your Honours say that there is not always a question of error or correctness.  With respect, I accept that.  However, there is a temporal question here.  We would say a decision might be made that should not be said to be incorrect at the time and upon the jurisprudence that existed at the time that it was made.  Nonetheless, we say that by the time that it is overruled, it is still necessary for the court to form a view that it is wrong by virtue of the passage of jurisprudence in the meantime.

Unless there are any questions, they are our submissions. 

GAGELER CJ:   Thank you.

MR WAIT:   Thank you.

GAGELER CJ:   Mr Lenehan.

MR LENEHAN:   Mr Wood will give the reply, your Honours.

GAGELER CJ:   Mr Wood.

MR WOOD:   Thank you, your Honours.  If I can start with the issue of construction which was a lot of emphasis placed on at the beginning of the submissions, that obviously frames the rest of the analysis, including the constitutional analysis.  The words in the empowering provision refer to protection of the community, full stop.  In writing, the Commonwealth inserted the words “from harm”, full stop.  First, we had some words that were then added on top of that, to the end of that, “arising from future offending”, and second, after lunch, the Solicitor‑General also slipped in “from the risk of” into the beginning of the passage.  So, the whole passage as we understand it now is “from the risk of harm arising from future offending”.  That is, we say, quite a lot of words to be added in.

It is also a marked shift from what the Commonwealth put in writing at paragraph 47.  In the final sentence of paragraph 47, the Commonwealth said that the provision:

requires an individualised assessment of the risk of harm also explains why the provision does not identify one specific type of harm that it is intended to address.

So, originally, we had an amorphous notion of harm on the Commonwealth’s case.  Now we have a much more specific harm.  We say that really just highlights the problematic question of construction here and the slippery nature of what it entails.  The Commonwealth says you get these extra words in a few different ways, as we understand it.  One that was raised in argument this morning is that you look to the nature of the conditions themselves and then you reverse engineer something out of the nature of those conditions to inform what the empowering provision is directed towards. 

We do not necessarily say that is problematic as a matter of principle, but it is problematic insofar as the conditions here do not generate the words that the Commonwealth needs.  The first point about that is that there are four different conditions listed and we say all of them have a disparate nature and none of them none of them, we say, taken collectively, indicate that the additional words are “arising from future offending”. 

The first one is electronic monitoring, which is, on its face, entirely neutral.  It has nothing to say, by definition, that electronic monitoring is about protection from future offending; in fact, it is put against us that electronic monitoring might be used for a whole range of non‑punitive purposes.  In the particular context of this scheme – and this is related to our point about rational connection – where it has to be considered first in the list, it is not clear what it is actually directed to; it cannot be at the time it is considered for the enforcement of the curfew, for example, because that comes later down the list. 

The second condition is 8617, and we accept that seems to be directed towards the future possibility of financial crime of some kind.  As a slight oddity, under the fifth visa that was imposed on my client – you can see that at special case book 172.  Condition 8618 is about debts and bankruptcy.  Again, we say that does not imply by any necessary implication that that is directed to future offending of some kind.  Finally, the curfew is 8620.  Again, on its face, neutral, and, in the Commonwealth submission, it could be imposed for a range of non‑punitive or other reasons.

When you look at the list together, we say you cannot draw some single strand out of them that then allows you to reinsert these additional words back into the empowering provision itself.  So, we say the Commonwealth has the right the first time when it said it is about the protection of the community from harm, full stop. 

BEECH-JONES J:   What other types of harm could there be? 

MR WOOD:   One example we see in some of the material – I will give you the reference to this, your Honour, in a moment.  It is that it is, at one point, suggested that protection of the plaintiff himself was a relevant type of harm, and that comes in the reasoning on the seventh visa. 

BEECH-JONES J:   From self‑harm, was it not?

MR WOOD:   It is a little bit ambiguous.  I was going to take your Honour to the passage in a moment – but it does not suggest that it is just about future offending.  And it could be, for example, in the public health context, which is the Stay at Home Directions, if he was infectious, for example, there is no reason why, on its face, this provision would not allow it to be exercised to protect the community from the spread of disease, and there is nothing in the words, or the nature of the scheme, that says that that is not part of the regime, and we say, you cannot add those additional words in.

Could I refer briefly to another contextual consideration.  The Commonwealth Solicitor‑General submitted that this was about “plugging a gap” in relation to the NZYQ cohort. When it comes to the question of interpretation, we say it is relevant, therefore, also, to consider that on the same day that the amended regulations were amended, Part 9.10 was inserted into the Criminal Code, which is the specific regime specifically for the NZYQ cohort that imposes a detention order and supervision order scheme on a court, and it is confined specifically to serious offenders of various kinds.  I will not take your Honours to it, but you can see the scope of the regime, if your Honours look – it is in the bundle at volume 2, tab 8, at provisions 395.1 and 395.13(1)(b).

You will see the scheme looks significantly similar to the types of scheme considered in Thomas v Mowbray and Benbrika, and we say that it is clearly being framed with those considerations in mind about ensuring there is a protective legitimate purpose that is reasonably capable of being seen necessary is served.  So, the point of construction is that Commonwealth Parliament has acknowledged this problem and it has framed a scheme specifically directed to the problem, so that is another reason why we say it supports the idea that harm targeted by the Executive scheme must be of a different kind or nature to what is targeted by the judicial scheme.

Can I then briefly touch on Vella.  We say there are three points of distinction, your Honours, and none of those aspects can be read in.  We say, first, Vella identified offences; second, there was a requirement that there was a specified risk threshold, and your Honours see that in paragraph 45; and finally, in paragraph 49, you see the point we have made a number of times, it was about positive satisfaction before the condition could be imposed, and here we have the negative condition.  We say all of those distinctions are significant and different, and cannot be worked into this scheme as a matter of construction.

On the question raised by your Honour Justice Steward about the specificity of the scheme in Vella being relevant to whether or not it was consistent with the judicial process, we say the analysis is broader than that.  The specificity is relevant to the question of justification, and whether it is reasonably capable of being seen as necessary for a non‑punitive purpose.

In the context of a judicial scheme, that might bring in considerations of procedural fairness, because a court has to comply both with the non‑punitive protective aspect of the scheme, plus there is also the additional requirement the court ordinarily complies with the condition of procedural fairness.  There is no doubt in the scheme like Vella that the procedural aspect takes on some importance, but that is not the only reason that the analysis is undertaken, in my submission, and that is consistent with the approach in Garlett that your Honours took to that scheme.

On the question of administrative practice as being somehow relevant to the question of construction, we say that is a wholly novel concept that somehow the executive branch, after the enactment of the legislation, after the enactment of the regulations, has administered the scheme in the way that somehow gives it the precise content the Solicitor‑General gave it this afternoon.  We say that is just not simply open as a matter of construction.

Leaving aside that fundamental problem, we say on the question of construction and in relation to the guidelines – I just refer in volume 2 of the special case book to pages 527 and 529, which are consistent with the idea – and partly in response to your Honour Justice Beech‑Jones’ question, where certain relevant considerations that go to the protection aspect – refer to, for example, on page 527, breach of visa conditions; on 529, there is a reference to “other serious conduct” as distinct from future criminal offending. 

The reference, your Honour, in special case book volume 1, page 199, is a reference to him protecting himself and the conditions being imposed apparently for that – or at least partly for that – purpose as somehow being built into the protection of the community.  There was a slight confusion, I think – I just wanted to clarify about what material is in the special case book.  The reasons for the fifth visa and the material related to that start at page 164.  That is special case exhibit 9.  The seventh visa is what appears beginning at page 301.  That was just to assist in navigating some of that material that your Honours were taken to.

There is then the question of the curfew and whether it is prima facie punitive.  I think there has been some discussion this afternoon that tends to conflate that we have two alternative arguments on this limb of the case.  The first is that this is detention, judged by reference to cases like Jalloh and Lim, which give concept of detention by reference to the common law protection of liberty, and that we rely on cases like Jalloh that explain the concept of liberty as Blackstone understood it.  If we succeed on that part of the case that it is detention, then you step into the justification analysis.

The other branch of our case, if it is not detention, relates to the nature and severity of the infringement of the rights.  We agree at that level that there is a different type of analysis, and it brings into the picture some of the other aspects relied on by the Commonwealth against us.  But the primary way in which we put our case focusses on the question of detention, and we say that is by reference to the nature of confinement as understood or strongly informed by the common law position, not the position under the European Court of Human Rights.

Jalloh really proves the point that we are trying to make, which is that the common law is more protective of liberty than the European Court of Human Rights has been in relation to the interpretation of article 5.  That is what the court in Jalloh is resisting, the sort of watering down of the common law protection of liberty by reference to the European concept.  That is because in the European context, there is this necessity to draw the distinction between the different rights to liberty, and the different right to movement, which are treated as quite distinct under that regime.

In relation to the Stay at Home Directions, the ultimate point of the Commonwealth’s submission is that the Commonwealth Parliament could impose a scheme that requires a degree of severity to the extent that is equivalent to the Stay at Home Directions without any Chapter III question arising.  That is even though, if your Honours also look at clause 5 in that scheme, people are restrained from leaving home for an unreasonable period of time and could only leave once a day in relation to certain of the purposes.

The Commonwealth says, that is fine, no Chapter III question ever arises, you do not even need to look at the purpose to find out whether or not that is a valid law of the Commonwealth.  We say that cannot be correct as a matter of principle and it is not correct when you have regard to, for example, the Public Health and Wellbeing Act which imposed the condition.  In particular, you will see in the preamble to the Direction that it was made under a power that was expressly confined by reference to a power that the decision‑maker considered was reasonably necessary to protect public health.

The Commonwealth says, do not worry about that too much, and do not worry about us imposing laws that relate to future offending too much, full‑stop, because there could be a potential head of power problem.  But we say that submission misses the point because, on the Commonwealth’s submission, as long as it was a Commonwealth offence that was sought the harm to be protected from, it would not be a head of power problem.  There is no reason why, from a head of power perspective, the Commonwealth, on the Commonwealth’s case, could not enact a scheme that said this regime allows restrictions on liberty for the purpose of protecting the community from a Commonwealth offence.  And that is why we say that Chapter III would have significant work to do there, because that is a realistic scenario in which the Criminal Code has been enacted by reference to various heads of power, and we say that that head of power would carry through to any regime that was directed towards the protection of future offending of harm.

Just in relation to the suggestion that the person – I think this was a suggestion that the person could charge their device overnight and be free from the extra burden of the device during the day.  We say that is not correct.  The instructions are not guidance.  You will see this at paragraph 86(b) of the special case book read with paragraph 88.  That is an instruction that is binding, breach of which is a criminal offence punishable by a mandatory one‑year imprisonment.  So, to call it a guideline, we say, understates the ‑ ‑ ‑ 

GORDON J:   Is that because it requires charging of an hour and a half, 90 minutes morning and night?

MR WOOD:   That is correct, your Honour.  That is the instruction that is being given.  In relation to electronic monitoring, I make a similar point to the one made in relation to the curfew situation.  The Commonwealth submission is effectively – to take up your Honour Justice Steward’s example – the government could impose a requirement that your daughter wear an Apple Watch at all times and collect the data from that, and that would not raise any Chapter III problem at all.  You would not even look to the purpose to find out if there was a Chapter III problem because that is the sort of incursion on rights that does not even enter the arena.  We say that is

an unlikely scenario, bearing in mind, we say, that there is no relevant difference once you set aside a removal purpose – and if we are looking at protection of the community from harm, there is no relevant difference in that scenario between an alien and a citizen, so we say you have to look at this whole regime through that perspective.

If there are no further questions, your Honours, those are the submissions of the plaintiff in reply.

GAGELER CJ:   Thank you, Mr Wood.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow morning.

AT 4.25 PM THE MATTER WAS ADJOURNED