FEDERAL COURT OF AUSTRALIA

ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98

ORDERS

THE COURT ORDERS THAT:

1.    The name of the third respondent be amended to the Secretary of the Department of Home Affairs.

2.    On or before 29 June 2018 the parties file agreed orders to give effect the Court’s reasons for judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The name of the third respondent be amended to the Secretary of the Department of Home Affairs.

2.    On or before 29 June 2018 the parties file agreed orders to give effect the Court’s reasons for judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

1    The third respondent (the Secretary) has adopted a policy to the effect that detainees are not permitted to possess mobile phones and SIM cards in immigration detention centres and that if such items are found in the possession of a detainee, they must be confiscated until the detainee leaves the detention centre. In these proceedings, this policy is described as a “blanket policy”.

2    The applicant described as “ARJ17” has brought a representative proceeding (NSD 223 of 2017) in the original jurisdiction of the Court seeking declarations, injunctions restraining the seizure of mobile phones and SIM cards under the blanket policy, and an order quashing the decision to establish the blanket policy. The appellant described as “SZSZM” has filed an appeal (NSD 725 of 2017) against a judgment of Judge Smith dismissing his application to the Federal Circuit Court of Australia which sought similar orders.

3    By order made on 16 November 2017 in the application brought by ARJ17, I reserved the following question for consideration by the Full Court:

Is the blanket policy invalid on the grounds alleged by the applicant?

4    I ordered that the application and appeal be heard together, given the commonality of issues. At the hearing, SZSZM substantially adopted the submissions of ARJ17 (who, for convenience I will also call collectively the applicants).

5    Before considering the parties’ submissions, it is necessary to describe the factual background and procedural history of each case and the relevant legislative provisions. Rangiah J substantially contributed to preparing this section of these reasons with me.

Factual background and procedural history

6    When they commenced their proceedings, ARJ17 and SZSZM were each detained at the Villawood Immigration Detention Centre. The Court has been informed that since the hearing of the appeal, SZSZM has been returned to Pakistan and is therefore no longer in immigration detention. The respondents have not taken any point about the standing of SZSZM to continue his appeal.

7    On 16 November 2017, I ordered that the question reserved for the Full Court be heard and determined on the basis of the evidence before the Federal Circuit Court and the findings of fact made by that Court as if that evidence and those findings were set out in a special case. The following description of the factual background is largely taken from the reasons for judgment of Judge Smith and from the evidence before his Honour.

8    ARJ17 and SZSZM challenge both the blanket policy and decisions proposed to be made under that policy. The blanket policy is described in ARJ17’s originating application as a policy created by a decision of the Secretary of 27 May 2016 and/or a decision of 21 November 2016. While it is apparent that the decision of 27 May 2016 was made by the Secretary, it is not entirely clear who made the decision of 21 November 2016.

9    An internal minute prepared by staff of the Australian Border Force (ABF) in early 2016 noted that a policy was in force prohibiting all illegal maritime arrival detainees from possessing and using mobile phones in detention, but that this policy did not extend to other detainees. It noted that, increasingly, both types of detainees were being co-located, leading to inconsistency in their treatment. The minute stated that serious risks as a result of the use of mobile telephones by detainees within immigration centres had been identified. Those risks included the risk of escape, use of force incidents, importation of illegal substances, abusive/aggressive behaviour, threats, contraband, mobile phones being used as currency, protest coordination and access to inappropriate/abhorrent/radical material. The minute recommended that all detainees in immigration detention centres should be excluded from using or possessing mobile phones.

10    On 27 May 2016, the Secretary decided to adopt a policy reflecting the internal minute. On 1 July 2016, Chapter 8 of the Detention Services Manual (the DSM) maintained by the Secretary was amended to refer to mobile phones and SIM cards. Chapter 8 provides, relevantly:

Introduction

1    Background

The rationale for preventing some items entering immigration detention facilities (IDF) is a risk mitigation strategy used to manage the good order and security within an IDF and to ensure the health and safety of all persons in any facility. A primary risk mitigation strategy is to place conditions on the entry and use of particular items. Those items may be the property of a detainee, the Facilities and Detention Service Provider (FDSP), departmental officers or visitors. Arrangements for exceptional circumstances are also identified in this instruction.

2     Purpose and scope

This instruction provides Department of Immigration and Border Protection (the Department) employees, FDSP personnel and Detention Health Service Provider (DHSP) personnel with guidance on the management of items that may present a risk to the health, security and good order of immigration detention facilities. Discretionary decisions may be made on an individual basis by the Facility Superintendent and/or Commander Detention Operations in relation to issues that have not been anticipated in this policy ...

3     Principles

The Department has a duty of care towards all persons in an IDF and must exercise reasonable care to protect them from any reasonably foreseeable harm by providing a safe and healthy environment, which includes excluding specific categories of items from entering the facility …

4     Legislative framework

This instruction is based on s252G of the Migration Act (the Act), which outlines the legislative framework for conducting searches and screening procedures in immigration detention centres (IDC). Section 252 allows for a detainee, and the detainees’ clothing and property whilst in their immediate control, to be screened and searched without a warrant. The powers under s252G allow screening of a visitor, and their clothing and property, only on entering an IDC.

...

5     Screening and searching detainees

All detainees are subject to screening by FDSP personnel. Section 252(2) permits an officer to search a detainee, their clothing and any property under their immediate control, without a warrant, for a weapon or item capable of inflicting injury or of assisting with escape.

Section 252C(l) allows an authorised officer to take possession of and retain items found in the course of screening or the conduct of a strip search under s252A, if the item found may provide evidence of a commission of an offence against the Act or is forfeited or forfeitable to the Commonwealth.

Should a prohibited item be found during a search or a screening procedure of a detainee under s252(l)(a), s252AA(1) or s252A, the item must be dealt with in accordance with established policy and procedures ...

…

9    Prohibited items

Items that are considered illegal by Australian law are not permitted in any IDF. Examples of prohibited items are:

•    narcotics/illicit substances

•    weapons and

•    child pornography materials.

10    Excluded items

Items that are not unlawful in the Australian community but have been deemed to present a risk to the health, privacy, safety, security and/or good order of the facility are not permitted in an IDF in any circumstance. Examples of excluded items are:

•    pornographic books, magazines or related material and

•    material that incites violence, racism or hatred.

11     Controlled items

Items that are not unlawful in the Australian community but have been deemed by the Department to present a risk to the health, privacy, safety of individuals within an IDF and/or security and good order of the facility, may be permitted under specific entry approval. …

Controlled items that belong to a detainee that are not permitted in the IDF, are, with the exception of perishable food, to be stored as “in-trust” property or otherwise dealt with in accordance with departmental procedures. Refer to DSM – Chapter 3: Entering and leaving detention – Personal property.

The FDSP may permit staff, personal and professional visitors to bring certain ‘controlled’ items into the facility and apply conditions of entry and use. Prior approval should be sought by visitors should they wish to bring such items into an IDF …

Examples of controlled items are:

•    all mobile phones …

•    Subscriber Identity Module (SIM) cards for mobile phones and other communication devices

…

13    Mobile phones

For security and safety purposes all mobile phones are classified as controlled items and are not permitted in IDFs, except under conditions specified by the Department. …

All detainees within border screening are not permitted to possess a mobile phone … (underlining added)

11    On 15 November 2016, a plan to implement the policy, known as “Operation Ramentum”, was approved by the Acting Commissioner of the Australian Border Force. On 17 November 2016, the first respondent signed a document noting the implementation plan. On 21 November 2016, an announcement of the policy and the implementation plan was made in writing. The document stated, relevantly:

Effective immediately, from 21 November 2016, anyone entering an immigration detention facility or being transferred to another facility is not permitted to have a mobile phone and/or SIM card.

If you are not being transferred to another onshore facility you will have a grace period, until midnight 19 February 2017 in which to voluntarily surrender your mobile phones and SIM cards. These items will be held in your ‘in-trust’ property until you leave immigration detention.

…

From 20 February 2017 you will not be allowed to possess or use mobile phones and SIM cards. You will be provided with additional access to land line phones and you will be able to continue to book time to use the internet…

After the grace period, mobile phones and SIM cards will be confiscated as part of routine searches for contraband items in the facility.

…

Your mobile phones and SIM cards will be kept in your ‘in-trust’ property with your other possessions. They will be returned to you when you leave detention. (emphasis in original)

12    Vanessa Holben, the Commander of the Australian Border Forces’ Detention Operations Branch in the Department gave evidence that prior to 27 May 2016, classes of some persons in immigration detention could possess mobile phones that did not have internet access, camera or recording capabilities, while others could not possess any mobile phones. She said that a “change to policy was approved on 27 May 2016” and that between then and 15 November 2016 work was done preparing an implementation plan for the new policy. She said:

On 21 November 2016, an announcement was made regarding a network wide implementation of the Department's policy on mobile phones. From that date, any detainee entering an immigration detention facility or being transferred to another facility would not be permitted to have a mobile telephone. Visitors may be allowed to possess mobile telephones in IDFs. Any person already in detention in an onshore facility and not being transferred to another facility would have the benefit of a grace period until midnight on 19 February 2017 during which they could write down contacts from their phone and could surrender their phone. After that time mobile phones were to be confiscated as part of routine searches for items not permitted in in immigration detention facilities and any phones found as part of that process will be placed in trust for the detainees.

13    On 7 December 2016, SZSZM commenced his application in the Federal Circuit Court. On 16 February 2017, Judge Smith of the Federal Circuit Court granted an interlocutory injunction restraining the confiscation of SZSZM’s mobile phone pursuant to the policy.

14    On 19 February 2017, on the application of ARJ17, I granted an interlocutory injunction restraining the seizure of mobile phones and/or SIM cards from persons who were in immigration detention and who currently possessed mobile phones and/or SIM cards. ARJ17 then commenced his representative proceeding on 20 February 2017.

15    The Commonwealth applied for summary dismissal of ARJ17’s application on the basis that the Court lacked jurisdiction because the decision sought to be challenged was a “non-privative clause decision” within s 474(6) of the Migration Act 1958 (Cth) (the Act). On 17 March 2017, I held that the Court does have jurisdiction: ARJ17 v Minister for Immigration and Border Protection [2017] FCA 263. On 17 August 2017, a Full Court upheld my judgment: Minister for Immigration and Border Protection v ARJ17 (2017) 250 FCR 474.

16    On 3 May 2017, Judge Smith dismissed SZSZM’s application. SZSZM had submitted that the respondents had no authority to take his mobile phone and that he was denied procedural fairness in respect of the decision to take all mobile phones. The respondents argued that it was lawful to take the mobile phone by virtue of ss 5, 189, 196, 252–252G, 256 and 273 of the Act; and that there was no denial of procedural fairness.

17    Judge Smith first rejected a submission that, the notice of 21 November 2016 did not on its face engage s 252 of the Act. His Honour then noted that it was not contested that mobile phones are capable of helping a person to escape from detention; and held that, in light of the evidence before the Court, there could be no other conclusion. His Honour accepted the respondents’ submission that the clear words of s 252 authorise the search of detainees, their clothes and other property in their immediate possession by authorised officers to find out if there are hidden mobile phones and authorise the retention of any mobile phones found.

18    Judge Smith accepted the respondents’ submission that authority to take and retain mobile phones from detainees in immigration detention centres also arose by implication from the first respondent’s power under s 273 of the Act to cause detention centres to be “established and maintained”, carrying an obligation to maintain order and the security of the staff and detainees. His Honour held that as possession of mobile phones in detention has the potential to both assist in escape and cause harm to detainees, it was within the scope of s 273 of the Act to take and retain mobile phones, found in the possession of detainees.

19    Judge Smith rejected a submission that, pursuant to s 273(2) of the Act, regulation of conduct within detention centres had to be done by way of Regulation. His Honour considered that s 273(2) did not provide the only power to regulate conduct in detention centres, saying that the power in s 273(1) to “maintain” centres provided a broad power to do just that. His Honour said that if s 273(2) provided the only power to regulate conduct in detention centres, then unless and until regulations are made, there would be no power at all to regulate conduct in detention centres.

20    Judge Smith went on to reject the submission that SZSZM had been denied procedural fairness and ought to have been given an opportunity to explain why his mobile phone should not be taken before the policy was made. His Honour considered that where a single decision directly affects a large group of persons, procedural fairness does not normally require that each person is to be afforded a hearing. Therefore, there was no obligation to allow the applicant an opportunity to be heard in relation to the formulation of the policy.

21    Judge Smith also rejected a submission that before any decision to adopt the policy was made, Australia’s international obligations should have been considered.

22    Judge Smith stated that the question of whether a person exercising statutory powers cannot only be guided, but also be dictated to by a policy, depends upon a variety of circumstances, citing CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [37]. His Honour considered that the purpose and statutory context of the power under s 252 of the Act, coupled with the fact that the power is to be exercised by an “authorised officer”, strongly supported the view that the implementation of a general policy is legitimate. His Honour considered that, with the exception of s 252(1)(b), the powers in s 252 do not, in their terms, depend upon the exercise of a discretion based on a personal assessment by the authorised officer. His Honour held that the conduct of searches under s 252 can legally be subject to a general policy such as the one formulated in respect of the possession of mobile phones in immigration detention. Accordingly, his Honour dismissed the application.

The legislation

23    The respondents rely on two sources of power for the implementation of the blanket policy. The first is s 252 of the Act, which provides relevantly:

252    Searches of persons

(1)    For the purposes set out in subsection (2), a person, and the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched if:

(a)    the person is detained in Australia; or

...

(2)    The purposes for which a person, and the person’s clothing and any property under the immediate control of the person, may be searched under this section are as follows:

(a)    to find out whether there is hidden on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention;

…

(3)    An authorised officer may detain a person for the purpose of searching the person in accordance with this section.

(4)    If, in the course of a search under this section, a weapon or other thing referred to in paragraph (2)(a), or a document or other thing referred to in paragraph (2)(b), is found, an authorised officer:

(a)    may take possession of the weapon, document or other thing; and

(b)    may retain the weapon, document or other thing for such time as he or she thinks necessary for the purposes of this Act.

    …

24    An “officer” is defined in s 5(1) of the Act to include an officer of the Department, or persons who are authorised, or who are included in a class of persons authorised, in writing by the Minister to be officers for the purposes of the Act.

25    The expression “authorised officer” is defined in s 5(1) of the Act as follows:

authorised officer, when used in a provision of this Act, means an officer authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision.

26    The expression “detain” is defined in s 5(1) as follows:

detain means:

(a)    take into immigration detention; or

(b)    keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

27    The respondents rely on s 273(1) of the Act as a second source of power for the blanket policy. The section provides:

273    Detention centres

(1)    The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

(2)    The regulations may make provision in relation to the operation and regulation of detention centres.

(3)    Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:

(a)    the conduct and supervision of detainees;

(b)    the powers of persons performing functions in connection with the supervision of detainees.

(4)    In this section:

detention centre means a centre for the detention of persons whose detention is authorised under this Act.

28    Sections 189 and 196 of the Act are also relevant. Section 189 provides, relevantly:

189    Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

…

29    Section 196 provides, relevantly:

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

…

30    Section 5(1) defines the expression “immigration detention” to include being in the company of, and restrained by, an officer, or being held by, or on behalf of, an officer, in a detention centre established under the Act.

The parties’ submissions

31    The applicants submit that the blanket policy is invalid because no provision of the Act authorises such a policy. They submit that its application would involve the commission of torts against detainees without statutory authorisation.

32    The applicants note that the DSM itself describes a source of power for the policy as being ss 252 and 252G of the Act, but that s 252G has no relevance because it does not apply to detainees already in detention. They submit that the only purposes for which search and seizure under s 252 is authorised are those set out in s 252(2), but that there are two important limitations upon such purposes. Firstly, s 252(2) permits a search only in order for an officer to “find out” if the relevant “thing” is “hidden”. The provision is not enlivened where, for example, the detainee is holding or displaying in full view the “thing”. Secondly, the section does not authorise a search of the detainee’s property not under his or her “immediate control”. They submit that s 252 cannot, therefore, authorise a blanket policy which requires confiscation of all mobile phones, hidden or otherwise.

33    The applicants also submit that mobile phones and SIM cards are not an “other thing” within s 252(2)(a) of the Act. To be an “other thing” it must be a thing that is “capable of” being used to inflict bodily injury or help a person to escape from immigration detention. They submit that an “other thing” must be construed as limited to one which, by its nature or quality, or perhaps when viewed in the particular circumstances of the individual case, is “inherently capable” of inflicting bodily injury or helping an escape. They submit that the specific identification of a “weapon” before expanding the category to include an “other thing” is consistent with this construction. They submit that there is nothing in the nature or quality of a mobile phone that renders it inherently capable of being used to inflict bodily injury or to help a detainee escape from immigration detention.

34    The applicants submit that for s 252 to apply, the officer must give consideration to the individual circumstances presenting themselves to the officer. They submit that a blanket policy directing that all mobile phones and SIM cards held by detainees must be seized fails to have regard to considerations relevant to the individual person searched and therefore cannot be supported by provision requiring such consideration.

35    The applicants submit that even if s 252 authorises a search, s 252(4) permits the retention of any relevant thing only for such time as the officer “thinks necessary” for the purposes of this Act. This requires the officer to consider the particular circumstances of the individual case. The blanket policy prevents the officer from making any assessment as to what is “necessary”. They submit that the blanket policy therefore unlawfully fetters the discretion given to officers under s 252 of the Act.

36    The applicants submit that s 273 of the Act does not authorise the blanket policy. They submit that the permission to “establish and maintain” detention centres does not carry with it the power to direct officers to commit what would, absent statutory authority, be tortious conduct against detainees in detention centres. The principle of legality requires that any such authorisation be clearly expressed in unmistakable and unambiguous language.

37    The applicants submit that the power to deprive an unlawful non-citizen of his or her liberty is not found within s 273(1) but is instead conferred through ss 189 and 196, read with the definition of “detain” in s 5(1) of the Act. Section 273(1) is instead directed to matters incidental to the creation and maintenance of the centre itself, such as the acquisition of land, erection of structures and maintenance of facilities. To the extent that s 273 contains any statutory authorisation to regulate the powers of officers within detention centres, it is to be found in ss 273(2) and (3), authorising the making of regulations “in relation to the operation regulation of detention centres”. No such regulations have been made.

38    The applicants submit that any general power under s 273(1) of the Act cannot be relied upon to bypass the controls and limitations on an officer’s powers to search and seize found within ss 252–252C of the Act. They submit that as those provisions confer special power subject to limitations and qualifications, such that any general power does not authorise that which is the subject of the special power, citing Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7.

39    The applicants also submit that the provisions of the Act cannot be read so broadly as to permit a blanket policy of confiscating property as that would result in the provisions contravening Ch III of the Constitution. They submit that a law authorising or requiring detention of non-citizens in custody by the executive will be a law within s 51(xix), and not contrary to Ch III of the Constitution, if the detention which the law requires and authorises is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or consideration of an application to remain in Australia. If the law is not so limited, the detention is punitive in character and ceases to be lawful.

40    The applicants submit that to authorise the compulsory acquisition of property of detainees would go beyond what is reasonably capable of being seen for the purposes of deportation or consideration of an application to remain. They submit that the incidents of detention that Parliament may authorise without contravening the requirements of Ch III of the Constitution do not include automatic deprivation of property rights of aliens, where such deprivation is not reasonably necessary for detainees to remain in detention for constitutionally permitted purposes.

41    In response, the respondents submit that removal of mobile phones and SIM cards pursuant to the blanket policy is authorised on the natural and ordinary meaning of s 252 of the Act. They submit that, as Judge Smith observed, the policy is, in its terms, consistently with the implementation plan, evidently directed to the mobile phones and SIM cards which are hidden. The policy is not directed to the unreal and artificial circumstance of detainees holding their mobile phones in plain sight.

42    The respondents submit that the words “capable of being used to … help the person to escape from immigration detention” in s 252(2)(b) are straightforward and directed to the way in which a thing is able to be used. They submit that it may be readily envisaged how a mobile phone is able to be used to help a person escape from immigration detention, as Judge Smith found. They submit that it is plainly open to regard it as necessary for the purposes of the Act to retain, until the detainee leaves detention, a device capable of helping the detainee to escape from detention found hidden during a search.

43    The respondents submit that there is no warrant for giving “capable” a narrower meaning than its ordinary meaning. It is directed to the way in which a thing is able to be used. It is not directed to how a thing is likely to be used, or to the thing’s inherent attributes.

44    The respondents submit that the limitation sought to be imposed by the applicants upon the broad words of s 252 of the Act also run counter to its evident purpose and practical operation within the context of immigration detention. They submit that to preserve the safety and security of detainees, staff and facilities themselves, staff may have to move swiftly to address potential threats. It was evidently for that reason that broad language of the kind found in s 252 was used. The fact that the thing able to be used to escape from immigration detention is hidden was evidently and understandably determined by Parliament to warrant the prospect of search and removal. They submit that the principle of legality has no relevance where it is plain that s 252 does authorise what would otherwise be tortious conduct at least to some extent.

45    The respondents submit that the fact that s 252 is drafted so as to apply to an individual officer, rather than in general terms, does not deny that the power can be relied on to implement a general policy. They submit that it is not the case that an officer must give consideration to the individual circumstances presented to him or her. They submit that it is common for statutes that confer power not to require independent decision making, as responsible government requires that control can be exercised by ministers and senior public servants over those who exercise public power, citing R v Anderson; Ex parte IPEC-Air Pty Ltd (1965) 113 CLR 177 at 204-206.

46    The respondents submit that it may readily be seen how general and inflexible policies are required for matters such as what property detainees may possess and, in particular, what items capable of assisting them to escape may be possessed. Those kinds of issues raise a question of policy which is suitable to be determined at a level higher than that of authorised officers. Further, the environment of a detention centre is one which, of necessity, requires inflexible rules of this kind to avoid vices ranging from favouritism to victimisation. Moreover, the officers likely to be undertaking the searches and seizures contemplated by s 252 operate within a chain of command. The respondents submit that the same analysis disposes of the applicant’s argument based on s 252(4).

47    The respondents submit that under ss 189 and 196, read with the definition of “detain” in s 5(1) of the Act, officers have a power (and an obligation) to take such action and use such force as is reasonably necessary to keep unlawful non-citizens in immigration detention. Section 273(1) of the Act authorises the Minister to cause detention centres to be “established and maintained” and the notion of “maintaining” a detention centre in this context necessarily encompasses its order and security, including the safety of staff and detainees. They submit that so much is apparent from the scheme established by ss 252–252G. The reference to keeping persons in immigration detention must be understood to include keeping them in a safe, ordered and secure place of detention and to taking such action and using such force as is reasonably necessary to do so. Accordingly, the power to detain and keep unlawful non-citizens in immigration detention conferred by ss 189 and 196 includes the power to take such action and use such force as is reasonably necessary to keep places of immigration detention safe, ordered and secure. An aspect of that power must be a power to control physical items which are the property of detainees where they pose a risk to the safety, order and security of places of immigration detention, such as detention centres. It is this power which permits confiscation of weapons in plain sight.

48    The respondents submit that for the Anthony Hordern principle to apply, the ambit of the restricted power (here s 252) must be wholly within the ambit of the general power (here s 273). That is not so if s 252 applies to people who are not detained by reason of s 252(1)(b), whereas the power relied upon above applies only to people who are detained.

49    The respondents submit that no Constitutional issue arises. They submit that the purpose of detention must be for removal or consideration of an application for a visa; and if that is the purpose of detention, it does not cease to be constitutionally permissible simply because of the conditions of detention. They also submit that this is not a case of detention for a permissible purpose coupled with automatic deprivation of property rights of aliens where such deprivation is not reasonably necessary for detainees to remain in detention. Nor is it a case of a power to confiscate property divorced of considerations of the necessity to do so in order to hold unlawful non-citizens for deportation. The respondents submit that the removal of mobile phones and SIM cards from those in immigration detention is intimately linked to preventing escape from immigration detention and maintaining the safety, security and good order of places of immigration detention. Removal of property of detainees for those reasons does not alter the character of the detention.

50    In oral submissions, the respondents raised a further argument that the policy was not purported to be made under any statutory power and did not purport to have any legal force. The respondents submitted that the policy is merely an expression of opinion and is not binding upon authorised officers. They submitted that as the policy has no statutory basis it cannot be ultra vires.

51    At the conclusion of the hearing, the Court asked the parties to provide submissions as to the statutory authority, if any, of the Secretary to make the policy. Only the respondents did so with supplementary written submissions and included extracts from first, the Minister’s Departmental Policy Statement of its Policy and Procedure Control Framework and, secondly, the Department’s facilities and detainee services contract with Serco Australia Pty Ltd, which we admit as further evidence on the appeal and for the purposes of answering the reserved question. Those supplementary submissions and the further evidence demonstrated that officers and authorised officers, within the meaning of the Act, can be expected to follow the blanket policy and to remove all mobile phones and SIM cards from persons in immigration detention, if the interlocutory injunction that Rares J granted on 19 February 2017 is dissolved. However, the respondents argued that because the blanket policy permitted for exceptions to be made in individual cases, it would still be possible for one or more detainees to be excepted from compliance with it. In their supplementary written submissions the respondents abandoned one of their arguments that the blanket policy was a mere guideline and would not operate to require officers and authorised officers to find and confiscate all mobile phones and SIM cards in detention centres.

Consideration

Identifying the blanket policy

52    It is necessary to begin by identifying the “blanket policy” under challenge by the applicants. The applicants describe the blanket policy as being created by decisions made on 27 May 2016 and/or 21 November 2016.

53    On 27 May 2016, the Secretary made a decision, that later came to be set out in Ch 8 of the DSM, that mobile phones and SIM cards are classified as “Controlled items” that detainees are not permitted to possess in immigration detention facilities. The references in Ch 8 to the search and seizure powers of authorised officers under the Act imply that if such items are found in the possession of detainees, they will be confiscated. That is reinforced from the terms of the contract between Serco (the contractor running the detention centres) and the Commonwealth under which Serco’s obligations include “removing and holding in trust all Excluded and Controlled Items detected or received”. Under Ch 8 and under the contract such items are to be returned only when the person who owns the item leaves the facility.

54    The document announcing the policy was issued on 21 November 2016. It indicated that the Secretary’s policy of confiscating mobile phones and SIM cards was to be implemented from 20 February 2017. That seems to be the only direct relevance of that document.

55    The “blanket policy” should, accordingly, be understood as a decision made by the Secretary on 27 May 2016 that detainees are not permitted to possess mobile phones and SIM cards within immigration detention facilities and that any such items found in their possession will be confiscated until they leave the facility.

56    The respondents submit that the policy cannot be regarded as a “blanket policy” because it allows for permission to be given for detainees to possess mobile phones and SIM cards. Chapter 8 of the DSM deals with “items not permitted in immigration detention facilities”. There are three categories of such items, namely “Prohibited items”, “Excluded items” and “Controlled items”. Items in the first two categories are not permitted in any immigration detention facility in any circumstances, but mobile phones and SIM cards are classified as “Controlled items”.

57    The respondents rely upon para 11 of Ch 8 which deals with Controlled items and states:

Items that are not unlawful in the Australian community but have been deemed by the Department to present a risk to the health, privacy, safety of individuals within an IDF and/or security and good order of the facility, may be permitted under specific entry approval. … (underlining added)

The respondents submit that this leaves it open for detainees to be given permission to possess mobile phones and SIM cards within immigration detention facilities.

58    That submission cannot be accepted. Paragraph 11 goes on to state:

The FDSP may permit staff, personal and professional visitors to bring certain ‘Controlled’ items into the facility and apply conditions of entry and use.

59    Paragraph 13 then states that:

For security and safety purposes all mobile phones are classified as controlled items and are not permitted in IDFs, except under conditions specified by the Department.

60    When read together with the following passages, the statement in para 11 that controlled items “may be permitted under specific entry approval” is not intended to suggest that detainees may be permitted to possess mobile phones and SIM cards in immigration detention centres. It merely allows staff and personal and professional visitors to be permitted to bring such items into detention centres under conditions specified by the Department. That is emphasised by the reference to specific “entry” approval. In any event, the only conditions that have been specified concern food items, and no conditions have been specified allowing detainees to possess mobile phones and SIM cards.

61    In par 1 of Ch 8 it is stated that “[a]rrangements for exceptional circumstances are also identified in this instruction”. However, no such arrangements for exceptional circumstances are identified. Further, while para 2 allows discretionary decisions to be made on an individual basis, that applies only to “issues that have not been anticipated in this policy”, whereas the ban on possession of mobile phones and SIM cards by detainees is obviously anticipated.

62    This construction of Ch 8 of the DSM coincides with the evidence of Commander Holben and the notice of implementation of the policy given on 21 November 2016. As the respondents correctly acknowledged in their supplementary written submissions, the notice “expressed an intention to find and confiscate all mobile phones [and SIM cards] in detention centres”. The policy admits of no exceptions and is properly described as a “blanket policy”.

Does s 273 provide a source of power?

63    The respondents contended that the power s 273(1) comprehended all that the regulation making power in s 273(2) and (3) entailed within the word “maintained”. They argued that the word “maintained” gave the Governor-General power to require officers to implement a policy of removing mobile phones from all detainees in detention centres.

64    That argument must be rejected. The power conferred by s 273(1) enables the Minister, on behalf of the Commonwealth, to cause detention centres to be established and maintained. The power is addressed to the actions of acquiring, leasing or occupying land and buildings, undertaking any necessary building work (in the sense of construction work) and upkeep (in the sense of maintenance) of the physical land and buildings in which persons in immigration detention can be detained, as the definition of “detention centre” in s 273(4) suggests. In contrast, s 273 (2) and (3) enable the Minister to make regulations about how the detention centres operate and provide for their internal governance, including in respect of regulating the conduct and supervision of detainees.

65    In construing a statute, the court must strive to give meaning to every word of each provision as McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71].

66    The general power to make regulations, not inconsistent with the Act, is in s 504(1). It allows regulations to be made that “are necessary or convenient to be prescribed for carrying out or giving effect to this Act”. That power could be used to make regulations relating to the establishment and maintenance of detention centres under s 273(1). However, the specific power to make regulations created by s 273(2) uses the words “operation and regulation of detention centres” to convey a meaning different to “cause detention centres to be established and maintained”. While the word “maintained” conveys ongoing activity, its natural and ordinary meaning, in the context of a power to establish and maintain a place where persons will be held in detention, is that of upkeep and repair of premises so that they will be suitable for use as a detention centre. The power to make regulations under s 273(2) and (3), in contrast, is expressed in language that conveys what is to occur within the physical structures that the Minister may cause, under s 273(1), to be established and maintained, in effect, in good order and condition so as to be suitable to hold detainees in immigration detention.

67    The Act requires an officer, who knows or reasonably suspects that a person in the migration zone, in the position of each of the detainees, is an unlawful non-citizen, to detain that person (s 189(1)). The person must be detained in immigration detention until he or she is removed or deported from Australia, granted a visa or taken, under s 198AD, to a regional processing country (s 196(1)).

68    Relevantly, s 5(1) defines, “immigration detention” to mean either being in the company of and restrained by an officer or “held by, or on behalf of, an officer: (i) in a detention centre established under this Act …” and “detain” as follows:

detain means:

(a)    take into immigration detention; or

(b)    keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

Note: This definition extends to persons covered by residence determinations (see section 197AC).

69     In addition s 5(1) defined “officer” to mean “an officer of the Minister’s Department or a person, or person in a class of persons, authorised by the Minister in writing, to be an officer”.

70    Importantly, the definition of ‘detain’ includes a specific power that the officer who detains a person under ss 189(1) and 196(1) may take “such action and [use] such force as are reasonably necessary to do so”. The Act, in ss 197A and 197B, makes it a criminal offence for a detainee to escape from immigration detention or to manufacture, possess, use or distribute a weapon (being defined in s 197B(2) as including “a thing made or adapted for use for inflicting bodily injury” or a thing that the detainee threatens or intends to use to inflict such an injury).

71    The power to detain, as that word is defined in s 5(1), entitles an officer to take action and use force, to the extent reasonably necessary, to remove a weapon from a detainee or person whom the officer is in the process of detaining. That is because, s 197B(1) makes it an offence for the detainee to possess a weapon, and, ordinarily, it is likely that it will be reasonably necessary to remove it from the detainee in order to keep or cause him or her to be kept in immigration detention, even if the detainee does not presently threaten or intend to use the weapon to inflict bodily injury. The potential for a weapon to be used at a time of the detainee’s choosing or to be used by another detainee, is such that in the ordinary course it will be reasonably necessary for an officer to remove the weapon from the detainee as a precaution against its use. And, by force of s 197B(1), the detainee will have no lawful basis on which to possess the weapon while he or she is in immigration detention.

72    The definition of “detain”, however, would not justify such an approach to the taking of action to remove a mobile phone from a detainee. Such an action is not self-evidently reasonably necessary to keep him, her or others in immigration detention. Nor does the evidence rise to any sufficient standard to demonstrate, objectively, that such an action is reasonably necessary in respect of each and every one of the detainees, or others affected by the policy.

73    The power attached to the definition of “detain” is conditioned by what is, objectively, reasonably necessary, as an action or use of force, to detain or keep a person in detention. It is not a power that depends on only the officer’s subjective belief as to what is reasonably necessary, as authorities such as George v Rockett (1990) 170 CLR 104 establish.

Does s 252 provide a source of power?

74    The respondents also contended that s 252 supported the making and implementation of the policy and implementation plan to remove all mobile phones from persons held in detention centres. They argued that the trial judge had been correct in his conclusions that, first, a mobile phone was a “thing capable of being used to help the person escape from immigration detention” within the meaning of s 252(2)(a), secondly, that the policy and implementation plan were directed to mobile phones that were hidden, thirdly, the purpose of the power in s 252, when read in its context, was to “search for items that may have some utility in an escape from detention…to facilitate that contained detention” and fourthly, the section authorises the search of detainees, their clothes and other property in their immediate possession by authorised officers to find out if there are hidden mobile phones and the retention of any mobile phones found”.

75    The respondents’ argument must be rejected. First, s 252(2) specifies the only two purposes for which a search of a detainee, his or her clothing and any property under that person’s immediate control may occur without warrant, and s 252(5) and (6) define and limit the way in which such a search can lawfully be performed. Critically, s 252(2) specifies that the purposes of such a search are to find out whether there is hidden on or in these possible subjects of the search (the person, his or her clothing or property) either a weapon or other thing capable of being used to first, inflict bodily injury, secondly to help the person escape from immigration detention, or a document or other thing that is, or may be, evidence of grounds for cancelling the person’s visa.

76    The purposes specified in s 252(2) lawfully may be pursued only if the person conducting or authorising the search acts in good faith, using no more force, or subjecting the detainee to no greater indignity, than is reasonably necessary in order to conduct the search (s 252(7) and (8)).

77    Crucially, s 252(2) requires that the search have the purpose of finding out whether a particular class of object (weapon, other thing or document) “is hidden on the person, in the clothing or in the property”. The respondents’ argument sought to expand the meaning of “hidden” to “not visible” or “not in sight”. The natural and ordinary meaning of “hidden” is “concealed, secret” (Oxford English Dictionary Online: sense 1a). The verb “hide”, from which the adjective derives, means “to put or keep out of sight; to conceal intentionally from the view or notice of others; to conceal from discovery, to secrete” (Oxford English Dictionary Online: senses 1a) and “to conceal from sight; prevent from being seen or discovered; cover up; conceal from knowledge; keep secret” (Macquarie Dictionary Online senses 1, 2 and 3).

78    As used in s 252(2), the word “hidden” conveys the meaning that the purpose of searching is “to find out” – that is to discover something that is not already known – whether the detainee intentionally has concealed or secreted an object that he or she has a reason not to expose. The word “hidden”, as used in s 252(2), cannot simply be read as “not visible” in the context of the section as a whole. That is because the section authorises, if its conditions are met, what would otherwise be a trespass to the person or his or her property. The section cannot be read to authorise the search of a person or his or her property to permit an authorised officer, under s 252(4), simply to take possession of and to retain a mobile phone that the detainee has not concealed or secreted and the presence of which the searcher already knows or can see before the search. Nor, as the respondents suggested, can the policy and implementation plan be a proper basis to invoke the power to search all detainees, or all of a class of detainees, merely because it is already known that they have mobile phones, even if it is correct to say that such a phone is capable of helping a (as distinct from “the”) person escape from immigration detention.

79    The fallacy of the respondents’ argument is to conflate a potential nefarious use to which a mobile phone can be put by a person who has hidden it with the ordinary and innocent use of that device as a commonplace feature of modern daily life around the world. A pen or pencil or a bedsheet or belt is also a thing capable of being used to inflict bodily injury, as is virtually every common object that a person in or out of detention may have. The pen or pencil can be used to stab another, the sheet or belt to strangle or trip a person so as to cause injury. Stone age humans used and fashioned stones as weapons. Human ingenuity can convert most everyday objects that have innocent uses into ones capable of inflicting bodily injury or being used to escape from detention.

80    The important qualification of the purpose to justify a search that s 252(2) imposes is that the search must be to find out whether something has been hidden by the person the subject of the search. The fact that the purpose is to “find out” if there is intentional concealment supplies the statutory justification for the search being without warrant. The purpose that s 252(2) prescribes is not merely to search for a weapon, document or other thing; rather, it is to find out if the detainee has hidden (i.e. intentionally concealed) a weapon, document or other thing.

81    The policy and implementation plan seek to avail of the power to search for the former, not the latter purpose. That is not a use of the power in good faith. The respondents’ proposed use of s 252 seeks to employ the exceptional power created by the section as the source of power to seize all detainees’ mobile phones hidden or not, and keep them “in trust” until each owner’s release from immigration detention.

82    Indeed, during the course of oral argument, the respondents submitted that if a mobile phone that was obvious (i.e. not hidden) were “found” during a search under s 252, an authorised officer could retain it under s 252(4). That was because, the argument ran, a mobile phone in plain sight satisfied the literal words in the chapeau of s 252(4), namely that it would then have been “found” in the course of the search, even though the circumstances in which it was found did not involve in any way it being hidden. For example, a mobile phone may be placed so that it can be seen in a pocket or on top of a detainee’s books or on his or her clothes that are piled on a table, yet the respondents’ construction of s 252(4) would result in it being “found” in the course of a search. Where, as here, the respondents’ purpose for invoking s 252 as their statutory source of power is to obtain possession of all detainees’ mobile phones, regardless of whether they are hidden, the requirements of s 252(2) will not be satisfied. Indeed absent the respondents’ announced intention to pursue the policy and implementation plan, a detainee, ordinarily, would have no need or intention to hide his or her mobile phone. That is because the mobile phone would be an item of personal property that had a lawful, innocent and unexceptional use in the detainee’s daily life.

83    The respondents accepted that the landline phones and computer access that they provide to detainees, and propose to provide more amply after obtaining possession of all detainees’ mobile phones, can also be used for exactly the same purposes as mobile phones, namely, as means of communicating with an individual or individuals outside a detention centre to “help the [detainee] to escape from immigration detention”.

84    Statutory authority is necessary for any search of an individual or his or her property. This is because the common law does not allow government officials to enter private property or, except in limited circumstances, not applicable here, to arrest or detain individuals: cf. Entick v Carrington (1765) 2 Wils 275 at 291 per Pratt LCJ for the Court of Common Pleas, George 170 CLR at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, see too: Plenty v Dillon (1991) 171 CLR 635 at 639 per Mason CJ, Brennan and Toohey JJ. Over 250 years ago, the common law firmly set its face against general warrants that did not particularise a person whose premises were to be searched or the objects of the search, as Callinan and Crennan JJ said in New South Wales v Corbett (2007) 230 CLR 606 at 628-630 [89]-[96]. As they said (at 630 [96]), legislation authorising search warrants “seeks to balance long established individual rights against the public interest in combatting crime”.

85    By parity of reasoning, s 252 strikes this balance, in relation to persons in immigration detention, by its specification of the purposes of any search without warrant and the strictures on its conduct. As Griffith CJ, with whom Barton and O’Connor JJ agreed in Clough v Leahy (1905) 2 CLR 139 at 160, explained, Entick 2 Wils 275 established that:

acts in invasion of the liberty of the subject, or in interference with his property, are unlawful, unless they are justified by some statute or known principle of law. All that was decided, or rather, declared by that case is that an act which is an interference with liberty or property is unlawful unless a positive law can be found to authorize it. (emphasis added)

86    The person who conducts a search under s 252(1), or the authorised officer who requests such a person to conduct it, must do so in good faith for one of the purposes in s 252(2) (see s 252(7) and (8)). In Commissioner of Taxation v Futuris Corp Ltd (2009) 237 CLR 146 at 153-154 [11], Gummow, Hayne, Heydon and Crennan JJ said that the affinity between tort law and public law “reflects the precept that in a legal system such as that maintained by the Constitution executive or administrative power is not to be exercised for ulterior or improper purposes (cf. Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1 at 190-191]”; cf. Nyoni v Shire of Kellerberrin (2017) 248 FCR 311 at 328 [80] per North and Rares JJ.

87    Thus, while a detainee may be held lawfully in a detention centre, an officer, and in some circumstances others, can commit, or be vicariously or accessorily liable for, a tort against a detainee. For example an officer might personally, or order or authorise another to, assault a detainee or cause him or her to suffer an injury in breach of a duty of care owed to the detainee, or commit misfeasance in public office, which would create for the detainee a private law right. In some situations involving the intersection between tort law and public law no question will arise about the purpose for the use of executive or administrative power, such as in a case where a detainee in a detention centre slips on a surface and is injured that entitles him or her to sue for damages for negligence. But in other situations the position may be different, such as when a statutory power is used for an ulterior or improper purpose.

88    Here, the respondents determined upon a policy and implementation plan to remove all mobile phones from detainees. They then sought to establish a means to enforce this policy and plan by taking from the detainees their personal property, being the mobile phone, that was lawfully in their possession, regardless of whether the mobile phone was hidden.

89    The respondents’ proposed course of conduct required a positive law to authorise it: Clough 2 CLR at 160. The detainees were lawfully detained, and the respondents had authority, by dint of the definition of “detain” in s 5(1) of the Act, to take “such action and … [use] such force as are reasonably necessary to do so”. That raised the necessity for the respondents to establish objectively (in accordance with that definition) either that it was “reasonably necessary” to take the action of removing from every detainee his or her mobile phone or that there was some other statutory source, such as a purpose identified in s 252(2), or in the other search powers in s 252AA and 252A, that authorised that action.

90    Since the respondents intended to provide sufficient unmonitored landline telephones and computer internet access to all detainees as any detainee wished to use, it could not have been reasonably necessary to deprive every one of them of his or her mobile phone when it was capable of effecting the same or very similar communication opportunities with persons outside a detention centre.

91    For the reasons above, s 252 did not authorise the respondents to search the detainees in order simply to remove their mobile phones.

Is the Blanket Policy a direction by the Secretary?

92    The respondents asserted in their supplementary written submissions that the blanket policy formed part of the DSM, that in turn formed part of the Policy Statement of the Department’s Policy and Procedure Control Framework. The latter document provided in par 4.12.2 that all elements of a policy or procedure within it (such as, the respondents asserted, the blanket policy) had the effect of being a direction of the Secretary under s 13(5) of the Public Service Act 1999 (Cth).

93    If the blanket policy were a direction of the Secretary or the Border Force Commissioner, then s 42(4) of the Public Service Act made it a legislative instrument. There is no evidence that any part of the blanket policy or Ch 8 of the DSM has been registered as a legislative instrument on the Federal Register of Legislation under the Legislation Act 2003 (Cth) nor has the Court been able to find such an instrument on the Register.

94    The Legislation Act required, in s 15G(1), that the rule-maker for a legislative instrument had to lodge the instrument for registration “as soon as practicable after the instrument is made”. Critically, s 15K(1) provided that a legislative instrument “is not enforceable by or against any person (including the Commonwealth) unless the instrument is registered as a legislative instrument”. Moreover, a provision of a legislative instrument does not apply in relation to a person (other than the Commonwealth or one of its authorities) “if the provision commences before the day the instrument is registered, to the extent that as a result … the person’s rights as at that day would be affected so as to disadvantage the person” (s12(2)(a)). Clearly enough, the detainee’s rights to hold and possess his or her mobile phone or SIM card would be affected to the detainee’s disadvantage if the blanket policy applied to the detainee.

95    It is not necessary to decide the correctness of the respondents’ argument that the blanket policy was a direction under the Public Service Act, or if it were, that it has any effect in the absence of its registration as a legislative instrument. That is because, as explained above, nothing in the Migration Act on which the respondents relied provided a source of power for the making of the blanket policy. Nor is it necessary to decide whether the blanket policy, if it came into force, would have had the effect of dictating to an officer or authorised officer how to exercise a statutory discretion.

Constitutional argument

96    The Constitutional arguments raised by the applicants would become relevant only if it were concluded that the blanket policy is otherwise authorised by the Act. In light of the conclusions described above, it is unnecessary to consider the Constitutional arguments.

Conclusion

97    The reserved question is, “Is the blanket policy invalid on the grounds alleged by the applicant?”. The question should be answered as follows:

The blanket policy is invalid on the ground that it is not authorised by any provision of the Act.

98    Further, the proposed actions of authorised officers to confiscate mobile phones and SIM cards found in the possession of detainees in immigration detention centres in compliance with the blanket policy will be invalid.

99    The application must succeed and the appeal must be allowed. The parties will be directed to provide draft orders.

Associate:

Dated:    22 June 2018

REASONS FOR JUDGMENT

FLICK J:

100    There are currently two proceedings before the Court, namely:

    SZSZM v Minister for Immigration and Border Protection & Ors – that being an appeal from a decision of the Federal Circuit Court of Australia (SZSZM v Minister for Immigration and Border Protection [2017] FCCA 819, (2017) 321 FLR 162); and

    ARJ17 v Minister for Immigration and Border Protection & Ors – that being an application commenced in the original jurisdiction of this Court by the filing of an Originating Application on 20 February 2017.

Both proceedings involve the validity of a change to the Detention Services Manual made on 27 May 2016 by the Secretary of the Department of Immigration and Border Protection (“the “policy”). The policy objective sought to be achieved is the removal of mobile phones and subscriber identity module (“SIM”) cards from the possession of detainees held in immigration detention facilities.

101    It is not necessary to separately set forth at length the terms of the policy, the relevant statutory provisions or the competing arguments advanced by the parties given the great care with which they have already been set forth in the reasons for decision of Rares J.

102    Notwithstanding the comparative length of the Detention Services Manual, the validity of the policy ultimately turns upon two or three lines, namely:

    the provision in cl 11 which provides that “[c]ontrolled items that belong to a detainee are not permitted in the [Immigration Detention Facilities and] are … to be stored as ‘in-trust’ property”. Mobile phones and SIM cards were characterised in cl 11 as examples of “controlled items”; and

    the provision in cl 13 that “[f]or security and safety purposes all mobile phones are classified as controlled items and are not permitted in [Immigration Detention Facilities], except under conditions specified by the Department”. No conditions have been “specified” in the policy.

103    Those provisions operate and were intended to operate so as to authorise the compulsory taking of possession of detainees’ mobile phones and SIM cards. In the absence of statutory authority of a sufficiently unambiguous character, the compulsory taking of mobile phones and SIM cards would constitute a trespass or conversion of the property of detainees.

104    It is concluded that the policy lacks the statutory authority to achieve the objective sought to be pursued. Legislative authority to support the policy is not to be found in either s 252 or s 252G of the Migration Act 1958 (Cth), those being the two provisions expressly set forth in cl 4 of the policy. Nor is legislative support to be found in s 273.

105    The statutory authority conferred by ss 189 and 252(3) of the Migration Act to “detain” an individual does not of itself expressly confer any authority to take possession of the individual’s property. There may, perhaps, be impliedly embraced within the authority to “detain” an individual an implied authority to also take possession of such goods as have an inherent capacity to frustrate the effectiveness of such detention. Many – and, indeed, various – examples of goods having such an inherent character were advanced during the course of submissions, including weapons of varying degrees of violence. But whatever may be the outer limits of any such implied authority to make good the detention of an individual, the power does not extend to goods not having such an inherent character such as mobile phones and SIM cards. A statutory power to “detain” an individual does not of itself confer immunity from all civil liability: cf. Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 at [21], (2004) 219 CLR 486 at 499 per Gleeson CJ.

106    Nor should the statutory power conferred by s 252 of the Migration Act be construed any more widely than its express terms permit. The statutory power conferred by s 252(1) is primarily a discretionary power to be exercised by reference to the facts and circumstances presented to the person exercising that power and not by reference to a policy inflexibly applied. The power of search, in any event, is a power conferred for the “purposes” set forth in s 252(2), namely a power to search a person, and the person’s clothing and any property “to find out whether there is hidden on the person, in the clothing or in the property” certain items. Such a power cannot support the “search” of a person “to find” that which is not hidden. Section 252, moreover, is expressed in terms which vest a discretionary judgment in an “authorised officer” which is not mirrored in the policy itself. Thus, for example, whilst the policy authorises the retention of mobile phones and SIM cards until a person leaves a detention centre, s 252(4) of the Migration Act vests a discretionary power upon an “authorised officer” to “retain [a] weapon, document or other thing”, but only for such a period of time as the “authorised officer” independently “thinks necessary for the purposes of [the Migration Act]”.

107    To the extent that the policy expressly seeks to invoke s 252G of the Migration Act as the statutory source of power upon which the policy is “based”, that section provides no such foundation. Section 252G, by its terms, is confined only to those persons who are “about to enter a detention centre” and does not apply to those already in detention.

108    More open to argument is the scope of the authority conferred by s 273(1) of the Migration Act to “cause detention centres to be established and maintained”. The concept of “maintaining” a detention centre may (perhaps) carry with it the authority to “maintain” such a facility so that it in fact remains a facility at which detention can be effectively achieved. Preventing that which may facilitate escape from such a facility could potentially, on such an approach, be embraced within the authority to “maintain” the facility. Even if that be accepted, it may be queried whether a power to “maintain” a “detention centre” is a sufficiently certain source of statutory power to search and remove articles from detainees. Even if such a construction of s 273(1) were to be accepted, such a construction would not authorise “maintenance” by way of Ministerial direction or policy. Clearer statutory language than that employed in s 273(1) would be required to permit such an interference with the property rights of those being detained.

109    Even if there be found a statutory source of power which could authorise the making of a policy or a regulation giving effect to a generally expressed administrative objective of seizing mobile phones and SIM cards, any exercise of such a power would necessarily have to be proportionate to the power conferred. In the absence of clear statutory language, an instruction that “all mobile phones … are not permitted” would arguably not be a proportionate exercise of such a power if it did not take into account such a variety of considerations peculiar to individual detention centres and considerations personal to individual detainees, including:

    the nature of the conduct that has caused the individual to be detained, that conduct potentially varying from the commission of serious criminal offences occasioning deportation to overstaying a visa;

    an understandable desire on the part of some individuals to retain as close a degree of contact with close relatives for such period as they remain in detention; and

    the characteristics of the phones and SIM cards themselves.

110    If there be prejudice to the manner in which a detention facility is operated, any such regulation as to the “operation and regulation” of such centres could potentially be the subject of regulations made pursuant to ss 273(2) and 504 of the Migration Act as opposed to Ministerial direction or policy. However wide the ambit of any power to “maintain” a detention facility may be construed, it would not authorise the present policy change by mere Ministerial direction. Even the validity of a regulation made pursuant to ss 273(2) and 504 which sought to give effect to the present policy objective of confiscating mobile phones and SIM cards would not be free of doubt.

111    The policy in the present case is invalid. Not only are the directions to seize and retain the mobile phones and SIM cards of detainees in detention centres not supported by a sufficiently unambiguous source of legislative power, the policy itself is inconsistent with the discretionary powers otherwise vested in an “authorised officer”.

Associate:

Dated:    22 June 2018

REASONS FOR JUDGMENT

RANGIAH J:

112    I have had the advantage of reading the reasons for judgment of Rares J and Flick J in draft. I agree with Flick J. I also agree generally with Rares J, but depart from his Honour’s reasons in one respect. I consider that it is necessary to decide upon the applicants’ submission that the blanket policy is inconsistent with the discretionary powers conferred upon authorised officers under s 252 of the Migration Act 1958 (Cth) and is invalid on that basis.

113    The respondents initially submitted that the blanket policy is merely an expression of the opinion of the Secretary and is not binding upon authorised officers. They submitted that the policy has no statutory basis and therefore cannot be ultra vires. They also submitted that as authorised officers may choose to disregard the policy, it cannot be assumed that decisions to confiscate mobile phones and SIM cards will be made in accordance with the policy.

114    In their supplementary submissions, the respondents now accept that the blanket policy binds all Australian Public Service (APS) employees, including members of the Australian Border Force (ABF). They concede that the Court should proceed on the basis that authorised officers will comply with the blanket policy. They do not contend that authorised officers will simply treat the policy as a guideline.

115    The respondents now submit that Ch 8 of the Detention Services Manual (DSM) “takes effect as a direction of the Secretary pursuant to the Public Service Act 1999 (Cth)”. The respondents do not specifically identify the relevant provision of the Public Service Act. However, they refer to s 13(5) of the Public Service Act, which provides that “An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction”. It appears that the Secretary purported to give a direction of the type contemplated in that provision. Whichever provision of the Public Service Act the Secretary purported to act upon, it cannot confer power to give directions that are inconsistent with an Act.

116    The applicants submit that the Secretary’s decision to adopt the blanket policy is invalid as it inconsistent with s 252 of the Migration Act. The applicants submit that the discretionary powers conferred on authorised officers under that provision must be exercised personally and independently. In response, the respondents submit that s 252 allows the exercise of the powers of authorised officers to be dictated, and not merely guided, by policy decisions. The respondents submit that this construction flows from considerations of the chain of command to which authorised officers are subject and the nature of detention centres. The respondents’ submissions were accepted by the Federal Circuit Court in the judgment from which SZSZM has appealed.

117    Section 252(1) of the Migration Act provides that, for the purposes set out in s 252(2), a person, the person’s clothing and any property under the immediate control of the person may, without warrant, be searched if, relevantly, the person is detained in Australia. The provision does not specify who may carry out the search, but the terms of s 252(1)(b) and (4) suggest that it is an authorised officer who may do so.

118    An “officer” is defined in s 5 of the Migration Act to mean, in summary: an officer of the Department; a customs officer; a police officer; and a person who is authorised, or who is included in a class of persons authorised, in writing by the Minister. An “authorised officer” is, under s 5 of the Migration Act, an officer authorised in writing by the Minister, the Secretary or the ABF Commissioner. The persons likely to be authorised officers within immigration detention facilities appear to be members of the ABF, other officers of the Department and employees of Serco Australia Pty Ltd (a contractor which operates immigration detention facilities).

119    In submitting that the exercise of an authorised officer’s discretionary powers under s 252 of the Migration Act may validly be dictated by the blanket policy, the respondents place particular reliance upon CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 (CPCF v MIBP). In that case, the High Court considered s 72(4) of the Maritime Powers Act 2013 (Cth) which relevantly provides that “a maritime officer may detain the person and take the person…to a place outside the migration zone, including a place outside Australia”. The applicant alleged that his detention on a Commonwealth vessel was unlawful because, inter alia, maritime officers had acted under the dictation of the National Security Committee of Cabinet (the NSC) in taking him to a place outside Australia.

120    In CPCF v MIBP, French CJ explained at [37] that whether a Minister can direct a public official in the exercise of a statutory discretion “depends upon a variety of considerations including the particular statutory function, the nature of the question to be decided, the character of the decision-maker and the way in which the statutory provisions may bear upon the relationship between the Minister and the decision-maker”.

121    The High Court delivered six separate sets of reasons. Each member of the Court concluded that s 72(4) of the Maritime Powers Act does not require a maritime officer to make an independent decision and that a maritime officer can properly regard a direction of the NSC as decisive. In reading that conclusion, each member of the Court emphasised that maritime officers are subject to the command of their superiors within the hierarchical structures of organisations that are themselves ultimately subject to the control of the Executive Government. Chief Justice French and Hayne, Bell, Crennan and Kiefel JJ also considered that as the exercise of the power raised questions concerning Australia’s international relations, it was appropriate for decisions to be made at a high level in the chain of command. Justices Crennan, Kiefel and Keane noted that the language of s 72(4) does not suggest that the decision resides with a maritime officer. Justices Crennan and Keane contrasted the nature of the decision under s 72(4) with the personal nature of a decision to be made under s 74 of the Maritime Powers Act, which requires that a maritime officer “must not place or keep a person in a place, unless the officer is satisfied, on reasonable grounds, that it is safe for the person to be in that place”. On the other hand, Hayne and Bell JJ considered that the nature of the decision to be made under s 74 supported the view that such a decision could be taken at a higher level in the chain of command.

122    In CPCF v MIBP, it was an agreed fact that:

The maritime officers on navy vessels and Australian customs vessels perform their duties and exercise their powers, including their powers under the Maritime Powers Act, in the context of a chain of command in which they are governed by orders and instructions from superior or senior officers.

That agreed fact was central to the conclusion reached by each member of the High Court that that the exercise of the powers of a maritime officer under s 72(4) of the Maritime Powers Act can effectively be dictated by a decision of the Executive Government.

123    Under the Migration Act, authorised officers may consist of officers who are members of the ABF and officers who are not. The respondents submit that members of the ABF are, pursuant to ss 23–27 of the Australian Border Force Act 2015 (Cth), subject to a chain of command. Under s 23(1), the Minister may give directions to the ABF Commissioner about policies that should be pursued. Section 27(1) allows the ABF Commissioner to give directions to persons in the ABF and persons performing services for the ABF about the performance of functions, or the exercise of powers, under a law of the Commonwealth. Importantly, however, s 27(2) provides that the power under s 27(1) “does not apply in relation to the Migration Act 1958”. Under s 25(1) of the Australian Border Force Act, the Commissioner may delegate his or her powers to the Secretary, but any such delegation cannot give the Secretary power to give directions in relation to the performance of functions or the exercise of powers under the Migration Act. Therefore, no chain of command is created under the Australian Border Force Act in relation to the performance of functions or exercise of the powers of authorised officers under s 252 of the Migration Act, even where the authorised officers are members of the ABF.

124    The power of the Secretary to give directions that must be complied with under s 13(5) of the Public Service Act does not create a chain of command of the type considered in CPCF v MIBP. The members of the armed services, or of a disciplined force such as the Australian Federal Police, are required to obey the commands of a chain of superior officers: see Hasking v The Commonwealth of Australia (2011) 244 CLR 22 at [67], s 27 of the Defence Force Discipline Act 1982 (Cth), s 40 of the Australian Federal Police Act 1979 (Cth). In contrast, the requirement under s 13(5) of the Public Service Act, is only for APS employees to comply with any “reasonable direction” given by someone in the employee’s Agency who has authority to give the direction. In at least this way, the position of APS employees is distinguished from the position of members of the armed services and other disciplined forces. There is no chain of command comparable to that considered in CPCF v MIBP.

125    Further, s 252 of the Migration Act is drafted in terms which indicate that the powers are to be exercised by authorised officers personally and independently making discretionary judgements based upon the particular circumstances that they face. The word “may” in s 252(1) of the Migration Act indicates that an authorised officer has a discretion as to whether to carry out a search for the purposes specified in s 252(2): see s 33(2A) of the Acts Interpretation Act 1901 (Cth). Similarly, an authorised officer has a discretion under s 252(4) of the Migration Act as to whether to take possession of and retain a “weapon, document or other thing” found in the course of a search. Under s 252(4)(b), if an authorised officer decides to retain such an item, the officer is required to exercise a discretionary judgement as to the time he or she “thinks necessary” to retain the item for the purposes of the Migration Act.

126    A search may only be carried out for limited purposes and for a limited range of items. Under s 252(2) of the Migration Act, a search may only be carried out, relevantly, to find out whether there is hidden on the detainee or his or her clothing or property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention. An authorised officer is required to exercise judgement as to whether the conditions for searching the person or property exist and whether a search ought to be carried out. A decision must be made as to whether any item found answers the description in s 252(2) and whether it ought to be retained under the power given by s 252(4). If an authorised officer decides to retain an item, he or she may only retain the item for such time as he or she “thinks necessary” for the purposes of the Migration Act.

127    The judgements that must be made by an authorised officer exercising powers under s 252 of the Migration Act are capable of being influenced by a wide array of circumstances, including the characteristics of the particular detainee whose person or property may be searched and the nature of any relevant item located. For example, a decision as to whether to retain an item must be made bearing in mind the vast range of everyday items which are capable of answering the description of a “thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention”. Such judgements may have to be made in response to circumstances that arise or change suddenly in the course of the operation of an immigration detention facility. They are capable of being made by officers on the ground and such officers can be seen as most immediately and best-placed to make them. The nature of the discretionary powers to be exercised are quite different to those considered in CPCF v MIBP, where it was clearly appropriate that decisions affecting Australia’s international relations be taken at a high level.

128    The personal nature of the judgements to be made under s 252 of the Migration Act can most obviously be seen in the power given to an authorised officer under s 252(4)(b) to retain an item “for such time as he or she thinks necessary for the purposes of this Act”. A direction that an authorised officer must retain mobile phones and SIM cards until the detainee leaves the detention facility would deprive the officer of the expressly conferred right and obligation to decide what period of time is necessary. The personal nature of the discretionary judgements that are to be made tells against any legislative intention to allow dictation as to the exercise of the powers of authorised officers under s 252 of the Migration Act.

129    The Migration Act specifically confers many powers upon the Secretary. Those powers are too numerous to fully describe, but some examples in connection with actions that affect personal or property rights are found in Pt 2, Div 13, in provisions including ss 251(4), 253(8), 254(2), 259(1) and 261E(1). Some provisions draw a distinction between powers of the Secretary and powers of officers. For example, s 252A(1) allows an authorised officer to conduct a strip search of a detainee in specific circumstances, including where, under s 252A(3)(c)(i), the Secretary authorises the strip search. Some provisions specifically allow the Secretary to direct an officer to take a specified action. For example, under s 260(1), the Secretary may direct an officer to detain a vessel and, under s 261(1), to dispose of a vessel. Where it is intended that the Secretary should have the power to make a decision and where it is intended that the Secretary should have the power to direct an officer to take an action, the Migration Act tends to specifically confer the power. The fact that only an authorised officer is specifically conferred with power under s 252 suggests that there is no legislative intent that the Secretary should be able to direct the exercise of that power.

130    It is true to say that consistency of decision-making within the environment of a detention facility is desirable: c.f. Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [54], [68]–[69]. But it is not necessary to construe s 252 of the Migration Act as allowing, not merely guidance, but dictation in order to promote consistency. In Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, French and Drummond JJ discussed the utility and the limits of policy guidelines where discretionary powers are conferred on a decision-maker at 206.

Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion.

131    It must be concluded that the powers under s 252 of the Migration Act are conferred personally upon authorised officers and the discretionary judgements required to be made must be made personally and independently by authorised officers.

132    The discretionary powers conferred upon authorised officers under s 252 of the Migration Act allow them to give such weight as they consider appropriate to such circumstances they consider relevant (and which are not prohibited from consideration by the legislation). The Secretary’s blanket policy that authorised officers must confiscate mobile phones and SIM cards found in the possession of any detainee in an immigration detention facility until the detainee leaves the detention facility effectively dictates that authorised officers must give no weight to any other circumstances. However, no power under the Public Service Act to give directions allows the Secretary to direct authorised officers to act inconsistently with their statutory obligations. To the extent that the Secretary purported to act under powers under the Public Service Act to make the blanket policy, the policy is invalid.

133    The respondents concede that the Court should proceed on the basis that authorised officers will act in accordance with the blanket policy. Accordingly, it must be concluded that authorised officers will regard themselves as bound by the policy to confiscate mobile phones and SIM cards found in the possession of a detainee and to retain them until the detainee leaves the immigration detention facility, whatever the particular circumstances might be. Such conduct will be inconsistent with the discretionary powers conferred under s 252 of the Migration Act and will be invalid.

134    For these reasons, as well as the additional reasons given by Rares J and Flick J, the application should succeed and the appeal should be allowed.

Associate:    

Dated:    22 June 2018