FEDERAL COURT OF AUSTRALIA
Azimitabar v Commonwealth of Australia [2024] FCAFC 52
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: | 26 April 2024 |
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The Appellant pay the Respondent’s costs, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
INTRODUCTION
1 This is an appeal from a judgment of the primary judge who held that the Mantra Bell City Hotel in Preston, Victoria, and the Park Hotel in Carlton, Victoria (the Hotels) were lawfully approved as “another place” of immigration detention under the Migration Act 1958 (Cth) (the Act) during the appellant’s detention from November 2019 to 21 January 2021: Azimitabar v Commonwealth of Australia [2023] FCA 760 (J).
2 By notice of appeal dated 2 August 2023, the appellant raises the following four grounds of appeal:
Construction grounds
(1) The learned primary judge erred by holding (see J [160]) that subpara (b)(v) of the definition of “immigration detention” in the Migration Act 1958 (Cth) (“Act”) impliedly confers a power on the Minister to approve “another place” in writing as a place of immigration detention, when the learned primary judge should have held that:
(a) subpara (b)(v) seizes upon the existence of a document created by the Minister—a “writing”—rather than creating a power (contra J [153], [155]);
(b) subpara (b)(v) assumes, wrongly, the existence of a power elsewhere in the Act and does not itself create a power (contra J [142]ff).
(2) Alternatively, the learned primary judge erred by:
(a) holding (see J [191]) that such an implied power authorised the approval in writing of “another place” that was a de facto detention centre;
(b) failing to hold that section 496(1) of the Act does not empower the delegation of an implied power, and hence that the purported approvals at issue in this case, being by delegates, were invalid or ineffective.
Expenditure grounds
(3) The learned primary judge erred by holding (see J [238]) that the Appellant’s detention, in the places purportedly approved (see grounds 1 and 2 above), was authorised even without lawful authorisation for the expenditure involved in detaining the Appellant at each of those places.
(4) The learned primary judge erred by holding (see J [263]) that, where expenditure is not expressly or by necessary implication authorised by legislation, section 61 of the Constitution will authorise that expenditure where the expenditure is reasonably incidental to the execution and maintenance of a statute.
BACKGROUND
3 The factual background was set out by the primary judge at J [10]–[15]. Those facts were not in dispute on this appeal and may be relevantly summarised as follows.
4 The appellant is a 37-year-old citizen of Iran, of Kurdish ethnicity. He left Iran and arrived at Christmas Island by boat, without a visa, in July 2013. Christmas Island was defined in s 5(1) of the Act to be an “excised offshore place”. The appellant was therefore an “unauthorised maritime arrival” and thus was an “unlawful non-citizen” under the Act.
5 The appellant was initially detained on Christmas Island and, in mid-August 2013, he was taken by officers of the Department to the regional processing centre on Manus Island, Papua New Guinea. Save for a short period of detention in Port Moresby, he was detained on Manus Island from mid-August 2013 to 10 November 2019.
6 In August 2019, a psychiatrist diagnosed the appellant as suffering from post-traumatic stress disorder and a major depressive episode, and recommended that he be brought to Australia to receive psychiatric and psychological treatment. The appellant applied to the Department for transfer to Australia on medical grounds which was accepted. On 11 November 2019, the appellant was brought to Australia for the purposes of psychiatric assessment or treatment under ss 198C and 198B(4)(a) of the Act.
7 From 11 November 2019 to 21 January 2021, the appellant was detained in Australia by, or on behalf of, the Commonwealth. From 11 November 2019 to 16 December 2020, he was detained at the Mantra Bell City Hotel, and from 17 December 2020 until 21 January 2021, at the Park Hotel. The appellant was granted a bridging visa and released from immigration detention on 21 January 2021.
Primary Judgment
8 Before the primary judge, the appellant contended that his detention in the Hotels was unlawful and claimed damages. The appellant advanced three arguments before the primary judge:
(a) First, the appellant contended that neither subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Act, nor any other provision in the Act, conferred a power on the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to approve “another place” in writing as a place of immigration detention. The appellant submitted that any purported approval of the Hotels as places of immigration detention, therefore, had no effect; the Commonwealth detained him other than in “immigration detention”, as defined in the Act, which it had no authority to do, and his detention was therefore unlawful.
(b) Second, in the alternative, the appellant contended that the conditions of his detention in both Hotels meant that they were de-facto “detention centres” and the power to establish a “detention centre” was only found in s 273 of the Act. The appellant argued that on the principle of statutory construction usually associated with Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; HCA 9 (Anthony Hordern), any power sourced in subpara (b)(v) of the definition of “immigration detention” could not be used to establish a de-facto detention centre. The appellant submitted that the Commonwealth had detained him other than in “immigration detention” which it had no authority to do, and his detention was therefore unlawful.
(c) Third, the appellant contended that the Act did not authorise the Commonwealth to contract and spend public monies on creating and operating the Hotels as places of immigration detention; neither did the executive power under s 61 of the Constitution, and nor did s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) and the regulations made thereunder. The appellant argued that the Commonwealth detained him in the Hotels despite it not having authority to contract and spend public monies to create and operate the Hotels as places of immigration detention, and his detention in the Hotels was therefore unlawful.
9 The primary judge (J at [4]) summarised the reasons why he concluded that the appellant’s detention in the Hotels was lawful, and his application must be dismissed, as follows:
First, I consider subpara (b)(v) of the definition of “immigration detention” impliedly confers power on the Minister to approve ‘another place’ in writing as a place of immigration detention, and I am satisfied the Hotels were so approved. Second, although the Hotels did in my view operate as de facto detention centres, I consider the power in subpara (b)(v) is not impliedly limited by the Anthony Hordern principle or otherwise such that it does not include a power to approve ‘another place’ of immigration detention that is, in effect, a detention centre. Third, I consider the lawfulness of the applicant’s detention in the Hotels does not depend on whether or not the Commonwealth’s contracting and expenditure on the Hotels as places of immigration detention was lawfully authorised. In any event, I consider the executive power under s 61 of the Constitution authorised the Commonwealth’s contracting and expenditure on the Hotels.
10 The primary judge made a number of factual findings about the approval process undertaken by the Commonwealth to have the Hotels approved as “another place” for immigration detention. Those findings are set out by the primary judge at J [15]–[43] and may be summarised as follows.
11 Throughout the period the appellant was detained in the Hotels, delegates of the Minister issued written instruments purporting to approve the Hotels as places of “immigration detention”. Those written instruments were expressed to be issued by a delegate of the Secretary of the Department, acting under powers as an “officer”, for the purpose of the definition of “immigration detention”.
12 The purpose of establishing the Hotels as places of immigration detention was to accommodate medical transferees to Australia from Nauru and Manus Island. There was a need for an Alternative Place of Detention (APOD) in Melbourne due to the significant increase in the number of medical and non-medical transfers of refugees from Nauru and Manus Island.
13 The Park Hotel was primarily used as a place of detention for “transitory persons” (as defined in the Act) brought to Australia from a regional processing country, for example to receive medical treatment, or to accompany a family member who was receiving medical treatment, and people who had been refused immigration clearance.
14 The Mantra Bell City Hotel was also primarily used for “transitory persons” brought to Australia from a regional processing country for medical treatment or to accompany a family member. These “transitory persons” were required to return to a regional processing country when they no longer needed to remain for the temporary purpose for which they had been brought to Australia.
15 There was a range of placement options available to the Commonwealth for dealing with unlawful non-citizens in Australia, including:
(a) detaining them in an immigration detention facility (IDF);
(b) making them lawful non-citizens through the grant of a visa; or
(c) arranging for them to be placed in the community through the Residents Determination provisions of the Act.
16 There were three broad types of IDF in use:
(a) Immigration detention centres (IDCs) which are centres established under s 273 of the Act and offer the highest level of security. They are used to provide secure detention for detainees who are a higher flight risk or security risk than detainees placed in other facilities. There are four IDCs located at: North-West Point on Christmas Island; Yongah Hill in Western Australia; Perth in Western Australia; and Villawood in NSW.
(b) Immigration Transit Accommodations (ITAs) which are “other places” approved by the Minister by written instrument as a place of immigration detention under subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Act. These ITAs are dedicated transit facilities in detention precincts which provide accommodation for lower security and low flight risk persons in detention.
(c) APODs, which are “other places” approved by the Minister by written instrument as a place of immigration detention under subpara (b)(v) of the definition of “immigration detention”. APODs are intended to be used more flexibly as part of the network of IDFs and to be operated on an “as needs” basis. Facilities can be and remain designated for as long as there is a perceived operational need, which may be an unknown or lengthy period of time. Facilities are removed from designation as an APOD by a new written instrument once their need is at an end. At any given time, there may be more than 100 approved APODs around Australia.
17 APODs are generally intended for use as a short-term detention solution at locations where there are no other suitable immigration detention facilities. The primary judge found that whilst the intention behind the approval of places like the Hotels as APODs was to provide places for “temporary” detention, the evidence showed that they were in fact used as places of long-term detention.
Legislative Framework and Principles
18 The legislative framework and relevant principles were described by the primary judge at J [64]–[76] as follows.
19 It was not in dispute between the parties that from the appellant’s medical transfer to Australia in November 2019 until he was granted a bridging visa on 21 January 2021, he did not hold a visa to enter or remain in Australia. He was therefore an “unlawful non-citizen” under s 14 of the Act. It is common ground that throughout that period it was known or believed by the officers detaining him that he was an “unlawful non-citizen”.
20 At all material times s 189(1) of the Act provided:
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.
21 As explained in Commonwealth of Australia v AJL20 (2021) 273 CLR 43; HCA 21 at [16] (Kiefel CJ, Gageler, Keane and Steward JJ), detention under s 189(1) has two distinct and sequential operations:
First, it authorises and requires a person in the migration zone to be taken into immigration detention by an officer who knows or reasonably suspects that the person is an unlawful non-citizen. Secondly, it authorises and requires the person, having been taken into immigration detention, to be kept in immigration detention by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen.
22 Section 189 did not authorise the detention of an unlawful non-citizen in the ordinary sense of the term “detain”, which was defined in s 5(1) to mean “take into immigration detention or to keep, or cause to be kept, in immigration detention”. The power under s 189 was a power to take an unlawful non-citizen into “immigration detention”, as defined, and to keep the person there.
23 That is confirmed in s 196(1) which provided that a person detained under s 189 must be kept in “immigration detention”, until one of four specified events occurs. It provided:
(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.
24 It was not in dispute between the parties that until the appellant was granted a bridging visa on 21 January 2021, none of the events specified in s 196(1) of the Act had occurred.
25 At all material times, subpara (b) of the definition of “immigration detention” in s 5(1) of the Act provided:
immigration detention means:
…
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or
(v) in another place approved by the Minister in writing
26 Pursuant to subpara (b) of the definition, being in “immigration detention” meant being held by, or on behalf of, an officer in one of five types of places described.
27 At all material times “officer” was broadly defined in s 5(1), and included, amongst others, officers of the Department, a protective services officer for the purposes of the Australian Federal Police Act 1979 (Cth), persons authorised in writing by the Minister to be an officer for the purposes of the Act, and members of the Australian Federal Police or of the police force of a State or Territory. It was not in contest that the appellant was held by or on behalf of an “officer”.
28 Subparagraph (b)(i) of the definition of “immigration detention” provided that immigration detention includes being held by or on behalf of an officer “in a detention centre established under this Act”. It is not in dispute that subpara (b)(i) referred to “detention centres” established and maintained pursuant to the Minister’s express power under s 273(1) of the Act to “cause detention centres to be established and maintained”. At all material times s 273(4) provided that “detention centre” means “a centre for the detention of persons whose detention is authorised under this Act”.
29 The only authority the Commonwealth had to detain the appellant while he was in Australia was the power under the Act to detain an “unlawful non-citizen” in “immigration detention”. Because the appellant was an “unlawful non-citizen”, under ss 189 and 196 of the Act, an “officer” (as defined) had a duty to detain him in immigration detention, and had he not been detained in the Hotels, an officer had a duty to detain him at some other place constituting “immigration detention”. The Commonwealth did not contend before the primary judge that it would have been lawful for it to detain the appellant in a place that did not fall within the definition of “immigration detention”.
30 The Minister had the authority under s 273 of the Act to establish and maintain a “detention centre”. The Minister accepted before the primary judge that neither of the Hotels was, in fact, established or maintained under that provision or under subpara (b)(i) of the definition of “immigration detention”.
31 There was no substantive provision in the Act which expressly empowered the Minister to approve “another place” in writing as a place of immigration detention. The Hotels were not:
(a) a prison or remand centre of the Commonwealth, a State or a Territory (and therefore did not fall within subpara (b)(ii) of the definition of “immigration detention”);
(b) a police station or watch house (and therefore did not fall within subpara (b)(iii)); or
(c) a vessel (and therefore did not fall within subpara (b)(iv)).
32 The appellant could only have been in “immigration detention” during the relevant period if the Mantra Bell City Hotel and/or the Park Hotel were “another place approved by the Minister in writing” under subpara (b)(v) of the definition in s 5(1) of the Act.
33 The essence of the submissions made by the appellant before the primary judge was that neither subpara (b)(v) of the definition of “immigration detention” in the Act nor any other provision of the Act, conferred a power on the Minister to approve “another place”, in writing, as a place of “immigration detention”.
34 Before the primary judge, the Commonwealth accepted that there was no substantive provision in the Act which expressly empowered the Minister to approve the Hotels as places of immigration detention. The Commonwealth contended before the primary judge that subpara (b)(v) of the definition of “immigration detention” impliedly conferred power on the Minister to do so.
THE CONSTRUCTION GROUNDS
35 Grounds 1 and 2 of the notice of appeal addressed the primary judge’s findings on the arguments concerning the construction of the definition of “immigration detention” and the Minister’s power to approve another place of immigration detention.
Ground 1: the definition of “immigration detention” did not confer a power to approve other places of detention
36 The appellant submits that neither subpara (b)(v) of the definition of “immigration detention”, nor any other provision in the Act conferred the power on the Minister to approve “another place”, in writing, as a place of “immigration detention”. Before the primary judge, the Commonwealth accepted that there was no substantive provision in the Act which expressly empowered the Minister to approve the Hotels as places of immigration detention but contended that subpara (b)(v) of the definition of “immigration detention” impliedly conferred power upon the Minister to do so. That principal submission was maintained on appeal.
37 Before the primary judge, the appellant submitted that there is a principle of statutory interpretation that statutory definitions are not a source of substantive power; instead, they operate as an aid to the construction of the statute: Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; HCA 74 (Gibb) at 635 (Barwick CJ, McTiernan and Taylor JJ). The primary judge noted this submission (J at [79]) and described the proposition as uncontentious.
38 The appellant relies upon two well-established principles of statutory construction to first submit that “[it] is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is the wrong thing to do”: Thompson v Goold & Company [1910] AC 409 at 420. Second, the appellant submits that definitions are aids to construction, and do not operate in any other way, absent “clear contrary legislative intent”, citing Gibb at 635 and Morton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437; HCA 7 (Mekpine) at [62] (French CJ, Kiefel, Bell and Nettle JJ).
39 The appellant submits that a conclusion that subpara (b)(v) of the definition of “immigration detention” impliedly conferred the power to approve APODs is improbable as it involves reading substantive words into the Act, and into a definition. The appellant submits that such an approach ignores the express language in the definition and ignores the principles of statutory construction referred to above.
40 The appellant submits that implication of a conferred power is even more improbable given that such implication to approve a de-facto detention centre would be located in a definition that already includes reference to an express power of the executive to bring about the same thing, namely, a detention centre.
41 The appellant submits that against the background of a very technical statute where the exercise of powers and their permissible review is highly prescribed, and against extensive use of definitions, subpara (b)(v) would be the only occasion in s 5(1) of the Act where a power is to be implied. The appellant submits that this is a highly improbable result which indicates that such a construction as urged by the Commonwealth should be rejected.
42 The appellant submits that, properly construed, subpara (b)(v) of the definition of “immigration detention”:
(1) acted upon the fact of the Minister creating a “writing” which did not require a power; or
(2) was a vestigial provision, having regard to the legislative history. It assumed the continued existence of a power elsewhere in the Act when none then existed.
43 The appellant submits that the reasoning of the primary judge at J [107]–[160] and the primary judge’s analysis of the authorities referred to do not provide a proper foundation for the primary judge to conclude at J [160] that subpara (b)(v) of the definition of “immigration detention” is to be construed as impliedly conferring power on the Minister to approve “another place” in writing as a place of “immigration detention”. As we understood the appellant’s argument, he contends that there is no authority for the proposition that a power to do something may be implied, in a case where Parliament expressly provided for such a power elsewhere in the Act and in this case in s 273.
Consideration
44 For the reasons that follow, subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Act impliedly conferred power on the Minister to approve in writing “another place” of immigration detention.
45 The primary judge correctly observed that, while “far from determinative”, it was noteworthy that there have been numerous decisions of this Court which refer to a “power” in subpara (b)(v) of the definition of “immigration detention”. By way of example, Besanko J in SBEG v Secretary, Department of Immigration and Citizenship (No 2) (2012) 292 ALR 29; FCA 569 referred to “the power in paragraph (b)(v)” and described it as a power involving “a form of immigration detention”. On appeal, the Full Court (Keane CJ, Lander and Siopis JJ) in SBEG v Commonwealth of Australia (2012) 208 FCR 235; FCAFC 189 (SBEG FC):
(a) at [38], noted the parties’ submissions as to “the power under subpara (b)(v)” to transfer the applicant to the form of detention sought by the appellant;
(b) at [42], noted the primary judge’s conclusion that the “powers implicit in that definition” referring to s 5(1) of the Act; and
(c) at [62], noted the appellant’s argument that the primary judge (Besanko J) erred in holding that “the nature of the power contained in s 5(1)(b)(v) of the Act” and the considerations relevant to its exercise were such that the Commonwealth did not breach its duty of care to the appellant.
46 The Full Court in SBEG FC did not reject as erroneous Besanko J’s conclusion that there was power implicit in subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Act.
47 The primary judge (J at [108]) identified further decisions of this Court which are consistent with treating subpara (b)(v) as a source of substantive power: B v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 699 at [45]–[46] (Lander J); Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; HCA 53 at [13] (French CJ); AZC20 v Minister for Home Affairs [2021] FCA 1234 at [140] (Rangiah J); and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 (2022) 290 FCR 149; FCAFC 52 at [87] (Jagot, Mortimer and Abraham JJ).
48 Whilst it may be accepted that, generally, definition sections are construed as having no substantive effect, that is merely a principle of good drafting, not a substantive principle of law: Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723 at 731. In that case, Clarke and Handley JJA referred (at 731) to Jordan CJ’s observation in Helme v Fox (1948) 49 SR (NSW) 60 (at 62) that the difficulty in that case was caused by a failure to “observe the valuable rule never to enact under the guise of definition” and continued as follows, recognising that definition provisions can constitute a source of power:
Section 597 [of the Corporations Law] is “a “good” example of enactment in the guise of definition and the difficulties in the present case result from the failure to observe this guide to good drafting. However, as Minister for Immigration and Ethnic Affairs v Mayer demonstrates, if there is no other available source of power it can and must be found in the definition provision itself.
49 In Mekpine (at [61]–[62]), French CJ, Kiefel, Bell and Nettle JJ noted what was said in Gibb concerning the role of definitional provisions, but clarified and confirmed that the “general principle” — according to which statutory definitions are aids to construction and do not operate in any other way — may be modified where there is “a clear, contrary, legislative intent”. The High Court’s statement in Gibb concerning the general function of definitional provisions, referred to above, is to be read in light of what the High Court said in Mekpine.
50 Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; HCA 70 (Mayer) concerned s 6A of the Act, a substantive provision stipulating that an entry permit was not to be granted to a non-citizen after entry into Australia unless stipulated conditions were fulfilled, one of which was that the non-citizen held an entry permit and the Minister had determined, by an instrument in writing, that the person had the status of refugee. The plurality (Mason, Deane and Dawson JJ) concluded that the Act impliedly conferred on the Minister the function of determining whether an applicant under s 6A had the status of refugee, and that the decision was therefore one made “under an enactment” so as to enliven the entitlement to reasons under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
51 In reaching that conclusion, the plurality in Mayer recognised (at 301–302) that where a provision assumes the existence of a power that cannot be located elsewhere in the statute, a court may construe that provision as impliedly conferring upon the Minister the statutory power or authority to do the act or thing the subject of the substantive provision. Of course s 6A of the Act, which was the subject of the plurality’s observations, was a substantive, and not definitional, provision.
52 A court, in construing a statutory provision, must have regard to the statutory text, its context, which may include the legislative history and extrinsic materials, and the purpose of the provision in the statute. A court, in construing a statutory provision, must strive to give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; HCA 28 at [69]–[71] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; HCA 41 at [47] (Hayne, Heydon, Crennan, and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; HCA 55 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). While these principles are well known, we draw attention to them as the appellant’s argument would — unless his contention concerning “a writing” be accepted — render subpara (b)(v) otiose.
53 The principle that a court, in construing a statutory provision, must strive to give meaning to every word of the provision applies to definition sections as well as substantive provisions. In this case, the words in subpara (b)(v) “in another place approved by the Minister in writing” must be given meaning. The plain text of those words impliedly confers power on the Minister to approve “another place” in writing as a place of immigration detention. If that was not the case, then those words in subpara (b)(v) would be rendered otiose.
54 The statutory context also supports construing subpara (b)(v) as impliedly conferring an approval power on the Minister. An approval under subpara (b)(v) only has statutory consequences under the Act. There is no other provision conferring an express power, and subpara (b)(v) would be without effective content unless it is construed as an implied power of the Minister.
55 The appellant’s argument was that subpara (b)(v) was not (on his preferred construction) otiose as it fixed upon the existence of “a writing”; in other words, subpara (b)(v) would apply to constitute a place of “immigration detention” if the objective fact was that the Minister had written somewhere that that was the position. This was the argument that the Minister ran in Mayer, but which was rejected. In Mayer, the Minister argued that s 6A of the Act did not confer a statutory authority on the Minister to, by instrument in writing, determine that a person has the status of a refugee, but that that aspect of s 6A was to be read as referring to “an objective fact that there happened to be such a general determination” (Mayer at 301). If accepted, the Minister’s argument would have meant that the determination of refugee status was not a decision made “under an enactment”.
56 In rejecting the Minister’s argument, the plurality in Mayer detailed the consequences of the Minister’s construction of s 6A, observing that it involved a number of unlikely propositions and implications including: the proposition that Parliament intended to leave the function of determining refugee status “without any statutory basis whatsoever” notwithstanding the role of such a determination under s 6A; the implication that the Minister would not be under any statutory obligation even to consider whether a refugee determination should be made; the implication that the effectiveness of the determination would depend on whether it “happened to comply” with the statutory requirement that it be a determination “by instrument in writing”; and that the provision concerning refugee status could be deprived of any effective content by a mere administrative decision discontinuing current administrative arrangements or allocating the function of determining refugee status to someone other than the Minister.
57 Against this series of unlikely implications and propositions, the plurality reasoned (at 301–302) that:
It would seem more likely that it was the intention of Parliament that the provision of s. 6A(1)(c) attaching statutory consequences to a determination by the Minister that the holder of a temporary entry permit has the “status of refugee” within the meaning of the Convention or Protocol be construed as impliedly conferring upon the Minister statutory authority to make that determination.
58 Likewise, in this case, we consider it most unlikely that Parliament intended that the approval of a place as “immigration detention”, with the consequence that non-citizens who are liable to be detained can be deprived of their liberty by being held in that place, occur outside the statute and be left to depend on the vagaries of the existence of pieces of paper (or digital records) written by the Minister. It is obvious that significant consequences may arise from a decision made by the Minister under subpara (b)(v). By granting such an approval, the Minister can decide where (and thereby in what circumstances) a person can be mandatorily detained. We consider it more likely that Parliament intended that the Minister’s power to approve another place be a power conferred by statute.
59 It is also relevant that subpara (b)(v) is not an outlier in the scheme of the Act. There are other provisions in the Act which referred to an approval or authorisation by the Minister or Department Secretary, without conferring an express power to give that approval or authorisation. By way of example, from the definition provision in s 5(1) of the Act, “identity document” for a crew member of a vessel was defined in subpara (b) of the definition in s 5(1) to mean “a document of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member” (emphasis added). This falls outside the express power for the Minister in s 495 of the Act to approve forms. A further example is “authorised officer” which was defined in s 5(1) of the Act to mean “an officer authorised by the Minister, Secretary, or Australian Border Force Commissioner” for the purposes of a provision (emphasis added). This is separate from the express power to the Minister to authorise a person as an “officer” (s 5(1A)).
60 In Mekpine (at [61]–[62]), the High Court explained that the general principle that statutory definitions are aids to construction and do not operate in any other way may be modified where there is “a clear contrary legislative intent”. In this case, the clear intention of the Parliament is apparent in the definition in s 5(1) itself and the words of subpara (b)(v) “in another place approved by the Minister in writing”. If there was no legislative intent to confer a power on the Minister, then there would be no reason for the legislature to have included these words in the definition. As already stated, we have rejected the appellant’s argument concerning the legislation fixing on the objective fact of “a writing”.
61 Also relevant to the statutory context is subpara (b)(i) which concerned “a detention centre established under this Act”. The addition of subpara (b)(v) indicates an intention of the legislature that the Minister be empowered to approve places of detention other than “detention centres”. This provides a secure foundation for concluding that there was a clear legislative intent under subpara (b)(v) to confer a power upon the Minister to approve “another place” of immigration detention.
62 We detect no error in the reasoning nor the conclusion which the primary judge reached that subpara (b)(v) of the definition of “immigration detention” is to be construed as impliedly conferring power on the Minister to approve “another place” in writing as a place of immigration detention. The appellant’s alternative submission that, having regard to the legislative history, subpara (b)(v) of the definition was “vestigial” because there was no corresponding, substantive power to which it attaches must also be rejected. The primary judge was correct to find that the legislative history does not support an argument that subpara (b)(v) should not be construed as impliedly conferring power (J at [151]). It follows that ground 1 must be rejected.
Ground 2(a): subpara (b)(v) of the definition of “immigration detention” could not be used to create de-facto detention centres
63 The primary judge held that the Hotels were de-facto detention centres (J at [193]). The appellant before the primary judge argued that where s 273 of the Act referred to a specific power to establish detention centres, a general definition provision, such as subpara (b)(v) could not be used to the same end. The appellant submits that this reflected the principle in Anthony Hordern (at 7).
64 The appellant submits that on this construction, subpara (b)(v) could still be used to set up places that were not de-facto detention centres such as rooms in a hospital, or a private residence, or specific rooms in a hotel, for example to hold the detainee overnight pending removal the next day. The appellant submits that such a construction would also not preclude the Commonwealth from establishing a detention centre by making use of an existing hotel as s 273 of the Act gives the Commonwealth the power to do so.
65 The appellant submits that when Parliament creates a specific power subject to limitation, it is unlikely to have set up a general power, enabling avoidance of the specific power. In the present case, the appellant submits that the limitation arises out of s 273(2) of the Act, which enabled the making of regulations about the “operation and regulation” of detention centres.
66 The appellant submits that reading subpara (b)(v) as authorising de-facto detention centres deprives s 273(2) of the Act of any meaningful work.
67 The appellant contends that the primary judge, having concluded that subpara (b)(v) of the definition of “immigration detention” impliedly conferred power upon the Minister to approve “another place” of immigration detention, erred in holding that the implied power authorised the approval in writing of “another place” that was a de-facto detention centre. The appellant before the primary judge argued that if the Court found that subpara (b)(v) of the definition of “immigration detention” was a source of power, then the primary judge should go on to find that that power could not be used to create a de-facto detention centre. The appellant argued that if a detention centre is to be established, the legislature intended that s 273 be used to do it. These arguments were rejected by the primary judge (J at [191], [193] and [219]).
Consideration
68 Section 273 of the Act provided:
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.
69 Subparagraph (b)(i) of the definition of “immigration detention” provided that it includes “being held by, or on behalf of, an officer … in a detention centre established under this Act”. A “detention centre” is one of the five types of places identified in subpara (b) of the definition, which was in summary:
(i) a detention centre established under the Act; or
(ii) a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) a police station or watchhouse; or
(iv) a vessel (for the purposes of s 249 of the Act); or
(v) in another place approved by the Minister in writing.
70 It was not in dispute before the primary judge that the Commonwealth established and maintained the Hotels as places of immigration detention by exercise of the asserted power under subpara (b)(v) of the definition of “immigration detention” and not by the exercise of the power under s 273 of the Act.
71 It is useful to recall what Gavan Duffy CJ and Dixon J actually said in Anthony Hordern. Their Honours explained (at 7) that:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
72 Section 273(1) of the Act expressly empowered the Minister, on behalf of the Commonwealth, to cause detention centres to be “established and maintained”. Any “detention centres” established under s 273(1) would be subject to any regulations made under ss 273(2) and (3) concerning their “operation and regulation”. There is nothing in the text of s 273(1) which contained any restriction or limitation on the power of the Minister to establish and maintain a detention centre, nor in the text of subpara (b)(i) of the definition of “immigration detention”, which described the mode in which that power shall be exercised, or contained any conditions or restrictions on the manner in which that power may be exercised. The power to cause detention centres to be “established and maintained” is not to be conflated with the provision of a facility for regulations to be made governing the “operation and regulation” of detention centres, once created.
73 Section 273(1) was framed in general terms with no relevant limit on when or how the Minister may establish or maintain the detention centres. Accordingly, it lacks the limitations necessary for the principle in Anthony Hordern to operate so as to construe s 273 as impliedly limiting the Minister’s power to approve “another place” of immigration detention under subpara (b)(v) of the definition of “immigration detention”. The point is not that the regulation-making power was not in fact exercised, but that, as the primary judge recognised (J at [182]) the regulation-making power does not prescribe the mode in which the power is to be exercised, or contain any conditions or restrictions that must be observed, based on which the Anthony Hordern principle may be attracted.
74 As Gummow and Hayne JJ explained in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; HCA 50 (Nystrom) at [59]:
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
(Emphasis added. Footnotes omitted.)
75 In Nystrom, Heydon and Crennan JJ held (at [165]) that the principle in Anthony Hordern had no application for reasons including that “there is no repugnancy between the two powers. In fact, they are consonant with each other”. That is the position in the present case. The specific power in s 273(1), read with s 273(2), does not by virtue of the principle in Anthony Hordern impose any limitation or restriction on the more general power contained in subpara (b)(v) of the definition of “immigration detention”. The two powers are distinct and cumulative even if their factual operation may overlap on occasions. As a consequence, there is no repugnancy between the two powers, and they are consonant with each other, and the affirmative words conferring power under s 273(1) do not exert a negative force constraining the power implied under subpara (b)(v) of the definition of “immigration detention”: Nystrom at [54] and [165]. While the respondent’s case in Nystrom did not depend only on the Anthony Hordern principle, that principle was considered in depth in Nystrom and we do not accept the appellant’s submission, before us, that Nystrom “is not a case that deals with the Anthony Hordern principle”.
76 The primary judge was correct to find that the principle in Anthony Hordern had no application to the powers in s 273(1) and subpara (b)(v) of the definition of “immigration detention”.
77 The primary judge was correct to find that subpara (b)(v) of the definition of “immigration detention” impliedly conferred power upon the Minister to approve “another place” of immigration detention that was a de-facto detention centre. It follows for the reasons given that ground 2(a) must be rejected.
Ground 2(b): section 496(1) did not empower delegation of an implied power
78 By this ground, the appellant contends that s 496(1) of the Act did not empower the delegation of an implied power and, as a result, the purported approvals at issue in this case, being made by delegates, were invalid or ineffective. This argument was not advanced before the primary judge. The appellant contends that he should be allowed to advance the point on appeal as it is a pure legal argument and there can be no prejudice to the Minister. The Minister’s only objection to the grant of leave was a lack of merit.
79 The appellant’s argument first commences with s 273(1) of the Act which recognised the Commonwealth’s capacity to establish a place for effecting administrative detention. Section 273(1) both granted to the Minister, and limited, the function of the Minister deciding “on behalf of the Commonwealth” as the Commonwealth’s agent, whether to establish and maintain detention centres.
80 The appellant submits that this function granted to the Minister to act as agent for the Commonwealth is also a feature of s 272 but was otherwise unique in the Act which vested many powers in the Minister, or expressly, in a delegate of the Minister. The appellant submits that s 273(1), because of its nature to establish and maintain detention centres, was not a function that the Minister could delegate pursuant to s 496(1) or any other provision of the Act. He submits that, if that be so, it follows that any power under subpara (b)(v) likewise could not be delegated.
81 Second, the appellant submits that having regard to the manner in which the Act carefully allocated the many express statutory powers between the Minister, the Secretary, and their delegates, no delegation by the Minister was permissible, save for what Parliament intended to be within the scope of s 496(1) of the Act. The appellant further submits that it would be contrary to principles of statutory construction to imply a power to delegate.
82 Third, the appellant submits that there is no authority in support of the proposition that a power implied by a court to fill a “void” in a statutory regime can be delegated. As best we understood the appellant’s argument, this is for two reasons. First, the appellant submits there will never be a material “void” in a scheme as expressly enacted by the Parliament if at least one individual or body may exercise the power. Second, the appellant contends that the natural meaning of “under the Act” when used in an express power of delegation is against an extension to something “implied into the Act”. The appellant submits that even if the general proposition (that there cannot be an implication that an implied power is delegable) is not accepted for every statute, it would be accepted for the Act, where Parliament has repeatedly exercised great precision in identifying which powers are and are not delegable.
Consideration
83 By s 496(1) of the Act, the Minister “may, by a writing signed by him or her, delegate to a person any of the Minister’s powers under this Act”. The text of s 496(1) was clear in its terms. It imposed no limitation on the powers which the Minister may delegate under the Act. The Minister’s powers may be express or they may be implied. There is no warrant to read in a limitation to the text of s 496(1) so as to limit delegations to express powers and not implied powers. The text of s 496(1) did not distinguish between express and implied powers and in construing the subparagraph there is no reason to do so. We reject the appellant’s submission that it is contrary to construction principles in relation to delegation to imply a power to delegate: Northern Land Council v Quall (2020) 271 CLR 394; HCA 33 (Quall) at [77]–[78] and [81] (Nettle and Edelman JJ). This is not a matter of implying a power to delegate but of determining the scope of the powers referred to in s 496(1) of the Act. For this reason, the discussion in Quall is irrelevant.
84 The reference to “powers under this Act” in s 496(1) was general in its terms. It evinces an intention, on the part of Parliament, to ensure that, where the Minister has a power under the Act, the Minister can delegate the power and is not required to exercise each power personally. By its terms, s 496(1) was not confined to express powers. In our view, it would be inimical to the evident intention of Parliament to construe s 496(1) as so limited, such that it excludes implied powers. Here the statutory context indicates that “under” is looking to the source of the Minister’s powers. Section 496(1) authorised delegating powers that derive their source from the Act, rather than powers that derive their source from another statute. For the reasons explained, in considering ground 1 above, the implied power to approve “another place” of detention derives from the Act, and therefore any approval is made “under” the Act: Mayer at 303.
85 For the reasons given, ground 2(b) lacks sufficient prospects to warrant leave being granted to introduce a new argument on appeal. Even if leave were to be granted, we would in any event reject ground 2(b).
THE EXPENDITURE GROUNDS
86 Grounds 3 and 4 of the notice of appeal concerned the primary judge’s reasons on the arguments relating to the lawfulness of the Commonwealth’s expenditure.
87 As the respondent submits, it only needs to prevail on one of the three points: that detention was not unlawful even if the expenditure was not authorised, that the expenditure was authorised by s 61 of the Constitution, or that the expenditure was authorised by items 417.017 or 417.018 of Sch 1AAA of the Financial Framework (Supplementary Powers) Regulations 1997 (Cth).
88 For the reasons we go on to set out in more detail, in our view the primary judge did not err in concluding that the detention was (subject to the outcome of the other grounds of appeal) authorised even if the expenditure involved in detaining the appellant was not lawfully authorised. It is therefore not necessary to address whether the expenditure was authorised by s 61 of the Constitution, or the regulations.
Ground 3: it is a condition of the lawfulness of executive action that money required be lawfully appropriated
89 The primary judge’s reasoning commenced by identifying, as was not in dispute, that a person may only be lawfully detained in immigration detention for one of three purposes: removal from Australia, receiving, investigating and determining an application for a visa that would permit the alien to enter and remain in Australia, and determining whether to permit a valid application for a visa (J at [222], citing Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; HCA 34 at [26] (French CJ, Hayne, Crennan, Kiefel and Keane JJ)).
90 His Honour then recorded the appellant’s submission as follows (J at [223]):
The applicant submits that, not only must detention in immigration detention be for one of those purposes, it must also be detention which is effected lawfully in terms of the contracting and expenditure to carry it into effect.
91 The primary judge then set out passages from Gageler J’s judgment in Smethurst v Commissioner of Police (2020) 272 CLR 177; HCA 14 (Smethurst), which were relied on by the appellant. In those passages (which we return to below), Gageler J referred to the seminal judgment of Lord Camden in Entick v Carrington (1765) 19 St Tr 1029 (Entick), which his Honour described (at [124]) as having “cemented the position at common law that the holder of a public office cannot invade private property for the purpose of investigating criminal activity without the authority of positive law”. The passages from Smethurst quoted by the primary judge also included Gageler J’s statement (at [127]):
More importantly, in an age in which invasions of common law rights can result in more than just common law remedies, talk of those principles must be backed up by a preparedness on the part of all courts “within the limits of their jurisdiction and consistent with their obligation to act judicially … [to] provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise”.
92 The primary judge also referred (J at [226]) to the appellant’s reliance on Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; HCA 64 (Lim) and, in particular, the following passage from the judgment of Brennan, Deane and Dawson JJ (with whom Mason CJ agreed) (at 19):
Since the common law knows neither letter de cachet nor other executive warrant authorising arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorise or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision.
93 The primary judge then observed that Smethurst and Lim did not assist the appellant’s arguments (J at [227]). His Honour noted, as was common ground, that the authority necessary in order for an “officer” lawfully to detain an unlawful non-citizen was found in ss 189 and 196 of the Act and that it would have been unlawful for an “officer” to detain the appellant somewhere other than in immigration detention (J at [228]–[229], citing New South Wales v TD (2013) 83 NSWLR 566 (TD) at [48] and [54] per Basten JA, with whom Bathurst CJ and Hoeben JA agreed).
94 The appellant argued below, and on appeal, that in order for detention to be lawful, it must (in addition to satisfying other criteria) be detention that is effected lawfully in terms of the contracting and expenditure to carry the detention into effect (J at [223]). The primary judge rejected this argument, concluding that the lawfulness of the appellant’s detention “does not depend on whether the Commonwealth’s contracting and expenditure in relation to the Hotels was lawfully authorised” (J at [230]). Restating his conclusion, the primary judge said (J at [238]) “even if the Commonwealth’s contracting and expenditure on the Hotels was not lawfully authorised that does not show that the applicant’s detention in the Hotels was unlawful”.
95 Noting his conclusion that subpara (b)(v) did impliedly confer power on the Minister to approve the Hotels as “another place” of immigration detention, and that the Minister had, by his delegates so approved the Hotels, the primary judge concluded that the lawfulness of the appellant’s detention in the Hotels did not depend on whether the Commonwealth’s contracting and expenditure in relation to the Hotels was lawfully authorised (J at [229]–[230]). The primary judge said (J at [230]):
The applicant was at all material times an unlawful non-citizen within Australia, and pursuant to ss 189 and 196 of the Act, an officer was under a duty to take him into immigration detention and keep him there until one of the events identified in s 196(1) had occurred. No such event had occurred up to 21 January 2021, when the applicant was granted a bridging visa and released from detention in the Hotels. Immigration detention under the Act includes being held by or on behalf of an officer at a place approved by the Minister in writing under subpara (b)(v) of the definition of “immigration detention”. The Hotels were so approved and the applicant’s detention was therefore lawful, whether or not the expenditure to establish and maintain them was lawfully authorised.
96 The primary judge then explained why the decision in Behrooz v Secretary, Department of Immigration (2004) 219 CLR 486; HCA 36 (Behrooz) provided some support for that view, while noting that the support was limited because the case was decided in a different context (J at [231]). As we detail below, in Behrooz, the High Court rejected an argument that the conditions of detention rendered the detention itself unlawful (as distinct from sounding in other remedies).
97 The principal elements of the appellant’s argument were as follows. First, he relies on the High Court’s decisions in Williams v Commonwealth (2012) 248 CLR 156; HCA 23 (Williams (No 1)) and Williams v Commonwealth (No 2) (2014) 252 CLR 416; HCA 23 (Williams (No 2)) in support of the proposition that many, but not all, instances of executive spending and contracting require legislative authorisation.
98 Secondly, he relies on Smethurst, Lim and NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; HCA 37 (NZYQ) in support of his proposition that there is a limit on the lawfulness of detention, in that the way that the Commonwealth effects that detention — by contracting and spending — must itself be lawful. NZYQ was decided after the primary judge delivered judgment, but the appellant relied on Smethurst and Lim before the primary judge. The appellant accepts that none of those cases is directly on point, but contends they show that there is a link between a public wrong and a remedy in tort.
99 Thirdly, he relies on TD which the primary judge accepted (J at [74]) stood as authority for the proposition that, where detention of a person in one place is authorised, detention of the person in another place which is unauthorised may nevertheless be unlawful, even if the person is not otherwise entitled to be at liberty.
100 Drawing the second and third matters together, the appellant submits that:
These principles—excess of a public power leads to a meaningful remedy; power to detain somewhere does not entail power to detain everywhere—support recognising a principle that, if effecting (via contract and expenditure) detention in a place is unlawful, then the detention is unlawful.
101 In oral submissions, senior counsel for the appellant put the argument in the following terms (correcting errors in the transcript):
First of all, the position that section 189 and 196 [authorise] detention, come what may, is now clearly diminished in light of the High Court’s decision in NZYQ. Second, once you accept, and the Commonwealth does. Once you accept that if you are detained in the wrong place, that you are unlawfully detained, which is different from conditions of detention being too harsh, once you accept that, it is really not a step – a big step or a step at all to say that once you are detained at a place where the Commonwealth has no authority set up because it had no authority to pay the money for it, then you’re not lawfully detained.
You just could not be detained at that place. That, in our respectful submissions, makes perfect sense, particularly when one considers that, here, we are dealing with administrative detention by the executive, constrained by the principles in ..... and Lim and now NZYQ. You just need to lawfully expend the money so the place is lawful.
102 For its part, the respondent submits that the lawfulness of the appellant’s detention does not turn on whether expenditure of funds on the Hotels was authorised. The principal elements of the respondent’s submissions were as follows.
103 First, it accepts that there must be a clear legal authority to detain a person. Secondly, it submits that Smethurst and NZYQ are not at odds with its submission; rather, what they point to is the need to identify the precise source of the power to detain. Here, the power (and duty) to detain was conferred by s 189(1) of the Act, which obliged an “officer” to “detain” an “unlawful non-citizen” in the migration zone and keep that person in detention until one of the events in s 196(1) occurred.
104 Thirdly, the necessary conditions for detention of the appellant were satisfied, and the lawfulness of expenditure under the contracts by which the Hotels were operated is not a precondition to the statutory authority to detain, and the lawfulness of the detention. The law is not without any response to unlawful expenditure, but the response lies in the recovery of money unlawfully spent; it does not render detention invalid.
105 Finally, the respondent submits that, as the primary judge held, Behrooz provides some limited support to its argument as the High Court there held that the conditions of detention may be wrongful — in the sense of amounting to a tort — without that rendering the detention invalid. The appellant contends that Behrooz is to be distinguished on the basis that “it decided that, where there is authority to detain in a particular place, the way in which detention occurs does not make it unlawful; the present case is not about the way in which detention occurred, it is about the effecting of the detention itself being unlawful” (emphasis in original).
Consideration
106 Section 189(1) obliged an “officer” to “detain” a person if the officer “knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen”. Section 196(1) provided that “an unlawful non-citizen detained under section 189 must be kept in immigration detention until” one of the events in s 196(1)(a)–(c) occurs.
107 The term “detain” was defined by 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.
108 The term “immigration detention” was defined by s 5(1) and is set out at paragraph 25 of these reasons.
109 By these statutory provisions, the Act authorised, and mandated, the detention of unlawful non-citizens. The legality of the detention relevantly depends on:
(a) matters specific to the individual, viz whether the person was an “unlawful non-citizen” and was “in the migration zone”; and
(b) matters concerning the place and manner in which the person was held, viz whether the individual was either:
(i) “in the company of, and restrained by” a person mentioned in subparas (i) or (ii) of subpara (a) of the definition of “immigration detention”; or
(ii) “being held by, or on behalf of, an officer” in a location mentioned in subparas (i) to (v) of subpara (b) of the definition of “immigration detention”.
110 Nowhere in the relevant provision is there any basis to suggest that the legality of an individual’s detention depends on whether the expenditure involved in establishing or running “another place approved by the Minister in writing” is authorised. Nor is there any basis to imply such a requirement.
111 What, then, does the appellant submit constitutes the basis for such a constraint? The answer is difficult to discern. The submissions advanced by the appellant appear to source the constraint in a combination of a recognition that lawful detention has constraints that are not set out in the Act itself (the appellant here relied on NZYQ and Lim) and recognition (as supported by TD) that detention in a place that is not authorised is not lawful even if the person is otherwise not entitled to his or her liberty.
112 Neither of these foundations supports the conclusion urged on the Court by the appellant.
113 First, NZYQ and Lim both concerned constitutional limits on the legislative power of the Commonwealth. Lim was concerned with whether particular provisions were within the legislative power of the Commonwealth pursuant to s 51(xix) of the Constitution, and whether certain provisions were unconstitutional as an impermissible intrusion into the judicial power vested by Ch III of the Constitution in specified courts. NZYQ was concerned with whether detention provisions were, in the circumstances before the High Court, unconstitutional when not serving a legitimate and non-punitive purpose. Neither case provides any support for the imposition of a free-ranging, non-constitutional, non-statutory constraint rendering detention that is otherwise authorised by the Act unlawful by virtue of some deficiency in the authorisation of associated expenditure. We record, for completeness, that the appellant did not contend that his detention was subject to any constitutional constraint that was engaged if the expenditure was unlawful.
114 Secondly, the principle confirmed in TD — lawful authority for detention in one place or of a particular kind does not authorise detention in another place, or of another kind — also does not support the appellant’s case. The appellant in TD was transferred to a prison hospital, which had not been gazetted as a hospital. She argued, successfully, that the detention in the prison hospital was unlawful and was awarded damages for false imprisonment.
115 In the passage of oral submissions set out above, counsel for the appellant sought to characterise detention in a hotel in respect of which expenditure had not been authorised as detention at a place that was not authorised. That argument finds no foothold in TD and is contrary to the terms of the Act. Whether or not each Hotel was a place of “immigration detention” depended on whether each Hotel was, within the terms of subpara (b)(v), “another place approved by the Minister in writing”. Any lack of authorisation to spend money to ensure the functioning of such a place — should there be such a lack — does not rob either Hotel of the property that made it a place of “immigration detention”, namely authorisation by the Minister in writing.
116 As noted above, the appellant relies on Smethurst in support of his argument. In Smethurst, the Australian Federal Police conducted a search of a journalist’s home, relying on a search warrant that was found to have been invalid as it did not comply with the applicable legislative requirements. The High Court decided, by majority (Kiefel CJ, Bell, Keane and Nettle JJ), that the Court should not grant an injunction to compel delivery up, or destruction, of the material seized, or to restrain the Commissioner of the Australian Federal Police from providing the information to prosecuting authorities. The majority declined injunctive relief, including on the basis that discretionary considerations (principally that criminal conduct may be disclosed) tended against the exercise of equity’s auxiliary jurisdiction to grant an injunction.
117 The passages in Smethurst that were relied on by the appellant are from the judgment of Gageler J, who was in dissent. Even putting that to one side, his Honour’s exhortation that “talk” of the principles of constitutional liberty and security carried forward from Entick, should be “backed up” by a preparedness on the part of courts to use the remedies available to ensure that those possessed of powers observe their limits, draws attention to the availability of identified remedies and their juridical bases. In Smethurst, Gageler J went on (at [128]–[130]) to consider wherein the juridical basis for the mandatory injunction sought by the journalist lay. His Honour identified (at [130]) that (footnote omitted):
The juridical basis for the final mandatory injunction sought by Ms Smethurst lies in its issue within the discretion of the Court being constitutionally appropriate to restore Ms Smethurst to the position she would have been in had her common law rights to control access to her real and personal property not been invaded by the tortious conduct of the AFP in circumstances in which money alone cannot restore her to that position.
118 Whereas the journalist’s common law rights were invaded by a search conducted pursuant to an invalid warrant, the appellant had no common law right to the proper expenditure of funds in relation to Hotel detention. His common law rights lay in not being deprived of his liberty other than pursuant to a valid law of the Commonwealth being applied in accordance with its terms.
119 Further, a fuller reading of Smethurst exposes that the case rested on a divergence in views as to the exercise of discretion. The observations of Gageler J urged a robust exercise of discretion, to undo what would otherwise be the consequences of an invasion of common law rights. It is not apparent to us how these observations assist the appellant in urging that the appellant’s detention was unlawful due to a lack of authorisation to expend funds on the Hotels (assuming, for present purposes, that there was a lack of authorisation).
120 As is apparent from the course of his Honour’s reasoning, the primary judge’s determination of this issue against the appellant did not depend on Behrooz. Rather, having already stated his conclusion (J at [230]), the primary judge went on to consider Behrooz and to draw from that case some limited support for the conclusion he had already reached. In our view, that was not only open to the primary judge, and did not involve any error, but the decision in Behrooz does support the approach taken by the primary judge, and our analysis above.
121 The appellant submits that Behrooz can be distinguished. While that may be accepted (to the extent that Behrooz was not concerned with an asserted lack of authorisation for expenditure), we nonetheless consider that the High Court’s approach in that case reveals the flaws in the appellant’s argument. That is so because what emerges with clarity from the High Court’s judgment in Behrooz is that the proper focus, in considering the legality of detention under the Act, is the terms of the Act (absent consideration of constitutional limits of the kind recently highlighted in NZYQ, which did not arise in Behrooz and do not arise in the present appeal).
122 In Behrooz, a detainee sought to resist a charge of escaping from immigration detention by contending that the conditions were so bad as to be unlawful. In addressing an appeal concerning the setting aside of certain summonses that had been issued to witnesses, the High Court rejected the detainee’s central argument. A number of judges made the point that the conditions under which the detainee was being held did not affect whether or not he was being held in “immigration detention”, within the meaning of the Act. While the Act did not authorise the commission of a tort — and thus the commission of the tort is still unlawful — the detention was still valid as immigration detention.
123 Chief Justice Gleeson said (at [7], [10] and [21]):
Section 5 defines “detain” to mean to take, keep, or cause to be kept, in immigration detention. The word “detainee” takes its meaning from that definition. Section 5 defines “immigration detention” relevantly, to mean being held in a detention centre established under the Act. It is clear that the appellant was being held in such a detention centre. The conditions under which he was being held do not form part of the statutory concept of “immigration detention”.
...
There is a possible ambiguity in the expression “unlawful detention”. It may refer to a case where one person has no right to detain another; the person detained has a right to be free. It could also be used to refer to a case in which the detention is authorised by law, but the conditions under which the detention is taking place are in some respects contrary to law. In the second case, the detainee may be entitled to complain, and may have legal remedies, but it does not follow that he or she is entitled to an order of release from custody, much less that he or she is entitled, in an exercise of self-help, to escape.
…
Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort. But the assault, or the negligence, does not alter the nature of the detention. It remains detention for the statutory purpose identified above. The detention is not for a punitive purpose. The detainee is deprived of his or her liberty, but not as a form of punishment. And the detainee does not cease to be in immigration detention within the meaning of the Act.
124 Similarly, the plurality (McHugh, Gummow and Heydon JJ) said (at [53]) that: “While the conditions in which detention is suffered may attract remedies of the nature indicated above [common law remedies], they do not deny the legality of the immigration detention and so cannot found a defence to a charge under s 197A.”
125 Justice Hayne was also not persuaded that the conditions of detention may be such as to affect the lawfulness of the detention at the place in question. His Honour said as follows (at [174], emphasis added and footnote omitted):
If it is assumed, for the purposes of argument, that it could be shown that those kept at a place of detention were treated harshly, the lawfulness of such treatment may very well be open to challenge. The detaining authority owes duties of reasonable care to those whom it detains. To use more than such force as is reasonably necessary to keep someone in detention would constitute an assault. So the examples could be multiplied. But the place at which the person is detained would remain one of the places identified by the Act where to be held by or on behalf of an officer would mean being in “immigration detention”. And any want of valid legislative authority to commit those acts or make those omissions, which together are said to render the conditions of detention harsh or punitive, denies the lawfulness of those acts and omissions. It does not deny the lawfulness of detention at the place identified in the Act.
126 What may be observed from the way in which members of the High Court put the point is that close attention must be paid to what renders detention lawful, or unlawful, and that the identification of some element of illegality associated with detention does not, of itself, render the detention unlawful on the basis that it is no longer “immigration detention” under the Act. As we have set out above, the provisions of the Act that authorised, and mandated, detention of unlawful non-citizens in the migration zone operated according to their terms, and did not depend on associated expenditure being authorised.
127 For the foregoing reasons, we would reject ground 3.
Ground 4: Constitution s 61 does not authorise expenditure in aid of the Minister’s act as agent of the Commonwealth; express spending authority is required
128 By this ground the appellant contends that the primary judge erred in holding (J at [263]) that, where expenditure is not expressly or by necessary implication authorised by legislation, s 61 of the Constitution will authorise that expenditure where the expenditure is reasonably incidental to the execution and maintenance of a statute.
129 The appellant submits that the statement by French CJ in Williams (No 1) at [34], that doing things which are necessary or reasonably incidental to execution and maintenance of a valid law does not require express statutory authority, ought not be accepted. The appellant submits that the statement by French CJ was not adopted by any other justice in Williams (No 1) or in Williams (No 2). The appellant submits that the statement by French CJ in Williams (No 1) has only been cited in two subsequent cases, neither of which related to spending: Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; HCA 1 at [369] (Gordon J), Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214; HCA 10 at [82], [89] (Gordon J) and [269] (Jagot J).
130 The appellant submits that here the power given to the Minister was to act as the Commonwealth’s agent in deciding where a detention centre should be established. The appellant submits that it is consistent with the purpose of s 273(1) of the Act that a decision by the Minister as agent for the Commonwealth of whether a detention centre should be established can be taken if and only if the principal (the Commonwealth) has expressly appropriated money for that purpose (establishment and maintenance), thus recognising the need for a detention centre. The appellant submits that, failing this constraint on the Minister, he or she would not be acting as agent of the Commonwealth but acting as principal.
131 In light of our conclusions on ground 3, it is not necessary to decide ground 4, or the respondent’s notice of contention. The respondent stated explicitly that ground 4 need not be considered if we rejected ground 3 (which we have), and the appellant did not demur. The notice of contention is in the same position: both it and ground 4 concerned whether or not the expenditure was authorised, either by s 61 of the Constitution (ground 4) or by items 417.017 or 417.018 of Sch 1AAA of the Financial Framework (Supplementary Powers) Regulations 1997 (Cth) (raised by the notice of contention).
DISPOSITION
132 For the foregoing reasons, the appeal should be dismissed with costs. We will make orders accordingly.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, Anderson and Button. |
Associate:
Dated: 26 April 2024
