FEDERAL COURT OF AUSTRALIA
Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 1117
MIGRATION – guardianship of child – whether consent in writing of second defendant required for plaintiff to leave Australia – whether second defendant’s actions involved a breach of its duties under ss 6 or 6A of the IGOC Act – whether the IGOC Act imposes any duties on the second defendant as guardian, the breach of which is enforceable by any cause of action sounding in damages
JURISDICTION – whether deployment of Australian Protective Service Officers in Nauru authorised under the Australian Protected Service Act 1987 (Cth) – whether legislation presumed not to have extraterritorial effect – whether actions of foreign sovereign state within its own territory justiciable in Australian Court
PRACTICE AND PROCEDURE – whether preliminary questions appropriate to answer
Acts Interpretation Act 1901 (Cth) ss 15B(1)(a), 15B(2), 15B(4), 15B(4)(ii), 17
Ashmore and Cartier Islands Acceptance Act 1933 (Cth) ss 7, 8(1)
Australia Act 1986 (Cth) s 2
Australian Protective Service Act 1987 (Cth) ss 4, 6, 6(1), 6(2)(a), 13, 14, 16, 18A, 18B, 18C, 21
Customs Act 1901 (Cth) s 15
Immigration (Guardianship of Children) Act 1946 (Cth) ss 4, 4AAA(1), 4AAA(1)(b), 4AAB, 5, 6, 6A, 6A(1), 6A(3), 6A(4), 8, 12
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth) ss 5, 5(1), 5(5), 5(5)(a), 6, 6A(3), 7, 7(1), 7(2), 13, 14, 14(1), 46(1), 46A, 80, 189, 189(1), 189(2), 189(3), 189(4), 196, 198A, 198A(1), 198A(3), 198C, 198C(8)(b), 418(1),
Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth)
Immigration Act 1999 (Nauru) ss 5(2), 11(1), 11(4), 11(6)(b), 13(1)
Immigration Regulations 2000 (Nauru)
Federal Court Rules O 11 r 10, O 29 r 2, O 32
Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967
Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 251 ALR 322
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322
Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186
Arnold v Attorney-General (VIC) [1995] FCA 727
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30
Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Bennett v Minister for Community Welfare (1988) Aust Tort Reports 80-210
Bennett v Minister for Community Welfare (1992) 176 CLR 408
CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601
Commonwealth v Verwayen (1991) 170 CLR 394
Crowe v The Commonwealth (1935) 54 CLR 69
Cubillo v Commonwealth (2001) 112 FCR 455
Eremin v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 69
Evans v Bartlam [1937] AC 473
George v Rockett (1990) 170 CLR 104
Hahn v Conley (1971) 126 CLR 276
Hollis v Vabu (2001) 207 CLR 21
Hussain Ali v Commonwealth [2004] VSC 6
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309
Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563
Macleod v Attorney-General (NSW) [1891] AC 455
McCallian v Dodd [1966] NZLR 710
Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1
Morgan v White (1912) 15 CLR 1
Odhiambo v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 29
P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1029
P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1370
Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354
Peyman v Lanjani [1985] 1 Ch 457
Plaintiff P1/2003 v Ruddock (2007) 157 FCR 518
Polyukhovich v Commonwealth (1991) 172 CLR 501
Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479
Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
Ruddock v Taylor (2005) 222 CLR 612
Ruddock v Vadarlis (2001) 110 FCR 491
Ruhani v Director of Police (No 2) (2005) 222 CLR 580
Sadiqi v The Commonwealth of Australia [2008] FCA 1262
Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686
Sweedman v Transport Accident Commission (2006) 226 CLR 362
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Trevorrow v South Australia (No 5) (2007) 98 SASR 136
TVW Enterprises Ltd v Duffy, M.J. & Ors [1985] FCA 109
Underhill v Hernandez (1897) 168 US 250
WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190
Waller v Freehills (2009) 258 ALR 67
Ward v Western Australia (1995) 40 ALD 250
Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86
X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524
XYZ v Commonwealth (2006) 227 CLR 532
ALI REZA SADIQI (FORMERLY A MINOR (P1/2003) NOW OF FULL AGE AND A STUDENT) v THE COMMONWEALTH OF AUSTRALIA and PHILIP MAXWELL RUDDOCK FORMERLY THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
WAD 156 of 2003
MCKERRACHER J
1 October 2009
PERTH
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY |
|
| GENERAL DIVISION | WAD 156 of 2003 |
| ALI REZA SADIQI (FORMERLY A MINOR (P1/2003) NOW OF FULL AGE AND A STUDENT) Plaintiff
| |
| AND: | THE COMMONWEALTH OF AUSTRALIA First Defendant
PHILIP MAXWELL RUDDOCK FORMERLY THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Second Defendant
|
| JUDGE: | |
| DATE OF ORDER: | 1 October 2009 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The answers to the preliminary questions and the defendants’ amended notice of motion are as follows:
1.1 ‘no’
1.2 ‘no’
2.1 ‘no’
2.2 ‘yes’
2.3 ‘no’
3 ‘no’
4 ‘yes’
5.1 ‘yes’
5.2 ‘yes’
5.3 ‘yes’
6.1 ‘no’
6.2 ‘no’
7 ‘yes’
8 ‘no’
9 ‘no’
10 ‘yes’
11.1 ‘no’
11.2 ‘no’
12 ‘yes’
13 Inappropriate to answer
14 ‘no’ (as the question is specifically formulated)
NM-1 Inappropriate to answer
NM-2 Inappropriate to answer
NM-3 Inappropriate to answer
NM-4.1 ‘yes’
NM-4.2 Does not arise
NM-4.3 Does not arise
2. The parties do confer and file a minute of consent orders in relation to costs and the consequences flowing from the answers given to these questions, or if no agreement is reached, the parties do file and serve written submissions within 28 days from today.
3. Time for the filing and service of any notice of appeal or any application for leave to appeal will be extended until 21 days from the date of those consent orders or any further consequential orders made following receipt of written submissions or further order of the Court.
4. There be liberty to apply on three days notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
| TABLE OF CONTENTS INTRODUCTION.......................................................................................................... | [1] |
| PRINCIPLES ON WHICH PRELIMINARY QUESTIONS MIGHT BE ASKED AND ANSWERED......................................................................................................... | [7] |
| PLEADED CASE........................................................................................................... | [13] |
| AGREED FACTS AND DOCUMENTS...................................................................... | [14] |
| The Plaintiff and his Brother...................................................................................... | [15] |
| Rescue and Ashmore Reef........................................................................................ | [19] |
| Christmas Island......................................................................................................... | [27] |
| Nauru........................................................................................................................... | [33] |
| Perth............................................................................................................................ | [52] |
| AGREED PRELIMINARY QUESTIONS................................................................... | [64] |
| Ashmore Reef............................................................................................................. | [67] |
| Christmas Island......................................................................................................... | [71] |
| Christmas Island to Nauru, via Perth........................................................................ | [72] |
| Nauru........................................................................................................................... | [73] |
| Perth............................................................................................................................ | [79] |
| IGOC Act.................................................................................................................... | [80] |
| Geography................................................................................................................... | [81] |
| ANSWERS TO AGREED PRELIMINARY QUESTIONS........................................ | [85] |
| Ashmore Reef – IGOC Act........................................................................................ | [85] |
| Ashmore Reef – Migration Act................................................................................. | [106] |
| New Proposed Question – Migration Act - Detention.............................................. | [135] |
| Reasonable Suspicion............................................................................................ | [135] |
| Christmas Island – IGOC Act.................................................................................... | [144] |
| Christmas Island - Migration Act.............................................................................. | [154] |
| Christmas Island – Further Question........................................................................ | [159] |
| New Proposed Question - Migration Act – Detention.............................................. | [176] |
| Christmas Island to Nauru, via Perth – IGOC Act and Migration Act.................... | [179] |
| Nauru Declaration Challenge – Precluded?.............................................................. | [189] |
| The Relationship between s 198A of the Migration Act and the IGOC Act........... | [236] |
| New Proposed Question - Detention in Nauru.......................................................... | [246] |
| Presumption Against Extraterritorial Effect of Legislation?.................................... | [259] |
| Perth Detention – Authorised Under the Migration Act?........................................ | [278] |
| Are Breaches of duties of the IGOC Act Actionable?.............................................. | [289] |
| CONCLUSION............................................................................................................... | [304] |
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY |
|
| GENERAL DIVISION | WAD 156 of 2003 |
| BETWEEN: | ALI REZA SADIQI (FORMERLY A MINOR (P1/2003) NOW OF FULL AGE AND A STUDENT) Plaintiff
|
| AND: | THE COMMONWEALTH OF AUSTRALIA First Defendant
PHILIP MAXWELL RUDDOCK FORMERLY THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Second Defendant
|
| JUDGE: | MCKERRACHER J |
| DATE: | 1 October 2009 |
| PLACE: | PERTH |
REASONS FOR JUDGMENT
INTRODUCTION
1 The parties in this proceeding have agreed that it may be possible to save time and costs by dealing with certain matters as preliminary issues. Quite some time has been spent in and around case management conferences reaching agreement as to what those preliminary issues might be. There are some 14 preliminary questions, in some instances also some sub-questions. In addition, the defendants seek to raise four further questions including some sub-questions. The plaintiff opposes those questions being put, primarily on the basis that additional facts would have to be found before those questions could be answered. I will deal with that issue in some detail below.
2 It is many years since Australia committed to international conventions recognising the plight of refugees. It is self-evident that a humane society would provide protection for innocent victims fleeing their native country for genuine fear of persecution. The plaintiff in these proceedings was such a refugee. Further, at the time of his flight, he was a minor. Over and above recognition of international obligations for refugees generally, there is additional recognition for specific obligations concerning those refugees who are children and who escape from their native country without parents or custodians.
3 Although some who seek entry to Australia fail as they do not meet the Convention tests for refugees under the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention), the plaintiff is amongst a considerable number who qualified (he says, at all times) both as a refugee and as a child. The circumstances of this case are further complicated by the sinking of the vessel on which he and other asylum seekers were approaching Australia at or about the time the vessel was about to be intercepted by an Australian navel vessel. The plaintiff was rescued but instead of being taken to mainland Australia (at least for any substantial period of time) he was taken, against his wishes, and for a substantial period of time to supervised accommodation – on one view – detention, in another country, Nauru.
4 He was so removed at the instance of Australian authorities and with the cooperation of Nauru. His occupation in Nauru might be described as detention albeit that a degree of latitude was given. Unfortunately the recognition of the plaintiff’s status as a refugee took substantial time to resolve. Had the plaintiff been permitted to enter mainland Australia and been processed at an early date, it is possible that his refugee status could have been recognised much earlier. Had that occurred, he would have been able to avoid the ‘detention’ in various locations, notably Nauru.
5 Over several years, a complex case has been built on behalf of the plaintiff seeking compensation to redress what the plaintiff asserts were not simply unhappy circumstances but breaches of Australian law by the defendants. The questions arising in these reasons are directed not to the social or political concepts which the plaintiff’s story engages but rather whether there is, on the pleaded case, at law and particularly under statute, a basis on which the plaintiff’s legal claim can be recognised.
6 This proceeding has been running for some time. It is not yet complete. Several previous judgments have been given on en-route to date:
· P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1029;
· P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1370;
· Plaintiff P1/2003 v Ruddock (2007) 157 FCR 518; and
· Sadiqi v The Commonwealth of Australia [2008] FCA 1262.
PRINCIPLES ON WHICH PRELIMINARY QUESTIONS MIGHT BE ASKED AND ANSWERED
7 Provision is made under O 29 r 2 of the Federal Court Rules (FCR) for the Court to order that the decision of any question separately from any other question be determined, whether before, at or after any trial. The objective of making such an order will always be to save time and costs to the parties so long as the interests of justice are satisfied. As Toohey J observed in TVW Enterprises Ltd v Duffy, M.J. & Ors [1985] FCA 109 an order under this rule provides:
… a useful procedure in certain cases though its usefulness depends upon the obtaining of answers which are likely to make a substantive hearing unnecessary, at least if the questions are answered in a particular way. The decision ultimately is one for the Court though naturally it will have regard to the attitude of the parties.
8 I will examine this aspect in a little detail for two reasons. First, although agreement was reached as to the putting of 14 preliminary questions, the plaintiff subsequently expressed reservations as to that course. He now contends that not all questions should be put.
9 All issues of fact and law in a proceeding should ordinarily be determined at the one time by a Court following a trial (FCR O 32). It is clear, however, that O 29 r 2 permits modification to that principle when the interests of justice so require. Examples of the application of O 29 r 2 are set out conveniently in the judgment of Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [7]. In addition, her Honour set out (at [8]) the guiding principles in relation to the circumstances in which an order under O 29 r 2 may be made:
(a) the term “question” in O 29 r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an “issue” and a “question” is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an “issue”, and less decisive matters of dispute being “questions” (Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425; 113 ALR 643 at 647);
(b) a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties’ rights (Landsal Pty Ltd (in liq) v REI Building Society at FCR 425; ALR 647);
(c) however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at para 45);
(d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined (Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General [1970] AC 179 at 242-3; [1969] 1 All ER 629 at 663-4 per Lord Pearson; Bass v Permanent Trustee at [53]);
(e) care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not “ripe” for separate and preliminary determination. An issue may not be “ripe” for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 per Kirby P at 606);
(f) factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may –
(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or
(ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill per Kirby P at 607);
(g) factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may -
(i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial (GMB Research & Development Pty Ltd v The Commonwealth [1997] FCA 934;
(ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding (GMB Research & Development Pty Ltd v The Commonwealth; Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG629-37 of 1995, 8 September 1995, BC9502745). This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or
(iii) prolong rather than shorten the litigation (GMB Research & Development Pty Ltd v Commonwealth).
10 The essential question as her Honour observed in Arnold v Attorney-General (VIC) [1995] FCA 727 was whether it is ‘just and convenient’ for the order to be made. Her Honour then went on to examine specific classes of proceedings in which it was commonly recognised that it was ‘just and convenient’ for an order to be made. However, ultimately, the most obvious example is where a party contends that notwithstanding acceptance of all of the relevant facts contained in a pleading, the pleading does not disclose a cause of action (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [50]). Bass was a case in which it was contended that a State had, by representations made in connection within a housing assistance scheme, engaged in conduct which was misleading and thus in contravention of s 52 of the Trade Practices Act 1974 (Cth). The High Court held that the claims against the State were not maintainable under the provisions of the Trade Practices Act then applicable as the State was not a person. In the course of that decision, observations were made as to the circumstances in which it will be appropriate for a Court (to give a declaratory judgment and) to state or answer preliminary questions. Emphasis was placed on the need for facts to be found or agreed. At [45] the Court said (citations omitted):
The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J said:
"[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons ... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist."
11 The Court continued at [49]-[52]:
[49] As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state -- let alone answer -- preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
[50] The procedure adopted in the present case is far removed from that concerned with demurrers, a form of procedure which assumes the truth of a particular set of facts. If the "facts" which are the basis of an answer to a legal question are identified, that answer will have utility for the parties provided that no other evidence could add to or qualify those "facts". In such a case, the parties' rights will be determined when the evidence finally determines the existence or non-existence of those "facts". Because that is so, demurrers have been much used in determining the rights of parties to litigation. The demurrer proceeds upon identified facts and enables a court to declare whether or not they provide a cause of action or a defence or reply to another party's pleading. Unlike the present case, however, a demurrer assumes that the pleadings exhaust the universe of relevant factual material. The utility of demurrers is, however, heavily dependent on the pleadings containing all the relevant facts. When the parties are uncertain whether further investigation will reveal further factual material, the utility of the demurrer is diminished.
[51] It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue. However, that will be so only if the questions are capable of final answer and are capable of being answered in accordance with the judicial process.
[52] Preliminary questions may be questions of law, questions of mixed law and fact or questions of fact. Some questions of law can be decided without any reference to the facts. Others may proceed by reference to assumed facts, as on demurrer or some other challenge to the pleadings. In those cases, the judicial process is brought to bear to give a final answer on the question of law involved. Findings of fact are made later, if that is necessary. Where a preliminary question is a pure question of fact that, too, can be answered finally in accordance with the judicial process if the parties are given an opportunity to present their evidence and, also, to challenge the evidence led against them.
PLEADED CASE
13 It is unnecessary to repeat the summary of the statement of claim which I set out at some length in Sadiqi [2008] FCA 1262. It may assist as a guide however, before coming to the agreed facts, to record by way of convenient summary, the tabular chronology prepared by the defendants. I do not understand the synopsis to be contested (at least as to its limited purpose in these reasons which is only to assist as to a chronological guide to where and when the plaintiff was located between 8 November 2001 and 25 February 2004). It also records the defendants’ assertions as to the plaintiff’s detention and his Migration Act 1958 (Cth) (the Migration Act) status at any given time in that period.
Sadiqi - Timetable
|
| Period | Location | Detention status | Migration Act status |
| 1. | 8 November 2001 | Rescue and transit to Ashmore Reef on ACV Arnhem Bay | Not detained | · Non-citizen: s 5(1) |
| 2. | 8 November 2001 to 10 November 2001 | Ashmore Reef on ACV Arnhem Bay | No claim of detention | · Non-citizen: s 5(1) |
| 3. | 10 November 2001 to 14 November 2001 | HMAS Tobruk – Transit from Ashmore Reef to Christmas Island | Detained under s 189(2) as a person in Australia outside the migration zone seeking to enter the migration zone who would be an unlawful non-citizen | · Non-citizen: s 5(1) |
| 4. | 14 November 2001 to 28 December 2001 | Christmas Island | Detained under ss 189(2) and/or 189(3), read with s 196 | · Unlawful non-citizen: s 14(1) · Offshore entry person: s 5(1) |
| 5. | 28 December 2001 to 29 December 2001 | Christmas Island to Nauru (via Perth) | Detained under s 198A, although not in immigration detention: see s 198A(4) | · Unlawful non-citizen while in migration zone: s 14(1) · Offshore entry person: s 5(1) |
| 6. | 1 November 2002 to 2 November 2002 | Transit to Australia (Perth) | Brought to Australia, with his consent, as a transitory person pursuant to s 198B. | · Transitory person: s 5(1) · Unlawful non-citizen while in migration zone: s 14(1) |
| 7. | 2 November 2002 to 25 February 2004 | Perth (Perth IDC or motels designated as places of detention) | Detained under s 189(1) | · Unlawful non-citizen: s 14(1) · Transitory person until 18 December 2003 (when assessed to be a refugee by the RRT): s 5(1) |
AGREED FACTS AND DOCUMENTS
The Plaintiff and his Brother
15 The plaintiff is a citizen of Afghanistan. He is of the Hazara race and a follower of the Shi’ite sect of the Islamic religion.
16 In 2000, the plaintiff left Afghanistan without a valid Afghani passport or other travel document and travelled to Indonesia, with the intention of travelling from Indonesia to Australia and thereafter permanently residing in Australia.
17 In or about August 1999, the plaintiff’s elder brother, Hussain Ali Sadiqi, left Afghanistan.
18 Hussain Ali Sadiqi arrived in Australia by boat on or about 22 October 1999 and was placed in immigration detention. On or about 11 April 2000, he was granted a protection visa and released from detention. He took up residence in Perth, Western Australia.
Rescue and Ashmore Reef
19 In or about October 2001, the plaintiff also obtained passage to Australia on an Indonesian coastal vessel travelling, in the company of approximately 161 other asylum seekers, from Indonesia to the Territory of Ashmore and Cartier Islands. The plaintiff was not the holder of a visa under the Migration Act. At that time, the plaintiff was 16 years of age.
20 The Territory of Ashmore and Cartier Islands is an external territory of Australia to which the Migration Act extends pursuant to s 7(1) and (2) of that Act.
21 On the enactment of the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) (the Excision Act) the Territory of Ashmore and Cartier Islands became an ‘excised offshore place’ for the purposes of the Migration Act. That Act inserted a definition of ‘excision time’ that provided that the ‘excision time’ for the Territory of Ashmore and Cartier Islands was 2.00 pm ACT time on 8 September 2001.
22 On 8 November 2001, the vessel on which the plaintiff was travelling, which was codenamed SIEV 10 by Australian authorities, was intercepted by vessels of the first defendant, caught fire and sank while in international waters between Indonesia and Australia. The plaintiff was rescued and taken aboard the ACV Arnhem Bay. Two other passengers on SIEV 10 drowned.
23 On 8 November 2001, the Arnhem Bay, with the plaintiff on board, arrived at the outer lagoon at Ashmore Reef in the Territory of Ashmore and Cartier Islands. The plaintiff did not disembark at Ashmore Reef.
24 In the period from 8 November 2001 to 11 November 2001 inclusive, the outer lagoon at Ashmore Reef was not a port appointed under s 15 of the Customs Act 1901 (Cth) or a port appointed by the Minister under s 5(5) of the Migration Act.
25 On 10 November 2001, officers of the first defendant on board the Arnhem Bay informed all of the non-citizens on board the Arnhem Bay that they were to be transferred to HMAS Tobruk for the purpose of being transported to Christmas Island. After being informed of the proposed transfer, the plaintiff indicated to the Executive Officer of HMAS Tobruk that he did not wish to go to Christmas Island and that he wanted to be taken to the Australian mainland.
26 On 10 November 2001, after the plaintiff refused to disembark from the Arnhem Bay, officers of the first defendant placed him in plastic flexicuffs and transferred him to HMAS Tobruk.
Christmas Island
27 The Territory of Christmas Island is an external territory to which the Migration Act extends pursuant to s 7(1) and (2) of the Migration Act.
28 On the enactment of the Excision Act, the Territory of Christmas Island became an ‘excised offshore place’ for the purposes of the Migration Act. That Act inserted a definition of ‘excision time’ that provided that the ‘excision time’ for the Territory of Christmas Island was 2.00 pm ACT time on 8 September 2001.
29 On 11 November 2001, HMAS Tobruk, with the plaintiff on board, sailed from Ashmore Reef to Christmas Island. In the course of the voyage from Ashmore Reef to Christmas Island, HMAS Tobruk sailed through international waters.
30 On 14 November 2001, the HMAS Tobruk arrived at Christmas Island with the plaintiff on board. The plaintiff disembarked at Christmas Island on that date.
31 On 14 December 2001 the second defendant decided that unaccompanied minors detained on Christmas Island as unlawful non-citizens should be transferred to the Republic of Nauru (Nauru) and Manus Island (in Papua New Guinea) as logistically required.
32 The plaintiff was detained on Christmas Island between 14 November 2001 and 28 December 2001. He was held by officers or agents of the first defendant in an immigration detention centre on Christmas Island established under the Migration Act.
Nauru
33 On 10 September 2001, a Statement of Principles was signed on behalf of each of the first defendant and Nauru.
34 On 2 October 2001, the second defendant made a declaration in writing declaring Nauru as a declared country under s 198A(3) of the Migration Act, and stating the second defendant's satisfaction ‘that Nauru meets the criteria set out in section 198A(3) of the Migration Act 1958’.
35 On 11 December 2001, a Memorandum of Understanding (MOU) was agreed between the first defendant and Nauru, which replaced the Statement of Principles.
36 A non-citizen of Nauru who is in Nauru without a visa is liable to arrest under s 5(2) of the Immigration Act 1999 (Nauru) (the Nauru Immigration Act) and to punishment for an offence under s 13(1) of that Act, including imprisonment. Such a person is also liable to removal from Nauru by order of the Principal Immigration Officer made in exercise of the power conferred by s 11(1) of the Nauru Immigration Act, and to detention under s 11(4) of the Nauru Immigration Act pending that removal. With the approval of the Minister, the person might be removed ‘to a place in the country to which he belongs’, or to any other place to which he consents to be removed and the government of which consents to receive him: s 11(6)(b) of the Nauru Immigration Act.
37 On 19 December 2001 the Minister for Justice and Customs made a direction pursuant to s 6(1) of the Australian Protective Service Act 1987 (Cth) (the APS Act) that the functions of the Australian Protective Service (the APS) were to provide protective and custodial services, including, inter alia, the conduct of security surveys of premises, a custodial service and all services reasonably related to the provision of a custodial service, both in Australia and in a foreign country. The direction was published in Commonwealth of Australia Gazette No. S. 525 dated 21 December 2001.
38 On 28 and 29 December 2001, the plaintiff was taken by officers of the first defendant from Christmas Island to Nauru, travelling by aircraft, via Perth, and arriving in Nauru on 29 December 2001. In the course of the journeys from Christmas Island to Perth and from Perth to Nauru, the plaintiff was flown through international airspace. The plaintiff was not invited to make submissions in opposition to being taken to Nauru.
39 Upon his arrival in Nauru, the plaintiff was taken to ‘State House’, a site designated by the Government of Nauru for the accommodation of asylum seekers.
40 On 7 January 2002 the plaintiff was granted a special purpose visa by the Principal Immigration Officer of Nauru pursuant to the Nauru Immigration Act and the Immigration Regulations 2000 (Nauru). This special purpose visa authorised the plaintiff's entry and stay in Nauru on ‘humanitarian grounds’, such stay not to exceed beyond 6 months from the date of arrival. The plaintiff did not apply for the visa and did not authorise any other person to apply on his behalf.
41 The special purpose visa was subject to the following conditions:
1. Residence in Nauru shall be restricted to sites designated by the Government of Nauru for the accommodation of asylum seekers;
2. Movement within Nauru shall be restricted to within the above-mentioned sites except with the consent of the Office of the President of Nauru;
3. Movement within Nauru outside of the designated sites shall be under escort of security personnel, as authorised by the Office of the President of Nauru;
4. Completion of humanitarian endeavours shall, for the purpose of this Visa, be as determined by the Office of the President of Nauru, through directions of the undersigned and shall constitute termination of such visa.
42 The plaintiff resided at State House until he was transferred to ‘Topside’, another site designated by the Government of Nauru for the accommodation of asylum seekers. The State House and Topside sites were provided by the Government of Nauru pursuant to the MOU referred to above and were maintained and operated by a non-government organization, the ‘International Organisation for Migration’ under contract with the first defendant.
43 On 15 July 2002, the plaintiff was granted a further special purpose visa on the same terms and conditions as the first special purpose visa referred to above, save that the plaintiff's further stay in Nauru was not to exceed beyond 3 months from the date of issuance. The plaintiff did not apply for the visa and did not authorise any other person to apply on his behalf.
44 Officers of the APS participated in the provision of security services at the State House and Topside sites in Nauru at which the plaintiff resided.
45 Both State House and Topside were surrounded by wire fencing which was patrolled from time to time by officers of the APS.
46 When the plaintiff left State House or Topside to attend school, go to the beach or to go shopping, he was often accompanied by an officer of the APS.
47 The plaintiff was interviewed by an officer of the first defendant on 11 March 2002 in relation to his claims for protection.
48 On 19 June 2002 the interviewing officer referred to above determined that the plaintiff was not a refugee under Art 1A of the Convention.
49 On 10 July 2002 the plaintiff sought review of the determination referred to above and was interviewed by a second officer of the first defendant (the Review Officer).
50 By letter dated 12 July 2002, the plaintiff advised the Review Officer referred to above that his brother, Hussain Ali Sadiqi, was currently living in Australia as a refugee and provided his address.
51 On 8 September 2002 the Review Officer referred to above again determined that the plaintiff was not a refugee under Art 1A of the Convention.
Perth
52 On 1 November 2002 officers of the first defendant brought the plaintiff, with his consent, from Nauru to Australia for the purpose of giving evidence at a coronial inquest into the deaths of the two passengers aboard the SIEV 10. The plaintiff arrived in Perth on 2 November 2002.
53 After his arrival in Perth on 2 November 2002, the plaintiff was detained by officers or agents of the first defendant, initially at the Perth Immigration Detention Centre, and from 2 November 2002 until 13 June 2003 at the Marracoonda Motel, Belmont, Western Australia.
54 From 13 June 2003 until 26 September 2003 the plaintiff was detained by officers or agents of the first defendant at the Inter City Motel. From 26 September 2003 until 25 February 2004 the plaintiff was detained by officers or agents of the first defendant at the Perth Immigration Detention Centre.
55 During the plaintiff's periods of detention at the Marracoonda Motel and the Inter City Motel, those Motels were approved places of immigration detention pursuant to subpar (b)(v) of the definition of immigration detention in s 5 of the Migration Act.
56 On 29 September 2003 the plaintiff applied to the Refugee Review Tribunal (the Tribunal) for an assessment of his refugee status pursuant to s 198C of the Migration Act.
57 On 18 December 2003 the Tribunal found that the plaintiff was a refugee within the meaning of Art 1A of the Convention.
58 On 23 February 2004 the plaintiff made an application for a temporary protection visa pursuant to s 198C(8)(b) of the Migration Act.
59 On 25 February 2004 the second defendant's successor as Minister granted the plaintiff a three year temporary protection visa and he was released from immigration detention on that date.
60 In addition to the foregoing facts being agreed by the parties, the parties have accepted the authenticity of six documents. The first of those documents is the Statement of Principles signed on 10 September 2001 by the President of Nauru and the Minister for Defence for the first defendant. The Statement of Principles is relatively brief. It provides that each of the countries, wishing to build on and strengthen existing friendly relations between the two countries, have reached the following Statement of Principles. This Statement of Principles, together with any supporting administrative arrangements was said to be to ‘provide the basis for joint cooperation in humanitarian endeavours relating to asylum seekers, “the persons”’. There were then ten principles in these terms:
1. Australia will bear all costs related to activities conducted under this Statement of Principles, and will reasonably compensate Nauru for its assistance and for any losses incurred in this endeavour.
2. All activities will be conducted in accordance with the Constitutions and relevant domestic laws of the two countries.
3. Nauru will accept persons for determination of their status, as jointly determined under administrative arrangements, from time to time, including those persons currently on HMAS Manoora, with the exception of those to be taken to New Zealand.
4. Both countries will fully consult each other on administrative arrangements made in relation to this Statement of Principles.
5. Australia will meet all reasonable administrative costs incurred by Nauru in implementing this Statement of Principles.
6. Australia will ensure that all persons taken by Nauru will have left within as short a time as is reasonably necessary to complete the humanitarian endeavours referred to in this Statement of Principles.
7. The ‘Anaoe Village’ and the ‘Topside Sports Oval’ as required for overflow, will be the two sites on Nauru, where the persons will be received and accommodated in order to have their status determined.
8. All costs of establishing, operating and renting these sites in order to receive and accommodate the persons will be borne by Australia.
9. Both sites will be returned to their original condition or better, on conclusion of activities related to this Statement of Principles.
10. Communications concerning the day to day operation of activities undertaken in accordance with this Statement of Principles, will be between the Office of the President and the Australian Administrative Centre in Nauru.
61 The second document agreed was the Instrument of Declaration signed by the second defendant on 2 October 2001. It is brief. It is headed ‘The Instrument of Declaration’ and reads:
I hereby declare the Republic of Nauru as a declared country under section 198A(3) of the Migration Act 1958. I am satisfied that Nauru meets the criteria set out in section 198A(3) of the Migration Act 1958.
This declaration will be in effect until 1 October 2002.
62 A third document agreed between the parties was the MOU between the Republic of Nauru and the first defendant for cooperation in the administration of asylum seekers and related issues. Again, this document is not extensive (four and a half pages). It is not presently necessary to record all of its content. It is an expansion upon and development of the Statement of Principles. It also reflects in the opening passage that it is directed to strengthening the friendly relations between the two countries, recognising with humanitarian sympathy the dilemma of ‘asylum seekers’ (referred to as ‘certain persons’), wishing to cooperate bilaterally on an amicable, effective and mutually beneficial basis in the administration of these persons, and in supporting regional efforts to combat people smuggling. That MOU was signed on 11 December 2001 as indicated in the Statement of Agreed Facts. It is accompanied by a schedule dealing with development strategy and financial assistance provided by Australia to Nauru in the form of health, scholarships, study programs and other general forms of assistance. It also includes that there will be provision of training to local law enforcement officers as recommended in the Australian Protective Services Report to a value of AUD$150,000.
63 The fourth document identified was the Commonwealth of Australia Gazette for Friday, 21 December 2001 containing the directive from the Minister for Justice and Customs signed on 19 December 2001 stipulating the nature of the protective and custodial functions of the APS not including bodyguard services. Also provided are two special purpose visa grants made by the Principal Immigration Officer of the Republic of Nauru in respect of various asylum seekers identified in attached lists. The terms of the visas are those indicated above in the Statement of Agreed Facts.
AGREED PRELIMINARY QUESTIONS
64 It is helpful to see the entire list of agreed preliminary questions before proceeding to answer them individually. In the course of dealing with those answers, the four additional questions which the defendants seek to have dealt with on a preliminary basis but which the plaintiff opposes will also be addressed.
65 At the hearing of the preliminary questions, for the first time it was indicated for the plaintiff that he did not accept that all the preliminary questions in the agreed list should be put, largely on the basis that some additional facts may need to be found. I will deal with those submissions on a question by question basis where the submission has arisen.
66 I do wish to emphasise that on those outcomes I have proceeded to answer such questions, it is not for the reason that the plaintiff changed his position at the hearing but rather, because the reasons given for no longer consenting to the question being dealt with on a preliminary basis could not be accepted. It may be clear from the principles examined (from [7] onwards) that while the parties’ consent to the process of answering preliminary questions will be an important consideration, neither the existence of such consent nor the consent being withdrawn, will be solely determinative.
Ashmore Reef
67 1. For the purposes of the Immigration (Guardianship of Children) Act 1946 (Cth) (the IGOC Act), when the plaintiff entered the coastal sea adjacent to the Territory of Ashmore and Cartier Islands on 8 November 2001:
1.1 did the plaintiff ‘enter Australia’ within the meaning of s 4AAA(1)(b) of the IGOC Act?
1.2 did the second defendant become the plaintiff’s guardian by reason of s 6 of the IGOC Act?
68 2. For the purposes of the Migration Act, when the plaintiff arrived at the outer lagoon at Ashmore Reef on 8 November 2001:
2.1 did the plaintiff ‘enter Australia’ within the meaning of s 5 of the Migration Act?
2.2 was the plaintiff ‘in Australia’ for the purposes of s 189(2) of the Migration Act?
2.3 did the plaintiff become an ‘offshore entry person’ as defined in s 5 of the Migration Act?
69 3. If the answer to question 1.1. is ‘yes’, did the plaintiff leave Australia for the purposes of s 6A of the IGOC Act when the plaintiff was taken from Ashmore Reef on 11 November 2001, arriving in Christmas Island on 14 November 2001?
70 4. If the answer to question 3 is ‘yes’, was the consent in writing of the second defendant to the plaintiff leaving Australia required pursuant to s 6A(1) of the IGOC Act?
Christmas Island
71 5. When the plaintiff arrived at Christmas Island on 14 November 2001:
5.1 did the plaintiff ‘enter Australia’ within the meaning of s 4AAA(1)(b) of the IGOC Act?
5.2. did the plaintiff ‘enter Australia’ within the meaning of s 5 of the Migration Act?
5.3. did the plaintiff become an ‘offshore entry person’ as defined in s 5 of the Migration Act?
Christmas Island to Nauru, via Perth
72 6. When the plaintiff was taken from Christmas Island to Perth, en route to Nauru, on 28 December 2001:
6.1. did the plaintiff leave Australia for the purposes of s 6A of the IGOC Act?
6.2. did the plaintiff cease to be an ‘offshore entry person’ as defined in s 5 of the Migration Act, if the plaintiff was such a person when he left Christmas Island?
Nauru
73 7. Is the plaintiff precluded from challenging the validity of the second defendant’s declaration of Nauru under s 198A(3) of the Migration Act by reason of his application pursuant to s 198C of that Act which led to him being granted a temporary protection visa on 25 February 2004?
74 8. If the answer to question 7 is ‘no’, does any of the criteria in s 198A(3) of the Migration Act constitute a jurisdictional fact, the existence of which is relevant to the validity of the second defendant's declaration of Nauru under s 198A(3) of the Migration Act?
75 9. If the answer to question 7 is ‘yes’ or the answer to question 8 is ‘no’, is the declaration made by the second defendant on 2 October 2001, that the Republic of Nauru is a declared country under s 198A(3) of the Migration Act, invalid?
76 10. If the answer to question 7 is ‘yes’ or the answer to question 9 is ‘no’, did s 198A of the Migration Act authorise officers or agents of the first defendant to take the plaintiff from Christmas Island to Nauru, via Perth, on 28 and 29 December 2001?
77 11. If the answer to question 10 is ‘yes’:
11.1. was the consent in writing of the second defendant to the plaintiff leaving Australia required pursuant to s 6A(1) of the IGOC Act?
11.2. did any (and if so which) of the following actions involve a breach of the second defendant's guardianship duties imposed by ss 6 and/or 6A of the IGOC Act:
(a) the second defendant’s decision that unaccompanied minors detained on Christmas Island as unlawful non-citizens, including the plaintiff, be transferred from Christmas island to Nauru, as logistically required; or
(b) the taking of the plaintiff from Christmas Island to Nauru on 28 and 29 December 2001?
78 12. Was the deployment of Australian Protective Services Officers in Nauru authorised under the provisions of the Australian Protective Service Act 1987?
Perth
79 13. Was the plaintiff’s detention in Australia from 1 November 2002 until 25 February 2004 authorised and/or required by ss 189(1) and 196 of the Migration Act?
IGOC Act
80 14. Does s 6 of the IGOC Act impose any duties on the second defendant, in his capacity as guardian of a non-citizen child who arrives in Australia, the breach of which duties is enforceable by any cause of action sounding in damages?
Geography
81 Purely as background, something should be said about the geography of the key locations discussed in these reasons.
82 Ashmore Reef is a national nature reserve located in the Timor Sea about 840 kilometres to the west of Darwin and north of Broome by a little over 600 kilometres. It comprises some 583 square kilometres of seabed, three islands and a large reef with surrounding waters. Anchorage to Ashmore Reef is offshore. The Ashmore Reef itself is approximately 155 square kilometres in area including its lagoon and the Cartier Reef, 44 square kilometres in area including the lagoon.
83 Christmas Island is located 2600 kilometres northwest of Perth, 500 kilometres south of Jakarta and 975 kilometres east/northeast of the Cocos (Keeling Coast) Islands. Unlike Ashmore Reef, it does have a permanent population who live in a number of settlement areas.
84 Nauru is only 21 square kilometres in size. It is located to the north east of Australia in Oceania in the South Pacific Ocean south of the Marshall Islands. Purely in a direct line, Nauru is approximately 3400 kilometres northeast of Brisbane.
ANSWERS TO AGREED PRELIMINARY QUESTIONS
Ashmore Reef – IGOC Act
Ashmore Reef
1. For the purposes of the IGOC Act, when the Plaintiff entered the coastal sea adjacent to the Territory of Ashmore and Cartier Islands on 8 November 2001:
1.1. did the Plaintiff “enter Australia” within the meaning of s 4AAA(1)(b) of the IGOC Act?
1.2. did the Second Defendant become the Plaintiff’s guardian by reason of s 6 of the IGOC Act?
85 The plaintiff contends that he did enter Australia within the meaning of s 4AAA(1)(b) of the IGOC Act and therefore by s 6, the Minister became the plaintiff’s guardian. The defendants say that the answer to each of 1.1 and 1.2 is ‘no’.
86 It will be recalled that on 8 November 2001 the Indonesian vessel on which the plaintiff and another 161 asylum seekers were travelling caught fire and sank while in international waters between Indonesia and Australia. That vessel was travelling from Indonesia to the Territory of Ashmore and Cartier Islands. The plaintiff was rescued and taken aboard the ACV Arnhem Bay. Later but on the same day, the Arnhem Bay arrived at the outer lagoon of Ashmore Reef in the Territory of Ashmore and Cartier Islands where the plaintiff did not disembark.
87 The significance of ‘entry’ into Australia is that s 6 of the IGOC Act deals with a non‑citizen child who ‘arrives’ in Australia while s 4AAA deals with ‘enter’[ing] Australia.
88 Section 6 of the IGOC Act provides:
The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens. (emphasis added)
89 Under s 4AAA of the IGOC Act, a ‘non-citizen child’ is defined as follows:
(1) Subject to subsections (2) and (3), a person (the child) is a non-citizen child if the child:
(a) has not turned 18; and
(b) enters Australia as a non-citizen; and
(c) intends, or is intended, to become a permanent resident of Australia.
(emphasis added)
90 Although s 6 of the IGOC Act uses the expression ‘arrives in Australia’ whereas s 4AAA of the IGOC Act uses the expression ‘enters Australia’, within the normal language usage, it would be difficult to discern any significant difference in the meanings of those expressions.
91 In either event, however, the question turns on how ‘Australia’ is defined for the purpose of the IGOC Act. Australia is not defined in the IGOC Act. Accordingly, in the absence of a definition, s 17 of the Acts Interpretation Act 1901 (Cth)(the AIA) applies. That section relevantly provides, that unless a contrary intention appears:
(a) Australiaor the Commonwealth means the Commonwealth of Australia and, when used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory. (emphasis added)
92 The question arises, therefore, as to whether a contrary intention appears. The defendants place reliance on the closing words in s 17 of the AIA, namely, that although Australia includes the Christmas and Cocos Islands it ‘does not include any other external Territory’.
93 There is then s 15B(1)(a) of the AIA pursuant to which the provisions of the IGOC Act must ‘be taken to have effect in and in relation to the coastal sea of Australia as if the coastal sea of Australia were part of Australia’. From this, it follows that when one ‘arrives in Australia’ (s 6 of the IGOC Act), arriving in Australia includes arriving in the coastal sea around the Territory of Christmas Island or Cocos (Keeling) Islands.
94 Section 15B(2) and (4) of the AIA relevantly provide as follows:
15B Application of Acts in coastal sea
…
(2) Except so far as the contrary intention appears:
(a) the provisions of an Act, whether passed before or after the commencement of this section, that are in force in an external Territory shall be taken to have effect in and in relation to the coastal sea of the Territory as if the coastal sea of the Territory were part of the Territory; and
(b) any reference in an Act, whether passed before or after the commencement of this section, to all or any of the external Territories (whether or not a particular Territory or particular Territories is or are referred to) shall be read as including a reference to the coastal sea of any Territory to which the reference relates.
…
(4) In this section, coastal sea:
(a) in relation to Australia, means:
(i) the territorial sea of Australia; and
(ii) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;
and includes the airspace over, and the sea bed and subsoil beneath, any such sea; and
(b) in relation to an external Territory, means:
(i) the territorial sea adjacent to the Territory; and
(ii) the sea on the landward side of the territorial sea adjacent to the Territory and not within the limits of the Territory;
and includes the airspace over, and the sea bed and subsoil beneath, any such sea. (emphasis added)
95 Those subsections taken in the context of s 15B(1)(a) make it clear that the waters adjacent to an external Territory such as the Territory of Ashmore and Cartier Islands are not part of Australia and are not to be understood as being part of the coastal sea of Australia, even though those waters are part of the external Territory.
96 Accordingly, arrival in the coastal sea off Ashmore Reef does not, on its face, constitute an arrival in Australia for the purpose of s 6 of the IGOC Act.
97 The thrust of the plaintiff’s contention, however, is that a ‘contrary intention’ does appear. The significance of this is obvious as, if the plaintiff did enter Australia for the purposes of the IGOC Act on 8 November 2001 at the Ashmore and Cartier Islands, the second defendant became his guardian at that date. (The defendants do accept that the second defendant became the plaintiff’s guardian on the plaintiff’s entry to Australia at Christmas Island six days later on 14 November 2001). The issue concerning the earlier entry is that the removal of the plaintiff from Australia would require the consent in writing under s 6A(1) of the IGOC Act if the plaintiff had entered Australia.
98 The plaintiff contends that the IGOC Act contains a number of references to ‘Territory’, ss 4, 4AAA, 4AAB, 4A, 5, 8 and 12. None of these references provides that the application of Territory is limited to the Territories of Christmas and Cocos Islands. As to the contrary intent argument, the plaintiff says that regard being had to the protective purpose of the IGOC Act, in the absence of express words there was no obvious basis on which Ashmore and Cartier Islands should be excluded from the operation of the protective provision.
99 In the alternative, the plaintiff argues that s 8 of the Ashmore and Cartier Islands Acceptance Act 1933 (Cth) (the ACIA Act) provides under the heading ‘Application of Commonwealth Acts’, that an Act or provision of an Act is in force as such in the Territory ‘except as otherwise provided by that Act or by another Act’.
100 The plaintiff contends that the Ashmore and Cartier Islands have not been excluded from the reference to Territories in the IGOC Act, therefore, if s 17 of the AIA were to be applied, it would exclude the operation of Commonwealth laws in the Territory. This, he argues, would defeat the purpose of the provisions of s 8 of the ACIA Act preserving the application of Commonwealth Acts. The plaintiff relies on the maxim ‘generalia specialibus non derogant’. That is, where there is a conflict between general and specific provisions, the specific provisions should prevail. It is to be noted that in the 6th ed of Pearce and Geddes Statutory Interpretation in Australia (at [4.32]) the learned authors suggest that the rule should be observed more strictly in the interpretation of provisions in a particular Act than in the case of separate enactments where it may well be that the drafts person simply did not consider the effect of competing Acts. I would respectfully agree with the authors. Further, the rule should only be called in aid ‘where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation’: Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652 at 656.
101 The defendants contend that s 17 of the AIA is a complete answer to the question of whether or not the plaintiff entered Australia at Ashmore Reef. The defendants draw on a parallel between the provisions under consideration and those provisions of the Judiciary Act 1903 (Cth) which pick up the laws of the State in which the Court is exercising Federal jurisdiction. Such provisions do not change the meaning of the laws that are ‘picked up’. Shortly stated, the defendants say that it may be that the IGOC Act is ‘picked up’ by the ACIA Act within the Territory of Ashmore and Cartier Islands but the meaning of its terms are unaffected and the reference to entering Australia still remains to be controlled by the IGOC Act. By coming to the waters immediately off Ashmore Reef, the plaintiff did not enter Australia and therefore did not acquire the status of a non‑citizen child in order to invoke s 6 so as to become a ward of the Minister under s 6 of the IGOC Act.
102 There is no doubt that the IGOC Act was intended to create a special measure of protection for non‑citizen children entering Australia who intend to become permanent residents of Australia. That is evident from the provisions in ss 6, 6A, 7 and 9. The Act is brief, comprising only 12 sections. While the purpose of the Act is clear, that does not necessarily answer the question as to whether a contrary intention appears for the purpose of the definition of ‘Australia’ in s 17 of the AIA. The fact that the IGOC Act is intended to afford the protection that I have described, does not mean that the IGOC Act displays a contrary intention to the definition of ‘Australia’ where used in s 17 of the AIA. I can discern no contrary intention to extend the meaning of Australia beyond the description expressly appearing in s 17 of the AIA.
103 A question may arise, however, as to whether by adoption of all Australian Acts, the ACIA Act demonstrates a contrary intention. I do not consider that there is an inconsistency between the specifics of s 8 of the ACIA Act and s 17 of the AIA. The word ‘Australia’ in the IGOC Act must be given the same meaning on Ashmore Reef as it has on mainland Australia. That is the effect of s 8 of the ACIA Act. Both on Ashmore Reef and on the mainland, s 17 of the AIA defines ‘Australia’. From this it follows that the IGOC Act applies to non‑citizen children wherever they may be located providing the children have at some point entered either mainland Australia or the Territory of Christmas Island or the Cocos (Keeling) Island. In short, nothing in s 8 of the ACIA Act or elsewhere in the relevant legislative matrix purports to change the meaning of the word ‘Australia’ in the IGOC Act.
104 Put another way, if Ashmore Reef were part of Australia, there would be no need for s 8 of the ACIA Act which applies the laws of Australia. If Ashmore Reef were part of Australia the laws would apply automatically.
105 In my view, s 17 of the AIA is a complete answer to questions 1.1 and 1.2 which must be answered ‘no’.
Ashmore Reef – Migration Act
2. For the purposes of the Migration Act, when the Plaintiff arrived at the outer lagoon at Ashmore Reef on 8 November 2001:
2.1. did the Plaintiff “enter Australia” within the meaning of s 5 of the Migration Act?
2.2. was the Plaintiff “in Australia” for the purposes of s 189(2) of the Migration Act?
2.3. did the Plaintiff become an "offshore entry person" as defined in s 5 of the Migration Act?
106 Relevantly s 5 of the Migration Act provides as follows:
Australian waters means:
(a) in relation to a resources installation—waters above the Australian seabed; and
(b) in relation to a sea installation—waters comprising all of the adjacent areas and the coastal area.
enter includes re‑enter.
enter Australia, in relation to a person, means enter the migration zone.
entered includes re‑entered.
entry includes re‑entry.
excised offshore place means any of the following:
(a) the Territory of Christmas Island;
(b) the Territory of Ashmore and Cartier Islands;
(c) the Territory of Cocos (Keeling) Islands;
(d) any other external Territory that is prescribed by the regulations for the purposes of this paragraph;
(e) any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;
(f) an Australian sea installation;
(g) an Australian resources installation.
Note: The effect of this definition is to excise the listed places and installations from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications.
excision time, for an excised offshore place, means:
(a) for the Territory of Christmas Island—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(b) for the Territory of Ashmore and Cartier Islands—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(c) for the Territory of Cocos (Keeling) Islands—12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or
(d) for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(e) for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(f) for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or
(g) for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001.
immigration detention means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or
(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;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
lawful non‑citizen has the meaning given by section 13.
leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.
migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
non‑citizen means a person who is not an Australian citizen.
officer means:
(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e) a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
offshore entry person means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non‑citizen because of that entry.
port means:
(a) a proclaimed port; or
(b) a proclaimed airport.
proclaimed airport means:
(a) an airport appointed under section 15 of the Customs Act 1901; or
(b) an airport appointed by the Minister under subsection (5).
proclaimed port means:
(a) a port appointed under section 15 of the Customs Act 1901; or
(b) a port appointed by the Minister under subsection (5).
protected area means an area that is:
(a) part of the migration zone; and
(b) in, or in an area in the vicinity of, the Protected Zone.
Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.
transitory person means:
(a) an offshore entry person who was taken to another country under section 198A; or
(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b); or
(c) a person who, while a non‑citizen and during the period from 27 August 2001 to 6 October 2001:
(i) was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and
(ii) was then taken by HMAS Manoora to another country; and
(iii) disembarked in that other country;
but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.
unlawful non‑citizen has the meaning given by section 14.
vessel includes an aircraft or an installation.
visa has the meaning given by section 29 and includes an old visa.
visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa.
visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa.
107 Section 189 of the Migration Act provides as follows:
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.
(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter the migration zone (other than an excised offshore place); and
(b) would, if in the migration zone, be an unlawful non-citizen;
the officer must detain the person.
(3) If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.
(4) If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter an excised offshore place; and
(b) would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
(5) In subsections (3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
108 It is common ground between the parties that the plaintiff did not enter Australia within the meaning and for the purposes of s 5 of the Migration Act on arrival in the outer lagoon of Ashmore Reef on 8 November 2001. Nevertheless, I should record my views. The plaintiff has not pleaded that he entered Australia for the purposes of the Migration Act. The plaintiff pleads the case that he only entered Australia for the purposes of the IGOC Act (aboard the Arnhem Bay upon entering the territorial waters surrounding the Ashmore and Cartier Islands).
109 It is the defendants who contend that the plaintiff did not enter Australia on 8 November 2001 for the purposes of the IGOC Act but that he was ‘in Australia’ for the detention purposes of s 189(2) of the Migration Act. However, the defendants deny that the plaintiff ‘entered Australia’ for other purposes of the Migration Act. Because of the definitions contained in the Migration Act, the effect of the defendants’ pleading is that the plaintiff was ‘in Australia’ for detention purposes without having ‘entered Australia’ and without becoming subject to other provisions of the Migration Act. Entering Australia is referable to entry into the migration zone which is defined by s 5(1) of the Migration Act as including sea within the limits of both a State or Territory and a port but excluding ‘sea within the limits of a State or Territory but not in a port’. Ashmore and Cartier Islands did not at the relevant time have a port.
110 The plaintiff refers to s 6 of the Migration Act which provides that the limited meanings of ‘enter Australia’ and ‘leave Australia’ do not extend to the meaning of such expressions as ‘in Australia’ and ‘to Australia’. Thus the plaintiff accepts the defendants’ contention that, for the purposes of the Migration Act, a person may be ‘in Australia’ without having ‘entered Australia’. It is common ground then, that question 2.1 should be answered ‘no’. The question is posed essentially for foundational purposes.
111 As to questions 2.2 and 2.3, the plaintiff contended for the first time in oral submissions through counsel that it was inappropriate to answer questions 2.2 and 2.3. If they were to be answered, the answer should, according to the plaintiff, be ‘yes’ to question 2.2 and ‘no’ to question 2.3.
112 In order to understand the late submission that the question should not be asked and answered, it is necessary to consider the underlying submissions.
113 Although on its face, the defendants’ contention is that the plaintiff (as is common ground) had not ‘entered Australia’ for the purposes of the Migration Act, the defendants nevertheless say the plaintiff was ‘in Australia’ for the detention provisions. This apparent inconsistency is caused by the special meanings to be given to the respective terms. The term ‘enter Australia’ is not used in its ordinary sense in the Migration Act. Section 6 of the Migration Act specifically contemplates that because of the defined meaning of ‘enter Australia’, a person may be ‘in Australia’ without having ‘entered Australia’. The amendments made to s 189 of the Migration Act by the Excision Act create that unusual circumstance. As amended by the Excision Act, s 189 of the Migration Act provides as follows:
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.
(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter the migration zone (other than an excised offshore place); and
(b) would, if in the migration zone, be an unlawful non-citizen;
the officer must detain the person.
(3) If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.
(4) If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter an excised offshore place; and
(b) would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
(5) In subsections (3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
114 From this it can be seen that subsections (2) and (4) contemplate that a person may be ‘in Australia’ while at the same time being ‘outside the migration zone’. The effect of being outside the migration zone is that the person has not ‘entered Australia’ within the definition under s 5 of the Migration Act. Relevantly, it will be recalled that s 5(1) of the Migration Act provides as follows:
migration zone means the area consisting of the States, Territories, Australian resource installations and Australian sea installations and to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port. (emphasis added)
115 Accordingly, by reason of the manner in which ‘migration zone’ is defined, a person may be ‘in Australia’ not having ‘entered Australia’ where the person is on the sea within the limits of a State or Territory but not within a ‘port’.
116 The plaintiff had not ‘entered Australia’ (because he had not entered the ‘migration zone’). Even though the plaintiff had not entered an ‘excised off-shore place’ the question as to whether the plaintiff was ‘in Australia’ for the purposes of s 189(2) or (4) of the Migration Act is not resolved. One needs then to turn to s 7 of the Migration Act which provides that a ‘prescribed Territory’, which is defined in s 7(1) to include the Territory of Ashmore and Cartier Islands, ‘shall be deemed to be part of Australia for the purposes of this Act’. It follows, therefore, that when the plaintiff entered the territorial sea off Ashmore Reef, he was ‘in Australia’ but outside the ‘migration zone’ within the meaning of s 189(2) of the Migration Act.
117 Turning to question 2.3, the Excision Act inserted the following definitions into s 5(1) of the Migration Act:
offshore entry person means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non‑citizen because of that entry.
excised offshore place means any of the following:
(a) the Territory of Christmas Island;
(b) the Territory of Ashmore and Cartier Islands;
(c) the Territory of Cocos (Keeling) Islands;
(d) any other external Territory that is prescribed by the regulations for the purposes of this paragraph;
(e) any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;
(f) an Australian sea installation;
(g) an Australian resources installation.
(emphasis added)
118 As a result of those definitions, the Territory of Ashmore and Cartier Islands (as well as the Territory of Christmas Island) each became an ‘excised offshore place’ for the purposes of the Migration Act. The Excision Act also imposed a definition of ‘excision time’ where that expression is used in those definitions, for the Territory of Ashmore and Cartier Islands being 2.00 pm ACT time on 8 September 2001 (two months to the day) before the plaintiff entered the lagoon of Ashmore Reef.
119 The effect of the Excision Act was then to limit the ability of offshore entry persons to make valid visa applications (within the meaning of s 46A of the Migration Act) and to provide for such persons to be taken to declared countries under s 198A. No change was effected to the definition of the migration zone.
120 Accordingly it follows that the plaintiff did not enter the migration zone at Ashmore Reef and therefore did not ‘enter Australia’ within the meaning of the Migration Act and accordingly did not ‘enter Australia at an excised offshore place’. Therefore the plaintiff did not become an ‘offshore entry person’ whilst at Ashmore Reef.
121 If that were all that there was to the matter, each of the answers to questions 2.2 and 2.3 should be ‘yes’ and ‘no’ respectively, that is, the plaintiff was in Australia for the detention purposes but did not become an ‘offshore entry person’. The parties are agreed that the plaintiff did not become an offshore entry person, that is, that the answer to question 2.3 is ‘no’.
122 The plaintiff, however, now contends that the question should not be asked and answered.
123 The reason that the plaintiff now contends that the questions in 2.2 and 2.3 should not be asked and answered relate to the circumstances under which the plaintiff came to be in the outer lagoon at Ashmore Reef on 8 November 2001.
124 Those circumstances were that the vessel in which the plaintiff was travelling was intercepted in international waters, caught fire and sank, casting passengers and crew into the sea.
125 He was rescued by officers of the Commonwealth and taken aboard a customs vessel and conveyed to the outer lagoon at Ashmore Reef. The plaintiff contends that he was a rescuee. (It will be recalled that the defendants say that on his arrival at the outer lagoon he was in Australia for the detention purposes of the Migration Act but they deny the plaintiff entered Australia for other purposes of the Migration Act).
126 Counsel for the plaintiff contended that it was inappropriate now to pose the question whether the plaintiff was in Australia for detention purposes because in having regard to the construction of ‘in Australia’ one was entitled to have regard to the circumstances in which the plaintiff came to be in Australia. Those circumstances in this case were that he was brought by officers of the Commonwealth after having been rescued in international waters.
127 I put it to counsel that it had not been suggested at any stage of the proceedings by either of the parties that the plaintiff had come to the outer lagoon voluntarily. The submission of counsel was that regard has to be had to the words ‘because of that entry’ appearing in the definition of ‘offshore entry person’. Regard is required to be had to the precise circumstances of the entry. Counsel’s submission was that although the plaintiff did not hold a visa, he was entitled to apply for a visa if he was not an offshore entry person. Specifically, he would apply for a protection visa. Indeed he was subsequently granted a protection visa. It was argued that he was entitled to apply for a protection visa having been granted it. Counsel also contended that unless some evidence showed a change in circumstances between the time of his arrival in Australia and the time he was granted the protection visa, the true position was that he had always been entitled to the visa. In other words, the refugee status exists by virtue of the person coming within the Convention, not by the granting of a visa. The granting of a visa merely acknowledges the existence of the status.
128 The defendants’ answer to the plaintiff’s contention is in the agreed circumstances that the plaintiff was in effect escaping from Afghanistan without travel documents and with a view to settling in Australia.
129 It seems to me that no additional evidence is required in order to answer the questions posed in question 2. It is not, for example, a situation in which a yachtsperson was affected by a storm and was swept onto the beach at some location in Australia. The intention to arrive in Australia is an agreed fact. The fact that the interception of the vessel and its subsequent sinking and the rescuing of the plaintiff meant that the plaintiff became ‘in Australia’ by virtue of being rescued rather than arriving ‘in Australia’ directly himself, does not, in light of the agreed facts as to the plaintiff’s intentions, give rise to a need for any further evidence.
130 It is also desirable to draw a distinction between stepping off the vessel ashore onto Ashmore Reef on the one hand, as distinct from staying on the vessel in the water. Had the plaintiff stepped ashore on Ashmore Reef, then he would have become an offshore entry person because he would have entered Australia. That is to say, he would have entered part of the migration zone albeit at an excised offshore place.
131 But that is not the factual situation. For that reason the plaintiff did not at that point become an offshore entry person.
132 The plaintiff’s argument that by virtue of being granted a protection visa some time later, he was always entitled to such a visa is more attractive. But again the difficulty is that s 5(1) of the Migration Act does not deal with a non‑citizen in the migration zone who is entitled to hold a visa but rather to one who holds a visa.
133 Those definitions, in full are, by s 13 and s 14 respectively of the Migration Act as follows:
13 Lawful non-citizens
(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
(2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non‑citizen.
14 Unlawful non-citizens
(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
(2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.
134 For the reasons expressed, the answers to questions 2.1 and 2.3 are each ‘no’ but the answer to question 2.2 is ‘yes’ by reason of the agreed facts.
New Proposed Question – Migration Act - Detention
Reasonable Suspicion
135 By amended notice of motion the defendants also requested the Court to answer the following questions as preliminary questions:
NM-1 If the answer to Question 2.2 is ‘yes’, did the facts that:
(a) the Plaintiff had travelled towards Australia from Indonesia on board the SIEV 10, an Indonesian coastal vessel, in the company of approximately 161 other asylum seekers; and
(b) the Plaintiff did not hold a visa that entitled him to enter or remain in Australia;
provide a reasonable basis on which an officer of the First Defendant could suspect that the Plaintiff was seeking to enter the migration zone and that, if the Plaintiff entered the migration zone, the Plaintiff would be an unlawful non-citizen.
NM-2 If the answer to question NM-1 is ‘yes’, was the plaintiff’s detention, from the time of the departure of HMAS Tobruk from Ashmore Reef on 11 November 2001 until the arrival of HMAS Tobruk at Christmas Island on 14 November 2001, required by s 189(2) and 196 of the Migration Act?
136 The defendants contend that unless these questions are answered, the answers to questions 2.1 and 2.2 are unlikely to assist in the resolution of the proceeding because those answers will not substantially resolve the question whether the detention of the plaintiff when he was taken from Ashmore Reef to Christmas Island was lawful.
137 The difficulty, however, is that there is no agreed fact and no evidence of any officer of the first defendant holding a suspicion, reasonable or otherwise.
138 The defendants contend that reasonable suspicion is inevitable as the agreed facts record that the plaintiff left Afghanistan with the intention of travelling to Australia; the vessel on which the plaintiff travelled from Indonesia towards the Territory of Ashmore and Cartier Islands was an Indonesian coastal vessel; in addition to the plaintiff, there were 161 other asylum seekers onboard the vessel; and the plaintiff did not hold a visa under the Migration Act.
139 There can be little doubt on those facts (in the absence of evidence to the contrary or evidence which might counterbalance those facts) that there would have been a reasonable basis for the relevant suspicion to be held by any officer of the first defendant. The position, however, is that the defendants have adduced no evidence that any such officer held such a suspicion.
140 I was taken to a deal of analysis by the High Court as to what may constitute suspicion or reasonable suspicion but none of this authority, in my view, overcomes the difficulty that there is no actual evidence of an officer holding suspicion: George v Rockett (1990) 170 CLR 104 at 115, Ruddock v Taylor (2005) 222 CLR 612 at [27]). It would have been open to the defendants to seek to adduce such evidence but rather than do so or produce any record which might establish that an officer actually held a suspicion the defendants have invited the Court to infer that a suspicion must have been held.
141 I do not take Ruddock v Taylor 222 CLR 612 as being authority for the defendants’ submission that an inference of knowledge or suspicion can be drawn in the circumstances of this case. In Ruddock v Taylor the Court was addressing a situation in which there was an issue as to whether cancellation of Mr Taylor’s visa was valid in light of his long-term residency in Australia. It was agreed that the cancellations were at the relevant time unauthorised but equally, it was agreed that the visa could have been lawfully cancelled at the time of the hearing before the High Court. The question was whether he had been falsely imprisoned following the cancellation of his visa. The distinction in Ruddock v Taylor was that there had been evidence before the primary judge from the officers who detained Mr Taylor as to the inquiries they had undertaken (at [49]-[50], [93]-[96]). The difference in that case was that while McHugh J dissented partly on the basis that the trial judge made no findings as to the state of mind of either of the officers, the majority was prepared to infer from the existence of the evidence and the calling of the officers and the inquiries that they made that there was the necessary suspicion. The question for the High Court was whether grounds for a reasonable suspicion could include grounds which were technically incorrect at law. I do not consider that the passages relied upon by the defendants in Ruddock v Taylor (at [50]) fill the gaps as to the absence of any comparable evidence in the present situation. Nor was there any issue in that case to the fact that officers had held a suspicion. The issue in Ruddock v Taylor was whether the suspicion could still be reasonable if founded on a mistake of law or fact.
142 I am unable to accept, however likely that it may be, that it is open to the Court to speculate that a suspicion was held. The difficulty I repeat is not with the reasonableness of a suspicion being held but the establishment that any suspicion was held.
143 I accept the submission of counsel for the plaintiff that where the parties do not agree that a particular question should be determined as a preliminary or separate question, the onus is on the party seeking separate determination to justify a departure from the usual procedure. In my view for the reasons stated, there is an absence of evidence as to either the relevant knowledge or suspicion of an officer of the first defendant and accordingly the defendants have not discharged the onus of satisfying the Court that there is a proper basis, let alone a useful basis for determining questions NM-1 and NM-2 as preliminary questions.
Christmas Island – IGOC Act
144 Question 3 is as follows:
3. If the answer to Question 1.1. is ‘yes’, did the Plaintiff leave Australia for the purposes of s 6A of the IGOC Act when the Plaintiff was taken from Ashmore Reef on 11 November 2001, arriving in Christmas Island on 14 November 2001?
145 As I have concluded that the answer to question 1.1 is ‘no’, question 3 must also be answered ‘no’ (as the plaintiff did not enter Australia within the meaning of the IGOC Act).
146 However, I will examine the question further for what I trust will be completeness.
147 As to this question, the plaintiff claims and the defendants deny that the plaintiff was removed from Australia for the purposes of s 6A of the IGOC Act when he passed through international waters lying between the Ashmore and Cartier Islands and Christmas Island. The fact that the plaintiff passed through international waters is not in dispute.
148 Section 6A of the IGOC Act provides as follows:
6A Non-citizen child not to leave Australia without consent
(1) A non-citizen child shall not leave Australia except with the consent in writing of the Minister.
(2) The Minister shall not refuse to grant any such consent unless he or she is satisfied that the granting of the consent would be prejudicial to the interests of the non-citizen child.
(3) A person shall not aid, abet, counsel or procure a non-citizen child to leave Australia contrary to the provisions of this section.
Penalty: Two hundred dollars or imprisonment for six months.
(4) This section shall not affect the operation of any other law regulating the departure of persons from Australia.
149 The plaintiff’s contention is that if the plaintiff entered Australia for the purposes of the IGOC Act and if ‘leave Australia’ has its ordinary meaning, the plaintiff left Australia for the purposes of s 6A on entering international waters by leaving the coastal sea surrounding the Ashmore and Cartier Islands aboard the ‘HMAS Tobruk’ on route to Christmas Island between 11 and 14 November 2001.
150 The defendants, however, make the point that (not only had the plaintiff not entered Australia) but that the plaintiff would equally have passed through international waters to get from Ashmore Reef to the Australian mainland. However, the defendants contend that if the plaintiff’s submission is correct, and the plaintiff did enter or arrive in Australia for the purposes of the IGOC Act, that in circumstances where the start and end point of the plaintiff’s journey was within Australia and when the plaintiff was at all times in the company of officers and agents of the defendants onboard an Australian vessel (the HMAS Tobruk), the plaintiff should not be found to have ‘left Australia’ simply because his journey passed through international waters. The short point is that he did not go anywhere else. He did not travel to any other country or Territory.
151 The defendants contend that there was no reason Parliament would have intended that the Minister’s consent should be necessary for a non‑citizen child’s journey between different parts of Australia simply because the journey passes either through international waters or international airspace.
152 In my view the defendants’ contention is correct. As stated, I do not consider that question 3 arises because the plaintiff had not entered Australia but if the answer I have reached as to the first question is wrong, I do not consider that the plaintiff left Australia for the purposes of s 6A of the IGOC Act.
153 Question 4 asks if the answer to question 3 is ‘yes’ was the consent in writing of the Minister under s 6A of the IGOC Act was required. In light of the answers to question 3, this question does not fall for consideration, however, if question 3 had been answered ‘yes’, then the consent in writing of the second defendant, the Minister would have been required under s 6A(1) of the IGOC Act.
Christmas Island - Migration Act
154 Section 80 of the Migration Act provides as follows:
80 Certain persons taken not to leave Australia
A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:
(a) does not go (other than for transit purposes) to a foreign country; and
(b) remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and
(c) is outside the migration zone for no longer than the prescribed period.
155 The plaintiff makes the point that the defendants have declined to agree that the Minister’s consent has not been given for a departure from Australia. Section 80 appears in subdivision AG dealing with other provisions about visas. That is part of Div 3 dealing with ‘visas for non‑citizens’. In turn, that is contained in Pt 2 of the Migration Act ‘control of arrival and presence of non‑citizens’.
156 The plaintiff contends there is no basis on which it would be legitimate to extrapolate and apply the provisions of s 80 of the Migration Act to the provisions of either s 6A(1) or s 6A(4) of the IGOC Act in relation to the plaintiff ‘leaving Australia’ in the circumstances under consideration or to justify his removal from Australia, absent provisions in the Migration Act justifying that course. The plaintiff contends that s 80 is intended to deal with the circumstance such as where an alien tourist arriving in Australia embarks upon a cruise leaving Australia for, say, the pacific islands and returning to Australia. The benefit conferred on by s 80 is that such a tourist would still be entitled to the benefit of a visa granted on his or her first arrival to Australia.
157 Further, it is contended that s 6A(4) of the IGOC Act precludes any reliance on s 80 in specifying that the section shall not affect the operation of any other law regulating the departure of persons from Australia. In light of the other conclusions I have reached concerning the questions of whether the plaintiff arrived or arrived in or departed from Australia at the times relevant to the Minister’s consent being given, determination of whether or not s 80 of the Migration Act has any relevance does not need to be decided.
158 Question 4 does not fall for consideration as the plaintiff had not entered Australia on entry to the coastal sea adjacent to the Territory of Ashmore and Cartier Islands and did not, in my view, leave Australia.
Christmas Island – Further Question
159 Question 5 is as follows:
5. When the Plaintiff arrived at Christmas Island on 14 November 2001:
5.1. did the Plaintiff “enter Australia” within the meaning of s 4AAA(1)(b) of the IGOC Act?
5.2. did the Plaintiff “enter Australia” within the meaning of s 5 of the Migration Act?
5.3. did the Plaintiff become an “offshore entry person” as defined in s 5 of the Migration Act?
160 Shortly stated, the parties are agreed that questions 5.1 and 5.2 should each be answered ‘yes’ but the plaintiff now contends that question 5.3 is inappropriate to answer but if it is to be answered it should be answered ‘no’ whereas the defendants contend that the answer to question 5.3 is ‘yes’.
161 The analysis of the issues involved in answering question 5 raise again the plaintiff’s argument as to the circumstances of what he contends was effectively forced entry into Australia. The plaintiff says that a forced entry is not an entry into Australia for the purposes of s 5 of the Migration Act in order to render the plaintiff an ‘offshore entry person’.
162 On the face of the matter, there are two limbs to this, however, because the plaintiff’s contention is that it is necessary to consider the circumstances in which he arrived, that is to say, both after having been forcibly restrained and secondly, as he contends, removed from Australia in breach of the provisions of the IGOC Act. I have concluded that the plaintiff had not been removed from Australia in breach of the provisions of the IGOC Act as he had never entered Australia. Therefore, the second limb of this aspect of the matter does not fall for consideration.
163 The contention of the plaintiff is that if both of the limbs are satisfied then s 5(1) has to be read down to exclude a person brought to Australia unlawfully and/or involuntarily.
164 The plaintiff has not, in my view, established any basis for a contention that he was brought to Australia unlawfully. The plaintiff has established that he was brought to Christmas Island involuntarily. After being informed of the proposed transfer from the Arnhem Bay to HMAS Tobruk for the purpose of being transferred to Christmas Island the plaintiff indicated to the Executive Officer of the HMAS Tobruk that he did not wish to go to Christmas Island and that he wanted to go to the Australian mainland. On the same day as so informing the Executive Officer, the plaintiff refused to disembark from the Arnhem Bay so that officers of the first defendant placed him in plastic flexi-cuffs and transferred him to the HMAS Tobruk.
165 Although the plaintiff disembarked at Christmas Island on 14 November 2001, it is reasonable to infer that having made it clear that he did not wish to go to Christmas Island but rather wanted to be taken to the Australian mainland, that his being taken in plastic flexi-cuffs onto the HMAS Tobruk and to Christmas Island was involuntary.
166 The plaintiff contends that where entry to Australia is involuntary, leading to an indefinite detention, it is an entry that should be excluded from ‘an entry to Australia’ for the purposes of s 5 of the Migration Act.
167 Question 5.1 is concerned with entry into Australia within the meaning of s 4AAA(1)(b) of the IGOC Act. Section 17 of the AIA directs that ‘Australia’ in the IGOC Act includes the Territory of Christmas Island. It is common ground that by virtue of that definition for the purpose of that Act, the plaintiff entered Australia. However, the position under the Migration Act raises different considerations. In order to decide whether the plaintiff ‘entered Australia’ for the purposes of s 5 of the Migration Act, the critical question is whether he entered the ‘migration zone’. Again, the parties appear to be agreed on the answer to this question.
168 In my view, the plaintiff did ‘enter Australia’ for the purpose of s 5 of the Migration Act when the HMAS Tobruk first entered both the territorial waters of Christmas Island and the ‘proclaimed port’ at Christmas Island (by reason of the combined effect of the definitions of migration zone in s 5(1), ‘Territory’ in the same subsection, s 7 of the Migration Act and the definition of ‘port’ being a proclaimed port as defined in s 5(1) of the Migration Act). Accordingly, entry into Australia means entry into the migration zone which relevantly includes sea within the limits of a Territory that has a port. Such a Territory is Christmas Island and it does have a port. The port has been duly proclaimed pursuant to s 5(5)(a) of the Migration Act. While entry into the seas would have been the first entry into Australia it is perhaps more obvious that the plaintiff clearly entered the migration zone when he set foot onto land at Christmas Island.
169 The debate between the parties really centres around the circumstances of the plaintiff’s arrival. The position contended for by the defendants is uncomplicated. It is that because the plaintiff entered Australia at Christmas Island and because he did not then hold a visa (meaning that he was, pursuant to s 14 of the Migration Act, an ‘unlawful non‑citizen’), he thereby became an ‘offshore entry person’.
170 The contention for the plaintiff is that the definition of ‘enter Australia’ must be read down so that it does not apply to a person who is brought to Australia involuntarily. It seems to me, once again, that the difficulty with that argument is that it is quite clear from the agreed facts that the plaintiff always intended to enter Australia and did not have the necessary visa. It might be a more difficult question which I do not presently need to answer if a person arrived in Australia on a totally involuntarily basis such as by a yacht beached on Australian shores in a storm or in a case of kidnapping. None of those hypothetical situations presently applies as the plaintiff’s sole intention had been to enter Australia albeit that he wished to enter Australia at the mainland.
171 I am unaware of and counsel did not point to any authority which suggests in circumstances similar to those of the plaintiff, the definition of ‘enter Australia’ should be read down. It appears to me that I am bound by the plain wording of the definitions in the Migration Act which focus on the simple fact of entry and the person’s status at the time of entry rather than on the circumstances in which or the means by which the person entered Australia.
172 The defendants’ further argument in response to the plaintiff’s submission is that a reading down would create a category of non‑citizen who could reside in and live around Australia free from the provisions of the Migration Act that apply to all other non‑citizens. That would follow because if a person who is brought to Australia involuntarily does not ‘enter Australia’, such a person would not be in the migration zone. It would follow therefore that such a person would be neither a lawful non‑citizen nor an unlawful non‑citizen for the purpose of s 13 and s 14 of the Migration Act. Given that the Migration Act is highly prescriptive legislation which requires all non‑citizens in Australia to hold a visa, an outcome of the nature suggested for the plaintiff would be unexpected.
173 From a practical perspective in viewing the legislation as a whole, the visa process permits Australia to conduct a range of character, health and other checks in relation to non‑citizens before they are permitted to reside in the country. The outcome contended for by the plaintiff would preclude this possibility. It would be an outcome which would not only depart from the literal words but also from the purpose in the scheme of the Migration Act.
174 It is unnecessary for me to decide whether such a construction is open for the reason that the agreed facts make it clear that the plaintiff at all times wished to travel to Australia. The fact that he arrived in Australia at a location other than that at which he wished to arrive (Christmas Island rather than the mainland) in my view takes him out of any exceptional case which might theoretically justify any reading down of ‘enter Australia’ in circumstances which are involuntary.
175 It follows, in my view, that the answer to each of the three sub-questions in question 5 is ‘yes’. No additional fact needs to be established for that question to be so answered.
New Proposed Question - Migration Act – Detention
176 The amended motion of the defendants seeks to have answered the following additional question:
NM-3 Was the Plaintiff’s detention on Christmas Island between 14 November 2001 and 28 December 2001 authorised and/or required by ss 189(2), 189(3) and/or 196 of the Migration Act?
177 The plaintiff opposes the question being put. I agree with the plaintiff.
178 I consider the question cannot be put for the same reasons as I consider that questions NM-1 and NM-2 cannot be put. Shortly stated, there is no evidence of any officer who knew or reasonably suspected the matters set out in s 189(3) of the Migration Act. It may well be the case, as contended for the defendants, that on the facts any officer on Christmas Island being an excised offshore place could not have failed to hold the relevant suspicion. It may however be the case that no such officer held the suspicion. One simply does not know. It follows that while the defendants contend that the answer to question NM‑3 should be ‘yes’, I am unwilling to treat question NM-3 as being a question which may be put as a preliminary question.
Christmas Island to Nauru, via Perth – IGOC Act and Migration Act
179 Question 6 is in the following terms:
6. When the Plaintiff was taken from Christmas Island to Perth, en route to Nauru, on 28 December 2001:
6.1. did the Plaintiff leave Australia for the purposes of s 6A of the IGOC Act?
6.2. did the Plaintiff cease to be an “offshore entry person” as defined in s 5 of the Migration Act, if the Plaintiff was such a person when he left Christmas Island?
180 In light of the answers proposed by the respective parties to the previous questions, it will not be surprising that the plaintiff contends that the answers to questions 6.1 and 6.2 should be ‘yes’, whereas the defendants contend that the answers are ‘no’.
181 Again, for the purpose of question 6.1, the plaintiff relies on the argument that he passed through international airspace. For the same reasons as given in relation to the answer to question 5.1, in my view, the plaintiff did not leave Australia.
182 In relation to question 6.2, the plaintiff contends that if the answer to question 5.3 is ‘no’, the question does not arise. However, I have answered question 5.3 in the affirmative so the question does arise. It raises again the question of whether the plaintiff left Australia for the purposes of the Migration Act (as distinct from for the purposes of the IGOC Act). The plaintiff contends that if the plaintiff left Australia, what is required is to determine his status when entering Australia in the airspace surrounding Perth.
183 The argument for the plaintiff is that s 15B(4)(ii) of the AIA provides in relation to the application of Acts in the coastal sea surrounding a Territory that, except so far as the contrary intention appears, the provisions of every Act apply to the airspace over the coastal sea. Accordingly, the plaintiff contends that the question is whether he entered Australia for the first time for the purposes of the Migration Act when he entered the mainland migration zone in Perth. Even if, which the plaintiff does not concede, he entered Christmas Island as an ‘offshore entry person’, the plaintiff argues that his entry at Perth was not that of an ‘offshore entry person’ because he had not on that occasion ‘entered Australia at an excised offshore place after the excision time for that offshore place’ within the meaning of s 5(1) of the Migration Act.
184 For the purpose of s 5(1) of the Migration Act the definition of ‘offshore entry person’ is determined by the place at which that person ‘entered Australia’. There is nothing in that definition in my view which suggests that the status as an offshore entry person depends on the person remaining in an ‘excised offshore place’. The structure of the Migration Act would suggest otherwise. For example, s 46A(1) prevents an offshore entry person from making a valid application for a visa when the person is ‘in Australia’ unless permitted by the Minister. Given, once again, the highly prescriptive nature of the Migration Act, it does not appear to accord with the apparent Parliamentary intention that a person would cease to be an ‘offshore entry person’ merely by flying through international airspace between an ‘excised offshore place’ and mainland Australia. If that were so, it would seem that there would be little or no point in establishing ‘excised offshore places’.
185 Certainly there appears no basis on which it could be inferred that simply by entry into international airspace the status as an offshore entry person suddenly ceases. There is no support within the provisions of the Migration Act for a conclusion to that effect.
186 A similar argument was rejected by French J (as his Honour then was) in relation to the definition of a ‘transitory person’ which is relevantly similar to ‘offshore entry person’ in Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186.
187 There may be any number of reasons to transport a person through international airspace or waters from part of Australia to another such as to administer medical assistance to such a person or to attempt to secure that person’s cooperation in giving evidence in proceedings or inquiries connected with the circumstances of the person’s arrival in Australia. For such transportation to create the effect of altering the person’s status as an offshore entry person would render the Migration Act unworkable. Such an intention cannot be discerned within the provisions of the Migration Act or any secondary materials.
188 It follows that the answer to each of the sub-questions in question 6 should be ‘no’.
Nauru Declaration Challenge – Precluded?
189 Question 7 is in the following terms:
7. Is the Plaintiff precluded from challenging the validity of the Second Defendant’s declaration of Nauru under s 198A(3) of the Migration Act by reason of his application pursuant to s 198C of that Act which led to him being granted a temporary protection visa on 25 February 2004?
190 It is common ground that on 2 October 2001 the second defendant made a declaration under s 198A(3) of the Migration Act in respect of the Republic of Nauru. The plaintiff has challenged the validity of that declaration. It is also accepted that the plaintiff applied for determination of his refugee status by the Tribunal on 29 September 2003. The Tribunal conducted a hearing presumably after notifying the Secretary of the second defendant’s Department of the application in accordance with the provisions of s 418(1) of the Migration Act. On 18 December 2003 the Tribunal determined that the plaintiff was a refugee within the provisions of the Convention. The second defendant’s successor as Minister granted him a protection visa on 25 February 2004.
191 The defendants have contended that the plaintiff is by reason of his application to the Tribunal which led to the grant to him of a protection visa, ‘precluded’ from attacking the validity of the second defendant’s declaration in respect of the Republic of Nauru pursuant to s 198A(3) of the Migration Act and for making any claims which depend on the proposition that the declaration was invalid.
192 The plaintiff complains that no particulars of the basis of the preclusion have been provided and that the pleadings only assert that the plaintiff is precluded from attacking the validity of the declaration in respect of Nauru from advancing claims based on its invalidity. The plaintiff points out that the preclusion pleading does not prevent the plaintiff in any way from arguing, as he does now, that he was never an ‘offshore entry person’ and accordingly that the plaintiff was never subject to the provisions of s 198A(1) of the Migration Act.
193 The plaintiff contends therefore that if it be determined that he did not become an ‘offshore entry person’ on entry to Christmas Island or that he ceased to be an ‘offshore entry person’ on the circumstances of his entry to Perth, the question does not arise.
194 In any event the plaintiff argues that it was open to the second defendant’s Department on receipt of notice of the plaintiff’s application to the Tribunal to draw to the attention of the Tribunal the preclusion argument which is now advanced. Had that occurred, the Tribunal could have put the plaintiff to an election. The plaintiff contends that having failed to adopt that course the defendants cannot now be heard to complain and to argue that the plaintiff is precluded from challenging the validity of the second defendant’s declaration (Ward v Western Australia (1995) 40 ALD 250).
195 The plaintiff points to the limited nature of the pleading advanced by the defendants which was to the effect that the plaintiff could only apply to the Tribunal ‘if the plaintiff was in fact and in law a transitory person at all relevant times’ and by reason of his application which led to the grant of a temporary protection visa ‘by the second defendant’s successor as Minister’, the plaintiff is ‘precluded’ from attacking the validity of the declaration, and from ‘making any claims which depend on the proposition that the declaration was invalid, with the result that he would not have been taken to another country under s 198A of the Migration Act’. In the absence of any particulars of the preclusion he says he is left to guess whether this is by reason of estoppel, waiver, election, waiver by election of some other combination of these notwithstanding the requirements of O 11 r 10 FCR which requires that an estoppel must specifically be pleaded setting out the facts relied upon: Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563 at 571 per Gibbs J.
196 Nothing is pleaded as to the knowledge of the plaintiff actual or constructive at the time he applied to the Tribunal and there is no evidence or agreed facts in relation to that issue.
197 The defendants however contend that on the agreed facts the process that the plaintiff invoked under s 198C of the Migration Act was available to him only if a valid declaration had been made in relation to Nauru under s 198A(3). It is contended that by invoking s 198C, the plaintiff therefore accepted a benefit on the basis that the declaration had been made.
198 For this argument, the defendants point to the relevant provisions of s 198C of the Migration Act which provide:
198C Certain transitory persons entitled to assessment of refugee status
(1) If a transitory person is brought to Australia under section 198B and remains in Australia for a continuous period of 6 months, then the person is entitled to make a request under this section.
(2) The person may make a request to the Refugee Review Tribunal for an assessment of whether the person is covered by the definition of refugee in Article 1A of the Refugees Convention ...
(8) If the Tribunal decides that the person is covered by the definition of refugee in Article 1A of the Refugees Convention …:
(a) the Minister must determine a class of visa in relation to the person for the purposes of this subsection; and
(b) if the person later makes an application for a visa of that class, then section 46B does not apply to the application.
…
199 From these provisions the defendants argue that only a ‘transitory person’ may make a request to the Tribunal for an assessment of that person’s refugee status. ‘Transitory person’ is an expression defined in s 5(1) of the Migration Act relevantly as being ‘an offshore entry person who is taken to another country under s 198A’. Section 198A provides as follows:
198A Offshore entry person may be taken to a declared country
(1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection; and
(b) in writing, revoke a declaration made under paragraph (a).
(4) An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).
(5) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
200 The defendants’ contention is that a person can be ‘taken to another country under s 198A’ only if a declaration is in force in respect to that country under s 198A(3).
201 By now seeking to impugn the validity of the declaration that Nauru met the criteria prescribed in s 198A(3), the plaintiff necessarily attacks the proposition that he was taken to ‘another country under section 198A’. He therefore attacks the proposition that he was a ‘transitory person’.
202 It will be recalled that the plaintiff submits that the problem is avoided by the plaintiff’s argument that he was never an offshore entry person. However, that submission as with the direct attack on the declaration under s 198A(3) would have the additional consequence, were it correct, that the plaintiff was not a ‘transitory person’.
203 The defendants rely on a number of legal principles to support their contention that the plaintiff is precluded from attacking the declaration. One of those principles is found in the doctrine of approbation and reprobation or inconsistency of conduct as described by Lord Russell in Evans v Bartlam [1937] AC 473 at 483 or in more modern terms as discussed by the High Court in Commonwealth v Verwayen (1991) 170 CLR 394. In the latter case the following passage appears (at 421) in the judgment of Brennan J observing that the doctrine of approbation and reprobation:
precludes a person who has exercised a right from exercising another right which is alternative to and inconsistent with the right he exercised as, e.g., where a person “having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit”: Evans v. Bartlam [1937] 2 All E.R., at p. 652., per Lord Russell of Killowen.
(More recently again, the relationship between the doctrine of approbation and reprobation and the doctrine of election was considered in Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 251 ALR 322 where Gummow, Hayne and Kiefel JJ (with whom Heydon J relevantly agreed) said (at [56]-[58]) (case citations omitted):
[56] In this court an intentional act, done with knowledge, whereby a person abandons a right by acting in a manner inconsistent with that right has been described as the “waiver” of that right. But as later demonstrated, many such cases are applications of the doctrine of election between inconsistent rights. The same may be said of election between inconsistent remedies such as damages and an account of profits.
[57] It should be noted that the equitable doctrine of election has a distinct character and application, and, as explained by Viscount Maugham in Lissenden v CAV Bosch Ltd has no connection with the common law principle putting a party to an election between alternative rights or remedies. Equity fastens upon the conscience of a party taking under a deed or will and requires the party to choose between taking the benefit and accepting the burden of any stipulated conditions or rejecting the benefit. Viscount Maugham explained in this connection that the phrase “you may not both approbate and reprobate”, which as derived from the civil law and “from the northern side of the Tweed”, when used in English law was but a synonym for the equitable doctrine of election.
[58] The doctrine of election is long established at common law. As Jordan CJ pointed out in O’Connor, “[s]ince the days of the Year Books it has been recognised that you cannot have the egg and the halfpenny too”. If, then, something happens which gives rise to the existence of two alternative rights, and one of those rights is satisfied, the other is no longer available. … (emphasis added)
204 In this case, the defendants seize on the words ‘If, then, something happens which gives rise to the existence of two alternative rights, and one of those rights is satisfied, the other is no longer available …’.
205 As a transitory person who had been in Australia for more than six months, the plaintiff was entitled to, and did, accept the benefit granted by s 198C of the Migration Act, namely, the right to make a request to the Tribunal for an assessment as to whether he was a refugee. Following notification of the Tribunal’s decision, the second defendant’s successor as Minister granted the plaintiff a temporary protection visa. That was the process by which the plaintiff was ultimately able to remain in Australia.
206 The distinction between the positions advanced by the parties appears to boil down to the plaintiff’s submission that there is a requirement that the defendants ‘put the plaintiff to an election’.
207 For present purposes, the question is whether, even if it be assumed that the plaintiff had no idea that his application to the Tribunal constituted an ‘election’ of any description, that he should still be bound by such an election. I accept for present purposes the plaintiff’s submission that there is no evidence that the plaintiff was so aware.
208 It appears to me, however, that the doctrine of election absorbed the doctrine of approbation and reprobation. It is evident from the passage in Agricultural and Rural Finance 251 ALR 322 at [56] that (as explained by Viscount Maugham) the equitable doctrine of election has a distinct character and application and has no connection with the common law principle of putting a party to an election between alternative rights or remedies.
209 The plaintiff argues that the facts and circumstances in the cases relied on by the defendants bear no resemblance to the current circumstances. To the contrary, he argues that the closest parallel is Hollis v Vabu (2001) 207 CLR 21 where it was held (at [31]) that a concession in the Court of Appeal did not bind a party on appeal in the High Court. The plaintiff relies on a contract case of Peyman v Lanjani [1985] Ch 457 in which Slade LJ held that where a party to a contract was faced with a choice whether to affirm or rescind the contract, in order to render his election irrevocable he had to have knowledge not only of the facts which gave rise to the election but also of the right of election itself. A person could not be treated as having elected to affirm a contract unless he had unequivocally demonstrated to the other party that he intended to proceed with it. The issue of election was a question of fact to be decided on the evidence.
210 Although question 7 had been agreed between the parties to be an agreed preliminary question, the plaintiff now contends that the absence of evidence or agreed facts as to the plaintiff’s knowledge either of the relevant facts including the pleadings in the present case or of his rights means that the defendants should not be permitted to circumvent the deficiencies of the pleading by way of a preliminary question.
211 In my view the doctrine of election as discussed in Agricultural and Rural Finance 251 ALR 322 does not require the putting of a party to an election and nor does it require that the intentional act be done with knowledge as to the legal consequences of proceeding with that intentional act.
212 The plaintiff originally agreed that this issue could be determined as a preliminary question and, in my view, was right to do so. Although the conclusion I have reached in the next question means that the plaintiff is not prejudiced by an answer in the affirmative to this question, I conclude that the question should be answered in the affirmative. The preliminary question should be answered ‘yes’.
213 Question 8 is as follows:
8. If the answer to Question 7 is no, does any of the criteria in s 198A(3) of the Migration Act constitute a jurisdictional fact, the existence of which is relevant to the validity of the Second Defendant's declaration of Nauru under s 198A(3) of the Migration Act?
214 Question 8 in my view does not fall to be answered because the answer to question 7 is ‘yes’. Nevertheless, I will go on to consider the argument.
215 It is contended for the plaintiff that the existence of each of the criteria set out in s 198A of the Migration Act is a ‘jurisdictional fact’, proof of the existence of which is essential to the valid exercise of the jurisdiction conferred by s 198A of the Migration Act upon the Minister. The defendants contend that it is not open to go behind the Minister’s declaration or that the making of the declaration is not reviewable. The plaintiff contends that each of the criteria set out in the section is a ‘jurisdictional fact’, the existence of which is relevant to the validity of the second defendant’s declaration.
216 Section 198A provides as follows:
198A Offshore entry person may be taken to a declared country
(1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection; and
(b) in writing, revoke a declaration made under paragraph (a).
(4) An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).
(5) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
217 From the foregoing it is clear that the existence of a country in respect of which a declaration is in force is essential to the operation of the section. The plaintiff’s challenge to the validity of the declaration is that as a matter of objective fact, Nauru did not satisfy the criteria specified in the various sub-paragraphs of s 198A(3)(a).
218 For the defendants it is contended that all that is required for a valid exercise of the power under s 198A(3) is that the Minister ‘declare in writing’ that a specified country meets the four identified criteria. No preconditions on the exercise of the power are imposed. In particular, no objective existence of any of the criteria are set out as preconditions and on the face of the subsection the power is not even conditioned on the Minister being ‘satisfied’ that the criteria are met. The defendants’ jurisdictional argument is that even if the plaintiff could make out his allegation that Nauru did not at relevant times objectively satisfy one or more of the four criteria, that would not lead to the invalidity of the declaration. That is so because in relation to Nauru it is accepted and there can be no doubt that the necessary declaration in writing was made and was in existence at the relevant time.
219 It is relevant to distinguish between a submission that ministerial decisions are not reviewable on the one hand (a submission not made for the defendants) and on the other hand, a submission that as a matter of construction there are no jurisdictional facts within in s 198A(3). Earlier in this proceeding (in P1/2003 [2003] FCA 1029 at [49]-[50]), French J (as his Honour then was) said:
49 So far as the ministerial declaration under s 198A(3) is concerned, the form of that subsection does not in terms condition the power to make a declaration upon satisfaction of the standards which are its subject matter. The form of the section suggests a legislative intention that the subject matter of the declaration is for ministerial judgment. It does not appear to provide a basis upon which a court could determine whether the standards to which it refers are met. Their very character is evaluative and polycentric and not readily amenable to judicial review. That is not to say that such a declaration might not be invalid if a case of bad faith or jurisdictional error could be made out. In my opinion, however, the argument against the validity of the declaration faces a significant threshold difficulty. It does not support the view that there is a seriously arguable case.
50 The balance of convenience in a practical sense may be said to favour the plaintiff, but the case against validity both as to the declaration and the legislation is, at this stage, so insubstantial that it would not justify making an order to restrain the removal of the plaintiff from Australia.
220 Further, in P1/2003 [2003] FCA 1370 at [14], Nicholson J refused to extend time to permit an appeal from the judgment of French J (as his Honour then was) after referring to the above reasoning with approval and observing that the appeal would have insufficient prospects of success.
221 There is precedent for the correct approach in relation to the plaintiff’s contention. There is no bad faith or jurisdictional error challenge made in relation to the declaration. The Full Court in Eremin v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 69 considered a challenge to a decision to refuse to grant an extended eligibility entry permit. The circumstances in that case were that the regulations provided that the criteria for the entry permit were to operate by reference to the specification of various states of affairs identified by the Minister in a notice published in the Gazette. The criteria in turn were taken from the Migration Regulations. Amongst the arguments advanced in Eremin was the submission that the relevant regulation was beyond power because the question whether any of the events or circumstances stipulated had actually existed was one of fact. The Full Court constituted by Lockhart, Gummow and Foster JJ held that as the regulation used terms such as ‘substantial’, ‘significant’ and ‘major’, questions could arise as to the state of affairs in other countries which involved issues very much of degree rather than of ‘indisputable fact’. The Court held the view that the resolution of such issues was conveniently reposed in the Minister.
222 Equally, as observed by Nicholson J in Plaintiff P1/2003 157 FCR 518 words in s 198A(3) such as ‘protection’, ‘access’, ‘effective’ and ‘relevant standards’ have a similar subjective content. However, his Honour went on to say that the issues could only be determined by proper argument and they were not rendered obviously futile by Eremin. However, in that particular decision of his Honour, what fell for consideration were the current arguments against a strike out standard. As Sackville J observed in Seven Network Ltd v News Ltd (No 4)(2005) 214 ALR 686, (at [14]):
It is only a very clear case indeed that will justify the summary intervention of the Court, since litigants are not to be deprived the right to submit genuine controversies for determination: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91‑2 per Dixon J. Accordingly, the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129-30 per Barwick CJ; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; 48 ALR 1 at 10 per curiam. A Full Court of this Court in Australian Building Industries Pty Ltd v Stramit Corp Ltd [1997] FCA 1318, approved the formulation of Millett J in Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965 as follows:
A plaintiff is entitled to pursue a claim in these courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of process of the court, it must be allowed to proceed to trial. [Emphasis added]
223 However, the appropriate standard in answering the present agreed preliminary questions is the conventional civil standard of balance of probabilities. As with Eremin, the criteria contained in s 198A(3) are not criteria which admit of answers by reference to indisputable fact. See also Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. Debates even about what evidence may be relevant in order to prove the existence or absence of such criteria would be substantial. It is improbable that Parliament would have intended that Australian courts should without clear legislative imprimatur make judgements with public effect about whether other countries meet relevant human rights standards. The criteria in s 198A(3)(a), in my view, are iconically the province of the Executive.
224 The broad ranging and subjective nature of the considerations involved in the criteria and the fact that opinions for and against could be so varied make it clear that the criteria do not set out straightforward objective standards.
225 It follows, in my view, that the criteria do not constitute jurisdictional facts. The answer to question 8 must be ‘no’.
226 Question 9 is as follows:
9. If the answer to Question 7 is ‘yes’ or the answer to Question 8 is no, is the declaration made by the Second Defendant on 2 October 2001, that the Republic of Nauru is a declared country under s 198A(3) of the Migration Act, invalid?
227 Question 9 falls to be answered because the answer reached in relation to question 7 is ‘yes’ and the answer reached in relation to question 8 is ‘no’. The question then is the validity of the declaration.
228 For the plaintiff it is now contended that it was inappropriate to answer this question. The plaintiff contends, although I have ruled to the contrary, that the answers to questions 7 and 8 should be ‘no’ and ‘yes’ respectively. The plaintiff contends (now) that question 9 should not be answered at this stage because additional evidence would be required in order to reach the answer.
229 Neither party advances extensive submissions in relation to question 9. Although the plaintiff contends that it is inappropriate to answer question 9, in my view, given that the answer to question 7 is ‘yes’ and the answer to question 8 is ‘no’, the answer to question 9 must also be ‘no’, that is to say, there is no basis upon which the validity is capable of challenge, no pleaded basis and no evidentiary basis on the agreed facts on which the declaration is open to challenge. Quite properly, of course, the plaintiff has not pleaded bad faith or Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) which if established may invite altogether different arguments.
230 The answer to question 9 is ‘no’.
231 Question 10 is in the following terms:
10. If the answer to Question 7 is ‘yes’ or the answer to Question 9 is no, did s 198A of the Migration Act authorise officers or agents of the First Defendant to take the Plaintiff from Christmas Island to Nauru, via Perth, on 28 and 29 December 2001?
232 It is now contended for the plaintiff that question 10 is inappropriate to answer.
233 As the plaintiff observes it is common ground that officers of the first defendant caused the plaintiff to be flown without his consent to Nauru via Perth. The plaintiff accepts that if he fails in the previous questions 7, 8 and 9 that question 10 would have to be ‘yes’. The defendants, of course, contend that the correct answer is ‘yes’.
234 The basis for the defendants’ contention is that s 198A(1) of the Migration Act empowered officers to take an offshore entry person from Australia to Nauru assuming that the Minister’s declaration was valid. By reason of s 198A(2), that power also included the power, whether within or outside Australia, to ‘place the person on a vehicle or vessel’. A vessel includes an aircraft pursuant to s 5(1) of the Migration Act. The fact that the aircraft was flown via a third point (Perth) does not provide a foundation for any conclusion that the plaintiff was not taken to a declared country within the meaning of s 198A(1).
235 It follows that question 10 should be answered ‘yes’.
The Relationship between s 198A of the Migration Act and the IGOC Act
236 Question 11 is in two parts with two sub-parts to the second part. It is in the following terms:
11. If the answer to Question 10 is ‘yes’:
11.1. was the consent in writing of the Second Defendant to the Plaintiff leaving Australia required pursuant to s 6A(1) of the IGOC Act?
11.2. did any (and if so which) of the following actions involve a breach of the Second Defendant's guardianship duties imposed by ss 6 and/or 6A of the IGOC Act:
(a) the Second Defendant’s decision that unaccompanied minors detained on Christmas Island as unlawful non-citizens, including the Plaintiff, be transferred from Christmas island to Nauru, as logistically required; or
(b) the taking of the Plaintiff from Christmas Island to Nauru on 28 and 29 December 2001?
237 The precondition for the posing of question 11 is established as the answer to question 10 is ‘yes’.
238 If question 11 is posed, the plaintiff says that question 11.1 should be answered ‘yes’, that is, that the consent was required. The defendants say the consent was not required. As to question 11.2, the plaintiff says that it is inappropriate to put those questions at this stage as they depend on further evidence being established.
239 In the plaintiff’s argument in relation to question 11.1, he relies again on leaving Australia by reason of leaving the airspace above the coastal sea surrounding Christmas Island. The plaintiff contends that for the purposes of the IGOC Act he entered Australia again upon entry to the airspace above the coastal sea surrounding the west coast of the mainland on route to Perth. The plaintiff contends that having re-entered Australia for the purpose of the IGOC Act on 28 or 29 December 2001, the consent in writing of the Minister was required before he could leave Australia voluntarily or be removed involuntarily.
240 Accordingly, the plaintiff’s submission requires an affirmative answer to question 6.1 which as I have already indicated, should be answered in the negative. Once it is accepted that the plaintiff was taken from Christmas Island to Nauru pursuant to s 198A, it necessarily follows that the consent in writing of the Minister was not required for the plaintiff to leave Australia. This is because the operation of s 6A(1) of the IGOC Act is limited by s 6A(4). The latter provides that the former does not limit ‘the operation of any other law regulating the departure of persons from Australia’. Accordingly, the express terms of s 6A demonstrate the consent in writing was not required.
241 For those reasons I would answer question 11.1 as ‘no’.
242 It follows for the same reasons that question 11.2 should also be answered in the negative. Section 6 of the IGOC Act must be read as being subject to s 198A of the Migration Act because s 6 is a general provision giving way to the specific terms of s 198A of the Migration Act. In WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190, Kirby J after assuming that the Minister had guardianship obligations to the applicant observed that the existence of those obligations did not alter the operation of the Migration Act because the general powers and obligations of the Minister under the IGOC Act had to be read subject to the specific provisions of the Migration Act.
243 A submission not dissimilar to that advanced in this proceeding was considered by the High Court. That submission was that under the IGOC Act the interests of the minor were paramount and therefore they should take precedence over the Minister’s statutory obligations under the Migration Act. Gleeson CJ, McHugh, Gummow and Heydon JJ concluded that any obligation of a Minister under a different enactment could have no effect on the construction of the Migration Act (at [42]). Consequently, the duty imposed by s 6 of the IGOC Act cannot be breached by an officer acting in accordance with the power (and obligation) conferred by s 198A of the Migration Act to take an ‘offshore entry person’ from Australia to a declared country. There is no reason to give the statutory language in s 198A a different operation for children rather than for adults. In the Migration Act the statutory language does not distinguish between adults and children. An ‘offshore entry person’ can clearly include a child.
244 The plaintiff stresses that s 6A(3) of the Migration Act provides that the removal of a child without consent is an offence under the provisions of the IGOC Act punishable by a fine or imprisonment. The plaintiff asserts that no reasonable Minister could have concluded that it was in the best interests of the plaintiff that he be removed from Australia to Nauru. As indicated, however, the general provisions of the IGOC Act have to give way to the specific powers and obligations contained under the Migration Act which are equally applicable to children. The question of what a reasonable guardian may consider as being in the best interests of the child do not, in my view, fall for consideration in the circumstances.
245 The answer to question 11.1 and questions 11.2 is ‘no’.
New Proposed Question - Detention in Nauru
246 The defendants seek to raise additional questions under question NM-4. Question NM-4 is in the following terms:
NM-4 In relation to the period from 29 December 2001 to 1 November 2002, when the Plaintiff was present in Nauru and his presence was authorised by, and subject to the conditions attached to the special purpose visas issued by the Principal Immigration Officer of Nauru pursuant to the Immigration Act 1999 (Nauru):
NM-4.1 Is the Plaintiff’s claim that he was falsely imprisoned in Nauru non-justiciable in this Court because it would infringe the act of state doctrine if the Court were to adjudicate on that claim?
NM-4.2 If the answer to Question NM-4.1 is no, did the conditions attached to each special purpose visa issued to the Plaintiff by the Principal Immigration Officer of Nauru pursuant to the Immigration Act 1999 (Nauru) subject the Plaintiff to “detention” for the purposes of the tort of false imprisonment?
NM-4.3 If the answer to Question NM-4.2 is ‘yes’, was any restraint imposed on the Plaintiff in order to enforce the conditions on each special purpose visa issued to the Plaintiff, lawful according to the law of Nauru?
247 The plaintiff has opposed the new questions being put. The plaintiff contends that the factual foundation for the three sub-questions to question NM-4 has not been established.
248 It is necessary to review the agreed facts and also the law in order to determine the appropriateness of considering the defendants’ proposed question and sub-questions and whether they should be treated as preliminary issues. First, a non‑citizen of Nauru who is in Nauru without a visa is liable to arrest under s 5(2) of the Nauru Immigration Act. (That is established on the agreed facts).
249 Secondly, it is agreed that on 7 January 2002 and again on 15 July 2002 the plaintiff was granted a special purpose visa by the Principal Immigration Officer of Nauru pursuant to the Nauru Immigration Act and the Immigration Regulations 2000 (Nauru) which authorised his entry and stay in Nauru on humanitarian grounds subject to four conditions. Again, these facts are agreed. The conditions are specified in the agreed facts and the agreed documents. One of those conditions provided that ‘residence in Nauru shall be restricted to sites designated by the Government of Nauru for the accommodation of asylum seekers’. That fact is also agreed. It is also an agreed fact that a condition was that ‘movement within Nauru shall be restricted to within the above-mentioned sites except with the consent of the Office of the President of Nauru’.
250 It is difficult to see what facts remain to be determined in order for this question to be put as a preliminary question. Because the plaintiff had been taken somewhat by surprise by the question being advanced at the hearing rather than being dealt with on any interlocutory basis, I allowed the plaintiff time to make further written submissions. The plaintiff’s primary submission is that the facts on which the question is based have not been proven. However it is not apparent from the plaintiff’s submissions what further facts need resolution. The plaintiff has not made further submissions to challenge the defendants’ substantive argument concerning the act of state doctrine.
251 In relation to that argument, the defendants press the Court to conclude that the matters set out in the agreed facts when considered in the light of the High Court’s judgment in Ruhani v Director of Police (No 2) (2005) 222 CLR 580 are sufficient to enable the Court to resolve the questions.
252 An allegation that a foreign sovereign state has acted unlawfully within its own territory will not be justiciable in an Australian court (Nygh and Davies, Conflict of Laws in Australia (7th ed, 2002) at p 157). See also Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40-41 and Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479.
253 The consequence of this rule (observed not only in Australia but in other countries, for example (Underhill v Hernandez (1897) 168 US 250at 252) is that it is not open to this Court to examine the role or authority of the President of Nauru, the Principal Immigration Officer of Nauru or any other Nauruan official acting on behalf of the sovereign state. The Acts of the Government of Nauru within Nauru are not open for examination by an Australian court regardless of who carried them out and regardless of whether or not they actually complied with the law of Nauru. The converse would be equally true. There may be more difficult questions where it is necessary to determine whether the act concerned was an ‘act of a state’ but there is little difficulty in answering that question in the present circumstances. As observed in Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354 by the Full Court, there may be exceptions to the act of state doctrine which is arguably part of international law. It will not be applicable in circumstances where the debate concerns chattels or where the validity of the ‘act of the state’ is only incidental to the issues in challenge. In that case, the Full Court concluded it had no jurisdiction to determine the validity of concessions granted by the Portuguese Government: see also Hussain Ali v Commonwealth [2004] VSC 6.
254 Nauru’s segregation of non‑citizens while refugee claims were being determined or pending their removal could not involve a clear violation of any international law. The right of any State to control who may enter its territory is firmly entrenched as an attribute of sovereignty subject, of course, to any obligations owed under international conventions (see Ruddock v Vadarlis (2001) 110 FCR 491 (at [192]-[193]) and Ruhani (No 2) 222 CLR 580 at [26]).
255 The defendants submit that the decisions by Nauru to grant visas, and the impositions and conditions on visas are acts of state. They are a manifestation of the exercise by Nauru of its control over the ability of persons to enter Nauru. By alleging that he was falsely imprisoned within the territory of Nauru, in circumstances where any restraints on his movement resulted from conditions imposed on the grant of permission to enter and remain in Nauru, the plaintiff is asking the Court to review the exercise of a central manifestation of Nauru’s sovereignty. The act of state doctrine prevents that from being done in an Australian court.
256 In my view, all the facts necessary to deal with question NM-4 as a preliminary question are established and the question should be answered ‘yes’.
257 Question NM-4.2 arises only if question NM-4.1 is answered ‘no’. As I have answered question NM4.1 ‘yes’, question NM-4.2 does not fall for consideration.
258 Question NM-4.3 falls for consideration only if question NM-4.2 is answered ‘yes’. Question NM-4.2 did not fall to be answered because question NM-4.1 was answered in the affirmative. Accordingly, I do not propose answering question NM-4.3.
Presumption Against Extraterritorial Effect of Legislation?
259 Question 12 is in the following terms:
12. Was the deployment of Australian Protective Services Officers in Nauru authorised under the provisions of the Australian Protective Service Act 1987 [APS Act]?
260 The plaintiff contends question 12 should be answered ‘no’ and the defendants contend that question 12 should be answered ‘yes’.
261 Although the APS Act was repealed in 2004 when the APS was reintegrated with the Australian Federal Police, it was in force at all times relevant to the present proceedings. It conferred wide powers on members of the APS including arrest (s 13 and s 21), the use of force in making an arrest (s 14), the search of an arrested person (s 16), the requirement that a person provide his or her name (s 18A), stopping and searching (s 18B), seizure of property found in the course of a search (s 18C).
262 Section 4 of the APS Act provided that the APS Act extended to every external Territory.
263 On 3 October 2001 which was the day after that on which the second defendant made the declaration in respect of Nauru, officials of the Attorney-General’s Department wrote to the Minister for Justice and Customs seeking the urgent execution of a proposed new direction on the functions of the APS. The request was made under the provisions of s 6(1) of the APS Act. It sought an extension of the powers of the APS allowing it to operate in a foreign country with a view to operating in Nauru and for a period of more than the 30 days which was allowed at that time. On 19 December 2001, the Minister made a direction granting the extension of the powers sought.
264 The plaintiff relies on the principle of statutory interpretation to the effect that legislation is presumed not to have an extraterritorial effect: Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363. The plaintiff’s argument is that the comity of nations requires that the legislature of one country is presumed not to deal with persons or matters the jurisdiction over which properly belongs to some other sovereign state: Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 at 423.
265 When the Minister’s amended direction of 19 December 2001 was published in the Gazette it provided for protective and custodial services and for ‘custodial services … whether in Australia or in a foreign country’. The plaintiff contends it could hardly have been within the contemplation of the legislature in the absence of clear and express words that the wide powers described could be lawfully exercised in relation to foreigners outside the Commonwealth and its Territories.
266 Counsel for the plaintiff did accept that the Commonwealth can pass Acts which may have extraterritorial effect. That this is so has recently been reinforced by the Full Court in Waller v Freehills (2009) 258 ALR 67 (at [44] to [63]). However, it was said that the issue was whether in fact it was implied in the APS Act that APS officers could operate overseas. The plaintiff submitted that the stated functions of those officers to which I have referred would require express words for them to operate overseas on a proper construction of s 4. The plaintiff contends that the maximexpressio unius est exclusio alterius is applicable. In other words, the fact that the operations overseas were not covered was indicated by the fact that it was found necessary to extend the Act to every external Territory. Shortly put, the plaintiff submitted that Parliament did not intend that the Act, in its operations, should extend to overseas activities of APS officers.
267 Section 6 of the APS Act provided at the relevant time:
Functions of Protective Service
(1) Subject to subsection (4), the functions of the Protective Service are to provide such protective and custodial services for or on behalf of the Commonwealth as the Minister, by notice in writing published in the Gazette, directs.
(2) Without limiting the generality of subsection (1), but subject to subsection (4), the functions of the Protective Service may include:
(a) the protection of property in which:
(i) the Commonwealth, a foreign country or an international organisation has an interest; or
(ii) an authority of the Commonwealth, of a foreign country or of an international organisation has an interest;
(ab) the protection of property in which a designated overseas mission has an interest;
(b) the protection of, and of members of the family and household of, persons holding office under the Commonwealth;
(c) the protection of internationally protected persons;
(d) the keeping of persons in custody under the Migration Act 1958; and
(e) functions incidental or conducive to a function referred to in paragraph (a), (ab), (b), (c) or (d).
(3) Without limiting the generality of paragraph (2)(a), the Commonwealth, a foreign country or an international organisation, or an authority of the Commonwealth, of a foreign country or of an international organisation, as the case requires, shall be taken, for the purposes of that paragraph, to have an interest in any property that it owns, occupies or uses or that is in its possession or under its control.
(3A) Without limiting the generality of paragraph (2)(ab), a designated overseas mission is taken, for the purposes of that paragraph, to have an interest in any property:
(a) that it owns, occupies or uses; or
(b) that is in its possession or under its control.
(4) The functions of the Protective Service do not include the provision of bodyguard services.
(5) In this section:
authority:
(a) in relation to the Commonwealth, means:
(i) a body, whether incorporated or unincorporated, established for a public purpose:
(A) by or under a law of the Commonwealth or a law of a Territory other than the Northern Territory; or
(B) by the Governor-General or a Minister;
(ii) an incorporated company in which the Commonwealth or a body described in subparagraph (i) has a controlling interest; or
(iii) any other agency or instrumentality of the Commonwealth;
(b) in relation to a foreign country, means:
(i) a body, whether incorporated or unincorporated, established for a public purpose:
(A) by or under a law of the foreign country;
(B) by the head of the foreign country in his or her public capacity; or
(C) by the executive government of the foreign country, including by a department or organ of the executive government of the foreign country;
(ii) an incorporated company in which the foreign country or a body described in subparagraph (i) has a controlling interest; or
(iii) any other agency or instrumentality of the foreign country; and
(c) in relation to an international organisation, includes an agency or instrumentality of the organisation.
designated overseas mission has the same meaning as in the Overseas Missions (Privileges and Immunities) Act 1995.
foreign country means any country outside Australia (whether or not an independent sovereign State), and includes a province, state, self-governing territory or other political sub-division (by whatever name known) of such a country.
international organisation has the same meaning as the term international organization in section 5A of the Diplomatic Privileges and Immunities Act 1967.
internationally protected person has the same meaning as in the Crimes (Internationally Protected Persons) Act 1976.
office under the Commonwealth includes:
(a) office as Governor-General;
(b) office as a Minister;
(c) office as a Senator or member of the House of Representatives;
(d) office as a Justice of the High Court;
(e) an office established by, or an appointment made under, a law of the Commonwealth or a law of a Territory other than the Northern Territory; or
(f) an appointment made by the Governor-General or a Minister otherwise than under such a law.
property means real and personal property of every description.
268 The direction made by the Minister for Justice and Customs on 19 December 2001 was to the following effect:
If a departmental head of the Commonwealth, or a person who is able to make binding arrangements on behalf of a foreign country or an international organisation or an authority of any of the above, so requests:
(a) a custodial service and all services reasonably related to the provision of a custodial service; and
(b) a service comprising the protection of property in which the Commonwealth, a foreign country or an international organisation or authority of any of them, has an interest;
whether in Australia or in a foreign country, and for a period determined by the Director in consultation with the person making the request. [Emphasis added]
269 There is a limitation on the functions of the APS under s 6(1). That limitation is that the ‘protective and custodial’ services it provides must be ‘for or on behalf of the Commonwealth’ of the kind directed by written notice published in the Gazette (and not bodyguard services).
270 The defendants contend that there is no reason why services provided ‘for or on behalf of the Commonwealth’ can only be provided within Australia. This submission has force, as the Commonwealth owns property in foreign countries. The provision of APS officers to protect Australian embassies or other Australian property overseas would fall within the ordinary meaning of the words in s 6(2)(a) of the APS Act. Provided that a direction was given under s 6(1), protection of such property overseas by the APS would fall within the meaning of s 6(2)(a) of the APS Act.
271 There appears to be no reason why services generally which are provided ‘for or on behalf of the Commonwealth’ can be provided only within Australia. The primary complaint of the plaintiff rests on the nature of the services which are authorised under the APS Act. On its face, this complaint carries with it an assumption that if the APS Act authorises the deployment of APS officers overseas ‘for or on behalf of the Commonwealth’ it would necessarily follow that all of the powers of APS officers would be exercised. An equally open alternative is that the Commonwealth may authorise APS officers to be deployed overseas even though it cannot confer coercive powers on those officers of a nature that would be recognised by another country if exercised within that country. Alternatively, such powers or similar powers could be conferred upon them by the laws of the country to which those officers are deployed.
272 The defendants take issue or at least question the plaintiff’s contention that there is a presumption that legislation may not have any extraterritorial effect. The defendants say that the cases relied upon by the plaintiff to support such an argument were decided at a time when the prevailing view was that colonial or state parliaments had limited power to make extraterritorial laws (see Jumbunna 6 CLR 309 at 363 and Macleod v Attorney-General (NSW) [1891] AC 455 at 458-459 in the Privy Council). While it is as a rule of international comity (subject to certain exceptions) that one country ordinarily would not legislate to penalise conduct in another, it has no relevant application in relation to s 6 of the APS Act. That section merely operates to authorise for the purposes of Australian law the deployment of APS officers to another country. It does not authorise the actions of arrest, use of force, search etc in the other country. While the other country, in this case Nauru, might authorise those actions, that is not by reason of application of Australian law.
273 If it were necessary to resolve the question of whether there was still a presumption that legislation does not have extraterritorial effect, it appears to me that it is intended that there may be some extraterritorial effect of Australian legislation. This is a limited effect but the cases at the turn of the last century (such as Morgan v White (1912) 15 CLR 1 at 13 and Macleod [1891] AC 455 in the Privy Council) have been displaced by more modern developments such as the Australia Act 1986 (Cth). By s 2 of the Australia Act it is declared and enacted that the legislative powers of the Parliament of each State include ‘full power to make laws … that have extra-territorial operation’. The High Court had already held in 1935 that the Australian Constitution supported the power of Federal Parliament to enact legislation which had extraterritorial effect (Crowe v The Commonwealth (1935) 54 CLR 69 at 85-86).
274 In XYZ v Commonwealth (2006) 227 CLR 532, the plaintiff had been charged with child sex tourism offences under the Crimes Act 1914 (Cth). The offences were allegedly committed in Thailand. He instituted a challenge in the original jurisdiction of the High Court seeking a declaration that the provisions were unconstitutional on the ground that they exceeded the external affairs power. The Full Court, by majority, on reservation of a case concluded that the provisions were a valid exercise of the external affairs power which enabled Parliament to make laws with respect to matters, persons or things physically external to Australia irrespective of any further connection with the country.
275 In Polyukhovich v Commonwealth (1991) 172 CLR 501 at 530 Mason CJ observed that the Commonwealth’s power when legislating in the exercise of the external affairs power is ‘not less in scope than the power of the Parliament of the United Kingdom with respect to such matters’. Polyukhovich was followed in XYZ.
276 The High Court has had occasion to consider extraterritorial application of laws in the context of State laws. In Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at [16], Gleeson CJ said (case citations omitted):
Mobil submits that an implication from federalism prohibits State legislation which, if given extra-territorial effect, would affect the relationship between another State or a Territory and its residents or would determine the legal consequences of actions in another State or Territory. That proposition is far too broad. There is nothing either uncommon, or antithetical to the federal structure, about legislation of one State that has legal consequences for persons or conduct in another State or Territory. An example is to be found in the provisions of the Clean Waters Act 1970 (NSW) considered in Brownlie v State Pollution Control Commission (119). That legislation was held to apply to acts or omissions (in that case, trans-border pollution) outside New South Wales which had, or were likely to have, consequences within New South Wales. The idea that all transactions and relationships giving rise to legal consequences can be located ``in'' one particular State or Territory is unrealistic. Furthermore, the concept of the relationship between a State and its residents requires a much narrower focus if it is to be of assistance in the resolution of a problem such as arises in the present case. For the claim of a resident of New South Wales against a Victorian company which has manufactured, in Victoria, a defective product that was later supplied in New South Wales to be brought into representative proceedings in a Victorian court does not impinge on the relationship between the New South Wales resident and the New South Wales Government. Different considerations might arise, for example, if the New South Wales Parliament, adopting a policy hostile to group proceedings, or class actions, set out to prevent residents of New South Wales from participating in litigation of that kind. But no such problem arises here.
See also Sweedman v Transport Accident Commission (2006) 226 CLR 362 at [18] and [22], APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at [40], [156]-[158] and [465]-[466]. In the latter case New South Wales regulations imposing restrictions on legal advertising in relation to personal injury and which were not expressly extraterritorial were nevertheless treated as operating extraterritorially. All these cases (as well as Waller v Freehills) suggest that it is no longer the law of Australia, if it ever was, that there is a presumption that legislation cannot have any extraterritorial effect.
277 Question 12 will be answered ‘yes’.
Perth Detention – Authorised Under the Migration Act?
278 Question 13 is in the following terms:
13. Was the Plaintiff’s detention in Australia from 1 November 2002 until 25 February 2004 authorised and/or required by ss 189(1) and 196 of the Migration Act?
279 The plaintiff now contends it is inappropriate to answer this question. The defendants contend that the answer is ‘yes’.
280 The plaintiff argues that if as a consequence of the answers to the preceding questions it is established that the plaintiff entered Australia and the migration zone at Perth, and that his removal from Australia was unlawful, then when he returned to Australia arriving at Brisbane and did not do so as a transitory person, he was entitled to be informed after being taken into detention of his right to apply for a visa. He was also so entitled, according to the plaintiff, on his arrival in Perth in the previous December. The plaintiff contends that had he been so advised in Perth in December 2001, his visa application would have been processed and with the assistance of his brother, would have been granted prior to 1 November 2002. In consequence of that, it follows that his detention for the period referred to in question 13 was neither authorised nor required.
281 The position taken by the plaintiff in oral argument, however, was that it was now inappropriate to answer this question as a preliminary question. Counsel for the plaintiff indicated that the appropriate answer to question 13 would be ‘inappropriate to answer’ because it was contingent on earlier questions. If it was appropriate to answer, however, the answer should be ‘no’.
282 As the chronology and the agreed facts indicate, during the period to which this question relates, the plaintiff was an unlawful non‑citizen who was within Australia. The essence of the plaintiff’s argument is that he would have been granted a visa for the same reasons he was ultimately granted a visa prior to 1 November 2002 if he had been informed at an earlier point of his right to apply for it.
283 In part, this argument turns on the plaintiff’s contention that as the facts justified the ultimate conferral of the visa on the plaintiff (and on his brother), he was entitled to a visa at all times as those facts remained unchanged. From a practical perspective, however, this was not so because the plaintiff pursued refugee status whilst in Nauru and was not assessed as warranting a visa.
284 Once again, the argument for the defendants is that the operation of s 189 of the Migration Act does not turn on whether a person should have been or could have been granted a visa nor does it turn on whether a person has actually been granted a visa. Ruddock v Taylor 222 CLR 612 establishes that s 189 of the Migration Act authorises and indeed requires the detention of any person (including lawful non‑citizens and citizens) in relation to whom the state of suspicion specified in s 189(1) exists.
285 As the plaintiff did not actually hold a visa at any time prior to 25 February 2004, subject to the question of proof of the holding of the suspicion, he was until that date an unlawful non‑citizen who was required to be detained under s 189(1) of the Migration Act.
286 On this question, however, for reasons previously expressed, I would uphold the submission of the plaintiff that the question should not presently be answered and reject the submission of the defendants that it should be answered ‘yes’.
287 The reasoning is simply that the defendants have not called any officer of the Commonwealth who, as an established fact, held either the knowledge or suspicion referred to in s 189.
288 It is inappropriate to answer question 13.
Are Breaches of duties of the IGOC Act Actionable?
289 Question 14 is in the following terms:
14. Does s 6 of the IGOC Act impose any duties on the Second Defendant, in his capacity as guardian of a non-citizen child who arrives in Australia, the breach of which duties is enforceable by any cause of action sounding in damages?
290 The plaintiff now contends that it is inappropriate to put this question whereas the defendants contend that the answer to the question is ‘no’. The plaintiff’s written outline of submissions makes clear that the plaintiff contends as a matter of law that the answer to question 14 should be ‘yes’.
291 The argument for the plaintiff is that at the latest, the second defendant became the plaintiff’s guardian at the time of his arrival in the coastal sea surrounding Christmas Island. Of course, the plaintiff claims that the second defendant became his guardian when the plaintiff arrived in the coastal sea surrounding the Ashmore and Cartier Islands. I have held to the contrary.
292 Section 6 of the IGOC Act under the heading ‘Guardianship of non‑citizen children’ relevantly provides:
The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.
293 The plaintiff contends that the effect of s 6 is that the second defendant was in the same position as the parent or natural guardian of the plaintiff and remained such until the plaintiff reached the age of 18 years.
294 The plaintiff argues that the concept of guardianship at common law has both a wide and a narrow meaning. At its widest, it encompasses all of the rights and powers that an adult may have over a minor. In its narrow sense, it includes all such powers less those attributable to the child’s custodian: Dickey, Family Law (4th ed), p 341. In any event, in the present case the plaintiff says where the second defendant was both guardian (and through his officers, servants or agents) also custodian it is necessary only to consider the narrow approach. That approach, it is argued, leaves the guardian with powers necessary to guard, protect or defend the child and his or her property from danger, loss or harm.
295 The concept of guardianship encompasses rights, powers and duties that can be exercised by an adult in respect of a child: X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524 per North J at [33]. In that case the issue was whether the unaccompanied minors were entitled to continue the proceedings without the appointment of a tutor or next friend. A guardian, according to the plaintiff, must address the basic human needs of a child subject to his or her guardianship. Those needs include food, housing, health and education. That accords with the recognition over the last century internationally as a fundamental human right of children. Their rights are recognised by a number of international instruments to which Australia is a party. See, for example, The Convention on the Rights of a Child, articles 38-40. These provide as follows:
Article 38
1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.
2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.
4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.
Article 39
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
Article 40
1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.
296 As North J observed in X 92 FCR 524 at [45], s 6 is plainly aimed at providing protection for the interests of children who are particularly alone, isolated and often in frightening circumstances. The observations of North J were confirmed by the Full Court in Odhiambo v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 29 at [86] and at [88]. The Full Court there confirmed that the basic needs of the child may extend to legal advice and assistance in the appropriate circumstances following Bennett v Minister for Community Welfare (1992) 176 CLR 408 at 411.
297 More recently Gray J in Trevorrow v South Australia (No 5) (2007) 98 SASR 136 considered at length the consequences of breach of guardianship duty by persons and entities in the position of the second defendant. In that case the Aboriginal plaintiff sued the State of South Australia for misfeasance in public office, false imprisonment, breach of duty of care, breach of fiduciary duty and breach of statutory duty. The claim was based on his removal at the age of 13 months from his Aboriginal family in 1957 and placement with a foster family. As his Honour held in that case, the nature and extent of the different rights afforded by guardianship are ultimately to be assessed and evaluated from the wording of the particular statute in question. His Honour held the plaintiff was entitled to damages for misfeasance. He held that liability can arise in circumstances where there is no negligence and no intention to inflict harm (at [977]).
298 The plaintiff contends, in the present situation, whether or not the Minister was aware that his conduct was (allegedly) unlawful, that the plaintiff would be entitled to rely on reckless indifference shown by the second defendant. The plaintiff also relies on Bennett v Minister for Community Welfare (1988) Aust Tort Reports 80-210 in which it was held there was a fiduciary duty owed to a ward of the State which included the obligation to assert rights on his behalf.
299 It is common ground that s 6 confers all the usual incidents of guardianship. It confers on the Minister a set of rights and responsibilities analogous to those of a parent. Whether an inadequate performance of those responsibilities provides a cause of action is a different question. The inadequate performance of the responsibilities may not necessarily provide the child with a cause of action although the existence of the relationship will almost certainly be relevant to the question of whether a duty of care is said to arise (see Hahn v Conley (1971) 126 CLR 276 at 283-284, 294; McCallian v Dodd [1966] NZLR 710 at 729; Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86 at [102]-[103], [817]-[822]).
300 The defendants say that a breach of the obligation under s 6 of the IGOC Act does not in itself create a right of action. It is argued that parental responsibilities to feed, clothe and care for a child are not enforceable by the law of tort and for that reason s 6 does not impose a duty, the breach of which would sound in damages even if such a breach could be proved. Turning to equity, remedies available in equity, according to the defendants, are available only to protect economic interests (for breach of fiduciary duty) not to provide compensation for physical or psychological harm (Williams 25 Fam LR 86 at [729]-[734] and Cubillo v Commonwealth (2001) 112 FCR 455 (at [465]-[466]).
301 Reliance by the plaintiff on Trevorrow 98 SASR 136, the defendants argue, is misplaced as the defendant in that case was sued for causes of action involving misfeasance in public office, false imprisonment, breach of duty of care and breach of fiduciary and statutory duties. Gray J in that case said that the statutory duty did not give rise to any separate cause of action. At [964]-[965] his Honour said (case citations omitted):
The plaintiff by his statement of claim sought relief in respect of the State’s alleged breach of statutory duties, breach of fiduciary duties, wrongful imprisonment, acting ultra vires, acting with an improper purpose, acting in bad faith, denying procedural fairness, misfeasance in public office and breaches of duty of care.
In his final address, counsel for the plaintiff did not pursue the claim for breaches of statutory duty as a separate cause of action. In my view the relevant statutes did not create any private right of action. The statutory provisions, however, remained relevant to a consideration of other causes of action including the claims for damages for misfeasance in public office and false imprisonment.
302 In my view on the terms in which it is framed, question 14 should be answered in the negative for the reasons indicated in Trevorrow 98 SASR 136. However, that is not an end to the matter as, if there is a breach of s 6 of the IGOC Act, such a breach may be relevant in relation to other causes of action.
303 Accordingly, while I would answer question 14 ‘no’, I would make it clear that the answer relates only to the question as formulated in the context of a ‘freestanding’ cause of action based on a breach of s 6 of the IGOC Act.
CONCLUSION
304 For the reasons expressed, in my view, the answers to the questions posed are as follows:
1.1 ‘no’
1.2 ‘no’
2.1 ‘no’
2.2 ‘yes’
2.3 ‘no’
3 ‘no’
4 ‘yes’
5.1 ‘yes’
5.2 ‘yes’
5.3 ‘yes’
6.1 ‘no’
6.2 ‘no’
7 ‘yes’
8 ‘no’
9 ‘no’
10 ‘yes’
11.1 ‘no’
11.2 ‘no’
12 ‘yes’
13 Inappropriate to answer
14 ‘no’ (as the question is specifically formulated)
NM-1 Inappropriate to answer
NM-2 Inappropriate to answer
NM-3 Inappropriate to answer
NM-4.1 ‘yes’
NM-4.2 Does not arise
NM-4.3 Does not arise
305 Although the success that the plaintiff has enjoyed to date at least has been quite limited, it is appropriate to acknowledge, nevertheless, the contribution of those representing him and, in particular, that of counsel, Dr Cameron.
306 As to the consequences which should flow from the answers to these questions, I will invite the parties to confer and to the extent possible, deal with the matter by a minute of consent orders. If no consent is possible, submissions should be filed and served by the respective parties within 28 days as to the consequences properly flowing from the answers given to these questions. Time should not run in respect of an appeal, if any, until the extraction of any orders following the taking of those steps (pursuant to O 52 r 10 or O 52 r 15(1) FCR).
| I certify that the preceding three hundred and six (306) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. |
Associate:
Dated: 1 October 2009
| Counsel for the Plaintiff: | JL Cameron |
|
|
|
| Solicitor for the Plaintiff: | Jarman McKenna |
|
|
|
| Counsel for the Defendants: | P Hanks QC with P Macliver and S Donaghue |
|
|
|
| Solicitor for the Defendants: | Australian Government Solicitor |
| Date of Hearing: | 26-27 March 2009 |
|
|
|
| Date of Last Written Submissions: | 1 May 2009 |
|
|
|
| Date of Judgment: | 1 October 2009 |
