FEDERAL COURT OF AUSTRALIA

Ogawa v Minister for Immigration and Border Protection (No. 2) [2018] FCA 484

ORDERS

THE COURT ORDERS THAT:

1.    No further proceedings be taken regarding the failure of the respondent to produce the applicant at the hearing on 9 February 2018.

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

REASONS FOR JUDGMENT

LOGAN J:

1    On 20 March 2018, I ordered that no further proceedings be taken in respect of a failure by the respondent, the Minister for Immigration and Border Protection (Minister) (as he was then) to produce the applicant, Dr Megumi Ogawa, before the Court on 9 February 2018 at 14:15 (Brisbane time), pursuant to an order made on 5 February 2018. I indicated on 20 March that reasons for judgment in respect of the making of the order that no further proceedings be taken would be published in due course. These are those reasons.

2    On 8 November 2017, Dr Ogawa instituted, in the Court’s Queensland District Registry, a proceeding in the Court’s original jurisdiction by which she applied for an order of prohibition, prohibiting the Minister from taking steps consequential upon a decision by him under s 501 of the Migration Act 1958 (Cth) (the Act) to cancel her Partner (Temporary) (Class UK) visa (Partner visa). As an ancillary order, she sought an order in the nature of certiorari quashing the Minister’s cancelation decision. The original jurisdiction which Dr Ogawa invoked was that conferred on the Court by s 476A of the Act. Within the limits of that jurisdictional specification, the Court’s jurisdiction is the same as that conferred on the High Court by s 75(v) of the Constitution (Constitution).

3    The application was heard in Brisbane on 21 December 2017. A revision of the grounds of review in the course of Dr Ogawa’s oral submissions necessitated that, as a matter of procedural fairness, the Minister be granted an opportunity to file supplementary written submissions with Dr Ogawa, in turn, being afforded an opportunity to reply to these. In the result, written submissions closed on 27 January 2018.

4    By Monday, 5 February 2018, the first day of the Court’s 2018 sitting period, I had formed the view that it would be possible shortly to deliver judgment in respect of the application. In the result, on 9 February 2018, I quashed the Minister’s visa cancellation decision: Ogawa v Minister for Immigration and Border Protection [2018] FCA 62 (principal judgment).

5    On 5 February 2018, Dr Ogawa was in immigration detention. She is a citizen of Japan, not of Australia. As a sequel to the Minister’s visa cancellation decision, she was taken into detention at her residence on the Gold Coast by officers of the Australian Border Force (ABF) on 2 November 2017. The effect of the Minister’s decision was not only that Dr Ogawa’s Partner visa was cancelled but also that, subject to statutory exceptions not relevant in her case, any other visa held by her was taken to be cancelled: s 501F of the Act. Her status thus thereupon changed from that of lawful non-citizen, because she held a visa that was in effect (s 13 of the Act refers) to unlawful non-citizen, because she held no such visa (s 14 of the Act refers).

6    As an unlawful non-citizen, Dr Ogawa became amenable to mandatory detention (s 189 of the Act) until removed from Australia (s 196) in accordance with s 198 of the Act. The validity of that regime for the detention, pending removal, of unlawful non-citizens was, by majority, upheld in Al-Kateb v Godwin (2004) 219 CLR 562.

7    Both at the time of hearing in December 2017 and thereafter, Dr Ogawa was ordinarily detained at the Villawood Immigration Detention Centre (VIDC) in Sydney, New South Wales. That detention centre is one of those established and maintained by the Minister on behalf of the Commonwealth pursuant to s 273 of the Act. She had been produced before the Court by the Minister for the purpose of appearing at the hearing of her application in December 2017. Dr Ogawa had appeared on her own behalf at that hearing and at earlier interlocutory case management.

8    Dr Ogawa did not enjoy all of the rights of an Australian citizen. However, while her partner visa was in force, she enjoyed a right of residence in Australia, subject to the terms of that visa, with all of the rights and freedoms entailed in being a lawful resident of our country. Upon the quashing of the visa cancellation decision, she was, necessarily, restored to her former status of lawful non-citizen.

9    Of the freedoms enjoyed both by citizens and other lawful residents of Australia, the most important is a right to personal liberty. As to that right and that importance, Mason and Brennan JJ (as they each then were) observed in their joint judgment in Williams v The Queen (1986) 161 CLR 278, at 292:

The right to personal liberty is, as Fullagar J. described it, “the most elementary and important of all common law rights”: Trobridge v. Hardy. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England “without sufficient cause”: Commentaries on the Laws of England (Oxford, 1765), Bk. 1, pp. 120-121,130-131. He warned:

“Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities.”

The nature of the proceeding was therefore an invocation by Dr Ogawa of an exercise of Commonwealth judicial power so as to challenge the lawfulness of the decision which underpinned the right of the Minister to deprive her by detention of her personal liberty. In referring to an invocation of Commonwealth judicial power to challenge detention by officers of the executive in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 529, Deane J notably observed:

It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.

10    That the case touched on an issue of personal liberty always dictated that it be heard and determined with expedition (by analogy with the longstanding practice in relation to applications for a writ of habeas corpus, qv, R v Home Secretary; ex parte Cheblack [1991] 1 WLR 890 at 894, per Lord Donaldson MR; Dien v Manager of the Immigration Detention Centre at Port Hedland (1993) 115 FLR 416 at 418). It was. One manifestation of that was the imperative that judgment be delivered as soon as reasonably possible. So it was that, on 5 February 2018, taking into account a need to complete and then revise reasons for judgment and a need for Dr Ogawa again to be present in court, this time for the purpose of receiving judgment and making any consequential submissions in relation to orders, I fixed Friday, 9 February 2018 at 14:15 in Brisbane as the date, time and place for the delivery of judgment. The order for her production by the Minister on that date in Brisbane was made accordingly.

11    As it happened, there were also other reasons which informed the decision to order Dr Ogawa’s production in Brisbane by the Minister.

12    As I stated in the principal judgment, at [27], Dr Ogawa is fluent in English but it is not her first language. This, I thought, had at times occasioned her a slight degree of frustration in the course of oral submissions in December. Both as a result of that observation as well as experience of her in the course of interlocutory case management, my very particular view was that the interests of justice would not be served by anything other than her being personally present in court at the time of judgment. That was quite apart from the position that, in law, she was entitled to her liberty from the moment when the quashing order was made.

13    Another circumstance relevant to a need for Dr Ogawa’s production in Brisbane on 9 February 2018, was that this was the appointed date and place for the first case management hearing in respect of a separate but not unrelated judicial review application which Dr Ogawa had, in the meantime, instituted in the Court’s Queensland District Registry, QUD 39 of 2018, to which the Commonwealth Attorney-General was a respondent. In that proceeding, Dr Ogawa sought an order in the nature of a mandamus requiring the Attorney to make a decision in respect of successive and long outstanding petitions by her for an exercise of the Royal Prerogative of Mercy or alternatively a reference to the Queensland Court of Appeal in respect of the offences the conviction and sentence for which had enlivened the ability of the Minister to cancel her visa. That application was also on my docket. For obvious reasons, it was convenient to conduct the case management hearing in respect of that proceeding immediately following the giving of judgment in the present case.

14    Yet another consideration which informed a need for Dr Ogawa to be present in Brisbane on 9 February was the high likelihood that her partner, Dr Clive Turner, a retired, senior legal academic, would be then be present in court, as he had been in December 2017 during the hearing of the application. Humanitarian considerations apart, I considered that the interests of justice would be well served both in respect of the receipt of consequential submissions, if any, in the present case and in respect of the proceeding which she had brought against the Attorney if Dr Ogawa were able freely and immediately to confer with him if she so desired.

15    It is not and never has been the usual practice of the Court to advise the parties in advance of the pronouncement of orders and related publication of reasons for judgment what will be the outcome of a particular proceeding. Obviously enough, that prospective outcome is known to the judge concerned and to a limited number of personnel and sometimes also registry staff. But neither Dr Ogawa nor the Minister could be informed in advance that the Minister’s decision was going to be quashed. That this might occur with its consequences in respect of Dr Ogawa’s personal liberty, was always a contingency for the Minister to accommodate in his administration of the Act.

16    The Minister did not produce Dr Ogawa on 9 February 2018 at 14:15 in accordance with the order of 5 February 2018.

17    As it transpired, it was just possible that day, albeit with all of the apprehended difficulties, to which a less than satisfactory video link were added, both to deliver reasons for judgment in the present case (albeit without then hearing submissions in relation to costs), address the immediate consequence of the quashing order and then to conduct a case management hearing in respect of QUD 39 of 2018 via a video link to the Court in Brisbane from the Villawood Detention Centre.

18    As to that case management hearing, the able and sympathetic assistance afforded to the administration of justice by Mr Del Villar of Counsel, who appeared for the Attorney, and his instructing solicitor, the Australian Government Solicitor should not go unremarked. Such were the inadequacies of the video link for effective communication with Dr Ogawa, I very much doubt that it would have been possible to manage interlocutory aspects of that other case to the end of its possible resolution without the need for a hearing on the merits without that assistance.

19    As a consequence of the Minister’s failure to produce Dr Ogawa, a further order which I made in the present proceeding on 9 February 2018 was that the question as to what, if any, action be taken regarding that failure to produce Dr Ogawa, in person, for the purposes of QUD 605 of 2017 and QUD 39 of 2018, be listed for further consideration at 9.30 am on 20 March 2018. As to further actions which might, in theory, be open, I mentioned the possibility of a direction to the Registrar to refer the papers to the Australian Federal Police Commissioner for investigation as to whether an offence of attempting to pervert the course of justice, contrary to s 43 of the Crimes Act 1914 (Cth), had been committed and the alternative possibility of a charge of contempt, constituted by the failure to produce Dr Ogawa as ordered. I further ordered that the Minister file and serve such further affidavits, if any, in relation to that question, as well as an outline of submission of no more than 10 pages, by the close of business on 2 March 2018. Some explanation for the failure had already been made by affidavit on behalf of the Minister in respect of the failure. Procedural fairness considerations dictated that the Minister be afforded further time within which to file such further affidavits, if any, as he might be advised.

20    As at 9 February 2018, no formal charge of a contempt of court constituted by his failure to produce had been made against the Minister. Neither had any person been charged with being a party to any such contempt. Nonetheless, that such a charge might be made was a contingency. A charge of contempt can be brought on the initiative of the Court: r 42.11, read with r 1.40 of the Federal Court Rules 2011 (Cth) (Rules).

21    In these circumstances, one response which the Minister and others within his Department might have made to the order providing for the filing of affidavits was not to file any, on the basis the filing of affidavits by particular individuals might tend to incriminate them and him. In respect of contempt, an individual (but not a corporation) enjoys a privilege against self-incrimination: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at [2]. That is quite apart from the privilege against self-incrimination that a person in jeopardy of being charged with an offence against the Crimes Act would enjoy. An absence of response by reason of the invocation of a privilege against self-incrimination would have to have been respected. It may though have meant, given the evidenced non-compliance with an order of the court in respect of a matter touching on personal liberty, that the public interest in the administration of justice required at least that a charge be made against the Minister and the further procedure found in Div 42.2 of the Rules followed.

22    As it happened, the response which the Minister and others chose to make was not to invoke any apprehended privilege against self-incrimination. Instead, on behalf of the Minister, a series of affidavits by his solicitors, by individuals concerned with the detention of Dr Ogawa and the response to the production order and by Acting Commissioner Michael Outram APM, the Acting Head of the ABF, was filed. Collectively, these affidavits, together with that already filed on behalf of the Minister, offered a comprehensive explanation of events which followed the notification of the production order to the Minister’s solicitors, why the failure to produce had occurred and, notably also, included an unqualified apology for that failure. I shall detail pertinent facts revealed by these affidavits, shortly. It is first necessary to make some general observations about the power to order the production before the Court of a person in immigration detention and then to highlight some other features of the judicial administration of this case which are also relevant.

23    Materially, s 196 of the Act provides:

Duration of detention

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

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

…

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a) … unless the non-citizen has been granted a visa.

(4)    Subject to paragraphs (1)(a) … if the person is detained as a result of the cancellation of his or her visa under section 501 … or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

…

(5)    To avoid doubt, subsection (4) or (4A) applies:

(a)    whether or not there is a real likelihood of the person detained being removed from Australia under section 198 … or deported under section 200, in the reasonably foreseeable future; and

(b)    whether or not a visa decision relating to the person detained is, or may be, unlawful.

…

(6)    This section has effect despite any other law.

24    It was not submitted on behalf of the Minister that s 196 of the Act prevented the making of an order by the Court for the production of a person in immigration detention before the Court who had invoked the exercise of the judicial power of the Commonwealth for purposes related to the facilitation of the exercise that power. In the present proceeding, Dr Ogawa invoked the judicial power of the Commonwealth when she applied for the exercise of the jurisdiction conferred on the Court by s 476A of the Act. In QUD 39 of 2018, she invoked the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act) to seek a mandamus against the Attorney as an officer of the Commonwealth. These jurisdictions having been invoked, the effect of s 23 of the Federal Court of Australia Act 1976 (Cth) was that the Court had power “to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate”. One such order is an order for the production of an applicant before the Court if this is thought appropriate for the exercise of the Court’s jurisdiction.

25    The order for production was incidental both to the exercise of the jurisdiction under s 476A of the Act, as well as to the separately invoked jurisdiction under s 39B(1) of the Judiciary Act. It was not an order in the nature of a writ of habeas corpus, ancillary to an application for prohibition in that it did not form part of the means by which the legality of detention was challenged. Instead, the order for production related to the securing of the attendance before the Court of a person who was acting on her own behalf, including, as part of its purpose, so that she could immediately be restored to her liberty and then, immediately thereafter, be able to participate as a free person in appearing on her own behalf in the case management hearing in QUD 39 of 2018.

26    As presently advised, I do not consider that such a production order releases a person from the status of being in “immigration detention”. The term “immigration detention” is defined in this way by s 5(1) of the Act:

“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 or Australian Border Force Commissioner 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).

Note 1: Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention .

Note 2: This definition extends to persons covered by residence determinations (see section 197AC).

When such a production order is made, immigration detention is permissibly continued via the means contemplated in para (a) of the definition of that term. The “restraint” concerned would be that necessary to prevent leaving detention, not from appearing before the Court. Both the person produced and those detaining that person become additionally amenable to such directions of the Court as are necessary in order to ensure an effective exercise of Commonwealth judicial power but not so as to release that person from immigration detention. In this case, it was the quashing order, not the production order, which restored Dr Ogawa’s personal liberty. However, that the order was incidental to a claim for relief in a proceeding directed to the end of such a restoration lent compliance with it a particular, imperative quality.

27    Such a construction of s 196 would avoid any question of whether that section must necessarily be read down, pursuant to s 15A of the Acts Interpretation Act 1901 (Cth), so as not to be incompatible with an exercise of the judicial power of the Commonwealth under Chapter III of the Constitution. That stated, because no controversy attended the ability of the Court to make the production order, it is not necessary to reach any concluded view on that subject.

28    Before turning to the actions or inactions of the executive branch of government in relation to the production order, it is especially necessary, in a case where a charge of contempt of court was a contingency, to highlight those of the judicial branch of government. If authority be needed for that necessity, it is to be found in the Gospel of St John, Chapter 8, verse 7, “He that is without sin among you, let him first cast a stone at her.”

29    Though it was on 5 February 2018 that I directed that a production order issue, such an order was not sent by the registry to the Minister’s solicitors on the record until 16:12 (Brisbane time) on 6 February 2018. At the same time, notice of the listing of the matter for judgment on 9 February 2018 at 14:15 (Brisbane time) was sent.

30    That delay in notification did not have the effect that it was impossible to comply in the remaining time with the order but it must be accepted that it truncated the time available to the Minister. The delay in the preparation and notification of the order should not have occurred. As I have already mentioned, 5 February 2018 was the first day of the Court’s 2018 sitting period. It also marked the start of the usual week when a changeover of a judge’s personal staff occurs. Having caused an internal investigation to be undertaken, the reason for the delay, after I directed that an order for production issue, is to be found in that changeover and related assimilation and understanding of procedures for dealings between chambers and the registry in relation to the issuing of orders. The internal, judicial administration failing has, consequentially, been addressed.

31    I turn then to events relating to the executive branch of government. These are set out in detail in a chronology filed on behalf of the Minister. I am satisfied that the chronology accurately summarises evidence given by affidavit on behalf of the Minister. It is not necessary to set out all of that detail, only to highlight some pertinent features.

32    The registry’s email enclosing the production order and the notice of listing was received by the Minister’s solicitors at or about 16:12 (Brisbane time) on 6 February 2018. It was forwarded later that afternoon by those solicitors by email to the relevant officer of the Minister’s department, the Department of Immigration and Border Protection (Department). That officer was not located in Queensland. So, necessarily, the then prevailing daylight saving regime in force interstate impacted on the time of the receipt of that email. As it transpired, the email sat unactioned in that officer’s email “in-box” for some time, for reasons other than the impact of a daylight saving time differential. That officer was then on leave. There does not appear to have been in place within the Department at the time any sufficient system of continuity of duty officers so as to ensure that emails to this relevant officer were actioned when that officer was on leave.

33    That no responsive action had been taken by the Department having come to their attention, the Minister’s solicitors had the presence of mind to correspond directly by email with an official at the VIDC in relation to the production order and listing. This occurred at 15:17 (Brisbane time) on 7 February 2018. Once again, daylight saving had its impact such that the official at Villawood did not receive the correspondence until 16:17 that day. Even so, that did not excite any immediate action either at Villawood or elsewhere within the Department that day.

34    In the early hours of 8 February 2018, Dr Ogawa herself sent an email to the Department’s Legal Case Manager querying arrangement for her transportation to Brisbane for the purpose of the listing on 9 February 2018. Later that morning, at about 09:45 (daylight saving time) a relieving officer (for the usual relevant officer) within the Department was contacted by an officer at the VIDC in relation to the email which the Minister’s solicitors had sent on 7 February 2018 directly to that centre. Very shortly thereafter that morning (09:52, daylight saving time), the ABF’s Senior Officer (Detention Operations) at the VIDC became aware of the Minister’s solicitor’s correspondence of 7 February 2018 and thus of the production order and listing. Inferentially, this officer well appreciated the nature of the requirement and the by then need for urgency of responsive action. So, too, by then, did the relieving officer. That is because, by shortly after 10:00 (daylight saving time), internal departmental procedures for the uplifting of a person in detention to another place were initiated. The contemplated mode of uplift for Dr Ogawa was air transportation.

35    The Department’s internal uplift procedures include the preparation of what is known as a Fitness for Travel (FFT) document and a Detention Service Provider Assessment (DSPA). The DPSA prepared in respect of Dr Ogawa contained an affirmative answer (“yes” was ticked) to the question “Is the person likely to be offensive or disruptive towards crew, passengers or escorts?”. I understood that the term “flight risk”, used in the course of proceedings, related to this assessed air travel risk, not to any apprehended likelihood that Dr Ogawa would seek to escape from detention. Dr Ogawa was hardly a flight risk in any other sense. All she wanted to do was to resume her life with her partner and her pursuits in academia.

36    I should interpolate that, as part of his general administration of the Act and in the discharge of the power to establish and maintain detention centres conferred by s 273, the Minister has, on behalf of the Commonwealth, made arrangements for the management of some detention services to be undertaken by a private contractor, Serco Immigration Services. It is necessary to recognise that the making of such arrangements is a matter for the value judgment of the Minister in his administration of the Act. The courts have no responsibility for the general administration of legislation. For the general administration of legislation consigned to his administration by His Excellency the Governor-General pursuant to the Administrative Arrangements, the Minister is responsible to Parliament. Apart from judicial review challenges to the validity of particular substantive decisions, it is only in relation to particular, incidental failings in that administration as revealed in particular proceedings, as, for example, by a failure to comply with a court order, that the Minister is additionally responsible to the Court.

37    In the initial dealings between the ABF’s Senior Officer (Detention Operations) and the private contractor later that morning in relation to the uplift, both the incorrect date for production and the incorrect gender of the detainee (Dr Ogawa) were specified. By late morning, this error had been rectified. Even so, it was not until 16:14 (daylight saving time) that an officer in the ABF’s “removals” area emailed QANTAS attaching relevant documents (including the FTT and DPSA or at least the risk assessment element derived from these) and requesting approval for the air transportation of Dr Ogawa by that airline. In the meantime, at about 12:15 (daylight saving time), both Dr Ogawa and the Minister’s solicitors had been advised by the Department’s Legal Case Manager that, “the Minister will ensure that you [Dr Ogawa] are brought to court”.

38    It is not my role to review on the merits the risk assessment made in respect of Dr Ogawa. The behaviours in court that led to her conviction occurred many years ago. Dr Ogawa’s life since being released from custody in respect of her conviction for those behaviours is referred to in the principal judgment and in the reasons given by the Minister for his cancellation decision. Latterly, she had been removed from her residence at the Gold Coast and the society of her partner, Dr Turner, by officers of the ABF and placed in detention not in Brisbane, but in Sydney. This occurred at a time when successive petitions by her for an exercise of the Royal Prerogative of Mercy had remained unactioned for years. I have no doubt from my observation of Dr Ogawa in court that she was aggrieved by this inaction and also that she genuinely believed that the decision to cancel her visa was invalid. She doubtless also felt, apart from her ability to invoke judicial power, powerless, relative to the authority and resources of the Minister, the officers of the ABF and those of the service provider. So it would hardly be surprising if she found the fact and experience of detention unwelcome. Even so, her behaviour in court was never other than courteous. It was obviously in her interest to attend court so as to appear for herself. That doubtless informed the query which she made by email in the early hours of 8 February 2018 in respect of arrangements for her attendance. One might expect that the risk assessment was made with the benefit of observations of her behaviour when in detention, as well as taking into account maters of history and self-interest. The point for present purposes is that, reasonably open on the materials to hand or not, the particular risk assessment made in respect of Dr Ogawa was a given which, necessarily, was a factor to take into account in the making of an appreciation on behalf of the Minister as to how to ensure compliance by the Minister with the Court’s production order.

39    QANTAS not only had a duty officer on duty that day but one who reacted promptly. At 16:29 (daylight saving time) the duty security controller at QANTAS advised the ABF’s removals officer that the uplift of Dr Ogawa was not approved by QANTAS. This advice was contrary to the experience of the ABF when making a similar request of QANTAS in relation to the uplift of Dr Ogawa in December 2017 for the purposes of her appearing on the substantive hearing of her application. At that time, a like risk assessment was furnished to QANTAS by the ABF.

40    It was not until 17:54 (daylight saving time, 16:54, Brisbane time) that a senior ABF officer at the Villawood Detention centre confirmed to the Minister’s solicitors in Brisbane that approval for the air uplift of Dr Ogawa had not been given and that the ABF was, “was unable to coordinate urgent overnight travel due to safety and security concerns”. The latter is a reference to transportation by road.

41    The inability of the Minister to produce Dr Ogawa as ordered was notified to a registrar in the Court’s Queensland District Registry by an email sent by the Minister’s solicitors to that officer at 17:58 (Brisbane time). That notification was after the registry’s closing time.

42    Less than an hour after the quashing order was pronounced on 9 February 2018, the Minister’s solicitors notified the relevant officer at the Villawood detention Centre of the need for arrangements to be made for the immediate release of Dr Ogawa and her related return to her residence in Queensland. The evidence discloses that this was actioned promptly by the Department.

43    The observations which I made on 9 February 2018, in providing by order for consideration of what further proceedings, if any, ought to be taken as a result of the failure to produce prompted an urgent review by the ABF and other officers of the Department of how the failure had occurred. This continued over the weekend to the end of the furnishing of a briefing of the Minister (the Honourable Peter Dutton MP) in person by Acting Commissioner Outram, the Secretary to the Department and others at 09:30 (daylight saving time) on Monday, 12 February 2018. Acting Commissioner Outram has deposed, and I accept, that, at that conference, the Minister made his dissatisfaction with the failure to produce patent, “in no uncertain terms”. This was the first occasion that the Minister personally became aware of the production order and the failure to comply with it.

44    On 20 March 2018, I had the benefit of oral and written submissions by counsel on behalf of the Minister. I also offered Dr Ogawa an opportunity to be heard on the basis that, even though the Minister’s failure had systemic ramifications in relation to the administration of justice, she had been directly affected by that failure.

45    On the basis of the evidence filed on behalf of the Minister, I am quite satisfied that neither the Minister personally nor any officer of the ABF nor any other officer of the Department or of the service provider (nor, for completeness, the Minister’s solicitors) intended to pervert the course of justice by counselling, procuring or otherwise being a party to a failure to produce Dr Ogawa as ordered. The possibility of a proceeding under s 43 of the Crimes Act may therefore be put aside at once.

46    As to a charge of contempt, such a charge always carries with it a public interest element in the sense that a purpose of such a proceeding is always to vindicate the Court’s authority. That public interest is present whether or not a particular order can also be seen to serve individual or private interests: Witham v Holloway (1995) 183 CLR 525 at 533. The production order served Dr Ogawa’s interest by facilitating the most effective means by which she could appear for herself in two proceedings before the Court. But it also thereby served the public interest in the effective exercise of Commonwealth judicial power.

47    In Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113 (AMIEU v Mudginberri) Gibbs CJ, Mason, Wilson and Deane JJ concluded:

“... a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.”

[Emphasis added]

That conclusion was the culmination of a passage (at 111-112) in the joint judgment in which their Honours considered the correctness of and approved as correct the distinction made by the Court of Appeal in Fairclough v Manchester Ship Canal Co [1897] WN 7; 41 SJ 225 between “casual, or accidental and unintentional disobedience” and “what was required in a case where ‘it were sought to commit a private individual to prison for contempt’ or ‘to sequestrate the property’ ‘of a company’ upon the ground of disobedience”.

48    In Markisic v Commonwealth of Australia (2007) 69 NSWLR 737 (Markisic v Commonwealth of Australia)at [64], Campbell JA (with whom Handley AJA and Bell J agreed) considered that this conclusion in AMIEU v Mudginberri had this consequence:

[The] imposition of punishment is justified for a breach of a court order only if there is wilful disobedience, in the sense of deliberate action or inaction that is not casual, accidental, or unintentional. That conclusion applies regardless of whether the contempt involved in the disobedience to the order is classified as a civil or a criminal contempt. Thus, proof that a contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional.

His Honour then observed that the effect of Witham v Holloway was that any such contempt would have to be proved beyond reasonable doubt. The latter proposition is, with respect, unquestionably correct.

49    Though I am not bound by Markisic v Commonwealth of Australia, I am bound by AMIEU v Mudginberri. Further, though not bound by Markisic v Commonwealth of Australia, the view expressed in that case is a considered judgment of an intermediate appellate court. So it certainly carries persuasive weight. Having separately considered the passage in AMIEU v Mudginberri at 111-112 and the conclusion at 113, I respectfully agree with the view expressed by Campbell JA in Markisic v Commonwealth of Australia as to its effect.

50    That has an important consequence in relation to whether a charge of contempt ought to be brought in the present case. As a result of the deliberate decision made on behalf of the Minister to fully and candidly reveal by affidavit evidence how the failure to produce Dr Ogawa occurred, the conclusion that this failure was, to adopt a turn of phrase consistently used in the authorities, “casual, accidental or unintentional” is irresistible. It would be quite impossible to prove a contempt beyond reasonable doubt.

51    That is so irrespective of whether one were to characterise any alleged contempt as civil (as the Minister contended) or criminal. In either case, the effect of Witham v Holloway is that a charge of contempt would have to be proved beyond reasonable doubt.

52    That, in itself, is reason enough why there should be no further action to the end of the bringing of a charge of contempt against the Minister or any other officer or agent of the Commonwealth. The distinct candour of the affidavits filed on behalf of the Minister and the unqualified apology tendered by Acting Commissioner Outram is also relevant. The irresistible inference to draw from Acting Commissioner Outram’s evidence is that this apology was a very particular sequel to the conference with the Minister on 12 February 2018 and reflected the Minister’s view as to the appropriate response to be made on his behalf both as a party and as the person to whom the production order had been directed. It is patent that the public interest which any contempt proceeding would serve in emphasising the need for compliance with court orders has already been served. Yet further, it is necessary to recognise that the Minister’s time for compliance with the production order, sufficient though it should have remained, was truncated by a lapse in its issuing. It is not possible to exclude the possibility that, in the particular circumstances which transpired within the executive branch following the notification of the production order, lamentable though they were, compliance by the alternative of road transport may just have been possible with the grace of the better part of a further day.

53    A conclusion that a charge of contempt ought not to be brought means that it is unnecessary to decide whether the failure to produce Dr Ogawa as ordered could only ever amount to a civil contempt. In Withim v Holloway, at 534, it was stated that, “The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory”. Even so, the distinction remains. Its illusory quality in the present circumstances may be illustrated in this way. As I have observed, the production order facilitated Dr Ogawa’s ability effectively to represent herself in two proceedings which she had initiated. That might be thought to suggest that the order vindicated or facilitated the exercise of a private right such that non-compliance could yield only a civil contempt. At the same time though, the order was made for the purpose of the efficient exercise of Commonwealth judicial power and the failure to produce her affected the administration of justice. That feature would suggest that any contempt committed was criminal in character. Fortunately, in the circumstances, it is not necessary to reach any concluded view on this subject.

54    It is also not necessary to reach any concluded view in relation to a further submission made on behalf of the Minister. That was that he could not in any event be convicted for a contempt, because he was not personally aware of the production order until 12 February 2018, after the failure had occurred.

55    In modern times, the inconvenience of having to amend the name of a party being sued in an official capacity as a consequence of a change in the occupancy of the office concerned has led to the adoption of the practice of naming the office, not the individual occupant of it, sued in an official capacity, as a party. It may be that the convenience of that practice has encouraged the notion that individual responsibility for official action or inaction has thereby disappeared.

56    In this case, it was the Minister, personally, who made the cancellation decision under substantive challenge. The terms of s 501 of the Act are such that the decision could not lawfully be made other than by a responsible Minister. For the purposes of that substantive challenge, the Minister had specified particular means of service. These means materially included the email address of his solicitors. As noted above, the Act also consigned to the Minister the responsibility of establishing and maintaining detention centres, of which the VIDC was one. The production order required the official responsible for establishing and maintaining that centre, the Minister, to produce her. Notice of the order was given to the Minister at the address for service specified by him for the purposes of the proceedings. It is not necessary further to venture into the merits of the Minister’s submission, only to observe that great inconvenience and expense would attend a conclusion that, in order to guarantee the existence of a sanction for non-compliance, it was obligatory, in every case where the production of a detainee from a centre established and maintained by the Minister was necessary, for the Minister personally to be served with a production order. It is likewise not necessary to decide, and the subject was not in any event raised, whether a production order is more appropriately directed to the officer in charge of a particular detention centre (in other words, to the person with the immediate control of a particular detainee, perhaps by analogy with a practice adopted in some writs of habeas corpus).

57    Some further observations ought to be made about the position in relation to the detention of unlawful non-citizens revealed by the evidence.

58    As mentioned above, Dr Ogawa was resident on the Gold Coast with her partner, Dr Turner, at the time when she was taken into detention. It was at their Gold Coast residence that Dr Ogawa was given notice of the Minister’s cancellation decision and the reasons for that decision. It is understandable, in these circumstances, that she chose to institute both the present proceeding and QUD 39 of 2018 in the Court’s Queensland District Registry. The Court’s jurisdiction is national.

59    The Minister does maintain a detention centre in Brisbane. My understanding, based on experience gained in other cases, confirmed by the Minister’s counsel in the present, is that the centre in Brisbane is primarily designed as a transit facility. In other words, that centre is primarily designed for the short term accommodation of persons in immigration detention, pending their voluntary departure or deportation from Australia. In contrast, the VIDC not only has greater capacity but is also designed for the longer term accommodation of detainees. Accordingly, that centre offers, so I was informed, a better range of facilities and related comforts for detainees. Thus, though the detention of a person remote from their former place of residence and the society of a partner necessarily visits hardship on both the detainee and that partner, it is also possible to discern some humane considerations which inform that more remote detention, at least at Villawood. It is also possible to discern that economies of scale and efficiency in expenditure of public funds dictate that it is not readily possible to maintain in each State a detention centre offering the same range and standard of facilities as does Villawood.

60    Decisions as to where to establish and maintain detention centres are for the Minister, not the courts to make. That acknowledged, it is for the Minister to ensure that persons who have instituted proceedings in a court the jurisdiction of which is national but exercised from particular District Registries are able to attend court as and when necessary. The present is a case in point. It was permissible for the Minister to choose to detain Dr Ogawa at Villawood in New South Wales even though her former residence was on the Gold Coast and even though she had permissibly instituted a proceeding in the Queensland District Registry. It was though for the Minister to ensure in his administration of the Act that Dr Ogawa was able to attend court proceedings in Queensland.

61    That responsibility could not fully be met solely by ensuring compliance with s 256 of the Act, which provides:

256    Person in immigration detention may have access to certain advice, facilities etc.

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

An ability to transfer the person concerned in a timely way for the purposes of court proceedings is always an additionally necessary contingency.

62    The evidence in the case included reference to a departmental practice of a seven day notice period for the transfer interstate of detainees. That practice will, I expect, be sufficient in relation to most substantive hearings, even if expedited in keeping with a practice appropriate for cases touching on personal liberty. It would be unusual for a substantive hearing to be listed within seven days after an application was filed. But where it is known within the Court that the result of a case will be the making of a quashing order and the restoration of a person’s liberty, the importance our society places on that liberty is such that the delivery of judgment cannot be postponed to accommodate routine departmental practices. Where, as it was here, it is necessary that a person be produced at the time and place for delivery of judgment, a reasonable time in advance for compliance must be allowed but the amount of that time is necessarily informed by the importance of personal liberty.

63    I did not understand the Minister to gainsay this proposition.

64    What occurred in the present case was a succession of lapses the end result of which was that the Minister was left with no feasible alternative means of transfer once private domestic air carrier travel was declined by the nominated carrier.

65    Based on experience when travelling on duty of the existence of a rail travel alternative for travel between Brisbane and Sydney (and return), I raised with counsel on 9 February this possibility. The evidence filed on behalf of the Minister discloses that this alternative was not considered but also that there are good reasons for that associated with the security of detainees. It appears that this is no purpose designed carriage which might be added to an interstate train and that, even if there were, the existence of transit stops would at least require security risk assessments to be made in advance. However minimal those risks might seem in relation to Dr Ogawa, it is necessary in this regard also to recognise that the administration of the act is for the Minister.

66    I consider that I may take judicial notice of the maintenance by the Commonwealth within the Royal Australian Air Force of a fleet of transport aircraft ranging from VIP transport aircraft to less luxuriously appointed military transport aircraft. These are obviously not the usual means of air transporting detainees. The default means looks to be road transport. The possible use of the RAAF was not a subject raised on the evidence or explored by me with the Minister’s counsel so I consider it no further.

67    As to a road transport alternative, an adequate appreciation of how to comply with the production order ought always to have factored in this contingency, especially given the risk assessment in respect of Dr Ogawa made by or on behalf of the Minister. Equally though, it is possible to see how the experience of December 2017 when, against that same risk assessment, QANTAS did agree to uplift Dr Ogawa engendered an expectation that this experience would be repeated. Viewing the whole of the evidence, the failure here was not, as I originally apprehended, one in an appreciation process but rather in an insufficient duty officer system, aggravated by a failure on the part of some to understand the urgency which attended compliance with a production order.

68    As to emails, it is necessary to recall that the digital age confers advantages in terms of speed of transmission of volumes of data but those advantages are squandered if the receipt of such transmissions is not monitored and actioned. Transmission is one thing; communication is another.

69    I am well satisfied on the evidence, particularly that of Acting Commissioner Outram, that the Minister has caused very directly to be addressed the lapses and failures of understanding that led to what the evidence discloses was a “casual, accidental or unintentional” non-compliance with the production order. I am further satisfied that this lapse and those failures is sincerely regretted by the Minister and by Acting Commissioner Outram.

70    It was for these reasons that I directed that no further proceedings be taken in respect of the Minister’s failure to produce Dr Ogawa as ordered.

Associate:

Dated:    13 April 2018