FEDERAL COURT OF AUSTRALIA
Graham v Minister for Immigration and Border Protection [2018] FCA 1012
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TRACEY J:
1 The applicant, Mr Aaron Graham, is a New Zealand citizen. He came to Australia in 1976 at the age of 10. He was deported in October 2017.
2 During his residence in Australia, Mr Graham was convicted of a number of offences. In May 2009, he was convicted of three charges of assault and sentenced to 15 months’ imprisonment by the Supreme Court of Tasmania. Since at least 2008 Mr Graham was a member of the Rebels Motor Cycle Club.
3 On 4 July 2011 Mr Graham was sent a formal warning letter by a delegate of the Minister for Immigration and Border Protection (“the Minister”) that advised him that any further offending may result in the cancellation of his visa. Mr Graham signed an acknowledgement of that letter on 6 July 2011. Following that warning, Mr Graham was convicted of further offences.
4 On 15 June 2015 the Minister decided to cancel Mr Graham’s Class TY (Subclass 444) Special Category (Temporary) Visa (“the cancellation decision”) pursuant to s 501(3)(b) of the Migration Act 1958 (Cth) (“the Act”). One of the bases for the cancellation decision was that, under s 501(3)(c), the Minister reasonably suspected that Mr Graham did not pass the character test, set out in s 501(6)(b), because he was a member of a group which was involved in criminal conduct, namely the Rebels Motor Cycle Club. The other basis for the decision was that, pursuant to s 501(3)(d), the Minister was satisfied that cancelling Mr Graham’s visa was in the national interest because it would contribute to the national effort to disrupt the criminal activities of outlaw motorcycle gangs.
5 The next day, on 16 June 2015, Mr Graham was apprehended at his home in Tasmania and taken into detention as an unlawful non-citizen under ss 189 and 196 of the Act. Later, on the same day, he was transported by aeroplane to New South Wales, where he was held in the Goulburn Correctional Centre pending his removal from Australia. A few days later, on 18 June 2015, Mr Graham indicated in writing to the Department of Immigration and Border Protection (“the Department”) that he wished to be returned to Tasmania to be closer to his family.
6 Mr Graham was informed of the cancellation decision by a letter dated 16 June 2015. The letter advised that the Minister had power, pursuant to s 501C of the Act, to revoke the cancellation decision and invited him to make representations in support of the exercise of that power. In June 2015, Mr Graham lodged a revocation request. The Minister considered submissions provided by Mr Graham’s solicitor on his behalf. On 13 August 2015, the Minister decided not to revoke his original decision to cancel Mr Graham’s visa.
NATURE OF THE APPLICATION
7 On 17 July 2015, Mr Graham commenced a proceeding in the Federal Circuit Court (“the FCC”) seeking judicial review of the decision to detain him at the Goulburn Correctional Centre (“the placement decision”) and orders that he be detained instead at the Risdon Prison Complex in Tasmania. Section 476A of the Act prevented an application of this kind being made directly to the Federal Court. On the same day, Mr Graham filed a separate application in the Federal Court seeking review of the cancellation decision. This became proceeding TAD 29 of 2015.
8 On 5 August 2015, the FCC made orders by consent transferring the FCC proceeding, concerning the challenge to the placement decision, to this Court pursuant to s 39(1) of the Federal Circuit Court Act 1999 (Cth). It became proceeding VID 447 of 2015. On 4 September 2015, the Court made an order that the two proceedings be consolidated and heard concurrently with evidence in one proceeding to be received in the other.
9 On 13 October 2015 Mr Graham filed an amended application clarifying the relief sought and the particulars of the grounds relied upon. He sought an order quashing the placement decision, a declaration that he had been denied procedural fairness, and costs. He no longer pressed for an order that he be detained at the Risdon Prison Complex. Mr Graham invoked three grounds in his application for review of the placement decision. The first alleged a misunderstanding of ss 189 and 196 of the Act. The second claimed a denial of procedural fairness. The third asserted that the decision was legally unreasonable.
CONSTITUTIONAL MATTERS
10 A central aspect of Mr Graham’s case was that administrators of State prisons were under an implied duty to detain an unlawful non-citizen at the request of an officer. This raised the question whether the Corrections Act 1997 (Tas) (“the Corrections Act”) permitted the detention of Mr Graham in a such a facility, which in turn raised constitutional matters that engaged the Judiciary Act 1903 (Cth) (“the Judiciary Act”).
11 On 23 October 2015 the respondents filed a notice of a constitutional matter under s 78B of the Judiciary Act. The constitutional matter was described as follows:
The constitutional matter is whether the Migration Act 1958 (Cth) (the Migration Act) could validly impose a duty on a State to make available a State correctional centre for the purposes of detaining a person in immigration detention under the [Migration] Act, as contended for by the Applicant.
12 On 12 November 2015, Mr Graham filed his own notice of a constitutional matter. That notice identified the second constitutional matter as follows:
The constitutional matter is whether the Corrections Act 1997 (Tas) (the Corrections Act), to the extent that it prevents a prison in Tasmania from holding a person detained pursuant to s 189 of the Migration Act 1958 (Cth) (the Migration Act), is inconsistent with the Migration Act and, to that extent, is invalid.
13 After notice of these matters had been circulated to the Attorneys-General in accordance with s 78B(1) of the Judiciary Act, on 30 November 2015, the legal representatives of the Attorney-General for the State of Victoria wrote to the Court to advise that he would intervene pursuant to s 78A(1) of the Judiciary Act.
PROCEDURAL HISTORY
14 The hearing for the review of the placement decision was held on 15 December 2015. The review of the cancellation decision was heard the following day on 16 December 2015 in proceeding TAD 29 of 2015.
15 On 16 December 2015, counsel for Mr Graham indicated that, in the event Mr Graham successfully challenged the cancellation decision, he may not press his application in relation to the placement decision. If the cancellation decision was quashed there may be no utility in challenging the placement decision.
16 On 9 June 2016, I delivered judgment in proceeding TAD 29 of 2015, quashing the cancellation decision. I found that that the Minister had failed to comprehend that any invitation to seek revocation of the cancellation decision would be futile because Mr Graham was incapable of satisfying the Minister that he had passed the character test under s 501(6) because he had “a substantial criminal record” within the meaning of s 501(7). Because of this misapprehension, the Minister had, by his cancellation decision, constructively failed to exercise his discretion in a manner which was indistinguishable, as a matter of principle, from that impugned in Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154; [2014] FCA 1221. I ordered that the cancellation decision be quashed: see Graham v Minister for Immigration and Border Protection (2016) 246 FCR 439 at 455; [2016] FCA 682 at [76]-[77].
17 My chambers subsequently wrote to Mr Graham’s representatives on 9 June 2016 and 6 July 2016 to indicate that the Court was willing to proceed to judgment in this proceeding if his application for review of the placement decision was pressed. Mr Graham’s representatives indicated by emails dated 9 and 10 June 2016 and 11 July 2016 that they were seeking instructions but did not ultimately provide an indication to the Court as to Mr Graham’s position.
18 In the meantime, on the day that I delivered judgment on 9 June 2016 and quashed the cancellation decision, the Minister made a second decision to cancel Mr Graham’s visa under s 501(3) of the Act, relying on information which was confidential under s 503A. Mr Graham remained in detention as a consequence of that cancellation.
19 Mr Graham applied to the High Court in its original jurisdiction, seeking writs of prohibition directed to the Minister to prevent the second cancellation decision being effected and a writ of certiorari to quash the decision. That application was heard on 30 March 2017 as a special case on the constitutional validity of s 503A(2) of the Act.
20 While the High Court’s decision was reserved, the Commonwealth Parliament passed the Migration Amendment (Validation of Decisions) Act 2017 (Cth) seeking to validate cancellation decisions made on character grounds involving information that was confidential under s 503A in the event that this section was not a valid law of the Commonwealth: see s 503E(1) of the Act. That legislation did not affect rights or liabilities arising between parties to proceedings in which judgment was reserved at the commencement of this section: s 503E(1). The section commenced on 6 September 2017: see Migration Amendment (Validation of Decisions) Act 2017 (Cth) s 2(1).
21 On 6 September 2017, the High Court delivered judgment in Mr Graham’s favour in Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350; 91 ALJR 890; [2017] HCA 33. The majority held that the second cancellation decision was invalid because the Minister had acted on a wrong construction of s 503A(2): see at 367 [70] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The High Court ordered the issue of a writ of prohibition, to prevent action on the purported exercise of power by the Minister, and a writ of certiorari, to quash the Minister’s decision.
22 On the same day that the High Court delivered its judgment, Mr Graham’s visa was cancelled for a third time by the Minister. Media reports indicate that Mr Graham was removed from Australia to New Zealand on 17 October 2017.
23 While the High Court’s judgment was reserved, the respondents’ legal representatives wrote to this Court on 13 April 2017 to observe that, at that time, Mr Graham remained in detention following the second cancellation decision. They also observed that, as there was no substantive response from Mr Graham to the Court’s enquiries, there was uncertainty as to whether the application was pressed. They noted that the issues raised this proceeding arise from time to time in the administration of the Act and have been the subject of little or no judicial consideration in the past. Having regard to those factors, and to the fact that the costs of the proceeding remain unresolved, the respondents considered that there remained utility in judgment being delivered in this proceeding.
BACKGROUND FACTS
24 Mr Graham relied upon his affidavit sworn on 14 December 2015. This affidavit was filed in proceeding TAD 29 of 2015 but was also relied upon in this proceeding as permitted by the order of 4 September 2015. He also filed, on 24 November 2015, a tender bundle comprising documents discovered from the Minister and other departmental materials upon which he relied. The Minister relied upon the affidavit of Ms Sally Jane Pfeiffer, the Superintendent of Detention and Removals Planning within the Department, affirmed on 24 September 2015. Ms Pfeiffer was, at the time of the placement decision, the acting Assistant Secretary of the Detention and Operations Branch of the Department. The Minister further relied upon the affidavit of Mr Edward Lysander Rogers, a solicitor employed by the Australian Government Solicitor, affirmed on 14 December 2015. The parties also relied upon the court book filed in proceeding TAD 29 of 2015 to the extent that its contents were relevant.
25 On 14 December 2015, the applicant filed a notice to admit containing statistics of the number of people detained in immigration detention centres, immigration residential houses, immigration transit accommodation, and alternative places of detention at particular dates in 2014 and 2015. These statistics, which are set out below, were admitted by the respondent at the hearing on 15 December 2015:
(1) As at 31 December 2014, 2,757 people were detained in these facilities.
(2) As at 31 January 2015, 2,298 people were detained in these facilities.
(3) As at 31 August 2015, 2,028 people were detained in these facilities.
(4) As at 30 September 2015, 2,044 people were detained in these facilities.
26 These statistics supplemented the evidence from Ms Pfeiffer that the immigration detention network, as at September 2015, managed over 2,000 detainees, 500 of whom were assessed as being of “high’ or “extreme” risk.
27 The following facts, which I do not understand to be controversial, are drawn from the evidence contained in the documents mentioned above as summarised in the parties’ written submissions.
Discussions with the States and Territories
28 From January 2015, the Department was engaged in planning a multi-agency operation to effect the cancellation of Mr Graham’s visa, detain him under s 189 of the Act, and hold him in a correctional facility pending his removal from Australia. At the time of planning these measures, there were no immigration detention facilities in Tasmania.
29 The planning of the operation included making arrangements for the detention of Mr Graham in a correctional facility rather than an immigration detention centre because of his status as a “confirmed member of the Rebels Outlaw Motorcycle Gang” and his criminal record.
30 To this end, from January 2015 until May 2015, the Department liaised with Tasmanian corrective services about whether Tasmania would permit Mr Graham’s immigration detention to occur in a correctional facility within its borders. On 22 January 2015, the Department sent the Tasmanian Prison Service a draft memorandum of understanding “for the placement of immigration detainees in Tasmanian Prison Services facilities”.
31 In early March 2015, Tasmanian authorities advised the Department that “Tasmanian legislation may not support” Mr Graham’s immigration detention at a correctional facility. The concern was, apparently, that no proclamation had been made under s 9(2) of the Corrections Act. Pursuant to that section, the Governor of Tasmania may declare that a Tasmanian prison is to be available for the detention in custody of persons other than prisoners or detainees as defined in s 3 of that Act (being persons subject to a court order sentencing them to a term of imprisonment or remanding or otherwise committing them to prison).
32 As at 20 March 2015, Tasmania had not yet determined whether to commence formal negotiations with the Department. On 28 April 2015, Tasmanian authorities indicated that they had issues with the draft memorandum of understanding. Ultimately, the Department was unable to reach an agreement with Tasmania. On 1 June 2015, at a meeting with the Department, Tasmanian officials confirmed that Tasmania would not hold Mr Graham in immigration detention at any of its correctional facilities.
33 From about January 2015, following the initial discussions with Tasmania, the Department also engaged in similar discussions with corrections officials from Western Australia, the Northern Territory and New South Wales.
The Placement Minute
34 On 4 March 2015, a minute titled “Transfer of Person of Law Enforcement Interest: Aaron Joe Thomas GRAHAM – Placement Decision” (“the Placement Minute”) was presented to senior officers at the Department, including Ms Pfeiffer. A copy of the Placement Minute was in evidence annexed to her affidavit. The Placement Minute recommended that Mr Graham be detained within a correctional facility. In the event that he could not be held in a correctional facility, it was recommended that he be detained at the Northwest Point Immigration Detention Centre on Christmas Island as it was the most secure facility within the immigration network. Mr Graham’s detention was to continue “until such time as his immigration matters can be resolved” with reviews of his detention to be scheduled “in line with existing case management practices” and at the occurrence of any “trigger event … requiring immediate review.”
35 The recommendations as to the location of Mr Graham’s detention were made on the basis of information the Department had received from the Australian Federal Police, the Australian Crime Commission, and State police services. The Placement Minute noted that Mr Graham was recorded on the National Gangs List of outlaw motor cycle gang members as a “patched” member of the Rebels Motorcycle Club. A “patched” member is a person who has been nominated and formally accepted as a full member (rather than as an affiliate member or associate). Mr Graham was recorded in 2013 on that list as the President of the Kingston chapter of the club. Tasmanian police records also indicated that he was the Tasmanian State Vice President of the club. Mr Graham had previously held positions as the Tasmanian State Sergeant-at-Arms as well as the President of both the Devonport and Hobart chapters of the club.
36 The Placement Minute also referred to Mr Graham’s “extensive and significant Australian criminal history” dating from 1983, which included convictions for possession of a firearm without a licence, possession of unregistered firearms and ammunition, possession or use of a prohibited weapon (a sawn-off rifle), unauthorised possession or use of body armour, drug offences, assault (including of police), grievous bodily harm, threatening behaviour, breach of bail, conspiracy, demanding property with menaces, breaking and entering, and multiple traffic offences including dangerous driving.
37 Because of his high-ranking club membership and criminal record Mr Graham was identified in the Placement Minute as presenting “a level of risk to the detention network that cannot be mitigated through any strategy other than detention in a correctional facility.” This was so even though he was “currently residing lawfully in the community after successful completion of his most recent sentence”.
38 The Placement Minute noted that holding Mr Graham in conventional immigration detention might lead to risks that would be “likely to exceed the department’s tolerance and the service provider’s ability to manage them, particularly if the resolution of his removal [was] protracted.” It further noted that immigration detention facilities already contained other members or associates of outlaw motorcycle gangs and that those facilities were close to exceeding capacity and, in some cases, already had exceeded capacity.
39 The Placement Minute recorded that the Department had not yet reached agreement with Tasmania to detain Mr Graham in a correctional facility within that State because of issues arising from “legislative impediments”. It noted that, if those issues could not be resolved, the Department would commence negotiations with other State or Territories.
40 The Placement Minute was signed on 5 March 2015 by Ms Pfeiffer, in her capacity as acting Assistant Secretary of the Detention and Operations Branch, and Mr Steve Biddle, as Regional Manager, West. In doing so, they approved alternative recommendations relating to the detention of Mr Graham. As noted, the first recommendation was that Mr Graham be accommodated “within a correctional facility under immigration detention provisions”. The second recommendation was that, “subject to th[at] placement … no longer being appropriate”, his detention occur at the Northwest Point Immigration Detention Centre.
Agreement with New South Wales
41 In early May 2015, the Department reached an in-principle agreement with New South Wales as to the location of Mr Graham’s detention. On 12 May 2015, the NSW Assistant Commissioner of Corrections Strategy and Policy in Corrective Services NSW informed the Department that, after reviewing certain intelligence material, NSW was able to accommodate Mr Graham at the Goulburn Correctional Centre. The Assistant Commissioner identified this location as “the best placement for managing [Mr Graham’s] association issues” and as “provid[ing] an appropriate level of security”. On 11 June 2015, the Assistant Commissioner confirmed to the Department that Corrective Services NSW continued to be willing to receive Mr Graham.
42 No other State or Territory offered to receive Mr Graham and hold him in any other prison or correctional centre.
The operation
43 By 21 May 2015 planning of the operation to apprehend and detain Mr Graham was underway. On 26 May 2015, the Department contacted Tasmania Police with a view to arranging operational support by Tasmanian officers. On 1 June 2015 a planning meeting was held in Hobart with representatives of multiple agencies including officers of the Department and members of Tasmanian Police.
44 As at 10 June 2015 planning was in its final stages. The operation was to involve: the apprehension and restraint of Mr Graham by Tasmania Police at the request of the Department; the transfer of Mr Graham facilitated by Tasmania Police via a chartered flight from Hobart to Canberra; and the secure transport of Mr Graham from Canberra to Goulburn Correctional Centre “by gangs taskforce members” from the Australian Federal Police and NSW Police. The Department’s National Command Group, Strategic Border Command was to provide command and control of the operation.
45 As mentioned above, Mr Graham’s visa was cancelled on 15 June 2015 by the Minister. A few minutes later, an email was sent by the Department to the relevant agencies advising that Mr Graham was now an “unlawful non-citizen” and confirming that the operation could now begin. The following day, on 16 June 2015, the operation was executed and Mr Graham was apprehended and taken into detention.
Transferring Mr Graham
46 Annexed to the affidavit of Mr Rogers, which was affirmed on14 December 2015, were copies of three records of the Department. The first was a document titled “Transfer of Custody TPol to Serco”. It was from a compliance officer of the Department and addressed to a Tasmanian Police officer. It was signed and dated by the departmental officer on 16 June 2015 at 10.44 am. It stated:
I, Dan PN 3074, am an officer for the purposes of the Migration Act 1958 (the Act).
You currently hold Mr GRAHAM Aaron John Thomas born [redacted] in lawful detention under the Act.
I hereby authorise you to transfer custody of the detainee to an officer from SERCO of the departments [sic] Immigration Detention Centre network, also an officer for the purposes of the Act.
47 The second document was titled “Request for Officer to Hold in Immigration Detention”. It was signed and dated 16 June 2015 at 2.36 pm by the same compliance officer. It stated:
To: CORRECTIONS NSW
GOULBURN CORRECTIONAL CENTRE
Attention: Custody Manager
I, D. [redacted], am an officer for the purposes of the Migration Act 1958 (the Act).
Mr GRAHAM Aaron Joe Thomas born [redacted]
Is liable to be held in immigration detention under the Act, as:
The person is known or reasonably suspected to be:
An unlawful non-citizen; or
a non-citizen whose visa is liable for cancellation; or
Under section 5 of the Act, a person is in immigration detention, if they are being held by or on behalf of an officer at a place specified in paragraph (b) of that definition (‘a place of immigration detention’).
As an officer for the purposes of the Act, I hereby request you to hold the person on my behalf in the holding cells of this Police Station or another appropriate complex, a place of immigration detention.
48 The third document was titled “Transfer of Custody”. It was addressed to Serco from the same compliance officer. It was signed and dated 16 June 2015 at 2.38 pm. It stated:
I, Dan PN 3074, am an officer for the purposes of the Migration Act 1958 (the Act).
You currently hold Mr GRAHAM Aaron John Thomas born [redacted] in lawful detention under the Act.
I hereby authorise you to transfer custody of the detainee to an officer from CORRECTIONS NSW – GOULBURN, also an officer for the purposes of the Act.
Mr Graham’s communications with his case officer
49 In his affidavit, sworn on 14 December 2015, Mr Graham deposed that, on 18 June 2015, while at Goulburn Correctional Centre, he was told by a prison guard to come to the reception area of the prison for a “professional visit”. He was taken to a room in the reception area where he met with a man and a woman. The man, whose first name was, coincidentally, also Graham, was introduced as his case officer from the Department. The woman, whose name Mr Graham did not recall, was his colleague. The case officer apparently told Mr Graham that he would be sent back to New Zealand unless he engaged lawyers and appealed the decision within seven days. Mr Graham said that the case officer asked his colleague to step outside the room and then proceeded to attempt to persuade him to voluntarily return to New Zealand. Mr Graham resisted that pressure and told the case officer that he would seek legal advice.
50 The case officer then called his colleague back into the room and Mr Graham completed a “case management issues form”. Mr Graham deposed that he used that form to ask why he had been taken to mainland Australia with no contact with his family or lawyers when he could have been taken to a Tasmanian prison. He noted that his Tasmanian prison classification was “medium to minimum security”. He said that he never received any response to that form.
51 A copy of the form was not annexed to Mr Graham’s affidavit but was contained in the court book filed in proceeding TAD 29 of 2015 and, therefore, formed part of the evidence in this proceeding. It was signed and dated 18 June 2015. It stated:
Australian Government
Department of Immigration and Border Protection
Case Management Issues Form
Please complete this form if you wish to raise issues about the way your case is being handled. If you are unable to complete this form in English, translation services will be arranged.
…
Details of the issue(s) you wish to raise:
Why was I taken from Tasmania and placed in Gouburn Maximum Prison a long way from my family no contack with them or lawers. Why wasn’t I placed in Tasmania prison where at least I could have family and now I have zero help in another State prison. … I do not hold any office positions in my motorcycle club to date. I got here two days ago I been told today I have 5 days to get Immigration lawyer I have … the clothes I was wearing with $100 in my bank … I feel unfairly delt with due to my Tasmanian prison classification I am a medium to minimum security risk and whilst I was there I attened a Prison Mentor Course to help new and old inmates with there drug and psych and Rules of the prison to referais. I have a Peer Supporters Certificate.
Once completed, fax this form to Mr. Daniel Florent, Director of NSW/ACT Case Resolution. Mr. Florent will respond in writing to the issue(s) you have raised and where appropriate will arrange to meet with you or the relevant Assistant Director.
(Errors in the original.)
52 Mr Graham said that the case officer had told him that he could be detained for a while and that the only place that could occur was at Goulburn. When Mr Graham asked him why that was so, the case officer said that he did not know.
53 At paragraph [18] of his affidavit, Mr Graham deposed to telephone calls that he received from his case officer about once a month:
18. I never saw Graham [the case officer] or his colleague again; nor have I been visited or contacted by any other Immigration officials. But Graham does telephone me here at the prison about once a month. Typically:
a. Graham asks how I’m going.
b. I say that I’m not going very well.
c. Graham asks if I’m still depressed and missing my family.
d. I say that I am.
e. Graham then asks me a series of questions about what’s happening with my lawyers and my court case.
f. I never tell him anything but he always tries to get information about this.
i. For example, the first time he telephoned, he asked me what was happening with my lawyers and I said I didn’t know. He said something like “what do you mean, you don’t know?”. I said that I didn’t know. He said something like “isn’t that a bit unusual that you don’t know what your own lawyers are doing?” I said “no”.
ii. In later conversations he asked me what steps are being taken. I never tell him anything but he keeps asking.
g. Before he hangs up, Graham asks if I have any requests. I always ask to be moved to Tasmania so that I can be closer to my family and because of my heart condition and depression.
h. Graham says that he will put it to his executive.
i. I ask him whether he has heard anything about my previous requests. He says that he hasn’t.
(Emphasis added.)
54 Prior to swearing his affidavit, Mr Graham’s most recent conversation with his case officer had occurred on Thursday, 3 December 2015. Relevantly, he deposed, at [19] of his affidavit, that the conversation involved the following exchange:
o. I asked him when I would be transferred to Tasmania.
p. He said that he was still waiting for an answer from his executive. He said that he had put it to his executive several times but had not heard anything back.
q. I said: “That’s what you always say.”
r. He said something like: “that’s just how it goes”.
55 Mr Graham deposed that he had “never had any response to [his] requests to be transferred to Tasmania.”
The case reviews
56 Among the documents filed as part of the tender bundle were records of the “case reviews” conducted by the Department into Mr Graham’s detention at Goulburn. These reviews assessed the appropriateness of his detention as at 3 July 2015, 7 August 2015, 10 September 2015 and 6 October 2015. The first case review on 3 July 2015 contained the following observations:
Client Placement
Justification of ongoing detention placement/accommodation arrangements including barriers to less restrictive forms of detention, and actions taken or being taken to overcome these barriers or explore alternate options.
Mr GRAHAM is presently held in Immigration Detention at the Goulburn Correction Centre. His short term placement at this facility appears appropriate at this stage. However, in the event, his immigration pathway becomes protracted, the Department, in my view, may need to consider alternative long term placement arrangements for Mr GRAHAM.
Mr GRAHAM has expressed concerns regarding his current placement arrangements, in that he has requested to be transferred to Risdon Prison in Hobart to be closer to his family. This matter has been exculpated [sic] to NatO.
…
Other Information
Please enter any other information relevant at this time.
- He further mentioned that he provided care for his wife.
- He stated that his daughter is deeply distressed at what has occurred and as a direct result she had [suffered health problems]. …
- He also mentioned that he would like to be closer to other relatives and friends.
- He just wanted to see his wife and kids as he missed them.
He repeated the above concerns a number of times through out of [sic] the conversation. I advised Mr GRAHAM that I would escalate his concerns to my executives asap.
…
I advised Mr GRAHAM that I would remain in contact with him and I reiterated that I would escalate his concern to my executives asap.
57 The next case review, which took place on 7 August 2015, repeated the content which appeared under the heading “Client Placement” in the 3 July 2015 report. Under the heading “Other Information” it recorded:
Mr GRAHAM again stated that whilst he had no concerns regarding his current placement arrangements within Goulburn Correction Centre and requested that he be transferred to Risdon Prison, in Hobart for the following reasons;
- He would like to be closer to his wife and children so that they can visit him on a regular basis as they are unable to visit him whilst he remains held in detention at Goulburn Correctional.
- He also mentioned that he would like to be closer to other relatives and friends.
- He repeated the above concerns a number of times throughout of [the] conversation. I advised Mr GRAHAM that I would escalate his concerns to my executives asap.
I advised Mr GRAHAM that I would remain in contact with him and I reiterated that I would escalate his concerns to my executives asap.
(Errors in the original.)
58 Each of the subsequent case reviews recorded that “Mr GRAHAM continues to express concerns regarding his current placement arrangements, in that he has requested to be transferred to Risdon Prison in Hobart to be closer to his family. This matter has been exculpated [sic] to NatO.” “NatO” is, apparently, a reference to “National Operations”. The last case review, on 6 October 2015, added the following: “He has also filed an application before the Federal Court in relation to his current placement arrangements.” None of the case reviews recorded any response from the “executives” or whether a decision had been made in relation to Mr Graham’s request to be moved.
LEGISLATION
59 It is convenient, at this point, to set out the relevant sections of the Act. Section 5(1) relevantly provides:
detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
detainee means a person detained.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
…
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).
60 The reference in s 5(1)(b)(i) to “a detention centre established under the Act” is to centres mentioned in s 273, which provides:
273 Detention centres
(1) The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.
(2) The regulations may make provision in relation to the operation and regulation of detention centres.
(3) Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:
(a) the conduct and supervision of detainees;
(b) the powers of persons performing functions in connection with the supervision of detainees.
(4) In this section:
detention centre means a centre for the detention of persons whose detention is authorised under this Act.
61 The term “officer” is also defined in s 5(1):
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.
62 Section 13 contains the definition of “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.
63 Section 14 contains the definition of “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.
64 Section 189(1) of the Act provides as follows:
189 Detention of unlawful non-citizens
(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
65 At the relevant time, in June 2015, s 196 of the Act provided as follows:
196 Duration of detention
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(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), (aa) or (b)) unless the non-citizen has been granted a visa.
(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 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.
(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(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 199, 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.
(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
(6) This section has effect despite any other law.
(7) In this section:
visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
66 It is also convenient to set out the relevant provisions of the Corrections Act. At the relevant time, in June 2015, s 6 provided for the powers and duties of the Director of Corrective Services:
6 Powers and duties of Director
(1) The Director is responsible to the Secretary—
(a) for the care and direction of all prisons, prisoners and detainees and the control of all prisons; and
(b) for the order and control of all prisoners and detainees.
(2) The Director has the powers, functions and duties vested in or conferred or imposed on him or her by this Act, the Sentencing Act 1997 and the Mental Health Act 2013.
(3) The Director may make standing orders for the management and security of prisons and for the welfare, protection and discipline of prisoners and detainees.
…
67 Section 9 of the Corrections Act provided for the establishment of prisons:
9 Establishment of prisons
(1) The Governor, by proclamation, may declare any premises or place or any part of any premises or place to be a prison.
(2) The Governor, by proclamation, may declare that a prison is to be available for use for the detention in lawful custody of persons other than prisoners or detainees.
(3) Nothing in this Act is to apply to or in relation to the detention of persons other than prisoners or detainees in a prison referred to in subsection (2).
68 Section 3 of the Corrections Act contained the following relevant definitions:
detainee means a person, other than a prisoner, who is subject to an order of a court by which he or she is remanded or otherwise committed to prison;
…
prisoner means a person who is subject to an order of a court by which he or she is sentenced to a term of imprisonment and includes a person declared as a dangerous criminal under section 19 of the Sentencing Act 1997;
GROUND 1
69 In Ground 1 Mr Graham alleged that the decision-maker had misunderstood ss 189 and 196 of the Act. The particulars of his complaint were as follows:
(1) “Detain” is defined in s 5 of the Act to include “taking such action” as is “reasonably necessary” to take a person “into immigration detention”.
(2) Whether the steps taken to continue Mr Graham’s detention were “reasonably necessary” depended on the alternatives that were available, including whether he could have been detained in the Risdon Prison Complex, which is located closer to his home and support networks in Tasmania.
(3) It can be inferred from the affidavit of Ms Pfeiffer that the decision was made on the basis that:
(a) it was not possible for Mr Graham’s detention to continue at a correctional facility in Tasmania unless Tasmanian officials were prepared to accept him; and
(b) Tasmanian officials were not prepared to accept him.
(4) The Minister failed to appreciate that ss 189 and 196 of the Act imposed a duty on those in charge of places referred to in paragraph (b) of the definition of “immigration detention” in s 5 of the Act to receive detainees on request.
Mr Graham’s submissions
70 Mr Graham advanced three arguments in support of Ground 1. His principal contention was that there is an implied duty on places of immigration detention to receive detainees upon request. The existence of this duty was not, he said, compromised by the doctrine arising from Melbourne Corporation v The Commonwealth (1947) 74 CLR 31. Further, the Corrections Act was no impediment to the duty because s 109 of the Constitution rendered that Act inoperative to the extent of any inconsistency with the implied duty for which he contended.
The implied duty
71 Mr Graham submitted that the implied duty arose out of the obligation imposed upon officers to detain unlawful non-citizens under s 189, the identification of State prisons as places of “immigration detention” in s 5(1), and the definition of “detain” in s 5(1). The relevant effect of these provisions, he contended, is to allow an officer to discharge his or her duty to detain under s 189 by “causing” a person to be “kept” in detention on the officer’s behalf in a State prison.
72 Absent the implied duty, he argued, an officer would be left in an impossible situation because those in charge of places of immigration detention, including State prisons, could refuse to accept detainees. Without such relief, an officer must continue to restrain a detainee until the occurrence of one of the events specified in s 196(1). Such a process may be very lengthy, especially if the detainee applies for a protection visa: see s 198(5A); Al-Kateb v Godwin (2004) 219 CLR 562 at 571-572; [2004] HCA 37 at [1] (Gleeson CJ); Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at 497-498; [2004] HCA 36 at [18] (Gleeson CJ). If the conditions for removal never arise, a person may be detained indefinitely: Al-Kateb at 580-581 [31] and [33] (McHugh J), 640 [231] and 652 [270] (Hayne J, Heydon J agreeing at 663-664 [303]) and 662 [299]-[302] (Callinan J). Just as an officer has no discretion whether to detain an unlawful non-citizen, he or she also lacks the discretion to permit the early release of the detainee. Parliament could not have intended such a result. The implied duty therefore arose.
Melbourne Corporation doctrine
73 Mr Graham submitted that the operation of the Melbourne Corporation doctrine did not tell against the existence of the duty. The principle underpinning the doctrine was identified by Gaudron, Gummow and Hayne JJ in Austin v Commonwealth (2003) 215 CLR 185 at 246; [2003] HCA 3 at [115], as being that “the Commonwealth’s legislative powers do not extend to making a law which denies one of the fundamental premises of the Constitution, namely, that there will continue to be State governments separately organised.” The relevant inquiry was whether the implied duty, in substance and by its operation, “in a significant manner curtails or interferes with the capacity of the States to function as governments”: Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595 at 626; [2004] HCA 3 at [31] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ), citing Austin at 265 [168] (Gaudron, Gummow and Hayne JJ).
74 Mr Graham argued that prisons are not among the “essential organs of government” which are “critical to a state’s capacity to function as a government”: see Re Australian Education Union & Australian Nursing Federation; Ex parte Victoria (1995) 184 CLR 188 at 232-233 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). Those organs are confined, he contended, to those earlier identified by Brennan J, namely the Governor, the Parliament, the Ministry and the Supreme Court: State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 at 362 (“The Second Fringe Benefits Tax Case”).
75 Even if a State prison system was among those critical organs, the implied duty would not curtail a State’s constitutional power or compromise its independent existence. Increased complexity in the operation of a prison system would only affect the ease with which State functions were exercised: cf Austin at 259 [146] (Gaudron, Gummow and Hayne JJ). Mr Graham sought to distinguish Austin on the basis that it concerned the judiciary, which was clearly an important aspect of State independence, and which, in this regard, stood in contradistinction to a State prison system. The imposition of the surcharge at issue in Austin increased the difficulty of recruiting persons willing to accept judicial office. That was a more direct interference than the one identified in this case which merely affected the ease of prison administration.
76 If a prison system were to be considered “essential” to the independence of a State, it was likely, so it was said, to be on the basis that a State might require the capacity to detain its own prisoners. Even if this be accepted, Mr Graham submitted that a request to detain one unlawful non-citizen was unlikely to curtail, to a significant degree, Tasmania’s ability to accommodate prisoners. In any event, if such a request could constitute a significant interference in a particular instance (for example, if Tasmania’s prisons were at capacity), the duty would not extend to those circumstances as a matter of statutory construction or by the operation of s 15A of the Acts Interpretation Act 1901 (Cth), which provides that every Act shall be construed so as to not exceed the legislative power of the Commonwealth.
77 Mr Graham submitted that the suggestion of French CJ in Clarke v Commissioner of Taxation (2009) 240 CLR 272; [2009] HCA 33, that a law may have a “significant” impact on a State notwithstanding that its practical effects are minimal, was not raised on the present facts. The “extreme” hypothetical raised in Clarke, of a “gubernatorial privileges tax” on State Governors (at 298 [32]-[33] (French CJ)), differed from the present case which involved the imposition of a duty on State officials at a much lower level.
78 Mr Graham noted, in passing, that, to date, the High Court has declined to decide whether the Melbourne Corporation doctrine extends such that “States … alone have the capacity to give directions to their officials and determine what duties they perform”: see Austin at 269 [181] (Gaudron, Gummow and Hayne JJ); O’Donoghue v Ireland (2008) 234 CLR 599; [2008] HCA 14. Mr Graham contended that to extend the doctrine in this way would invalidate federal laws which “merely affected the ease with which the States exercised their constitutional functions, rather than impaired the exercise of those functions”: O’Donoghue at 625 [53] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ). Such an extension would not be “logically or practically necessary” for the preservation of the structure of the Constitution: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135 (Mason CJ).
79 Mr Graham also referred to s 120 of the Constitution, which provides that “[e]very State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth.” He submitted that those who drafted the Constitution must have thought it appropriate that the States should be subject to that obligation, whatever the number of Commonwealth prisoners. This provided further support for his case that the implied duty did not offend the Melbourne Corporation doctrine.
The Corrections Act is no impediment
80 Mr Graham submitted that was no inconsistency between the Corrections Act and the implied duty. Section 9(2) of the Corrections Act provided that the Governor, by proclamation, “may declare that a prison is to be available for use for the detention in lawful custody of persons other than prisoners or detainees”. Under that Act a “detainee” is “a person, other than a prisoner, who is subject to an order of a court by which he or she is remanded or otherwise committed to prison”: s 3. As Mr Graham was not a “detainee”, the Corrections Act did not (absent the necessary proclamation) require prisons to be made available for his detention. It did not, however, necessarily follow that, absent a proclamation, such detention was impermissible.
81 Mr Graham’s alternative submission was that, to the extent that the Corrections Act purported to prevent his detention in a Tasmanian prison, it would “alter, impair or detract from the operation of a law of the Commonwealth Parliament”: see Victoria v Commonwealth (1937) 58 CLR 618 at 630 (Dixon J) (“the Kakariki Case”); Jemena Asset Management (3) Pty Ltd v Coinvest Limited (2011) 244 CLR 508 at 524; [2011] HCA 33 at [39] (French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ). This would constitute a direct inconsistency for the purposes of s 109 of the Constitution: see Telstra Corporation Limited v Worthing (1999) 197 CLR 61 at 76-77; [1999] HCA 12 at [28] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). The consequences of that inconsistency, namely that an officer could be left in the situation described in [71] above, were “significant and not trivial”: Jemena Asset Management at 525 [41]. Consequently, the Corrections Act would be “rendered inoperative” to the extent of the inconsistency: Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 465 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
82 At the hearing counsel for Mr Graham did not develop these submissions in detail as he did not apprehend that any party contended that the Corrections Act impinged on the implied duty which he propounded.
Consideration
83 No provision in the Act, in terms, imposes a duty on places of immigration detention to receive detainees upon request. Mr Graham, in effect, invites the Court to read such an obligation in to the Act. Such a course is not lightly to be undertaken: see Thompson v Goold & Co [1910] AC 409 at 420 where Lord Mersey said that: “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do so.” See also Minogue v Victoria [2018] HCA 27 at [43] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
84 In Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103; [1985] FCA 374 at 9, Northrop and Pincus JJ examined the relevant authorities and noted “a general disinclination manifested in [those] authorities to make implications in statutes, unless it is strictly necessary to do so.” See also Marshall v Watson (1972) 124 CLR 640 at 649 (Stephen J). Nonetheless such cases do, from time to time, arise. An example is provided by Norton v Long [1968] VR 221 where Winneke CJ was prepared to impose an implied statutory obligation on the users of motorboats to register those boats under the Motor Boating Act 1961 (Vic). Were such an implied obligation not imposed a regulatory scheme, imposed by the Act, would have been inoperative and unworkable.
85 The central question which falls for determination on this application is whether the propounded duty is to be implied, having regard to the provisions of ss 189 and 196 of the Act, to certain definitions appearing in s 5 and to the Act as a whole.
86 A careful analysis of the relevant statutory provisions does not support the existence of the implied duty for which Mr Graham contends.
87 Section 189 requires “officers” to “detain” persons who they know or reasonably suspect to be “unlawful non-citizens”. The word “detain”, as defined in s 5, has two meanings. They are: “take into immigration detention” and “keep, or cause to be kept, in immigration detention”. It is thus contemplated that an officer will, first, take an unlawful non-citizen into immigration detention and, thereafter, keep the person or cause that person to be kept in immigration detention.
88 The term “immigration detention”, as defined in s 5, also has disparate meanings. A person is in immigration detention if he or she is in the company of or restrained by an officer or, relevantly, the person is being held by or on behalf of an officer in a prison operated by a State. The inclusion of a State prison (and other entities in which persons can be held in custody) thereby identifies a place or places in which a person may be held for the purposes of the second limb of this definition.
89 The term “officer” is broadly defined in s 5. It includes officers of the Department, members of the Australian Federal Police and State or Territory police forces and other persons authorised in writing, either personally or as members of a class, by the Minister. It was common ground that, as a result of a ministerial authorisation, persons employed in Tasmanian State correctional services and prison facilities, such as Risdon Prison, were “officers” for the purposes of the Act.
90 The textual source of the pleaded implied duty is the definition of “immigration detention”. The second limb of the definition refers to places where an unlawful non-citizen may be detained. A duty cannot be imposed upon a “place”. The words in the definition of “immigration detention” are not apt to impose a duty upon a manger of a State prison because the words used assume that detention remains the responsibility of the relevant “officer”. It does not purport to impose a duty upon anyone else and, in particular, does not provide any basis to identify which persons associated with places in paragraph (b) of the definition of “immigration detention” are subject to the implied duty. Properly construed these provisions contemplate that the persons associated with the places of detention reach an arrangement or agreement with the detaining “officer” such that the non-citizen is detained thereafter “on behalf of” that officer in the relevant institution.
91 Once an officer has performed the duty, imposed on him or her by s 189(1) and taken an unlawful non-citizen into immigration detention by restraining the person, detention has been effected. At this point s 196(1) requires that the unlawful non-citizen be kept in immigration detention until one or more of the four events prescribed by that subsection occur. The section speaks in the passive voice and does not impose this obligation on any specific person or entity. One (probably impracticable) way in which the detaining officer may satisfy the obligation imposed by s 196(1) would be personally to restrain the unlawful non-citizen for as long as it was necessary. More realistically, the officer could arrange for the unlawful non-citizen to be held on the officer’s behalf at one of the institutions (including a State prison) identified in paragraph (b) of the definition of immigration detention. So understood, there is no practical necessity to construe s 196(1) as imposing a duty on persons other than officers to hold unlawful non-citizens in detention.
92 The question which next arises is whether an officer, other than the officer who originally detained Mr Graham (such as a prison officer employed at the Risdon Prison), was under any implied statutory obligation to keep Mr Graham in immigration detention, upon being requested to do so by the original detaining officer or some other officer who had later accepted the responsibility to hold Mr Graham on behalf of the original officer.
93 No such obligation is expressly imposed by either s 189 or s 196 of the Act. Nor is such an obligation to be found in the statutory provisions which identify places of “immigration detention”. Does the absence of such an obligation in the detention regime, prescribed by the Act, render the regime inoperative or unworkable such that the principle of necessity can be invoked? The answer is clear. The evidence establishes that there was a range of facilities, controlled by the Department, meeting the description of “detention centres established under the Act”, in which Mr Graham could be held on the request of the officer who detained him. There were also other State correctional and prison facilities potentially available to hold Mr Graham. At all relevant times it was within the power of the Commonwealth executive, had a need arisen, to expand the categories of officers and detention centres for the purposes of the detention regime.
94 There is no reason, on the evidence, to conclude that, unless all “officers” were required to accept a request from the original detaining officer or some later officer in that detention chain, the statutory scheme would be frustrated. From the time of the initial apprehension under s 189 there were multiple officers and centres, provided for under the legislation, who could and, in some cases, did look favourably upon such requests. Necessity does not require the implication of a statutory obligation of the kind contended for by Mr Graham.
95 Mr Graham sought to place some reliance on the decision of Madgwick J in Soh v Commonwealth (2008) 220 FCR 127; [2008] FCA 520. In that case the applicant was an unlawful non-citizen who had been held at the Department’s Villawood Immigration Detention Centre. He was involved in an incident which led the authorities to decide to transfer him to Silverwood Prison where a more restrictive form of immigration detention was available. The transfer was facilitated by way of a transfer request similar to that used in relation to Mr Graham, whereby an officer requested that Mr Soh be held on her behalf in Silverwater. There was a question about whether the Act authorised his detention in Silverwood. His Honour held that “the very notion of compulsory detention of people implies, as a matter of practical necessity, that those responsible for the detention should have sufficient power to change the nature and place of detention as circumstances require”: at 144 [83]. His Honour also held that the inclusion of a State prison in the definition of “immigration detention” in s 5(1) of the Act conferred authority upon an officer to have the detainee held within such an institution and made subject to the control of the prison authorities: at 144-145 [85]. The power to detain an unlawful non-citizen arose from the relevant officer’s decision to request a transfer: at 146 [89]. Because the Act expressly contemplated the detention of the unlawful non-citizen in a State prison, it impliedly deprived the detainee of any automatic right to sue the gaoler for false imprisonment: at 145 [86]. Soh thus stands for the proposition that, when requested to do so by an “officer” under the Act, a State official may detain an unlawful non-citizen in a State prison and will not be liable for false imprisonment even if no State law confers the authority to detain. Soh does not stand for the broader proposition, contended for by Mr Graham, that State prison managers are under a duty to detain simply because they are asked by an officer to do so.
96 The Minister’s counsel, in oral argument, advanced the further submission that, as a matter of statutory construction, a court should not readily conclude that one polity in a federation is to be taken to be legislating with respect to the officers of a different polity. This principle was said to be separate and discrete from that embodied in the Melbourne Corporation doctrine, albeit that it was recognised in cases which dealt with that doctrine and there was a clear interrelationship between the two principles. The principle was referred to in Austin, where Gaudron, Gummow and Hayne JJ (at 246 [114]) noted that “Sir Owen Dixon, shortly after Melbourne Corporation, said that in a dual political system, such as a federal system, one did not ‘expect to find either government legislating for the other’”, citing In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 529. It was also evident in O’Donoghue at 624 [51] where the Court quoted from the following passage by Westel W Willoughby appearing in The Constitutional Law of the United States (Baker, Voorhis and Company, 1929, 2nd ed) vol 1 at 120:
In general, however, the Federal and State Governments act independently of each other, as regards their executive or administrative services, and the principle is well established that the Federal Government may not impose upon State officials the imperative obligation and burden of executing federal laws, nor, a fortiori, may States obligate Federal officials to execute State laws.
This principle provides a further reason for caution when the Court is invited to hold, in the absence of clear statutory language, that an Act of the Commonwealth Parliament imposes obligations on State officials who are designated as “officers” under that legislation or, for that matter, State officials who may not hold that status, such as managers of prisons.
97 For these reasons, in my view, Mr Graham’s principal argument fails.
98 In the light of this finding it is not necessary for me to embark upon a consideration of the impact of the Melbourne Corporation doctrine in the circumstances of the present case or whether any inconsistency arises in relation to the Corrections Act for the purposes of s 109 of the Constitution.
GROUND 2
99 Under Ground 2, Mr Graham asserted that he had been denied procedural fairness. The particulars of his claim were that:
(1) the question where to detain Mr Graham was attended by a duty to afford him procedural fairness;
(2) the content of that duty was not reduced to zero in respect of the decision that his detention continue at the Goulburn Correctional Centre;
(3) the decision was executed on 16 June 2015; and
(4) Mr Graham had no prior opportunity to make submissions in respect of the decision.
100 At the hearing counsel for Mr Graham indicated that he may need to seek leave to amend the particulars to make clear that the decision that Mr Graham challenged the decision to maintain his detention at Goulburn. While no application was ultimately made it was clear from Mr Graham’s written submissions and those made at the hearing that his complaint was not directed to an absence of hearing prior to his initial detention when he was first apprehended in Tasmania but rather his subsequent placement at Goulburn.
Mr Graham’s submissions
101 Mr Graham asserted that the Minister’s decision to maintain his detention at Goulburn was attended by a duty to afford him procedural fairness. This duty arose because a decision as to the place of detention affects a detainee’s interests.
102 This submission was an element of a broader proposition that a duty to afford procedural fairness arises each time a placement decision is made, although the content of the duty will differ depending upon the particular circumstances. Mr Graham conceded that the content of the duty was reduced to zero in respect of his initial detention because of security concerns and flight risk. These concerns were absent in relation to the decision as to the location of his ongoing detention and, accordingly, the duty was not reduced to nothing when the decision was made to move him to Goulburn.
103 Mr Graham accepted that the duty to accord procedural fairness, in respect of the decision to detain him at Goulburn, did not arise on the basis that his liberty would be compromised, as that interest was relevantly extinguished when he was initially taken into detention. Rather, the decision to place him at Goulburn affected his interest in maintaining his family relationships by separating him from his family for the duration of his detention. The nature on this interest was sufficient to stimulate the requirement that he be given a fair hearing.
104 The Minister had failed to afford him procedural fairness by not providing him with an opportunity to be heard prior to making the transfer decision. Whatever was subsequently done by the case officer in relation to his requests to be moved to Tasmania did not satisfy the requirements of procedural fairness because there was no evidence that anybody with the relevant authority ever became aware of those requests, considered them, or made a decision that the detention at Goulburn remained appropriate. Procedural fairness required the decision-maker to consider his submissions. The periodic reviews conducted by his case officer as to the appropriateness of his detention at Goulburn did not discharge the obligation.
105 Mr Graham again relied upon Soh, where Madgwick J had held that there was a duty to afford the applicant procedural fairness before transferring him from an immigration detention centre to a State prison (at 147 [96]-[97]). His Honour held that a legislative intention to exclude procedural fairness will not be assumed “from indirect references, uncertain inferences or equivocal considerations” (at [95], citing State of South Australia v Slipper (2004) 136 FCR 259 at 279-280; [2004] FCAFC 164 at [93] (Finn J, Branson and Finkelstein JJ agreeing at [71] and [148] respectively)). His Honour noted that sometimes there will be only one choice as to location, but often “choices may be made as to which is the preferable of various available places and modes of detention” having regard to such circumstances as “whether children are involved, physical and emotional health considerations, foreseen disciplinary problems and so on” (at 146 [91]-[92]). Mr Graham in particular relied upon his Honour’s observations at 146 [91]-[92] that:
91 … The scope for choice is likely wider once initial detention has been secured. Very often there will be no need for urgency in making the decision.
92 There is, in other words, no valid basis for an assumption that the demands of security would necessarily be inconsistent with an implied duty to accord the detainee procedural fairness before an officer decides where and how to effect the detention, whether initially or as may be necessary to consider from time to time.
106 Mr Graham also submitted that Ms Pfeiffer’s evidence, that to disclose “options” to him would compromise the security of the transfer process, was unconvincing because the Department had total control over the timing of the transfer and his ability to communicate with the outside world and, in any event, a hearing could be afforded without disclosing those options.
Consideration
107 There was no issue between the parties as to the existence of power, under the Act, to transfer Mr Graham between places of detention. The power is a necessary incident of the detention regime: Soh at 144 [83]. Similarly, Ryan J in VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554 at [9]-[10] held that the selection of a particular mode of detention is invalid only if it falls outside the definition of “immigration detention” in s 5 of the Act and that “the flexibility in the selection of a mode and place of detention which the various ... definitions [in s 5] afford does not, by implication, restrict the Minister’s choice in a particular case or impose any statutory duty to consider alternative modes of detention” (at [10]). A Full Court cited this statement with apparent approval in SBEG v Commonwealth of Australia (2012) 208 FCR 235 at 247; [2012] FCAFC 189 at [49] (Keane CJ, Lander and Siopis JJ).
108 The questions which were debated were whether any procedural fairness obligations arose in relation to the ongoing detention of Mr Graham and, if so, whether those obligations had been satisfied by the Minister.
109 There can be no doubt that the decision to take Mr Graham into custody under s 189(1) of the Act impinged on his liberty. Such a fundamental interest would normally attract procedural fairness obligations on the part of the officer responsible for the decision. Mr Graham had become liable to detention because the Minister had cancelled his visa pursuant to s 501(3) of the Act and he had therefore become an unlawful non-citizen. The Minister’s decision was not subject to procedural fairness requirements: see s 501(5). The detaining officer was, as a result of the Minister’s decision, under a statutory obligation to detain Mr Graham.
110 As Mr Graham conceded, even if a duty of procedural fairness arose at that stage, its content was reduced to zero by the statutory scheme.
111 As already noted Mr Graham’s submissions focussed on his ongoing detention at Goulburn Prison which was the subject of periodic reviews. The relevant interest which he identified was his interest in maintaining familial relationships.
112 Procedural fairness will only be owed where a power exists to destroy or prejudice a person’s “rights or interests”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258; [2010] HCA 23 at [11] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 352; [2010] HCA 41 at [74] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
113 The question which falls for determination is whether the interests identified by Mr Graham were sufficient to attract procedural fairness protections.
114 The authorities suggest that a relevant right is unlikely to be found in relation to decisions made by custodial authorities in respect to the management of detainees once they have been taken into custody. In Moran v Secretary to the Department of Justice and Regulation (2015) 48 VR 119; [2015] VSC 593, the applicant challenged a decision to move her from communal accommodation in a prison to a cell elsewhere in the prison. While accepting that the move had significant practical effects on the applicant, McDonald J found that the decision did not attract a right to procedural fairness because it had not affected any of her legal rights or interests: at 125-126 [19]-[20], [24]. The relevant State legislation did not mandate that she should be accommodated in any particular section of the prison: at 126 [26]. McDonald J noted (at 127 [26]) Nettle JA’s observation in Anderson v Pavic [2005] VSCA 244 at [33] that it was “unlikely that Parliament should have intended that the courts sit in judgment upon questions of fact routinely decided by prison authorities in the course of management and administration of the prison for which they are responsible”.
115 In Certain Children v Minister for Families and Children (2016) 51 VR 473; [2016] VSC 796 at [319], Garde J applied Moran to conclude that young persons in detention, who were transferred from youth justice facilities in Parkville and Malmsbury to a newly-created youth justice facility called the Grevillea Youth Justice Precinct, which was situated in the grounds of the adult male prison in Barwon, had no right to procedural fairness. The transfer decisions had been made by the Secretary to the Department of Health and Human Services under s 484 of the Children Youth and Families Act 2005 (Vic).
116 Other transfer decisions made under that power were the subject of consideration by John Dixon J in Certain Children v Minister for Families and Children (No 2) [2017] VSC 251. Decisions were made to transfer two children from Parkville to Grevillea. His Honour followed Garde J’s judgment and concluded that the decisions did not attract a procedural fairness obligation: at [155]. His Honour noted that, while there was a disputed factual issue as to whether conditions at Grevillia would be materially worse for the detainees, the transfer decisions made under s 484 did “not involve a legal change of a fundamental nature” (at [150]). It was also relevant that the provisions in that Act, which provided for paramount consideration being given to the best interests of child detainees and decision-making principles, and which were intended to give guidance to the administration of the Act, were expressly excluded from applying to decisions made under s 484. Their exclusion meant that “[t]he routine course of management and administration of the detained children in appropriate centres remains as the prominent purpose of the power”: at [152]-[153].
117 In his judgment (at [147]-[154]) John Dixon J distinguished ID v Director General, Department of Juvenile Justice (2008) 78 NSWLR 158; [2008] NSWSC 966. In that case, Johnson J found (at [187]-[200]) that the transfer of the plaintiffs from juvenile detention centres to adult correctional centres, pursuant to a power in s 28 of the Children (Detention Centres) Act 1987 (NSW), attracted an obligation to accord them procedural fairness. Each youth (who was over the age of 18 but under 21) had been sentenced to juvenile detention (rather than detention in an adult correctional centre) on the basis that the sentencing judge was satisfied that there were “special circumstances” justifying this course. While the relevant Act provided for the power of the Director-General of the Department of Juvenile Justice to undo the effect of the judicial order by way of an administrative decision, there was nothing in the scheme which indicated that this could be done without according the detainees procedural fairness (at 178 [188]). Because of the mode of sentencing, a legitimate expectation that each plaintiff would not be subject to an involuntary transfer without procedural fairness being shown to them was said to arise (at 178 [190]). His Honour concluded that such a transfer order was not merely a prison management decision. Rather, it involved “a fundamental change in the nature and quality of detention” to which a detainee would be subject, including the possibility that a longer period of custody would result (at 178 [192]). Relevantly, the judge stated that such decisions could be distinguished from those made in the adult prison system where “hundreds, if not thousands, of classification decisions are made concerning prisoners each year”: at 178 [193].
118 A S v Secretary to the Department of Justice and Regulation [2017] VSC 310 is a related, but distinguishable, decision. Justice Jane Dixon found that the wife of a prisoner who was subject to an order by the Secretary made under s 43(1A) of the Corrections Act 1986 (Cth), which prohibited her from visiting all Victorian prisons for a period of 12 months, should have been accorded procedural fairness prior to that decision being made (at [107]). The plaintiff had been banned on the basis of a suspicion that she had trafficked unauthorised articles into the Metropolitan Remand Centre (at [19]). Her Honour considered that s 37(1) of that Act, which provided that, with the permission of the Governor, a prisoner’s relatives or friends may enter a prison and visit the prisoner, conferred a “conditional right” upon the wife (at [84]). Statutory context was provided by s 47(1)(k), which stated that every prisoner has the right to receive at least one visit in each week under s 37. Her Honour did not consider it necessary to determine whether s 37(1) conferred a “legal right” (and noted that the plaintiff did not assert a common law right) but found that the plaintiff enjoyed a sufficient “interest” of the kind recognised by Brennan J in Kioa v West (1985) 159 CLR 550 at 619. As that interest was apt to be affected by the ban a right to procedural fairness was enlivened (at [84]).
119 Her Honour also appeared to identify a separate “social interest” which inhered in the wife as a family member and the marital partner of the prisoner and which, if diminished, was capable of having significant consequences on her welfare (at [89]) as well as on the welfare of the prisoner (at [90]). These interests were identified (at [90]) as being no less important than the professional interests which solicitors, who had been banned from visiting prisons, had earlier been held to enjoy: see Nicopoulos v Commissioner for Corrective Services (2004) (2004) 148 A Crim R 74 at 97; [2004] NSWSC 562 at [111]-[112] (Smart AJ); Reed v Commissioner for Corrective Services [2008] NSWSC 161 at [39] (Fullerton J).
120 At [94] her Honour distinguished the impugned decision from other decisions which placed conditions upon inmates and visitors to prisoners in the context of those visits. The imposition of such conditions, which were characterised as “mere administrative or managerial decision[s] that can be made without any procedural fairness towards the party affected” were found to be sufficiently different from a decision banning a family member from visitation at any Victorian prison for 12 months (at [94]). Her Honour also distinguished a range of cases on the basis that they concerned the interests of prisoners, rather than the interests of visitors (see, eg, at [102] and [112]).
121 Mr Graham does not complain about a decision to transfer him from one form of detention to another. Rather, he asserts an entitlement to be heard as to why he should be transferred from one detention facility to another of his choosing. The decisions relating to procedural protections (or the lack of them) in relation to the transfer of prisoners from one place of incarceration to another are not, therefore, directly in point. It is also to be observed that each of these case turned, in part at least, on the construction of statutory provisions regulating the making of transfer decisions. Nonetheless, these decisions demonstrate the reluctance of courts to require hearings before management decisions are made about the transfer of prisoners from one place of detention to another. Similar principles, in my view, apply to decisions, either actual or de facto, to maintain the status quo in respect to a particular detainee.
122 Once he was taken into detention Mr Graham had no right, under the Act or otherwise, to be held in any particular place of immigration detention. His management required decisions to be made as to the most appropriate available facility in which he was to be held. In my opinion he had no right to be heard in relation to a determination that he be held or remain in a particular facility. Despite the absence of any relevant right he, as it happened, was afforded the opportunity, in the course of case reviews, to make transfer requests. His real complaint is that these requests were not actioned to his satisfaction.
123 My conclusion derives support from the recent decision of the High Court in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1. The Court held that the statutory power in s 72(4) of the Maritime Powers Act 2013 (Cth), to detain and take to another place a person who was on a detained vessel, was not conditioned by procedural fairness. Chief Justice French found that there was “no appropriate administrative framework to afford persons to whom s 72 applies a meaningful opportunity to be heard” having regard to the fact that maritime officers exercising the power do so in a chain of command (at 541-542 [52]). Justices Hayne and Bell considered that any right, interest or expectation of such a person, for example an expectation of entering Australia, had already been defeated by the prior detention of the vessel pursuant to s 69: at 558-559 [117]. Justice Kiefel considered (at 606-607 [306]) that the plaintiff “could assert no right, interest or expectation in the outcome of the decision [as to where he might be taken and whether he should be detained in that process]. No opportunity for him to comment on these matters could arise”. Justice Gageler (with whom Crennan J agreed) held that forcibly taking a person to a place against their will would have an adverse effect on that person’s liberty and, potentially, other rights and interests depending on the conditions of the place to which that person was removed: at 622 [367]. Ultimately, however, he considered that the context of the maritime environment and its potential requirements of urgency was a key factor which told against an obligation of procedural fairness. To require procedural fairness in such circumstances would impair the operation of the legislation: at 623 [368]. Justice Keane (at 653 [500]) also held that there “was no occasion under the statute for a maritime officer to consult with the plaintiff as to the destination to which he was to be compulsorily removed”. Consistently with the judgments of Hayne, Bell and Kiefel JJ, a person who is properly detained under the Act pursuant to s 189(1), such as Mr Graham, has no right or interest to be detained in any particular place. He or she can lawfully be moved to any place of immigration detention without attracting procedural fairness obligations. That being so, a decision not to transfer a detainee likewise need not be preceded by an opportunity for the detainee to be heard.
124 The evidence established that the immigration detention network, at any one time, manages over 2,000 detainees, 500 of whom are assessed as being of “high’ or “extreme” risk. Placement decisions within that network require consideration of the capacity, security and constraints of the network, such that there would frequently be nothing a detainee could say about a placement decision that would outweigh those considerations. Having regard to Mr Graham’s risk profile there were then no available alternatives (outside the Department’s own facility on Christmas Island) to his placement in the Goulburn centre. His only preferred alternative was not accessible because the Tasmanian State authorities were unwilling to receive him into Risdon Prison despite being requested to do so. That being so, even if, contrary to my view, there was an obligation to accord procedural fairness in relation to dealing with his transfer requests the content of any such duty would effectively be reduced to nil: cf Soh at 146 [93].
125 For these reasons, Ground 2 must fail.
GROUND 3
126 Under Ground 3, Mr Graham asserted that it was legally unreasonable for the Minister to place him at Goulburn other than on a temporary basis. The particulars were that:
(1) the question where to detain Mr Graham was attended by a duty to afford him procedural fairness;
(2) the content of that duty was not reduced on zero in respect of the decision that his detention continue at the Goulburn Correctional Centre;
(3) that decision was executed on 16 June 2015;
(4) the applicant had no prior opportunity to make submissions in respect of the decision;
(5) it was open to the decision-maker to determine where the applicant’s detention would to continue on an interim basis only; and
(6) in the circumstances, it was unreasonable to make the decision that his detention continue at Goulburn Correctional Centre.
Mr Graham’s submissions
127 Mr Graham submitted that there was a presumption that the statutory power to transfer a detainee was to be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 350, 362 and 370-371; [2013] HCA 18 at [26] (French CJ), [63] (Hayne, Kiefel, Bell JJ), [88]-[90] (Gageler J). Nothing in the Act displaced that presumption. The mandatory nature of detention made it even less likely that the legislature intended that power could be exercised arbitrarily. Any operational considerations as to the placement of detainees were only factors to be weighed in the balance.
128 Mr Graham submitted that there was no evidence that any decision about the location of his detention had been made since the initial decision to place him at Goulburn. There was no evidence of any conscious decisions made in response to his transfer requests. If no separate decision had been made to maintain his detention at Goulburn, even in response to those requests, then his continued detention at that place lacked, he said, an evident and intelligible justification. On that basis Mr Graham submitted that the decision was unreasonable in the sense described in Li at 367 [76] where Hayne, Kiefel and Bell JJ said that “unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power” and that it may be concluded that the exercise of a statutory discretion was unreasonable if a decision “lacks an evident and intelligible justification”.
Consideration
129 I do not accept that the decision to continue to hold Mr Graham in detention at the Goulburn facility lacked an intelligible justification. The Minister has a broad power to determine the place and mode of detention. The definition of “detain” in 5(1) of the Act, which refers to taking such action and using such force “as [is] reasonably necessary”, does not employ words of limitation: VLAH at [9] (Ryan J); SBEG v Commonwealth (2012) 208 FCR 235 at 247; [2012] FCAFC 189 at [49] (Keane CJ, Lander and Siopis JJ). While decisions as to the place of detention are not immune from judicial review, the broad nature of the power and the breadth of considerations that may be taken into account mean that it will be difficult to establish legal unreasonableness.
130 The placement of Mr Graham at Goulburn was subject to periodic case management reviews. Such reviews were conducted. The decision to place him at Goulburn was made in reliance on evidence that Goulburn was the only facility (on mainland Australia) available securely to detain him, having regard to his criminal record and connection with the Rebels Motor Cycle Club, and that no other State or Territory had offered to hold him. The initial decision to place Mr Graham in the Goulburn goal was explained in the Placement Minute and was made on rational grounds. Any subsequent decisions to continue his detention there (if there were any) were rational for the same reasons and because the alternative which he nominated was not available. They were not rendered unreasonable because familial interests were not accorded greater weight.
131 This ground must fail.
DISPOSITION
132 The application must be dismissed.
133 Having regard to the peculiar circumstances in which this proceeding was heard in conjunction with the related application, and to the outcome of that related application and subsequent litigation, my present view is that there should be no order for the costs of this application. If any party wishes to argue to the contrary, written submissions, not exceeding three pages, should be filed and served within 14 days of the publication of these reasons.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. |
Associate:
