FEDERAL COURT OF AUSTRALIA

DBE17 v Commonwealth of Australia [2018] FCA 1307

ORDERS

THE COURT ORDERS THAT:

1.    On or before 4 pm on 10 September 2018, the parties submit a joint proposed set of orders, including as to costs.

2.    In the absence of any agreed orders, on or before 4 pm on 24 September 2018, the parties file proposed orders and submissions (not exceeding 5 pages).

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This proceeding was commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth). It is a claim for damages for unlawful imprisonment. The class represented by the applicant is the class of people detained in immigration detention in Australia, or a part of Australia, for more than two working days between 27 August 2011 and 7 July 2017 and who do not have any of six characteristics set out in paragraph 2(b)-(g) of the amended statement of claim filed on 20 October 2017. In substance, for the purposes of this application, the class can be described in general terms as intended to capture those people who remain in Australia, mostly having been granted visas, but having arrived here by boat seeking asylum and having been detained during some or all of the period set out above.

2    The Commonwealth applies to strike out the whole, or alternatively part, of the amended statement of claim, on the basis that this Court has no jurisdiction to hear and determine the proceeding, by reason of s 494AA of the Migration Act 1958 (Cth). The interlocutory application does not seek an order that the applicant’s originating application be dismissed, but it appears to be a premise of the Commonwealth’s argument that this would follow if the interlocutory application were upheld. There is also an alternative basis for the strike out application, relating to the core allegations made by the applicant which the Commonwealth contends fail to disclose a cause of action.

3    The Commonwealth sought expressly to reserve its position on whether the proceeding could proceed under Part IVA, even if s 494AA does not affect the jurisdiction of this Court in the way the Commonwealth contends. The applicant contended at the hearing of the interlocutory application that the Court’s orders compelled the Commonwealth to bring this issue forward on the present interlocutory application, if it contended the proceeding could or should not continue under Part IVA. The parties’ arguments were not developed on this question and I do not determine it, particularly given the conclusion I have reached.

4    For the reasons set out below, I have found that this Court has no jurisdiction to hear the proceeding, by reason of s 494AA(1)(c) of the Migration Act 1958 (Cth). Only the High Court has jurisdiction. This conclusion means it is not appropriate to determine the Commonwealth’s alternative strike out application, which is only relevant if this Court has jurisdiction.

Background

5    The applicant is a child, presently aged five years. He brings this proceeding by his litigation guardian, Marie Theresa Arthur.

6    The applicant was born in September 2013 at Royal Darwin Hospital. After his birth, his parents were detained in immigration detention on Christmas Island with the applicant.

7    Both the applicant’s parents entered Australia by boat without a valid visa, with the legal consequences that brings for them under the Migration Act. Those legal consequences include, relevantly, two descriptions of their migration status: “unlawful non-citizen” and “unauthorised maritime arrival”. When the applicant was born, by reason of other provisions in the Migration Act, he was also affixed with those two descriptions of his migration status.

8    The third and fourth centrally relevant legal consequences for the applicant’s parents from the mode of their entry into Australia was that they were subject to mandatory detention under the Act, and they were not entitled to make a valid application for a visa, unless the Minister exercised a personal discretionary power to allow them to do so. In the case of the applicant and his parents, the Minister eventually exercised his personal discretionary power under s 195A of the Migration Act and granted visas to the applicant and his parents on 15 January 2015, thus changing their migration status to lawful non-citizens from that date.

9    This proceeding is about whether the detention of the applicant, for a period of approximately 16 months before he was granted a visa, was lawful. The applicant contends it was not, and that he is entitled to damages for false imprisonment for that reason. He contends these same propositions apply to his parents, and to all other people who fall into the class as set out in the amended statement of claim.

10    It was clear from the outset that the respondents (initially, named as both the Minister and the Commonwealth) had fundamental objections to a number of features of this proceeding. At the first case management hearing on 28 August 2017, adopting the practice set out in the Administrative and Constitutional Law and Human Rights National Practice Note (ACLHR-1), orders were made requiring the applicant to file an outline of case and the respondents to file an outline of their response.

11    Both parties complied with the orders, and outlines were filed by the applicant on 18 September 2017 and by the respondent on 25 September 2017.

12    Following a further case management hearing on 28 September 2017, the applicant was given an opportunity to file an amended statement of claim in accordance with orders of this court. The applicant filed an amended statement of claim on 20 October 2017. Amongst other changes, the amended statement of claim removed the Minister for Immigration and Border Protection, initially named as the first respondent, from the proceedings.

13    Orders were also made that the respondents file and serve any interlocutory applications by 23 November 2017. On 23 November 2017, the remaining respondent, the Commonwealth, filed this application.

The class and the applicant’s claims on behalf of the class

14    It is necessary to say something of the applicant’s allegations in the amended statement of claim.

15    The class that the applicant represents in this proceeding is set out in the amended statement of claim. It is defined as including every person who:

(a)    between 27 August 2011 and 7 July 2017 inclusive was in detention for more than two working days in any part or parts of Australia purportedly pursuant to s 189 of the Migration Act;

(b)    was not detained because that person held a visa under the Migration Act that was cancelled or purportedly cancelled under the Migration Act;

(c)    did not, at any time after arriving in Australia, return voluntarily to their country of origin or former habitual residence;

(d)    was not at any time since 27 August 2011 removed from Australia to that person’s country of origin or former habitual residence without later returning to Australia;

(e)    was or is not an unauthorised maritime arrival (as defined in s 5AA of the Migration Act) “serving their ineligibility period” (this being the applicant’s reference to s 494AA(4) of the Migration Act) from any time immediately before this proceeding was instituted;

(f)    was not detained after being a lawful non-citizen (as defined in s 13 of the Migration Act) who remained outside detention without a valid visa, unless that person was, at any later time, granted a visa described in s 35A of the Migration Act; and

(g)    has not, at any time, received an adverse security assessment under the Australian Security Intelligence Organisation Act 1979 (Cth).

16    From [15(e)] above, it will become apparent that the applicant’s construction about s 494AA finds its way into the definition of the class. The amended statement of claim also sets out three subgroups of the claim group, being:

(a)    “Minor Group Members”: being group members who had not reached the age of 18 years between 27 August 2011 and 7 July 2017;

(b)    “Designated Regional Processing Cohort Group Members”: being group members who arrived in Australia after 12 August 2012; and

(c)    “Visa Group Members”; being group members who were released from detention because they received a visa under the Migration Act.

17    The applicant’s outline of case contends:

the power of the Commonwealth to detain unlawful non-citizens, including the Applicant, pursuant to s 189 of the Act is limited by three co-existing qualifications:

(a)    The detention must, at all times, be for one of three constitutionally permissible purposes:

(i)     removal from Australia, including removal to a regional processing country pursuant to s 198AD(2) of the Act;

(ii)     receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia; or

(iii)     determining whether to permit a valid application for a visa.

 (b)    The relevant permissible purpose of detention must be capable of fulfilment.

(c)     The relevant permissible purpose of detention must be, at all times, pursued and carried into effect as soon as reasonably practicable.

(citations omitted)

18    The division of the class into three sub-groups appears to reflect a categorisation of members of each sub-group by reference to the purpose for which they were detained (or, in the case of Minor Group Members, their age). Then, for each of the allegedly lawful purposes of detention (as they relate to each of the sub-groups), the amended statement of claim pleads the time in which the applicant contends it was reasonably practicable to pursue and carry into effect each of those allegedly lawful purposes. In other words, by reference to the purpose of detention, alleged by the applicant to be the lawful purpose, the pleading identifies limits on the periods of time each class member could lawfully be detained. In some cases (such as detention for the purpose of removal to a Designated Regional Processing Centre), the applicant contends, without reference to time periods but by reference to the personal circumstances of class members and the circumstances in the regional processing country or countries, that the “removal purpose” for him and members of the “Designated Regional Processing Cohort” was at no time a lawful basis for his detention, and the detention of that sub-group.

19    The applicant’s fundamental contention, expressed at [29] of the amended statement of claim is that he and the class members were detained for what the amended statement of claim describes as “the visa purposes” and/or for the “removal purpose”, and for no other purpose, but that the periods of time each class member was detained for such purposes exceeded any period of time which was “as soon as reasonably practicable” for any or each detention purpose to be fulfilled. It is these periods, after which (on the applicant’s case) the lawful purpose for the class member’s detention ceased, which are the periods alleged to involve unlawful imprisonment of the applicant and the class members.

The Commonwealth’s application

20    As I have noted, the Commonwealth seeks to strike out the whole of the amended statement of claim. In the alternative, it seeks to strike out paragraphs [2e], [9] and [20]-[31]. The Commonwealth’s alternative argument is put differently, and contends that the pleading (especially in [20]-[31]) is contrary to established legal principle and fails to disclose a reasonable cause of action. The Commonwealth also contends the pleading is “in several respects inconsistent or incomprehensible, fails to present a case that can properly be understood and responded to, and is therefore embarrassing”.

21    The Commonwealth invokes s 23 of the Federal Court Act and r 16.21(d) and/or (e) of the Federal Court Rules 2011 (Cth) to support its alternative application that part of the amended statement of claim be struck out. Rule 16.21 relevantly provides:

(1)     A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

…

(d)     is likely to cause prejudice, embarrassment or delay in the proceeding; or

…

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading

22    These aspects of the Rules may be applicable to the Commonwealth’s alternative case, but they do not sit appropriately with its primary jurisdictional point.

23    It may well be that the better basis for the Commonwealth’s application might have been r 13.01, given the Commonwealth is contending the Court has no jurisdiction at all in relation to the subject matter of the applicant’s proceeding. In substance this aspect is an objection to the competency of this Court to deal with the proceeding: see Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186 at [31] (French J).

24    I do not consider these issues about the most appropriate process to be of any real significance: the Court’s jurisdiction having been put in issue, the Court must decide whether it has jurisdiction or not.

25    The Commonwealth’s concession that it did not bring an application for summary dismissal under s 31A of the Federal Court Act may well have been problematic for the resolution of the Commonwealth’s alternative claims, but because of the conclusion I have reached on jurisdiction, I do not decide those matters. If there is a further proceeding filed in the High Court, the nature of the allegations made by the applicant will be a matter for the parties in that Court.

Consideration

26    Both parties accepted that the outcome of the Commonwealth’s interlocutory application turns on the proper construction of s 494AA(1). Section 494AA provides:

494AA    Bar on certain legal proceedings relating to unauthorised maritime arrivals

(1)    The following proceedings against the Commonwealth may not be instituted or continued in any court:

(a)    proceedings relating to an unauthorised entry by an unauthorised maritime arrival;

(b)    proceedings relating to the status of an unauthorised maritime arrival as an unlawful non-citizen during any part of the ineligibility period;

(c)    proceedings relating to the lawfulness of the detention of an unauthorised maritime arrival during the ineligibility period, being a detention based on the status of the unauthorised maritime arrival as an unlawful non-citizen;

(d)    proceedings relating to the exercise of powers under repealed section 198A;

(e)    proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to an unauthorised maritime arrival.

(2)    This section has effect despite anything else in this Act or any other law.

(3)    Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

(4)    In this section:

Commonwealth includes:

(a)    an officer of the Commonwealth; and

(b)    any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time of the unauthorised entry until the time when the person next ceases to be an unlawful non-citizen.

unauthorised entry means an entry into Australia that occurs:

(a)    at an excised offshore place after the excision time for that place; or

(b)    at any other place on or after the commencement of section 5AA.

27    The part of s 494AA(1) which is put in issue by the Commonwealth as depriving the Court of jurisdiction in this proceeding is s 494AA(1)(c).

28    Constructional choices about a provision which cannot be read literally present various levels of challenge to courts. Section 494AA(1) is an example, because of its clearly intended privative effect. Both parties accepted that, read with s 494AA(3), the phrase “any Court” in s 494AA(1) did not include the High Court.

The Court’s jurisdiction on ordinary principles

29    Despite s 494AA being a provision seeking to oust or exclude the jurisdiction of this Court, little attention was paid in the parties’ submissions to what is the jurisdictional foundation for this proceeding in this Court, for the purposes of s 19 of the Federal Court Act, and for the purposes of the operation of s 494AA.

30    Ultimately, the applicant contended it was s 39B(1A)(c) of the Judiciary Act 1903 (Cth) which provides:

39B    Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

…

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

Note:    Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.

31    The Commonwealth did not dispute this as the appropriately identified source of the Court’s jurisdiction, subject to the terms of s 494AA as it contends they should be construed. I proceed on that basis.

The parties’ competing constructions of s 494AA in summary

32    The parties’ competing constructions turn substantially on two matters: the purpose of s 494AA, and what is meant by, and what is the function of, the statutory concept of “the ineligibility period” in s 494AA(1)(c).

33    The Commonwealth submits that the effect of s 494AA(1)(c) is to deprive this Court of jurisdiction to hear proceedings about the lawfulness of detention of any person with the status of an “unauthorised maritime arrival”, where those proceedings involve detention during the ineligibility period.

34    In other words the privative effect, on the Commonwealth’s construction, is on a type or category of proceeding.

35    The applicant accepts s 494AA has a privative effect, to exclude the jurisdiction of this Court. However he contends that the subject matter of s 494AA is “proceedings”, and this is evident from the chapeau, and the repetition of the word “proceedings” as the subject identified in each of the sub-sections. That being the focus, the applicant submits s 494AA(1)(c):

is a bar to proceedings during the ineligibility period that concern detention; not, as the Respondent contends, a bar to proceedings concerning detention during the ineligibility period.

36    In other words the privative effect of paragraph (c) is, on the applicant’s construction, a temporal one, and once the “ineligibility period” has passed, a person in the applicant’s position is free to bring proceedings in this Court relating to his detention. Some support for this approach might be gained from what I have set out below concerning the status of a person who was once an “unlawful maritime arrival”. That is why part of the definition of the class, to which I have referred at [15(e)] above, relates to class members being outside the “ineligibility period”, as the applicant construes it.

Is a person fixed for all time with the statutory status of an “unauthorised maritime arrival”?

37    Both parties accept that paragraph (c), in common with most but not all of the paragraphs in s 494AA(1), operates on people who have the statutory status of being an “unauthorised maritime arrival”. That term is the subject of a definition in s 5AA of the Act.

38    Section 5AA(1) provides:

5AA Meaning of unauthorised maritime arrival

(1)    For the purposes of this Act, a person is an unauthorised maritime arrival if:

   (a)    the person entered Australia by sea:

(i)    at an excised offshore place at any time after the excision time for that place; or

(ii)    at any other place at any time on or after the commencement of this section; and

(b)    the person became an unlawful non-citizen because of that entry; and

(c)    the person is not an excluded maritime arrival.

39    The definition of “excluded maritime arrival” is not material to the construction question on the Commonwealth’s application.

40    The applicant’s status as an unlawful maritime arrival derives from s 5AA(1A) which provides:

(1A)    For the purposes of this Act, a person is also an unauthorised maritime arrival if:

(a)    the person is born in the migration zone; and

(b)    a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and

(c)    the person is not an Australian citizen at the time of birth.

Note 1:    For who is a parent of a person, see the definition in subsection 5(1) and section 5CA.

Note 2:    A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.

Note 3:    A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non-citizens).

Note 4:    For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007.

Note 5:    This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

41    As the introductory words to the definition in s 5AA make clear, the definition applies to a person “for the purposes of” the Migration Act. For example, one of the purposes relates to the creation of a separate stream of decision-making for people who fall within the definition of “fast track applicant” and “fast track review applicant” in Part 7AA of the Act. Another purpose, of some relevance to the question in this interlocutory application, is the particular removal powers available in Subdiv B of Div 8 of Part 2, dealing with removal to a regional processing country. Those powers (eg s 198AD) are only exercisable in relation to an “unauthorised maritime arrival”. Finally, the kind of visa to which a person is entitled may be conditioned by her or his status as an unauthorised maritime arrival. For example, one of the eligibility conditions for a valid application for a Safe Haven Enterprise (Class XE) visa is that the person is an unauthorised maritime arrival: see s 46 of the Act, read with reg 2.10 of the Migration Regulations 1994 (Cth), and read also with Sch 1, item 1404(3)(d)(vi) to the Regulations. In this way, the legislative scheme is able to restrict the access of unlawful maritime arrivals to certain visa classes, and certain kinds of visas (eg temporary as opposed to permanent visas).

42    For so long as there is a purpose in the Migration Act to be served, or to be applied to, an individual, then the intention of the Act is that the status of an unauthorised maritime arrival will continue to be applicable to such a person. For example, when consideration is given to the removal power in s 198AD in relation to an individual, the individual must be someone with the status of an unauthorised maritime arrival. If the person is not removed pursuant to s 198AD, but is permitted to apply for a visa, then she or he may be restricted to certain kinds of visas (as I have described above) and (if all other requirements of the Act are met) may only have access to the fast track review process in Part 7AA rather than merits review in the Administrative Appeals Tribunal under Part 8 of the Act. However, the status is tied to the exercise of a power or the performance of a function under the Act.

43    The applicant (and his parents) are now lawful non-citizens. It appears from the amended statement of claim at paragraph 17 (which for the purposes of this interlocutory application I take can be established) they were lawful non-citizens at the time this proceeding was commenced. The Minister did not dispute this factual aspect of the applicant’s case. Indeed, the applicant and his parents had been lawful non-citizens for more than two years by the time this proceeding was commenced. A lawful non-citizen is a person who is within the terms of s 13 of the Migration Act, read with s 29.

44    In my opinion, the applicant and his parents could not, at the time they commenced this proceeding, still fall within the definition of “unlawful maritime arrivals”. Rather, they were lawful non-citizens. I do not see how the legislative scheme allows one individual to be, at the same point in time, both an unlawful maritime arrival and a lawful non-citizen.

45    Whether or not this distinction is important for aspects of the applicant’s claims, it does not affect the conclusion I have reached that the privative effect of s 494AA operates by reference to the subject matter, by category, of the proceedings which are commenced, or continued.

The purpose and context of s 494AA

Legislative history

46    Section 494AA was introduced into the Migration Act in September 2001, by the Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act 2001 (Cth). Section 494AB, which I discuss below, was introduced a little later, in April 2002 by the Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth). Provisions such as s 486B (which contains a prohibition on class actions in relation to “migration proceedings”, and is a provision which may or may not be relevant to the current proceeding) were introduced by the Migration Legislation Amendment Act (No.1) 2001 (Cth) also in September 2001.

47    The Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act was one of three Acts amending the Migration Act which received royal assent on the same day. The other two were the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) and the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth). These three Acts were part of a group of six Acts that had all been passed by the Senate on 26 September 2001, in circumstances I set out at [57]-[62] below.

48    The Migration Amendment (Excision from Migration Zone) Act was the legislation which, with various starting dates all in September 2001, created what were called “excised offshore places”, such as Christmas Island, Cocos (Keeling) Islands, other prescribed external Territories and sea and resources installations as defined in the amending Act. The legislation in substance prevented people who entered Australia in such places from being able to make valid applications for a visa under the Migration Act.

49    An individual who entered Australia in such places, after the “excision time” was described in the amending legislation as an “offshore entry person”. The earliest “excision time” was specified (in s 5(1) of the Migration Act as then amended) as:

for the Territory of Christmas Island—2 pm on 8 September 2001 by legal time in the Australian Capital Territory…

50    The policy behind the amendments in these three Acts was said by the then Minister for Immigration (Mr Ruddock), in the Explanatory Memorandum for the Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act at [3] to be a:

response to the increasing threats to Australia’s sovereign right to determine who will enter and remain in Australia.

51    Further, through this Act, changes to the Regulations were introduced to create a new class of visa, the Refugee and Humanitarian (Class XB) visa, temporary in nature and with a range of other restrictions present in the various sub-classes. The Minister described the policy behind these amendments as:

This new visa regime is intended to deter further movement from, or the bypassing of, other safe countries.

Unauthorised arrivals who reach Australia, other than those directly fleeing persecution within their country of origin, would only be eligible to be granted successive temporary protection visas. There will be no access to permanent residence unless the Minister exercises a non-compellable discretion to lift the bar.

52    The Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act was also the amending legislation that introduced s 198A into the Migration Act, the provision considered in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 (the Malaysian Declaration Case).

53    In Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [29]-[30], the Court described the six pieces of legislation (including the Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act):

In 2001, the Parliament enacted six Acts, one after the other, which affected the entry into, and remaining in, Australia by aliens. Those six Acts were all assented to, and for the most part came into operation, on the same day. The first of those Acts, the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) (the Border Protection Act), sought to validate certain actions taken between 27 August 2001 and the commencement of the Act. The actions in question were actions taken by the Commonwealth, by any Commonwealth officer, or by any other person acting on behalf of the Commonwealth, in relation to the MV Tampa and certain other vessels, and actions in relation to persons who were on board those vessels during the relevant period. The circumstances that gave rise to those actions are sufficiently described in Ruddock v Vadarlis. In addition, the Border Protection Act, and several of the other five Acts, amended the Migration Act to change the way in which persons who arrived in, or sought to enter, Australian territory without a valid visa were to be dealt with.

Those changes had a number of features of immediate relevance to the present matters. First, certain Australian territory, including the Territory of Christmas Island, was excised from the migration zone, thus introducing the category of places called excised offshore places. A person who entered Australia at an excised offshore place, after the excision time, and who became an unlawful non-citizen because of that entry, was identified as an “offshore entry person”. The Migration Act was amended, by inserting s 46A, to provide that an application for a visa is not a valid application if it is made by an offshore entry person who is in Australia and is an unlawful non-citizen.

(citations omitted)

54    In its original form as enacted in Sch 1 to the Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act, s 494AA referred to the then statutory status of being an “offshore entry person”, and was in the following form:

494AA Bar on certain legal proceedings relating to offshore entry persons

(1)    The following proceedings against the Commonwealth may not be instituted or continued in any court:

(a)    proceedings relating to an offshore entry by an offshore entry person;

(b)    proceedings relating to the status of an offshore entry person as an unlawful non-citizen during any part of the ineligibility period;

(c)    proceedings relating to the lawfulness of the detention of an offshore entry person during the ineligibility period, being a detention based on the status of the person as an unlawful non-citizen;

(d)    proceedings relating to the exercise of powers under section 198A.

(2)    This section has effect despite anything else in this Act or any other law.

(3)    Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

(4)    In this section:

Commonwealth includes:

   (a)    an officer of the Commonwealth; and

(b)    any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time of the offshore entry until the time when the person next ceases to be an unlawful non-citizen.

offshore entry means an entry into Australia that occurs:

(a)    at an excised offshore place; and

(b)    after the excision time for the offshore place concerned.

55    Section 4 of the Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act provided:

4 Application of amendments

The amendment made by item 7 of Schedule 1 applies to:

(a)    the institution of proceedings on or after the day on which this Act receives the Royal Assent; and

(b)    the continuation, after the day on which this Act receives the Royal Assent, of proceedings that were instituted before that day, being proceedings instituted after the excision time for the excised offshore place concerned.

Example:    Proceedings of the kind mentioned in section 494AA of the Migration Act are instituted, before the day on which this Act receives the Royal Assent, in relation to a person who became an offshore entry person by entering Australia at Christmas Island. Those proceedings cannot be continued after the day on which this Act receives the Royal Assent.

Item 7 of Sch 1 is the provision which introduced s 494AA into the Migration Act.

56    The “excision times” to which I have referred above, and the commencement time for the prohibitions in s 494AA were carefully selected, by reference to events I describe below. The inclusion in s 494AA of the word “continued” was important, in the context in which the amendments were enacted.

57    On 26 August 2001, the MV Tampa responded to a distress call from a wooden Indonesian fishing boat carrying 433 Afghan asylum seekers. It took those asylum seekers on board and headed initially for Indonesia, but after several of the asylum seekers objected to being returned there, the Captain of the MV Tampa altered course and headed for Christmas Island. Australian authorities directed the Captain of the MV Tampa to remain outside Australian territorial waters and to take the asylum seekers to Indonesia. He refused, and so ensued the event which is variously called “the Tampa incident” or the “Tampa crisis”. On 29 August 2001, and contrary to the direction given, the MV Tampa entered Australian waters. It was boarded shortly thereafter by SAS officers. That same day, 29 August 2001, the Border Protection Bill 2001 (Cth) was introduced into the House of Representatives. The Senate rejected the Bill on 30 August 2001. Some key aspects of this Bill were reflected in the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth).

58    On 31 August 2001, two applications were filed in the Federal Court, one by the Victorian Council for Civil Liberties Incorporated and one by a solicitor, Mr Eric Vadarlis. Each claimed to be brought on behalf of the 433 asylum seekers. The two applications were heard and dealt with together by North J and resulted in interlocutory and then final orders being made: see Victorian Council for Civil Liberties Incorporated v Minister for Immigration & Multicultural Affairs [2001] FCA 1297; 110 FCR 452. A more detailed factual summary about the circumstances of the MV Tampa can be found in North J’s reasons for judgment. At [45]-[49] of his Honour’s reasons, North J sets out the applicants’ arguments: they included claims of unlawful detention, claims there was no power to expel the asylum seekers from Australian waters and claims that the terms of the Migration Act imposed a duty to bring the asylum seekers to Australia.

59    In the evening of 31 August 2001, North J granted interim injunctions preventing the respondents from taking any steps to remove the MV Tampa out of the territorial waters of Australia. When the proceeding recommenced the next day, Saturday 1 September 2001, for a full hearing on the interlocutory applications, the Commonwealth applied for an expedited final hearing, to begin that day, so it could implement arrangements it had announced to move the asylum seekers to Nauru, with some going to New Zealand. North J ordered the trial commence the following day, Sunday 2 September 2001, which occurred. North J then referred the matter to mediation, and through mediation the parties agreed to the asylum seekers being moved, so that no further interlocutory orders were required. The claims were heard until 5 September 2001, and North J delivered reasons and pronounced orders on 11 September 2001 upholding some but not all of the applicants’ claims. The orders included orders that the Commonwealth release the asylum seekers and bring them ashore in Australia.

60    The Commonwealth immediately appealed and an expedited appeal was granted. It was heard on 13 September 2001, with orders made on 17 September 2001. The Commonwealth’s appeal was allowed by majority: Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 (Beaumont and French JJ, Black CJ dissenting). The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 had not by this stage been passed in the Senate and was not in force, so it was not relied on or referred to in the Full Court’s reasons. Mr Vardarlis sought special leave to appeal to the High Court, but his application was dismissed on 27 November 2001.

61    For present purposes, the chronology of the Tampa incident, and the litigation surrounding it, informs why it was important that s 494AA include the “continuation” of proceedings. The “continuation” limb of s 494AA may well be of less relevance now a considerable period of time has passed since its introduction and there are unlikely to be any proceedings which were commenced before its introduction that would be affected by its prohibition.

62    The chronology also assists in explaining the kind of “mischief” to which s 494AA was directed.

63    Since 2001, s 494AA has been twice amended, in 2012 and 2013. In 2012, and after the High Court’s orders in the Malaysian Declaration Case had precluded the then existing arrangements with Malaysia for “regional processing” going ahead, the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) introduced new “regional processing” arrangements, which are those that remain in the Migration Act as in force at the time of these reasons, with limited amendments. It was this legislation that introduced Subdiv B into Div 8 of Part 2, authorising (in accordance with its terms) removal of an “offshore entry person” to a regional processing country, as designated by the responsible Minister.

64    In the 2012 amending Act, s 494AA was amended to insert a reference to removals for regional processing as a further category of proceedings on which its terms were to operate, namely:

(e)    proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to an offshore entry person.

65    In 2013, the terms of s 494AA(1) were further amended by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth). This was the amending legislation which removed the statutory status of “offshore entry person” from the Migration Act, and introduced the statutory status of “unauthorised maritime arrival”, including by the introduction of s 5AA, to which I have referred above. The amendments to s 494AA reflected these changes. Further, the statutory term “offshore entry” in the original s 494AA was replaced with the term “unauthorised entry”, which is the form of the current s 494AA.

The context of s 494AA in the legislative scheme

66    There are a number of other provisions in the legislative scheme which should properly be considered part of the context of s 494AA. What these features all illustrate is that, in a variety of ways, this legislative scheme seeks significantly to curtail the role of courts in the subject matter of the Act.

67    First, there is the privative clause in s 474 of the Act. The constitutional limits of this provision were set in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476, but to the extent there are errors in relation to “migration decisions” within the jurisdiction of repositories of power under the Act, s 474 may be effective to protect them: see generally Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [26].

68    Second, there are provisions which limit the jurisdiction of various courts: see for example s 476A in relation to the judicial review jurisdiction of this Court.

69    Some of the attempted curtailments have been unsuccessful: see for example Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651, where an absolute time limit on applications to the High Court under s 75(v), with no retention of a discretion in the Court to extend time, was stuck down.

70    More recently, in Graham v Minister for Immigration and Border Protection [2017] HCA 33; 347 ALR 350, the Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, Edelman J dissenting) held that s 503A(2) of the Act was partially invalid, to the extent only that s 503A(2)(c) applied to prevent the Minister from being required to divulge or communicate information to the High Court when exercising its s 75(v) jurisdiction, or to the Federal Court when exercising its judicial review jurisdiction in relation to a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.

71    The selection of provisions, and cases that have considered them, is far from exhaustive. It is true that many of the decided cases have concerned the validity or effectiveness of provisions that sought to curtail, or included curtailing, the powers or jurisdiction of the High Court. There are less constitutional constraints on the Parliament affecting the jurisdiction or powers of this Court, as was made clear in Abebe v Commonwealth [1999] HCA 14; 197 CLR 510.

72    In Graham at [48] the plurality emphasised, however, that some constitutional limits will flow through to a statutory Court such as this Court, when exercising powers of the same kind as that found in s 75 of the Constitution:

What Parliament cannot do under s 51(xxxix) or under any other source of legislative power is enact a law which denies to this Court when exercising jurisdiction under s 75(v), or to another court when exercising jurisdiction within the limits conferred on or invested in it under s 77(i) or 77(iii) by reference to s 75(v), the ability to enforce the legislated limits of an officer’s power. The question whether or not a law transgresses that constitutional limitation is one of substance, and therefore of degree. To answer it requires an examination not only of the legal operation of the law but also of the practical impact of the law on the ability of a court, through the application of judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of the power conferred on an officer have been observed in a particular case.

(emphasis added)

73    That observation may have some relevance in any proceeding affected by the terms of s 494AA but commenced in the High Court and remitted by the High Court to this Court.

74    Section 476B deals with remitter from the High Court and is relevant in a contextual and comparative sense to some of the arguments made in the present application, as I discuss below. Section 478 restricts who can bring an application in respect of a “migration decision”. Section 486B imposes limits on multiple parties in litigation concerning “an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non-citizens”. The Commonwealth has not relied on this provision in its arguments in this proceeding, although s 486B(4) purports expressly to preclude class actions in, relevantly, this Court, but also in the High Court (on the apparent assumption they could otherwise occur).

75    The present purpose of this summary review is to illustrate the multiple places in this legislative scheme where the intention of the Parliament has been to control and curtail, in significant ways, the exercise of judicial power in respect of the exercise of power or performance of functions under the Migration Act. As the High Court has made clear on many occasions, in many more cases than those I have referred to above, there will be limits – generally constitutional ones – on such control and curtailment. Subject to those limits, in construing a provision such as s 494AA, I consider it is important to recognise the recurring theme in this legislative scheme of curtailment of the jurisdiction and powers of courts.

76    No submission was made on this application that s 494AA transgressed any established constitutional limits so as to be invalid.

Section 494AB

77    Section 494AB is of particular relevance as its text closely resembles s 494AA. It is directed at proceedings relating to “transitory persons”, which is another status given to certain individuals under the Migration Act. The definition of a “transitory person” in s 5, is lengthy. It includes individuals who were amongst the 433 asylum seekers on the MV Tampa, and who were transferred to Nauru, and children of those who have the status of “transitory person”. Its principal ongoing operation is in respect of two categories of individuals, set out in the definition in s 5:

(a)     a person who was taken to another country under repealed section 198A; or

(aa)    a person who was taken to a regional processing country under section 198AD.

78    Section 494AB provides:

494AB    Bar on certain legal proceedings relating to transitory persons

(1)    The following proceedings against the Commonwealth may not be instituted or continued in any court:

(a)    proceedings relating to the exercise of powers under section 198B;

(b)    proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period;

(c)    proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non-citizen;

(ca)    proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person;

(d)    proceedings relating to the removal of a transitory person from Australia under this Act.

(2)    This section has effect despite anything else in this Act or any other law.

(3)    Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

(4)    In this section:

Commonwealth includes:

(a)    an officer of the Commonwealth; and

(b)    any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non-citizen.

79    The parallels in its text with s 494AA are apparent. It commences with a similarly worded prohibition and extends to both continuation and commencement of proceedings. Like s 494AA, s 494AB prohibits a number of categories of proceedings. The categories are identified by reference to exercises of powers or performance of functions under the Act, save for s 494AB(1)(b), which I discuss below. Some of these categories have no temporal characteristics and operate by reference only to an exercise of power or performance of a function – such as s 494AB(1)(d), proceedings relating to the removal of a person who has the status of transitory person.

80    What is prohibited by s 494AB(1)(b) are proceedings challenging an individual’s status in Australia as an unlawful non-citizen: namely, a non-citizen without a valid visa. That is, the category of proceedings to which this paragraph is directed is proceedings which relate to that status. The reasons for challenging such a status may be many and varied. An example may be that the status of unlawful non-citizen is one of the matters which precludes such an individual from making a valid application for a visa: see s 46B(1) (entitled “Visa applications by transitory persons”) which provides:

(1)    An application for a visa is not a valid application if it is made by a transitory person who:

(a)    is in Australia; and

(b)    either:

(i)    is an unlawful non-citizen; or

(ii)    holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

Note:    Temporary protection visas are provided for by subsection 35A(3).

81    Section 494AB(1)(b) is the only one of the categories of proceeding in s 494AB which is defined by reference to the statutory concept of “ineligibility period”. In s 494AA there are two subsections that are so defined: ss 494AA(1)(b) and 494AA(1)(c). The definition of “ineligibility period” in s 494AB(4) does not start when an individual acquires the status of a “transitory person”: it starts when an individual with that status is brought to Australia, and ends when the person “next” ceases to be an unlawful non-citizen. Section 14 defines “unlawful non-citizen” as a non-citizen “in the migration zone” who is not a lawful non-citizen. Thus, the statutory status of a “non-citizen” is one which an individual only has while in the migration zone – which is defined to mean “the area consisting of the States, the Territories, Australian resource installations and Australian sea installations”: see s 5. An individual will “cease” to be an unlawful non-citizen when she or he leaves Australia, or rather more specifically, leaves the migration zone.

82    Although the focus of the category in s 494AB(1)(b) is on challenges to the status an individual has while in Australia, that temporal component attaches to the subject matter of the proceeding: in other words, what the proceeding is about. It does not attach to when the proceeding may be brought. I do not see s 494AB(1)(b) as prohibiting proceedings only while a person is in Australia. It would prohibit, for example, a person who had been brought to Australia for medical treatment and then removed back to Nauru from (relevantly) bringing a proceeding, from Nauru, about her or his status as an unlawful non-citizen while she or he was in Australia (eg as part of an argument as to why s 46B did not apply).

83    Section 494AB was considered by the Northern Territory Supreme Court in SGS v Minister for Immigration and Border Protection [2015] NTSC 62; 34 NTLR 224. SGS was a negligence action brought by a young girl, in relation to damage she alleged she suffered while detained on Nauru. It was common ground that she had entered Australia by boat with her family in a way and at a time which meant she had the status of an “unauthorised maritime arrival” at the time of her entry. She also, subsequently, had the status of a “transitory person” as she was brought, with her family, back to Australia from Nauru pursuant to s 198B of the Act.

84    In that case the Commonwealth did not challenge the jurisdiction of the Supreme Court of the Northern Territory to hear and determine the plaintiff’s claim in negligence, nor to grant any remedy in damages arising from that claim. Those claims, as Hiley J pointed out at [70], related to what was alleged to have occurred on Nauru, not in Australia. However the plaintiff also sought injunctive relief, directed at prohibiting the Commonwealth from removing her back to Nauru under s 198AD. That, the Commonwealth contended, was a claim which fell within s 494AB(1)(ca) and (d) – which prohibit:

proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person.

[and]

proceedings relating to the removal of a transitory person from Australia under this Act.

85    Section 198AD is found in Subdiv B of Div 8 of Pt 2.

86    Hiley J accepted (at [58]) the Commonwealth’s argument that the Northern Territory Supreme Court had no jurisdiction in relation to the claim of injunctive relief by reason of s 484 of the Act, on the basis that the Court would be dealing with a “migration decision” and (at the time SGS was decided) s 484(1) vested jurisdiction in relation to migration decisions in, and only in, the High Court, the Federal Court and the Federal Circuit Court.

87    At [71]-[73] Hiley J also accepted the Commonwealth’s submissions that the Northern Territory Supreme Court had no jurisdiction by reason of the terms of ss 494AB(1)(ca) and (d):

However, in so far as these proceedings seek injunctive relief of the kind sought by the plaintiff, I do consider that they fall within s 494AB(1) (ca) and (d). Once the plaintiff no longer needs to be in Australia for the temporary purpose of her father’s medical treatment s 198AD will apply, by force of s 198AH(1A), unless the Minister makes a determination under s 198AE that s 198AD does not apply to her. Section 198AD(2) will then require an officer to take her to a regional processing country, thereby removing her from Australia.

The power of the Minister to make a determination under s 198AE and the duty of an officer under s 198AD(2) are powers and duties under Subdiv B of Division 8 of Part 2. The granting of the injunction sought would prevent such an officer from performing his or her statutory obligation to remove the plaintiff from Australia.

Contrary to counsel’s submission I consider that the words “may not” do mean “shall not”. A fundamental purpose of s 494AB (and s 494AA) is the barring of certain legal proceedings relating to a particular category of persons.

88    As the Commonwealth submits, Hiley J’s conclusion is consistent with its argument. I accept his Honour’s conclusion is not directly inconsistent with the applicant’s argument, based as it is on the particular wording of s 494AA(1)(c), which is not the same as the text of the provision considered by Hiley J. However, the last sentence of [73] of his Honour’s reasons sits more comfortably with the Commonwealth’s arguments than with those of the applicant.

89    If I was persuaded the applicant’s construction of s 494AA(1)(c) was correct, then I would distinguish SGS on the basis of the difference in language. However, I am not persuaded and I consider the approach in SGS supports the construction I consider to be correct.

Textual considerations

90    There are a number of textual considerations which inform the construction of s 494AA(1)(c):

(a)    The function and operation of the “ineligibility period”, defined in s 494AA(4);

(b)    The meaning of the word “next” in s 494AA(4);

(c)    The role of the word “during”; and

(d)    The construction to be given to s 494AA(1)(b).

The “ineligibility period”

91    Unlike s 494AB, s 494AA uses the term “ineligibility period” in more than one paragraph of sub-section (1).

92    I accept the Commonwealth’s submissions that, insofar as it is possible to do so, a consistent construction should be given to the two provisions within s 494AA(1), located adjacent to each other in a statutory scheme and using the same text: see Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; 350 ALR 567 at [21]; Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [24] (referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]).

93    The “ineligibility period” is defined as “the period from the time of the unauthorised entry until the time when the person next ceases to be an unlawful non-citizen”. So, like the operation of this term (differently defined) in s 494AB, the starting point for s 494AA, in terms of the time period, is when an individual enters Australia.

94    There is no meaning attributed by the statute to the term “ineligible”. The applicant contends the use of a word such as “ineligible” connotes a temporal restriction. I do not agree. Eligibility, or ineligibility, in many statutory contexts, can fix on a person’s characteristics or circumstances, on factual matters external to a person, or on periods of time. I accept it is a somewhat curious word to use as part of a definition in a privative clause, however Parliament has used it and the Court must strive to give it meaning. I consider it is clear enough from the context in which the compound phrase “ineligibility period” is used (“period” signalling a length of time) that, read with the prohibitions in s 494AA(1), the intention is to mark out, by reference to events occurring during a period of time, a category of proceeding that is “ineligible” for the exercise of jurisdiction by any Court except the High Court. As I say, it may not be the heights of drafting elegance, but I consider it is clear this is what is intended.

The word “next”

95    The function of the word “next” in the definition of “ineligibility period” appears curious, until it is recalled that an individual may move in and out of the status of an unlawful non-citizen, depending on whether an individual holds a visa or not. The function of the word “next” is, in my opinion, to indicate that the period which is defined as the “ineligibility period” runs from the time a person enters Australia until that person is granted a visa for the first time after the unauthorised entry. The word “next” relates back to the time of unauthorised entry and is used to signify the end point of the ineligibility period. That is, it is not a recurring period of time, it is a fixed period of time which will expire when an individual is first granted a visa after her or his unauthorised entry.

96    Therefore, hypothetically, if an individual who is an unauthorised maritime arrival is granted a visa, this visa is then cancelled, and the person becomes an unlawful non-citizen again, the “ineligibility period” will not apply to that person again. That period has expired for that particular individual. Indeed, consistently with my observation above, it may be that it is also no longer correct to assign to such a person the status of an unauthorised maritime arrival.

97    I accept this has the consequence, discussed during oral argument, that an individual such as the applicant may be able to issue proceedings in this Court for a second period of detention after having been granted a visa which is then cancelled, without the privative effect of s 494AA affecting this Court’s jurisdiction. That may seem anomalous, but it is the effect of the proper construction of s 494AA(4). This consequence may reflect the intention of the scheme, as I have found it, to tie a range of direct legal consequences to the particular mode of arrival of a person in Australia: namely, by boat without a visa.

The word “during”

98    One of the matters dealt with by the parties’ submissions is what the word “during” qualifies or attaches to in paragraph (c). The applicant submits that the use of that term also signifies a temporal operation to paragraph (c). I do not consider that is the case. The temporal significance of using the word “during” is explained because it refers to the start and the end of the ineligibility period, and because the intention is that proceedings about “any part” of that period cannot be instituted in this Court.

99    As the Commonwealth submits (but with my addition of a comma), the applicant’s construction would have the Court read the paragraph as if it said “proceedings during the ineligibility period, relating to the lawfulness of the detention”, rather than “proceedings relating to the lawfulness of the detention of an unauthorised maritime arrival during the ineligibility period, being a detention… (etc)”. The actual, as opposed to the hypothetical, placement of the comma in paragraph (c) illustrates the difference. The preposition “during” does not relate to the noun “proceedings”: it relates to the noun “ineligibility period”. That is why in paragraph (c), the comma comes after “ineligibility period”.

100    The applicant’s contended construction is contrary to the grammatical text of paragraph (c).

Section 494AA(1)(b)

101    Section 494AA(1)(b) has close parallels to s 494AB(1)(b), which I deal with above. Its subject matter is challenges (by way of proceedings) relating to the “status” of a person as an “unlawful non-citizen”, where that person also has the status of an “unauthorised maritime arrival”. Like s 494AB(1)(b), one likely explanation for this prohibition is that there is a prohibition on such individuals making visa applications. Section 46A(1) provides:

(1)    An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

(a)    is in Australia; and

(b)    either:

(i)    is an unlawful non‑citizen; or

(ii)    holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

Note:    Temporary protection visas are provided for by subsection 35A(3).

102    It can be seen that even if an individual is an unlawful maritime arrival, if they could establish they were not an unlawful non-citizen (because they held a visa that was outside the terms of s 46A(1)(b)(ii)), then the bar on visa applications would not apply to them. While the circumstances in which that issue may arise might seem remote, it is apparent from the terms of the scheme as I have outlined in these reasons, and from the comprehensive nature of ss 494AA and 494AB that, in relation to individuals with the status of unlawful maritime arrival (and, previously, offshore entry person) and transitory person, there is a legislative intention, evinced repeatedly in the text of various provisions, to treat such individuals differently, and adversely in a number of different ways: access to the full suite of visas available under the Act and Regulations, and access to the Courts, being two such ways.

103    In particular, what is targeted by the scheme is the mode of arrival in Australia – by boat, without a visa – and the scheme ties the adverse consequences to that form of arrival. That is true for both ss 494AA and 494AB, because the definition of “transitory person” is largely, if not wholly, directed at an individual who also has the status of “unauthorised maritime arrival” (or, under the previous provisions, “offshore entry person”).

104    The subject matter of s 494AA is best described in the same way as, and consistently with, s 494AB. Indeed, generally it seems to me that it is important to construe the two provisions consistently, as their text and apparent purpose is very similar. Striving to do that exposes some of the weaknesses of the applicant’s arguments.

105    The applicant is correct to emphasise that what is being prohibited is a proceeding, or proceedings. Each paragraph of sub-section (1) commences with the same phrase: “proceedings relating to”. The next part of each paragraph identifies a category of proceedings. For paragraph (c), the category is “the lawfulness of the detention of an unauthorised maritime arrival during the ineligibility period”. Although that entire phrase represents the category of proceedings to which paragraph (c) is directed, for the purposes of delineating between the parties’ competing constructions what is important is that the object of the phrase “proceedings relating to” is the lawfulness of the detention of a relevant individual during a defined period.

106    None of the paragraphs in sub-section (1) purport to address the timing of any proceedings brought. Each addresses the subject matter, or categories, of the proceedings. The entirety of s 494AA, as with s 494AB, is concerned with precluding jurisdiction on the basis of subject matter by specified category, not on the basis of the timing of when a proceeding is commenced.

107    While two of the categories in s 494AA, and one of the categories in s 494AB, have – by using “ineligibility period” – a temporal component to the description of the category of proceeding, the purpose of that temporal component is common to them all. The temporal component seeks to tie the jurisdictional prohibition to events that occurred during a period of time commencing when a defined individual has entered Australia and ending when that person next ceases (after that entry) to have the status of an unlawful non-citizen. In this way, the legislative policy sought to be achieved is to restrict the ability of these individuals to challenge any of the consequences the legislative scheme imposes on them by reason of the method of their entry into Australia: namely, arrival by boat without a visa.

Access to the courts and legality

108    The applicant relies on the principle of legality in support of the construction for which he contends. He does so by identifying access to the courts as the common law right with which s 494AA should be presumed not to interfere. He submits:

17.    At least since Blackstone, access to the courts has been recognised as a right at common law. While it is not absolute, it can only lawfully be restricted by clear words and to ‘pursue a legitimate objective by proportionate means [that do] not impair the essence of the claimant’s right.’ It may be doubted that blocking access for a broad class of persons to all avenues of curial relief other than the High Court could ever be proportionate or reasonable to a legitimate objective.

18.    That is particularly so when, as here, the limitation on curial access is in respect of potential proceedings concerned with the right to liberty, ‘the most elementary and important of all common law rights.’ In that context, the practical consequence of limiting the judicial fora that would otherwise be available to address unlawful imprisonment would be to stifle and devalue the right to liberty by discouraging and fettering the ability of large numbers of persons who may have been falsely imprisoned from seeking to redress that wrong.

19.    The construction of s 494AA(1)(c) most respectful of the principle of legality is that Parliament thereby intended to temporally limit the restriction on access to courts other than the High Court of Australia for proceedings in which the lawfulness of detention is challenged. The burden of instituting individual proceedings in the country’s highest court – with the associated issues of cost and physical access – and the resulting burden on the efficient administration of justice by that Court would also be minimised if 494AA is read as being temporarily limited. That reading should be preferred to one that indefinitely precludes access to cheaper, more accessible courts with established, detailed, representative proceedings regimes. The latter consequence could only be achieved by irresistibly clear language making it plain that that was the end to which the terms of the provision was directed. Section 494AA contains no such language.

(citations omitted)

109    There are criticisms of legality as a “principle” including its nomenclature: see Heydon J in Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [444]; Bennion FAR, Bennion on Statutory Interpretation (5th ed, LexisNexis Butterworths, 2008) p 823, and see generally the incisive account of the criticisms by Brendan Lim in “The Normativity of the Principle of Legality” (2013) 37 Melbourne University Law Review 372. However, the role of legality as a concept available to be used in statutory construction in Australian law is well established.

110    In Momcilovic at [42]-[43] French CJ described the role of the principle of legality in statutory construction as his Honour saw it:

The common law in its application to the interpretation of statutes helps to define the boundaries between the judicial and legislative functions. That is a reflection of its character as “the ultimate constitutional foundation in Australia”. It also underpins the attribution of legislative intention on the basis that legislative power in Australia, as in the United Kingdom, is exercised in the setting of a “liberal democracy founded on the principles and traditions of the common law”. It is in that context that this Court recognises the application to statutory interpretation of the common law principle of legality.

The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law. The range of rights and freedoms covered by the principle has frequently been qualified by the adjective “fundamental”. There are difficulties with that designation. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power. Nevertheless, the principle is a powerful one. It protects, within constitutional limits, commonly accepted “rights” and “freedoms”. It applies to the rules of procedural fairness in the exercise of statutory powers. It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power. It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations.

111    Accepting the well-established role of the principle, in the context of s 494AA, there are a number of difficulties in this aspect of the applicant’s submission.

112    The first is that there is no real analogy, in terms of constructional choices, in my opinion with the situation in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 at [17]-[22] where Gleeson CJ also identified the principle of legality as contributing to the view taken by his Honour (in dissent) on the proper construction of s 196 of the Migration Act, and whether that provision authorised indefinite detention. Al-Kateb concerned a qualitatively different phrase in this legislative scheme, and it also concerned the ongoing infringement of a person’s right to liberty. Even on the applicant’s construction, s 494AA(1)(c) is not concerned with ongoing deprivation of liberty: it is concerned with past deprivation. That is not to say past deprivation is of lesser importance, but rather to emphasise that in making constructional choices, the choice is not between an interpretation which will continue to affect a person’s liberty and one which will not. That was the central relevance of the principle of legality in Al-Kateb and it is not present here.

113    There is also the question of the nature of the right or interests affected, and how this fits with the operation of the principle of legality. Identifying “access to the courts” as such a right is too broad, at least in a context without a statutory or constitutional bill of rights. The applicant’s proposition, as I have extracted above, is that “while not absolute”, access to the courts “can only lawfully be restricted by clear words and to “pursue a legitimate objective by proportionate means [that do] not impair the essence of the claimant’s right.”

114    The applicant relies on only two authorities for this proposition, and this aspect of the applicant’s argument was not much developed in oral submissions.

115    Those two authorities are Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah [2017] UKSC 62; 3 WLR 957 at [14]; Attorney-General for the State of Victoria v Kay [2009] VSC 337 at [11] per Cavanough J.

116    Kay concerned an application by a person who had been declared a vexatious litigant to set aside the Court’s orders declaring him to be such. The plaintiff was relying on the enactment of the Charter of Human Rights and Responsibilities Act 2006 (Vic) as a change in circumstances which justified the Court removing the vexatious litigant order against him. It was not his first attempt to have the order removed. He relied on the right of access to the courts in s 24 of the Charter. At [12] Cavanough J referred to and adopted what had been said by Nettle J in an earlier application by Mr Kay about this right:

Mr Kay did make extensive reference before me to commentaries by the Victorian Government on the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”). He said that his rights under the Charter amounted to “new facts or circumstances”. However he had already made, in substance, the same submissions to the Court of Appeal. With respect I adopt the response of Nettle JA to those submissions, as follows:

“10    In oral argument, the applicant advanced a number of further contentions as to what he said amounted to a change in circumstances since he was declared a vexatious litigant. In substance they were that the order declaring him a vexatious litigant:

1)    Violated his right of access to the courts under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’);

2)    Restricted or prevented his access to legal aid, and therefore violated his right to a fair hearing under s 24 of the Charter;

3)    Violated his right to equality of treatment before the law under s 8 of the Charter;

4)    Deprived him of the ability to obtain discovery of documents and subpoena witnesses in order to prove that a previous prosecution of him was corrupt;

5)    Thus deprived him of the opportunity to establish that there had been a relevant change in circumstances.

11    Apart from it being questionable whether any of those matters amounts to a change in relevant circumstances since the order was made, it seems to me that each is premised upon a misconception that the right of access to the courts is absolute. It is not. European and English decisions establish that a right of access of the kind which is enshrined in s 24 of the Charter may be subjected to reasonable restrictions aimed at achieving legitimate objectives if the means used to achieve those objectives are proportionate thereto: Golder v United Kingdom (1975) 1 EHRR 524; Ebert v Official Receiver [2002] 1 WLR 320. Since a right of access of the kind enshrined in s 24 of the Charter is informed and limited by the ‘needs and resources of the community and individuals’ it is recognised that it is in the interests of justice and thus a legitimate aim to restrict the access of vexatious litigants: Ashingdane v United Kingdom (1985) 7 EHRR 528. Consequently, in England, where the procedures for the declaration of vexatious litigants and for review and appeal are not dissimilar to those which apply in this State, it has been accepted that the general system relating to vexatious litigants complies with the requirements of the European Convention for the Protection of Human Rights: Ebert v Official Receiver [2002] 1 WLR 320, 323 [6]-[9]. Similarly, in my view, the procedures in this State which govern the making of an order to declare a litigant vexatious, and the rights of appeal and review to which such an order is subject are consistent with s 24 of the Charter.

12    I allow that the right to a fair hearing may include a right to legal aid in some cases, especially in criminal cases. Dietrich v The Queen (1992) 177 CLR 292. But as the European Commission of Human Rights has held in relation to Article 6(1) of the European Convention for the Protection of Human Rights, it is only in exceptional circumstances, namely, where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of proceedings, that a right to legal aid under the convention can be invoked: X v United Kingdom (1984) 6 EHRR 136, [3]; cf. R(Jarrett) v Legal Services Commission [2002] ACD 25, in which it was held that in custody proceedings the issues were such as to make legal advice practically essential. It seems to me that the position under the Charter is the same. There are also a number of European decisions in which it has been held that a legal aid scheme which selects cases for assistance according to merit and provides for the selective exclusion of other cases does not necessarily violate the right to a fair hearing: Airey v Ireland (1979) 2 EHRR 305, X v United Kingdom (1981) 21 DR 95, 101; Thaw v United Kingdom (1996) 22 EHRR CD 100. As at present advised, I should think that the same holds true under the Charter.

13    No doubt, so long as the applicant remains a vexatious litigant, his ability to attack previous determinations in this and other courts will be restricted. But I am not persuaded that the restrictions to which he is subject at all compromise his ability to put before the court any change in circumstances which may have occurred since the original order was made, or to prove its existence. His difficulty in this case is that he is unable to identify any relevant change in circumstances. Most if not all of his contentions are simply a regurgitation of arguments previously advanced and rejected.”

117    Janah (and another case heard with it) concerned a statutory immunity conferred on states in respect of proceedings relating to contracts of employment between a state and a person who at the time of the contract was neither a national of the United Kingdom nor resident there, and in particular concerning the employment of members of a diplomatic mission, including administrative, technical and domestic staff employed there. Ms Janah was a Moroccan national recruited to work for the Libyan government as a domestic worker at its embassy in London, and her claim related to a failure to pay her the minimum wage set for workers in the UK. A similar claim was made by Ms Benkharbouche, also a Moroccan national, in relation to her employment as a domestic worker for the Sudanese government in the UK.

118    They contended the statutory immunity was incompatible with Art 6 of the European Convention on Human Rights, because Art 6 of the ECHR relevantly provides:

in the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

119    As Lord Sumption (with whom the Court agreed) noted at [14], it is well-established in ECHR law, and in UK law, that this right includes a right of access to the courts to determine a dispute and not just a right to have a dispute tried fairly.

120    Thus, the two authorities on which the applicant relied were cases in which the asserted right had a source in human rights instruments, including specified content to the right, and a well-established body of jurisprudence about its meaning.

121    The applicant might also have referred to the recent UK Supreme Court decision in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51; 3 WLR 409, in which the Supreme Court invalidated an exercise of power by the Lord Chancellor under s 42(1) of the Tribunals, Courts and Enforcement Act 2007 (UK) prescribing fees payable in respect of proceedings in the employment tribunals and the employment appeal tribunal. The principal basis on which the Supreme Court held the fees were invalid was what Lord Reed (with whom Lord Neuberger, Lord Mance, Lord Kerr, Lord Wilson and Lord Hughes agreed) described (at [66]-[89]) as a “constitutional right of access to the courts”.

122    The applicant’s argument did not address what the place in Australian law was of the right of “access to the courts” other than in the most general of terms. He did not address the content of the right. Nor did his argument develop who or why it should be seen as a “fundamental right”, for the purposes of engaging the principle of legality in the constructional choices about s 494AA.

123    I do not mean to suggest the applicant’s argument about the existence of such a common law right might not, on an appropriate occasion, be accepted. It was simply insufficiently developed, and to the extent it was developed, it lacks an appropriately clear and identified foundation in Australian law, applicable to the claim made by the applicant, so as to employ the concept of legality in making constructional choices about s 494AA(1)(c).

124    Further, had the legality argument been further developed, the availability of remitter from the High Court back to this Court would have been relevant, in the sense that s 494AA(1)(c) does not impose a complete bar on a proceeding such as this, nor on remitter by the High Court. As I set out below, on the current state of authorities, it would appear that such remitter is available.

125    For those reasons, the applicant’s reliance on the principle of legality does not alter the conclusions I have reached about the proper construction of s 494AA(1)(c).

Consequential reasoning

126    The applicant also referred to consequences of the Commonwealth’s construction, and submitted this should be a factor in the constructional choice to be made. He submitted there would be an:

impracticable consequence that the only means by which the Applicant and the thousands of group members could likely challenge their loss of liberty would be by issuing individual proceedings in the High Court of Australia. The imposition upon the High Court of such a burden would seem an unlikely intention to impute to the legislature. On the Applicant’s construction, this burden would only apply during the ineligibility period, a more moderate and likely intended outcome.

(citations omitted)

127    In Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178 at [227]-[231], I discussed the use of consequential reasoning in making constructional choices, noting that judicial views differ over its utility as a method. However, I recognised in those passages that the fact that one interpretation produces unreasonable, capricious, absurd, unfair or patently inconvenient consequences may be an indication that construction is not the one intended by Parliament. I also noted, by reference to several sets of reasons in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 (Gibbs CJ at 305; Stephen J at 310 and Mason and Wilson JJ at 320-321), that is not a method of avoiding what is, in reality, an unambiguous provision or one that is intractable in its meaning.

128    Even if one accepts for the purposes of the argument the way the applicant has framed the consequences (which is somewhat speculative) I do not accept those consequences could be described as capricious or arbitrary, or “unreasonable” in the sense I consider that adjective is used in this context. The consequences of compelling litigants to issue proceedings in the High Court is the intended consequence. It is the result of a deliberate policy choice, a political choice, made after the Tampa incident in 2001 and implemented by the Parliament, and not altered in any material way since. The legislative intention is to restrict access to Australian courts, and to make it as difficult as constitutionally possible for individuals to litigate over the subject matter categories.

129    The constitutional limits on federal legislative power in this respect meant, as they have in the past, that litigants would be compelled to issue proceedings in the High Court, and Parliament recognised this fact and intended that it be so. The reservation in s 494AA(4) is evidence of that intention. These provisions are not the only ones currently, nor historically, in terms of the Migration Act, where this kind of restriction has been imposed. The circumstances with which the High Court dealt in Abebe illustrated an extreme level of bifurcation between this Court and the High Court, in terms of the grounds of review available, and by majority that bifurcation was upheld as within constitutional limits by the High Court.

Remitter

130    The Commonwealth sought to answer the applicant’s arguments about the potential consequences for the High Court’s exercise of its original jurisdiction (presumably under s 75(iii) of the Constitution), by contending that the High Court could remit any such proceeding under s 44 of the Judiciary Act to this Court, or to the Federal Circuit Court. This could include, the Commonwealth appeared to contend, any proceeding commenced in the High Court as a “representative” proceeding – see r 21.09 of the High Court Rules 2004 (Cth).

131    In supplementary submissions filed after the close of argument with leave, the Commonwealth contended this very issue had arisen in Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28: namely, whether proceedings relating to the Migration Act commenced in the High Court were able to be remitted to the Federal Court or Federal Circuit Court. Plaintiff S156 concerned a plaintiff who had the status of an unauthorised maritime arrival when he entered Australia. He was sent to Papua New Guinea, in exercise of the powers of Subdiv B of Div 8 of Part 2 of the Migration Act which included, relevantly, the removal power in s 198AD. He challenged the constitutional validity of those provisions and also challenged on judicial review grounds the validity of the decision to designate PNG as a regional processing country and the direction under s 198AD(5) that he be removed to PNG. The Court rejected the constitutional challenges, found that the designation of PNG and the direction made under s 198AD(5) were not invalid, and that the proceeding was otherwise able to be remitted to the Federal Circuit Court. At [20], on the question of remitter, the High Court held (referring in the first sentence to s 44 of the Judiciary Act):

This Court may remit any part of a matter that is pending in the Court to any federal court that has jurisdiction with respect to the matter. The effect of s 476B of the Migration Act is that this Court may not remit a matter that relates to a “migration decision” to the Federal Court unless the Federal Court has jurisdiction under s 476A(1)(b) or (c); this Court may only remit such a matter to the Federal Circuit Court (and it may only do so if that Court has jurisdiction under s 476). The decision to take the plaintiff to PNG is a migration decision. It is not a decision in respect of which the Federal Court has jurisdiction under s 476A(1)(b) or (c); but the Federal Circuit Court has jurisdiction under s 476(1). This is so notwithstanding the terms of s 494AA(1)(e), which provides that certain proceedings relating to UMAs may not be “instituted or continued” in any court. Section 494AA(3) makes plain that that provision does not affect the jurisdiction of the High Court under s 75 of the Constitution. Section 494AA(1)(e) should not therefore be construed as limiting this Court’s ability to remit matters to the Federal Circuit Court.

132    In Plaintiff S156, the Court was concerned with a provision in the Migration Act – s 476B – which expressly constrained its powers of remitter under s 44 of the Judiciary Act. In the passage at [20], the Court accepts the legal effectiveness of that constraint. That is consistent with the position taken in Abebe.

133    At the time Abebe was decided, this Court’s judicial review jurisdiction in matters under the Migration Act was split, on the basis of grounds of review, into those this Court could deal with and those it could not. By a majority, the High Court held the legislative provisions which achieved that split to be valid. However, in Abebe at [100], Gaudron J said:

But for s 485, which, too, is in Pt 8 of the Act, the practical difficulties which arise in a case of the present kind could be eliminated by this Court exercising its power under s 44 of the Judiciary Act to remit matters arising under s 75(v) of the Constitution to the Federal Court, that Court having jurisdiction conferred on it in relation to matters arising under s 75(v) by s 39B of that Act. However, so far as decisions of the Tribunal are concerned, s 485 of the Act effectively renders the power of remitter useless. Subject to a qualification in sub-s (2) which has no bearing on this case, s 485 relevantly provides:

“(1)    In spite of any other law, including section 39B of the Judiciary Act, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

...

(3)    If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.”

(citations omitted)

134    The same point is made by the High Court in MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; 233 CLR 601 (the Remitter Case) at [189]-[191] (Heydon, Crennan and Kiefel JJ), in relation to the then equivalent provision, s 476B of the Migration Act.

135    There is no such equivalent restraint in s 494AA (or s 494AB for that matter) on remitter, so the particular problem in Plaintiff S156 does not arise in this proceeding if, hypothetically, the applicant commenced a proceeding in the High Court and the High Court was considering whether or not to remit it to this Court.

136    What that leaves for consideration is the issue raised by the second part of the passage at [20] of Plaintiff S156, where the Court finds, clearly, that s 494AA(1)(e) should not be construed as limiting the High Court’s remitter power. I accept the Commonwealth’s submissions that no material distinction should be drawn between Plaintiff S156 (which raised s 494AA(1)(e)) and this proceeding, which raises s 494AA(1)(c).

137    The answer to this issue lies in the source of the power exercised on remitter. Section 44(3) of the Judiciary Act provides:

Where the High Court remits a matter, or any part of a matter, under subsection (2) or (2A) to a court:

(a)    that court has jurisdiction in the matter, or in that part of the matter, as the case may be; and

(b)    subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court.

138    In Re Jarman; ex parte Cook [1997] HCA 13; 188 CLR 595 at 633, Gummow J said:

Section 44(3) … operates … as a law under s 77(i) of the Constitution defining the jurisdiction of a federal court other than the High Court, or as a law under s 77(iii) of the Constitution investing any court of a State with federal jurisdiction.

139    This passage was cited with approval in the Remitter Case at [188] (Heydon, Crennan and Kiefel JJ).

140    It would appear that this is the understanding which underpins the second part of the passage in [20] of Plaintiff S156. On any such remitter, the source of this Court’s jurisdiction would not be s 39B(1A)(c) of the Judiciary Act, it would be s 44(3). The powers available to the Court would be those available to the Federal Court, but by reason of the terms of s 44(3)(b) authorising this Court to exercise its powers under the Federal Court Act.

141    Further, as the Commonwealth pointed out, the High Court has in fact exercised its remitter power under s 44 of the Judiciary Act, albeit through consent orders, to remit two matters (one to the Federal Court, the other to the Federal Circuit Court) where the terms of s 494AA were drawn to its attention: see Plaintiff P1/2003 v Ruddock [2003] HCATrans 787 (McHugh J); Plaintiff M169/10 v Minister for Immigration [2011] HCATrans 108 (Crennan J).

142    On remitter of the former to the Federal Court (Plaintiff P1/2003 v Ruddock [2007] FCA 65; 157 FCR 518), RD Nicholson J appeared to accept that there could be a remitter from the High Court of a proceeding within the terms of either (or both) ss 494AA and 494AB to the Federal Court: see [91]-[92]. The applicant in that case was an unaccompanied minor who had sought to enter Australia on 31 October 2001: that is, not long after the Tampa incident. He was rescued by Commonwealth officers when the boat he was on caught fire and sank and was taken to Ashmore Reef. He was subject to the legislative measures which I have described above, and was removed to Nauru. He was, however, flown to Perth in early November 2002 to give evidence at a coronial inquest into the deaths of two women who had drowned after the boat he was on sank. He also had a serious arm injury that had not been treated in Nauru. A combination of these factors led to litigation on his behalf seeking that he not be taken back to Nauru, challenging the validity of several of the provisions of the Migration Act which affected him and raising a number of bases on which he was entitled to damages from the Commonwealth. It is not necessary to set out the detail of his claims.

143    He initially issued proceedings in the Federal Court, which were dismissed by French J on the basis of ss 494AA and 494AB: see WAJC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1631.

144    The applicant then commenced proceedings in the High Court which, as stated above, were in turn remitted to the Federal Court by McHugh J: see French J’s subsequent reasons on an interlocutory application by the same applicant in P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1029 at [15].

145    In his reasons in P1/2003 at [92], RD Nicholson J stated that the following matters, among others, were “not in dispute” in the litigation before him:

…

(b)    the power of remittal in s 44 of the Judiciary Act is not itself affected by ss 494AA(2) or 494AB(2). That is, when s 44(2A) provides for remittal to the Federal Court it cannot be understood that either of the latter two sub-sections have removed such jurisdiction from the High Court. The defendant accepts that each of the sub-sections (2) are directed to the items in the sub-sections (1) and not to the jurisdiction or powers of the High Court.

(c)    upon remittal the Federal Court has the same jurisdiction as the High Court would have had. As was said in relation to remittal pursuant to s 44(2A), the Federal Court stands in the judicial shoes of the High Court: McCauley v Hamilton Island Enterprises Pty Ltd [1986] HCA 86; (1986) 61 ALJR 235 at 238 per Mason J.

…

146    And at [98], by reference to the remitter reasons of McHugh J:

In making the orders for remittal McHugh J stated that if the proceeding was remitted, the Federal Court would not be exercising its jurisdiction but would be exercising the jurisdiction of the High Court. This is the foundation of the reasoning by which the defendant accepts that neither ss 494AA nor 494AB preclude the Federal Court, standing in the shoes of the High Court, from exercising the remitted jurisdiction.

147    In that case, RD Nicholson J was dealing with an application to amend the applicant’s pleadings to introduce new facts and allegations which had arisen after the remitter by McHugh J. The Commonwealth objected to this, on the basis the “matter” was as remitted by McHugh J, and any further or new claims would be again caught by ss 494AA and 494AB. RD Nicholson J rejected this contention (see [109]-[110]) and found that ss 494AA and 494AB did not preclude the amendments sought by the applicant. That is consistent with the observation I have made above that first, the jurisdiction the Federal Court would be exercising is one located in s 44(3), but is subject to its own powers under the Federal Court Act.

148    It will be recalled that, in the legislative provisions with which the Court was concerned in Abebe, the Parliament had specifically addressed an ongoing constraint of the Federal Court’s jurisdiction on remitter, so that this was not a possible option, and the judicial review grounds which were denied to the Federal Court were ones that could only be pursued in the High Court.

149    There is no suggestion in ss 494AA and s 494AB that the provisions are intended to affect jurisdiction acquired by this Court by reason of a remitter order from the High Court. To that extent, the process the applicant must go through, if my construction is correct, may be a time consuming and expensive one, only to arrive back at the point at which he attempted to start.

150    However pointless that might seem to those not closely concerned with legal debates about judicial power and jurisdiction, this is the intended operation of the Act.

151    The applicant also submits that the prohibition in s 494AA would continue to apply to this proceeding, even if he commenced it again in the High Court and it was remitted under s 44 of the Judiciary Act. That is because, he submits, the prohibition on a proceeding being “continued” would encompass a proceeding instituted in the High Court but “continued”, on remittal, in this Court. I do not accept that submission, because it is contrary to current authority about the nature of a remitted proceeding.

152    I accept there is a potential construction issue about the use of the word “continued” in s 494AA. It does not appear to have been one that has troubled the High Court on the two occasions it has exercised a remitter power to the Federal Court and the Federal Circuit Court: see [141] above. The answer may be the same as the answer to the overall question: whether the nature of the jurisdiction conferred under s 44(3) of the Judiciary Act, being the jurisdiction of the High Court, overrides or renders inapplicable, the privative terms of s 494AA. In any event, I do not consider these are matters for this Court on this application. They are matters for the High Court if and when a proceeding is instituted in that Court, and if and when the High Court is requested to, or decides it is appropriate to, remit the proceeding to another court for trial.

Existing authorities

153    There are no authorities which have examined this construction issue in detail, and certainly not on the basis of the construction put forward by the applicant.

154    I have dealt with the decision of SGS above. I also consider that the approach taken in the series of cases to which I have referred at [131131]-[148] above, shortly after the enactment of these provisions, is more consistent with the Commonwealth’s construction than that proffered by the applicant.

155    It is true that in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17 at [443]-[447], Bromberg J expressed some disagreement with some of the views expressed by Hiley J in SGS. I note the area of disagreement concerned the proper construction of ss 474 and 484 of the Migration Act, and the question whether the Federal Court was precluded by these provisions from granting injunctive relief in a proceeding where the cause of action was a claim of negligence. The plaintiff in Plaintiff S99 had the status, at least at some stage, of an unauthorised maritime arrival. The proceeding before Bromberg J concerned an application for an injunction, and associated declaratory relief, restraining the Minister and the Commonwealth from breaching their alleged duty of care to the plaintiff to provide her with access to a safe and lawful surgical abortion. I infer, therefore, that the Commonwealth did not raise either s 494AA, or s 494AB, because none of the subject matter categories in those provisions aligned with the kind of claim being brought by the plaintiff.

156    Bromberg J’s observations in Plaintiff S99 about SGS dealt with a different issue altogether. They do not affect my view that what was said in SGS about s 494AB is consistent with the view I have reached about s 494AA(1)(c).

The Commonwealth’s alternative claim

157    I do not propose to rule on the Commonwealth’s alternative arguments, given I have accepted its arguments that this Court has no jurisdiction. The matters raised in the amended statement of claim are of great significance. The Commonwealth submits that most of the core allegations are precluded by Al-Kateb, and the applicant’s response is that there has been a considerable shift in authorities after Al-Kateb towards a greater emphasis on the purpose of detention (in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 and Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 343 ALR 362 in particular) are also contentions of considerable significance. They should be determined in a context where they must be determined, not one where the Court has found it has no jurisdiction in the proceeding as a whole.

Conclusion

158    In WAIV at [32], French J said:

The Parliament may confer jurisdiction under Ch III of the Constitution on a federal court or the courts of the various States. Subject to constitutional limitations not relevant here, that jurisdiction may be as wide or as narrow as the Parliament defines it to be. To the extent that s 494AB withdraws from the jurisdiction otherwise conferred on this Court under s 39B of the Judiciary Act, matters described by the classes of proceedings set out in subs (1) of that section, the Court must accept the limits of its jurisdiction so defined and that in this case it does not have jurisdiction to entertain the application. I observe that nothing in the section is intended to affect the jurisdiction of the High Court under s 75 of the Constitution. Nor could it. The appropriate place to bring this application was in the High Court under s 75(5).

159    A similar observation could be made in the current application, even though there is no direct equivalent in the High Court of a class action. The form of the proceeding is a matter for the applicant, through his litigation guardian and his legal representatives.

160    The parties will be given an opportunity to discuss a proposed form of orders reflecting the Court’s reasons for judgment, and to attempt to agree a position on costs.

Associate:

Dated:    27 August 2018