FEDERAL COURT OF AUSTRALIA

Burgess v Commonwealth of Australia [2020] FCA 670

ORDERS

THE COURT ORDERS THAT:

1.    The applicant file and serve draft minutes of order and submissions as to costs (limited to five pages) within 7 days.

2.    The respondent file and serve draft minutes of order (if it disputes those advanced by the applicant) and submissions as to costs (limited to five pages) within 14 days.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    The applicant in this proceeding is Mr Paul William Burgess and the respondent is the Commonwealth of Australia. The applicant is a British citizen who, prior to 3 June 2016, held a Class BF (Subclass 155) Resident Return Visa (the visa) under the Migration Act 1958 (Cth) (the Act).

2    On 3 June 2016, the Minister for Immigration and Border Protection (the Minister) purported to cancel the applicant’s visa under s 501(3) of the Act (First Cancellation Decision). On 9 June 2016, the applicant was taken into detention where he remained until 12 February 2018. I will refer to this period as the relevant period. On 16 June 2016, the applicant issued an application for judicial review in this Court (SAD 178 of 2016) seeking an order quashing the First Cancellation Decision (the First Judicial Review Proceeding). On 16 September 2016 at approximately 9.20 am, this Court made an order by consent quashing the First Cancellation Decision.

3    Approximately 20 minutes after the order quashing the First Cancellation Decision had been made, the Minister made a second decision purporting to cancel the applicant’s visa under s 501(3) of the Act (Second Cancellation Decision). On 21 October 2016, the applicant issued an application for judicial review in this Court (SAD 293 of 2016) seeking an order quashing the Second Cancellation Decision (the Second Judicial Review Proceeding). On 12 February 2018, this Court, after a contested hearing, made an order quashing the Second Cancellation Decision (Burgess v Minister for Immigration and Border Protection [2018] FCA 69; (2018) 259 FCR 197).

4    A third cancellation decision was made on 13 February 2018 and that was followed by a Third Judicial Review Proceeding instituted by the applicant. However, both those events are outside what I have defined as the relevant period.

5    It is not in dispute that the effect of the orders of the Court in the two Judicial Review Proceedings is that the applicant was a lawful non-citizen within s 13 of the Act throughout the period of his detention. The applicant claims that his detention was unlawful throughout the relevant period and he seeks a declaration to that effect and damages for false imprisonment, including exemplary damages. He seeks compensatory damages in relation to the period of his detention. If compensatory damages are not awarded, the applicant seeks what were referred to in the course of submissions as vindicatory damages. The respondent contends that the applicant’s detention was authorised by s 189 of the Act or s 196(4) and (5)(b) of the Act and was lawful. The respondent further contends that if the applicant’s detention was not lawful (contrary to its primary submission), then nevertheless, he is not entitled to compensatory damages and he is entitled to no more than nominal damages. The respondent contends that the facts do not support an award of exemplary damages.

The Principal Issues

6    It is convenient to begin by setting out the provisions of the Act which provide for the detention of non-citizens who are, or who are reasonably suspected of being, unlawful non-citizens.

7    Section 13 of the Act provides that a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen, and s 14 provides that a non-citizen who is not a lawful non-citizen is an unlawful non-citizen. Section 15, subject to an immaterial exception for present purposes, provides that if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.

8    Section 189 of the Act deals with the detention of unlawful non-citizens. It provides:

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

(2)    If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)    is seeking to enter the migration zone (other than an excised offshore place); and

(b)    would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

(3)    If an officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non-citizen, the officer must detain the person.

(3A)    If an officer knows or reasonably suspects that a person in a protected area:

(a)    is a citizen of Papua New Guinea; and

(b)    is an unlawful non-citizen;

the officer may detain the person.

(4)    If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)    is seeking to enter an excised offshore place; and

(b)    would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

(5)    In subsections (3), (3A) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

Note:    See Subdivision B for the Minister’s power to determine that people who are required or permitted by this section to be detained may reside at places not covered by the definition of immigration detention in subsection 5(1).

9    The word “detain” is defined in s 5 of the Act as follows:

detain means:

(a)    take into immigration detention; or

(b)    keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

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

10    The term “immigration detention” (a term used in the definition of detain) is defined in s 5 of the Act as follows:

immigration detention means:

(a)    being in the company of, and restrained by:

  (i)    an officer; or

(ii)    in relation to a particular detainee—another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or

(b)    being held by, or on behalf of, an officer:

(i)    in a detention centre established under this Act; or

(ii)    in a prison or remand centre of the Commonwealth, a State or a Territory; or

   (iii)    in a police station or watch house; or

 (iv)    in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or

    (v)    in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

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

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

11    There are four matters to note at this stage about s 189 of the Act. First, the persons who may exercise the power in s 189 must be officers. The term “officer” is defined in s 5 of the Act. I do not need to discuss the definition because, as I understand it, the applicant does not dispute that all seven persons who gave evidence on behalf of the respondent in this case were officers at the time(s) they were involved with the applicant. Secondly, in order to engage the section, the officer must know or reasonably suspect that the person is an unlawful non-citizen, that is, a non-citizen who does not hold a visa which is in effect. The satisfaction of that requirement is disputed by the applicant in the case of one of the respondent’s seven witnesses, but not in the case of the six other witnesses. Thirdly, in order to engage the section, the officer must detain the person. The satisfaction of that requirement is disputed in the case of four of the respondent’s seven witnesses. Finally, s 189 imposes on an officer an obligation to detain, not simply a power to detain.

12    Section 196 deals with the duration of detention and is in the following terms:

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

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

(2)    To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

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

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

(4A)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

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

(a)    whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

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

(5A)    Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

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

(7)    In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

13    It is convenient to note at this stage that s 196(4) and (5)(b) deal with a subclass of the class dealt with in s 196(1). The latter subsection deals with unlawful non-citizens generally, whereas s 196(4) and (5)(b) deal with unlawful non-citizens whose visas have been cancelled as a result of decisions made under the “character” provisions in Part 9, Division 2 of the Act.

14    Section 198 deals with the obligation on officers to remove unlawful non-citizens from Australia as soon as reasonably practicable and in the circumstances specified in the section. It is not necessary to set out the terms of that section.

15    The respondent relies on s 196(4) and (5)(b) to justify the applicant’s continuing detention, save for a period on 9 June 2016 and a period on 16 September 2016. The respondent accepts that the initial detention of a person must be authorised by s 189, but submits that thereafter s 196(4) and (5)(b) authorise continuing detention of the person independently of s 189, that is to say, irrespective of whether s 189 is satisfied. The applicant submits that that is not the correct construction of the subsections. He submits that on the correct construction of the subsections, they do not provide an obligation or power to detain independent of s 189 and that that section (i.e., s 189) must be complied with at all times throughout the person’s detention. In the alternative, the applicant submits that if he is wrong about the correct construction of the subsections, then they are constitutionally invalid. He has served notices under s 78B of the Judiciary Act 1903 (Cth), but no Attorney-General has sought to intervene in the proceeding.

16    I will identify the principal issues in relation to relief when I come to that section in these reasons.

The Circumstances Surrounding the Applicant’s Detention

17    There is no dispute that the applicant was detained during the relevant period. The onus is on the respondent to establish on the balance of probabilities that the applicant’s detention was lawful (Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 (Trobridge v Hardy) at 152 per Fullagar J; Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 626 per Walsh J; Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 (Ruddock v Taylor (NSWCA)) at [4] per Spigelman CJ; Commonwealth v Okwume [2018] FCAFC 69; (2018) 263 FCR 604 at [107] per Besanko J). The respondent accepts that it bears the onus of establishing on the balance of probabilities that the detention of the applicant was lawful.

18    The applicant was detained early in the morning on 9 June 2016 and thereafter he remained in detention until 12 February 2018. His primary case is that from late in the afternoon on 9 June 2016 until 12 February 2018, and excluding a very short period on 16 September 2016, his detention was unlawful. He also puts alternative cases of unlawful detention relating to particular periods within the relevant period should certain of his primary arguments fail.

19    The detention centres at which the applicant was detained are not in dispute. The applicant was detained at the Christmas Island Immigration Detention Centre on Christmas Island (CI IDC) from late in the afternoon on 9 June 2016 to 18 August 2016, and again from 21 April 2017 to 12 February 2018. The Territory of Christmas Island is an excised offshore place under the Act (see the definition of “excised offshore place” in s 5). The applicant was detained at the Yongah Hill Detention Centre in Northam, Western Australia (YH IDC) from 18 August 2016 to 16 March 2017, and again from 3 April 2017 to 21 April 2017. The applicant was detained at the Perth Immigration Detention Centre (P IDC) from 16 March 2017 to 3 April 2017.

20    The seven witnesses who gave evidence on behalf of the respondent each swore an affidavit which was tendered as their evidence-in-chief. None of them were required for cross-examination.

21    Each of the seven witnesses had an involvement with the applicant during a particular period or periods within the relevant period. Each witness gave evidence of a belief as to the applicant’s status during the particular period, but did not give evidence of a belief as to the applicant’s status before or after the period of their involvement with the applicant. In other words, none of the seven witnesses suggested that with respect to periods outside the particular period relevant to them, the applicant was being held by others on their behalf.

22    Before considering the evidence of the seven witnesses in more detail, it is convenient to summarise the facts established in relation to the matters identified in the previous paragraph.

23    In 2016, the Department was known as the Department of Immigration and Border Protection and, in 2018, it was known as the Department of Home Affairs. I will simply refer to it throughout these reasons as the Department.

24    It will be apparent from the above table that there are periods within the relevant period in relation to which there is no evidence from a witness of their involvement with the applicant and their state of mind during that involvement.

25    I turn now to set out my findings with respect to the seven witnesses who gave evidence on behalf of the respondent.

26    As I have previously said, the Minister’s First Cancellation Decision was made on 3 June 2016.

27    In June 2016, there was a joint operation between the Department and South Australia Police (SAPOL) known as “Operation Ravelin” which involved the detention under s 189 of the Act of persons whose visas had been cancelled by the Minister. The applicant was identified as one such person. Mr Jamieson was a member of SAPOL. He was given the task of detaining the applicant. He attended a meeting with officers of the Department on 8 June 2016. As a result of the briefing he received, he suspected that the applicant was an unlawful non-citizen. He continued to hold that suspicion the following day when he detained the applicant at a residential premises in South Australia at approximately 6.30 am. He had the applicant in his custody for approximately 10 minutes and at the end of this period, he transferred him to the custody of an officer of the Department (Mr Clifford) who was in a waiting vehicle. The applicant had flexi-cuffs applied to his hands which were behind his back. Mr Jamieson completed documents evidencing his detention of the applicant and his transfer of custody to Mr Clifford.

28    In June 2016, Mr Clifford was an Australian public servant who worked in the Australian Border Force which was part of the Department. He attended the meeting on 8 June 2016 referred to by Mr Jamieson and the operation on the following day during which the applicant was detained. At all relevant times, he suspected that the applicant was an unlawful non-citizen. He took custody of the applicant from Mr Jamieson and completed a “Transfer of Custody” form. He also completed a “Compliance Client Interview” and prepared some detention notes. It is not necessary to set out the details. He accompanied the applicant on a chartered flight to Christmas Island on 9 June 2016. Upon arriving at the CI IDC, Mr Clifford transferred the applicant into the custody of “Departmental security officers” operating at Christmas Island. He cannot now recall the names of those officers into whose custody he transferred the applicant. Mr Clifford does not identify the time when this transfer of custody occurred. Other evidence before me indicates that it was probably late in the afternoon. It is not possible to be any more precise.

29    As I have said, the applicant accepts that his detention by Mr Jamieson and then by Mr Clifford was lawful in the sense of being authorised by s 189 of the Act. He contends that his detention became unlawful from the point at which Mr Clifford transferred him into the custody of departmental security officers at the CI IDC late in the afternoon on 9 June 2016. The applicant contends that the only way in which the respondent could prove lawful detention from that point was by adducing evidence of an officer who detained the applicant and who held the reasonable suspicion identified in s 189. No such evidence has been adduced.

30    The applicant also points out, correctly, the following: (1) Mr Clifford’s evidence of the reasonable suspicion held by him does not extend beyond his transfer of the custody of the applicant to the departmental security officers; (2) Mr Clifford said that from that point he had “nothing further to do with the applicant”; and (3) there is no suggestion by Mr Clifford in his affidavit or in the documentary evidence before the Court that the departmental security officers at CI IDC were holding the applicant on behalf of Mr Clifford (see the definition of “immigration detention” set out above at [10]).

31    Ms Green is an Australian public servant who works in the Department. At the time she gave evidence, she held the position of Superintendent of the CI IDC and she was responsible for the management of the Centre. She assumed that position in “about October 2017”. She commenced her career in the Australian Public Service as a case manager and thereafter she worked in a variety of managerial positions. From February 2016, she was stationed at the CI IDC and held the position of Acting Director of the Status Resolution Section at the CI IDC. She had oversight of all the case managers at the CI IDC.

32    Ms Green was on leave when the applicant arrived at the CI IDC on 9 June 2016. She returned from leave on 21 June 2016. On 24 June 2016, she assumed the role of the applicant’s case manager and that continued until 23 August 2016. It may be noted that the applicant was detained at the YH IDC from 18 August 2016. Ms Green took over the applicant’s case from a Mr Steven Caruana who was described by Ms Green as another officer working at the CI IDC in June 2016. Mr Caruana did not give evidence. Ms Green was the applicant’s case manager for a second period from about 24 April 2017 to 19 September 2017. Ms Green gave evidence about the role of a case manager, the departmental records concerning the applicant’s status and her suspicion that the applicant was an unlawful non-citizen.

33    Ms Green’s evidence about the role of a case manager was adopted by the other case managers who gave evidence, that is to say, Ms Drucator, Mr Godfrey and Ms Khalil.

34    Ms Green said that the role of a case manager involves five broad tasks.

35    First, a case manager undertakes a case review every month and this includes a consideration by the case manager of whether a particular detainee is an unlawful non-citizen within the meaning of that term in the Act.

36    Secondly, a case manager will engage in “escalating cases, where necessary, with other relevant areas of the Department”. Ms Green gave two examples of when this was done. First, a typical example might include fast-tracking a person’s removal from Australia where the person has made a written request for this to occur under s 196(1) of the Act. Secondly, a case manager might escalate a case by taking urgent steps to cross-check a detainee’s status as an unlawful non-citizen where there are doubts as to whether a detainee is an unlawful non-citizen and, therefore, whether the detainee can lawfully be kept in detention.

37    Thirdly, a case manager’s broad tasks include ensuring the detainees they manage have a clear understanding of their immigration status and the progress of their matters.

38    Fourthly, a case manager’s broad tasks include responding to inquiries or investigations from external bodies in respect of a detainee, such as the Commonwealth Ombudsman.

39    Finally, a case manager’s broad tasks include meeting with the detainees as required, including communicating outcomes of visa applications, cancellation decisions and the outcome of Court hearings.

40    As I have said, Ms Green identified the departmental records available to case managers to determine a detainee’s status. Ms Green said that she satisfied herself that the applicant was an unlawful non-citizen prior to becoming his case manager. Ms Green said that there was no doubt in her mind from at least 24 June 2016 that the applicant was an unlawful non-citizen. She said that she maintained that suspicion at all times during the first period that she was the applicant’s case manager. Ms Green then said the following:

15.    I also understand from my review of the types of documents and information referred to in paragraph 11 above in relation to the Applicant’s case that, for a very short period of time on 16 September 2016, the Applicant was a lawful non-citizen. This occurred when the Applicant’s challenge to the Minister’s decision was overturned by the Federal Court on 16 September 2016. For the purposes of the second period, I was aware before I commenced my role as case manager for the second period that, despite the Court ruling in the Applicant’s favour, the Minister exercised his power again, within a short period of time on 16 September 2016 to re-cancel the Applicant’s visa under s 501(3)(b) of the Act. Upon learning of that cancellation decision, I understood, from my review of material outlined in paragraph 16 below, that the Applicant was a lawful non-citizen for a short window of time on 16 September 2016 between the Court’s decision and the Minister’s subsequent decision.

16.    As indicated, by the time I commenced the second period as the Applicant’s case manager on or about 24 April 2017, I had appraised myself of the relevant documents on TRIM relevant to the second visa cancellation. This was done in accordance with my usual practice. In particular, I recall viewing TRIM around 24 April 2017 in relation to the CCI completed by Dale Jones — the compliance officer who served the Applicant with the Minister’s decision on 16 September 2016. Annexed and marked JAG4 is a copy of that document.

17.    Having sighted JAG4 on or around 24 April 2017, I had, from that time, a reasonable suspicion that the Applicant was an unlawful non-citizen because it contained the same level of information as JAG1 to cause me to form that suspicion. I held a reasonable suspicion that the Applicant was an unlawful non-citizen throughout the second period.

41    As I have said, Ms Green became the Superintendent of the CI IDC in about October 2017. She said that it was part of her role as Superintendent to ensure that unlawful non-citizens are detained in the CI IDC. She said that she suspected that the applicant was an unlawful non-citizen beyond the time she was his case manager, that is, from 19 September 2017 to 12 February 2018. The applicant was released from detention on 12 February 2018. Up until that time, Ms Green reasonably suspected that the applicant was an unlawful non-citizen.

42    Ms Drucator is an Australian public servant. She works in the Department. She was the applicant’s case manager from 23 August 2016 to January 2017. She said that the applicant was transferred from the CI IDC to the YH IDC on about 18 August 2016. His case was regarded as being sensitive because he was alleged to be a member of an outlaw motor cycle gang. Ms Drucator met with the applicant approximately every month during her time as the applicant’s case manager. Ms Drucator’s practice before taking on the role as case manager of a detainee was to check departmental records in relation to a detainee’s case. Ms Drucator believed that she followed her usual practice in the case of the applicant. She believed that she checked the Compliance Client Interview form which had been completed on 9 June 2016 prior to becoming the applicant’s senior case manager on 23 August 2016. Ms Drucator states that she held a reasonable suspicion before 23 August 2016 and at all times afterwards until 16 September 2016 that the applicant was an unlawful non-citizen. She said that if she was not satisfied that the applicant was an unlawful non-citizen she would have taken immediate steps “to escalate the matter within the Department to ensure that he was released from detention”. That was not the case, however, and Ms Drucator said she was satisfied that the applicant’s detention, which was ongoing from the time he arrived at the YH IDC, should continue.

43    Ms Drucator said in her affidavit that she was alert to the possibility in connection with the events that occurred on 16 September 2016 that the Minister would again exercise his power to cancel the applicant’s visa under s 501(3)(b) of the Act. She said that from her recollection alone, she recalls that the Department’s National Office called her in the days preceding 16 September 2016 to indicate that it was working on a further submission for the Minister’s consideration, should the Federal Court allow the applicant’s challenge to the Minister’s First Cancellation Decision. She has not been able to locate any notes or emails relevant to that conversation.

44    Although Ms Drucator could not recall the precise details, she was able to say that she was informed that the Minister made a second decision on the morning of 16 September 2016 and shortly after the orders made by the Court quashing the First Cancellation Decision. Ms Drucator said that it was possible that Mr Jones, the compliance officer who attended on the applicant at the YH IDC on 16 September 2016 to hand the applicant the decision package, notified her of that development. Ms Drucator said that irrespective of how she was notified, she is confident that she held a reasonable suspicion that the applicant was an unlawful non-citizen shortly after the orders quashing the First Cancellation Decision and the Minister’s Second Cancellation Decision on the morning of 16 September 2016.

45    Ms Drucator said that at all relevant times she reasonably suspected that the applicant was an unlawful non-citizen. She said that she turned her mind to the question of the applicant being an unlawful non-citizen and, “since he was already detained, there was nothing further to do on my part to alter that detention”.

46    Mr Jones is an Australian public servant and in September 2016 he was employed in the Department as a field compliance officer. That role required him to locate foreign nationals in the community who were unlawful non-citizens or who were working in breach of their visa conditions. Upon locating such persons, Mr Jones was trained to engage with the individuals to confirm their identity and circumstances, and to ascertain their intentions. He said that he would generally make decisions to regularise the status of those individuals whom he identified to be unlawful, either by way of a grant of a temporary visa, or by detaining them if required under s 189 of the Act.

47    In the days before 16 September 2016, Mr Jones was aware that the Minister and the applicant were engaged in litigation in this Court. He said in his affidavit that he was aware of the possibility that the Minister’s decision to cancel the applicant’s visa under s 501(3)(b) of the Act in June 2016 could be set aside by this Court. Mr Jones said that he cannot recall how he became aware of that fact, but it could have been by the receipt of an email.

48    By reason of his duties, Mr Jones was on the alert on 16 September 2016, being the date the Court was expected to make a decision in relation to the First Cancellation Decision. In other words, Mr Jones was on standby as a field compliance officer to attend on the applicant at the YH IDC with a fresh decision by the Minister to cancel the applicant’s visa under s 501 of the Act. At that point in time, Mr Jones was only alerted to the possibility that the Minister might make a fresh decision. He said that he was not aware that it was by any means a certain outcome.

49    At some time on the morning of 16 September 2016, Mr Jones was in the proximity of the Western Australian (WA) State Territory Office and was advised of the fact that the Court had made orders setting aside the First Cancellation Decision and that the Minister had made a fresh decision under s 501(3)(b) of the Act to cancel the applicant’s visa. That is the Second Cancellation Decision. Mr Jones refers to an email chain which accords with his independent recollection. A bundle of documents relating to the Second Cancellation Decision was sent by an officer at the Minister’s office, Ms Sarah Harris, at 9.10 am (AWST) or 10.40 am (ACST). A recipient of the email was Ms Jo Prior, who, at 9.16 am (AWST) emailed a copy to Mr Byron Nunn with the notation “FYSA”, which Mr Jones understood to mean “For Your Situational Awareness”.

50    Mr Jones attended at a work station at the WA State Territory Office and at that place he accessed and then printed the documents that needed to be delivered to the applicant. He then reviewed them and from that point he suspected that the applicant was an unlawful non-citizen. This occurred at around 10 am (AWST).

51    Mr Jones drove to the YH IDC to notify the applicant of the Second Cancellation Decision. The journey takes more than an hour. He arrived at the YH IDC at about midday. He attended the interview area and interviewed the applicant. At that time, he suspected that the applicant was the person who was the subject of the Second Cancellation Decision, and that therefore he was an unlawful non-citizen. At that point, Mr Jones caused the applicant to be detained under s 189 of the Act. He then provided the applicant with a notification letter and attachments. He completed a Compliance Client Interview form. The time of detention noted on that form is 12.21 pm. After completing the Compliance Client Interview form, Mr Jones went about his duties and had no further interaction with the applicant.

52    Mr Godfrey is an Australian public servant. He commenced working in the Department in October 2014 and, since that time, he has been working in the service delivery team at YH IDC fulfilling various roles. He was the applicant’s case manager from 9 January 2017 to 7 March 2017. In addition to the description of the role of case manager given by Ms Green (with which Mr Godfrey agreed), he said that in his role as case manager he considered himself to be the “face of the Department” in relation to any requests by a detainee for whom he was the case manager.

53    Mr Godfrey inherited the role as the applicant’s case manager from Ms Drucator while the applicant was detained at the YH IDC. He said that he could not recall any “official hand over”. He referred to his usual practice in checking departmental records with respect to the applicant’s status and said that that process led him to reasonably suspect that the applicant was an unlawful non-citizen. Mr Godfrey said that as the applicant was already in detention as required by s 189 of the Act, and given that he had formed a reasonable suspicion that he was an unlawful non-citizen, he did not take any other action to alter that state of affairs. He is confident that he held a continuing suspicion at all times when he was the applicant’s case manager that the applicant was an unlawful non-citizen and was required to be kept in immigration detention.

54    Ms Khalil is an Australian public servant. She is employed in the Department. She was the applicant’s case manager at the CI IDC from about 17 January 2018 until 12 February 2018. She referred to her practice of checking departmental records to ascertain the status of a person in respect of whom she is to become case manager. She described what she discovered on examining the records of the Department. She said that by the time she became the applicant’s case manager, she had formed a reasonable suspicion that he was an unlawful non-citizen and was required to be kept in detention. She said that nothing came to her attention to cause her to reconsider the applicant’s status as an unlawful non-citizen up to 12 February 2018. She considered the applicant to be an unlawful non-citizen at all times that she was his case manager.

55    The above is a summary of the evidence of the seven witnesses who gave evidence on behalf of the respondent. Subject to one matter in relation to the evidence of Ms Green, which was in substance an issue as to how an aspect of her evidence should be interpreted, the evidence was not challenged by the applicant and I accept it. What the evidence establishes in terms of the engagement of s 189 of the Act is dealt with in the next section of these reasons.

The Respondent’s Reliance on Section 189 of the Act

56    It is common ground that the applicant was lawfully detained by Messrs Jamieson and Clifford on 9 June 2016 and by Mr Jones on 16 September 2016. The issue addressed in this section is whether Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil, or any one or more of them, detained the applicant under s 189 of the Act. A further issue is whether there is any other evidence (e.g., documentary evidence) of the applicant being detained under s 189 of the Act.

57    The elements of s 189 are as follows: (1) The section applies to an officer as defined in s 5. As I have said, it is not in dispute that all of the respondent’s witnesses were officers at the relevant times; (2) The element that an officer knows that the person is an unlawful non-citizen is unlikely to be satisfied where there is a challenge to the cancellation of the visa; (3) The alternative to this element, namely, that the officer reasonably suspects the person to be an unlawful non-citizen, involves a question of fact. The type of matters the Court will consider in deciding whether the suspicion of an officer was reasonable include the following: What inquiries were made before the detention? Was there a decision of the Minister to cancel the respondent’s visa that appeared on its face to be regular and effective? Did the person hold another visa? Did anything happen during the detainee’s detention that raised a question about his or her status? This is not an exhaustive list of potentially relevant matters. (4) The person in the migration zone (s 189(1)) or an excised offshore place (s 189(3)), must be detained by the officer. The definition of the verb “detain” involves two alternatives: take into immigration detention, or keep or cause to be kept, in immigration detention. The definition of “detain” directs attention to the definition of immigration detention which (relevantly) has two limbs: (a) being in the company of, and restrained by an officer or (b) being held by an officer in a detention centre or being held on behalf of an officer in a detention centre.

58    The applicant does not dispute that during their involvement with him, Ms Drucator, Mr Godfrey and Ms Khalil held a reasonable suspicion that the applicant was an unlawful non-citizen. They do dispute that circumstance as far as Ms Green is concerned. Ms Green deposed to a suspicion in the first period and a reasonable suspicion in the second period that the applicant was an unlawful non-citizen. Despite that, the applicant submits that there is other evidence from Ms Green which establishes that she misunderstood a key aspect of the matter such that she did not have a reasonable suspicion that the applicant was an unlawful non-citizen. Ms Green’s suspicion was based on a belief that the applicant did not have a visa that was in effect because the Minister had cancelled the applicant’s visa on two occasions, namely, on 3 June 2016 and on 16 September 2016. As I understand it, the applicant accepts that that would be a sufficient basis if it involved Ms Green concluding that, on the face of it, the Minister’s decision was regular and effective (i.e., legally effective). The applicant’s submission is not that Ms Green knew that the Minister’s decision was legally ineffective, but rather that she did not consider the issue or, at least, did not consider the issue properly. The applicant submits that I should conclude from Ms Green’s evidence that she believed that the mere fact that the Minister purported to cancel the applicant’s visa was effective to make the applicant an unlawful non-citizen. The applicant submits that that conclusion should be drawn by reason of two matters. First, Ms Green said in paragraph 14 of her affidavit that she had no doubt that from at least 24 June 2016 the applicant was an unlawful non-citizen. Secondly, Ms Green said in paragraph 15 of her affidavit (set out in [40] above) that as a result of the orders made by the Court on 16 September 2016, the applicant was a lawful non-citizen for a short period of time on that day. That, the applicant submits, was an erroneous understanding of the position because the orders made by the Court meant that the applicant was and always had been a lawful non-citizen. Another way of putting this argument is that Ms Green erroneously believed that the orders made by the Court only had an effect on the applicant’s status in the future and did not affect his status before the orders were made.

59    I do not accept either of the applicant’s arguments. As to the first argument, that should be rejected because I consider that, reading Ms Green’s affidavit as a whole, she is deposing at all times to a reasonable suspicion that the applicant was an unlawful non-citizen, rather than knowledge that the applicant was an unlawful non-citizen. As to the second argument, that must also be rejected because there is no reason to conclude that Ms Green did not think the Minister’s cancellation decisions were regular and effective and the important point, it seems to me, is that Ms Green considered the cancellation decisions to be regular and effective to cancel the applicant’s visa so that he no longer held a visa and was an unlawful non-citizen. In my opinion, in terms of holding a reasonable suspicion that the applicant was an unlawful non-citizen, Ms Green is in the same category as Ms Drucator, Mr Godfrey and Ms Khalil.

60    The facts as I have found them raise two issues in relation to s 189. The first issue then is whether Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil, all of whom had a reasonable suspicion that the applicant was an unlawful non-citizen during the periods they identified, detained the applicant. What is required to establish that the officer with the reasonable suspicion is the officer detaining the person? The second issue is whether s 189 operates in relation to those periods where there is no evidence that an officer reasonably suspected the applicant to be an unlawful non-citizen.

61    It is appropriate at this point to examine the respondent’s submissions in support of its case that s 189 was engaged throughout the whole of the period of the applicant’s detention. For the most part, those submissions are set out in paras 20 to 23 of the respondent’s written submissions dated 20 May 2019. The submissions are quite brief and it is fair to say, I think, that the respondent placed primary reliance on s 196(4) and (5)(b) of the Act in support of its case that the applicant’s detention was lawful.

62    The respondent’s first submission is that the word “officer” is widely defined in s 5 of the Act and the meaning of officer is not to be curtailed or limited by policy documents or administrative duty statements of various positions held in the Department, such as those statements identified by the applicant. This submission is put by the respondent in response to the applicant’s reliance on statements in a policy manual issued by the Department and, in particular, a section entitled “Immigration detention and the powers to detain” in Policy Advice Manual 3 (PAM 3). The relevant section is set out below in the section dealing with the submissions and arguments concerning nominal damages (at [164]). The applicant accepts that “officer” is widely defined in s 5 of the Act, but relies on statements in PAM 3 that, in order to exercise the power in s 189, departmental officers must be appropriately trained field compliance officers or airport officers. Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil are not said to be field compliance officers. The applicant’s argument is, as I understand it, not that the policy curtails the operation of the Act, but that it is suggestive that none of those persons were in fact detaining the applicant. On the face of it, there is force in that argument. On the other hand, there may be an argument that the statements in the policy manual are restricted to the initial act of detention. I have decided that Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil were not detaining the applicant by reference to other matters and, in the circumstances, it is unnecessary for me to resolve this issue.

63    The respondent’s second submission is that each of the deponents were “officers” within the meaning of the Act at the relevant times identified in their evidence and were authorised (and required) under the Act to detain the applicant once they formed a reasonable suspicion under s 189(1) or (3) following the First Cancellation Decision or the Second Cancellation Decision. Having formed the relevant reasonable suspicion, the detention of the applicant was authorised by s 189(1) of the Act. These propositions are correct and, in the case of Messrs Jamieson, Clifford and Jones, the officers had the required suspicion and they detained the applicant. Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil each held the required suspicion, but what the foregoing propositions do not address is whether they detained the applicant. Before leaving this submission, I will address a further submission by the respondent to the effect that I should find that persons who did not give evidence, but who are identified in the affidavits and the documentary records, were also “officers” within the Act. One example is given in the respondent’s written submissions and that is Ms Green’s reference to the fact that the applicant’s case was transferred to her by Mr Caruana, “another officer who I knew to be working with the Department on CI IDC in June 2016”. Ms Green goes on to say that Mr Caruana is no longer employed by the Department. It is not clear to me what I am asked to make of this evidence. I am prepared to accept that Mr Caruana was an officer who had control of the applicant’s case and that he transferred it to Ms Green. However, Mr Caruana has not given any evidence in the case and, in particular, he has not given evidence that he held a reasonable suspicion that the applicant was an unlawful non-citizen. It is perhaps also convenient to note in this context that the respondent made reference to an email from Mr Matthew Kane to other members of the Department on 16 September 2016 at 8.30 am (AWST) or 10 am (ACST). The contents of that email are set out below and discussed at some length (at [249]). The respondent said in the course of oral submissions that that email is relied upon. Mr Kane was not called to give evidence. It is not clear to me if it is relied upon in relation to the respondent’s s 189 and s 196(4) and (5)(b) arguments and, if so, how it is relied upon. As I have said below, the evidence would not support a finding that Mr Kane detained the applicant (at [250]).

64    The respondent’s third submission, or perhaps in further development of its second submission, is that “even if an officer who himself/herself is not actually causal in, or responsible for, a person’s detention, in the way that may be required by Fernando [Footnote 2], the fact that the officer has a reasonable suspicion that the applicant is an unlawful non-citizen is nonetheless relevant”. The relevance of the fact is said to be that, noting s 189 places on an officer an obligation to detain, the fact means that the applicant’s detention was inevitable and this circumstance is relevant to the respondent’s submission in relation to nominal damages.

65    The reference in this section of the respondent’s written submissions to Fernando is a reference to Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 (Fernando (No 1)). The footnote is in the following terms:

The Commonwealth accepts that a single judge is bound to follow Fernando, but does not concede its correctness and reserves the right to contend before another Full Court that it (wholly or in part) contains error and is plainly wrong. Nor does the Commonwealth concede that a reasonable suspicion under s 189 must (in a subjective sense) continue in the mind of the officer for that officer’s reasonable suspicion to continue to justify detention under s 189. That is particularly so where s 196 comes to determine the length of the detention.

66    I do not need to pause on the reference to s 196 of the Act. That section is addressed below in detail. Otherwise, the footnote contains two propositions which can be expressed separately, albeit they probably overlap. The first proposition identified in the footnote relates to whether it is sufficient for the purposes of s 189 that an officer, other than the detaining officer, has a reasonable suspicion or whether it is necessary that the detaining officer has the reasonable suspicion. As I understand the footnote, the respondent accepts that Fernando (No 1) held that the latter is the correct position and that I am bound by Fernando (No 1). As I will explain, I consider that the position taken by the respondent is correct. The second proposition is that under s 189, and leaving aside whatever effect s 196 might have, it is not necessary for an officer or officers to hold a reasonable suspicion throughout the period of a detainee’s detention. The respondent’s submission appears to be that the opposite of this proposition is not conceded. I reject this submission. As I will explain, for the purposes of s 189, an officer or officers must hold a reasonable suspicion throughout the detainee’s detention.

67    This then is a summary of the respondent’s written submissions with respect to s 189. The respondent did not put a great deal more in support of its s 189 case in oral submissions. The respondent made the point that where a person is already in immigration detention, then “one can keep the person in immigration detention by being satisfied that they’re an unlawful non-citizen and leaving them there, not taking any action to remove that situation”. As I will explain, this submission does not meet the point made by the applicant.

68    I return to the footnote and start with the second proposition I have identified. The issue was considered by Jagot J in Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 (Guo). After analysing at length the decisions in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (Ruddock v Taylor) and Fernando (No 1), her Honour concluded that those decisions supported the following propositions (at [83]):

(1)    for the taking of a person into immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers held a reasonable suspicion at that time that the person was an unlawful non-citizen;

(2)    for the keeping of a person in immigration detention to be lawful, the Commonwealth must prove that the detaining officer or officers during the person’s detention held a reasonable suspicion that the person was an unlawful non-citizen;

(3)    the lawfulness of detention, at all times, depends on the detaining officer or officers holding a reasonable suspicion that the person is an unlawful non-citizen;

(4)    as such, lawful detention may become unlawful if a detaining officer does not or no longer holds a reasonable suspicion that the person is an unlawful non-citizen;

(5)    similarly, unlawful detention may become lawful if the detaining officer forms a reasonable suspicion that the person is an unlawful non-citizen;

(6)    whenever detention is or becomes unlawful, the person is falsely imprisoned and the Commonwealth may be liable for that tortious conduct;

(7)    the Commonwealth bears the onus of proving the lawfulness of detention and thus must prove the existence of the relevant reasonable suspicion in the mind of the detaining officer or officers; and

(8)    the Commonwealth’s complaints about the impracticality and inconvenience of having to prove the existence and subsistence of the required state of mind on the part of the detaining officer or officers do not carry weight. For one thing, when it comes to the deprivation of individual liberty, the common law is a vigilant guardian, and complaints by the person depriving another of their liberty that they might be inconvenienced by having to prove the lawfulness of the detention garner little support. For another, proof sufficient to establish the lawfulness of immigration detention involves matters of fact and of inference from fact. The Commonwealth is free to assist itself in discharging the onus of proof by the implementation of whatever systems, processes and safeguards it sees fit and by the calling of such evidence in any particular case as it sees fit.

With respect, I agree that those propositions follow from Ruddock v Taylor and Fernando (No 1).

69    An immediate consequence of this conclusion is that, with respect to those periods of the applicant’s detention where there is no evidence of an officer holding a reasonable suspicion, the detention is not authorised by s 189.

70    Turning then to what I have identified as the first (and related) proposition put in the footnote, that is, that the reasonable suspicion must be held by the detaining officer and it is not sufficient in order to satisfy the requirements of s 189 that one officer detain and another hold the required reasonable suspicion. As the above propositions formulated by Jagot J in Guo indicate, that was also the view of her Honour. I agree with that view, subject to it being understood that a detaining officer includes an officer who is causing a person to be kept in immigration detention, and it is sufficient for me to refer to the definitions of “detain” and “immigration detention” in the Act and passages from the decision in Fernando (No 1).

71    As I have previously said, “detain” and “immigration detention” are defined in s 5 of the Act. The word “detain” appears in s 189, but the expression “immigration detention” does not. The expression does appear in the definition of detain and in s 196. It seems reasonably clear that paragraph (a) of the definition of detain, that is, taking into immigration detention, relates to the first limb of the definition of immigration detention being (relevantly) in the company of, and restrained by, an officer, and paragraph (b) of the definition of detain, that is, keeping or causing to be kept in immigration detention relates to the second limb of the definition of immigration detention, being (relevantly) held by or on behalf of an officer in a detention centre established under this Act. It follows that for Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil to have detained the applicant they must have kept or held him, or caused him to be kept in the sense that another person is detaining the applicant on his or her behalf in immigration detention.

72    In Graham v Minister for Immigration and Border Protection [2018] FCA 1012; (2018) 265 FCR 634 and, in the context of an argument that there was an implied duty in the Act on those in charge of places referred to in paragraph (b) of the definition of “immigration detention” to receive detainees on request, Tracey J said (at [90]):

The textual source of the pleaded implied duty is the definition of “immigration detention”. The second limb of the definition refers to places where an unlawful non-citizen may be detained. A duty cannot be imposed upon a “place”. The words in the definition of “immigration detention” are not apt to impose a duty upon a manger of a State prison because the words used assume that detention remains the responsibility of the relevant “officer”. It does not purport to impose a duty upon anyone else and, in particular, does not provide any basis to identify which persons associated with places in paragraph (b) of the definition of “immigration detention” are subject to the implied duty. Properly construed these provisions contemplate that the persons associated with the places of detention reach an arrangement or agreement with the detaining “officer” such that the non-citizen is detained thereafter “on behalf of” that officer in the relevant institution.

73    In Fernando (No 1), the Full Court said (at [69], [84], [97] and [100]):

69    Nonetheless, s 189(1) operated to require an officer to whom it applied to detain a person in both senses of “detain”, namely it required an officer with the requisite state of mind to take the person into immigration detention either by physically depriving the person of his or her liberty or transforming the nature of the custody or detention in which the person was held, such as serving a term of imprisonment, into immigration detention. Once the person had been detained, by being taken into detention within the meaning of the first sense of “detain”, ss 189(1) and 196(1) required the initial detaining officer and all other officers with the requisite state of mind, to keep the person, or cause him or her to be kept, in immigration detention.

84    The Commonwealth’s argument did not exhaust or exclude the application of s 189(1) to the persons who actually took Mr Fernando into immigration detention. The individual who physically takes a person into immigration detention must have at that time one of the two states of mind prescribed by s 189(1) so as to justify him or her in the act of depriving or interfering with the liberty of another: Ruddock at [40], [221]. It is not enough for the actual person effecting that deprivation or interference to think that someone else knows or believes the detainee is an unlawful non-citizen. As Lord Atkin explained in Liversidge v Anderson [1942] AC 206 at 245 (in his speech that was approved in George v Rockett (1990) 170 CLR 104 at 112, itself a case based on a claim of false imprisonment):

“… the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has.’ I am of opinion that they cannot.”

97    In those circumstances, the Court should not draw the serious conclusion that perhaps one of the people connected to ACM or the Department to whom Mr Fernando spoke on 6 October 2003, was an “officer” who also formed the state of mind that he or she knew or reasonably suspected that Mr Fernando was an unlawful non-citizen and he or she was then and there taking him into immigration detention. In any event, this was not a case that the Commonwealth pleaded, let alone proved, to justify its detention of Mr Fernando. Once Mr Fernando had been received into the detention centre, it is unlikely that any official would have turned his or her mind to effecting a fresh act that amounted to detaining him under s 189(1). That exercise was the responsibility of the persons who had detained him on 5 October 2003 at the prison and who processed him on arrival at the detention centre. There was no evidence that they had done so.

100    Here, there was no evidence that, at any time during his immigration custody, any officer, as defined, ever took Mr Fernando into detention or kept or caused him to be detained there with any state of mind required in s 189(1). The Commonwealth called no witnesses who were involved in the detention of Mr Fernando other than Ms Lockhart.

74    In light of the conclusions which I have reached to this point, the remaining issue is whether Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil detained the applicant at the times each of them was the applicant’s case manager and, in addition, in the case of Ms Green, for the period she was the Superintendent of the CI IDC.

75    The first point to note is that none of Ms Green, Ms Drucator, Mr Godfrey and Ms Khalil gave evidence that they detained the applicant. That is to be contrasted with the evidence of Messrs Jamieson, Clifford and Jones who each said that they detained the applicant at the time of their involvement with him. Furthermore, Ms Drucator, if she was detaining the applicant, did not explain how Mr Jones’ detention of the applicant on 16 September 2016 affected her detention of the applicant during her period as the applicant’s case manager.

76    The second point to note is that there are no documents put before the Court to show that the case managers were detaining the applicant, or that there was a transfer of his detention from one case manager to another, or that he was being detained on behalf of any of the case managers.

77    The third point to note is that there was no separate submission made by the respondent about the effect of Ms Green’s position as Superintendent of the CI IDC from about October 2017 to 12 February 2018. I have decided that the case managers did not detain the applicant. In the absence of a submission, I do not propose to treat Ms Green’s position as Superintendent any differently.

78    The final point to note is as follows. Of the broad tasks undertaken by a case manager, the only task which might suggest that the case managers detained the applicant is the second task. I have described that task above. However, I consider that that task falls short of what is required for it to be said that they were detaining the applicant. I am reluctant to formulate a test in the absence of detailed submissions. I can say that there must be an element of control over the applicant’s detention, either as the decision-maker in terms of whether the applicant’s detention continues or a direct involvement in the decision-making process. Escalating cases with other relevant areas of the Department does not meet either of those criteria.

79    The respondent also submits that I should infer that the requirements of s 189 were met throughout the applicant’s detention. It submits that his initial detention was lawful and nothing appears to have changed during his detention (Ruddock v Taylor at [51] per Gleeson CJ, Gummow, Hayne and Heydon JJ). There is some force in that submission insofar as the requirement of an ongoing reasonable suspicion is concerned. However, the respondent called evidence as to a reasonable suspicion during some periods within the relevant period, but provided no explanation for the absence of evidence in relation to other periods. More significantly, there is no evidence that the officers who held the reasonable suspicion (to the extent that is proved) were the persons who detained the applicant.

80    In conclusion, as far as s 189 is concerned, the initial detention of the applicant by Messrs Jamieson and Clifford on 9 June 2016 and by Mr Jones on 16 September 2016 was authorised by s 189 of the Act. The applicant’s detention thereafter, in the periods for which there is no evidence from the respondent of a detaining officer (or indeed any officer) holding a reasonable suspicion that the applicant was an unlawful non-citizen, was not authorised by s 189 because that section requires a detaining officer or officers to hold a reasonable suspicion at all times during a person’s detention. With respect to those periods in which one of Ms Green, Ms Drucator, Mr Godfrey or Ms Khalil was the applicant’s case manager, although each of them held a reasonable suspicion that the applicant was an unlawful non-citizen within s 189, none of them detained the applicant and the detaining officer is the officer who must have the reasonable suspicion referred to in s 189 of the Act.

The Respondent’s Reliance on Section 196 of the Act

The Proper Construction of s 196(4) and (5)(b)

81    The respondent submits that the applicant’s continued detention after his initial lawful detention on 9 June 2016 by Messrs Jamieson and Clifford under s 189 and again after his initial lawful detention on 16 September 2016 by Mr Jones under s 189 was authorised, and indeed required, by s 196(4) and (5)(b) of the Act. The respondent submits that if this is correct, then should I conclude (as I have) that there is no evidence of compliance with s 189 during the applicant’s continuing detention or any part thereof, nevertheless, that did not affect the lawfulness of the applicant’s continuing detention.

82    The applicant submits that s 196(4) and (5)(b) should not be construed in the manner advanced by the respondent and he advances a narrower construction of the subsections. Therefore, the first issue to be addressed is the correct construction of s 196(4) and (5)(b). The applicant submits in the alternative that if the correct construction of s 196(4) and (5)(b) is the construction advanced by the respondent, then those subsections are, to that extent, constitutionally invalid and it should be held that the subsections do not operate beyond the applicant’s narrow construction. The basis of the applicant’s constitutional challenge is that the operation of s 196(4) and (5)(b) in the manner advanced by the respondent would contravene the investment of the judicial power of the Commonwealth in Ch III Courts (Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 (Lim) at 10 per Mason CJ), or to use the words of Brennan, Deane and Dawson JJ in the same case (at 33), that operation “will contravene Ch III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates”.

83    I begin with the correct construction of s 196(4) and (5)(b). The construction of the statutory provisions “will give effect to the ordinary meaning of [the] text in the wider statutory context and with reference to the purpose of its [provisions]” (North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 (North Australian Aboriginal Justice Agency v Northern Territory) at [11] per French CJ, Kiefel J (as her Honour then was) and Bell J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ).

84    The applicant submits that the construction of s 196(4) and (5)(b) which he advances, although involving a gloss on the statutory provisions, is less of a gloss than that involved in the construction advanced by the respondent. His construction involves reading s 196(4) as if the words “if the person is detained as a result of the cancellation of his or her visa” read “if the person is on an ongoing continuous basis detained lawfully under s 189 as a result of the cancellation of his or her visa”, whereas the respondent’s construction involves reading the said words as if they read “if the person was detained and the detention was initially lawful under s 189”. These alternative formulations highlight the point of difference between the parties. On the applicant’s proposed construction, s 196(4) is not a separate source of a power (and obligation) to detain and the requirements of s 189 must be met at all times during a person’s detention. On the respondent’s proposed construction, the requirements of s 189 need only be met at the time of the initial detention of the person.

85    In my opinion, the parties are correct to proceed on the basis that s 196(4) and (5)(b) are predicated on at least an initial lawful detention under s 189. There are two indicators of this. First, s 196(1) identifies the subject matter of the whole section and it provides for the keeping of a person in immigration detention after he or she has been detained under s 189. Secondly, and perhaps no more than a confirmation of the first point, the reference to “the” person in s 196(4) indicates that the subsection is dealing with a subclass (i.e., persons detained under s 189 as a result of the cancellation of his or her visa under ss 501, 501A, 501B, 501BA or 501F) of the class otherwise dealt with by the section (i.e., unlawful non-citizens detained under s 189).

86    In my opinion, s 196(4) is capable of being read as requiring only an initial lawful detention under s 189, or as requiring an ongoing lawful detention under s 189.

87    Part of the constructional exercise where two constructions are open involves a consideration of the operation of the statutory provisions on each of the constructions advanced.

88    Although the respondent’s proposed construction would overcome difficulties for a detaining party in cases where it encountered difficulties of proof or where the reasonable suspicion required by s 189 was held by officers, but not by those officers detaining the persons, logically it would also cover cases in which no officer held the reasonable suspicion required by s 189 and furthermore, cases where officers or members of the Department knew or believed that the person detained was not an unlawful non-citizen. I am not suggesting that the latter circumstances are established in this case, but that is not the point. The point is the latter circumstances would fall within the operation of the subsections on the construction advanced by the respondent. In the latter circumstances, the person detained could not be released without the final determination of a court, possibly on the application of the respondent, that the person’s detention is unlawful or that he or she is not an unlawful non-citizen. In my respectful opinion, it seems unlikely Parliament would intend the system of the detention of unlawful non-citizens or those reasonably suspected of meeting that description to operate in a way that would have that consequence. There is a further point about the operation of the subsection on the respondent’s interpretation. The two events, either of which will bring the detention to an end, are a final determination by a court that the detention is unlawful or a final determination by a court that the person detained is not an unlawful non-citizen. The applicant submits that the first event will never occur on the respondent’s construction because, as a result of that construction, the person’s detention will never be unlawful and this would mean that the only effective terminating event is the second one (i.e., a final determination that the person detained is not an unlawful non-citizen). This appears to be correct and means that, unlike the applicant’s construction, the respondent’s construction results in a phrase being “superfluous, void, or insignificant”, to use the words of Griffith CJ in The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 (referring to R v Berchet (1690) 1 Show KB 106); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ. This is a reason to support the applicant’s construction of s 196(4).

89    The applicant submits that the principle of legality supports the construction he advances. The steps in his argument are as follows. First, he points out, correctly, that the right of personal liberty is the most elementary and important of all common law rights (Trobridge v Hardy at 152 per Fullagar J; Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 292 per Mason and Brennan JJ). Secondly, the principle of legality means that in the construction of a statute it will be assumed that Parliament did not intend to abrogate or curtail certain human rights or freedoms unless the intention to do so is clearly manifested by unambiguous language. There are many statements of this approach in the authorities. A well-known statement is that made in the joint reasons of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 (at 437):

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

(See also North Australian Aboriginal Justice Agency v Northern Territory at [11] per French CJ, Kiefel and Bell JJ; Electrolux Home Products Pty Ltd v The Australian Workers’ Union [2004] HCA 40; (2005) 221 CLR 309 at [19]–[22] per Gleeson CJ; Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1 at [42]–[43] per French CJ.)

90    A statement of the approach made in the particular context of administrative detention by the Executive is that of Gleeson CJ in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb v Godwin) (at [19]–[20]):

Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O’Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness” .

A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.

(Citation omitted; see also Mason CJ in Lim at 12.)

91    The assumption or principle of construction should not be pushed beyond its proper limits. Those limits were identified by Gageler and Keane JJ in Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 (Lee) (at [313]):

Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

92    Their Honours also made certain observations which are relevant to the third step in the applicant’s argument. That third step is that the assumption or principle may apply where the extent of the encroachment on personal liberty is the issue raised by the issue of construction and is not restricted to a case where the question is whether any encroachment was intended by Parliament. In Lee, Gageler and Keane JJ said (at [314]):

The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.

93    The applicant advanced this third step because he recognised that s 196(4) and (5)(b) considered in the context of s 189, and s 196 as a whole, undoubtedly involve an abrogation or curtailment of a personal liberty and the issue is one of the extent of the abrogation or curtailment. Even if attention is confined to s 196(4) and (5)(b), that remains the issue because even on the construction advanced by the applicant (as explained below), there is some loss of personal liberty because a court could no longer order the interlocutory release of a person in detention.

94    It seems to me that whether the assumption or principle of legality will be relevant where the constructional choice involves the extent of the abrogation or curtailment (and not whether the legislation affects an abrogation or curtailment) will depend on the circumstances of the case. If the extent of the abrogation or curtailment is significantly different, or the nature of the abrogation or curtailment is significantly different as between the competing constructions, then the principle of legality may operate. In other cases it may, in all the circumstances, be of little significance. I put some weight on the principle of legality in this case, but ultimately it seems to me that there are more important matters supporting the construction of s 196(4) and (5)(b) advanced by the applicant.

95    As I have said, the applicant puts an alternative argument that if the statutory provisions are construed in the manner advanced by the respondent, then they are constitutionally invalid to the extent they have an operation beyond the applicant’s construction. I deal with the constitutional argument below and I accept the applicant’s submission that the respondent’s construction involves constitutional invalidity. This is a reason to favour the applicant’s construction of the statutory provisions. In Lim, Mason CJ said the following about what his Honour described as the presumption of validity (at 14):

The interpretation which I would give to s. 54R is supported by the presumption in favour of validity. To repeat the words of Isaacs J. in Federal Commissioner of Taxation v. Munro; British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation:

“There is always an initial presumption that Parliament did not intend to pass beyond constitutional bounds. If the language of a statute is not so intractable as to be incapable of being consistent with this presumption, the presumption should prevail.”

Dixon J. wrote to the same effect in Attorney-General (Viet.) v. The Commonwealth (“the Pharmaceutical Benefits Case”) when he said:

“In discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour. We should give to the powers conferred upon the Parliament as ample an application as the expressed intention and the recognised implications of the Constitution will allow. We should interpret the enactment, so far as its language permits, so as to bring it within the application of those powers and we should not, unless the intention is clear, read it as exceeding them.”

That approach accords with s. 15A of the Acts Interpretation Act 1901 (Cth).

(Citations omitted; see also Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, Australia, 2019) at [5.11].)

96    Again, this presumption or principle is not to be pushed or extended beyond its proper limits (International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 at [41]–[42] per French CJ; North Australian Aboriginal Justice Agency v Northern Territory at [79] per Gageler J.) In the former of those two cases, French CJ said (at [41]–[42]):

The process of statutory construction, including the identification of constructional choices, is informed by text, context and legislative purpose and, when applicable, the conservative principle that, absent clear words, Parliament does not intend to encroach upon fundamental common law principles, including the requirement that courts accord procedural fairness to those who are to be affected by their orders. Further, where there is a constructional choice that would place the statute within the limits of constitutional power and another that would place it outside those limits, the former is to be preferred.

There is a caveat which should be entered in relation to these principles. The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning. In the context of the present case, that risk is enhanced where the provision, on the face of it, appears to require the Supreme Court to hear only from the moving party where that party chooses to make an ex parte application.

(Footnotes omitted.)

97    I consider that the principle does operate in this case because, to use the words of French CJ, I do not think that the construction advanced by the applicant is “artificial or departs markedly from their ordinary meaning”, or that the applicant’s construction involves any more of a “judicial gloss” than that advanced by the respondent.

98    Both parties referred to the extrinsic material in relation to the amendment in 2003 which introduced subss (4)–(7) inclusive into s 196 (in its present form, subject to some amendments after 2003 which are not material in terms of the present issues). That amendment was the Migration Amendment (Duration of Detention) Act 2003 (Cth) (No 90, 2003) (the 2003 Amendment).

99    In order to put the extrinsic material relating to the 2003 Amendment in context, it is necessary to identify a particular issue which had arisen prior to 2003 and the way in which the authorities dealt with that issue.

100    In broad terms, the issue was whether provisions of the Act (prior to the 2003 Amendment) dealing with a person’s detention negated this Court’s power to order the interlocutory release of the person under a general power in the Court such as s 23 of the Federal Court of Australia Act 1976 (Cth) (power to make orders of such kinds, including interlocutory orders, “as the Court thinks appropriate”).

101    A Full Court of this Court affirmed this Court’s power to make an interlocutory order for the release of a person held in detention pending a final determination of an application to review a decision to deport that person in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169. The Court decided that provisions of the Federal Court of Australia Act, including s 23, and a provision of the Administrative Decisions (Judicial Review) Act 1977 (Cth) empowered the Court to order the interlocutory release of a person detained pending the final determination of a person’s challenge to the decision which led to his or her detention.

102    Chief Justice Mason and Justice Toohey addressed the issue in Lim. The particular issue in that case was whether s 54R of the Act negated a Court’s power to order the interlocutory release of an applicant in detention. The then s 54R provided that a court was not to order the release from custody of a designated person. Mason CJ and Toohey J held that that section did not have the effect of negating a Court’s power to order the interlocutory release of a person in detention.

103    Chief Justice Mason said (at 13–14):

Read as I would read it, s. 54R does not preclude a court from making an interlocutory order for the release of a designated person who makes out a suitably strong prima facie case that he or she is not being held in lawful custody pursuant to Div. 4B. The section operates only when the designated person is lawfully held in custody pursuant to that Division. The Federal Court has, on numerous occasions, affirmed that it has power to make an interlocutory order for the release of a person held in custody pending a final determination by way of review of a decision to deport that person. With that in mind, it is conceivable that Parliament may have intended, by the enactment of s. 54R, to deny jurisdiction to the courts to make an interlocutory order for the release of a designated person so that the courts' jurisdiction to order the release of such a person was confined to the making of an order pronounced after a final determination that the person’s detention was unlawful. Whether Parliament could validly legislate to that effect is not a question which needs to be explored here because s. 54R is not expressed in a form apt to achieve that result.

(Citations omitted; note the words I have emphasised; see Toohey J at 51.)

104    The issue came before the Full Court of this Court in 2002 (the year before the amendment) in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCFAC 390; (2002) 125 FCR 249 (VFAD of 2002). The issue in that case was whether s 196(3) of the Act negated this Court’s power under s 23 of the Federal Court of Australia Act to order the interlocutory release of an applicant in detention. At the time, s 196(3) was (subject to some matters not material for present purposes) in similar terms to the subsection as it is relevant to this proceeding. The Court held that it did not negate the Court’s power.

105    The Court referred to the primary judge’s reasoning in that case and in that context said (at [47]–[48]):

The primary judge then turned to the question whether s 196(3) should be construed as either expressly or impliedly denying the power under s 23. His Honour noted a line of authority in this Court which holds that the general power conferred by the section can be exercised to order the release, on an interlocutory basis, of persons in immigration detention. The authorities include the decision of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169, a case to which we shall return. He also observed that the general power conferred by s 23 had been invoked even after the enactment of s 196(3) in 1994.

The primary judge also referred to passages in the judgments of Mason CJ and Toohey J in Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 13 and 51 respectively in which their Honours accepted that s 54R of the Migration Act, as it then stood, which provided for mandatory detention of “designated persons” and that a court could not order their release, did not deny the Court’s interlocutory power to do so.

106    The Court rejected the submission that s 196(3) expressly or impliedly denied or abrogated the power in s 23 and in that context said (at [104] and [113]):

104    The Minister’s submission that s 196(3) expressly abrogated the s 23 power in relation to persons kept in immigration detention must be rejected. Section 196(3) is silent as to the power of this Court to grant interlocutory relief in circumstances where a person in detention claims not to be an unlawful non-citizen. Moreover, s 196(2) makes it clear that persons who are lawful non-citizens are not caught by s 196, and are not to be detained.

113    We are unable to accept the Minister’s submission that s 196(3), upon its proper construction, impliedly denies the s 23 power to this Court. In our opinion, Parliament has not made “unmistakably clear” its intention to abrogate the power of this Court to protect a “fundamental freedom” by ordering the release, in appropriate circumstances, on an interlocutory basis, of persons in detention who have seriously arguable claims to be lawful non-citizens and thus to have their liberty.

107    The Court reiterated in its conclusion the need for very clear language before it would conclude that the Court had been deprived of the general power to grant interlocutory relief which is conferred by s 23 of the Federal Court of Australia Act. The Court said (at [159]):

There is nothing in the language of s 196(3) which, expressly or impliedly, prevents this Court from ordering the release, on an interlocutory basis, of a person who establishes that there is a serious question to be tried regarding the lawfulness of that person’s detention. Regrettably, though perhaps inevitably, the task of finally resolving that question may involve a lengthy process. The right to be free from arbitrary and unlawful detention is as fundamental a freedom as our system of values recognises. It is of such paramount importance that it would be remarkable if this Court, in which is vested the judicial power of the Commonwealth, could not, in an appropriate case, order the release of a person from detention, at least on an interlocutory basis. It would require language of much greater clarity than any contained in s 196(3) to deprive the Court of the general power to grant interlocutory relief which is conferred by s 23.

108    I have referred to this matter at some length because the applicant submits that the “mischief” which the 2003 Amendment was designed to remedy was the Court ordering the interlocutory release of a detainee. In other words, the amendment was designed to make it clear that an applicant in detention who was challenging a decision was not to be released on satisfying the requirements for an interlocutory injunction pending the final determination of the challenge by the Court.

109    I turn now to the extrinsic material. I start by identifying the Bills and Act which are potentially relevant. They are as follows:

(1)    In Migration Amendment (Duration of Detention) Bill 2003 (Cth), cl 196(4) applied to all detainees, not just those who had had their visa cancelled under s 501.

(2)    The Bill was subsequently amended so that cl 196(4) applied only to detainees detained as a result of the cancellation of his or her visa under s 501 (the reference to ss 501A, 501B, 501BA or 501F in the section as it presently stands was added by the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) (No 10, 2017)). A new subsection, cl 194(4A), dealing with persons detained pending their deportation under s 200 was added.

(3)    The Amendment Act as passed.

(4)    A Bill in 2004 (Migration Amendment (Duration of Detention) Bill 2004) purported to reintroduce a subsection 196(4) in the form in which it was in the original 2003 Bill (i.e., the subsection applied to all detainees). This Bill was not enacted and there is a question as to whether I can have any regard to it or any of the extrinsic material related to it.

110    Both parties referred to passages in the Minister’s Second Reading Speech and the Explanatory Memorandum in relation to the 2003 Bill as it was originally proposed. The applicant also relied on the Supplementary Explanatory Memorandum in relation to the 2003 Bill as it was following amendment.

111    The passages in the Second Reading Speech which were relied upon by one or other of the parties were as follows:

The intention of section 196 was to make it clear that there was to be no discretion for any person or court to release from detention an unlawful non-citizen who is lawfully being held in immigration detention.

Mandatory detention remains an integral part of the government’s unauthorised arrivals policy. The government needs to ensure, as a matter of public policy, that all unlawful non-citizens are detained until their status is clarified. This means that they must continue to be detained until one of three things happens: either that they are removed or deported from Australia or that they are granted a visa. It is not acceptable that any person who is, or who is suspected of being, an unlawful non-citizen is allowed out into the community until the question of their status is resolved.

Since the latter part of 2002, the Federal Court has decided that the Migration Act does not preclude the court from making interlocutory orders that persons be released from immigration detention pending the court’s final determination of the person’s judicial review application.

Such orders mean that a person must be released into the community until such time as the court finally determines their application. The court’s final determination of the case can take anywhere between several weeks and several months. Where the person is subsequently unsuccessful, that person must be relocated, redetained and arrangements then made for their removal from Australia. This is a time consuming and costly process and can further delay removal from Australia.

I understand that there have now been some 20 persons released from immigration detention on the basis of interlocutory orders. In the case of more than half of these persons removal action had been commenced, as they are of significant character concern, and the government believes their presence is a serious risk to the Australian community.

In its judgements, the Federal Court has indicated that if the parliament wishes to prevent a court from ordering the interlocutory release of a person from immigration detention it must make its intentions unmistakably clear. This bill is intended to achieve this.

The bill amends the Migration Act to make it clear that, unless an unlawful non-citizen is removed from Australia, deported or granted a visa, the non-citizen must be kept in immigration detention. This applies unless a court finally determines that:

•    the detention is unlawful; or

•    the person is not an unlawful non-citizen.

The bill ensures that an unlawful non-citizen must be kept in immigration detention pending determination of any substantive proceedings, whether or not:

•    there is a real likelihood of the person detained being removed from Australia or deported in the reasonably foreseeable future; or

•    a decision to refuse to grant, to cancel or refuse to reinstate a visa may be determined to be unlawful by a court.

…

I stress that the amendments contained in the bill do not affect the court’s powers to finally determine the lawfulness of a person’s detention, or to finally determine the lawfulness of the decision or action being challenged.

They are intended simply to clarify the existing provisions of the act. They do no more than what the courts have said that the parliament needs to do. That is, make its intention in relation to immigration detention unmistakably clear.

112    The passages in the Explanatory Memorandum relied on by one or other of the parties were as follows:

5.    The Bill seeks to prevent the release of a detainee from immigration detention pending a court’s determination of the substantive matter as to the lawfulness of the person’s detention or whether the person is an unlawful non-citizen.

…

11.    New subsection 196(4) puts it beyond doubt that, unless an unlawful non-citizen is removed, deported or granted a visa, he or she must be kept in immigration detention except where a court makes final orders that:

•    the detention is unlawful (paragraph (a)); or

•    the person detained is not an unlawful non-citizen (paragraph (b)).

1.    New paragraph [196(5)(a)] would cover circumstances where a court finally determines that there is no real likelihood that an unlawful non-citizen will be removed from Australia in the reasonably foreseeable future, and therefore the detention is unlawful.

2.    New paragraph [196(5)(a)] applies to circumstances where a court finally determines that a person in immigration detention is not an unlawful non-citizen.

3.    The purpose of new subsection 196(4) is to make it clear that a person cannot be released from immigration detention pending determination of any substantive proceedings relating to either the lawfulness of the person’s detention or whether the person is an unlawful non-citizen.

4.    New subsection 196(4) is subject to existing paragraphs 196(1)(a), (b) and (c) of the Act. That is, new subsection 196(4) does not prevent a person being released from immigration detention if the non-citizen is granted a visa, or is removed from Australia or deported.

5.    New subsection 196(4) does not prevent a person being released from immigration detention if the person is a lawful non-citizen.

113    The applicant relied on the following passages in the Supplementary Explanatory Memorandum:

OUTLINE

5.    Despite the current provisions relating to immigration detention, there has been a series of cases in which the Federal Court has ordered the interlocutory release of immigration detainees, prior to the resolution of their substantive court proceedings. In many of these instances, the person had been detained because they had had their visa cancelled on character grounds. Specifically, the records of such persons indicate a history of prior criminal convictions sufficiently serious to cause them to be considered as persons of character concern. The Government’s major concern is that the release of persons of character concern does not occur, where that release may place members of the Australian community at risk.

…

NOTES ON AMENDMENTS

2.    The new proposed subsection (4) puts it beyond doubt that if a person is detained under section 196 of the Act as a result of the cancellation of his or her visa under section 501 of the Act, their detention must continue until the final determination of any substantive proceedings relating to either the lawfulness of the person’s detention or whether the person is an unlawful non-citizen.

114    In my opinion, the extrinsic material in relation to the 2003 Amendment introducing s 196(4) and (5)(b) into s 196 of the Act supports the construction advanced by the applicant. The “mischief” identified is of a court releasing a detainee on an interlocutory basis and before a final determination by the Court. There is nothing to suggest a “mischief” of the release of a person before a final determination by a court in circumstances where an officer once held a reasonable suspicion that the person was an unlawful non-citizen, but that officer (or indeed any other officer) no longer holds a belief that the person is an unlawful non-citizen.

115    I have considered the extrinsic material in relation to the 2004 Bill, but I do not need to discuss that material because I do not consider that can be used to throw light on the amendments to s 196 in 2003.

116    The applicant submits that the decision in Guo supports the construction of s 196(4) and (5)(b) which he advances.

117    In that case, Mr Guo was detained for a substantial period of time and he brought a proceeding against the Commonwealth claiming damages for false imprisonment. He succeeded in establishing that his detention was unlawful and he was awarded nominal damages and exemplary damages. Of present relevance is the consideration by Jagot J of a submission by the Commonwealth that Mr Guo’s continuing detention was authorised and required by s 196(1) of the Act, irrespective of whether there was, on an ongoing basis, an officer detaining Mr Guo who had a reasonable suspicion that he was an unlawful non-citizen within s 189. Her Honour rejected the Commonwealth’s submission.

118    Section 196(4) was not in issue in the case because Mr Guo was the subject of visa refusal, not a visa cancellation.

119    Mr Guo also put an argument about the interrelationship between s 189 and s 196 of the Act which Jagot J rejected. As I understand it, Mr Guo’s submission was that if s 196 was a source of a power to detain, it was nevertheless restricted to persons who were in fact unlawful non-citizens which Mr Guo was held not to be (at [2]).

120    Her Honour reviewed the authorities at length, including Ruddock v Taylor. In the result, that case was a key case in terms of her Honour’s rejection of each party’s submission concerning the interrelationship between s 189 and s 196(1). Her Honour said (at [69]–[70]):

To my mind Ruddock v Taylor does not suggest that a person is detained under s 189(1) and then kept in detention under s 196(1). Rather, the reasons indicate that a person is detained and kept in detention under s 189(1) with the period of detention being fixed by s 196(1) (see at [11]). If it were otherwise then the observations at [51] would be redundant (because s 196(1) does not depend on the existence of a state of mind) and the observations at [11] would be inaccurate (because s 196 would not merely fix the period of detention but would empower the continuing detention).

For these reasons I do not accept the approach of either party to Ruddock v Taylor. It does not support the Commonwealth’s principal contention that a person reasonably suspected of being an unlawful non-citizen may continue to be detained under s 196(1) whether or not any officer continues to hold that reasonable suspicion. It supports the contrary proposition that the continuation of a reasonable suspicion is necessary to enable continued detention. It also does not support the submission for Mr Guo that a person must in fact be an unlawful non-citizen in order for continued detention under s 196(1) to be lawful. Again, it supports the contrary proposition that continued detention may be lawful under s 189(1) provided an officer continues to hold the requisite reasonable suspicion. It also supports another proposition, which concerns an issue of fact or, more properly, inference: namely, that if an officer held a reasonable suspicion at the time a person was detained, that reasonable suspicion may continue to exist. Facts and inferences from fact, however, depend on the individual circumstances of each case.

121    I have previously set out her Honour’s summary of the principles which are relevant to the lawfulness of a person’s detention (at [68] above).

122    The respondent does not seek in this case to repeat the submission based on s 196(1) which it advanced in Guo. The respondent’s submission is based on s 196(4) and (5)(b) and it submits that Guo is of little, if any, assistance in terms of those subsections. For his part, the applicant does not seek to repeat the argument advanced by Mr Guo that s 196 is limited to persons who are in fact unlawful non-citizens. He accepts that s 196 can apply to a person who, in fact, turns out not to be an unlawful non-citizen as long as there is throughout the detention compliance with s 189. However, he does submit that I should adopt a similar approach to s 196(4) and (5)(b) as the approach adopted by Jagot J in Guo to s 196(1). He also submits that it would be “odd and unlikely” that Parliament would have intended s 196(1) to have a “radically different operation” from s 196(4) as they both appear as a single section under the heading, “Duration of Detention”.

123    Neither the decision in Guo nor the decision in Ruddock v Taylor directly bear on the proper construction of s 196(4) and (5)(b) or their relationship with s 189. Guo was concerned with s 196(1), and the version of s 196 in issue in Ruddock v Taylor did not include subss (4)–(7) inclusive (see at [71] per Gleeson CJ, Gummow, Hayne and Heydon JJ). As to the submission that would be odd if s 196(4) and (5)(b) conferred an independent authority to detain when no other subsection in s 196 does that, there is some force in the submission, although what Parliament considered was the scope of s 196(1)–(3) immediately prior to the 2003 Amendment is, in this respect, a matter of conjecture.

124    In my opinion, the nature of the results produced by s 196(4) and (5)(b), if construed in the manner advanced by the respondent, as outlined above (at [88]), the principle of legality, the constitutional invalidity which results from the construction advanced by the respondent and the mischief identified in the extrinsic material, all support the conclusion that implicit in s 196(4) is the element of an ongoing satisfaction of the requirements of s 189 and not merely satisfaction of the requirements of s 189 at the initial detention stage. I say implicit because, to reiterate a point I made earlier, each construction advanced involves reading words into s 196(4). The subsection refers to the person being detained as a result of the cancellation of his or her visa under certain sections in the Act. Persons are not detained, at least directly, because a visa is cancelled. They are detained because an officer acts under s 189 (Ruddock v Taylor at [25] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 (Falzon) at [56] per Kiefel CJ, Bell, Keane and Edelman JJ). Some engagement of s 189 is implicit in s 196(4). In the result, I am of the opinion that the construction of s 196(4) and (5)(b) advanced by the applicant is the correct one.

The Constitutional Issue

125    In this section, I explain the reasons I consider the construction of s 196(4) and (5)(b) advanced by the respondent would result in constitutional invalidity.

126    The starting point is the joint reasons of Brennan, Deane and Dawson JJ (with whom Mason CJ relevantly agreed) in Lim.

127    Chapter III of the Constitution gives effect to the separation of judicial power from executive and legislative powers so far as the vesting of judicial power is concerned. The powers in s 51 of the Constitution are subject to the provisions of the Constitution and it is well-established that the grants of legislative power do not permit the grant to the Executive of any part of the judicial power of the Commonwealth. A power which by its nature or because of historical considerations or both is established as essentially and exclusively judicial in character is the adjudgment and punishment of criminal guilt. It is not possible to exclude that function from the judicial power of the Commonwealth and Ch III of the Constitution precludes laws being made pursuant to one of the powers in s 51 which purport to vest any part of that function in the Commonwealth Executive. In deciding whether that is what the law purports to do, the Court will address the substance of the law and not merely its form. There are exceptions to this structure which involve detention which is not seen as punitive in character, for example, involuntary detention in the case of mental illness or infectious disease, but it is not necessary to address these exceptions in this case.

128    In Lim, their Honours said that prior cases had made it clear that Parliament’s power to make laws with respect to aliens includes the power to make laws providing for the expulsion or deportation of aliens by the Executive and further extends to authorising the Executive to restrain an alien in custody to the extent necessary to make the deportation effective.

129    In terms of the test to be applied in order to determine whether a law meets, or fails to meet, the Constitutional requirement, their Honours said (at 33):

In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch. III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.

130    In Al-Kateb v Godwin, the High Court by a majority decided that ss 189, 196 (in substantially the form it was prior to the 2003 Amendment) and 198 did not contravene Ch III of the Constitution, even if the removal of the non-citizen from Australia was not reasonably practicable in the foreseeable future. The purpose of the detention remained non-punitive (McHugh J at [46]; Hayne J (with whom Heydon J agreed at [303]) at [231], [263], [267] and [268]).

131    In Re Woolley; Ex parte Applicants M276/2003 [2003] HCA 49; (2004) 225 CLR 1 (Re Woolley), the High Court rejected an argument that the detention specified in ss 189 and 196 (in substantially the form it was prior to the 2003 Amendment) insofar as it applied to children contravened Ch III of the Constitution because it was punitive and involved an exercise of the judicial power (at [29]–[30] per Gleeson CJ; at [105]–[107] per McHugh J; at [164]–[167] per Gummow J; at [180]–[190] per Kirby J; at [227]–[228] per Hayne J (with whom Heydon J agreed at [270]); at [260]–[265] per Callinan J).

132    In Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 (Plaintiff S4/2014) at [25]–[29], the High Court made the point that detention under and for the purposes of the Act is limited by the purpose for which the detention is being effected and therefore in considering whether the detention is justified, it will always be necessary to identify the purpose of the detention. There are three permissible purposes of detention under the Act and they are: (1) removal from Australia; (2) receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia; and (3) determining whether to permit a valid application for a visa. The Court also said that the purposes must be pursued and carried into effect as soon as reasonably practicable and that the duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time (see also North Australian Aboriginal Justice Agency v NT at [75]–[78] per Gageler J; Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at [28]).

133    In Falzon, the plaintiff put a proposition (among others) that the “default position” is that the non-judicial detention of a person is penal or punitive and therefore involves an exercise of the judicial power of the Commonwealth (at [23]). The High Court accepted that detention of a person by the Executive without more is likely to permit an inference to be drawn that, for some reason, the legislature wishes to punish the person detained. In those circumstances, the legislature must provide a reason for the detention indicating a non-punitive reason if the detention is to be justified (at [24]). However, there was no constitutionally guaranteed freedom from executive detention which could only be restricted by legislation which is proportionate. The High Court said that the Lim formulation and its reference to “reasonably capable of being seen as being necessary …” did not involve an aspect of proportionality testing. The Court said that questions of proportionality cannot arise under Ch III. That is because whether a legislative power of detention in the Ch III sense involves an inquiry as to the true purpose of the law authorising detention and is not an inquiry as to whether that law is necessary to the achievement of a relevant legislative purpose (at [26]–[32] per Kiefel CJ, Bell, Keane and Edelman JJ). I will need to return to Falzon in a little more detail because of the respondent’s reliance on it.

134    In essence, the applicant’s submission is that, absent an ongoing reasonable suspicion by a detaining officer under s 189 that the detainee is an unlawful non-citizen, the ongoing detention of the person is not for any one of the three permissible purposes of detention. It is not for the purpose of removal of the person from Australia or for the purpose of receiving, investigating and determining an application for a visa or, as the respondent argued, for the sufficiently analogous purpose of detaining a person pending the final determination by a court of a person’s visa status following the cancellation of a visa under s 501(3), because nobody on the detaining party’s side (i.e., an officer) believed (or perhaps more accurately in many cases, it has not been shown by the respondent that they believed) that the applicant was an unlawful non-citizen. Furthermore, as the applicant put it, whilst the Act permits, and indeed requires, the removal of unlawful non-citizens in certain circumstances, it does not permit (or require) the involuntary removal of lawful non-citizens.

135    In response, the respondent first submits that insofar as the applicant suggests that his status in fact as a lawful non-citizen meant that his detention was at all times unlawful, that contention fails to recognise the following: (1) the difference between the lawfulness of the cancellation decisions and the lawfulness of his detention (Ruddock v Taylor at [24]–[29] per Gleeson CJ, Gummow, Hayne and Heydon JJ); (2) the clear effect of s 196(5)(b) which provides that s 196(4) (and (4A)) applies whether or not a visa decision relating to the person detained is, or may be, unlawful; and (3) a line of cases which make it clear that a decision involving jurisdictional error remains a decision in fact and may yet have some status in law (Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [46]; Jadwan Pty Ltd v Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1 at [42] per Gray and Downes JJ; at [64] per Kenny J).

136    The difficulty with this submission by the respondent is that it does not reflect the applicant’s submission. The applicant accepts that his detention may be lawful even where the Minister’s cancellation decisions are subsequently quashed, but only where the requirements of s 189 are met on an ongoing basis and throughout the applicant’s detention.

137    The respondent next submits the following with respect to the constitutional validity of s 196(4) and (5)(b) of the Act.

138    First, the respondent submits that s 196(4) and (5)(b) are undoubtedly laws with respect to aliens, as that term is used in s 51(xix) of the Constitution. They relate to persons who have had their visas cancelled under s 501 and related sections of the Act and they are unlawful non-citizens. The applicant accepts this proposition on the basis that he accepts that persons whose visas are cancelled includes persons whose visas are purportedly cancelled.

139    Secondly, the respondent submits that the power in s 51(xix) of the Constitution is wide and, like other heads of legislative power, is to be construed “with all the generality which the words used admit” (R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207 at 225; Singh v The Commonwealth [2002] HCA 43; (2004) 222 CLR 322 at [155] per Gummow, Hayne and Heydon JJ).

140    Thirdly, the respondent submits that the constitutional question in this case is “whether ss 196(4) and (5)(b) can validly authorise the detention of an alien whose visa has purportedly been cancelled, for the period of time during which there is a question or dispute as to the validity of the cancellation decision and until that question or dispute is finally determined by a court”.

141    Fourthly, as I have already indicated, the respondent submits that in the same way as authority to detain an alien in custody when conferred in the context and for the purpose of the executive powers to receive, investigate and determine an application by that alien for permission to enter and remain in Australia constitutes an incident of those executive powers (Plaintiff S4/2014 at [25] per French CJ, Hayne, Crennan, Kiefel and Keane JJ) so too does authority to detain pending the final determination by a court of a person’s visa status following the cancellation of a visa under s 501(3). The respondent submits that that is made clear by the words in s 196(4) “unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful citizen” and the fact that that is the case “whether or not a visa decision related to the person detained is, or may be, unlawful” (s 196(5)(b)). Detention for this purpose (submits the respondent) is for a lawful purpose as is the related purpose of the removal of the detainee from Australia should the final determination of the Court not be in the detainee’s favour. The respondent submits that the composite purpose has been “decisively determined to be detention for a non-punitive purpose”.

142    The respondent submits that the decision of the High Court in Falzon supports its submissions. The principal issue in Falzon was as follows. A non-citizen who did not pass the character test and who was in prison, had his visa cancelled under s 501(3A) of the Act. He was taken into detention on completion of his term of imprisonment. The Assistant Minister decided not to revoke the cancellation decision under s 501CA(4). The detainee brought proceedings in the original jurisdiction of the High Court. The primary argument he advanced was that s 501(3A) was invalid because it conferred the judicial power of the Commonwealth on the Minister contrary to Ch III of the Constitution. The High Court rejected this argument.

143    The respondent submits that the following passages in Falzon support its contention that s 196(4) and (5)(b) (assuming the respondent’s construction is the correct one) are not constitutionally invalid.

144    Chief Justice Kiefel, Justices Keane, Bell and Edelman said (at [12]–[13]):

A person whose visa is cancelled and who becomes an unlawful non-citizen is liable to immigration detention. Section 189(1) provides that an officer who reasonably suspects that a person is an unlawful non-citizen must detain the person. Section 196 provides for the duration of that detention. Section 196(1)(a), (b) and (c) provide generally that a person detained under s 189 must be kept in immigration detention until he or she is removed from Australia, deported or granted a visa. Section 196(4) provides, subject to s 196(1)(a), (b) and (c), that if the person is detained as a result of the cancellation of his or her visa under s 501, the detention is to continue unless a court determines that the detention is unlawful or that the person detained is not an unlawful non-citizen. Section 196(5) provides that sub-s (4) applies whether or not there is a real likelihood of the person detained being removed under s 198 or s 199 in the reasonably foreseeable future and whether or not the decision relating to the person's visa is unlawful.

The plaintiff makes no challenge to the scheme of the Migration Act referred to above, nor does he challenge the validity of s 189 or s 196. A challenge of the latter kind would encounter the difficulty that, in Al-Kateb v Godwin and in Re Woolley; Ex parte Applicants M276/2003, this Court held, applying the principles stated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (“Lim”), that ss 189 and 196 authorise and require the detention of a non-citizen for the purpose of his or her removal from Australia and do not infringe the separation of the judicial power of the Commonwealth under Ch III. It is to be inferred from the plaintiff's argument, to which reference will later be made, that at least for some part of his immigration detention he was not detained under s 189; but rather he was detained under and for the purposes of s 501(3A).

(Citations omitted.)

145    Their Honours also said (at [29] and [57]):

29    The starting point for the enquiry referred to in Lim is that the power to remove or deport aliens from a country is executive in nature and it is non-punitive. The question which then arises with respect to a statutory power given to the Executive to detain an alien in custody is whether it is given in order to facilitate or effect the removal of that person, which is the subject of executive power. The enquiry is as to whether it is “necessary” to that purpose. If it is, it may be considered to be an incident of the executive power and will not be an exercise of judicial power. If the power goes further than to achieve that limited purpose it may be otherwise. In such circumstance, it may be inferred that the law has a purpose of its own, a purpose to effect punishment.

57    Where a person seeks revocation, his or her detention for the purpose of removal will be prolonged by his or her act in applying for reconsideration of the decision to cancel his or her visa. Section 501CA provides a process by which it may be decided whether a cancellation decision under s 501(3A) should be revoked, but neither it nor s 501(3A) authorises or requires detention for the purpose of that process being undertaken. Section 196 expressly deals with the duration of immigration detention arising in these circumstances. It will be recalled that s 196(4) provides that the detention of a person who is detained as a result of the cancellation of his or her visa is to continue unless a court finally determines either that the detention is unlawful or that the person detained is not an unlawful non-citizen.

146    The respondent submits that three matters emerge from these passages and each of them supports its case of constitutional validity.

147    The first matter which emerges is that a challenge to the validity of either s 189 or s 196 faces the significant obstacles presented by the High Court’s decisions in Al-Kateb v Godwin and Re Woolley which applied the decision in Lim. I do not think that this takes the matter anywhere. There was no challenge to the validity of those sections in Falzon. Furthermore, the High Court referred to those authorities as holding that the sections authorise and require the detention of a non-citizen for the purpose of his or her removal from Australia and do not infringe the separation of the judicial power of the Commonwealth under Ch III. As I understand it, that is a proposition with which the applicant does not disagree.

148    The second matter is that the High Court said in Falzon that the duration of detention following detention under s 189(1) is determined by s 196 (at [12] and [57] per Kiefel CJ, Bell, Keane and Edelman JJ; at [84] per Gageler and Gordon JJ). There is an issue as to what is meant by the “duration of detention”. The respondent’s submission seems to suggest that it means not only events which will bring an otherwise authorised detention to an end, such as removal from Australia, deportation, grant of a visa, or recognition that a person is a citizen or a lawful non-citizen, but also the authority to continue to detain. There is a need for the legislation to identify events which bring an authorised detention to an end even on the applicant’s construction because in the case of some of the terminating events, for example, removal or deportation, officers could and would continue to reasonably suspect that the detainee was an unlawful non-citizen. In those circumstances, I am not satisfied the observations in Falzon have the effect for which the respondent contends.

149    The same may be said of the third matter relied on by the respondent, that is, the statement of the effect of s 196(4). It seems to me that it does not support either party’s argument. On either argument, that is, with or without ongoing compliance with the requirements of s 189, s 196(4) has the effect identified.

150    It is important to identify the features (some express and some implied) of s 196(4). They are as follows. The first feature is that the person’s visa is cancelled on character grounds under one of ss 501, 501A, 501B, 501BA or 501F of the Act. The subsection deals with the cancellation of visas, not the refusal of visas. The cancellation of the visa has the effect that the former holder becomes an unlawful non-citizen. The second feature is that the cancellation means that the person is liable to be detained by reason of the provisions of s 189. As I have said, even though there is no reference to s 189 in s 196(4) and the subsection refers to a person being detained as a result of the cancellation of his or her visa, it is implicit in the subsection that the link between visa cancellation and the detaining of the person is the engagement of s 189. The third feature is that the person is detained. The fourth feature is that if there is no court challenge to the cancellation or the detention, then effectively the person remains in detention until he or she is removed from Australia (s 196(1)(a)) or is granted a visa (s 196(1)(c)). This scenario does not raise a constitutional issue because, absent a court challenge, it is accepted that the person is an unlawful non-citizen. Where there is a court challenge, the effect of the provision is that the person’s detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. This presupposes that the court challenge involves a contention by the former holder of a visa that his or her detention is unlawful, or that he or she is not an unlawful non-citizen. In the usual case, this would be a matter in dispute with the person contending that the cancellation decision was invalid, he or she is not an unlawful non-citizen and the detention is unlawful, and the Minister contending that the cancellation was valid, the person is an unlawful non-citizen and is lawfully detained. The respondent’s submission is that this is implicit in the subsection and that is no different from the Executive exercising the power to receive, investigate and determine an application by the alien for permission to enter and remain in Australia. The respondent described the purpose of the detention as the composite one of the Court finally determining the applicant’s status in terms of whether he is or is not an unlawful non-citizen and, depending on the outcome, the applicant’s removal from Australia. That composite purpose falls within the three specified purposes identified in Falzon and the respondent said that it was not asking the Court to recognise a new category of purpose. The purpose of removal from Australia is certainly one of the three recognised purposes. The respondent’s submission that awaiting the final determination of a court as to a detainee’s status, in terms of whether the detainee is a lawful or unlawful non-citizen, is of the same nature as the purpose as receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia has a superficial attraction in that both involve a contingency which may or may not result in the person’s removal from Australia. However, I do not consider that they are the same purpose, or sufficiently similar purposes.

151    The starting point is the executive power of deportation or expulsion and the executive power to receive, investigate and determine an application by an alien for permission to enter and remain in Australia. The conferral on the Executive of a power to detain in the context and for the purpose of those executive powers is regarded as constituting an incident of those executive powers (Lim at 33; Falzon at [25]–[26]). The problem with the respondent’s submission about the existence of a composite purpose is that s 196(4) does not involve the exercise of an executive power that operates from the point at which a person is detained to the point of a final determination by a court that the detention is unlawful or the person is not an unlawful non-citizen. The executive powers of cancellation of the visa and detention of the former holder were exercised before the period identified in s 196(4) commenced and there is no exercise of executive power in that period. That does not mean that s 196(4) is not linked, or could not be linked, to one of the three permissible purposes identified in Falzon. It is, or could be, linked to the purpose of removal from Australia. However, the detention must be reasonably capable of being seen as necessary for the purposes of removal from Australia. This directs attention to the circumstances in which removal from Australia must take place. That is provided for in s 198 and that section is limited to the removal from Australia of unlawful non-citizens. A detention cannot be seen as reasonably necessary for the purpose of the removal from Australia of a person who is an unlawful non-citizen if, for example, it is known that a person is not an unlawful non-citizen, or there is no belief either way as to his or her status. The ongoing reasonable suspicion by a detaining officer that a person is an unlawful non-citizen provides the link between the detention and the purpose of removal from Australia of an unlawful non-citizen. To give a hypothetical example. If “X” was lawfully detained on 1 January, but by 31 December relevant officers knew that he was a lawful non-citizen, or no officer had directed his or her mind to the issue and had no view either way, it could not be said at that point that the detention was necessary for the purpose of the removal of an unlawful non-citizen from Australia. By contrast, that could be said where the detaining officer had an ongoing reasonable suspicion that the detainee was an unlawful non-citizen.

152    For these reasons, I consider that the construction of s 196(4) and (5)(b) advanced by the respondent results in constitutional invalidity to the extent that it means that the ongoing detention was authorised without an accompanying ongoing reasonable suspicion that the person is an unlawful non-citizen by the detaining officer.

The Relief to be Granted

Declaration

153    The applicant seeks a declaration in the following terms:

A declaration that the applicant was detained unlawfully for the following periods:

(1)    the period commencing at some time in the afternoon or evening of 9 June 2016 and ending at 12.26 pm on 16 September 2016; and

(2)    the period commencing at an unknown time shortly after 12.26 pm on 16 September 2016 and ending on 12 February 2018.

154    The declaration reflects the fact that Messrs Jamieson and Clifford lawfully detained the applicant on 9 June 2016 and Mr Jones lawfully detained the applicant for a short period on 16 September 2016. The first period referred to in the declaration is 100 days and the second period referred to in the declaration is 515 days. The applicant claims a declaration to vindicate his right not to be unlawfully detained.

155    I have concluded that the applicant was unlawfully detained during the periods identified in the applicant’s proposed declaration. The applicant is entitled to a declaration to that effect. The respondent did not suggest that a declaration should not be made if I reached the conclusion that the applicant had been unlawfully detained. I will give the parties the opportunity to make submissions with respect to the final orders to be made in this proceeding, including the form of a declaration or declarations.

Compensatory Damages or Only Nominal Damages?

156    The respondent submits that the applicant is entitled to no more than nominal damages because he could and would have been detained in any event. This proposition relates to the applicant’s claim for compensatory damages and it does not relate to the claim for exemplary damages.

157    The respondent relies on the following matters to support its proposition that the applicant is entitled to no more than nominal damages: (1) the two cancellation decisions made by the Minister which it contends were apparently regular and effective; (2) the broad definition of “officer” in s 5 of the Act; and (3) the power and obligation on an officer under s 189 of the Act to detain a person who the officer knows, or reasonably suspects, to be an unlawful non-citizen.

158    The respondent also relies on the following cases in which a Court has awarded only nominal damages because the detainee could and would have been detained in any event: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 (Lumba); Fernando v Commonwealth of Australia [2014] FCAFC 181; (2014) 231 FCR 251 (Fernando (No 2)); and Guo. The respondent also relies on the observations of Kiefel J and of Keane J in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 (CPCF).

159    The applicant put a number of arguments in support of the proposition that he is entitled to compensatory damages and is not restricted to nominal damages. The first argument related to the nature of the “hypothetical counterfactual situation” (the counterfactual) to be posited for the purpose of determining the damages to be awarded as if the tort of false imprisonment had not occurred. The applicant submits that the counterfactual involves the changing of only one fact or circumstance and that is that the applicant was not unlawfully detained. He submits that to ask whether the detention of the applicant was inevitable on the correct application of the law, or on a correct understanding of the law, is the wrong question and that the correct question is whether it was inevitable that the applicant would have been lawfully detained had he not been unlawfully detained. He submits that if the former was the correct question, then it involves two matters which cannot be correct: (1) an assumption as to a factual matter which may be quite contrary to the actual facts. It involves assuming that the detainer, on being informed that the detention was unlawful, would then lawfully detain the detainee; and (2) it would have the consequence of undermining the rationale for reversing the onus of proof in cases of false imprisonment (i.e., it is for the detainer to justify the detention, so highly does the common law value personal liberty) in those cases in which the detainer has a legal power and duty to detain. It would mean that in all such cases, the counterfactual would involve an assumption of lawful detention and, therefore, the payment of only nominal damages.

160    The applicant submits that there is simply no basis on the evidence for a finding that had he not been unlawfully detained, he would have been lawfully detained. The applicant identified five factual matters which he contends establish that the respondent cannot prove that it was inevitable that had he not been unlawfully detained, he would have been lawfully detained, or that establish that the appropriate counterfactual was not lawful detention.

161    First, the applicant submits that the evidence supports the conclusion that the respondent’s practice at a point where the detainee enters a detention centre (i.e., after initial detention) was not to ensure that whichever person was detaining the detainee was also the officer with the required reasonable suspicion and that this practice would have continued and this meant that the counterfactual did not involve lawful detention.

162    Secondly, the applicant points to the fact that the evidence in this case establishes that there were periods during his detention where no officer held the required reasonable suspicion, or at least the respondent has failed to prove that there were officers who did. As I understood the applicant’s submission, it is that, so far as the evidence goes in this case, one should not build into the counterfactual an assumption that there will, at all times during the applicant’s detention, be an officer with the required reasonable suspicion. Therefore, the counterfactual is not one of lawful detention.

163    The third submission is similar to the second, save that it is based on acceptance of the applicant’s submission that Ms Green did not have the required reasonable suspicion because of a misunderstanding on her part. I have already rejected this contention (at [59] above) so it is unnecessary to consider this third submission any further.

164    The fourth submission is that lawful detention is not the appropriate counterfactual because the respondent’s policy restricted detaining officers (i.e., those who detain unlawful non-citizens) to field compliance officers. At all times during the relevant period of the applicant’s detention between 9 June 2016 and 12 February 2018, the Department’s Policy Advice Manual 3 included a section entitled “Immigration detention and the powers to detain”. A copy of this section of the manual as it existed on 9 June 2016, and as it existed on 12 February 2018, was produced. The policy manual contained directions as to who could detain under s 189(1) of the Act. As at 12 February 2018, this section in the Policy Manual was in the following terms:

The detention power in s189(1) can be exercised only by a person who is an officer for the purposes of the Act. These persons are defined in s5 of the Act as:

•    an officer of the Department

•    a Customs officer

•    a Protective Services Officer

•    a member of the Australian Federal Police or a State/Territory police force

•    a member of the Australian Defence Force in limited circumstances (see subsection 189(5)), or

•    a person the Minister has authorised in writing to be an officer for the purposes of the Act (including: prison and correctional services officer; employees of contracted detention services provider and movement monitoring officer).

To exercise s189(1), departmental officers must be appropriately trained FCOs or airport officers. For information on these requirements, see PAM3: Act – Field Compliance Operations - Overview.

Without the necessary training, a departmental officer will not be in a position to form a state of mind or reasonable suspicion that a person is a UNC, as required under s189(1) to detain a person – see State of Mind.

The policy manual was in similar terms as at 9 June 2016.

165    Finally, the applicant submits that lawful detention is not the appropriate counterfactual because it cannot be concluded on the evidence, and bearing in mind that the two cancellation decisions were held to be invalid and the applicant was in fact at all times a lawful non-citizen, that any officer would inevitably have formed the required reasonable suspicion about the applicant’s status.

166    Before considering these arguments, I will address the relevant authorities.

167    The tort of false imprisonment is actionable per se and, even if the plaintiff fails to prove loss or damage, he or she is entitled to nominal damages.

168    In Mediana [1900] AC 113, the Lord Chancellor, Earl of Halsbury, described nominal damages in the following way (at 116):

“Nominal damages” is a technical phrase which means that you have negatived anything like real damage, but you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, it gives you a right to the verdict or judgment because your legal right has been infringed. But the term “nominal damages” does not mean small damages.

169    In Fernando (No 2), Robertson J and I set out the facts in Lumba and discussed the judgments in the Supreme Court in that case. I will not repeat the passages in Lord Dyson’s reasons in Lumba (at [93] and [95]) which we set out in Fernando (No 2). The other members of the Supreme Court agreed with Lord Dyson expressing themselves in slightly different terms: (1) no prospect of being released if the Secretary of State had acted lawfully (at [176] per Lord Hope; at [219] per Lord Collins; and at [335] per Lord Phillips, agreeing with Lord Hope); (2) would have been kept in custody under the Secretary of State’s published policies (at [195] per Lord Walker); (3) no compensation for the loss of something a person would never have enjoyed (at [212] per Baroness Hale); (4) the persons would have been detained had the correct procedures been followed (at [253] per Lord Kerr); and (5) no realistic prospect of release had the Secretary of State applied his more favourable published policy (at [360] per Lord Brown). I appreciate that the facts in Lumba are different from the facts in this case, but it seems to me that the tenor of the remarks made by the members of the Supreme Court suggests that the counterfactual does involve consideration of what would have occurred in the event that the wrongdoer acted lawfully.

170    I refer also to the approach of the members of the Supreme Court in R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299 and the formulations used in the case. Baroness Hale referred to whether the claimant would have suffered loss and damage had things been done as they should have been done (at [74]) and Lord Kerr referred to the fact that the claimant would not have been released if a proper review had been carried out (at [89]).

171    The decision in Fernando (No 2) is close to the facts in this case. Mr Fernando’s visa was cancelled under s 501 of the Act and he was taken into detention where he remained for some years. His judicial review application in relation to the cancellation decision was eventually allowed. He brought an action against the Commonwealth for damages for false imprisonment in relation to his detention. The primary judge held that Mr Fernando had been falsely imprisoned because at no time during his detention did an officer hold the state of mind required by s 189. However, the primary judge refused to award compensatory damages and awarded nominal damages of $1.00.

172    That aspect of the primary judge’s decision was upheld by the Full Court. Robertson J and I said that the relevant counterfactual is:

… that the appellant had not been unlawfully detained in the first place, and requires the Court to consider what could and would have happened had the tort not been committed.

173    We expressed our conclusion as follows (at [88]):

The primary judge relied on the provisions of the Act rather than evidence to support his conclusion that the appellant could and would have been lawfully detained by an officer performing his or her duty under s 189(1) of the Act (see [96] of his third judgment). We think that he was correct in doing so. The definition of “officer” in s 5 of the Act is very broad, s 189(1) of the Act places an obligation, not a mere discretion, on an officer to detain a non-citizen in the circumstances envisaged in the section, and, finally, nothing was put to this Court which suggests that any officer would have viewed the cancellation of the appellant’s visa as other than regular and effective.

174    Justice Barker agreed, saying there was no realistic basis upon which it could be concluded that the appellant would not have been detained (at [168]). He also addressed and rejected an argument very similar to the argument put in this case (at [169]):

It seems to me that the only basis upon which it could be argued that the appellant would not have been detained is if an assumption is made that the types of decision-making deficiencies identified by the earlier Full Court would be repeated. I do not consider that any such assumption can be made and indeed that it is inappropriate to make such an assumption.

(Emphasis retained.)

175    In Guo, Jagot J considered that an award of only nominal damages was appropriate. Her Honour said that she considered Fernando (No 2) to be distinguishable on the facts. Nevertheless, her Honour concluded that the requirement of causation dictated the conclusion on the facts of the case before her that if the Commonwealth had not falsely imprisoned Mr Guo, it would have lawfully imprisoned him for the entirety of the period for which he was unlawfully detained and in precisely the same circumstances. The matters which led her Honour to that conclusion were as follows. First, Mr Guo’s application for a permanent visa had been refused on character grounds in 1996. Secondly, there was no question that the provisions of the Act meant that if Mr Guo was notified as required of the decision, the effect would be to bring his temporary entry permit to an end, by reason of which he would have been an unlawful non-citizen. Any officer aware of these circumstances would necessarily have a reasonable suspicion that Mr Guo was an unlawful non-citizen and be bound to detain him. Thirdly, the Commonwealth, via the Department, purported to notify Mr Guo of the decision to refuse his permanent visa application. Had all correct procedures been followed (as per Lumba at [253]), Mr Guo’s temporary entry permit would have ceased. Her Honour noted that it was the fact that correct procedures were not followed (i.e., the notice did not correctly identify the time period for review) that meant that Mr Guo remained a lawful non-citizen. That fact was central to the commission of the tort. Her Honour said that damages are to be assessed on the basis that Mr Guo is entitled to be compensated by being put in the position he would have been in had the tort not occurred. On that basis, the notice would have stated the correct time period. Fourthly, Mr Guo in fact exercised his right to apply for refusal of his permanent visa application. There is no reason to infer that the tort had any effect on the fate of this application. Finally, by 2012 Mr Guo’s bridging visa had expired, and he was precluded from applying for another visa by s 501E of the Act.

176    Her Honour expressed her conclusions as follows (at [235]):

Accordingly, had the tort not occurred, Mr Guo would have been lawfully detained when his location came to the attention of the Department in February 2012 and would thereafter have remained in detention as an unlawful non-citizen. This is because he would have held no visa at that time, his bridging visa having expired on 1 July 2011 (granted to enable various applications to be resolved) and his temporary entry permit, on this analysis, having ceased in October 1996 on effective notification of the refusal of his application for a permanent visa.

177    In CPCF, Kiefel J (at [324]–[325]) and Keane J (at [510]–[512]) said that on the assumption that the plaintiff had been unlawfully detained on an Australian vessel, he was nevertheless entitled to only nominal damages (at best, said Keane J at [512]) because he would, in the alternative, have been detained in immigration detention. Both Justices referred to Lumba with approval.

178    Before leaving the authorities, I note the reference in McGregor H, McGregor on Damages, (20th ed, Edelman J (ed), Thomson Reuters (Professional) UK Limited, 2018) at para 12-002 footnote 8 to the English cases which have followed Lumba and awarded nominal damages because the detainees could and would have been lawfully detained had the correct procedure for their detention been followed. I also note that in England, the principle that a detainee unlawfully detained recovers no more than nominal damages if he could and would have been detained in any event, applies not only to a case where the detainee could and would have been detained by the defendant in any event, but extends to a case in which he could and would have been detained by a third party. The counterfactual does not draw on the facts of the detention by the defendant in any way. In Lee Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79, Vos LJ (with whom the Chancellor, Sir Terence Etherton, and Clarke LJ agreed) said (at [20] and [23]):

…The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not been committed. Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position, he will not normally be entitled to anything more than nominal damages. The identity of the route by which this same result might have been achieved is unlikely to be significant.

As I have said, the principle dictates that the court, in assessing damages for the tort of false imprisonment, will seek to put the claimant in the position he would have been in had the tort not been committed. To do that, the court must ask what would have happened in fact if the tort had not been committed. In each of Lumba and Kambadzi, the answer was obvious. Had the torts of false imprisonment not been committed, the Secretary of State would have applied the published policy or undertaken the appropriate custody reviews. In both cases, the claimants would still have been detained. They sustained no compensatable loss. …

179    Returning to the applicant’s submissions, I do not consider that the applicant’s overarching submission can be correct. In other words, I do not consider it to be correct that the counterfactual involves only the change that the unlawful detention did not take place and all the other facts remain the same. It seems to me that approach would mean that in a case like Lumba, the counterfactual would lead to the same result, namely, action under an unlawful policy resulting in unlawful detention. That was not the conclusion of the Supreme Court. It would mean that because it is fair to assume the Secretary of State would have proceeded in exactly the same way. After all, the Secretary of State’s unlawful blanket policy was hidden and she or her officials knew that it was unlawful or, at the least, was vulnerable to legal challenge (Lord Dyson at [154]–[155], [166]; Lord Walker at [195]). It was in those circumstances that she proceeded in the way she did and it is reasonable to assume for the purposes of the counterfactual (if formulated in the way the applicant contends it should be) that she would have done so again. The Supreme Court did not approach the issue in that way. Nor is it easy to see the reasons why nominal damages would be appropriate in CPCF if the Court was required to proceed on the basis that there is only one change for the purposes of the counterfactual, being that the plaintiff was not unlawfully detained. The facts absent that feature suggest that the same thing would have happened, namely he would have been detained on an Australian vessel.

180    I agree with the applicant that where there is a power to detain, one does not, for the purposes of formulating the counterfactual, simply assume that the power will be exercised and exercised lawfully. However, I consider that the counterfactual to be adopted does involve an assumption that the detainer has a correct appreciation of the law and acts accordingly. With respect, I think that is the tenor of their Lordships’ remarks in Lumba. In this case, there was a duty to detain, not merely a power to detain. There is no reason to think that an officer would not have considered the Minister’s two cancellation decisions regular and effective and (if reference to these facts is permitted) there were seven officers in this case who formed a reasonable suspicion that the applicant was an unlawful non-citizen. Of course, there may be cases where, on the facts, lawful detention is an impossibility. That is not this case where there is no reason to think that, on a correct appreciation of the law, the Commonwealth would not have made arrangements for the applicant’s lawful detention.

181    I have reached the conclusion that the applicant could and would have been detained in any event and that he is entitled to no more than nominal damages. I consider that the approach I have taken is consistent with the approach of the Full Court in Fernando (No 2).

Vindicatory Damages

182    The applicant submits that he had a right not to be imprisoned unlawfully and that the award of compensatory damages would, in the usual course, include an amount to reflect the vindication of that right. He submits that if his claim for compensatory damages is rejected and he is restricted to nominal damages, then nevertheless, he should receive a separate award of vindicatory damages to reflect the vindication of his right not to be imprisoned unlawfully.

183    This submission seems to raise two issues. The first issue is whether an award of compensatory damages would, in the usual course, include an award for the vindication of a right the plaintiff claims has been infringed. If so, one would have to revisit the conclusion that in a case where the plaintiff could and would have been detained in any event, only nominal damages is appropriate. The second issue is whether, assuming no compensatory damages are awarded, there is nevertheless room for an award of vindicatory damages in a case where nominal damages are awarded because the plaintiff could and would have been detained in any event.

184    With respect to the first issue, as I have said, the tort of false imprisonment is actionable per se which means that the tort is complete irrespective of whether the plaintiff establishes loss or damage. That means the plaintiff who succeeds in a claim for false imprisonment will receive, at least, nominal damages in recognition or vindication of his right not to be falsely imprisoned. The compensatory damages that may be awarded include damages for loss of personal liberty, any “hurt” or injury to the plaintiff’s feelings and any indignity, mental distress, disgrace or humiliation (Barker K, Cane P, Lunney M, Trindade FA, The Law of Torts in Australia (5th ed, Oxford University Press, 2012) pp 80–81). The damages might include damages for the initial shock of being arrested or detained (Ruddock v Taylor (NSWCA) at [49] per Spigelman CJ; Goldie v Commonwealth (No 2) [2004] FCA 156; (2004) 81 ALD 422 (Goldie) at [14]–[16] per French J; Fernando (No 2) at [110]), assaults committed during the course of the plaintiff’s detention (Goldie at [20] per French J), injury to reputation (Hook v Cunard Steamship Co [1953] 1 WLR 682 (Hook v Cunard SS Co)), or economic loss for loss of earnings, if that be relevant.

185    In McGregor on Damages, the principal heads of damage for false imprisonment are said to be those that flow from the deprivation of liberty:

… the consequences of the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feeling, ie., the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status and injury to reputation. This will all be included in the general damages which are usually awarded in these cases, with no breakdown.

186    In the English case of Hook v Cunard SS Co, Slade J indicated that had the trial been conducted by judge and jury, the defendants might have been ordered to pay heavy damages to vindicate the plaintiff’s reputation. That was a false imprisonment case where the imprisonment was caused by a false accusation made by a passenger that the plaintiff had assaulted the passenger’s daughter. The damages being referred to were damages by way of the vindication of the plaintiff’s reputation or, as Slade J put it (at 686), to make it “clear that there is no stain of any kind on his character”.

187    The author of McGregor on Damages (at [17-001]) states that vindicatory damages go beyond compensation for loss, and indeed, go beyond responding to any consequence. They are said to be damages that respond to the infringement of a right.

188    I have not been able to find any case in which it is made clear that an award of compensatory damages may include a substantial amount in vindication of the plaintiff’s right not to be falsely imprisoned, as distinct from the vindication of the plaintiff’s reputation damaged by the circumstances surrounding the false imprisonment.

189    The applicant relied heavily on the decision of the High Court in Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 (Plenty v Dillon). That case involved a claim for a trespass to land and the High Court held that the claim had been made out. The primary judge who had rejected the plaintiff’s claim said that, in any event, the trespass was “of such a trifling nature as not to found [sic] in damages”. The High Court also disagreed with this latter conclusion.

190    Chief Justice Mason and Justices Brennan and Toohey said (at 645):

But this is an action in trespass not in case and the plaintiff is entitled to some damages in vindication of his right to exclude the defendants from his farm. As the subject of damages was not argued before us, it will be necessary to remit the assessment of damages to the Supreme Court.

191    Justices Gaudron and McHugh went further (at 655):

The first and second respondents had no right to enter his land. The appellant was entitled to resist their entry. If the occupier of property has a right not to be unlawfully invaded, then, as Mr. Geoffrey Samuel has pointed out in another context, the “right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric”: “The Right Approach?” Law Quarterly Review, vol. 96 (1980) 12, at p. 14, cited by Lord Edmund-Davies in Morris v. Beardmore. If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages.

(Citation omitted.)

192    It should be noted that there were circumstances of aggravation in Plenty v Dillon as noted by Gaudron and McHugh JJ in that the trespassers knew that their entry was against the wishes of the landowner and in circumstances likely to cause him distress.

193    False imprisonment is one of the trespass to the person torts and, like trespass to land, it is to be distinguished from an action in case. It is difficult to see a reason, as far as damages are concerned, the tort would not be treated in the same way as the tort of trespass to land.

194    Nevertheless, having said that, it seems clear that in the ordinary case, the plaintiff, in a claim for trespass to land, will recover only nominal damages where no damage is done to the land (Prentice v Mercantile House Pty Ltd (1991) 99 ALR 107; Dehn v Attorney-General [1988] 2 NZLR 564 at 583). An award of general damages for mental distress might be made if the mental distress is the natural and probable result of the trespass.

195    The authors of The Law of Torts in Australia (at [4.5.1]) suggest that the decision in Plenty v Dillon is best read as allowing an award of damages only where there were aggravating features attending the defendant’s entry to the land as there were in that case otherwise it “would subsume the basic rule of nominal damages only where no damage has been caused to the land”. To this might be added the following observation. The Supreme Court in Lumba treated the issue of whether vindicatory damages could be awarded for the infringement of the right not to be falsely imprisoned as separate from the issue of whether compensatory damages or nominal damages should be awarded. It did not address vindicatory damages as possibly being part of compensatory damages. Lord Dyson said (at [100]):

… It is one thing to say that the award of compensatory damages, whether substantial or nominal, serves a vindicatory purpose: in addition to compensating a claimant's loss, it vindicates the right that has been infringed. It is another to award a claimant an additional award, not in order to punish the wrongdoer, but to reflect the special nature of the wrong…

196    In my respectful opinion, damages, other than nominal damages, for the vindication of the plaintiff’s right not to be falsely imprisoned are not part of compensatory damages, at least in a case where the plaintiff could and would have been detained in any event.

197    Although it cannot affect the force of what the High Court said in Plenty v Dillon, it is perhaps worth noting that on the remitter as to damages, a master of the Supreme Court awarded Mr and Mrs Plenty damages of $167,000 comprised of the following: (1) Aggravated damages of $15,000; (2) Exemplary damages of $5,000; (3) Injury to pre-existing back condition of $2,000; (4) Depressive illness of $100,000; and (5) Interest of $45,000 (Plenty v Dillon [1997] SASC 6372).

198    I turn then to the second issue which is whether there may be an award of vindicatory damages as a separate award in a case in which the Court has decided that nominal damages, rather than compensatory damages should be awarded.

199    In England, the term, vindicatory damages, is of relatively recent origin. Such damages in vindication of a right had their genesis in awards by the Judicial Committee in cases involving the infringement of constitutional rights. In the leading case of Attorney General of Trinidad and Tobago v Ramanoop [2005] 2 WLR 1324; [2006] 1 AC 328, Lord Nicholls said (at [18]–[19]):

When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.

An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. “Redress” in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions “punitive damages” or “exemplary damages” are better avoided as descriptions of this type of additional award.

200    In this passage, Lord Nicholls refers to an additional award, not necessarily of a substantial size, reflecting the following matters: (1) the sense of public outrage about the conduct; (2) the emphasis to be accorded to the fact that the right violated is a constitutional right; (3) the gravity of the breach; and (4) the need to deter further breaches. As the author of McGregor on Damages observes (at [17-013]), the reference to the gravity of the breach and deterrence suggests an overlap with exemplary damages, and the author refers to a subsequent case which emphasises their nature as disguised exemplary damages. The rationale of deterrence can also be seen in the reasons for judgment of the members of the Supreme Court in Lumba who supported an amount of vindicatory damages (Lord Hope at [180] and Baroness Hale at [217]).

201    It is convenient at this point to deal with a further submission made by the applicant. The applicant submits that should I refuse to award damages to recognise or vindicate his right not to be unlawfully detained, either as compensatory damages or as a separate award, I should make a broader award of exemplary damages, that is to say, an award in respect of the entire period of his unlawful detention. When I say, broader, I mean by that in comparison with his specific narrower claim for exemplary damages relating to events on 16 September 2016. His submission is as follows:

Alternatively, a broader award of exemplary damages (ie, in respect of the entire period of unlawful detention) is appropriate, due to the need to ensure that there is an effective incentive to the Commonwealth to see to it that detention in immigration detention is lawful, and a deterrent to the Commonwealth continuing detention unlawfully. That will be absent if the Commonwealth faces only the prospect of an award of nominal damages in respect of hundreds of days of unlawful deprivation of liberty.

202    I decline to proceed in the way the applicant seeks. Having regard to the reasons advanced by the applicant, this approach would require an expansion of the well-settled principles relating to the award of exemplary damages.

203    Returning then to the issue of vindicatory damages, in Lumba, the Supreme Court by a majority of 6:3 (Lord Dyson, Lord Collins, Lord Kerr, Lord Phillips, Lord Brown and Lord Rodger, and dissenting on this point Lord Hope, Lord Walker and Baroness Hale) rejected a claim for vindicatory damages.

204    Lord Dyson, after making the observations set out above (at [195]), explained his reasons for rejecting vindicatory damage as a head of damage as follows (at [100]–[101]):

… As Lord Nicholls made clear in Ramanoop, discretionary vindicatory damages may be awarded for breach of the Constitution of Trinidad and Tobago in order to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach and deter further breaches. It is a big leap to apply this reasoning to any private claim against the executive. McGregor on Damages 18th ed (2009) states at para 42-009 that “It cannot be said to be established that the infringement of a right can in our law lead to an award of vindicatory damages”. After referring in particular to the appeals to the Privy Council from Caribbean countries, the paragraph continues: “the cases are therefore far removed from tortious claims at home under the common law”. I agree with these observations. I should add that the reference by Lord Nicholls to reflecting public outrage shows how closely linked vindicatory damages are to punitive and exemplary damages.

The implications of awarding vindicatory damages in the present case would be far reaching. Undesirable uncertainty would result. If they were awarded here, then they could in principle be awarded in any case involving a battery or false imprisonment by an arm of the state. Indeed, why limit it to such torts? And why limit it to torts committed by the state? I see no justification for letting such an unruly horse loose on our law. In my view, the purpose of vindicating a claimant's common law rights is sufficiently met by (i) an award of compensatory damages, including (in the case of strict liability torts) nominal damages where no substantial loss is proved, (ii) where appropriate, a declaration in suitable terms and (iii) again, where appropriate, an award of exemplary damages. There is no justification for awarding vindicatory damages for false imprisonment to any of the FNPs.

Lumba was followed in R (on the application of O) v Secretary of State for the Home Department [2016] 1 WLR 1717. In that case, the Supreme Court found that, insofar as the claimant’s contentions in the proceeding deserved to be vindicated, that vindication was achieved by the judgment of the Court.

205    Although I am not bound to follow Lumba, I think I should do so sitting as a single judge and in the absence of any intermediate appellate or High Court authority (I have already discussed Plenty v Dillon) endorsing an award of vindicatory damages in the sense of the damages sought by the applicant. I should say that I do not read anything said in the case referred to by the applicant of Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 157 ALD 14 at [1624]–[1627] as suggesting I should take a contrary view. I have decided that there cannot be a separate award of vindicatory damages. Had I decided otherwise, presumably they would be such damages together with exemplary damages assuming the case warranted such an award, and it would not be necessary, or indeed, appropriate to award nominal damages. However, and this is no criticism of the parties, such issues were not debated before me.

The Amount of Compensatory Damages had such an Award been Appropriate

206    In case I am wrong and an award of compensatory damages should be made, I will indicate my view as to the appropriate amount.

207    I have already referred to the general principles. I would add that both in this country and in England, it is well established that damages for false imprisonment cannot be computed on the basis that there is some kind of daily rate and as the term of imprisonment extends the effect of the imprisonment on the person detained progressively diminishes. In Ruddock v Taylor (NSWCA), Spigelman CJ said (at [49]):

Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as “the initial shock of being arrested” (Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 515). As the term of imprisonment extends the effect of the person falsely imprisoned does progressively diminish.

(see Goldie at [14]–[16] per French J; Fernando (No 2) at [110].)

208    As I have said, here the applicant was unlawfully detained for 615 days in total. This consisted of two periods of 100 days and then 515 days.

209    The applicant accepts that his initial detentions on 9 June 2016 and 16 September 2016 respectively were lawful. This means that there is no claim for “the initial shock” of being arrested and this is an important matter to recognise in considering the amount to be awarded (cf Ruddock v Taylor at [49]).

210    The applicant also submits, and the respondent did not dispute, that although in some cases a lower award of damages is considered appropriate where the period of immigration detention follows a substantial period of imprisonment for criminal offending (see, e.g., Guo at [253]), this consideration is not relevant in the present case.

211    It is a singular feature of this case that the applicant did not give evidence about his detention and the effects of it upon him. There is no evidence from the applicant about the conditions of his detention and how he felt about his loss of liberty, of any feelings associated with a loss of dignity, humiliation or reputation. There is no evidence of physical or mental harm or loss of earnings as a result of the applicant’s detention. In fact, there is no evidence from any person, expert or otherwise, as to any of these matters.

212    The applicant referred to a number of authorities in which compensatory damages have been awarded for false imprisonment arising from the actions of government. He submits that although significant caution is necessary, these authorities may nevertheless “in practice” provide some general “ballpark” guidance. He does not suggest that any of these authorities provided an exact analogy with the present case.

213    In Goldie, French J awarded $22,000 in relation to an unlawful detention for three days. That amount was comprised of an amount of $5,000 for the wrongful arrest and associated physical restraints, including an allowance for humiliation and indignity inflicted at the time of apprehension; an amount of $2,000 for the conduct in detention of pat searches, a medical examination and other requirements wrongfully imposed on Mr Goldie; and an amount of $15,000 for detention for a period of three days, including an allowance for the continuing humiliation and indignity associated with that detention.

214    In Taylor v Ruddock (unreported, District Court of New South Wales, Murrell DCJ, 18 December 2002) (Taylor v Ruddock), the primary judge awarded $116,000 to Mr Taylor in respect of two periods of detention which together totalled 316 days. Due to the nature of the offences for which Mr Taylor was convicted, he was detained in a state prison under a “strict protection” regime rather than in an immigration detention centre. That regime was described as “a particularly harsh one” (see Ruddock v Taylor (NSWCA) at [52] per Spigelman CJ). On appeal, the award was upheld by the New South Wales Court of Appeal. Spigelman CJ said (at [50]):

The award by her Honour is, in my opinion, low. However, I do not regard it as so low as to constitute appellable error. This is a discretionary judgment which is, in my opinion, within the range, albeit at the bottom of the range.

215    In Guo, there was extensive evidence before the Court of the circumstances surrounding Mr Guo’s initial detention and his detention at the Villawood Detention Centre thereafter for about two years and ten months (see [208] and [209]). Furthermore, Mr Guo claimed that he did not receive adequate mental health care while detained and that his mental health deteriorated. There was expert evidence before the Court from a psychiatrist and a psychologist (see [242]). Jagot J awarded Mr Guo nominal damages in the sum of $1.00. However, in case she was wrong, her Honour assessed compensatory damages in an amount of $380,000. She said (at [259]):

Mr Guo was falsely imprisoned for a total of 1033 days, in two periods of 940 and 93 days each. He had been imprisoned previously. His first period of detention involved an arrest whilst in custody, but his second was effected while he was at home. On both occasions, he was not in the position of a person from whom being detained as s suspected unlawful non-citizen would be a shock. While Mr Guo was shocked, as I have said, a moment’s reasonable thought would have caused him to realise he was highly likely to end up in immigration detention after his bridging visa expired in mid-2011. This said, on the current hypothesis, he is entitled to be compensated for a lengthy period of false imprisonment. Having regard to the decisions referred to and the particular circumstances of Mr Guo’s case if he is entitled to more than nominal damages I would assess general damages including for all hurt, indignity, shock from all the facets of his detention in the sum of $380,000.

216    In Okwume v Commonwealth of Australia, [2016] FCA 1252, Charlesworth J assessed general damages in the amount of $2,000 (including the sum of $400 in lieu of pre-judgment interest) for a period of detention of less than 18 hours (see [285]). Her Honour took account of the “personal distress” caused to Mr Okwume, but placed no weight on his distress due to his initial detention because the act of that initial detention formed no part of his pleaded case for damages for false imprisonment (see [283]). At [284], her Honour said:

Ultimately, the award of general damages is one made for the purpose of compensating Mr Okwume for the unjustified restraint on his physical moment over the relevant time. The restriction of that fundamental freedom sounds in damages, irrespective of whether the physical restraint is accompanied by emotional tumult or physical or psychiatric injury.

217    In Commonwealth of Australia v Marsh [2018] ACTSC 189, Mr Marsh was unlawfully detained in the Australian Capital Territory watch house for a period of approximately two days. A Magistrate assessed general damages at $10,000, having regard to the curtailment of liberty, including inconvenience and injured feelings (see [112]). On appeal, McWilliam AsJ agreed that the figure was “modest” but found no discernible error in the amount awarded by the Magistrate (see [116]).

218    In Fernando v Commonwealth of Australia (No 5) [2013] FCA 901, Siopis J would have awarded Mr Fernando the amount of $265,000 in relation to a period of detention of 1,203 days, in the event that his Honour was wrong to award no more than nominal damages (see [139]). Mr Fernando gave evidence that he suffered anxiety and stress during the period of his detention and that he was treated for depression during and after his period of detention (see [130]). Mr Fernando also claimed that he had lost employment and educational opportunities and the capacity to earn an income by reason of his detention (see [131] but cf [136]–[137]). His Honour considered that Mr Fernando’s evidence did not suggest that he was subjected to a harsh “strict protection regime” (cf Taylor v Ruddock) or that he feared for his life at the hands of inmates (cf Nye v State of New South Wales [2003] NSWSC 1212) (see [138]).

219    Having regard to the authorities to which the applicant referred and the evidence relating to the applicant’s arrest and detention, had I been required to do so, I would have assessed compensatory damages in the amount of $125,000. In reaching this figure, I have considered all the matters to which I have referred, with particular emphasis on the following: (1) compensation is not to be awarded, as it has been in other cases, for the initial shock of arrest; (2) compensation is to be awarded for a lengthy period of unlawful detention and the detention is a serious matter which involves a grave interference with the rights of the individual (Goldie at [17]); and (3) there is no evidence of the conditions of the applicant’s detention or of the effects of it upon him.

Exemplary Damages

220    In Uren v John Fairfax & Sons Pty Limited [1966] HCA 40; (1966) 117 CLR 118 at 149, Windeyer J described the difference between aggravated damages and exemplary damages in the following terms:

… that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment — moral retribution or deterrence.

A littler later, his Honour, in discussing exemplary damages, referred to a cynical disregard of the plaintiff’s rights by a calculating defendant and posed the question of whether there was evidence in the case of conduct by the defendant “which could merit punishing it by awarding a greater sum to the plaintiff?” (at 154).

221    In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1984] HCA 12; (1985) 155 CLR 448, Gibbs CJ (at 461) described the conduct of the defendant in that case as conduct undertaken without a care as to whether it was lawful or not and as showing “a high-handed and outrageous disregard of the [plaintiff’s] rights”, Brennan J said (at 471):

As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v. Harvey substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs C.J. saying: ‘I wish to know, in a case where man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?’

(Citation omitted.)

This passage from the reasons of Brennan J was cited with approval by the High Court in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 (Lamb v Cotogno) (at 11).

222    The Court in Lamb v Cotogno also made it clear that the purposes behind an award of exemplary damages included not only moral retribution and deterrence (both general and specific), but appeasement and in order to mark the Court’s condemnation of the defendant’s behaviour (at 10). The Court also said that the act or conduct said by the plaintiff to form the basis of his or her claim for exemplary damages must have been performed by the defendant intentionally (although not necessarily maliciously) or recklessly.

223    In Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1, Gleeson CJ, McHugh, Gummow and Hayne JJ said that the circumstances in which exemplary damages may be awarded could not be reduced to a single formula and that the phrase used by Knox CJ in Whitfield v De Lauret and Company Limited [1920] HCA 75; (1920) 29 CLR 71 at 77 “conscious wrongdoing in contumelious disregard of another’s rights” — described at least the greater part of the relevant field.

224    The applicant made a claim for aggravated damages in his Originating application, but I did not understand him to pursue such a claim in closing submissions. In any event, such a claim cannot succeed in light of my conclusion that the applicant is not entitled to compensatory damages and is only entitled to nominal damages (Fernando (No 2) at [97]).

225    In support of his claim for exemplary damages, the applicant referred to events between 12 September 2016 and 16 September 2016. The significance of 12 September 2016 is that at some time during the afternoon of that day, Mr Peter John Dwyer made a decision in consultation with the Department’s Australian Government Solicitor’s (AGS) “out-posted” special counsel to concede the First Judicial Review Proceeding. Mr Dwyer’s recollection is that the decision was made after 2 pm (AEST) and before 5 pm (AEST). Mr Dwyer is a solicitor and Australian public servant and, at the relevant time, he held the position of Director, AAT and Removal Injunction Section within the Legal Advice and Operational Support Branch of the Department. The Branch is part of the Legal Division. Mr Dwyer’s role as Director included making decisions of a more significant or strategic nature, or both, in relation to matters in which he was involved or otherwise had supervisory oversight. Mr Dwyer was consulted by Ms Marian Kijirah, a senior legal officer in his section, the AGS and the counsel team briefed from time to time in relation to the decision to concede the First Judicial Review Proceeding. Ms Kijirah was the person who provided the day-to-day instructions to the AGS.

226    The significance of 16 September 2016 includes, as I have previously said, the fact that at approximately 9.20 am (ACST), this Court, in the First Judicial Review Proceeding, quashed the First Cancellation Decision, and at approximately 9.40 am, the Minister made the Second Cancellation Decision.

227    It is important to identify the applicant’s submissions with respect to two periods he identified, being the first period from 12 June 2016 when Mr Dwyer made his decision that the First Judicial Review Proceeding would be conceded, to 9.20 am on 16 June 2016 when the First Cancellation Decision was quashed by an order of the Court, and the second period from 9.20 am to 9.40 am when the Second Cancellation Decision was made, and possibly thereafter until 12.21 pm when Mr Jones detained the applicant based on the Second Cancellation Decision.

228    The applicant’s argument in relation to the first period is that the applicant’s detention was unlawful because s 196(4) and (5)(b) did not authorise the detention and there could be no reasonable suspicion by an officer so as to engage s 189 because Mr Dwyer had decided that the First Judicial Review Proceeding would be conceded. This argument was put in the alternative to the applicant’s more general submission and relates to a specific period within the relevant period. I do not need to consider the argument because I have upheld the applicant’s more general submissions. I do not understand the applicant to contend that exemplary damages should be awarded because of conduct or acts during the first period and, in any event, I would reject such a claim because I do not consider that it was contumelious of the applicant’s rights to await the orders of the Court. However, that does not mean that the respondent’s conduct and acts in the first period are irrelevant to the claim for exemplary damages in relation to the second period because events in relation to the first period are relevant to what the respondent should have been ready to do at 9.20 am (ACST) on 16 September 2016.

229    The applicant submits that the officers who were aware of the orders of the Court on 16 September 2016 were obliged to take all reasonable steps to ensure that the applicant was released from detention as soon as practicable after the orders had been made. Instead of doing that, the applicant submits that the officers deliberately and knowingly took active steps to facilitate the Minister making the Second Cancellation Decision, which, it transpired, was held to be unlawful in the Second Judicial Review Proceeding, while the applicant’s detention was allowed to continue despite the orders of the Court. The course adopted by the respondent was, the applicant submits, to withhold deliberately the necessary information from the officers detaining the applicant while hastily providing that very same information to the Minister, in order to enable him to make a decision that would prevent the applicant being released from detention. The applicant submits that there is an obvious inference to be drawn from the primary facts and this inference forms the basis of his claim for exemplary damages. The inference is that it was decided “by officers” that it was expedient to detain the applicant, unlawfully, to enable the Second Cancellation Decision to be made without releasing him from detention.

230    Before turning to the evidence with respect to the two periods, it is important to note a discovery order which I made in this proceeding. It is important to note this because one of the applicant’s submissions is that he has done all he can to put relevant evidence before the Court. On 21 August 2018, I made an order that the respondent give discovery of and (subject to any claim of privilege) to produce, among other classes of documents, “[a]ll documents (including electronic documents and notes of conversations) recording or evidencing any communication between any employees or officers of the Department, relating to Mr Burgess and/or his judicial review proceedings in the period between 1:30 pm on 12 September 2016 and 12:30 pm on 16 September 2016”. In relation to that class of documents, the respondent produced three documents. Claims for privilege were made in relation to other documents. I will refer to the three documents produced in due course. The applicant submits that he has done all he could to put relevant evidence before the Court.

231    I turn now to the events which occurred in the first period. The evidence in relation to this period consisted of the evidence adduced by the respondent in the Second Judicial Review Proceeding, being an affidavit of Ms Phillippa Jane de Veau and an affidavit of Mr Dwyer.

232    In December 2016, Ms de Veau was a solicitor and Australian public servant and she held the position of General Counsel and First Assistant Secretary of the Legal Division of the Department. She swore her affidavit in support of the Minister’s claim for legal professional privilege in relation to an order for production of documents sought by the applicant in the Second Judicial Review Proceeding. Ms de Veau produced a “Departmental email chain” with redactions commencing with an email from Ms Kristin McGill to Mr Dwyer on 15 September 2016 at 3.33 pm (AEST) (with other officers copied in) and ending with an email from Mr Dwyer to Ms McGill on 16 September 2016 at 9.41 am (ACST) (with various other departmental officers copied in). Ms McGill is “from the Minister’s Office”. I will need to come back to this last email which is relevant to the second period. Ms de Veau also produced a submission signed by the Minister on 16 September 2016 relating to the Second Cancellation Decision and a departmental note which was the covering document provided to the Minister as a package, together with the other substantive documents which were placed before the Minister when he made the decision to cancel the applicant’s visa on 16 September 2016 under s 501(3) of the Act. Ms de Veau was not required for cross-examination in the Second Judicial Review Proceeding.

233    In his affidavit, Mr Dwyer said that he was aware that on 13 September 2016 at approximately 2.10 pm (AEST), Ms Kijirah advised the AGS by telephone of the Department’s instructions to concede the First Judicial Review Proceeding. He was aware of various other communications that occurred between the provision of those instructions to the AGS on 13 September 2016 and 15 September 2016 at 11.06 am (ACST) when the AGS sent draft consent orders to the applicant’s solicitors. Mr Dwyer claimed legal professional privilege over those communications on behalf of the Minister. He said that those communications occurred for the dominant purpose of existing litigation or the provision of legal advice. Mr Dwyer said that broadly speaking, it was fair to say that the Department, AGS and the counsel team were engaged in extensive confidential legal communications relating to the process of finalising the proceeding.

234    Mr Dwyer said that he had reviewed an email by Mr Niall Stoddart. In September 2016, Mr Stoddart was the Assistant Director, Ministerial Services Section from the Ministerial, Parliamentary and Coordination Branch, Executive Division within the policy group of the Department. The email is dated 15 September 2016 at 4.55 pm (AEST) and is directed to a DLO email address. DLO stands for “Departmental Liaison Officer” and, as I understand it, it means the Minister’s office. By that email, the Minister’s office was provided with the relevant documents in relation to the Second Cancellation Decision. The attachments to the email comprised a document of five pages entitled “Submission for Decision” dated 16 September 2016. The attachments also comprised a Departmental Issues Paper, an unsigned statement of reasons and attachments A to Q.

235    Mr Dwyer was cross-examined in the Second Judicial Review Proceeding and a transcript of his cross-examination was put before me. I will refer to one passage in it later in these reasons.

236    In the Second Judicial Review Proceeding, the Second Cancellation Decision was quashed because this Court held that the Minister had committed a jurisdictional error because he had not engaged in an active intellectual process in reviewing the materials relevant to the decision. In reaching that conclusion, the Court made various findings about the events surrounding the Second Cancellation Decision. I do not understand the respondent to contend that I cannot rely on those findings in this proceeding.

237    The Court found on the balance of probabilities that the Minister did not consider the materials provided to him and relevant to the Second Cancellation Decision before Mr Dwyer advised Ms McGill, an adviser to the Minister, by telephone of the orders of the Court in the First Judicial Review Proceeding. This was after Mr Dwyer himself had been advised by telephone of the orders of the Court by a solicitor at the AGS (Mr Paul d’Assumpcao). The Court found on the balance of probabilities that the Minister spent no more than 15 minutes considering the materials relevant to the Second Cancellation Decision.

238    In September 2016, Mr d’Assumpcao was a solicitor employed by the AGS and the AGS acted for the respondent in the First Judicial Review Proceeding. On 15 September 2016, Mr d’Assumpcao engaged in correspondence by email with the solicitors for the applicant about the First Judicial Review Proceeding. The First Judicial Review Proceeding had been listed for hearing in this Court on 22 September 2016.

239    By email dated 15 September 2016 at 11.06 am, Mr d’Assumpcao advised the applicant’s solicitors that the AGS was instructed to concede the matter and he enclosed draft consent orders. He invited the applicant’s solicitors to sign the draft orders. The applicant’s solicitors responded shortly thereafter raising the prospect of costs being agreed and agreement being reached about the release of the applicant from detention. The applicant’s solicitors also inquired as to the respondent’s intention in terms of making a further decision. Mr d’Assumpcao responded by saying that he was proposing to ask the associate to advise him when the sealed orders are made so that “I might immediately advise the client”. Mr d’Assumpcao said that he was not in a position to say what further action may or may not be taken. The applicant’s solicitors responded by saying that they were instructed by the applicant to seek an order requiring the applicant’s immediate release from detention and the return of the applicant to Adelaide. By email at 4.33 pm, Mr d’Assumpcao responded in the following terms:

For reasons which follow, we think that the further order your client seeks is unnecessary.

First, if the Court makes orders in the terms which we propose, then at that point your client is no longer an ‘unlawful non-citizen’, as that phrase is to be understood in the context of the Migration Act 1958 (Cth). Also at that stage, there is no factual basis to reasonably suspect that your client is an unlawful non-citizen, and we are instructed that, in the ordinary course, your client would be released from detention and he would be returned to Adelaide.

Secondly, as things stand, once the Court sets aside the cancellation decision, there is nothing to prevent the Minister from making a further decision. That is, the Minister will be free to decide what further decision, if any, he wishes to make in relation to your client. Obviously, if the Minister decides to exercise his personal power to again cancel your client’s visa, then your client will be subject to immigration detention in that event.

Against that backdrop, our client does not agree to the additional order your client seeks as outlined below.

In the circumstances, we would be grateful if you could please signify your consent to the proposed orders, and for us to notify her Honour’s chambers in relation to the orders (as agreed) as soon as possible.

240    Mr d’Assumpcao’s statements in this email about the legal position are accurate and the applicant did not suggest otherwise. Nor did the applicant suggest that there was anything inappropriate about the respondent sending this email. However, he did make the point that there is nothing in this email to indicate to him that the respondent might adopt the course of not taking any steps to effect the applicant’s release between the making of the Court orders and a further cancellation decision.

241    On the morning of 16 September 2016, and following further discussions between the parties, the applicant gave instructions to his solicitors to sign the draft consent orders without amendment. That was done and the orders were provided to the Court. The orders provided to the Court were as follows:

We consent, for the purposes of r 39.11 of the Federal Court Rules 2011 (Cth), to the making of orders in accordance with the following terms:

1.    An order in the nature of certiorari quashing the decision made by the Minister on 3 June 2016 to cancel the applicant’s visa.

2.    An order that the Respondent pay the applicant’s costs to be taxed in default of agreement.

3.    The application otherwise be dismissed.

STATEMENT PURSUANT TO PRACTICE NOTE CM3

Certiorari is consented to upon the basis that there was an inadvertent error in the recording of the Applicant’s criminal record, as a result of which the Respondent accidentally took into account an error in the Applicant’s criminal record – namely that he had committed a certain offence: “aggravated assault causing harm against police – no weapon”. That is accepted in the present case to have been a jurisdictional error, applying Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at [4]–[8], [32]–[33] per Black CJ and at [50]–[52] and [61]–[64] per Sackville J. That is sufficient to ground certiorari without determination of any other issue.

242    The consent orders made by this Court at approximately 9.20 am (ACST) on 16 September 2016 were effectively in the same terms as the draft consent orders put forward by the parties, save and except that the statement pursuant to Practice Note CM3 was not included in the orders.

243    Mr Mitchell Travis Simmons swore an affidavit in this proceeding and the affidavit was tendered by the applicant. Mr Simmons was briefly cross-examined by the respondent. Mr Simmons is and has been the applicant’s solicitor since June 2016. He gave evidence about the correspondence with Mr d’Assumpcao on 15 September 2016 and events at Court on the morning of 16 September 2016. Under cross-examination, he agreed that he was in court on 16 September 2016 and that the following occurred:

Immediately prior to court, the applicant’s counsel provided [the respondent’s legal representatives] with a signed copy of the minute which we sent through yesterday. [The respondent’s legal representatives] signed that copy and provided it to the Court before her Honour came onto the bench.

When the matter was called on, her Honour noted that she had been provided with the consent orders. She asked the parties whether they wanted the orders made, which both Mr Ower and Mr O’Leary said that they did. Her Honour then signed the consent minutes.

244    Mr Simmons agreed that at the hearing on 16 September 2016, Mr Ower, counsel for the applicant, said something to the effect that he expected his client to be released forthwith and returned to Adelaide and that it would be unfortunate for the Minister to take advantage of the error and make another decision while the applicant was in detention. He agreed that her Honour said something to the effect that there were a number of circumstances at play and that that matter was between the parties. Mr Simmons agreed that as at 5.03 pm on the previous day, the applicant was seeking an additional order, namely his release from detention, and that the applicant was not prepared to sign the draft consent orders at that stage without having that additional order. He agreed that there is no record of the applicant consenting to the orders that were ultimately made by her Honour prior to the applicant’s legal representatives arriving at court on the morning of 16 September 2016. He agreed that the applicant was not consenting to the orders without the additional order being made.

245    I turn now to the events in the second period.

246    I have referred to the email from Mr Dwyer to Ms McGill on 16 September 2016 at 9.41 am (ACST) (with various other departmental officers copied in). To recapitulate, that email was preceded by the following:

(1)    The orders made by the Court in the First Judicial Review Proceeding made at 9.20 am (ACST);

(2)    A telephone call between Mr d’Assumpcao and Mr Dwyer wherein Mr Dwyer was advised that the Court had made the orders;

(3)    A telephone call between Mr Dwyer and Ms McGill wherein Ms McGill was advised that the Court had made the orders and that the Minister was free to make a second decision from that time;

(4)    A written report by Mr d’Assumpcao of the outcome of the Court proceedings earlier that morning, including advice that in Mr d’Assumpcao’s opinion, the orders made by the Court were effective upon being pronounced. Mr d’Assumpcao’s report was included in Mr Dwyer’s email to Ms McGill; and

(5)    The Minister’s Second Cancellation Decision. That was the view of the Court in the Second Judicial Review Proceeding.

Mr Dwyer’s email to Ms McGill referred to his call to her “a few minutes ago” and said that the Minister was “now able to consider the matter again and make a fresh decision”.

247    Meanwhile, the applicant is in detention at the YH IDC which is more than one hour’s drive from the Perth IDC. I referred earlier to the evidence (so far as it goes) of Ms Drucator (at [43]–[44]) and Mr Jones (at [47]–[49]) of their knowledge of events on 16 September 2016.

248    I also referred earlier to three documents produced by the respondent in response to the order for discovery I made on 21 August 2018 (at [230]). I need refer to only one of these documents because the other two seem to relate to events later in the day on 16 September 2016.

249    At 8.30 am (AWST) (10 am (ACST)), Mr Matthew Kane wrote an email to various other departmental officers with respect to consent orders having been made by the Federal Court, recancellation by the Minister and detention. Mr Kane is described in his email as the Senior Legal Officer (A/g) AAT and Removals Injunction Section, Legal Advice and Operational Support Branch in the Department and the recipients include “Yongah Hill Detention Operations”. Mr Dwyer and others were sent a copy of the email. The email is in the following terms:

Sensitive:Legal

Client: BURGESS Paul William

CID    21077103828

Dear All,

The Federal Court in Adelaide (Charlesworth J) has just made an order setting aside the Minister’s decision to cancel Mr Burgess’ visa (see below), however the Minister has immediately re-cancelled that BF – 155 Resident Return Visa. CCMD and Daniel, can you please immediately record the set aside and re-cancellation in all Departmental systems and advise us once this has been done?

YHIDC Mr Burgess cannot now be released from immigration detention as his visa has been re-cancelled.

DIAC LSAdmin Can you record the FC event in ICSE straight away please?

250    As I understand it, the applicant does not submit in the context of his claim for exemplary damages that there was anything unreasonable in Mr Kane saying that, in view of the Second Cancellation Decision, the applicant could not be released from immigration detention. However, he does challenge the contention (if it is made) that Mr Kane detained or redetained the applicant. It is not clear to me that that contention is advanced. In any event, it is a proposition which is difficult to sustain. There is no evidence of Mr Kane’s status as a detaining officer, he does give a direction to others to detain the applicant on his behalf, and Mr Jones’ evidence is that he detained the applicant a little over two hours later.

251    I infer from all the evidence in this case that the first time YH IDC, or any officer directly involved in the applicant’s detention, was informed of the orders made by the Court in the First Judicial Review Proceeding was at 10 am (ACST) on 16 September 2016 which was 40 minutes after the orders were made and 20 minutes after the Second Cancellation Decision was made by the Minister.

252    The claim for exemplary damages relates to the period of 20 minutes between the Court orders in the First Judicial Review Proceeding and the Second Cancellation Decision. It is instructive in terms of understanding how the applicant puts his argument to note the examples he gave of the circumstances in which a period of 20 minutes would not give rise to an award of exemplary damages. The applicant accepted that, depending on all the circumstances, it is unlikely he would have such a claim had Mr Dwyer, or a person with equivalent knowledge, sent an email to the YH IDC, but no-one had managed to check it or had he tried to telephone the detention centre, but could not get through. Another example the applicant gave was where staff at the detention centre were aware of the orders made by the Court, but there was a delay in completing the necessary paperwork.

253    The applicant submits that the situation in this case is quite different from those examples. For some days prior to the orders made by the Court, relevant officers of the Department were aware that the First Cancellation Decision was going to be quashed. They took no steps to arrange the release of the applicant at the appropriate time. They did not contact any person at the YH IDC. Instead they took steps to facilitate a decision by the Minister shortly after the Court orders they knew were going to be made. Upon the orders of the Court being made, they did not contact any person at the YH IDC, but rather, facilitated the making of the Second Cancellation Decision. In summary, the applicant submits that the relevant officers knowingly favoured administrative expediency over the applicant’s legal right to be released from detention. The applicant went so far as to suggest that the Minister had a policy to proceed in this way. In that respect, he referred to the decision of the Full Court of this Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) and the findings of the Court (at [122]) as to the existence of a policy within the Department in November 2016 (see also [103], [104] and [106]). There is no evidence of such a policy in this case and I am unable to see how it would be appropriate for me to find that there was such a policy in September 2016 based on what was said in Carrascalao.

254    The applicant submits that it was also relevant that prior to the Court orders being made on 16 September 2016, the applicant’s solicitors sought an order that he be released from detention upon the making of the orders and that the Minister’s solicitor said that such an order was not necessary.

255    The applicant relies heavily on the decision in Guo. In that case, Jagot J made an award of $35,000 for exemplary damages in relation to a period of detention of almost a day. Her Honour drew the inference (at [239]) that:

… it was decided by officers including the Director/Principal Legal Officer of the Framework and Training Section, that it was expedient to continue to unlawfully detain Mr Guo to enable the third notification letter to be prepared. This was conscious wrongdoing. It was in flagrant disregard of Mr Guo’s rights. It merits an award of exemplary damages.

256    Her Honour went on to say (at [240]):

… Its officers, I infer, knowingly and in conscious disregard of Mr Guo’s rights, chose expediency for the Department above the rule of law and the right of the individual to be imprisoned only with lawful justification. That choice was reprehensible. It justifies an award of damages which achieves the objects of both punishment and deterrence. It is of the utmost importance that those in positions of such power always choose the law over expediency; to make the choice of expediency when the liberty of an individual is at stake must not be permitted. The primacy of the rule of law over any such consideration must be safeguarded and vindicated by an award which achieves the dual objects of punishment and deterrence. Even in the case of a person such as Mr Guo, who garners little personal sympathy given his choices in life and patterns of anti-social and criminal conduct by which he squandered the opportunity to make a positive contribution to Australian society, the rule of law must remain paramount.

257    The applicant submits that similar findings to those in Guo should be made in this case.

258    For its part, the respondent’s submissions involved the following steps. It submits that no-one could be sure beforehand that the Court would make the orders in the draft consent orders and that s 196(4) and (5)(b) meant that the applicant could not be released from detention until the Court orders were made. Mr Dwyer would not have known that those subsections did not have the wider operation advanced by the respondent in this case.

259    Next, the respondent submits that there is a difference between what the Minister did or did not do, in terms of considering the material relating to the Second Cancellation decision before he made that decision, and Mr Dwyer’s state of mind. Mr Dwyer was cross-examined in the Second Judicial Review Proceeding on the statement he made in his email to Ms McGill at 9.41 am on 16 September 2016 that the Minister was “now able to consider the matter again and make a fresh decision”. The relevant passage is as follows:

Did you consider that the Minister had a restriction on considering the matter again prior to the making of consent orders?---That — that — I don’t — that’s what I’ve said, but what I intended was that the Minister shouldn’t make a fresh decision prior to the court setting aside the previous decision. And that, essentially, what I intended by that sentence was that the Minister — that the court has set aside the previous decision and the Minister can make a fresh decision. He might have, you know — I don’t know but he had the documentation from the previous evening and, you know, I have — I suspect that — well, I don’t know, but he may have read the documents on the previous evening or earlier that morning. I don’t know. But what I intended was that, essentially he shouldn’t make a decision until the court had set aside the earlier decision. And that’s what I intended by that sentence.

260    Mr Dwyer was described by the Court in the Second Judicial Review Proceeding as a “forthright witness who gave … reliable evidence in respect of those matters within his personal knowledge and actual recollection” (at [55]).

261    The respondent’s argument is, as I understand it, that the use of hindsight must be avoided and that Mr Dwyer’s state of knowledge was that the Minister could have considered the material overnight or very early in the morning of 16 September 2016. He would therefore have been in a position to make a second decision very quickly. The argument was that it was not unreasonable in those circumstances for Mr Dwyer to check with the Minister’s office before contacting, or arranging for contact to be made with, persons at the YH IDC.

262    A further strand of the respondent’s argument is that no-one was keeping the YH IDC “in the dark”, as was suggested by the applicant, and that is made plain by the evidence of Ms Drucator and of Mr Jones and by Mr Kane’s email at 10 am on 16 September 2016.

263    The difficulty with the respondent’s argument is that it is not supported by sufficient evidence. The timeline is quite unclear. For example, Mr Dwyer’s email at 9.41 am on 16 September 2016 seems to have been sent very shortly after the Minister made the Second Cancellation Decision and it referred to his conversation with Ms McGill “a few minutes ago”. The applicant made an application for discovery and tendered such documents as were made available to him (Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969). Mr Dwyer was not called to give evidence of his state of mind and the actions he took at various points of time with a view to supporting the steps in the argument now advanced by the respondent. It seems to me that I can draw the inferences advanced by the applicant with more confidence in the absence of Mr Dwyer, or indeed, any other witness on the respondent’s side who could give evidence of the relevant events (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308 per Kitto J).

264    I infer from the evidence that no arrangements were made prior to 16 September 2016 to facilitate the applicant’s release from detention on that day and no contact was made with the YH IDC immediately upon the making of the Court orders because he was not going to be released pending a second decision by the Minister. It was anticipated that such a decision would be made within a short period. The applicant had a right to be released. The case is similar to Guo in that the respondent intentionally, or at least recklessly, acted in disregard of the applicant’s rights. An award of exemplary damages is called for. The time period is very short and the case is not as serious as Guo. I consider an award of $15,000 is appropriate.

Conclusions

265    The applicant was unlawfully detained for a period of 615 days between 9 June 2016 and 12 February 2018, with the exception of a short period on 16 September 2016. However, he is not entitled to compensatory damages because I find that he could and would have been detained in any event. For the reasons I have given, I would not award what have been referred to as vindicatory damages. The applicant is entitled to nominal damages of $1.00. The applicant is entitled to exemplary damages of $15,000 by reason of the respondent’s actions on 16 September 2016.

266    On the proper construction of s 196(4) and (5)(b), the constitutional validity of those subsections does not arise.

267    I will hear the parties on the form of the orders and costs.

Associate:    

Dated:    20 May 2020