Federal Court of Australia
Azimitabar v Commonwealth of Australia [2023] FCA 760
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MURPHY J
1. INTRODUCTION
1 The applicant, Mostafa Azimitabar, is a 37-year-old citizen of Iran of Kurdish ethnicity who came to Australia, by boat, without a visa, arriving at Christmas Island in July 2013. He was detained initially on Christmas Island and in mid-August 2013 taken to Manus Island Regional Processing Centre in Papua New Guinea (PNG). In 2017, the PNG Ministry of Foreign Affairs and Immigration determined that he was owed protection obligations under the international Refugees Convention as a Kurdish-Iranian asylum seeker. In August 2019, having been detained in Manus Island for six years at that point, he was assessed by a psychiatrist as suffering from post-traumatic stress disorder (PTSD) and a major depressive episode. He applied to be transferred to Australia under the medical transfer provisions of the Act which were then in force, and on 11 November 2019 he was transferred to Australia for the purpose of receiving psychiatric assessment and treatment.
2 Following his arrival in Australia for such treatment, the applicant was detained for more than 14-months, from 11 November 2019 to 21 January 2021, first in the Mantra Bell City Hotel in Preston (Mantra Hotel), and then in the Park Hotel in Carlton (Park Hotel) (the Hotels). On 21 January 2021 the applicant was granted a bridging visa and was released from immigration detention into the community. Since then the applicant’s bridging visa has been extended and he has continued to live in the community.
3 The applicant contends that his detention in the Hotels was unlawful and claims damages in that regard. Broadly, he advances three arguments, which may be summarised as follows.
(a) First, the applicant contends that neither subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) (the Act), nor anything else in the Act, confers a power on the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to approve ‘another place’ in writing as a place of immigration detention. On his argument, any purported approval of the Hotels as places of immigration detention therefore had no effect; the Commonwealth detained him other than in “immigration detention”, as defined in the Act, which it had no authority to do, and his detention was therefore unlawful (the No Power to Approve ‘Another Place’ of Immigration Detention Contention).
(b) Second, in the alternative, the applicant contends that the conditions of his detention in both Hotels meant they were de facto “detention centres”, and the power to establish a “detention centre” is only found in s 273 of the Act. He argues that on the principle of statutory construction usually associated with Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 any power sourced in subpara (b)(v) of the definition of “immigration detention” cannot be used to establish a de facto detention centre. Again, on his argument the Commonwealth detained him other than in “immigration detention” which it had no authority to do, and his detention was therefore unlawful (the No Power to Approve a De Facto Detention Centre Contention).
(c) Third, the applicant contends that the Act does not authorise the Commonwealth to contract and spend public monies on creating and operating the Hotels as places of immigration detention; neither does the executive power under 61 of the Constitution, and nor does s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) and the regulations made thereunder. On his argument, the Commonwealth detained him in the Hotels despite it not having authority to contract and spend public monies to create and operate the Hotels as places of immigration detention, and his detention in the Hotels was therefore unlawful (the Unlawful Expenditure Contention).
4 For the reasons I now turn to explain I do not consider the applicant’s detention in the Hotels to have been unlawful, and his application must therefore be dismissed. First, I consider subpara (b)(v) of the definition of “immigration detention” impliedly confers power on the Minister to approve ‘another place’ in writing as a place of immigration detention, and I am satisfied the Hotels were so approved. Second, although the Hotels did in my view operate as de facto detention centres, I consider the power in subpara (b)(v) is not impliedly limited by the Anthony Hordern principle or otherwise such that it does not include a power to approve ‘another place’ of immigration detention that is, in effect, a detention centre. Third, I consider the lawfulness of the applicant’s detention in the Hotels does not depend on whether or not the Commonwealth’s contracting and expenditure on the Hotels as places of immigration detention was lawfully authorised. In any event, I consider the executive power under s 61 of the Constitution authorised the Commonwealth’s contracting and expenditure on the Hotels.
5 That should not, however, be understood as my approving the immigration detention the applicant was required to endure. I can only wonder at the lack of thought, indeed lack of care and humanity, in detaining a person with serious psychiatric and psychological problems in the Hotels for 14-months, primarily in a hotel room with a window that would only open 10cm, and for most of the time without access to an outdoor area to breathe fresh air or feel the sun on his face. For most of the time he was held in the Mantra Hotel he was restricted to his room, to the third floor of the hotel, and to the basement area when having meals. Anyone who endured even two weeks of hotel quarantine during the COVID-19 pandemic would surely understand how difficult that must have been. As a matter of ordinary human decency the applicant should not have been detained for such a period in those conditions, particularly when he was suffering from PTSD and a major depressive episode. But the decision in this case does not turn on the humanity of the applicant’s detention; it is about whether the Minister had power under the Act to approve the Hotels as places of immigration detention, and therefore to detain the applicant as he was. I consider the Minister had (and has) power to do so.
2. THE EVIDENCE
6 The parties jointly relied on a Statement of Agreed Facts dated 6 May 2022, and a further Statement of Agreed Facts dated 19 July 2022.
7 The applicant also relies on:
(a) his affidavit affirmed 29 April 2022 and the exhibits thereto, which was read in evidence. He was not cross-examined; and
(b) the report of Emeritus Professor Richard Harding dated 9 May 2022 (Harding Report). It is primarily relevant to loss or damage, but the applicant also relies on it in support of his argument that the Hotels were de facto detention centres. Initially, the Commonwealth contended that the entirety of the Harding Report was inadmissible on the basis of relevance, and in the alternative that the report should be given no weight because Professor Harding failed to explain any proper basis for the opinions he expressed. The Commonwealth did not, however, continue with those objections, at least in this phase of the hearing. The report was received into evidence subject to a document titled Agreed Facts dated 19 July 2022 (Harding Agreed Facts) which sets out some agreed limitations in the basis for Professor Harding's opinions. Professor Harding was not cross examined.
8 The Commonwealth relies on an affidavit of Gerard Watts, Superintendent of Detention Management and Planning, in the Australian Border Force (ABF), an agency within the portfolio of the Department of Home Affairs, affirmed 8 June 2022 and the exhibits thereto. Mr Watts was cross-examined.
3. THE FACTS
9 I have drawn this account largely from the two Statements of Agreed Facts, and the evidence of the applicant and Mr Watts.
10 As I have said, the applicant is a 37-year-old citizen of Iran, of Kurdish ethnicity. He left Iran and arrived at Christmas Island, by boat, without a visa, in July 2013. At all material times Christmas Island was defined in s 5(1) of the Act to be an “excised offshore place”. The applicant was therefore an “unauthorised maritime arrival” and thus an “unlawful non-citizen” under the Act.
11 The applicant was initially detained on Christmas Island. In mid-August 2013 he was taken, I infer, by officers of the Department, to the Regional Processing Centre on Manus Island, PNG. Except for a short period of detention in Port Moresby, he was detained in Manus Island from mid-August 2013 to 10 November 2019.
12 The PNG Ministry of Foreign Affairs and Immigration determined on 16 February 2017 that the applicant was owed protection obligations under, as I infer, the 1951 Convention relating to the Status of Refugees (Refugees Convention) as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Protocol).
13 In August 2019 a psychiatrist diagnosed the applicant as suffering from PTSD and a major depressive episode and recommended that he be brought to Australia to receive psychiatric and psychological treatment. The applicant applied to the Department for transfer to Australia on medical grounds which was accepted. On 11 November 2019 the applicant was brought to Australia for the purpose of psychiatric assessment or treatment under ss 198C and 198B(4)(a) of the Act as it then was.
14 Thereafter, from 11 November 2019 to 21 January 2021, the applicant was detained in Australia by, or on behalf of, the Commonwealth. From 11 November 2019 to 16 December 2020 he was detained at the Mantra Hotel, and from 17 December 2020 until 21 January 2021 at the Park Hotel. As I have said, the applicant was granted a bridging visa and released from immigration detention on 21 January 2021.
3.1 Approval of the Mantra Hotel and the Park Hotel as ‘another place’ for immigration detention
15 Throughout the period the applicant was detained in the Hotels delegates of the Minister issued written instruments approving (or at least, purporting to approve) the Mantra Hotel and later the Park Hotel as places of immigration detention. The following relevant written instruments are in evidence:
(a) a written instrument dated 20 March 2019 by which a delegate of the Secretary of the Department, acting under powers as an “officer”, for the purpose of the definition of “immigration detention”, purported to approve the Mantra Hotel as a place of immigration detention, and revoke an earlier instrument of approval: Migration (APOD VIC 19/043: Approval of Places as Places of Detention) Instrument 2019;
(b) a written instrument dated 2 February 2020 by which a delegate of the Minister for the purposes of subpara (b)(v) of the definition of “immigration detention” in subs 5(1) of the Act purported to approve the Mantra Hotel as a place of immigration detention, and repeal the 20 March 2019 instrument: Migration (Approval of Places of Immigration Detention) Instrument 2020/020;
(c) a written instrument dated 12 August 2020 by which a delegate of the Minister for the purposes of subpara (b)(v) of the definition of “immigration detention” in subs 5(1) of the Act purported to approve the Mantra Hotel as a place of immigration detention, and repeal the 2 February 2020 instrument: Migration (Approval of Places of Immigration Detention) Instrument 2020/030;
(d) a written instrument dated 11 December 2020 by which Mr Watts, a delegate of the Minister for the purposes of subpara (b)(v) of the definition of “immigration detention” in subs 5(1) of the Act purported to approve the Mantra Hotel and “Hotel on Swanston” at 701 Swanson Street, Carlton as places of immigration detention, and repeal the 12 August 2020 instrument: Migration (Approval of Places of Immigration Detention) Instrument 2020/036. The Hotel on Swanston was subsequently renamed the Park Hotel; and
(e) a written instrument dated 21 December 2020 by which Mr Watts as a delegate of the Minister for the purposes of subpara (b)(v) of the definition of “immigration detention” in subs 5(1) of the Act purported to approve the Mantra Hotel and the Park Hotel, as places of immigration detention, and repeal the 11 December 2020 instrument: Migration (Approval of Places of Immigration Detention) Instrument 2020/038.
3.2 The purpose for establishing the Hotels as places of detention
16 The evidence shows that the Department contracted with Serco Australia Pty Ltd to operate the Hotels as immigration detention facilities, and indicates that the Department’s central purpose in approving the Hotels as places of immigration detention was so as to accommodate medical transferees to Australia from Nauru and Manus Island.
17 On 18 July 2019 Serco sent an options paper titled Facility Operating Model: Melbourne Alternative Places of Detention (MAPOD) Solution to the ABF. In the paper Serco said that there was a need for an Alternative Place of Detention (APOD) in Melbourne “due to the significant increase in the number of medical and non-medical transfers of refugees from Australia’s Offshore Processing Centre[s] on Nauru and Manus Island to the Australian mainland since July 2018”, which it called the “MAPOD Solution”. Serco recommended that the MAPOD Solution be established at the Mantra Hotel.
18 On 6 August 2019 Serco sent an Additional Service Request to the Department. Serco sought approval of costs associated with providing security at APODs for all medical transferees from Nauru. In the request Serco recommended the Mantra Hotel be established as an APOD based on Serco having been promised exclusive access to two wings of the premises, initially on one floor but with the option to move across multiple levels. Band 1 of Serco’s proposed pricing involved accommodating 38 to 57 detainees on one floor of the Mantra Hotel, and Band 2 involved accommodating 78 to 117 detainees on two floors. Both pricing bands involved “24/7-hour coverage to maintain security and emergency management”, with 25 Serco employees required for Band 1 and 43 Serco employees for Band 2.
19 The ABF recognised that one of the problems with detaining people at the Mantra Hotel was a lack of access to outdoor areas. On 6 August 2019 the Acting Superintendent Detention Operations, Victoria/Tasmania, ABF sent an email to the National Transport and Escort Logistics Manager of Serco stating “[a]s we discussed, in the longer term we need to see some improvements and solutions for: access to outdoor areas (excursions/transport options)”. On 8 August 2019 the Acting Superintendent Detention Operations sent an email to another officer in which he said the following:
The APOD we have established at the Mantra in Bell Street, Preston (for the offshore cohort) has a few limitations. Most notably, there is no access to outdoor areas.
As such, we will receive extreme criticism from the Ombudsman (who has already visited the APOD this week) and other bodies. Aside from the scrutiny, we need to ensure the health and well-being of those individuals accommodated there is appropriately catered for - it’s not ideal at all that they do not have free access to an outdoor space.
As such, I am going to propose we run a regular shuttle bus between the APOD and MITA for anyone who wants to use the soccer pitch/gym, potentially attend classes, eat lunch, etc, with the primary purpose to provide regular and ongoing access to outdoor areas.
20 Serco estimated the cost of its services per quarter to operate the Mantra Hotel at approximately $4.37 million for Band 1, and approximately $8.3 million for Band 2. On 18 October 2019, the ABF’s Contract Administrator approved $8.3 million of expenditure for the costs associated with the MAPOD Solution for the period of 25 July 2019 to 31 October 2019.
21 On 19 November 2020 Serco sent an options paper to the ABF titled Replacement of the Current Location of the Melbourne Alternative Places of Detention. The paper stated that Serco had been notified by the operator of the Mantra Hotel that it would not extend the agreement for the hotel to be used to hold immigration detainees beyond its expiry on 31 December 2020. The paper also stated that Serco had “gone to the market to identify a suitable property to accommodate the detainee cohort within the Melbourne region” and that it recommended the “Rydges on Swanston” hotel at 701 Swanson Street, Carlton (later renamed the Park Hotel) as the most operationally suitable location for a replacement Melbourne APOD. The paper indicated that there were approximately 65 detainees who would require to be transferred from the Mantra Hotel to the new facility.
22 On 10 December 2020 Serco sent an options paper to the ABF titled Facility Operating Model, Melbourne Alternative Places of Detention 2 (MAPOD2) Solution. The paper stated that Serco and the ABF had assessed that “[d]ue to the ever-growing increase in detainee numbers and noting the limitations of existing detention infrastructure… Serco should establish a further single APOD for accommodating detainees of this cohort type”. It identified the relevant cohort of persons as detainees “within the Melbourne Region as well as the continuing ongoing high numbers of medical transferees from Australia’s Offshore Processing Centre’s on Nauru and Manus since July 2018.” The paper described the proposed new facility as Melbourne Alternative Place of Detention Two, or MAPOD2. Serco recommended that it be established at the (renamed) Park Hotel.
23 The proposal for the use of the Park Hotel as a place of immigration detention involved three payment bands based on the number of floors which were to be used. Each of Bands 1, 2 and 3 involved “24/7-hour coverage to maintain security and emergency management”. Band 1 (accommodation on one level) involved 59 Serco employees, Band 2 (accommodation on two levels) involved 68 Serco employees and Band 3 (accommodation on three levels) involved 83 Serco employees. On 24 February 2021 Serco estimated the costs of its services at MAPOD2 for each quarter at approximately $10.6 million for Band 1, approximately $12.4 million for Band 2, and approximately $14.9 million for Band 3.
24 On 15 December 2020 the Department approved, in principle, the proposed Operating Model for MAPOD2, including use of the Park Hotel. On 17 December 2020 the applicant was transferred from the Mantra Hotel to the Park Hotel.
25 Mr Watts testified, and I accept, that the Park Hotel was primarily used as a place of detention for “transitory persons” (as defined in the Act) brought to Australia from a regional processing country, for example to receive medical treatment, or accompanying a family member who was receiving medical treatment, and that it also held some people who had been refused immigration clearance. Mr Watts was not in his present role at the time the Mantra Hotel was established, and his evidence in relation to the cohort of detainees held there was somewhat uncertain. But having regard to the documentary evidence it is sufficiently clear that the cohort of detainees in the Mantra Hotel was also primarily “transitory persons” brought to Australia from a regional processing country for medical treatment, or accompanying a family member.
26 I also accept his evidence that, consistently with the Act, such transitory persons were required to return to a regional processing country when they no longer needed to remain for the temporary purpose for which they were brought to Australia. Mr Watts said that transitory persons do not have a migration pathway in Australia and are precluded from applying for a visa in accordance with ss 46A and 48B of the Act.
27 Mr Watts said that such transitory persons are encouraged to finalise their medical treatment so they can return to Nauru or PNG, continue on a pathway to be resettled in the third country, or return to their home country, or another country in which they have right of entry. He said it was not appropriate to accommodate this cohort of transitory persons within an Immigration Detention Centre (IDC) because of the different risk profile of the cohort of transitory persons and the difficulty of accommodating that cohort in an IDC while keeping it separate from the existing IDC population. He also said that IDCs generally accommodate higher risk detainees and it was preferable for persons in the transitory persons’ cohort, who generally had a lower risk profile, to be detained separately from the IDC population.
28 I do not accept Mr Watts’ suggestion that the persons brought to Australia from PNG or Nauru for medical treatment were brought here for a “temporary purpose”. At that time it was abundantly clear that:
(a) for many medical transferees, the medical treatment they needed would take a substantial period, and for those with long-term psychiatric or psychological difficulties it could be indefinite;
(b) many medical transferees would be quite reluctant to return Nauru or PNG given the lives and conditions they had experienced there;
(c) finding countries willing to resettle such detainees was very difficult, and when pathways to do so opened up it usually took a long time; and
(d) those detainees who had fled from persecution in their home countries were likely to refuse to return there, and the Federal government had a policy of not returning people to a country if it would mean Australia was in breach of its international non-refoulement obligations.
In combination, those things meant that it was unlikely that medical transferees, like the applicant, would be detained in Australia only for a short time. I do not accept that bringing a person to Australia for psychiatric assessment and treatment and detaining them somewhere for more than 14 months can be properly described as being “temporary” or “short term”.
29 Mr Watts said that the Park Hotel, which was established in around December 2020, was also set up to provide additional “operational quarantine capacity” for use during the COVID-19 pandemic, and in particular ensuring compliance with the Communicable Diseases Network Australia “National Guidelines for the Prevention, Control and Public Health Management of COVID-19 Outbreaks in Correctional and Detention Facilities in Australia”. The phrase “operational quarantine capacity” refers to the available space in which to place detainees who are entering detention from outside a detention facility (including from prison, another place of detention or on return from trips outside of the detention facility).
30 I accept his evidence that the COVID-19 pandemic and resultant international border closures and limited commercial flights constrained the ability of the ABF to remove detainees from Australia from March 2020 onwards, and that at that time inflows of detainees from prison into detention centres placed significant capacity pressures on the network of immigration detention facilities. While I accept those things, to the extent that the Commonwealth suggested that as an explanation for why the applicant and other detainees were held in the Hotels for the lengthy periods they were, I am not persuaded that was the reason why the applicant and other similarly situated detainees were not removed from Australia and were instead detained here for lengthy periods. I note that counsel for the Commonwealth walked back that suggestion when I questioned it.
31 I broadly accept the balance of Mr Watts’ evidence, and where I do not I indicate so.
3.3 The hierarchy of immigration detention facilities
32 He said that there is a range of placement options available to the Commonwealth for dealing with unlawful non-citizens in Australia, including: (i) detaining them in an Immigration Detention Facility (IDF); (ii) making them lawful non-citizens through the grant of a visa; or (iii) arranging for them to be placed in the community through the residence determination provisions in the Act.
33 In relation to the hierarchy of IDFs he said that there are three broad types of IDF in use:
(a) IDCs, which are centres established under s 273 of the Act, offer the highest level of general security. They are generally used to provide secure detention for detainees who are a higher flight or security risk than detainees placed in other facilities. There are four IDCs, located at North West Point on Christmas Island; Yongah Hill in Western Australia; Perth in Western Australia; and Villawood in New South Wales.
(b) Immigration Transit Accommodation (ITAs), which are “other places” approved by the Minister by written instrument as a place of immigration detention under subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Act. They are dedicated transit facilities in detention precincts which provide accommodation for lower security and low flight-risk persons in detention. They are generally used to detain people who: (a) have not been immigration cleared on arrival at an Australian airport; (b) are ready to be removed and cannot be removed directly from the community; (c) are awaiting initial health, character and security checks before transitioning into the community; or (d) are required to be held in detention for a short period for other reasons. There are three ITAs, located in Brisbane, Melbourne and Adelaide.
(c) APODs which are also “other places” approved by the Minister by written instrument as a place of immigration detention under subpara (b)(v) of the definition of “immigration detention”. APODs are intended to be used more flexibly as part of the network of IDFs, and to be operated on an “as needs” basis. Facilities can be and remain designated as APODs for as long as there is a perceived operational need, which may be an unknown or lengthy period of time. Facilities are removed from designation as an APOD by a new written instrument once their need is at an end. At any given time, there may be more than 100 approved APODs around Australia.
34 He also said that detainees are intended to be placed within the Department’s network of IDFs through a risk-based approach, in which the risk assessment made in relation to the detainee and the risk rating of the available facilities are matched as far as practicable.
35 Mr Watts testified that facilities may be designated as APODs for a short period of time, for example when a person needs to attend a hospital; treatment can be administered relatively quickly and there is no further need for a particular hospital to remain listed on the written instrument. Other facilities may be designated as APODs for inherently uncertain periods of time, for example, where a facility is designated for end-of-life care. Sometimes operational needs result in premises remaining designated as an APOD for a longer period of time; for example, where a hospital is used frequently or where circumstances beyond the control of the Department mean that detention in the APOD is for a longer period than initially thought to be likely. In designating places as APODs the Department takes into account overall capacity in the network of IDFs and the need to keep detainees of different security levels separated, which can mean that detainees are accommodated outside IDCs.
36 APODs are generally intended for use as a short-term detention solution at locations where there are no other suitable immigration detention facilities. This includes situations where a person in immigration detention needs to reside in a place for a specific purpose, or where a person will not reside in the place, but might spend part of their day there and where it is not appropriate or possible for them to be accompanied at all times. For example, Mr Watts referred to:
(a) detainees with a critical need, such as medical treatment. Where a detainee suffers a serious medical condition that requires them to be hospitalised for overnight or longer, the hospital may be designated as an APOD. Hospitals which are regularly used to treat detainees are approved as APODs on a longer term basis;
(b) for minors while attending school during the day; and
(c) for detainees who have been detained at a location where it is not practicable to place the person in another form of IDF. For example, a hotel may be temporarily approved as an APOD if a person has been refused immigration clearance at an airport in a location where there is no IDC and it is anticipated that they will be removed from Australia the following day.
37 While I accept what Mr Watts said about the Department’s intention behind the approval of places like the Hotels as APODs, I do not consider that, in practice, the Department treated the Hotels as places for “temporary” detention. The evidence tends to show that they were used as places of long-term detention. Of course, that depends upon what is meant by long-term but it is not apt to describe detention for 14-months, with no information being provided to the detainee as to when it might end as “temporary” or “short-term” within the ordinarily meaning of those words. The examples Mr Watts provided are a world away from the detention experienced by the applicant (and I infer other medical transferees like him) who were detained in the Hotels for more than a year.
38 Mr Watts also said that many of the services which would be available in an IDC, including healthcare and recreational services, are not available on site at the APOD, and that to access such services persons detained in APODs are generally required to be escorted to an IDC. Mr Watts put that difference down to “the nature of an APOD”, by which I infer he meant the temporary or short-term nature of detention in an APOD. That was not, however, the reality of the use to which the Commonwealth put the Hotels, which cannot properly be described as being “temporary” or “short-term”.
3.4 The process of establishing an APOD
39 At the time of the hearing Mr Watts was the officer ordinarily responsible for exercising the power, delegated to him by the Minister, to approve places as a place of “immigration detention” within the meaning of subpara (b)(v) of the definition of “immigration detention” in the Act.
40 He said that the first consideration for establishing an APOD is necessity, and that such a decision is always based on operational need. Operational need is considered on a case-by-case basis, in consultation with the ABF Detention Superintendent, being the lead Departmental officer in each IDF. He said that an APOD will be established out of necessity where the appropriate care and safety of a detainee cannot be provided within an IDC (for example, in a case where hospitalisation is required). He also said that an APOD may be established where there is no capacity to detain a person or a cohort within existing IDCs. Once an APOD is deemed necessary, the various APOD options available are considered in order to determine which would be most appropriate.
41 Before a particular APOD is approved, it must undergo a site risk assessment, conducted by Serco, in an effort to ensure that it provides a safe and secure environment for detainees and security and service provider staff. This process includes an assessment of key physical risks including but not limited to building layout and structure, number of entrances and exits, existing security infrastructure and external arrangements, including street location, parking availability, lighting, location (adjacent areas, landmarks) and vegetation. Once the risk assessment has been completed, the relevant Detention Superintendent will then make a recommendation to Mr Watts about whether the APOD is fit for purpose and should be approved.
42 The relevant considerations include factors such as the purpose for which the APOD is to be established, the necessity for the APOD, and the safety and security of the APOD.
43 Mr Watts approves (or considers the approval of) an APOD at least once or twice per month, and that he regularly reviews the existing approvals to revoke approvals when they are no longer required. He also said that Facility Superintendents regularly review APODs and recommend the removal of APODs which are no longer in use. Mr Watts is the person primarily responsible for removing APODs from the list of approved places for immigration detention, and the process for removal of premises from the list of APODs is similar to the process of approval.
3.5 The conditions in the Mantra Hotel
44 The applicant gave unchallenged evidence as to the conditions of his detention in the Hotels, which I accept. It is necessary to set out this evidence in some detail because it grounds the applicant’s claim that the Hotels operated as de facto detention centres.
45 The applicant said that on arrival in Australia from PNG on or around 11 November 2019 he was taken to the Mantra Hotel. He was then taken to a room on the third floor of the hotel by two Serco officers. For the first month of his detention at the Hotel he shared a room on the third floor of the hotel with two other detainees, in a room with three single beds in it. After around one month, one of the other detainees moved into a different room. The applicant continued to share the room with the remaining detainee for approximately eight months but when that detainee was transferred elsewhere he stayed in the same room, by himself, until he was transferred to the Park Hotel on 17 December 2020.
46 The applicant was not permitted to leave the third floor of the hotel, except when travelling by lift to the basement of the hotel, for lunch and dinner, during which time he was escorted by Serco officers. At that time neither the third floor of the hotel nor the basement had any open-air access.
47 The applicant did, however, have the option of requesting to be taken to the Melbourne Immigration Transit Accommodation (MITA) detention facility, where he could go outdoors. In order to go to MITA he was required to write his name on a list if he wished to be taken there the following day. Only approximately 10 detainees could be escorted to MITA each day, and if the list was full he could not go there.
48 If he was able to be taken to MITA the visits lasted between one and two hours. A number of activities were available there, but the applicant did not usually participate in the activities. He went to MITA to get some fresh air and sunlight because those things were otherwise denied to him. Unfortunately, visits to MITA were terminated on or around 24 March 2020 due to the COVID-19 pandemic. From that point onwards until September 2020 he had no outdoor access and thus no access to fresh air, or to sunlight other than through a window.
49 From September 2020, detainees at the Mantra Hotel were permitted access to a small outdoor area, which had half a basketball court. Departmental documents indicate that although the half-basketball court was made available it was little used because detainees were depressed, and other records suggest that usage was limited to 40 minutes per day per detainee.
50 The room which the applicant occupied at the Mantra Hotel had basic amenities including:
(a) for the first month three single beds (with approximately 1 metre between each bed) and thereafter two single beds;
(b) a small couch;
(c) a fridge;
(d) a microwave;
(e) a television;
(f) a toilet;
(g) a shower; and
(h) an air-conditioning unit.
51 When the air-conditioner was turned on his room became very dusty, and when it was turned off it was hard for the applicant to breathe, and he coughed more than usual. Only one of the windows could be opened, and only to approximately 10 cm. As a result the applicant found it very difficult to get fresh air in the room. For the first few months of his detention at the Hotel that window could not be opened unless a Serco officer unlocked it, but after that period the Serco officers stopped locking the window.
52 The applicant approached Serco officers many times complaining about the lack of fresh air. He also tweeted regularly about the conditions of detention and the lack of access to the open air including by stating:
(a) on 10 December 2019, “[t]here’s not any outdoor space for breathing for the refugees have been transferred to Australia through the Medevac bill. We have been locked up in hotels by the Australian government. No trees, no breath.”;
(b) on 23 December 2019, “[t]here’s no outdoor space for breathing here. We need help please…”;
(c) on 22 January 2020, “it’s not easy to spend 19 hours a day in a room. The officers checked the rooms several times a day. They have taken the sky away from us”;
(d) on 17 April 2020, “…our bodies are getting weaker day by day. There’s not a place for walking here…”;
(e) on 17 May 2020, “[r]efugees who are locked up in the Mantra Hotel (prison) are deprived of sunlight. There’s not an outdoor space for breathing…”;
(f) on 11 September 2020, “The Australian government are diminishing our lives gradually; minimising our existence with each passing day. Our life is the size of a room, a narrow corridor and a kitchen, with a small window to the world and life outside, that fits in the palm of our hands #NoPhoneNoLife”; and
(g) on 11 November 2020, on the first anniversary of the commencement of his detention at the Mantra Hotel, “[l]ast year on 11th of Nov I was transferred to Australia for medical help and since then I have been locked up in Mantra prison. There’s no any proper medication here. They are torturing us. We cannot breathe. They are harassing us. They are demonising refugees.”
3.5.1 Other facilities at the Mantra Hotel
53 There was a smoking room set up in one of the hotel rooms on the third floor, near to the applicant’s room. The applicant suffers from asthma and sometimes the smoke made it hard for him to breathe, and he suffered from night-time coughing fits. After about three or four months the smoking room was moved to the basement.
54 There was a space in the basement with gym equipment for detainees to use. There was a common area on the third floor which had chairs, laundry facilities, a small fridge, a pool table, television, tables and a ping-pong table. There were always Serco officers in the common area.
3.5.2 Disruption due to COVID-19
55 From on or around 24 March 2020, because of the COVID-19 pandemic:
(a) detainees were no longer permitted to go to MITA for recreational visits or to get fresh air. Visiting MITA had been the applicant’s only opportunity to access fresh air and sunlight, and once those visits stopped the applicant found the conditions of his detention much more difficult;
(b) communal lunch and dinner in the basement was ceased and Serco officers delivered lunch and dinner in disposable packaging twice a day to the applicant’s room; and
(c) until December 2020 the applicant was not permitted to have visitors at the hotel. When visits recommenced in December 2020 the visitors were separated from detainees by a glass partition.
3.5.3 The security arrangements
56 The applicant’s evidence shows that Departmental concerns in relation to security and minimising the risk of escape were central considerations. Amongst other things:
(a) each day, approximately 30 Serco officers walked up and down the corridor of the third floor of the Mantra Hotel, wearing Serco uniforms and carrying radio equipment and handcuffs;
(b) each day at approximately 6:00 or 6:30 am and between 9:00 pm and 10:00 pm at least one Serco officer (but sometimes as many as three) would come into the applicant’s room and do a headcount to check that he and his roommate(s) were there. Serco required detainees to be in their rooms when the headcount took place. If he was asleep the Serco officers would either use a torch or turn on the light to check that he was in his bed. At other times during the day Serco officers would come into his room unannounced for different reasons, sometimes up to 10 times in a day;
(c) when the applicant went from the third floor of the Hotel to the basement to eat lunch or dinner he was always escorted in the lift by approximately two Serco officers. Approximately 10 Serco officers would be in the basement during lunch and dinner to supervise the detainees, one at the back of the basement, two in separate corners and the other officers patrolling the area;
(d) the routine imposed for travelling to and from MITA was that:
(i) before the applicant was allowed to travel to MITA he was first required to undergo a “pat-search” by Serco officers in a dedicated “pat-search room” on the third floor. The pat-search involved him first being scanned with a metal detector and then patted or squeezed on the inside and outside of his arms, his chest, the side of his body, and the inside and outside of his legs. Sometimes he was required to touch the wall and to open his legs wide before being pat-searched. Usually, multiple Serco officers carried out these pat-searches; one performing the search, one keeping a written record of his behaviour during the search; another filming the search; and another sitting behind the desk in the pat-search room. The applicant found the pat-searches distressing.
(ii) detainees were taken to MITA in a minibus or a seven-seater car and were always escorted by Serco officers. Usually four or five officers would accompany them if they were taken by minibus, and three officers if they were taken by car. On arrival at MITA they passed through one gate and then a Serco officer would approach the car to confirm how many detainees and how many Serco officers were inside. Another Serco officer would use a mirror to check underneath the car; and
(iii) before being permitted to return to the Mantra Hotel, the applicant again underwent a pat-search, this time at MITA. Some of the Serco officers who performed pat-searches on him at MITA also worked at the high-risk compound and were “very physical” in their approach to the task of pat-searching;
(e) the routine imposed in relation to visitors was that:
(i) if the applicant was meeting a visitor he was escorted to the basement by approximately two Serco officers. The visits were supervised by Serco officers and the applicant was not allowed to have any physical interaction with the visitor. There were four cameras set up in the basement of the Mantra Hotel and the visits were filmed. If a visitor gave him food such as biscuits or chips when they visited him, he had to eat the food during the visit. That was because he was not permitted to take anything from the visit back to his room on the third floor, even if the food was in a sealed package; and
(ii) the applicant was required to undergo a pat-search both before and after seeing a visitor. If he saw a second visitor on the same day he was required to undergo another pat-search before seeing that visitor, and was pat-searched again after that meeting. If he went to MITA in the morning and in the afternoon, and he saw visitors in between that at the hotel, he might undergo eight pat-searches in a day.
3.6 The conditions in the Park Hotel
57 On the morning of 17 December 2020 the applicant was transferred to the Park Hotel along with other detainees from the Mantra Hotel. He was allocated a room on the fourth floor, to be shared with another detainee. The room the applicant was allocated had the following basic amenities:
(a) two double or queen size beds;
(b) a lamp;
(c) a small table
(d) two chairs;
(e) a television;
(f) a toilet;
(g) a shower; and
(h) air conditioning.
58 The two beds in the room were very close together, with only about half a metre between them. The room did not have a window which could be opened which meant that it was impossible to get fresh air into the room, and the air conditioning did not work well. This added to the applicant’s breathing difficulties.
59 There was glass on one wall of the room, but the applicant had no view of anything except a cement wall. At some point in December 2020 the windows on most of the rooms on the fourth floor of the hotel were tinted, which meant that although detainees could look out onto the street from some of the rooms, supporters outside could not see the detainees. A Serco document titled “SIS Site Risk Assessment” dated 3 December 2020 indicates that the windows were mirror tinted by design so as to ensure that their supporters and protestors could not see the detainees. I find it hard to see a reasonable rationale for cutting off the detainees from sight of people from whom they could have drawn some support. The conditions of their detention were hard enough without further cutting them off from the outside world.
60 The applicant again complained about the lack of fresh air in his room and his difficulty breathing, and was merely told “you’ll get used to it”. He continued to tweet including by saying:
(a) on 17 December 2020, “I can’t breathe. The living conditions is not better than the Mantra prison. They lied to us. We cannot wave at each other like before. In front of most of the windows there is a wall. It makes us uncomfortable.”;
(b) later on 17 December 2020, “[t]his is the room that 2 refugees should share with each other. No fresh air, it’s just a glass & outside a cement wall which hurt us. People cannot see us any more. The glasses are tinted. This government has attempted to weaken our resistance. Shame on this government.”
3.6.1 Other facilities
61 The other facilities at the Park Hotel included the following:
(a) detainees were permitted to use an open air area on the roof of the hotel which was small, and much of which was occupied by a swimming pool which detainees were not permitted to use. There was a disused bar in that area which detainees could sit at. But because this was the only area in the hotel in which detainees could smoke, the air was usually filled with smoke. The applicant would sometimes go to this area during the day and walk around the edge of the swimming pool;
(b) approximately one third of the fourth floor of the hotel was used as a gym area by detainees; and
(c) there was an area on the first floor of the hotel where visitors could meet with detainees. Visitors had to apply for the right to visit, and approval for visits took approximately five business days. Because of COVID-19, the applicant was not permitted to be in the same physical space as visitors, and any visits had to take place behind glass. He was not able to shake hands or have any physical contact with visitors.
3.6.2 The security arrangements
62 The applicant’s evidence indicates that Departmental concerns regarding security and minimising the risk of escape were also the central considerations in the operation of the Park Hotel. For example:
(a) there were more Serco officers patrolling the corridor of the fourth floor at the hotel than there were at the Mantra Hotel. At any given time the applicant estimates there were approximately 50 Serco officers on the fourth floor, equipped with radios and, I infer, handcuffs;
(b) each day at approximately 6:30am and approximately 9:00pm Serco officers would come into the applicant's room and do a headcount to check that he and his roommate were in the room. The Serco officers required detainees to be in their rooms when the headcount took place. If it was dark the Serco officers would either use a torch or turn on the light to check that the detainees were in their beds;
(c) at other random times during the day Serco officers would also enter detainees’ rooms to check up on them and monitor what they were doing. During some days of his detention at the Park Hotel the applicant counted 10 separate occasions on which Serco officers entered his room;
(d) the regime of mandatory pat-searches at the Park Hotel was similar to the Mantra Hotel. The applicant was pat-searched before going to MITA, and before returning from MITA. He estimates he was pat-searched over 400 times whilst detained at the two Hotels; and
(e) he was escorted by Serco officers to the restaurant on the ground floor of the Park Hotel to eat lunch and dinner at set times each day (between approximately 12:00pm and 2:00pm for lunch and between 5:00pm and 7:00pm for dinner).
63 Serco documents show the centrality of security and minimising the risk of escape in the operations of the Hotels, including:
(a) the use of static-posted Serco guards in foyers, and elevators, and emergency exit doors, and roving Serco officers for the purpose of escorting detainees during internal movements, and supervising visits and other activities;
(b) managing telephone calls at the Hotels, including keeping records of telephone contact with lawyers, the Ombudsman and Australian Human Rights Commission;
(c) monitoring internet traffic and imposing restrictions such as prohibiting use of gambling websites, creating or posting to personal blogs and creating personal webpages;
(d) searching detainees’ rooms and daily (and at the Park Hotel, twice weekly) fabric checks of occupied rooms and common areas;
(e) perimeter checks of the facility, at least twice daily (or four times daily at the Park Hotel);
(f) entry and exit screening checks, including searching for “contraband” and pat-searches, recorded on body or handheld cameras. The applicant underwent pat-searches throughout the course of a day;
(g) controlling the room keys of detainees, with all locks forming part of a “master key schedule”;
(h) maintaining intelligence collection, analysis and reporting, for the purposes of development ongoing review of the risks at the facility as well as detainee Security Risk Assessments;
(i) confiscation of some items of personal property after having seen a visitor; and
(j) twice daily head counts of the detainees.
4. LEGISLATIVE FRAMEWORK AND PRINCIPLES
64 At all material times, from the applicant’s medical transfer to Australia in November 2019 until he was granted a bridging visa on 21 January 2021, he did not hold a visa to enter or remain in Australia. He was therefore an “unlawful non-citizen” under s 14 of the Act. It is common ground that throughout that period it was known or believed by the officers detaining him that he was an unlawful non-citizen.
65 At all material times s 189(1) of the Act provided:
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.
66 As explained in Commonwealth of Australia v AJL20 [2021] HCA 21; 273 CLR 43 at [16] (Kiefel CJ, Gageler, Keane and Steward JJ), detention under s 189(1) has two distinct and sequential operations.
First, it authorises and requires a person in the migration zone to be taken into immigration detention by an officer who knows or reasonably suspects that the person is an unlawful non-citizen. Secondly, it authorises and requires the person, having been taken into immigration detention, to be kept in immigration detention by or at the direction of an officer who knows or reasonably suspects that the person is an unlawful non-citizen.
67 Section 189 does not authorise the detention of an unlawful non-citizen in the ordinary sense of the term “detain”, which is defined in s 5(1) to mean “take into immigration detention or to keep, or cause to be kept, in immigration detention.” The power under s 189 is a power to take an unlawful non-citizen into “immigration detention”, as defined, and to keep the person there.
68 That is confirmed in s 196(1) which at all material times provided that a person detained under s 189 must be kept in “immigration detention”, until one of four specified events occurs. It provided:
(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.
…
69 It is not in dispute that until the applicant was granted a bridging visa on 21 January 2021, none of the events specified in s 196(1) had occurred.
70 At all material times para (b) of the definition of “immigration detention” in s 5(1) of the Act provided:
"immigration detention" means:
…
(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;
…
71 Pursuant to para (b) of the definition, being in “immigration detention” means being held by, or on behalf of, an officer in one of five types of places described. At all material times “officer” was broadly defined in s 5(1), and included, amongst others, officers of the Department of Immigration, a protective service officer for the purposes of the Australian Federal Police Act 1979 (Cth), persons authorised in writing by the Minister to be an officer for the purposes of the Act, and members of the Australian Federal Police or of the police force of a State or Territory. It is not in contest that that the applicant was held by or on behalf of an “officer”.
72 Paragraph (b)(i) of the definition of “immigration detention” provided that immigration detention includes being held by or on behalf of an officer “in a detention centre established under this Act.” It is not in dispute that subpara (b)(i) is a reference to “detention centres” established and maintained pursuant to the Minister’s express power under s 273(1) of the Act to “cause detention centres to be established and maintained”. At all material times subs 273(4) provided that “detention centre” means “a centre for the detention of persons whose detention is authorised under this Act.”
5. THE NO POWER TO APPROVE ‘ANOTHER PLACE’ OF IMMIGRATION DETENTION CONTENTION
73 It is not in dispute that the only authority the Commonwealth had to detain the applicant while he is in Australia is the power under the Act to detain an “unlawful non-citizen” in “immigration detention”. Because the applicant was an unlawful non-citizen, under ss 189 and 196 of the Act, an “officer” (as defined) had a duty to detain him in immigration detention, and had he not been detained in the Hotels an officer had a duty to detain him somewhere else.
74 The Commonwealth does not contend that it would have been lawful for it to detain the applicant in a place that did not fall within the definition of “immigration detention”. That was appropriate having regard to New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 at [48], [54] per Basten JA (with whom Bathurst CJ at [5], [7] and Hoeben JA at [96]-[97] agreed). The reasoning of Barrett JA (at [86]-[88], [94]) and Sackville AJA (at [102]) was to a similar effect. TD is authority for the proposition that:
(a) a person may be unlawfully detained despite the fact that he or she is not otherwise entitled to be at liberty; and
(b) where detention of a person in one place is authorised, detention of the person in another place which is unauthorised may nevertheless be unlawful.
75 It is not in dispute that the Minister had and has authority under s 273 to establish and maintain a “detention centre”. The Minister, however, accepts that neither of the Hotels was, in fact, established or maintained under that provision or under subpara (b)(i) of the definition of “immigration detention”.
76 It is not in dispute that there is no substantive provision in the Act which expressly empowers the Minister to approve ‘another place’ in writing as a place of immigration detention. Further, it is uncontentious that the Hotels were not:
(a) a prison or remand centre of the Commonwealth, a State or a Territory (and therefore do not fall within subpara (b)(ii) of the definition of “immigration detention”);
(b) a police station or watch house (and therefore not within subpara (b)(iii)); or
(c) a vessel (and therefore not within subpara (b)(iv).
It follows that the applicant could only have been in “immigration detention” during the relevant period if the Mantra Hotel and/or the Park Hotel were “another place approved by the Minister in writing” under subpara (b)(v) of the definition.
5.1 The applicant’s submissions
77 The applicant submits that neither subpara (b)(v) of the definition of “immigration detention” in the Act, nor any other provision of the Act, confers a power on the Minister to approve ‘another place’, in writing, as a place of “immigration detention”. The Commonwealth accepts that there is no substantive provision in the Act which expressly empowers the Minister to approve the Hotels as places of immigration detention, but contends that subpara (b)(v) of the definition of “immigration detention” impliedly confers power upon the Minister to do so.
78 On the applicant’s argument, there are three available constructions of subpara (b)(v) of the definition of “immigration detention”:
(a) it creates a power for the Minister to approve ‘another place’, in writing, as a place of “immigration detention”;
(b) it does not create such a power, but still has work to do by seizing on the fact of the existence of a “writing” by the Minister granting such an approval; or
(c) it does not create such a power and serves no purpose, it being a vestigial subparagraph left over by legislative mistake.
79 The applicant submits, and it is uncontentious, that there is a principle of statutory interpretation that statutory definitions are not a source of substantive power; instead they operate as an aid to the construction of the statute. In an often quoted passage in Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 at 635 Barwick CJ, McTiernan and Taylor JJ explained, as follows:
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland (Statutes and Statutory Construction, 2nd ed., vol. 2, p. 687),
‘Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves’.
80 In Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; 256 CLR 437 at [61]-[62] French CJ, Kiefel, Bell and Nettle JJ referred to the “general principle” that a statutory definition is not a source of statutory power, and said that it can be departed from where there is “a clear, contrary legislative intent”.
81 The applicant accepts that, in some cases, where a substantive provision (as distinct from a definition) assumes the existence of a power that cannot be located elsewhere in the statute, a court may construe that provision as impliedly conferring that power. He refers to the decision in Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; 157 CLR 290 as an example of that but seeks to distinguish Mayer (and other decisions which have followed it) on grounds including that:
(a) the provisions that were construed in those cases to have impliedly conferred a power were substantive provisions, rather than a definition; and
(b) Mayer was a “difficult case” in which the majority of the Court felt compelled to construe the provision as impliedly conferring power because only then would the appellant have the benefit of a remedy under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in respect of the refusal of the Minister to grant him an entry permit.
82 The applicant submits that Mayer stands for the proposition that power can be impliedly conferred by a substantive statutory provision that does not in express terms provide for such a power, but only if Parliament’s intent about the operation of the Act would be “wholly frustrated” unless that power is implied. On the applicant’s argument there is nothing to show:
(a) any “clear, contrary legislative intent” such that it is appropriate to construe subpara (b)(v) of the definition of “immigration detention” as anything other than part of that definition; nor
(b) that Parliament’s intent would be wholly frustrated unless subpara (b)(v) is construed as impliedly conferring power on the Minister to approve ‘another place’ of immigration detention.
83 On his argument, because subpara (b)(v) of the definition does not confer a power for the Minister to approve ‘another place’ for immigration detention, there is no power of approval which the Minister could delegate under s 496(1) of the Act. Therefore, the variously dated written instruments by which delegates of the Minister purported to approve the Hotels as places of immigration detention had no effect; the Minister could not delegate a power he did not have.
84 The applicant contends, by reference to the legislative history of the Act, that rather than being a source of power for the Minister to approve ‘another place’ in writing as a place of immigration detention, subpara (b)(v) of the definition of “immigration detention” was intended by the legislature to operate by acting on or picking up any such approval, the power for which is found in a substantive provision elsewhere in the Act. He says that by legislative mistake there is no longer a substantive provision for subpara (b)(v) to act on or pick up, and the subparagraph is vestigial with no work to do.
85 The applicant’s review of the legislative history of the Act commences with the insertion of a definition of “custody” into the Migration Act through the Migration Legislation Amendment Act 1989 (Cth) (the 1989 Amendment Act), which was given assent on 19 June 1989. The 1989 Amendment Act repealed some provisions of the Migration Act and substituted others and also renumbered the sections of the Principal Act. In the 1989 Amendment Act the definition of “custody” was numbered s 5G, but by the renumbering of the Principal Act it became s 11. For clarity I will refer to it as s 11.
86 The definition of “custody” in s 11 provided, as follows:
Meaning of custody
For the purposes of this Act, a person shall not be taken to be in custody under this Act, or in the custody of an officer, unless the person is:
(a) being held:
(i) in a detention centre established under this Act;
(ii) in a prison or remand centre of the Commonwealth, of a State or of a Territory;
(iii) in a police station or watch house; or
(iv) in another place approved by the Minister in writing; or
(b) in the company of, and restrained by an officer or another person directed by the Secretary to accompany and restrain the person.
87 The applicant notes, and it is not in dispute, that:
(a) the language of para (a) of the definition of “custody” in s 11 of the (then) Act is very similar to para (b) of the definition of “immigration detention” in the current Act; and
(b) the language of subpara (a)(iv) of the definition of “custody” is essentially identical to the language of subpara (b)(v) of the definition of “immigration detention” in the current Act.
The applicant argues that the definition of “custody” should be recognised as the progenitor of the language of the definition of “immigration detention”, and in particular that subpara (a)(iv) of the definition of “custody” should be recognised as the progenitor of subpara (b)(v) of the definition of “immigration detention”.
88 The applicant then notes that following the 1989 Amendment Act, the Migration Act included s 92 which was headed “Arrest of illegal entrant”. Broadly, the (then) Act provided that a person was an “illegal entrant” if the person did not, upon entering Australia, hold a valid entry permit (being the forerunner to a visa). Subsections 92(1) and (2) provided that an officer may arrest a person whom the officer suspected to be an illegal entrant and the person so arrested may then be kept “in the custody of any officer or in such other custody as the Minister or the Secretary directs”. The applicant describes the scheme created by the 1989 Amendment Act as involving “permissive detention”.
89 Next, the Migration Amendment Act 1992 (Cth) (the May 1992 Amendment Act) was given assent on 6 May 1992. It introduced a scheme for mandatory detention for “designated persons” (in broad terms, people who arrived in Australia by boat and who did not have a visa or an entry permit): see s 54K. Section 54L of that Act provided that designated persons “must be kept in custody” (emphasis added). Section 54K provided that “custody” in Part 2 Div 4B (the mandatory detention scheme for “designated persons”) had the same meaning as in s 11 which was introduced by the 1989 Amendment Act.
90 On 7 December 1992 the Migration Reform Act 1992 (Cth) (the 1992 Reform Act) was assented to, but it did not come fully into force until 1 September 1994. On the same date, the Migration Legislation Amendment Act 1994 (Cth) (the 1994 Amendment Act) commenced. The 1994 Amendment Act amended both the Principal Act and the 1992 Reform Act, as well as renumbering the amended Principal Act.
91 The 1992 Reform Act introduced a new scheme of mandatory detention into the Act, which was not limited to “designated persons” and related to all “unlawful non-citizens.” That Act inserted ss 3A, 54W, 54ZD and 54ZF, which after re-numbering in 1994 became ss 4, 189, 196, and 198 of the Principal Act, being the central provisions in the current mandatory detention regime. Section 4 introduced definitions of “detain” and of “immigration detention,” in a form relevantly identical to the present form.
92 The 1992 Reform Act replaced the term “custody” with the term “immigration detention” in most (but not all) places where it appeared in the Principal Act. At the same time, s 11 (which contained the definition of “custody”) was repealed (see the 1992 Reform Act, s 38, Schedule Part 2). In 1994, the Act was again re-numbered so that (relevantly) the definitions section, s 4, became s 5, s 54W became s 189, and s 54ZD became s 196.
93 The applicant argues that when “custody” as a concept was introduced through the 1989 Amendment Act, there were other sections of the Act which provided the Minister with the power that subpara (a)(iv) of the definition of “custody” in s 11 of the Act assumed; that is, the power to nominate ‘another place’ in writing as a place of “custody”. In particular the applicant points to s 92(2) of the Act (introduced by the 1989 Amendment Act) which at the time provided that a person arrested under the provision “may, subject to this section, be kept in the custody of an officer or in such other custody as the Minister or the Secretary directs”. At the same time s 93(8) empowered the Minister to direct that “a deportee may be kept in such custody as the Minister or the Secretary directs”, pending deportation.
94 Section 92 was repealed by the 1994 Amendment Act, Sch 1, cl 92. Section 93(8), however, remains part of the Act, having been renumbered as s 253(8) in the present Act and amended, but remaining recognisable. It provides that “a deportee may be kept in immigration detention or such detention as the Minister, Secretary or Australian Border Force Commissioner directs”, pending deportation.
95 The applicant argues that three points can be drawn from that review of the legislative history:
(a) First, what is now subpara (b)(v) of the definition of “immigration detention” began life in 1989 as subpara (a)(iv) of the definition of “custody”, in what became s 11 of the Act;
(b) Second, at that time the term “custody” was picked up by the mandatory detention provisions inserted into the Act by the May 1992 Amendment Act. That is, s 54K picked up section 11 and its definition of “custody”; and
(c) Third, the 1992 Reform Act (which did come fully into force until 1 September 1994) introduced mandatory detention into the scheme, and the concept of “custody” was replaced by the concept of “immigration detention”. The definition of “immigration detention” was inserted in substantially the form it has assumed since that time and, importantly, the language of subpara (b)(v) of the definition of “immigration detention” was identical to the language of subpara (a)(iv) of the definition of “custody”. At the same time the definition of “custody” in s 11 was repealed; the reference to the definition of “custody” in s 54K was also repealed, and most references to “custody” were replaced with references to “immigration detention”.
96 The applicant argues that when the definition of “custody” was inserted into the Act through the 1989 Amendment Act, Parliament should be taken as having understood that there were other provisions, s 92(2) in particular, which empowered the Minister to make the kind of written direction that would engage with subpara (a)(iv) of that definition. The applicant contends that, at that time, there could have been no reason to read subpara (a)(iv) of the definition of “custody” (being the equivalent of subpara (b)(v) of the definition of “immigration detention” in the present Act) as conferring a power on the Minister to approve ‘another place’ of custody. It was instead appropriate to understand subpara (a)(iv) as intersecting with a power in ss 92(2) and 93(8) of the Act; they being substantive provisions rather than definitional.
97 Then with the commencement of the 1992 Reform Act (which did not fully come into operation until 1 September 1994), the concept of “custody” was broadly replaced with the concept of “immigration detention” (albeit not in s 92 which was one of the few sections in which the word “custody” was not replaced). But, unlike the previous scheme, the suite of mandatory detention provisions introduced through the 1992 Reform Act did not contain a substantive provision for unlawful non-citizens (who were not deportees) which engaged with subpara (b)(v) of the definition of “immigration detention”.
98 On the applicant’s argument, this is not a case where the legislature drafted a definition into an Act to which there is no corresponding power, such that the legislature should be taken to have impliedly conferred power through the definition. Instead, when the definition of “custody” was first introduced into the Act it intersected with a corresponding power (in ss 92(2) and 93(8)) and there could have been no reason at that time for reading the language of the Act as creating a power within the definition itself. Then, when the language of the definition of “custody” was reiterated in the definition of “immigration detention” introduced by the 1992 Reform Act, by legislative mistake there was no corresponding substantive power.
99 He contends that having regard to his review of the legislative history it is appropriate to construe subpara (b)(v) of the definition of “immigration detention” as making the mistaken assumption of a separately existing power elsewhere in the Act. In that event the Act does not provide power for the Minister to approve ‘another place’ of immigration detention, in writing; the Minister therefore had no power to delegate under s 496(1), and the variously dated written instruments approving other places of immigration detention had no effect. Therefore the applicant’s detention in the Hotels could not have been “immigration detention” within the meaning of the Act, and it was unlawful.
100 In the alternative the applicant argues that the Court should construe subpara (b)(v) as operating upon the historical fact of the Minister, acting in a purely personal capacity for which he needs no authority under the Act, creating a “writing” which approves ‘another place’ of immigration detention. On this argument, where the Minister creates such a document, subpara (b)(v) operates by seizing upon that document, and the place so approved will become a place of immigration detention. For example, the applicant says that that if the Minister created a document, a “writing”, which said that he or she approved, for a four-week period, the Royal Children’s Hospital as a place of immigration detention under subpara (b)(v), then the Royal Children’s Hospital would be so approved and unlawful non-citizens undergoing medical treatment there could lawfully be detained in that place.
101 The applicant accepts that it is “sensible” (in the sense of being consistent with responsible government) for subpara (b)(v) to seize on the existence of a writing created by the Minister, but contends that the fact that it is the Minister’s writing does not mean that subpara (b)(v) should be construed as conferring or implying a “power”. The applicant notes that subparas (b)(i) to (iv) of the definition of “immigration detention” themselves seize on the existence of places for detention of particular descriptions, without concerning themselves with how those places come to exist (or by what power, if any, they were created). For example, he says that the State and Territory prisons referred to in subpara (b)(ii) were not created by Commonwealth power, they merely exist, and the same can be said of the vessels referred to in subpara (b)(iv). He says that the same can be said of a “writing” by the Minister under subpara (b)(v).
102 Then, on the basis that subpara (b)(v) operates by seizing on the fact of the existence of a Ministerial “writing”, the applicant says that none of the variously dated written instruments by which delegates of the Minister purported to approve the Hotels as places of immigration detention were actually “writings” of the Minister. All of those “writings” were of persons purporting to hold delegations from the Minister, when the Minister had no power to delegate under s 496 of the Act. Therefore, the Hotels were never approved as places of immigration detention because subpara (b)(v) does not seize upon writings of delegates; it only seizes upon writings of the Minister. His detention in the Hotels was therefore not in “immigration detention”, and it was unlawful.
5.2 Consideration
103 Pursuant to s 496(1) of the Act, the Minister may, in writing, delegate to a person “any of the Minister’s powers under this Act.” By variously dated written instruments, delegates of the Minister approved, or at least purported to approve, the Mantra Hotel and the Park Hotel and numerous other places as places of immigration detention under subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Act.
104 The written instruments of approval are unremarkable in their form. Except for one, each instrument states that the signatory is a delegate of the Minister for the purpose of subpara (b)(v) of the definition of immigration detention, and provides that the delegate approved the places named therein as places of immigration detention including, relevantly, the Mantra Hotel and, later in the relevant period, the Park Hotel.
105 The written instrument dated 20 March 2019 referred to the delegate acting under the powers of the Secretary for the Department, and as an officer for the purpose of the definition of immigration detention as defined by subpara (a)(ii) of subs 5(1) of the Act. The Commonwealth submits that it does not matter that the powers referred to in that instrument were those of the Secretary of the Department because, at the time of making the instrument, as a person appointed as an Executive Level 2, the delegate held a relevant delegation of the powers of the Minister for the purposes of the definition of “immigration detention”: Australian Border Force (Minister) Delegations and Authorisations 2018 (ABF (M) No 1 of 2018) cl 10, Sch 4, item 3. The applicant did not seek to argue otherwise. On the basis that it was not in contest, I accept the Commonwealth’s submission in that regard.
106 The principle that statutory definitions are not a source of substantive power, and instead operate as an aid to the construction of the statute, is well-established: see Gibb at 635. In Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [84], [103] McHugh J approved the passage in Gibb extracted above, and said that “the function of a definition is not to enact substantive law. It is to provide aid in construing the statute”. The principle expressed in Gibb has been approved on numerous occasions by the High Court and by intermediate courts of appeal, but it is not absolute. In Mekpine at [61]-[62], French CJ, Kiefel, Bell and Nettle JJ described it as a “general principle” and said that it can be departed from where there is “a clear, contrary legislative intent”.
107 For the reasons I now explain, I consider it appropriate to construe subpara (b)(v) of the definition of “immigration detention” in the Act as impliedly conferring power on the Minister to approve in writing ‘another place’ of immigration detention.
108 First, although it is far from determinative, it is noteworthy that numerous judicial statements either refer to a “power” in subpara (b)(v) of the definition of “immigration detention” or treat subpara (b)(v) as if it confers power. In:
(a) B v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 699 at [45]–[46] Lander J said that “[i]mmigration detention includes holding an unlawful non-citizen by or on behalf of an officer in any place approved by the Minister in writing. The Minister can approve any premises as “immigration detention”;
(b) SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569 (SBEG (No 2)); 292 ALR 29 at [111] Besanko J referred to “the power in paragraph (b)(v)” and described it as a power involving “a form of immigration detention”;
(c) SBEG v Commonwealth of Australia [2012] FCAFC 189; 208 FCR 235 (SBEG FC) the Full Court (Keane CJ, Lander and Siopis JJ):
(i) noted the parties’ submissions as to the “power under paragraph (b)(v)” to transfer the applicant to the form of detention sought by the appellant (at [38]);
(ii) noted the primary judge’s conclusion that “the powers implicit in that definition” could not be used to achieve the form of detention which the appellant sought under s 197AB of the Act (at [40]-[42]);
(iii) held that a “more relaxed form of accommodation” with “no constraint on the appellant’s ability to come and go as he pleases, is not available under s 5(1)(b)(v)” (at [55]); and
(iv) noted the appellant’s argument that the primary judge erred in holding that “the nature of the power contained in s 5(1)(b)(v) of the Act” and the considerations relevant to its exercise was such that the Commonwealth did not breach its duty of care to the appellant (at [62]); and
(d) Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 at [13] French CJ said that the applicant’s placement in a residential housing facility was:
…a species of “immigration detention” as placement in “another place approved by the Minister in writing” for the purposes of par (b)(v) of the definition of “immigration detention” in s 5(1) of the Act.
(e) AZC20 v Minister for Home Affairs [2021] FCA 1234 at [140] Rangiah J held that the Court cannot compel the Minister to exercise the power to approve ‘another place’ for immigration detention because:
“[t]hat would be inconsistent with…the definition of “immigration detention” in para (b)(v) of s 5(1) of the Act which makes it clear that it is exclusively for the Minister to approve ‘another place’ as a place of detention within which an unlawful non-citizen is to be confined.”
Rangiah J made orders requiring the Secretary of the Department, to cause any detention of the applicant, pending his removal from Australia, to be at the private home of a friend of the applicant, at which one or more “officers” (as defined) could be stationed to accompany and restrain the applicant.
(f) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 (AZC20 FC) (Jagot, Mortimer and Abraham JJ ) the Full Court upheld the Minister’s appeal against those orders and said (at [87]):
The detention arrangement orders are properly understood as being orders within para (b) [of the definition of “immigration detention”], not para (a), and there being no approval by the Minister under (v), and no suggested application of sub-paras (i)-(iv), the detention arrangement orders fell outside the terms of para (b). The primary judge correctly understood he could not make orders compelling a form of immigration detention covered by para (b). Yet, in substance, that is what he did.
109 I accept that those judicial statements do not set out a reasoned basis for treating subpara (b)(v) as a source of substantive power, and there is nothing in those decisions to show that it was argued that subpara (b)(v) is not a source of power. Nor are they part of the ratio of those decisions.
110 But I would not put those judicial statements completely to one side as the applicant seeks. I expect that if the Full Court in SBEG FC considered Besanko J’s conclusion that there was power “implicit” in subpara (b)(v) was erroneous their Honours would have said so. And the Full Court’s conclusion that a “more relaxed form of accommodation” was not available under subpara (b)(v) was, at the least, consistent with a view that subpara (b)(v) is a source of power. Similarly, in apparently endorsing the primary judge’s view that subpara (b)(v) provides that it is exclusively for the Minister to approve ‘another place’ as a place of detention, the Full Court in AZC20 FC seemed to accept subpara (b)(v) was a source of power, rather than merely a definition with no substantive effect. At the least, it can be said that neither Full Court saw the proposition that subpara (b)(v) impliedly confers power on the Minister to be inherently problematic.
111 Second, as the Commonwealth submits, the apparent recognition of a power under subpara (b)(v) in those judicial statements is consistent with long-standing authority that it is appropriate to interpret statutory provisions requiring the approval of a Minister, and other public office holders, as impliedly conferring authority to make the approval. The Commonwealth relies on four decisions in this regard, Mayer; Attorney-General (Cth) v Oates [1999] HCA 35; 198 CLR 162; Aye v Minister for Immigration [2010] FCAFC 69; 187 FCR 449; and NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277.
112 In Mayer, the High Court was called upon to consider whether s 6A(1)(c) of the Act (as it then was) was a source of power for the Minister to determine that a person had the status of a refugee. Section 6A provided that an entry permit shall not be granted to a “non-citizen” after his or her entry into Australia unless stipulated conditions were fulfilled. Subsection (1)(c) included the condition that “the Minister has determined, by instrument in writing, that he has the status of refugee” within the meaning of the Refugees Convention as amended by the Refugees Protocol. There was no other statutory provision or instrument which conferred authority on the Minister to make a determination under s 6A(1)(c).
113 The Minister submitted that s 6A(1)(c) merely recognised the historical fact that a determination had been made regarding a person’s status as a refugee and it conferred no power to make such a determination. The Minister contended that any determination made by the Minister under the provision was not made pursuant to a power in the Act. The minority (Gibbs CJ and Brennan J) accepted that argument and construed s 6A(1)(c) as only operating upon the existence of a fact, finding that the Minister could make such a determination without the need for a power sourced in the Act.
The Minister needs no statutory authority to execute an instrument in writing by which he determines that someone has the status of a refugee…The existence of the instrument in writing is an objective fact which, if the person in question is the holder of a temporary entry permit which is in force, will satisfy condition (c) of s 6A(1).
115 Brennan J said (at 306-307):
Paragraph (c) of s 6A(1) is not expressed as conferring an authority or power to determine whether a person has the status of refugee….
Paragraph (c) is not the source of the Minister’s power or authority to make the determination of a person’s status “within the meaning” of the Convention or Protocol. A determination made for the purposes of the Convention or the Protocol neither has nor requires a statutory authority or power to make it.
116 The majority in Mayer (Mason, Deane and Dawson JJ), took a different view. Their Honours concluded that s 6A(1)(c) should be construed as impliedly conferring power on the Minister to make such a determination. They said the following (at 301):
In the absence thereof [of any other statutory provision or instrument conferring the authority to make such a determination], the Minister’s argument involves the proposition that it was the intention of the Parliament to leave the function of determining “status of refugee” without any statutory basis whatever notwithstanding that the performance of that function is the foundation upon which s. 6A(1)(c) is structured. One implication of that proposition, if it were to be accepted, would be that, notwithstanding the statutory consequences of such a determination, the Minister would be under no statutory obligation even to consider whether a determination of the kind referred to in s. 6A(1)(c) should be made. Another would be that the effectiveness of a decision, under the administrative arrangements, for the purposes of s. 6A(1)(c) would depend upon whether it happened to comply with the statutory requirement that it be a determination “by instrument in writing”. Yet another would be that the statutory provisions of par. (c) could be deprived of any effective content by mere administrative decision discontinuing current administrative arrangements or allocating the function of determining whether a person was a refugee to someone other than the Minister. It would seem more likely that it was the intention of the Parliament that the provision of s. 6A(1)(c) attaching statutory consequences to a determination by the Minister that the holder of a temporary entry permit has the “status of refugee” within the meaning of the Convention or Protocol be construed as impliedly conferring upon the Minister statutory authority to make that determination.
(Emphasis added.)
117 Their Honours went on to say (at 302-303):
A legislative provision operating upon a specified determination of a Minister or other officer can readily be construed as impliedly conferring upon the designated Minister or other officer the statutory function of making the particular determination. Such a construction is likely to be clearly warranted in a case…where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent and where the legislative provision will be without effective content if no authority to make the requisite determination exists.
(Emphasis added.)
118 Here, the applicant argues (in the alternative to his contention that subpara (b)(v) is vestigial and has no work to do) that the Minister needs no statutory authority to create a “writing” by which he approves a place of immigration detention; subpara (b)(v) is not expressed to confer power on the Minister to approve in writing ‘another place’ of immigration detention, and the subpara operates by seizing upon the fact that there is in existence such a “writing” of the Minister . That is an argument of the same type or species as that rejected by the majority in Mayer.
119 In Oates the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) was called on to decide whether s 1316 of the Corporations Law (WA) was a source of power for the Minister to consent to the institution of proceedings after the expiry of five years from the acts or omissions alleged to constitute an offence under that Act. Section 1316 provided as follows:
Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister’s consent, at any later time.
120 Their Honours (at [16]) disapproved the remarks of Gowans J in Byrne v Garrison [1965] VR 523 at 532 where his Honour said in relation to an analogous provision in the Companies Act 1958 (Vic) that he was “not at all satisfied that it is necessary to find power and authority conferred by statute on the Attorney-General” and doubted “whether [the Attorney-General] needs any power conferred by the legislature to give his consent.” Their Honours (at [16]) also disapproved the dissenting remarks of Gibbs CJ in Mayer and said:
…the preferable approach is to construe the provision in question as impliedly conferring upon the Minister statutory authority to make the determination or give the consent which satisfies a condition imposed by the statute. That was the interpretation of s 6A(1)(c) given by Mason, Deane and Dawson JJ in Mayer, and we would apply it to s 1316.
There, the High Court again rejected an argument of the same type or species as that advanced by the applicant here.
121 Similarly, in Aye the Full Court of this Court considered the position where the Act provided that a determination by the Minister for Foreign Affairs that a person’s presence in Australia was contrary to Australia’s foreign policy interests was a prescribed ground for cancellation of the person’s visa. The Act did not, however, expressly confer power on the Minister to make such a determination and reg 2.43 of the Migration Regulations 1994 (Cth), which recognised that the Minister may make such a determination, did not expressly empower the Minister to do so.
122 The Minister submitted that even though the regulations did not expressly empower the making of such a determination, that power should be implied from the regulation itself (at [57]). Lander J (with whom Spender and McKerracher JJ relevantly agreed) accepted that submission, citing with approval the decision of the majority in Mayer. Lander J referred (at [60]), to Gibbs CJ’s dissent in Mayer but noted that the High Court in Oates rejected that approach. Lander J held (at [62]) that in circumstances where there was no other statutory instrument which empowered the Minister for Foreign Affairs to make a determination, and in conformity with the approach taken in Mayer, it was appropriate to construe the regulation as impliedly authorising the Minister to make the determination referred to in the regulation.
123 In NEAT the High Court was called on to consider whether a decision of the Australian Wheat Board (International) Ltd (AWBI) under s 57(3B) of the Wheat Marketing Act 1989 (Cth) (WM Act) to refuse consent to the appellant to export wheat in bulk was legally infirm. Section 57(1)(a) of the WM Act provided that a person shall not export wheat unless the Wheat Export Authority has given its written consent. Section 57(3B) provided that:
The Authority must not give a bulk-export consent without the prior approval in writing of the nominated company B. For this purpose a consent is a bulk export consent unless it is limited to export in bags or containers.
124 McHugh, Hayne and Callinan JJ said the following (at [54]):
Unlike the Authority, AWBI needed no statutory power to give it capacity to provide an approval in writing. As a company, AWBI had power to create such a document. No doubt the production of such a document was given statutory significance by s 57(3B) but that sub-section did not, by implication, confer statutory authority on AWBI to make the decision to give its approval or to express that decision in writing. Power, both to make the decision, and to express it in writing, derived from AWBI's incorporation and the applicable companies legislation. Unlike a statutory corporation, or an office holder such as a Minister [citing Mayer at 301 and Oates at [16]], it was neither necessary nor appropriate to read s 57(3B) as impliedly conferring those powers on AWBI.
There, the High Court accepted that in relation to a public office holder such as a Minister, where a legislative provision recognises that the office holder may approve something, it may be appropriate, or indeed “necessary”, to read into the provision a power to do so, sourced by implication from that.
125 I accept that the decisions in Mayer, Oates, Aye and NEAT are distinguishable from this case as they concerned substantive provisions, rather than a definition. But the question remains one of construction. In each of those decisions the court construed a statutory provision as impliedly conferring power in the context that:
(a) the provision recognised that a public office holder may make a decision, but did not expressly confer power to do so;
(b) statutory consequences arose from the office holder making any such decision;
(c) there was no other statutory provision or instrument which conferred the office holder with power to make such a decision; and
(d) the provision would be without effective content (that is, it would have no work to do) if no authority to make the requisite decision existed.
126 The position here is the same.
(a) subpara (b)(v) of the definition of “immigration detention” recognises that the Minister, an office holder with responsibility for administering the Act, may make a decision to approve “another place…in writing” as a place of immigration detention, but does not expressly confer power to do so;
(b) there are important statutory consequences of any such decision. Approval of a place of immigration detention means that the Commonwealth can lawfully deprive persons of their liberty by holding them in the place so approved;
(c) there is no other statutory provision or instrument which confers the Minister with power to make such a decision; and
(d) the words of subpara (b)(v) would have work to do if there is no authority for the Minister to approve ‘another place’ for immigration detention.
127 Those decisions show that a legislative provision operating upon a specified determination of a Minister (in this case a decision to approve ‘another place’ for immigration detention) can readily be construed as impliedly conferring upon the Minister the statutory function of making such a determination, particularly when no other statutory source of authority to make it is apparent and where the legislative provision will be without effective content if there is no authority to make the determination. Indeed, that is precisely what the majority in Mayer said (at 302-303).
128 The applicant describes the decision of the majority in Mayer as “extraordinary” and as a “difficult case”, and went as far as to submit that the majority felt compelled to construe the provision as they did because only then would the appellant have the benefit of a remedy under the ADJR Act in respect of the Minister’s refusal to grant him an entry permit. I am not persuaded as to that. The applicant did not take the Court to any authority to support the proposition that the majority in Mayer went too far, or that the result was dictated by a concern to deliver a particular outcome. And the approach to construction in Mayer has been followed by the High Court and intermediate courts of appeal on numerous occasions.
129 Third, contrary to the applicant’s argument, there are at least four decisions of intermediate courts of appeal that have treated statutory definitions as a source of power. The four decisions are Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723; Penola & District Ratepayers’ & Residents’ Association Inc v Wattle Range Council [2011] SASFC 62; 110 SASR 110; San v Rumble (No 2) [2007] NSWCA 259; and Chiropractors Association v WorkCover Corporation [1999] SASC 470; 75 SASR 374.
130 In Burns Philp the NSW Court of Appeal (Mahoney, Clarke and Handley JJA) was required to consider whether s 597(1) of the former Corporations Law, a definitions provision, was a source of power for the Australian Securities Commission (Commission) to authorise an “other person” to make an application for examination under s 597(2). Section 597(2), the operative provision, provided that “the Commission or prescribed person” may apply to the Court for an order for examination under s 597. Section 597(1) defined who a “prescribed person” was, and the definition included “any other person authorised by the Commission to make applications under this section”. There was no other provision or instrument which expressly empowered the Commission to authorise an “other person” to make an application under s 597.
131 Similarly to this case, it was argued that s 597(1) was merely a definitional provision which was not expressed to, and did not confer, any function or power on the Commission to authorise another person to conduct an examination. It was said that s 597(1) assumed but did not confer the power to authorise an “other person”, and any such power must be found elsewhere.
132 Clarke and Handley JJA rejected that argument (at 729G) and said that such a result would defeat the clear intention of Parliament that was apparent in the definition section itself, and that such an approach would be contrary to Mayer at 302-303. Their Honours said (at 730G -731C):
Nothing of significance for present purposes ought to turn on any distinction between function and power, and in particular on whether s 597(1) is expressed to confer on the ASC a power to authorise others to act as prescribed persons or only a function of doing so. If nevertheless it is necessary to know whether s 597(1) is expressed to confer this function, and the Court should conclude that it does then s 597(1) is the source of the function and by necessary implication confers all powers necessary for its effective exercise… In the result we have reached the firm conclusion that this function or power is, by necessary implication, expressed to be conferred by s 597(1) and is actually vested in the ASC by s 11(7). The challenge to the appointment of the new trustees as prescribed persons therefore fails.
The problem created by the form of s 597(1) is not a new one. In Helme v Fox (1948) 49 SR (NSW) 60 at 62; 65 WN (NSW) 250 at 251, Jordan CJ said that the difficulty in that case had “been caused by ‘failure to observe the valuable rule never to enact under the guise of definition’”. Section 597 is a “good” example of enactment in the guise of definition and the difficulties in the present case result from the failure to observe this guide to good drafting. However, as Minister for Immigration and Ethnic Affairs v Mayer demonstrates, if there is no other available source of power it can and must be found in the definition provision itself.
(Emphasis added.)
133 Against that the applicant points to HongKong Bank of Australia Ltd v Australian Securities Commission [1992] FCA 376; 40 FCR 402 (Lockhart, Gummow and O’Connor JJ); Mercantile Mutual Life Insurance Co v Australian Securities Commission [1993] FCA 77; 40 FCR 409 (Black CJ, Lockhart and Gummow JJ); Highstoke Pty Ltd v Hays Knight GTO Pty Ltd [2007] FCA 13; 156 FCR 501 at [80] (French J, as his Honour then was) and Re-Excel Finance Corporation Ltd; Worthley v England [1994] FCA 551; 52 FCR 69, 82 (Gummow, Hill and Cooper JJ) as authorities which take a different approach to Burns Philp regarding the source of power to authorise an “other person” to make an application for examination under s 597(2) of the Corporations Law. On that basis the applicant contends that the approach to construction in Burns Philp is not good law.
134 That contention somewhat missed the point. It can be accepted that those decisions show that, at least in this Court, the power to make an application for an examination under s 597(2) of the Corporations Law was properly to be found in s 11(4) of the former Australian Securities Commission Act 1989 (Cth) (the ASC Act), rather than in the definition in s 597(1) of the Corporations Law. But the relevance of Burns Philp in the present context is not in relation to the proper source of power to conduct an examination under s 597(2) of the Corporations Law, but rather to show that, in such circumstances, it may be appropriate to construe a definition section as impliedly conferring power. And one of the reasons why it is sometimes appropriate to construe a definition as a source of power is if there is no other available source of power. As the majority in Burns Philp put it, “if there is no other available source of power, the power can and must be found in the definition provision itself” (emphasis added). If, as held in Mercantile Mutual, Excel Finance and Highstoke, s 11(4) of the ASC Act was the appropriate source of power then there was no need to construe the definition in s 597(1) as impliedly conferring power.
135 In Penola the Full Court of the Supreme Court of South Australia was required to consider whether para (c) of the definition of “public road” in the Local Government Act 1999 (SA) (the LGA) conferred power on the Council to declare a road or land owned by the Council to be a “public road”. The LGA did not expressly grant power to a council to declare land which it already owned to be a public road, but the definition of “public road” included “any road or land owned by a council … and which, subject to this Act is declared by the council to be a public road”. Section 208(4) of the LGA contemplated that a declaration that council-owned land be a public road may be made because it required a council to cause a copy of the resolution declaring land to be a public road to be gazetted. White J, with whom Nyland and David JJ agreed, said (at [81]-[82]) that it was unusual, but not unknown, for a grant of power to be found in a definition provision, and held that the power to declare land to be a public road was implicit in the definition.
136 The applicant submits that Penola is distinguishable because the words “subject to this Act” in para (c) of the definition of “public road” indicate that any declaration was one that was made under and constrained by the terms of the LGA, and notes that there are no such words in subpara (b)(v). I accept that is a relevant difference between Penola and the present case, but it does not take the applicant’s argument far.
137 In San at [54] Campbell JA, with whom Beazley and Ipp JJA agreed, construed a statutory definition as having a substantive effect, while recognising that doing so is something that is usually not appropriate to the function of a definition. His Honour went on to say:
However, as Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, para [6.63] point out,
“Drafters do occasionally include substantive material in a definition. This is poor drafting and can lead to error in the interpretation of the legislation because of the approach set out in Gibb’s case.”
Particularly when the definition in question is one that applies in one section of the legislation only, and the construction I prefer gives better effect to the policy of the Act, I am not troubled by this departure from the usual way in which statutory definitions are construed.
138 Finally, in Chiropractors Association the Full Court of the Supreme Court of South Australia (Bleby J, with Duggan and Debelle JJ agreeing) was called on to consider whether the power of WorkCover to “recognise” a person as a “recognised medical expert” could be sourced in the definition of that expression in the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act). The WRC Act was otherwise silent as to the process of “recognition” of a medical expert by WorkCover and the Full Court construed the definition as the source of power to “recognise” a medical expert.
139 The decisions in Burns Philp, Penola, San and Chiropractors Association show that the approach to construction taken in Mayer is not confined to substantive provisions, and extends to definitions.
140 Fourth, I should not, however, be taken to be suggesting that the question of construction that arises here is to be decided by some process of analogy with the decisions in Mayer, Oates, Aye and NEAT. The question of construction in this case must be decided having regard to the statutory text, its context (which includes the legislative history and extrinsic materials) and having regard to the purpose of the provisions of the Act. And a court construing a statutory provision must strive to give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan, and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
141 The principle that a court construing a legislative provision must strive to give meaning to every word of the provision applies to definition sections as well as substantive provisions, and it is important in this case. That is so because, if subpara (b)(v) of the definition of “immigration detention” does not confer power on the Minister to approve ‘another place’ in writing as a place of immigration detention, then those words are otiose. That is a strong reason to construe subpara (b)(v) as impliedly conferring power on the Minister.
142 The applicant makes two alternative arguments in this regard. His first argument, based on his review of the legislative history, is that subpara (b)(v) is vestigial, a “leftover” as a result of legislative mistake, and it has no work to do. As I now explain, I am not persuaded as to that.
143 I accept that the definition of “immigration detention” introduced into the Act by the 1992 Reform Act is very similar to the definition of “custody” which preceded it, and that the language of subpara (a)(iv) of the definition of “custody” is essentially identical to the language of subpara (b)(v) of the definition of “immigration detention”. I also accept that, following the 1989 Amendment Act, s 92(2) of the Act referred to persons being kept in the custody of an officer “or in such custody as the Minister or the Secretary directs” and s 93(8) referred to deportees being kept in “such custody as the Minister or the Secretary directs”. Then, s 92 was repealed by the 1994 Amendment Act.
144 The applicant submits that the apparent legislative purpose behind subpara (a)(iv) of the definition of “custody” was that it would pick up and act on a power that existed elsewhere in the Act, being ss 92(2) and 93(8). He argues there could have been no reason at that time to construe subpara (a)(iv) of the definition of “custody” as impliedly conferring the Minister with power to approve ‘another place’ of “custody”. Then, when the 1992 Reform Act was enacted Parliament used identical language in subpara (b)(v) of the definition of “immigration detention”, which the applicant says is a strong indication that Parliament did not intend it as a source of power. Instead subpara (b)(v) was intended to pick up and act on a power that existed elsewhere in the Act. Section 92(2) was however repealed, and thus by legislative error subpara (b)(v) was left with no work to do.
145 There are several difficulties with the applicant’s argument based in the legislative history. The first is that the 1992 Reform Act involved a major overhaul of the Act. It introduced the concept and the definition of “immigration detention” and replaced the term “custody” in most but not all places where it appeared in the Act. Upon the renumbering that took place through the 1994 Amendment Act, the 1992 Reform Act introduced the definition of “detain” in s 5(1); the duty to detain unlawful non-citizens in s 189; the duration of detention in s 196; and the duty to remove unlawful non-citizens in s 198. Through the 1992 Reform Act the Act came to provide that any non-citizen who was not a “lawful non-citizen” was an “unlawful non-citizen” and therefore liable to mandatory detention (s 189) and to mandatory removal from Australia (s 198). The 1992 Reform Act also made a suite of substantial changes to the arrangements for cancellation of visas and entry permits; the merits review process; and the judicial review process. Thus it both introduced the central provisions of the current mandatory detention regime and also amended continuing provisions. The Explanatory Memorandum to the Migration Reform Bill 1992 said that the amendments “will effect major changes” to the Act and that “[t]he changes will replace the legislative framework which currently underpins the regulation of entry to and stay in Australia as well as the detention and removal of non-citizens here unlawfully” (emphasis added).
146 To my mind, the applicant placed too much emphasis on what he asserts is the legislative intent behind subpara (a)(iv) of the definition of “custody” prior to commencement of the 1992 Reform Act. While the genesis of subpara (b)(v) is a relevant part of the context to be considered, in circumstances where the 1992 Reform Act constituted a major overhaul of the Act and replaced a central part of the legislative framework, it is the text, context and purpose of the Act as amended which must be central in considering the meaning of its provisions.
147 The second difficulty is that the applicant bases his contention that subpara (a)(iv) of the definition of “custody” was not intended as a source of power on the conclusion that it was intended to pick up or act on a power that existed elsewhere in the Act, namely ss 92(2) and 93(8). On his argument, they were the substantive provisions which intersected or engaged with the words of the definition of “custody”.
148 I am not, however, satisfied as to that. I can see little real correspondence between subpara (a)(iv) of the definition of “custody” and ss 92(2) and 93(8). It will be recalled that:
(a) section 92(2) provided that a person arrested under subs 92(1) or (10) “may, subject to this section, be kept in the custody of any officer or in such other custody as the Minister or the Secretary directs” (emphasis added); and
(b) section 93(8) provided that “a deportee may be kept in such custody as the Minister or the Secretary directs” (emphasis added).
149 That lack of real correspondence can be seen in the fact that:
(a) the power under ss 92(2) or 93(8) for the Secretary to direct another place for custody did not engage with subpara (a)(iv) of the definition of “custody”, which was concerned with the exercise of a power or function by the Minister. They were powers or functions to be exercised by different people;
(b) the power under ss 92(2) or 93(8) for the Minister or the Secretary to direct another place for custody does not correspond to subpara (a)(iv), which was concerned with an approval of another place of custody by the Minister. They are different things; and
(c) the capacity of the Minister to approve in writing ‘another place’ of custody under subpara (a)(iv) must be exercised by the Minister in writing, whereas the power to direct another place for custody can be exercised by the Minister or the Secretary and need not be in writing.
150 The more natural reading of ss 92(2) and 93(8) is not as provisions which engaged with subpara (a)(iv) but rather as providing power for the Minister or the Secretary to direct which of the places (that come within the definition of “custody”) in which the person should be held; that is, as between the different forms of custody provided for by the Act (including those approved under subpara (a)(iv)). I am not persuaded that Parliament intended that subpara (a)(iv) of the definition of “custody” operate through corresponding substantive provisions such as ss 92(2) and 93(8) and not as a source of power.
151 To my mind, the applicant’s review of the legislative history provides little support for the argument that subpara (b)(v) should not be construed as impliedly conferring power.
152 Fifth, the applicant argues in the alternative that, if according to established principles of statutory construction, the Court considers that it must strive to find some work for subpara (b)(v) to do, then the Court should construe it as operating upon the existence of a historical fact - the existence of a “writing” which meets the description of “an approval by the Minister of another place for immigration detention”.
153 I do not accept that suggested construction is appropriate. Important consequences can flow from a decision of the Minister under subpara (b)(v) to approve ‘another place’ of immigration detention, and any decision as to whether or not to approve a particular place may involve questions of real public importance. By granting such an approval, the Minister can decide where (and therefore in what conditions) a person can be mandatorily detained and lawfully deprived of their liberty. I would not construe subpara (b)(v) as permitting the Minister, acting in a purely personal capacity, to approve ‘another place’ of immigration detention, that is, without the Minister having been conferred with any statutory power to do so.
154 It is perhaps worth reiterating that the applicant’s argument that subpara (b)(v) operates on the historical fact of the Minister creating a document, in a purely personal capacity and without any need for a conferral of power, is an argument of the same type or species rejected by the High Court in Mayer (at 302-303) and in Oates (at [16]). The argument is contrary to the principle, earlier identified, that where a legislative provision:
(a) recognises that a public office holder, such as the Minister in this case, may make a decision to approve or consent to something, but does not expressly confer power to do so;
(b) there are statutory consequences for such a decision;
(c) there is no other statutory provision or instrument which confers power to make such a decision; and
(d) the provision would have nothing to do, or put another way would be without effective content, unless it is construed as conferring power,
the provision may readily be construed as impliedly conferring power upon the public official to so approve or consent, or to refuse to do so. The preferable approach is to construe subpara (b)(v) as impliedly conferring power on the Minister.
155 Sixth, in Mekpine at [61]-[62] the High Court explained that the general principle that statutory definitions are not a source of substantive power can be departed from where there is “a clear contrary legislative intent”. Here, as found in Burns Philp (at 729G), the clear intention of Parliament is apparent in the definition section itself. If there was no intention to confer power then there was no reason for the legislature to have included those words. I note too that subpara (b)(v) is additional to subpara (b)(i) which concerns “detention centres”, which indicates a legislative intention that the Minister be empowered to approve places of detention other than “detention centres”. In my view it is appropriate to construe the Act on the basis that Parliament would have understood the important consequences that may flow from a decision to approve ‘another place’ of immigration detention. There is nothing to show, and it is inherently unlikely, that the legislature intended that the Minister could approve ‘another place’ of immigration detention acting in a purely personal capacity.
156 Seventh, during oral submissions I raised a question as to whether the principle of legality was relevant to the proper construction of subpara (b)(v). In Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1 at [42], French CJ explained the principle in the following terms:
Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a “principle of legality” which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this Court in Lacey v Attorney-General (Qld).
(Footnotes omitted.)
157 In X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [158], Justice Kiefel (as her Honour then was) said:
The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.
(Footnotes omitted.)
158 The applicant submits that the principle of legality prompts the question as to whether the Minister has the capacity to “determine any place whatsoever as a place of detention” as well as whether the Minister may delegate such an important decision. The applicant emphasises the “drastic consequences” that result when a person is detained through the operation of s 189, and submits that the Act clearly identifies “detention centres” as places where a detainee could be held, but does not do so clearly in relation to ‘another place’ of immigration detention.
159 Although I had raised the issue, I was drawn to conclude that the principle of legality has little or no work to do in the present context. There must, of course, be clear statutory language to abrogate liberty, but here, through ss 189 and 196 of the Act, the legislature unambiguously manifested an intention that unlawful non-citizens like the applicant be mandatorily detained in a place that meets the definition of “immigration detention”. And I have concluded under established principles of statutory construction, that those places include ‘another place’ approved in writing by the Minister.
160 For those reasons I consider subpara (b)(v) of the definition of “immigration detention” is to be construed as impliedly conferring power on the Minister to approve ‘another place’ in writing as a place of immigration detention.
6. THE NO POWER TO APPROVE A DE FACTO DETENTION CENTRE CONTENTION
161 Under this ground the applicant contends that if, contrary to his primary argument, subpara (b)(v) of the definition of “immigration detention” is a source of power for the Minister to approve ‘another place’ for immigration detention, that power cannot be used to establish what is, in effect, a “detention centre” within the meaning of subpara (b)(i) of the definition and s 273 of the Act. And the applicant argues that at all material times the Hotels were de facto detention centres.
6.1 Does the power under subpara (b)(v) permit the Minister to approve a de facto detention centre
162 At all material times s 273 of the Act provided:
Detention centres
(1) The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.
(2) The regulations may make provision in relation to the operation and regulation of detention centres.
(3) Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:
(a) the conduct and supervision of detainees;
(b) the powers of persons performing functions in connection with the supervision of detainees.
(4) In this section:
"detention centre" means a centre for the detention of persons whose detention is authorised under this Act.
163 Section 273 was introduced into the Act by the 1989 Amendment Act as s 59, and immediately renumbered as s 113. As discussed, the operative concept at that time was “custody” rather than “immigration detention” and “detention centre” was defined in s 113(4) to mean a “centre for the detention of persons whose detention in custody is authorised under this Act” (emphasis added). The 1992 Reform Act removed the words “in custody” from the definition and the 1994 Amendment Act renumbered s 113 as s 273, which has remained.
164 At all material times subpara (b)(i) of the definition of “immigration detention” provided that it includes “being held by, or on behalf of, an officer…in a detention centre established under this Act”, and that a “detention centre” is one of the five types of places identified in subpara (b) of the definition. It is not in dispute that the Commonwealth established and maintained the Hotels as places of immigration detention by exercise of an asserted power under subpara (b)(v) of the definition of “immigration detention”, and not by exercise of the power under s 273.
165 The applicant contends that the conditions of his detention in both Hotels meant they were, in effect, “detention centres”, and that the power to establish a “detention centre” is only found in s 273. He argues that on the principle of statutory construction usually associated with Anthony Hordern, any power sourced in subpara (b)(v) of the definition of “immigration detention” cannot be used to establish a de facto detention centre.
166 In part the applicant relies upon the Explanatory Memorandum for the 1989 Amendment Bill (at [124]) which said the following in relation to s 59 (later renumbered as s 273).
Section 59 is inserted into the Act to enable the Minister to establish and maintain detention centres for the custody of persons detained under the Act. Currently, detainees are held either in administratively established detention centres or in gaols. It is desired to establish, under the Act, detention centres that can be subject to regulations dealing with the conduct and supervision of detainees, and the powers of persons supervising detainees. This would establish the rights, responsibilities and obligations of all concerned with the detention of persons under the Act.
167 The applicant argues that this shows that the purpose of introducing (what became) s 273) was for the Minister to be able to establish “detention centres” that can be subject to regulations dealing with the conduct and supervision of detainees. As it has eventuated, no relevant regulations have been made, but the applicant argues that does not gainsay that the legislature’s intention in enacting s 273 was to implement a formal system of “detention centres”, properly so-called, and governed by regulations. He submits that the fact that successive Executives have defied the legislature’s intention that there should be a regulatory framework of rights, responsibilities and obligations does not deny that that was the legislature’s intention. He notes that there is no comparable regime - i.e. no equivalent of ss 273(1)-(3) - for any of the other subparagraphs of para (b) of the definition of “immigration detention”.
168 Having regard to the definition of “detention centre” in s 273(4) the applicant contends that a “detention centre” must, at least, be a “centre for the detention of persons” which cannot be a disparate or scattered constellation of informal or ad hoc locations. He argues that it must be a “centre” in the sense of “a building or building complex which houses a number of related specific services” as “centre” is defined, or an “institution for holding people in custody” as “detention centre” is defined (in the Macquarie Dictionary (4th ed., 2005)).
169 The applicant also submits that a “detention centre” must be a centre of a kind that is appropriate for the detention of persons, where people may be held and deprived of their liberty, not one with free access and egress. That is consistent with the decision in SBEG FC (at [54]) where the Full Court said:
Immigration detention under the Act involves “restraint by an officer” while a detainee is in that officer’s company, or “being held by, or on behalf of, an officer” in one of the places described in (b) of the definition of immigration detention. That means confinement in a facility and restrictions upon the movements of the detainee so that the detainee is not free to come and go as he or she pleases. Detention necessarily involves the loss of personal liberty, and, usually, of the right to privacy as well.
(Citations omitted.)
The Full Court went on to say (at [55]) that a “more relaxed form of accommodation, especially one with no constraint on [the detainee’s] ability to come and go as he pleases, is not available” under subpara (b)(v) of the definition.
170 The applicant submits that at least two things can therefore be known about “detention centres” within the meaning of subpara (b)(i) of the definition. First, they will involve deprivation of liberty and restraint. Second, that must occur in a “centre” in the sense of a building or building complex, or institution, existing for the purpose of such restraint. He accepts that ‘another place’ of detention approved under subpara (b)(v) of the definition must have the first of those characteristics, but contends that there is nothing to suggest that it must have the second. He notes that in SBEG (No 2) (at [112]) Besanko J rejected the contention that “immigration detention” within the meaning of subpara (b)(v) must be detention in a “formal, institutional place”. The applicant then goes one step further. Based on the principle in Anthony Hordern he contends that the Court should find that “immigration detention” within the meaning of subpara (b)(v) of the definition must not be in a “formal institutional place” or a de facto detention centre.
171 On the applicant’s argument:
(a) section 273 of the Act expressly empowers the creation of “detention centres” which, if they are created, are to be the subject of regulations made under s 273(2) and (3). The Explanatory Memorandum expressly states that the purpose of enacting the provision was to establish “detention centres” that “can be subject to regulations dealing with the conduct and supervision of detainees, and the powers of persons supervising detainees” and “establish the rights, responsibilities and obligations” of persons involved in detention in such places;
(b) if a “detention centre” could also be established by the expedient of having the Minister approve ‘another place’ in writing under subpara (b)(v), then the purpose of s 273 would be undermined. Orthodoxly, subpara (b)(v) of the definition of “immigration detention” should therefore be read as not trenching on the same subject matter as is covered by subpara (b)(i) of the definition, nor trenching on the subject matter of s 273 which empowers the Minister to establish “detention centres”; and
(c) construing subpara (b)(v) in this way would not mean it had no work to do. It would remain useful for very many other kinds of immigration detention, as shown in the variously dated written instruments of approval in evidence, by which delegates of the Minister have approved (or at least purported to approve) hospitals, health centres, private residences and educational institutions as places of immigration detention. Thus, detainees who need medical treatment can be taken to a hospital designated as an APOD, detainees who are minors needing education can be taken to a school designated as an APOD, or a detainee who needs to be detained for a day or two until a place in an IDC is available, might be detained in a hotel designated as an APOD.
172 The applicant rejects the Commonwealth’s contention that the “flexibility” afforded by the power in subpara (b)(v) for the Minister to approve ‘another place’ of immigration detention is critical to the operation of the Commonwealth’s detention network. On his argument, while the Minister cannot use the power under subpara (b)(v) of the definition to create a de facto detention centre, the Minister can still create detention centres using the s 273 power which exists for precisely that purpose. And if the Minister wants to approve some alternative places of detention that are not, in effect, s 273 detention centres, the Minister still can. He argues that all other detention options remain available and there is no real loss of “flexibility”. In any event, the applicant argues that it is unclear why “flexibility” should be the paramount consideration in construing legislative provisions relating to detention, nor why that objective should prevail over other policy objectives.
173 The applicant therefore submits that, if the Court finds that subpara (b)(v) of the definition of “immigration detention” is a source of power, it should go on to find that that power cannot be used to create a de facto detention centre. He submits that, if a detention centre is to be established, the legislature intended that s 273 be used to do it.
6.2 Consideration
174 In Anthony Hordern (at 7) Gavan Duffy CJ and Dixon J (as his Honour then was) stated the following principle:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
See also the discussion of the maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) in Pearce, Statutory Interpretation in Australia (9th ed., LexisNexis Butterworths, 2019), at [4.46]-[4.50].
175 In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 the High Court was required to consider whether s 501(2) of the Act was restricted by the deportation power in ss 200 and 201 and turned to consider the principle expressed in Anthony Hordern. Gummow and Hayne JJ explained (at [54]):
Underlying Anthony Hordern and later cases is the notion “that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise”. (Citations omitted.)
176 Following a review of the relevant authorities (at [55]–[58]) Gummow and Hayne JJ explained as follows (at [59]):
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
(Emphasis added.)
177 Their Honours went on to say (at [61]) that:
…the two powers [in s 501(2) on the one hand, and ss 200 and 201 on the other] do not deal with the same subject-matter so as to attract the operation of the maxim expressum facit cessare tacitum and the reasoning which underpins Anthony Hordern and other decisions…. This is so notwithstanding that, by reason of other provisions of the Principal Act, the exercise of both powers may result in the same practical outcome.
178 Heydon and Crennan JJ held (at [165]) that the principle in Anthony Hordern had no application for reasons including that “there is no repugnancy between the two powers. In fact, they are consonant with each other.”
179 I do not accept the applicant’s contention that the principle in Anthony Hordern operates to impliedly limit the Minister’s power to approve ‘another place’ of immigration detention under subpara (b)(v) of the definition such that the Minister has no power to approve a place that is, in effect, a detention centre.
180 I say that, first, because the fact that s 273(1) of the Act expressly empowers the Minister to establish and maintain a “detention centre” does not mean that it impliedly excludes the operation of a more general provision. As stated in Nystrom the principle explained in Anthony Hordern is that a power conferred by a statutory provision which “prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed” impliedly excludes the operation of a general provision which might otherwise have been relied on for the “same power”.
181 Here, there is nothing in the power under s 273 for the Minister to establish and maintain a detention centre, or in the words of subpara (b)(i) of the definition of “immigration detention”, which prescribes the mode in which that power shall be exercised, or contains any conditions or restrictions which must be observed. The power under s 273 is expressed in entirely general terms, without any condition or restriction which must be observed so as to attract the principle in Anthony Hordern.
182 To get around that difficulty the applicant seeks to rely on s 273(2) of the Act, which provides that “[t]he regulations may make provision in relation to the operation and regulation of detention centres” (emphasis added) and on subs (3), which is expressed as not limiting the generality of subs (2). But those subsections do no more than provide that the Executive has the power to make regulations “in relation to the operation and regulation of detention centres.” That is a bare power to make regulations and no regulations have been made. The fact that the legislature provided the Executive with power to make regulations falling within that entirely general description cannot, of itself, reasonably be said to prescribe the mode in which that power shall be exercised, or contain any conditions or restrictions which must be observed so as to attract the principle in Anthony Hordern.
183 In a further attempt to get around the same difficulty the applicant relies upon the Explanatory Memorandum which points to a legislative purpose to make regulations which “would establish the rights, responsibilities and obligations of all concerned with the detention of persons under the Act”. It was not put clearly but the argument seems to be that the Explanatory Memorandum somehow prescribed the mode in which the power under s 273 shall be exercised and the conditions and restrictions which must be observed, so as to attract the principle in Anthony Hordern.
184 The applicant’s attempt to rely on the Explanatory Memorandum in that way is, in my opinion, erroneous. In Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [31]-[33], French CJ, Gummow, Hayne, Crennan and Kiefel JJ explained:
As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation.” Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
In Re Bolton; Ex Parte Beane the question was whether a statutory provision concerned with “visiting forces” applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said:
‘[T]he Second Reading Speech of the Minister ... quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.’
Regard was had by the Full Court in this case to what was said in Re Bolton; Ex Parte Beane. Nevertheless, it is apparent that the Court did not consider the actual terms of s 51A and its application to the provisions of the subdivision. As was pointed out in Catlow v Accident Compensation Commission it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction.
(Footnotes omitted, emphasis in original.)
185 There is nothing in s 273(1) which describes the mode in which that power shall be exercised, or contains any conditions or restrictions which must be observed in the exercise of that power, and s 273(2) says no more than that the Executive may make regulations “in relation to the operation and regulation of detention centres”. The Explanatory Memorandum cannot be substituted for the language actually used in s 273. But even if it is appropriate to consider the Explanatory Memorandum, it does no more than indicate that the legislative purpose includes making regulations which “would establish the rights, responsibilities and obligations of all concerned with the detention of persons under the Act”. That purpose is expressed in very general terms and it cannot reasonably be said to prescribe the mode in which the power under s 273 shall be exercised nor any conditions and restrictions which must be observed.
186 Second, the applicant’s contention that the power in subpara (b)(v) should not be read as trenching into the same subject matter as covered by subpara (b)(i) of the definition sits uneasily with the fact that subparas (b)(ii)-(iv) include “police stations” and “prisons or remand centres” which are formal, institutional places, and also includes “vessels” which are not. The five types of places of “immigration detention” identified in para (b) vary considerably in character and there is no type, species or class by which the entirely general phrase ‘another place’ in subpara (b)(v) could be read down. The only common thread is that each of the identified types of places is a place of detention, which involves restrictions on liberty, as could be expected: see SBEG FC at [54]-[55]).
187 In SBEG (No 2) at [112] Besanko J said:
I do not think the “other places” within paragraph (b)(v) need be a formal institutional places like MITA [Melbourne Immigration Transit Accommodation].
His Honour did not say that ‘another place’ within subpara (b)(v) of the definition could not be a formal institutional place. His Honour said (at [112]) that “a person in a place approved under paragraph (b)(v) would need to be guarded, and … [that] the extent of the security measures would be a matter for the Commonwealth.” I do not accept that his Honour’s remarks indicate that ‘another place’ approved by the Minister under subpara (b)(v) cannot be a formal institutional place. In my view it can.
188 Third, although this is less significant to my view than the earlier points, the authorities recognise a legislative intention that flexibility is likely to be required within the system of mandatory detention and that the Minister has a broad power to select the particular mode of detention and place of detention of a detainee.
189 In VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554 at [9]-[10] Ryan J held that the selection of a particular mode of detention is invalid only if it falls outside the definition of “immigration detention” in s 5 of the Act and that “the flexibility in the selection of a mode and place of detention which the various statutory definitions [in s 5] afford does not, by implication, restrict the Minister’s choice in a particular case or impose any statutory duty to consider alternative modes of detention” (at [10]). That statement was cited with apparent approval by the Full Court in SBEG FC at [49], and by Tracey J in Graham v Minister for Immigration [2018] FCA 1012; 265 FCR 634 at [107]. At [122] Tracey J went on to say “[o]nce he was taken into detention Mr Graham had no right, under the Act or otherwise, to be held in any particular place of immigration detention. His management required decisions to be made as to the most appropriate available facility in which he was to be held.”
190 In AZC20 FC at [93] the Full Court said that:
…both para (a) and para (b) [of the definition of “immigration detention”] contemplate some level of decisional freedom for the detainer in the form of detention that is appropriate at any given time, and for any reasonable and lawful purpose. The approach taken by the primary judge removed that decisional freedom, contrary to Parliament’s intention about the flexibility likely to be required within a system of mandatory detention such as that under the Migration Act, including to ensure that the duty of care acknowledged in Mastipour can be discharged.
(Emphasis added.)
191 Together, the above matters strongly point away from construing s 273 of the Act and subpara (b)(i) of the definition of “immigration detention” as impliedly limiting the Minister’s power under subpara (b)(v) only to the approval of places which are not a formal institutional place and not a de facto detention centre.
6.3 Whether the Hotels operated as de facto detention centres
192 Having regard to my conclusion that subpara (b)(v) of the definition of “immigration detention” impliedly confers power upon the Minister to approve ‘another place’ of immigration detention whether or not it is a de facto detention centre, it is strictly unnecessary to deal with the applicant’s contention that the Hotels were, in effect, detention centres. But in circumstances where the issue was fully argued, and against the event that I am held to be wrong in my view, I now turn to deal with that contention.
193 For a number of reasons, understood in combination, I consider the Hotels were, in effect, detention centres.
194 First, the Commonwealth submits that as a matter of law, detention centres under the Act do not have fixed characteristics, nor any characteristics that are fixed and unique. It submits that, as a matter of law, the definition of “detention centre” in s 273(4) of the Act sheds no light on the characteristics of such a place. It notes that in Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93; 259 FCR 576, Finn J at [2], and Selway J at [18] commented on the “vacuum” that exists in the legislative scheme in relation to the manner and conditions of immigration detention.
195 That overstates the position. At all material times s 273(4) defined a “detention centre” as a “centre for the detention of persons”. While that is not very informative, it at least indicates that it must be a “centre” in the sense of a building, building complex or institution for the purposes of holding people in detention. At the least it means that a “detention centre” is not to be a disparate or scattered constellation of informal or ad hoc locations; it connotes a formal, institutional place.
196 The Commonwealth also seeks to differentiate the Hotels from a detention centre on the basis that the power to establish a detention centre is exercised by the Minister under s 273, and may involve consultation with Cabinet, while the power to approve ‘another place’ of detention under subpara (b)(v) of the definition has been delegated to Departmental officers. There is no force in this argument. The different political or administrative processes by which a detention centre is established as compared to an APOD explains nothing about the characteristics of ‘another place’ of detention which is approved by the Minister.
197 Second, the Commonwealth argues that as a matter of fact, the differences between s 273 detention centres and APODs and the reasons for the differences were explained by Mr Watts. In essence, it contends that the reasons for the similarities between the Hotels as places of detention and detention centres established under s 273 are explainable because they both perform the function of immigration detention. I take a different view.
198 I accept Mr Watts’ evidence that:
(a) detention centres and APODs are generally used to deal with different types of detainees, who present different levels of risk, and that detention centres are capable of managing detainees who present a higher flight or security risk, while APODs generally provide a lower level of security;
(b) in some detention centres there is a high proportion of people who have come out of custodial sentences for serious criminal offences, and that it would be inappropriate to detain someone like the applicant alongside them; and
(c) one of the purposes of establishing the Hotels was so that medical transferees like the applicant were not detained alongside such people.
But that does not explain very much about the necessary characteristics of a place approved as ‘another place’ of detention to detain people like the applicant.
199 Mr Watts described detention centres as a “fixed place” used to perform the “single function” of housing detainees in a “traditional detention environment”, which he said stood in contrast to ‘another place’ of detention or APOD approved under subpara (b)(v). He said that APODs (which includes the Hotels) were “a flexible detention solution operated on an “as needs’ basis”, which are approved for a variety of reasons (such as hospitals, residences in the community, and for detention of transitory persons) and are often used for shorter periods of detention. But that is not how, in fact, the Hotels operated or (having regard to the contract with Serco) were intended to operate.
200 This aspect of Mr Watts’ evidence was more directed to how APODs in general were intended to operate, rather than how the Hotels (a type of APOD) actually operated. Some of the features of detention in the Hotels meant they operated very much like a detention centre established under s 273. The Hotels had much more in common with a “a fixed place … perform[ing] the single function of housing detainees in a traditional detention environment” than they did with a “flexible detention solution operated on an ‘as needs’ basis”.
201 A similar point can be made about Mr Watts’ evidence that one of the relevant difference is that APODs are used for “shorter periods of detention”. That may well be how the Commonwealth intended the Hotels to be used as places of detention but that is not how they were actually operated. The applicant was detained in the Hotels for just over 14-months and the evidence tends to show that others were detained there even longer. It is not apt to describe detention for 14-months as short-term detention, particularly when the applicant was given no information, and apparently had no idea as to when or whether his detention in the Hotels might end.
202 Third, under its contracts with Serco, the Commonwealth treated APODs (which include the Hotels) similarly to detention centres in relation to the required level of security. The contract contained “Key Performance Indicator 3 - Security” under which performance measure 3.1 was “Escapes from Detention”. In relation to both detention centres and APODs, the contract provided for “zero tolerance” and a “high” risk rating in relation to that performance indicator. In relation to “escape risk” the Commonwealth had the same tolerance and risk rating for the Hotels as it did for detention centres, whereas in relation to Immigration Residential Housing and ITA facilities, the contract provided for higher tolerance and a lower risk rating.
203 The Commonwealth seeks to differentiate detention centres from APODs by noting that its contract with Serco provided that the screening and searching of detainees in detention centres was mandatory before an escort or transfer, whereas screening and searching was only mandatory in APODs when it had been “determined to be required”. I do not accept that was, in fact, a difference. The applicant gave unchallenged evidence that before and after being taken to MITA, and before and after every visitor, he was required to undergo screening and pat-searching. It seems that there was little or no difference in regard to the screening and searching of detainees as between detention centres and the Hotels. The evidence tends to show that the Commonwealth held Serco to very similar security standards in the Hotels as it required in detention centres established under s 273, and detainees in the Hotels were detained in a manner which had few meaningful differences from the way in which detainees were detained in detention centres.
204 Mr Watts said that detention centres are capable of managing detainees who present a higher flight or security risk, while APODs generally provide a lower level of security, yet the evidence shows that the security regime in the Hotels was very strict. I would describe the regime as intrusive and pervasive, and in some aspects heavy-handed.
205 As I have said, the features of the security regime in the Hotels included:
(a) use of static-posted guards in foyers, elevators, and on emergency exit doors, and roving officers for the purpose of escorting detainees during internal movements, and supervising visits and other activities;
(b) management of telephone calls, including by making records of detainee requests for telephone contact with the Ombudsman, the Australian Human Rights Commission, and lawyers;
(c) monitoring internet traffic and prohibiting gambling, creating personal webpages or Facebook groups, or posting to personal blogs;
(d) searching detainees’ rooms and daily (or at the Park Hotel, twice weekly) fabric checks of occupied rooms and common areas;
(e) perimeter checks of the Mantra Hotel at least twice daily (or at least four times daily at the Park Hotel);
(f) entry and exit screening checks of detainees, including searching for “contraband” and pat-searches, recorded on body or handheld cameras, before and after every visit by a detainee to MITA and before and after meeting with a visitor;
(g) twice-daily head counts of the detainees;
(h) limitations on (and surveillance and screening of) visitors and communications with the outside world;
(i) maintenance of “intelligence collection, analysis and reporting, for the purposes of development and ongoing review of the risks at the facility as well as all detainee Security Risk Assessments”; and
(j) confiscation of items of personal property from detainees, which on the evidence of the applicant included food, such as biscuits or chips, given to detainees by visitors if they did not consume that food during the visit.
206 The Commonwealth argues that such features merely reflect that the Hotels are places where persons are detained by or on behalf of an officer, noting Mr Watts’ evidence that as a matter of Departmental practice and policy persons detained in an APOD are required to be guarded by Serco officers 24-hours a day, and to be accompanied by a Serco officer if they leave the APOD. Mr Watts said that could be contrasted with the position for people placed in the community under a residence determination (who are deemed to be in immigration detention by operation of s 197AC(1) of the Act). He said that people living in the community under a residence determination are required to meet the conditions of the determination, such as been required to sleep at a specified place, or to observe curfews, and other supervision and reporting arrangements, but they are not supervised by Serco officers and have significantly more freedom of movement. The Commonwealth also argues that the restrictions in relation to internet access are merely part of a general detention network policy, reflecting the need for IT security in a place of detention, and that the IT infrastructure was government provided.
207 I do not accept that the very strict security regime in place at the Hotels was just a reflection of the fact that the Hotels were places of immigration detention. As Mr Watts’ evidence made clear, the security features and arrangements for APODs generally, and in the Hotels specifically, were matters of Departmental policy and practice. The Act required that detainees be held in immigration detention by or on behalf of an officer, but there were (and are) no regulations which require how the detention to be undertaken, nor as to the conditions of detention including the security regime. Notwithstanding that, there were no regulations requiring this, the Department chose to impose a very similar security regime in the Hotels to that which it imposed in detention centres. The Department did so notwithstanding that Mr Watts seemed to accept that medical transferees presented a lower security risk than detainees who had just finished custodial sentences for serious criminal offending. And it did so even though it knew that many of the transitory persons had been brought to Australia to undergo medical treatment for serious psychiatric or psychological problems. There was no requirement for the Department to impose such a strict security regime in the Hotels, it was a choice, and the fact that it did so is material to my view that the Hotels operated like de facto detention centres.
208 Fourth, the applicant relies on the fact that the Hotels had a suite of dedicated services set up by the Commonwealth for use by the detainees, including a “welfare and engagement hub”, a “multi-purpose room”, a “programs and activities hub”, and a “facility shop” for use by detainees, which were to be staffed by Serco “welfare and engagement staff” eight hours per day, five days a week and that Serco maintained records of the food the applicant bought from the “facility shop”. Medical services were provided on site, in dedicated rooms. At the Park Hotel, there were two dedicated rooms, staffed by International Health and Medical Services five days a week, or as required. Access to medical treatment required filling in a “medical request form” and detainees were escorted to and from the medical room by Serco staff.
209 The Commonwealth argues that the provision of these services does not demonstrate that the Hotels operated as detention centres, and instead reflects that the Department sought to ensure that detainees could access as many services as possible. It also says that the provision of medical services at the Hotels is entirely consistent with the use of APODs on an “as needs” basis, including so as to cater for the medical needs of the cohort of transitory persons with medical needs. And it says that the medical facilities were not at the same level as in detention centres. It also says that the applicant’s argument fails to take account of the need to implement COVID-safe measures across the immigration detention network from 2020 onwards.
210 There is some force in this aspect of the Commonwealth’s argument, and this part of the applicant’s submissions is not significant to my conclusion. In circumstances where the Commonwealth planned to hold a large number of detainees in the Hotels, perhaps for lengthy periods, then it was sensible for it to provide a range of dedicated services, on-site, so as to cater for the detainees’ needs. But having said that, the creation of a largely self-contained detention complex or facility at the Hotels, in combination with the very strict security regime, meant that the Hotels were much more like “a fixed place… perform[ing] the single function of housing detainees in a traditional detention environment” (as the Mr Watts described detention centres) than they were a “flexible detention solution operated on an ‘as needs’ basis” (as he described APODs).
211 Fifth, the applicant relies on the fact that a “structured day” was imposed on detainees in the Hotels, in which days were to be “clear and consistently applied”, in which “positive behaviours are incentivised and anti-social behaviours are challenged pro-actively by staff”. This involved a curfew between 9:00 pm and 7:00 am the following day, head counts twice-daily, with two further checks on each detainee each day, two designated meal periods, twice-daily medication rounds and “structured programs and activities” between 9:00 am and 5:00 pm.
212 Again, the Commonwealth argues that the imposition of a “structured day” merely reflects that the Hotels are places of immigration detention where persons are detained by or on behalf of an officer. It says that a “structured day” is not an inherent characteristic of detention centres, is not unique to detention centres, and also applies in other forms of detention. For example, Mr Watts said that a curfew is a usual part of a residence determination.
213 I accept that a requirement for a “structured day” is not an “inherent” characteristic of detention in a detention centre, and that it might apply in other forms of detention. I accept too that managing a large number of detainees almost inevitably involves a structured approach to matters such as meal times, medication rounds, any head counts and the availability of shared activities.
214 But as I have said, there were no regulations setting out any requirements in relation to detention in the Hotels, and it was for the Commonwealth to decide. It had various options and it decided to create a large, essentially self-contained detention facility in the Hotels, to fix a curfew between 9:00 pm and 7:00 am, to have head counts twice-daily, to conduct two further checks on detainees each day, to have fixed meal periods, twice-daily medication rounds and “structured programs and activities” so as to incentivise and govern behavioural standards, and to couple that with a very strict security regime. Again, the result was that the Hotels operated much more like “a fixed place… perform[ing] the single function of housing detainees in a traditional detention environment”, that is, a detention centre, than as a “flexible detention solution operated on an ‘as needs’ basis”.
215 Sixth, Professor Harding concluded that the conditions of detention in the Hotels “resembled” the conditions of detention that would be found in prisons and detention centres. He said:
In many ways it was worse, and in some ways better. Comparing it to prisons (other than high security prisons), it was more restrictive in such matters as access to fresh air and light, and the frequency and intrusiveness of pat-down searches, room checks and body counts. Comparing it to [IDCs], the APOD regime was also more onerous in those ways and in access to recreational and educational facilities. In terms of health services, the APOD regime was probably somewhat better than in a prison setting and similar to that in [IDCs].
216 Professor Harding was requested by the applicant to opine, amongst other things, on whether the conditions under which the applicant was detained were similar to those that would prevail in a prison or an IDC. He addressed that question by setting out Australia’s international obligations in relation to detention, relevant national instruments and also by explaining what he considered to be industry best practice for detention in a prison or detention centre, and then comparing that to the position in the Hotels in the relevant period.
217 In my opinion Professor Harding was well-qualified to offer an expert opinion in relation to the conditions in prisons and immigration detention centres. His involvement with matters of prison administration began in 1971 when he conceptualised and implemented a qualification scheme for officers seeking to become Senior Officers in the Western Australia Prison Service. His career has since involved providing advice on correctional policy and prison administration to a variety of governments. He has been closely associated with the development of international instruments, including involvement with the development of the Beijing Rules for the Administration of Juvenile Justice whilst Rapporteur of Committee II at the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1985). One of his most intensive periods of work in relation to standards of detention and imprisonment occurred during the period 2000-08, when he was the inaugural Inspector of Custodial Services in Western Australia where he developed “Inspection Standards for Western Australian Prisons” and conducted reviews into “offender health services”, and suicides in prison. Whilst Inspector, he visited and assessed three Australian on-shore IDCs: Villawood, Darwin, and Perth, as well as assessing Harmondsworth Immigration Removal Centre in Great Britain at the invitation of its operators, Serco. Professor Harding has written widely in academic journals and books about prison issues over the years.
218 His report was received into evidence subject to the limitations in the Harding Agreed Facts, namely that:
(a) the most recent prisons visited by Professor Harding in his professional capacity were in 2013 (Western Australia) and 2016 (Victoria);
(b) he has not been inside an IDC since 2006/2007, but has seen documentary and video material concerning IDCs and the regional processing centre on Manus Island since that time;
(c) he did not visit the Hotels while they were being used as APODs;
(d) he has never been inside any APOD;
(e) in respect of the size of the rooms at the Park Hotel, he was provided with certain photos contained in the applicant’s affidavit, and a video of a person snoring in the applicant’s room; and
(f) in respect of the tinting on windows in the Hotels, or windows facing on to walls at the Hotels, he was provided with certain photos contained in the applicant’s affidavit, and a video from outside the Park Hotel of the applicant shining a light through the window.
219 I have had regard to those limitations, but the Harding Report tends to confirm my view that the Hotels were, in effect, detention centres.
7. THE UNLAWFUL EXPENDITURE CONTENTION
220 Under this ground of the application the applicant alleges that the Commonwealth’s expenditure under the contracts it entered into with the owners of the Hotels, and its expenditure under its contracts with Serco who performed detention services at the Hotels, was not lawfully authorised and that his detention in the Hotels was therefore unlawful.
7.1 Whether the lawfulness of detention depends on lawful authorisation of the expenditure on the place of detention
221 I commence by dealing with the Commonwealth’s contention that, even if the applicant establishes that the relevant contracting and expenditure was not lawfully authorised, on a proper construction of the Act his detention was nevertheless lawful.
222 It is not in dispute that a person may only be lawfully detained in immigration detention for one of three purposes, being the purposes of removal from Australia; receiving, investigating and determining an application for a visa which would permit the alien to enter and remain in Australia; and determining whether to permit a valid application for a visa: Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 at [26] (French CJ, Hayne, Crennan, Kiefel and Keane JJ).
223 The applicant submits that, not only must detention in immigration detention be for one of those purposes, it must also be detention which is effected lawfully in terms of the contracting and expenditure to carry it into effect.
224 For this proposition the applicant relies on Smethurst v Commissioner of Police [2020] HCA 14; 272 CLR 177 at [124]-[127], [130], where Gageler J said the following:
[124] It is now more than 250 years since the celebrated judgment of Lord Camden in Entick v Carrington cemented the position at common law that the holder of a public office cannot invade private property for the purpose of investigating criminal activity without the authority of positive law. Lord Camden referred to the private papers unlawfully seized in that case as their owner's “dearest property”. He said that “though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass”. In so saying he recognised a link between protection of personal property and protection of freedom of thought and political expression.
[125] Of the judgment in Entick v Carrington, it has been said:
“The principles laid down in [it] affect the very essence of constitutional liberty and security. They ... apply to all invasions on the part of the government and its [officers] of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence, – it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment.”
[126] The principles of constitutional liberty and security carried forward from Entick v Carrington are part of our common law inheritance. We ignore them – or, worse, devalue them – at our peril. For those principles to have appropriate contemporary operation in Australia, their practical application must be adapted to the contemporary reality that digital technology has provided new means by which personal property can be a repository of privately held information as well as new means by which such information can be extracted through the invasion of that private property and afterwards retained and disseminated.
[127] More importantly, in an age in which invasions of common law rights can result in more than just common law remedies, talk of those principles must be backed up by a preparedness on the part of all courts “within the limits of their jurisdiction and consistent with their obligation to act judicially ... [to] provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise”. The remedy of an injunction being constitutionally available within the original jurisdiction of the High Court, the appropriate remedy for the unauthorised invasion by an officer of the Commonwealth of a common law right of a citizen of Australia cannot be presumptively confined to the common law remedy of damages: “for if an owner of property is truly to have a 'strict' or 'fundamental' right not to be unlawfully invaded then this right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric”. In answer to an application by a citizen for a prohibitory injunction to restrain an unauthorised invasion of a common law right to property that is about to occur or is occurring, no officer of the Commonwealth should be heard to say “you can have your damages later”. And in answer to an application by a citizen for a mandatory injunction to prevent the ongoing effect of an unauthorised invasion of such a common law right that has occurred, no officer of the Commonwealth should be heard to say “your damages are enough”.
…
[130] The juridical basis for the final mandatory injunction sought by Ms Smethurst lies in its issue within the discretion of the Court being constitutionally appropriate to restore Ms Smethurst to the position she would have been in had her common law rights to control access to her real and personal property not been invaded by the tortious conduct of the AFP in circumstances in which money alone cannot restore her to that position.
(Footnotes omitted, emphasis added.)
225 The applicant says that he could have commenced this proceeding and argued that the Commonwealth’s contracting and expenditure to establish and operate the Hotels was not lawfully authorised whilst he was still detained in the Hotels, by an application seeking a writ of habeas corpus. He submits that it would have been no answer to such an application for the Commonwealth to say that it had no basis in law to contract and spend public monies on establishing and maintaining the Hotels as places of detention, but the Court should not grant habeas corpus because the applicant could have his damages later.
226 He contends that the principle that the Executive must have lawful authority for any expenditure is as entrenched and fundamental to our constitutional system as the principle stated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs and Anor [1992] HCA 64; 176 CLR 1 at 19 where Brennan, Deane and Dawson JJ (with whom Mason CJ agreed) said:
Since the common law knows neither letter de cachet nor other executive warrant authorising arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorise or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision.
227 While I embrace the remarks in Smethurst and Chu Kheng Lim, I do not see how they materially assist the applicant’s argument.
228 Of course, statutory authority is necessary before an “officer” may lawfully detain an unlawful non-citizen such as the applicant in immigration detention. But here it is not in dispute that under ss 189 and 196, officers had authority and a duty to detain the applicant once he was brought to Australia from PNG.
229 And, it is not in dispute that it would have been unlawful for an “officer” to detain the applicant other than in immigration detention: see TD at [48], [54] per Basten JA (with whom Bathurst CJ at [5], [7] and Hoeben JA at [96]-[97] agreed). Here it is common ground that the only place in which the Commonwealth could lawfully detain the applicant was in a place lawfully approved by the Minister in writing pursuant to subpara (b)(v) of the definition of “immigration detention”. I have concluded that subpara (b)(v) impliedly conferred power on the Minister to approve the Hotels as ‘another place’ of immigration detention, and that by variously dated written instruments of approval delegates of the Minister did so approve the Hotels.
230 On a proper construction of the Act I consider the lawfulness of the applicant’s detention in the Hotels does not depend on whether the Commonwealth’s contracting and expenditure in relation to the Hotels was lawfully authorised. The applicant was at all material times an unlawful non-citizen within Australia, and pursuant to ss 189 and 196 of the Act, an officer was under a duty to take him into immigration detention and keep him there until one of the events identified in s 196(1) had occurred. No such event had occurred up to 21 January 2021, when the applicant was granted a bridging visa and released from detention in the Hotels. Immigration detention under the Act includes being held by or on behalf of an officer at a place approved by the Minister in writing under subpara (b)(v) of the definition of “immigration detention”. The Hotels were so approved and the applicant’s detention was therefore lawful, whether or not the expenditure to establish and maintain them was lawfully authorised.
231 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486 provides some support for this view, albeit limited because it was decided in a quite different context.
232 In that case the appellant, an unlawful non-citizen detained in an immigration detention centre in South Australia, was charged with the offence of escaping from detention contrary to s 197A of the Act. In defending that charge in the Magistrates’ Court of South Australia he sought and obtained the issue of witness summonses seeking production of documents relating to the conditions at the detention centre. On appeal to the High Court the appellant argued that while, as an unlawful non-citizen, his detention was required, conditions as harsh as those at the detention centre meant he had not been detained in “immigration detention” and his detention was therefore unlawful. The appellant sought to demonstrate that by reason of the conditions of the detention centre he, and presumably the other detainees, had the right to leave the detention centre (at [9]).
233 Gleeson CJ said the following (at [10]):
There is a possible ambiguity in the expression “unlawful detention”. It may refer to a case where one person has no right to detain another; the person detained has a right to be free. It could also be used to refer to a case in which the detention is authorised by law, but the conditions under which the detention is taking place are in some respects contrary to law. In the second case, the detainee may be entitled to complain, and may have legal remedies, but it does not follow that he or she is entitled to an order of release from custody, much less that he or she is entitled, in an exercise of self-help, to escape.
(Emphasis added.)
His Honour there explained that there are different ways in which detention may be unlawful, and it being unlawful in one sense does not necessarily mean that there is no longer any authority to detain. His Honour said (at (14]):
It is one thing to challenge the lawfulness of conditions of confinement, or of practices adopted by those in charge of prisons; it is another thing to assert a right to be freed by court order; and it is another thing again to assert a right to escape.
234 His Honour then said (at [21]):
Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort. But the assault, or the negligence, does not alter the nature of the detention. It remains detention for the statutory purpose identified above. The detention is not for a punitive purpose. The detainee is deprived of his or her liberty, but not as a form of punishment. And the detainee does not cease to be in immigration detention within the meaning of the Act.
(Emphasis added.)
235 The same point can be seen in the joint judgment of McHugh, Gummow and Heydon JJ (at [46]). There, the plurality canvassed some of the operation, through other provisions of the Act, of the definition of “immigration detention”; and said:
These examples, drawn from the variety of operations of the definition of “immigration detention” and thus of the reach of s 197A, support a central submission by the first and second respondents. The submission is that there is a relevant distinction to be drawn between lawful authority to detain and the means by which the detention is achieved and enforced, including the conditions of the detention.
(Emphasis added.)
236 Their Honours then said (at [53]):
While the conditions in which detention is suffered may attract remedies of the nature indicated above, they do not deny the legality of the immigration detention and so cannot found a defence to a charge under s 197A.
237 Hayne J said the following (at [174], [176]):
[174] If it is assumed, for the purposes of argument, that it could be shown that those kept at a place of detention were treated harshly, the lawfulness of such treatment may very well be open to challenge. The detaining authority owes duties of reasonable care to those whom it detains. To use more than such force as is reasonably necessary to keep someone in detention would constitute an assault. So the examples could be multiplied. But the place at which the person is detained would remain one of the places identified by the Act where to be held by or on behalf of an officer would mean being in “immigration detention”. And any want of valid legislative authority to commit those acts or make those omissions, which together are said to render the conditions of detention harsh or punitive, denies the lawfulness of those acts and omissions. It does not deny the lawfulness of detention at the place identified in the Act.
…
[176] … What the Act fastens upon is the place of detention, not the conditions experienced while at that place. The limitation on power of the kind to which the appellant points affects the lawfulness of what is done and not done at that place. It does not deny the applicability of the statutory description “immigration detention” to being kept at such a place.
(Emphasis added.)
238 Thus, even if the Commonwealth’s contracting and expenditure on the Hotels was not lawfully authorised that does not show that the applicant’s detention in the Hotels was unlawful.
7.2 Whether the Commonwealth’s contracting and expenditure in relation to the Hotels was lawfully authorised
239 Having regard to my conclusion that the lawfulness of the applicant’s detention in the Hotels does not depend upon whether the Commonwealth’s contracting and expenditure was lawfully authorised, it is strictly unnecessary to decide whether, as a matter of law, the Commonwealth had such authority. But in circumstances where the issue was fully argued, and in the event that I am held to be wrong in my view, I now turn to deal with that argument.
240 The Commonwealth contends that its contracting and expenditure for the establishment and operation of the Hotels as places of immigration detention was lawfully authorised by the executive power under s 61 of the Constitution, or alternatively, by a specific statutory authorisation under s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) (the FFSP Act) and reg 16 and Sch 1AA, item 417.017 or 417.018 of the Financial Framework (Supplementary Powers) Regulations 1997 (Cth) (the FFSP Regulations).
241 Against that contention the applicant submits that:
(a) the executive power under s 61 of the Constitution does not extend to expenditure on creating and maintaining the Hotels as places of immigration detention, citing Williams v Commonwealth of Australia [2012] HCA 23; 248 CLR 156 (Williams (No 1)) and Williams v Commonwealth of Australia [2014] HCA 23; 252 CLR 416 (Williams (No 2));
(b) in the alternative, that s 32B of the FFSP Act is invalid;
(c) additionally and/or alternatively to particular (b), that the FFSP Regulations did not, at the relevant times, provide for expenditure to detain a person such as the applicant; and
therefore his detention in the Hotels was unlawful.
7.2.1 Whether s 61 of the Constitution authorised the Commonwealth to contract and spend in relation to the Hotels
242 The Commonwealth primarily relies on the executive power under s 61 of the Constitution as the source of its authority to contract and incur expenditure to establish and maintain the Hotels as places of immigration detention.
243 Section 61 provides:
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
244 The extent to which the executive power in s 61 of the Constitution authorises the Commonwealth to expend public monies was considered in Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1. The case concerned the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) (the Tax Bonus Act) which provided for the payment of ‘tax bonuses’ to certain categories of taxpayers as an economic stimulus measure during the global financial crisis. By majority (French CJ, Gummow, Crennan and Bell JJ, with Hayne, Heydon and Kiefel JJ dissenting) the High Court held that the need for the immediate economic stimulus spending in response to a global financial crisis, enlivened legislative power under s 51(xxxix) of the Constitution to enact the Tax Bonus Act as a law which was incidental to that exercise of executive power. French CJ said (at [133]) that the executive power extends to short-term spending directed at combating adverse economic conditions affecting the nation as a whole, where such measures are peculiarly within the capacity and resources of the Commonwealth. Gummow, Crennan and Bell JJ observed (at [215]) that the phrase “maintenance of this Constitution” in s 61 imports more than what is identified as “prerogative” power in constitutional theory, it “conveys the idea of the protection of the body politic or nation of Australia”.
245 The scope of the executive power in s 61 was given further consideration in Williams (No 1). In that case, the Commonwealth had entered into a contract with a religious organisation for the provision of chaplaincy services in State schools. Mr Williams, a parent of children in an affected State school, challenged the validity of the contract and the expenditure of public money under it (at [2]). A parliamentary appropriation had been made for each year in which the school chaplaincy program was on foot (at [90], [172]), but no statute empowered the Commonwealth to contract and expend public money upon the school chaplaincy program. Instead, the Commonwealth relied upon the executive power under s 61 of the Constitution (at [2], [39], [72], [88], [451] and [532]).
246 The Commonwealth made two alternative submissions as to the extent of the executive power; a “broad basis” and a “narrower basis”:
(a) under the broad basis of the executive power, the Commonwealth contended that because its capacity to contract and spend money lawfully did not interfere with the rights and duties of others, its contractual and spending powers were those of a legal person (at [62], [150]). It contended that the scope of executive power to contract and to expend monies, even absent statutory authority, was as broad as the totality of the areas that fell within Parliament’s legislative ambit, particularly under s 51 of the Constitution. Six of the judges in the majority (French CJ at [27], [35]-[38], Gummow and Bell JJ [134]-[137] and [150]-[159], Hayne J at [251]-[253], Crennan J at [534] and Kiefel J at [593]-[595], [597]) rejected that submission; and
(b) in the alternative, under the narrower basis of the executive power, the Commonwealth contended that the scope of executive power to contract and to expend monies extended to any subject within the express grant of legislative power in ss 51, 52 and 122 of the Constitution. It submitted that, even absent statutory authority, if the Commonwealth could have made a valid law, there is executive power to contract and to spend money (at [176], [567]). A majority (French CJ, Gummow, Crennan, and Bell JJ) rejected that view. Hayne and Kiefel JJ found it unnecessary to decide whether the narrower view was correct.
Thus, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, with Heydon J dissenting, held that the contract for the school chaplaincy program and the associated expenditure were beyond the executive power of the Commonwealth described in s 61 of the Constitution.
247 Shortly after the decision in Williams (No 1) the Federal Parliament enacted the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) which amended the Financial Management and Accountability Act 1997 (Cth) (FMA Act) and the Financial Management and Accountability Regulations 1997 (Cth) (FMA regulations). The amendments were intended to provide the necessary statutory authority for Commonwealth expenditure on the school chaplaincy program and for the making of many other arrangements and grants. Section 32B of the FMA Act, as amended, provided that the Commonwealth had power to make a commitment to expend public monies where the contract was specified in the FMA regulations. New Sch 1AA of the FMA regulations identified a large number of such commitments, including a commitment relating to the school chaplaincy program.
248 In Williams (No 2), Mr Williams challenged the validity of s 32B of the FMA Act and the relevant regulations. The Commonwealth sought to reopen the decision in Williams (No 1) (at [58]-[65]), but the Court declined to do so (at [66]). French CJ, Hayne, Kiefel, Bell and Keane JJ said (at [35]) that the Parliament’s legislative power to enact the FMA Act was founded in every head of legislative power which supports the Commonwealth or a person acting on behalf of the Commonwealth being entitled to have custody or control of money, or making a payment of public money. Further, they said that s 32B dealt with the power to make certain payments of public money and derived legislative authority from the heads of power that support the making of the payments with which the section deals (at [35]), but that it was only necessary to consider the validity of s 32B in relation to the school chaplaincy program (at [36]).
249 Their Honours held (at [90]) that s 32B and the item specifying the school chaplaincy program in the FMA regulations did not validly authorise that program because the program did not fall within the Commonwealth legislative powers relied upon to support its validity, and the making of payments for the purposes of the program was not within the executive power of the Commonwealth. The impugned provisions were therefore invalid and the expenditure was unlawful.
250 The applicant argues that the Commonwealth’s contention that the executive power under s 61 of the Constitution authorised its contracting and expenditure in relation to the Hotels must be rejected, having regard to the decision in Williams (No 1), particularly the rejection of both the broad and narrower basis of the scope of the executive power, and the refusal in Williams (No 2) to reopen Williams (No 1).
251 The applicant cites Williams (No 2) (at [68]-[69]) where, under the heading “Executive power revisited”, French CJ, Hayne, Kiefel, Bell and Keane JJ said the following:
The Commonwealth parties identified the central holding in Williams (No 1) as being "that many, but not all, instances of executive spending and contracting require legislative authorisation". They submitted that this holding was wrong and that there were only seven limitations on the Executive's power to spend and contract. Those limitations can be identified shortly as follows. First, the Executive may not "stray into an area reserved for legislative power". Secondly, an exercise of executive power cannot fetter the exercise of legislative power and cannot dispense with the operation of the law. Thirdly, there can be no withdrawal of money from the Consolidated Revenue Fund without parliamentary authority in the form of appropriation legislation. Fourthly, s 51 of the Constitution "provides every power necessary for the Parliament to prohibit or control the activity of the Executive in spending". Fifthly, through collective and individual ministerial responsibility to the Parliament, the Parliament "exercises substantial control over spending". Sixthly, the Constitution assumes the separate existence and continued organisation of the States. Seventhly, State laws of general application apply to spending and contracting by the Commonwealth without legislative authority.
Although cast as an acknowledgment of what may be accepted to be important limitations on the power of the Executive to spend and contract, this argument was, in substance, no more than a repetition of what were referred to as the "broad basis" submissions which the Commonwealth parties advanced in Williams (No 1) and which six Justices rejected.
(Citations omitted.)
252 On the applicant's argument, the executive power under s 61 is limited to contracting and expenditure for the business of the Commonwealth qua the Commonwealth, and relevantly, the business of Commonwealth departments qua the departments, for example, the leases of departmental premises, the salaries of departmental employees and things of that nature.
253 The Commonwealth contends that the scope of the executive power goes further than that, and includes the doing of all things which are “necessary or reasonably incidental to the execution and maintenance of a valid law of the Commonwealth”. It argues that its contracting and expenditure on the Hotels as places of immigration detention was reasonably incidental to the execution of the Act, and thus within the scope of the executive power, in reliance on the remarks of Chief Justice French in Williams (No 1) at [34]. In that paragraph his Honour said the following:
There are undoubtedly significant fields of executive action which do not require express statutory authority. As was accepted by the Attorney-General of Tasmania in further written submissions, filed after the oral hearing, the executive power of the Commonwealth extends to the doing of all things which are necessary or reasonably incidental to the execution and maintenance of a valid law of the Commonwealth once that law has taken effect. That field of action does not require express statutory authority, nor is it necessary to find an implied power deriving from the statute. The necessary power can be found in the words "execution and maintenance … of the laws of the Commonwealth" appearing in s 61 of the Constitution. The field of non-statutory executive action also extends to the administration of departments of State under s 64 of the Constitution and those activities which may properly be characterised as deriving from the character and status of the Commonwealth as a national government. To accept those propositions is not to accept the broad proposition for which the Commonwealth contended, nor does such a proposition have the authority of a decision of this Court.
(Emphasis added.)
254 Chief Justice French’s remarks in Williams (No 1) at [34] are obiter and do not form part of the ratio of the decision but, contrary to the applicant’s submissions, it is seriously considered dicta and must be treated accordingly: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134] and [158] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Hill v Zuda Pty Ltd [2022] HCA 21; 401 ALR 624 at [25] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ).
255 The applicant contends that Chief Justice French’s remarks are not the correct test in relation to the scope of the executive power because it follows from Williams (No 1) and Williams (No 2), including by picking up the reasoning in Pape, that the Commonwealth requires express legislative power to expend public monies, and that authority cannot be found under s 61 of the Constitution. The applicant argues that such authority must be found in an Act, and here there is none. He says that his Honour’s remarks merely express a broad proposition about s 61 of the Constitution; are against the thrust of both Pape and Williams (No 2); and are not a statement of clear and reasoned support for the proposition which the Commonwealth seeks to derive from it. The applicant says that for authority to expend public monies what is required is a provision of an Act (within power) that either:
(a) authorises (or obliges) the expenditure of money (as was the case with s 5 of the Tax Bonus Act considered in Pape) which must have been lawfully appropriated from the Consolidated Revenue Fund for that purpose; or
(b) requires expenditure of money to carry the provision into effect - in the sense that, unless the provision is construed as authority for the expenditure of money, its purposes would be frustrated. The applicant submits that s 273 of the Act is an example of such a provision, whereas subpara (b)(v) of the definition of “immigration detention” is not.
256 I note that this case arises in a very different context to that in Pape and in Williams (No 1). Pape involved a tax bonus intended to inject an immediate fiscal stimulus into the national economy at the time of the global financial crisis, and where the expenditure was specifically authorised by statute. The case did not raise the question as to whether there is power to expend public money without a statute and only relying upon an appropriation. Williams (No 1) concerned expenditure in relation to a school chaplaincy program which was not connected to the performance of any Commonwealth statutory function or duty, and beyond the ambit of the legislative heads of power. That stands in stark contrast to this case where the contracting and expenditure on the Hotels was directly connected to the performance of a Commonwealth duty, the duty to detain unlawful non-citizens and directly implemented the scheme of mandatory detention created by the Act.
257 I do not accept that the executive power under s 61 of the Constitution is as limited as the applicant contends. Nor do I accept that French CJ expressed the wrong test. In a case in which six Justices of the High Court, in five separate judgments, rejected the broad view of executive power advanced by the Commonwealth, French CJ’s remarks were not the subject of adverse comment by any other member of the majority in that case, nor in Williams (No 2). The applicant did not take the Court to any decision in which his Honour’s remarks were referred to with disapproval.
258 In my view Williams (No 1) stands for the proposition that the Executive will usually require statutory authority (beyond an appropriation Act) to contract and spend public monies, but there are exceptions: see French CJ at [83]; Gummow and Bell JJ at [138]; and Crennan J at [534]. Hayne J did not decide whether the Constitution requires that the Executive “never spend money lawfully available for expenditure without legislative authority to do so” as he considered it unnecessary to do so (at [288]).
259 One of the recognised exceptions is expenditure necessary or reasonably incidental to the execution and maintenance of a valid Commonwealth statute. That is the view French CJ expressed, and it accords with the views of the authors of Constitutional Law in Australia (P. Hanks, F. Gordon and G. Hill, 4th edition, 2018, LexisNexis Butterworths at [4.131]-[4.132], p 234), who state:
The effect of the plurality’s reasoning in Williams (No 1) is that the Commonwealth Executive will usually require specific statutory authority, in addition to an appropriation of money, to spend public moneys.
That general requirement for specific statutory authority is, however, subject to a number of exceptions: expenditure authorised by the Constitution (such as s 82); expenditure authorised by a statute, or made in the execution or maintenance of the statute; expenditure on a subject matter of Commonwealth prerogative power; expenditure made in the ordinary administration of the functions of government; or expenditure on a subject matter of the implied nationhood power. The Commonwealth Executive requires only an appropriation to spend money on those matters.
(Emphasis added.)
260 Finally, well after completion of the trial and submissions (indeed, after I had drafted these reasons) French CJ’s remarks in Williams (No 1) at [34] were approved in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10. The case concerned the 2016 Ministerial Instructions to Departmental officers, and purported decisions made by those officers in accordance with those instructions, in relation to requests for the Minister to intervene under s 351 of the Act. It is not on all fours with the present case, but the explanations by Justices Gordon and Jagot in relation to the scope of the executive power are nevertheless apposite.
261 Gordon J said (at [88]-[89]):
Executive power for the administration of departments and execution of laws
One of the two limbs of executive power mentioned in s 61 is the execution and maintenance of the laws of the Commonwealth. The term "laws of the Commonwealth" is a reference to statute law. The execution of laws means doing something authorised or required by those laws.
The function is characteristically performed by execution of statutory powers; however, it also extends to doing things which are necessary or incidental to the execution and maintenance of a valid law of the Commonwealth once that law has taken effect. The latter field does not require express statutory authority, nor is it necessary to find an implied power in the statute: Williams (No 1) at [34]]. In that sense, administrative action that is incidental to the execution of a law does not involve statutory power, but finds its source in - and is controlled by - the statute and s 61 of the Constitution.
(Emphasis added. Footnotes other than to Williams (No 1) omitted.)
262 Jagot J said (at ([269]):
…the relevant provision is s 61 of the Constitution insofar as it refers to executive power extending to the "execution and maintenance ... of the laws of the Commonwealth". This aspect of s 61 of the Constitution has been said to be “a function characteristically to be performed by execution of statutory powers”, but is not so confined: Williams (No 1) at [34]]. In providing that the executive power of the Commonwealth “extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth”, s 61, as Isaacs J said, “marks the external boundaries of the Commonwealth executive power, so far as that is conferred by the Constitution, but it leaves entirely untouched the definition of that power and its ascertainment in any given instance”. As such, this is the “essential starting point, and the extent it marks out cannot be exceeded”.
(Emphasis added. Footnotes other than to Williams (No 1) omitted.)
263 I do not accept the applicant’s contentions. I consider the scope of the executive power under s 61 of the Constitution extends to doing things which are necessary or reasonably incidental to the execution and maintenance of the Act.
264 On the assumption (contrary to his primary argument) that the scope of the executive power extends to contracting and expenditure which is necessary or reasonably incidental to the execution of the Act, the applicant then contends that the Commonwealth’s contracting and expenditure in relation to the Hotels cannot properly be said to meet that description.
265 The applicant argues that the Commonwealth’s contracting and expenditure cannot be said to be necessary because, to use one example, the Minister could bring into existence some “writing” that approves an existing army base as a place of immigration detention, and the Minister could also “authorise in writing” soldiers stationed at that base to be “officers” (see para (f) of the definition of “officer” in s 5 of the Act). On his argument the fact that something might be perceived to be convenient by the Commonwealth does not make it necessary.
266 I am not persuaded that the word “necessary”, used in the context that it was by Chief Justice French, connotes “necessity” in the ordinary meaning of that word. In Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [101] Gummow and Crennan JJ approved a passage from McCulloch v State of Maryland 17 US 316 (1819) at 413-414 where the Supreme Court of the United States said of the term “necessary”:
Does it always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. ... [The word ‘necessary’] has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports.
267 In Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim and Ors [2012] NSWCCA 125; 83 NSWLR 52 at [45] Basten JA said:
The word “necessary” can have shades of meaning; it is not of “a fixed character, peculiar to itself” but rather “admits of all degrees of comparison”, in the language of the United States Supreme Court in McCulloch v State of Maryland 17 US (4 Wheat) 316 at 414 (1819) cited by Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [101]. The Court in McCulloch, in the same passage, noted at 413:
“If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.”
See also Bathurst CJ at [8].
268 Having regard to the above, there may not be as much of a difference between “necessary for” and “reasonably incidental to” the execution and maintenance of the Act as first appears. But I need not decide whether that is so because the Commonwealth does not argue that its contracting and expenditure in relation to the Hotels was necessary to the execution of the Act. Rather, it argues that doing so was reasonably incidental to the execution of the Act.
269 The applicant says that the Commonwealth’s contracting and expending monies to establish and operate the Hotels as places of immigration detention cannot properly be said to be reasonably incidental to the execution of the power to detain unlawful non-citizens under s 189 of the Act, as that power does not authorise doing anything that the Commonwealth might envisage in relation to the detention of unlawful non-citizens. By way of example, he submits that it could not be reasonably incidental to the execution of the Act for the Commonwealth to enter into a contract, at huge cost, for the construction of a detention centre which is a replica of the Taj Mahal in order that some unlawful non-citizens may be kept in detention there.
270 He also submits that contracting and spending public monies to lease existing premises such as hotels so as to establish and maintain facilities for keeping unlawful non-citizens in “prison-like” conditions is not reasonably incidental to the execution of the power under s 189 of the Act. On his argument what might be reasonably incidental to the execution of the Act is the identification of, say, a school, or a hospital, or some area of an airport for the ad hoc detention of unlawful non-citizens for short times and/or emergency purposes.
271 The applicant says that just because the Commonwealth, in fact entered into contracts to establish and maintain the Hotels as immigration detention facilities, instead of establishing detention centres under s 273, or taking existing detention centres out of “mothballs”, does not mean that, objectively, doing so was reasonably incidental to the execution of the power to detain unlawful non-citizens under s 189. And that just because the Commonwealth, in fact, entered into contracts to establish and maintain the Hotels, instead of taking steps to allow more unlawful non-citizens to live in the community in accordance with residence determinations made under s 197AB, or instead of acting more speedily to consider granting bridging visas to people being held in detention, does not mean that, objectively, doing so was reasonably incidental to the execution of the power in s 189.
272 I do not accept those submissions.
273 I have no difficulty in accepting that it would not, objectively, be reasonably incidental to the execution of s 189 of the Act to construct a detention centre which is a replica of the Taj Mahal in order to detain unlawful non-citizens. But that is not what happened here. And it does not follow that, objectively, it was not reasonably incidental to the execution of the Act for the Commonwealth to expend public monies on leasing, modifying and staffing an existing hotel so that it could be used as a detention facility. The applicant did not explain, and I do not understand, why that could not be “reasonably incidental” to implementing the scheme of mandatory detention under the Act.
274 Nor, contrary to the applicant’s submissions, is there anything in the words of subpara (b)(v) which indicate that only expenditure on identifying facilities which could be used for the ad hoc detention of unlawful non-citizens for short term and/or emergency purposes such as a school, hospital or some area within an airport could be reasonably incidental to the execution of s 189. The words of subpara (b)(v):
(a) do not contain any restriction or limitation as to the types of places that the Minister may approve as ‘another place’ of immigration detention, and do not limit approval only to such places; and
(b) do not contain any restriction or limitation which has the effect that only expenditure on identifying such facilities could be reasonably incidental to the execution of the Act. That would restrict the premises approved under subpara (b)(v) only to those which can be approved (and utilised) as a place of detention without the Commonwealth having to incur expenditure in relation to the premises.
The language of subpara (b)(v) does not support the limitations contended for by the applicant.
275 I accept the applicant’s submission that, in deciding to establish and maintain the Hotels in an attempt to address the capacity constraints in its network of IDFs, instead of taking other steps to reduce the capacity demands, the Commonwealth made choices. But I do not accept that in making the choices that it did, the Commonwealth’s expenditure on establishing and maintaining the Hotels as places of immigration detention was not reasonably incidental to the execution of s 189 of the Act. There is little or nothing in the evidence to show that instead of setting up the Hotels as places of immigration detention:
(a) the Commonwealth should have established another detention centre or reopened a detention centre that had previously been “mothballed”;
(b) the Minister should have opted to make more residence determinations under s 197AB; or
(c) the Department should have more speedily processed visa applications by persons held in detention and granted more bridging visas.
For example, the evidence does not establish the reasonable availability of another mothballed detention centres, nor how many applications for residence determinations or bridging visas were made in the relevant period or how many of those were rejected that should instead have been accepted.
276 I consider the Commonwealth’s contracting and expenditure was reasonably incidental to the execution of the Act; it was in furtherance of the power under s 198 of the Act.
7.2.2 Whether s 32B of the FFSP Act and/or the FFSP regulations provide authority for the Commonwealth to lawfully contract and expend public monies in relation to the Hotels
277 Having regard to my conclusion as to the extent of the executive power it is strictly unnecessary to decide whether in the relevant period s 32B of the FFSP Act and/or the FFSP regulations provided authority for the Commonwealth to lawfully contract and expend public monies in relation to the Hotels. But as the question was fully argued, and in the event that I am held to be wrong in that view, it is appropriate to deal with the question.
278 The Commonwealth contends that it had authority for expenditure pursuant to the executive power and it denies that specific statutory authority was required for its expenditure to establish and operate the Hotels as places of immigration detention. However, it contends that in any event it had (and has) such authority under s 32B of the FFSP Act and/or the FFSP regulations.
279 At all material times s 32B, in Pt 2 of the FFSP Act, relevantly provided that the Commonwealth had power to make, vary or administer an arrangement (defined to include a contract, agreement or deed); if:
(a) the Commonwealth would not otherwise have power to make, vary or administer the arrangement; and
(b) the arrangement is for the purposes of a program specified in the FFSP Regulations.
280 At all material times, s 41, also in Pt 2 of the FFSP Act, provided:
This Part does not, by implication, limit the executive power of the Commonwealth.
281 Thus, the Act contemplates two independent sources of power for Commonwealth contracting and expenditure. First, the executive power under s 61 of the Constitution. Second, if the Commonwealth would not otherwise have authority to contract and expend money, then the Commonwealth is conferred with power under s 32B in relation to those arrangements which are specified in the regulations.
282 At all material times pursuant to reg 16(1)(d), Pt 4 of Sch 1AA of the FFSP Regulations specified the following relevant programs for the purposes of s 32B(1)(b) of the FFSP Act under items 417.017, 417.018 and 417.019 of Sch 1AAA, which provided as follows:
____________________________________________________________________
417.017 Onshore Detention Network - Community and Detention Services
Objective: To manage all unlawful citizens placed into immigration detention who did not arrive in Australia at an excised offshore place, except for illegal foreign fishers.
____________________________________________________________________
417.018 Offshore Asylum Seeker Management - Community and Detention Services
Objective: To provide support, health and detention services to people in immigration detention, in both community and detention environments, and to offshore entry persons seeking asylum.
____________________________________________________________________
417.019 Foreign Fishers - Community and Detention Services
Objective: Two advise on, develop and provide a range of support, health and detention services in community and detention environments for illegal foreign fishers apprehended and detained in Australian territorial waters.
____________________________________________________________________
283 The Commonwealth principally relies upon item 417.018, and lightly upon Item 417.017. It does not rely on item 417.019, but it contends that, taken together, the three items are intended to comprehensively cover all people in immigration detention in Australia, being:
(a) all unlawful non-citizens placed into immigration detention who did not arrive in Australia at an excised offshore place, except for illegal foreign fishers (item 417.017);
(b) detention services to people in immigration detention in both community and detention environments, and to offshore entry person seeking asylum (item 417.018); and
(c) support, health and detention services for illegal foreign fishers (item 418.019).
284 The Commonwealth submits that the legislative history indicates that these items operate by reference to the place of initial detention of a person. On its argument s 32B and the relevant FFSP Regulations came into effect on 28 June 2012. At that time, the Act designated persons who arrived at an excised offshore place as “offshore entry persons”, as defined in s 5 of the Act. Then, the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) (the UMA Amendment Act) removed the definition and reference to “offshore entry person” from the Act and introduced the definition of “unauthorised maritime arrival” by inserting s 5AA into the Act. The concept of an unauthorised maritime arrival (UMA) was intended to maintain the same function as that of an “offshore entry person” is borne out by the amendments made by the UMA Amendment Act by which the words “offshore entry person” were to be omitted and replaced with the words “unauthorised maritime arrival” in a number of sections of the Act including, for example, ss 46A, 198, 198AA and 336F: see BXT17 v Minister for Home Affairs [2021] FCAFC 9; 283 FCR 248 at [74] (Markovic, O’Callaghan and Anastassiou JJ). It argues that item 417.018 therefore dovetails with the exclusion in item 417.017 of persons who arrived at excised offshore places, and was intended to capture persons such as the applicant, who arrived at Christmas Island.
285 The Commonwealth contends that a person’s status as an “offshore entry person” or as a UMA remains with the person, so that “transitory persons” returning to Australia for medical purposes under s 198B of the Act remain “offshore entry persons” (or UMAs). I accept that in relation to UMAs: see BXT17 at [77] and [106], and the same logic applies in relation to “offshore entry persons” such as the applicant.
286 In light of that legislative history the Commonwealth submits that item 417.018 “Offshore Asylum Seeker Management” should be read as encompassing “offshore entry persons” (or UMAs) seeking asylum. It argues that expenditure by the Commonwealth for the purpose of the detention in Australia of persons in the applicant’s position is therefore supported by item 417.018, because these persons are “offshore entry persons”. It contends that there is no basis in the text of item 417.018 to exclude “transitory persons” because the Act at that time provided (under s 198B) for bringing transitory persons to Australia for a temporary purpose, and as offshore entry persons such persons would require to be detained. It also submits that the applicant’s construction of item 417.018 is overly pedantic. It relies on Wilkie v The Commonwealth [2017] HCA 40; 263 CLR 487 at [92] where the High Court said that the constitutional requirement for Parliament to determine the purpose of an appropriation cannot ignore practical necessity.
287 I do not accept the applicant’s submissions regarding item 417.018.
288 First, as is plain from its language, item 417.018 is concerned with expenditure for the provision “to people in immigration detention”, and “to offshore entry persons seeking asylum” of certain services (emphasis added.) The objective of the Commonwealth’s commitment under the item is “to provide support, health and detention services.” It does not authorise any expenditure for the establishment of an immigration detention facility. And it cannot reasonably be said that to create a place in which a person is detained of their liberty is to provide that person with a service. Properly construed, the item covers expenditure for the provision of services to persons held in immigration detention, not the creation of an immigration detention facility itself, such as the Hotels.
289 Second, when the applicant entered Australia at Christmas Island, an excised offshore place, in July 2013 he acquired the status of an “offshore entry person” (as defined). At that time s 198A(1) of the Act provided that offshore entry persons may be taken to a country in respect of which the Minister had made a declaration under s 198A(3). PNG was such a country and the applicant was taken to PNG pursuant to s 198A(1). Section 198A(4) provided that while an offshore entry person was being dealt with under that section a person is taken not to be in “immigration detention” (as defined).
290 Upon the applicant being taken to PNG under s 198A he acquired the status of a “transitory person”. Subpara (a) of the definition in s 5(1) of the Act provided that the meaning of “transitory person” included “an offshore entry person who was taken to another country under section 198A”. Offshore entry persons and transitory persons were not permitted to make a valid application for a visa under the Act. At that time it could not reasonably be said that any Commonwealth expenditure in relation to persons in the applicant’s position was covered by item 417.018; he was not (and could not be) “an offshore entry person seeking asylum” in Australia.
291 Under s 198B of the Act at that time transitory persons could be brought to Australia for a temporary purpose. But upon their arrival in Australia, pursuant to s 46B(1) of the Act, they were prevented from making a valid application for a visa, unless the Minister concluded pursuant to s 46B(2) that it was in the public interest to lift that bar and allow the person to do so. Instead, s 198C provided a specific and limited entitlement for a transitory person, who had continuously been in Australia for more than six months, to have the Refugee Review Tribunal carry out “an assessment of whether the person is covered by the definition of “refugee” in Article 1A of the Refugees Convention as amended by the Refugees Protocol. In relation to transitory persons brought to Australia at that time it could not reasonably be said that any Commonwealth expenditure in relation to such a person was covered by item 417.018; such a person was not (and could not be) someone “seeking asylum” in Australia.
292 The Commonwealth’s argument boils down to the proposition that, by reference to the legislative history the intention of the drafter of item 417.018 was to cover Commonwealth “expenditure to effect the detention of transitory person seeking asylum”. I do not accept that. First, that could not be so when, as at 28 June 2012, the Act made it clear that a “transitory person” could not be someone “seeking asylum” in Australia. Second, if the drafter wished the item to so provide then it would have been straightforward to use that language.
293 Third, the position in November 2019 when the applicant first entered Australia was similar. At that time s 198AD imposed a duty upon an officer to take every “unauthorised maritime arrival” to a regional processing country (unless there was a determination under s 198AE in respect of that person). The applicant had, of course, already been taken to PNG and he had been brought to Australia for a temporary purpose under 198B.
294 At that point s 198C had been repealed, and the description “offshore entry person” had been replaced with “unauthorised maritime arrival”. The applicant was both an “unauthorised maritime arrival” and a “transitory person” (as defined). The definition of “transitory person” provided that its meaning included “a person who was taken to another country under repealed section 198A”.
295 Pursuant to s 198AH, when a transitory person no longer needed to be in Australia for the temporary purpose for which he was brought there, the duty under s 198AD to take the person back to a regional processing country was re-engaged. That was so even where the transitory person had been assessed to be covered by the definition of “refugee” in Article 1A of the Refugees Convention as amended by the Refugees Protocol.
296 At that time, s 46A continued to prevent unauthorised maritime arrivals in Australia from making a valid application for a visa, and s 46B(1) continued to prevent transitory persons from making a valid application for a visa, unless the Minister concluded pursuant to s 46B(2) that it was in the public interest to lift that bar and allow the person to do so. Again, at that time, it could not reasonably be said that any Commonwealth expenditure in relation to persons in the applicant’s position was covered by item 417.018; again, he was not (and could not be) someone “seeking asylum” in Australia.
297 As a fall-back position, the Commonwealth faintly argues that item 417.017 covers expenditure in relation to persons in the applicant’s position. It will be recalled that this item identifies expenditure “to manage all unlawful citizens placed into immigration detention who did not arrive in Australia at an excised offshore place, except for illegal foreign fishers.”
298 The Commonwealth does not contend that the applicant was an “illegal foreign fisher”. Rather, it argues that if items 417.017 to 417.019 are construed as applying to the place of ongoing detention (rather than the place of initial detention), expenditure for the purposes of detention of persons in the applicant’s position is supported by item 417.017. It contends that, although that item excludes persons who arrived at an excised offshore place, the relevant period of immigration detention in this case occurred after the applicant was brought to Australia under s 198B of the Act. It says that the relevant purpose of both of the Hotels was to house transitory persons brought to Australia for a temporary purpose, and on that understanding, expenditure for such detention would be supported by this item of the regulations.
299 I do not accept these submissions. Item 417.017 item expressly provides that it does not apply to persons who arrived in Australia at an excised offshore place. The applicant is such a person. As held in BXT17 at [77] and [106] his status under the Act as an “offshore entry person” (which later became an “unauthorised maritime arrival”) and as a “transitory person” are based on his arrival in Australia at an excised offshore place, and that status continues. Had the drafter wished the item to cover expenditure in relation to transitory persons who are transitory persons brought to Australia for a temporary purpose then it would have been straightforward to use that language.
300 Neither item 417.017 or item 417.018 cover expenditure to detain persons in the applicant’s position. Thus, s 32B of the FFSP Act does not provide statutory authority for the Commonwealth contracting and expenditure to establish and maintain the Hotels as places of immigration detention.
7.3 Whether the FSFP Act and Regulations is constitutionally valid
301 The applicant also submits that s 32B of the FFSP Act is wholly invalid because it constitutes an impermissible delegation of legislative power. It is unnecessary to decide that issue in circumstances where the applicant succeeded on the narrower basis that the relevant FFSP Regulations do not identify a program of expenditure applicable to persons in the applicant’s position.
8. CONFIDENTIALITY
302 The Commonwealth sought a broad suppression or non-publication order under ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) in relation to parts of the Commonwealth and Serco documents produced in evidence either by annexure to Mr Watts’ affidavit or as part of the Court Book. The application was made on the basis that the documents were commercial in confidence, or that they identified details of places designated as APODs, and such an order was necessary to prevent prejudice to the proper administration of justice.
303 The onus on a party seeking to persuade the Court to make an order to restrict publication of evidence is “a very heavy one”: Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438; [1999] FCA 198 at [16] (Madgwick J). In Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30] the High Court held that the word “necessary” in s 37AG(1)(a) denotes a reasonably strict test; necessary is a “strong word”; and (at [31]) it distinguished the test of “necessity” from less demanding standards such as whether a suppression or non-publication order would be “convenient, reasonable or sensible”. To establish that a suppression or non-publication order is necessary to prevent prejudice to the administration of justice requires that the Commonwealth must show more than that it is desirable that an order be made: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8] (Edelman J). Embarrassment or reputational damage is not enough to justify a suppression order, as such results are the price of open justice: Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241 at [28] (Jacobson J).
304 I considered the application for suppression and non-publication orders to be too broad, but there was scope for more appropriately calibrated redactions, for example, so that private houses which had been designated as APODs were not identified and where a detailed breakdown of Serco’s expenditure could confer some commercial advantage on its trade competitors. I indicated that view to the Commonwealth by reference to some specific examples and directed the Commonwealth to file a revised Court Book with more limited redactions. The Commonwealth then did so, but its application for confidentiality continued to go too far, and I directed the Commonwealth to further limit the redactions.
305 Upon the Commonwealth having again attended to that task I reached the view that the proposed redactions were appropriately calibrated to protect the matters about which the Commonwealth was concerned, and also to take account of the requirements of s 37AG and the interests of open justice. On 12 August 2022 I directed the Commonwealth to file and serve a redacted version of the affidavit of Mr Watts and the Court Book, which it attended to.
9. CONCLUSION
306 For the reasons I have explained, it is appropriate to dismiss the application. I am not aware of any reason why costs should not follow the event, and I will make such an order unless, within 14 days, either party proposes a different costs order and files written submissions (not exceeding three pages) in that regard. In that event, the opposing party shall file written submissions (not exceeding three pages) within seven days thereafter. Any application in relation to costs will then be dealt with on the papers.
I certify that the preceding three hundred and six (306) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. |
Associate:
