Plaintiff M76/2013 v Minister for Immigration Multicultural Affairs and Citizenship and Ors [2013] HCATrans 201 (4 September 2013)

Last Updated: 12 September 2013

Replacement Transcript

[2013] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M76 of 2013

B e t w e e n -

PLAINTIFF M76/2013

Plaintiff

and

MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Defendant

THE OFFICER IN CHARGE, SYDNEY IMMIGRATION RESIDENTIAL HOUSING

Second Defendant

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Third Defendant

COMMONWEALTH OF AUSTRALIA

Fourth Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 SEPTEMBER 2013, AT 10.15 AM

Copyright in the High Court of Australia

____________________

MR R.M. NIALL, SC: If the Court pleases, I appear with my learned friends, MS K.L. WALKER, MR C.L. LENEHAN and MS A. RAO, for the plaintiff. (instructed by Allens)

MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia: If it please the Court, I appear with MR S.P. DONAGHUE, SC and MR N.M. WOOD, for the defendants. (instructed by Australian Government Solicitor)

FRENCH CJ: Yes, Mr Niall.

MR NIALL: If the Court pleases. The Court should have an outline of propositions to be advanced by the plaintiff in oral argument. We have also handed to the Court some additional legislation to identify the Acts which were amended since the last reprint relevantly. A principal alteration is the repeal of section 198A, to which I will come in due course.

If the Court pleases, the three principal areas on which I seek to develop in the course of oral argument is, firstly, that there was an error in the processing of consideration under section 46A of the Act, with the consequence that section 198 is not available to remove the plaintiff because there has not been that lawful assessment of Convention obligations as they are incorporated into the Act. The second area of oral argument will be that sections 189, 196 and 198 do not authorise the continued detention of the plaintiff in circumstances where it is not reasonably practicable to remove her; that is, there is no real likelihood or prospect of removal in the reasonable foreseeable future.

In order to advance that proposition, we will seek leave to the extent necessary that the Court should reconsider and overrule the holding in Al-Kateb, principally for the reasons given by Justices Gummow and Bell in Plaintiff M47. In short, we contend that the principle of legality was either not properly applied or given insufficient consideration in the construction adopted by the majority in Al-Kateb.

The third principal area of oral submission will be that if the construction for which Chief Justice Gleeson and Justice Gummow and Justice Kirby found in Al-Kateb and Justice Gummow and Justice Bell in M47 is not accepted, the contrary construction offends Chapter III. Can I deal then firstly with the first series of propositions in relation to the position of the plaintiff? The plaintiff, of course, is an offshore entry person arriving on 8 May 2010. She was detained under section 189(3) and then subsequently 189(1).

Section 46A applies to her, such that she cannot apply for a visa in the absence of the Minister exercising the power in 46A(2). We note that section 198A was potentially available mechanism for assessment but is no longer available, it being repealed. The scheme of which 198 is exemplar is replaced by 198AA which does not apply to the plaintiff.

In our submission, the facts establish that the Minister commenced consideration of exercising the power in 46A(2) in relation to the plaintiff. As part of that process, undertaken under guidelines, inquiries were made after the decision to consider exercising the power and for the purpose of informing the Minister of matters that were relevant to the decision whether to exercise one of the dispensing powers found in section 46A.

Can I turn to the nature of the assessment that was undertaken in relation to the plaintiff and starting with the first proposition in our outline, the starting point – and it is a constraint on section 198, the removal power – is that a person is not amenable to removal under section 198 without an assessment of their claims for protection unless under 198A.

In terms of that assessment for protection, that is not a Convention obligation but rather the extent to which the Convention is incorporated in domestic law under the Migration Act. We have given in proposition 1 authority for that proposition in Plaintiff M70 at various paragraphs to which I will not take the Court.

That starting point that 198 is not available without an assessment then turns to the question of the type of assessment that can be undertaken under section 46A. In relation to that process, it took the form of an assessment process under guidelines in relation to the plaintiff and the first point is that that process was statutory. It prolonged detention and it was subject to legal limits. Your Honours will see the limits that were expressed by the Court in Plaintiff M61 – I will take your Honours to the judgment of the Court in Plaintiff M61.

KIEFEL J: Just before you do, could I ask you, does the plaintiff maintain her status as an offshore entry person when she is moved into the migration zone and directions are made for her to be detained somewhere else?

MR NIALL: She does, your Honour. The definition in section 5 of “offshore entry person” is a person who has at any time entered Australia at an excised offshore place and became an unlawful non-citizen because of that entry. That definition applied to her at the time of entry and it continues to apply to her.

KIEFEL J: Why does it continue? Is that because that status is immutable once it is acquired?

MR NIALL: That is the way we see the concept of unlawful non-citizen remaining in the Act and that once you have entered you get that status and you can be dealt with in a number - - -

KIEFEL J: But you can be an unlawful non-citizen without being an offshore entry person. I am interested in the particular aspect of her being an offshore entry person because it is that to which section 46A attaches.

MR NIALL: It is, your Honour.

KIEFEL J: Accepting that she remains an unlawful non-citizen.

MR NIALL: Of course.

KIEFEL J: She has entered Australia at an excised offshore place but then she is removed to somewhere else.

MR NIALL: She is not - - -

KIEFEL J: She is moved to Western Australia.

MR NIALL: Yes, she has moved. Sorry, your Honour, she is not removed.

KIEFEL J: She is moved.

MR NIALL: She is moved.

KIEFEL J: By an act of the Minister.

MR NIALL: By an act of the Minister, which brings her - - -

KIEFEL J: In the migration zone.

MR NIALL: - - - in the migration zone. There is nothing that movement on the ordinary definition or reading of the definition of offshore entry person would still apply to her.

KIEFEL J: In the event of - just for clarity, whilst I have interrupted your flow, I regret it, at an early point, could I also ask you what you say is the status of the decision in the special case book at page 213, the decision of 24 April 2012, advising the plaintiff that she is ineligible for the grant of a permanent visa? What section is that decision made under? What status does it have?

MR NIALL: It has no status other than as an indication of the officer’s assessment of how the Act would apply to her in the event she was able to apply for a visa. She was ineligible to apply for a visa because of section 46A.

KIEFEL J: You mean it is meaningless? It is advising her of rights that she does not have?

MR NIALL: Well, she certainly did not have a right to apply for a visa and this purports to explain the reason why the 46A power was not exercised in her favour, identifying the existence of Public Interest Criterion 4002 which, of course, the court held was invalid and not a relevant criterion for the grant of a protection visa. What we say happened was that there was an assessment of her entitlement to a protection visa, in the event - to be relevant in the event - - -

CRENNAN J: You mean a proleptic assessment?

MR NIALL: Yes, for the purposes of determining whether or not the Minister should lift the bar under section 46A. The assessment that is undertaken is in advance of an assessment which would by force of statute take place under consideration of an application for a protection visa, but it is an assessment which, in our submission, the Malaysian Case mandated happen either under 46A or under the offshore processing regime.

KIEFEL J: But this stands as a decision that her request to be considered will not be referred to the Minister.

MR NIALL: That is so.

HAYNE J: Why is it any more than evidence that the process of consideration under 46A has miscarried?

MR NIALL: That is precisely what we contend it evidences, that is, that the starting point is that the process under 46A has to reflect the statute – that is, the statutory entitlement and the criterion for the grant of a protection visa. That is a combination of 36, 65 and 501. That was the assessment which 46A allowed for, and the assessment miscarried. That being so, there has been no lawful assessment under 46A. The Minister cannot be compelled by mandamus to conduct such an assessment - - -

KIEFEL J: Can a declaration, nevertheless, be made?

MR NIALL: A declaration could be made - - -

KIEFEL J: It seems we are almost invited to make it, given the statement in the special case at paragraph 23A, which is a frankly curious statement.

MR NIALL: A declaration could be made. An injunction could be granted to restrain removal prior to what I will call a valid assessment and, in our submission, because 198 is not available in relation to the plaintiff, her detention is not for the purpose of removal. So there are three consequences, we respectfully submit, for the position that the Minister now has produced, namely, the starting point or the first premise is that the assessment does not reflect the Act. The second step in the argument is that 198 is not available. The error in assessment affects legal rights and would be subject to relief. The relief would be declaratory and injunctive, and the absence of the availability of removal would render her detention for that purpose unlawful.

HAYNE J: Well, it may be, I do not know, that it would require consideration of a question expressly reserved in Offshore Processing. The Commonwealth parties in their submissions at paragraph 68.2 assert that Offshore Processing establishes that:

the Minister is not bound to make a decision at the second step “no matter what” the result of any inquiries undertaken by the Department –

No doubt we will hear from the Solicitor whether or why that is consistent with what I think may be a point expressly reserved in Offshore Processing, and a point which, if it is expressly reserved, may invite attention to in what circumstances mandamus can go, having regard to the high constitutional purpose of mandamus long recognised before Federation.

MR NIALL: Yes, your Honour, and as we would approach it, the position of the Court in M61 [2010] HCA 41; 243 CLR 319 at paragraph 77 identified in the first sentence that:

the Minister was not bound to exercise the power under either s 46A or s 195A –

with the consequence that the person did not have a right -

to a particular outcome.

Now, of course, at least in this case, the process of consideration has commenced by the Minister and our contention is that having embarked on the process it must be completed, and it must be completed in a way which the middle of that paragraph identifies, namely, it must be procedurally fair and it must address the relevant legal question or questions. The right of a claim of liberty from restraint is directly affected, and in 78, the Minister having decided to consider the exercise of power under 46A or 195A, the steps that are taken are steps towards the exercise of those statutory powers.

The existence of a duty may be properly expressed is that there is no duty to make a favourable outcome after the assessment process. A mandamus would not go to the exercise of the power in section 46A(2) as it is expressed. The only power in 46A(2) is a favourable power so mandamus would not go to compel that exercise. Our contention is that the Minister has to continue to consider the process having embarked on it and is under a duty to do so. Mandamus goes to that point. But, at all events, even without mandamus, the consequence is at the 198 stage.

As your Honour Justice Hayne identifies, the position not decided is in paragraph 100 of the reasons for judgment in relation to certiorari to quash recommendations and the Court went on to say that:

Nor is it necessary to examine whether, or how, the proposition . . . might permit or require modification to accommodate cases such as the present, where the right that is affected by conducting the impugned process of decision making is a right to liberty.

Now, in our respectful submission, the analysis in terms of 46A and its duty or absence of duty really finds reflection in section 198 and that even in the absence of mandamus, or with mandamus, section 198 is not available.

Can I turn to the question as to the content of the relevant consideration and I might return to this question of whether it can be stopped or whether it can be subject of mandamus because there is, in our submission, a critical issue as to what the content of the legal questions required to be considered under an assessment and, in our submission, the answer to that is in paragraphs 88 and 89 of the judgment in M61 where the conclusion is expressed in the second sentence of 88 that:

Exercise of the power –

that is, the 46A power -

on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act –

That is developed in paragraph 89 where it is stated that:

the fundamental question to which the assessment and review processes were directed had to be understood as whether the criterion stated in s 36(2), as a criterion for grant of a protection visa, was met. Necessarily, that question had to be understood by reference to other relevant provisions of the Migration Act, and the decided cases that bear upon those provisions.

Now, of course, the issue in M61 was an error in the question of whether the refugee meeting Article 1A and in our submission - - -

HAYNE J: No, the question in M61 at least included the assertion in the RSA documents that you can have regard to court decisions but you are not bound by them.

MR NIALL: Yes, your Honour. It found practical application, in terms of the decision was it in relation to an Article 1A decision, the person was found not to be an Article 1A refugee. In the context where the decision-maker and the assessment had identified that he or she was not bound by the Act or needed not to have regard of judgment of a court, and that is the passage that is being responded to – that is the point that is being made in 88 and 89.

Now, the point I made that Article 1A was a relevant point of inquiry in M61 was only to make this further point, that the Act does not only operate in relation to 36(2) in relation to protection obligations, the lynch point, or the point that brings the elements together in the statutory - under section 65, which of course requires the meeting of the criterion and not disqualification by reference to section 500 and section 501, so it is the whole ambit not just what in some aspects is called positive obligations versus negative obligations, but putting aside that language, it is the whole of the statutory response to the Convention that was critical for the assessment, and that is not what occurred. We make the point in paragraph 5 of our oral submissions by giving references to Plaintiff 47 as to how section 500 and section 501 also interact in this statutory scheme with the protection obligations.

GAGELER J: Mr Niall, I would be assisted if you related that submission in paragraph 5 to the text of section 46A. Do you say it has to be read down in some way? Do you say public interest is limited? I am just not following - - -

MR NIALL: There are two – the text of 46A identifies the facility to make a valid application for a visa. So that straightaway ties the power to an application for a visa relevantly in this case to a protection visa. The other textual link in section 46A is in 198(2) which provides that:

An officer must remove as soon as reasonably practicable –

a person who has either not made a valid application or has made one that has been determined. In M61 the Court identified those two textual links as providing the basis upon which any assessment under section 46A has to be tethered to the statutory provisions for a protection visa.

HAYNE J: There may be a third textual link in 196(1)(c).

MR NIALL: Yes, your Honour, and those textual links not found solely in section 46A itself were described in paragraph 25 in M61.

GAGELER J: I understand the submission that the Minister in assessing the public interest under section 46A has to accord procedural fairness and cannot act on a mistaken understanding of the operation of other provisions of the Act, but you are contending for some closer and I think your language is “tethering” and I just do not understand that.

MR NIALL: The link, in our submission, is the text in 46A, which identifies the valid application, and the proposition in 88 in M61 that the exercise would be pointless if it was not directed to the criteria for a protection visa criterion.

GAGELER J: So is the proposition that the Minister, in assessing the public interest under section 46A(2), can only do so against potential visa criteria?

MR NIALL: We do put that submission, but another way of approaching it is - the approach taken in 88 and 89 is that one does not get to the consideration of applying for a guided visa application unless you ask by reference to the criteria under which such an application might be granted. That is why, in our submission, 46A is linked and there is an aspect of text but there is also two contextual issues. One is the incorporation of the Convention and the other is the fact that there is detention continuing, that is the statutory detention, by virtue of this process. So all those three things coming together requires that the consideration in 46A be directed to the legal question and the legal question is informed by the content of the particular visa in respect of which the Minister is considering lifting the bar.

HAYNE J: I think you may need to shell out two quite distinct questions. One question is what is the ambit of 46A generally? One would then go off into Browning’s Case about public interest et cetera and public interest is a very broad concept of a kind that the Court has looked at generally. But the second and distinct question may be in the events that have happened, what is the exercise that is being undertaken? In particular, given that somebody is detained under and for the purposes of the Act, and more particularly is detained for the undertaking of the RSA process, then the question that the Minister confronts may be more confined than the generalised question of how large a power does 46A give the Minister. I think you may need to keep distinct the point at which you enter the maze. Are you entering the maze at the point of detention of this person for this process or are you entering the maze at the point of what does 46A mean?

MR NIALL: We apply 46A as it applies to this particular person in the circumstances of detention, and the detention is either non-statutory and unlawful because it is not for a purpose linked to the statute or it is for a statutory purpose. In M61 the Court held that it was for a statutory purpose because detention for the purpose of considering whether or not to lift the bar was capable of being accommodated within 198(2) so we do draw the link together in terms of the application of section 46A.

In the event that a lawful assessment has been undertaken for the purposes of section 46A in those circumstances and the matter comes back to the Minister for decision, we do not contend that the public interest would require the bar to be lifted and application to be made. It may be that, the assessment process being completed, the Minister determines that it is not in the public interest to lift the bar and that is the proposition in M61 at 88, that you are not bound to achieve a particular outcome regardless of the assessment process.

KIEFEL J: Does the plaintiff continue to be detained for the purpose of the RSA process given that it has been halted?

MR NIALL: No, your Honour.

KIEFEL J: So she is detained for the purposes of removal, but there has been no decision about her status made?

MR NIALL: That is so, and we say, on the authority of the Malaysian Case, that 198(2) is not available in those circumstances because the Act contemplated an assessment and when one looks at the content of 46A divorced from the circumstances of detention or divorced from the particular circumstances where an RSA is to be applied for the purposes of prolonging the detention you have also got to take into account, at least prior to August 2012, the facility to remove the person or take the person to an offshore entry processing place.

KIEFEL J: But if it is said that she is detained for the purposes of removal, there having been a decision made about her status as a refugee, which is the matter that the Act addresses, the only decision that could possibly equate to that is the decision that we first referred to, that is the decision that she is not entitled to make an application for a visa. Could that stand as a decision about her refugee status?

MR NIALL: It stands as a decision.

KIEFEL J: It is not a decision under the Act is your point?

MR NIALL: Either a decision not to exercise the power under 46A(2) or a decision erroneously not to engage with the power in section 46A(2) having embarked on the process in the beginning, so there are two possible ways to construe what is happening. Either the Minister is saying through the policy that he has promulgated and the decision at 213, or the statement at page 213, the Minister is refusing to exercise the power in 46A(2) in respect of that person, but of course doing so on the basis of an erroneous understanding of the law or, alternatively, is simply stopping consideration, full stop. Either way does not enliven the removal power.

The circumstances in which the circumstances of the plaintiff rested where they are can be explained, at least in some part, at the ministerial guidelines commencing – or perhaps firstly the position in 2009 at 201 of the special case book. Now, this was an expression of policy by the Minister, not in the circumstances – this is 2009, prior to the plaintiff coming to the country, that – over on 201:

Unless there are extenuating or special circumstances those requirements –

that is for identity and security checks –

should be applied before seek bar to be lifted under Sect 46 A(2).

That policy was formalised in March 2012, and your Honours will see that commencing on page 203. Now, this was issued on 24 March 2012, so this predates by a month the letter that your Honour Justice Kiefel directed my attention to, which was 24 April. Your Honours will see, 204 at the top of the page:

The purpose of these guidelines is to:

• explain the circumstances in which I may wish to consider exercising my public interest power –
  

Now, in the circumstances of the plaintiff, that is inapt because the consideration had already commenced through the process of the RSA which had been completed in September 2011. That assessment your Honours will see, perhaps to go slightly out of sequence, at 193, yielded satisfaction that the plaintiff met the definition of a refugee set out in Article 1. Your Honours will see that at 193, paragraph 6 is the finding, and your Honours will also see at page 188 that the person undertaking the assessment concluded that:

the claimant does not come within Article 33(2) of the Refugees Convention –

that is, the plaintiff was not excluded by reference to Article 33 - - -

FRENCH CJ: The Minister’s response to the subsequent departmental submission, which I think covered 32 offshore entry persons, was in respect of those for whom health and security checks were outstanding, that he would not consider lifting the bar until the health and security checks. So the only issue that he was leaving for determination, as it were, was the health and security check process.

MR NIALL: That is so.

FRENCH CJ: That is from 2009.

MR NIALL: In respect of this particular plaintiff, there was a deal of assessment – quite a sophisticated assessment – based on Article 1A, Article 1F and Article 33.

FRENCH CJ: That had all preceded - - -

MR NIALL: That had all preceded that, but it was the purpose for which she was detained. So the submission we make is that where the Minister says, I may wish to consider exercising my power under 46A, misdescribes what had happened because the consideration had already been well underway with only one or two elements remaining. If the Court goes back to the policy that was formulated in April 2012, your Honours will see this concept of cases being brought to my attention, and not being brought to my attention, and right in the middle of page 205, the Minister notes that he:

may only exercise my power . . . if it is in the public interest . . .

I will generally only consider the exercise of my public interest powers in cases which are referred . . .

The public interest may be served by . . . an OEP . . . that may engage Australia’s protection obligations –

and then the Minister makes a reference to –

Where it is believed that an OEP presents character issues that indicate that they may fail the character test . . . the public interest may be served by allowing these issues to be assessed through the statutory process.

Then there are the cases to be referred, 8, dot point 1. Was the plaintiff – albeit that there was an understanding that the plaintiff was foreclosed by criterion 4002 but, of course, that is not a valid public interest criterion for the grant of a protection visa. Your Honours will see down the bottom of 205:

where my department has conducted an assessment . . . which has found that an OEP engages Australia’s protection obligations –

but would objectively fail the character test under section 501. Again, that may be a description of the plaintiff – may or may not be a description of the plaintiff but it certainly could accommodate the plaintiff. Then there are cases which are not to be brought to my attention, and your Honour will see that the particular ones that seem to have animated the Department was page 207, second dot point:

found to engage Australia’s protection as provided for in 36(2) of the Act but has received an adverse security assessment –

Also over, perhaps on 206, the second dot point under paragraph 10, where the Department has been conducted:

and the OEP does not appear to satisfy or is awaiting to satisfy the relevant Public Interest Criteria for the grant of a PV.

FRENCH CJ: Well, does that, in effect, reflect the position that had already been taken by the Minister in his response to the 2009 submission?

MR NIALL: I am sorry, your Honour?

FRENCH CJ: In the 2009 submission, the Minister said I will not look at 46A(2) of lifting the bar until you have gone through the security assessments, and now here he is saying do not refer until. So are those two positions consistent?

MR NIALL: Or do not refer in the event that.

FRENCH CJ: Or is awaiting to.

MR NIALL: Or is awaiting to, I beg your Honour’s pardon. So to the extent it is awaiting to would probably be consistent with the 2009 position. Now, the model of referring or not referring is given expression at 208 at the bottom, last paragraph, where your Honours will see that if you fall within the public interest it will:

be brought to my attention . . . as part of an omnibus submission so that I may consider exercising my power.

In effect, that might be apt to describe the submission in relation to the 29 people that were referred back in 2009, effectively an omnibus submission listing the people -

However, if a case falls within Section 8 . . . and also contains [other] information –

by reference to section 11 –

I wish to have these cases referred to me via an individual submission with the relevant information provided. This means cases that raise character or security concerns should be brought to my attention via an individual submission and should include any relevant information that may fall within . . . Section 11 –

Now, that was published by the Minister in March. So it is that policy which provides some explanation for the letter that was generated on 24 April 2012.

The errors that we identify with that process can be summarised in this way. Firstly, there is a misconception about what is contemplated by consideration by the Minister, that is, the concept that the consideration does not start until there is a referral. Secondly, there is a misunderstanding by reference to criterion 4002. Thirdly, there is a misunderstanding by reference to the concept that the Minister can simply stop considering in the absence of a complete assessment and that is a function of what the nature of the assessment is. There are two approaches – either the Minister could be compelled to complete the consideration in those circumstances or, alternatively, our primary submission is that simply 198(2) is not available in those circumstances.

FRENCH CJ: By complete assessment, you mean an assessment which addresses all of the relevant legal criteria for the grant of a protection visa.

MR NIALL: That is so.

FRENCH CJ: Valid criteria.

MR NIALL: That is so.

CRENNAN J: But not limited to that.

MR NIALL: But not limited to that.

CRENNAN J: Having regard to the public interest.

MR NIALL: Of course. That is not the content of the public interest. It is an assessment process that has to take place in the circumstances that are identified, namely, no taking to another country and a person claims to be a refugee seeking asylum. But, having completed that process, ultimately the public interest needs to be applied.

GAGELER J: Can I just go back to your three propositions?

MR NIALL: Yes, your Honour.

GAGELER J: Do the first and third come down to saying the Minister had, in this case, in fact commenced consideration?

MR NIALL: Yes, your Honour.

GAGELER J: The Minister having in fact commenced consideration, the Minister was obliged by section 46A to complete the consideration personally.

MR NIALL: That is so.

GAGELER J: Can you expand on the second point which related to 4002?

MR NIALL: In fact this assessment that took place in 2011 and then the fact that it was not referred to the Minister relied in part – and we would submit a significant part – on the failure, or the understood failure, of the plaintiff to meet Public Interest Criterion 4002. Public Interest 4002 was identified as not being a valid criterion that could be imposed by regulation on a protection visa and we infer that by reference to – or it is manifest by reference to the terms of the basis of the policy by which it was not referred and the letter from the Department of 24 April recording the fact that it had not been referred, in the language there expressed which, in terms, identifies 4002.

Now, the defendants say that there were two independent bases and the other independent bases were simply the existence of the security assessment, but the existence of the security assessment had no significance of itself other than potentially the source of an evidentiary matter to the criteria under the Act for the granting or withholding of a protection visa. So that is why at page 214 the observation that one of the public interest criteria that must be satisfied is that you have not been assessed by 4002.

FRENCH CJ: There has been no suggestion, has there, that the existence of a security assessment feeds into the general public interest overlay?

MR NIALL: Not as we apprehend it.

HAYNE J: Can I take you back to an area that you have already dealt with in your submissions but I need to understand better than I presently do. I understood your submission to be that at the end of the process commenced by RSA, if that process revealed that the person concerned would meet the criteria for grant of a protection visa, relevantly would meet the valid criteria for grant of a protection visa, the Minister might nonetheless on other considerations conclude that 46A(2) was not engaged.

Now, the point I need to understand is this. What weight, if any, is that giving to the fact of detention, prolongation of detention while a process is undertaken, a process which, so far as presently I understand it, is a process directed, at least the documents suggest, a process directed and directed only to satisfaction of what then were understood to be the valid criteria for a protection visa?

Is the position that the Minister, having prolonged the detention of a person for the undertaking of a process of that kind may at the end of it say, “Well, that process came out in your favour, but for altogether other reasons, no, I will not exercise the 46A power which has led to your being detained for whatever period it took”. Now, that is a proposition which I think needs to be brought to the surface and explored.

MR NIALL: Our submission is that the prolongation of the detention is relevant to the engagement of 46A and 198 at the conclusion of a lawful and valid process, by which I mean procedurally fair in addressing the legal questions as we would posit them. We would submit that the public interest position would be large enough to accommodate a declining to lift the bar but we recognise that in the particular context the two must, or could, be read together so as to limit the power in section 46A. The difficulty in circumscribing the width of the language in 46A(2) and the concept of public interest is a factor which would tell against circumscribing the power in 46A(2).

FRENCH CJ: Is the range of matters that the Minister could consider relevant to the public interest constrained in any way by the process that has been undertaken? For example, could the Minister at some point say, “Right, I have decided to introduce a new policy, there is going to be a quota on the number of offshore entry persons from Sri Lanka for whom I will left the bar”, perhaps even towards the end of the RSA process or after the RSA process has been completed, in favour of the applicant? I am using that as an example to ask is there a constraint by reason of the process?

MR NIALL: We would submit there is and the constraint is the constraint imposed by the fact of detention and the reason for which 46A was inserted into the Act which was as a companion provision with 198A to allow processing and protection. To use public interest in a way which was to undermine or be inconsistent with that process would undermine the purpose for which section 46A was introduced and by that process of statutory construction the constraint would operate in relation to the public interest.

FRENCH CJ: Well, the public interest is at least constrained by the scope and purposes of the Act, I suppose.

MR NIALL: Yes.

FRENCH CJ: The question is how precise the constraints that that might impose.

HAYNE J: Can we point the question up in this way? Assume there is no difficulty about removing a particular applicant. Let us take a person who is an unlawful non-citizen who comes from New Zealand. Let us take an easy example of that kind. No question about removing them to New Zealand. They are a New Zealand national. Can the Minister – if that person comes ashore in Christmas Island – cause them to be detained for the purpose of undertaking the RSA process which, let it be assumed, takes a week, or no more than that? But then at the end of that – assume it comes out in favour of the person concerned – I have probably, thereby, insulted a friendly nation – but assume it comes out in favour of the person concerned, can the Minister then turn around and say, well, you have been detained for the purposes of that process, but now, no, remove. That seems to be detention at not only the behest of the Executive but it may, perhaps, wear a rather larger and less congenial face also.

MR NIALL: We do submit that 46A is constrained by assessment and removal and, therefore, constrained by detention. If there is detention for a purpose, namely, determining whether or not the person would fit within the scope of a protection application in this statutory scheme, then it would subvert the scheme to detain for that purpose and then frustrate the achievement of that purpose at the end. So the public interest can be read down in that way – linked, as it is, to detention and the purpose for which detention may occur.

CRENNAN J: Are you saying then that on one view you have to have a section 46A(2) decision? You cannot leave that aspect of the process constructively undetermined, as it were. That gives rise to a legal defect on this analysis. So even though there is nothing compellable in relation to reviewing the result, the process has to be completed.

MR NIALL: We do submit the process has to be completed.

CRENNAN J: I mean, that is where mandamus might come in of a very limited kind.

MR NIALL: It may. We have seen the operation of the constraint at the other end – 198 – that you were detaining someone for a particular purpose. It is accommodated within the statutory scheme because it leads to the consideration of whether or not the person should apply for a protection visa. The person is identified as having someone for a protection visa. To refuse a visa or refuse the permission to get the visa in those circumstances, or to not even come to the question, would not - - -

CRENNAN J: It means a decision that has to be made as part of the process has been left unmade, if I can put it that way.

MR NIALL: That is so.

CRENNAN J: That is why I was talking about constructively unexercised.

MR NIALL: Yes, that is what we say. There is some support for the proposition in the Full Court of the Federal Court in SZQRB [2013] FCAFC 33; 210 FCR 505, which is in our authorities, a judgment of five members of the Court, and there is consideration of the judgments of this Court in M61 and M70 at page 544, paragraph 200. Justices Lander and Gordon identify some propositions which their Honours consider can be derived from M61 and M70, and I will just note those if your Honours please. But if your Honours go to 269, perhaps 267, and this is a case where at issue was an ability of an injunction to issue to stop removal, and at 267 their Honours - - -

FRENCH CJ: What page was that?

MR NIALL: Page 554.

FRENCH CJ: Thank you.

MR NIALL: So this was a case that differed somewhat from M61 in the sense that there was an expressed intention by the Minister to remove - your Honours will see that in 267 - without obtaining an ITOA assessment, and the ITOA is an assessment of the complementary protection obligations rather than directly the Convention obligations, and the Minister said in his decision of 21 September that regardless of whether the assessment was factually or legally correct he intends to remove. Their Honours say:

In other words, the Minister threatens to remove SZQRB from Australia even if SZQRB is a person to whom Australia owes protection obligations and in contravention of Australia’s international obligations.

In the last sentence of 269 their Honours note:

The Migration Act does not authorise the detention of an unlawful non-citizen for the purpose of an assessment of that kind which is then abandoned and the unlawful non-citizen is then removed.

Once the Minister has detained an unlawful non-citizen for the purpose of assessing that unlawful non-citizen’s claims for protection, the Minister must complete that assessment before the Minister removes that non-citizen from Australia. The Migration Act assumes that the Minister will comply with Australia’s international obligations . . . before the Minister allows a non-citizen to be returned . . .

That is not to compel the Minister to exercise any of the powers under s 46A . . . It is to simply require the Minister to comply with the Migration Act, which makes detention lawful for the purpose of assessing an unlawful non-citizen’s claims for protection.

Now, in that case that holding supported an injunction and a declaration, or was part of the reasoning to support the declaration and the injunction. Justice Flick expressed concurrence at 342, and ultimately an injunction issued against the Minister to enjoin removal. So, their Honours there, in our respectful submission, using M61 and M70, approached it not so much as a mandamus question, but as an injunction enjoining removal and we would submit that the consequence of which we have outlined, but it may be that the consequences of the errors which we have identified would lead to a limited form of mandamus to complete, but constructively, failure to exercise the decision in 46A.

That is what I wanted to say orally about the first general proposition dealing with the process that was adopted in relation to the plaintiff. If it is convenient, I will then take the Court to the construction question in relation to the continued detention.

FRENCH CJ: What would the form of the order be if it were mandamus? What would the Minister be required to do to complete - - -

MR NIALL: To complete the consideration.

FRENCH CJ: To complete an assessment of whether the person would be eligible for the grant of a protection visa in the event that he lifted the bar, is that how it works?

MR NIALL: That would be the substance of it, to complete the assessment.

FRENCH CJ: And then the question is, is there any other consideration? I think he accepted that there was, albeit a constrained one, the public interest consideration as to whether or not the bar would be lifted.

MR NIALL: That is so. Of course, in the absence of such an order, the high point of the stated case is paragraph 23A of the case stated, which is at page 32 of the special case book, where “In the event that the Court declares” an error, what is said is:

consideration would be given by the Department . . . to whether the Plaintiff’s case should be referred to the Minister for the possible exercise of his power –

Now, that provides no basis – putting aside mandamus, of course - but no basis that that proposition in 23A will address the errors for which we have identified because the ball is in the Minister’s court by virtue of his personal power under section 46A, and one of the major errors is this barrier that the policy erects between conducting an assessment process and then not providing information - - -

FRENCH CJ: Well, the position is though he has actually through his departmental officers undertaken this assessment process because the plaintiff is being held in detention for that purpose.

MR NIALL: That is so, your Honour, but - - -

FRENCH CJ: He has put his foot in the water of 46A.

MR NIALL: But he has also said, I do not want to hear any more, I do not want to hear the results, or I do not want to hear anything about this plaintiff in certain circumstances, and all 23A does - - -

FRENCH CJ: I am just going through the legal characterisation process for the purpose of identifying to whom mandamus is directed and what it says.

MR NIALL: It has to be directed to the Minister, but in the absence of mandamus on the basis, for example, the Court said that the non-compellable power in 46A would not support mandamus, even of the limited type of which I have been making submissions, the observation that the Department might refer or might not refer something does not at all address the problem which we have identified in our submissions and it would mean that the continued detention is not for a statutory purpose or authorised, and on that basis it would be unlawful.

Can I now turn to the construction of 189, 196 and 198 of the Act? Can I start immediately with the text, and start with section 196? The language of section 196 requires that a person detained under 189 – and, in our submission, the plaintiff was originally detained under 189(3) and then 189(1) –

must be kept in immigration detention until –

and we emphasise the word “until” –

she is removed from Australia under section 198 –

Putting aside the other subsections for the moment, and moving over to 198(2), that power or duty requires that the officer:

must remove as soon as reasonably practicable –

the person to whom the provision applies. So immediately one sees some temporal considerations. The first is that the non-citizen be kept until the event in (a), and that event must occur “as soon as reasonably practicable”. So there is both a temporal limitation found in the combination of sections, and also attention is directed to the concept that removal will be reasonably practicable, that is, that it can be achieved and can reasonably be achieved.

GAGELER J: Does not the language “as soon as reasonably practicable” suggest that reasonable practicability may be something in the future?

MR NIALL: Yes, but not something which has no real likelihood or prospect in the reasonably foreseeable future.

GAGELER J: Is that the line that you draw?

MR NIALL: It is, if your Honour pleases.

HAYNE J: And what is the textual footing for that? Is it reading the word “until” in 196(1) as connoting purpose, because the knife in it – so that you know there is a knife coming – the knife in it is how does that work with 196(1)(c)? You cannot have purpose, can you, reading “until” as connoting purpose in connection with 196(1)(c), can you?

MR NIALL: We identify “until” as identifying a time period that is coming. The time period is given some further content in 198(2). “Until” does not mean unless, that is, it does not say, must be kept in detention “unless” one of the things happen in paragraph 196(1)(a) to (c). Now, just as a matter of construction, the word “until” can be constrained. In the judgment of the Court in Koon Wing Lau 80 CLR at page - - -

BELL J: It is at page 533.

MR NIALL: Yes, thank you, your Honour. The text of the relevant provision here can be seen in a couple of places but conveniently in the judgment of Justice Dixon at page 581, where the text of the relevant provisions are identified. Section 5 deals with the making of an order for deportation and section 7 provides:

“A deportee may-(a) pending his deportation and until he is placed on board a vessel for deportation . . . be kept in such custody as the Minister or an officer directs.”

Sir Owen Dixon, in responding to an argument that the provision was invalid as authorising indefinite detention, notes at about point 5 of the page that:

The language is imperative. In s. 7(1)(a) I think that the words “pending deportation” imply purpose. The two provisions together mean that a deportee may be held in custody for the purpose of fulfilling the obligation to deport him until he is placed on board the vessel. It appears to me to follow that unless within a reasonable time he is placed on board a vessel he would be entitled to his discharge on habeas. In these circumstances the provision is, I think, a law with respect to the removal of the alien or refugee and falls within the respective powers justifying that removal.

So, in our submission, his Honour, in very similar structural provision, identified that the word “until” connotes within a reasonable time and if it is not so done a writ of habeas would issue. Justice Williams dealt with the submission at page 586, about point 6 of the page where, after referring to the section, his Honour says:

The Act does not provide that a deportee shall be deported from Australia within a specified period. It was submitted that under this provision a deportee could be kept in custody indefinitely and never deported, so that it is not a law with respect to the deportation of aliens at all but a law which in substance and effect authorizes the indefinite incarceration . . . a deportee may only be kept . . . until he is placed . . . so that, if it appeared that a deportee was being kept in custody not with a view to his deportation but simply with a view to his imprisonment for an indefinite period, the custody would be illegal.

Now his Honour is identifying there, it was a discretionary detention, this concept of with a view to his deportation. Now, that is not just the existence of the purpose but the ability and intent to give effect to it. Very similar, in our respectful submission, to the construction favoured by Chief Justice Gleeson and Justice Gummow in Al-Kateb, and to similar effect, page 555 in the judgment of the Chief Justice where his Honour down at point 8 of the page notes the submission of invalidity based on “unlimited imprisonment”, referring to various authorities about the ability to remove an alien, and over on 556 his Honour the Chief Justice says:

Section 7 does not create or purport to create a power to keep a deportee in custody for an unlimited period. The power to hold him in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls. If it were shown that detention was not being used for these purposes the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy.

Now, again, at one level his Honour is identifying the existence of purpose but plainly, in our respectful submission, there must be some capacity to place as a real probability or possibility, as a practical reality, the placing of the deportee on a vessel. Were that aspect to be frustrated, it would be no answer for the Minister to say, well, I am simply waiting for the unarrivable ship which there is no reasonable prospect of it arriving in the reasonably foreseeable future because that would authorise contrary to the approaching Lau indefinite detention. That authority provides, in our respectful submission, a good guide to the textual construction in 196 and 198; in a sense, section 7 joined the two together.

The second point which we make about the text is that it proceeds on an assumption that removal can be achieved. Now, not only is the language of reasonable practicability used in 198(2), but it is built on an assumption that in international discourse a person will be entitled to return to his or her country of nationality and that that country of nationality would be expected to take them, so the concept of practicability has to be seen in that understood context.

In M70, if your Honours would turn to it at [2011] HCA 32; 244 CLR 144 at page 190, in the judgment of four members of the Court, starting at paragraph 91, at this point their Honours were considering the construction of 198, and 92 identifies as part of that construction exercise that:

Ordinarily, Australia would look, in the first instance, to a person’s country of nationality to receive that person. Australia would do that on the footing that it has long been accepted, as a principle of international law, that the national of a country has a right to re-enter.

It is a “principle of customary international law”, and then there is the qualification in paragraph 93. So the assumption of reasonable practicability is not one that is just imposed but one which is built on the context of the removal power.

KIEFEL J: Can you say that there is no real prospect of her removal to a safe third country when the question of resettlement in India seems not to be concluded?

MR NIALL: The evidence at least gets to what we will say is the sufficient point of no real likelihood or prospect of removal in the reasonably foreseeable future.

KIEFEL J: How do you say that? The process has not been concluded, has it? The Department was considering whether to take further steps to see if it was possible.

MR NIALL: None of those steps have to date yielded any success and the defendants identify their position at paragraph 13 of the defendants’ submissions.

KIEFEL J: The matter, as far as we are concerned, concludes with the letter from the plaintiff saying that the family members are refugees in India, they have no right to sponsor, but she does not feel comfortable asking her family. Has there been any inquiry made of India? I am looking at the special case book, page 298. That seems to be the last piece of information that we have.

MR NIALL: There is no – just looking to see – perhaps I will return to it – whether India was one of the countries.

HAYNE J: Well, there are some confidentiality issues floating around in all of this, which we need to be quite sensitive to.

MR NIALL: Yes, I will just identify that in a moment if I may, but of course the Department has had information about that country since the very beginning and the defendants’ position, who are in charge of those inquiries, is revealed at paragraph 13 of their written submissions, where there is the submission that:

It would be open to the Court to conclude, on the facts presently known, that there is “no real likelihood or prospect of removal in the reasonably foreseeable future” –

We would invite the Court to make that finding on the basis of the evidence and that submission by the Commonwealth.

FRENCH CJ: Now, your constructional approach in relation to 189, 196 and 198 would be the same if she were in the position of having requested removal and the various inquiries and so forth had been made.

MR NIALL: Yes, your Honour.

GAGELER J: Mr Niall, can I just ask how it would work practically? Now, you say there being no real prospect of removal in the reasonably foreseeable future, there is no continuing power to detain so the plaintiff must be released into the community. Now, if the plaintiff is then walking down the street and runs into a migration officer, does that migration officer have the duty to detain her under section 189?

MR NIALL: I will start from a slightly anterior point. Section 189 forms part of the trilogy of provisions all directed to purpose. So it only authorises and it is expressed as a reasonable suspicion because there may be circumstances in which you might not know whether the person is liable to be removed, might be a citizen in fact, but it has got to be for that purpose, so that is why it is based on reasonable suspicion. If that purpose is not available, then the arrest power is no longer available.

Now, it may turn on the knowledge in a particular case of the officer as to whether the suspicion that the officer had was reasonable in the circumstances where the power is not enlivened in the absence of a purpose, but in point of principle, 189 is not available if it is not in aid of the ultimate purpose of removal.

CRENNAN J: It would be possible, would it not, for – to be this combination of circumstances, removal potentialities not being quite exhausted, however one puts it, but inquiries are being made. In relation to a person held in detention in those circumstances there is no bar, is there, to that person being held in what is now called community detention? Is there?

MR NIALL: No – the subject of a residence determination?

CRENNAN J: Yes.

MR NIALL: So there would be no bar to a residence determination, subject - - -

CRENNAN J: Because the person would still be in detention for the removal purposes, purposes of exhausting removal potentialities.

MR NIALL: Subject to the existence of the power of the Minister personally to exercise it and it is remaining in detention.

KIEFEL J: The Minister has previously exercised that power under section 197(a)(b) in this case.

MR NIALL: Correct, your Honour, and then revoked it upon the issuing of the security assessment. But that potential restraint which is perhaps less onerous is still a restraint, it is still a deprivation or interference with liberty. It still requires statutory authority and it would still need to be purposive. If there is a disconnect between the purpose, either because the purpose is not there or it is not reasonably – the relationship of its attainment is not established, then it would not matter on our argument which form of detention the Minister chose in terms of the legality of the detention. Just before I move on to something - Justice Kiefel, there is also the additional finding in paragraph 71 of the special case in relation to the views of the - - -

KIEFEL J: Yes, thank you.

MR NIALL: Now, the constructional choice which we identify, and which was identified by their Honours Chief Justice Gleeson, Justice Gummow and Justice Bell, is a choice between, on the one hand, if it never becomes practicable to remove, the detainee must spend the remainder of her life in detention, and if removal ceases to be a practicable possibility, the detention must cease for as long as the situation continues. Your Honours will see that constructional choice in M47 at paragraph [117].

KIEFEL J: I am sorry, what paragraph was that?

MR NIALL: Paragraph [117], your Honour. Now, if that be, and we respectfully submit it is the constructional choice that is available, the principle of legality has special force because it requires that in order for the first of the two constructions to appear, it must appear with irresistible clarity, and the absence of considering the point and the absence of direct language, in our submission, means there is a failure to evince the necessary clarity.

FRENCH CJ: Are you saying there is – I am looking at 48 of your written submissions – a lacuna which you refer to, I think, as the interstices, which is simply filled by common law freedoms.

MR NIALL: That is so, your Honour, and that is what I wanted to turn to immediately, which in a sense separates our construction with that of the defendants, and that is the starting point. The starting point for the defendants appears to be that in order to engage with liberty for an alien you must first identify permission. So the necessary precondition for liberty is a grant of permission - - -

FRENCH CJ: Permission to enter and remain.

MR NIALL: Precisely. In our submission, that is to misconstrue the starting point. The starting point is the right to liberty, and the right to liberty is the same for an alien and a citizen subject to the availability of a particular purposive exception.

KIEFEL J: I do not understand that, I am sorry. How is it the same for an alien?

MR NIALL: The right to liberty is more qualified for an alien because of the facility of the State to legislate for its constraint by reason of the status of the alien and the circumstances of a rendering. The question for the doctrine of legality is not the width of the power to interfere with the right; it is a question of the construction of the statute that purports to do so. So the starting point is, in the absence of legislative authority, there is a right to liberty for both alien and citizen.

KEANE J: In the case of an alien it is the right to be at liberty in Australia, is that what you are saying?

MR NIALL: Yes.

KEANE J: That is the starting point.

MR NIALL: That is the starting point.

KEANE J: The starting point is the right to be at liberty in Australia.

MR NIALL: Once you are within the territory.

KIEFEL J: How can you say that when the Migration Act’s purpose is to deal with the question of entry into Australia?

MR NIALL: The question is how the Act operates in respect of an alien who is within the territory, relevantly, and the point I am making is that - - -

KIEFEL J: Detention is meant to circumscribe the notion of entry into Australia. You might be present, but you are unlawfully present, that is the starting point, is it not?

MR NIALL: It is the physical presence, the restriction of liberty might operate at the border as a barrier, but once you are within the territory, absent legislative authority to the contrary, we submit that the alien and citizen has a right to liberty, and then it becomes a question of the source of the statutory authority.

FRENCH CJ: Is it right to talk about a right to liberty? I know that that term is used in international instruments, but the highest you can put it, is it not, is that there is a freedom because the law does not touch - - -

MR NIALL: That is so.

FRENCH CJ: - - - because there is a lacuna.

MR NIALL: The question of whether the law touches is one to be resolved with the principle of legality and would require irresistible language for citizen and alien alike. The starting point - - -

FRENCH CJ: Clear statutory purpose can trump the constructional guidance of the principle of legality, can it not?

MR NIALL: Yes, of course, your Honour. In the judgment of the Court in Bolton; Beane [1987] HCA 12; 162 CLR 514, in our respectful submission, Justice Deane, at page 528 to 529 identifies the common law starting point, and his Honour notes:

The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action . . . [the] person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate.

I will not read it, but going on to 529. Justice Gaudron, to a similar effect, at 547, the middle of the page - - -

FRENCH CJ: Is there not here a statutory purpose of detention to serve exclusion unless admitted under a permission?

MR NIALL: No clear statutory – in terms of the sequence of purposes one can have entry, detention pending decision to admit or reject and removal and, in our submission, those purposes are the only purposes that can justify detention of the alien, and in respect of the three, they are, in effect, sequential, that is, once the person is beyond entry their detention is for the purposes of determining permission.

FRENCH CJ: What if they do not ask for it?

MR NIALL: It is not necessarily a question of - - -

FRENCH CJ: Let us say we are looking at the 198(1) situation – I am here but I want to go home, but home will not take me.

MR NIALL: Then that is not for the purposes of determining the second of the two purposes but the third which is removal. Once the decision to permit or not permit has been made, in our submission, the purpose, the relevant organising purpose is removal.

HAYNE J: The whole of Part 2 of the Act from sections 13 to 261K is entitled “Control of arrival and presence of non-citizens”. So you have well over 250 sections of the Act devoted to the subject matter of control of arrival and presence. I understand your submission to be that unless stopped at the territorial border – if needs be, presumably, by force – a person who arrives in Australia may, if they cannot conveniently or proximately be removed to another country, enter and remain.

MR NIALL: We submit that the language of “may enter and remain” is not dealing with a positive grant of entitlement but one is dealing with a freedom from restraint. At this point of the argument, all that is required is irresistible clarity for freedom of restraint in respect of the achievement of the purpose of removal.

HAYNE J: Detention does not serve a purpose akin to associated with the purpose of stopping at the territorial boundary?

MR NIALL: We would submit not, your Honour. We would submit the relevant purpose, once they are within territories, is making a determination of whether they should be permitted or not. Once that has happened and the decision is favourable then they are permitted and the detention comes to an end. Where that happens and the decision is adverse, it is necessary to then remove the person and you can detain the person for that purpose.

KEANE J: So that if someone can get here the idea that, as a sovereign state, Australia can decline permission to enter that can be simply set at nought just by fact that you managed to get here. It is then a question of whether you can be removed. The idea that Australia can say no, you cannot come in, just ceases to be relevant.

MR NIALL: We would submit, not, your Honour. What it is is that the question of removal emerges and for that purpose there is no doubt that Parliament can authorise detention.

KEANE J: But Parliament cannot authorise detention to stop you coming in because, de facto, you are in.

MR NIALL: Once you are in, you have got the protections of the law subject to valid legislation constraining it.

KEANE J: So any constraints upon entry are rendered irrelevant?

MR NIALL: Well, they are efficacious to the extent that they prevent entry and thereafter – the purpose of the exercise thereafter is removal.

KEANE J: Is it not lawful entry? It is not de facto entry. It is lawful entry, is it not?

MR NIALL: Well, in our submission, the principle of legality would operate in respect of the person within the territory. If Parliament seeks to detain a person who is within the territory, unlawfully within the territory, for the purpose of removal it can do so subject to those two clear constraints. One is the purpose of removal and second, the clarity of language with which the detention is required.

CRENNAN J: You are not denying, are you, though the power to expel and exclude as an incident of sovereignty as Justice Keane pointed out?

MR NIALL: Not at all, your Honour, not at all.

BELL J: I wonder, Mr Niall, if, in talking of a right to liberty and in the relief you claim, which I think includes declarations that the detention is not authorised, you go somewhat beyond the reasoning of the minority in Al-Kateb which seems to me was not posited on a right to liberty but rather in the particular circumstances a right to be released on habeas subject to conditions pending the circumstances arising that would admit of removal pursuant to the statutory scheme?

MR NIALL: That is precisely how we put it and perhaps starting with the language of right to liberty perhaps distracted me from the true course of the submission which is not a right to liberty but firstly the existence of a statutory source of restraint - - -

FRENCH CJ: Not a right to anything really.

MR NIALL: No, your Honour, it is an absence of legislative power to detain unless the circumstances of which the statute speaks exist.

GAGELER J: Do you accept that habeas corpus could be granted on conditions?

MR NIALL: We do, your Honour.

GAGELER J: What would be the consequence of a breach of one of those conditions?

MR NIALL: In our submission, the conditions could be crafted by order.

GAGELER J: Yes, and if they are breached?

MR NIALL: It would be contempt.

GAGELER J: That is the only way they could be dealt with really. A person could not go back to immigration detention, on your submission.

MR NIALL: Not if the circumstances are not enlivened, but as Chief Justice Gleeson said, they may become in the future enlivened.

GAGELER J: If the Minister were to adopt the minority view in Al-Kateb of the construction in section 196 and seek to avoid orders in the nature of habeas corpus in every case, what statutory steps would be open to the Minister to release a person from detention in circumstances where there appeared no current reasonable prospect of removal?

MR NIALL: The Minister could grant a visa under section 195A.

GAGELER J: That could be subject to conditions.

MR NIALL: Visas can be subject to conditions, yes.

GAGELER J: If the visa was to be made subject to the same sort of conditions as the grant of habeas corpus would be subject to and there was a breach of one of those conditions what would be the consequence?

MR NIALL: The visa could be cancelled for breach of condition.

GAGELER J: Then?

MR NIALL: The person would be back in detention subject to the - - -

GAGELER J: We have looped, have we not? They cannot be in detention.

MR NIALL: That is so. There is no authorisation for detention, although the Minister could authorise release into the community.

GAGELER J: The conditions would effectively be meaningless in those circumstances.

CRENNAN J: Well, a revocation of a visa under the adverse character provisions, 500, 501, would reanimate, would it not, a power to detain for the purposes of removal even though somebody had had a valid visa which was then revoked?

MR NIALL: That is so, your Honour. I do not recall there being any criminal sanction for breach of a condition but I will have that checked. But that is so, also to your Honour Justice Crennan’s question.

HAYNE J: Detention until when, in the case posited by Justice Crennan?

MR NIALL: Well, again, we do get back to the position of purpose of the detention on which the legislative power to detain an alien is predicated, and if the purpose is not available then there is an absence of power either as a question of construction or, as I will come to in a moment, as a question of constitutional power.

KIEFEL J: Mr Niall, do your submissions deal with the question of why we should reopen Al-Kateb?

MR NIALL: They do, your Honour.

KIEFEL J: Does it go any further than to say it was wrongly decided, is that it?

MR NIALL: They identify a number of reasons and we rely, with respect, on the analysis of Justice Bell in M47, particularly on the basis that the approach to the principle of legality – or the majority was weakened by the approach to the principle of legality, including the two members of the Court comprising the majority did not refer to it.

KIEFEL J: Expressly.

MR NIALL: Expressly. His Honour Justice McHugh makes a reference to that point.

KIEFEL J: But beyond the question of whether or not different views might be held about the construction of the Act why, as a matter of policy, should this Court reopen Al-Kateb, not the least because it has been decided and the position has been maintained for some time?

MR NIALL: We would give the reasons given by her Honour Justice Bell in M47, and also Justice Gummow in M47, and regard those as powerful factors justifying a reconsideration of the principle. In terms of Justice McHugh’s consideration of the principle, if your Honours would turn to Al-Kateb [2004] HCA 37; 219 CLR 562 at 581, in the last sentence of paragraph 33 his Honour says:

The words of the three sections are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights.

In our submission, that does not accurately reflect the principle because it is not looking for an intention not to affect rights. It is looking for a positive and clear and manifest intention to affect fundamental rights.

FRENCH CJ: What is the fundamental right, liberty to move about in Australia?

MR NIALL: Freedom from physical restraint.

FRENCH CJ: In Australia?

MR NIALL: In Australia.

FRENCH CJ: That means freedom to be anywhere, on the current state of the statute, as you would put it.

MR NIALL: Yes, your Honour, it would.

BELL J: You accept, do you, Mr Niall, subject to such conditions as are imposed on a - - -

MR NIALL: To conditions, of course, your Honour. Those conditions may be imposed to reflect the circumstance contemplated by Chief Justice Gleeson that circumstances may change to render the plaintiff in a position to be removed. That is what I wanted to say in addition to our written submissions on construction.

Can I deal then with, in the event that we are wrong about the construction and it does not yield to the two alternative constructions, to the impact that has on its validity. One starts, in our respectful submission, with the principle that, exceptional cases aside, Chapter III provides that deprivation of liberty can only be made by judicial order on conviction for an offence after adjudication of guilt. One looks beyond that principle to the exceptional cases, one of which is that an alien may be detained for the purposes of considering admission and deportation.

In our submission, in addition to or in supplementation of our written submissions, we make two points. The first is that the question of whether a law is punitive or not punitive is not a criterion for the liberty. The description “punitive” flows from either from the absence of a legitimate purpose or the circumstances in which the purpose cannot be achieved as a matter of practical or reality or possibility. It is that characterisation following from absence, rather than asking the question of whether the law is punitive which is determinative of validity, in our submission.

In looking at the exceptions, we make the submission that they are historical and conformable to the overarching role of the courts and can we note without going to it, the passage from the judgment of the Court in Vasiljkovic [2006] HCA 40; 227 CLR 614 at paragraphs 108 to 110 where Justices Gummow and Hayne observed that the exceptions were well established at the time of adoption of the Constitution and we say that those purposes have to exist and be achievable in order to come within the exceptions.

In our submission, if the law purports to authorise, let alone demand attention where removal is not and will not be practicable within reasonable prospect, then the relationship between law and purpose breaks down. It is outside the exception because it is not a law for the purposes of removal and can be characterised as punitive.

The need for purpose is not satisfied simply by identifying that the purpose exists as a relevant object of the legislative provision. In our submission there is an additional requirement dealing with the relationship between the text and the achievement of the purpose and in our submission the test posited in Lim, that is reasonably capable of being seen as necessary for the purpose of deportation, is apt to characterise that relationship.

Whether one describes it as reasonably appropriate, adapted, necessary or proportionate to the achievement of the objective are really means of describing the relationship between the existence of the purpose and its achievement and in our submission if the construction does not yield, it offends the limitation found in Chapter III and we have developed that in our written submissions.

Applying that here on the construction favoured by the majority, in our submission there would not be the necessary relationship between the existence of the purpose and its achievement so as to authorise the detention and continued detention of the plaintiff. They are the submissions we seek to put on the constitutional point in addition to the written submissions that we have advanced. For those submissions, the questions reserved for the Full Court should be answered in the manner set out in paragraph 7 of our written submissions. Unless I can be of any further assistance to the Court, they are the submissions for the plaintiff.

FRENCH CJ: Thank you, Mr Niall. Yes, Mr Solicitor.

MR GLEESON: Your Honours, our outline indicated we had sought to address the questions in the order in which they are stated on pages 44 and 45. That is the order I would propose to adopt unless your Honours wish me to follow the order Mr Niall has adopted. If that is convenient, your Honours, we would wish to start with some observations about the proposition of sovereignty which underpins both the question of construction and the question of the Constitution.

If your Honours would forgive us perhaps for stating what we would submit to be accepted, it is a principle of sovereignty that if an alien physically enters our territory without permission, or indeed the territory of other nations governed by the law of nations, we have a sovereign right and power to decide whether to admit or exclude that alien and to detain the alien in custody as an incident of that power.

That detention represents, we would submit, segregation from the community, segregation as a primary and immediate response to the fact that the alien has done what Mr Niall puts at the heart of his case, namely, if I get my foot on shore I then must be free to go anywhere in Australia unless (a) Parliament with unequivocal language has said I cannot, and (b) subject to the Constitution. So it represents segregation from the community as a primary and immediate objective but not segregation untethered to anything, segregation purposefully related to the making of a decision whether to admit or exclude and then the implementation of that decision.

Importantly, we would submit, the sovereign right does not end or disappear at the point at which the personal characteristics of the alien may make a decision to exclude difficult to implement in the immediate or foreseeable future. That is an aspect of a more general proposition that the characteristics of the alien who seeks to enter without permission do not cut down the sovereign right.

GAGELER J: Are you not setting up a straw man?

MR GLEESON: No.

GAGELER J: Nobody is arguing against the existence of a sovereign right. The question is how that sovereign right falls to be exercised under the Australian Constitution.

MR GLEESON: Two questions, your Honour; that is the second question, we accept that. The short answer to that second question is the sovereign right falls to be exercised through an appropriate combination of legislative and executive power and is not under our Constitution reserved for the exercise of judicial power. That is the short submission on that aspect of the critical question. I seek to identify the sovereign right as the foundation by which we turn to answer the two questions; that is the second one.

The anterior one is under this particular statutory scheme the legislative intention is that the sovereign right will be exercised through that combination of legislative and executive power and without – this is the critical proposition – without leaving a lacuna where in particular circumstances the difficulty in implementing it means that it has ceased to exist. Your Honours, we have provided the references in paragraph 1 to the sovereign right and I rely upon them. Could I come then straight to - - -

HAYNE J: Well, rooting it in sovereign right is apt to distract attention from 51(xix) and 51(xxvii) which, I would have thought, might be the more convenient starting point, Mr Solicitor. You root it in sovereign right and you are off into the land of executive power and the like, a way which I am not sure is especially helpful in this case.

MR GLEESON: Your Honour, I do not withdraw paragraph 1. It is a starting point which is important and I was going to add to it that its character is a starting point rooted in the common law and the common law respecting the law of nations. From that starting point, we come directly to the matter your Honour has raised which is how has that right – reflected by the common law in the law of nations – been brought into our Constitution in the provisions your Honour has mentioned in Chapter I and how they relate to Chapter III. In that respect, on the constitutional aspect of the case, the aliens power, correctly construed, sufficiently enables Parliament to enact a scheme which has the substance of the scheme that I have identified in the first three paragraphs of this note, namely, a scheme which says the decision whether to admit or exclude will be a decision which rests with the Executive. That is one aspect of the scheme.

Another aspect of the scheme is that Parliament has required detention pending the making and implementation of that decision. A third aspect of that scheme is that Parliament has allowed for certain executive discretion to modify the potential harshness of that scheme in an individual case. I will come to that. A fourth aspect of the scheme, which I put in answer to your Honour Justice Gageler, is Parliament has chosen not to confer the exercise of that power to admit or exclude on the Chapter III courts, and validly so. The role of the courts within the separation of powers is, of course, to police the lawfulness of decisions made by the Executive under the scheme.

If I could just come directly to your Honour Justice Bell’s question about habeas and Mr Niall’s narrower case? Our position would be that under this scheme Parliament has not reserved to the courts, in the difficult case – and the present case is a difficult case – has not reserved to the courts as an exercise of judicial power, the question whether the person should be released nor, a fortiori, the question whether appropriate conditions should be attached to that question of release.

Now, I accept that is directly contrary to submission, what your Honour has said M47, but I thought I should make our submission clear. Our construction submission is that the Parliament has not reserved to the courts, as it were, a limited aspect of judicial power to deal with the difficult case. What Parliament has done is to say the difficult case is dealt with by the primary mandate of mandatory detention, subject to the Executive ability to modify that in the harsh case which I will come to under our point 2(c), if I can relatively shortly.

So, your Honours, if I could then deal with our construction proposition as a whole to commend both the majority in Al-Kateb and that the Court should not grant leave to reopen it, your Honour Justice Hayne mentioned there are a large number of sections in the Act which appear to be directed to a subject of control of entry of aliens in a comprehensive manner. We embrace that proposition and we put the proposition that the scheme has an essentially binary character, that the binary character has commenced as early as sections 13 and 14 of the Act and is carried through with an irresistible consistency, and that is that all aliens who physically enter or seek to enter the territory are divided only into two categories, the lawful and the unlawful, and the measure of lawfulness is the holding of a valid visa from time to time.

The rest of the provisions that follow sections 13 and 14 give effect to the process by which the visa may either be applied for, considered, granted or not granted on the one hand, or under certain provisions like section 195A, might be granted absent an application. That central feature of the scheme is what defeats Mr Niall’s primary argument in the difficult case where the 198(2) duty has cut in, and it is a duty to remove as soon as reasonably practicable, or one might say the deportation decision has been made and there is a duty then to carry it through.

In the difficult case the scheme’s response is not to say you then may enter an innominate category where you must be permitted to leave the mandatory detention, enter the community, but without a visa, such that we have a third category of aliens under the Act, that is, the unlawful, but non-visa-holding alien. That is what we submit the scheme as a whole does not permit as an available option. It does not permit the option that the unlawful non-citizen will be in the community without their presence being regularised and conditioned by a valid visa.

To the extent we respectfully submit that the minority in Al-Kateb were wrong, one of the reasons they were wrong was that central binary comprehensive nature of the scheme cannot accommodate the possibility that in the hard case the person is to be released on an innominate basis.

Your Honours, our next proposition is that no basis has been established to reopen the majority decision in Al-Kateb. Firstly, it is wrong to say that the majority overlooked the principle of legality. Your Honour Justice Hayne, if I could go to Al-Kateb [2004] HCA 37; 219 CLR 562 at paragraphs 232, 237 and 241, 241 most clearly was squarely addressing that principle of legality. Justice McHugh at paragraph 33 agreed with your Honour’s reasons.

Justice Heydon at paragraph 303 agreed with your Honour’s reasons. That is three judges who recognised and applied the principle and in respect to Justice Callinan the key paragraphs are 297 to 300, which we submit do not adopt any significantly different approach.

What has come out of discussion this morning is Mr Niall’s real point is not that the majority overlooked legality, but it is his identification of the fundamental right, and he put to your Honours that the alien, once they get their foot on the shore, has a right to be free to go anywhere in Australia, and what Parliament must do is direct itself to that right and direct itself to every circumstance in which that right might be restricted, and to underline that it wants the right restricted. Our basic proposition is that is the wrong starting point for the application of the principle of legality. The starting point is the one that I mentioned earlier.

FRENCH CJ: I notice that in Al-Kateb in the - Justice Gummow said, I think at page 601, that:

In or out of detention the appellant lacks any right or title to remain in Australia.

This really goes back to the question of rights and freedoms and so forth.

MR GLEESON: Yes. We would submit that the appropriate starting point is that the alien, even if physically present, has no general immunity from detention. What one then does is to - - -

GAGELER J: Sorry, does that distinguish an alien from a citizen?

MR GLEESON: Yes, and the very distinction that Lim first commenced with, namely – and there is a debate that does not need to be resolved in the case about what Lim was saying about the citizen as to whether we have a prima facie rule with some exceptions, or whether, as Justice Gaudron said, the exceptions have swallowed up the rule. That was in the context of the citizen, but in the case of the non-citizen – and here I take your Honour Justice Hayne’s earlier admonition to me – we are starting with the fact of a power conferred under section 51(xix) to make laws with respect to aliens, and when one is construing the scope and the purpose of that power, we immediately are not in the territory of such rights as the citizen has.

GAGELER J: I thought we were at the point of considering the principle of legality?

MR GLEESON: Yes, and on that proposition, as I understand Mr Niall, he is saying to you treat citizen and alien alike. Provided you are physically on the territory, the common law identifies the same basic right and therefore when one looks to Parliamentary restriction, one look for language of equivalent severity and directness. That is the proposition I am challenging.

FRENCH CJ: I do not think he went as high as a right – in other words, the common law says you cannot lock me up unless there is a law which says you can lock me up.

MR GLEESON: Then your Honour put to him that must then accommodate the purpose identified by the legislative scheme - - -

FRENCH CJ: That is right. We then get into the constructional question.

MR GLEESON: We are then back to really two points that - - -

CRENNAN J: He did accept the power to exclude. He was not - - -

MR GLEESON: He then accepted the power to exclude.

CRENNAN J: Admit or exclude, or expel, I think I might have asked him.

MR GLEESON: Yes. At the moment, on the question of leave to reopen, my submission is that the principle of legality was the subject of attention, consideration and in Al-Kateb, in at least three, if not four of the majority judgments, it is not a basis to reopen Al-Kateb that the majority in Al-Kateb did not understand that principle with the sophistication with which it has been fleshed out in subsequent decisions of the Court.

If that is correct we are then left with a decision in 2004, admittedly a very close decision, admittedly with powerful arguments put on both sides of the record, but one that carefully considered the competing construction arguments and came to a reasoned conclusion and in our submissions at paragraphs 24 to 26 where we put the case against reopening Al-Kateb we do respectfully make the point that the Minister and the Department have been entitled to administer this Act since 2004 on the basis that it means what Al-Kateb said it means and that is of some - - -

HAYNE J: It is not a question of entitlement. It is a case of being bound to.

MR GLEESON: Bound, and if the position is that the minority were correct in Al-Kateb one can readily imagine that for the people who have been in the difficult category since 2004 the Minister and the Department have proceeded on the basis detention was required by law, whereas they would now be exposed to a suggestion or claim that they acted contrary to law.

Your Honours, apart from that matter in paragraph 2(b) could I come to the matter in paragraph 2(c), and can I address this to the whole Court and respectfully also point out in relation to the fact that when the difficult position of partly submitting matters that some judges dealt with in M47, this point, paragraph 2(c), was not put in this fashion or with this clearness in M47, so for better or worse, it is an additional point and that is how I put it to the Court.

The point is, if I could ask your Honours – which your Honours should have – to go to the explanatory memorandum and second reading speech for the Migration Amendment (Detention Arrangements) Bill 2005, and I trust your Honours also have the Bill itself provided to you. If not, perhaps your Honours could let me know and I will provide it. The point is that shortly after Al-Kateb the Parliament responded to a number of perceived harshnesses or difficulties in the scheme, some of which squarely reflect Al-Kateb considerations, and sought to provide an ability to ameliorate harshness that might arise in an individual case.

The nature of that your Honours might pick up from just the explanatory memorandum. Four changes were made and the first was to insert the proposition that only as a last resort should the minors be detained. The second was the introduction of the community detention provisions your Honour Justice Crennan asked about. The third was the non-compellable power to grant a visa to a person in detention; that is section 195A.

That was specifically designed to provide an ability in the Executive to relieve harshness in the case of people like Al-Kateb himself, or one might say people in the case of the present plaintiff. The fourth were particular provisions requiring the ombudsman to report on the difficult cases, that is those detained for two years or more who might be persons like Mr Al-Kateb or the plaintiff, or who might otherwise simply be detained for more than two years, and to provide for a scheme for those recommendations to be presented to the Minister and tabled to Parliament.

Now, what use am I seeking to make of this? Two uses – the first is that in terms of whether the Parliament intended that section 196 would have the effect that the majority held it did in Al-Kateb, the Parliament acting upon that very basis, put these extra provisions in the Act so that the difficult case might be dealt with through particular executive powers, thereby confirming Parliament’s primary intention that the scheme was to remain binary. The scheme was not to allow people to enter the community on the innominate basis. They were either to stay in the detention or they may or may not be the beneficiaries of these powers.

So, in that sense, Al-Kateb was not only correct, and leave should not be given to reopen it, and the Department has been bound to act in accordance with it, but when the Parliament next reviewed the problem area it confirmed its intention that 196 would mean what the High Court said it meant, and to the extent that presented harshness in individual cases, it provided a possible means for the Executive to deal with it. That was a long sentence.

HAYNE J: Paragraph 10 of the explanatory memorandum refers to a class of visa called removal pending bridging visa.

MR GLEESON: Yes.

HAYNE J: Do we need to know anything about what that class then was or whether it still exists?

MR GLEESON: My short answer would be, no, not as to the detail. What your Honours need to know is that when 195A was introduced, which is what paragraph 10 is partially referring to – could I ask your Honours to go to section 195A - it was framed as a section applying to persons who were in detention under section 189 and then it contained the public interest power, and so on. We know from paragraph 10 that it was intended that, amongst other things, it would provide the power to grant a visa which could deal with the very persons in the Al-Kateb character.

I draw attention to 195A(1) because the assumption in that section, assuming this to be the mischief, is that Al–Kateb is correct because 195A(1) only works if the person is in detention under section 189, so it assumes if one is allowed to look at paragraph 10, that for the persons in the Al-Kateb category, they will remain in mandatory detention under 189 and 196 but subject to the ability of the Minister to issue this relieving visa. Just on that point, if I could come back to your Honour Justice Gageler’s questions to Mr Niall about how does 189 operate in the context of the minority’s argument?

If the Court looks at section 189, in order for the minority’s argument to be correct, the quite clear language of that section needs a rather large amount of surgery done to it because under section 189 the only question for the officer is, knowledge or suspicion you are an unlawful non-citizen, and section 190 indicates that if the person cannot present a visa, that will be proof that they are an unlawful non-citizen. So the only question contemplated by 189 is non-citizen or citizen, visa or no visa, and once that is done the obligation to detain cuts in.

On the minority Al-Kateb argument one has to somehow read into section 189 a suspensory condition, that even though you are an unlawful non-citizen, if you have certain particular characteristics, which the officer is somehow meant to know or form a view on, you are not to be detained and that seems to turn the very clear language of 189(1) and its mandatory character into a provision requiring an officer to form opinions about a matter which may be of the greatest complexity and uncertainty as to what the person’s prospects of removal are at a point in time.

BELL J: How does this work with those persons who are subject to a residence determination? Do they have one of these visas under 195A or not?

MR GLEESON: No, your Honour, and that is the third of the four relieving measures introduced in 2005, that under section 197AC if the residence determination is in force the Act applies as if the person was in detention, and your Honour would note under 197AA, the introductory provision to this subdivision, that the assumption of it was you would have people who were either required to be detained or actually in detention, so again Parliament thought because 196 works the way the majority said it worked, how do we deal with this problem, we take that category of people and we create a special power to alleviate the conditions for certain of them.

So that is the third of the powers. I do not submit that the community detention arrangements were solely to deal with Al-Kateb type people, but they were able to deal with a range of people, including Al-Kateb - - -

CRENNAN J: Well, I think there was an issue about children in detention which laid behind the - - -

MR GLEESON: Children in detention, yes. A number of things were coalescing. Children were a real problem, perceived to be a problem if the scheme was operating or may operate harshly. Al-Kateb was seen to create the potential for harshness. There was also, it would seem from the ombudsman provision, the fourth element in the scheme, which is the report if you have been in detention for more than two years that irrespective of Al-Kateb, long-term detention could work harshly and there needed to be an appropriate response.

If I could take your Honours to that ombudsman provision – it is down the back of the Act in sections 486L and following, and particularly under section 486O(3), one sees the types of matters the ombudsman could report on, including whether there should be continued detention, whether there should be community detention, whether there should be a release on a visa. The Minister was not bound by that, but it was to be tabled in Parliament. The very matters the ombudsman was able to report on confirm the assumption about the essential integrity of the scheme that unlawful citizens will not be in the community unless they are there on a visa.

So, your Honours, that is the first basis from which we rely upon this additional material that it confirms with some clarity that Parliament intended 196 to operate as the Court had held. Secondly, independently of that, just looking at it as part of the entire scheme today, it seems to be a fairly further powerful confirmation that the binary nature of the scheme has no exceptions and if an unlawful non-citizen is to be in the community, it is only to be under a visa and if that be correct, the minority in Al-Kateb cannot sit with that.

HAYNE J: Just as to the question of whether the principle of legality was considered by Justice Callinan, it may be necessary to have regard to what his Honour says at page 662 of Al-Kateb, paragraph 300 and it may then be necessary to go back to look at Justice Merkel’s decision at first instance in Al Masri 192 ALR - it may be, I do not know, at about 618, paragraph 35. I was looking at the Full Court decision in Al Masri, not the primary judge’s decision but I think we may find in the primary decision in Al Masri an extended consideration primarily by reference to Hardial Singh’s Case about notions of legality, detention and ambit of power of detention and his Honour, Justice Callinan expressly rejected the argument – rejected the reasoning of Justice Merkel in Al Masri.

MR GLEESON: We would make that submission, your Honour.

FRENCH CJ: That may be a convenient time. The Court will adjourn until 2.00 pm for pronouncement of orders and 2.15 for the resumption of this matter.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: Yes, Mr Solicitor.

MR GLEESON: Your Honours, could I conclude on the Al-Kateb point by asking your Honours just to go to section 196 for perhaps three final observations. The first is that on the correct construction by the majority the word “until” identifies that the detention is to continue until that point in time at which the first of four exercises of power or duty under the Act comes into play. The role reserved to the Court under judicial review would include ascertaining whether one of those four conditions of power had come into play, and if it had but was not being acted upon, the Court could grant an appropriate remedy. In that sense, there is no assumption within section 196(1) as to which of those four matters would come into play first, or at all, or in what order. It is simply a matter of when the first one does come into play, the detention must end.

The second matter is if your Honours look at the two for avoidance of doubt provisions that follow, they are in a different form to the equivalent provision which was in the Act in Lim’s Case which was the subject of debate as to whether it was valid. In Lim’s Case there was a provision to the effect that a court could not review the matter and that was held by the majority to be invalid and by the minority read down.

What Parliament seems to have done is to seek to address that problem by separating out into two provisions firstly the notion that if in law the person is a citizen or is a lawful non-citizen – that is, contrary to the executive’s view – then the court may police subsection (1) and order the release of that person, and subsection (3) is the converse, that where the person is in law an unlawful non-citizen – that is, a non-citizen with no visa – subsection (3) makes clear what is inherent in subsection (1), which is that the person is not to be released unless, if the first three conditions have not yet been satisfied, the person is granted a visa.

In that sense, one of the arguments which Mr Bennett put in Al-Kateb was that subsection (3) confirmed the correct construction of subsection (1) as ultimately found by the majority. He put that argument at the foot of page 566 and it was an argument which Justice McHugh accepted at paragraph 35 as part of the unambiguous language of the section and we would submit that there is much to commend that as an additional indicator that there is no temporal limitation as Mr Niall would have it that is to be read into 1(a) or 1(b), the language is sufficiently clear.

For completeness, I would observe that on our reading the only other two Justices in Al-Kateb who dealt with that argument in the judgment – I may be wrong – were the Chief Justice at paragraph 10 and Justice Gummow at paragraph 113, both in the minority. But, with respect, they did not address the real point that Justice McHugh found, namely, can you use subsection (3) as a further textual indication of the true meaning of subsection (1)?

Your Honours, the final matter on this part of the case is paragraph 2(d) of our outline, which responds to a point which the plaintiff made at some length in writing but only briefly orally this morning. The point is in the plaintiff’s outline at paragraph 8 and it is buried in the second sentence. I would be tempted to pass over it given it has not received much prominence in the oral argument except it does have perhaps a much wider significance so I should not let it go by omission.

What the plaintiff seeks to do is urge the Court to go beyond the limitations within section 198 that have so far been held by the Court to find a new limitation. So far the Court has held that under section 198(2), by implication, removal cannot be effected to a country where a person would face persecution, and that proposition has been accepted by the Commonwealth. The Commonwealth has accepted in other courts that the logic of that proposition applies equally to the other conventions which are reflected in the Act – the complementary protection conventions.

So it is accepted that the Court has held, and it is binding, that you cannot select a country where the person would face a risk of harm that the relevant conventions identify and that is the reason why the Minister cannot, against the plaintiff’s will, send her to Sri Lanka based on the current findings as to risk. Of course, she could ask to go there under subsection (1), but she cannot be sent there against her will under subsection (2). That is all accepted. What the plaintiff is now arguing, largely in writing, is there is a further implication which is, if it is accepted that you are a refugee you cannot be removed anywhere in the world, even to, as they say, a safe third country.

Now, our short proposition is that to the extent that argument has been put in some of the earlier cases and has been addressed by various members of the Court, it has been rejected and it should remain rejected. The plaintiff has sought to derive some comfort from something your Honour Justice Kiefel said in M70, paragraph 239, where they say your Honour should be read as having found that once you find a person is a refugee you cannot remove them to anywhere, the effect of which would be to invert the scheme of the Act. It would mean you have to accept them into the community irrespective of any other matters and that, we would submit, is a misreading of what your Honour was there dealing with.

So in terms of where this has been dealt with by the Court, as noted in our outline, it is in M70 and M47, and it might be sufficient for me for present purposes to say they are the paragraphs where various Justices of the Court have rejected this further implication. No Justice of the Court has supported it and your Honours should not support it today. The effect is, at least on this part of the case, if 198(2) has cut in this plaintiff can be removed to a place as long as it is not a place where she faces one of the risks under the relevant conventions.

HAYNE J: Is it a part of that submission that you have just made that if a finding were to be made that the plaintiff was a security risk within Article 33.2 of the Convention she could not be returned to her country of nationality.

MR GLEESON: The answer to that is yes.

HAYNE J: That is, if it were to be found applying the tests of character under 501 as distinct from the security test prescribed by the ASIO Act that she failed the character test, your submission is that she could not be removed to Sri Lanka. Is that right?

MR GLEESON: That does not automatically follow.

HAYNE J: Well, automatically or no, your submission was, as I understood it, that 198(2) does not authorise her removal to a country where she fears persecution for a Convention reason.

MR GLEESON: Yes.

HAYNE J: If that proposition is right, is it a proposition of universal application, or of application only in some circumstances that may arise under the Act?

MR GLEESON: I am not sure I understand that part of your Honour’s question.

HAYNE J: Section 198(2), you say, is not a power which permits her removal to Sri Lanka because she has been found to have a well-founded fear of persecution for a Convention reason in Sri Lanka. So far, so good, is that right?

MR GLEESON: While those findings remain intact, yes. That does not preclude a different question, which is whether if at a different point in time before an exercise of power occurred, a different assessment was made of that very question - - -

HAYNE J: Things change, things change, I understand that, but the power under 198(2), you say, does not permit her removal to that country?

MR GLEESON: I say that because the Court has held that in M70.

GAGELER J: Is it because of Article 33 of the Convention?

MR GLEESON: It is because of, as we read M70, the finding that at least this part of the Act is – I will put it a little loosely – so heavily infused with and related to the visa conditions that one sees the flow-over effect. That is putting it a little loosely, but that is the concept. The point I am seeking to deal with, with Mr Niall, is whatever be the position in respect to Sri Lanka, his proposition that 198(2) does not authorise her to be sent anywhere the moment that she is assessed to be a person to whom Australia owes protection obligations because of risks in Sri Lanka is to read into 198(2) something beyond any possible process of construction. That is what he is urging on the Court.

The effect of that is to invert what has been said in M70 and M47, which is a finding that Australia owes protection obligations to the person is not a finding that Australia is bound either by the Refugees Convention or by this statute to then accept the person and grant them a visa to come to Australia. The one does not flow into the other. That is what he is seeking to achieve, whereby she must be accepted into the community and granted, presumably, a visa because she is found to be a refugee. That is the point I am seeking to address at the moment.

HAYNE J: Is the proposition that there is no power under 198(2) to remove her to Sri Lanka, a step necessary to your argument that her continued detention is lawful?

MR GLEESON: Could I just consider that, your Honour?

HAYNE J: Of course.

MR GLEESON: Yes. Is it convenient then, your Honours, to move to the constitutional point which will be fairly brief and then I will come to the - - -

GAGELER J: Can I just go back to your answer yes? If there was power to remove to Sri Lanka, there would be a duty to remove to Sri Lanka, would there not?

MR GLEESON: Yes.

GAGELER J: Is the detention unlawful or is the duty simply unperformed?

MR GLEESON: The position at the moment is, leaving aside the part of the case I am to come to, the obligation under 198(2) has cut in for the reason that the plaintiff is a person in paragraph 198(2)(c)(i). She has not made a valid application for a visa and we would submit that the process of consideration which might have led to the possibility of a valid application has lawfully terminated. For that reason, the duty to remove has cut in.

We are then in the territory of as soon as reasonably practicable which takes us to the question of selection of a country, as Justice Gummow said in M47 at about paragraph 98, and when we are looking at the countries, on the material, any country other than Sri Lanka would be a country to where she could be lawfully removed having regard to international obligations, but at the moment there are difficulties in persuading those countries to take her.

That narrows us down to Sri Lanka and the position has been taken that 198(2) does not permit the officer to select Sri Lanka by reason of those international obligations. So the duty has cut in but cannot be performed today. As soon as it be practicable to send her to Sri Lanka, e.g. conditions change, or some other country, e.g. what at the moment – to come back to your Honour Justice Kiefel’s question this morning – is we have accepted as a bare possibility in India as opposed to something we can say really is likely to happen in the near future, as soon as any of those things happen, the duty is capable of performance and to be performed.

HAYNE J: If it is the international obligation and its content which underpins the proposition you advance why does that not entail that the application of Articles 32 and 33, reflected as they are in the Act, are themselves the only relevant provisions that can inform the operation of these provisions?

MR GLEESON: Well, I would have to ask for particulars, your Honour, on these provisions. If we are asking about 46A, I am going to come to that, that is a separate matter.

HAYNE J: I understand you are coming to 46A, but you have presently proffered a proposition about 198(2). My understanding is that that proposition is one whose foundations you identify in the existence of the international obligation. The point I am putting to you for your consideration is whether you are cherry picking. You are taking some aspects of the international obligation, namely the existence of well-founded fear, but not taking account of Articles 32 and 33, which are themselves the subject of explicit recognition in the Act.

MR GLEESON: I am not sure there is cherry picking. I do not want to pick cherries. I am not sure what is that we are not eating, your Honour.

GAGELER J: Well, it is Article 33.2.

MR GLEESON: Article 33.2.

GAGELER J: Yes.

MR GLEESON: If your Honour’s questions are what is the relationship between Article 33.2 and the adverse security assessment in relation to this plaintiff, then that is a subject I should address directly. If that is where your Honour’s questions were directed I am sorry I did not understand they were.

CRENNAN J: Well, another way of asking the question I suppose is to ask about the position of or the content of section 501 in the context of which we are speaking, because section 500, as I recollect it anyway, nominates decisions reflecting Article 33.2 as decisions which are capable of review.

MR GLEESON: Yes. Your Honours, could I take those separately if I can? If the question is, has the duty under 198(2) cut in in a sense that Sri Lanka is a country which not only could be selected but therefore must be selected by reason of Article 33.2 one is then looking at the relationship between the adverse security assessment and Article 33.2. On a simple view one might say why does not the officer or the Minister say, “I am entitled to act upon the ASIO assessment”. This particular assessment, unlike many, is that the plaintiff is a threat to the security of Australia. It is not in that broader category of, she is a threat to security somewhere, so it is the narrower assessment.

HAYNE J: Where in the stated case are you referring to when you make that assertion, Mr Solicitor? My understanding of the documents was that the ASIO Act definition was engaged at every stage.

MR GLEESON: Yes, I have said that. What I have said is a narrower point, that the ASIO Act definition is broader than threats to security of Australia. My proposition was that the particular ASIO assessment in this case was in the narrower form, that the threat to security was in the narrower sense I have mentioned. Your Honour asks where that is, I will show you the terms of it.

It is in the stated case at paragraph 51 on page 37, particularly paragraphs (c) and (d). I am sorry it is taking a little time to answer your Honour Justice Gageler’s question but there are a couple of steps to the answer. One step is prima facie if you look at these materials, a question does arise to one’s mind, does this particular ASIO assessment provide evidence of Article 33.2 being triggered, in which event the plaintiff could be sent back to Sri Lanka, and should be sent back to Sri Lanka.

Now, the plaintiff is not raising that as an issue in the case and the defendants have not raised it as a counter issue but it is important I address your Honour’s question. One of the difficulties is that the equivalent exception to Article 33.2 does not appear in the complementary protection treaties and so a difficult question of international law is whether one can read into the ICCPR and the Torture Convention an equivalent to Article 33.2. If you cannot, then even though the officer might be able to send her to Sri Lanka, having regard to one set of international obligations, you may not be able to do it by reference to the other set of international obligations.

The Commonwealth has accepted following M70 that the logic of M70 is that it must respect each of its international obligations under those three treaties when it comes to the selection of the country of removal. So for that reason there is at least a very real argument that even if she could be sent there under Article 33.2, she may not be able to be sent there subject to the complementary protection treaties.

At the moment, the plaintiff not tendering that as an issue that she can be and must be sent back to Sri Lanka, the defendants have taken a position that it is appropriate to proceed on that basis, given that at least uncertainty in that area of international obligation and it not being an issue joined before the Court. If some step was to be taken to join that as an issue, I have tried to indicate to your Honours it is an issue of some difficulty, there is no immediate answer to it and we would need to provide your Honour with more assistance than simply me giving an answer here.

HAYNE J: At what stage of this long history has it ever been suggested that Article 33.2 is engaged in respect of this plaintiff? Where? The only documents we see are referenced to PIC 4002 and the ASIO Act definition of security, is that not right? If I am wrong, please correct me.

MR GLEESON: Your Honour, I have not put a positive submission that - and the Commonwealth and the defendants have not put a positive submission that Article 33.2 has been engaged with respect to the plaintiff.

HAYNE J: Because if it had she would have had a review right, subject to the Minister’s power to grant an additional certificate. Subject to that, she would have had a review right.

MR GLEESON: If she had a right to apply for a visa, the answer is yes.

CRENNAN J: So you only get the review if the refusal based on character grounds, say, is in the context of an application for a visa being on foot. Is that the distinction you are making? You go to 46A(2) rather than 501 in the context of what you have pointed out on page 37.

MR GLEESON: Yes. So we are not in that - - -

CRENNAN J: So in one context there is no right of review and in the other there is.

MR GLEESON: I am going to come almost in a moment to 46A.

FRENCH CJ: You say that only happens after the bar has been lifted.

MR GLEESON: Yes.

CRENNAN J: But when you rely on a proleptic assessment, if that is the right way to go about it according to the ministerial policy, because you are relying on a proleptic assessment you are proleptically assuming, if you like, an application for a visa that you knock out earlier rather than later.

MR GLEESON: Your Honour, that comes to what 46A permits and means so can I just come to that.

CRENNAN J: Yes, certainly.

MR GLEESON: I think it will be almost directly. So the only intervening step was the important one of concluding the constitutional argument. I think your Honours have the thrust of what we are putting on that, that the argument which Justice Gummow was addressing in Al-Kateb for a Chapter III limitation is one that should not be reopened and certainly should not be accepted.

Could I just highlight though one aspect of what the plaintiff is seeking? We are dealing with the case of the person whose removal cannot immediately be practically effected and the plaintiff seeks a Chapter III implication saying Parliament cannot in that circumstance authorise continued detention of the person. One must immediately ask what is the end point of Mr Niall’s argument. Is his end point that beyond that point in time, the Constitution has reserved the question of detention to the judicial arm of government, on the one hand, or is it that it has prevented any arm of government from further authorising that detention?

They seem to be the two logical end points of his argument and both of them, we would submit, are erroneous under Chapter III. So, your Honours, the matters that I have outlined in paragraph 3 of the note is the way in which we would defend the correctness of the view that has been taken to date, that there is no Chapter III difficulty.

Can I then come to section 46A, and I need to deal with two aspects of this. One is the actual facts of this case, and then the second are the broader questions the Court has raised and Mr Niall has embraced to some extent. Could we just get the facts in the chronological order in which they unfolded, and could I ask your Honours to go to the special case book at pages 29 to 31? I might ask your Honours to note that the five steps in the chronology are in this order. The first step is paragraph 16 on page 30, that the Minister gave the direction in March 2009 before the plaintiff’s entry as to certain cases were not to be referred to the Minister. That direction is found at page 201, and it reads:

Govt policy is for health identity & security checks to be completed prior to release from detention. Unless there are extenuating or special circumstances those requirements should be applied before seek bar to be lifted under Sect 46A(2) –

and the Minister was dealing with, back on 198, two options. One was to allow the bar to be lifted and to deal with these matters in the visa process. The second was to deal with these matters before the bar was lifted. The Minister took a particular approach.

The policy from March 2009 was always that when these processes were being conducted to aid a decision to lift the bar, there would in effect be two streams underway. One would be the RSA stream, which would assess Australia’s protection obligations, and the second was to assess the questions of relevantly security, and the guidelines - - -

HAYNE J: In what sense, security according to what definition?

MR GLEESON: Let me come to that in one second, your Honour.

HAYNE J: Of course.

MR GLEESON: It was security, and the matters were not to come to the Minister until those checks were, as this document says, to be completed. We have no further information in the special case book to answer your Honour’s question as to the standard by which the checks were to be completed. It was simply a position if those checks had not been completed, then the matter is not to come to me for the lifting of the bar.

That is the first step in the chronology. The second step is paragraph 12 in the special case book at page 29 which is the plaintiff requested consideration under the RSA process. The plaintiff’s application may be found at page 127 and from that page one can see from the fourth bullet point that this part of the process was to assess the need for protection issue. The last bullet point informed the plaintiff that the:

Information may also be disclosed to Australian Government agencies including those involved in security and law enforcement matters.

So there we have a further indication from the outset that the process which was to take place in aid of the Minister’s decision would include an RSA assessment as well as some process related to security.

The third step in the chronology back on page 30 is at paragraph 15 which is that in September 2011 there was a positive finding under the RSA process and the positive conclusion is at 193. What that did was to assess her claims to protection as against the standards in the Convention and by definition it was not an assessment of whether there was a risk to security within the ASIO Act, that being a different process.

FRENCH CJ: This is proleptic section 36?

MR GLEESON: Yes. If her claim was to be assessed under section 36 – if a visa were allowed – what might the answer be? The answer might be, in section 36 terms, positive. It is not, I observe, a document assessing the security question and it is also not a document assessing whether the Minister might, on the character ground – to come back to your Honour Justice Crennan’s question – ultimately refuse a visa if an application was allowed. The document does not address character and it does not address the discretionary considerations that the Minister might look at if there was a character ground and if a visa could be applied for.

CRENNAN J: What do we make of page 188 – the text under point f, particularly that last sentence:

Having considered the evidence above –

So that is all the evidence about - - -

MR GLEESON: So that is a finding of this officer within the process, measured against the Convention obligation that the officer was not satisfied that Article 33.2 was met within that context. What the officer is not doing is addressing the ASIO question. To the extent Mr Niall suggested this morning that once the plaintiff got a positive tick out of this process, in effect, everything was there and she had earned the right to have her claim assessed, that is not correct. She has one of three aspects of the process – or the potential process – looked at at this time, which is protection. She does not have security assessed and she does not have character proleptically assessed.

At that stage, the fourth step of the process, which is page 31, paragraph 19, are the March 2012 guidelines which are found commencing at page 203. The guidelines have, at least in a more formal sense, indicated the structure around the process of referral and non-referral to the Minister. The critical guideline, it was mentioned but perhaps ever so briefly this morning, is under section 10, the Minister has said, there are a number of cases which are not to be referred for consideration, the second bullet point is a person who has engaged the protection obligation but does not satisfy or yet satisfy the public interest criteria. Then quite independently from that, over on page 207, the second, third and fourth bullet points identify three categories of cases where the Minister does not wish the matter to be referred to the Minister, the second of those is squarely in point.

So what the Minister has purported to do by this guideline is to say, given that the public interest will ultimately be something I have to form a positive view on before I could lift the bar, I consider that there are at least these three categories of cases where that will create a red flag, that matter of itself, an adverse security assessment or a person under investigation or charged with an offence, that of itself will be enough where while that remains the fact I will not be satisfied the public interest under section 46A could be satisfied.

FRENCH CJ: This is on the premise, is it not, that PIC 4002, the adverse security assessment referred to, is the application proleptically of a PIC 4002?

MR GLEESON: No, what this document has indicated is on independent bases the Minister has said, back on page 206, if you fail 4002 do not send it to me, or any other public interest criteria, but has separately said on 207, if there is the fact of an ASA that, of itself, will be enough not to refer it to me, just as if the person is under charge do not refer it to me, if they are under investigation do not refer it to me. So the guideline is saying, in effect, when I come to form positive views on the public interest, which I must report to Parliament, I have put some parameters around my decision-making where I will not be willing to report to Parliament that a person with an ASA is a person whom the public interest requires to be allowed to apply for a visa.

FRENCH CJ: What is the provenance of the ASA that is independently referred to there?

MR GLEESON: The fact of an ASA. If and while an ASA is in force, that is, an assessment has been made under the ASIO Act, that of itself, irrespective of any other matter, is something - - -

FRENCH CJ: This would be the same assessment that would feed into PIC 4002.

MR GLEESON: Yes, I am not denying that, your Honour. The point as a matter of construction is the Minister has said, that fact of itself, irrespective of whatever the public interest criteria may be, is a reason that I will not form a positive view on the public interest.

FRENCH CJ: This is pre-M46.

MR GLEESON: It is pre-M46. Now, if that is a fair construction of the Minister’s guidelines, the - - -

FRENCH CJ: Why should it be construed that way? Why should one think that the Minister made a distinction between adverse security assessment for the purposes of PIC 4002 and adverse security assessment as some sort of factum affecting the question of referral?

MR GLEESON: Partly because of the very structure of this section 10 that the Minister has divided it up into three different categories - - -

KIEFEL J: Is not the public interest category those categories which follow on page 207 at about line 13 after:

For all OEPs . . . to whom the following circumstances apply, their case should not be referred for my consideration as part of my public interest power –

and then there are two dot points? Does that not suggest that what goes before is not considered to be part of the public interest power?

MR GLEESON: I think there are two different things happening in the document, your Honour. The first is that the document as a whole as we see back from page 204 is about the public interest power under 46A(2) - these are a parameters for that power - and it is divided up into cases to be referred and cases not to be referred.

Within the “not to be referred” in section 10, the document has treated the OEPs in three different categories. The third category, the one your Honour is directing me to, is saying that for these particular people, namely OEPs who engage protection obligations and who are in the community on a bridging visa and they have previously held a temporary safe haven visa, so for that particular sub-category of OEPs they should not be referred under 46A but they should be referred under the separate 91L. So they are in that category. The next bullet point also deals with a particular sub-category, those with unique and exceptional circumstances.

So, coming back to your Honour the Chief Justice’s question though, in effect, is one to read the reference to the ASA in the second section of this document as qualified by the first section of the document as a matter of construction? So we are in an area of construction of the guidelines. Our submission is no, because what we can carefully see in the second section of the document, as I have said in the second, third and fourth bullet points, is the guidelines have identified a factual position in respect to an OEP which of itself is to be a barrier to the matter being taken further at least while that factual position remains.

So with the ASA, for so long as there is an ASA, that of itself, do not refer it to me. With the next one, if you are a person under investigation or of interest, while that be the case, do not refer it to me. If you have been charged and awaiting the outcome, while that be the case, do not refer it to me. Now, in each of those three categories, no doubt the document has erected a more preclusionary set of conditions than those which would apply if the visa process of the Act were engaged. We accept that. The Minister has said if those facts be present, and while they be present, I will not be able to form a positive view on the public interest under section 46A. He has done that irrespective of what be the position in the other parts of the document. That is the construction aspect, and that gives rise to perhaps – the question Justice Gageler asked was where does the plaintiff’s argument engage with section 46A. If I could go to section 46A - - -

HAYNE J: Forgive me, before you leave the point with which we have been presently dealing, do you say the adverse security assessment referred to in the guidelines is an assessment that is of a kind made separately from consideration of application of PIC 4002? Because if that is so, that then drives you back into the ASIO Act, it drives you back into the application of section 36 of the ASIO Act, and what the review provisions of the ASIO Act do and do not apply to because that is proscribed administrative action, and proscribed administrative action is basically something that is done for the purposes of the Act or something done under the Act. Where are we getting to with this fork that you would have us observe in the guidelines, Mr Solicitor?

MR GLEESON: If, and for so long as, an adverse security assessment has been issued within those powers in the ASIO Act – and accepting that within that structure for this category of people you cannot appeal it – while that fact exists - - -

HAYNE J: You cannot appeal if it is a proscribed administrative action, et cetera. I do not want to delay us on this, but it seems to me that you are forcing onto a document a division which has its origins in later events this Court’s decision after this document is prepared, which is that PIC 4002 is inconsistent with the Act. Why should we read the document in the light of the subsequent event?

MR GLEESON: Of course the person drafting the document did not know either the outcome or perhaps even the nature of the challenge being raised in respect to PIC 4002, so we are left in a situation of construing a document to see its effect, but it often happens that the drafter of a document chooses words which will then have to be applied to events that unfold. So accepting your Honour’s caution on it, when you come back to section 10, it has been carefully divided up into three categories of OEPs, the first of those:

who have undertaken a Refugee Status Assessment (RSA) or POE interview prior to the transition to a single PV process on 24 March 2012 –

and the second category says –

For all OEPs (regardless of their date of arrival) –

so whether before or after –

to whom the following circumstances apply, their case should not be referred for my consideration.

So just on a straightforward reading of that, the Minister has said for all people, regardless of the date of arrival – so it is a more general category, it subsumes those who were in the first category, who had to be at a particular - - -

CRENNAN J: Does it subsume them or implicitly exclude them?

MR GLEESON: It subsumes them, your Honour, in the sense regardless of their date of arrival, so the first category is about a date of arrival and your Honours may recall from previous cases this was to do with a decision which was then not implemented, an administrative decision after a certain date - 24 March 2012 - to move back into a single processing stream. That is a detail but the second section is for all OEPs regardless of the date of arrival, if one of these five matters exists, do not refer them and then the third category is also for all, regardless of the date of arrival, do not refer in these circumstances.

So the construction we are asking your Honours to at least consider is simply on the plain reading of that second section of section 10. It has been identified for all people if one of the five matters exists, do not refer. There is then a fork in the case. If your Honours reject that construction of the document, based on the current guidelines, we would return to the agreed fact which is on page 31, paragraph 21 that there were two reasons why the case was not referred: one was PIC 4002 and the other was the fact of the ASA.

FRENCH CJ: All that (a) means is the plaintiff did not satisfy Public Interest Criterion 4002 in that the plaintiff did not not have an ASA against them.

MR GLEESON: Yes, your Honours know there is an intermediate step. It is not that PIC 4002 operates directly upon the fact of the ASA or not. It is whether the prescribed administrative action involving lifting the bar under 46A was there or not. If we are correct on that construction and referring your Honour to that agreed fact, then we come back to the question of what section 46A permits and I will not belabour what the Court has said in other cases correctly about the breadth of public interest. It seems that the plaintiff may be contending for one of two limitations to section 46A(2) as to how the public interest can be conceived.

The first limitation, and this was very much in the written submissions, is that the public interest is circumscribed by the criteria for the grant of a visa under the Act, in which view it is not open to the Minister to bring into consideration in the public interest conditions which are more restrictive than those that would apply to the grant of a visa.

The second view, which may overlap, and has been discussed more this morning, is that if the Minister has set or published criteria which will govern the consideration of the public interest you cannot change them midstream to the detriment of a potential applicant. We would submit neither of those restrictions can or should be read into the consideration of the public interest in this section.

There is a restriction which would deal with cases which one would hope would not arise, but may be closer to one of the examples your Honour Justice Hayne gave, which is there would be a restriction upon bad faith conduct by the Minister in respect to this power and we are not in the territory of bad faith in this case, but it would deal with the extreme example where there was lengthy detention, a process was conducted entirely by a set of public rules, the process yielded a singular answer for the Minister to consider and the Minister then, in bad faith or capriciously, came to a particular decision. So I would accept a bad faith limitation, but beyond that we are back into the territory the Court has addressed in S10 and M79 in terms of the breadth of the public interest.

Now, let me address the proposition that liberty has been restricted by the prolonged detention. No doubt that is a factor which underpins these exercises of power, but the public interest is there to enable, as the Court said in S10 and M79, a consideration of factors in addition to the position of the individual, in addition to the liberty of the individual, and it is quite conceivable, consistent with good faith, that the Minister could, during the process, come to a view that additional criteria were properly to be applied

in order that when the final decision was made and communicated to Parliament it really was a proper judgment on the public interest.

Your Honour the Chief Justice raised a question about whether one could consider, for instance, putting a limitation on the number of people to come from a particular country, or the like. In principle, that may well be available within a conception of the public interest. There may be a limitation on total numbers wherever people come from. As circumstances change, factors might become more pressing in the public interest than was conceived at the beginning of the process.

So for that reason we would urge the Court not to read into section 46A(2) the limitations which the plaintiff is seeking. We would urge the Court to find that the guideline issued by the Minister carried through a matter which had been identified at the outset as relevant, namely, an assessment of the risk to security. Perhaps, to come back to matters raised by your Honour Justice Crennan, there is no difficulty under 46A(2) in erecting a guideline in the same territory as the character assessment, but more preclusionary than the character assessment, always being in territory where Parliament has prima facie said, this person cannot exercise the rights to a visa under the Act and we are looking at whether this discretion should be exercised.

Your Honours, could I take this course at this stage? Could I ask you to permit Mr Donaghue to give a more detailed and, perhaps, more correct answer to an aspect of the ASIO Act on which he knows more than I do? Is that convenient to your Honours?

GAGELER J: Are you coming back after that?

HAYNE J: I think you are, Mr Solicitor.

MR GLEESON: Yes.

FRENCH CJ: Yes, we will hear from Mr Donaghue.

MR GLEESON: Yes, as long as it takes, your Honour.

MR DONAGHUE: Thank you, your Honours, I will be brief. Your Honours will recall that in Plaintiff M47, the way that the issue emerged was that that particular plaintiff was not an offshore entry person, having been brought to Australia from the Oceanic Viking with a special purpose visa, and because he was not an offshore entry person he had been able to access the main visa stream under the Act. He had lodged a protection visa application and that application had been refused in what turned out to be defective or false reliance on the particular criteria in the regulations that applied – PIC 4002 – as one of the criteria for a grant of a visa.

Within that statutory context, when ASIO undertook an adverse security assessment, the prescribed administrative action – to use the defined term in section 35 of the ASIO Act – that term being relevantly defined as advice concerning:

the exercise of any power, or the performance of any function, in relation to a person under the Migration Act 1958 or the regulations under that Act -

The advice that ASIO was giving was advice that the power under section 65 to grant a visa should not be exercised in respect of Plaintiff M47 because he did not meet one of the criteria for a protection visa. Obviously when that criterion was held to be invalid, the subject matter of that adverse security assessment fell away. In the context of an offshore entry person who is not able to access the visa provisions of the Act, the only possible prescribed administrative action to which an ASIO adverse security assessment can be addressed, the only power under the Act that is available to be exercised is the power under section 46A.

The advice that ASIO is giving in its adverse security assessment is and can only be advice about whether that bar should or should not be lifted. That subject matter is not falsified by the invalidation of the regulation 866.225(a) that poses a criterion for a protection visa because this plaintiff never applied for a protection visa. ASIO was not giving advice about those criteria. It was giving advice about whether the Minister should exercise the power under 46A to lift the bar. For that reason, we submit that there is no – even on the decision of this Court in M47 finding that PIC 4002 was not validly described, it did not change the question for the Minister in determining whether or not it was in the public interest to lift the 46A bar.

HAYNE J: Does that mean that you say that special case book 214 is wrong? That is the letter from the Department to the plaintiff saying “you do not meet the security requirements of a grant of a visa”, one of the criteria is PIC 4002 and you do not meet that.

MR DONAGHUE: Your Honour, that is a letter from the Department that clearly does refer to a visa criterion that was subsequently revealed to be invalid, but the special case at paragraph 21, as Mr Gleeson said, agrees that the matter was not referred for both reasons, because of PIC 4002 and because of the adverse security assessment. So I do not say it is wrong, but it is incomplete. It does not capture the fact that this was a person who did not have a visa application on foot and so we had not really reached the

point of refusing that visa. Your Honours, unless I can assist with that further, those are the submissions on that point.

FRENCH CJ: Thank you, Mr Donaghue. Yes, Mr Solicitor.

MR GLEESON: Your Honours, the point I had reached about 46A(2) was whether one should read into it either of the two limitations I had identified. Could I then deal with some further aspects of the construction of 46A(2)? The first is that the public interest criterion is a step in the formation of the positive action to determine that the bar is to be lifted, that is, before the Minister can lift the bar the Minister must form that positive assessment that the public interest commands this course.

CRENNAN J: Might I just raise some – I do not want to be too troublesome, but just going back to 213 which Mr Donaghue was addressing us about, if one looks at the insert about what ASIO did, the advice it gave under section 35 of the ASIO Act, it recommends that an “application for a visa be refused.” Now, Mr Donaghue said that can only be advising about whether the bar should or should not be lifted, but that would indicate that the advice was premised on an application for a visa, would it not?

MR GLEESON: But the proposition he put, which I adhere to, is the letter is incomplete. It certainly has said that and what it has not said is there is a second reason why you have failed.

CRENNAN J: But I am not talking about two different reasons, I am not talking about two different bases, I am talking about the premises upon which the advice was given. This is the difference between bars being lifted and bars not being lifted on a proleptic basis. ASIO seemed to be advising on the basis that the territory about which the advice has been proffered is that a person has an extant application for a visa.

MR GLEESON: I am not sure that is correct, your Honour.

CRENNAN J: Look, I do not want to delay you, but it seemed to me to be worth drawing it to your attention because the point about, well, there are two separate bases and so on does not really address this quite separate appearance anyway that the advice tendered under the ASIO Act had a particular premise, and the premise was not whether or not a bar should be lifted or not.

MR GLEESON: I am not sure how we establish the premise upon which ASIO was acting. Here we have the Department giving their summary of where things have reached, but - - -

KIEFEL J: If the Department is not saying that the plaintiff was in fact an applicant that it must at the least be saying that the criterion for the grant of a visa are being applied in an assessment of her status. Is that not correct?

MR GLEESON: I may be behind all of your Honours here. ASIO, as I understand it, under their Act, is asking a question, are you a threat to security within the defined terms of that Act?

KIEFEL J: Now, the Department is writing and saying, if, in effect, the criterion - you have been treated as if, hypothetically, you were an applicant for a visa, the criteria for the grant of a visa have been applied to you, one such criterion is PIC 4002 and you do not pass it, you do not meet it, that is what the letter is saying.

MR GLEESON: That is what the letter is saying.

KIEFEL J: All I am trying to get out of that is the Department is clearly approaching the matter by reference to the criteria in the Migration Act for the grant of a visa. It is assessing whether Australia owed protection obligations to the plaintiff in the sense referred to in Plaintiff M61 at paragraph 88, is it not? I will let you answer that first.

CRENNAN J: Could you look at 35(1)(b), just to put it in the mix of the ASIO Act, which explains how the adverse security assessment works?

KIEFEL J: Let me pose a first question before you answer that. Do you agree or disagree, Mr Solicitor, that the RSA process is intended to address the question whether Australia owes protection obligations to a person such as the plaintiff?

MR GLEESON: Yes, for the purpose of providing the Minister with the advice upon which - - -

KIEFEL J: And that is consistent with the way in which the Migration Act has been construed by this Court, which is to meet Australia’s obligations to a person who claims to be a refugee?

MR GLEESON: Yes.

KIEFEL J: The process that the Department was engaged in was to consider whether Australia owed protection obligations and it did so by reference to the criteria of the Migration Act, did it not?

MR GLEESON: That is true. That is true as far as that went.

KIEFEL J: And in the process of that it has made an error, has it not?

MR GLEESON: No. What your Honour has described is accurate but it is not the complete story. As I have sought to indicate from the beginning – back from 2009 – at least two things have to happen, maybe three. The first is the RSA assessment. The second is security. There is then the question of character which is not dealt with in the RSA process. The view of the guidelines we have put is that there were two independent bases upon which a matter was not to be referred. The Department’s letter has not referred to the second basis. It is beyond doubt. I cannot argue with that. It has referred only to the first basis.

If we are correct as a matter of construction that the Minister had set up the additional basis we have an agreed fact that the reason the case was not referred was a double reason. It was not just PIC 4002, which is what the letter would tell you, but there was an additional reason it was not referred because the Minister said, no satisfactory security assessment, do not tell me about the person’s case.

KIEFEL J: What your case comes down to is that the Minister is entitled to set up criteria in addition to those of the Migration Act - - -

MR GLEESON: Yes.

KIEFEL J: - - - to meet the public interest question. That is the top and bottom of it.

MR GLEESON: There are two aspects. That is one, and the second is the Minister is not bound only by those criteria which he or she may have set in stone and published at the beginning of the process. If either of those limitations is to be read into 46A, then we have got a problem.

KIEFEL J: What if you are wrong about the construction of the guidelines in relation to what the Minister is doing about the criteria for public interest?

MR GLEESON: All right. So if the correct construction is that the Minister did not regard the fact of an ASA of itself as a barrier to referral, then there has been an error, and what the Department should have done is to, while those guidelines are in force – I will come back to that – should have been to say, here is a case that you asked us to refer to you.

That only gets us halfway towards solving practically the legal problem in this case because we would submit that the Minister would be free under 46A to say if people have an adverse security assessment, while that remains in force I am entitled to regard that as a reason why I cannot report to Parliament it is in the public interest to allow this person to access the rights in the visa process, even though that is for me to set up a criterion which is more restrictive than the visa process and even though the person does not get the right of review they would get if it was a character decision being made under the Act - - -

KIEFEL J: That is not a matter which concerns us. You are talking about what the Minister could do as a question of power.

MR GLEESON: As a matter of power, it could be relevant to the relief your Honours were considering on the alternative case - - -

KIEFEL J: I see, yes.

MR GLEESON: - - - because one of the arguments floating around today is that you either cannot set more restrictive criteria, or you cannot set criteria which change over time. We would submit both of those restrictions are wrong, and whatever your Honours do in the reasons would not be to advance that as the correct constructions. If those restrictions do not exist, your Honour, then one would get to the question of utility of relief, and one would get to the question of form of relief.

KIEFEL J: Would the Minister’s decision applying public interest in that way be reviewable?

MR GLEESON: The answer to that is no, in the sense that it would be within the legal conception open to a minister to form - - -

KIEFEL J: You mean the review might fail, but that is not to say that it is not itself reviewable.

MR GLEESON: That is correct, your Honour, yes. There are limits upon which - - -

KIEFEL J: Just going back to the construction question for a moment, would the construction for which you contend, which is that the Minister in the guidelines can be taken to apply an additional criteria relating to adverse security, be affected by the fact that the Minister has the power to certify under the Act already? The Minister does not need this. The Minister does not, in a sense, need the criteria, does he? Can he not certify that the 502 – yes, the:

Minister may decide in the national interest that certain persons are to be excluded persons –

With that power, why would the Minister put an extra criterion in the guidelines if it is simply certified? I suppose there is no visa on foot. That is the issue, because the process has not been engaged.

MR GLEESON: Yes. At this stage of the process, the proposition is the Minister would be entitled to say “For this reason I am not prepared to form a positive view on the public interest”. The actual position of the Department – this is not the Minister, but the Department – was then restated at page 216. It might look like bootstraps, but the view that the Department has taken recently, following M47 is, as we read the guidelines, it is an independent criterion.

Now, if they are wrong in that, they are wrong in that view but if the question is simply has an error occurred in the decision not to refer because the guideline has been misread, well then that could lead to appropriate declaratory relief.

GAGELER J: What would be the nature of the error?

MR GLEESON: I am not saying there is an error.

GAGELER J: No, on the assumption that the guideline has been misread. How do you characterise the error?

MR GLEESON: I suppose what I am accepting is on that construction, there has been a misreading of the guidelines by the Department.

GAGELER J: Well, yes, that is a matter of definition but do you accept that to be an error of law?

MR GLEESON: Well, I am having trouble identifying which category of error of law I would put it in. It is an error in the misreading of the guidelines.

GAGELER J: Do you accept that some relief flows from it?

MR GLEESON: Well, I am just trying to think about this, your Honour, because this construction point is not one which the plaintiff has taken to date. They can take it now if they like, of course, but we would have difficulty seeing what relief would flow in this sense. It is not the sort of matter that was dealt with in the earlier case where there was a denial of procedural fairness, where there was a misconstruction of a statutory criterion.

HAYNE J: Let us simplify it, Mr Solicitor. Let us personify it as well. The Minister says to the plaintiff, “I will detain you while I consider whether to exercise my power under 46A(2) and detain you while I inquire whether a protection visa would be granted”. That is surely an available construction of the events that have happened, is it not?

MR GLEESON: No, I reject that, your Honour.

HAYNE J: How?

MR GLEESON: I reject that. There are three aspects to the rejection. First of all is the Minister does not decide to detain. Parliament, as your Honour has pointed out in the earlier - - -

HAYNE J: No, no, no, Mr Solicitor. Offshore Processing decided that these people were detained lawfully only because they were being detained for the purposes of the Act and they were being detained for the purposes of the Act because the Minister had embarked on 46A(2) consideration.

MR GLEESON: I do not think I will quarrel with that proposition.

FRENCH CJ: Following that characterisation, the RSA process as I understand it and the way it was construed in M61 reflects a setting up if you like of a necessary condition to be satisfied before the Minister will consider lifting the bar, the necessary condition being that the offshore entry person is eligible for a protection visa on the criteria applicable under the Act and the regulations. There is a public interest issue as well. That is why I say, necessary condition.

Now, if the necessary condition involves shadowing, as it were, in advance the criteria applicable under the Act and the regulations, then the way in which – and assuming against your construction of the guidelines, the way in which PIC 4002 has been proleptically applied is if ASIO has said that is enough, you fail. You fail the necessary condition. What was said in M46 is that it cannot be left to ASIO.

PIC 4002 is not enough, there is a job for the Minister to do; so that the process in the RSA pre-M46 does not accurately shadow the application of the criteria for eligibility for a protection visa under the Act and regulations. There is a step to be taken which has not been taken because of the reliance on the ASIO adverse assessment. Now, as I say, I am assuming a construction of the guideline against you. Do you accept that? Query how one translates that into error and relief. That is another difficult question.

MR GLEESON: That is where I was dealing with Justice Gageler inadequately, but I think I have to accept what your Honour has put to me to that step of the argument, that if the only guideline issued on the proper construction in the area of security was look at PIC 4002 and advise me on that lawfully, then the error in PIC 4002 has had that causative effect, namely that it would otherwise have moved forward to the Minister, and then whether it is the issue for this case or the next case or the form of relief, we would be wanting to submit that for the Minister to say, I cannot be positively satisfied that the public interest requires persons with an adverse security assessment while it remains in force – e.g. while it has been independently reviewed and found not to involve error, while it is the subject of no judicial review - successful application, in those circumstances my view is the public interest does not justify the lifting of the bar, that that would be open and available under 46A(2) even if that had not been the criteria openly published at the beginning of the process. That does bear upon any form of relief if one is thinking of either a declaration or mandamus which we would be opposing.

HAYNE J: But the proposition that its root is you can change the rules of the game after a period of detention has been prolonged. It is as blunt as that, is it not, Mr Solicitor?

MR GLEESON: That of itself is not outside the public interest conception, yes. So there is no doctrine of promissory estoppel converted into this part of 46A that if I start on a process and I publish certain rules I can never import more restrictive rules, and one says why can you not do it? As I said to your Honours earlier, yes, you have prolongation of detention. The public interest is there to bring to account, as your Honours said in S10 and M79, all of those other considerations which may not be personal to this particular person which may be national and which may call for a different response to the one which was publicly identified as the rules at the beginning of the game.

So if your Honour’s question is, is it open to the change the rules under 46A, the submission is yes. Is there a constraint – yes. What is the constraint – bad faith. Now, your Honours, to conclude this could I go to M61 to two paragraphs; firstly, paragraph 77?

FRENCH CJ: Sorry, what page number is that?

MR GLEESON: That is page 353, at paragraph 77. The Court there said:

Because the Minister was not bound to exercise power under either s 46A or s 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the Minister decide to exercise the power or –

I emphasise this –

if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions.

I implicitly read on to the end of the paragraph. We would submit that to accept either of the limitations that now are being propounded by the plaintiff is inconsistent with what the Court said in that paragraph.

GAGELER J: Mr Solicitor, there is perhaps a strand of Mr Niall’s argument that is not squarely addressed in that paragraph. If the Minister has chosen to consider the exercise of the power does the Minister, having taken that first step identified back at paragraph 70 of this judgment, then have a duty to personally to make a decision whether or not to exercise the power?

MR GLEESON: We would submit no on the basis that the Minister is entitled to terminate the process.

GAGELER J: Is that question addressed squarely in M61 or any subsequent case?

MR GLEESON: Well, the key paragraphs, we would submit, are 77 and then 99 and 100. Perhaps 78 - I should have read on to 78. In 78:

The Minister having decided to consider the exercise of the power . . . the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of the exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers.

So there is certainly a recognition the process may stop.

HAYNE J: Yes, because you get to the wrong answer. This person is not entitled to protection obligations, you stop at that point. What more is it saying, Mr Solicitor?

MR GLEESON: We would not read this as confining the process, the 46A process, to whether you satisfy the claim to protection or you otherwise satisfy all the visa conditions under the Act. The other passages were 99 and 100. We would submit that the Court was not leaving open the possibility of mandamus in paragraphs 99 to 100. Paragraph 99 said:

Because ss 46A and 195A both state, in terms, that the Minister does not have a duty to consider whether to exercise the power given by the section, mandamus will not issue to compel the Minister to consider or reconsider exercising either power . . . if the process of inquiry miscarried, the Minister [cannot] be compelled again to consider exercising the power.

The question that was perhaps left open in 100 was a question about certiorari, not mandamus. In the present proceedings there is no claim by the plaintiff in the application for mandamus. I would submit that the plaintiff has not clearly identified in argument the terms upon which it seeks mandamus from the Court. The Court has not received detailed submissions, quite rightly, because no such claim is in the matter and we would invite your Honours not to consider a claim for mandamus.

HAYNE J: What are we to make of the paragraph in the stated case that says that the Department “would consider a declaration made by the Court”? It seems rather carefully drawn. I just need to know, Mr Solicitor, how carefully drawn. Is it saying, yes, we will consider it and ignore it? Surely not.

MR GLEESON: It is not saying that, your Honour.

HAYNE J: Thank you.

MR GLEESON: Your Honours, the final matter was the question of relief. We dealt with that in the written submissions at paragraphs 78 to 81. What was said in the last sentence of 79 was intended to make perfectly clear what I have just said in answer to your Honour’s question. Paragraph 80 raises the plaintiff’s claim that they can succeed, both on finding an error in the process and also obtain an order to habeas. That, we submit, would not follow if the plaintiff succeeded in some relief such as declaratory relief. The consequence would be that the process was required to continue in accordance with law and that would explain the character of the detention. I am not sure if your Honours had any other questions for me.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Niall.

MR NIALL: If the Court pleases, can I firstly just address two matters raised with me? Justice Gageler asked about the consequence of non-compliance with a condition. Can I just give your Honour a reference to section 235, which makes it an offence not to comply with the condition in relation to work? So there is one condition. The rest do not have that criminal element to it. The other matter was something that Justice Kiefel raised with me about the definition of offshore entry person and its continuation post-removal. The matter was considered by Justice McKerracher in Sadiqi v Commonwealth (2009) 181 FCR at paragraphs 184 to 186.

FRENCH CJ: Was that Justice McKerracher, was it?

MR NIALL: I beg your Honour’s pardon, it was. In terms of reply, our learned friend in answer to a question from your Honour Justice Hayne addressed the definition of security applied by ASIO and whether it was as broad as the ASIO Act or narrower. If I could take your Honours to court book 264, which is effectively extracted in other parts of the court book, but the Court will see it in a slightly fuller form, and your Honours will see in 1, paragraph a and b the recommendation which follows section 35 of the ASIO Act. Then footnote 1, which is at the end of paragraph (a), refers to security. In the footnote, it says:

Security for the purpose of the Migration Act and Regulations has the same meaning as security in section 4 of the . . . ASIO Act –

Now, security, of course, is not defined in the Migration Act, and has the expanded definition in section 4, and paragraph c and d at the bottom of that page, to which my learned friend the Solicitor referred, particularly in paragraph d, there is a reference to Australia’s security which picks up the statutory definition included in its extended form in section 4.

In support of the submission that Al-Kateb should not be reopened, can I hand to the Court an extract of the judgment of the Court in Babaniaris 163 CLR in particular at page 13 in the judgment of - where Justice Mason at page 13 deals with the considerations which might attend overturning authority in relation to statutory construction. I will not read it to the Court but, in our submission, it is applicable. Your Honours will see in the middle of page 13:

The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute.

In that regard and in this context we would direct attention to Justice Gummow’s reasons in M47 at paragraphs 118 to 120 where his Honour deals with the question of intention.

Finally, can I deal with the submissions advanced in relation to segregation as an available purpose and make this submission? Once entry, that is physical entry, has been effected into the country the purpose moves from detention for the purposes of removal. Segregation does not authorise detention on some assumption that it is for the purposes of placing the person in an identical position to the person who would have been denied entry. In other words, the fact of entry confers protections on the person which are not conferred on someone who is outside of the territory and physical presence is a significant factor which differentiates a person who has been denied entry as someone who is within the territory and the circumstances of the plaintiff gives a good context for that because it is not right to say that she has no level of integration in the community in circumstances where she is married and has children, one of which is a citizen, two of which are permanent residents.

So the fact of detention does not mean that there is segregation to the point of all exclusion and in our submission the only point justifying detention is the limited one of removal once the person has entered and to that effect, can we just finally direct the courts or remind the courts of the passage in Lim 176 CLR at 32 where in the joint judgment it is identified by reference to 51(xix) the:

authority to detain . . . for the purposes of expulsion or deportation . . . in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power . . . Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Chapter III’s exclusive vesting . . . to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers -

Now, in our submission, that stands as authority that once one is moved to the question of no longer considering permission as available option for the non-citizen, the question is and only is whether the detention is for the purposes of deportation. If it is outside of that, and the purpose of deportation necessarily limited by the capacity to achieve it, if it is outside of that it falls out of the limited extent of authority which their Honours identify. They are the only matters in reply, if the Court pleases.

FRENCH CJ: Thank you, Mr Niall. The Court will reserve its decision. The Court adjourns to 9.30 on Wednesday, 11 September in Perth.

AT 3.55 PM THE MATTER WAS ADJOURNED