NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (8 November 2023)

Last Updated: 8 November 2023

[2023] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S28 of 2023

B e t w e e n -

NZYQ

Plaintiff

and

MINISTER FOR IMMIGRATION CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 NOVEMBER 2023, AT 9.46 AM

(Continued from 7/11/23)

Copyright in the High Court of Australia

____________________

MS HIGGINS: Your Honours, yesterday afternoon I identified the legal test we propounded and addressed in part whether it differs from that articulated by the Chief Justice, that is, is removal likely in the reasonably foreseeable future. Each formulation differs from the principal way in which the plaintiff puts his case. Your Honours see that in the plaintiff’s written submissions at paragraph 2 and in the plaintiff’s outline at paragraph 2. In oral submissions, and so far as Ms Gordon adopted the language of Chief Justice Gleeson in Al‑Kateb at paragraph 1, the plaintiff more closely approximated the amici’s test.

We submit that the different formulations stated in our outline at paragraph 2 produced a different operation, which we identify in the outline at paragraph 6, and to which I will return shortly. That difference will not matter on the facts of this case, but it is likely to matter in the facts of other cases, and it will matter in articulating any legal principle. If, contrary to that, there is no practical distinction between the two, there is great infelicity in two formulations remaining within the jurisprudence.

EDELMAN J: Assuming there is a difference between the two, and likelihood means probability as you said yesterday, how would that work in practice with the Commonwealth bearing an onus? A writ of habeas corpus being sought, let us say, almost immediately after a person is detained, how would the Commonwealth ever be able to satisfy that onus in under six months, or the period of negotiation that it takes with a foreign country?

MS HIGGINS: Yes, your Honour. The effect of our submission is that, in a habeas application, the Commonwealth must prove on a civil standard that, based on the presently known facts, the person more likely than not will be removed from Australia in the circumstances likely to prevail in the reasonably foreseeable future. We submit that that onus can be discharged in a number of ways.

First, as I identified yesterday, by showing that people sharing the same essential characteristics as the detainee – for example, citizenship of another state, the absence of any criminal history, certain health matters – are usually removed within a given time frame. Secondly, it might be discharged by identifying ‑ ‑ ‑

EDELMAN J: Sorry, usually removed to which country?

MS HIGGINS: For example, your Honour, in the first category of a citizen of another state, i.e., not a stateless person typically removed to the country of citizenship, would be an example.

EDELMAN J: Does not it depend on the country?

MS HIGGINS: Yes, your Honour, of course, and it will be fact‑specific and will be context‑sensitive. We accept that. The second means by which that onus might be discharged is by identifying steps taken to effect removal to date with a sufficient basis being shown to conclude that that will likely result in removal within a foreseeable time.

A third way which that onus might be discharged is by – although, we say this is not necessary – identifying a number of available pathways to removal for a detainee, each of which, in isolation, might not be more likely than not to result in removal, but which, combined, allow to be said that removal is more likely than not.

GLEESON J: Do we know if steps are taken for removal in the ordinary course before someone actually arrives at immigration detention, for example?

MS HIGGINS: Your Honour, again, that may depend on the facts of each particular case. In the circumstances that Justice Edelman posited where an application is brought immediately, there may have been no steps taken at that point if it were brought, in fact, immediately. But in such a circumstance – and I will come to this shortly – the question asked in the present, can it be affected today, may be answered, no, because it just is not a basis upon which to reach that conclusion.

Projecting to the reasonably foreseeable future and having regard to the standard of reasonable practicability to which the Act directs attention – which accommodates the fact that this is a complex factual circumstance in which success might be contingent upon the co‑operation of third‑party States, for example – a reasonable time would be allowed for steps to be taken, in our submission.

GORDON J: Can I just ask one more question about that? In Sami, Justice Mortimer posed the question that might be asked as something along the lines, what is reasonable to infer from the evidence about the prospect of removal?

MS HIGGINS: Yes, your Honour.

GORDON J: In a sense, is that the question that is to be posed?

MS HIGGINS: Yes, your Honour, and I am indebted to the question. I will come to Sami in some detail later, and we agree that that is the question to be posed, and what can be found on the facts available are inferred on the facts available as to whether it is reasonably practicable in the reasonably foreseeable future.

GORDON J: Thank you.

MS HIGGINS: Your Honours, I propose first to identify the genesis in the authorities of the two formulations and then to explain why the amici’s formulation is to be preferred and how it is to be applied in practice, which picks up some of your Honour Justice Gordon’s observations. In turning to the authorities, we bear in mind the reasons are not to be read like a statute. The starting point, your Honours, is Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, which your Honours find in the authorities at volume 8, tab 46, commencing at page 2643.

GLEESON J: Where are we at in your oral outline?

MS HIGGINS: We are at paragraph 3, your Honour.

GLEESON J: Thank you.

MS HIGGINS: If your Honours turn through to paragraph 121, which is page 2674 of the bundle, page 85 of the report. At paragraph 121, the Court described the assumption underlying section 198 as being the “detention would, in fact, end rather than” being indefinite. And then at 122, the Court held that:

the expression “reasonably practicable” in s 198 does not imply immediacy –

But that:

Parliament was working on the assumption that ss 196 and 198 would together operate to bring detention to an end.

And would not operate:

even where there was no real prospect of removal and thus no real prospect of detention coming to an end within any reasonably foreseeable timeframe.

That is the genesis of the “no real prospect” language which your Honours see in the further amended special case at paragraph 45(b) and of a reasonably foreseeable timeframe. If your Honours then turn through to paragraph 155 at page 2681 of the authorities, 92 of the report, and if your Honours focus on the second sentence in that paragraph commencing “To read section 196”.

BEECH-JONES J: Ms Higgins, sorry, what paragraph number was that again?

MS HIGGINS: Sorry, your Honour, 155 on page 2681 of the bundle, 92 of the report, second sentence. Does your Honour have that?

BEECH-JONES J: Yes, thank you.

MS HIGGINS:

it would be necessary to read it as subject, at the very least, to an implied limitation that the period of mandatory detention does not extend to a time when there is no real likelihood or prospect in the reasonably foreseeable future of a detained person being removed and thus released from detention.

The Court’s conclusion there is formulated in terms of the plaintiff’s principal test and not the amici, however the words at the very least indicate, we submit, that the Court was not purporting to set down a definitive test.

GAGELER CJ: Are the words “likelihood” and “prospect” different ways of saying the same thing?

MS HIGGINS: They may be, your Honour, although they are disjunctive, and we read them as conceivably denoting different things: “likelihood” being a real chance, or more probable than not, and “prospect” being a non‑fanciful chance.

GLEESON J: Do both words conform with Article 9(1) of the ICCPR?

MS HIGGINS: They are not drawn directly from it, your Honour, no. They conform with it, but they are not drawn directly from it.

BEECH‑JONES J: Ms Higgins, I think you just used the phrase “real chance” and “more likely than not” as though they were the same, but they are quite different, are they not?

MS HIGGINS: No, quite. I was positing them as different, your Honour.

BEECH‑JONES J: Also, the phrase “likelihood” in some contexts does mean “more probable than not” but it other contexts it simply means – it does mean “real chance”, does it not?

MS HIGGINS: Yes, your Honour, and I will come to this shortly. There is probably a tripartite distinction between “more probable than not”, “probable”, and “real chance”, and that emerges in some of the authorities referred to by her Honour Justice Mortimer in Sami. But each of those standards, we submit, is a distinct legal standard.

GORDON J: Do you accept that the bottom of that trilogy is the highest standard for a plaintiff?

MS HIGGINS: The “bottom of the trilogy” being ‑ ‑ ‑

GORDON J: Being “real chance”.

MS HIGGINS: Yes. Can I turn, then, your Honours, to Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, which your Honours find in the joint bundle at volume 3, tab 14, commencing at page 406. The primary judge, Justice von Doussa, had been asked to make and had made a finding in the terms stated in Al Masri. That finding, as your Honours know, is recorded in the reasons of Justice Gummow at paragraph 105, which your Honours find in the Commonwealth Law Report at page 603, and in the joint bundle at 447.

It is found in the italicised passage within the extract. Mr Lenehan took your Honours to that yesterday. Now, while that case proceeded on the basis of the Al Masri test, the reasons of the justices in the minority expressed the legal test in terms closer to that which the amici propound. Can your Honours begin in the reasons of the Chief Justice at paragraph 1, to which Ms Gordon took the Court yesterday, and if your Honours turn to the report at page 572, the joint bundle at 416, the sentence commencing about halfway down the paragraph, “There are, however, exceptional cases”.

GAGELER CJ: What paragraph number, please?

MS HIGGINS: Paragraph 1, your Honour, on page 572. So, CLR 572, 416 of the bundle, the sentence commencing, “There are, however, exceptional cases”. The Chief Justice observes:

but removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future.

Here, his Honour is asking one statutory question at two points in time, first in the present, which can be answered in the language of “cannot”, and second, at a point in the reasonably foreseeable future, being the timeframe introduced by the temporal text “as soon as reasonably practicable”, about which his Honour asks, what will not be possible in the circumstances then likely to prevail? If your Honours then turn to paragraph 11, which is CLR 574, joint bundle 418, his Honour the Chief Justice observes:

But removal was not practicable, and was not likely to be practicable in the foreseeable future.

His Honour there asks a slightly different future‑regarding inquiry, being what is likely to be practicable in the circumstances likely to prevail in the reasonably foreseeable future. Can your Honours then turn to paragraph 122 in the reasons of his Honour Justice Gummow, which is CLR 608, joint bundle 452, paragraph 122. Your Honours see that his Honour there says:

If the stage has been reached that the appellant cannot be removed from Australia and as a matter of reasonable practicability is unlikely to be removed, there is a significant constraint –

et cetera. That is closer to the second of the Chief Justice’s formulations in paragraph 11. And, at paragraph 124, Justice Gummow on the same page at the end observes:

Nor, it may be, does the appellant escape further liability to renewed detention to facilitate that removal if the prospects of removal arrangements revive as a matter of real likelihood.

Finally, if your Honours turn through to paragraph 145, which is CLR 615, joint bundle 459, in the reasons of Justice Kirby, your Honours see that his Honour observes:

As a matter of reasonable practicality, therefore, it is proper to infer that he will be unlikely to be removed in the foreseeable future.

Each of the minority justices suggest that the ultimate question remains whether the Commonwealth can establish the truth of the assumption underlying sections 189, 196 and 198, namely, that the removal of the non‑citizen is reasonably practicable. Your Honours, the issue was further addressed in Plaintiff M47/2012 (2012) 251 CLR 1 and is found in the joint bundle at volume 5, tab 28, page 1432. We are now at point 4 on the outline.

In that case, as your Honours know, Justices Gummow and Bell would have overruled Al-Kateb, Justice Heydon would not have, and the other members of the Court did not reach that question. Justice Bell, at paragraph 524 – which is CLR 189, joint bundle 1620, if your Honours have that – said, in the final sentence:

The inference to be drawn from the facts of the special case is that removal of the plaintiff from Australia is not likely to be practicable in the foreseeable future.

Her Honour then adopted Chief Justice Gleeson’s reasoning in Al-Kateb at paragraphs 530 to 534. Your Honours, the difference between the two standards was discussed by Justice Mortimer, as her Honour then was, in Sami v Minister for Home Affairs [2022] FCA 1513, which your Honours will find in the joint bundle at volume 8, tab 48, page 2747. This picks up paragraph 5 of the outline. Your Honours, can I pause there to say this: including yesterday, in a few minutes time I will hit 20 minutes. Can I ask for five more minutes?

GAGELER CJ: Yes.

MS HIGGINS: Thank you, your Honour. So, if your Honours have Sami – if the Court turns through to paragraph 18, which is page 2754 of the bundle, her Honour was asked to make findings on both standards. Your Honours see that at paragraph 18. If the Court turns through to paragraph 44, the respondent’s position is set out. Your Honours see the bolded text:

there is no real prospect of his removal in the reasonably foreseeable future.

Content is then given to that:

a “real prospect” of removal is one that is not remote and which is not far-fetched or fanciful.

If your Honours then drop down to paragraph 48 on page 2763 of the bundle, the applicant’s position is set out – again, bolded:

whether, as a matter of reasonable practicability, he is unlikely to be removed –

and, if your Honours then turn over to paragraph 50 on page 2764, the content of “unlikely”, in that submission, is identified:

means “not probable”, rather than “not possible”, consistently with . . . Boughey v The Queen . . . and Tillman v Attorney-General –

As I alluded to earlier, the cases there cited do throw up a further issue, as to if one speaks of probability, is it a bare probability or is it more probable than not?

BEECH‑JONES J: So, do you accept that the references to “likelihood” or “likely in the foreseeable future” in those cases, do you say that they were referring to “more probable than not” or they were referring to a reasonable chance?

MS HIGGINS: We say at least a bare probability. We submit that the test should be “more probable than not”. But, to answer your Honour’s question directly, the reasons of Chief Justice Gibbs referred to there are framed in terms of “probable” and “not possible”.

BEECH‑JONES J: No, I mean, the authorities referred to in paragraph 48 which you took us through. They use the word “likelihood”.

MS HIGGINS: Yes, your Honour. Sorry, I was focusing on paragraph 50.

BEECH‑JONES J: But do you contend that that was a reference to “likelihood” being “more probable than not”, or that it was a likelihood in terms of a realistic chance or something?

MS HIGGINS: More probable than not, your Honour. But to be clear, we accept that the authorities at paragraph 50 swap the issue being “bare probability” and “more probable than not”.

GAGELER CJ: These different formulae could vary according to a conception of why the question is being asked. If you are asking, is the purpose of the detention a purpose that is capable of being performed, then one would tend towards the lower threshold identified by the respondent before Justice Mortimer, perhaps.

MS HIGGINS: Your Honour, as the Court appreciates, we say, for reasons I will extremely shortly come to, that probability and “more probable than not” is to be preferred in this context, having regard to the inquiry here being asked, for reasons to do with the fact that it concerns the liberty of the subject, the principle of legality, conformity with international law and also because that test is more workable for the Executive and for the courts.

So, we say that in the particular context of this inquiry, strong reasons militate in favour of the formulation we propound. But as to the premise of your Honour’s question, the answer is yes, it would depend upon the purpose of the inquiry. If your Honours then, within Sami, turn through to paragraph 144, at joint bundle 2784, her Honour found “no real prospect” of removal:

in the reasonably foreseeable future –

in the facts of that case, and at 154, on 2787, made:

the same findings –

on the legal test that we propound. At paragraphs 155 to 158, her Honour suggests that the difference between the two tests may not be one of substance and have a little effect on the results in that case. Paragraph 157 is an important paragraph, which we commend to your Honours. Her Honour refers to the Court making findings of fact on:

the ordinary civil standard of proof to propositions about what may occur in the future.

Can I then finally turn to the differences between the two tests and explain why the amici’s test is to be preferred, how it is to be applied, and why the distinction makes a difference. I am now picking up the outline at paragraphs 6 to 8.

STEWARD J: Can just ask you a question? Do you say that the difference between the two tests is dispositive in this case?

MS HIGGINS: No, your Honour, we say it would not matter on the evidence of this case.

STEWARD J: So, like paragraph 158 – the same.

MS HIGGINS: With respect, yes.

STEWARD J: Yes, I see.

MS HIGGINS: The amici’s test directly adopts the language of section 198(1) in speaking of reasonable practicability. In Al‑Kateb, at paragraph 121 – to which it is not necessary to return – Justice Gummow observed that:

“practicable” identifies that which is able to be put into practice and which can be effected or accomplished. The qualification “reasonably” introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.

Your Honour the Chief Justice asked me yesterday what these words add to a test otherwise framed as, is removal likely in the reasonably foreseeable future. One function they perform is to emphasise the complex practical context in which removal occurs, which, as I submitted earlier in response to a question from his Honour Justice Edelman, may involve dependence on third‑party states. As a matter of substance likely used and applied in a context‑sensitive way, it can perform that task, but it does it less explicitly than retaining the statutory language.

GLEESON J: In a sense, the language of practicability emphasises that in order to satisfy the test, the Commonwealth probably needs to identify a third‑party country in relation to which the test could be satisfied.

MS HIGGINS: With respect, yes, your Honour. It also ameliorates, perhaps, the concerns, underlying questions asked by his Honour, Justice Edelman, which is: how could the Commonwealth show this? And what was expected of the Commonwealth, including in circumstances where detention has just commenced? Which is that the context would expressly recognise that practicability has to be taken into account and there must be an opportunity to take efforts and seek to implement them and contact third‑party states, and the like.

Within the amici’s test, the temporal notion “as soon as” is picked up by the notion of the “foreseeable future”. We submit that the period of time involved in such an assessment cannot be defined in the abstract. Assessing what is likely a reasonably practicable in the foreseeable future will require a process of evaluation of all the facts in each case in the manner I addressed yesterday, which largely repeats what Justice Mortimer says in Sami.

The amici’s formulation speaks of that which is unlikely. That does not involve interposing texts into the statute but instead facilitates the future‑looking inquiry under conditions of uncertainty, and in utilising that notice, the test inquires after what is more probable, in the sense of more probable than not. Further, while the applicable legal test is conceptually distinct from the applicable standard of proof, the amici’s formulation aligns the two by directing attention on each occasion to that which is more probable than not.

Can I then briefly address the alternative formulation, which is, there is no real likelihood or prospect of the person being removed in the reasonably foreseeable future. That formulation replaces and seeks to give content to the statutory phrase “reasonably practicable” with the disjunctive notion of no real likelihood or prospect of removal. We submit that those two different terms are capable of having different denotations and your Honours saw that in the discussion in Sami, at paragraphs 145 to 146.

JAGOT J: Ms Higgins, could I just ask, the “as soon as reasonably practicable” in 198 is merely connected to the temporal. I am just not sure that it goes to the standard of proof. I am not suggesting I disagree about probable or more likely, I am just suggesting that I am not sure what “as soon as reasonably practicable” adds at all. It is only a temporal link.

MS HIGGINS: Your Honour, I wholly agree, and I apologise if my submission was not clear. The standard of proof and the legal test are conceptually distinct. We say they produce the same analysis which is a pleasant alignment. What we say reasonable practicability means is a temporal hook in the terms described by his Honour Justice Gummow in Al‑Kateb at 121, and does not concern the standard of proof.

JAGOT J: Sure. So, that means “as soon as reasonably practicable” adds nothing to the words “in the reasonably foreseeable future”. That is the embodiment of “as soon as”, is it not?

MS HIGGINS: Your Honour, consistent with my earlier submission, we say as a matter of substance, properly understood, likely not, but it does have the virtue of maintaining the express language of the statute which directs attention to the complex practical matrix within which removal must occur, because practicability is that which is able to be affected.

The practical difference between the two tests flows from the inclusion in the alternative test of the words “no real prospect”. That text could produce an outcome where detention would be authorised, even if it was unlikely on the balance of probabilities that removal would occur within the foreseeable future so long as there remained a non‑fanciful possibility of removal in that period, and that circumstance would produce unauthorised detention on the amici’s test.

Your Honours, I have addressed by reference the principles of legality and conformity with international law. Can I rely on our written submissions in respect of each those. We also make the submission in writing that the amici’s test is more workable. Again, can I rely on our written submissions in that respect, given the constraints of time.

Unless your Honours have any further questions, those are the amici’s submissions.

GAGELER CJ: Thank you, Ms Higgins. Yes, Mr Solicitor.

MR DONAGHUE: May it please the Court. Your Honours, this is a hard case. On the one hand, the plaintiff is young man, a stateless refugee who faces a potentially long period in immigration detention while attempts are made to secure a third country to which he can be removed. As Mr Herzfeld will develop in due course, there is evidence that the USA may be prepared to accept him but, at the moment, we accept that it is impossible to predict the outcome of those efforts with confidence.

If arrangements ultimately cannot be made with the USA then, in our submission, the Act operates validly to require him to be detained until another country that can be found that will accept him or until the Minister decides under various personal non‑compellable powers to grant a visa, and we accept that it is possible that that might take some time, potentially a long time.

On the other hand – and the reason we submit that this is a hard case – looking at the facts from a different perspective, the plaintiff after arriving in Australia without permission to do so was, in fact, granted a visa. That visa was cancelled and further applications were refused only because within a few months of his release into the Australian community he raped a 10‑year‑old boy. While, of course, the plaintiff has served his term of imprisonment for that crime and is not to be further punished for it, the fact of that offence is not constitutionally or statutorily irrelevant to whether or not he is to be permitted to enter the Australian community.

GAGELER CJ: How is it constitutionally relevant?

MR DONAGHUE: Because, your Honour, it is not punishment for the Executive Government to say, we are not prepared to admit someone who as no right to admission into the community because you have committed a very serious crime. It is not punitive to say that we regard that as a criterion for admission.

GAGELER CJ: For the grant of a visa.

MR DONAGHUE: For the grant of a visa.

GAGELER CJ: But we are concerned here with detention.

MR DONAGHUE: Ultimately, we are, your Honour, but, in my submission, if one could refuse at the border on the basis of that criminal record – one, the Constitution does not require a different answer because a person has got through the border.

EDELMAN J: Constitutional notions of punishment are not determined by statutory notions of criterion for a visa.

MR DONAGHUE: I accept that that is so, your Honour, and, of course, I am meeting both a constructional case and a constitutional case. Part of the case against me is that Parliament actually intended a scenario where someone in the fact pattern I have just identified is to be admitted to the community. In my opinion, that is an untenable construction of the Act, and then I would need to meet the constitutional objection.

In this case, the unchallenged factual premise is that the visa that the plaintiff sought after his original visa was cancelled, based on his arrest for the offence I have identified, was he was assessed to be a danger to the Australian community and refused a visa under 36(1C). There were challenges – merit review and judicial review challenges – to those findings. The judicial review failed, and it is not now before the Court. So, the factual premise is that the plaintiff was denied entry into the community based on an assessment of his danger to the community. Our submission is that it is not in any way difficult to understand why, faced with the criminal record identified and the assessed danger to the community, the Executive chose to deny the plaintiff permission to enter.

In our submission, the Constitution does not deny to the Executive Government the capacity to make that choice, for which it is democratically accountable. It does, of course – the Act requires the Executive, having made that decision, to remove the plaintiff as soon as is reasonably practicable, and there are enforceable hedging duties around that obligation. The fact that removal has proved difficult, in fact, to achieve does not change the character of the detention. Indeed, the difficulty – and your Honours will see this when I come to part of the reopening application – but in reality, the group of people, of whom the plaintiff comprises one, who throw up the Al‑Kateb question exclusively comprises people who are hard to remove but who have been refused entry on character grounds.

GLEESON J: How many of them are there?

MR DONAGHUE: Your Honours, I will come to the detail. At the moment there is about 90, 92, and I will show your Honours some information about that to the cause, given overnight. The reason there are people in detention, potentially for long periods, who are hard to be removed, the reason they have not been released into the community under the various different powers, is because of the character concerns. So, this case throws up attention between the capacity that the individual impact, on the one hand, and the capacity for Australia to keep people out of the Australian community for very understandable reasons.

The practical consequence of the argument your Honours are asked to accept is that the more undesirable a particular non‑citizen might be – because of things that they have done in their past, the security risk that they might pose, their bad character – the more undesirable they are, such that the more difficult it is to remove them to any other country in the world, the stronger their case for admission into the Australian community. That is the practical ramification of the argument.

GAGELER CJ: Another way of putting that – a less attractive way of putting it – is that they are being kept in detention because of their character.

MR DONAGHUE: No, your Honour. In our submission, they are being kept in detention because their character means that the Australian community is not prepared to accept them and their character also means that it is hard to remove them somewhere else, but that second difficulty is not a difficulty indicative of a punitive consequence. They will be removed as soon as removal is able to be effected. That duty is enforceable. But the consequence of the fact that the rest of the international community does not want to accept someone for good reasons is not that Australia has to accept them and neglect the same good reasons that are being relied upon by other members of the international community.

JAGOT J: It is not just that they are undesirable, it is that they have nowhere that you can legally make them go. The fact that they are stateless must be considered, otherwise you would be able to deport them, would you not, to a country of citizenship?

MR DONAGHUE: Well, your Honour, I am going to come to that, but in my submission the answer is not always. So, stateless people are one of the significant categories, but there are other significant categories. So, can I defer that, because that will be part of my submission.

JAGOT J: Yes. No, that is fine.

MR DONAGHUE: So, in our submission, I do not deny that the operation of the Act on people in the category I have identified may be a harsh one, and that the majority in Al-Kateb did not deny that either. Their Honours squarely confronted the potentially harsh operation of the Act that their construction recognised. But they also, in my submission, correctly held that the separation of powers does not require a different result, does not remove from the Executive the capacity to refuse admission to non‑citizens who would otherwise have no right to enter the Australian community simply because their removal is difficult.

Your Honours, I propose to develop our argument in the following way, if you have our oral outline. I propose to start ‑ ‑ ‑

GORDON J: Sorry, can you just put that again? You propose to do it in a different order, did you just say?

MR DONAGHUE: Not a different order, but a slightly different emphasis. So, if your Honour has the outline, I will stay and address in some detail the reopening application, which is paragraphs 2 through 6 of our outline. It is really, as our friends accepted, two reopening applications on the construction argument and the constitutional argument, but I will try to deal with them together insofar as I can.

In the event – and I appreciate it is not going to be decided on the run, but on the alternative hypothesis that leave to reopen is granted on the construction argument, I will address that. It is in the outline at paragraphs 7 to 11, but my focus will be on 7 and 8. I will pass over completely 9 and 10; we will rely on our written submissions. And 11, I will move to the end of my oral address, for reasons I will explain. Then I will deal with the constitutional argument, as noted in 12 to 14.

Then I will insert the paragraph 11 question, which is really the question of the test – if your Honours do reopen Al-Kateb and the issues your Honours have been debating with Dr Higgins, in particular – so I will address that then. And then Mr Herzfeld will address the answers to questions 3 and 4, and the factual issues applying what we submit the test would be in this hypothesis to the facts as they appear.

STEWARD J: And he will tell us what facts you want us to find?

MR DONAGHUE: He will, yes.

STEWARD J: Yes, thank you.

EDELMAN J: That is 15 to 18?

MR DONAGHUE: That is 15 to 18. So, that is where we are going, and I expect it might take us a while, your Honour, but I feel confident that we will finish well in advance of the end of the day. So, I hope ‑ ‑ ‑

GAGELER CJ: We will finish today.

MR DONAGHUE: That is my very strong ‑ ‑ ‑

GAGELER CJ: That was more of a statement than a question.

MR DONAGHUE: I understand that, your Honour, and we will intend to be efficient. Our friends and the interveners have taken more than five hours in presenting their case.

GAGELER CJ: Yes.

MR DONAGHUE: The plaintiff frankly and correctly sets that Al‑Kateb is not distinguishable, that they need leave to reopen and to persuade your Honours to overrule that decision. As to the appropriate approach in an application of that time – I know your Honours are all very familiar with this, but can I ask your Honours to go to one passage which, we submit with respect, helpfully captures the appropriate approach.

It is the judgment of your Honour Justice Jagot in the recent decision in Vanderstock, which your Honours have in volume 9, tab 49 of the materials. It is not yet reported, [2023] HCA 30. The particular passage that I am inviting your Honours to look at is paragraph 843 on page 340, where your Honour said:

Judicial decision‑making is bound to its one location along the temporal continuum. Once a precedent is established, it is binding. Once obiter dictum of high authority is articulated, it is to be applied. Judicial decision‑making must confront the law as it is, not as it was. This Court may overrule its previous decisions.

Citing John:

In doing so, however, it adheres to a principled decision‑making framework reflective of the law’s objectives of consistency, predictability, and fairness. While it has been said that “the doctrine of stare decisis should not be so rigidly applied to the constitutional as to other laws”, it remains fundamental –

even in a constitutional context:

to judicial reasoning that no judge is entitled to give effect to their own opinions “as though the pages of the law reports were blank –

and then in paragraph 844, your Honour sets out the familiar four John’s factors. That observation, we submit, is particularly apt here because the pages of the law reports are far from blank. Twenty years ago, this Court heard argument that is indistinguishable from the arguments your Honours have heard. Basically, the arguments are the same. That debate was examined and resolved, and has provided an authoritative framework upon which the Executive Government has been not just permitted but required to administer the Migration Act since then.

In our submission, that context means that the strongly conservative cautionary principle, which our friends accept is to be applied on a reopening application, is very strongly engaged by the application that is being made. Now, while our friends accept that there is such a strongly conservative cautionary principle, in our submission, they honour it in its existence but not in its substance, because, really, the only argument your Honours have heard on the reopening application is the argument that the decision is wrong.

GORDON J: Is that quite right? I thought that there were other bases, especially in the constitutional context.

MR DONAGHUE: In my submission, your Honour, it was still that it was wrong. What was put, in my submission, rather boldly, was the notion that the majority in Al‑Kateb misunderstood Lim. It was said that there was an inconsistency between Lim and Al‑Kateb. It was said, I think, that Lim has developed in a way that is inconsistent with what was said about it in Al‑Kateb – and for reasons I will come to when I get to that part of our case, we submit that is totally wrong. Indeed, the passages that were criticised have been endorsed – including as recently by the majority in AJL20 18 months ago. So, there has not been some change of course in the Lim jurisprudence from which Al‑Kateb departed.

Your Honours have heard that there have been numerous previous attempts to overrule Al‑Kateb – and that is, obviously, true. The argument has been had in this Court in similar terms to the argument that is being had now at least three times, but the Court has not needed to resolve it in the previous cases. But in one of those cases, in M76 [2013] HCA 53; (2013) 251 CLR 322, which I would ask your Honours to go back to – it is volume 6, tab 32. The point was reached by three members of the Court. I would like to take your Honours to what was said about it there, starting with the joint judgment of Justices Kiefel and Keane, at paragraph 192. So, if your Honours go back to the previous page, 381, above 191, you can see the heading:

Should Al‑Kateb be re‑opened?

At 191, there is a quotation from John. At 192, a reference to Wurridjal:

“informed by the strongly conservative cautionary principle –

At 193 – this might save me needing to come back there – you will see that their Honours say, in terms of the second John’s factor:

there was no serious divergence between the reasoning –

So, your Honours heard an argument yesterday from our friends that there was such a divergence. I will deal with the substance of that but, obviously, having heard the same argument, Justices Keane and Kiefel did not think so. But I will need to come back to this case but, just jumping to the conclusion, if your Honours go to 198:

Regularity and consistency are important attributes of the rule of law.

That is a quotation from Justice Kirby in K‑Generation. About five lines down:

While it is true that the obligation of this Court is to construe legislation faithfully rather than to perpetuate an erroneous interpretation, there comes a point when a view of statutory construction which may reasonably have been contestable on the first occasion on which it was agitated must be acknowledged to have been settled.

Whatever the original balance of strengths and weaknesses in the majority and minority views in Al‑Kateb might have been, the decision should now be regarded as having decisively quelled the controversy as to the interpretation of the Act which arose in that case and this. It should not be re‑opened.

So, their Honours say, whatever the balance, no reopening. Justice Hayne was to the same effect. If your Honours go to paragraph 125, on the bottom of page 365, in his previous paragraph his Honour notes the division in the Court, and then in Plaintiff M47, and then says, at 125:

Fundamental principle requires –

and note the footnote to Queensland v The Commonwealth, which I am going to return to in a minute:

that this Court not now depart from the construction of the relevant provisions which was adopted by the majority in Al‑Kateb. All that has changed . . . is the composition of the Bench. That is not reason enough to revisit the decision. And when the Parliament has had repeated opportunities to amend the effect of the decision in that case, but has not do so, this Court should not depart from what was then held to be the proper construction of the relevant provisions.

Which his Honour then summarises in 126 and 127.

EDELMAN J: All of these cautionary, strongly precautionary principles, they are all second‑order considerations ultimately, are they not? The primary question is, is the decision wrong? The force by which that primary question is answered may be affected by the second‑order considerations.

MR DONAGHUE: Your Honour, in my submission, and the Second Territory Senators Case that I am about to come to is an example of it. That case was decided by a five/two split. Two of the five, so critical to the majority in the case, said they thought the earlier decision was wrong. They would have adhered to their earlier ‑ ‑ ‑

EDELMAN J: But not with such a force of conviction that the cautionary principles could not operate upon that conclusion. The force of the conviction by which the error is thought to be held must be more important than the factors of consistency and predictability.

MR DONAGHUE: Well, your Honour, I accept that the John factors require, as the Court has said, an evaluative conclusion informed by the strongly cautionary principle. I accept that what your Honour puts to me is one of those factors, but where I may depart from what your Honour is putting to me is that the fact that a member of the Court thinks that a decision is wrong – in my submission, strongly thinks that it is wrong – does not trump all of the other considerations. It might remain the case that the interests to which Justice Jagot referred, the law’s objectives of consistency, predictability and fairness ‑ ‑ ‑

EDELMAN J: That was said in the context of overruling a decision that had stood for 50 years. It was said in the context of saying, the force by which the conviction is held that Dickenson’s Arcade is wrong is not trumped by these factors of consistency and predictability. That is why the majority held in your favour in Vanderstock.

MR DONAGHUE: But, your Honour, equally here, yes, there was a strong division of opinion in the Court in Al‑Kateb, but the division of opinion was resolved in a particular way and the Executive has administered the Act for 20 years since then on that basis. One of the John factors are, well, what are the ramifications now, with effectively retrospective effect, saying what we told you to do for 20 years to do was wrong? Here, that would be unlawful behaviour over a long period by the Commonwealth Executive. In my opinion, your Honours should not do that, even if you think that the original – if you would have decided Al‑Kateb differently, if your Honours had a blank slate, you should not now retrospectively reopen 20 years of mandated Executive behaviour.

GORDON J: But if you accept the cautionary principle and you accept what you just put to us, then your answer is, I suspect, having read your submissions, that one has 20 years, one has legislative changes built upon it, et cetera, are they not the better answers to having this debate?

MR DONAGHUE: Well, they are part of my answer. So, I have given your Honour an answer in an immediate question, but those – sorry if I have misunderstood your Honour.

GORDON J: No, I mean, we all know these principles, the question is, how do they play out? And I think what Justice Edelman is putting to you, and I think you accept, is it is an evaluative process, what are the things that go into the evaluation of whether or not it should be reopened either on the construction and/or the constitutional question?

MR DONAGHUE: And I am proposing, as your Honours can see from my outline, to step through that evaluation and to make submissions about the components, but I am starting here to say: Al‑Kateb was 20 years ago, M76 was about 10 years ago, 10 years ago three members of the Court already thought that whatever the original balance of the arguments might be, it was too late now to reopen, they should be left closed.

EDELMAN J: The construction.

MR DONAGHUE: For construction. For constitutional, the same three judges decided that Al‑Kateb was right on the constitutional point. So, they did not phrase it in terms of reopening, but they phrased it in terms of an emphatic affirmation of the judgment. If it was true 10 years ago, or to the extent that three members of the Court thought it was true 10 years ago, it can only be much more true now ‑ ‑ ‑

GAGELER CJ: Well, three other members of the Court took a different view in the same case.

MR DONAGHUE: Or did not reach it, your Honour, because of the conclusion that the detention for an unrelated error meant that the process of admission into the community had not been complete. Perhaps, in light of that observation from your Honour, I should perhaps note at paragraph 147 in the joint reasons – and I am cutting slightly into Mr Herzfeld’s territory here, but the Commonwealth had conceded in that case that it would be open – at 147 you can see, to infer:

that there is currently no realistic prospect that the plaintiff will be able to be removed from Australia in the reasonably foreseeable future.

But had not agreed that it actually was impossible. So, that the inference had been agreed to be open and the three members of the joint judgment, Justices Crennan, Bell, and your Honour the Chief Justice, would not have drawn that inference, for the reasons that are explained in 147, which pertain to some avenues of enquiry that had not been run down, in effect. That was part of the reason that your Honours did not reach the question.

So, you had three judges either not reopening or emphatically reaffirming Al‑Kateb and three judges saying it was not reached, but on a factual threshold, nothing like the factual threshold for probability that is being put to you by other side of the record in this case, and Mr Herzfeld will develop that. Perhaps I might need to just slightly correct one answer I gave. Justices Keane and Kiefel did reaffirm the correctness of Al‑Kateb and did not express it in terms of reopening. What Justice Hayne said at 128 was:

The Court decided, in Al‑Kateb, that ss 189, 196, and 198 of the Act, construed in the manner that has been described, are valid. Again, this conclusion should not now be revisited.

That actually suggests, I think, that his Honour was refusing reopening on the constitutional point, but – as his reasons make clear, at least in part because he thought it was clearly correct. I have mentioned the Territory Senators scenario, and I do not want to detain your Honours on this at any great length, but I do want to just take your Honours briefly to two passages in that case. It is Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585, volume 6, tab 35.

As I said in answer to a question from Justice Edelman, this was a case where it was critical to the result that two of the members of the Court who had decided the First Territory Senators Case thought, having been in the minority in that case, that they should follow the majority decision notwithstanding their express statements that they continued to believe that that prior precedent was wrong. The two Justices in question were Justice Gibbs and Justice Stephen. Justice Gibbs at 598 asked himself, at the bottom of the page:

It then becomes necessary for me to decide whether I ought to follow the decision of the majority in Western Australia v The Commonwealth, notwithstanding that I believe it to be wrong.

His Honour recounts that, of course, the Court is not bound by its own decisions. The passage is about stare decisis in constitutional law, and Justice Isaacs’ famous passage about “sworn loyalty” to “the law itself”, but then having quoted that passage, his Honour says:

But like most generalizations, this statement can be misleading. No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive –

Then his Honour goes on – and I will not take your Honours right through the factors, but his Honours discusses the reasons which are, I think, the origin of John factors, in fact, on page 600. At the top of page 600, his Honour asked:

But when it is asked what has occurred to justify the reconsideration . . . the only possible answer is that one member of the Court has retired . . . It cannot be suggested that the majority in Western Australia v. The Commonwealth failed to advert to any relevant consideration, or overlooked any apposite decision or principle. The arguments presented in the present case were in their essence the same as those presented in the earlier case.

Which, we submit, is completely true here.

GLEESON J: If you look at the last sentence of that paragraph where he explains the practical consequences and the expectations of the people of the Territories, you can see that we are dealing with a very different situation here.

MR DONAGHUE: Well, we are dealing, in my submission, your Honour, with a situation of the kind that led me to respond to Justice Edelman as I did, because his Honour did not say the first two factors are decisive and the third and fourth factors are subsidiary; it was the third and fourth factors, in my submission, that, certainly, the ramifications of denying people of the Territories representation that the first case had given them. So, the reliance – the practical effect of the decision weighed very significantly on his Honour in deciding that, even though he still thought the case was wrong, he should not disturb it.

Justice Stephen’s analysis was much the same – in particular, 603 and 604. I will not go ask your Honours to go through them. But my submission is that – and, again, picking up Justice Jagot’s language from Vanderstock – what your Honours are confronted with in this case, we respectfully submit, requires your Honours to engage with the law as it is now, not as it was; not before Al-Kateb was decided.

EDELMAN J: Nobody is suggesting that, though. It is the passage from Justice Stephen, at page 603, that is important: that the difference between the Territory Senators Case on the plaintiff’s and the interveners’ argument before us today in this case is that the Territory Senators Case is one where, as Justice Stephen said, it was very much one upon which different minds might reach different conclusions. This case, what is being put to us, is that it is one where, properly informed, the force of conviction that the decision in Al-Kateb is wrong is one on which different minds should not reach different conclusions. It is not, at least on the constitutional argument they have put before us, it is not something that ought to be reasonably open.

MR DONAGHUE: Your Honour, in 20 years, the constitutional argument has been accepted by two judges, Justices Gummow and Justice Bell. In Al‑Kateb it was not a four/three split on the constitutional issue because two members of the minority did not even get there. The holding, in my submission, including in important respects that I will come to in Al‑Kateb, including on the constitutional point, has been referred to with approval by this Court as recently as in AJL20. So, in my submission, at least as strongly as in the First Territory Senators Case, this is a matter upon which minds can differ, as the split in Al‑Kateb shows, but perhaps this is a case where, really, the division in Al‑Kateb was, in our submission, the other way.

The majority said we understand why you would like to reach the conclusion the minority reached, but it is just not possible to reach that conclusion on either the constructional or the constitutional point. So, their Honours thought the opposing view was not open, not that the opposing view was so strong that their own view was not open.

Your Honours, can I come then to the four John’s factors and I will deal with them – obviously, this is familiar territory. As to the question, was the principle in Al‑Kateb carefully formulated in a significant succession of cases, it is true that the particular issue – I will go back a step. Lim had upheld the validity of provisions in materially the same terms as 189, 196 and 198. But in doing so it had not involved a fact pattern of non‑citizens who cannot be removed. So, the court in Lim had not needed to confront the particular issue that confronted the court in Al‑Kateb.

It is true that this Court had not confronted that issue before Al‑Kateb, but the Federal Court had confronted the issue in a long line of cases. There were about 11 or 12 of them, which are cited by the Full Federal Court in Al Masri at paragraphs 167 to 170. I will not take your Honours to them, but you can see the references there. That line of authority in the Federal Court was a highly fractured one. There was Justice Merkel’s decision in the original Al Masri Case, upheld ultimately by the Full Federal Court, but there were judges in the line of authority who doubted Justice Merkel’s judgment and there were single judges who refused to follow it on the basis that they thought that it was plainly wrong.

There were a range of different opinions being agitated in the Federal Court which were resolved for the purposes of that court by the Full Court’s judgment in Al Masri. But by that time, the competing arguments on both sides of the equation had already been, as resolved in Al Masri, very fully exposed and Mr Al Masri, as your Honours probably know, was removed from the country not long after Justice Merkel made the factual finding that his removal was not practicable in the reasonably foreseeable future. So, his case never came to this Court, but it is an illustration amongst many; Mr Sami’s is another.

Mr Sami was removed two or three months after Justice Mortimer made the findings that your Honours have seen, which just shows the problem with these kinds of findings. But, because Al Masri could not come here, Al‑Kateb became the vehicle for which this Court resolved the controversy that had been playing out over a period of, I think, a couple of years in the Federal Court.

In our submission, the first John’s factor is not satisfied in this case, in the sense that the issues had been very fully articulated, but I accept that while the principle in John is not framed in terms of decisions in this Court and in principle, for the reasons I have just articulated should not need to be so confined, even if your Honours thought that it did – that one did need to focus on a line of authority in this Court – as we have put in writing and as our friends have, with respect, not really fully grappled with, the construction argument as opposed to the constitutional argument that is put against us is directly inconsistent with AJL20. And AJL20 is, in our submission, plainly the result of a succession of cases construing 189, 196, and 198, starting with Lim and Al‑Kateb, extending through M96A in particular, to AJL20.

To try to make that good, can I ask your Honours to turn to AJL20 273 CLR 43, which is volume 3, tab 17. I am going to come back to this case a few times but, perhaps by way introductory observation, may I make this submission. Like Al‑Kateb, AJL20 was a case where the plaintiff wanted to say two things. One, sections 189 and 196 do not mean what they say, such that there is a category of person who can be released before one of the events in 196 actually happens as a matter of statutory construction. That was the first thing they wanted to say. The second thing they said was that if that construction is unavailable, the provisions are invalid to that extent because they are punitive.

Now, the reason those two issues were said to arise was different between AJL20 and Al‑Kateb in that in the AJL20 Case, as your Honours will recall, it was a person who it was reasonably practical to remove and who had not been removed. So, it was described by some of your Honours as a case of “will not” rather than “cannot”. Whereas, in Al-Kateb, the facts said to give rise to the construction on the constitutional issue was “cannot be removed”. But in both cases, the proposition was an unlawful non‑citizen must be released on habeas into the Australian community because the sections do not authorise detention as a matter of construction, or, if they do, they are invalid.

The Court, of course, in AJL20 rejected both of those arguments and it, in our submission, it is very important to have due regard to why; to the reasoning process that led to the Court rejecting both of those arguments, because that reasoning process is – particularly on the constructional point but also on the constitutional point – informative, given that the Court is construing the same provisions against the same constitutional limit, albeit raised by a different factual scenario.

The reason that the plaintiff in AJL20 did not or could not have challenged Al‑Kateb is because his removal was practicable. That was the whole point. That was the point of his argument. So, he did not have a factual foundation that would have squarely raised the particular question raised by Al‑Kateb, but that did not mean that the constructional and the constitutional arguments were not fully argued. On the other hand, as you can see from the report note – I will not take through the CLRs, but the CLR report of the argument between Mr Gleeson and myself spans 10 pages of the report, and it deals in detail with the constructional issues and the constitutional issues.

So, in no sense is it right to say that the resolution of AJL20 was based on assumptions about the correctness of Al‑Kateb. It was based on a fully‑argued constructional and constitutional point. When the Court reserves in 26 – and my friends really asked your Honours to read to 26 of AJL20 and then largely to ignore the case thereafter – it said:

The correctness of the –

and I emphasise the words “constitutional holding”. It does not say, the correctness of Al‑Kateb generally. There is obviously a difference – a famous difference – between the constructional holding and the constitutional holding. In AJL20, the Court says:

The correctness of the constitutional holding –

does not arise, which is plainly true, because, as I have said, AJL20 was removable. So, we do not take any issue with that, but that does not mean that your Honours will not find useful guidance and indeed authority that can only be departed from if it is overruled as to the resolution of the questions.

In relation to the statutory construction point, can I ask your Honours to go to paragraph 33, under the heading “The application of the Act”. You see a quotation from the leading judgment in Al‑Kateb about 189:

mandatory . . . requires that persons . . . be detained and kept in detention. No discretion must, or even can, be exercised.

Then in paragraph 34:

The duration of the detention required and authorised by s 196(1), as Hayne J said in Al‑Kateb –

quoting footnote [226]:

“fixed by reference to the occurrence of any of [the four] specified events. Detention must continue ‘until’ one of those events occurs.”

Then in paragraph 35:

The combined effect of ss 189(1) and 196(1) is that a non‑citizen can be lawfully within the Australian community only if he or she has been granted a visa. Otherwise, an unlawful non‑citizen –

with an exception made for Love in footnote (70):

Otherwise, an unlawful non‑citizen must be detained until such time as he or she departs Australia by one of the means referred to . . . relevantly in this case removal under s 198.

Skipping a sentence:

This view of the relationship between s 196 and s 198 has consistently been accepted and applied in the Federal Court.

Then your Honours see a long footnote. Then can I pass over some of the reasoning which is – I will come back to on the constitutional issue and ask your Honours to go forward to paragraph 49, “Detention until removal” is the heading:

As has been seen, it is well‑settled that the detention authorised by s 189(1) must continue until the first occurrence of a terminating event . . . in s 196(1). The text . . . is clear: a person detained under s 189 “must be kept in immigration detention until”, relevantly, “he or she is removed . . . The word “until”, used in its ordinary sense . . . and in conjunction with the word “kept”, refers to an ongoing or continuous state of affairs that is to be maintained up to the time that the event (relevantly, the grant of a visa or removal) –

Their Honours’ emphasis:

actually occurs. As much is confirmed by s 196(3) –

which says that:

an unlawful non‑citizen may be “release[d]” . . . only in the ways set out in s 196(1). In so providing, s 196 gives effect to the binary division drawn by the Act between lawful non‑citizens, who may be at liberty in the community, and unlawful non‑citizens, who must not be.

Then there is a quotation with approval from Justice Hayne in M76, and a quotation with approval in paragraph 50 from one of the influential judgments in that line of competing Federal Court authorities that I was talking about earlier, which was Justice French, as his Honour then was, in WAIS:

“The language of s 196 . . . seems to me to be intractable. The detention there prescribed is ended only by one of the terminating events.

So, your Honours are being asked in this case to find, as a matter of construction, that despite what is said there, in terms materially indistinguishable from what Justice Hayne said in Al‑Kateb, that an unlawful non‑citizen who does not have a visa can be released into the Australian community. Despite the clear text, the meaning of “until”, until the event “actually occurs”, the binary division, your Honours, in my submission, cannot accept that submission without overruling this case.

We put that submission in writing. In reply, our friends did not seek leave to overrule this case. They said they did not need to. In our submission, that is just not an available approach. On the point of construction, there is a unity from Al‑Kateb through to AJL20, undisturbed and, in its most recent manifestation, unchallenged. So, in our submission, the first John’s factor points, on the constructional issue, very strongly against reopening. Now, your Honour Justice Edelman said, maybe the constitutional point is different. I accept the argument there is a bit different, and I said I was going to try to deal with John together, but on the constitutional point can I wait so I do not blur everything together – but there are important statements here on the constitutional point as well.

So that is point number one in John. Point number two in John is whether there was division of reasoning in the majority judgments. Obviously, there is no division in reasoning in AJL20, a joint judgment of four members of the Court. So, if I am right in what I just said, then plainly that factor is not satisfied. Also, in Al‑Kateb itself, there was likewise no division. I have already mentioned to your Honours Justice Kiefel and Justice Keane saying exactly that, in the context of John’s factor two in M76, in the paragraph I mentioned at 193.

In Al‑Kateb – and here, your Honours, I appreciate we are in very familiar territory, so I am not going to take your Honours to every part of Justice Hayne’s judgment on the constructional points. We respectfully submit that his Honour’s judgment is correct and should be followed. But just to highlight the key features – and on this aspect of the judgment, Justice McHugh and Justice Heydon expressly agreed with his Honour – his Honour’s reasoning on construction, particularly at 226, which is, I think, one of the passages that was referred to with approval in AJL20, is in much the same terms as the passage I just read to your Honours from AJL20:

The period of detention is fixed by reference to the occurrence of any of three specified events. Detention must continue “until” one of those events occurs.

It is the occurrence that marks the end point of detention. And his Honour says in the last line of that paragraph:

And so long as the time for performance of that duty has not expired –

So, until you can actually remove:

s 196 in terms provides that the non‑citizen must be detained.

Paragraph 227 is potentially important in the particular scenario we now confront because his Honour goes through in some detail about the case of the difficult to remove person, and says that – well, your Honours can see the first sentence. There is an assumption about “when” rather than “whether”, and then his Honour deals with the stateless person, where the person – as in Al‑Kateb – as a stateless person:

there is no state to which Australia can look as the first and most likely receiving country. But whether the non‑citizen is stateless or has a nationality, Robtelmes v Brenan reveals that the removal provisions of the Act are concerned with what was there identified as the corollary to, or complement of, the power of exclusion.

And I emphasise this sentence:

Removal is the purpose of the provisions, not repatriation or removal to a place. It follows, therefore, that stateless or not, absent some other restriction –

And that, perhaps, foreshadows a provision like 197C, to which I will come:

on the power to remove, a non‑citizen may be removed to any place willing to receive that person . . . the duty imposed by s 198 requires an officer to seek to remove the non‑citizen to any place that will receive the non‑citizen.

Paragraph 228 recognises that with a stateless person that might require approaches to many different countries and that whether those countries will accept the person depends on “matters beyond the power of Australia”, but at 229 that leads his Honour to the conclusion that “the most that could ever be said” is that it is not now practicable to remove. It is not to say that their removal purpose, in some fashion, evaporates.

GORDON J: Do you accept that that is subject to or to be read with 231?

MR DONAGHUE: I was about to come to 231, your Honour. But in my submission, in 231 – and I hope I capture what your Honour Justice Gordon is putting to me. Please let me know if I do not. But four lines down, his Honour says in the second sentence:

unless it has been practicable to remove the non‑citizen it cannot be said that the time for performance of the duty imposed by s 198 has arrived.

Therefore, it cannot be said that the purpose of the detention is spent. Then, at the end of that passage – and here we join issue with something our friends said about Koon Wing Lau – his Honour says that, unlike that situation, the Koon Wing Lau construction of purpose of a temporary detention power was not available because:

The time for removal is fixed by this legislation by reference to reasonable practicability.

So, his Honour says – I skipped over the critical words, but four lines up from the bottom after the comma:

it is not possible to construe the words used as being subject to some narrower limitation such, for example, as what Dixon J referred to in Koon Wing Lau –

GORDON J: But the point is that the limitation there identified is:

authorised detention until the first point at which removal is reasonably practicable –

as is picked up at 251.

MR DONAGHUE: But, your Honour, that is, in my submission, a statement about the way that the Act works, because what the Act says – and this is something I was intending to bring up later, but perhaps is ‑ ‑ ‑

GORDON J: Well, then deal with it later.

MR DONAGHUE: No, I will deal with it at least briefly now. If one looks at 196(1) of the Migration Act, the detention for the purposes of removal – it does not actually say “for the purposes”. It says:

until:

(a) he or she is removed . . . under section 198 –

and 198 then imposes the duty to bring about removal “as soon as reasonably practicable”. So, the hypothesis for the detention is that removal is not reasonably practicable because, if removal was reasonably practicable, it should occur and the person would not be in Australia anymore.

What the Act is dealing with when it is dealing with detention and removal is detention in an interim period of unspecified length between when the person is taken into detention under 189 and when they are actually removed. That removal must occur as soon as it can, but it is not the case that the detention ceases to be authorised if removal is not practicable. To the contrary, detention is only authorised when removal is not practicable because, subject to the debate I had before your Honours in AJL20, that once it becomes practicable, what is the remedy, and the answer given in AJL20 is mandamus, to enforce the duty to remove, not habeas, to release.

STEWARD J: Mr Solicitor, can I ask you a slightly more extreme question in the context of this part of the reasoning in Al‑Kateb. What if the evidence before the Court in relation to a stateless person was that Australia had approached every single country in the world and the emphatic answer was, we will never receive the person?

MR DONAGHUE: From every single country in the world?

STEWARD J: Yes. I know it is an extreme scenario.

MR DONAGHUE: It is an extreme scenario, your Honour. Part of the point made by Justice Hayne and Justice Callinan in Al‑Kateb was that one of the difficulties with the kind of test that the minority posed was that it assumes a static state of affairs and a world that does not change, and those assumptions are obviously not true.

STEWARD J: I understand that, but what is pregnant about the reasoning in this part of Al-Kateb and what, in your submissions, is the presence of possibilities, and so long as we have the possibilities, the detention is saved from being punitive.

MR DONAGHUE: Your Honour, in fact I think I have to embrace a submission that is perhaps even harder lined than that. It is not that there have to be possibilities. It is that the Executive has to remove as soon as it can remove, and it needs to keep trying to bring about that removal.

STEWARD J: Well, it must follow from that that your case is that the detention in the meantime is authorised based upon the principle of segregation.

MR DONAGHUE: Pending removal.

STEWARD J: Pending removal.

MR DONAGHUE: Segregation until such time as removal becomes possible – until it occurs, yes.

STEWARD J: But you accept that the Department, in the meantime, is under a manifest duty to investigate.

MR DONAGHUE: I do. An enforceable duty to give effect to the duty that is imposed. But in Al-Kateb, the situation that was confronted was one where the Department could not point to anywhere that they could take Mr Al-Kateb, a stateless man, and the difference between the majority and the minority is the no-prospect-type case. In my submission, when I get there, I will submit that, if your Honours are against me in what we are saying, that Al-Kateb is, as the Chief Justice put it, for exceptional cases, it is not for the difficult case.

BEECH-JONES J: Mr Solicitor, do not the answers you have given just indicate that the constitutional component of this case has really got nothing to do with the plaintiff’s sexual assault conviction? Because the answers you gave are not really about anything to do with that.

MR DONAGHUE: No. Your Honour, the constitutional part of the case does not turn on characteristics. Indeed, in fact, neither of them, the construction or the constitutional do not turn on characteristics particular to the plaintiff. In both cases, the point that I am seeking to raise – particularly in the context of the reopening application, for reasons I will develop, probably shortly after the break – is that the way that the Act has been administered means that there is a category of person thought able to be lawfully detained, largely comprising people of serious character concern who are presently in immigration detention who will, it seems to us, need to be released immediately into the community if Al‑Kateb is overturned.

EDELMAN J: Ultimately, that is just a jury point, though, is it not?

MR DONAGHUE: It is ‑ ‑ ‑

EDELMAN J: There may also be a category of people who are just completely stateless.

MR DONAGHUE: Your Honour, in my submission, it is not a jury point because it is a point about reliance on what was thought to be a settled state of the law and the Act has been amended to bring about that situation and has been administered to bring about that situation. So, in the end, it may be that your Honours will say, as part of the evaluative judgment on reopening, that factor is not one that you are attracted to giving weight to but, in my submission, does properly enter into that evaluative exercise. So, at 232, just to complete Justice Hayne in Al‑Kateb, his Honour says:

Unaffected by consideration of Ch III, the words of the relevant provisions will not yield, by a process of construction, the meaning asserted –

and in 241, his Honour adopts the word “intractable” at the end, reading the sections together, the:

detention is mandatory and must continue –

in the middle of ‑ ‑ ‑

GORDON J: Sorry, what paragraph is that?

MR DONAGHUE: Sorry, 241, your Honour, about five lines downs, reading the three sections together:

what is clear is that the detention is mandatory and must continue until removal, or deportation, or the grant of a visa . . . No other, more stringent, time limit can be implied . . . The words are . . . intractable.

So, that is his Honour’s reasons. Justice Callinan, in my submission, notwithstanding some references to subjective purpose that I will deal with, but they were not, in my submission, important to his Honour’s central reasoning. That reasoning appears particularly from 292 through to 299. At 292, his Honour says:

On their proper construction the sections under consideration do not give rise to a kind of implied temporal limitation or qualification, or provide a licence to rewrite the statutory language.

A few lines down, on the next page:

The fact that the time cannot be stated in days or months does not mean that the word “until” in s 196(1) should be read as extending, for example, to “until removal or the expiry of 12 months, whichever first occurs” –

At 295, four lines up from the bottom of the page:

I would not import in ss 189 and 198 –

I think, with respect to his Honour, that may be intended to be a reference to 196, rather than 198:

an implication that the obligation of an officer to detain an illegal entrant ceases, or may cease, and is not to be enforced simply because it is proving, and may well prove, for some indefinite time, to be difficult to find a country that will receive –

I will rely on, without reading, the rest of the paragraph. At 298:

The statutory language is clear and unambiguous.

At 299, skipping the reference to subjective purpose, which I will come back to, his Honour says, the fact that:

a very great deal of time can elapse before, not only stateless persons, but also others . . . does not mean that a court is entitled to hold that a person who has no right to enter and reside in the community must be released into it.

In my submission, in its essential respects – and perhaps I should also note that in the next paragraph, his Honour rejects Justice Merkel’s reasoning in Al Masri, which is replete with principle of legality‑type reasoning and the kind of analysis that was adopted, as you have seen, by the minority. So, in all of those respects, there is not a whisker of difference between the majority and Al-Kateb. They say the words are so clear, that they mean what they say, and there is no room to give them any different meaning by reference to the principle of legality, international law, or any other principle. So, the second John’s factor for that reason, in our submission, is likewise not satisfied by the plaintiff.

Dealing very briefly, if I may, in the two minutes before your Honours break, with the third factor, this is: has the decision has caused unacceptable difficulties or uncertainties? In our submission, this factor is not about the way that a statute applies to a particular individual in particular factual circumstances; it is a systemic inquiry as part of the court’s evaluation of the competing factors and it turns upon whether or not a judgment has created unacceptable or unexpected difficulties or uncertainties in its implementation.

So, it is about whether or not the law took a turn that the Court did not foresee when it gave a particular decision, or whether a statement of principle has proved to be impossible for trial courts to administer, or matters of that kind. Here, the potential harsh operation of the Migration Act was front of mind in Al-Kateb, it was the very thing the case was about. The implementation of the Act that has resulted from the decision made by the majority in that case was exactly what they expected to happen.

Far from it creating unexpected or unforeseen difficulties in administering the Act, in our submission, for reasons that I will come to when I come to the test, the contrary view would make the Act very hard to administer, because we are not here talking about a test that will be applied only in the rarefied confines of a courtroom, where a judge has the assistance of submissions from counsel. These are provisions that impose mandatory duties on officers of the Commonwealth Executive. They have to detain or they have to release, and they have to know which of those two things they have to do.

The answer to that question at the moment, is reasonably easy: if they suspect that a person is a non-citizen who does not hold a visa, then the Act requires their detention until they actually leave the country. Once one glosses that language, or partially disapplies it by reference to a different test, then the practical process of administering the immigration provisions that we are now concerned with, to be done in the first instance by officers, would become, in our submission, extremely difficult. And so, the third factor likewise points strongly against reopening.

GLEESON J: When you say extremely difficult, mandatory detention is not common across the world, is it?

MR DONAGHUE: No, your Honour, no.

GLEESON J: So, how do other people manage?

MR DONAGHUE: Well, the difficulty that I am pointing to, your Honour, is that if an immigration officer confronts a person or is responsible for a person in detention who needs to be removed to a country where Australia occasionally removes people but does not remove them all that often, the Act seems to say to that officer, I have to keep you in detention until you are actually removed. But on the various different formulations the plaintiff has thrown up, there will be a point where it is not sufficiently likely – unless, indeed, the Commonwealth on the main argument against us can prove on the balance of probabilities that those efforts are going to succeed – then the person would be released, despite the statutory command.

But then, perhaps the email comes back that suggests, we are going well, we are looking well, so maybe it then becomes – the person comes back into detention, then things slow down at some point, and it is not clear that it is going to be resolved in the reasonable foreseeable future, so the person gets released again, that is the kind of problem.

EDELMAN J: Well, there is a very easy way for the Commonwealth to deal with all of that. And that is section 195A, and they have complete control over the individual.

MR DONAGHUE: Does your Honour mean 195A or 197AB?

EDELMAN J: Section 195A – a temporary visa.

MR DONAGHUE: They only have complete control in the sense that the person has been released into the community.

GAGELER CJ: I think you are coming to these provisions.

MR DONAGHUE: I am coming to these provisions.

GAGELER CJ: Under the fourth factor. And in those circumstances, we will take the 15-minute adjournment.

MR DONAGHUE: If the Court pleases.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.35 AM:

MR DONAGHUE: Your Honours, I have arrived at point 6 on our oral outline, which is the fourth John’s factor: whether Al‑Kateb has been consistently acted upon ‑ ‑ ‑

GORDON J: Can I just ask one question about inconvenience, which is the third factor. Is it right that the same considerations that would go to whether there is a real prospect of someone being removed are the same ones that are already engaged – I think, by the Executive – for determining whether it is reasonably practicable for a person to be removed?

MR DONAGHUE: Your Honour, in deciding whether it is reasonably practicable that a person be removed, the Executive is looking at whether it has achieved the components required, in practicable terms, to allow the removal to come about. So, have we identified the person? Have we identified the country? Do we have a travel document to take them to that country? So, have we ticked those different boxes such that their removal can then be brought about once all the boxes are ticked and the removal can be given effect?

The question of whether it is possible at any different time does not depend upon whether you have actually achieved each of those steps I just sketched out. It depends on an assessment about how likely you are to achieve them, and perhaps about when the timeframe within which you are likely to achieve them – which are not questions that are presently relevant. So, my answer is that they are different.

As to the fourth factor, we rely upon both reliance by the Executive and reliance by the Parliament. I have said part of what I want to say about reliance by the Executive, but can I complete my submissions about that by making this point. Since Al‑Kateb, and indeed, really, since Lim, the Act has required officers of the Department – I withdraw my addition to Lim, because in Lim it was not a universal regime. But since the Migration Reform Act commenced in 1994, the position has been that officers have been required to detain people who they reasonably suspect of being unlawful non‑citizens.

The Court has held that it is necessary for officers to maintain such a suspicion throughout the period of detention. A practical consequence of that is that departmental records have been developed in such a way that it is possible for the Department to point, when someone challenges the legality of past detention, to records that identify who was maintaining the relevant reasonable suspicion at the relevant time. That is how the Department meets false imprisonment claims, going back in time.

What has not been necessary is for the Department to maintain records that situated each moment in time how probable it is that removal will be able to be brought about, so that if the lawfulness of detention were now to be held to depend upon an assessment of that kind, what would be, in practice, required to meet the inevitable damages claims that will come would be a retrospective exercise to try to map throughout the periods of detention of people who have been held a factual assessment based upon something that just was not thought to be relevant and to which systems have not been developed.

Now, how bad that is in practice, how onerous that is in practice, will depend very much on the content of the test. We are in heated agreement with Dr Higgins when she says these tests capture different classes of people; that the more onerous the test – Commonwealth proving on the balance of probabilities that removal is going to happen – the bigger the group of people who would fall within that difficult class. And I will say more about that later – the lower the test, as I think your Honour Chief Justice Gageler put to Dr Higgins, the less people who would be captured.

Either way, whatever the test is, there will come to be an inquiry relevant to proving the lawfulness of intention that did not exist before, and which the Executive quite reasonably did not think it would need to meet in order to discharge the burden that will fall upon it in a case of that kind.

GAGELER CJ: Mr Solicitor, I am not quite sure, is your concern with ongoing records or is your concern with the ‑ ‑ ‑

MR DONAGHUE: Retrospective record.

GAGELER CJ: ‑ ‑ ‑ retrospective record, which would be, what, relevant to a claim for damages for false imprisonment, where you would have a discovery exercise and potentially some evidence and would be concerned with limitation periods?

MR DONAGHUE: All of that, your Honour, but we would be looking back, one would expect, at least six years across the detention cohort, and saying, you, the Commonwealth, need to be able to justify at each point in time what – you need to prove that it was probable that removal would be given effect within the foreseeable future. That is not something that we needed to turn our minds to on the authority of Al‑Kateb. So, we will need to somehow work out – and we will not have been creating records directed to this question – how to discharge that burden.

EDELMAN J: Is that right? The Commonwealth would have to prove that for the purpose of a false imprisonment claim?

MR DONAGHUE: Well, in a forensic sense, I think it is, your Honour. It would certainly – obviously, we do need to prove it in a habeas case. I am stretching my memory now, but I think that there are cases that suggest that evidential burden has been disclosed in practical terms because the Commonwealth has the records – it said that we need to establish that.

Indeed, I think what is being put – it might be complicated, your Honour, because if what is being put is a constitutional disapplication where the relevant limit is a limit phrased in terms of a burden upon the Commonwealth, it is not hard to see how a party might say, well, you cannot rely upon 189 and 196 to justify the detention unless you can prove that they validly apply. So, there might be some difficulties to be worked out. But, really, what I am putting to your Honours is that, in our submission ‑ ‑ ‑

BEECH‑JONES J: Mr Solicitor, would you not just put it on the file like you did in this case?

MR DONAGHUE: Well, that might not do the job, your Honour, because – we could put it on the file. So, the file will show what we were doing and when we were doing it. It will not necessarily include any assessment by anyone as to how likely any of those steps were to work.

BEECH‑JONES J: But what would that matter, because it is an objective test? It would not matter what their subjective assessment of the prospects – it would be barely relevant, would it?

MR DONAGHUE: No, that is true, your Honour, but it also might not prove that the prospects are probable. The documents that are there might not get us up to proof.

BEECH‑JONES J: Well, that may be a question about the standard, rather than the difficulty of means of proof.

MR DONAGHUE: Well, what I am endeavouring to suggest – and it is just one of the many discretionary factors in the mix – but I am endeavouring to suggest that where we know we have this obligation in relation to reasonable suspicion, we keep documents so that when someone says we do not we can tender them. We have not been doing that now, so there may not be documents that will be directed to that topic.

BEECH‑JONES J: All right.

GAGELER CJ: I think we understand that point.

MR DONAGHUE: Yes, I do not seek to take it any – yes. My friend reminds me that the other – to mention of this, of course, is that – perhaps, more significant to mention of it is that had we known what the test is, if your Honours do reopen an overall Al‑Kateb, we would have released people in the past consistently with the understanding of the Migration Act. So, there might be categories of people who it actually was not – who we would accept it was not possible, we could not ever have proved it was probable that we would remove them in the foreseeable future.

EDELMAN J: Perhaps not the strongest factor, that we should not release people if we were required to release them because otherwise it would be inconsistent with our previous practices.

MR DONAGHUE: No, no, your Honour, my submission is we should not release them because the High Court told us not to release them. The High Court told us that the parliamentary provision that required them to be detained was valid and, therefore, we could not release them. It would have been unlawful for us to release them. And then Al‑Kateb is overruled and the consequence is damages for any person who is in the category who we would have released had Al‑Kateb been decided differently.

EDELMAN J: Well, that may raise a Kable (No 2) question as well, for purposes of a false imprisonment claim.

MR DONAGHUE: Kable (No 2) depended on a court order, your Honour. The detention does not. The detention of the individual will just depend on the Act operating, so the consequence will be undefendable damages claims. How many, it remains to be seen. So, that is one consequence of reliance.

Can I come then to the parliamentary reliance and note that our friends for the Human Rights Law Centre, in a submission adopted by the plaintiff in oral submissions, said that, basically, the problem caused by Al‑Kateb is a problem that was too difficult or sensitive for Parliament to tackle. The legislative record does not show that at all. Can I ask your Honours to go to the Migration Amendment (Detention Arrangements) Act 2005, which is in volume 2, tab 8. Your Honours will know these provisions, but it is helpful to see that they were grouped together. They were all enacted at the same time in an Act passed quite shortly after Al‑Kateb was decided.

When your Honours have that Act, could you go to item 10, which inserts section 195A, which is the first of four measures introduced by this – it is actually the second of four measures, but the first relevant one introduced. Can I ask your Honours to note, first, subsection (1):

This section applies to a person who is in detention under section 189.

If your Honours overrule Al‑Kateb, then – depending again on the test that you apply, but for the moment assuming the Commonwealth must prove on the balance of probabilities that removal is likely – from the moment that the test is satisfied, a person would not be in detention under 189 of the Act. That would, indeed, be the whole point. That would be why habeas would issue to allow them to be released. So, the premise upon which this section is enacted, which is that it is a power to give people who are detained, would be disproved and it would not be possible to grant a visa under 195A to a person who meets the new test, whatever it is.

That same point applies equally to the residence determination power. The consequence will be that there will be a line to be drawn between people who can benefit from these powers and people who fall within the new test, whatever it might be. The Act, in our submission – I cannot say it will completely miss its target because it is not only aimed at Al‑Kateb affected people, but it will miss a significant class to whom it was expressly directed.

You see that it was directed to that class recognised in the intrinsic material which Justices Kiefel and Keane referred to in M76. Rather than take you separately to the explanatory memorandum and then to the judgment, could you just go back to M76, which is volume 6, tab 32, and go to paragraph 196. You see there their Honours quoting the explanatory memorandum connected with the insertion of item 10, 195A. And if your Honours go to the last few lines of that, the first few lines just summarise the provision. It says:

The Minister will have the flexibility to grant any visa that is appropriate to that individual’s circumstances, including a Removal Pending Bridging Visa where the detainee has no right to remain in Australia but removal is not practicable in the foreseeable future.”

Parliament was quite obviously responding to the decision in Al‑Kateb, and it will have missed its target if Al‑Kateb is overruled because the section just will not apply at all to people in that category. In paragraph 197, Justices Kiefel and Keane said:

The introduction of this section may readily be understood as an attempt by the Parliament to ameliorate individual hardship that might follow from the decision in Al‑Kateb. The assumption on which it proceeds is that the decision in Al‑Kateb stands as an accurate interpretation of the legislative will.

We respectfully submit that that is completely correct. Your Honours, I will not go back to it, but there was some discussion yesterday about Chief Justice Gleeson in Al‑Kateb at paragraph 22, where his Honour said it would have been:

easier to discern a legislative intention to confer a power of indefinite administrative detention if the power were coupled with a discretion enabling –

individual circumstances to be considered. We respectfully submit that this is such a power. As the explanatory memorandum recognises, the Minister has the flexibility to grant a visa inappropriate to individual circumstances. So, it is an ameliorating provision directed, as 197 recognises, to responding to the possible individual hardship. So, not only does 195A show Parliament relying on Al‑Kateb, but it also by introducing that ameliorating possibility into the scheme, decreases the attraction of the construction that Chief Justice Gleeson adopted in Al‑Kateb.

As I say, I could make the same points about residence determinations – particularly 197AA is equivalent to 195(1) in that it applies only to people detained under 189 – but I will not detain your Honours on that, given time constraints. The last part of the – if your Honours still have the 2005 Act, which was volume 2, tab 8, if your Honours go to item 19 – so I took your Honours to item 10. Item 11 is the residence determination provisions.

GORDON J: Can I just ask one question about 197AB. In 197AA, it says:

This Subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section.

What is the last bit directed to, if you are not required or permitted by section 189 to be detained?

MR DONAGHUE: I do not know, your Honour.

GORDON J: I had wondered whether that extended to somebody like the person here in this plaintiff’s cases. In other words, if they were granted habeas they were, in effect, in detention under that section at that time and, therefore, would allow a possibility of a residence determination.

STEWARD J: I thought it was a reference to someone who was not yet in detention but who would become someone identified as eligible.

MR DONAGHUE: Yes, I think that I might be hearing from your Honour Justice Steward and from Mr Herzfeld the same thing, which is that the first words contemplate that you, rather than – and bearing in mind these provisions are particularly directed at families and children – you can grant the residence determination before you take the person into detention under 189. So, they are someone who the Act requires you to detain, but rather than grab them, the Minister can make the residence determination and so they never intersect directly with the main immigration system, whereas the last words deal with the person who has already been detained. I think that is what your Honour put to me.

So, you see the residence determination scheme, and then at item 19 on page 11 of the print – the heading appears at the bottom of page 11 and then the Part that it has inserted follows. There was a whole Part inserted into the Migration Act that makes reasonably detailed provision for the ombudsman to make inquiries into the case of long‑term detainees and to make recommendations to the Minister which get tabled in Parliament about how their cases shall be managed.

You can see in the new 486O that that power extended to the ombudsman making recommendations, including recommendations about continued detention, for another form of detention including residence determinations, recommendations about release on a visa, et cetera. So, in addition to conferring these powers, there was a scheme both for the ombudsman to bring these matters to the attention of the Minister and to the Parliament more generally about what was happening in the administration of the long‑term immigration detention cohort, again a scheme that reflects and assumes the correctness of Al‑Kateb and is Parliament responding by putting in measures to impose appropriate limits.

So, those are all provisions that, quite quickly after Al‑Kateb, Parliament enacted, and that in some cases – at least for the reasons I have described – would have their foundation removed, were the decision to be overruled, which we deploy as part of John’s factor four as a reason to show that the Act has been amended and developed in ways that assume the correctness of that case.

Can I take your Honours to a more recent provision, which is section 197C. I am going to this for two reasons: one, to answer a rather weakly‑put argument that it provides some relevant difference in the legislative scheme from Al-Kateb, but two, to make an affirmative point, in my favour of the same kind that I just made, to the effect that it shows Parliament relying on the correctness of Al‑Kateb.

As to the distinction point – and if your Honours have the Act, in section 197C, you will see, and you may recall, the first two subsections were enacted first in around 2014 making, in short compass, non‑refoulement obligations irrelevant to removal questions. Then, subsection (3) was added in 2021, which winds back or displaces the operation of subsections (1) and (2) in particular circumstances, with respect to particular countries; not generally, but with respect to particular countries.

As to the question of whether this provides a basis to distinguish Al‑Kateb, we submit that the only possible operation of subsection (3), which is the provision relied upon, is to remove a particular country from the list of possible places to which a non‑citizen might be removed, bearing in mind that as Justice Hayne explained in Al‑Kateb, the obligation is to remove to any place in the world where the person might be accepted.

So, it takes one away, and it does that only if the non-citizen wishes that to occur, which you can see from section 197C(3)(c)(iii). So, the scheme is, in effect, to say that where a person has made a protection claim that has been accepted, the person will not be returned to the country to which that protection claim relates, unless they ask to be.

STEWARD J: Mr Solicitor, this (3) renders into law what was the previous departmental practice, which was that effect.

MR DONAGHUE: It does.

STEWARD J: Do we know whether the Court knew about that practice when Al‑Kateb was heard?

MR DONAGHUE: Well, your Honour, I do not know whether the Court knew about that practice, but that practice at the time that Al‑Kateb was heard was the law. It was not just a departmental practice, it was a legal limit, which is the point I am about to develop. It was the law at the time that Al-Kateb – in the sense that the provisions in the form they then took, had been interpreted as having implied the equivalent limit. The problem that arose was that the policy, to which your Honour refers, continued after the enactment of subsections (1) and (2), and that was what gave rise to the AJL20 situation.

But the point I am now seeking to make in resisting any attempt to distinguish Al‑Kateb on this basis is that we say that a provision that at most can take away one country and that can do so only if the person affected wants that country taken away, cannot produce a situation is worse than Al‑Kateb because the premise for Al‑Kateb was that there was nowhere. Mr Al‑Kateb was stateless and there was no possible removal destination. You cannot reduce below zero, so the only possible effect of 197C is to put someone who could have been removed to one place but who would be persecuted in that place in the same position as a stateless person – in the sense that you have to look for third countries who are willing to accept the person. But it does not provide a more extreme situation than Al‑Kateb or a basis to distinguish it.

I will not go back to it, but your Honours were taken yesterday by one of my learned friends to paragraph 217 of Al‑Kateb where Justice Hayne makes that point. He says that the critical issue in this case is how the Act works when there is nowhere – no destination that has been identified – that is 217 of the judgment. So, at most, 197C produces that situation. As your Honours will see in just a moment, in practice what it means is that the enactment of subsection (3) has increased the size of the people who are detained for lengthy periods while third countries are looked for, but it has increased the size of that class because Parliament was making a choice, it thought, between removing people to face persecution – which is what subsections (1) and (2) seem to require – and not removing them to face persecution but detaining them, as Al‑Kateb upheld, until a third country can be found.

That was the choice Parliament thought it was making. So, the overturning of Al‑Kateb changes that choice because it becomes a choice between removing to face persecution or releasing into the Australian community. So, it is another example of Parliament acting in reliance upon – this time in 2021 – a longstanding decision of the Court.

I have been going through to try to make good the proposition – though I am not sure it is a controversial one – that I put to your Honour Justice Steward, that the Act actually – that what subsection (3) is doing in restoring a limit on removal to a country where a person will be persecuted is just putting back into the Act a limit that was already there. That limit comes from the Malaysia Declaration Case in M70 and from a decision of the Full Federal Court – which might take some of your Honours back – Minister for Immigration v SZQRB, in which both your Honour Justice Gordon and your Honour Justice Jagot sat as members of the Federal Court. That case, analysing M70, recognised that there was an implied limit on 198 so that you could not remove inconsistently with Australia’s removal obligations.

Section 197C(1) and (2) overrode expressly that limit – and the explanatory materials refer to those two cases as cases that were being reversed, and this Court recorded that in its judgment in AJL20, at 19 – again, citing those cases. So, I am skipping through this, but the limit was there, and it was trumped by Parliament.

Your Honours can see a convenient description of the limit both in SZQRB at some pinpoint references, that I think we have given your Honours, in paragraph 6 of the outline, and also in Justice Gummow’s judgment in M47 at paragraph 99. So, the other reason that 197C does not allow a distinction to be drawn between Al-Kateb is that it is just putting it back, putting the legal effect of the Act back to largely as it was before.

As to the reliance point that I have just sketched for your Honours, can I ask you to go to the explanatory memorandum to the 2021 amendment, which you will see in volume 11, tab 61. It is perhaps not relevant, but perhaps of interest to your Honours to note paragraphs 19 and 20 on page 7 of the explanatory memorandum, which explains that what Parliament thought it was doing, mistakenly thought it was doing by 197C was not actually, as the terms of the section, suggest to remove people in breach of Australia’s non-refoulement obligations.

It thought that the people who had valid non-refoulement obligations would be dealt with by the ministerial intervention powers. The target, as paragraph 19 recalls, was people who had been found not to have non‑refoulement obligations and the practical way the problem emerged was that people made protection claims that were refused and then, immediately before removal was due to occur, made new protection claims that had not yet been assessed and then sought and obtained injunctive relief on the basis that the Act did not authorise removal in breach of the protection obligations.

So, you had to assess the new claims before removal could occur. So, removal was able in that way to be stopped. And what Parliament said in 19 and 20 was, well, we will just exclude removal obligations as relevant, which will then prevent the injunctions. The problem was that it went much too far and required people to be removed even when they had valid obligations, if they had not been given visas. And that then, is the pathway that led to subsection (3). But it led to subsection (3), and your Honours see this particularly in the statement on compatibility on pages 13 and 14, it said about halfway down page 13 under the quote from the ICCPR:

The amendments in the Bill are primarily aimed at protecting from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a visa are not subject to removal. This means that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.

And then, skipping a paragraph:

Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person.

Then, you see a reference in the next paragraph to:

The Government’s preference is to manage non‑citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order –

and then about point 3 of the way down, referring to the personal powers of the Minister:

The Minister’s powers to consider whether to grant a visa to permit an unlawful non‑citizen’s release from immigration detention, or to permit a community placement under a residence determination, until they are able to be removed from Australia consistently with non‑refoulement obligations, means that the person’s individual circumstances, and the risk they may pose to the Australian community can be taken into account.

So, the idea was – what you can see Parliament thought that it was doing was amending the removal obligation so that it was not necessary to take people to a country where they would be persecuted on the basis that, because of Al‑Kateb, they could be detained until their removal became reasonably practical, the preference being not to detain people in that situation but, subject to character and security concerns, and an individualised assessment, the Minister would release people unless they had that issue. That is what has happened.

Your Honour Justice Gleeson asked for some information about this yesterday and there were two documents provided to the Court over the night, one of which has charts on it – I hope your Honours have seen or can be shown those two documents.

GAGELER CJ: We seem to have a lot of pieces of paper.

MR DONAGHUE: Yes, you have a lot, I hope – I was hoping you would have three. There is one with a series of charts and one headed in large letters, “NZYQ Caseload snapshot”. If you could turn to the charts first.

GAGELER CJ: Is this called “NZYQ Dashboard”?

MR DONAGHUE: It is. It is – I am instructed – called that because this was work done by the Department in an effort to work out what the ramifications of a decision in this Court overturning Al‑Kateb might be. So, it is not about NZYQ, but it is in recognition of – it is trying to think about who might be directly affected by these things. So, I cannot drill down into the underlying data, it is a document we were asked to produce, I think, on Friday last week, and we gave it to the plaintiff yesterday.

What it shows – and it gives, I hope, some information along the line your Honour Justice Gleeson was hopping for – if your Honours look at the pie chart – is a group of 92 people who are broken into three categories: “197C affected” – so they are people who have a citizenship but they cannot be taken to that country because they face persecution there, they are accepted as having a well‑founded fear of persecution there. That is the overwhelming bulk of the group – 78 of the 92. Then there is a confirmed “Stateless” group – five people, and an “Intractable” group of nine.

STEWARD J: What does “intractable” mean?

MR DONAGHUE: There is a key, which does not give one a huge amount of information:

but cannot be removed due to factors beyond the detainee’s and the Commonwealth’s control.

One clear category there potentially being – well, it can be due to a range of things, identity problems or ‑ ‑ ‑

STEWARD J: I see.

GAGELER CJ: Does this include the plaintiff in the present case ‑ ‑ ‑

MR DONAGHUE: Yes, it does. It does.

GAGELER CJ: ‑ ‑ ‑ who is in that intractable category?

MR DONAGHUE: I think he is in the stateless category, your Honour.

GAGELER CJ: Stateless, I see.

MR DONAGHUE: What you can see if you go to the box to the right is “Detainees by Character Prioritisation Category” and you see the bar chart with five columns in it and numbers across the top. If you add those numbers up, you get 92, so the whole cohort are people who are somewhere in that box. At one end, at the right end in the “General Cancellation” powers, there are nine who had visas cancelled under powers that are not character‑based. But all of the rest of the people in this cohort are character issues, and if your Honours look at the key “CAT 1” and “CAT 2” underneath, CAT 1 are ministerial decisions made by the Home Affairs and Cyber Minister where the cancellation was related to:

(national security, cybercrime, serious and high profile organised/gang related, high ranking OMCG members).

And CAT 2 are cases referred to the Minister for Immigration:

(very serious violent offences, very serious crimes against children, very serious family/domestic violence or violent, sexual or exploitative offences against women).

So, those two categories, between them are about half, slightly more than half of the cohort who are currently in this category of person who are hard to remove.

GAGELER CJ: These are 501 cancellation cases, are they?

MR DONAGHUE: Yes. Yes, and they are 501 cancellation cases mainly who engage the 197C provision, who are people who cannot be removed not because they are stateless or otherwise intractable, but because their available destination country is a country where they have well‑founded fear of persecution, but where a visa has nevertheless been refused, because, obviously, as your Honours well know, the protection visa category and the related visas are visas that are available to persons in that class but may be withheld even if protection claims are made good if there is other criteria, including character criteria, that are not met.

So, there is a group of people comprised exclusively of people who have concerns of that kind who are the category of people most directly affected, and the plaintiff is one of them, obviously, with a serious sexual offence against a child, most directly affected by the arguments that are being put to your Honour, and what your Honours are being asked to do is to really, quite radically disturb the basis in the law upon which Parliament enacted when it enacted all of these provisions; the 197C provisions, the character provisions, all of that.

Our basic submission, in summary on everything I have been saying so far, is that your Honours just should not do it. The law has been settled for long enough, the controversies have been resolved for long enough and been relied upon by the Executive and the Parliament for long enough so that you should not grant leave to reopen Al‑Kateb on either the constitutional or the construction issues. The last thing I need to say about the about – sorry, I have skipped one point.

The other document your Honours have, I do not need to detain you with for too long, it gives a non‑comprehensive – and I have no idea what criteria was used, to give you some more information about some details about the kinds of offences that underlie those character issues, and you see there is a number of murder convictions, serious sex offences against both adults and children, drug offences, people‑smuggling offences.

EDELMAN J: Do we just take these documents as evidence that is tendered by consent?

MR DONAGHUE: Yes, your Honour, I believe – yes. The reason I ‑ ‑ ‑

GAGELER CJ: Just so I understand it, the 501 cancellation cases are people who have convicted of crimes, who have served their sentence and then their visa is cancelled, that is the typical pattern, is it not?

MR DONAGHUE: Yes, that is right.

GAGELER CJ: These 45 or 50 people who are 501 visa cancellation cases fall within that broad category?

MR DONAGHUE: Well, I think, your Honour, it is actually almost all of them ‑ ‑ ‑

GAGELER CJ: Almost all.

MR DONAGHUE: ‑ ‑ ‑ because categories 3 and 4 are also 501 cases, they are just not personal decisions by the Minister.

GAGELER CJ: I see. Yes.

MR DONAGHUE: I should perhaps note, particularly in light of that question, your Honour, and the question your Honour asked me earlier, that about whether this is punitive in some way, that that was the argument put to the Court in Falzon and rejected.

GAGELER CJ: Yes, of course.

GORDON J: Can I ask one question about these facts just so I am reading them right. Is it the position, then, that of the 92, 20 are in the community on residence determinations? Is that how I am to read the bottom box – “RD”?

MR DONAGHUE: The bottom box.

STEWARD J: Middle bottom box.

GORDON J: “Detainees by Current Location”.

MR DONAGHUE: I think, your Honour, that that is correct, certainly some of them are on residence determinations.

GORDON J: So, are we to read RD as residence determination?

MR DONAGHUE: Can I confirm that? I think so.

GLEESON J: Could I just check a fact? I thought this plaintiff had his visa application refused.

MR DONAGHUE: This visa – sorry. Well, he had a visa cancelled, the original visa cancelled, and then he had a later visa application refused.

GLEESON J: I see. So, he is counted within the section 501 cases?

MR DONAGHUE: Well, section 501 can be both a refusal and a cancellation, the power extends to both. Sorry, if I said cancellation earlier, I apologise, it can extend to both, and sequentially, I do not know, I cannot say to your Honours I understand the facts that underpin all of these numbers. As to your Honour Justice Gordon’s question, if you look at the bottom right box, there is a – the last column suggests 16 197AB interventions, which is the residence determination intervention.

GORDON J: So, where do I find those in – I have not added up the numbers. Where do I find those by current location in that middle box? Are they counted in that middle box?

MR DONAGHUE: I believe that they are, your Honour. I think these are all different breakings down of the same cohort group, as I understand it.

GORDON J: Because if “RD” stands for “residential determination”, I have 20 in that middle box.

MR DONAGHUE: Yes, what I am being told is we do not know why the numbers do not precisely align, your Honour. I do not know exactly where they are and I am not – I do not want to over‑estimate what your Honours should get from this.

GORDON J: Well, for my part at least, this is actually very important. We are asked to take this as evidence, and I just want to make sure that I understand what “RD” means. Does “RD” mean “residential determination”?

MR DONAGHUE: Yes, your Honour. But I cannot tell you why the numbers of – why you get 20 when you add up the RDs and you get 16 when you look at the 197AB. I cannot account for that discrepancy.

JAGOT J: You actually get 21.

GLEESON J: Because South Australia is an RD.

GORDON J: Thank you.

MR DONAGHUE: I am afraid I cannot take that further. The next document, I hope, does not ‑ ‑ ‑

GORDON J: Do you think that could be clarified?

MR DONAGHUE: I will do my best, your Honour. I will seek instructions on that. In the other document, if your Honours go to the bottom of page 2 – and this, I hasten to add, so that I do not create confusion of the same kind that I have just been addressing – is not concerned just with the 92 people, but your Honours can see that the author of this document has summarise the approach that has been taken in relation to:

these cases and others in the detention population (including others who may sit outside this cohort but are long term detained)

So, this is dealing with a bigger group. And:

consideration for ministerial intervention . . . The Minister has agreed for the Department to refer the following cohorts –

and there is a list of bullet points that I will not go through, but it includes people where it is:

not currently reasonably practicable to effect involuntary removal or identify third removal country –

or “stateless” people, or people held for five years or more, and you see there are some stats given about the pipeline. So, really, I do not try to get anymore out of that than to say the Act is being administered understandly on the footing that the 195A and the 195AB powers are available in relation to this long‑term cohort which, as I have said, would be wrong if Al‑Kateb is overruled, and that the powers are being exercised, not uncommonly. You can see the 39 and the 33 respectively. So, not everybody gets a successful intervention, but there are quite regular interventions in relation to people in that cohort.

GAGELER CJ: What is the headline number?

MR DONAGHUE: The headline number?

GAGELER CJ: Yes. I mean, we were told there are 92 persons who have a section – we have been taken to the NZYQ Dashboard and we have analysed those 92. Is this an overlapping group, and how big is the overall cohort?

MR DONAGHUE: That was what I was hoping to try to clarify with your Honour at the bottom of page 2. It appears to be the cohort plus other long‑term detainees who are not in the 92. So, it is a bigger group. You can see that from the brackets on the second line under the heading “Summary of Ministerial Intervention”.

GAGELER CJ: I am sorry, do we add up those numbers and that is the number of people who are potentially affected? I just do not know how to read this document.

MR DONAGHUE: Your Honour, an issue arose about the production of this document. We were not clear on why document production was being sought at the end of the week before a hearing in a special case‑type matter, but we were asked to produce these documents to our friends and our friends wanted to produce them to the Court. Our friends having produced them to the Court, I am making submissions about them, but I do not suggest that they give your Honours a comprehensive picture of every person who will be affected by the overruling of Al‑Kateb. They show you, at least, some information – including information into the most directly affect cohort as that has been identified by the Department. I cannot take it any further than that.

GAGELER CJ: All right. Thank you.

GORDON J: Can I ask one more factual question, just so I am clear. You said that this plaintiff’s visa was cancelled, and it was 501. It was actually cancelled under 36. Does that make a difference? It is recorded in the book of further materials at paragraph 21.

MR DONAGHUE: Your Honour, if I said that, I misspoke. His visa was originally cancelled – his bridging visa, I think – under 116, and then he was refused the next visa because he did not satisfy 36(1C), which was a serious danger criteria.

GORDON J: Thank you.

MR DONAGHUE: The last point I need to make – and I will make it very briefly – on the last point on the reopening application is that the Australian Human Rights Commission has made a submission in reliance on section 196(4) through and (5), which were provisions that were added when Al Masri was the law. The High Court in Al Masri was aware of these provisions. Justice Gummow referred to them but did not place any reliance upon them because they did not apply on the facts of Al‑Kateb, just as they do not apply here, because they are provisions that are concerned with people who have their visas cancelled – I think only cancelled, not cancelled and refused under section 501, and related character‑cancellation provisions.

So, if your Honours have 196(4), you will see a list of sections listed which do not include – as your Honour Justice Gordon just put to me – do not include the plaintiff. Subsection (5), added at the same time, post‑Al Masri, before Al‑Kateb, says:

To avoid doubt –

these sections apply:

(a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 –

So, the section that is said to apply is, relevantly, subsection (4), which says:

the detention is to continue unless a court finally determines that the detention is unlawful –

So, Parliament, there, has expressly said:

detention is to continue unless a court finally determines that the detention is unlawful –

and it is to do that:

whether or not there is a real likelihood –

of removal. What our friends say in writing in paragraph 14 is that the obvious inference is that in cases not controlled by (4) or (4A), the likelihood of removal is a matter which bears on the permissible duration of detention. Our answer to that is that that inference is so obvious that it did not escape Parliament’s attention. It is addressed in the next subsection, subsection (5A):

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

It is just impossible to draw the inference that our friends suggest comes from those provisions in the face of Parliament having recognised in the passage of the Act that someone might make this argument and add – as you can see in the supplementary explanatory memorandum – a provision expressly excluding it.

So, those are our submissions on reopening, save that I will say something more about the John’s factor one in the context of the constitutional submissions when I get there, which I will do as soon as I can. As to construction, I do not seek to detain the Court at great length because the essence of our submission, really – I will just be reading passages to you from Justice Hayne’s judgment which, we submit, are correct. Our submission is that his Honour’s analysis is right, and we rely upon it, and I do not think there is a great deal to be gained by me taking your Honours through it at great length.

It is suggested, though, by our friends – all of them, in writing – that a defect in the majority’s construction was that they failed to pay due regard to the principle of legality. Ms Gordon submitted yesterday that when the majority say the language is “intractable”, they are just wrong to have said that. We submit that the principle of legality was very much directly in play in both the arguments and the judgments in Al‑Kateb.

I will not take you to them, but in the CLR report in Al-Kateb, there are references to the principle of legality recorded in the appellant’s submissions, from halfway down page 564 to 565. Again, I will not take you to them, but we have included in the joint bundle the appellant’s submissions in Al‑Kateb, in tab 69, and the Human Rights Commission’s submissions, in tab 70. Both of them deal extensively with the principle of legality. So, there was a lot of argument put in reliance upon that principle. In response to it, the Commonwealth submitted that the Act was:

so clear that the principles of interpretation defence of personal liberty have no role.

You see that at 567, point 2. So, issue, in our submission, was squarely joined on the point. When the Court said, as all of the members of the majority say, the language is too clear to be read as subject to principles protective of fundamental rights, that is – what they were saying was there is no room for the principle of legality to produce a different construction. If your Honours would note Justice McHugh at paragraph 33 saying – much as I just said it – having adopted Justice Hayne, his Honour says:

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

In our submission, that is just a rejection of the principle of legality argument. At 241, under the heading, “Protection of fundamental rights and freedoms”, Justice Hayne says, in terms – I will not read the whole paragraph, but his Honour is there again rejecting the argument, with Justice Heydon agreeing and Justice Callinan at 297 and 300, to which I have already taken your Honours – and in the latter passage, Justice Callinan expressly disagreeing with Al Masri.

In our submission, there is nothing in the proposition that the principle of legality was not addressed by the majority in Al‑Kateb; it was, and it was found not to assist. But there are two further answers that also bear upon its potential relevance if your Honours did think that there was some scope for the principle to operate. They were both addressed by Justices Kiefel and Keane in M76, which I will ask your Honours to go back to again. It is volume 6, tab 32. If your Honours could turn to paragraph 180, you see that their Honours identified the nub of the reasoning of Chief Justice Gleeson in Al‑Kateb as being that:

the Act makes no express provision for indefinite detention.

and said:

In resolving questions raised by legislative silence, regard should be had –

this is Chief Justice Gleeson’s reasoning:

to a fundamental principle of interpretation, that of legality. It presumes that the legislature does not intend to abrogate or curtail human rights . . . unless such an intention is manifested –

Their Honours then, in the paragraphs that follow, explain why they disagree with that, identifying two questions. First: is the Act, indeed “silent”? Second: does the plaintiff have:

a fundamental right to be at liberty within the Australian community –

As to the first of those, their Honours explain in 182 that:

there is much to be said in favour of the view that the Act is not relevantly “silent”.

This is really the binary scheme point that has come up in argument a few times. So, it is not “silent” because the whole scheme is inconsistent with the idea you can be in the community without a visa. So, that is an answer to the legality argument. I will not detain your Honours on it. I am sure you understand that point.

The second point was a point upon which Mr Lenehan joined issue yesterday about the nature of the right that might engage the principle. Your Honours will recall you were taken to Re Bolton; Ex parte Beane and to Lim, and to the proposition that an alien is not an outlaw. We do not cavil with those authorities, of course. But, as your Honour Justice Edelman put to my friend, this is not a case where we are asserting that there is an executive power to detain unrelated to statute. There is a statute – sections 189 and 196. The question is how that statute is properly to be interpreted.

Our friends, rather than engaging with the cases where the Court has squarely grappled with that exact issue, went back to the fundamental principles that we do not cavil with. But, particularly in this judgment in M76, Justices Kiefel and Keane explain, from 184 and following, their second point about the nature of the rights:

an alien’s right to be at liberty in Australia is to be approached as a matter of statutory entitlement under the Act rather than as a “fundamental right”. The view of the minority in Al‑Kateb . . . derives no support from the language of the Act. Nor does it derive support from any principle of the common law that an alien who is unlawfully in Australia is entitled to be at liberty in the Australian community as if he or she were an Australian citizen or a non‑citizen lawfully present –

Then their Honours set out the passage in Lim that our friends rely on:

While it may not be practicable to deport the plaintiff now or within the reasonably foreseeable future, the provisions of the Act serve to exclude the plaintiff from the Australian community, she having no right under the Act to enter, and be at large in, that community.

Then, 187:

As a matter of ordinary language, these provisions –

I will not read it all, but the second half of that paragraph:

Notwithstanding the high value accorded to individual liberty in the tradition of the common law, and even though a less stringent regime might have been adopted –

which is your Honour Justice Gleeson’s point to me earlier – your Honour’s question raised:

it is hardly surprising that the Act operates to prevent entry into the Australian community save pursuant to the authority –

GLEESON J: I think you have to read that with 207 though, do you not? The first sentence in 207, does that alter that submission at all?

MR DONAGHUE: Well, your Honour, it supports the submission. And I will ultimately be embracing and relying upon what is said in 207, and really, to show you where I am going, if that is right, then the constitutional issue falls away. What we are joining issue on, the parties are joining issue about step one of what our friend identifies as a two-step process for what is a legitimate purpose. So, in my submission, it does not undermine it, and what their Honours are saying there which is very close to something that Justice Hayne said that was approved in AJL20 and perhaps actually, your Honours, I should take your Honours to that, I am sorry, it is ‑ ‑ ‑

BEECH-JONES J: Sorry, Mr Donaghue, just so I am clear, are you saying those cases support a proposition that segregation, per se, is a legitimate purpose?

MR DONAGHUE: No, no, I am not saying that, and I will come to develop my segregation – what they support is a much less ambitious submission that when you are interpreting statutory provisions that concern the detention of non-citizens, you interpret them without a thumb on the scales in the way that you would via the principle of legality for a citizen, that is all I am seeking to get at.

BEECH-JONES J: I see.

MR DONAGHUE: In AJL20, volume 3, tab 17, at paragraph 61.

EDELMAN J: Are you going to explore that proposition later?

MR DONAGHUE: I am, in the context of the constitutional argument.

EDELMAN J: But not in the context of the fundamental common law liberties?

MR DONAGHUE: I was not intending to say anything more about it, your Honour.

EDELMAN J: Why then, why does an alien have any less fundamental common law liberties than a non-alien? You would not say, for example, that an alien’s right to bodily integrity was any less than that of a non-alien.

MR DONAGHUE: No.

EDELMAN J: Why would an alien’s right not to be falsely imprisoned or detained without justification be any less than the right of a non-alien?

MR DONAGHUE: Your Honour, going back to Lim, the foundational principle upon which so much has been built in this Court, in Lim is a passage expressed by reference to citizens and a couple of pages later in the judgment, their Honours say the protections accorded, including by Chapter III are significantly different between aliens and non-citizens in large part because of the vulnerability of aliens to exclusion from the Australian community and removal from the country.

EDELMAN J: This may be a point about the way in which the so‑called fundamental common law right is formulated, the way Justices Kiefel and Keane have formulated it is by reference to some form of right to be at liberty in the community. If one were to reformulate it on a basis that is more consistent with the common law tradition as a right not to be detained without justification, it becomes much harder to see a difference between alien and non-alien.

MR DONAGHUE: Well, that, your Honour, is closer to the Beane proposition that I do not quibble with, I accept that I would need to show a justification, indeed, I accept that I would need to show a statutory justification. Where I part with the plaintiff is whether that statutory justification should be assumed to be as narrow as possible, that is what I was endeavouring to say to Justice Beech-Jones, and that, I think is the point that was picked up in AJL20 at 61 when the plurality said, endorsing Justice Hayne in Al-Kateb:

“The questions which arise about mandatory detention do not arise as a choice between detention and freedom. The detention to be examined is not the detention of someone who, but for the fact of detention, would have been, and been entitled to be, free in the Australian community.”

So, the starting point is just different, and it is not to say I do not need a statute, but it is to say one does not stretch the statute by reference to the principle of legality. So, contrary to what our friends said, the plaintiff and the Human Rights Law Centre, they assert that the principle of legality is at its strongest in the plaintiff’s case, and we submit that that is not the case at all, for the reasons that I have just tried to identify. It assumes an equivalence in all respects of citizens and aliens that the authorities deny.

Can I come to the constitutional argument and make a start before the adjournment. The plaintiff has emphasised a two‑part inquiry, particularly by reference to Jones. Question one: what is the legitimate non‑punitive purpose of the law? Question two: is the law reasonably capable of being seen as necessary to advance that purpose? They address submissions to both of those issues, but their submissions on the second issue largely assume their success on the first.

So, there is an issue joined between us as to whether or not a legitimate non‑punitive purpose is not pure segregation, but is the separation of a non‑citizen from the Australian community until such time as they are removed or, in shorthand, pending their removal. I am going to, after lunch, come to the cases which we say establish that that is a legitimate non‑punitive purpose.

If we are right about that, your Honours have not, as we heard it, heard an argument that would suggest that the second inquiry is failed. So, in other words, if it is a legitimate purpose to separate from the community pending removal, it is not put against us, we think, that the current provisions are not reasonably capable of being seen to be necessary to advance that purpose. Indeed, it is hard to see how else that purpose could be achieved other than by provisions of the kind that you have. So, we have a squarely‑joined debate about the legitimacy of the first purpose, which if the Commonwealth succeeds in, resolves the constitutional issue, in my submission.

GAGELER CJ: And if you lose on that purpose?

MR DONAGHUE: If we lose on the constitutional issue, then ‑ ‑ ‑

GAGELER CJ: No, on the purpose, I mean, that being a legitimate ‑ ‑ ‑

MR DONAGHUE: Sorry, if we lose on the purpose, then there is a question about the breadth of what is meant by the removal purpose simpliciter, without that separation, which might bear upon how you frame the test in the – so, your Honour put a question to Dr Higgins that said, well, you need to link this test, whatever it might be, to the constitutional principle that gives rise to it, and we respectfully submit the same thing.

EDELMAN J: In other words, reasonably capable of being seen suggests a latitude or a margin of appreciation for the Commonwealth.

MR DONAGHUE: Exactly.

GORDON J: Do you go so far to say that – in the answer to if you lose on your purpose, that the laws are capable of being seen as necessary for the purpose of removal?

MR DONAGHUE: I need to develop exactly what “removal” means, but if I completely lose on segregation pending removal, completely lose on it, then your Honours probably will overturn Al‑Kateb, but it will then depend upon why I have lost as to how – Justice Edelman’s question, how far you go in terms of defining the relevant characteristic. For reasons that I will come to, if your Honours were to hold that no segregation pending removal is possible then – and, indeed, I think this the submission that I am about to make, in fact, so I probably have time to make it – Lim would be wrong. Lim is only right if some level of segregation pending removal is valid.

GAGELER CJ: The difficulty is what you mean by “pending removal”. It carries an assumption, perhaps, that removal is at least possible.

MR DONAGHUE: Or may become possible in the future.

GAGELER CJ: I see. So, it could be entirely indefinite. That is, it could be forever.

MR DONAGHUE: That is Al‑Kateb in theory because the purpose is – I said “pending removal” was a short‑hand, in Al‑Kateb it is – and actually also in AJL20, it is put as until the event actually occurs.

GAGELER CJ: Brackets, if ever, close brackets.

MR DONAGHUE: Brackets, if ever, close brackets. That is the hard form of my submission.

EDELMAN J: But then you could say that about almost every one of the exceptions to detention in Lim. I mean, the extreme example I put to the plaintiffs of quarantine, you could say, well, one just does not know whether the disease will recur, so in order to guard against that possibility the person needs to be detained forever. One does not know whether or not a person might become dangerous in the future, or their mental condition might deteriorate. In order to guard against that, we need to imprison them or detain them indefinitely for the future.

MR DONAGHUE: Your Honour, I am not putting this within a predictive protective framework, I am putting – so, in the quarantine example, if one is being quarantined for COVID, when the disease originally emerged, no one knew very much about it and, in my submission, one could have put someone into quarantine without knowing exactly when the end point was going to be, but as more information became available over time – I do not suggest that someone could have detained someone forever because we do not know anything about COVID and there would be a – it has to be reasonably capable of being seen to be necessary for the identified purpose, and in the quarantine purpose one is concerned with preventing infection from entering the community. It is not untrammelled.

Our point on this constitutional point is that the duty to remove has been held by the Court to be an enforceable hedging duty. So, the moment that removal becomes possible, it must happen. If it has not yet become possible, that does not mean that it will never happen and – this is why I come back to the hard case – one is really confronted with a situation where there is either no capacity for Australia to prevent some non‑citizens from entering the Australian community – the government just does not have that power – or it does have that power, in which case it can separate until it can give effect to the removal, which it must do as soon as it can, but the delay does not change the purpose. That is what the Court in Al‑Kateb held and that is what I will put to your Honour. Your Honour, I could use the last minute to go into Lim, which I will not take long on, but ‑ ‑ ‑

GAGELER CJ: How much longer do you expect to be on your constitutional submissions, Mr Solicitor? I am not trying to hurry you in the least, these are important.

MR DONAGHUE: No. On my constitutional submissions, or on all of my submissions?

GAGELER CJ: I thought we were heading over to Mr Herzfeld.

MR DONAGHUE: I am also going to say something about the test.

GAGELER CJ: Of course, yes.

MR DONAGHUE: I anticipate that I will be about an hour.

GAGELER CJ: And Mr Herzfeld?

MR DONAGHUE: About an hour also – 45 minutes. I appreciate that is ‑ ‑ ‑

GAGELER CJ: We will then take the luncheon adjournment now, and we will resume at 2.00 pm.

MR DONAGHUE: If the Court pleases.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

MR DONAGHUE: Your Honours, before developing the constitutional submissions, can I ask your Honours to turn back to the “NZYQ Dashboard” document – the one with the pie graph and the other graphs – just to make two slight corrections to what I said, and to endeavour to answer your Honour Justice Gordon’s question a little further, although there are limits to what I can promise to achieve. On the pie graph, your Honour the Chief Justice asked me, where is the plaintiff, or is the plaintiff within here? I said he was, as a stateless person.

I am instructed that in those three categories, which you can see identified in the box under the pie graph, that they are a sequence, so individual people are put into to the highest category that applies to them. The plaintiff is both a 197C person because he has a protection claim against Myanmar and a stateless person, and so he was included within the 197C box, not the stateless box, and that is the methodology that was adopted.

I was also asked some questions about the references to section 501 in the category CAT 1, CAT 2, CAT 3 and CAT 4 under the bar graph in the top middle of the page. My instructions are that – and some of the questioning from your Honours sort of drew this out to some extent – those labels – 501, I am instructed – are used as within departmental records as a shorthand reference for character‑type decisions of various kinds. So, not necessarily under 501 itself, but also including under visa criteria, such as 36(1C), that are equivalent to those. So, there are a range of 501‑type powers and there are some visa criteria, and they are all lumped together in the Department’s records under that single label.

So, I cannot tell your Honours they are all subject to actual 501 decisions, but they are decisions falling within the character classes that are identified there. Finally, your Honour Justice Gordon asked about the discrepancy between the residence determination numbers. As to the question whether “RD” means “residence determination”: it does, and in the box under that “Detainees by Current Location” there is a descriptor that says:

Those in held detention are shown against the facility while those in residence determination (RD) are shown –

GORDON J: Thank you. I missed that, I apologise.

MR DONAGHUE: No, my fault, your Honour. I had not picked it up. As to the gap in numbers, unfortunately the position is we are not entirely sure. An officer who was involved with in the preparation of the tables’ best assessment is that the 16 are decisions made by the current Minister, so that the gap of five are likely to be residence determinations that predate that Minister, and that is the best I can do on that.

GAGELER CJ: This is a piece of paper that was produced for the purposes of this case, was it?

MR DONAGHUE: Produced for the purposes of assessing the possible ramifications of this case.

GAGELER CJ: Thank you.

MR DONAGHUE: Turning to the constitutional argument, can your Honours take up section 196 of the Act, volume 1, tab 3, and turn to 196(1), which in familiar terms says:

An unlawful non‑citizen detained under section 189 must be kept in immigration detention until –

and then there are the four identified paragraphs. Can I ask your Honours to note particularly paragraph (a) and paragraph (c). So, paragraph (a) must be detained until:

he or she is removed –

An event. Under (c), detained until:

he or she is granted a visa.

An event. Both events that, if they are to occur at all, will occur in the future, and the operation of the section is to say, until now from when you are detained under 189 until the future occurs, you must be detained. As I briefly intimated, I think in answer to a question from your Honour Justice Beech‑Jones, it is inherent in (a), must be inherent in (a), that removal is not reasonably practicable, because if removal was reasonably practicable, it must occur and detention would therefore end.

So, this provision is contemplating a situation where you have an unlawful non‑citizen who it is not reasonably practicable to remove, and it is requiring their detention. Why? In our submission, to ensure that the unlawful non‑citizen does not enter the Australian community until that event occurs, and that is so whether the removal will occur very soon or whether removal will occur in the medium‑term or whether it will occur in the longer term.

Similarly, with (c), visa grant, the provision contemplates that, while a visa application is being considered but has not yet been granted, the non‑citizen must be detained. Nobody, to my knowledge, has ever submitted that it is inconsistent with Chapter III to detain a non‑citizen while a decision is made whether or not to admit them to the ‑ ‑ ‑

GORDON J: Well, Lim expressly permitted it.

MR DONAGHUE: Sorry?

GORDON J: Lim expressly permitted it in relation to that consideration of a visa or entry.

MR DONAGHUE: In fact, Lim expressly admitted both of them – permitted both of these things, because it upheld the validity of a provision that contained material equivalents to both (a) and (c). But when one asks, well, why is it permissible to detain a non‑citizen while you are deciding whether to admit them, whether to grant them a visa, in our submission, the only answer can be because you are avoiding pre‑empting the admission decision.

Until a decision is made as to whether the non‑citizen shall be permitted into the community, they will be kept out of the community. If the decision is then made to admit by the grant of a visa they are, of course, released. If the decision is made to refuse, then the purpose shifts from deciding whether to admit to removing. But in both of those situations – and this is really the point that I am trying to get to – at least some level of segregation pending admission or removal must be constitutionally permissible, because that is what this provision is all about. So, the debate about segregation ‑ ‑ ‑

GAGELER CJ: Mr Solicitor, the event to which paragraph (c) refers is an event that must occur within a reasonable time of the making of the application, is it not?

MR DONAGHUE: Yes, that is true. Well, yes, there is a – I should qualify that. The event to which (c) refers is the grant of a visa, so it may never occur ‑ ‑ ‑

GAGELER CJ: Of course, but one way or the other.

MR DONAGHUE: ‑ ‑ ‑ but consideration of whether or not to make the decision must occur within a reasonable time, and that is one of the enforceable hedging duties that ensures the validity of this scheme.

GAGELER CJ: And 198 is similarly a hedging duty that ensures validity.

MR DONAGHUE: Yes.

GAGELER CJ: The problem, as I see it, is that 198 will be – the duty imposed by section 198 would be kind of meaningless in circumstances where there is no reasonably foreseeable prospect of removal. It is an unenforceable duty. It is of no practical effect, is it not, in those circumstances?

MR DONAGHUE: Your Honour, in my submission, the duty under 198 is always unenforceable until removal becomes reasonably practicable. So, it is not a duty that is enforceable along the way – there is an implicit duty do the things necessary to try to bring about removal. But the duty falls for performance only at the point in time when removal can be given effect – and that is so for a person who is a citizen of another country who just lacks a travel document until they get the travel document ‑ ‑ ‑

EDELMAN J: I do not think that can be right, on your submission. I think, on your submission, it cannot be that the duty falls for performance at that time. I think it is that the duty could only arise at that time. So, there is a constant duty to take steps to find out whether it is possible to remove. But, on your submission, the duty to remove as soon as reasonably practicable could only bite once the possibility arises.

MR DONAGHUE: I separated them, or said one was implicit. The “as soon as” part of it means that the Department cannot drag its feet and not try to get travel documents and other things as quickly as possible – and that duty arises earlier and is enforceable along the way. But the actual removal part, I agree with what your Honour puts to me. It is only once you have got all the things you need to put a person on a plane and have them land in the other country and be accepted, that the duty is given complete effect – and the detention lasts until then.

The point I am seeking to make from this, before I get to the cases, is really just to say that, in my submission, the debate about segregation pending the occurrence of these events is not really a debate about the permissibility of that notion. It is a debate picking up the idea that Chief Justice Gageler puts to me about what the limit of that segregation might be. But some level of segregation is inherent within the scheme.

STEWARD J: But for a purpose, though.

MR DONAGHUE: Yes.

STEWARD J: For a purpose of removal, in this case.

MR DONAGHUE: Yes, and the debate in the cases I am about to come to, are does that segregation purpose cease to be legitimate at some point if there is not a sufficient prospect of removal? But that is not to say that any segregation is constitutionally problematic and indeed, in my submission, your Honours should not so hold for the reasons I have just been trying to explain, that there is a segregation purpose inherent to the admission process and also ‑ ‑ ‑

STEWARD J: Well, it is not a segregation purpose, it is permitted segregation for a purpose, namely, removal.

MR DONAGHUE: Well, up to a point I would accept that, your Honour, but the detention while a visa application is considered is not to make it easier to consider the visa application. It is to make sure that the person does not get the benefit of the admission decision in advance.

GORDON J: You would have to go so far, I think, to say that segregation by detention is both a legitimate means and end.

MR DONAGHUE: I do not go that far, your Honour.

GORDON J: But you have to, do you not?

MR DONAGHUE: No, in my respectful submission, not, because in my submission, as long as the removal duty exists and in an enforceable way so that as soon as it does become possible, whenever that might be, and admittedly a long time away, as long as that duty exists then segregation pending the occurrence of that event is constitutionally permissible. So, it is not freestanding. I do not say that if removal became reasonably practicable or if the Act was amended to amend 198, I do not say that Parliament could just segregate non-citizens.

So, I do not need it to be a freestanding – but if the segregation is only happening because you are trying to remove and removal is taking a long time, that still has a sufficient connection to removal.

GORDON J: So, when you say, I am trying to remove and removal is taking a long time – I know you are going to come to this – but that brings into sharp focus the test. What happens if it becomes, as Ms Balzary says, in those paragraphs of 18 and 21 of her affidavit, that is both “impossible” to know the outcome and “impossible” to know the process?

MR DONAGHUE: I do not want to duck your Honour’s question, but can I defer that, because if I answer that I am going to either open up a whole range of ‑ ‑ ‑

GORDON J: Right, I apologise.

MR DONAGHUE: No, no, I am going to ‑ ‑ ‑

GORDON J: Because that, I think – I speak only for myself – is a critical issue for you to address.

MR DONAGHUE: If Al-Kateb is reopened, that is a critical issue for me, I accept that; I will address part of that and Mr Herzfeld will address part of that, so we are not going to duck that question in any way.

BEECH-JONES J: Mr Solicitor, do you say “pending removal” equates to there exists a statutory duty to bring about removal, even though it is not reasonably practical to perform?

MR DONAGHUE: Even though it is not reasonably practical ‑ ‑ ‑

BEECH-JONES J: Reasonably capable – likely to be performed.

MR DONAGHUE: Yes, now, because things might change – that is what I say.

BEECH-JONES J: But the existence of the statutory duty is sufficient?

MR DONAGHUE: Yes, is sufficient, and, in my submission – and your Honour’s question perhaps anticipates this – that focus on the statutory duty, in my submission, is what one sees in AJL20, approving references to Justice Hayne in Al-Kateb also focusing on the statutory duty. So, can I come to those two cases ‑ ‑ ‑

GAGELER CJ: It is a bit like the statutory duty to remove the person on the vessel where the vessel has been scuttled.

MR DONAGHUE: In my respectful submission, no, your Honour, and helpfully – perhaps forensically, for me – one has Al Masri itself, where a judge finds on one of the tests put to your Honour that it is not reasonably practicable to remove in the foreseeable future and, a matter of weeks later, he is removed. In Sami, a judge finds applying this test not reasonably practicable in the foreseeable future, removal occurs three months later. So it is just not as black and white as that. In my submission, that is really what drove Al‑Kateb, the fact that things might always change, and one of the things that changes is that, as people are detained for longer, the preparedness of other countries to accept them might change, the pressure on the Australian government to do something to remediate their situation might change, so it is not a static assessment.

Can I ask your Honours to go to Al‑Kateb on the constitutional point, which is volume 3, tab 14. In the passages I am about to go to, where Justice Hayne is said to have completely misunderstood Lim, one sees many passages approved subsequently in AJL20, approved by Justice Kiefel and Justice Keane in M76, by Justice Hayne himself in M76, followed in Woolley. So, it is quite a big claim that our friends are asking you to embrace and, in our submission, it is not a fair reading of the judgment. What one sees, really, is that once the segregation pending removal purpose is accepted in the way that I have put to your Honours, there is then not much of the analysis to do because, if that purpose is accepted, then it is clear that the provisions are reasonably capable of being necessary to give effect to that purpose, and so it was not necessary to engage in a prolonged analysis.

Justice Hayne at 251 of the reasons, in a passage I think Mr Lenehan took your Honours to, quotes the key passage from Lim near the bottom of page 646, setting out the very test that our friends rely upon. Over the page says, insofar as it turns on purpose, the purposes being exclude, admit or deport:

what has been said earlier in these reasons about when that purpose is spent would require the conclusion that the sections now in issue would meet the test of validity which they posit.

So, his Honour quotes it, identifies the purposes and says it is satisfied:

would not be spent until it had become reasonably practicable to remove the non‑citizen concerned.

GORDON J: And you accept that is what he is talking about there by reference to paragraph 231, i.e., the point is reached “at which removal is reasonably practicable”?

MR DONAGHUE: Well, your Honour, in my submission, paragraph 231 should not be read as his Honour saying that if the point is reached at which removal is reasonably practicable and it has not occurred, the detention becomes unlawful. That was part of the debate in AJL20, as your Honour will recall. His Honour says repeatedly in the judgment, detention must continue until one of the things actually happens. In that paragraph, in my submission, his Honour is saying, once you get to that point what should happen is removal and the detention will therefore end. But he is not saying, if there is no removal, that the detention then ceases. As I say, that was the issue debated.

I do accept that what his Honour says at 251 about the satisfaction of the reasonably capable test does appear to be limited to what his Honour then says at 255, particularly the last second half of 255 – and there is some crossover, as I think was discussed yesterday, between the heads of the power in Chapter III here. It is an understandable crossover because Chapter III operates differently in relation to aliens than in relation to citizens. His Honour says in the second‑half:

But if the heads of power extend so far –

that is, to prevent entering or remaining:

they extend to permitting exclusion from the Australian community – by prevention of entry, by removal from Australia, and –

his Honour’s emphasis:

by segregation from the community by detention in the meantime.

So, there is, in my submission, no ambiguity there. His Honour was identifying the permissible purpose preventing entering and remaining, as so extending. At 258, his Honour, at the end of that paragraph, says:

unlawful non‑citizens have no general immunity from detention otherwise than by judicial process.

Then, in 261, his Honour explains why detention in these circumstances cannot be characterised as punitive. He says, near the top of that paragraph:

it must be recognised that the consequences which befall an unlawful non‑citizen whom the Executive cannot quickly remove from Australia are not inflicted on that person as punishment for any actual or assumed wrongdoing. They are consequences which come about as the result of a combination of circumstances. They flow, in part, from the non‑citizen entering or remaining in Australia without permission, in part from the unwillingness of the Executive to give the non‑citizen that permission, and in part from the unwillingness of other nations to receive –

Then, his Honour notes that there might be other features of individual cases that might affect that, including character or security‑type concerns. But it is not punishment, it is just a conglomeration of circumstances that might make removal difficult. In 262, his Honour says:

the consequences befalling an unlawful non‑citizen whom the Executive cannot quickly remove . . . fall on that person because otherwise he or she will gain the entry to the Australian community which the Executive has decided should not be granted.

So, his Honour is saying, it must follow, if you are entitled not to permit admission, that segregation until a person can be removed is a logical consequence of the existence of that power.

EDELMAN J: Can I just ask you about one of the few sentences that yesterday or today we have not read, which is the first sentence of paragraph 256. Is it right to read that question as saying that what Lim had treated as part of the Chapter III question, “reasonably capable of being seen as necessary”, is instead viewed by Justice Hayne as being part of a head of power question, so that the Lim test is not being applied as a Chapter III test in that respect, but is said to be a question of head of power?

MR DONAGHUE: In my submission, your Honour, his Honour is – and this is part of, I think, my friend Mr Lenehan’s argument. He says, well, there are some critiques of that test, and I accept that Justice Hayne does reason, as we understand his Honour’s judgment, by saying, well, Lim uses this test which it seems to have taken from a head of power context and applied it to Chapter III. His Honour has some reservations about that. But in the passage that I just read from, 251, his Honour says, well, if that is the test, it is satisfied here, and he then expressly some doubts about whether it should be analysed in that way. Our point is that one cannot say that his Honour’s reasoning is wrong because it has somehow overlooked the need to ask that question. His Honour did ask and answer that question and then express some views about whether the law was developing in the right way.

Now, we know that the law has locked in around that test and I am not seeking to dissuade your Honours from it, but my submission is that his Honour’s reasons in conformity with that test say that because one can exclude from the community in the meantime, pending either entry or removal, and because that is not punishment, it is just a consequence of preventing the entry that the Executive has properly decided not to grant, it is not punitive and so it is not exclusively judicial power. That is, in our submission, how it should be read. His Honour comes back to it at the second‑half of 266, the same point developed in a little more detail perhaps, 266 and 267. So, in 266:

where a non‑citizen has entered or attempted to enter Australia without a visa –

This is at the entry point:

detention of that person excludes that person from the community which he or she sought to enter. Only in the most general sense would it be said that preventing a non‑citizen making landfall in Australia is punitive. Segregating those who make landfall, without permission to do so, is not readily seen as bearing a . . . different character.

So, his Honour is saying, well, if we can stop you at the border, it would be a very strange thing for Chapter III to say, if you get through the border, you then must be permitted to remain within the community. His Honour says Chapter III does not have that effect.

Justice McHugh’s reasoning was also quite clear on this point, particularly at paragraphs 45 to 48. Paragraph 45 is one of the paragraphs picked up in AJL20, which I will be coming to shortly. In 45, second sentence:

As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non‑punitive.

BEECH‑JONES J: Mr Solicitor, that characterises the purpose of the detention exclusively by reference to the statute. Would you agree with that?

MR DONAGHUE: Yes, your Honour, and correctly so, in my submission.

BEECH‑JONES J: Yes, I understand.

MR DONAGHUE: Nothing to do with the subjective purposes of the officers concerned.

BEECH‑JONES J: Or even an objective characterisation of what is happening, what is the purpose of this person’s detention.

MR DONAGHUE: Quite so. The statute and the remedy, if there is a departure, is to enforce. Justices Keane and Kiefel embraced that paragraph 45 passage in their Honours’ reasons at 205, and I will not go there.

GLEESON J: How do you reconcile this with Plaintiff S4?

MR DONAGHUE: Your Honour, in the way that it was addressed in AJL20. So, in AJL20, your Honour might recall there was quite some argument about both Lim and S4. In my submission, S4 was just not about this. S4 was not a case about immigration detention at all. It was not a constitutional case. It was not about the correctness of Al‑Kateb. It was not about any of those things. So, the statements made in the judgment in S4 should not be read as directed to situations where in Al‑Kateb and AJL20, it was much more squarely on point.

I rely also – I am conscious of the time – on 46, 47, 48 of Justice McHugh, which all support the idea that preventing a non‑citizen from entering the Australian community is legitimate, pending an admission decision or removal – importantly, not freestandingly – is a permissible objective. His Honour then says at 49:

Nothing in . . . Lim assists –

Again, I will not read the whole paragraph, but his Honour explains why, including at the end:

Neither of these passages –

the Lim passages:

was directed to a case like the present where the detention prevents the unlawful non‑citizen from entering the Australian community although deportation is not feasible . . . Neither passage was directed to a case where indefinite detention is necessary to prevent a person from entering Australia or the Australian community.

Again, in the interests of time, I will not go back there – actually I might need to – briefly to Justice Callinan. If Justice Callinan differed on the constitutional analysis, his Honour differed by adopting a wider view rather than a narrower view. So, you had at least the majority in favour of the view expressed by Justices McHugh and Hayne. You see at 289, in his Honour Justice Callinan’s reasons, his Honour leaving open the second sentence, stating:

It may be the case that detention for the purpose of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable.

So, he seemed to leave open a freestanding segregation purpose which, as I have said, I am not embracing. In the paragraphs that our friends have relied upon where his Honour talks about subjective purpose, his Honour does that – and 291 is a good example of this, so perhaps your Honours could turn to that. The second sentence of 291, his Honour said:

It would only be if the respondents formally and unequivocally abandoned that purpose that the detention could be regarded as being no longer for that purpose.

Now, as I have ‑ ‑ ‑

GORDON J: Is that the high‑water mark of Justice Callinan for the purposes of the support for segregation pending removal in the way you put it to us?

MR DONAGHUE: Or 289 perhaps, or 291, yes. I think so, your Honour, yes – 299 as well, perhaps, one could add. Immediately after that – I, of course, do not embrace the idea that the subjective purpose is relevant at all, so a formal abandonment would not matter because of the AJL20 analysis of the statute, but what his Honour was doing with that was not saying if it was formally abandoned, a non‑citizen would be released. His Honour seems to be saying in the balance of 291 that that would raise a different constitutional question as to whether detention for a different purpose would be constitutionally permissible. The very next sentence after the one I read says:

no question of that arises here.

So, his Honour, again, seemed to be leaving open whether, even if the removal purpose was abandoned, that you would then have to ask and answer a different question about segregation. But his Honour certainly was not putting a narrower view than had been put by the other members of the majority in Al‑Kateb.

Your Honour Justice Gordon asked me about M76 at 207. I will not go back there but – where quoting Justice Hayne and Justice Heydon in Re Woolley, there is again an express approval of segregation pending removal as a permissible purpose. I do want to take your Honours to AJL20 in some detail. There is one passage I have ‑ ‑ ‑

GORDON J: Until you get to AJL20 – and I know you are going to come to it, so I do not seek to pre‑empt that analysis, but there is – arguably, no majority of the Court has ever held this proposition that you are now putting to us. In other words, if you – I just want to make sure I understand that I am wrong about that. Al‑Kateb, you have Justices McHugh, Hayne, and Heydon. Then, this aspect of Justice Callinan’s judgment in Re Woolley, I think, at best, you have Hayne and Heydon. And then in M76 you have Justices Kiefel, Keane, and Hayne. Is that right?

MR DONAGHUE: Save that, your Honour, in my analysis, Justice Callinan is wider not narrower, so I would submit that there is a majority there. I should, perhaps, also have mentioned – well, I will not go there. Subject to how one counts Justice Callinan – and for the reasons I have just given, in my submission, he should be counted – one has a majority in Al‑Kateb, but one also has it in AJL20. I know your Honour asked me to leave that aside, and I am coming there.

Before I do that, there is one passage I did wish to draw to your Honours’ attention that I neglected to do earlier. In a judgment of six members of the in M96A, that case is ‑ ‑ ‑

GORDON J: Tab 33.

MR DONAGHUE: Thank you, your Honour. I mislaid my notes. So, tab 33, it is [2017] HCA 16; (2017) 261 CLR 582, another case that was about hedging duties and the limits of immigration detention. I just would seek to draw your Honours’ attention to a passage near the end of the joint reasons, in paragraph 33, where a submission is recorded from the bottom of page 597, where it is said:

Alternatively, the submission assumed that if the purpose of administrative detention in Australia was for removal it would be unlawful for the duration of detention to be predicated not on the effectuation of removal itself, but on an apparently unrelated factum . . . medical treatment.

That was because of the facts of the case:

As we have explained above, the detention was for the purpose of removal from Australia when preconditions are met, including where –

it is no longer necessary for the temporary purpose to be present. So, it is detention until the conditions are met, as I put it earlier, and then their Honours explained:

The detention does not become an exercise of judicial power merely because the precondition, and hence the period of detention, is determined by matters beyond the control of the Executive. This will frequently be the case where, for instance, questions arise as to whether it is reasonably practicable to remove a person from Australia.

So, their Honours appear to be accepting that there may be circumstances quite beyond the Commonwealth Executive control that might have a significant bearing on when and what future time it becomes reasonably practicable to remove but dismissed the notion that that would have a bearing on the validity of the detention. And their Honours, in saying that, cite Al-Kateb at 221 to 232, that is Justice Hayne, and M76 2104 to 205 which is Justices Keane and Kiefel. So, this is another case in a line that is, we say, supportive. Can I come, now though to AJL20.

BEECH-JONES J: Can I ask, supportive of exactly what?

MR DONAGHUE: Supportive of the proposition that immigration detention for a period determined by achievement of the end point, perhaps outside the control of the Commonwealth Executive is nevertheless non‑punitive and valid.

EDELMAN J: That is not how I understand the passage. I understand the passage as being concerned with the difficulties of assessing timing, that timing itself can be flexible, not that the very issue of likelihood or practicality or real chance of removal exists.

MR DONAGHUE: Your Honour, as I read that paragraph, what had been put was – so, it concerned temporary persons transferred from Nauru to Australia for medical treatment and it was said, well - - -

EDELMAN J: For a temporary period of time. It is about a timing issue.

MR DONAGHUE: For a temporary purpose, so not fixed by time, but fixed by the purpose of the medical treatment. And the plaintiffs said, my detention must be fixed by reference to what is needed for the – the detention said to be needed to be referrable to the medical treatment rather than the removal, and the Court said, no, the detention is just keeping you out of the community until the removal power is engaged, which it will be once the temporary purpose is over.

EDELMAN J: Yes, but the temporary purpose, by definition, was for a limited period of time. That limited period of time might be longer or shorter. What the passage is addressing is the fact that you cannot identify precisely how long that limited period of time is going to be.

MR DONAGHUE: And that it might be affected by other persons. I agree with all of that, your Honour. But I am sorry, I think I have been unclear as to what I was seeking to get from this. My point really is that the detention that is happening during that temporary period is detention that is designed to keep the person out of the Australian community until the end point of removal becomes possible. That is what it was about. And so, it was segregation pending removal detention; that was what was engaged.

Your Honours, can I come to AJL20 on the constitutional point. As I have already said to your Honours, I accept, of course, that because AJL20 was removable his facts did not engage squarely the Al-Kateb scenario. But he did say I can be released into the community even though I do not have a visa, and if I cannot, as a matter of construction, the Act is invalid to that extent; they were both arguments that he advanced.

So, the Court needed to grapple, in AJL20, with the question: can an unlawful non-citizen be in the community without a visa? – the construction question. And if they have to be detained, even when an officer should have removed them, does the detention, therefore, exceed a Chapter III limit by becoming punitive? It is that second issue that I am now turning to. If your Honours would note, first, paragraph 21 where the majority is discussing the course of authority – and the plurality says:

It has long been recognised that a law that provides for the executive detention of an alien, in order to prevent unauthorised entry into the Australian community or to facilitate removal from Australia, is also within the scope of s 51 (xix).

And Koon Wing Lau is quoted. Then, going on to paragraph 28, there is, again, a summary of a number of the authorities, including S4, which is quoted in paragraph 27. At 28, the majority say:

It is because the detention mandated by s 189(1) of the Act is temporally constrained by s 196(1) that the detention is capable of being seen as necessary –

So, there is those words again – the Lim words:

necessary for execution of the legitimate non-punitive purposes of segregation pending receipt, investigation and determination of any visa application or removal.

Either one. S4 then quoted again. Then, further discussion of the course of authority, including M96A. Then there is the constructional analysis I have already taken your Honours to in 33, 34, 35. A summary of the primary judge, and then at page 69 or paragraph 42 under the heading “Reading down s 196(1)”, their Honours come to the constitutional point. It arose because the primary judge in the Federal Court had held that 196 needed to be construed in light of constitutional constraints arising from Chapter III. The argument on appeal was that his Honour had been wrong to construe the provision in that way because it was valid without any reading down.

Your Honours then see, in 43 under the heading “The constitutional and statutory questions”, a familiar analysis: the Wotton, Palmer analysis – you apply the constitutional limits at the level of the statute. So, from the last two lines:

If the statute, properly construed, can be seen to conform to constitutional limitations upon legislative competence without any need to read it down . . . it is valid in all its applications, and no further constitutional issue arises.

A quote from Wotton. Then paragraphs 44 and 45 are critical to this aspect of our argument:

it is well‑settled that the Act does not permit detention of a non‑citizen for purposes unconnected with entry into, or exclusion or removal from, the community.

Then the plurality says this:

The detention authorised by ss 189(1) and 196(1) of the Act is reasonably capable of being seen as necessary –

So, the Lim test:

for the legitimate non‑punitive purposes of segregation pending –

relevantly:

removal.

Footnote, Lim, but then Al‑Kateb, 45 to 48, that is Justice McHugh, the paragraphs I relied on; 266 to 276, the paragraphs from Justice Hayne that I relied upon; and 289 and 295 from Justice Callinan:

reasonably capable of being seen as necessary for the legitimate non‑punitive purposes of . . . removal. This is because the authority and obligation . . . is hedged about by enforceable duties . . . that give effect to the legitimate non‑punitive purposes.

Then in 45:

the existence of these hedging duties means –

and this paragraph addresses conditions 2 and 3 that the plaintiff puts up as obstacles, and rejects them both. The sections and the hedging duties mean:

the duration, and thus lawfulness, of the detention authorised by the Act is capable of determination from time to time.

And:

“the length of the detention [is not] at any time dependent upon the unconstrained, and unascertainable, opinion of the Executive”.

Both of those asserted limits are rejected. Then the Court says – the majority say:

Accordingly, ss 189(1) and 196(10 are valid. There is no need to read them down to save their validity. They are valid in all their potential applications.

Skipping a few lines:

That is so because the terms of the Act circumscribe the purposes of detention of an unlawful non‑citizen so that they do not include punishment.

In 46, therefore:

there was no warrant for the primary judge to hold that, in order to preserve its constitutional validity –

it was not possible to read the section – I will not read it all, but your Honours can see there. So, in our submission, applying the familiar Wotton approach, the Court looked at the very sections now before the Court, considered whether within their terms and having regard to the hedging duties they authorised detention for an impermissible purpose, said they do not, because what they do is reasonably capable of being necessary for the legitimate non‑punitive purpose of segregating from the community pending removal and, because of that, the fact that the officers in AJL20 had not done what they were required to do did not mean that the detention was unlawful. The statutory regime complied with the limits and what was necessary was to enforce those limits.

Now, our friends can take your Honours to those passages, but in our submission, the contention that it is not a legitimate non‑punitive purpose to detain to segregate pending removal cannot stand with what the Court said there.

GAGELER CJ: Mr Solicitor, right at the beginning of all of this analysis was paragraph 26. The Court was simply not dealing with an Al‑Kateb case.

MR DONAGHUE: Your Honour, I have tried to be upfront in accepting that that is so. But our friends try to deal with AJL20 by saying, because it was not an Al‑Kateb case, because Mr AJL could be removed, they do not need to worry about what was said in 44 and 45. What was said in 44 and 45 ‑ ‑ ‑

EDELMAN J: Paragraphs 44 and 45, read in isolation, look like absolute statements. But, we know that they cannot be absolute statements because they are not, for example, dealing with Love and Thoms. Valid in all their potential applications, there would have to at least be a footnote saying, we are purporting to overrule Love and Thoms, and there is no suggestion that they are doing that.

MR DONAGHUE: I think there is an express exception in that context – somewhere in the judgment. But, my point, your Honour – Love and Thoms is not about segregation and removal, or any of those other – this case – AJL20 was, it was about whether or not it was – that the Act validly can keep someone in detention, even in circumstances where the hedging duty had been breached.

While I do, of course, accept that paragraph 26 says what it says and carves out – reflects the fact that there was no challenge to the constitutional holding in Al‑Kateb, if – to take the hypothesis of the construction argument that Dr Higgins has developed, were to be accepted as the applicable constitutional limit, these provisions are a long way from valid in all of the potential applications. They are invalid whenever the Commonwealth cannot discharge the burden on the balance of probabilities of establishing that removal will probably occur.

So, instead of there being validity in terms that the Court expressed as it did, that valid in all its application, because that is what the Wotton analysis requires if the entire constitutional analysis is to take place at the level of the statute. If the statute is not valid in all its applications, then constitutional issues can arise at subsequent points of the analysis.

EDELMAN J: I understand the submission. My point was just simply to say that what appears as an absolute statement there has to be read in light of the fact that, earlier on, there are carve‑outs – there is the carve‑out for Al‑Kateb and there is the carve‑out, earlier on, for Love and Thoms. So, that statement has to be read in light of the earlier qualifications as to the matters that are not being addressed.

MR DONAGHUE: Your Honour, even accepting for the sake of argument that that to be so, one thing that is addressed – in one of the passages that I took your Honours to on the construction of part of the case, but which I would ask your Honours to go back to – is – if your Honours will just give me one moment.

Yes, so the carve‑out to Love that I was looking for is footnote (70) in paragraph 35, but there is a paragraph in the analysis where the Court construes the section as requiring detention to occur until the point where the terminating events under 196, in the Court’s italicised emphasis, “actually occurs”. So, the section – when the Court says this provision is valid in all of its possible operations, it is saying that about a – yes, my learned friend helps me, paragraph 49 is the one I was looking for, which is the Al‑Kateb‑type analysis. The text is clear, the meaning of the word “until” is:

“up until the time” . . . refers to an ongoing or continuous state of affairs . . . up to the time that the event . . . actually occurs.

So, it is the provision construed in that way that is then said to be valid in all of its operations. While obviously, because the person detained in AJL20 was not a person who could not be removed, the correctness of Al‑Kateb did not squarely arise. At the very least, the analysis that your Honours are being asked to accept needs to accommodate the result in this case.

GORDON J: I do not know about that. I think this is the debate you and I had before. If you look at Al‑Kateb and you look at the facts in Al‑Kateb, what it was dealing with was, it was legislative authority to detain somebody until the first point at which it became reasonably practicable for removal. Then here, that question was then said, well, no, we are going to take the factual scenario in AJL20 and say that even once that point is reached it does not affect the lawfulness of the detention. It was dealing with a different question.

MR DONAGHUE: Your Honour, in my respectful submission, Al‑Kateb did not hold that detention ceased to be lawful and that a non‑citizen must be released.

GORDON J: It did not arise in that question, that was not the issue, that was the whole point of it.

MR DONAGHUE: Al‑Kateb held that a stateless person who might never be able to be removed could validly be detained consistently with Chapter III. That is the part I am relying on now.

GORDON J: I know you are, but the other point was – the other aspect of Al‑Kateb was that once you got to that point where it was – that the power had been spent, because it was reasonably practical to remove, you had to remove.

MR DONAGHUE: I fully accept that, and that is what the Court said in AJL20; you have to remove. There is an enforceable duty to remove. What it did not say, in my submission, is that detention prior to that point would be invalid. Really, on this part of my argument, what matters is that the Court said, on several occasions in this judgment, segregation pending removal is a legitimate non‑punitive purpose. On step one of my friends’ two steps, they ask your Honours to find that it is not a legitimate non‑punitive purpose – I am sorry, that it is not a legitimate purpose, and they do so without challenging the case.

If these statutory provisions in the AJL20 fact pattern serve the legitimate non‑punitive purpose of preventing of detention pending removal, how do they serve a different purpose when someone with a different factual situation comes before the Court? The statutory provisions must be construed, their purpose must be identified, they must be assessed against the Constitution. That is what the Court did in AJL20, and none of those things change depending on the characteristics of a plaintiff.

So, at most, your Honours, in my submission, can be being asked to add some qualification to that legitimate purpose of segregating pending removal in the exceptional case where, whatever the test is, removal turns out to be impossible, but it cannot be any wider than a narrow qualification of what was said in ‑ ‑ ‑

GAGELER CJ: Yes, that is what we are talking about, narrow qualification along paragraph 26 lines.

STEWARD J: Can I ask a broader question. What was critical in AJL20 to validity was the observation at paragraph 45 that detention must end. We are in a situation where the evidence before the Court is that no one can say whether it will or will not end. The future of this man’s removal is wholly unknown. So, then the question must be, taking it back to Lim, in those circumstances, why is his detention reasonably capable of being seen as necessary for the purpose of removal? What makes it necessary?

MR DONAGHUE: What makes it necessary is that the legitimate purpose for a non‑citizen who has been refused entry to the community is to detain them until they are actually removed, whenever that might happen.

STEWARD J: But the passages in Lim, they are all in a context where it was clear that the detention would end. I think in those days it was 263 days, or whatever it was.

MR DONAGHUE: But, your Honour, this is the craft of our friends’ case. They ask your Honours to go back to Lim, 10 years after Lim, which did not involve the situation, came Al‑Kateb which did involve the situation. The Court applied Lim to that situation and said detention is valid, even if removal is not presently practicable and will not be practicable in the foreseeable future because ‑ ‑ ‑

STEWARD J: I think that is because – again, going back to Justice Hayne’s reasons – there was the pregnant possibility of removal at some point. Who knows what would happen, but there was an expectation that it would happen. The evidence here is that we have no idea whether it will or will not. The evidence is, I think, slightly stronger, is perhaps what I am suggesting.

MR DONAGHUE: Your Honour, can I ask you to go back to Al‑Kateb and go to 217?

STEWARD J: Yes, of course. Yes.

MR DONAGHUE: So, in 217, four lines down:

First, the detention required is for an indeterminate length of time. Its duration is bounded by the occurrence of events which, if they happen –

His Honour’s emphasis:

will happen at a time which cannot be identified at the start of the period of detention. Secondly, it is now recognised that there may be cases where the events upon which detention will cease may not happen, or at least will not happen for a very long time. It is this uncertainty, about whether or when detention will cease –

that presents the issue. So, in my submission, his Honour was recognising it might never happen.

STEWARD J: But the nub of it will then be: if leave is granted, is that reasoning right?

MR DONAGHUE: Yes, and ‑ ‑ ‑

STEWARD J: And why is it right?

MR DONAGHUE: It is right because detention does not cease to be for the legitimate non‑punitive purpose of segregation pending removal, that the detention continues – as long as the detention continues only until removal actually happens, and that happens consistently with the hedging duties.

BEECH‑JONES J: Mr Solicitor, I did not understand Mr Lenehan to say segregation pending removal was not legitimate. I understood him to be saying this particular detention, because removal is not reasonably practicable, is no longer segregation pending removal. As I understand it, you are saying it takes its character not from that fact, simply from the existence of the statutory duty. Now, I may be wrong about that, and I will ask Mr Lenehan, but that is how I understand the difference between the two of you.

MR DONAGHUE: Your Honour, I would accept that what I think was the narrowest form of my friends’ argument was put in the way that your Honour just put – it is certainly in writing, and I thought orally there was a more general criticism of the notion of segregation pending removal at all. And it was said there was some wrong turns, including in Justice Hayne’s reasons. Indeed, there was a critique of a passage in Justice Hayne’s reasons which, if your Honours still have AJL20, you can conveniently see in paragraph 61 of AJL20, where the majority have approved it.

At its narrowest – and the Chief Justice puts it to me, I think, at its narrowest – one is talking about qualifying the segregation purpose. As to that, I think all I can say is that if the Act is properly construed as meaning that detention is authorised until the removal actually occurs – and if the reason it operates in that way is because, unless it operates in that way, people who have been denied permission to enter the community for perfectly good reasons would gain entry to the community – and if that provision is, on a Wotton analysis, valid because it pursues what was identified as a legitimate non‑punitive purpose, one needs to constrain whatever the carve‑out happens to be quite tightly.

GAGELER CJ: When we talk about statutory purpose in most contexts, but including in the Lim context, we are talking about what a statutory provision is designed to achieve in fact. The problem here is with the scenario where that which the provision is designed to achieve in fact simply will not occur, cannot occur, at least in the foreseeable future.

MR DONAGHUE: But, your Honour, that is only so if one identifies the purpose that the provision is designed to achieve solely as removal, rather than as part of a continuum with the admission decision as saying the purpose as being for someone who is refused admission maintaining their separation until they leave.

EDELMAN J: Another way of putting the point might be to say the Commonwealth and the plaintiff’s positions may really not be any different in relation to purpose. It is a legitimate non‑punitive purpose to separate an alien from the community pending removal. The question really becomes a semantic one of what do we really mean by “pending removal”.

A point will come at which time it can be said that, even though in some far‑fetched universe, removal might be very remotely possible, no reasonable person would say that this is really a purpose pending removal. Now, the question is, is the limit supposed to be one of absolute impossibility, a far‑fetched universe, a question of likelihood? Where in the spectrum do we draw the limit? But even the words “pending removal” contain within them a semantic limit.

MR DONAGHUE: And that is why, your Honour, when I used those words at the start of my constitutional submission, I said as shorthand.

GORDON J: But shorthand for what?

MR DONAGHUE: A shorthand for a longer version is detained until such time as the non-citizen is removed; the occurrence of the event.

GLEESON J: Until the event actually occurs, if ever.

MR DONAGHUE: The language of paragraph 49 of AJL20.

GAGELER CJ: Adding the words “if ever”, for clarity.

MR DONAGHUE: Until it actually occurs, because unless and until it actually occurs, there comes a point where for some category of non‑citizen, defined by the characteristic that they cannot be removed and by no other characteristic, the Constitution requires their entry. That will be so whether they be murderers, rapists, terrorists, et cetera. They are the people who would otherwise be detained, and yet they cannot be detained.

STEWARD J: So, that goes back to the answer you gave me before lunch, namely, that your case requires us to accept the lawfulness of the segregation of all aliens prior to their admission or removal from Australia.

MR DONAGHUE: It requires you to accept that the Parliament is empowered to impose such a regime.

STEWARD J: Yes.

MR DONAGHUE: It does.

STEWARD J: And it does not offend Chapter III.

MR DONAGHUE: And it does not offend Chapter III. And that is the very state of affairs that was held to be the case in Al-Kateb. So, actually, what my case requires your Honours to do is to conclude that whatever you would have decided, had this come before you for the first time now, it had not been decided, and the Act had not been administered in that way – including in the way that creates the 197C cohort who are most directly affected by what your Honours here decide. They exist because of Al‑Kateb.

I do not know that I can take any of that further, your Honours. I am conscious that I have taken longer than I should have. Can I move, if I may, to the last topic that I want to address. To that end, can I ask your Honours to be given ‑ ‑ ‑

GORDON J: What is this in relation to? Sorry to interrupt.

MR DONAGHUE: This is the test – sorry, no.

GORDON J: This is paragraph 11?

MR DONAGHUE: Yes, or a version thereof. It has evolved as we have heard our friends’ submissions. What I am going to seek to do is to persuade your Honours by giving your Honours a rather cryptic document that we have prepared overnight as an aide‑memoire. What I am going to seek to do is to persuade your Honours that if you are against me on everything I have said so far, that you should not adopt the test that has been urged upon you by Dr Higgins and those who have supported her.

GORDON J: Is that because you put forward what you – was the submission in Sami?

MR DONAGHUE: Yes, in effect. And Mr Herzfeld is going to develop what we say the test should be there.

GORDON J: Is it any different to what was put to Justice Mortimer in Sami?

MR DONAGHUE: Only very slightly, I think, your Honour. But, as Mr Herzfeld put the submissions to Justice Mortimer and will put the submissions to you, he is probably better placed than I to identify that difference.

What this document is intended to do is to assist me in efficiently explaining to your Honours how the Commonwealth sees the consequences of the test, whatever it might be. Your Honours have heard a bit of a smorgasbord of tests, and your Honour Justice Steward asked our friends yesterday separate questions about section 189(1) and 196, about how precisely they should be construed. We did not respectfully hear any clear answer to that question. It was said that they should be construed as limited by the purpose, but in terms of what officers are actually to do in applying those sections, the answer was not clear.

Dr Higgins, in an exchange with your Honours at the end of the day yesterday, advanced a submission that we think is fairly encapsulated by this question: has the Commonwealth proved on the balance of probabilities that it is more likely than not that an alien will be removed from Australia in the foreseeable future? I think that that was where the submission ends up. So, there is no “reasonably practicable” in there for the reasons – and your Honour Justice Jagot had an exchange with my friend about that this morning. We do not see that as being part of the test, but we have to prove on the balance of probabilities it is more likely than not that the alien will be removed in the foreseeable future.

This document is intended to try to highlight the extent to which a test of that kind will operate well beyond an exceptional category of Al‑Kateb‑type affected people, across a whole range of different persons who might need to be removed. We have grouped them into three categories to try to expose the issue. With respect to stateless persons and non‑citizens whose removal is prevented by 197C(3) because the only country to which they could be removed is a country where they have protection obligations, it seems to us that on any of the various formulations, but certainly on the Human Rights Law Centre’s construction, the Commonwealth would not be able to meet that burden because those people are very difficult to remove.

We can prove on the balance of probabilities that – certainly, for most of them; one would need, of course, to look at the individual facts in each case. It does highlight the extent to which, on this construction, a person who is a refugee or who has complementary protection claims, might gain by virtue of the Constitution, effectively, a right to reside in the Australian community. Instead of it just being a non-refoulement obligation – because, often it is hard to remove someone to other than their country of origin, and that is the place they would have a well‑founded fear of persecution. In practical terms, establishing a claim of that kind will often make it impossible lawfully to detain whether or not the person gets a protection visa.

So, even if denied a protection visa, or by reference to any of the characteristics, it may well be that this test would be akin to a constitutionally‑derived right of residence. That is why we say, probably, if Al‑Kateb is overruled on that kind of test – the kind of test that the Human Rights Centre put forward – at the very least, the cohort captured in the dashboard would likely, subject to a case-by-case individualised assessment, need to be removed.

GORDON J: So, that is the whole of 92?

MR DONAGHUE: Yes, at least, at a base position. Indeed, in the second document you have a cohort – a description that the Chief Justice asked me about, which was a wide cohort who were also in long‑term detention, and that was more like 340 people. So that is a possibility. But the 92 are the clearest.

Then, stepping out to category 2, we have tried to identify other categories of non‑citizen where that test proposed is likely to generate a real question about the validity of detention. So, your Honours may recall in M47 (No 2), M47/2018, where the gentleman concerned had been very uncooperative and the Commonwealth did not know who he was. He had been detained over a long period of time, but he gave so many different stories and versions of his background events that we could not work out what country he was from, and any country that the Commonwealth approached was not prepared to accept him.

The Court held in that case – and Mr Herzfeld is going to touch on it – that he did not benefit from Al‑Kateb. But the Commonwealth could not have proved, as a result of his non‑cooperation – but could not have proved, that it was, on the balance of probabilities, more likely that he would be removed in the foreseeable future. So, if your Honours are going to adopt the test along those lines, in our submission, it would need to be qualified in some way, unless it is to extend to the deliberately non‑cooperative person.

GORDON J: Justice Mortimer addressed that issue, did she not?

MR DONAGHUE: Your Honour, to be honest, I cannot recall that, so it may be that Mr Herzfeld will be able to pick that up. The next category down – trying to be efficient – is receiving countries that do not accept involuntary returnees; famously Iran, but there are some other countries. So, if a person could be removed, but only if they volunteer, and they have not volunteered, the Commonwealth could not meet the test. Again, does such a person get the benefit of this ruling, that their detention is authorised or not? On the Human Rights Law Centre’s test, it would seem, unless there is some modification or carve‑out, that they would.

Again, just refusing to be – to request return to a country would be enough. There are some people in that category who are just non‑cooperative, who might be refusing their voluntary return just because they are seeking to procure release in Australia, but there are others who have protection claims that failed. So, there would be people who have a genuine subjective fear that they are going to be persecuted if returned – to Iran, for example – and who are not willing to request return for that reason, but who, nevertheless, cannot be removed. If they do not make such a request, how does the test work in relation to that category?

The next one down, ongoing litigation. This category actually includes the plaintiff at part of the period that our friends rely upon because, as your Honours obviously know, commonly when people are refused admission, they challenge the removal decisions. But the Act often operates – without descending into the detail of it – so that it is at the point where either the delegate’s decision is made or the merits review Tribunal’s decision is made, the decision is said to be finally determined, and having been finally determined, the removal obligation then is engaged.

In practice, their removal is not reasonably practicable because when there is judicial on foot, if the judicial review proceeding succeeds, then the decision will be undetermined and the removal power will not have arisen, and so injunctions would issue. There is actually Federal Court guidance that, in effect, says the Commonwealth should not try to remove people who have ongoing litigation on foot against them for that reason.

Here, our friends made a point of saying, yesterday, well, his application was finally determined on X date and thereafter the removal obligation was engaged, but for almost the entire period up until he made his request for removal under 198, he was litigating about the validity of the visa refusal decision. In that period of time, the Commonwealth was not trying to remove him, consistently with the Federal Court guidance note. If he goes to the Court with a habeas application and says, well, prove to me that it is probable you will be removed in the reasonably foreseeable future, we will fail because we will not even have started. But we will not have started for reasons that are entirely explicable within the framework of the Migration Act.

A related example, your Honour Justice Edelman’s example: the person who seeks habeas the day after they are taken into detention. At that point, no inquiries have been made about – or, it is possible no inquiries have been made pinning‑down identity, travel documents, any of that kind of thing, so it might well be the case that removal will become practicable, but we could not discharge the onus at the time that the habeas application is brought. All of those categories seem to us to create the distinct likelihood that a test of the kind posited shoots far beyond an exceptional narrow limit on the legitimate purpose of segregating pending removal, if there is to be an exceptional narrow limit for those where removal is not possible.

Then there are harder cases, where the position is perhaps less certain in category 3. There are cases where it is hard to work out exactly who a person is, what their origins are, difficulty discerning documents, identity documents have been destroyed. There are cases where you know who the person is, but you need a travel document from a country that is not very cooperative, or who usually cooperate but the timeframe is unclear, or where the law of the foreign country contains wide discretions, the operation of which are uncertain. If the Commonwealth needs to prove that removal will probably happen in the face of uncertain discretions of foreign law of that kind, it might well fail to discharge its burden in those kinds of situations.

There is your Honour Justice Steward’s category (3)(c), the pandemic. The pandemic would, on its face, have required us to release everybody from immigration detention who was on a removal pathway. Not people who were detained while their visa applications were assessed, but we could not have shown, on the balance of probabilities, that we could remove any of them, and we could not have shown when the pandemic was going to end. I do not want to overread the point, your Honours. What we draw from all of this is that if Al‑Kateb is to be overruled, that test fundamentally misaligns with the constitutional principle that your Honours would be seeking to give effect.

BEECH‑JONES J: When you say “that test”, do you mean Ms Higgins’ test?

MR DONAGHUE: I mean Ms Higgins’ test, but I think it was adopted by the plaintiff, at least in the alternative. If what one is concerned with in, I think, all of those scenarios that I have just put to your Honours, except, perhaps, the category 1 scenario, it is just not the case that the purpose of detention has, in any real sense, been shown to have lapsed. It may well be the case that there is a purpose of detention which will be given effect in the ordinary course by officers complying with their duties under the Act, but where it will not be able to be shown, even though that is happening that it is probable that the person will be removed.

GORDON J: Is that the same submission you make in relation to “no real prospect”, the test you put forward in Sami?

MR DONAGHUE: No, I would make a slightly different submission there. That is where ‑ ‑ ‑

GORDON J: Well, is that what ‑ ‑ ‑

MR DONAGHUE: That is Mr Herzfeld, yes.

GORDON J: I see.

MR DONAGHUE: And dealing with the current ‑ ‑ ‑

GORDON J: I shall ask him, then.

MR DONAGHUE: Yes, your Honour, you should. I am about to hand over to him, so your Honour will not have to wait long. The test, if there is to be a test – if Al‑Kateb is to be reopened and overruled – in our submission, should go no further than is necessary to capture the kind of case your Honour the Chief Justice has put to me, where there is just no – well, I am struggling not to put – just “no prospect of removal” such that it can be said that accepting that ordinarily the Act allows segregation pending removal, there is to be a limit of some kind. We would respectfully submit that the limit, as formulated, is one that, if at all possible, needs to be capable of being applied by officers, because as I said earlier, this is not something that falls to be addressed only by courts.

Officers have duties both ways, to detain and to release, depending on what the marker line is drawn. Those officers may not – in fact, usually would not – have any way of knowing about the intricacies of the foreign law or about the negotiations that might be taking place at a high level between governments that would allow them to make any accurate assessment of whether something is probable versus improbable, although they may well be able to assess that steps are practically in train.

In the event that your Honours reach that issue, we urge you not to embrace the Human Rights Centre’s submissions as adopted by the plaintiff, but where your Honours go from there, I will leave to Mr Herzfeld, with your Honours’ permission. Unless ‑ ‑ ‑

JAGOT J: Sorry, Mr Donaghue, are you suggesting any conditions or exceptions or exclusions or to the form of – you mentioned uncooperative persons in detention, persons who deliberately do things to lessen the chance of being able to be removed because they do not want to be removed.

MR DONAGHUE: Your Honour, in my submission, none of those people should get the benefit of a constitutional reading down, if that is the territory that we are in, and in a way that, with respect to your Honour’s question, highlights the ‑ ‑ ‑

JAGOT J: Well, I suppose rather than the constitutional reading down, is there a constitutional – is there an infringement of a limit if the person has put themselves in a position, or reduced the prospect by, for example – in any one of the number of ways.

MR DONAGHUE: In my submission, not, and that was – M47 (No 2) supported that. But there is no infringement of the limit in that kind of situation, even though there is no prospect, probability of removal because not – and the reason is that they are responsible for the absence of the prospect of ‑ ‑ ‑

JAGOT J: That is what I mean. I mean, in one sense you could say that every person who has committed a criminal offence and thereby has either had a visa cancelled or has, in a sense, reduced the prospect of themselves ‑ ‑ ‑

MR DONAGHUE: Made it harder to remove themselves, yes.

JAGOT J: But where do you – or do you say you cannot draw the line; this is part of the problem?

MR DONAGHUE: This is why we say Al‑Kateb should not be overruled, because it is very hard to see how you do draw a constitutional disapplication line that captures that category of person.

EDELMAN J: It may be a question of evidence. So, in relation to loss of a chance, there has long been a line of authorities that say that where someone deliberately destroys the evidence, they do not get the benefit of any presumptions in their favour and usually presumptions are made against them.

MR DONAGHUE: But if we bear an onus – if the Commonwealth bears an onus in a situation like the M47 situation we – I think, as I recall – asked the Court to infer that the reason he could not be removed was because there were things he knew about his background that he had not been prepared to tell us. But that was as high as it could be put. In the situation where there is a burden on the Commonwealth, in my submission, it will not always be able to be answered at the level of evidence, it is more at the level of concept. Does Chapter III mean the Commonwealth cannot constitutionally detain a non‑citizen with no right to enter the community, even though they are actively frustrating their removal?

GORDON J: Well, this is the point. And I note Mr Herzfeld is going to come to it, but in Sami, at least in one of the approaches, it was factored into the assessment of what was the foreseeable future. In other words, one could not make an assessment of what was reasonably foreseeable future because of the roadblocks. The language used was “roadblock”, and what that roadblock was would vary according to the facts.

MR DONAGHUE: But, again, if the burden is on the Commonwealth ‑ ‑ ‑

GORDON J: Well, you could adduce evidence, explain what the roadblocks were.

EDELMAN J: And you might have the benefit of a presumption. That is the point.

MR DONAGHUE: But if what we are trying to prove, your Honours, is that removal is probable ‑ ‑ ‑

BEECH-JONES J: That is Ms Higgins’ test.

MR DONAGHUE: That is Ms Higgins’ test, yes.

BEECH-JONES J: Yes. What about on the alternative test?

MR DONAGHUE: On the alternative test ‑ ‑ ‑

BEECH-JONES J: You are back in M47, are you not?

MR DONAGHUE: Well, I am not sure that you are, your Honour, because there may be no prospect of removing – M47 (No 2) – until he changes his mind. And ditto with an Iranian involuntary removal. It will
depend entirely upon something that is under the control of another party, and difficult to see how we could discharge – how we know anything about how likely it is. In M47’s case, he was prepared to stay in detention for a long period of time. He was a long‑term, I think, 10‑year detainee.

All of these are questions that, in our submission, cannot confidently be answered at the evidential level, but can more realistically at least be answered at the evidential level – the stricter the test to align with the constitutional limit. I think my closing submission on this, really, is that in those kinds of situations, there is no proper basis to say that the detention of the person is punitive. If it is not, why does Chapter III have anything to say about it? So that it, in our submission, should really only be the cases where, consistently with AJL20, all of the hedging duties have been enforced, and you still have a situation of hopelessness, the kind of situation we were prepared to agree existed as at 30 May that the limit should be engaged. But I am straying, I think, into Mr Herzfeld’s territory, so with the Court’s permission ‑ ‑ ‑

GAGELER CJ: Thank you, Mr Solicitor.

MR DONAGHUE: Thank you.

GAGELER CJ: Mr Herzfeld.

MR HERZFELD: Thank you, your Honours.

GAGELER CJ: Mr Herzfeld, are you still going to take 45 minutes?

MR HERZFELD: I think the answer to that must be no, but I still propose to cover three topics. There are, first of all, what the appropriate test is in the event that there is some limit directed to the prospect of removal of a detainee; secondly, to apply that to the facts; thirdly, to address the prospect of further developments after this hearing.

So, the first topic. We submit if Al‑Kateb is reopened and overruled, that the correct limit is not whether removal is more likely than not in the reasonably foreseeable future, it is whether there is a real prospect of removal – and I will explain in a moment what I mean by that.

BEECH‑JONES J: In a reasonably foreseeable period?

MR HERZFELD: No. That is the difference from what was put in Sami, and I will explain what that difference is and why.

May we make four points. The first point is that the decisions in M76 and M47/2018 are inconsistent with the test being more probable than not in the reasonably foreseeable future. Your Honours were already taken to the relevant paragraph in Plaintiff M76 by the Solicitor‑General. It was paragraph 147, which simply referred to relatives in India and then another country, the detail of which was kept confidential. That was said to be sufficient to mean that no constitutional question arose, but plainly that was not a case in which it could be concluded that removal was more probable than not in the reasonably foreseeable future.

Secondly, would your Honours please take up Plaintiff M47/2018, which is volume 5, tab 29, page 1627. If your Honours turn to paragraph 10, your Honours will see the various formulations set out there that were sought by the plaintiff, none of which were simply more probable than not. It was said in paragraph 11 that:

if none of those inferences is drawn, the correctness of Al‑Kateb does not arise –

and it was “not necessary” for the Court in paragraph 12:

to expound the differences –

because none of those inferences did arise. If your Honours turn forward to paragraph 31, your Honours will see there that ‑ ‑ ‑

GORDON J: Paragraph what, sorry, Mr Herzfeld?

MR HERZFELD: Paragraph 31, your Honour:

Because the plaintiff has contributed to the frustration of lines of enquiry to his identity and nationality, what might be established . . . cannot be known. It certainly cannot be inferred that genuine assistance from the plaintiff would not be helpful.

Then, jumping over to paragraph 36:

The Department is still engaged in pursuing the possibility . . . no reason to doubt that this pursuit is genuine . . . options . . . have not yet been exhausted –

Now, if the requisite test is more probable than not for removal in the reasonably foreseeable future, then those findings certainly were not sufficient for us to discharge that onus. So, those decided cases are simply inconsistent with it being sufficient to engage a constitutional question that the Commonwealth is incapable of demonstrating that removal is more probable than not in the reasonably foreseeable future. That is the first point.

The second point is that these cases are consistent with a test that asks whether there is a real prospect of removal. Let me explain what we mean by that. By “a real prospect” we are meaning to pick up the same kind of notion as a real chance in the loss of opportunity cases to which your Honour Justice Edelman referred, such as Sellars v Adelaide Petroleum. So, we are excluding, for the purposes of this branch of the argument, a chance which is merely speculative.

To pick up a point that your Honour Justice Gleeson raised, the mere fact that there are other countries on earth which have not been tried would not be enough in this universe to demonstrate a real prospect. It would not be satisfied simply because one is aiming at the target, to pick up your Honour the Chief Justice’s language, there would need to be a real prospect of hitting it. It would not be sufficient if all that there was was a hope.

There is a useful passage in a case which we have supplied your Honours, Agha v Minister for Immigration [2004] FCA 164; (2004) 205 ALR 377. If your Honours could take that up, please. This was a decision before Al Masri was overruled by Al‑Kateb. So, his Honour Justice Jacobson was grappling with what it meant – what Al Masri meant. If your Honours turn to paragraph 92, his Honour, referring to a “real likelihood or prospect”, said:

This does not mean that removal will happen. Nor does it mean that removal must be more likely than not . . . all that is required is that there be a likelihood which is not remote and which is not far fetched or fanciful.

Our primary submission is, of course, that there should not be a limit of that kind, because detention until removal is actually achieved remains detention for the purpose of removal and segregation from the community until removal is achieved – the primary submission.

If there is some greater limit, it is only when the prospect of removal is not real in the way that I have described that it can be said that any detention apparently for the purpose of effecting removal is not reasonably capable of being seen as necessary for that purpose, because it is only when the prospect is not real that one can say that removal is not capable of being fulfilled – or the end of removal is not capable of being fulfilled.

GAGELER CJ: Why do you leave out the “reasonably foreseeable future”?

MR HERZFELD: That is the third point that I am now about to turn to.

GORDON J: Because Justice Jacobson addressed that in paragraph [93].

MR HERZFELD: He did.

GORDON J: And explained how it worked.

MR HERZFELD: Let me take your Honours to that and tell your Honours what we say about it. His Honour, in paragraph [93], referred to “reasonably foreseeable future” as not being a fixed period; being determined on the facts of the particular case, and in light of those facts, his Honour concluded, at the end of the paragraph:

a period of at least 3‑4 months would be within the reasonably foreseeable future.

GORDON J: The important point there, Mr Herzfeld, is that his Honour was – in typical succinct Justice Jacobson fashion – addressing it by reference to the facts. He looked at Afghanistan; he looked at the considerations of travel, et cetera, in reaching that conclusion. He was not giving an indication of what would be an applicable period forever.

MR HERZFELD: No.

GORDON J: Either for that case or for any other case.

MR HERZFELD: We would embrace that. But, let me just develop this. Consistently with what his Honour said and what your Honour has just put to me, suppose that all that is necessary for removal is obtaining a travel document from a particular country, and it is well known that that country takes about two years to issue a travel document. They always issue it, on my hypothetical, but they take about two years. So, in that case, there is no difficulty in saying there is a real prospect of removal even though one is looking at a prospect that is two years distant. As that example demonstrates, therefore, one cannot impose an a priori limit of, say, a number of months and say, if removal is not achievable or a real prospect within a number of months, the test has failed.

I draw attention to that because – without going to it – her Honour, Justice Mortimer in Sami, at paragraphs 148 to 149, rather did impose an a priori limit of a number of months. As your Honour Justice Gordon, has pointed out, Justice Jacobson was certainly not doing so in that case, or any other. But conversely ‑ ‑ ‑

BEECH-JONES J: Just on the hypothesis you have given there, on one view, because you know it will be given in two years, that is a reasonably foreseeable period, is it not, on the facts of that case?

MR HERZFELD: So that is one way of approaching it. But really, what one is, at bottom, focused on is whether the prospect of removal is real. The question of the reasonably foreseeable future is really just another way of asking the same question, which is whether the prospect is real. If a prospect is in the far‑distant future and it is dependant on myriad uncertain steps, that may well not be a prospect that is real. But we would suggest that the additional verbiage of “reasonably foreseeable future” is really a distraction from that basic question.

It is apt to lead wrongly to a conclusion that while the prospect of removal is a real one, because the time it will take to achieve is uncertain, the detention fails this test.

GAGELER CJ: It is apt to introduce a human dimension to the inquiry.

MR HERZFELD: Your Honour is going to, at this point in the proceeding, have to explain to me a little bit more what your Honour is suggesting, before I either accept or reject that proposition.

GAGELER CJ: You are not going to get more time that way.

MR HERZFELD: We would caution against this additional verbiage because it is apt to lead to a negative answer when there are a number of steps to be taken by a particular country where the duration is uncertain or where there a number of countries to approach, potentially in sequence, because the amount of time that that takes is outside of the control of the Australian Government. So, it is apt to lead to bifurcated enquiry where the plaintiff says, sure, there is a real chance, but you the Commonwealth cannot prove how long it will take and therefore you cannot demonstrate it will be within the reasonably foreseeable future. We would submit that the question, and the only question, is: is there a real prospect of removal? That is the difference from what was put to her Honour Justice Mortimer in Sami.

Fourthly, can I say something about how this works in the practical running of a trial. We accept that, as the detaining authority, once a plaintiff has led evidence showing a question about the lawfulness of their detention, it is for the Commonwealth to demonstrate that it is lawful. Translated here, that means we accept that the Commonwealth must show there is a real prospect of removal. In determining whether that is so at a given point in time, it is necessary, as her Honour Justice Mortimer said in Sami, in paragraphs 157 to 158, to seek to draw inferences from existing evidence, and that may comprise a range of evidence.

To be clear, I am not accepting that the actual finding that her Honour came to in Sami was correct, and that is not in issue in this case because, ultimately, the appeal in that case which might otherwise have reached your Honours was moot because Mr Sami was removed. What I am accepting is that, conceptually of course, it is a question of drawing inferences. I should say, while I mention Sami, picking up something your Honour Justice Gordon raised, factually the question of non‑cooperation did not arise, ultimately, in that case, because, as her Honour concluded at paragraph 98, any non‑cooperation had ended at an earlier point in time.

GORDON J: It was more the reference to roadblocks which her Honour was referring to.

MR HERZFELD: Yes, and that is one of the ‑ ‑ ‑

GORDON J: The roadblocks which may be non‑cooperation or other things, as well.

MR HERZFELD: And that is one of the problems, potentially, with a reasonable foreseeability approach, because unless we, the Commonwealth, can demonstrate how long it will take to resolve those roadblocks, we might fail on the reasonable foreseeability limb even though there is a real prospect. I am going to show your Honours that in the facts of this case. What has occurred in the past in relation to a particular detainee may or may not be probative of whether there is a real prospect now. To give an example, the fact that there have been many attempts at removal previously that have failed may be probative of the fact there is no real prospect of removal now, but it may not be so.

An example, to pick up your Honour Justice Gordon’s language of roadblocks, might be so that if there have been previous roadblocks, and that has meant that removal efforts have stalled in the past, the removal of those roadblocks might mean that, although in the past the removal seemed not to be progressing, now it is, and that is actually what happened in Sami.

So, although what has happened in the past may be probative, it may not be, depending on the facts. Likewise, the length of time that someone has been in detention may be relevant because it may show over a long period that removal efforts have been attempted unsuccessfully. But the length of time in detention may not be probative, if, actually, removal efforts have not been taken over that period of time because, for instance, the person has been involved in litigation for a large part of that time, which, in fact, is the case here. So, they are the four conceptual submissions.

Can I, then, move on to the facts here. If, as we submit, the test is whether there is a real prospect of removal, or even, if necessary, in the “reasonably foreseeable future” – although for the reasons I have given, we would urge against that – we say that test is met here at today’s date. If we need to show that it is more likely than not that the plaintiff will be removed in the “reasonably foreseeable future”, we accept we cannot do so. But, we do say, there is a real prospect of removal, and that is focused on the position in relation to the United States, in relation to which we wish to draw attention to seven features.

Before I do, I should say that Mr Lenehan told your Honours yesterday, at transcript page 18, that subsequent to the evidence filed in this case, Saudi Arabia has definitively said “no”, and although your Honours do not have evidence of that, that is an accurate statement of the Saudi Arabian position. In relation to the United States, would your Honours first of all take up the affidavit of David Gavin, in volume 2 of the book of further materials, at page 525.

GORDON J: While we are doing that, can I just ask this question. Does your “no real prospect of removal” mean so long as it is possible in the distant future?

MR HERZFELD: The answer to that question has to be qualified in this sense, it may be so distant and dependent on so many steps and so many contingencies that it simply becomes speculative.

GORDON J: So, in Sami, the Commonwealth, as I understood it, put it that it – there was the “no real prospect” test. I accept it had the additional limb. Is the additional limb what gave rise to the qualification, so long as it is sufficiently clear that the removal will eventually come to pass? Is that qualification no longer put, and if it is, is it because the “reasonably practicable” limb has gone, or is it because of a different way that you put “no real prospect”?

MR HERZFELD: Well, it is simply because what we are putting is, if I may, a simpler formulation. It is simply where ‑ ‑ ‑

GORDON J: I know it is simpler. I just want to know whether that submission that you made in Sami still holds or whether it has fallen away.

MR HERZFELD: It does not have to be certain that “removal” will come to pass. It is sufficient that there is a real chance of “real prospect” of removal.

GORDON J: Thank you.

GAGELER CJ: Now, you were going to give us seven points, what do they add up to – that we have asked and the Americans have not said no?

MR HERZFELD: No, it is more than that.

GAGELER CJ: All right.

MR HERZFELD: Significantly more than that. In light of the time, may I do it this way. I am going to give your Honours the references without taking your Honours to all of the material. The first point is by reference – and, as I say, I am going to give your Honours the references, please do not go to the material, it will just take too long. Book of further materials, volume 2, page 525 is the affidavit of David Matthew Gavin, and his affidavit evidences direct ministerial involvement in the approaches made to Five Eyes countries, including the United States, in circumstances where approaches to Five Eyes countries had not previously been made, as your Honours saw yesterday. What his affidavit shows is that the Minister for Home Affairs:

wished for the Department to progress all avenues in the plaintiff’s case, including approaching the United States –

Mr Gavin described that understanding at page 531 of the book. His understanding was that:

No stone should be left unturned, would be an apt summary.

Then the other responsible Minister, the Minister for Immigration, Citizenship and Multicultural Affairs also agreed with that approach. That is the first point – high‑level ministerial involvement.

Secondly, the progress of discussions with United States officials is stepped out both in Mr Stephens’ affidavit and the affidavit of Ms Balzary, and also in the affidavit of Ms Lenagh‑Maguire. Again, without taking your Honours to each of the documents, may we highlight these points.

JAGOT J: Are you going to give us the page reference?

MR HERZFELD: Of course, I will. Thank you, your Honour. In the document which Mr Lenehan took you to, which is volume 1, page 154, the United States officials said that – or the relevant United States official said he would be:

happy to “have a hard look” at the case once he has the additional information –

and that would have to involve more information “about the criminal issue”. The affidavit of Ms Lenagh‑Maguire at paragraph 7 explains that that United States official is the same official as the one responsible for the subsequent emails in the bundle. It also makes it clear that his title is Director of Refugee Admissions. Next, as your Honours saw at page 164, further information was provided to the United States official which provided a deal of detail about the plaintiff’s criminal history, and it also explained in the context of risk and rehabilitation, the steps that the Department had arranged for “tailored sex offenders rehabilitation” program for him, though that had not yet commenced.

Now, the detail of that criminal offending being provided did not cause the United States immediately to reject the plaintiff’s removal. To the contrary, the material shows the United States continuing to actively consider his case. At page 167, your Honours will see that on 17 October, the U.S. Director of Refugees Admissions said that he had:

reviewed the information –

that includes the criminal history, and he had consulted with the Department of Homeland Security, but he still needed to talk to the Australia desk at the State department. What then transpired in the affidavit of Ms Lenagh‑Maguire at page 5 is that on 27 October – so, that is only about a week and a half ago – that U.S. Official said:

I just spoke with –

another U.S. Official:

about this and he will run it by his leadership for consideration as a matter of policy. Once we have that steer, and if it is possible, we can discuss the likelihood of this person being approved to the US Refugee Admissions Program.

The most recent position is that of an email received yesterday, which Mr Lenehan mentioned, and which your Honours have been provided with.

GORDON J: Is this the “Standby” email?

MR HERZFELD: It is. He is still checking with the second U.S. Official who was the one running it by its leadership to see if they had news to share, and we are told to:

Standby.

So, it appears that news is imminent. Now, all of that suggests that consideration by the United States of the plaintiff’s case for inclusion in the Refugee Admissions Program is considering with full knowledge of his criminal offending.

Thirdly, Ms Balzary’s affidavit in volume 2 at page 460, contains evidence by her of the only comparable cases she is aware of – this is at paragraphs 19 and 20. In both cases where there was an attempt at removal of specific individuals to the United States, the requests were very swiftly rejected. In the case of BHL19, it was within about a week, and Ms Lenagh‑Maguire’s affidavit at paragraph 7 explains that involved the same U.S. Official as the one who was responsible for the present inquiries. Then, in the case of Plaintiff M47/2018, the request was rejected in the same meeting that it was requested.

So, the contrast between those two very quick refusals and the consideration being given in this case by the United States officials underscores the significance of the consideration being given. If the United States had wanted to reject the case quickly, it could easily have done so as it did on the previous two occasions. The fact that it has not suggests the United States is giving this case real considerations.

Fourthly, precisely because of the uniqueness of the United States’ response, Ms Balzary has no previous cases from which to draw experience and it is for that reason that she has given the evidence about it being “impossible” to predict what the next steps might be or whether they would succeed.

It is precisely for that reason that we cannot demonstrate to your Honours that it is more likely than not that the United States will accept the plaintiff. But plainly there is a real prospect that it will. It is not some vague prospect in the hazy distance. It is not a prospect which is only speculative. It is a recent and concrete prospect being actively pursued, but of which we cannot say it is more likely to succeed precisely because of its uniqueness, and that indeed provides a real‑life example of one of the hypothetical examples to which the Solicitor‑General took your Honours.

EDELMAN J: Why is it not speculative as to whether it has anything more than a negligible chance of success?

MR HERZFELD: Because the United States officials, in their conduct – if they wanted to simply reject this plaintiff they could have done so. They have not done so. They appear to be considering it and have said it is a question of policy. Now, it is true we do not know what the policy question is, but it is evident that there is a real question for them of policy.

GLEESON J: Does not the prospect here have to be assessed against the fact that the Australian government has not made this approach before now?

MR HERZFELD: It does, and that in fact indicates that one cannot say, well, this is a repeat prospect of something which has happened before and is likely to fail. We simply do not know. But one can say it is not a real prospect and, with great respect, your Honours, with a cohort of difficult to remove people, it is inevitably going to be the case that there are real questions about whether other countries are going to take people in this circumstance, and your Honours have to approach this with some appreciation of the practical difficulties of removal and that is one of the things Justice French said in WAIS, and that is why we say that this prospect is a real one. It is not simply some country on earth. There is an active negotiation with someone, with another country, which they are considering as a matter of policy, where there is ministerial involvement.

BEECH-JONES J: Mr Herzfeld, can we infer that the United States authorities are aware that there is some urgency to the business associated with this hearing?

MR HERZFELD: Your Honours can certainly infer that we have been following up on them on a number of occasions. Unless someone corrects me, I do not think that the emails have specifically said – the emails have not specifically drawn attention to this hearing. Whether the United States officials on their own are aware of what is happening on AUSTLII, I am not sure that I can speculate on.

BEECH-JONES J: Or someone has spoken to them? We do not have telephone messages or anything on that, do we?

MR HERZFELD: Not suggested.

GORDON J: And we are limited to the US?

MR HERZFELD: I am focusing only on the US. That is the only basis upon which I put a real prospect of removal.

GORDON J: Thank you.

GAGELER CJ: How many of your seven points are we through now? Is that four?

MR HERZFELD: We are at four.

GAGELER CJ: At four, okay.

MR HERZFELD: I am conscious of the time. The fifth point are the facts in the further amended special case at paragraphs 32 and 33.

GORDON J: Is this still four?

MR HERZFELD: Fifth point.

GORDON J: Fifth point, thank you.

MR HERZFELD: Those were general statements about the experience of the Australian Government removing someone with offending such as the plaintiff. And again, they are a further reason why we cannot demonstrate, on the balance of probabilities, that this is likely to succeed. But those general statements do not deny the reality of the United States’ engagement and, evidently, active consideration. It will be almost impossible for the Commonwealth to demonstrate that removal is more likely than not, whenever a situation arises that has not been encountered before. And it is one of the problems with the test, but, certainly in a case like this or in any other case where there is a unique circumstance, one is readily able to say, well, there is a real prospect that it might succeed – that is the fifth point.

The sixth point is that there is some material in the plaintiff’s affidavit at book of further materials, volume 1, page 432 at paragraph 50, where some evidence was given in a previous case on behalf of the Commonwealth that, where there is not an agreement for a removal of a cohort, as there has been previously with the United States – where there is an individual agreement necessary, it will require high‑level ministerial involvement. And that was general evidence, of course, not given by reference to the facts here. But the facts here do show high-level ministerial involvement, and so that is a further reason why the fact that such involvement might be necessary does not deny the reality of this prospect.

GLEESON J: Mr Herzfeld, would you say that Saudi Arabia was a real prospect until it definitively said no?

MR HERZFELD: If one looks at the earlier material, there was some pretty strong noes, and so we have not sought to advance that.

The seventh and final point about the facts, is that the plaintiff has put before your Honours in Mr Stephens’s affidavit a deal of material concerning United States law, and, as Mr Lenehan said at page 19 of the transcript, although the prima facie position is that the plaintiff cannot be admitted to the United States because of his criminal offending, there are discretions which allow that to be waived. Without going to them, those discretions are at page 289 of volume 1, and the relevant discretion may be exercised for:

humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

And the existence of that waiver ability is consistent with the fact that the United States officials did not simply reject the plaintiff out of hand when they became aware of his criminal offending – the key question at the moment is one of policy, not of law, and that is consistent with the existence of the waiver powers. And those waiver powers are not simply statutes writ in water. There is evidence which shows that they are exercised, and so when your Honours have time, look at page 383, 388 and 395 of the book. Your Honours will see statistics about the exercise of those waiver powers, both public interest and humanitarian purposes, both of which categories might cover the plaintiff, which shows that they are exercised for tens and hundreds of people every year.

So, this is not a discretion which exists on the books but not in reality; it does exist in reality. So, again, we cannot demonstrate on the balance of probabilities that these discretions will be exercised favourably. We cannot tell your Honours how long they might take, but there is certainly a real non-speculative prospect, in light of the communications, that the United States will accept the plaintiff. The third ‑ ‑ ‑

GAGELER CJ: Mr Herzfeld, all of these submissions are focused on, I think, questions (3) and (4), what would you say, if you were to look at questions (1) and (2)?

MR HERZFELD: Question (1) and (2) are based on the position at 30 May and there is an agreed fact in the special case.

GAGELER CJ: Which is against you?

MR HERZFELD: Yes. So, I would say nothing about those questions, factually. But I would say something factually about what might happen next, and this is the last point – and I will be brief about it. The position in relation to the United States is fluid. It is quite possible that there will be some developments between the end of this hearing and the time any orders are made. In fact, the communication on Monday is an example of that, and that might materially affect either side’s case. At one extreme, it might show real progress with the United States negotiations; on the other hand, it may show a termination of those negotiations.

What we would propose is this: we would propose that, first, either party have liberty to file an affidavit exhibiting any further communication to or from the United States which that party thinks is material. That would simply be evidence, not submissions. It would only be evidence that a party thinks is material, not everything. But, conversely, it would not require agreement that the evidence is material; it would simply be that a party thinks it is material. That is the first part of the proposal.

Secondly, if either party thinks there needs to be further submissions, your Honours would grant liberty to apply for permission to make those further submissions. That is not a grant of permission now to make further submissions; it is simply a grant of liberty to apply to make further submissions and then a court or a single judge can decide whether to permit that. That is really necessary to avoid the courts making orders which do not reflect the reality at the time of the orders.

It was suggested by Mr Lenehan, I think at a directions hearing that, in a habeas case, the evidence has to be the evidence at the time of the hearing, and that is not correct. We have supplied your Honours with an extract from Clark and McCoy’s text on habeas corpus, and it does talk about the time at which legality is determined, and it talks about it being determined at the time of hearing. But that is in contradistinction to a false imprisonment case, where the question is, what was the legality of the detention at the time of the imprisonment? The authors are drawing a distinction between that and a habeas case where the question is the time of the hearing.

There is nothing special about habeas, which says that if there is a development one way or the other after the hearing, the court is somehow precluded from hearing about it, subject always to the fact that in a trial each party will have closed their evidentiary case, and so it will be necessary for leave to reopen those cases to be granted.

GAGELER CJ: Is there a difference between the parties as to this regime you are proposing?

MR HERZFELD: No doubt in about 30 seconds, we shall all find out. I should just say, your Honour, I am told that the United States may be aware of the proceeding because of the use of a pseudonym, but has not been told anything about the hearing date or anything else.

GORDON J: They have been at least told about the orders preventing disclosure of identity.

MR HERZFELD: Yes, so that ‑ ‑ ‑

GORDON J: And in that document you just handed up it was clear that they are aware of the High Court case.

MR HERZFELD: It is, but I have not been handed – it is the document that I just handed up, yes.

GORDON J: There are others, as well, in the bundle attached to the affidavit of Balzary.

MR HERZFELD: Yes, but not about the hearing date or anything like that.

EDELMAN J: Mr Herzfeld, this regime you are proposing is not consistent with how habeas applications historically have been dealt with. Historically, the application was made, it was adjudicated, and if new facts came to light then either a re‑detention occurred or, if the habeas had been refused, a new application was brought.

MR HERZFELD: Normally that is because, on the return of the order to show cause, there was a determination at the end of the hearing about lawfulness – if the Court reserved, which was not the historical practice. There is simply nothing dealing with what happens if there is a development between the end of the hearing and the Court’s decision, which is what I am dealing with in my proposal.

EDELMAN J: But reservation was rare.

MR HERZFELD: Precisely, yes. Obviously – I will not say what I was about to say. Your Honours, those are the submissions that we would make.

GAGELER CJ: Thank you. Mr Lenehan, do you have anything in reply?

MR LENEHAN: Yes, your Honour. Can I start with the test.

GORDON J: Would you mind speaking up, please.

MR LENEHAN: I am so sorry, your Honour, yes.

GORDON J: Thank you.

MR LENEHAN: We say the test involves the ultimate question: whether the purpose is reasonably capable of being achieved. That is both the statutory test and the constitutional test. As to the statute, see Al‑Kateb at 3. As to the Constitution, see your Honour the Chief Justice’s judgment in CPCF, at paragraph 374. We ‑ ‑ ‑

JAGOT J: Sorry, I missed, you just faded into ‑ ‑ ‑

MR LENEHAN: I am so sorry, your Honour, I will stay close to the microphone.

JAGOT J: I missed the second one.

MR LENEHAN: CPCF, at paragraph 374. Now, aligning with what was said by both Chief Justice Gleeson in Al‑Kateb at 3 – in paragraph 1, I am sorry, your Honours – and also by Justice Jacobson in Agha, the authority that our friend took your Honours to. We accept that that translates to removal not being possible in the circumstances that prevail now, and also not possible in the reasonably foreseeable future. As to what our friend says about the second qualification, can I invite your Honours to go to, quickly, Justice Mortimer’s very helpful reasons, in the joint book of authorities, and she deals ‑ ‑ ‑

BEECH‑JONES J: That is in Sami?

MR LENEHAN: Yes, in Sami. So, that is in book 8, tab 48, and I am looking at 2784 of the joint book.

GORDON J: Could you give us the paragraph number, because some of us have it loose.

MR LENEHAN: Yes, so starting 144, then 145 you see her Honour deal with Agha, and then I think it is – I think the paragraph that Mr Herzfeld describes as involving some sort of, I think he called it a priori time approach, see 148, that is to be read talking about a matter of months in the case here, because what her Honour immediately goes on to do is to answer the questions that your Honours have asked a number of us speaking at the lectern in the last two days at 149, and sets out there the idea that these things will depend upon the particular circumstances, and see at 2786, making the point:

If a person has not been detained for very long, and little or no attempts have been made, it may take more time to establish what process is required.

And her Honour goes on to say that is a “relevant factor” in Mr Sami’s case. It is equally a relevant factor here, because attempts at removal in that case, likewise here, have been underway for many years and read on, we say, that incorporates her Honour’s observation which your Honour Justice Gordon has referred to on a number of occasions regarding roadblocks in paragraph 50. These things are fact-sensitive, they will depend upon the circumstances. The in terrorem submission that our friends make regarding these matters would be rejected because all of those things are catered for in this kind of test.

I am reminded also that adopting that formula test means that we do accept “likely” has shades of meaning and we do accept, or at least, we are putting our case on the basis that “likely” means a substantial chance, a real chance, and that is an approach that found favour with your Honour Justice Gageler in Vella interpreting a statute at paragraph 108.

Now, our friend has suggested that the difficulty with all of this – this was put on a number of occasions – is that the world is not black and white, and this is going to pose some sort of insuperable difficulty in terms of departmental officials exercising duties under the Act. But one thing that your Honours will take from the incomplete dashboard document and NZYQ caseload snapshot is that seemingly those same people had very little difficulty in determining whether the removal of people in my client’s position is or is not reasonably foreseeable. That is what they are addressing in these documents.

And we say that, therefore, the test that we put is one that does present no real‑world difficulties, does pick up your Honour the Chief Justice’s point, bring within it the human experience, and is therefore to be preferred by the Court.

Now, if I need more than that, we would embrace what our friend Dr Higgins says, and we would adopt her approach to the test. But of course, I am representing my client and I do not need to go that far. So, that is the way we put it. I hope I have just answered all of your Honours’ questions during the hearing about that.

To move then directly to your Honour Justice Beech-Jones’s threatened question, that is, how we are putting the question of pending removal, can I tell your Honours that we put in the way that we did in paragraph 13 of the reply. The point, really, is that that I made a few times yesterday. That is, the segregation aspect is properly regarded as a consequence or effect of detention, and that is really just to say that it is the pending removal aspect of the purpose which is the important part. But that also means that one has to understand that it is something that might actually happen.

Now, your Honours have heard our friend try to bring his case within AJL20. Can I say, that case does not help; in fact, it goes the other way. In terms of the way in which he says that it supposedly decided the issues that arise before your Honours, of course, your Honours have our point about what your Honour Justice Edelman said at paragraph 106 in relation to the construction point and what was said by the plurality at 26 regarding the constitutional aspect.

But you find that idea imbued in the reasons, starting at the passage at paragraph 28 where – and I took your Honours to this yesterday – where one finds the quote from S4 and the idea that removal must happen. The passage that our friend took you to at paragraph 45 – and this was the point that your Honour Justice Steward made – has that same idea. He skipped over the words, the notion that the detention must end, but they are there. For that reason, your Honour Chief Justice Gageler, put to our friend – and we embrace this – that one then reads the words in paragraph 49:

actually occurs –

with the brackets, “if ever”. Because of that, when one looks to the passages in terms of construction in Justice Hayne’s reasons in Al‑Kateb – including the passage that our friend took your Honours to, at paragraph 217 where his Honour says:

the detention required is for an indeterminate length of time. Its duration is bounded by the occurrence of events which –

and then as our friend noted, you find the italicised words:

if they happen –

point to something which now runs into AJL20 because of what I have just identified. The assumption of AJL20 is because of the hedging duties that your Honours identified – detention will end. To give your Honours just another example of that, where you find the same error, we say, in Justice Hayne’s reasons, see paragraph 231 in which his Honour’s reasons display, we say, a similar error because he says there:

there can be no certainty about whether or when the non‑citizen will be removed –

So, one can largely put to one side as a subsidiary argument the various points that have been made about the legislative history. The problems that our friend now has in terms of construction are really AJL20.

That then leaves me with a few subsidiary points. In terms of Lim, our friend made the point that the legislative scheme in issue in Lim, he said, is the same as that in issue here. Can I invite your Honours to look, when you come back to it, at pages 33 and 34, where two things are clear. First, the outer time limit that your Honours know existed in that case was not sufficient on its own. There needed to be the equivalent of 198(1). But then, see page 34, it is in the context of both those things, so the equivalent of 198(1), but also the outer time limit that their Honours said that the scheme was valid.

Another subsidiary point is what our friend gets from Al‑Kateb and the point that he wants to make about segregation. We say there is no majority in that position in that case for his point because, again, one sees Justice Callinan expressly reserve that issue. Certainly, there is no analysis of the kind that I tried to take the Court carefully through by reference to Lim as to how the Court in Lim got to the narrowly‑tailored purpose that applies to the position of aliens. So, we say that that does not get our friend very far.

In terms of the final factual submissions put by Mr Herzfeld, in terms of the supposed high‑level ministerial involvement, your Honours will have seen that that is not discussions between Ministers of State on both sides of the sea. It is an internal Australian Government discussion telling departmental officials in a somewhat desperate tone to take all measures that are possible. So, there certainly is not any evidence in that your Honours have that there has been some attempt to contact American officials at the ministerial level.

The significant thing about the sequence in terms of the disclosure of my client’s criminal history is that the communication that our friends say, or said, initially was so significant, was the notion of the hard look communication – which your Honours saw in the emails – which was all made before the criminal history, is disclosed. Since then, there has been very little, and the email from Ms Maguire’s affidavit that our friend took your Honours to – which is almost the end point – makes clear that all that is being considered is if it is possible at a policy level.

That is before, and separate from, the point that I made before about United States law at the moment precluding our client from being removed to that place because he is an inadmissible alien who would require not just the exercise of one discretion but, if your Honours look at the flow chart material which is in the book, you will see that it involves a series of discretionary decisions, which all seem to be, in our submission, very remote.

So, we do say that your Honours would comfortably conclude that my client does satisfy the test as I have identified it, and therefore your Honours would answer the questions in the special case book in the way that we have indicated in our written submissions.

Unless your Honours have any further questions for me, those are the submissions in reply that the plaintiff makes – in terms of the future of
procedure, your Honours, that could really be dealt with to the extent anything of that nature arises in the usual way by our friends, if they desire to, making an application to reopen. That is what we submit should happen.

GAGELER CJ: Thank you, Mr Lenehan. The Court will adjourn momentarily to consider the course it will take.

AT 4.17 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.33 PM:

GAGELER CJ: The order I am about to pronounce is the order of the Court with which at least a majority agrees. The Court will publish its reasons for the order in due course. The order is:

The questions stated for the opinion of the Full Court in the further amended special case filed on 31 October 2023 be answered as follows:

Question 1: On their proper construction, did sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the detention of the plaintiff as at 30 May 2023?

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 2: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff as at 30 May 2023?

Answer: Yes.

Question 3: On their proper construction, do sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the current detention of the plaintiff?

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 4: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they currently apply to the plaintiff?

Answer: Yes.

Question 5: What, if any, relief should be granted to the plaintiff?

Answer: The following orders should be made:

1. It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:

(a) the plaintiff’s detention was unlawful as at 30 May 2023; and

(b) the plaintiff’s continued detention is unlawful and has been since 30 May 2023.

2. A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.

Question 6: Who should pay the costs of the further amended special case?

Answer: The defendants.

The Court will now adjourn until 9.30 am tomorrow for the pronouncement of orders and otherwise until 10.00 am.

AT 4.36 PM THE MATTER WAS ADJOURNED