THE PROPER CONSTRUCTION OF THE PROVISIONS OF THE ACT AUTHORISING DETENTION
11 Relying on Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219, the applicant contended that, on the proper construction of the scheme of the Act providing for administrative detention, his detention by or on behalf of the Commonwealth would only be lawful if it were for one of the following three or possibly four purposes:
(a) removing the applicant from Australia;
(b) receiving, investigating and determining an application for a visa by the applicant to enter and remain in Australia;
(c) determining whether to permit the applicant to make a valid application for a visa; or
(d) possibly, determining whether to grant the applicant a visa without an application by him.
12 Given the factual position as at 26 July 2019 described above, it is accepted that s 198(6) of the Act was engaged, thereby requiring that the applicant be removed from Australia "as soon as reasonably practicable". It is therefore not in contest that, if any of the four purposes specified above apply to the applicant's detention as and from 26 July 2019, it could only be the purpose of removal. It was the applicant's case that, because s 196 of the Act must be read together with s 198, it was only if his removal was being pursued and carried into effect as soon as reasonably practicable that his administrative detention could be lawful. The applicant further contended that a writ of habeas corpus or an order in the nature of such a writ was the available and appropriate remedy to alleviate his unlawful detention.
13 The Commonwealth denied that it is a requirement for the lawfulness of administrative detention of an "unlawful non-citizen" under the Act that the actions of its officers must have attributed to them one of the purposes contended for by the applicant and, specifically in the applicant's situation, the purpose of removal simpliciter or removal as soon as reasonably practicable. The Commonwealth contended that the detention of an unlawful non-citizen under the Act is authorised, and in that sense lawful, until:
(a) a detaining officer no longer holds the relevant reasonably suspicion referred to in s 189 that the person is an unlawful non-citizen; or
(b) one of the events in s 196(1) of the Act occurs, namely:
(a) he or she is removed from Australia under section 198 or 199; or
(aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
14 The Commonwealth accepted that the obligation under s 198 to remove an unlawful non-citizen as soon as reasonably practicable imposes a duty upon its officers and that, in the case of the applicant, s 198(6) required that the applicant be removed from Australia "as soon as reasonably practicable". However, the Commonwealth contended that, whilst any failure to perform that duty was amenable to an order for mandamus, the requirement imposed by s 198(6) that an unlawful non-citizen be removed as soon as reasonably practicable is not a necessary condition of the lawfulness of the detention of the unlawful non-citizen. As the absence of that condition does not result in the detention being unauthorised or unlawful, the Commonwealth contended that a writ of habeas corpus is not available to enforce the release of an unlawful non-citizen in detention. Accordingly and at the level of legal principle, the Commonwealth contended that the applicant's claim that he should be released by an order of this Court must fail.
15 The contest between the parties principally raises for determination the proper construction of s 196 of the Act which deals with the duration of administrative detention authorised by the Act. I will commence that constructional exercise by addressing the applicable principles of construction.
16 First, s 196 must be construed by reference to its terms, but the statutory context and in particular that given by ss 189 and 198 as well as the object of the Act specified in s 4, needs to be brought into account because s 196 must be construed by reference to the whole of the Act and the scheme of which it forms part. As the High Court (French CJ, Hayne, Crennan, Kiefel and Keane JJ) said in S4 at [42] by reference to the observations of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [70] (references omitted):
"[t]he meaning of [a] provision must be determined 'by reference to the language of the instrument viewed as a whole'". And an Act must be read as a whole "on the prima facie basis that its provisions are intended to give effect to harmonious goals". Construction should favour coherence in the law.
17 Second, it will be necessary to construe s 196 in light of the constitutional constraints upon administrative detention which flow from Chapter III of the Constitution ("Chapter III"), which provides for the separation of judicial power from the executive and legislative powers. That is because (as all parties accept), ss 189, 196 and 198 of the Act should be interpreted "so far as its language permits, so as to bring it within the application" of constitutional power: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 68 (McHugh J) citing Attorney-General (Vict.) (Ex rel. Dale) v The Commonwealth (1945) 71 CLR 237 at 267 (Dixon J); see also Lim at 14 (Mason CJ).
18 Third, the principle of legality operates to impose a presumption or rule of construction which, as expressed by Mason CJ in Lim at 12 (when considering the predecessor scheme to that now in issue) provides that "[u]nless a clear and unambiguous intention to do so appears from a statute, it should not be construed so as to infringe the liberty of the subject". Dealing with the legislative provisions here in issue, and by reference to Coco v The Queen (1994) 179 CLR 427 and Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [30], Gleeson CJ in Al-Kateb v Godwin (2004) 219 CLR 562 at [19] expressed the principle of legality as providing that (references omitted):
Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness".
19 As Besanko J recently discussed in Burgess v Commonwealth [2020] FCA 670 at [91]-[94] by reference to the authorities there cited, the principle of legality should not be pushed beyond its limits and its application may be more limited where the extent of the encroachment on personal liberty is the issue raised by the issue of construction.
20 Division 7 of Pt 2 of the Act (ss188-197AG) provides for the detention of unlawful non-citizens. Division 8 (ss 197C-199) provides for the removal of unlawful non-citizens. The text of those provisions critical to the determination of the issue at hand is as follows:
Section 189 - Detention of unlawful non-citizens
(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
…
Section 196 - Duration of detention
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.
(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(5) To avoid doubt, subsection (4) or (4A) applies:
(a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and
(b) whether or not a visa decision relating to the person detained is, or may be, unlawful.
(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
(6) This section has effect despite any other law.
(7) In this section:
"visa decision" means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
Section 198 - Removal from Australia of unlawful non-citizens
Removal on request
(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
…
Removal of unlawful non-citizens in other circumstances
….
(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
21 My consideration of the issue at the heart of the contest, namely, whether s 196 authorises the ongoing detention of an unlawful non-citizen when the removal purpose of that detention is no longer being carried into effect as soon as reasonably practicable, is assisted by High Court authority. Relevant authorities address the constitutional limitations upon administrative detention and the proper construction of the critical provisions providing for the current scheme for administrative detention under the Act (ss 189, 196 and 198) as well as predecessor provisions which provided for administrative detention pending the deportation of an alien whose presence in Australia was unauthorised.
22 Each of the judgments of the High Court in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322, Al-Kateb, S4 and Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582 include observations relevant to the proper construction of the current scheme. As will become apparent, the observations made by the High Court (French CJ, Hayne, Crennan, Kiefel and Keane JJ) in S4 about the operation of that scheme and the criteria for the lawful detention of an unlawful non-citizen are on point and should be followed. Some of the key observations in S4 are referred to with apparent approval by the most recent High Court authority in which that scheme has been considered: M96A at [8], [21], [22], [27] and [29]. I will discuss those observations shortly. Before doing so, it is convenient to identify two further High Court authorities of relevance because of the reliance placed upon those seminal authorities in the more recent cases.
23 Lim was decided in December 1992, in the same month that ss 189, 196 and 198 were inserted into the Act. However, those provisions did not come into force until 1 September 1994. The regime established by ss 189, 196 and 198 was therefore not in force and not under consideration in Lim. In Lim, a declaration was sought that ss 54L, 54N and 54R of the Act were beyond the legislative power of the Commonwealth Parliament. The relevant provisions at issue were set out in the judgment of the plurality (Brennan, Deane and Dawson JJ) at 16-19. The provisions considered in Lim can, as Hayne J said in Al-Kateb at [209], "be seen to follow the same pattern" as the critical provisions of the current Act. Broadly speaking s 54L of the Act as considered in Lim corresponds to s 196 of the Act in its current form. Section 54N corresponds with s 189, s 54P(1) corresponds with s 198(1) of the Act in its present form and s 54P(3) with the current s 198(6). The significance of Lim is that the Court considered the validity of those provisions in light of the constitutional limitations on administrative detention which flow from Chapter III. In that context what I later describe as the "seminal holding in Lim" is of significance to the constructional issues here raised.
24 Koon Wing Lau v Calwell (1949) 80 CLR 533 should be introduced next. The issue before the High Court in that case was whether the War-time Refugees Removal Act 1949 (Cth) ("WRR Act") was a valid exercise of the legislative powers of the Commonwealth Parliament. Relevantly, the Court held that s 7 of the WRR Act did not confer a power to keep a deportee in custody for an unlimited period without relation to the purpose of the deportation. The terms of s 7(1) of the WRR Act which empowered administrative detention and the meaning of "deportee" are set out in the judgment of Dixon J at 581. The reasoning in Calwell was significant to the approach to construction adopted by Hayne J (with whom Heydon J agreed and with whom, on the construction of the Act, McHugh J agreed) in Al-Kateb (see at [224]-[233]).
25 S4 concerned the validity of a short-term visa and a temporary visa granted to the plaintiff non-citizen which had the effect of denying that person a capacity to apply for a permanent protection visa. The visas were granted in circumstances where, immediately prior to their issue, the plaintiff's detention had been prolonged for some two years for the purpose of the Minister deciding whether, pursuant to s 46A(2) of the Act, to lift the bar and permit the plaintiff to make a valid application for a permanent protection visa. It was not in contest that the plaintiff had been lawfully taken into administrative detention or that he was thereafter lawfully detained for the purpose of the Minister deciding whether he should be permitted to make a valid application for a protection visa. Nevertheless, as the Court said at [21], central to the resolution of the issues raised in S4 "is an understanding of what follows from the observation that the plaintiff's detention for the purposes of the Minister considering whether to exercise [the power to permit the plaintiff to make a valid application for a protection visa] was lawful".
26 For that purpose, as the Court observed at [22], it was useful to do what the Court ultimately did and that was "to identify when detention under the Act is authorised". In so doing the High Court stated the construction of the provisions of the Act which authorise detention under the Act. It is true, as the Commonwealth contended and as already stated, S4 did not involve any challenge to the lawfulness of the detention of the plaintiff in that case, however, that does not diminish the force of the observations made by a unanimous High Court about the proper construction of the provisions authorising administrative detention under the Act.
27 The High Court's discussion commenced at [22] with the observation that "the Act does not authorise detention at the unconstrained discretion of the Executive". The power given to the Executive is the power "to detain non-citizens in the context, and for the purposes, of the Executive's statutory power to remove from Australia an alien who is an unlawful non-citizen". The Court then stated that "[t]he statutory power to remove an unlawful non-citizen is coupled with the statutory obligation (s 198) to effect that removal 'as soon as reasonably practicable'" (at [23]).
28 The Court (at [25] and [26]) then turned to consider the holding in Lim. It was regarded as important that in Lim (at 33 Brennan, Deane and Dawson JJ; at 53 Gaudron J and at 65-66 McHugh J) it was held that, on the basis of the limitations imposed by Chapter III "the provisions of the Act which then authorised mandatory detention of certain aliens were valid laws if the detention which those laws required and authorised was limited to what was reasonably capable of being seen as necessary for the purposes of deportation or to enable an application for permission to enter and remain in Australia to be made and considered": S4 at [26]. The seminal nature of that holding in Lim has been acknowledged on many occasions: see M96A at [21] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ).
29 From the holding in Lim (which for convenience I will call "the seminal holding"), the Court in S4 stated that "[i]t follows that detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected" (at [26]). The Court then explained that, lawfully, the purpose of detention under the Act must be one of the three purposes identified earlier (at (a), (b) and (c) of [11] above) including, relevantly, the purpose of the removal of the detainee from Australia. Each of those observations were endorsed in M96A at [22]. At [28], the Court in S4 then said this (emphasis added):
Because detention under the Act can only be for the purposes identified, the purposes must be pursued and carried into effect as soon as reasonably practicable. That conclusion follows from the purposive nature of detention under the Act. But it is a conclusion that is reinforced by consideration of the text and structure of the Act, understood against the background of fundamental principle.
30 The Court continued at [29] (emphasis added, references omitted):
The duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time. Otherwise, the lawfulness of the detention could not be determined and enforced by the courts, and, ultimately, by this Court. And because immigration detention is not discretionary, but is an incident of the execution of particular powers of the Executive, it must serve the purposes of the Act and its duration must be fixed by reference to what is both necessary and incidental to the execution of those powers and the fulfilment of those purposes. These criteria, against which the lawfulness of detention is to be judged, are set at the start of the detention. No doubt, the facts to which these criteria are to be applied may, and often will, vary according to the course of inquiries and decisions that are made along the way. In cases like the present, where inquiries were made about whether to permit the plaintiff to apply for a protection visa, application of the criteria which fix the duration of detention varies according to such matters as whether the detainee is found to be a refugee within the meaning of Art 1 of the Refugees Convention. But the criteria to be applied at any time during the currency of the detention in determining its lawfulness do not, and may not, vary.
31 Further, relevant observations were made in the context of the Court's application of the criteria it had identified to the particular circumstances of the plaintiff in S4. At [33], the Court said that "[t]he duration of the plaintiff's lawful detention under the Act was thus ultimately bounded by the Act's requirement to effect his removal as soon as reasonably practicable". Further still, and of central importance to the issues that arise here, at [34] the Court stated that the purpose for the plaintiff's detention "had to be carried into effect as soon as reasonably practicable" or, in other words "had to be undertaken as soon as reasonably practicable" and stated that (emphasis added):
Departure from that requirement would entail departure from the purpose for his detention and could be justified only if the Act were construed as permitting detention at the discretion of the Executive. The Act is not to be construed as permitting detention of that kind.
32 At [35] the Court re-iterated that the plaintiff's detention "had to be brought to an end by his removal from Australia as soon as reasonably practicable" stating that "[o]therwise, the plaintiff's detention would be unlawful".
33 A helpful outline of what the Court relevantly stated in S4 was recently given by Besanko J in Burgess at [132]:
In [S4] at [25]-[29], the High Court made the point that detention under and for the purposes of the Act is limited by the purpose for which the detention is being effected and therefore in considering whether the detention is justified, it will always be necessary to identify the purpose of the detention. There are three permissible purposes of detention under the Act and they are: (1) removal from Australia; (2) receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia; and (3) determining whether to permit a valid application for a visa. The Court also said that the purposes must be pursued and carried into effect as soon as reasonably practicable and that the duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time …
34 The applicant relies upon the following principles which he contended are apparent from the discussion in S4:
(a) first, where the Executive seeks to justify detention on the basis that it is for the permissible purpose of removal from Australia (S4 at [26]), that purpose must be "carried into effect as soon as reasonably practicable" (S4 at [34]-[35]);
(b) second, if that purpose is not carried into effect as soon as is reasonably practicable, that "entail[s] departure from the purpose for … detention" (S4 at [34]), in which case the Act does not "permit" that detention (S4 at [34]), and it is therefore "unlawful" (S4 at [35]);
(c) third, these propositions represent the proper construction of the Act; they also reflect fundamental constitutional limitations on the Executive's power to detain (S4 at [26]);
(d) fourth, it is not the case that the Act authorises the continued detention of a person "until" the "event" of removal is effected, irrespective of whether the purpose of removal is in fact being pursued. But if the Act were to be so construed (as the Commonwealth submits) it would authorise "departure from [a valid] purpose" of detention, and would be to that extent unconstitutional; and
(e) fifth, the lawfulness of a person's detention is capable of being scrutinised by the Court from time to time, and custody that commences as lawful may become unlawful in the event that the purpose of detention is not carried into effect as soon as reasonably practicable (S4 at [28], [34] and [35]).
35 The applicant also relied upon what Mason CJ said in Lim at 11-12 as follows:
What initially begins as lawful custody under Div. 4B may cease to be lawful by reason of the failure of the Executive to take steps to remove a designated person from Australia in conformity with Div. 4B. Thus, a failure to remove a designated person from Australia "as soon as practicable" pursuant to s. 54P(1), after that person has asked the Minister in writing to be removed, would, in my view, deprive the Executive of legal authority to retain that person in custody. So also would a failure to remove a designated person from Australia pursuant to the terms of s. 54P(2) and (3).
As earlier discussed s 54P(3), to which Mason CJ referred, corresponds with s 198(6) of the Act in its current form.
36 Reliance was also placed by the applicant on M76:
(a) first, upon the observation made by French CJ at [30] that the continuing detention of the unlawful non-citizen dealt with in that case "would only have been lawful while steps were being taken to arrange for her removal as soon as reasonably practicable from Australia to Sri Lanka"; and
(b) second, on the following observations of Crennan, Bell and Gageler JJ at [139] made by reference to what I have called the seminal holding in Lim (emphasis in original and references omitted from original):
The necessity referred to in that holding in Lim is not that detention itself be necessary for the purposes of the identified administrative processes but that the period of detention be limited to the time necessarily taken in administrative processes directed to the limited purposes identified. The temporal limits and the limited purposes are connected such that the power to detain is not unconstrained. So much is clear from their Honours' separate observations that Ch III is not contravened by laws which require or authorise the executive to detain non-citizens in custody "in the context and for the purposes of", and in that sense as an "incident of", processes allowing for application for, and consideration of, the grant of permission to remain in Australia, and providing for deportation or removal if permission is not granted.
37 The Commonwealth accepted that by reason of the Chapter III limitations upon administrative detention the Act could only validly confer a power on the Executive to detain, where that power is for a permissible purpose including, relevantly, the purpose of removing the detainee from Australia. However, the Commonwealth contended that whilst (by reason of s 198) there was a statutory obligation to bring about removal as soon as reasonably practicable, that requirement was not reflective of any constitutional limitation. Alternatively, what I understand the Commonwealth to have been contending is that there is no temporal restraint referable to the purpose of the detention imposed by Chapter III on laws providing for administrative detention. In that respect, the Commonwealth contended that the existence of s 198 as providing an end point for the removal of a detainee was sufficient to bring the scheme of the Act within the seminal holding in Lim.
38 Both the primary and the alternative contentions of the Commonwealth must be rejected. They are both denied by the authorities which have already been discussed. The temporal restraint imposed by Chapter III is acknowledged in the observations of Crennan, Bell and Gageler JJ in M76 (set out at [36] above) made by reference to the seminal holding in Lim. As their Honours explained (emphasis added) "[t]he temporal limits and the limited purposes [of detention] are connected such that the power to detain is not unconstrained". In S4 the Court (at [26]) referred to the constitutional requirement expressed in the seminal holding in Lim and referred to its temporal dimension at [29] where their Honours said that the detention "must serve the purposes of the Act and its duration must be fixed by reference to what is both necessary and incidental to the execution of those powers and the fulfilment of those purposes". That observation identified, in terms similar to those referred to in M76, the connection between the constitutionally required purpose of administrative detention and the constitutionally required limitation upon the period of such detention.
39 The discussion in M96A at [33] refers to the connection between "the temporal limits of detention" and "the limited permissible purposes of administrative detention" and assumes that connection to be a necessary condition of the validity of administrative detention. That the Chapter III limitations are both purposive and temporal in nature and the latter relational to the former is also apparent from the following observation of Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ in M96A at [21] as follows (emphasis added, references omitted):
As has been reiterated on a number of occasions in this Court, the majority in [Lim] said that laws with respect to aliens within s 51(xix) of the Constitution, which authorise or require the Executive to detain non-citizens in custody, will not contravene Ch III of the Constitution if, and only if, "the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered". This requires two matters to be considered. First, it requires the purpose of the detention to be identified. Secondly, it requires consideration of the time necessarily involved in the particular case to deport the non-citizen or to receive, investigate, consider, and determine an application for permission to remain in Australia.
40 The constitutional constraints upon administrative detention must be reflected in the Act for the Act to validly confer upon the Executive the power to administratively detain an unlawful non-citizen. Those constraints, as explained already, are constraints upon both the purpose and the duration of detention, the two being connected because the duration of detention must be fixed by what is necessary and incidental to the execution of the power to detain and the fulfilment of its purpose (S4 at [29]).
41 The High Court in S4 considered that the Act was valid. As the Court said at [22] "the Act does not authorise detention at the unconstrained discretion of the Executive". That conclusion could only have been made if the Court was satisfied that the Chapter III constraints upon conferral upon the Executive of a power to detain were reflected in the Act. It is ss 189 and 196 which confer upon the Executive the power to detain. The Court recognised that the Executive's power to detain a non-citizen was conferred upon the Executive by the Act "in the context, and for the purposes, of the Executive's statutory power to remove from Australia an alien who is an unlawful non-citizen" (at [23]). The judgment in S4 proceeds on the basis that the requisite constitutional temporal limitation is reflected in the requirement made by s 198 that the detainee be removed from Australia "as soon as reasonably practicable". The requisite constitutional connection between what Crennan, Bell and Gageler JJ in M76 referred to as "the temporal limits and the limited purposes" is only reflected in the Act if ss 189 and 196 are each connected in their purposive operation to s 198 so that the temporal limitation in s 198 is fixed by reference to the fulfilment of the purpose of the detention authorised by either ss 189 or 196.
42 That the Court in S4 regarded the s 198 temporal limitation of removal "as soon as reasonably practicable" to be connected in operation to the purpose of the powers conferred by the Act to detain is apparent from the following observations which although set out and emphasised already, are worthy of repeating:
• Because detention under the Act can only be for the purposes identified, the purposes must be pursued and carried into effect as soon as reasonably practicable (at [28]).
• The duration of the plaintiff's lawful detention under the Act was thus ultimately bounded by the Act's requirement to effect his removal as soon as reasonably practicable (at [33]).
• The purpose for his detention had to be carried into effect as soon as reasonably practicable. That is, consideration of whether a protection visa may be sought by or granted to the plaintiff had to be undertaken and completed as soon as reasonably practicable (at [34]).
43 The importance of the maintenance of the connection between purpose and duration, including for constitutional validity, can be seen in what followed at [34]. As the Court observed at [34] a "departure" from the requirement that the purpose of the detention (that is removal) be carried into effect as soon as reasonably practicable "would entail departure from the purpose [of the] detention and could be justified only if the Act were construed as permitting detention at the discretion of the Executive". As their Honours went on to state (at [34]), detention of that kind is not permitted and, after again emphasising that "detention had to be brought to an end by…removal from Australia as soon as reasonably practicable", the Court concluded that if it were otherwise the detention would be "unlawful" (at [35]).
44 Once it is recognised, as I consider the judgment in S4 does recognise, that the obligation imposed by s 198 is necessary to fulfil and does fulfil the constitutional requirement that the duration of the detention must be fixed by reference to what is both necessary and incidental to the execution of the power to detain and the fulfilment of its purpose, it is not possible to read the directive in s 196(1)(a) as authorising detention "until" the fact or the event of the removal of the detainee from Australia, as the Commonwealth contended.
45 Whilst the phrase "until…he or she is removed from Australia" is capable of supporting the existence of a temporal restraint upon the duration of the detention, those words alone are not capable of supporting the requisite restraint referrable, as it is, not to the fact of removal but to the time and effort necessary, as a matter of reasonable practicability, to effectuate the purpose of the detention.
46 Once that is realised, the word "until" does not have the force for which the Commonwealth contended. Nor, when s 196 is read together with s 198, as for the reasons indicated above it must be, does the word "until" provide the insurmountable textual impediment to the construction for which the applicant contends, a construction which, for the reasons indicated, is consonant with the construction adopted by all members of the Court in S4. That ss 189, 196 and 198 "interact", must be read together and in context is also apparent from the analysis undertaken by Hayne J (with whom Heydon J agreed and with whom, on the construction of the Act, McHugh J agreed) in Al-Kateb (see at [223]-[225] and [237]). Reading the provisions together, Hayne J concluded (at [225]) that:
The present legislation, prescribing the period of detention as it does, may therefore be read as providing for detention for the purposes of processing any visa application and removal…Here the period of detention is governed by the requirement to effect removal ''as soon as reasonably practicable''.
47 The need to read ss 196 and 198 relationally was also the approach to construction adopted by Gleeson CJ (in dissent) in Al-Kateb where (at [22]) his Honour said that in s 196 the period of detention of the appellant is defined by reference to the fulfilment of the purpose of removal under s 198. That observation is consistent with his Honour's view in Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at [4] where his Honour said "[t]he period of detention required by s 189 of the Act is prescribed by s 196, which must be read together with s 198". That the proper approach to construction requires ss 189 and 196 to be read in context with and relationally to s 198 is evident from each of the judgments in Al-Kateb irrespective of whether the judge concerned formed part of the majority.
48 That ss 196 and 198 must be read together, the latter imposing a condition on the operation of the former, is also apparent from the reasoning in M96A. At [19] Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ set out that s 196(1) provides that an unlawful non-citizen must be kept in immigration detention until the happening of one of the four events listed in s 196(1). At [20] and in relation to the first event dealt with by s 196(1)(a), namely removal from Australia under s 198, their Honours said that "it is a condition that removal must occur as soon as reasonably practicable" (emphasis added).
49 The Commonwealth's contention that by reason of s 196(1) detention is unlawful "until" the detainee is in fact removed from Australia also faces the difficulty that s 196(4) read, as it has to be, with s 196(5)(a), contemplates that detention can be unlawful prior to the detainee being removed from Australia as a consequence of there being no real likelihood of the detainee being removed from Australia in the reasonably foreseeable future. The terms of those provisions are set out above. The extrinsic material of relevance is discussed by Besanko J in Burgess at [109]-[113]. Of particular relevance is a passage in the Explanatory Memorandum to the Migration Amendment (Duration of Detention) Bill 2003 (Cth) which dealt with the insertion of subss (4)-(7) into s 196 of the Act. In relation to what became s 196(5)(a), the Explanatory Memorandum said this (in relation to Sch 1 and at [11]):
[196(5)(a)] would cover circumstances where a court finally determines that there is no real likelihood that an unlawful non-citizen will be removed from Australia in the reasonably foreseeable future, and therefore the detention is unlawful.
50 A Full Court of this Court (Robertson, Griffiths and Bromwich JJ) considered S4 in ASP15 v Commonwealth (2016) 248 FCR 372. The appellants claimed that an unreasonable delay in the Minister considering whether they should be granted a visa had resulted in their unlawful detention. After the primary judge handed down his decision, the appellants were released and the issue of their continued detention became moot. However, the appellants maintained their claim for damages for false imprisonment. In that context, the Full Court considered the lawfulness of the administrative detention of the appellants and held that even if there had been an unreasonable delay in the Minister determining their application for a visa, their detention had not been unlawful.
51 The Commonwealth relied upon ASP15 and submitted that I am bound to apply an aspect of it to which I will return. The applicant also relied on ASP15 contending, as I accept, that it favours his case and not that of the Commonwealth.
52 The Full Court in ASP15 held that, unlike the position of the plaintiff in S4, the appellants' applicable circumstances had not engaged s 198 and the obligation to remove them from Australia had not been enlivened. It was for that reason that the Full Court came to the view that (assuming the existence of unreasonable delay) the detention of the appellants had not been unlawful. In distinguishing S4, the Full Court at [35] said this:
The effect of the High Court's decision was that because the removal obligation had been enlivened under s 198(2), it applied to all other pending steps. To find otherwise would be inconsistent with the dominant statutory obligation to remove "as soon as reasonably practicable" in s 198(2) and would also be inconsistent with the confined statutory authorisation for detention pending such removal. This context is essential to understand the passages in Plaintiff S4 at [28]-[29] and at [35] which were relied upon by the appellants.
53 At [38], the Full Court again emphasised that it was only in the context of s 198 having been triggered in the circumstances considered in S4 "that detention beyond the s 198(2)-sourced requirement to make the decision under s 46A(2) 'as soon as reasonably practicable' could become unlawful".
54 For an alternative submission I need not address, the applicant did contend that the Full Court had wrongly confined the holding in S4 to circumstances in which s 198 had been engaged. However, given that s 198 was engaged in relation to his own circumstances and that the obligation to remove him was enlivened as of 26 July 2019, the applicant correctly contended that the observations in ASP15 support the conclusion that his detention became unlawful if his removal from Australia was not effected as soon as reasonably practicable.
55 The approach to construction taken by the Full Court in ASP15 confirms my own view of how the relevant provisions were construed in S4. In particular, as the Full Court's discussion at [39] reveals, s 196 must be read with s 198 and where s 198 is engaged, it has "effect" on the operation of s 196, the effect being that the purpose of the detention authorised by s 196 is conditioned by the requirement in s 198 for removal "as soon as reasonably practicable".
56 There are further submissions made by the Commonwealth which need to be considered. The Commonwealth relied on a number of passages in the authorities to support its contention that detention is lawful until one or other of the events specified in s 196(1) occurs. To take one example, the Commonwealth relied on [30] of S4. However, that paragraph, where what s 196(1) provides for is described by reference to the terms of that provision, is to be read in context. When so read, it should only be understood as descriptive of the events specified by s 196(1), rather than conclusive as to the lawfulness of detention pending one or other of those events occurring. What the Court said about the lawfulness of detention is extensively dealt with elsewhere in the judgment and specifically in those observations to which reference has already been made. Other observations from other authorities to the effect that s 196(1) provides for detention until one of the events it specifies occurs relied upon by the Commonwealth must also be read in context, the observations made by Hayne J at [226] in Al-Kateb being another example. What was there said in the first two sentences (upon which the Commonwealth relies) must be read with the remainder of the paragraph, including that it is only so long as the time for performance of the duty under s 198 "has not expired, [that] s 196 in terms provides that the non-citizen must be detained".
57 The observations relied upon by the Commonwealth which, in my view, run most strongly against the construction which the authorities relied upon by the applicant support, are those made by Kiefel and Keane JJ in M76 at [182]-[183] as follows:
The scheme of the Act contemplates that only those aliens who hold a visa are entitled to be at large in the Australian community. In this context, the absence of an express limitation upon continued detention where removal is not practicable within a reasonable time is not "silence" on the part of the legislature. The circumstance that the language of ss 189, 196 and 198 is not qualified by any indication that the mandate requiring detention depends upon the reasonable practicability of removal within any time frame is eloquent of an intention that an unlawful non-citizen should not be at large in the Australian community: the mandate in s 189 is unqualified in its terms, and the operation of the mandate in s 196(1) is, in terms (subject only to the possibility of the Minister making a "residence determination" under s 197AB of the Act), until the unlawful non-citizen is removed from Australia under s 198 or the unlawful non-citizen is granted a visa.
It has been said that the authority to detain conferred by s 196(1) is constrained under s 198(2) by the purpose of removal within a reasonable time, and that where this purpose is presently incapable of fulfilment, the authority to detain expires. But to say that is to fail to recognise that ss 196 and 198 are parts of a legislative scheme which includes s 189. Even if it were to be accepted that s 196(1) ceased to authorise the continuing detention of an unlawful non-citizen, and the detainee were released, s 189 would then be engaged to require immediate detention in order to serve the evident purpose of preventing unauthorised entry into the Australian community.
58 One of the issues before the Court in that case was whether the continued detention of the plaintiff was authorised by ss 189, 196 and 198 of the Act. The plaintiff's circumstances raised for determination the same issue that had been raised in Al-Kateb of whether (as expressed by Crennan, Bell and Gageler JJ at [142]) administrative detention under the Act is lawful when there is no real prospect that removal of the non-citizen will be practicable in the reasonably foreseeable future. The majority of the Court determined that the plaintiff's detention was authorised without reconsidering the holding in Al-Kateb. Justices Kiefel and Keane did consider the correctness of Al-Kateb (as did Hayne J in a separate judgment). The observations made by them and set out above form part of that consideration. Whilst obviously commanding great respect, those observations do not form part of the ratio of the judgment in M76.
59 The difficulty in accepting that those observations should govern the proper construction of ss 189, 196 and 198 is that they are not readily reconciled with the preponderance of High Court authority, including Al-Kateb itself.
60 The minority in Al-Kateb did not contemplate that s 189 would operate to require the immediate detention of a non-citizen who has been released from detention. The minority favoured the plaintiff's release into the Australian community in circumstances where his continued detention was regarded as unlawful.
61 The majority in Al-Kateb did not regard the plaintiff's detention to have been unlawful. However, in what Kiefel and Keane JJ themselves recognised as the leading judgment of the majority in Al-Kateb (see M76 at [175]), Hayne J was clear that discharge from detention was the only available disposition if detention was unlawful (at [243]). There was no room in that conclusion for s 189 to have the operation which the observations of Kiefel and Keane JJ set out above are founded upon. Indeed, Hayne J went so far as to doubt that once released, a capacity to detain would revive (at [243]).
62 The observations of Hayne J in Al-Kateb, in particular at [236] and [237] are suggestive of the need to construe s 189 coherently with the way in which s 196 is construed. Both s 189 and 196 authorise detention. Both provisions must be similarly constrained by the limitations imposed by Chapter III. Both must be read with s 198, at least where s 198 has been engaged. So much may be seen from the observations made by Gageler J in M96A at [42]-[45] that s 189 is conditioned by s 198 in the same way in which s 196(1) is conditioned by that provision. It is therefore not correct to say, as the Commonwealth contended, that release can only lead to immediate re-detention of a non-citizen because of the requirement made by s 189 of the Act (and see further [175] below).
63 Including by reference to the observations made by Kiefel and Keane JJ in M76, the Commonwealth contended that the scheme of the Act only contemplated the binary outcomes of entry into Australia on the grant of a visa or, alternatively, removal from Australia. It must be accepted, including by reference to the object in s 4 of the Act upon which the Commonwealth also relied, that the scheme of the Act intends that a non-citizen will either be permitted to enter and remain in Australia by the issue of a visa or must be removed from Australia where his or her presence in Australia is not permitted by the Act. However, those binary outcomes are the ultimate outcomes that the scheme provides. There are temporary dispositions pending those ultimate dispositions being effectuated that the scheme contemplates. Detention is one such temporary disposition. A "residence determination" made by the Minister under s 197AB of the Act, which involves a non-citizen residing outside of a detention centre, is another available temporary disposition. It may be accepted that these are the sum of the temporary dispositions contemplated by the Act where the powers and processes provided for by the Act are lawfully engaged. But the Act also recognises that the powers provided to detain an unlawful non-citizen may not be lawfully exercised and that unlawful detention will be the subject of court orders including that the unlawful non-citizen be released from detention. Sub-sections (4)-(5) of s 196 recognise that an unlawful non-citizen may be released from detention (see the discussion at [49] above). The conclusion that the Act does not contemplate a temporary disposition in which an unlawful non-citizen is not held in detention is not open unless it is the case that the Act intends that the unlawful detention of an unlawful non-citizen may continue and may not be alleviated by an order requiring the detainee's release. That is not the case. To hold that it is would offend the principle of legality and, in the absence of clear language, that approach to construction should not be adopted.
64 For all those reasons, I have respectfully come to the view, that the observations made by Kiefel and Keane JJ in M76 should not govern my approach to construction or the approach I take to relief.
65 It remains to address some further authorities relied upon by the Commonwealth. Those authorities, it may be accepted, support the Commonwealth's contention that s 196(1) authorises the continued detention of a non-citizen detained under s 189(1) until one or other of the events listed in s 196(1) actually occurs and that the remedy for a failure to discharge the duty under s 198 is an order for mandamus.
66 In WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [49] and [56], French J said:
That the removal must take place "as soon as reasonably practicable" after a written request or final refusal of a visa (ss 198(1) and (6)) does not, on the face of it, import any express or implied limitation upon the obligation to detain the unlawful non-citizen under s 196.That obligation or liability is terminated by the event of removal. There are no words in the section which condition it upon the expiry of a time which is "reasonably practicable" to effect the removal after the satisfaction of one of the conditions in s 198.
…
The remedy for a failure in the discharge of [the s 198] duty may be mandamus, possibly directed to the Minister.
67 The reasoning of French J has been followed by single judges of this Court on a number of occasions: see NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 at [6]-[7] (Beaumont J); SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 at [10], [12]-[13] (Selway J); SHFB v Goodwin [2003] FCA 294 at [8]-[12], [23]-[25], [30] (von Doussa J); NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 224 at [10]-[11], [64] (Emmett J); Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 52 at [15] and [36] (Whitlam J).
68 The Commonwealth also relied on a decision of the Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54. As its submission stated, at first instance, Merkel J had identified two "implied" limitations in s 196: first, that it was limited in its operation to such time as the Minister was taking all reasonable steps to remove a detained person from Australia as soon as reasonably practicable; and second, that it only operated where there was a real likelihood or prospect of removal of the person in the reasonably foreseeable future. Relevantly, the Full Court rejected the first limitation, saying at [134]:
This limitation emerged from a reading of the power to detain in s 196(1) as subject to the duty imposed upon the Minister by s 198(1) to remove as soon as reasonably practicable. Although the two provisions are part of the same scheme, we would not read them together in this way. If the Minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable the detention would, in our view, still be lawful and the appropriate remedy would be an order in the nature of mandamus to compel the Minister to take the steps required for the performance of his duty.
69 The difficulty for the Commonwealth is that all of those authorities pre-date Al-Kateb, M76, S4 and M96A and are inconsistent with the observations in those cases upon which the applicant relies. They are also inconsistent with the observations made by the Full Court in ASP15 that where s 198 has been engaged it does have "effect on" the operation of s 196(1). Furthermore, for the reasons given by the applicant, the observations relied upon by the Commonwealth from Al Masri are obiter and, as is apparent from [135] of Al Masri, if the Full Court had come to the view that the detention in question was unlawful, the appropriate remedy would have been relief in the nature of habeas corpus.
70 It is for the proposition that mandamus is the appropriate remedy for a failure to comply with the duty in s 198 that the Commonwealth relied upon ASP15 and the judgment of Murphy J in CMA19 v Minister for Home Affairs [2020] FCA 736 which followed it. Reliance was placed on the following observation made at [42] of ASP15:
In the case of detention pending a visa decision, failure to do so within the required time renders the Minister liable to the issue of a writ of mandamus to compel him or her to perform their statutory duty. However it does not render invalid the provision which authorises detention in the first place. So long as the Migration Act validly continues to authorise detention, there can be no claim for false imprisonment or habeas corpus.
71 As to the appropriate remedy, ASP15 and CMA19 are distinguishable for reasons largely discussed already. The observations made about the appropriateness of mandamus were made in the context of s 198 not having been engaged and, as a consequence, the detention in question being lawful. That mandamus and not habeas was regarded as the appropriate remedy turned, as the last sentence quoted above reveals, on whether or not the detention was lawful.
72 There can be little doubt, in my view, that if administrative detention under the Act is unauthorised and unlawful, habeas is the appropriate remedy.
73 The writ of habeas corpus remediates the unlawful detention of an individual: Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 76 (Isaacs J). In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at [159], Gageler J referred to the availability, "long settled at the time of the establishment of the Commonwealth, of habeas corpus to compel release from any Executive detention not affirmatively authorised by statute". In Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1, Gummow J said (at [108]) that "habeas corpus is available to every individual detained in this country without legal justification". Turning then to cases where the lawfulness of immigration detention was considered, in Calwell, Latham CJ at 556 said that if it were shown the detention was not being used for a lawful purpose, "the detention would be unauthorised and a writ of habeas corpus would provide an immediate remedy". In that case, Dixon J at 581 adverted to an entitlement to "discharge on habeas" should detention not be lawful. The availability of a writ of habeas corpus to alleviate unlawful administrative detention is also confirmed in Lim at 19-20 (Brennan, Deane and Dawson JJ) and at 51 (Toohey J). In Al-Kateb, the availability of habeas corpus was confirmed in the judgment of Gleeson CJ at [24]-[28] and by Gummow J (at [88], [108] and [113]). In that case, Hayne J referred at [224] to the observations of Dixon J in Calwell as to an entitlement to "discharge on habeas" and at [243] stated that "if the detention is not lawful, it must end" and that if the detention "is unlawful, the only order which a court may make is an order requiring the person to be discharged from detention".
74 The capacity of this Court to make an order in the nature of a writ of habeas corpus was not in contest and should not be doubted. A recent discussion of the authorities is found in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394 (Wigney J). That case, as well as Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308 (Gray J), is an example of a proceeding in this Court in which an order requiring the release of a person from immigration detention was made.
75 Returning to the proper construction of the critical provisions of the Act, it follows from the foregoing discussion that I accept that the fourth principle contended for by the applicant and set out above at [34] is correct. Administrative detention under the Act is not necessarily authorised "until" one or other of the events specified in s 196(1) has occurred. For administrative detention under the Act to be lawful it must be detention for a purpose which the Act provides for, removal from Australia being one such permissible purpose. Where there is a departure from the permissible purpose for the detention, the detention will no longer be lawful irrespective of whether one or other of the events specified in s 196(1) has in fact occurred. That is so because it is a condition of the lawfulness of a detention that the detention be for a permissible purpose.
76 Where the permissible purpose is removal of the detainee from Australia, for the reasons already addressed and at least where s 198 is engaged by the detainee's circumstances, the detention which is authorised by s 196 of the Act is conditioned by the requirement in s 198 that the detainee be removed from Australia "as soon as reasonably practicable".
77 What it is that constitutes the departure from the permissible purpose of detention where that purpose is removal, is the subject of the first and second principles for which the applicant contended. In my view the principles there contended for should also be accepted.
78 It is clear that detention has to have or has to be supported by a permissible purpose or, in other words, the detention must be for a permissible purpose. It is departure "from the purpose for [the] detention" (S4 at [34]) which is the marker of unlawfulness.
79 What is also clear is that the purpose of or for the detention "is assessed objectively by reference to all of the circumstances": M96A at [22] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ). As Gleeson CJ observed in Al-Kateb at [17] "the motives or intentions of the Minister, or the officers referred to in s 198" are not relevant.
80 Next, it is necessary to identify what it is that marks a departure from the permissible purpose of removal of the detainee from Australia such that the detention of the detainee is no longer for that purpose in circumstances where a condition upon that purpose is that the detainee be removed from Australia as soon as reasonably practicable.
81 The applicant's answer to that question is found in its first and second principles and was given by reference to the observations made in S4 at [34] that a departure from permissible purpose is marked by a "[d]eparture from the requirement" that the "purpose for [the] detention had to be carried into effect as soon as reasonably practicable", or, alternatively, that the permissible purpose of the detention "had to be undertaken and completed as soon as reasonably practicable". On that basis, the applicant contended that where, as here, the permissible purpose for the applicant's detention was his removal from Australia, the detention was rendered unlawful upon the purpose of removal having been departed from when it was not carried into effect as soon as reasonably practicable. Expressed by reference to the statement of Mason CJ in Lim at 11-12 quoted above at [35]), the applicant also contended that it was the failure to take steps (or sufficient steps) to pursue the removal of the applicant from Australia that marked the departure of the permissible purpose from the applicant's detention.
82 That test or formulation calls for an assessment of whether and to what extent the permissible purpose was, or is, being pursued and operates on the assumption that the pursuit of the applicant's removal from Australia as soon as reasonably practicable was a necessary condition of the existence of that permissible purpose.
83 Whilst the Commonwealth denied that the failure to take steps to pursue or effectuate the purpose of removal was a marker of unlawfulness, it did not contend for any particular test or criteria for assessing when detention would be rendered unlawful if a condition upon the lawfulness of the detention is the requirement that the detainee be removed from Australia as soon as reasonably practicable. Broadly stated, the Commonwealth contended that insofar as the detention under the Act needed to be supported by a permissible purpose, the applicant's detention has throughout the relevant period in contest been for the purpose of his removal from Australia. The Commonwealth argued that the relevant question turned on the existence of the purpose rather than the quality or vigour of the pursuit of it. Contrary to the view I have arrived at, that contention did not countenance that a condition upon the lawfulness of the detention or, to put it another way, that a necessary condition for the existence of the permissible purpose was the requirement that the purpose be effectuated as soon as reasonably practicable.
84 The Commonwealth did not contend for an alternative test of the kind that may be suggested in the reasoning of Hayne J in Al-Kateb. In Al-Kateb, Hayne J reasoned that it was the fact that the time for performance of the duty to remove as soon as reasonably practicable had arrived which marked the point of departure of purpose from detention. As Hayne J said at [231], the legislature has authorised detention "until the first point at which removal is reasonably practicable" and at [251] "the purpose of detention for removal would not be spent until it had become reasonably practicable to remove the non-citizen concerned" (see also McHugh J at [34]).
85 The Full Court in ASP15 acknowledged that reasoning at [31] (emphasis in original):
The majority in Al-Kateb further held that detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if removal was required by s 198, but not effected. That is, detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if each of the criteria in s 198 was satisfied and removal was reasonably practicable. If a person continued to be detained after this, it would inevitably follow that the detention was for some purpose other than removal as authorised and required by s 198(2).
86 However to say that was the view of the majority overlooks the fact that although Callinan J formed part of the majority in Al-Kateb, at [295] his Honour said this:
The words ''as soon as reasonably practicable'' in s 198 of the Migration Act are intended to ensure that all reasonable means are employed to remove an illegal entrant, and not to define a period or event beyond which his detention should be deemed to be unlawful.
87 Whether unlawfulness is to be marked by the failure to carry into effect or pursue the removal purpose or alternatively by the first point in time at which removal is reasonably practicable but not effectuated, was not the subject of submissions. There is a significant difference between those two approaches and it seems to me that only one of those approaches can be correct. I prefer the approach adopted by the unanimous High Court in S4. To my mind, it is more apt for an objective assessment of whether a detention is for a particular purpose. It is the existence or absence of a purpose which is the subject of the assessment and not whether or not the purpose has been achieved. The approach suggested by the reasoning of Hayne J is focused upon the achievement of the purpose and essentially deems the purpose not to have existed if it was not effectuated in the time available for its effectuation. A failure to achieve a purpose within a particular time may assist in demonstrating that the purpose does not exist after the time for its effectuation has passed, but such a failure should not be regarded as determinative of whether the requisite purpose had or had not existed either at all or during any particular period of the prior detention. Further, the approach calls for an assessment which would be very difficult to make.
88 If it is the case that the arrival of the time for the removal of the applicant as soon as reasonably practicable marks the point of departure of purpose from the detention, the result which I have arrived at would not have differed. For reasons that I will come to, the Commonwealth bears the onus of proof. It was therefore for the Commonwealth to establish that the earliest time for the removal of the applicant from Australia as soon as reasonably practicable had not been reached. The Commonwealth made no attempt to establish that proposition. No evidence was led even to establish the extent of the period necessary to effectuate or to have effectuated the applicant's removal from Australia as soon as reasonably practicable. The Commonwealth submitted that whether the applicant should have been removed by now or earlier was not a judgment for the Court to make in a case like this. However, the Commonwealth did say that the Court could not find that "the moment [to have removed the applicant] has arrived and that there has been a failure to do it". It also contended in relation to the second period that it could not be said "that it is yet practicable to remove the applicant to Lebanon". I did not, by those submissions, understand the Commonwealth to be asserting that the lawfulness of the applicant's detention was to be assessed by reference to whether the time for his removal as soon as reasonably practicable had been reached. If, contrary to my understanding, that was the intended submission, the submission would be based on a misunderstanding of who it is that bears the onus on the issue. If the proper question is whether the first point in time for removal from Australia as soon as reasonably practicable had arrived, it was for the Commonwealth to establish that that time had not yet arrived. It did not do so.
89 Consistently with the unanimous view of the Court in S4, the relevant inquiry for determining whether there has been a departure from the permissible purpose of the applicant's detention is whether the removal of the applicant from Australia has been "undertaken" or has been "carried into effect" as soon as reasonably practicable. An objective assessment is to be made of all relevant circumstances including the steps in pursuance of removal which have been taken as well as those steps which were reasonably practicable but were not taken. As Hayne J observed in Al-Kateb at [226], the phrase "as soon as reasonably practicable" is a "compound temporal expression" which "recognises that the time by which the event is to occur is affected by considerations of what is '[c]apable of being put into practice, carried out in action, effected, accomplished, or done'". The word "reasonably" in the phrase in question is important. I accept the Commonwealth's submission that the test is not whether everything that could have been done has been done. Perfection is not required, but whether reasonably practicable steps to pursue removal were or were not taken will be relevant.
90 Furthermore, in making that assessment it will be necessary to bear in mind that removal from Australia is not country-specific. As Hayne J observed in Al-Kateb at [227] by reference to ss 196 and 198, "[r]emoval is the purpose of the provisions, not repatriation or removal to a place" (emphasis in original) and that it followed that "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". I reject the Commonwealth's contention that, if the active pursuit of removal is a condition of the lawfulness of a detention, the scope of that pursuit is confined to the country of destination that the officer effectuating the removal may have chosen.
91 Before making the assessment just mentioned, I should record that, consistently with authority, the Commonwealth accepted that it bears the onus of proof as to whether the applicant's detention is lawful. There are only two authorities that need to be mentioned.
92 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 concerned an application for a writ of habeas corpus. In that case, Anderson J helpfully set out a detailed analysis of the operation of the onus of proof at [101]-[105]. At [103] his Honour described a series of shifting onuses, whereby:
the applicant must first demonstrate his or her restraint by the respondent;
the respondent must provide a prima facie justification for that restraint;
the applicant then has an initial evidentiary onus to raise a prima facie question as to that justification; whereupon
the respondent bears the final legal onus of proving the legality of the restraint.
93 The position in respect of false imprisonment is addressed in Burgess. In that case, Besanko J stated at [17] that "[t]he onus is on the respondent to establish on the balance of probabilities that the applicant's detention was lawful". In each of McHugh and Burgess, their Honours identified the justification for the onus being so placed as the paramount importance placed by the common law on the right to personal liberty: see McHugh at [101] and Burgess at [68].
94 In this case it is uncontroversial that the applicant is restrained by the Commonwealth and that, if it be necessary for the applicant to have discharged his initial evidentiary onus to raise a prima facie question, that has been done.