The matters in s 198AH(1A) are jurisdictional facts
118 Whether s 198AH(1A) creates a jurisdictional fact, or instead requires the formation of an opinion by a decision maker, is a question of statutory construction: see Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281 at [53], referring to Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135; and Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [39] per Spigelman CJ (with whom Mason P and Meagher JA agreed). As part of this task, the Court considers whether it can be said Parliament intended the existence of a fact to be an essential precondition to the engagement of a statutory power: see for example Cabal v Attorney-General of the Commonwealth [2001] FCA 583; 113 FCR 154 at [50]. The nature of the task performed is also relevant - are policy questions or value judgments involved? If so, that may tend against it being a jurisdictional fact: see Australian Heritage Commission v Mount Isa Mines Limited [1995] FCA 947; 60 FCR 456 at 465-466 per Black CJ. The Chief Justice was in dissent in the Full Court, but his Honour's dissent was in substance upheld in the High Court: see Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; 187 CLR 297. See also Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [57] per French CJ, and Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Limited [2019] FCAFC 109; 271 FCR 22 at [107].
119 Even if some kind of qualitative judgment is involved, that will not necessarily preclude a fact being characterised as an essential precondition which must objectively exist for the power to be engaged: see Timbarra at [89]-[90].
120 In Timbarra at [42], Spigelman CJ explained that where a factual reference appears in a statutory formulation which also refers to a state of mind, such as "opinion", "belief", "satisfaction" - the presence of those words would usually tend against construing the provision as a matter for the Court to decide. Without such words, as Spigelman CJ observed, the construction exercise is more difficult.
121 That is the case here. No such words are present. If the existence of the need to which s 198AH(1A) refers depends on the state of mind of a person, that must be implied into the statute. As we explain below, precisely what implication should be made is unclear. This is a situation where, in our opinion, it is important to recall the very limited purpose for which Courts might read words into a statute. Spigelman CJ explained this purpose in R v PLV [2001] NSWCCA 282; 51 NSWLR 736 at [81]-[82]:
It is no part of the function of a judge to supply words believed to have been omitted by the legislature per se. What a court does is to construe the words actually used by the legislature, with an effect as if certain words appeared in the statute. The words so "included" reflect in express, and therefore more readily observable, form, the true construction of the words actually used.
The task of the courts is to determine what Parliament meant by the words used, not to determine what Parliament intended to say. …
122 For the reasons we explain, the respondents' submissions invite the Court to go beyond this purpose.
123 The purpose of s 198AH is to prescribe how the removal provisions in s 198AD apply to persons who have been brought to Australia from a regional processing country. Section 198AD is the principal mechanism whereby the Commonwealth's "offshore processing regime" is implemented. It is the provision which requires (subject to s 198AE) any "unauthorised maritime arrival" to be taken to an offshore processing country, and thus not to be able to remain in Australia. It bifurcates the treatment of those who are, by the Act, classified as "unauthorised maritime arrivals" from the treatment of all other people who arrive in Australia without a visa. This absolute and policy-driven bifurcation is apparent from the terms of s 198AA:
198AA Reason for Subdivision
This Subdivision is enacted because the Parliament considers that:
(a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and
(b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and
(c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and
(d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.
124 Section 198AD confers a range of powers, including the use of reasonable and necessary force on "officers" as defined in s 5 of the Act, read with s 198AD(12) which expressly includes members of the Australian Defence Force:
officer means:
(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e) a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
125 The text of s 198AD(3) makes it plain that the reason the word "take" is used, is because the process of removing a person may have several stages, including taking them off vessels and onto other transportation:
(3) For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia:
(a) place the unauthorised maritime arrival on a vehicle or vessel;
(b) restrain the unauthorised maritime arrival on a vehicle or vessel;
(c) remove the unauthorised maritime arrival from:
(i) the place at which the unauthorised maritime arrival is detained; or
(ii) a vehicle or vessel;
(d) use such force as is necessary and reasonable.
126 That would appear to be why s 198AD(11) speaks of a person being "dealt with" under s 198AD(3), and provides that such a person is
taken not to be in immigration detention (as defined in subsection 5(1)).
127 Officers are subject to Ministerial direction about which regional processing country a person is taken to: see s 198AD(5).
128 The Minister can determine that s 198AD does not apply to a person. That power is a personal one and is conditioned by the Minister's opinion that such a determination is in the public interest: see s 198AE. That provision is relevant to demonstrate the otherwise absolute intention behind s 198AD: those who fall within its terms are intended not to be able to remain in Australia.
129 The offshore processing regime contained in Div 8 of Part 2 of the Act does recognise that people may subsequently be brought to Australia in some circumstances. It does so by the terms of s 198B, which applies to those who meet the definition in s 5 of the Act of "transitory persons". This was also the part of the Act where ss 198C-198J were located, prior to their repeal on 4 December 2019. Those provisions dealt with a specific kind of temporary purpose; namely, the transfer of people for the purpose of medical treatment. Section 198B is not limited to medical treatment.
130 With that context, we turn to s 198AH. This provision contemplates that the now repealed medical treatment provisions continue to be the reason that individuals may be presently in Australia. That is apparent from the terms of s 198AH(1A)(a).
131 By s 198AH(1), emphatic language is used about the circumstances in which the "taking" obligation in s 198AD will apply to transitory persons in Australia - "if and only if" a person is "covered" by subsections (1A) or (1B).
132 The use of the term "covered" suggests an objective determination whether a person falls within, or outside, the terms of either provision. The use of "if and only if" does not suggest Parliament intended to leave any leeway for reasonable minds to differ. Rather, it suggests Parliament intended that the facts in subsection (1A) objectively exist.
133 Next, the language of subsection (1A) is entirely objective. It posits three, cumulative, factual circumstances:
(a) first, the status of a person as defined by the Act - an "unlawful maritime arrival";
(b) second, a person being detained; and
(c) third, that the person "no longer needs" to be in Australia for the temporary purpose.
134 In our opinion, it is clear that subsections (1A)(a) and (b) are directed to objective facts which either exist or do not: that is, first, a person does or does not have the requisite status; and second a person is or is not detained. Subsection (1A)(b) is not expressed in the same language as s 189, a provision directed to an officer's state of mind. Rather, it is directed to the fact of detention.
135 This conclusion is reinforced by the language used at the start of subsection (1A) - a person "is covered", which is definitional in nature.
136 It is not impossible that subsection (1A)(c) could have been framed to operate differently from (a) and (b), and could have been expressed to depend upon the opinion of an identified person. If that were to be the case, one would have expected Parliament to say so expressly. As it is structured, it is but the third of a three-pronged definition providing for when a person is "covered" by s 198AH.
137 While it is true that there is some aspect of fact and degree in a determination as to whether a person "needs" to be in Australia, it is not a complicated factual question. The "need" is likely to be ascertained through information from third parties, whoever is the repository of the fact finding, an officer, the Minister or a delegate, or the Court. Rather than suggesting a value judgment, the use of the word "needs" suggests some kind of objectively justifiable reason. The words in brackets in subsection (1A)(c) - "(whether or not the purpose has been achieved)" support the view we have just expressed that the word "needs" is directed at the establishment of some kind of justification. It is consistent with the purpose and context of these provisions, as exceptions to the otherwise bifurcated and absolute policy that "unlawful maritime arrivals" are to be taken to, and to remain in, a regional processing country, that "needs" is a word used as meaning there must be an objective justification for a person to continue to remain. That is because the presence of the person in Australia is otherwise inconsistent with the policy evinced by these provisions, and has been permitted for a specific purpose - a "temporary" purpose. The word "temporary" obviously suggests a purpose which will not continue.
138 The provision is directed at the justification for a person remaining in Australia, contrary to the general policy of these provisions.
139 The absolute nature of the policy is apparent from the terms of s 198AH(2), which makes it clear that even any recognised refugee status is not intended to preclude a person from being subject to removal back to a regional processing country.
140 Further, as the authorities note, another method of understanding Parliament's intention is to examine other parts of the statute here. As Gageler J observed in Plaintiff M96A at [39], this is a statute where Parliament makes it clear when it is conferring a power which is conditioned upon the formation of a particular state of mind. Section 65 is an obvious example. So too, s 189 - an officer must hold a "reasonable suspicion". So too provisions such as the one discussed above, s 198AE, where the Minister "thinks that it is in the public interest". The Minister can determine an individual should not be taken to a regional processing country. Also in previous s 198E, introduced after s 198AH, the requirement for the Minister to approve a transfer does not exist if the Minister "reasonably believes that it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment". Subsections 198E(4)(b) and (c) also use express language directed to the Minister's state of mind. In (b) - "reasonably suspects". In (c) - "knows". The text of s 198AH(1A) is markedly different. In a statutory context such as this, the Court can be confident that if Parliament had intended to make the question of "need" or justification dependant on a person's state of mind, it would have said so.
141 As for Plaintiff M96A, as the respondents submitted, the majority held (at [32]) that it was not necessary to construe s 198AH(1)(c) and to decide if the need to remain for a temporary purpose was, or was not, a jurisdictional fact.
142 What the majority had said, however, at [31], by reference to Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219, was that it was necessary for there to be objectively determinable criteria for detention, so that courts could determine the legality of any detention. While this principle may not control one construction of s 198AH(1)(c) over another, it is also not irrelevant. The respondents' contention inserts words into the provisions relating to the state of mind of an unspecified person. While in argument, when pressed, senior counsel for the respondents submitted that person could be an "officer", that is in our respectful opinion no more than speculation and is not derived from the text, especially given it is not an officer who had the legal responsibility for deciding if a person should be brought to Australia for the temporary purpose in the first place. That legal responsibility rested with the Minister, and for a limited time, with the Panel. The respondents' construction in our opinion tends towards making the criterion for a person's continued detention more vague than the competing construction - because the identity of the person who has to form the relevant state of mind is opaque on the text of the provision.
143 In contrast, Gageler J in Plaintiff M96A said at [38]-[42]:
The answer to the question which arises under s 198(1A), and under s 198AH(1A) where it applies, of whether the transitory person any longer needs to be in Australia for the temporary purpose for which the person was brought to Australia, does not depend, expressly or by implication, on the opinion, satisfaction or belief of any officer. I reject the argument of the defendants that answering of the question is committed by the terms of ss 198(1A) and 198AH(1A) to the evaluative judgment of an officer, subject perhaps to the "general principle of law ... that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself". The question of whether the duty to remove is triggered is in that respect separate from, and anterior to, the question of what is required of an officer to remove the person from Australia as soon as reasonably practicable in the performance of the duty once triggered.
Established drafting techniques are available to be used to make the holding of a particular state of mind by the repository a precondition to the performance of a duty or to the exercise of a power. Techniques of that kind are used throughout the Act. They are not universally observed. But their availability cannot be assumed to have been overlooked by the parliamentary drafters, especially those who framed s 198AH(1A) for insertion into the Act in the aftermath of Plaintiff M70/2011 v Minister for Immigration and Citizenship. Those available techniques have been eschewed in s 198(1A) and in s 198AH(1A) in favour of casting the precondition to the performance of the duty to remove in manifestly objective terms.
The objectivity apparent in the statutory expression in s 198(1A) of the criterion for the triggering of the duty imposed by s 198(1A), and in s 198AH(1A) for the triggering of the duty imposed by s 198AD(2), is reinforced by the manner in which ss 198 and 198AD are expressed to interrelate. Section 198AH(1) relevantly states that s 198AD "applies" to a transitory person if the person is "covered" by s 198AH(1A). Section 198(11) states that s 198, including s 198(1A), "does not apply" to a person to whom s 198AD "applies". A person is either covered by s 198AH(1A) or is not. Section 198AD either applies to a person or does not. Section 198(1A) applies to a person if s 198AD(2) does not.
Neither of the duties imposed by s 198(1A) or by s 198AD(2) is imposed on a particular officer. Whether one or other of those duties applies to a transitory person who has been brought to Australia under s 198B must be capable of discernment independently of the state of mind of a particular officer.
Whether a transitory person who has been brought to Australia under s 198B for a temporary purpose any longer needs to be in Australia for that temporary purpose, so as to trigger the obligation imposed on an officer by s 198(1A) or by s 198AD(2) to remove the person from Australia, is thus an objective question. That is to say, the question is one which in the event of dispute falls to be answered by a court.
144 We respectfully agree. That approach is consistent with the authorities to which we have referred, and is to be preferred in the text and context of the provision itself. Although the respondents briefly contended that the provision should be read as if referring to a specific individual because the Court did not have the expertise to engage in the necessary fact finding, as that submission developed it became clear the respondents' contention was that the person would be an "officer". There is no basis offered to support the proposition that any or all "officers" as defined in the Act possessed any particular skills, knowledge or experience that would place them in a better position than the Court to make a finding whether a person "needs" to remain for a temporary purpose.
145 Section 198AH(1A) creates three cumulative jurisdictional facts, as essential preconditions to the engagement of s 198AD.