5.2 Consideration
103 Pursuant to s 496(1) of the Act, the Minister may, in writing, delegate to a person "any of the Minister's powers under this Act." By variously dated written instruments, delegates of the Minister approved, or at least purported to approve, the Mantra Hotel and the Park Hotel and numerous other places as places of immigration detention under subpara (b)(v) of the definition of "immigration detention" in s 5(1) of the Act.
104 The written instruments of approval are unremarkable in their form. Except for one, each instrument states that the signatory is a delegate of the Minister for the purpose of subpara (b)(v) of the definition of immigration detention, and provides that the delegate approved the places named therein as places of immigration detention including, relevantly, the Mantra Hotel and, later in the relevant period, the Park Hotel.
105 The written instrument dated 20 March 2019 referred to the delegate acting under the powers of the Secretary for the Department, and as an officer for the purpose of the definition of immigration detention as defined by subpara (a)(ii) of subs 5(1) of the Act. The Commonwealth submits that it does not matter that the powers referred to in that instrument were those of the Secretary of the Department because, at the time of making the instrument, as a person appointed as an Executive Level 2, the delegate held a relevant delegation of the powers of the Minister for the purposes of the definition of "immigration detention": Australian Border Force (Minister) Delegations and Authorisations 2018 (ABF (M) No 1 of 2018) cl 10, Sch 4, item 3. The applicant did not seek to argue otherwise. On the basis that it was not in contest, I accept the Commonwealth's submission in that regard.
106 The principle that statutory definitions are not a source of substantive power, and instead operate as an aid to the construction of the statute, is well-established: see Gibb at 635. In Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [84], [103] McHugh J approved the passage in Gibb extracted above, and said that "the function of a definition is not to enact substantive law. It is to provide aid in construing the statute". The principle expressed in Gibb has been approved on numerous occasions by the High Court and by intermediate courts of appeal, but it is not absolute. In Mekpine at [61]-[62], French CJ, Kiefel, Bell and Nettle JJ described it as a "general principle" and said that it can be departed from where there is "a clear, contrary legislative intent".
107 For the reasons I now explain, I consider it appropriate to construe subpara (b)(v) of the definition of "immigration detention" in the Act as impliedly conferring power on the Minister to approve in writing 'another place' of immigration detention.
108 First, although it is far from determinative, it is noteworthy that numerous judicial statements either refer to a "power" in subpara (b)(v) of the definition of "immigration detention" or treat subpara (b)(v) as if it confers power. In:
(a) B v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 699 at [45]-[46] Lander J said that "[i]mmigration detention includes holding an unlawful non-citizen by or on behalf of an officer in any place approved by the Minister in writing. The Minister can approve any premises as "immigration detention";
(b) SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569 (SBEG (No 2)); 292 ALR 29 at [111] Besanko J referred to "the power in paragraph (b)(v)" and described it as a power involving "a form of immigration detention";
(c) SBEG v Commonwealth of Australia [2012] FCAFC 189; 208 FCR 235 (SBEG FC) the Full Court (Keane CJ, Lander and Siopis JJ):
(i) noted the parties' submissions as to the "power under paragraph (b)(v)" to transfer the applicant to the form of detention sought by the appellant (at [38]);
(ii) noted the primary judge's conclusion that "the powers implicit in that definition" could not be used to achieve the form of detention which the appellant sought under s 197AB of the Act (at [40]-[42]);
(iii) held that a "more relaxed form of accommodation" with "no constraint on the appellant's ability to come and go as he pleases, is not available under s 5(1)(b)(v)" (at [55]); and
(iv) noted the appellant's argument that the primary judge erred in holding that "the nature of the power contained in s 5(1)(b)(v) of the Act" and the considerations relevant to its exercise was such that the Commonwealth did not breach its duty of care to the appellant (at [62]); and
(d) Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 at [13] French CJ said that the applicant's placement in a residential housing facility was:
…a species of "immigration detention" as placement in "another place approved by the Minister in writing" for the purposes of par (b)(v) of the definition of "immigration detention" in s 5(1) of the Act.
(e) AZC20 v Minister for Home Affairs [2021] FCA 1234 at [140] Rangiah J held that the Court cannot compel the Minister to exercise the power to approve 'another place' for immigration detention because:
"[t]hat would be inconsistent with…the definition of "immigration detention" in para (b)(v) of s 5(1) of the Act which makes it clear that it is exclusively for the Minister to approve 'another place' as a place of detention within which an unlawful non-citizen is to be confined."
Rangiah J made orders requiring the Secretary of the Department, to cause any detention of the applicant, pending his removal from Australia, to be at the private home of a friend of the applicant, at which one or more "officers" (as defined) could be stationed to accompany and restrain the applicant.
(f) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 (AZC20 FC) (Jagot, Mortimer and Abraham JJ ) the Full Court upheld the Minister's appeal against those orders and said (at [87]):
The detention arrangement orders are properly understood as being orders within para (b) [of the definition of "immigration detention"], not para (a), and there being no approval by the Minister under (v), and no suggested application of sub-paras (i)-(iv), the detention arrangement orders fell outside the terms of para (b). The primary judge correctly understood he could not make orders compelling a form of immigration detention covered by para (b). Yet, in substance, that is what he did.
109 I accept that those judicial statements do not set out a reasoned basis for treating subpara (b)(v) as a source of substantive power, and there is nothing in those decisions to show that it was argued that subpara (b)(v) is not a source of power. Nor are they part of the ratio of those decisions.
110 But I would not put those judicial statements completely to one side as the applicant seeks. I expect that if the Full Court in SBEG FC considered Besanko J's conclusion that there was power "implicit" in subpara (b)(v) was erroneous their Honours would have said so. And the Full Court's conclusion that a "more relaxed form of accommodation" was not available under subpara (b)(v) was, at the least, consistent with a view that subpara (b)(v) is a source of power. Similarly, in apparently endorsing the primary judge's view that subpara (b)(v) provides that it is exclusively for the Minister to approve 'another place' as a place of detention, the Full Court in AZC20 FC seemed to accept subpara (b)(v) was a source of power, rather than merely a definition with no substantive effect. At the least, it can be said that neither Full Court saw the proposition that subpara (b)(v) impliedly confers power on the Minister to be inherently problematic.
111 Second, as the Commonwealth submits, the apparent recognition of a power under subpara (b)(v) in those judicial statements is consistent with long-standing authority that it is appropriate to interpret statutory provisions requiring the approval of a Minister, and other public office holders, as impliedly conferring authority to make the approval. The Commonwealth relies on four decisions in this regard, Mayer; Attorney-General (Cth) v Oates [1999] HCA 35; 198 CLR 162; Aye v Minister for Immigration [2010] FCAFC 69; 187 FCR 449; and NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277.
112 In Mayer, the High Court was called upon to consider whether s 6A(1)(c) of the Act (as it then was) was a source of power for the Minister to determine that a person had the status of a refugee. Section 6A provided that an entry permit shall not be granted to a "non-citizen" after his or her entry into Australia unless stipulated conditions were fulfilled. Subsection (1)(c) included the condition that "the Minister has determined, by instrument in writing, that he has the status of refugee" within the meaning of the Refugees Convention as amended by the Refugees Protocol. There was no other statutory provision or instrument which conferred authority on the Minister to make a determination under s 6A(1)(c).
113 The Minister submitted that s 6A(1)(c) merely recognised the historical fact that a determination had been made regarding a person's status as a refugee and it conferred no power to make such a determination. The Minister contended that any determination made by the Minister under the provision was not made pursuant to a power in the Act. The minority (Gibbs CJ and Brennan J) accepted that argument and construed s 6A(1)(c) as only operating upon the existence of a fact, finding that the Minister could make such a determination without the need for a power sourced in the Act.
114 Gibbs CJ said (at 295):
The Minister needs no statutory authority to execute an instrument in writing by which he determines that someone has the status of a refugee…The existence of the instrument in writing is an objective fact which, if the person in question is the holder of a temporary entry permit which is in force, will satisfy condition (c) of s 6A(1).
115 Brennan J said (at 306-307):
Paragraph (c) of s 6A(1) is not expressed as conferring an authority or power to determine whether a person has the status of refugee….
Paragraph (c) is not the source of the Minister's power or authority to make the determination of a person's status "within the meaning" of the Convention or Protocol. A determination made for the purposes of the Convention or the Protocol neither has nor requires a statutory authority or power to make it.
116 The majority in Mayer (Mason, Deane and Dawson JJ), took a different view. Their Honours concluded that s 6A(1)(c) should be construed as impliedly conferring power on the Minister to make such a determination. They said the following (at 301):
In the absence thereof [of any other statutory provision or instrument conferring the authority to make such a determination], the Minister's argument involves the proposition that it was the intention of the Parliament to leave the function of determining "status of refugee" without any statutory basis whatever notwithstanding that the performance of that function is the foundation upon which s. 6A(1)(c) is structured. One implication of that proposition, if it were to be accepted, would be that, notwithstanding the statutory consequences of such a determination, the Minister would be under no statutory obligation even to consider whether a determination of the kind referred to in s. 6A(1)(c) should be made. Another would be that the effectiveness of a decision, under the administrative arrangements, for the purposes of s. 6A(1)(c) would depend upon whether it happened to comply with the statutory requirement that it be a determination "by instrument in writing". Yet another would be that the statutory provisions of par. (c) could be deprived of any effective content by mere administrative decision discontinuing current administrative arrangements or allocating the function of determining whether a person was a refugee to someone other than the Minister. It would seem more likely that it was the intention of the Parliament that the provision of s. 6A(1)(c) attaching statutory consequences to a determination by the Minister that the holder of a temporary entry permit has the "status of refugee" within the meaning of the Convention or Protocol be construed as impliedly conferring upon the Minister statutory authority to make that determination.
(Emphasis added.)
117 Their Honours went on to say (at 302-303):
A legislative provision operating upon a specified determination of a Minister or other officer can readily be construed as impliedly conferring upon the designated Minister or other officer the statutory function of making the particular determination. Such a construction is likely to be clearly warranted in a case…where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent and where the legislative provision will be without effective content if no authority to make the requisite determination exists.
(Emphasis added.)
118 Here, the applicant argues (in the alternative to his contention that subpara (b)(v) is vestigial and has no work to do) that the Minister needs no statutory authority to create a "writing" by which he approves a place of immigration detention; subpara (b)(v) is not expressed to confer power on the Minister to approve in writing 'another place' of immigration detention, and the subpara operates by seizing upon the fact that there is in existence such a "writing" of the Minister . That is an argument of the same type or species as that rejected by the majority in Mayer.
119 In Oates the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) was called on to decide whether s 1316 of the Corporations Law (WA) was a source of power for the Minister to consent to the institution of proceedings after the expiry of five years from the acts or omissions alleged to constitute an offence under that Act. Section 1316 provided as follows:
Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister's consent, at any later time.
120 Their Honours (at [16]) disapproved the remarks of Gowans J in Byrne v Garrison [1965] VR 523 at 532 where his Honour said in relation to an analogous provision in the Companies Act 1958 (Vic) that he was "not at all satisfied that it is necessary to find power and authority conferred by statute on the Attorney-General" and doubted "whether [the Attorney-General] needs any power conferred by the legislature to give his consent." Their Honours (at [16]) also disapproved the dissenting remarks of Gibbs CJ in Mayer and said:
…the preferable approach is to construe the provision in question as impliedly conferring upon the Minister statutory authority to make the determination or give the consent which satisfies a condition imposed by the statute. That was the interpretation of s 6A(1)(c) given by Mason, Deane and Dawson JJ in Mayer, and we would apply it to s 1316.
There, the High Court again rejected an argument of the same type or species as that advanced by the applicant here.
121 Similarly, in Aye the Full Court of this Court considered the position where the Act provided that a determination by the Minister for Foreign Affairs that a person's presence in Australia was contrary to Australia's foreign policy interests was a prescribed ground for cancellation of the person's visa. The Act did not, however, expressly confer power on the Minister to make such a determination and reg 2.43 of the Migration Regulations 1994 (Cth), which recognised that the Minister may make such a determination, did not expressly empower the Minister to do so.
122 The Minister submitted that even though the regulations did not expressly empower the making of such a determination, that power should be implied from the regulation itself (at [57]). Lander J (with whom Spender and McKerracher JJ relevantly agreed) accepted that submission, citing with approval the decision of the majority in Mayer. Lander J referred (at [60]), to Gibbs CJ's dissent in Mayer but noted that the High Court in Oates rejected that approach. Lander J held (at [62]) that in circumstances where there was no other statutory instrument which empowered the Minister for Foreign Affairs to make a determination, and in conformity with the approach taken in Mayer, it was appropriate to construe the regulation as impliedly authorising the Minister to make the determination referred to in the regulation.
123 In NEAT the High Court was called on to consider whether a decision of the Australian Wheat Board (International) Ltd (AWBI) under s 57(3B) of the Wheat Marketing Act 1989 (Cth) (WM Act) to refuse consent to the appellant to export wheat in bulk was legally infirm. Section 57(1)(a) of the WM Act provided that a person shall not export wheat unless the Wheat Export Authority has given its written consent. Section 57(3B) provided that:
The Authority must not give a bulk-export consent without the prior approval in writing of the nominated company B. For this purpose a consent is a bulk export consent unless it is limited to export in bags or containers.
124 McHugh, Hayne and Callinan JJ said the following (at [54]):
Unlike the Authority, AWBI needed no statutory power to give it capacity to provide an approval in writing. As a company, AWBI had power to create such a document. No doubt the production of such a document was given statutory significance by s 57(3B) but that sub-section did not, by implication, confer statutory authority on AWBI to make the decision to give its approval or to express that decision in writing. Power, both to make the decision, and to express it in writing, derived from AWBI's incorporation and the applicable companies legislation. Unlike a statutory corporation, or an office holder such as a Minister [citing Mayer at 301 and Oates at [16]], it was neither necessary nor appropriate to read s 57(3B) as impliedly conferring those powers on AWBI.
There, the High Court accepted that in relation to a public office holder such as a Minister, where a legislative provision recognises that the office holder may approve something, it may be appropriate, or indeed "necessary", to read into the provision a power to do so, sourced by implication from that.
125 I accept that the decisions in Mayer, Oates, Aye and NEAT are distinguishable from this case as they concerned substantive provisions, rather than a definition. But the question remains one of construction. In each of those decisions the court construed a statutory provision as impliedly conferring power in the context that:
(a) the provision recognised that a public office holder may make a decision, but did not expressly confer power to do so;
(b) statutory consequences arose from the office holder making any such decision;
(c) there was no other statutory provision or instrument which conferred the office holder with power to make such a decision; and
(d) the provision would be without effective content (that is, it would have no work to do) if no authority to make the requisite decision existed.
126 The position here is the same.
(a) subpara (b)(v) of the definition of "immigration detention" recognises that the Minister, an office holder with responsibility for administering the Act, may make a decision to approve "another place…in writing" as a place of immigration detention, but does not expressly confer power to do so;
(b) there are important statutory consequences of any such decision. Approval of a place of immigration detention means that the Commonwealth can lawfully deprive persons of their liberty by holding them in the place so approved;
(c) there is no other statutory provision or instrument which confers the Minister with power to make such a decision; and
(d) the words of subpara (b)(v) would have work to do if there is no authority for the Minister to approve 'another place' for immigration detention.
127 Those decisions show that a legislative provision operating upon a specified determination of a Minister (in this case a decision to approve 'another place' for immigration detention) can readily be construed as impliedly conferring upon the Minister the statutory function of making such a determination, particularly when no other statutory source of authority to make it is apparent and where the legislative provision will be without effective content if there is no authority to make the determination. Indeed, that is precisely what the majority in Mayer said (at 302-303).
128 The applicant describes the decision of the majority in Mayer as "extraordinary" and as a "difficult case", and went as far as to submit that the majority felt compelled to construe the provision as they did because only then would the appellant have the benefit of a remedy under the ADJR Act in respect of the Minister's refusal to grant him an entry permit. I am not persuaded as to that. The applicant did not take the Court to any authority to support the proposition that the majority in Mayer went too far, or that the result was dictated by a concern to deliver a particular outcome. And the approach to construction in Mayer has been followed by the High Court and intermediate courts of appeal on numerous occasions.
129 Third, contrary to the applicant's argument, there are at least four decisions of intermediate courts of appeal that have treated statutory definitions as a source of power. The four decisions are Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723; Penola & District Ratepayers' & Residents' Association Inc v Wattle Range Council [2011] SASFC 62; 110 SASR 110; San v Rumble (No 2) [2007] NSWCA 259; and Chiropractors Association v WorkCover Corporation [1999] SASC 470; 75 SASR 374.
130 In Burns Philp the NSW Court of Appeal (Mahoney, Clarke and Handley JJA) was required to consider whether s 597(1) of the former Corporations Law, a definitions provision, was a source of power for the Australian Securities Commission (Commission) to authorise an "other person" to make an application for examination under s 597(2). Section 597(2), the operative provision, provided that "the Commission or prescribed person" may apply to the Court for an order for examination under s 597. Section 597(1) defined who a "prescribed person" was, and the definition included "any other person authorised by the Commission to make applications under this section". There was no other provision or instrument which expressly empowered the Commission to authorise an "other person" to make an application under s 597.
131 Similarly to this case, it was argued that s 597(1) was merely a definitional provision which was not expressed to, and did not confer, any function or power on the Commission to authorise another person to conduct an examination. It was said that s 597(1) assumed but did not confer the power to authorise an "other person", and any such power must be found elsewhere.
132 Clarke and Handley JJA rejected that argument (at 729G) and said that such a result would defeat the clear intention of Parliament that was apparent in the definition section itself, and that such an approach would be contrary to Mayer at 302-303. Their Honours said (at 730G -731C):
Nothing of significance for present purposes ought to turn on any distinction between function and power, and in particular on whether s 597(1) is expressed to confer on the ASC a power to authorise others to act as prescribed persons or only a function of doing so. If nevertheless it is necessary to know whether s 597(1) is expressed to confer this function, and the Court should conclude that it does then s 597(1) is the source of the function and by necessary implication confers all powers necessary for its effective exercise… In the result we have reached the firm conclusion that this function or power is, by necessary implication, expressed to be conferred by s 597(1) and is actually vested in the ASC by s 11(7). The challenge to the appointment of the new trustees as prescribed persons therefore fails.
The problem created by the form of s 597(1) is not a new one. In Helme v Fox (1948) 49 SR (NSW) 60 at 62; 65 WN (NSW) 250 at 251, Jordan CJ said that the difficulty in that case had "been caused by 'failure to observe the valuable rule never to enact under the guise of definition'". Section 597 is a "good" example of enactment in the guise of definition and the difficulties in the present case result from the failure to observe this guide to good drafting. However, as Minister for Immigration and Ethnic Affairs v Mayer demonstrates, if there is no other available source of power it can and must be found in the definition provision itself.
(Emphasis added.)
133 Against that the applicant points to HongKong Bank of Australia Ltd v Australian Securities Commission [1992] FCA 376; 40 FCR 402 (Lockhart, Gummow and O'Connor JJ); Mercantile Mutual Life Insurance Co v Australian Securities Commission [1993] FCA 77; 40 FCR 409 (Black CJ, Lockhart and Gummow JJ); Highstoke Pty Ltd v Hays Knight GTO Pty Ltd [2007] FCA 13; 156 FCR 501 at [80] (French J, as his Honour then was) and Re-Excel Finance Corporation Ltd; Worthley v England [1994] FCA 551; 52 FCR 69, 82 (Gummow, Hill and Cooper JJ) as authorities which take a different approach to Burns Philp regarding the source of power to authorise an "other person" to make an application for examination under s 597(2) of the Corporations Law. On that basis the applicant contends that the approach to construction in Burns Philp is not good law.
134 That contention somewhat missed the point. It can be accepted that those decisions show that, at least in this Court, the power to make an application for an examination under s 597(2) of the Corporations Law was properly to be found in s 11(4) of the former Australian Securities Commission Act 1989 (Cth) (the ASC Act), rather than in the definition in s 597(1) of the Corporations Law. But the relevance of Burns Philp in the present context is not in relation to the proper source of power to conduct an examination under s 597(2) of the Corporations Law, but rather to show that, in such circumstances, it may be appropriate to construe a definition section as impliedly conferring power. And one of the reasons why it is sometimes appropriate to construe a definition as a source of power is if there is no other available source of power. As the majority in Burns Philp put it, "if there is no other available source of power, the power can and must be found in the definition provision itself" (emphasis added). If, as held in Mercantile Mutual, Excel Finance and Highstoke, s 11(4) of the ASC Act was the appropriate source of power then there was no need to construe the definition in s 597(1) as impliedly conferring power.
135 In Penola the Full Court of the Supreme Court of South Australia was required to consider whether para (c) of the definition of "public road" in the Local Government Act 1999 (SA) (the LGA) conferred power on the Council to declare a road or land owned by the Council to be a "public road". The LGA did not expressly grant power to a council to declare land which it already owned to be a public road, but the definition of "public road" included "any road or land owned by a council … and which, subject to this Act is declared by the council to be a public road". Section 208(4) of the LGA contemplated that a declaration that council-owned land be a public road may be made because it required a council to cause a copy of the resolution declaring land to be a public road to be gazetted. White J, with whom Nyland and David JJ agreed, said (at [81]-[82]) that it was unusual, but not unknown, for a grant of power to be found in a definition provision, and held that the power to declare land to be a public road was implicit in the definition.
136 The applicant submits that Penola is distinguishable because the words "subject to this Act" in para (c) of the definition of "public road" indicate that any declaration was one that was made under and constrained by the terms of the LGA, and notes that there are no such words in subpara (b)(v). I accept that is a relevant difference between Penola and the present case, but it does not take the applicant's argument far.
137 In San at [54] Campbell JA, with whom Beazley and Ipp JJA agreed, construed a statutory definition as having a substantive effect, while recognising that doing so is something that is usually not appropriate to the function of a definition. His Honour went on to say:
However, as Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, para [6.63] point out,
"Drafters do occasionally include substantive material in a definition. This is poor drafting and can lead to error in the interpretation of the legislation because of the approach set out in Gibb's case."
Particularly when the definition in question is one that applies in one section of the legislation only, and the construction I prefer gives better effect to the policy of the Act, I am not troubled by this departure from the usual way in which statutory definitions are construed.
138 Finally, in Chiropractors Association the Full Court of the Supreme Court of South Australia (Bleby J, with Duggan and Debelle JJ agreeing) was called on to consider whether the power of WorkCover to "recognise" a person as a "recognised medical expert" could be sourced in the definition of that expression in the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act). The WRC Act was otherwise silent as to the process of "recognition" of a medical expert by WorkCover and the Full Court construed the definition as the source of power to "recognise" a medical expert.
139 The decisions in Burns Philp, Penola, San and Chiropractors Association show that the approach to construction taken in Mayer is not confined to substantive provisions, and extends to definitions.
140 Fourth, I should not, however, be taken to be suggesting that the question of construction that arises here is to be decided by some process of analogy with the decisions in Mayer, Oates, Aye and NEAT. The question of construction in this case must be decided having regard to the statutory text, its context (which includes the legislative history and extrinsic materials) and having regard to the purpose of the provisions of the Act. And a court construing a statutory provision must strive to give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan, and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
141 The principle that a court construing a legislative provision must strive to give meaning to every word of the provision applies to definition sections as well as substantive provisions, and it is important in this case. That is so because, if subpara (b)(v) of the definition of "immigration detention" does not confer power on the Minister to approve 'another place' in writing as a place of immigration detention, then those words are otiose. That is a strong reason to construe subpara (b)(v) as impliedly conferring power on the Minister.
142 The applicant makes two alternative arguments in this regard. His first argument, based on his review of the legislative history, is that subpara (b)(v) is vestigial, a "leftover" as a result of legislative mistake, and it has no work to do. As I now explain, I am not persuaded as to that.
143 I accept that the definition of "immigration detention" introduced into the Act by the 1992 Reform Act is very similar to the definition of "custody" which preceded it, and that the language of subpara (a)(iv) of the definition of "custody" is essentially identical to the language of subpara (b)(v) of the definition of "immigration detention". I also accept that, following the 1989 Amendment Act, s 92(2) of the Act referred to persons being kept in the custody of an officer "or in such custody as the Minister or the Secretary directs" and s 93(8) referred to deportees being kept in "such custody as the Minister or the Secretary directs". Then, s 92 was repealed by the 1994 Amendment Act.
144 The applicant submits that the apparent legislative purpose behind subpara (a)(iv) of the definition of "custody" was that it would pick up and act on a power that existed elsewhere in the Act, being ss 92(2) and 93(8). He argues there could have been no reason at that time to construe subpara (a)(iv) of the definition of "custody" as impliedly conferring the Minister with power to approve 'another place' of "custody". Then, when the 1992 Reform Act was enacted Parliament used identical language in subpara (b)(v) of the definition of "immigration detention", which the applicant says is a strong indication that Parliament did not intend it as a source of power. Instead subpara (b)(v) was intended to pick up and act on a power that existed elsewhere in the Act. Section 92(2) was however repealed, and thus by legislative error subpara (b)(v) was left with no work to do.
145 There are several difficulties with the applicant's argument based in the legislative history. The first is that the 1992 Reform Act involved a major overhaul of the Act. It introduced the concept and the definition of "immigration detention" and replaced the term "custody" in most but not all places where it appeared in the Act. Upon the renumbering that took place through the 1994 Amendment Act, the 1992 Reform Act introduced the definition of "detain" in s 5(1); the duty to detain unlawful non-citizens in s 189; the duration of detention in s 196; and the duty to remove unlawful non-citizens in s 198. Through the 1992 Reform Act the Act came to provide that any non-citizen who was not a "lawful non-citizen" was an "unlawful non-citizen" and therefore liable to mandatory detention (s 189) and to mandatory removal from Australia (s 198). The 1992 Reform Act also made a suite of substantial changes to the arrangements for cancellation of visas and entry permits; the merits review process; and the judicial review process. Thus it both introduced the central provisions of the current mandatory detention regime and also amended continuing provisions. The Explanatory Memorandum to the Migration Reform Bill 1992 said that the amendments "will effect major changes" to the Act and that "[t]he changes will replace the legislative framework which currently underpins the regulation of entry to and stay in Australia as well as the detention and removal of non-citizens here unlawfully" (emphasis added).
146 To my mind, the applicant placed too much emphasis on what he asserts is the legislative intent behind subpara (a)(iv) of the definition of "custody" prior to commencement of the 1992 Reform Act. While the genesis of subpara (b)(v) is a relevant part of the context to be considered, in circumstances where the 1992 Reform Act constituted a major overhaul of the Act and replaced a central part of the legislative framework, it is the text, context and purpose of the Act as amended which must be central in considering the meaning of its provisions.
147 The second difficulty is that the applicant bases his contention that subpara (a)(iv) of the definition of "custody" was not intended as a source of power on the conclusion that it was intended to pick up or act on a power that existed elsewhere in the Act, namely ss 92(2) and 93(8). On his argument, they were the substantive provisions which intersected or engaged with the words of the definition of "custody".
148 I am not, however, satisfied as to that. I can see little real correspondence between subpara (a)(iv) of the definition of "custody" and ss 92(2) and 93(8). It will be recalled that:
(a) section 92(2) provided that a person arrested under subs 92(1) or (10) "may, subject to this section, be kept in the custody of any officer or in such other custody as the Minister or the Secretary directs" (emphasis added); and
(b) section 93(8) provided that "a deportee may be kept in such custody as the Minister or the Secretary directs" (emphasis added).
149 That lack of real correspondence can be seen in the fact that:
(a) the power under ss 92(2) or 93(8) for the Secretary to direct another place for custody did not engage with subpara (a)(iv) of the definition of "custody", which was concerned with the exercise of a power or function by the Minister. They were powers or functions to be exercised by different people;
(b) the power under ss 92(2) or 93(8) for the Minister or the Secretary to direct another place for custody does not correspond to subpara (a)(iv), which was concerned with an approval of another place of custody by the Minister. They are different things; and
(c) the capacity of the Minister to approve in writing 'another place' of custody under subpara (a)(iv) must be exercised by the Minister in writing, whereas the power to direct another place for custody can be exercised by the Minister or the Secretary and need not be in writing.
150 The more natural reading of ss 92(2) and 93(8) is not as provisions which engaged with subpara (a)(iv) but rather as providing power for the Minister or the Secretary to direct which of the places (that come within the definition of "custody") in which the person should be held; that is, as between the different forms of custody provided for by the Act (including those approved under subpara (a)(iv)). I am not persuaded that Parliament intended that subpara (a)(iv) of the definition of "custody" operate through corresponding substantive provisions such as ss 92(2) and 93(8) and not as a source of power.
151 To my mind, the applicant's review of the legislative history provides little support for the argument that subpara (b)(v) should not be construed as impliedly conferring power.
152 Fifth, the applicant argues in the alternative that, if according to established principles of statutory construction, the Court considers that it must strive to find some work for subpara (b)(v) to do, then the Court should construe it as operating upon the existence of a historical fact - the existence of a "writing" which meets the description of "an approval by the Minister of another place for immigration detention".
153 I do not accept that suggested construction is appropriate. Important consequences can flow from a decision of the Minister under subpara (b)(v) to approve 'another place' of immigration detention, and any decision as to whether or not to approve a particular place may involve questions of real public importance. By granting such an approval, the Minister can decide where (and therefore in what conditions) a person can be mandatorily detained and lawfully deprived of their liberty. I would not construe subpara (b)(v) as permitting the Minister, acting in a purely personal capacity, to approve 'another place' of immigration detention, that is, without the Minister having been conferred with any statutory power to do so.
154 It is perhaps worth reiterating that the applicant's argument that subpara (b)(v) operates on the historical fact of the Minister creating a document, in a purely personal capacity and without any need for a conferral of power, is an argument of the same type or species rejected by the High Court in Mayer (at 302-303) and in Oates (at [16]). The argument is contrary to the principle, earlier identified, that where a legislative provision:
(a) recognises that a public office holder, such as the Minister in this case, may make a decision to approve or consent to something, but does not expressly confer power to do so;
(b) there are statutory consequences for such a decision;
(c) there is no other statutory provision or instrument which confers power to make such a decision; and
(d) the provision would have nothing to do, or put another way would be without effective content, unless it is construed as conferring power,
the provision may readily be construed as impliedly conferring power upon the public official to so approve or consent, or to refuse to do so. The preferable approach is to construe subpara (b)(v) as impliedly conferring power on the Minister.
155 Sixth, in Mekpine at [61]-[62] the High Court explained that the general principle that statutory definitions are not a source of substantive power can be departed from where there is "a clear contrary legislative intent". Here, as found in Burns Philp (at 729G), the clear intention of Parliament is apparent in the definition section itself. If there was no intention to confer power then there was no reason for the legislature to have included those words. I note too that subpara (b)(v) is additional to subpara (b)(i) which concerns "detention centres", which indicates a legislative intention that the Minister be empowered to approve places of detention other than "detention centres". In my view it is appropriate to construe the Act on the basis that Parliament would have understood the important consequences that may flow from a decision to approve 'another place' of immigration detention. There is nothing to show, and it is inherently unlikely, that the legislature intended that the Minister could approve 'another place' of immigration detention acting in a purely personal capacity.
156 Seventh, during oral submissions I raised a question as to whether the principle of legality was relevant to the proper construction of subpara (b)(v). In Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1 at [42], French CJ explained the principle in the following terms:
Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a "principle of legality" which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this Court in Lacey v Attorney-General (Qld).
(Footnotes omitted.)
157 In X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [158], Justice Kiefel (as her Honour then was) said:
The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.
(Footnotes omitted.)
158 The applicant submits that the principle of legality prompts the question as to whether the Minister has the capacity to "determine any place whatsoever as a place of detention" as well as whether the Minister may delegate such an important decision. The applicant emphasises the "drastic consequences" that result when a person is detained through the operation of s 189, and submits that the Act clearly identifies "detention centres" as places where a detainee could be held, but does not do so clearly in relation to 'another place' of immigration detention.
159 Although I had raised the issue, I was drawn to conclude that the principle of legality has little or no work to do in the present context. There must, of course, be clear statutory language to abrogate liberty, but here, through ss 189 and 196 of the Act, the legislature unambiguously manifested an intention that unlawful non-citizens like the applicant be mandatorily detained in a place that meets the definition of "immigration detention". And I have concluded under established principles of statutory construction, that those places include 'another place' approved in writing by the Minister.
160 For those reasons I consider subpara (b)(v) of the definition of "immigration detention" is to be construed as impliedly conferring power on the Minister to approve 'another place' in writing as a place of immigration detention.