Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486; 208 ALR 271; 78 ALJR 1056

Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486; 208 ALR 271; 78 ALJR 1056 - HCA 2004 case summary — Zoe

[15]

GLEESON CJ. The question in this appeal concerns the relevance, to a charge of escaping from immigration detention contrary to s 197A of the Migration Act 1958 (Cth) ("the Act"), of information about the general conditions at the place of detention from which the alleged offender escaped. This is an issue of law, and was argued as such by the parties to the appeal. It comes down to a question of construction of s 197A, understood in the light of other provisions of the Act, and of the Constitution.
The forensic context in which the question arises is as follows. The Woomera Immigration Reception and Processing Centre ("the detention centre") was established as an immigration detention centre pursuant to s 273 of the Act. The appellant[1] was detained at the detention centre as an unlawful non-citizen pursuant to the obligation imposed by s 189 of the Act. He allegedly escaped. He was charged with a contravention of s 197A. The maximum penalty for such an offence is imprisonment for five years. The charge came before a South Australian magistrate. There was some debate in the Supreme Court of South Australia as to whether the proceedings were summary, or by way of committal preparatory to indictment. It is not suggested that, for present purposes, anything turns on that. The appellant was represented by senior counsel, as he has been at all times since. The appellant's lawyers sought, and obtained, the issue of witness summonses pursuant to the Magistrates Court Act 1991 (SA). Those summonses sought the production of extensive documentary material relating to conditions at the detention centre. The first and second respondents made an application to the magistrate to have the summonses set aside. There were two grounds for the application. One was that, by reason of their form and content, and the volume of material they sought, the summonses were oppressive[2]. The other was that the information sought was irrelevant, and therefore the issue of the summonses had no legitimate forensic purpose[3] or, to express the point in terms of ss 3 and 20 of the Magistrates Court Act, the material of which they required production was not and could not be of evidentiary value[4]. The magistrate dismissed the application. There was an appeal to the Supreme Court of South Australia. The appeal was upheld at first instance by Gray J, who accepted the second of the two arguments stated above. As to the first, relating to oppression, he would have declined to interfere with the magistrate's discretion. For the reasons that follow, there is no occasion to pursue that aspect of the matter. Gray J allowed the appeal, and set aside the summonses. The Full Court of the Supreme Court of South Australia (Lander and Besanko JJ, Bleby J dissenting), refused leave to appeal.
The legal basis upon which the Supreme Court of South Australia acted in setting aside the summonses is well established. It was expressed by Bigham J in R v Baines[5], a criminal case in which there was an application to set aside subpoenas to testify on the ground that they were not issued for a legitimate forensic purpose, as follows:

[21]

Section 5 defines "detain" to mean to take, keep, or cause to be kept, in immigration detention. The word "detainee" takes its meaning from that definition. Section 5 defines "immigration detention" relevantly, to mean being held in a detention centre established under the Act. It is clear that the appellant was being held in such a detention centre. The conditions under which he was being held do not form part of the statutory concept of "immigration detention".
As was noted above, the proposed defence, to which the information sought is said to be relevant, must turn upon the meaning of s 197A, read in the light of s 5, and also in the light of s 3A of the Act, which limits its application to that which is constitutionally valid. The argument for the appellant amounts to the proposition that, by reason of conditions at the detention centre, it is, or may be, possible to conclude that the appellant was not in immigration detention within the meaning of s 197A, and, therefore, did not escape from immigration detention.
It is important to note what is not in issue. In order to establish a defence to the charge against him, it is not sufficient for the appellant to demonstrate, if he can, that conditions at the detention centre were such as to give the inmates a cause of action for damages, or a right to declaratory or injunctive relief, or a claim to some remedy in administrative law. (The potential availability of relief of that kind cannot be brushed aside, conveniently, as a fantasy. The appellant has, at every stage of this litigation, been represented by senior counsel.) The appellant seeks to demonstrate that, by reason of the conditions at the detention centre, he, and presumably all the other inmates, had the right to leave. He seeks to demonstrate that escaping from the detention centre was not prohibited by s 197A.
There is a possible ambiguity in the expression "unlawful detention". It may refer to a case where one person has no right to detain another; the person detained has a right to be free. It could also be used to refer to a case in which the detention is authorised by law, but the conditions under which the detention is taking place are in some respects contrary to law. In the second case, the detainee may be entitled to complain, and may have legal remedies, but it does not follow that he or she is entitled to an order of release from custody, much less that he or she is entitled, in an exercise of self-help, to escape. The argument for the appellant appears to involve an intermediate position: that, while, as an unlawful non-citizen, his detention was required ("mandatory"), conditions as harsh as those at the detention centre were unlawful; and that, by reason of those conditions, what was involved at the detention centre was not "immigration detention".
There is nothing novel about courts having to deal with a claim by a prisoner, or someone subjected to a form of detention authorised by law, that the conditions of custody are harsh, oppressive, or even intolerable. In R v Deputy Governor of Parkhurst Prison; Ex parte Hague[6], Lord Bridge of Harwich said:

[26]

It is one thing to challenge the lawfulness of conditions of confinement, or of practices adopted by those in charge of prisons; it is another thing to assert a right to be freed by court order; and it is another thing again to assert a right to escape.
One closely confined area in which the law has accepted a limited form of right to escape concerns the common law principle of necessity. In the Victorian case of R v Loughnan[9], and the New South Wales case of Rogers[10], consideration was given to the principles according to which a person, confronted in prison with some peril involving a threat to life or safety, may lawfully take steps, proportionate to the danger, to avoid the threat. Such steps do not ordinarily involve remaining at large in the community for an indefinite period. Thus, for example, there are United States authorities which make it a condition of pleading necessity as an excuse for escaping from prison that the prisoner, after escape, must report immediately to the proper authorities when he has attained a position of safety from the immediate threat[11]. The Supreme Court of Victoria, in Loughnan, said this was a matter of evidentiary significance, rather than a legal condition[12]. In Southwark London Borough Council v Williams[13], Edmund Davies LJ, discussing the defence of necessity, pointed out that "the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances". In the present case, Gray J recorded that there was no suggestion that the appellant was proposing to advance a defence of necessity, and it was not contended that he was compelled to escape to avoid some peril. Where a situation of necessity arises, it may justify action taken by a prisoner or detainee to get out of harm's way, but it does not mean that the prisoner or detainee becomes free from all the constraints of custody, or may escape into the community and remain at large.
The first and second respondents do not submit, and have not at any stage of the proceedings submitted, that the Act authorises conditions of immigration detention that are inhumane, or that it removes what would otherwise be the rights of detainees to seek legal redress for civil wrongs or criminal offences to which they may be subjected. In that respect, they point to s 256 of the Act, which requires that detainees be given all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to their immigration detention. What is in question is whether, by reason of their conditions of detention, detainees may lawfully escape.
The argument for the appellant is that the information sought by the witness summonses is relevant because it will, or may, establish that conditions at the detention centre were such that the appellant was not in immigration detention within the meaning of s 197A. The reason is said to be that, in the Act's constitutionally valid application (see s 3A), the detention which is in contemplation is detention which is not punitive in nature, whereas detention under harsh or inhumane conditions is punitive.
The detention which the Act contemplates, authorises, and requires is detention of unlawful non-citizens (aliens) pending processing of their visa applications or deportation. Section 189 provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. (Reference has already been made to s 273, which empowers the establishment of detention centres.) Section 196 provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed or deported (under ss 198, 199 or 200) or granted a visa. Applications for a visa are commonly made on the basis that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention[14]. Section 198 provides, in sub-s (6), that an officer must remove as soon as reasonably practicable an unlawful non-citizen who is a detainee if the non-citizen has made a visa application and the application has been finally determined in a manner adverse to the applicant. Visa applications are dealt with administratively in the first instance, but are subject to a potentially lengthy process of administrative and judicial review. Cases regularly come before this Court in circumstances where this Court is invited to undertake a fifth level of decision-making in respect of a visa application. Some visa applicants hold temporary visas, and are not in immigration detention, but those who do not have visas may be detained for a substantial period while their litigation proceeds.
The constitutional validity of the system of mandatory detention, which was introduced in 1992, was challenged unsuccessfully in this Court in Chu Kheng Lim v Minister for Immigration[15]. The Court held that the legislation was a valid exercise of the power, conferred by s 51(xix) of the Constitution, to make laws with respect to naturalization and aliens. Mason CJ said[16]:

[28]

The concluding portion of that passage refers to an argument, dealt with extensively by Brennan, Deane and Dawson JJ, and rejected, that detention of the kind there under consideration was an exercise of judicial power, and could not be conferred constitutionally on the Executive. Brennan, Deane and Dawson JJ[17], distinguishing explicitly between citizens and aliens, said that, subject to certain well-established exceptions, the involuntary detention of a citizen is penal or punitive in character and exists only as an incident of judicial power. (Gaudron J said in another case that the exceptions are so numerous and important that it is difficult to sustain the primary proposition as a general rule[18].) The position with respect to aliens is different because of their vulnerability to exclusion or deportation, which flows from both the common law and the provision of the Constitution. In that respect, I would interpolate, exclusion includes what was referred to by the Solicitor-General of the Commonwealth in argument in Chu Kheng Lim as power to make laws "to prevent aliens who ... come to Australia without permission from entering the community pending a decision whether to grant them an entry permit or to remove them from the country"[19]. Authority to detain an alien in custody, Brennan, Deane and Dawson JJ said, in the context and for the purposes of executive powers to receive, investigate and determine an application for an entry permit and, after determination, to admit or deport, is not punitive in nature, and not part of the judicial power of the Commonwealth. In the case of a citizen, what is punitive in nature about involuntary detention (subject to a number of exceptions) is the deprivation of liberty involved. But an alien does not have a right without permission to enter Australia or to become part of the community. The alien's vulnerability to exclusion and deportation alters the nature of the detention when it is for the purpose described above. It is an incident of the executive power to exclude people who have no right to enter Australia, to process their applications for permission to enter, and to deport them if their applications fail.
That being the nature of the power of detention, there is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive, and an invalid exercise of judicial power. Whatever the conditions of detention, the detention itself involves involuntary deprivation of liberty. For a citizen, that alone would ordinarily constitute punishment. But for an alien, the detention is an incident of the exclusion and deportation to which an alien is vulnerable. Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort. But the assault, or the negligence, does not alter the nature of the detention. It remains detention for the statutory purpose identified above. The detention is not for a punitive purpose. The detainee is deprived of his or her liberty, but not as a form of punishment. And the detainee does not cease to be in immigration detention within the meaning of the Act.
The information the subject of the witness summonses might have assisted the appellant to demonstrate that he had a legitimate cause for complaint about his conditions of detention, and that he had a case for legal redress. But it could not have assisted an argument that he was not in immigration detention, or that s 197A did not validly prohibit his escape. The definition of "immigration detention" in s 5 of the Act includes being held in a detention centre established under the Act. The appellant was being held in a detention centre so established. By definition, he was in immigration detention. The nature of this detention was established by the statutory provisions pursuant to which, and for the purpose of which, his detention was required. The statutory definition applied to this case. That from which he escaped was immigration detention. The conditions at the detention centre could not alter the case. For that reason, the information was irrelevant to the charge of a contravention of s 197A. The purpose for which the summonses were issued was not a legitimate forensic purpose.
The decision of Gray J, and of the Full Court of the Supreme Court of South Australia, was correct. The appellant's appeal should be dismissed with costs.

[83]

Similar charges were brought against Mr Moggaddam and Mr Amiri. They made common cause with the appellant in their defence. However, between the decision under appeal and the hearing in this Court they were, at their own request, removed from Australia. The Director of Public Prosecutions withdrew the criminal proceedings against each of them. The proceedings against the appellant remain on foot.
The magistrate's ruling: In the Magistrate's Court of South Australia, the appellant foreshadowed a defence that he wished to bring in answer to the charge. In part, the defence was based on the terms of the Act, on their face, and in part upon those terms as understood in the light of the Constitution. Counsel indicated that he wished to argue that the conditions in which the appellant was kept at Woomera were "so obviously harsh" as to fall outside the notion of "immigration detention" as envisaged by the Act and as permitted by the Constitution. Because the conditions in which he was kept did not, therefore, amount to "immigration detention", the appellant's departure from those conditions did not constitute an "escape from immigration detention" within s 197A. He was therefore entitled to be acquitted of the charge.
The appellant placed certain materials before Mr Moss CM in a hearing in the Magistrate's Court relating to the charge. These were designed to demonstrate the bona fides and factual arguability of the defence just stated. In an attempt to establish the defence by relevant evidence, witness summonses were issued by the Magistrate's Court in January 2002 at the request of the appellant. These required the departmental and management organisations responsible for Woomera to produce to the Court documents concerning the conditions at Woomera and complaints received about those conditions. An application was made on behalf of the recipients of the summonses for an order setting them aside. The Attorney-General of the Commonwealth intervened to support that application. In substance, the Chief Magistrate rejected the application. With some modifications as to detail, he confirmed the summonses.
Decisions in the Supreme Court: Against those orders, an appeal[45] was taken to the Supreme Court of South Australia. It was heard by the primary judge (Gray J). His Honour rejected one of the two bases argued, namely that the summonses were expressed in terms that were oppressive[46]. However, he upheld the primary objection that the appellant had not "established that the material sought by the summonses has evidentiary value in the proceedings"[47]. Principally, his Honour concluded that the appellant had not identified a "defence known to the law" and that his complaint about the conditions in which he was held at Woomera, even if proved, could not, "as a matter of law make the detention unlawful"[48]. On that basis, the primary judge set the witness summonses aside.
The appellant then sought leave to appeal. His application came before the Full Court of the Supreme Court of South Australia[49]. That Court dealt only with the arguability of the defence. It did not consider the primary judge's determination of the issue relating to alleged oppression.
A majority of the Full Court (Lander and Besanko JJ) favoured refusal of leave to appeal[50]. Their Honours considered it arguable that the primary judge had placed too high an onus on the appellant in rejecting the factual relevance of the materials that the appellant had sought in the summonses[51]. However, like the primary judge, the majority concluded that the evidence sought could not, as a matter of law, establish a defence to the charge under s 197A. The other judge constituting the Full Court (Bleby J) dissented. He concluded that the appellant had an arguable case and that the issues were of obvious importance for the operation of the Act. He would have granted leave to appeal[52].
The hearing in this Court: By special leave, the appellant now brings an appeal to this Court. Some of the issues argued in the case overlapped those presented in concurrent proceedings[53]. However, unlike those proceedings, it is not possible in my view to resolve the appellant's arguments in this appeal by means of statutory interpretation, confining the issues for decision to the four corners of the Act.
Here, the issues are more numerous and complex. In resolving those issues, this Court had the considerable assistance of written submissions filed for the Human Rights and Equal Opportunity Commission ("HREOC"). Whilst not offering argument addressed to the merits of the appellant's case, HREOC's submissions added a dimension to the arguments by reference to the obligations accepted by Australia under international law, affecting the "detention" of the appellant. It is easy for a Court such as this to overlook such important legal perspectives. To the extent that it does, this Court places itself outside the mainstream of constitutional and common law doctrine as it is developing in virtually every country of the world[54].

[84]

Uncontested issues: The issues for decision in the appeal were narrowed by a high measure of common ground between the parties. For the appellant it was conceded that, in accordance with the Act, he was an "unlawful non-citizen"[55] and that, his initial detention, as such, was lawful[56]. The appellant did not contest the constitutional power of the Federal Parliament to enact provisions for the detention of an alien such as himself[57]. It was not the appellant's case that, because of the conditions of his "detention" at Woomera he was entitled to free release into the Australian community. He confined his claim to the assertion of a defence to the criminal charge brought against him and to his argument that the conditions in which he was kept did not answer, under the Act or the Constitution, to a legally permissible form of administrative "detention".
The respondents accepted that the witness summonses were addressed to the proper officers of their organisations and that the course of appealing against the Chief Magistrate's order had interrupted the trial of the appellant on a serious criminal charge. They also accepted that if the trial were to go ahead without all, or any, evidence as sought in the summonses, it would have to be decided on the limited factual basis that the appellant could otherwise provide. Thus, it would be determined without the benefit of evidence procured from the respondents. If a defence were legally available, this would place the appellant in an intolerable position.
The appellant conceded that, for the purpose of advancing his submission that his detention amounted to a form of "punishment", impermissible under the Constitution and outside that contemplated by the Act, the mere fact that immigration detention impinged on his liberty, did not make it punitive as such. The respondents, for their part, conceded that the Act does not authorise detention in inhuman or intolerable conditions. However, they argued that the remedies for inhuman detention lay not in denial of the legality of the detention itself, but in tortious, administrative and other proceedings brought to challenge the alleged mistreatment.
The appellant did not assert that he was compelled to escape from Woomera by an immediate threat or danger. Nor did he propound a defence to the charge brought against him based on the doctrine of necessity in criminal law[58]. He confined the defence, for which he sought to procure the evidence specified in the summonses, to one based on the meaning of "detention" as provided in the Act and as permitted by the Constitution.
Three added facts: This Court was informed, without opposition, of three facts. First, that as a result of the interruption occasioned by the interlocutory appeal to the Supreme Court, the trial of the appellant had been delayed pending the outcome of these proceedings. Secondly, that a number of communications complaining about the conditions of immigration detention under the Act at Woomera and elsewhere had been taken to the Human Rights Committee of the United Nations ("UNHRC"). We were supplied with copies of the views of the UNHRC and other bodies upon some such communications[59]. Thirdly, the Court was told that, since the happening out of which the charge against the appellant arose, the immigration detention centre at Woomera has been closed[60].

[85]

The system of mandatory detention: The provisions of the Act relevant to the determination of the appeal, in addition to s 197A under which the appellant is charged are set out, or referred to, in other reasons[61]. I will not repeat any of this material.
Different countries have established various schemes for the determination of claims to refugee status under the Refugees Convention[62]. Australia's enactment of a system of mandatory detention for persons arriving without due authority is not the only response available to that problem[63]. However, the reasons for it are sometimes explained by reference to considerations of history, geography, the size of the continent, its scattered centres of population and the absence of any general obligation to carry identity documents within Australia.
The appellant accepted the constitutional validity of the scheme established by the Act to impose regulations upon entrants to Australia's "migration zone"[64], to require the identification of non-citizens, to detain those attempting to enter without authority, to hold them in detention whilst processing any application they might make to remain in Australia and to remove or deport those remaining non-citizens determined to have no authority to remain or who, like the appellant's co-accused, request their own removal[65].
Conditions of detention: The Act lays down relatively clear obligations to effect detention in given circumstances[66]; what that detention involves, in terms of physical action and place[67]; and what must ensue "as soon as reasonably practicable" for the removal (or deportation) of the non-citizen. However, it is generally silent concerning the conditions of such detention. In particular, nothing is said in the Act specifically about the minimum conditions that must be observed for people held in "immigration detention" or at "a detention centre". On the face of things, this might appear to leave such conditions to the unfettered discretion of the Minister, accountable for them to the Parliament, or to officials and other persons (such as the respondents) concerned in the organisation and maintenance of detention centres. The Act permits regulations to be made which might conceivably include provisions for the conditions of persons in "immigration detention"[68]. However, it is apparent that, to the relevant time, no such regulations had been made to govern the conditions of detention centres[69]. True, there are immigration detention standards. The appellant complained that these were not complied with in his case[70].
The absence of a statutory elaboration of the conditions within an immigration detention centre does not mean that there are no standards which the law of this country will uphold. Correctly, the respondents accepted that the Act, being made as a law to operate "against the fabric of the common law and State law", would not authorise administrative detention in inhuman and intolerable conditions. The obligations implied into the Act by the general law, or grafted onto its provisions, could not contradict the necessities, express or implied, in valid provisions of the Act[71]. But the respondents submitted that the way to enforce any complaint about inhuman or intolerable conditions was by proceedings brought for that purpose. It was not self-help, such as by escape from "detention". The authority to be in immigration detention being established by law, escape could not therefore be lawful. The respondents supported the conclusion of the Supreme Court that the argument to the contrary was legally untenable.

[93]

The decision of the Chief Magistrate that triggered the present proceedings was one occasioned by the application for the respondents seeking, in effect, summary relief against the witness summonses. Four points need to be made in relation to this issue. They are significant for the conclusion that I will ultimately reach.
Disadvantages of interlocutory appeals: This Court has repeatedly affirmed that it is ordinarily undesirable that the course of a criminal trial should be interrupted by interlocutory appeals[72]. Even where the point in issue is legally important and arguable, where its resolution might save time or affect other persons or result in a termination of the trial, reasons of principle normally demand that appellate interlocutory intervention be refused[73].
In part, this approach is taken to avoid oppression of individuals by interlocutory appeals brought by the prosecution or misuse of criminal process by well-resourced litigants who prolong proceedings without real merit. In part, it arises because of the law's experience that many interlocutory issues resolve themselves in the course of a trial[74]. Normally, such issues are resolved more satisfactorily on the basis of findings based on evidence rather than holdings made on hypotheses adopted in advance of the evidence. The course adopted by the respondents in this case, in interrupting the trial of the appellant, arguably denied this Court a proper evidentiary foundation upon which to rest conclusions of significance for the meaning of the Act and the operation of the Constitution upon the Act. A majority of this Court now reaches its conclusion without having the desirable evidentiary foundation in the primary court, which is the way this Court has repeatedly said cases of the present kind should ordinarily be decided.
Restraint in peremptory relief: The peremptory relief sought by the respondents was governed by established principles that insist upon restraint on the part of judges exercising such jurisdiction whether by way of appeal or judicial review. Such restraint, which applies to civil as well as criminal applications, arises from a number of considerations, some of them already mentioned. Rulings on the availability of a legal action or defence are normally better made by courts when any evidence, said by the party propounding the action or defence, has been adduced. Legal issues are rarely, if ever, wholly disjoined from facts. Facts cast light upon the operation of the law. Factual merits are not irrelevant to the way courts, which are sworn to do justice, respond to alternative elaborations of the law. It is futile to suggest that the substance of law is somehow disconnected from facts.
Because, under the rule of law, parties propounding serious actions or defences are normally entitled to have their day in court, it is exceptional to stop them in their tracks on the footing that they have no arguable cause of action or no arguable defence. The exceptional character of the relief sought at trial in the Magistrate's Court was doubled when the respondents lost the application there, interrupted the trial further and renewed their demand in the Supreme Court. To the extent that discretionary considerations and considerations involving the evaluation of complex materials were found in the Magistrate's Court to support the matter proceeding in the normal way, these were added reasons for restraint on the part of the primary judge. The Full Court was bound to observe and uphold such restraint.
The approach to be taken to the application made by the respondents before the Chief Magistrate is not in doubt. It is established by analogy to the approach taken by this Court in many cases[75]. In Dey v Victorian Railways Commissioners[76], Dixon J explained that a "case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting [the plaintiff's] case for determination in the appointed manner by the court with or without a jury". A similar insistence on "great care" before denying a party the "opportunity for the trial of [the party's] case by the appointed tribunal" was voiced by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW)[77].
The foregoing words, expressed in the context of civil proceedings, have added force in a case such as the present. Here, what is at stake is the right of the appellant to defend himself against an indictable criminal charge. Ordinary principles suggest an added requirement of caution before preventing such a person obtaining evidence, as he is advised, in order to establish matters relevant to his resistance to the charge. This is especially so where the "defence" propounded amounts, in effect, to a challenge to the capacity of the prosecution to prove an essential element of the offence charged against him[78].
It is true that argument, "perhaps even of an extensive kind, may be necessary to demonstrate that" the issue to which the evidence is directed "is so clearly untenable that it cannot possibly succeed"[79]. However, it is the repeated instruction of this Court that peremptory relief of the kind sought by the respondents in the present case "must be sparingly exercised"[80]. As McHugh J has explained, in relation to a civil case, "the mere fact that the plaintiff's prospects of success are slim is not enough to strike out a pleading"[81]. A fortiori, the mere fact that the arguments of a defendant in a criminal proceeding present novel and difficult issues is not enough to strike out the process that seeks to adduce evidence propounded as evidence to resistance to the charge. In our legal system, the proper place and time to resolve novel and difficult questions of law in such matters is normally in the trial and the regular appellate system after trial. It is not in interlocutory process[82].
Special restraint in new areas of law: This is not to deny that proper cases will exist where a firm conclusion may be reached with reasonable efficiency and on limited materials that the propounded action or defence is "doomed to fail". However, where the law is uncertain, where it is in a "state of transition"[83] and (I would add) where the resolution concerns aspects of fundamental human rights and criminal liability, the restraints normally applicable to applications for summary relief are enlarged. This is because of the "undesirability of courts attempting to formulate legal rules against a background of hypothetical facts" involving "the potential unfairness to [parties] if their cases were finally ruled upon before they were able, with the benefit of [court procedures], to refine their factual allegations"[84]. Like judges who have gone before (and in much simpler cases) "I share the unease … at deciding questions of legal principle without knowing the full facts"[85].
Evidentiary foundation for bona fides: Enough facts were adduced before the Chief Magistrate to demonstrate, in the words of Bleby J in the Full Court, that "the issues concerned are of importance … in the operation of the [Act]"[86]. With respect, in the Supreme Court only Bleby J adopted the correct legal approach to the application mounted by the respondents.
However, although the appellant was deprived by the resolution of that application of the full evidentiary foundation he sought for his arguments, there was sufficient evidence before the Chief Magistrate to make it clear that the appellant was not wasting the time of the courts. He was propounding a serious and potentially important issue to be tried.
It is true that much of the material filed by the appellant in the Magistrate's Court was not specifically related to Woomera[87]. Some of it was "vague"[88] and addressed to times distant from the appellant's alleged "escape"[89]. Some was from sources not wholly independent and dispassionate. However, the appellant fairly pointed out that this was inherent in denying him access to recorded and official material specific to complaints and investigations concerning conditions in Woomera at the time of his alleged offence.
For all that, there remained a considerable body of disturbing evidence, assembled for the appellant's case, from which inferences might be drawn that the conditions of supposed "detention" in which he was kept were inhuman and intolerable. I will not repeat all of this evidence, necessarily untested at this stage of the proceedings. But it includes that included in an address by Professor Richard Harding, Inspector of Custodial Services in Western Australia, based on an inspection of the Curtin Detention Centre in Western Australia which, as he put it, like that at Woomera, was "in the middle of nowhere"[90]. Professor Harding described the conditions that he had seen as "an absolute disgrace": involving gross overcrowding, broken toilets, unprivate conditions, lack of medical and dental facilities, combining with a situation at Curtin said to be "almost intolerable" and a statement that such "evidence as exists indicates things are little better at the other Centres"[91].
A detailed newspaper report describes what is said to have been the unanimous advice to the Minister for Immigration calling for the closure of Woomera and other measures to help avert a "human tragedy of unknowable proportions"[92]. This report, based on the opinion of the Immigration Detention Advisory Group whom the Minister reportedly called in to negotiate with hunger-strikers at Woomera, demanded an end to the "demonisation" of the detainees. Another report recounts reports of suicide, hunger-strikes and self-harm[93]. The report states that "[a]lmost every day, asylum seekers inside [Woomera] cut and slash their bodies, drink shampoo or try to hang themselves. But mostly they are ignored". A psychiatric nurse is quoted in the report as stating that the detainees felt they "were treated like animals … medication [was] fed through wire mesh to detainees and [there was] a pervasive belief that suicide was the only way out". According to this nurse, "Woomera is a totally traumatising, alienating experience because they are not treated with humanity"[94]. Particularly distressing is the recorded description of the alleged treatment of children kept in detention, one of whom, detained at Woomera, reportedly went mute for a time in apparent reaction to his experiences[95].
Conclusion: available inferences: The materials adduced before the Magistrate's Court are far from perfect. However, given the limitations upon the gathering of evidence, in default of court-assisted process, they sufficiently answer any suggestion that the contentions made for the appellant concerning the conditions of his detention at Woomera before his "escape" were factually unarguable and groundless. If it could be shown that conditions such as those described existed and were legally relevant to the charge which the appellant faced, enough was before the Chief Magistrate to support his conclusion that the appellant should have the opportunity to procure relevant evidence[96]. Courts in other lands might turn a blind eye to such materials. But the independent courts of the Australian Judicature are not so indifferent to such evidence as to reject the inferences that reasonably arise from it[97].

[97]

I accept this statement of the common law as applicable to Australia. Decisions given in more recent times in this country[105] and in the House of Lords[106] add strength to it as an accurate exposition of the law's approach. So do the reasons of policy mentioned in Whipple. These include the inadmissibility of allowing "a prisoner to decide whether the conditions justify him in attempting to escape", a prospect destructive of prison discipline and inviting a danger of the "slaying or serious wounding" of officers, guards and other prisoners that might arise from resisting attempts at escape[107].
The appellant did not challenge this line of legal authority. Nor did he seek to invoke the defence of necessity, applicable, for example, where a person (out of necessity) breaks free from a prison which is on fire[108]. Instead, the appellant's argument met this line of authority head-on. He distinguished the requirement of a prisoner serving a lawful sentence following conviction of a criminal charge, as punishment imposed by a court of law and his own situation as a person merely confined to an administrative status, namely "immigration detention", and then pursuant to an Act of Parliament without any conviction, judicial order or proof of an offence.
Answering a statutory question: I accept the appellant's argument that the issue presented by the case he seeks to bring in answer to the charge against him under s 197A of the Act is not resolved by considerations of the common law. It is a statutory question. It presents issues concerned with the meaning of words in an Australian statute ("escape" and "immigration detention") enacted by the Federal Parliament, as understood having regard to the provisions of the Constitution.
In Whipple, the judges[109] were asked only to say whether positive law excused or justified the escape of the prisoner in that case from his confinement following a criminal conviction and therefore warranted the conclusion that the instruction given to the jury in that case had been erroneous. The appellate judges reached their conclusion "with very great reluctance". They did so only because of what they took to be the state of "the established law"[110]. They acknowledged that "if the facts were as stated by the defendant, he was subjected to brutal treatment of extreme atrocity"[111]. They felt unable to find legal error.
However, the issue in Whipple was not the issue raised in these proceedings. From first to last that issue concerns the meaning and operation of a provision in a law enacted by the Parliament. Upon that question statements about the common law, and indeed the provisions of constitutional protections in other countries[112], are of little assistance. Whatever such authorities may say, the question for us remains whether, at a certain point, it is reasonably arguable that intolerable conditions of custody, if proved to exist in his "immigration detention", would provide the appellant with a lawful answer to a charge brought against him under s 197A of the Act.
The other members of this Court are of the opinion that it is not reasonably arguable that they would. I am of the opposite opinion. Three considerations, two of them deriving from the Australian Constitution and one from international law, lead me to my result.

[104]

By parity of reasoning, it is the courts, rather than the legislature itself, that have the function of deciding finally whether disputed facts enliven a statutory provision. Where a law, otherwise understood, would exceed the applicable constitutional powers of the Parliament, this Court in discharge of its own functions, will read down that law or hold it invalid to any extent necessary[125].
If, therefore, on its true construction, s 197A purported to mean that this Court could not determine the meaning of "immigration detention", and therefore that it was not open to this Court to find that certain extreme conditions fell outside "immigration detention" as provided by the Parliament, such meaning would exceed the limits of legislative and executive power under the Constitution. It would contradict the basic function of the judiciary to decide such questions authoritatively. As explained above[126], s 197A should be read so that it conforms with the Constitution. Therefore, s 197A should not be read so as to prevent this Court from determining the meaning of "immigration detention". It presents a question, examinable by the courts, as to whether, in a given case, particular conditions, proved by evidence, amount to "immigration detention" for the purpose of the offence there provided or not. The contrary cannot be asserted consistently with the limited powers of the Parliament and Executive and the function of the courts in declaring conformity, or disconformity, with constitutional powers.
To the extent that there is any ambiguity in the language of s 197A of the Act, the section should be read as permitting the appellant to challenge, in the way he proposes, the application of the section to the facts concerning him. To allow this follows from the requirement explicit in the section that the place from which the appellant "escaped" should answer to the statutory description of "immigration detention". It also follows implicitly from the constitutional necessity to demonstrate a valid connection (which I would call "proportionality"[127]) between the propounded heads of constitutional power[128], necessary to the validity of the section, and the statutory provision for detention of persons such as the appellant.
Putting it quite simply, whereas, as this Court has held[129], the constitutional head of power supports the administrative confinement of a person such as the appellant in "immigration detention", implicitly under reasonable and humane conditions, it would not support his prolonged confinement in inhuman and intolerable conditions. If that form of confinement were attempted in Australia it would be unlawful. It would be contrary to the Constitution. To the extent that the appellant could prove that the conditions in Woomera before his "escape" were inhuman and intolerable, he could avail himself not only of an argument arising out of the meaning of s 197A of the Act but also of a constitutional argument that any other meaning would undermine the validity of the section under the Constitution.

[108]

If, by evidence, the appellant could demonstrate that the conditions in which he was held at Woomera immediately before he left that place passed beyond the language of the Act ("immigration detention") and the purposes for which the Parliament had provided in the Act for detention (holding, processing, admitting or expelling "unlawful" alien entrants) he would have a reasonable argument that his custody not only fell outside the "immigration detention" for which the Parliament had provided. It would also fall outside any such administrative detention for which the Parliament could provide, without the prior authorisation of a judicial order.
Inhuman conditions as punishment: This is a point that distinguishes the issue which the appellant sought to raise from those considered under the common law cases or in jurisdictions where a constitutional norm such as that he invoked is unavailable. It may be accepted that detention of illegal alien entrants to Australia is a burden on their liberty. However, as such, it is not "punishment" of the kind reserved under federal law to the consequences of a judicial order. It may also be allowed that, in federal law, the categories of "exceptional cases", involving involuntary detention without a judicial order[132], are not forever closed[133]. They certainly extend beyond the "exceptional cases" mentioned in Lim. Nevertheless, the basic rule established by Lim remains true today. That case holds that normally "the involuntary detention of [an individual] in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt"[134].
It is one thing to establish, and enforce, a form of administrative custody for the detention of aliens unlawfully entering Australia and for the limited purposes envisaged by the Act. Arguably, it is quite a different thing, outside the Act and beyond constitutional power, to subject such an alien as a detainee to inhuman and intolerable conditions. If such conditions could be proved by evidence, it would be reasonably arguable, as a matter of statutory construction, that "escape" from them was not escape from "immigration detention", as enacted and as constitutionally permitted. Arguably, it would be no more an "escape" from "immigration detention" than it would be for the detainee to "escape" from equivalent inhuman and intolerable conditions into which the detainee had been illegally confined in a wholly private detention facility falling outside the Act. Or in an offshore cage selected in the vain hope of avoiding accountability to the standards of Australian law[135].
On such issues, the designation of the detention facility and the name on the gate could be no more determinative of its statutory and constitutional character than was the name on the gate of the facilities established by oppressive regimes. What matters, in our system of law, is the legal and constitutional character of the "detention". That character is not decided finally by the name that the Parliament adopts or the description which the Executive asserts. It is decided by courts of law applying legal standards to proved evidence.
That is why the decision to prevent the appellant from adducing the evidence that he has propounded, in resistance to the charge brought against him, was legally erroneous. Proof that "punishment" was lawfully inflicted under a valid order of a criminal court might indeed prevent examination of the character and incidents of the punishment that followed, so long at least as it could possibly answer to the description of "imprisonment". But that answer was not available in the present case. Here, there was no judicial order of punishment. There was no judicial order of commitment to imprisonment. An assertion that the true character of the "detention" imposed on the appellant was a form of punishment (permitted, if at all, under the Constitution "only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt"[136]) presented a reasonably arguable allegation that could only be decided by a court acting on evidence. The appellant was therefore entitled to secure evidence addressed to that issue. He was wrongly deprived of that evidence.

[109]

Relevant provisions of international law: A still further consideration reinforces the foregoing conclusions. It is derived from international law binding on Australia pursuant to the provisions of the International Covenant on Civil and Political Rights ("ICCPR")[137]. Australia is a party to that treaty and to the First Optional Protocol that supplements it[138]. The latter renders Australia accountable to the UNHRC for derogations from its obligations under the ICCPR.
The influence of the ICCPR on the development of Australian law was explained by this Court in Mabo v Queensland [No 2][139]. Leaving aside the contested question of whether the Constitution may be construed by reference to international law[140], it has long been established by the authority of this Court that statutes are to be interpreted and applied so as to be in conformity with international law[141]. The presumption of compliance applies "as far as [the] language [of the statute] permits"[142]. However, that is true of all rules for the construction of legislation where language necessarily takes primacy. Ambiguity in the written law will often stimulate consideration of the requirements of international law[143].
It is not in my view essential to demonstrate ambiguity in the meaning of the provision of a statute before this canon of construction may be applied[144]. If the language permits an interpretation that is consistent with international law, that is the construction that should be favoured by Australian courts. I take this to be uncontroversial where, as here, the relevant federal statutory provision (s 197A) was enacted after the ICCPR was signed and ratified by Australia[145]. The interpretive principle applies equally to customary international law and treaty law. The ICCPR is a particularly relevant source of international law because Australia has voluntarily accepted the obligations expressed in it, and in the Protocol. It must therefore be taken to have accepted the obligation to ensure that its enacted laws conform to the requirements of the ICCPR. It is also particularly relevant because Australia has submitted itself to the scrutiny of the UNHRC on alleged infractions of such obligations. Whilst the views of the UNHRC do not constitute decisions that are legally binding upon the "State party concerned"[146], they are entitled to close attention by courts such as this, as the Privy Council remarked in Tangiora v Wellington District Legal Services Committee[147].
Reflecting rights long recognised and protected by the common law and earlier recognised in the Universal Declaration of Human Rights[148], the ICCPR contains provisions relevant to the detention of "unlawful non-citizen[s]" under the Act[149] and the conditions in which (and time during which) such persons might be so detained. Relevant requirements are found in Art 9 of the ICCPR. This is concerned with the right to liberty and security of the person and the right to be exempt from arbitrary detention and to bring proceedings without delay in respect of the lawfulness of detention. Article 10(1) of the ICCPR contains the requirement that persons deprived of their liberty must "be treated with humanity and with respect for the inherent dignity of the human person". By Art 7 it is provided that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Both by the common law, and by force of such provisions of international law, infringement of these rights is not lawful in this country unless sustained by "a clear expression of an unmistakable and unambiguous intention" in valid legislation[150].
When, therefore, in respect of unlawful non-citizens within Australia, the Act permits derogations from personal freedom, and authorises a form of administrative custody called "immigration detention", it will be presumed (in the absence of clear statutory provisions to the contrary[151]) that what the Parliament has provided for is, and is only, a form of "detention" that complies with the norms stated in the ICCPR, relevantly, Arts 7, 9 and 10.
Application of ICCPR to the Act: To take a clear example, the imposition of physical or mental torture as a regular incident of "immigration detention" could never be necessary or appropriate for administrative custody of that kind[152]. The fact that, if it existed, it would breach Art 7 of the ICCPR assists an Australian court such as this to arrive at that conclusion. Similarly, if the conditions of "detention" were to take on an attribute, or character, of retribution or punishment for the deterrence of other would-be "unlawful" aliens tempted to enter Australia without authority, this too would contravene the ICCPR. In default of a judicial order, the imposition of such punitive measures could not, conformably with the Constitution, exist based upon the operation of the Act so far as it provides for "immigration detention". The provisions of the ICCPR reinforce the conclusion to which, in any case, this Court's decision in Lim would lead. Immigration detention, as such, must not be punitive. Even more clearly, it must not involve conditions that are inhuman and intolerable[153].
The respondents themselves accepted that the Act did not authorise inhuman and intolerable conditions in immigration detention. That concession properly recognises the need to read the Act in a way that avoids an operation of federal law that would conflict with international law. However, once that concession is made, a party with a serious claim of a breach of international law must be in a position, on that basis and without delay, to contest the lawfulness of any detention alleged to contravene such standards[154]. As the appellant accepted, and HREOC submitted, the remedies for unlawful conditions of detention would not necessarily extend to release into the community. Instead, the appropriate remedy might be no more than removal from being subjected to the conditions of detention that were inhuman and intolerable. Or it might extend to providing, in a case such as the present, an answer to a criminal offence expressed in terms that assume that the "detention" is lawful.
The provision of a facility for judicial scrutiny of the true legal character of the "immigration detention" of the appellant at the time of his "escape", to allow examination of its alleged features as "arbitrary", "unlawful", involving inhuman and intolerable conditions without respect for the dignity of the human person and subjecting the appellant to "cruel, inhuman or degrading treatment or punishment"[155], would ensure the conformity of the Act under Australian law with the ICCPR. The alternative construction would not. This Court should adopt the meaning that most clearly conforms with the obligations that Australia has freely assumed under the ICCPR. It should avoid a construction that could occasion a breach of those obligations.
This conclusion confirms the reasonable arguability in law of the answer which the appellant wishes to give to the charge that he faces of an offence against s 197A of the Act. In this appeal, it affirms the correctness of the dissenting view of Bleby J in the Full Court.

[112]

The absurdity of restricting a person such as the appellant to collateral remedies is even more plain in this case than it was in Whipple. It is no answer to state that this appellant was represented by senior counsel (by inference acting pro bono). The overwhelming majority of asylum seekers who come to this Court are self-represented, and they are so because they lack the resources to retain counsel. People confined in immigration detention are ordinarily likely to be impecunious, powerless, with limited command of the English language and, in a place as remote as Woomera, with extremely restricted access to legal assistance (and that ordinarily focussed solely on pursuit of a protection visa). Such individuals are much less able even than persons not in detention to pursue expensive civil claims against the Commonwealth and its officials where they commonly stand in peril of costs orders if they fail.
In any case, by the time any such claims reached a court hearing, it would be likely that most of the persons bringing them would have been removed from Australia. The provision to them of a visa to return for the trial would be highly doubtful, to say the least. And, in any case, the Act provides only the smallest toehold for arguments affording substantive rights enforceable under administrative law. By way of contrast, the entitlement available to a person such as the appellant to resist a criminal prosecution based on an offence alleged against s 197A is a realistic one, capable of ready judicial determination. When a person is subjected to criminal process our law is usually tender to that person's right to defend himself or herself by a strict proof of every ingredient of the alleged crime. Even an animal, when cornered, is entitled to defend itself. Human beings have their human dignity, human rights and fundamental freedoms accorded by Australian and international law.
Affording real remedies: This Court should not answer the appellant's endeavour to defend himself from prosecution for such offence by alluding to his "rights" to legal redress that are devoid of any real content or protection. Doing so would involve the Court not only in refusing a forum to determine the "lawfulness of his detention" in a way critical to the determination of his actual legal position[157]. It would also involve a failure of the Australian judicature to address a serious complaint of official unlawfulness in a context where that issue is relevant to the disposition of an actual legal controversy.
The matter can be tested this way. Assume that the appellant was indeed subjected in "immigration detention" at Woomera to prolonged inhuman, intolerable, degrading and unhealthy conditions. Assume that there were no effective means of securing internal redress. Assume also that no effective remedies were available to him to repair serious affronts to his human rights and dignity. These are not unrealistic assumptions to make in today's world - even in respect of the modes of detention carried out by officials of "civilised" societies. In such circumstances, to deny the appellant the argument that he now propounds would, in practice, involve the Australian judiciary washing its hands of his case and of any unlawfulness that he could show in the conditions of his detention in answer to the criminal charge that his detainers now wish to bring against him. In my view, this Court should answer the present case in a realistic way, informed by the preceding considerations that I have identified. We should not give a legal answer that future generations will condemn and that we ourselves will be ashamed of.

[113]

The appellant therefore has a reasonably arguable answer to the prosecution brought against him under s 197A of the Act. It is not strictly a "defence". That is because it is for the prosecution to prove every element of the crime with which it has charged the appellant. However, in practical terms, having proved the uncontested facts that the appellant arrived in Australia as an "unlawful non-citizen", was taken into "immigration detention" and was detained at Woomera which he left otherwise than in accordance with the Act, the prosecutor would establish a prima facie case. To mount an answer to that case, challenging the character of the "detention", in terms of the Act, and the character of his departure as an "escape" from such "detention", the appellant would need to rely on evidence. Forensically, he would be bound to tender such evidence.
It was to that end that the appellant issued the witness summonses out of the Magistrate's Court. Because I reject the assertion that the answer to the charge alleging an offence against s 197A of the Act is unavailable to the appellant as a matter of law, I am of the view that the primary judge erred in setting aside the appellant's witness summonses. The majority of the Full Court erred in failing to correct the primary judge's error.
I agree with the Full Court's conclusion that the primary judge placed too high an onus on the appellant in suggesting that, before witness summonses would be allowed, he was bound to demonstrate that his proposed defence would succeed[158]. However, I do not accept the majority's conclusion that the appellant's complaints about the conditions of his "detention" could not, in law, afford an arguable answer to the charge, apt to respond to an extreme case. Nor do I believe that the theoretical availability of other civil remedies affords the only context in which the judiciary could respond to the appellant's complaints[159]. Such a hollow answer does not represent the law of Australia. It is contrary to the language of the Act, the requirements of the Constitution and the obligations assumed by Australia under international law. It is therefore one that I would reject.

[114]

The notice of contention: The foregoing conclusions require that the appeal be allowed. However, by a notice of contention, the first respondent submitted that the order of the Full Court should be sustained on the basis that the primary judge ought to have held that the witness summonses were oppressive and/or an abuse of process.
It will be remembered that this was one of the two substantive issues raised in the challenge brought to the Supreme Court against the order of the Chief Magistrate[160]. The materials sought in the witness summonses related to documents in the respondents' files concerning the appellant and other detainees at Woomera, past and present, together with incident reports and materials on medical histories and other confidential documents.
The first respondent, by affidavit read in the Supreme Court, suggested a number of reasons why the witness summonses were oppressive. In summary, these were: (1) that they imposed an unreasonable burden in collecting and identifying the voluminous materials sought; (2) that already a very heavy obligation had been imposed identifying relevant files, photocopying items and anonymising some of them for privacy and like reasons; and (3) that public policy objections would arise, together with privacy objections, that would consume undue time and expense to sort out.
The primary judge rejected this argument, finding that no error of principle had been demonstrated in the refusal of the Chief Magistrate to set the summonses aside upon this ground. There is no record that the respondents persisted with this point in the Full Court, by a notice of contention. The Full Court does not deal with it in its reasons.
The issue raised by the notice of contention in this Court was fully argued in oral and written submissions. It is fair to say, as the appellant did, that it would have been unlikely that any of the respondents would have secured special leave to appeal on this point, had it stood alone.
Remitter to the Full Court: Nevertheless, although this Court will sometimes dispose of appeals on the basis of a notice of contention, even one raising arguments never advanced in the courts below[161], my own view is that such a course should be reserved for a truly exceptional case. Ordinarily, where necessary, such points should be dealt with by the intermediate court. Any other course may unjustly deprive a party of the opportunity of further appellate reconsideration of a decision on the point.
I cannot say that the complaint of oppression by the very wide terms of the witness summonses is unarguable. On the contrary, I can understand the opinion which Callinan J expresses in his reasons concerning the scope of the summonses[162]. As my disposition of this appeal is a minority one, I will not delay over this issue. It is sufficient to say that, for the establishment of the answer which the appellant wishes to bring to the charge against him under s 197A of the Act, much more precisely drawn summonses would have sufficed.
Had this been the only objection to the witness summonses, practical considerations might well have encouraged negotiations between the parties and identification by the appellant of the essential evidence that he demanded. In the way the appeal was argued this issue was not ultimately refined. It is not suitable for decision by this Court.

[115]

The appeal should be allowed with costs. The order of the Full Court of the Supreme Court of South Australia should be set aside. In lieu of that order, there should be substituted an order granting leave to appeal against the orders of the primary judge. Those orders should be set aside. The proceedings should be returned to the Full Court of the Supreme Court of South Australia to dispose of the questions raised in the notice of contention filed by the first respondent in this Court. The costs of the appeal to the Full Court of the Supreme Court of South Australia should abide the final disposition of the application to that Court, made consistently with the decision of this Court.
HAYNE J. The Migration Act 1958 (Cth) ("the Act") requires that unlawful non‑citizens be kept in immigration detention until one of three events occurs (the non‑citizen is removed or deported from Australia or is granted a visa). The appellant is, and since before 18 November 2001 has been, an unlawful non‑citizen. He has not been removed from Australia and has not been granted a visa. "Immigration detention" means, among other things, being held in a detention centre established under the Act. The appellant was being held at the Woomera Immigration Reception and Processing Centre ("Woomera"), a place which had been established as a detention centre. Section 197A provides that a person detained must not escape from immigration detention. The penalty prescribed is imprisonment for five years. It is alleged that the appellant escaped from Woomera.
This appeal raises two issues. First, could the conditions in which persons were held be so bad that the place of detention ceased to be a detention centre? These reasons will seek to demonstrate that, contrary to the appellant's submissions, the conditions under which a person is held at a detention centre are irrelevant to whether the detention from which the person escaped was "immigration detention".
The second issue, which would arise only if the appellant succeeded on the first issue, concerns the breadth of summonses to witnesses issued on the appellant's behalf requiring the production of documents which it is alleged may show what were the conditions under which the appellant was detained at Woomera.

[116]

The appellant was charged in the Port Augusta Magistrates Court with escaping from immigration detention. The particulars given of that offence were that on or about 18 November 2001 the appellant, being a detainee at Woomera, escaped. The appellant obtained the issue of witness summonses under the Magistrates Court Act 1991 (SA) (s 20), one of which was directed to the proper officer of the Department of Immigration and Multicultural and Indigenous Affairs. Similar summonses were issued to the proper officer of the third and fourth respondents. Each summons required the production of any document which had come into existence since 1 December 1999 and met one or more of the descriptions set out in nine paragraphs. It is enough to describe the documents that were sought as being concerned with conditions and complaints about conditions at Woomera. The Secretary of the Department and the third and fourth respondents each applied to set aside the witness summonses on the ground that each summons was oppressive and an abuse of process. In substance two matters were identified as requiring that conclusion. First, it was said that "the issue to which all of the documents may be relevant is an issue upon which, for constitutional reasons, the [appellant] cannot possibly succeed". Secondly, each summons was said to be too wide.
The Chief Magistrate of South Australia, Mr Moss, dismissed the application to set aside the summonses. Pursuant to s 42 of the Magistrates Court Act, the Secretary of the Department and the third and fourth respondents appealed to the Supreme Court of South Australia. At first instance, Gray J allowed the appeals[163] and ordered that the summonses be set aside. By majority (Lander and Besanko JJ; Bleby J dissenting), the application of the appellant (and two other men charged with him, but since removed from Australia) for leave to appeal to the Full Court of the Supreme Court of South Australia was dismissed[164]. The majority of the Court held[165] that it was not "reasonably arguable that [the primary judge] erred in concluding that the [appellant] had not identified a defence known to law". Their Honours went on to say[166]:

[131]

"Detain" is used in s 189 of the Act. Among other things, that section obliges an officer to "detain" a person who the officer knows or reasonably suspects to be an unlawful non‑citizen in the migration zone. "Detain" is not used in s 197A, which provides that "[a] detainee must not escape from immigration detention". But "detained" is used in the Act's definition of "detainee" as meaning "a person detained". It follows that, subject as always to any contrary intention appearing, the definition of "detain" informs the meaning of "detainee"[170].
The appellant submitted that the words "as are reasonably necessary to do so", appearing at the end of the definition of "detain", govern all that precede them in the definition. In particular, so it was submitted, the detention and conditions of detention permitted and required by those provisions of the Act which used "detain", or one of its parts of speech, were limited to detention reasonably necessary for migration control purposes. Although the argument necessarily directed attention to the conditions of detention, it was framed as an argument which would mark both the temporal and the physical boundaries of permissible detention by reference to what was "reasonably necessary".
The immediate answer to this aspect of the appellant's contentions is that the words of the definition of "detain" do not bear the meaning asserted. The phrase "as are reasonably necessary to do so" qualifies the expressions "taking such action" and "using such force". Those expressions, in turn, amplify what is meant by "take into" immigration detention and "keep, or cause to be kept" in immigration detention. It is to those actions which "to do so" refers. The phrase "as are reasonably necessary to do so" does not qualify what is meant by "immigration detention". That latter term is, as has earlier been pointed out, a defined term. One of its meanings is being held by, or on behalf of, an officer at a particular kind of place. The conditions that exist at that place form no part of the statutory identification of what is "immigration detention".

[132]

Is there, as the appellant contended, a constitutional reason to confine the statutory meaning of immigration detention to detention in such conditions as are reasonably capable of being seen as necessary for migration control purposes? Is there a constitutional reason to conclude that the appellant's detention would cease to be immigration detention if the conditions of confinement passed beyond what was reasonably capable of being seen as necessary for migration control purposes?
In the courts below, the appellant explicitly disavowed any contention based on doctrines of necessity. He did not seek to make such a case in this Court. Thus he may be taken to have disclaimed any argument that his departure (to use a designedly neutral term) from Woomera was necessary to preserve his life or limb. No argument was advanced by analogy with the prisoner who leaves a gaol because it is on fire and, to stay within the prison boundaries, would be to risk death or serious injury[171]. Rather, the appellant's argument depended upon identifying "immigration detention" in a way that not only permitted, but required, consideration of the conditions experienced by the detainee.
The first and second respondents (the Secretary of the Department and the Attorney‑General of the Commonwealth) accepted that the Act does not authorise detention in inhumane conditions. But they submitted that the conditions under which the appellant was detained are irrelevant to whether he escaped from "immigration detention".
Central to the appellant's contentions was that there is no "meaningful" (presumably in the sense of legally relevant) distinction to be drawn between detention and the conditions of detention. The appellant submitted that there can be no detention without conditions of detention, and that detention, and the manner of detention are one and the same thing. Thus, so the argument proceeded, the Act can only validly authorise detention under conditions that are reasonably capable of being seen as necessary for migration control purposes.
The appellant's argument founded upon what was said in the joint reasons of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration[172]. There, their Honours said, of what were the then provisions of ss 54L and 54N of the Act, that those sections:

[135]

The appellant accepted that there were cases in which detention of non‑citizens was reasonably necessary for migration control purposes. The particular mode of immigration detention permissible was said to depend on the particular circumstances of individual cases. To detain non‑citizens in conditions harsher than those reasonably necessary for migration control purposes was said to be punitive. Because it was punitive it could not validly be authorised except as a consequence of the exercise of the judicial power under Ch III of the Constitution.
The Act, in terms, authorised the appellant's detention at any of a number of identified places. By its definition of "detain", the Act permitted taking such action and using such force as was reasonably necessary to keep the appellant at one of those places of detention. Otherwise, the Act was silent about how the appellant might be treated while at a place of detention.
If it is assumed, for the purposes of argument, that it could be shown that those kept at a place of detention were treated harshly, the lawfulness of such treatment may very well be open to challenge. The detaining authority owes duties of reasonable care to those whom it detains[174]. To use more than such force as is reasonably necessary to keep someone in detention would constitute an assault. So the examples could be multiplied. But the place at which the person is detained would remain one of the places identified by the Act where to be held by or on behalf of an officer would mean being in "immigration detention". And any want of valid legislative authority to commit those acts or make those omissions, which together are said to render the conditions of detention harsh or punitive, denies the lawfulness of those acts and omissions. It does not deny the lawfulness of detention at the place identified in the Act.
The question which the appellant sought to pose - can the appellant's detention at Woomera, in the conditions he experienced, be seen as reasonably necessary for migration control purposes? - cannot be confined to an inquiry about conditions of detention. As was pointed out in argument, the logical consequence of this contention (that detention could be permitted only for migration control purposes) was that s 189 of the Act was invalid in so far as it provided for the mandatory detention of all unlawful non‑citizens. Necessarily, the question posed would permit the answer that, in a particular case, no restraint of any kind on the liberty of the non‑citizen was necessary. That is, the question is one which challenges not only the conditions in which detainees are held, it challenges the validity of those provisions requiring mandatory detention of unlawful non‑citizens. For the reasons I give in Al‑Kateb, I consider that those provisions of the Act which provide for the mandatory detention of unlawful non‑citizens for the period described in s 196 of the Act are valid laws of the Commonwealth.
Once that conclusion is reached, it follows that the inquiry about conditions of detention must be irrelevant. What the Act fastens upon is the place of detention, not the conditions experienced while at that place. The limitation on power of the kind to which the appellant points affects the lawfulness of what is done and not done at that place. It does not deny the applicability of the statutory description "immigration detention" to being kept at such a place. It is unnecessary, therefore, to confront the formidable difficulties which an inquiry about conditions would present for identifying when, exactly, detention passed from lawful to unlawful[175].

[136]

The material sought by the witness summonses relating only to the conditions of detention at Woomera, the summonses should have been set aside. Because an appeal to the Full Court against the orders of Gray J would, therefore, have failed, the Full Court's order refusing leave to appeal to that Court should not be disturbed.
It is, therefore, unnecessary to reach the second, subsidiary, issue which was raised: whether the witness summonses were too wide. The summonses required the identification of documents which came into existence between 1 December 1999 and 18 November 2001. The evidence adduced at the hearing of the application to set aside the summonses suggested that it would be necessary to examine more than 3,000 files, more than 1,500 electronic documents and about 6,000 incident reports. About 745 hours had already been spent by at least 47 officers in identifying and locating files and it was estimated that completion of the process would be likely to take more than a further 1,000 hours. The task to be undertaken was, therefore, very large.
Without first identifying the issue in the case to which such material may be relevant, it is not possible to conclude, from those figures alone, that the summonses were oppressively wide. Further, these being criminal proceedings, in which procedures for discovery of documents were not available, the drawing of analogies between the obligations imposed by the witness summonses, and those which would arise under processes of discovery, are not conclusive of whether the summonses should be set aside as an abuse of process.
Summonses to witnesses requiring the production of documents or other materials are not to be used for purposes other than requiring production of those documents and materials to the court[176]. That the documents sought by these witness summonses included documents created nearly two years before the date of the appellant's alleged offence, taken with the breadth of subjects covered by the specification of documents made in the summonses, may well suggest strongly that the summonses were not issued for the purpose of production of the documents to the court, so much as for the purpose of permitting the appellant's advisers to trawl through what was produced in the hope of generating lines of inquiry not otherwise available to support the case which it was sought to make. To decide whether that is so, however, would require a much closer analysis of the categories of documents sought, by reference to a relevant legal issue. Having concluded that the issue which the appellant seeks to raise is irrelevant, that inquiry cannot be made.
The appeal must be dismissed with costs.
CALLINAN J. The principal question in this appeal is whether harsh conditions of detention of illegal entrants to this country may constitute punishment of a kind which may only be imposed by courts in the exercise of judicial power.

[269]

It is the appellant's principal submission that if the conditions of his detention can be shown to be inhumane in fact, the detention is in substance punitive no matter how it is described, and indeed, regardless of any expressed purpose. As to this, the respondents' argument should be accepted: that the appellant's submission conflates two separate issues, of the unlawful authority to detain, on the one hand, and of the conditions within detention on the other. The constitutional requirement of the exercise of judicial power by the judiciary is only infringed if the conferral of authority to detain does not fall within an exceptional class not of a punitive character. The question whether the law authorizing detention (and saying nothing about the conditions of it) is reasonably capable of being seen as necessary for a legitimate purpose within the aliens power, cannot be concerned with a qualitative assessment of the conditions of detention. It is concerned with the purpose of the law authorizing detention.
The appellant accepts that the Act and the detention under it do not deprive him of his right to sue in tort or to pursue other causes of action generally available to citizens and others in the community. Similarly, it may be that remedies would be available for infringement of, or failure to comply with, regulations or guidelines (if any) governing or affecting immigration detention. The Act certainly provides no charter for detention in brutal conditions[196]. As Gray J said[197] in his reasons, "[t]he custodians of detainees are legally accountable."
This Court has not been called upon to correct, or to compel compliance with any arrangements whether made by regulation or otherwise, for the humane detention of aliens. This can be compared and contrasted with the decision of the Supreme Court of the United States in Bell v Wolfish[198] (a case of pre-trial detention) upon which the appellant relied. There, the Court left open the possibility of habeas corpus to review and correct conditions of confinement in breach of constitutional guarantees of that nation, but not to permit release from detention. The Court said[199]:

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