The Proper Construction of s 196(4) and (5)(b)
81 The respondent submits that the applicant's continued detention after his initial lawful detention on 9 June 2016 by Messrs Jamieson and Clifford under s 189 and again after his initial lawful detention on 16 September 2016 by Mr Jones under s 189 was authorised, and indeed required, by s 196(4) and (5)(b) of the Act. The respondent submits that if this is correct, then should I conclude (as I have) that there is no evidence of compliance with s 189 during the applicant's continuing detention or any part thereof, nevertheless, that did not affect the lawfulness of the applicant's continuing detention.
82 The applicant submits that s 196(4) and (5)(b) should not be construed in the manner advanced by the respondent and he advances a narrower construction of the subsections. Therefore, the first issue to be addressed is the correct construction of s 196(4) and (5)(b). The applicant submits in the alternative that if the correct construction of s 196(4) and (5)(b) is the construction advanced by the respondent, then those subsections are, to that extent, constitutionally invalid and it should be held that the subsections do not operate beyond the applicant's narrow construction. The basis of the applicant's constitutional challenge is that the operation of s 196(4) and (5)(b) in the manner advanced by the respondent would contravene the investment of the judicial power of the Commonwealth in Ch III Courts (Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 (Lim) at 10 per Mason CJ), or to use the words of Brennan, Deane and Dawson JJ in the same case (at 33), that operation "will contravene Ch III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates".
83 I begin with the correct construction of s 196(4) and (5)(b). The construction of the statutory provisions "will give effect to the ordinary meaning of [the] text in the wider statutory context and with reference to the purpose of its [provisions]" (North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 (North Australian Aboriginal Justice Agency v Northern Territory) at [11] per French CJ, Kiefel J (as her Honour then was) and Bell J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ).
84 The applicant submits that the construction of s 196(4) and (5)(b) which he advances, although involving a gloss on the statutory provisions, is less of a gloss than that involved in the construction advanced by the respondent. His construction involves reading s 196(4) as if the words "if the person is detained as a result of the cancellation of his or her visa" read "if the person is on an ongoing continuous basis detained lawfully under s 189 as a result of the cancellation of his or her visa", whereas the respondent's construction involves reading the said words as if they read "if the person was detained and the detention was initially lawful under s 189". These alternative formulations highlight the point of difference between the parties. On the applicant's proposed construction, s 196(4) is not a separate source of a power (and obligation) to detain and the requirements of s 189 must be met at all times during a person's detention. On the respondent's proposed construction, the requirements of s 189 need only be met at the time of the initial detention of the person.
85 In my opinion, the parties are correct to proceed on the basis that s 196(4) and (5)(b) are predicated on at least an initial lawful detention under s 189. There are two indicators of this. First, s 196(1) identifies the subject matter of the whole section and it provides for the keeping of a person in immigration detention after he or she has been detained under s 189. Secondly, and perhaps no more than a confirmation of the first point, the reference to "the" person in s 196(4) indicates that the subsection is dealing with a subclass (i.e., persons detained under s 189 as a result of the cancellation of his or her visa under ss 501, 501A, 501B, 501BA or 501F) of the class otherwise dealt with by the section (i.e., unlawful non-citizens detained under s 189).
86 In my opinion, s 196(4) is capable of being read as requiring only an initial lawful detention under s 189, or as requiring an ongoing lawful detention under s 189.
87 Part of the constructional exercise where two constructions are open involves a consideration of the operation of the statutory provisions on each of the constructions advanced.
88 Although the respondent's proposed construction would overcome difficulties for a detaining party in cases where it encountered difficulties of proof or where the reasonable suspicion required by s 189 was held by officers, but not by those officers detaining the persons, logically it would also cover cases in which no officer held the reasonable suspicion required by s 189 and furthermore, cases where officers or members of the Department knew or believed that the person detained was not an unlawful non-citizen. I am not suggesting that the latter circumstances are established in this case, but that is not the point. The point is the latter circumstances would fall within the operation of the subsections on the construction advanced by the respondent. In the latter circumstances, the person detained could not be released without the final determination of a court, possibly on the application of the respondent, that the person's detention is unlawful or that he or she is not an unlawful non-citizen. In my respectful opinion, it seems unlikely Parliament would intend the system of the detention of unlawful non-citizens or those reasonably suspected of meeting that description to operate in a way that would have that consequence. There is a further point about the operation of the subsection on the respondent's interpretation. The two events, either of which will bring the detention to an end, are a final determination by a court that the detention is unlawful or a final determination by a court that the person detained is not an unlawful non-citizen. The applicant submits that the first event will never occur on the respondent's construction because, as a result of that construction, the person's detention will never be unlawful and this would mean that the only effective terminating event is the second one (i.e., a final determination that the person detained is not an unlawful non-citizen). This appears to be correct and means that, unlike the applicant's construction, the respondent's construction results in a phrase being "superfluous, void, or insignificant", to use the words of Griffith CJ in The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 (referring to R v Berchet (1690) 1 Show KB 106); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ. This is a reason to support the applicant's construction of s 196(4).
89 The applicant submits that the principle of legality supports the construction he advances. The steps in his argument are as follows. First, he points out, correctly, that the right of personal liberty is the most elementary and important of all common law rights (Trobridge v Hardy at 152 per Fullagar J; Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 292 per Mason and Brennan JJ). Secondly, the principle of legality means that in the construction of a statute it will be assumed that Parliament did not intend to abrogate or curtail certain human rights or freedoms unless the intention to do so is clearly manifested by unambiguous language. There are many statements of this approach in the authorities. A well-known statement is that made in the joint reasons of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 (at 437):
The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
(See also North Australian Aboriginal Justice Agency v Northern Territory at [11] per French CJ, Kiefel and Bell JJ; Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2005) 221 CLR 309 at [19]-[22] per Gleeson CJ; Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1 at [42]-[43] per French CJ.)
90 A statement of the approach made in the particular context of administrative detention by the Executive is that of Gleeson CJ in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb v Godwin) (at [19]-[20]):
Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness" .
A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.
(Citation omitted; see also Mason CJ in Lim at 12.)
91 The assumption or principle of construction should not be pushed beyond its proper limits. Those limits were identified by Gageler and Keane JJ in Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 (Lee) (at [313]):
Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
92 Their Honours also made certain observations which are relevant to the third step in the applicant's argument. That third step is that the assumption or principle may apply where the extent of the encroachment on personal liberty is the issue raised by the issue of construction and is not restricted to a case where the question is whether any encroachment was intended by Parliament. In Lee, Gageler and Keane JJ said (at [314]):
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that "[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve".
93 The applicant advanced this third step because he recognised that s 196(4) and (5)(b) considered in the context of s 189, and s 196 as a whole, undoubtedly involve an abrogation or curtailment of a personal liberty and the issue is one of the extent of the abrogation or curtailment. Even if attention is confined to s 196(4) and (5)(b), that remains the issue because even on the construction advanced by the applicant (as explained below), there is some loss of personal liberty because a court could no longer order the interlocutory release of a person in detention.
94 It seems to me that whether the assumption or principle of legality will be relevant where the constructional choice involves the extent of the abrogation or curtailment (and not whether the legislation affects an abrogation or curtailment) will depend on the circumstances of the case. If the extent of the abrogation or curtailment is significantly different, or the nature of the abrogation or curtailment is significantly different as between the competing constructions, then the principle of legality may operate. In other cases it may, in all the circumstances, be of little significance. I put some weight on the principle of legality in this case, but ultimately it seems to me that there are more important matters supporting the construction of s 196(4) and (5)(b) advanced by the applicant.
95 As I have said, the applicant puts an alternative argument that if the statutory provisions are construed in the manner advanced by the respondent, then they are constitutionally invalid to the extent they have an operation beyond the applicant's construction. I deal with the constitutional argument below and I accept the applicant's submission that the respondent's construction involves constitutional invalidity. This is a reason to favour the applicant's construction of the statutory provisions. In Lim, Mason CJ said the following about what his Honour described as the presumption of validity (at 14):
The interpretation which I would give to s. 54R is supported by the presumption in favour of validity. To repeat the words of Isaacs J. in Federal Commissioner of Taxation v. Munro; British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation:
"There is always an initial presumption that Parliament did not intend to pass beyond constitutional bounds. If the language of a statute is not so intractable as to be incapable of being consistent with this presumption, the presumption should prevail."
Dixon J. wrote to the same effect in Attorney-General (Viet.) v. The Commonwealth ("the Pharmaceutical Benefits Case") when he said:
"In discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour. We should give to the powers conferred upon the Parliament as ample an application as the expressed intention and the recognised implications of the Constitution will allow. We should interpret the enactment, so far as its language permits, so as to bring it within the application of those powers and we should not, unless the intention is clear, read it as exceeding them."
That approach accords with s. 15A of the Acts Interpretation Act 1901 (Cth).
(Citations omitted; see also Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, Australia, 2019) at [5.11].)
96 Again, this presumption or principle is not to be pushed or extended beyond its proper limits (International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 at [41]-[42] per French CJ; North Australian Aboriginal Justice Agency v Northern Territory at [79] per Gageler J.) In the former of those two cases, French CJ said (at [41]-[42]):
The process of statutory construction, including the identification of constructional choices, is informed by text, context and legislative purpose and, when applicable, the conservative principle that, absent clear words, Parliament does not intend to encroach upon fundamental common law principles, including the requirement that courts accord procedural fairness to those who are to be affected by their orders. Further, where there is a constructional choice that would place the statute within the limits of constitutional power and another that would place it outside those limits, the former is to be preferred.
There is a caveat which should be entered in relation to these principles. The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning. In the context of the present case, that risk is enhanced where the provision, on the face of it, appears to require the Supreme Court to hear only from the moving party where that party chooses to make an ex parte application.
(Footnotes omitted.)
97 I consider that the principle does operate in this case because, to use the words of French CJ, I do not think that the construction advanced by the applicant is "artificial or departs markedly from their ordinary meaning", or that the applicant's construction involves any more of a "judicial gloss" than that advanced by the respondent.
98 Both parties referred to the extrinsic material in relation to the amendment in 2003 which introduced subss (4)-(7) inclusive into s 196 (in its present form, subject to some amendments after 2003 which are not material in terms of the present issues). That amendment was the Migration Amendment (Duration of Detention) Act 2003 (Cth) (No 90, 2003) (the 2003 Amendment).
99 In order to put the extrinsic material relating to the 2003 Amendment in context, it is necessary to identify a particular issue which had arisen prior to 2003 and the way in which the authorities dealt with that issue.
100 In broad terms, the issue was whether provisions of the Act (prior to the 2003 Amendment) dealing with a person's detention negated this Court's power to order the interlocutory release of the person under a general power in the Court such as s 23 of the Federal Court of Australia Act 1976 (Cth) (power to make orders of such kinds, including interlocutory orders, "as the Court thinks appropriate").
101 A Full Court of this Court affirmed this Court's power to make an interlocutory order for the release of a person held in detention pending a final determination of an application to review a decision to deport that person in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169. The Court decided that provisions of the Federal Court of Australia Act, including s 23, and a provision of the Administrative Decisions (Judicial Review) Act 1977 (Cth) empowered the Court to order the interlocutory release of a person detained pending the final determination of a person's challenge to the decision which led to his or her detention.
102 Chief Justice Mason and Justice Toohey addressed the issue in Lim. The particular issue in that case was whether s 54R of the Act negated a Court's power to order the interlocutory release of an applicant in detention. The then s 54R provided that a court was not to order the release from custody of a designated person. Mason CJ and Toohey J held that that section did not have the effect of negating a Court's power to order the interlocutory release of a person in detention.
103 Chief Justice Mason said (at 13-14):
Read as I would read it, s. 54R does not preclude a court from making an interlocutory order for the release of a designated person who makes out a suitably strong prima facie case that he or she is not being held in lawful custody pursuant to Div. 4B. The section operates only when the designated person is lawfully held in custody pursuant to that Division. The Federal Court has, on numerous occasions, affirmed that it has power to make an interlocutory order for the release of a person held in custody pending a final determination by way of review of a decision to deport that person. With that in mind, it is conceivable that Parliament may have intended, by the enactment of s. 54R, to deny jurisdiction to the courts to make an interlocutory order for the release of a designated person so that the courts' jurisdiction to order the release of such a person was confined to the making of an order pronounced after a final determination that the person's detention was unlawful. Whether Parliament could validly legislate to that effect is not a question which needs to be explored here because s. 54R is not expressed in a form apt to achieve that result.
(Citations omitted; note the words I have emphasised; see Toohey J at 51.)
104 The issue came before the Full Court of this Court in 2002 (the year before the amendment) in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCFAC 390; (2002) 125 FCR 249 (VFAD of 2002). The issue in that case was whether s 196(3) of the Act negated this Court's power under s 23 of the Federal Court of Australia Act to order the interlocutory release of an applicant in detention. At the time, s 196(3) was (subject to some matters not material for present purposes) in similar terms to the subsection as it is relevant to this proceeding. The Court held that it did not negate the Court's power.
105 The Court referred to the primary judge's reasoning in that case and in that context said (at [47]-[48]):
The primary judge then turned to the question whether s 196(3) should be construed as either expressly or impliedly denying the power under s 23. His Honour noted a line of authority in this Court which holds that the general power conferred by the section can be exercised to order the release, on an interlocutory basis, of persons in immigration detention. The authorities include the decision of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169, a case to which we shall return. He also observed that the general power conferred by s 23 had been invoked even after the enactment of s 196(3) in 1994.
The primary judge also referred to passages in the judgments of Mason CJ and Toohey J in Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 13 and 51 respectively in which their Honours accepted that s 54R of the Migration Act, as it then stood, which provided for mandatory detention of "designated persons" and that a court could not order their release, did not deny the Court's interlocutory power to do so.
106 The Court rejected the submission that s 196(3) expressly or impliedly denied or abrogated the power in s 23 and in that context said (at [104] and [113]):
104 The Minister's submission that s 196(3) expressly abrogated the s 23 power in relation to persons kept in immigration detention must be rejected. Section 196(3) is silent as to the power of this Court to grant interlocutory relief in circumstances where a person in detention claims not to be an unlawful non-citizen. Moreover, s 196(2) makes it clear that persons who are lawful non-citizens are not caught by s 196, and are not to be detained.
113 We are unable to accept the Minister's submission that s 196(3), upon its proper construction, impliedly denies the s 23 power to this Court. In our opinion, Parliament has not made "unmistakably clear" its intention to abrogate the power of this Court to protect a "fundamental freedom" by ordering the release, in appropriate circumstances, on an interlocutory basis, of persons in detention who have seriously arguable claims to be lawful non-citizens and thus to have their liberty.
107 The Court reiterated in its conclusion the need for very clear language before it would conclude that the Court had been deprived of the general power to grant interlocutory relief which is conferred by s 23 of the Federal Court of Australia Act. The Court said (at [159]):
There is nothing in the language of s 196(3) which, expressly or impliedly, prevents this Court from ordering the release, on an interlocutory basis, of a person who establishes that there is a serious question to be tried regarding the lawfulness of that person's detention. Regrettably, though perhaps inevitably, the task of finally resolving that question may involve a lengthy process. The right to be free from arbitrary and unlawful detention is as fundamental a freedom as our system of values recognises. It is of such paramount importance that it would be remarkable if this Court, in which is vested the judicial power of the Commonwealth, could not, in an appropriate case, order the release of a person from detention, at least on an interlocutory basis. It would require language of much greater clarity than any contained in s 196(3) to deprive the Court of the general power to grant interlocutory relief which is conferred by s 23.
108 I have referred to this matter at some length because the applicant submits that the "mischief" which the 2003 Amendment was designed to remedy was the Court ordering the interlocutory release of a detainee. In other words, the amendment was designed to make it clear that an applicant in detention who was challenging a decision was not to be released on satisfying the requirements for an interlocutory injunction pending the final determination of the challenge by the Court.
109 I turn now to the extrinsic material. I start by identifying the Bills and Act which are potentially relevant. They are as follows:
(1) In Migration Amendment (Duration of Detention) Bill 2003 (Cth), cl 196(4) applied to all detainees, not just those who had had their visa cancelled under s 501.
(2) The Bill was subsequently amended so that cl 196(4) applied only to detainees detained as a result of the cancellation of his or her visa under s 501 (the reference to ss 501A, 501B, 501BA or 501F in the section as it presently stands was added by the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) (No 10, 2017)). A new subsection, cl 194(4A), dealing with persons detained pending their deportation under s 200 was added.
(3) The Amendment Act as passed.
(4) A Bill in 2004 (Migration Amendment (Duration of Detention) Bill 2004) purported to reintroduce a subsection 196(4) in the form in which it was in the original 2003 Bill (i.e., the subsection applied to all detainees). This Bill was not enacted and there is a question as to whether I can have any regard to it or any of the extrinsic material related to it.
110 Both parties referred to passages in the Minister's Second Reading Speech and the Explanatory Memorandum in relation to the 2003 Bill as it was originally proposed. The applicant also relied on the Supplementary Explanatory Memorandum in relation to the 2003 Bill as it was following amendment.
111 The passages in the Second Reading Speech which were relied upon by one or other of the parties were as follows:
The intention of section 196 was to make it clear that there was to be no discretion for any person or court to release from detention an unlawful non-citizen who is lawfully being held in immigration detention.
Mandatory detention remains an integral part of the government's unauthorised arrivals policy. The government needs to ensure, as a matter of public policy, that all unlawful non-citizens are detained until their status is clarified. This means that they must continue to be detained until one of three things happens: either that they are removed or deported from Australia or that they are granted a visa. It is not acceptable that any person who is, or who is suspected of being, an unlawful non-citizen is allowed out into the community until the question of their status is resolved.
Since the latter part of 2002, the Federal Court has decided that the Migration Act does not preclude the court from making interlocutory orders that persons be released from immigration detention pending the court's final determination of the person's judicial review application.
Such orders mean that a person must be released into the community until such time as the court finally determines their application. The court's final determination of the case can take anywhere between several weeks and several months. Where the person is subsequently unsuccessful, that person must be relocated, redetained and arrangements then made for their removal from Australia. This is a time consuming and costly process and can further delay removal from Australia.
I understand that there have now been some 20 persons released from immigration detention on the basis of interlocutory orders. In the case of more than half of these persons removal action had been commenced, as they are of significant character concern, and the government believes their presence is a serious risk to the Australian community.
In its judgements, the Federal Court has indicated that if the parliament wishes to prevent a court from ordering the interlocutory release of a person from immigration detention it must make its intentions unmistakably clear. This bill is intended to achieve this.
The bill amends the Migration Act to make it clear that, unless an unlawful non-citizen is removed from Australia, deported or granted a visa, the non-citizen must be kept in immigration detention. This applies unless a court finally determines that:
• the detention is unlawful; or
• the person is not an unlawful non-citizen.
The bill ensures that an unlawful non-citizen must be kept in immigration detention pending determination of any substantive proceedings, whether or not:
• there is a real likelihood of the person detained being removed from Australia or deported in the reasonably foreseeable future; or
• a decision to refuse to grant, to cancel or refuse to reinstate a visa may be determined to be unlawful by a court.
…
I stress that the amendments contained in the bill do not affect the court's powers to finally determine the lawfulness of a person's detention, or to finally determine the lawfulness of the decision or action being challenged.
They are intended simply to clarify the existing provisions of the act. They do no more than what the courts have said that the parliament needs to do. That is, make its intention in relation to immigration detention unmistakably clear.
112 The passages in the Explanatory Memorandum relied on by one or other of the parties were as follows:
5. The Bill seeks to prevent the release of a detainee from immigration detention pending a court's determination of the substantive matter as to the lawfulness of the person's detention or whether the person is an unlawful non-citizen.
…
11. New subsection 196(4) puts it beyond doubt that, unless an unlawful non-citizen is removed, deported or granted a visa, he or she must be kept in immigration detention except where a court makes final orders that:
• the detention is unlawful (paragraph (a)); or
• the person detained is not an unlawful non-citizen (paragraph (b)).
1. New paragraph [196(5)(a)] would cover circumstances where a court finally determines that there is no real likelihood that an unlawful non-citizen will be removed from Australia in the reasonably foreseeable future, and therefore the detention is unlawful.
2. New paragraph [196(5)(a)] applies to circumstances where a court finally determines that a person in immigration detention is not an unlawful non-citizen.
3. The purpose of new subsection 196(4) is to make it clear that a person cannot be released from immigration detention pending determination of any substantive proceedings relating to either the lawfulness of the person's detention or whether the person is an unlawful non-citizen.
4. New subsection 196(4) is subject to existing paragraphs 196(1)(a), (b) and (c) of the Act. That is, new subsection 196(4) does not prevent a person being released from immigration detention if the non-citizen is granted a visa, or is removed from Australia or deported.
5. New subsection 196(4) does not prevent a person being released from immigration detention if the person is a lawful non-citizen.
113 The applicant relied on the following passages in the Supplementary Explanatory Memorandum:
OUTLINE
5. Despite the current provisions relating to immigration detention, there has been a series of cases in which the Federal Court has ordered the interlocutory release of immigration detainees, prior to the resolution of their substantive court proceedings. In many of these instances, the person had been detained because they had had their visa cancelled on character grounds. Specifically, the records of such persons indicate a history of prior criminal convictions sufficiently serious to cause them to be considered as persons of character concern. The Government's major concern is that the release of persons of character concern does not occur, where that release may place members of the Australian community at risk.
…
NOTES ON AMENDMENTS
2. The new proposed subsection (4) puts it beyond doubt that if a person is detained under section 196 of the Act as a result of the cancellation of his or her visa under section 501 of the Act, their detention must continue until the final determination of any substantive proceedings relating to either the lawfulness of the person's detention or whether the person is an unlawful non-citizen.
114 In my opinion, the extrinsic material in relation to the 2003 Amendment introducing s 196(4) and (5)(b) into s 196 of the Act supports the construction advanced by the applicant. The "mischief" identified is of a court releasing a detainee on an interlocutory basis and before a final determination by the Court. There is nothing to suggest a "mischief" of the release of a person before a final determination by a court in circumstances where an officer once held a reasonable suspicion that the person was an unlawful non-citizen, but that officer (or indeed any other officer) no longer holds a belief that the person is an unlawful non-citizen.
115 I have considered the extrinsic material in relation to the 2004 Bill, but I do not need to discuss that material because I do not consider that can be used to throw light on the amendments to s 196 in 2003.
116 The applicant submits that the decision in Guo supports the construction of s 196(4) and (5)(b) which he advances.
117 In that case, Mr Guo was detained for a substantial period of time and he brought a proceeding against the Commonwealth claiming damages for false imprisonment. He succeeded in establishing that his detention was unlawful and he was awarded nominal damages and exemplary damages. Of present relevance is the consideration by Jagot J of a submission by the Commonwealth that Mr Guo's continuing detention was authorised and required by s 196(1) of the Act, irrespective of whether there was, on an ongoing basis, an officer detaining Mr Guo who had a reasonable suspicion that he was an unlawful non-citizen within s 189. Her Honour rejected the Commonwealth's submission.
118 Section 196(4) was not in issue in the case because Mr Guo was the subject of visa refusal, not a visa cancellation.
119 Mr Guo also put an argument about the interrelationship between s 189 and s 196 of the Act which Jagot J rejected. As I understand it, Mr Guo's submission was that if s 196 was a source of a power to detain, it was nevertheless restricted to persons who were in fact unlawful non-citizens which Mr Guo was held not to be (at [2]).
120 Her Honour reviewed the authorities at length, including Ruddock v Taylor. In the result, that case was a key case in terms of her Honour's rejection of each party's submission concerning the interrelationship between s 189 and s 196(1). Her Honour said (at [69]-[70]):
To my mind Ruddock v Taylor does not suggest that a person is detained under s 189(1) and then kept in detention under s 196(1). Rather, the reasons indicate that a person is detained and kept in detention under s 189(1) with the period of detention being fixed by s 196(1) (see at [11]). If it were otherwise then the observations at [51] would be redundant (because s 196(1) does not depend on the existence of a state of mind) and the observations at [11] would be inaccurate (because s 196 would not merely fix the period of detention but would empower the continuing detention).
For these reasons I do not accept the approach of either party to Ruddock v Taylor. It does not support the Commonwealth's principal contention that a person reasonably suspected of being an unlawful non-citizen may continue to be detained under s 196(1) whether or not any officer continues to hold that reasonable suspicion. It supports the contrary proposition that the continuation of a reasonable suspicion is necessary to enable continued detention. It also does not support the submission for Mr Guo that a person must in fact be an unlawful non-citizen in order for continued detention under s 196(1) to be lawful. Again, it supports the contrary proposition that continued detention may be lawful under s 189(1) provided an officer continues to hold the requisite reasonable suspicion. It also supports another proposition, which concerns an issue of fact or, more properly, inference: namely, that if an officer held a reasonable suspicion at the time a person was detained, that reasonable suspicion may continue to exist. Facts and inferences from fact, however, depend on the individual circumstances of each case.
121 I have previously set out her Honour's summary of the principles which are relevant to the lawfulness of a person's detention (at [68] above).
122 The respondent does not seek in this case to repeat the submission based on s 196(1) which it advanced in Guo. The respondent's submission is based on s 196(4) and (5)(b) and it submits that Guo is of little, if any, assistance in terms of those subsections. For his part, the applicant does not seek to repeat the argument advanced by Mr Guo that s 196 is limited to persons who are in fact unlawful non-citizens. He accepts that s 196 can apply to a person who, in fact, turns out not to be an unlawful non-citizen as long as there is throughout the detention compliance with s 189. However, he does submit that I should adopt a similar approach to s 196(4) and (5)(b) as the approach adopted by Jagot J in Guo to s 196(1). He also submits that it would be "odd and unlikely" that Parliament would have intended s 196(1) to have a "radically different operation" from s 196(4) as they both appear as a single section under the heading, "Duration of Detention".
123 Neither the decision in Guo nor the decision in Ruddock v Taylor directly bear on the proper construction of s 196(4) and (5)(b) or their relationship with s 189. Guo was concerned with s 196(1), and the version of s 196 in issue in Ruddock v Taylor did not include subss (4)-(7) inclusive (see at [71] per Gleeson CJ, Gummow, Hayne and Heydon JJ). As to the submission that would be odd if s 196(4) and (5)(b) conferred an independent authority to detain when no other subsection in s 196 does that, there is some force in the submission, although what Parliament considered was the scope of s 196(1)-(3) immediately prior to the 2003 Amendment is, in this respect, a matter of conjecture.
124 In my opinion, the nature of the results produced by s 196(4) and (5)(b), if construed in the manner advanced by the respondent, as outlined above (at [88]), the principle of legality, the constitutional invalidity which results from the construction advanced by the respondent and the mischief identified in the extrinsic material, all support the conclusion that implicit in s 196(4) is the element of an ongoing satisfaction of the requirements of s 189 and not merely satisfaction of the requirements of s 189 at the initial detention stage. I say implicit because, to reiterate a point I made earlier, each construction advanced involves reading words into s 196(4). The subsection refers to the person being detained as a result of the cancellation of his or her visa under certain sections in the Act. Persons are not detained, at least directly, because a visa is cancelled. They are detained because an officer acts under s 189 (Ruddock v Taylor at [25] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 (Falzon) at [56] per Kiefel CJ, Bell, Keane and Edelman JJ). Some engagement of s 189 is implicit in s 196(4). In the result, I am of the opinion that the construction of s 196(4) and (5)(b) advanced by the applicant is the correct one.