Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT LEE J: 1 This is an application for the issue of a writ of certiorari to quash a decision of the respondent ("the Minister") made under the Migration Act 1958 (Cth) ("the Act") that the applicant be deported, and for an order "in the nature of a writ of habeas corpus" directing the Minister to release the applicant from "immigration detention". 2 The applicant was born in the Federal Republic of Germany ("Germany") on 10 July 1951. His father was born in Poland and arrived in Germany in 1945. He remained there until he died in 1971. It is unknown whether he renounced his Polish citizenship but he was not naturalised as a German citizen. The applicant's mother was born in Germany and was a German citizen until her marriage. The applicant's parents were married in Germany in 1949. Under German law as it stood before the 1 April 1953 that marriage deprived the applicant's mother of her German citizenship. She is now deceased. At all material times the applicant was a stateless person, or alien, whilst in Germany. The applicant has five siblings, each of whom is married and has a family, and all are German citizens. In 1972 the applicant married a German citizen. The marriage was dissolved in 1982. Two children were born of that marriage, a son and a daughter, who are now 31 and 29 years old respectively. They are German citizens who reside in Germany. 3 In 1978 the applicant was convicted in Germany of the offence of robbery. A suspended sentence of imprisonment of 21 months was imposed. In July 1981 the applicant was convicted in Germany of an offence of "sexual violation". A sentence of imprisonment of 2 years and 6 months was imposed. It would appear that commencement of the sentence was postponed because the applicant was not taken into custody at the time the sentence was handed down. 4 The applicant arrived in Australia on 20 February 1982. He travelled to Australia on papers issued by Germany for a "stateless person" on 1 October 1981. Upon his departure from Germany the applicant lost the recognition accorded by that country to a "stateless alien", a status extended to families of displaced persons who came to Germany in consequence of the social dislocation experienced in European countries as a result of World War II. 5 Upon the applicant's arrival in Australia he was granted an "entry permit" that permitted him to enter, and reside in, Australia for a specified period. On 18 December 1982, whilst still in Australia, the applicant married a person who was a "permanent resident" under the Act. In 1984 the applicant applied for citizenship under the Australian Citizenship Act 1948 (Cth). In February 1986, in the course of enquiries made by the Minister's Department in respect of the application for citizenship, the Department was informed by German authorities that the applicant and his wife would not be permitted to enter Germany to reside in that country. The application for citizenship was refused, but in 1989 the applicant was granted "permanent resident" status under the Act. 6 In October 1992 the applicant was convicted in Perth on charges of sexual assault and aggravated sexual assault in respect of his step-daughter. He was sentenced to a term of imprisonment of 11 ½ years, to expire on 11 June 2000. He was made eligible for release on parole, which, if granted, could commence in November 1997. The applicant's marriage was dissolved in January 1993. 7 In May 1996 an officer of the Refugee Law Section of the Minister's Department, in response to a request for advice as to whether the applicant may be deported, advised that such a step did not appear to be possible and that unless Poland accepted the applicant as a Polish citizen there would be little point in commencing deportation action. On 23 July 1997 a delegate of the Minister appointed under s 496 of the Act, made an order under s 200 of the Act that the applicant be deported. 8 The relevant provisions of the Act relating to deportation were as follows: '200 The Minister may order the deportation of a non-citizen to whom this Division applies. 201 Where: (a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence; (b) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; ... (c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year; section 200 applies to the person. … 206 (1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly. (2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.' 9 It may be assumed that pursuant to s 254 of the Act notice was given to the applicant of the deportation order, and of the fact that from the time he would otherwise be entitled to be released from custody by the State prison authority he would be kept in immigration detention. As a result the applicant was not released on parole and until November 2001 was kept in the State prison as a place of "immigration detention". In November 2001 he was taken to a detention centre maintained by the Minister's Department at Perth Airport. 10 The relevant provisions of the Act relating to the detention of the applicant were as follows: ' 253(1) Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person. (2) A person detained under subsection (1) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8). (3) Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order. (4) If a person detained under this section (in this subsection called the detained person) claims, within 48 hours after the detention and while the detained person is detention, that he or she is not the person in respect of whom the deportation order is in force, the person to whom the claim is made shall: (a) if that last-mentioned person is an officer - ask the detained person; or (b) in any other case-cause an officer to ask the detained person; to make a statutory declaration to that effect, and, if the person detained makes such a declaration, the officer who asked him or her to make the declaration shall take him or her before a prescribed authority within 48 hours after the making of the declaration, or, if it is not practicable to take him or her before a prescribed authority within that time, as soon as practicable after the expiration of that period. (5) If a detained person who is required under subsection (4) to be brought before a prescribed authority within a particular period, is not so brought before a prescribed authority, the person shall be released. (6) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a deportee and, if the prescribed authority is satisfied that there are such reasonable grounds, the prescribed authority shall, by writing under his or her hand, declare accordingly. (7) Where a prescribed authority makes a declaration in accordance with subsection (6), the detained person may be held in detention as a deportee in accordance with subsection (8), but otherwise the prescribed authority shall direct the release of that person and he or she shall be released accordingly. (8) A deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs: (a) pending deportation, until he or she is placed on board a vessel for deportation; (b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or (c) on board the vessel until its departure from its last port or place of call in Australia. (9) In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section. (10) An officer may, without warrant, detain a person who: (a) has been released from detention under subsection (9) subject to conditions; and (b) has breached any of those conditions. (11) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person.' 11 Under s 5 of the Act the term "vessel" includes an aircraft and the words "immigration detention" are defined as follows: '(a) being in the company of, and restrained by: (i) an officer; (ii) in relation to a particular detainee - another person directed by the Secretary to accompany and restrain the detainee; or (b) being held by, or on behalf of, an officer: (i) in a detention centre established under this Act, or (ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) in a police station or watch house; or (iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel - on that vessel; or (v) in another place approved by the Minister in writing; but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).' 12 As at July 1997 no arrangements had been made, or were imminent, for the applicant to be received by Germany upon removal from Australia, and no reply had been received to an inquiry made to Poland, almost 1 year previously, as to whether the applicant would be received by Poland if deported from Australia. The applicant had no travel documents to enable deportation to be effected and there was nothing to indicate that Germany had altered its position since February 1986 when it had advised the Minister's Department that the applicant would not be permitted to enter Germany. 13 By September 1997 the Minister's Department had been informed by German and Polish authorities that the applicant would not be accepted if Australia sought to deport the applicant to either country. Although Poland accepts that Polish citizenship is acquired jus sanguinis it was not satisfied that at the time of the applicant's birth, the applicant's father was a Polish citizen. Between July 1997 and the beginning of 2000 no constructive step appears to have been taken to effect deportation of the applicant. In June 2000 Germany confirmed the advice it had given 3 years earlier, namely, that the applicant would not be accepted in that country. In July 2000 a formal order was made by German authorities that under German law the applicant was a "deported person" and as a result he could not enter Germany, or any other Schengen state, namely, Belgium, France, Greece, Italy, Luxembourg, Netherlands, Austria, Portugal or Spain. 14 In interviews with officers with the Minister's Department the applicant had stated that he understood that his mother was "half Jewish". No document so far discovered has supported that belief. In June 2000 an officer of the Minister's Department inquired of the Israeli Embassy in Australia whether, under Israel's "Law of Return", the applicant would be admitted to Israel if deported from Australia. The Embassy replied that in the absence of any document suggesting that the applicant had a Jewish connection the Embassy was unable to assist. That line of inquiry has been taken no further. 15 Between June 2000 and November 2001, officers of the Minister's Department sought further information in Germany, and in Poland, that could assist preparation of a diplomatic representation to Germany or Poland that either country receive the applicant upon his expulsion from Australia. Little or no progress, however, was made in that period. 16 In January 2002, Poland advised again that it would not recognise the applicant as a citizen of Poland on the material presented. Officers of the Minister's Department then recommended that the question whether Germany could be said to have an obligation to admit the application into Germany "under the Convention for the Reduction of Statelessness" should be raised with Germany through diplomatic channels. Although the matter of deportation was kept under review throughout 2002, by possibilities in that regard continuing to be considered, no steps to execute the order were undertaken and no submission was presented to Germany as recommended. 17 In November 2002 the applicant commenced this proceeding. On 20 December 2002, being satisfied that it was seriously arguable that there was no real likelihood of the applicant being removed from Australia in the foreseeable future, an order was made, subject to conditions, that the applicant be released from detention pending further order, there being no undertaking offered by the Minister to consider exercising the discretion conferred on the Minister by s 253(9) of the Act. (See: Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1652). 18 The substantive application came on for hearing on 28 October 2003. At that time an affidavit by a senior officer of the Minister's Department deposed to steps that had been taken since December 2002 to attempt to deport the applicant. 19 Not until May 2003 did the Minister write to the German Minister of the Interior advising that advice had been received that Germany may have obligations under the "Convention on the Reduction of Statelessness" to accept the return of the applicant. In June 2003 the response received from the German Minister was that entry of the applicant into Germany would not be accepted and that the Convention had no application to the question of return of the applicant to Germany. 20 In September 2003 an officer of the Minister's Department approached the office of the United Nations High Commissioner for Refugees ("the UNHCR") requesting that office to intercede on Australia's behalf to persuade Germany that it had "greater obligations" than Australia in the matter. In October 2003, the UNHCR responded that more analysis of the matter was required before such a submission could be made to Germany. The matter was left by the Minister's Department as one of a number of cases to be discussed at a meeting to be held in November 2003 between Departmental officers and UNHCR representatives. 21 In September 2003 the Minister wrote again to the German Minister, in effect seeking German acquiescence as an act of grace, submitting that the applicant should be accepted by the country with which he had the greater ties and that Germany was the country with which the applicant had the closer connection. As at the date of hearing there had been no response from Germany to that submission. At all times the applicant has been willing to be deported to Germany and has cooperated in that regard. The applicant opposes being deported to either Poland or Israel. The applicant has no connection with Poland. He has not lived there, does not speak Polish and has no family in that country. Similarly the application has no connection with Israel. 22 After the hearing of the matter was completed no request was made by either party that the hearing be re-opened, and it may be assumed that circumstances have not changed in any significant respect since then. 23 Almost 7 years have passed since the deportation order was made. The material before the Court shows that the prospect of the order being executed may be more remote now than it was when the order was made. As a result of the deportation order, the applicant remained in custody for a further 5 years awaiting deportation. It may be noted that on the papers before the Court the right of the applicant to reside permanently in Australia was not cancelled. Therefore, whilst held in detention the applicant was not a person who had no right to reside in Australia. At this time it does not appear that there is a realistic possibility that Australia can make arrangements with another country, either now or at some uncertain future date, for the applicant to be received by that country if he were to be expelled from Australia. 24 It was submitted by counsel for the applicant that the order for deportation was void ab initio when made in July 1997, being made for the purpose of preventing the release of the applicant on parole and only colourably for the purpose of deportation. (See: Park Oh Ho v Minister for Immigration & Multicultural & Indigenous Affairs (1989) 167 CLR 637). The material relied upon to support that submission was, first, the advice provided to the Minister in May 1996 that on the facts as known there appeared to be little point in making an order that the applicant be deported and, second, a letter to the Minister in January 1997 from a fellow member of Parliament advising the Minister that the former wife of the applicant had requested him to "appeal to (the Minister)" to have the applicant deported to prevent the applicant from being released from custody in November 1997. 25 It may be accepted that when the deportation order was made in July 1997 it was known that it would be difficult to execute the order. It may also be accepted that it was understood that, when made, the deportation order would prevent the applicant being released from custody in November 1997 and that thereafter detention of the applicant would be under the control of the Minister. 26 Notwithstanding the above, I am satisfied that the order for deportation was made to attempt to effect the removal of the applicant from Australia. In other words the duty arising out of the making of an order for deportation, namely, to arrange for a country to receive the applicant to allow the applicant to be removed from Australia, was to be performed by the Minister taking all steps necessary for that purpose. Although the result of the order was that the applicant was not released on parole and was detained thereafter under the Act at the will of the Minister, that outcome did not mean that the deportation order was made for a purpose other than deportation of the applicant. At the time the order was made it had not been accepted by the Minister that deportation of the applicant was impossible and removal of the applicant was to be attempted. At the time of the order all facts necessary to determine the nationality or status of the applicant had not been established and it was possible that submissions yet to be put to German or Polish authorities may have resulted in deportation being effected. 27 Alternatively, it was submitted by counsel for the applicant that the failure of the Minister "to take any further steps to secure the deportation of the applicant following advice from the German and Polish Authorities on 4 September 1997 that the applicant would not be accepted by those countries, had the result of causing the deportation order to lapse or to be abandoned". That submission cannot succeed as put but may be taken to be a submission that by reason of the lack of any step by the Minister to effect deportation of the applicant after September 1997 it may be inferred that at some time thereafter the purpose of deportation had been abandoned or was replaced by some other purpose. 28 The question whether the purpose that is required by the Act to accompany the order to deport, has been abandoned, or replaced by an extraneous purpose, is a matter of fact in which failure to act to effect the required purpose may be part of the material to be considered. However, as noted above I am not satisfied that the relevant facts show that after September 1997 the Minister accepted that arrangements could not be made to deport the applicant, or had adopted an ulterior purpose for maintaining the deportation order and detaining the applicant. 29 Counsel for the applicant then submitted that the "unequivocal rejection" received from German authorities in June 2000, and Polish authorities in March 2002, meant that the detention of the applicant from the latter date "was not for the purposes of deportation and was unlawful". That may be taken to be a submission that after March 2002 the applicant was not "kept" in detention "pending deportation" according to the power to detain provided by s 253(8). 30 The issue whether the detention of the applicant at material times has been lawful will not be answered, necessarily, by examining whether the Minister made, and maintained, the deportation order with the purpose of deporting the applicant. A person's fundamental right to liberty and the separation of powers effected under the Constitution will be important considerations in construing s 253(8) and the limits upon the administrative power to detain conferred therein. The starting point must be what the Constitution permits. At the outset it is to be recognized that the Constitution is based upon, and construed according to, the rule of the law. (See: Australian Communist Party v The Commonwealth (1951) 83 CLR 1 per Dixon J at 193; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 per Gleeson CJ at [31]. 31 It is unnecessary to consider whether the legislative and executive powers of a State became subject to a like limitation upon the commencement of the Constitution but given that covering cl 5 of the Commonwealth of Australia Constitution Act 1900 (63, 64 Vict Ch 12) provides that the covering clauses and the Constitution bind the courts, judges and people of every State and of every part of the Commonwealth, it may be thought that the exercise of powers under the constitutions of the States must not undermine the system of government established by the Constitution under which, as discussed below, the right to liberty is guaranteed. (See: Union Steamship Company of Australia Proprietary Limited v King (1988) 166 CLR 1 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ at 10; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 per Gummow J at 143‑144). 32 As Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration, Local Government, and Ethnic Affairs (1992) 176 CLR 1 (at 27‑29): 'In exclusively entrusting to the courts designated by Ch III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution's concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen 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. Every citizen is "ruled by the law, and by the law alone" and "may with us be punished for a breach of law, but he can be punished for nothing else. As Blackstone wrote, relying on the authority of Coke: "The confinement of the person, in any wise, is an imprisonment. So that the keeping [of] a man against his will … is an imprisonment … To make imprisonment lawful, it must either be by process from the courts of judicature, or by warrant from some legal officer having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus." There are some qualifications which must be made to the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts. The most important is that which Blackstone himself identified in the above passage, namely, the arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts. Such committal to custody awaiting trial is not seen by the law as punitive or as appertaining exclusively to judicial power. Even where exercisable by the Executive, however, the power to detain a person in custody pending trial is ordinarily subject to the supervisory jurisdiction of the courts, including the "ancient common law" jurisdiction, "before and since the conquest", to order that a person committed to prison while awaiting trial be admitted to bail. Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power. Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt and of military tribunals to punish for breach of military discipline, the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.' (Emphasis added and footnotes omitted). 33 Thus to be consistent with the separation of powers effected by the Constitution upon the vesting of the respective powers of the Executive, Parliament and Judiciary, an administrative power to detain must be a limited power. Further, the question whether an act by the Executive in exercise of such a power is contrary to the Constitution or exceeds the power conferred, may be determined only by the exercise of the judicial power of the Commonwealth. It is not a question that may be determined by the Executive or the Parliament. (See: Chu Kheng Lim per Brennan, Deane, Dawson JJ at 36; Plaintiff S157/2002 per Gleeson CJ at [9]; Polyukhovich v The Commonwealth (1991) 172 CLR 501 per Deane J at 606-607). 34 As stated in clear terms by the High Court in Lange v Australian Broadcasting Commission (1997) 189 CLR 520 (at 564): 'The Constitution displaced, or rendered inapplicable, the English common law doctrine of the general competence and unqualified supremacy of the legislature. It placed upon the federal judicature the responsibility of deciding the limits of the respective powers of State and Commonwealth governments (R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267-268). The Constitution, the federal State and territorial laws, and the common law in Australia together constitute the law of this country and form "one system of jurisprudence" (McArthur v Williams (1936) 55 CLR 324 at 347; cf Thompson v The Queen (1989) 169 CLR 1 at 34-35). Covering cl 5 of the Constitution renders the Constitution "binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State". Within that single system of jurisprudence, the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law. Conversely, the Constitution itself is informed by the common law. This was explained extra-judicially by Sir Owen Dixon ("Sources of Legal Authority", reprinted in Jesting Pilate (1965) 198, at p 199): "We do not of course treat the common laws as a transcendental body of legal doctrine, but we do treat it as antecedent in operation to the constitutional instruments which first divided Australia into separate colonies and then united her in a federal Commonwealth. We therefore regard Australian law as a unit. Its content comprises besides legislation the general common law which it is the duty of the courts to ascertain as best they may… The anterior operation of the common law in Australia is not just a dogma of our legal system, an abstraction of our constitutional reasoning. It is a fact of legal history." And in Cheatle v The Queen ((1993) 177 CLR 541 at 552) [See also Theophanous (1994) 182 CLR 104 at 141-142] this Court said: "It is well settled that the interpretation of a constitution such as ours is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of the common law's history." Under a legal system based on the common law, "everybody is free to do anything, subject only to the provisions of the law", so that one proceeds "upon an assumption of freedom of speech" and turns to the law "to discover the established exceptions to it" (Attorney-General v Guardian Newspapers [No 2] [1990] 1 AC 109 at 283).' 35 If an "indispensable incident" of the system of representative and responsible government provided by the Constitution is freedom to speak and communicate on matters of government or politics, to participate in free elections, and to engage in political organisation, and that freedom cannot be curtailed by exercise of the powers vested in the Parliament or the Executive by the Constitution, (Lange at 559‑560), then equally indispensable to that objective will be a constitutional guarantee of liberty to enable the foregoing freedom to be exercised. As stated by Deane J in Re Bolton; Ex parte Beane (1987) 162 CLR 514 (at 528-529) the right to liberty and the right to apply to a court to obtain a writ of habeas corpus or an injunction to cease a detention effected unlawfully by administrative action "are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land". 36 A basic precept of the common law that informs the Constitution and the interpretation thereof, is that there is a fundamental right to liberty unless there is a legal basis for abridging it. That right is "the most elementary and important of all common law rights" (Trobridge v Hardy(1955) 94 CLR 147 per Fullagar J at 152; see also: D Clarke and G McCoy "Habeas Corpus: Australia, New Zealand, The South Pacific" Federation Press 2000 at 13‑19). 37 As Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 (at 11‑12): 'The separation of the judicial function from the other functions of government advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Ch III judges. In R v Davison ((1954) 90 CLR 353 at 380‑381), Kitto J identified the conceptual basis of the Constitution's division of the functions of government: "It is well to remember that the framers of the Constitution, in distributing the functions of government amongst separate organs, were giving effect to a doctrine which was not a product of abstract reasoning alone, and was not based upon precise definitions of the terms employed. As an assertion of the two propositions that government is in its nature divisible into law-making, executive action and judicial decision, and that it is necessary for the protection of the individual liberty of the citizen that these three functions should be to some extent dispersed rather than concentrated in one set of hands, the doctrine of the separation of powers as developed in political philosophy was based upon observation of the experience of democratic states, and particularly upon observation of the development and working of the system of government which had grown up in England." In R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 390-393, Windeyer J traced back the doctrine of separation of powers to Montesquieu's proposition that "there is no liberty if the judiciary power be not separated from the legislative and executive power". Blackstone adapted Montesquieu's proposition to the realities of the British Constitution, especially the law-making function of the Judiciary (See Vile, Constitutionalism and the Separation of Powers (1967), pp 104‑105). Blackstone, as Brennan J has noted elsewhere (Victoria v Australian Building Construction Employees and Builders Labourers' Federation (1982) 152 CLR 25 at 151), commended as a protection of liberty "the separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the crown" (1 Bl Comm 269). The separation of the judiciary is no mere theoretical construct. Blackstone rightly perceived that liberty is not secured merely by the creation of separate institutions, some judicial and some political, but also by separating the judges who constitute the judicial institutions from those who perform executive and legislative functions.' 38 If the separation of powers effected by the Constitution is directed to the objective of the guarantee of liberty, then it is the judicial power of the Commonwealth vested in the Judiciary by the Constitution that provides and protects that guarantee. As Griffith CJ said in Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330(at 357): '...the words "judicial power" as used in s 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.' (See also: Harris v Caladine (1991) 172 CLR 84 per Toohey J at 135-137). 39 The power of a superior court to issue a writ of habeas corpus under the common law, being the "great constitutional safeguard for the liberty of the subject" (R v Clift; Ex parte P [1941] SASR 41per Murray CJ at 46), is contemplated by the Constitution to be part of the judicial power of the Commonwealth exercisable by a federal court in respect of a matter in relation to which that court has jurisdiction. (See: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591per Gummow J at [94]). 40 Of course, in respect of a federal court other than the High Court, the Parliament, pursuant to s 77 of the Constitution, may "define" the jurisdiction of that court with respect to any "matters" mentioned in ss 75 and 76 of the Constitution. The Parliament may do so by confining the authority of the court to deal with claims arising out of the duties, rights and liabilities created by the Parliament and, thereby, limit the application of the judicial power of the Commonwealth to the "matters" so defined. (See: Minister for Immigration & Multicultural & Indigenous Affairs v B [2004] HCA 20per Gleeson CJ, McHugh J at [10]-[12]; Abebe v Commonwealth (1999) 197 CLR 510per Gleeson CJ, McHugh J at [22]-[49]). 41 Pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) the jurisdiction of this Court includes jurisdiction in any matter arising under laws made by the Parliament, other than criminal matters. Although the Act does not provide an express right to commence a proceeding in this Court in respect of a dispute as to the lawfulness of a decision by the Minister to detain, or to keep a person in detention, that dispute relates to a duty to act lawfully imposed by the Act and is a "matter" that arises under the Act. By reason of the jurisdiction conferred in respect of such matters, the matter is justiciable in the Court and is subject to the application of the judicial power of the Commonwealth. Sections 475A and 476 of the Act provide that the foregoing jurisdiction is not affected by the provisions of Part 8 of the Act that otherwise define the jurisdiction of the Court in more limited terms. 42 With the foregoing in mind I turn now to the proper construction of s 253 of the Act. 43 The first observation to be made is that the power in s 253(8) to "keep" a person in detention is not necessarily co-extensive with the validity of the order for deportation. As s 253(11) acknowledges, a person may not be held in detention if no valid deportation order is in force, but insofar as s 206(2) provides that delay in execution of a deportation order does not affect the validity of the order, that statement of confirmation of the continuing validity of the order says nothing about the extent of the power to "keep" a deportee in detention. 44 Under s 253(1) an officer of the Minister's Department has a discretion to detain, without warrant, a person reasonably supposed to be a person to whom a deportation order applies. Subsections 253(3)-(7) of the Act provide a safeguard in respect of a detention effected administratively and without warrant under s 253(1) by providing for a prompt determination by "a prescribed authority" if the actions of the officer are challenged. Section 255(1) defines the class from which a prescribed authority may be appointed being a, retired or serving Judge of this Court, or of a Supreme Court, or a legal practitioner of 5 years standing. 45 The terms of subs 253(3)-(7) are instructive. Under s 253(3) the officer who detains a person must inform the person of the reason for the detention and, if requested, provide particulars of the deportation order "as soon as practicable." Given that under s 253(4) the detained person must give notice within 48 hours after the detention of any claim that he or she is not the person to whom the deportation order applies, it may be assumed that the words "as soon as practicable" in s 253(3) stand as an instruction to the detaining officer to deliver the required information without delay. Similarly, it may be taken that the instruction to the persons on whom obligations are imposed by ss 253(4)(a), (b) to arrange for a statutory declaration to be made by the detained person, requires those persons to act without delay in order that the detained person may be brought before a prescribed authority at the earliest opportunity, being within 48 hours after the making of the statutory declaration, or as soon as practicable thereafter if it is not practicable to take the detained person before a prescribed authority within that time. It should be inferred from the terms used that "as soon as practicable" is a period determined by objective assessment of the circumstances, not by the subjective opinion of the officer performing the obligation, and would not include delay occasioned by the officer's default or by a failure to comply with the duties imposed by subs 253(4) or s 256. Section 256 states that the "person responsible" for the detention of a person must, if requested by the detained person, afford all reasonable facilities for making a statutory declaration for the purposes of the Act or for obtaining legal advice or taking legal proceedings in relation for his or her immigration detention. It is to be noted that if a detained person is not brought before a prescribed authority within the period provided in subs 253(4), subs 253(5) imposes a sanction on the non-performance of that duty by directing that the detained person must be released. That direction is not subject to any qualification that the person released not be a person to whom a deportation order applies. 46 Subsection 253(9) provides further indication of Parliament's intent that detention is not to be inflexible nor necessarily co-terminus with execution or revocation of the deportation order, by stating that "in spite of anything else in this section" a detained person may be released, either unconditionally or subject to conditions. Indeed subs 253(4) contemplates that a person may be released from detention soon after detention has been effected, by providing that the claim by a detained person that he or she is not the person to whom the deportation order applies may only be made and submitted to a prescribed authority if the claim is made within a period of 48 hours after detention is effected and the person remains in detention at the time the claim is made. 47 The foregoing duties or obligations to be complied with by officers of the Minister's Department create implied rights in a detained person. Any dispute in relation to the due performance of those duties or obligations would be a matter in respect of which a court possessing the appropriate jurisdiction may make orders in the exercise of the judicial power of the Commonwealth. If, for example, an officer failed to supply particulars of the deportation order as required by subs 253(3), thereby preventing the detained person from exercising the right provided by the Act by making the claim referred to in subs 253(4) within 48 hours after detention, a court conferred with jurisdiction would be able to make orders that would give effect to the Act or make remedial or compensatory orders. 48 The foregoing provisions are a significant part of the context in which subss 253(2), (8) are to be construed. 49 Subsection 253(2) states that a person detained under subs 253(1) may, "subject to the section", be "kept" in detention in accordance with subs 253(8). That is to say subs 253(8), and the context of the section as a whole, govern the power to "keep" in detention. 50 Section 253(8) provides that a deportee may be kept in a place of immigration detention or a place where he or she is directed by the Minister or the Secretary to be detained: '(a) pending deportation until he or she placed on board a vessel for deportation; (b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or (c) on board the vessel until its departure from its last port place of call in Australia.' 51 It is apparent that the Act anticipates a temporal connection between detention and deportation, and, as required by the Constitution, the power conferred on the Minister, or the Secretary, to "keep" a person in detention is to be a limited power. (See: Koon Wing Lau v Calwell (1949) 80 CLR 533per Latham CJ at 556, Williams J at 586-587; Chu Kheng Lim per Mason CJ at 10; Brennan, Deane, Dawson JJ at 32; McHugh J at 65). In relevant respects, the statutory provision considered in Lau was in the same terms as s 253(8). In respect of those provisions Dixon J (at 581) said as follows: 'The argument is that there is nothing to prevent the Minister making a deportation order and giving a direction as to the custody in which the deportee is to be held and leaving him there for life or indefinitely. I take the words with which s.5 concludes to refer to the procedure set out in s.7(1). The language is imperative. In s.7(1)(a) I think that the words "pending deportation" imply purpose. The two provisions together mean that a deportee may be held in custody for the purpose of fulfilling the obligation to deport him until he is placed on board the vessel. It appears to me to follow that unless within a reasonable time he is placed on board a vessel he would be entitled to his discharge on habeas.' (Emphasis added). 52 In Lau, Latham CJ (at 556) (with whom McTiernan, Webb JJ agreed) and Williams J (at 586-587) (with whom Rich J agreed) saw the requirement that there be a purpose to deport as a limitation upon the power of the Minister to keep a deportee in detention and considered that limitation to be necessary for the power conferred on the Minister to be a valid exercise of legislative power under the Constitution. The reasons of the majority in Lau did not discuss whether the limitation upon the power to detain included the further requirement that the duty to deport be performed within a reasonable time. As noted above Dixon J stated that it did. 53 However in Chu Kheng Lim, which involved construction of a power to detain a non-citizen conferred on the Minister by the Act that was expressed in terms similar to s 253(8), Brennan, Deane and Dawson JJ (with whom Gaudron J agreed) stated (at 33) that the validity of such a provision under the Constitution depended upon the authority to detain being limited to what is "reasonably capable of being seen as necessary for the purposes of deportation". (See also: McHugh J at 65-66). It would appear that in Chu Kheng Lim their Honours accepted that the reasons of the several Judges in Lau provided appropriate guidance for the proper construction of the analogous provision considered by them. The principles applied in Chu Kheng Lim may be taken to define the manner in which s 253(8) is to be construed. (See also: R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 per Woolf J at 706; Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97at 111). 54 It follows that the power of the Executive to keep a person in custody for the purpose of removing that person from Australia is to be construed as requiring those responsible for effecting that purpose to take prompt and sufficient steps to complete the removal and to limit the period of detention to the reasonable period required for that action. (See: Chu Kheng Lim per Brennan, Deane and Dawson JJ at 26-33). 55 In several subsequent decisions of this Court, namely, Vo v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 371and Luu v Minister for Immigration & Multicultural Affairs (2002) 127 FCR 24, on which counsel for the Minister relied, unlawfulness of detention by reason of cessation of the validity of the order for deportation was the sole issue considered. Accordingly in Vo, (at [13]), the reasoning turned upon whether the deportation order was "in force" at material times. It was held that a deportation order remained "in force" until the order was either executed or revoked, subject to the authority to detain being "exercised bona fide for the purpose for which it was conferred and not to achieve another disguised objective". 56 The decisions of the High Court in Lau and Chu Kheng Lim were not cited to the Full Court in Vo and accordingly their Honours were not called upon to address the question of limitation by the Constitution of the authority to detain to what was "reasonably capable of being seen as necessary for the purposes of deportation". Their Honours stated, (at [12]), that the length of the period of detention cannot "of itself, destroy the legal validity of the detention". That statement, of course, is correct and is not inconsistent with the construction of s 253(8) derived from application of the principles set out in Lau and Chu Kheng Lim. 57 In Luu (at [62]), it was accepted that Lau and Chu Kheng Lim established that the power under s 253(8) to "keep" a person in detention was a limited power but construction of that limitation was not an issue determined in that case. Insofar as the Human Rights and Equal Opportunities Commission, as intervenor in that case, made submissions on that issue their Honours, (at [68]-[69]), declined to consider the question, the submissions not being made at first instance nor raised expressly in the appeal. The case, as argued, turned on the "purpose" of the detention. Their Honours stated, (at [66]), that the failure to effect, or the absence of any prospect of effecting, deportation within "any reasonable time frame" may be relevant to ascertaining whether the "purpose" of detention was "pending deportation", but the appellant had been refused leave to expand his case to make that submission and it was unnecessary to consider the point. Similarly, the contention that an administrative power to "keep" a person in detention must be construed in terms that are consistent with the Constitution, as discussed by Brennan, Deane, Dawson JJ in Chu Kheng Lim (at 33), was not raised in Luu. 58 The relevant facts in Vo and Luu did not require a broader examination of the construction of s 253(8), in particular the limitation imposed by the Constitution, and accordingly neither case purports to consider the construction of s 253(8) made applicable by the decisions of the High Court in Lau and Chu Kheng Lim. Similar conclusions apply to other decisions of this Court that have applied Vo or Luu. (See: Te v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 497; Perez v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 119 FCR 454). 59 Qualification of the power to "keep" a person in detention under s 253(8) as set out above, has no effect upon the validity of the deportation order. The terms of s 253(9) confirm that view. Section 253(9) allows the Minister not to "keep" in detention a person who has been detained under s 253(8). Plainly the purpose of the subsection is to permit the Minister to retain control over a deportee by imposing conditions upon the release of the deportee if, for example, it has become apparent that deportation will not be able to be effected within a reasonable time and, therefore, the deportee may be "entitled to his discharge on habeas". In that circumstance the deportation order will remain a valid order notwithstanding that the deportee is entitled to be released. It is the continuing validity of the deportation order that permits the Minister to impose conditions upon the release. It would follow, of course, that the conditions imposed by the Minister would have to be reasonable conditions in all the circumstances. 60 What constitutes a reasonable time to effect the purpose of deportation in a given case will depend upon an examination of the facts and circumstances of that matter. Obviously, if at the time of that examination deportation is, and will remain, impossible, or there is no real likelihood or prospect of the purpose being effected in the reasonably foreseeable future, the reasonable time within which a deportee may be detained to effect such a deportation may be said to have elapsed. 61 As stated by Dixon J in Lau, and as acknowledged in Chu Kheng Lim, to be a power validly conferred on the Executive under thelegislative powerofthe Parliament pursuant to the Constitution, the power to keep in detention provided by s 253(8) must be construed to be co-extensive with the reasonableness of the period of detention required to effect the deportation. The assessment of that period is a determination made objectively having regard to relevant facts. (See: Alsalih v Manager Baxter Immigration Detention Facility [2004] FCA 352per Selway J at [55]-[60]). The determination does not involve inquiry into the validity of the deportation order nor whether the Minister had an improper or extraneous purpose in making or continuing the order. Nor does the determination require examination of the purpose of the Minister, or the Secretary, in "keeping" a deportee in detention. 62 Of course, if an order for deportation has been made, or continued, for an improper or extraneous purpose it will have been, or have become, void and detention effected under a void order will be unlawful. (See: Park Oh Ho (supra)). 63 I am satisfied that the facts in this matter show that at the time the application came on for hearing, the reasonable time for effecting deportation of the applicant after he had been detained "pending deportation" had elapsed. Notwithstanding that the circumstances relating to the statelessness of the applicant were unusual, more than ample time had passed by November 2002 to resolve whether it was possible to deport the applicant. It was the Minister's duty to limit the period in which a person's liberty was removed by administrative act and to arrange for deportation to be effected as soon as practicable and without unnecessary delay. Authoritative advice should have been obtained as soon as the relevant facts in respect of the issues relating to nationality and statelessness had been ascertained. When it became apparent that neither Poland nor Germany accepted that Australia had any entitlement under international law to request either country to receive the applicant as a deportee from Australia, thereby frustrating execution of the deportation order, prompt submissions should have been made to those countries through diplomatic channels seeking consideration of Australia's request as a matter of grace or favour. 64 It is to be noted , of course, that if new facts arise, the power under s 253(8) of the Act to "keep" a deportee in detention pending deportation may revive. (See: Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54at [128]). 65 In the circumstances, it may be said that there is now an implied duty on the Minister to consider making an order under s 253(9) of the Act. Alternatively, pursuant to s 206(1) of the Act the Minister may consider revoking the order. If circumstances change at some future date, and the Minister considers it appropriate to do so, another order that the applicant be deported may be made at that time. 66 Having regard to the foregoing the question now is what order should be made by the Court. If a writ of habeas corpus were to issue, a consequence may be that the applicant would be released without conditions being attached thereto by order of the Court. (See: Alsalih at [43]). I note that in Alsalih, (at [41]), Selway J has doubted that the Court has power to issue a writ of habeas corpus. The point was not argued in this matter and, as in Ruddock v Vadarlis (2001) 110 FCR 491, it was accepted that the Court has such a power. (See also: Chu Kheng Lim per Toohey J at 51; Al Masri at 96‑97). It was not in issue that the Court has jurisdiction in this matter pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth). As discussed earlier the judicial power of the Commonwealth vested in the Court by s 71 of the Constitution should be taken to include power to issue a writ of habeas corpus to allow the Court to determine the lawfulness of the deprivation of liberty and to provide the means of resolving the dispute on that issue that constitutes the matter before it. Judicial review of claimed excess in the exercise of power by the Executive or Parliament is a cardinal part of the judicial power vested by the Constitution, to preserve the separation of powers that the Constitution effects. As Brennan J said in Church of Scientology v Woodward (1982) 154 CLR 25(at 70): 'Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.' 67 The Constitution may be taken to have contemplated that protection of the Constitution's guarantee of the right to liberty may require the Court to have power to have a detained person brought before the Court by writ of habeas corpus, and that orders by way of declaration or injunction may not be sufficient in every case. In that respect the writ is to be taken to be part of the judicial power vested by the Constitution and not a remedial power subject to grant or defeasance by Parliament. (See: S/157/2000 per Gaudron, McHugh, Gummow, Kirby, Hayne JJ at [104]). 68 The statement in s 23 of the Federal Court of Australia Act 1976 (Cth) that "the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds…and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate" is to be read as statutory recognition by Parliament that the Court possesses the power to issue a writ of habeas corpus. There seems to be no reason to treat that power as being limited to making an order "in the nature of habeas corpus." Absence of express procedures in rules of the Court relating to such a writ would not be a reason to deny the existence of the power. (See: Clark and McCoy at 201). 69 If an order "in the nature of habeas corpus" were made, no doubt the order could be fashioned to include appropriate conditions. (See: Ruddock v Vadarlis per Beaumont J at [106], [108]). Alternatively, an order by way of injunction could be made in which such conditions may be incorporated. (See: Alsalih at [43]). 70 A further alternative may be that the Minister may seek the opportunity to exercise the discretion conferred on the Minister by subs 253(9) of the Act, thereby obviating the need for the Court to make any substantive order in the matter. 71 Accordingly, it will be ordered that the matter stand adjourned to a date to be fixed to allow the parties to consider these reasons and make submissions on the further orders to be made. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.