STATUTORY CONSTRUCTION - CONCLUSIONS
115 The application of the principle to the statutory scheme of mandatory detention involves asking whether there is disclosed a clearly manifested intention to keep in detention a person who has sought liberty by taking the only course provided to him/her by the law to do so (a request in writing to the Minister to be removed), but for whom there is nevertheless no realistic prospect of removal and thus no real likelihood or prospect of any end to detention at any time in the reasonably foreseeable future.
116 The manifestation of such an intention must be such as to show clearly, and unmistakably, that the detention is to continue for as long as may be necessary and might even (as a theoretical possibility) be permanent, that it is intended that detention should continue without foreseeable end irrespective of the age, gender, personal or family circumstances of the person, irrespective of the unlikelihood (if such be the case) of a person absconding and irrespective of the absence (if such be the case) of any threat presented to the Australian community of a person detained.
117 The outline in the preceding paragraph of the extent to which personal liberty may be curtailed, depending upon the construction adopted, is not (as we have noted earlier) put forward by way of criticism of, or commentary upon, Parliament's policy of mandatory detention. It is put forward to make plain what is involved in the submission that the scheme of mandatory detention is subject to no limitation other than the continued existence of the purpose of removal of an alien from Australia. It is appropriate and indeed necessary to point to the circumstance, perhaps very unlikely indeed in the real world, but nevertheless conceded as a theoretical possibility, that the detention authorised by the scheme may even be permanent, and thus even for the rest of a person's life. The submission that the scheme allows of no limitation other than one of purpose requires that such a possibility be squarely confronted.
118 With these considerations in mind, we turn first to the language of s 196(1), putting to one side for a moment the structure of the scheme as a whole. The word that bears the principal load of the effect contended for on behalf of the Minister is, simply, "until". Nowhere in the section, or elsewhere in the scheme, is it stated that a person is to be kept in detention in circumstances when there is no real prospect of removal in the reasonably foreseeable future. When it is recalled that the statements of principle frequently include the observation that general language is rarely sufficient to demonstrate an intention to abrogate fundamental rights, and the right in question here is unquestionably amongst the most fundamental of all rights, we conclude that "until" is not powerful enough to do the work asked of it by the appellant. We observe, in passing, that there seems to be little or no difference between "until" and the expression "pending" considered in Hardial Singh and some of the other cases.
119 Gleeson CJ observed in Plaintiff S157, at [30], that a conclusion that there is an intention to curtail or abrogate fundamental rights requires "a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment". The requirements, so expressed, are cumulative. See also Coco at 437. The Parliament has indeed directed its attention to the curtailment of the right to personal liberty for the purpose of removal, but to raise the matter in that way is to avoid addressing the real question here. The question now is whether the Parliament has directed its attention to the possibility that the scheme of mandatory detention would extend to circumstances where none of the three "until" events specified in s 196 would occur, so that it has consciously decided that the right to liberty is to be curtailed by detention which, in an extreme case, may even be of potentially unlimited and permanent in duration.
120 In our view, the language of s 196, either taken alone or in the context of the scheme as a whole, does not suggest that the Parliament did turn its attention to the curtailment of the right to liberty in circumstances where detention may be for a period of potentially unlimited duration and possibly even permanent. On the contrary, the textual framework of the scheme suggests an assumption by the Parliament that the detention authorised by s 196 will necessarily come to an end. Section 196 contemplates a "period of detention", and that is how the section is headed. Whilst one purpose of the section is indisputably to authorise the detention of unlawful non-citizens, another purpose is to specify the circumstances in which the period of detention is to come to an end. The latter purpose assumes that the detention will have an end. The assumption is that the detention of unlawful non-citizens will come to an end by the actual occurrence of one of three events: removal, deportation or the grant of a visa.
121 The language of s 198(1) supports the conclusion that Parliament proceeded on an assumption that detention would, in fact, end rather than upon an understanding that detention might possibly be of unlimited duration. By the placing of a duty upon the Minister to remove an unlawful non-citizen as soon as reasonably practicable after a request in writing by that person, a strong indication is again given of an assumption that detention will come to an end. Indeed, as we have noted, the assumption made by members of the High Court about the scheme considered in Lim was that it had an element, the equivalent of the present s 198(1), that gave a person what was effectively a power to bring detention to an end: see our discussion at [61] to [63] above.
122 Although the expression "reasonably practicable" in s 198 does not imply immediacy, the conferral upon a person detained of the power to enliven the mechanism for removal, and the duty to engage that mechanism, suggests again that Parliament was working on the assumption that s 196 and s 198 would together operate to bring detention to an end, and that it was not acting upon the very different understanding that they would operate together even where there was no real prospect of removal and thus no real prospect of detention coming to an end within any reasonably foreseeable timeframe.
123 Section 196(3) does not take the matter any further. As we observed in NAMU, that subsection does no more than restate the proposition that the Court does not have the power to direct the release of persons lawfully detained (at [10]). The subsection cannot operate to prevent the release of those who are not lawfully detained and it does not speak as to the duration of circumstances under which lawful detention may continue.
124 Despite these considerations, the specification of three matters, and only three matters, as operating to bring detention to an end remains, at first sight, a powerful indication that the detention is not otherwise to come to an end and that the liberty of an individual is to be correspondingly curtailed. The nature of the three matters: grant of a visa, deportation or removal, suggests a system without qualification or limitation. The absence of any provision for an unlawful non-citizen (as defined, and thus a person without any visa) to be otherwise than in a state of detention may be a powerful indication that no other such state is contemplated.
125 Yet, if it were to appear that the Parliament did not turn its mind to the possibility that detention would not come to an end, the force of that consideration would be greatly diminished. On this footing the apparently closed system, providing for only three possibilities, would have no need to provide for any circumstance that any other possibility would require to be addressed.
126 The gaps in the legislative scheme, which were put forward in support of a construction that involves no implied limitation, also take on a different aspect if it is concluded that the scheme was formulated upon the assumption that ss 196 and 198 would, in fact, operate to bring detention to an end.
127 The contention that it could never have been intended that an unlawful non-citizen could be released from detention otherwise than by removal, and that therefore indefinite detention must have been intended, similarly loses force if the assumption upon which the Parliament proceeded was that the scheme would always operate to bring detention to an end.
128 Apart from the question of assumption, though, the circumstance that the limitations found by the trial judge could result in a person who has no right to be in Australia, and no visa, being free within this country does point to an intention that such a person should remain in detention until such time, if ever, as removal becomes possible. The force of this consideration is, however, diminished by the circumstance that such a release does not involve the person released having any right to be, much less to remain, in Australia. The trial judge correctly proceeded upon that basis. The consequence of the limitations that, in a particular case, a person might be released into the community does not mean that that person would have any right at all to remain in Australia. The trial judge correctly proceeded upon the footing that there was no such right and that the duty to remove remained, even during the time for which the operation of s 196 was impliedly limited. The power and duty to detain would be enlivened again when there was a real likelihood or prospect of removal in the reasonably foreseeable future, as Merkel J ultimately held had occurred in the case of Mr Al Masri: see Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1099 at [24]. It was not suggested in argument that, in the special circumstances of such cases, there could not appropriately be imposed a qualification (in the form, for example, of court-imposed conditions for reporting) upon the normally absolute right to be released from detention that no longer has lawful justification. We should add that there would seem to be no reason why legislative provisions to regulate such a situation could not validly be made with respect to aliens who are to be removed from Australia.
129 It is true that implied limitations such as were found by the trial judge would give rise to uncertainty as to the legality of detention, dependent upon an assessment of external circumstances rather than upon the presence or absence of indisputable facts. It may be accepted that uncertainty of this nature is undesirable and that it points to an intention not to create it. In practical terms, however, the difficulty is likely to be more apparent than real. The recent endorsement of the Hardial Singh principles by the House of Lords and by the Privy Council, many years after their formulation in 1984, suggests that the less stringent and more flexible concept of reasonableness which lies at the centre of those principles has not caused undue difficulty; and this is hardly surprising since reasonableness is a concept that the courts are accustomed to deal with in many situations, and not least in situations where personal liberty is in issue. Moreover, when the demands of certainty and liberty come into conflict, the tradition of the common law is to lean towards liberty.
130 Concerns relating to the conduct of the affairs of state were put forward as reasons why the Parliament must have intended a scheme of detention without either of the limitations found by the primary judge. It was said that if there were any such limitations, the consequences would include the possibility of interference with complex and sensitive discussions between governments about the removal of non-citizens; that there might be volatile political situations overseas; and that the need for a coordinated and strategic approach to removals might be impaired. These considerations do not individually or together provide a compelling reason to reject an implied limitation on the power to detain. For one thing difficulties of this nature cannot be said to be the inevitable and direct consequence of such a limitation. These difficulties may or may not occur, but if they were to occur they would no doubt be dealt with by the court with appropriate regard to the requirements of confidentiality, the expertise of those who have the responsibility for the conduct of Australia's international relations and a due appreciation as well of the practical difficulties involved in such matters. The same may be said of the objection that a court might have to make its own assessment of the course of negotiations with other governments. We do not understand any issue of justiciability to have been raised.
131 Similarly, the submission that a construction that involved limitations upon the power to detain might lead to the release into the community of persons who pose a threat to the safety of others, or to national security, is by no means decisive in favour of a conclusion that the Parliament intended to curtail the right in question. The danger, in any event, is likely to be more apparent than real. It would only arise in circumstances where a person who posed such a threat was within the exceptional category of persons to whom the limitations might ever apply, and where such a person could not otherwise be detained. If such a person had committed an offence in Australia, he or she would no doubt be dealt with according to law and detained according to law. If the person was, for example, an alleged terrorist, but not otherwise liable to detention, the chances are that he or she would be wanted by one or more of the many countries with which Australia has extradition arrangements, and under which it might be expected that the person would be liable to detention pending extradition. Some countries now claim universal jurisdiction in relation to offences of this type. Nothing we have said, of course, suggests that it would be beyond the power of the Parliament to enact specific provisions to address problems of this nature, whether under the aliens power or upon some broader foundation. Indeed, provisions presently exist for the deportation of certain non-citizens who are considered a threat to national security, and such persons would be subject to detention pending deportation: see s 202 of the Act and Australian Security Intelligence Organisation Act 1979 (Cth), s 37.
132 In these circumstances, we conclude that an intention to curtail the right of personal liberty to the extent discussed has not been clearly manifested. It has not been manifested by any unmistakable or unambiguous language. There is no indication by clear words or by necessary implication that the legislature has directed its attention to, or that it has consciously decided upon, the curtailment of a fundamental common law right to the extent contended for by the Solicitor-General. The principle accordingly requires that no such intention be imputed to the Parliament.