NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Only the Full Court can grant relief? 7 The Minister submits that a single judge has no power to grant the relief sought, as the appeal, and any interlocutory applications made in the context of the appeal, involve the exercise of appellate jurisdiction which is required by the Federal Court of Australia Act 1976 (Cth) ("FCA Act") to be exercised by a Full Court (FCA Act ss 24(1), 25(1) and 28(1)(b)), subject to certain specific statutory exceptions which have no application in the circumstances of the present case (FCA Act s 25(2)). The Minister relied upon the decision of French J in Hempel v Moore (1987) 70 ALR 714 in support of his submission. 8 In Bercove v Hermes (No 2) (1983) 51 ALR 105 Toohey J granted an interlocutory injunction pending the hearing of an appeal to the Full Court in order to ensure that the appeal, if successful, would not be nugatory, although the proceedings at first instance had been dismissed by order of another judge of the Court. The source of the power to do so was identified as FCA Act s 23. At 108, Toohey J said: "It is true that s 23 finds its place in Div I - Original Jurisdiction of Part III of the Federal Court Act but, as I understand it, it is original not appellate jurisdiction that I am being called upon to exercise." 9 In Hempel v Moore (supra) an application for release on bail in extradition proceedings was made to French J pending the hearing of an appeal to the Full Court. The motion was brought in the appeal proceedings and was, in any event, refused for reasons which do not bear upon the present question. At p 719, after referring to the decision of Toohey J in Bercove v Hermes, French J said: "In the exercise of the powers conferred upon it in its appellate jurisdiction by s 28 of the Act, the Court may have occasion in making an order under s 28(1)(b), to make an order of a kind that could have been made under s 23 in its original jurisdiction. But there is on the face of it no power in a single judge to make interlocutory orders under s 23 in pending appeal proceedings." 10 In Tuncak v Young (1987) 14 ALD 286 French J held that a single judge had power pursuant to s 23 of the FCA Act to grant an interlocutory injunction to restrain the respondent from removing an applicant from Australia pending the determination of his appeal to a Full Court, at least for such time as would be necessary for a Full Court to consider whether the injunction should be extended until the determination of the appeal. His Honour applied Bercove v Hermes and distinguished Hempel v Moore upon the basis that in the latter case his Honour was asked in appellate proceedings to make an order impinging upon the operation of the judgment appealed from, which judgment had been given by another judge of the Court; but in Tuncak v Young the applicant made it plain that he sought the order in the review proceedings and not in the appeal, and I infer from the report that it was French J who dismissed the review proceedings at first instance. In Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 the issue was whether an interlocutory injunction should be granted by the primary judge pending the hearing of an appeal against the dismissal of the proceedings. The application was made to French J prior to the filing of the Notice of Appeal and was refused on the balance of convenience. Thus, although this decision refers to the authorities which I have mentioned, it does not take the matter any further. 11 The weight of authority thus favours the proposition that a single judge may, in the exercise of the original jurisdiction of the Court, and notwithstanding the dismissal of proceedings at first instance, grant an interlocutory injunction to operate pending a determination of an appeal to a Full Court. In Bercove v Hermes Toohey J granted the interlocutory injunction even though the order dismissing the proceedings had been made by another judge of the Court. Accordingly, I reject the Minister's submission that the present application is not one which may be entertained by a single judge. Neither party asked me to refer the Motion to Beaumont J, and I conclude that I have the power to entertain it. The Motion was filed in the appeal proceedings, but that is an irregularity which is capable of being cured.

Whether the relief sought should be granted 12 The applicants are currently detained in Villawood Detention Centre. There is evidence in the form of a report from a clinical psychologist that all of the children have suffered psychological disturbances as a result of their detention, that their mental state continues to deteriorate, and that in the case of at least two of the children, there is a severe risk of self harm and suicide if they remain in detention. 13 Medical specialists have recommended that at least the two children who have been the most severely affected by their detention should be removed from detention immediately, as their condition can only be adequately treated and managed in a community setting. Those recommendations have been conveyed to the Minister's representatives. Exhibit A is a letter dated 1 July 2002 from the Muslim Women's National Network of Australia Inc as to arrangements which have been made "on short notice" to provide accommodation and support for members of the family if they should be released from detention. 14 The Minister did not challenge this evidence, but nonetheless submitted that the provisions of s 196 of the Act are, at least in the circumstances of the present case, an impenetrable barrier to the making of the orders sought. Section 196 provides as follows: "196 Period of detention (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa." 15 The applicants seek a mandatory interlocutory injunction, which if granted, would displace the status quo upon the basis that their constitutional challenge to s 196 of the Act has sufficient prospects of success on appeal to warrant an order for their immediate release, notwithstanding the terms of s 196(3). Given the psychological harm which the children have suffered as a result of their detention, the applicants submit that the balance of convenience is overwhelmingly in favour of granting the relief sought. The applicants submit that the decision of Beaumont J is inconsistent with the decision of the majority of the High Court in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1, and in any event even where the original detention was lawful as an exercise of executive power, the High Court has "made it manifestly plain" that the Federal Court has power to order the release of persons from detention in circumstances where the detention "has become punitive and, so, an exercise of judicial power". 16 Where interlocutory relief is sought pending the challenge to the constitutional validity of a statute, the Court approaches the question on the basis that the impugned law is valid unless and until it is shown to be invalid. The test to be applied is that suggested by Mason CJ in Australian Capital Television Pty Ltd v Commonwealth (1992) 104 ALR 389 at 393, quoting from his Honour's previous judgment in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155-156: "In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is judged ultra vires." See also Artinian v Commonwealth (1996) ALD 235, 243, per Hill J. 17 If that is the proper approach for a Court to adopt before the determination of a challenge to the constitutional validity of a statute, then it is all the more so when the constitutional validity of the statute has been upheld by a decision of a judge of the Court given after a full hearing on the merits. 18 In Lim (supra), proceedings were pending in the Federal Court in which the plaintiffs sought orders for their release from custody. Two days before the date scheduled for the hearing of the plaintiffs' applications, Parliament passed the Migration Amendment Act 1992 (Cth) which inserted a new Division 4B into the Act. That Division provided for the compulsory detention in custody of certain non-citizens who came within the definition of a "designated person" for the purposes of Division 4B. The plaintiffs fell within that definition. Two questions of law were stated for the consideration of a Full Court. They can be summarised as follows: 1. Are ss 54L, 54N or 54R of the Act invalid in respect of the applications to release from custody made by the plaintiffs in the Federal Court of Australia?

2. If yes, are the defendants under a legal duty to decide the plaintiffs' applications for release from custody having regard to the provisions of various international instruments? 19 Section 54L provided that a designated person must be kept in custody, and is to be released from custody if, and only if, removed from Australia, or given an entry permit. Section 54N provided for the arrest without warrant of a designated person and for the persons detention for the purposes of s 54L. Section 54R provided that a court is not to order the release from custody of a designated person. 20 All members of the Court were of the opinion that ss 54L and 54N were valid, but, by a 4:3 majority, it was held that s 54R was invalid. The minority were of the view that s 54R should be understood as a direction to the courts not to order the release of a designated person lawfully held in custody pursuant to Division 4B, and so understood, the section did not derogate from the exercise of the judicial power of the Commonwealth by Chapter III courts. The majority were of the view that s 54R could not be legitimately read down in that way, and as s 54R purported to prevent a court from ordering the release of a person unlawfully detained, it was constitutionally invalid. 21 What is important for present purposes is that the majority held that notwithstanding their conclusion in relation to s 54R, the detention of the plaintiffs was lawful, as s 54L required that the plaintiffs, as "designated persons", must be kept in custody until removed from Australia, or until the occurrence of the other events specified in Division 4B. Hence, question 2 did not arise, as provisions of the legislation which were constitutionally valid required that the plaintiffs must be kept in custody. If persons are required by a valid law to be kept in custody, they are not entitled to be released. 22 McHugh J was in the minority in Lim. At p 68 his Honour noted that, in the absence of a statutory power, courts have no general power to order the release of persons kept in custody pursuant to statutory enactments. At p 69 his Honour said: "In Minister for Immigration, Local Government and Ethnic Affairs v Msilanga, however, the Full Court of the Federal Court held that a judge of the Court has jurisdiction to order the release of a person, detained in custody pending the execution of a deportation order, until the person's application for review under the A.D.(J.R.) Act is determined. By reason of this decision, the draftsperson may have concluded that s. 54R was necessary to ensure that designated persons were kept in custody until released or removed in accordance with Div. 4B. If so, he or she was mistaken because, having regard to the terms of s. 54L(2), no court could order the release of a designated person except in those cases where Div. 4B requires that the custody of the designated person should cease. The terms of s. 54L(2) make it impossible to exercise the jurisdiction, recognized in Msilanga, in relation to designated persons." 23 Thus, whether or nor s 196(3) is valid or otherwise, the applicants can have no entitlement to a release from the detention for which s 189 and s 196(1) of the Act provides, unless they can show that their detention is unlawful. Hence, even if the applicants were to succeed on the sole ground of appeal which they have raised, that would not entitle them to a release from detention. 24 The applicants did not contend before Beaumont J, and their counsel expressly abstained from submitting to me, that the applicants continued detention was for some purpose other than removal from Australia. 25 In Lim, Mason CJ (also a member of the minority) accepted that what initially began as lawful custody under Division 4B may cease to be lawful by reason of the failure of the Executive to take steps to remove a designated person from Australia. But, as I have said, it is not put by the applicants here that their continued detention is not referrable to their removal. 26 In Lim, at p 71, McHugh J said that Division 4B, in its ordinary operation, did not involve the imposition of a punishment or penalty because the objective of the imprisonment is to achieve some legitimate non-punitive object. Thus imprisonment of a person who is the subject of a deportation order is not ordinarily punitive in nature because the purpose of the imprisonment is to ensure that the deportee is excluded from the community pending his or her removal from this country. His Honour added: "But if the imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object, it will be regarded as punitive in character." 27 The applicants' case, at least as presented to me, is that their detention, although originally lawful, became unlawful because it induced an adverse psychiatric effect in the children. When the effect of the detention is to place children in a situation where they become suicidal, then, in the applicants' submission, the detention has gone beyond what is reasonably necessary to effect the purpose of the detention and becomes unlawful. 28 The observations of McHugh J were directed towards the purpose which the detention is to achieve, rather than the impact of detention on the person detained. The applicants submitted that Beaumont J failed to consider whether the detention of the applicants became unlawful because of its impact upon the children. I do not agree with that submission. At par [12] of his reasons for judgment, Beaumont J said: "In the present statutory context, the obligation and authority to detain, conferred by the provisions of s 189, are, in essential respects, limited in the same manner as occurred in Lim's Case, in the case of those provisions of the Act there held to be valid (that is to say, s 54L and 54N). It follows, in my view, that the detention of the applicant pursuant to the Act is valid, and that the issue of validity cannot, in the constitutional sense, depend upon conditions which may be personal to a particular applicant. Such factual matters are not constitutional facts, to be taken into account in determining the validity of a provision such as s 196, because they cannot affect the characterisation of the statutory authority to detain, under a rule incidental to the executive power to process visa applications and to deport and thus being a law which does not authorise a punitive or penal detention. 29 I respectfully agree with his Honour's observations in that respect. 30 Thus, there are two reasons why I cannot grant the applicants the relief which they seek. First, s 196(3) is a legislative command to the Courts not to order the release of persons in the position of the applicants, which Beaumont J has held to be constitutionally valid. Second, even if s 196(3) were ultimately held by a Full Court to be invalid, that would not lead to the conclusion that the applicants' detention is unlawful. 31 For those reasons, the application for interim release of the applicants from detention pending the outcome of their appeal, must be dismissed. There is no discretion available to me which I could properly exercise to order the interim release of the children from detention by reason of the impact which, on the evidence, detention has had and will continue to have on their psychiatric condition. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Solicitor for the Applicant: Ian D Graham & Associates

Solicitor for the Respondent: Mr A Markus, Australian Government Solicitor