NAMU of 2002 v Secretary, Department of Immigration, Indigenous & Multicultural Affairs

BEAUMONT ACJ: 1 By an application under s 39B of the Judiciary Act 1903 (Cth), the applicants seek, inter alia, the following declaration: "A DECLARATION that s.196 of the Migration Act 1958 is invalid to the extent that it purports to derogate from the jurisdiction which is vested in the Federal Court of Australia by s.39B of the Judiciary Act 1903 by directing the Federal Court of Australia as to the manner in which it is to exercise that jurisdiction." 2 By consent of the parties, I have ordered that this question, one of the constitutional validity of s 196 of the Migration Act 1958 (Cth) ("the Act"), be separately determined. The respondents accept, correctly in my view, that the applicants have legal standing to challenge the constitutional validity of this provision. Section 196, which appears in Part 2 Division 7 of the Act, that is, s 188 - 197, and which Division deals with the detention of unlawful non-citizens, provides: "(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." 3 Whilst the applicants do not challenge the validity of subs (2) of s 196, they contend that subs (1) and (3) of s 196 are beyond legislative power as an impermissible interference with judicial power. Reliance is also placed for the applicants, at least as an aid to construction, upon the provisions of Art 10 of the Bill of Rights 1688 (UK) as follows: "That excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 4 I cannot accept the applicants' argument. In my view, as has been submitted on behalf of the respondents, the provision is a valid law made under the aliens power conferred by s 51(xix) of the Constitution. The power of the Commonwealth Parliament to make laws with respect to aliens, supports laws providing for the custody or detention of an alien pending the processing of a visa application or deportation. See, for example, Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Mason CJ at 10, per Brennan, Deane and Dawson JJ at 30 - 33. 5 Section 196 should be read in conjunction, not only with the provisions of Division 7, but also with the provisions of Division 8. (Division 8, s 198 - 199, deals with the removal of unlawful non-citizens.) Section 189 both requires that an officer detain an unlawful non-citizen and authorise that detention. In its terms, the obligation to detain unlawful non-citizens under that provision is an obligation to detain only until the determination of a visa application or removal or deportation. 6 In any event, the statutory obligation to detain is subject to an obligation to remove a person from Australia, at their request, "as soon as reasonably practicable" (s 196, 198(1) and 199). A further feature of the statutory scheme is that a person must be released from immigration detention, a term defined in s 5(1), if granted a visa (including a bridging visa) until determination of an application for a substantive visa, or if he or she is an Australian citizen (see s 191 and 196(2) and (3)). 7 It should also be noted, in understanding the statutory scheme, that detention also ceases where a person is removed under s 198 or s 199, or where a person is deported under s 200 (see s 196(1)). Again, removal under either s 198 or s 199 must occur "as soon as reasonably practicable". It is clear from the provisions of Division 7, read, where necessary, with the surrounding provisions I have mentioned, that the means by which immigration detention is to be affected are explicitly specified in the Act and that the Act authorises detention by those means. It follows, in my view, that it is clear that one means by which immigration detention may be lawfully maintained is by the detention of an unlawful non-citizen at a detention centre established under the Act. 8 On behalf of the applicants, reliance is placed upon the reasoning in Lim's Case, above, in support of their argument that subs 196(1) and (3) should be characterised as punitive or penal. However, as is submitted on behalf of the respondents, Lim's Case, on the one hand does not, upon analysis, support the proposition for which the applicants contend; and, on the other hand, may be distinguished in terms of the particular legislation and legislative context there in issue. 9 Lim's Case, in my view, establishes, as was submitted on behalf of the respondents, first, that the question of validity in this context is to be determined by the proper characterisation of the law which authorises detention, so that, if the law is properly characterised as incidental to the executive power to process visa applications and to remove and deport unlawful non-citizens, it necessarily follows that such a law is not punitive or penal in character. 10 Lim's Case secondly establishes, in my view, as the respondents submitted, that the character of the statutory authority to detain is determined by the particular statutory context and the purpose of that authority; that is to say, the crucial question is whether the authority is tied, in point of time, to that which is reasonably incidental to deportation or the processing of an application for an entry permit. 11 Thus, the characterisation of the statutory authority to detain, which was considered in Lim's Case, as not to be penal or punitive, followed as a consequence from the statutory limitations that were imposed upon that authority and, in particular, flowed from the requirement that a person be removed from Australia as soon as possible: first, after refusal of entry application and finalisation of any appeal; secondly, after failing to make a visa application within a prescribed period; or thirdly, upon a request by the detainee to be removed. 12 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. 13 I was referred by the respondents, by way of analogy, to authorities arising in more general contexts, where it has been held that the conditions of imprisonment are not relevant to the legality of the imprisonment (See R v Deputy Governor of Parkhurst Prison [1992] 1 AC 58 at 165-6; Prisoners A - XXX Inclusive v New South Wales (1995) 38 NSWLR 622 at 633). 14 As has been noted, subs (3) of s 196 is clearly intended to be read with subs (1) of that provision. In my opinion, it falls to be considered in the same way, in point of constitutional validity, as subs (1) itself. Its prefatory words "to avoid doubt" indicate its purpose. Unlike s 54R, being the provision held invalid in Lim's Case, subs (3) of s 196 is confined in its operation to persons who are "unlawful non-citizens". In other words, subs (3) does not pick up a category of the kind considered in Lim's Case, which were described as "designated persons" and, by virtue of the administrative process involved in the designation process, led to the creation of a situation which had the potential to include within that description persons who were lawfully within Australia. It was the width of this description that ultimately formed the basis of the rationale of the majority reasoning holding that s 54R was invalid (see Lim's Case at 35 and 53). Once subs (3) is construed in context, this holding in Lim's Case may be distinguished as directed to very different circumstances. 15 Further, in my view, it is clear on the face of subs (3) that it is not intended to direct or control the manner of exercise of any judicial power; rather, it makes it clear that there is no jurisdiction in a court to direct the release of a person lawfully detained. But this is not to say that the question whether or not a person is an "unlawful non-citizen" is not justiciable or not examinable by a court; it would be open to a court to order, for example, that a person judged not to be an "unlawful non-citizen", be released; that is to say, the ability of the courts to determine the lawfulness of any detention remains unaffected by the provisions of Division 7. 16 As has been mentioned, reliance was also placed, on behalf of the applicants, upon the provisions of Art 10 of the Bill of Rights. It was not suggested, correctly I think, that such a provision could override or displace any statutory provision lawfully enacted by the Commonwealth. What is put, however, is that Art 10 should be called in aid in the construction of Division 7. Reliance was also placed, in this connection, on observations of Kirby J in Egan v Willis (1998) 195 CLR 424 (at 489) and upon a statement by Isaacs J in The Commonwealth and the Central Wool Committee v The Colonial Combing, Spinning and Weaving Co Ltd (1921/1922) 31 CLR 421 (at 463) to the effect that the Bill of Rights is an imperial statute in force in Australia by virtue of Act 9 Geo. IV. c 83, sec 24. 17 On behalf of the applicants, reference is also made to observations of a majority of the High Court in Coco v The Queen (1993/1994) 179 CLR 427 (at 437) to the effect that the Court should not impute to the legislator an intention to interfere with fundamental rights, and that general words will rarely be sufficient for that purpose. Consistently with the observations in Egan, Colonial Combing Co and Coco, in my opinion, the provisions of Art 10 do not assist the applicants here. As has already been held, this is not a case where, as a matter of characterisation, any punishment, let alone a cruel and unusual punishment, has been inflicted, nor do the rules of interpretation, upholding a presumption not to interfere with fundamental rights, assist the applicant here. 18 The essential issue, as I have said, is one of characterisation. In my opinion, s 196 should not, by virtue of its language, construed in context, be interpreted as a provision imposing punishment or having any other penal aspect. In my view, it is a law which provides for the custody or detention of an alien pending the processing of a visa application or deportation. As such, it is a valid law of the Commonwealth. I therefore order that the separate question be answered as follows: 19 Question: Is s 196 of the Migration Act 1958 a valid law of the Commonwealth? 20 Answer: Yes. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Beaumont.