Administration Law - Judicial review - decision of prescribed authority under Migration Act - illegal entrant - detention in custody - duty to inquire whether reasonable grounds for supposing person to be an illegal entrant - discretion to release presumptive illegal entrant - no express or implied power of prescribed authority to incorporate in order for release conditions which would be legally enforceable - whether prescribed authority can take into account in exercise of discretion an undertaking as to future conduct given by presumptive illegal entrant.

Migration Act 1958 (Cth) - ss. 92 and 95

Julius v Bishop of Oxford (1880) 5 App Cas 214

Metropolitan Coal Company of Sydney Ltd. v Australian Coal and Shale Employees Federation [1917] HCA 64; (1917) 24 CLR 85 and Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 referred to.

Solicitor for Respondents: Australian Government Solicitor

It is declared that on its proper construction, s.92(4) of the Migration Act confers a discretion on a prescribed authority to order the release of a person from custody notwithstanding that the prescribed authority is satisfied that there are reasonable grounds for supposing such person to be an illegal entrant.

The secondnamed respondent pay the applicant's taxed costs of and incidental to this application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an application under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision of a Stipendiary Magistrate, Ms Jacinta Mary Heffey, made on 18 October 1991 in respect of the applicant who had been arrested as a supposed illegal entrant under s.92(1) of the Migration Act 1958. That sub-section provides:

"(1) An officer may, without warrant, arrest a person whom the

officer reasonably supposes to be an illegal entrant."

2. The learned Stipendiary Magistrate made the decision complained of as "prescribed authority" within the meaning of the Migration Act - ss.95(1), (2), (3), (4) and (6) of which relevantly provide:

"(1) The Minister may appoint as a prescribed authority for the

purposes of sections 92 and 93 a person who is or has been a

Judge of a Federal Court or of the Supreme Court of a State or

Territory or a barrister or solicitor of the High Court or of

the Supreme Court of a State of not less than 5 years' standing.

(2) The Governor-General may arrange with the Governor-in-Council

of a State for the performance by persons who hold office as

Police, Stipendiary or Special Magistrates in that State of the

functions of a prescribed authority under sections 92 and 93.

(3) Notice of an arrangement under sub-section (2) shall be

published in the Gazette.

(4) Where an arrangement under sub-section (2) is in force, a

person who holds an office specified in the arrangement is a

prescribed authority for the purposes of sections 92 and 93.

(6) A prescribed authority shall make a thorough investigation

of the matter which he or she is required to inquire into,

without regard to legal forms, and shall not be bound by any

rules of evidence but may inform himself or herself on any

relevant matter in such manner as he or she thinks fit."

3. On 18 October 1991, the second respondent applied to her Worship for authorization for the applicant to be detained in custody for a further seven days. That application was made under s.92(4) of the Migration Act which is in these terms:

"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 an illegal entrant and, if the prescribed

authority is satisfied that there are such reasonable grounds,

he or she may, in writing, authorize the detention of that

person in custody, but otherwise the prescribed authority shall

order that person to be released."

4. On the hearing of that application, it was submitted on behalf of the present applicant, Ms Grech, that the learned Magistrate had a discretion to release Ms Grech from custody either absolutely or subject to conditions. On the other hand, counsel for the second respondent Minister argued that s.92(4) imported no discretion but obliged the learned Magistrate, once she was satisfied that there were reasonable grounds for supposing Ms Grech to be an illegal entrant, to authorize her detention in custody.

5. According to an affidavit filed in support of the present application:

"After hearing all the evidence and submissions her Worship held

that she had the power to release the applicant from custody but

that, interpreting sub-s 92(4), (9) and (10) together, she did

not have the power to release the firstnamed applicant from

custody on conditions. She further held that even if she did

have the power she would not be minded to release the firstnamed

applicant from custody based on the evidence that she heard that

6. It is not clear from that summary whether the learned Magistrate upheld the contention advanced on behalf of the Minister or took the view that she had a discretion to release the applicant notwithstanding that there were reasonable grounds for supposing her to be an illegal entrant but that such discretion was not accompanied by a power to impose conditions like a requirement to report at specified intervals to the immigration authorities. At all events, the matter has been argued before me on the basis that I should consider whether, on its proper construction, s.92(4) confers any discretion in the circumstances of this case, and that I should determine the present application by making a declaration in accordance with the construction which I adopt. By that means, it is expected that some guidance will be afforded when the same or another magistrate as a prescribed authority, considers tomorrow whether to extend the period of detention in respect of Ms Grech.

7. Reliance was placed by the learned Magistrate and before me on a judgment of Kaye J. in the Supreme Court of Victoria in Re Sawarnjit Singh (unreported 18 July 1984) where his Honour was called on to consider what was then s.38(3) of the Migration Act (as amended by Act No. 117 of 1979) which provided:

"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 prohibited immigrant and, if

the prescribed authority is satisfied that there are such

reasonable grounds, he may, by writing under his hand,

authorize the detention of that person in custody for such

period as the prescribed authority is satisfied is

reasonably required in order to enable the Minister to

consider whether that person is a prohibited immigrant and

whether a deportation order should be made in respect of

him, but otherwise the prescribed authority shall order that

person to be released."

8. In Singh's Case, the applicant's detention in custody had been authorized for seven days from 29 June 1984 and twice extended for a further seven days on 6 and 13 July 1984. His Honour observed at p 2:

"It was submitted by Mr Little, on behalf of the applicant,

that the further periods of detention authorised by the

Magistrates were outside their powers and therefore void

and, in consequence, the further detention of the applicant

beyond the first period of the order made on 29 June was

illegal. The submission is based upon the language of

section 38, (3), (3)(a) and (4) of the Migration Act.

In my opinion sub-section (3) of the Act requires a person

to be brought before a prescribed authority for the purpose

of the prescribed authority making an initial investigation.

That investigation is directed to whether there are

reasonable grounds for supposing that the person is a

prohibited non-citizen. In the event of the prescribed

authority being satisfied that there are reasonable grounds

for so supposing, he must then authorise the detention of

the person for a period to enable the Minister to decide two

questions: those question are whether the person is a

prohibited non-citizen and whether a deportation order

should be made in respect of him.

By sub-section (3)(a) the order which the prescribed

authority is required to make under the second limb is

limited to a period not exceeding seven days.

The purpose of detention for that period is to enable the

Minister to decide as a fact or as a question of fact and

law whether the person is a non-citizen, and, furthermore,

whether a deportation order should be made in respect of

him. There are, therefore, two matters for the Minister to

consider. The period of time of the detention of the person

is to enable the Minister to make those two decisions. They

may not be decisions which he is able to make within that

limited period. And so it is under sub-s. (4) the

prescribed authority is empowered to extend the period of

detention.

It was submitted on behalf of the applicant that the period

for the detention in the first place cannot exceed seven

days, and that sub-s. (4) does not enable the extension of

the period to extend beyond seven days from the period of

the authorized detention. It was submitted that accordingly

the total period for which a person may be detained after an

authorization order has been made is limited to seven days.

In deciding the question of construction I have taken into

account the wording of sub-ss. (3) and (4) before the

section was amended by Act No. 117 of 1979. At that time

sub-s. (3) provided:

"The prescribed authority may by writing under his hand

authorise the detention of that person in custody for such

period not exceeding seven days from the date of authorization."

The phrase "not exceeding seven days from the date of

authorization" was removed by the amendments; and

sub-s.(3A) was inserted providing that the period for which

detention in custody of a person brought before a prescribed

authority may be authorized under sub-s.(3) shall not exceed

seven days from the date of authorization or such longer

period from the date of the authorization as the person

consents to. It is seen, therefore, that the amendment

which was effected was by the insertion of the words "or

such longer period from the date of authorization as the

person consents to". In effect the amendment operates to

enable the prescribed authority to fix a period of detention

for a period in excess of seven days if the person consented

to a longer period. Sub-s.(4) was amended by substituting

for the words "the last preceding sub-section" the words "in

sub-s. (3)".

In my opinion, the effect of the amendments is not to limit

the period of detention of a prohibited non-citizen to a

total period of seven days. The effect of it is to enable

the prescribed authority to fix in the first instance a

period of seven days or with the consent of the person

concerned a longer period of time. Furthermore, the

amendment does not detract from the authority of the

prescribed authority to extend the period of detention

beyond seven days."

9. It is clear from that passage that Kaye J. was concerned only with the question of whether a prescribed authority had power to extend a period of detention beyond an initial seven days. It is true that he did suggest that "in the event of the prescribed authority being satisfied that these are reasonable grounds for so supposing the person to be a prohibited non-citizen, he must then authorize the detention of the person for a period to enable the Minister to decide two questions"; (emphasis added). However, I do not understand his Honour to have ruled that the prescribed authority had no discretion to refrain from authorizing any period of detention at all. That question was apparently not argued. I consider that his Honour was concerned only to convey by the word "must", that there were two criteria which the prescribed authority had to take into account in fixing a period of detention assuming an intention to authorize one. In the light of the provisions of s.38(3) as it then stood that conclusion was, with respect, unexceptionable.

10. To uphold the contention of Counsel for the Minister I have to decide that despite the use of the words "he or she may ... authorize the detention" the legislature intended to impose a mandatory requirement to authorize detention once the prescribed authority is satisfied that there are reasonable grounds for supposing that the person is an illegal entrant. The word "may", particularly when used in indicating a function reposed in a public officer is clearly capable of that effect; see e.g. Julius v Bishop of Oxford (1880) 5 App Cas 214. However, Isaacs and Rich JJ. in Metropolitan Coal Company of Sydney Ltd v Australian Coal and Shale Employees' Federation [1917] HCA 64; (1917) 24 CLR 85 added, at 96, this footnote to Julius v Bishop of Oxford:

"The rule in Julius v Bishop of Oxford 5 App Cas, 214, is

not that wherever the word `may' is used in connection with

a public office it means `shall.' Nor, if the Legislature

confers a right by the same word and states certain

conditions, does it necessarily follow that the word imposes

a duty on the proper officer, irrespective of all other

considerations. The true rule is thus stated by Lindley

M.R. in Southwark and Vauxhall Water Co. v Wandsworth

District Board of Works (1898) 2 Ch 603, at p 607,

speaking of the words `it shall be lawful':- `These words

may, no doubt, under certain circumstances impose a duty as

well as confer a power, but it is for those who contend that

they do both to make good their contention. Nothing can be

clearer on this point than the judgment of Lord Cairns in

Julius v Bishop of Oxford."

11. To similar effect, the Full High Court observed in Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505:

"In considering the correctness of this interpretation it is

necessary to bear steadily in mind that it is the real

intention of the legislature that must be ascertained and

that in ascertaining it you begin with the prima facie

presumption that permissive or facultative expressions

operate according to their ordinary natural meaning. "The

authorities clearly indicate that it lies on those who

assert that the word `may' has a compulsory meaning to show,

as a matter of construction of the Act, taken as a whole,

that the word was intended to have such a meaning" - per

Cussen J.: Re Gleeson [1907] VicLawRp 71; (1907) VLR 368, at p 373. "The

meaning of such words is the same, whether there is or is

not a duty or obligation to use the power which they confer.

They are potential, and never (in themselves) significant of

any obligation. The question whether a Judge, or a public

officer, to whom a power is given by such words, is bound to

use it upon any particular occasion, or in any particular

manner, must be solved aliunde and, in general, it is to be

solved from the context, from the particular provisions, or

from the general scope and objects, of the enactment

conferring the power' - per Lord Selborne: Julius v Bishop

of Oxford (1880) LR 5 AC 214, at p 235. One situation

in which the conclusion is justified that a duty to exercise

the power or authority falls upon the officer on whom it is

conferred is described by Lord Cairns in his speech in the

same case. His Lordship spoke of certain cases and said of

them (they) appear to decide nothing more than this: that

where a power is deposited with a public officer for the

purpose of being used for the benefit of persons who are

specifically pointed out, and with regard to whom a

definition is supplied by the Legislature of the conditions

upon which they are entitled to call for its exercise, that

power ought to be exercised, and the Court will require it

to be exercised'. (1880) LR 5 AC, at p 225."

12. In my view an insurmountable obstacle to the contention that the words "may ... authorize the detention" impose a duty and do not confer a discretion is raised by their use in close proximity in the self-same sub-section to phrases using the imperative "shall". It cannot be doubted that the prescribed authority is under a duty to inquire into the existence of reasonable grounds for supposing the person to be an illegal entrant. Hence sub-s.(4) stipulates that the prescribed authority "shall inquire into the question ...". Likewise if the prescribed authority declines to authorize detention there is no alternative to the release of the person so the sub-section peremptorily concludes "the prescribed authority shall order the person to be released." The use of the word "may" in sub-ss(1) (2) (5) (6) (9) and (10) of s.92 can similarly be contrasted with the use of "shall" in sub-ss (3) and (7), and like contrasts are revealed by s.93.

13. I find nothing in the word "otherwise" which precedes the concluding direction for release in s.92(4) to contradict the construction which I prefer. In my view, that indicates only the negation of the two prerequisites for authorization of detention, namely satisfaction that there are reasonable grounds for supposing the person to be an illegal entrant, and a positive exercise of the discretion to authorize detention. Nor does the undoubted discretion conferred on the Minister or the Secretary by s.92(9) to order release either unconditionally or subject to conditions and the stipulation in sub-s(10) of consequences for breach of a condition so imposed, exclude a discretion in the prescribed authority to order release. It is true that there is no express or implied power in the prescribed authority to incorporate in an order for release, conditions which would be legally enforceable. That is not to say that a prescribed authority may not have regard to an undertaking as to future conduct given by a presumptive illegal entrant. However, that is a matter going to the grounds on which the discretion may be exercised, not to its existence. In the same context it should be noted that when s.38 became s.92 by amendment effected by Act No. 59 of 1989 sub-s(7) was amended to stipulate that the power of the Minister or the Secretary could be exercised either unconditionally or subject to conditions and sub-s(7A) (now s.92(10)) was inserted. Before that the power conferred by what was then sub-s.(7) was not materially different from that conferred on the prescribed authority by sub-s.(3) which was the counterpart of the present s.92(4). It can hardly be thought that the Legislature intended by such an indirect mechanism fundamentally to change the nature of the power conferred on a prescribed authority.

14. I am reinforced in the conclusion to which I have come by the fact that the power conferred by s.92(4) is reposed by s.95 in persons who are or have been judicial officers or legal practitioners of at least five years standing. By application of the approach in Ward v Williams (supra) at 507 that is a consideration of some weight in favour of the conclusion that authorization of detention is not to follow automatically from a finding that reasonable grounds exist for supposing a person to be an illegal entrant.

15. For these reasons, I propose to declare that on its proper construction, s.92(4) of the Migration Act confers a discretion on a prescribed authority to order the release of a person from custody notwithstanding that the prescribed authority is satisfied that there are reasonable grounds for supposing such person to be an illegal entrant. The applicant has succeeded on the sole point on which the proceedings in this Court have turned and she should have her costs of Application VG 279 of 1991. However, because the decision of Ms Heffey is no longer of any operative effect, I decline to make any other order on that application which is otherwise dismissed.