Supreme Court of SA|2002-11-11|Before: Gray J

SEC OF DEPT OF IMMIGRAT & MULTICULT & INDIGINOUS AFFAIRS v BEHROOZ & ORS No. SCCIV-02-856 [2002] SASC 370 (11 November 2002)

16/07/2002 to 17/07/2002, 30/07/2002, 10/09/2002, 05/11/2002.

CONSTITUTIONAL LAW --- OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION --- NATURALISATION AND ALIENS (CONSTITUTION, CONSTITUTIONAL LAW --- OPERATION AND EFFECT OF THE COMMONWEALTH --- IMMIGRATION AND EMIGRATION (CONSTITUTION, --- GENERALLY CITIZENSHIP, IMMIGRATION AND EMIGRATION --- ALIENS --- RIGHTS OF ALIENS CITIZENSHIP, IMMIGRATION AND EMIGRATION --- IMMIGRATION STATUS --- NON-CITIZENS --- DETENTION AND REMOVAL FROM AUSTRALIA CITIZENSHIP, IMMIGRATION AND EMIGRATION --- DEPORTATION --- ARREST AND DETENTION --- POWER TO DETAIN CITIZENSHIP, IMMIGRATION AND EMIGRATION --- MISCELLANEOUS MATTERS --- PRINCIPLES OF JUDICIAL REVIEW --- GENERALLY APPEAL AND NEW TRIAL --- APPEAL - GENERAL PRINCIPLES --- RIGHT OF APPEAL --- WHEN APPEAL LIES --- FROM INTERLOCUTORY DECISIONS ADMINISTRATIVE LAW --- DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS --- WHAT CONSTITUTES JUDICIAL POWER OF THE COMMONWEALTH ADMINISTRATIVE LAW --- DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS --- POWERS OF THE MINISTER OF CROWN (AND OF CROWN) ADMINISTRATIVE LAW --- JUDICIAL REVIEW AT COMMON LAW --- EXCESS OF POWER AND DEFECTIVE USE OF POWERS --- FAILURE TO EXERCISE DISCRETIONARY POWER CRIMINAL LAW --- GENERAL MATTERS --- CRIMINAL LIABILITY AND CAPACITY CRIMINAL LAW --- PARTICULAR OFFENCES --- OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE --- ESCAPE

Appeal against magistrate's refusal to set aside witness summonses - judicial review sought - application for court to exercise its inherent jurisdiction to set aside orders. Defendants charged with escaping from Woomera Immigration Processing and Detention Centre (`Woomera') an immigration detention centre - whether defendants' detention was lawfully authorised by the Migration Act 1958 (Cth) - whether detention at Woomera went beyond anything that could reasonably be regarded as necessary for the purposes of the Migration Act - whether conditions at Woomera were so bad as to be punitive - whether a detainee who escaped from detention at Woomera escapes from immigration detention. Summons issued to Department of Immigration & Multicultural & Indigeneous Affairs, Australasian Correctional Management Pty Ltd and Australasian Correctional Services Pty Ltd for the production of evidentiary material relating to the detainees and their detention at Woomera - power to issue summonses to produce evidentiary material - meaning of evidentiary material - onus of establishing that material sought fits within that definition - application made to set aside the summonses on the grounds of oppression - affidavit material filed in support of application - defendants filed affidavits exhibiting extensive material - magistrate did not analyse the material or the conditions at Woomera or address the issue of the potential evidentiary value of the material - magistrate did not decide whether the proposed defence was tenable in law or fact - no reasons given for conclusion that defendants' argument was a `powerful one'. Jurisdiction to appeal - section 42 Magistrates Court Act 1991 (SA) - proceedings before the magistrate were not summary proceedings - appeal to this court is of right - if summary proceedings issue is whether orders were interlocutory - interlocutory orders therefore no appeal - whether judicial review available - orders in the nature of certiorari and mandamus sought - nature of Supreme Court's inherent jurisdiction - possibility of invoking these jurisdictions. Statutory scheme of the Migration Act - detention of unlawful non-citizens - provision of detention centres - whether conditions or the quality of immigration detention could alter the character of the detention for constitutional purposes - whether magistrate failed to exercise his jurisdiction - whether determination of whether suggested defence was known to law was necessary to properly determine the application to set aside the witness summonses - whether documentary material sought could have evidentiary value at the defendants' trials - reasoning in Chu Kheng Lim v Minister of Immigration not challenged - extent of the aliens power in s 51(xix) of the Constitution - character of statutory authority to detain determined by statutory context and purpose - section 189 of the Migration Act is valid provided the detention it requires and authorises is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or where necessary to enable application for entry permit to be made and considered - detention not imposed as punishment for being an unlawful non-citizen - legislative power an incident of the executive power and did not contravene the implied constitutional limitation that judicial power be vested exclusively in a court by or under chapter 3 of the Constitution - whether analogous to harshness of prison conditions - criterion of intolerability imprecise - detention remains lawful - other remedies available - legal accountability of detainees' custodians - material before this court insufficient to establish a link between the defendants, their conditions at Woomera and their alleged escape - appeal allowed - witness summonses set aside. Oppression - whether summonses oppressive - grounds for setting aside summons - whether tantamount to discovery - weighing of competing considerations - concerns over privacy, issues of public interest immunity and other privilege do not militate against compliance - task of compliance in this case substantial but this must be weighed with the consequences to the defendants if found guilty.

Migration Act 1958 (Cth),ss 5,54L,54Q, Divs 4B,196(1),(3),197A,Divs 7,189,199,200,273;

Magistrates Court Act 1991 (SA), ss 3,4,5,20,20(1),42,42(1),42(1a);

Judiciary Act 1903 (Cth) s 68(1), s 78B;

Supreme Court Act 1935 (SA), s 17;

Supreme Court Rules r 98;

War-time Refugees Removal Act 1949 (Cth);

Privacy Act 1988 (Cth);

Crimes Act 1914 (Cth) s 4J, referred to.

Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SRNSW 564;

Fried v National Bank Ltd [2000] FCA 911;

Carter v Hayes (1993-1994) 61 SASR 451;

Brouwer v Titan Corporation Ltd (1997) 53 FCR 241;

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163;

Chu Kheng Lim v Minister of Immigration (1992-1993) 176 CLR 1;

NAMU of 2002 v Secretary Department of Immigration and Multicultural and Indigenous Affairs [2002] FCA 907;

R v Deputy Governor of Pankhurst Prison: ex parte Hague [1992] 1 AC 58;

Prisoners A-XX Inclusive v New South Wales (1995-1996) 38 NSWLR 628;

R v His Honour Judge Noud; ex parte MacNamara [1991] 2 Qd R 86 sub nom;

Judge of the District Court; ex parte MacNamara and Gray (1990) 48 A Crim R 328;

Hunt v Wark (1985-86) 40 SASR 489;

Perka v The Queen (1985) 14 CCC (3d) 385;

Southwark London Borough Council v Williams [1971] Ch 734;

Lucas Industries Ltd v Hewitt (1978) 45 FLR 174;

Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (1984) 1 NSWLR 710;

S v Metanomski unreported 2 March 1993;

R v Loughnan [1981] VicRp 43; [1981] VR 443, considered.

Plaintiff: SEC OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Counsel: MR BURNSIDE QC WITH MR J MANETTA AND MR M MANETTA

Judgment No. [2002] SASC 370

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

MAHRAN BEHROOZ, MAHMOOD GHOLAMI MOGGADDAM & DAVOOD HOSSEIN AMIRI

GRAY J This is an appeal from the orders of a magistrate refusing to set aside witness summonses. Judicial review of the same orders are sought. Alternatively it is said that the court can set aside the orders under its inherent jurisdiction.[1]

On 21 November 2001 Mahran Behrooz, Mahmood Gholami Mogaddam and Davood Hossein Amiri were separately charged on information that:

"On or about the 18th day of November 2001 being a detainee escaped from Immigration Detention contrary to section 197A of the Migration Act 1958."

"On or about the 18th day of November 2001 the defendant being [a detainee] at the Woomera Immigration Processing & Detention Centre escaped."

Section 197A of the Migration Act 1958 (Cth) provides:

"A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years."

The present case concerns the detention of the defendants. The issue is whether their detention at the Woomera Immigration Processing and Detention Centre was lawfully authorised by the provisions of the Migration Act.

It was accepted that the Woomera Immigration Processing and Detention Centre was established as an immigration detention centre pursuant to the Migration Act. Woomera is situated in the far north of South Australia some 500 kilometres from Adelaide. The Woomera Immigration Processing and Detention Centre is proximate to the township of Woomera.

Little is known about the defendants. The material before this court does not disclose their background circumstances or how and why they came to Australia. The only information provided was the length of time they had been in detention. No information was provided about any conditions at the Woomera Immigration Processing and Detention Centre which directly affected or related to any of the defendants.

The power to issue a summons to produce evidentiary material is contained in section 20 of the Magistrates Court Act 1991 (SA) as applied in this case by section 68(1) of the Judiciary Act 1903 (Cth).

A witness summons may be set aside as an abuse of process if it lacks legitimate forensic purpose or proper foundation.[2] It is an abuse to seek documents which could not be relevant or are not sufficiently relevant to the issues between the parties[3]. These requirements are set out in the Magistrates Court Act which empowers the court to require the production of "evidentiary material". Section 20(1) provides:

"The Court may, on the application of a party to proceedings or on its own initiative, issue a summons requiring a person to appear before the Court at a specified time and place to give evidence or to produce evidentiary material (or both)."

"any document, object or substance of evidentiary value in proceedings before the Court and includes any document, object or substance that should, in the opinion of the Court, be produced for the purpose of enabling the Court to determine whether or not it has evidentiary value;"

The onus of establishing that the material sought is evidentiary material rests on the party seeking the material. It is necessary for the court to examine the evidence put forward in support of an application and analyse the defence advanced and decide whether it is a defence arguably open at law.

On 10 January 2002 on the defendants' application the Magistrates Court issued the witness summonses to the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA"), Australasian Correctional Management Pty Ltd ("ACM") and Australasian Correctional Services Pty Ltd ("ACS"), all referred to as the recipients. All summonses sought the production of material as follows:

Note: a reference to "Woomera" is a reference to Woomera Immigration Processing and Detention Centre.

The documents to be produced are any documents which came into existence since 1st December 1999 and which:

1. contain or refer to complaints or concerns about conditions in Woomera;

2. contain or refer to protests about conditions in Woomera;

3. contain recommendations or requests for improvement of the conditions in Woomera.

(b) the physical health of detainees at Woomera;

(c) the psychological health of detainees at Woomera;

5. comprise records or reports of incidents or disturbances at Woomera reportable under or covered by Incident Reporting Procedures or Emergency Procedures detailed in Operational Orders;

6. contain a record or report concerning any of:

7. contain or refer to the services, facilities, activities and programs designed to meet the individual needs of each of:

8. contain or refer to the policy or procedures at Woomera regarding:

(c) visits to detainees by humanitarian or welfare groups;

(a) United Nations High Commissioner for Refugees;

(b) Human Rights and Equal Opportunity Commission;

regarding the conditions of detention at Woomera.

In March and April 2002 applications were made by the recipients to set aside the summonses on the following grounds:

"1) The witness summons issued by the [detainee] on 18 January 2002 directed to the [recipients] involves a matter arising under the Constitution or involving its interpretation.

The witness summons issued by the [detainee] on 18 January 2002 directed to the [recipients] is oppressive and an abuse of the process of the Court because:

a) the issue to which all of the documents may be relevant is an issue upon which, for constitutional reasons, the [detainee] cannot possible succeed;

ii) the subpoena is indirectly seeking discovery and, in particular, it requires elaborate exercises of judgment by the [recipients]; and

iii) the subpoena refers to production of documents for time periods when the defendants were not in detention and seeks documents in relation to minors when the [detainees] are adults.

1 That proceedings in respect of the summons be stayed pending compliance with the provisions of section 78B of the Judiciary Act 1903.

The applications were supported by an affidavit of Philippa Godwin[4]. The affidavit provided particulars of what was said to be the oppressive nature of the summonses. An analysis of this material is discussed later in these reasons.[5]

Four affidavits were filed on behalf of the defendants.[6] The affidavits exhibited extensive material the majority of which appeared to relate to other immigration detention centres and other detainees. Although no objection was taken to the reception of the material its evidentiary value is limited. The documents included considerable political commentary from sources of doubtful independence. The content of much of the material was non specific as to time. None of the material related directly to the immigration detention of the defendants. No material was filed directly by the defendants or any deponent who attested to the conditions affecting the defendants at the Woomera Immigration Processing and Detention Centre at the time of the alleged escape. This material is discussed in greater detail later in these reasons.[7]

The applications to set aside the summonses were heard on 6 and 7 May 2002. The magistrate delivered reasons on 24 May 2002 foreshadowing his proposed orders.[8] Those orders were made on 7 June 2002.

The magistrate in his reasons noted the affidavits filed on behalf of the defendants. However he made no attempt to analyse the material or come to any conclusion about what relevant matters had been established. He made no comment about the conditions of the defendants' detention at the Woomera Immigration Processing and Detention Centre. The magistrate did not address the issue of the potential evidentiary value of the material. The magistrate noted the submissions of counsel for the defendants:

"... even though detention for the purposes of [the] Migration Act was capable of being valid detention, if the conditions of detention were so obviously harsh as to render them punitive, then the detention went beyond that which was authorised by the Act and was necessarily illegal. In effect he argued that if the detention is in fact punitive, then it must necessarily be illegal.

... it is the very nature of the detention which determines whether it is lawful or unlawful. If the detention is in fact punitive detention, then it is not detention which is authorised by the Act, notwithstanding that the sections are a valid constitutional enactment and hence the detention is unlawful. It follows that escape from such detention does not amount to an offence."

"I am of the view that [the defendant's] argument is a powerful one. At this stage, however, I do not have to decide the issue. It will be for the magistrate who hears the case and that may not be me, to make a decision upon the law that relates to the charges. It would be embarrassing for that magistrate if I were to now try to determine that legal issue in advance. For the purpose of those applications to set aside the subpoena, I must decide whether or not the defendant's outlined defence has, in a legal sense, any prospect of success. I do not agree with the arguments of the learned Solicitor General that the defendant's defence must necessarily fail upon legal grounds. On the contrary I think it has a perfectly good chance. It therefore follows that the applications cannot succeed on this point."

He provided no reasons for his conclusion that "the defendants' argument is a powerful one". The magistrate did not decide whether the proposed defence was tenable in fact or law. He left that issue to be decided later.

The magistrate generally rejected the recipients' submissions about oppression. After hearing cross-examination of Ms Godwin he found:

"the Department will be perfectly up to the task of sifting through the documents and producing those which may, at the end of the day, be critically relevant to the defendants' proposed defence."

However he allowed the applications in limited respects:

"... only insofar as to exempt documents which relate to periods outside the period of 23 months prior to 18 November 2001 or which relate solely to minors."

Section 42 of the Magistrates Court Act provides:

"(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).

(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.

(b) in any other case - to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).

(4) On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.

(5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:

(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;

(b) it may remit the case for hearing or further hearing before the Magistrates Court;

(c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.

(6) Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance."

"a judgment, order or decision and includes an interlocutory judgment or order."

Each defendant was charged with an indictable offence. On the material before this court there was no evidence that any of the defendants elected to be tried summarily[9]. It was agreed that although discussion had taken place between counsel about this issue no notification of consent had been given by the defendants. No notification was given to the court. The proviso to section 42(1a) of the Magistrates Court Act has no application. The proceedings were not summary proceedings. The recipients appeal as of right.

Alternatively if the proceedings were summary then the question becomes whether the magistrate's orders with respect to the summonses were interlocutory. If they were there can be no appeal.

In Brouwer v Titan Corporation Ltd[10] the Full Federal Court observed:

"It seems to us that, consistently with the authorities to which we have referred, the word 'interlocutory' in the present context has been understood to bear a meaning by reference to the meaning of the word 'final'. The final orders to be made ... will be orders which will finally determine the rights of the parties to those proceedings in relation to the issues presented for decision in them. In contrast, a decision in relation to a subpoena, the issue of which is a procedural step in the existing proceedings provided for by the rules of court governing them, seems to us to be a paradigm case of an interlocutory judgment.

There are sound policy reasons to support classification of the orders made ... by Northrop J as interlocutory in character. If Mr Nash's argument were correct, every stranger to proceedings required to produce documents to the Court in the course of those proceedings would be entitled to appeal to the Full Court as of right (cf Mason J's description of a 'steady stream of appeals ... from orders on applications to set aside default judgments' as 'by no means an inviting prospect' in Carr at 256). This would be so, as Mr Nash acknowledged, even if the stranger were effectively in the camp of one of the parties and were represented by the same legal representatives. Similarly, if copies of the same document were in the possession of a party and a non-party, it would be odd that an order against a party to produce it should be interlocutory while the same order against the non-party should be final.

It may well be appropriate for an appellate court to review an order by a trial Court for a stranger to the proceedings to produce documents. However, like appeals in relation to other matters arising in the course of proceedings, an appeal from such an order should be subject to the process provided by the leave requirement specified in s 24(1A) of the Federal Court Act."

This reasoning is apposite. The magistrate's decision in relation to the witness summonses dealt with a procedural matter within the proceedings. This is a "paradigm case" of an interlocutory order.

Orders for judicial review in the nature of certiorari and mandamus were sought under section 17 of the Supreme Court Act 1935 (SA) and rule 98 of the Supreme Court Rules. Rule 98 enlarges the remedies which may be granted but does not widen the grounds for judicial review. In S v Metanomski[11] King CJ observed:

"Relief by way of Judicial Review remains confined to situations in which one or other of the prerogative orders could formerly have been made."

In Craig v South Australia[12] the High Court addressed the nature of certiorari:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal."

The Magistrates Court is an inferior court to which certiorari may lie.[13] Certiorari is available in respect of interlocutory orders.[14] Craig establishes that this remedy is available to quash the decision of an inferior court upon a number of grounds including jurisdictional error and error of law on the face of the record. The court made it clear that this was not necessarily an exhaustive list of the grounds on which certiorari might lie.[15]

The magistrate's orders were subject to judicial review. This jurisdiction could be invoked if necessary.

In Carter v Hayes[16] when dealing with an application concerning witnesses summonses King CJ observed:

"For the reasons which I have given, I consider that there has been an error of law. This Court is reluctant to intervene in criminal proceedings in the Magistrates Court by way of judicial review: Goldsmith v Newman (1992) 59 SASR 404 esp at 411-412. The error in the present case, however, if not corrected, would have general consequences for the administration of justice in summary proceedings. I think that the intervention of the Court is warranted. The decision of the magistrate setting aside the summons should be quashed. The application to strike out the summons should be remitted to the Magistrates Court to be disposed of according to law."

This court also has an inherent jurisdiction to review the magistrate's orders to correct an error of law. This jurisdiction could be invoked if necessary.

Division 7 of the Migration Act and in particular section 189 address the detention of unlawful non-citizens. The means by which immigration detention is to be authorised and effected is specified in the Migration Act.

Section 189 requires an officer to detain an unlawful non-citizen in specified circumstances:

"(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone (other than an excised offshore place); and

(b) would, if in the migration zone, be an unlawful non-citizen;

(3) If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.

(4) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter an excised offshore place; and

(b) would, if in the migration zone, be an unlawful non-citizen;

It is not an obligation to detain unlawful non-citizens at large.

Section 5(1) of the Migration Act defines immigration detention to include:

"(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 watchhouse; or ..."

A person must be released from immigration detention if granted a visa. This includes a bridging visa pending determination of an application for a substantive visa. Immigration detention also ceases when a person is removed under section 199 or is deported under section 200. The obligation to detain is subject to the additional obligation in section 198 to remove an unlawful non-citizen from Australia upon request. Removal under sections 198 and 199 must occur as soon as reasonably practicable.

Section 273 of the Migration Act makes provision for detention centres:

"(1) The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

(2) The regulations may make provision in relation to the operation and regulation of detention centres.

(3) Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:

(b) the powers of persons performing functions in connection with the supervision of detainees.

detention centre means a centre for the detention of persons whose detention is authorised under this Act."

It was not disputed that at the time of the alleged offences the Woomera Immigration Processing and Detention Centre was a detention centre within the meaning of section 273 of the Migration Act.

In Chu Kheng Lim v Minister of Immigration[17] the High Court upheld the constitutionality of the power of the executive to detain an alien in custody. That decision was based on principles accepted in a series of High Court decisions considering the extent of the aliens power in section 51(xix) of the Constitution. The court held that the legislative power conferred by section 51(xix) extended to the conferral of authority on the executive to detain or to direct the detention of an alien in custody for the purposes of expulsion or deportation. The authority to detain in custody constituted an incident of the executive power and as such did not contravene the implied constitutional limitation that the judicial power of the Commonwealth be vested exclusively in a court by or under Chapter 3 of the Constitution. The question of validity is determined by the proper characterisation of the law authorising detention. If that law is properly characterised as within the executive power to process visa applications and to deport it follow that it is not punitive or penal in character.

The character of the statutory authority to detain is determined by the statutory context and purpose of that authority. If the authority is limited to that which is reasonably necessary for deportation or the processing of the application for an entry permit then the law is valid. The characterisation of the statutory authority and obligation to detain as not being penal or punitive follow from the statutory limitations upon that authority. Those limitations include the requirement that a detainee be removed from Australia as soon as reasonably practicable after refusal of entry application and finalisation of any appeals or after failing to make a visa application within a prescribed time or upon a request by the detainee to be removed. As Brennan, Deane and Dawson JJ with whom Mason CJ agreed observed:

"In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective. The clearest example is Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533; There, it was held by the Court that the War-time Refugees Removal Act 1949 (Cth) was a valid exercise of the legislative power of the Parliament of the Commonwealth. That Act provided (s 5):

'The Minister may at any time within [a specified period] make an order for the deportation of a person to whom this Act applies and that person shall be deported in accordance with this Act.'

Among the persons to whom the Act applied was "every person ... who entered Australia during the period of hostilities and is an alien" Section 7 provided, among other things, that a "deportee may ... pending his deportation ... be kept in such custody as the Minister or an officer directs". It was held that, in their application to aliens, the relevant provisions were all within the "full power" of the Commonwealth Parliament "to make laws with respect to aliens" For present purposes, the direct relevance of the case lies in what was said about the validity of s 7's authorization of imprisonment by executive order pending deportation. In the course of his judgment, Latham CJ with the concurrence of McTiernan J and Webb said:

'A particular attack was made upon s 7 of the Act, which has already been quoted. This section is substantially identical with s 8c of the Immigration Act 1901-1940. It is contended that it is invalid because it permits unlimited imprisonment. Any deprivation of liberty must be shown to be authorized by law before it can be justified. But deportation legislation is a necessary element in the control of immigration into a country `The power to deport,'...`is the complement of the power to exclude.' Deportation under legislation of this character, whether it is regarded as legislation relating to aliens or legislation relating to immigration, is not imposed as punishment for being an alien or for being an immigrant ... Section 7 does not create or purport to create a power to keep a deportee in custody for an unlimited period. The power to hold him in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls. If it were shown that detention was not being used for these purposes the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy.'

It can therefore be said that the legislative power conferred by s 51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature ... nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident."

Their Honours then considered the validity of sections 54L and 54Q of the Migration Act and said:

"In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates."

Section 189 of the Migration Act is valid provided that the detention which it requires and authorises is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or where necessary to enable an application for an entry permit to be made and considered. Section 189 does not create or purport to create a power to keep an unlawful non citizen in custody for an unlimited period. The detention directed and authorised by section 189 is not imposed as punishment for being an unlawful non citizen.

"In the context of that power of a designated person to bring his or her detention in custody under Div 4B to an end at any time, the time limitations imposed by other provisions of the Division suffice, in our view, to preclude a conclusion that the powers of detention which are conferred upon the Executive exceed what is reasonably capable of being seen as necessary for the purposes of deportation or for the making and consideration of an entry application. It follows that the powers of detention in custody conferred by ss 54L and 54N are an incident of the executive powers of exclusion, admission and deportation of aliens and are not, of their nature, part of the judicial power of the Commonwealth."

It follows that the power conferred by section 189 to detain in custody is an incident of the executive power of exclusion, admission and deportation of aliens and is not of its nature part of the judicial power of the Commonwealth.

McHugh J rejected the suggestion that section 54L was punitive or penal in nature:

"... no punishment or penalty is imposed by Div. 4B in its ordinary operation. Although detention under a law of the Parliament is ordinarily characterized as punitive in character, it cannot be so characterized if the purpose of the imprisonment is to achieve some legitimate non-punitive object. Thus, imprisonment while awaiting trial on a criminal charge is not punitive in nature because the purpose of the imprisonment is to ensure that the accused person will come before the courts to be dealt with according to law. Similarly, 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 the country. Likewise, the lawful imprisonment of an alien while that person's application for entry is being determined is not punitive in character because the purpose of the imprisonment is to prevent the alien from entering into the community until the determination is made. But if imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object, it will be regarded as punitive in character."

This reasoning is directly applicable to section 189. The Section is not punitive or penal in nature.

Counsel for the Attorney General made submissions on the constitutional and related issues. Counsel for the recipients adopted these submissions. It was contended that provided detention is for the purposes of deportation or migration processing, it is not beyond the power conferred by section 51(xix) or section 51 (xxvii) of the Constitution. It was submitted that the conditions or the quality of immigration detention could not alter the character of the detention for constitutional purposes.

Counsel drew attention to NAMU of 2002 v Secretary Department of Immigration and Multicultural and Indigenous Affairs[18] where Beaumont ACJ upheld the validity of subsections 196(1) and (3) of the Migration Act:

"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, s54L 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."

Counsel for the Attorney General submitted that the magistrate had failed to exercise his jurisdiction. A determination of whether the probated defence was known to the law was necessary to properly determine the application to set aside the summonses. It was contended that if the magistrate had applied the correct test then he would have held that the proposed defence did not exist at law. Alternatively the magistrate should have concluded that the proposed defence was not arguable in law. The documentary material sought could not be of evidentiary value at the trials of the defendants. The summonses should have been set aside.

Counsel for the defendants submitted that the proposed defence involved three propositions. The Detention in the Woomera Immigration Processing and Detention Centre went beyond anything that could reasonably be regarded as necessary for the purposes of the Migration Act. The detention at Woomera Immigration Processing and Detention Centre is not a form of detention authorised by the Migration Act. A detainee who escaped from Woomera Immigration Processing and Detention Centre does not escape from immigration detention.

It was submitted that there were two important measures for testing whether detention goes beyond what is reasonable and necessary. Those measures were the conditions of the detention and their resultant impact on detainees.

Counsel for the defendants did not challenge the purpose of the defendants' detention. It was accepted that they were being detained for legitimate purposes. However it was said that the conditions went beyond the deprivation of their liberty and amounted to punishment.

Counsel for the defendants suggested that the harshness of the conditions at the Woomera Immigration Processing and Detention Centre changed the character of the defendants' detention. The question said was to be whether the conditions were so harsh as to become punitive and therefore unlawful.

The material filed by the defendants in support of the summonses has been earlier identified. The particular circumstances of the defendants' detention are not the subject of evidence. There was no evidence of the conditions that the defendants faced or the impact of those conditions upon them.

The material was of a general nature and primarily detailed matters related to other detainees at other immigration detention centres. Little of the material related directly to the Woomera Immigration Processing and Detention Centre. It is not practicable to address in these reasons all the material exhibited. The following descriptive summary reveals its general inadequacy.

The speech given by Professor Richard Harding to the International Corrections and Prisons Association conference in Perth dated 30 October 2001 detailed the work of the Inspector of Custodial Services in Western Australia. It described what was said to be the absence of any proper inspection and accountability system in relation to Immigration Detention Centres run under the authority of the Australian government. The speech included:

"That brings me to the question of Immigration Detention Centres. In Australia these are an absolute disgrace in terms of the conditions and standards that are applied. Whilst there are several factors contributing to this, one of the most important is that there is a complete absence of proper accountability and transparency across the whole system. Immigration Detention Centres need an autonomous Inspectorate of the kind that now exists in Western Australia.

There are eight mainland Detention Centres in Australia. Two of them, Curtin and Woomera are 'in the middle of nowhere'..."

The speech then detailed the alleged inadequacies of education being provided at the Curtin Detention Centre and continued:

"The huts in which people lived were grossly overcrowded; many of the toilets were broken; some of the washing machines were also broken; the so-called 'shop' was abominably stocked and rather inaccessible; the system for sending mail breached all standards of privacy and confidentiality; and above all the medical and dental facilities were inadequate.

With regard to dental facilities, a dentist apparently called for about two days every five or six weeks. However, there was no dental surgery on site, and the dentist's main activity was apparently pulling teeth in makeshift conditions.

The day previous to my visit, a Port Headland detainee had died of cancer, and notices were going up around the Curtain Camp stating 'Cancer take water and valium and this will cure you.' There were no specialist women's health services.

Thus in summary, the conditions that exist at the Curtin Centre are almost intolerable. Such evidence as exists indicates things are a little better at other Centres."

Limited references were made in the speech to the Woomera Immigration Processing and Detention Centre.

A radio broadcast of "The Health Report" went to air on ABC on 13 August 2001. The announcer's introduction included:

"A growing number of health professionals are deeply concerned at the effect of this detention policy on already traumatised people ... They say that detention is creating a spiral of depression, psychotic symptoms and self mutilation. Not only that but the standards of care may be less than desirable."

The broadcast then involved an interview with a Sri Lanken refugee who had spent time in the Maribyrong Detention Centre in Victoria. Another refugee an Iraqi doctor was interviewed. His comments included:

"[Immigration Detention Stress Syndrome] is just a matter of observation. I've just noticed that the majority of them will go through certain stages. At the beginning they will come and they are hoping and trusting Australia. This will change immediately. They will become disillusioned. They will see the fences and razor wire and officers. You are confined are not allowed to go anywhere. You're not even allowed to get mobile telephones."

The doctor then spoke about a six year old Iranian boy who was said to have spent 17 months in detention first a Woomera and then at Sydney's Villawood Detention Centre. Whilst at Villawood the boy saw a detainee cutting their wrists and then became mute and developed a psychological anorexia. Woomera was only mentioned in passing as the detention centre in which he had initially been placed. No correlation was drawn between his experiences at Woomera and his ultimate condition.

A print out from the Department of Immigration and Multicultural affairs website entitled "Immigration Detention standards Principles Underlying Care and Security" made no mention of individual detention centres. The print out details the general standards applicable to all immigration detention centres.

A newspaper article published in The Age on January 29 2002 included:

"Immigration Minister Phillip Ruddock's advisory group has unanimously called for the closure of the Womera detention centre and other measure to help avert a 'human tragedy of unknowable proportions'.

The article asserted that the group also called for an end to the "demonisation" of asylum seekers and said that the crisis at Woomera "could not be allowed to deteriorate further". It provided that children were threatening to commit suicide unless released. Lips had been stitched together as part of a detainee hunger strike. There was concern about women and children.

Another newspaper article from The Age published on April 24 2002 detailed information provided by three health professionals who had worked at Woomera. One a psychologist was concerned about a 13 year old boy being held in an observation cell when he threatened to commit suicide. She described Woomera Immigration Processing and Detention Centre's environment as "toxic" and said that it was inhumane with daily suicide and self-harm attempts. The article provided:

"Almost every day, asylum seekers inside the Woomera Detention Centre cut and slash their bodies, drink shampoo or try to hang themselves. But mostly they are ignored"

A psychiatric nurse said that during a hunger strike some 30 Iraqi detainees dug mock graves and lay dehydrating in the sun. Criticism was made of the "military way" in which health care was dispensed by nurses who often treated detainees with contempt and still, in defiance of directives, addressed detainees by their immigration number. She said:

"Uncertainty, a feeling they were treated like animals - ... medication being fed through wire mesh to detainees ... and a pervasive belief that suicide was the only way out, were combining to create this mental health tragedy.

Woomera is a totally traumatising, alienating experience because they are not treated with humanity."

Another psychologist was said to have been interviewed on television the previous evening about these matters. The article also spoke of video footage having been obtained of refugees banging their heads against walls and being dragged by guards. However the footage related to alleged incidents at Curtain Detention Centre not Woomera. The article went on to refer to alleged difficulties in Nauru. It identified acute water shortages, the use of solitary confinement cells to punish detainees and an increase in psychiatric break down among the main complaints. Additional concern was raised about the overcrowded conditions in which some 50 children were being held and the lack of programs, access to education and discrimination that was allegedly occurring. These concerns were not raised in relation to the Woomera Immigration Processing and Detention Centre in this article.

A document entitled "Report of an Own Motion Investigation into Immigration Detainees held in State Correctional Facilities" was made under section 35A of the Ombudsman Act 1976 (Cth) dated March 2001. The report included recommendations and detailed legislative provisions, policies and procedures. None were specifically related to the Woomera Immigration Processing and Detention Centre. The report included a case study of unidentified refugees who were transferred to Port Phillip prison in Victoria.

The report detailed the experiences of unidentified detainees in Maribyrnong Detention Centre at an unidentified date and time. An unidentified person claimed:

"I have formed the opinion that the length of their detention was clearly affecting all of the men involved in the incident and especially those with a history of psychological problems. Many of them were under medication to help cope with the depression and to manage their anger."

It went on to describe the detainees experience in the Melbourne Assessment Prison.

One case study dealt with a complaint about a transfer of a refugee at Woomera. However the complaint was referred to in the context of the need for information about the location and circumstances of detainees. DIMIA received a complaint on 5 June 2000 from an unidentified detainee who had been detained at the Woomera Immigration Processing and Detention Centre who after an incident was taken to Port Augusta Prison and was then transferred to Yatala Labour Prison. DIMIA acknowledged that departmental procedures relating to security level classification were not followed. The article referred to an unidentified man sentenced to imprisonment in 1999. He was later advised that he was to be deported. He was detained in 2000 and now faces a lengthy period of immigration detention at Campbell Remand Centre in Perth whilst the deportation order is appealed. There was a complaint in 1999 about detention at Silverwater Prison in New South Wales by an unidentified person and his treatment in Long Bay Prison and Westmead Hospitals. Also there was a complaint in April 2000 from an unidentified person who complained about his friend who was also unidentified. Both were held at Perth Immigration Detention Centre. Another unidentified detainee described his experiences whilst held at Villawood and Long Bay Gaol. The report also included another case study relating to conditions in which detainees have been held in Casuarina prison in Western Australia.

A print out entitled "Unauthorised Arrivals and Detention Information paper" made no reference to Woomera Immigration Processing and Detention Centre and was primarily concerned with the external scrutiny of immigration detention, public access to immigration detention centres, alternatives to immigration detention and liasing with other countries about asylum seekers.

A paper entitled "Unauthorised Arrivals and Detention Information paper" included a section entitled "Trial of alternative detention arrangements for women and children in Woomera." In response to concern about the need to keep the family unit together, the project was designed to enable up to 25 volunteer women and their children to live in family-style accommodation away from the Woomera Immigration Processing and Detention Centre. Although still being supervised by officers from the centre it enabled children to benefit from living in a more relaxed family atmosphere within small group housing. It also provides an opportunity to use the local community facilities such as the library, swimming pool and cinema and access to a structured education program held four days each week. The trial had commenced on 7 August 2001.

A print out entitled "Immigration Detention" made limited reference to Woomera Immigration Processing and Detention Centre. It stated that 1,111 detainees were held there as at 2 November 2001. The Woomera Immigration Processing and Detention Centre was commissioned in November 1999. The trial of alternative detention arrangements for women and children had begun.

An article entitled "Woomera Alternative Detention Arrangements for Women and Children Project" explained the details of the trial of the alternative detention arrangements. It further detailed the opportunities afforded to women and children in off-site excursions and other activities. The women were able to manage the day to day running of the households. One house is dedicated for group activities such as craft activities and for receiving visitors.

A print out entitled "Unauthorised Arrivals by Boat-2001" made no reference to the Woomera Immigration Processing and Detention Centre.

This analysis of the affidavit material illustrates its limited evidentiary value. The references to the Woomera Immigration Processing and Detention Centre are vague. None relate to the defendants or their conditions at the time of their alleged escape.

The status of the defendants as unlawful non-citizens was not challenged. It was accepted that there was an obligation on immigration officers to detain the defendants pursuant to section 189 of the Migration Act. It was accepted by the recipients and the Attorney General that the defendants were entitled to be removed from Australia as soon as reasonably practicable following a request pursuant to section 198.

The proposed defence does not seek to challenge the reasoning in Chu Kheng Lim. The submission advanced by the defendants was that their detention at the Woomera Immigration Processing and Detention Centre goes beyond anything that could be reasonably regarded as necessary for the purposes of the Migration Act. The detention was not a form of detention authorised by law. A detainee who escaped from the Woomera Immigration Processing and Detention Centre did not escape from immigration detention. The proposed defence was said to be a complete defence to each of the charges.

As earlier observed the reasoning in Chu Kheng Lim applies to section 189 of the Migration Act. Section 189 is limited in the same manner as the sections under consideration in Chu Kheng Lim. Section 189 only authorises detention for the purposes of the Migration Act. It does not seek to punish. It does not authorise punitive or penal detention.

A similar situation has arisen with conditions of imprisonment. In R v Deputy Governor of Pankhurst Prison: Ex parte Hague[19] Lord Bridge observed:

"I sympathise entirely with the view that the person lawfully held in custody who is subjected to intolerable conditions ought not to be left without a remedy against his custodian, but the proposition that the conditions of detention may render the detention itself unlawful raises formidable difficulties. If the proposition be sound, the corollary must be that when the conditions of detention deteriorate to the point of intolerability, the detainee is entitled immediately to go free. It is impossible, I think, to define with any precision what would amount to intolerable conditions for this purpose. McCullough J. understandably and perhaps wisely abstained from any attempt at definition in Ex parte Nahar. The examples given by Ackner L.J. of a flooded or gas-filled cell are so extreme that they do not, with respect, offer much guidance as to where the line should be drawn. The law is certainly left in a very unsatisfactory state if the legality or otherwise of detaining a person who in law is and remains liable to detention depends on such an imprecise criterion and may vary from time to time as the conditions of his detention change.

The logical solution to the problem, I believe, is that if the conditions of an otherwise lawful detention are truly intolerable, the law ought to be capable of providing a remedy directly related to those conditions without characterising the fact of the detention itself as unlawful. I see no real difficulty in saying that the law can provide such a remedy. Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the detainee. If the custodian negligently allows, or a foriori, if he deliberately causes, the detainee to suffer in any way in his health he will be in breach of that duty. But short of anything that could properly be described as a physical injury or an impairment of health, if a person lawfully detained is kept in conditions which cause him for the time being physical pain or a degree of discomfort which can properly be described as intolerable, I believe that could and should be treated as a breach of the custodian's duty of care for which the law should award damages. For this purpose it is quite unnecessary to attempt any definition of the criterion of intolerability. It would be a question of fact and degree in any case which came before the court to determine whether the conditions to which a detainee had been subjected were such as to warrant an award of damages for the discomfort he had suffered. In principle I believe it is acceptable for the law to provide a remedy on this basis, but that the remedy suggested in the cases of Nahar, The Times, 28 May 1983 and Middleweek, post, p.179 is not. In practice the problem is perhaps not very likely to arise."

Counsel for the defendants submitted that the reasoning in Ex parte Hague was distinguishable as it concerned imprisonment whereas the present case concerned detention. This is not a relevant ground of distinction. In Ex parte Hague it was concluded that the particular conditions said to be beyond the scope of imprisonment did not make the imprisonment unlawful. Imprisonment had been authorised by an order of a court. Lord Bridge noted the formidable difficulties with any other conclusion and observed that if the argument was correct then the prisoner would be entitled to immediately go free. Lord Bridge pointed out the imprecision of the criterion of intolerability. As a consequence he took the view that the logical solution was to allow a prisoner to pursue an alternative remedy but not to treat the imprisonment as unlawful.

The same reasoning applies to the scheme under the Migration Act. If intolerable conditions were established to exist at the Woomera Immigration Processing and Detention Centre civil equitable and administration remedies may be pursued. Criminal sanctions may also be available. The custodians of detainees are legally accountable. The defendants' detention pursuant to the Migration Act is valid. As their detention is lawful the proposed defence cannot arise as a matter of law.

There was no suggestion that the defendants were proposing to advanced a defence of necessity[20]. The affidavit material did not lay a foundation for a submission that the defendants' alleged conduct was excusable due to the grave predicament with which any defendant was confronted. It was not suggested that the defendants were compelled to escape from Woomera Immigration Processing and Detention centre by threat or danger. It was not suggested that any threat was 'present and continuing' in the sense that it effectively neutralised their will at the time of the alleged escape.

The defendants have not established that the material sought by the summonses has evidentiary value in the proceedings. The material does not directly establish the conditions of the defendants' detention. The material does not raise an arguable case of punitive detention. The material does not establish a link between the conditions of detention at the Woomera Processing and Detention Centre and the defendant's alleged escape.

The defendants detention is authorised by the Migration Act. The defendants have not identified a defence known to the law. The defendants' complaint raises allegations about the conditions of their lawful detention. Those complaints cannot as a matter of law make the detention unlawful. The defendants do not seek relevant material. The summonses are set aside.

Having regard to the conclusion that the summonses do not seek relevant material it is strictly unnecessary to deal with the recipients' complaint about oppression. However as the matter has been argued it is appropriate to comment.

There are a number of grounds on which a witness summons can be set aside. Deciding whether a summons is oppressive or tantamount to discovery inevitably involves some overlap. In Commissioner for Railways v Small Jordon CJ observed: [21]

"A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to the trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of this papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant."

In Lucas Industries Ltd v Hewitt[22] Smithers J said:

"It is, however, of the essence of an obligation to make discovery that a duty rests upon the party subject thereto to decide for himself with respect to documents in his possession whether, in the relevant sense, they relate to the issues in the action. The subpoena does not in terms seek to impose this task on the respondents. It seeks production of documents the contents of which relate to specified subjects. The respondents do not have to direct their minds to the issues. But it is said that the specified subjects are numerous and are so comprehensive that the task of examining documents to test the relationship of their contents to those subjects does not, in the circumstances of this case, differ in nature from that involved in making discovery."

In Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd[23] Clark J observed:

"... there is no doubt that a subpoena, particularly one addressed to a stranger, must be couched in terms of reasonable particularity. It may call for the production of such a large number of documents of doubtful possible relevance that it should be regarded as oppressive and an abuse of process: see the example given by Moffit P in Waind (at 382). If a court is called upon to rule that a subpoena is an abuse of process in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld."

A witness summons cannot be characterised as seeking discovery on the basis that the documents sought are not precisely described or are not necessarily capable of identification. A summons does not assume the characteristics of discovery because it requires a recipient to judge whether the documents sought relate or refer to a specified subject matter. The number of documents required and the burden of collating them does not necessarily render the summons oppressive. The public interest in the administration of justice may overwhelm these private concerns.

When a witness summons extends to documents that only marginally relate to the litigation then the court must weigh the competing considerations. The burden to the recipient of compliance and the invasion of private rights must be balanced with the public interest in the administration of justice.

Concern was raised about the recipients' obligations under the Privacy Act 1988 (Cth). It was said that there would be a need to "comb" the files and mask documents so as to prevent the disclosure of information regarding protection visa applicants and to fulfil the recipients' obligations of public interest immunity.

Confidentiality is not a factor militating against the need for compliance with a witness summons. Summonses frequently call for the production of confidential material. It is only upon production that the court must determine the basis of any claims to confidentiality and whether protective orders are warranted. Objections on the ground of public interest immunity must also be made to the court at the time of the return of the summons. This is not a basis for refusing to comply. Public interest immunity is not an automatic privilege. In criminal cases the court will need to carefully weigh the State's interest with the interests of the individual. This is not a task that can be performed in the abstract.

In Santos Ltd v Pipelines Authority[24] Debelle J observed:

"The fact that documents are confidential or commercially sensitive does not, standing alone, mean that a subpoena is oppressive. Subpoenas not infrequently require production of confidential documents, albeit less frequently, of commercially sensitive documents. The risk to the confidentiality of the documents must be tolerated in the interests of the administration of justice ... The return of the subpoena is the appropriate time to determine claims for confidentiality and make orders to protect confidential documents ... The arbitrators can make appropriate orders to protect confidentiality. On production of the documents to them, the arbitrators can determine whether the documents are confidential, whether they should be disclosed and, if so, the terms in which they will be disclosed including requiring undertakings as to confidentiality from those inspecting the documents."

Counsel for the recipients referred to the evidence of Ms Godwin and to the suggested difficulties in addressing the summonses. No complaint was made about the ambiguity of language in the categories of documents sought. The complaints primarily addressed what was said to be the unduly onerous task of identifying documents that met the nominated description. The material was voluminous, more than 1,000 hours would be necessary to effect compliance. The task was further complicated by issues of public interest immunity.

The documents sought related to a period during which 3,699 detainees passed through the Woomera Immigration Processing and Detention Centre. It was said that 3,054 files would have to be examined. Each file contained up to 200 folios. 3,978 unfiled documents and 1500 electronic documents also had to be examined. Around 500 files were currently in use so the provision of the originals necessitated the taking of photocopies.

As at 4 April 2002 47 officers had spent 745 hours identifying and locating files. The officers were diverted from other functions. Two additional temporary staff were engaged to photocopy the documents. Each file had to be examined to determine whether all or part of it was subject to public interest immunity or other privilege. Senior officers were diverted to this task and six legal officers spent 160 hours providing advice.

It appeared that one legal officer spent three days in Adelaide and nine days in Woomera examining files. Before March 27 2002 two policy officers spent 234 hours examining files and electronic documents to determine whether they fell within the ambit of the summonses.

SEC OF DEPT OF IMMIGRAT & MULTICULT & INDIGINOUS AFFAIRS v BEHROOZ & ORS No. SCCIV-02-856 [2002] SASC 370

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Judgment (278 paragraphs)

SEC OF DEPT OF IMMIGRAT & MULTICULT & INDIGINOUS AFFAIRS v BEHROOZ & ORS No. SCCIV-02-856 [2002] SASC 370 (11 November 2002)

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Legislation Cited (8)

Cases Cited (7)