Mason CJ agreed with this part of the joint judgment: see Lim at 10.
51 In Al-Kateb, a majority of the High Court also held that ss 189, 196 and 198 (discussed above) validly authorised the detention of an alien even though it was unlikely that the alien would be removed from Australia in the reasonably foreseeable future. After describing the mandatory detention provisions as "providing for detention for the purposes of processing any visa application and removal" (at [225]), Hayne J (with whom Heydon J agreed) said, at [245]:
A law which permitted or required detention for the purpose of effecting the removal of an unlawful non-citizen from Australia would be a law with respect to aliens and a law with respect to immigration. So much follows from Koon Wing Lau. The provisions now in question, however, are not confined to providing for detention for the purpose of removal. An unlawful non-citizen who is seeking the grant of a visa must be detained. Nonetheless, in that operation, too, the provisions can be seen to be laws with respect to aliens and laws with respect to immigration. That is, in so far as the provisions now in question provide for detention both during the period in which a non-citizen's application for a visa remains unresolved, and thereafter for the purpose of removing the non-citizen from Australia, they are laws with respect to aliens and with respect to immigration.
52 Referring to the joint judgment in Lim, Hayne J added, in Al-Kateb at [255]:
I would not identify the relevant power in quite so confined a manner as is implicit in the joint reasons in Chu Kheng Lim. The relevant heads of powers are 'aliens' and 'immigration'. The power with respect to both heads extends to preventing aliens entering or remaining in Australia except by executive permission. But if the heads of power extend so far, they extend to permitting exclusion from the Australian community - by prevention of entry, by removal from Australia, and by segregation from the community by detention in the meantime. [Emphasis, in bold, added]
See also Al-Kateb at [45]-[48] per McHugh J and [291] per Callinan J.
53 In Behrooz v Secretary of the Department of Immigration and Multicultural Indigenous Affairs (2004) 78 ALJR 1056; (2004) 208 ALR 271 ("Behrooz") at [18], Gleeson CJ summed up the High Court's understanding of the detention provisions, when he said that "[t]he detention which the Act contemplates, authorises and requires is detention of unlawful non-citizens (aliens) pending processing of their visa applications or deportation".
54 As Al-Kateb demonstrated, in some cases, aliens have been detained for lengthy periods of time. This is because, as Gleeson CJ said in Behrooz at [18]:
Visa applications are dealt with administratively in the first instance, but are subject to a potentially lengthy process of administrative and judicial review. Cases regularly come before [the High] Court in circumstances where [the High] Court is invited to undertake a fifth level of decision-making in respect of a visa application. Some visa applicants hold temporary visas, and are not in immigration detention, but those who do not have visas may be detained for a substantial period while their litigation proceeds.
See also Al-Kateb at [1] per Gleeson CJ. Since the costs of an alien's detention are calculated on a daily basis (ss 207 and 208), the costs payable by him or her under s 209 of the Act can, in some cases, be high relative to the alien's means.
55 In deciding whether, as a matter of characterization, s 209 of the Act is a law imposing taxation for the purposes of s 55 of the Constitution, it is necessary to consider the authorities that must govern the judgment of this Court. It is to them that I now turn.
56 It was common ground that the exaction imposed by s 209 of the Act was a compulsory exaction by a public authority, for public purposes, and enforceable by law. The exaction possesses, therefore, all the positive attributes of a tax that Latham CJ identified in Matthews at 276. It does not follow from this, however, that the exaction is a tax, because an exaction imposed by law may possess all these attributes and not be a tax. If, for example, a charge were properly characterized as a fee for services, then the charge would not be a tax, though a compulsory levy by a public authority, for a public purpose and enforceable by law.
57 As we have seen, the respondents contended, and the applicant denied, that the exaction under s 209 was a payment for services rendered. As the decision in Air Caledonie exemplifies, in order to be a payment for services, there must be some actual service or services provided to the person from whom the payment is exacted, or at his or her direction or request: see, for example, Air Caledonie at 467 and 470; Airservices at [132] per Gaudron J; and Logan Downs at 63 per Gibbs J. In Air Caledonie, the Court held that a fee was a tax because at least some of the persons from whom it was exacted did not receive any service in exchange. That is, the High Court held that a fee payable by passengers arriving in Australia on overseas flights (and collected by the airlines) was not a fee for services in so far as it related to Australian citizens. The Court said, at 470:
At least in a case of the ordinary Australian citizen returning by air from overseas, the description of the purported impost … as a 'fee for immigration clearance of that passenger' did not suffice to make the impost a 'fee for services' in any relevant sense. … [S]uch a citizen had, under the law, the right to re-enter the country, without need of any Executive fiat or 'clearance', for so long as he retained his citizenship. The subjection of such a citizen to administrative procedures at the point of entry … may be necessary, in the public interest, to enable the entry of non-citizens to be prevented or controlled and to enable proper administrative records and procedures to be kept or followed in relation to the arrival and departure of citizens and non-citizens alike. A requirement that a returning citizen submit, in the public interest, to the inconvenience of such administrative procedures at the end of a journey cannot, however, properly be seen as the provision or rendering of 'services' to, or at the request or direction of, the citizen concerned. Nor is it possible to find in [the Act] any identification of particular services provided or rendered to the individual passenger for which the impost could relevantly be regarded as a fee or quid pro quo.
58 Earlier in its reasons for judgment, the Court noted (at 469) that the position may have been otherwise if the fee had been demanded only from non-citizens, because:
[I]t would have been arguable that, regardless of whether it was a 'fee for services', it was not a tax. In that event, and notwithstanding the countervailing analogy of a customs duty which is clearly a tax, there might have been some force in an argument to the effect that it was to be seen as a charge imposed upon the passenger for the privilege of entering Australia or as a licence fee and that the requirement that the airline operator collect the fee (and pay the amount of it to the Commonwealth if not collected from the passenger) could not convert it into a tax. [Emphasis added]
59 In contrast to Air Caledonie, in Airservices, the High Court held that the legislation under challenge imposed the charges in question on airline operators in return for the provision of services and facilities by the Civil Aviation Authority ("CAA"). Hence, the charges did not amount to taxation. Gleeson CJ and Kirby J explained at [87]:
By hypothesis, we are here concerned with charges for services, and facilities, provided by the CAA to Compass. This is not a case like Air Caledonie International v The Commonwealth where there was an issue as to whether the compulsory exaction by a public authority could properly be described as a fee paid for the provision by the public authority of some service. A number of cases in which it was pointed out that no 'particular' service was provided, for which an exaction could be regarded as a charge or fee, were cases in which either no service at all was provided to the person required to make the payment, or there was a colourable attempt to represent that the exaction was in consideration for services. [Citations omitted]
60 The Court held in Airservices that the charges exacted from airline operators were reasonably related to the expenses incurred in relation to the matters to which the charges pertained: Airservices at [92] per Gleeson CJ and Kirby J; [140] and [142] per Gaudron J; [156] per McHugh J; [461], [479] per Gummow J; and [509], [516] per Hayne J. This was important because, in order to constitute a payment for services, a charge must be reasonably capable of being characterized as a payment for the particular service or services in question: see, for example, Air Caledonie at 467 and 470; Airservices at [132] per Gaudron J; and Logan Downs at 63 per Gibbs J. Moreover, in order to constitute a payment for services, it is not sufficient that the charge be levied to defray the expenses of an authority charged with the performance of functions which benefit the class of persons from whom the charge is exacted: see, for example, Airservices at [133] per Gaudron J; Parton v Milk Board (Victoria) (1949) 80 CLR 229 at 258-259 per Dixon J; and Swift Australian Co (Pty) Ltd v Boyd Parkinson (1962) 108 CLR 189 at 200 per Dixon CJ (Kitto and Windeyer JJ agreeing), 222 per Menzies J (Taylor J agreeing).
61 It does not seem to me that the requirement in s 209 of the Act that a detainee pay "the costs of his or her detention" can be fairly characterized as "a payment for services rendered", as the authorities have explained this concept. In the present context, the word "service" connotes, as the authorities recognise, an act of helping or benefiting the person to whom the service is rendered: compare Oxford English Dictionary "service" IV. Apart from the transportation costs referred to in par (a)(i) of the definition of "costs" in s 207, the costs of a detainee's detention consist of the daily maintenance amount for each day of the detainee's detention, being the amount that the Minister determines under s 208 of the Act. Pursuant to s 208(1), the daily maintenance amount is the amount that the Minister determines for the maintenance of a non-citizen detained at a specified place in a specified period. By virtue of s 208(2), the determined amount is capped at the cost to the Commonwealth of detaining the person at that place in that period. There is, it must be acknowledged, an element of benefit to the detainee in the provision of food, accommodation, medical treatment and the like. But, as the respondent conceded at the hearing, the cost to the Commonwealth of detaining a person would extend to the cost to the Commonwealth of maintaining facilities in which a detainee is to be secured apart from the Australian community, pending a grant of permission to enter the Australian community or his or her removal from the country. Subsection 208(2) of the Act thus contemplates what is probably inherent in the expression "the costs of … detention" in s 209. That is, "the costs of … detention" that a detainee may be required to pay are not limited to the costs of his or her accommodation, food and other requisites of daily life, but extend to the costs of securing the detainee in a place in order that he or she is kept apart from the Australian community.
62 It may be arguable that a charge for the provision by the Commonwealth or some other public body of accommodation, food and other necessities of life would be a fee for services rendered to the detainee. Where, however, payment is required for costs that include the costs of holding the detainee in a place against his or her will, the payment cannot fairly be described as payment for a "service" to the detainee, or at his or her direction. The statutory regime of mandatory detention contemplates that detainees desire to join the Australian community and, in some cases, would join that community unlawfully, if not subjected to involuntary confinement. In this context, the requirement that a detainee pay for the costs of his or her involuntary confinement is not reasonably capable of being characterized as a payment for a particular service provided to the detainee, or at his or her direction or request, because any benefit is overborne by the circumstances in which it is conferred. I reject the respondents' submission that the costs of securing a person from the Australian community are properly regarded as "incidental to the provision of services (such as accommodation, food and medical care) to the non-citizen". Such a proposition, if accepted, disregards the real force and effect of a mandatory detention regime.
63 This is not a case where those on whom the fee falls benefit from the regulation of an industry, or obtain a licence to pursue an occupation. In this regard, this case is not comparable with cases such as General Practitioners or Harper v Victoria. In General Practitioners, a statutory fee for the processing of a particular individual's application to become an approved pathologist was held not to be a tax. In Harper v Victoria, the Court held that a fee, which was payable by egg owners required to present eggs for grading, and fixed by reference to the estimated expenditure for the grading, was not a tax but a fee for services "to defray the cost of those services": see 377 per McTiernan J, 378 per Taylor J, 379 per Menzies J and 382 per Owen J. In these cases, the person on whom the exaction fell obtained some direct or indirect benefit, in respect of which the payment was fairly referable.
64 I doubt that, as the respondent submits, the detention, in respect of which the costs are paid, "facilitate[s] an application for a visa inside Australia" (emphasis added). It is true that an alien in the migration zone without a visa must be in immigration detention when making an application for a visa. It does not follow from this, however, that the payment of the costs of detention is for services rendered to the alien. Separate fees are payable on applications for visas; and, in any case, a detainee must pay the costs of his or her detention, whether or not he or she is released upon the grant of a visa, or upon removal or deportation.
65 Further, it must be borne in mind that the costs of detention that a detainee is liable to pay pursuant to s 209 of the Act include the transportation costs referred to in par (a)(i) of the definition of costs in s 207. It does not seem to me apt to describe a detainee's transportation from one place of detention to another, or to a place from which he or she is to be removed or deported as a "service" rendered to the detainee, even though the detainee is the subject of such action.
66 Payments for services rendered are not, however, the only exactions that resemble taxes but are not properly characterized as such. There are various other types of monetary exactions that are not taxes, although they have all the positive attributes of a tax referred to by Latham CJ in Matthews.
Thus, a charge for the acquisition or use of property, a fee for a privilege and a fine or penalty imposed for criminal conduct or breach of statutory obligation are other examples of special types of exactions of money which are unlikely to be properly characterized as a tax notwithstanding that they exhibit those positive attributes.
Air Caledonie at 467; and see also Luton v Lessels at [10] per Gleeson CJ (McHugh J agreeing); and [50] per Gaudron and Hayne JJ.
67 There are numerous instances where an exaction resembles a tax but is not a tax. I referred earlier to General Practitioners (holding that a fee for an application to be an approved pathologist was not a tax). Another example is Browns Transport Pty Ltd v Kropp (1958) 100 CLR 117 ("Kropp") at 130, where the High Court held that a fee for a licence for the carriage of goods, though a compulsory and enforceable exaction of money by a public authority for a public service, was "simply a fee payable as a condition of a right to carry on a business".
68 Harper v Minister for Sea Fisheries demonstrates that it is not possible to state exhaustively what exactions are not taxes although they resemble taxes. In each case, the character of an exaction will depend on the operation of the statute that created it, including the statutory context in which it is imposed. This is evident in Harper v Minister for Sea Fisheries, for example, where the question of characterization depended on the particular provisions pursuant to which the exaction was created and the context in which the exaction was imposed. That is, the High Court decided in that case that a fee for the taking of abalone was not a tax in the nature of an excise, but a charge in the nature of a licence fee. Mason CJ, Deane and Gaudron JJ said, at 325, that the licence fee was:
… properly to be seen as the price exacted by the public, through its laws, for the appropriation of a limited public natural resource to the commercial exploitation of those who, by their own choice, acquire or retain commercial licences. So seen, the fee is the quid pro quo for the property which may lawfully be taken pursuant to the statutory right or privilege which a commercial licence confers upon its holder. It is not a tax.