SU v Commonwealth of Australia and anor; BS v Commonwealth of Australia and anor

Should the plaintiffs be permitted to rely on the period from 12:15 am on 30 June 2011 or be restricted to the period from 10:15 am on that date?

1. The defendants object to the plaintiffs relying on the period commencing 12:15 am, which is the time of the removal of the plaintiffs from the facility in Darwin for the purpose of transferring them to Sydney. The objection has its genesis in the following written submission made on behalf of the plaintiffs: "2. The plaintiffs claim damages for their false imprisonment on 30 June 2011 from approximately 10:15 am to approximately 2:30 pm on 30 June 2011 ('the relevant period')." [2]
2. The reference to 10:15am is a reference to the time that the plaintiffs were brought to the Sydney Police Centre and arrested. It was not until his submissions in reply at the end of the hearing that Senior Counsel for the plaintiffs sought to rely on the period commencing at 12:15 am that morning. He explained the change in position by reference to the following exchange in the submissions of Queen's Counsel for the Commonwealth: "SEMMLER: We would say, although it probably trespasses on the area of damages in this case, which I think your Honour with respect wisely bifurcated in this case, we would say that there is no way that what happened in consequence of the Magistrate's order to these plaintiffs, that is that they were remanded to Silverwater I think it was, an adult prison, there is no way that could be visited on what we would say is the incidental act of Mr Vasquez in arresting these people on that morning. HIS HONOUR: Would that have happened if he had been summonsed? SEMMLER: We don't know. One would expect that the charge is the charge. How the person comes to be before the Court is probably not relevant to what happens. HIS HONOUR: The person becomes a remand prisoner because he is charged and bail is refused. That, as I understand it, has consequences to where he is held. Whereas as persons subject to the migration provisions they had previously been held in a facility in Darwin that was specifically for children. SEMMLER: That's prior to them being charged. Our point, our answer to the whole thing, apart from this question of the umbrella of legality, is it is pure speculation. It doesn't get to discharging the onus on the balance of probabilities to suggest that somehow or other what was clearly intended to be the sequence of events would have changed had these gentlemen not been arrested that morning. They were coming down here to be charged. They were coming down here to be charged and then to be put before the Court. It is speculation as to whether or not they would have gone anywhere else if there had been a summons, but it seems, with respect, from what we know, unlikely in the extreme that anything would have been different. HIS HONOUR: I don't understand how you can found that submission. It may be right. SEMMLER: From the evidence we have we know they are coming down here to be charged. Not necessarily to be arrested, but to be charged. They were being treated as adults at all relevant times by the Commonwealth because that's what they believed them to be. That's an important point when your Honour says how can I make the submission that nothing really would have changed. They would have been taken to the court and they would have been dealt with as what they were believed to be, that is adults, and would have been remanded in the way they were. They were already in Sydney before this alleged wrongful arrest took place. They were here to be dealt with because there was a charge room facility that could be used by the Australian Federal Police in the state Police Centre here at Surry Hills. That's why they were there. They were there to be charged. That being the case, it was a serious offence, this is aggravated people smuggling under section 233 of the Commonwealth Crimes Act. It wasn't a trifling matter and I think it was at a time when one could probably take Judicial notice that there was a lot of interest, if I can put it that way, as to who were the real culprits, this is common knowledge, but everybody, the politicians, everybody pointed a finger at the ones who were manning the boats. They were the evil that was bringing about this problem. That being the case they are brought to the charge centre to be charged and they are regarded as adults, they are treated as adults. Nothing would have changed in our respectful submission; or, at least, even if your Honour thinks that is going too far, my learned friend can't get anywhere near in persuading your Honour on the balance of probabilities that somehow or other if they had not been arrested the course of events would have been different. HIS HONOUR: Berrima house was the house they were in in Darwin and that was a special facility for children, is that correct or not? SEMMLER: It is. I have never been there thankfully but it is. They don't move from Berrima house to Sydney because they have been arrested. They leave Berrima House because they are on now a course to be dealt with by the criminal justice system. The arrest occurred at a time when, as I said before lunch, the die was cast and it made no difference to the legality of their detention and it made no difference to the sequence of events; or at least there is no way the plaintiffs can prove by reference to some documents that came into existence six months later that there would have been any different result. In fact, one might infer the whole reason they are taken by Serco to the Police Centre at Surry Hills is because it is intended that they will forthwith be charged and taken before a Magistrate to be dealt with pending their trial. If there was some notion that they were going to go off somewhere else or that might be on the agenda, then no doubt they could have been taken to a detention centre at Villawood or some other place that was suitable to them, but it was always believed they were adults." [3]
3. It was the reference in those submissions to the "die [being] cast" that provoked the change in the approach taken by Senior Counsel for the plaintiffs. [4] The submission is that if there had already been a decision to arrest, the illegality commenced prior to the plaintiffs' arrival at the Sydney Police Centre.
4. The defendant submits that allowing the plaintiffs to change their case at the very end of the hearing creates unfairness. Reliance is placed on the High Court's decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175.
5. I have decided to allow the plaintiff's to rely on the period commencing at 12:15 am. I can see no real prejudice to defendant for four reasons.
6. First, paragraph 27a of the Further Amended Statement of Claim (FASOC) pleads and particularises the period of detention as commencing "on 30 June 2011 at approximately 00.15am". Paragraphs 42-43 of the FASOC assert that "the period of detention … was without lawful justification".
7. Second, there is no application to amend the FASOC or any application to adduce additional evidence.
8. Third, the evidence upon which the plaintiffs rely in support of the period commencing at 12:15 am was contained in annexures to an affidavit of their solicitor filed on 16 January 2015. [5] In each case, that evidence is in the form of a "Request For Service" whereby Serco (the Detention Services Provider for the Department of Immigration and Citizenship) was requested to collect the plaintiffs at 12:15 am on 30 June 2011 and "transfer clients to the Sydney Police Charge Centre located at 151-242 Goulburn Street Surry Hills" and "transfer custody of clients to the [Australian Federal Police]".
9. Fourth, the plaintiff accepts that the argument put in reply is put as "an alternative argument" [6] and that the argument "must be confined to what was pleaded in the FASOC". [7] The plaintiff's primary submission remains that they were wrongfully arrested at approximately 10:15 am. [8]
10. This is a very different case to AON v ANU where there was an attempt to plead a different case very late in the proceedings. There is no significant prejudice to the defendants. Accordingly, I propose to allow the plaintiff to rely on the period commencing at 12:15 am on 30 June 2011.

A red herring: the age of the plaintiffs

1. As the matter was argued, the plaintiffs' case concerns a very short period of detention, either 4 hours and 15 minutes or (as argued in reply) around 12.5 hours. The brevity of the detention is not a relevant consideration in determining whether the plaintiffs have established their cause of action in false imprisonment and the plaintiffs do not have to prove damages to establish that tort. However, it is important that I bear in mind that the plaintiffs, represented by capable and diligent legal representatives, do not rely on the fact that after the plaintiffs were transferred to Sydney, they were treated as adults and detained in an adult gaol for many months. When they were first arrested and while they were in Darwin, the plaintiffs were treated as children and accordingly incarcerated in conditions more appropriate (I use the qualifier advisedly) to their status as children. Why they were then treated as adults is mystifying and disturbing. In the course of argument, Queen's Counsel for the defendants explained candidly that there was a conflict between the approach taken by the immigration authorities and that urged by the Australian Federal Police: "There was apparently a difference of opinion between the Migration Department and the Federal Police. Migration wanted them dealt with as children and they were put in this children's detention centre. The Federal Police had a different view based on they had solid ground for that, a wrist x-ray that was said to be determinative". [9]
2. As I understand it, there was in fact no "solid ground" for the stance taken by the Federal Police and the use of wrist X-rays as conclusive proof of age has been subject of criticism, not least by the Australian Human Rights Commission (AHRC). [10] However, as the AHRC pointed out in its report that the Crimes Amendment (Age Determination) Act 2001 (Cth) authorised the specification of the procedure as a prescribed procedure for the determination of age for the purposes of the Crimes Act 1914 (Cth). Wrist x-rays were specified by regulation as a prescribed procedure for the purposes of the Crimes Act in 2001. [11] According to media reports, Sir Al Aynsley-Green, Britain's founding Children's Commissioner, says the Federal Police's use of X-rays to assess the ages of Indonesian crew members of asylum seeker boats is ''unethical, inaccurate, not fit for [the] purpose proposed and potentially unlawful.'' [12] Nevertheless, it received the sanction of the federal legislature until the repeal of the relevant regulation. [13]
3. I can put these matters aside because the plaintiffs do not bring a case based on their detention in an adult remand centre after bail was refused or on the basis of negligence based around the Commonwealth or state authorities treating them as adults. In fact, as best I can discern, the age of the plaintiffs is not a matter of significance in the way that the present cause of action is articulated and pursued. That is not to say that it is entirely irrelevant as the plaintiffs point to the fact that, before being arrested, they were incarcerated in a facility designed for children. Once the decision to arrest them was made, they were taken to the Sydney Police Centre, arrested and taken before the Local Court.
4. The FASOC asserts that the plaintiffs were each under the age of 18. The further amended defence denies this. On the evidence before the Court, I am satisfied that SU(the first plaintiff) was born on 5 April 1995 and that BS (the second plaintiff) was born on 17 August 1996. Accordingly, each was under the age of 18 at all material times. However, this fact is not critical to a resolution of the case and was not subject to cross-examination or dispute at the hearing.
5. The plaintiffs, while referring to their age on a number of occasions, do not place particular reliance on their status as children to establish the cause of action. The age of the plaintiffs, in the context of the arguments before the Court, is something of a red herring.

The arrest of the plaintiffs was unlawful

1. Rather, the plaintiff's case is built on the proposition that their arrest at 10:15 am on 30 June 2011 was unlawful and that therefore they were unlawfully detained or wrongfully imprisoned up until the point that the Magistrate refused bail.
2. I accept that the arrest was unlawful. Section 3W of the Crimes Act 1914 (Cth) provides: "Power of arrest without warrant by constables (1) A constable may, without warrant, arrest a person for an offence (other than a terrorism offence and an offence against section 80.2C of the Criminal Code ) if the constable believes on reasonable grounds that: (a) the person has committed or is committing the offence; and (b) proceedings by summons against the person would not achieve one or more of the following purposes: (i) ensuring the appearance of the person before a court in respect of the offence; (ii) preventing a repetition or continuation of the offence or the commission of another offence; (iii) preventing the concealment, loss or destruction of evidence relating to the offence; (iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence; (v) preventing the fabrication of evidence in respect of the offence; (vi) preserving the safety or welfare of the person. (2) If: (a) a person has been arrested for an offence under subsection (1); and (b) before the person is charged with the offence, the constable in charge of the investigation ceases to believe on reasonable grounds: (i) that the person committed the offence; or (ii) that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b); the person must be released. (3) A constable may, without warrant, arrest a person whom he or she believes on reasonable grounds has escaped from lawful custody to which the person is still liable in respect of an offence."
3. None of the reasons in s 3W(1) justifying the use of the arrest power (as opposed to securing the plaintiffs' attendance by summons) existed in the case of the plaintiffs. There is no evidence that anybody in authority turned their mind to the provision in s 3W. There is no evidence that anybody in authority (a constable or otherwise) believed on reasonable grounds that proceedings by summons would not achieve any of the purposes referred to in sub-paragraphs 3W(1)(b)(i)-(vi). No doubt, because the plaintiffs were at all times in immigration detention, those who brought the charges against them did not see any relevant distinction between arresting them and bringing the charges by way of summons. Section 3W is in mandatory terms and the failure to comply with its provisions means that the arrest of each of the plaintiffs was unlawful.
4. Accordingly, I find that the arrest of the plaintiffs at around 10:15 am on 30 June 2011 constituted an unlawful arrest.
5. The plaintiffs placed reliance on the observations of Smart J in DPP v Carr [2002] NSWSC 194; 127 A Crim R 151 where his Honour referred to the preference of issuing a summons rather than exercising a power of arrest in the case of minor offences where the defendant's name and address were known and there was no risk of the person absconding. His Honour said at [35]: "35. This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded."
6. While these remarks are unquestionably correct, they are of less significance in a case where the offender is already lawfully in custody. There was no additional "ignominy" as a result of the charging process and no "escalation of the situation" as a result of anger engendered in the plaintiffs. The question here is whether the unlawful arrest of the plaintiffs resulted in their detention ceasing to be lawful.

The lawful detention of the plaintiffs

1. The first defendant was entitled (or obliged) to detain the plaintiffs under the provisions of the Migration Act for the entirety of their stay in Australia. At all relevant times they were unlawful non-citizens and ss 189 and 196 required them to be kept in immigration detention until they were removed from Australia under s 198, deported under s 100 or granted a visa.
2. Queen's Counsel for the Commonwealth relied on what he described as "this umbrella of legality". He argued that the fact that the arrest was unlawful due to the failure to comply with the provisions of s 3W did not mean that the plaintiffs' detention was unlawful. The defendants rely on the definition of immigration detention in s 5 of the Migration Act: ""immigration detention" means: (a) being in the company of, and restrained by: (i) an officer; or (ii) in relation to a particular detainee--another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or (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 the station or watch house; or (iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel--on that vessel; or (v) in another place approved by the Minister in writing; but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b). Note 1: Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention. Note 2: This definition extends to persons covered by residence determinations (see section 197AC)."
3. It will be seen that the places where the detainee can lawfully be held include a police station or watch house and a remand centre or prison. The defendants contend that this means that the imprisonment of the plaintiffs at the cells at the Sydney Police Centre (or, if taken there, the cells of the Central Local Court) was part of their lawful immigration detention. They submit that the unlawfulness of their arrest was of no legal consequence.
4. As the case was argued, that question turns on whether the place and nature of the plaintiffs' imprisonment changed as a result of the illegal arrest or the decision to proceed by way of arrest rather than summons. The plaintiffs relied on the following statement by Roden J in Collins v Downs & Ors (Supreme Court (NSW), Roden J, 14 December 1982, unrep): "There is a right of action for false imprisonment available to a convicted prisoner if, during the term of the sentence imposed upon him when his imprisonment would otherwise be lawful, he is wrongfully subjected to imprisonment of a nature or in a place not authorised. In this regard the distinction mentioned above between nature or place of the imprisonment and the conditions of imprisonment is, I believe, critical."

The plaintiffs' residual liberty

1. Even while the plaintiffs were lawfully in immigration detention, they enjoyed what has been described as a right to "residual liberty": see, for example, R v Mersey Care NHS Trust; Ex parte Munjaz [2005] UKHL 58; [2006] 2 AC 148 at [42]. This concept holds that even though a person is otherwise lawfully detained, they still enjoy those civil liberties that were not taken away expressly or by necessary implication: Ex parte Munjaz at [42] referring to Raymond v Honey [1983] 1 AC 1 at 10G (Lord Wilberforce) and Miller v The Queen [1985] 2 SCR 613.
2. In Soh v Commonwealth of Australia [2008] FCA 520 Madgwick J rejected a case of false imprisonment where a Korean national was held in migration detention in a New South Wales prison. His Honour rejected the contention that "officers placed under a duty to detain people in immigration detention should lack the power, when bona fide thought necessary, to arrange for a person not initially detained in a prison later to be so detained." However, his Honour held that the Commonwealth was required to afford procedural fairness to an unlawful non-citizen who was to be transferred to a state prison. His Honour said at [82]: "While immigration detainees are ex hypothesi not lawfully in Australia, they nevertheless have the protection of Australian law as well as liabilities under it. Nobody may be deprived of his or her freedom unless a statute or the common law authorises it. Legislation should be jealously interpreted against unnecessary or unclear implication of such authority."
3. The case of Sleiman v Commissioner of Corrective Services [2009] NSWSC 304 was concerned with whether leave should be granted to two convicted prisoners to issue proceedings for wrongful imprisonment arising out of their detention in segregation. Adams J held that the case was "at least arguable" and granted leave saying at [63]: "though much of a prisoner's liberty is taken, yet some of it is retained and that, though it might not be great, yet it is important and will be protected".
4. His Honour examined the decision of the Canadian Supreme Court in Miller v The Queen in which it was held that infringement of a prisoner's residual liberty may support the writ of habeas corpus. His Honour noted at [52] that the decision had been approved by the New South Wales Court of Appeal in Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622 (a proposition that is not free of controversy) and that the significance of this lay in the "endorsement [in Prisoners A-XX Inclusive] of the significance of the concepts of residual freedom and prison within a prison for the analysis of the character of unlawful detention in the prison context and the rejection of the alternative view, arising from a simpler age, that liberty is all or nothing". Adams J also considered the decision of the High Court in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; 219 CLR 486: "50. In Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, an unlawful non-citizen left a detention centre without permission and was charged under the Migration Act 1958 with escaping 'immigration detention'. He argued that conditions within the centre were so intolerable as to go beyond anything necessary for immigration purposes and thus, he was not held in 'immigration detention'. By majority, the High Court held that the conditions of detention were immaterial to the legality of detention. The question was one essentially of statutory interpretation of the phrase 'immigration detention' but their Honours referred with approval to Hague and Prisoners A-XX, making it clear, however, that they were dealing with the 'intolerable conditions' case. Gleeson CJ summarised the point thus (219 CLR at 496) - 'It is one thing to challenge the lawfulness of conditions of confinement, or of practices adopted by those in charge of prisons; it is another thing to assert a right to be freed by court order, and it is another thing again to assert a right to escape.' Behrooz asserted the last of these rights. Neither Sleiman nor Hamzy do. They assert the penultimate right. That right may be - as has been found in Canada - vindicated by habeas corpus. However, in Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616, the New Zealand Court of Appeal concluded that habeas corpus was not available to release prisoners from maximum security or non-voluntary segregation in an isolation cell where they were subject to a sentence lawfully imposed but, in relation to one of the prisoners, the Court indicated that, if he 'had sought judicial review instead of restricting himself to habeas corpus we would have ordered that his cell confinement should cease immediately'. The Court was of the view that "a change to the conditions on which an inmate is being detained either by segregation, reclassification or transfer to another institution does not create a new detention for the purposes" of the writ of habeas corpus: ibid at 633. Miller was distinguished on the ground that in Canada, as distinct from New Zealand, other forms of prerogative or injunctive relief were not available, necessitating an extension of the traditional application of habeas corpus: ibid at 634-5. The Court of Appeal declined to follow Miller 'primarily because it is unnecessary to do so'.
5. In Prisoners A-XX Inclusive, the Court of Appeal considered a case where fifty inmates "sought relief designed to ensure that they would have access to condoms while in gaol" [624B]. The main issue in the appeal concerned whether the writ of habeas corpus "will run where the conditions of detention of a prisoner are so harsh or 'intolerable' as to be unlawful" [627D] as opposed to the traditional case where habeas corpus "is available to secure the liberty of a person improperly detained". Sheller JA (with whom Meagher and Powell JJA agreed) noted the distinction between two types of cases: "The first involves an allegedly unlawful physical restraint within the confines of a particular part of the prison, is explained by the phrase 'prison within a prison' and depends upon recognition of the prisoner's 'residual liberty'. The second involves the subjection of the prisoner to treatment or conditions of imprisonment which may adversely affect the prisoner's health or threaten the prisoner's life. The appellant's allegation fall into the second class."
6. Sheller JA discussed the conflict between the decision in Miller v The Queen and that in R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 in which the House of Lords rejected the proposition that a prisoner enjoyed a form of residual liberty. While it was ultimately unnecessary to decide the issue, his Honour held that the judgment of Le Dain J in Miller v The Queen "provides powerful authority" in support of the proposition that "a prisoner enjoys a right of 'residual liberty' vis a vis the State and whether the writ of habeas corpus runs where a person is illegally held in a prison within a prison" [633E].
7. It should also be noted that since the judgment in Prisoners A-XX Inclusive, the House of Lord decided Ex parte Munjaz. Lord Steyn (dissenting with Lord Brown in the outcome) adopted at [42] the decision in Miller v The Queen and declined to follow Hague. However, Lord Bingham (who formed the majority with Lords Hope and Scott) said at [30] that "the approach to residual liberty which appears to have prevailed in Canada does not, as I understand, reflect the jurisprudence of the European Court." However, his Honour appeared to accept that a prisoner (or patient in that case) maintained "residual liberty to which he is properly entitled".
8. In State of New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 the Court of Appeal upheld a judgment for a prisoner (forensic patient) who had been detained in a gaol when the court order under the Mental Health Act 1990 (NSW) required her to be detained in a hospital. The State conceded that the detention was unlawful but submitted that she had already been deprived of her liberty by virtue of an earlier order and that it was not therefore liable for the tort of wrongful imprisonment (Bathurst CJ at [2]). This argument was rejected (Bathurst CJ at [5], Barrett JA at [94], Sackville AJA at [108]-[109]. Basten JA (with whom Hoeben JA agreed) concluded: "73. It may be accepted that, other than in truly exceptional circumstances, lawful detention will not cease to be such because of the conditions in which the person is held. As demonstrated by Cobbett v Grey, and accepted in Ex parte Hague, that does not mean that a person can be held otherwise than in a place to which he or she is committed. The schemes provided for detention in this State under the Mental Health (Criminal Procedure) Act and the Mental Health Act, in relation to forensic patients, and under the Crimes (Administration of Sentences) Act in respect of prisoners, support that conclusion. 74. The authority to detain the respondent depended upon a combination of the limiting term nominated by Judge Woods on 2 May 2002 and, following the notification of the Tribunal's determination of 30 May 2002, the requirement that the detention be at a place ordered by the District Court pursuant to s 27 of the Mental Health (Criminal Procedure) Act. Thus, from 24 June 2002 the respondent was to be detained in a hospital. 75. During the periods complained of, the respondent was not held in a hospital, but in a prison. There was no lawful order or authority justifying detention in a prison, nor did the statutory scheme for detention of inmates and offenders operate with respect to the respondent. Accordingly that detention was, as conceded by the State, unlawful. 76. The mere fact that the respondent could and should have been detained in another place did not prevent the detention being unlawful. The necessary elements of the tort of unlawful imprisonment were thus established. It follows that the decision of the primary judge was correct and the appeal must be dismissed."
9. As the defendants point out, there is (or may be) a distinction "between the elements of the remedy of habeas corpus and those of false imprisonment": see Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 at [69] (Black CJ, dissenting in the outcome). It is also noted that cases such as Collins v Downs (a strike out application) and Sleiman v Commissioner of Corrective Services (leave to issue a proceeding) were only concerned with whether the particular cause of action was arguable. While so much may be accepted, the cases generally support the view that the concept of residual liberty has been accepted in Australia. I do not understand the defendants to seriously contest this proposition.

Was the plaintiffs' right to residual liberty infringed?

1. The plaintiffs contend that the nature of their detention changed from 10:15 am (or possibly from midnight the morning before). The decision to arrest the plaintiffs meant that they were taken to the Sydney Police Centre and detained in a police cell. They were imprisoned there for a purpose (arrest) that was not legally justified. This would not have occurred if they had been issued with a summons. It is conceded that there is no evidence as to precisely what would have happened had a summons been issued - presumably Serco would have arranged for the plaintiffs to be transferred to an immigration detention centre in Sydney and taken to Court when required by the summons. It would then have been for the Magistrate to determine what order, if any, needed to be made with respect to bail. There was no submission by the Commonwealth that a summons would not have been an effective way of securing the attendance of the plaintiffs at court. Whether they were arrested or summoned, those responsible for their incarceration would have been required to bring them to Court in accordance with direction from the relevant authority.
2. The defendant submits that even if it is accepted that the arrest was unlawful, the detention of the plaintiffs was still legally justified because they remained at all times liable to be kept in immigration detention. Section 5 of the Migration Act defines immigration detention as including detention in a police station.
3. The defendant relied on the High Court's decision in Ruddock v Taylor (2005) 222 CLR 612 where the plurality (Gleeson CJ, Gummow, Hayne and Heydon JJ; Callinan J agreeing, McHugh and Kirby JJ dissenting) held at [24] that the question (in that case) of the lawfulness of the cancellation of the plaintiff's visa should not be conflated with the true question in an action for false imprisonment, namely whether the detention itself was unlawful. Further, the first question is not determinative of the other. In Ruddock v Taylor, the plaintiff was a British subject who had lived in Australian since 1966 on a transitional permanent visa. In 1996, he was convicted and sentenced to imprisonment for a number of sexual offences against children. As a result his visa was (wrongly) cancelled and the High Court twice quashed the decision to cancel the visa. On each occasion the plaintiff was held in immigration detention. The action for false imprisonment arose as a result of those periods spent in immigration detention. The plurality stressed at [27] that s 189 of the Migration Act required the relevant officers to detain the person where the officer knows the person is an unlawful non-citizen but also where the officer reasonably suspects that the person has that status. At the time of the detention, the visa was cancelled and the officer reasonably held the belief required by the section. The fact that "the subject matter of the belief" was "legally inaccurate" did not alter the fact that the officer held the belief. Nor was it determinative of the question of whether the belief was reasonably based.
4. This is a very different case. In the present case there is no doubt that the plaintiffs were, at least until the time of the decision to arrest them, lawfully in immigration detention. Further, in the present case, there was no evidence of any officer holding the reasonable belief required by s 3W of the Crimes Act. Nor could there have been such evidence. There was no sensible basis upon which an officer could have formed the opinion that "proceedings by summons against the person would not achieve one or more" of the purposes referred to in s 3W(1)(b). The Commonwealth did not submit that there was any reason that a summons would have been ineffective.
5. Counsel informed me that the particular issue that arises in the present case has not previously been considered.
6. While the plaintiffs concede that they cannot establish what would have occurred had they not been arrested unlawfully, this is a matter that may sound in damages. It is not determinative of the question of liability.
7. What is clear is that the incarceration of the plaintiffs in the cells at the Sydney Police Centre was a direct result of the decision to (unlawfully) arrest them. It is not to the point that a police station is one of the places where a person might lawfully be held in immigration detention pursuant to s 5 of the Migration Act. The plaintiffs were not detained in the cells at the Sydney Police Centre as a result of being in immigration detention. They were there to be arrested, charged and dealt with as remand prisoners. In this respect, the legal nature of their detention was different. One of the residual liberties that the plaintiffs enjoyed was the right to be dealt with according to the law. This included the right not to be arrested contrary to the provisions in s 3W. Nothing in the Migration Act alters the requirements for a lawful arrest.
8. Accordingly, they were wrongly imprisoned and there will be a judgment for each of the plaintiffs.

The period during which the plaintiffs were illegally detained

1. The plaintiffs' primary submission is that the period of wrongful imprisonment commenced at 10:15 am. The alternative argument is that the period commenced ten hours earlier when Serco collected them from the immigration detention centre and took them to Darwin Airport for transfer to Sydney. The FASOC asserts in paragraph 27a that "on 30 June 2011 at approximately 00.15am the First Plaintiff was arrested by Serco officers at the Children's Detention Facility at the behest of the second defendant". It makes the same allegation in relation to the second plaintiff.
2. There is no evidence that either of the plaintiffs were arrested at that time. There is no dispute that Serco was authorised from time to time to arrange for the transfer of people in immigration detention from one place to another. The fact that they did so, under authorisation from an officer under the Migration Act, does not give rise to any illegality. I accept that the form of the request - that is, to take the plaintiffs to the Sydney Police Charge Centre and to transfer custody to the AFP - gives rise to an inference that a decision had been made to arrest the plaintiffs once they arrived in Sydney. However, that fact that does not mean that the legal nature of the plaintiffs custody changed at that point.
3. I accept the plaintiffs' primary submission and reject the alternative submission.
4. Based on the concession made by the plaintiffs' legal representatives, I am bound to accept that the period of wrongful imprisonment concluded at 2:30 pm when the Magistrate refused bail.
5. Accordingly, I find that the plaintiffs were wrongfully imprisoned for a period of around 4 hours and 15 minutes, that is from 10:15 am until 2:30 pm on 30 June 2011.

Orders

1. In each case I make the following orders: 1. Judgment for the plaintiff. 2. Question of costs reserved. 3. Plaintiff to file and serve any additional evidence in relation to the question of damages and costs on or before 26 February 2016. 4. Defendant to file and serve any additional evidence in relation to the question of damages and costs on or before 11 March 2016. 5. Parties to file and exchange written submissions on damages on or before 18 March 2016. 6. The matter will be listed for submissions on damages and costs on a date to be arranged in consultation between my Associate and the legal representatives of the parties.

Endnotes

1. s 64B(1) Australian Federal Police Act 1979 (Cth).
2. Plaintiffs' Outline Submissions dated 8 October 2015.
3. Transcript 9/10/15 ("T") at pp 44-45.
4. T pp 49-50.
5. Affidavit of Peter O'Brien filed 16 January 2015 annexures J and K.
6. Plaintiffs' Submission in Reply to Defendant's Submissions dated 22 October 2015 at paragraph [1].
7. Ibid at paragraph [8].
8. Ibid at [2].
9. T p 46.
10. Australian Human Rights Commission, An age of uncertainty: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children, Report (2012) Chapter 4.
11. See the Crimes Amendment Regulations (2001) (No 2), regulation 6C.
12. Lindsay Murdoch, 'Wrist X-ray won't prove child's age, says expert', Sydney Morning Herald (Sydney), 27 June 2011.
13. Crimes Amendment (X-ray) Regulation 2013 (NSW) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 February 2016