Subramaniam v Mental Health Review Tribunal

Introduction 1This case concerns the intersection between a New South Wales statute concerned with the care and control of mentally ill persons and a Commonwealth statute that deals with the detention of refugees. The central figure is the plaintiff, a Tamil, who arrived in Australia from Sri Lanka. He is classified as an "unlawful non-citizen" and is being held in "immigration detention" within the meaning of Section 5 of the Migration Act 2001 (Cth). That means that he must at all times be held in a detention centre or be in the company of and be restrained by specified persons. Unfortunately, the plaintiff is also a mentally ill person, whose treatment and control are governed by the Mental Health Act 2007. 2On 29 February 2012 the Mental Health Review Tribunal of New South Wales determined that the plaintiff was a mentally ill person. On that date it ordered that he be the subject of a community treatment order in accordance with the terms and conditions set out in an attached treatment plan. It stated that the mental health facility that was to implement the order was the Bankstown-Lidcombe Mental Health Service. The determination included the following statement: Patient suffers from long held psychosis PTSD and effects of head injury. He is a mentally ill person. CTO is capable of being implemented by community facility in conjunction with Immigration contractors. CTO is least restrictive, safe and effective regime. (emphasis added) 3The statement in the determination that the "CTO is capable of being implemented by community facility in conjunction with Immigration contractors" reflects the Tribunal's intention to create a bridge between the plaintiff's status as an immigration detainee under the Migration Act and his status as a mentally ill person under the Mental Health Act. As an immigration detainee, he is at all times compelled to be either in the company of and be restrained by an officer of the Department or other specified person, or he is required to be held in a detention centre, prison, police station or other place approved by the Minister in writing. In addition, immigration detainees receive medical services from International Health & Medical Services Pty Ltd (IHMS), a private company contracted by the Commonwealth to provide medical services to such persons. IHMS is one of the "Immigration contractors" referred to in the determination. 4On the other hand, as a mentally ill person who is the subject of a community treatment order, the plaintiff must comply with the order and be present at the times and places specified in the treatment plan to receive the specified medication, therapy, counselling, management, rehabilitation and other services: Section 57, Mental Health Act. To this end, the director of community treatment of the mental health facility implementing the treatment plan is authorised to take all reasonable steps to have the medication administered and services provided in accordance with the community treatment order: Section 57(2). 5The attempt to accommodate these different regimes is reflected in the language of the treatment plan. The expressions "BCHC", "Bankstown Community Health Centre" and "Bankstown Community Mental Health" are references to the Bankstown-Lidcombe Mental Health Service, the specified mental health facility for implementing the plan. One of the goals of the plan is to "provide support to IHMS staff who will provide direct day to day mental health care for Mr Subramaniyam". The plaintiff is required to "see IHMS daily for monitoring of his mental state and administration of treatment". The case manager employed by the Bankstown-Lidcombe Mental Health Services is required to be "involved in liaising with IHMS to ensure that medication has been administered and the CTO treatment plan is being adhered to". The plan states that the plaintiff will be seen by his case manager on an "as needed" basis to administer the community treatment order. The location of appointments is "to be determined by IHMS and Serco in consultation with BCHC". "Serco" is the manager of the Villawood detention facility. Its full name is Serco Group Pty Ltd, an international services company. 6There are other indications of the steps taken to address the plaintiff's dual status. The treatment plan states that any private psychiatrist will be organised by IHMS "in consultation with BCHC". The plaintiff is required to consent to information sharing "between IHMS and Bankstown Community Mental Health". And finally, the plan states that the Bankstown-Lidcombe Mental Health Service is under an obligation to "facilitate the effective implementation of the community treatment order by arranging and supporting effective communication between Mr Subramaniam, his treating team at IHMS, his treating psychiatrist and General Practitioner, the Extended Recovery Team and the Director of Community Treatment at the Bankstown-Lidcombe Mental Health Service".

The Legal Issues 7This is the factual context which provides the broad foundation for the case and which has inspired the plaintiff's challenge to the validity and authority of the community treatment order to which he has been made subject. That challenge is reflected in the first three prayers for relief in the summons. They have devolved into four distinct legal issues that I must determine. The issues are as follows: (a) Is the community treatment order invalid on the ground that it does not authorise "the compulsory treatment in the community" of the plaintiff? (b) Is the community treatment order invalid on the ground that the Bankstown-Lidcombe Mental Health Service is not capable of implementing the treatment plan? (c) As a matter of construction, does the Mental Health Act authorise the Tribunal to make a community treatment order for the treatment of an unlawful non-citizen? (d) Is Section 51 of the Mental Health Act invalid to the extent that it authorises the Tribunal to make a community treatment order for the treatment of an unlawful non-citizen?

First Issue: "in the community" 8The source of power for the making of a community treatment order is Section 51(1) of the Mental Health Act. It states that a community treatment order "authorising the compulsory treatment in the community of a person may be made by the Tribunal" (emphasis added). The plaintiff contends that his treatment is not "in the community" and that Section 51(1) does not apply to immigration detainees because they are segregated from the "community". I do not accept this submission. 9It is true that there is a separate source of authority for the making of community treatment orders against persons in correctional centres or similar places, namely Section 67(1) of the Mental Health (Forensic Provisions) Act 1990. And there is no correlative source of authority specifically dealing with the making of a community treatment order in relation to immigration detainees. On the plaintiff's submission, a community treatment order can never be made against an immigration detainee. He says that the purpose of the qualification "in the community" in Section 51(1) is to restrict the exercise of the power so that it is not available to be used in relation to persons, such as himself, who are segregated from the community. 10I do not think that this construction reflects the scheme of Chapter 3 of the Mental Health Act. The chapter heading is "Involuntary admission and treatment in and outside facilities". The "facilities" with which the chapter is concerned are obviously mental health facilities. Part 2 is concerned with involuntary detention and treatment in mental health facilities - as its heading and the language of the following Sections 18-49 make clear. On the other hand, Part 3 is concerned with involuntary treatment in the community - as its heading and the following Sections 50-67 also make clear. 11The statutory phrases "in mental health facilities" (Part 2) and "in the community" (Part 3) operate in contradistinction to each other. They are antipodes. Each is descriptive of the area of operation of the respective Part of Chapter 3 to which it belongs and the type of order that may be made under that Part. In this setting, the words "in the community" in Section 51(1) derive their sense and intended meaning from a comparison of the scope of operation of Part 2 with that of Part 3. In this particular statutory context, the words "in the community" mean no more than not in a mental health facility. 12This is the answer to the plaintiff's contention that the community treatment order is invalid because it does not ensure that compulsory treatment is administered in a regulated environment and does not ensure that there is a therapeutic relationship between the affected person and his or her case manager. At a factual level, I do not think that there has been a failure to achieve those objectives. But whatever view one takes of the facts, the plaintiff's argument does not detract from the construction of the phrase "in the community" that I have explained. 13There is another consideration. The Mental Health Act is protective legislation designed to provide for the care and control of persons who need assistance. Whatever the plaintiff or his legal advisors may think about the terms of the treatment plan, the community treatment order and accompanying treatment plan were designed with the best interests of the plaintiff in mind. I do not think that there is any ambiguity about the meaning of Section 51(1) but even if I did, I would be slow to conclude that I should adopt a narrow construction so as to confine the availability of community treatment orders made pursuant to it. In fact, it may well be more appropriate to give Section 51(1) "the widest possible scope": Day & Dent Constructions Pty Ltd (in liq) v North Australian Properties Pty Ltd [1982] HCA 20; (1982) 150 CLR 85 at 108 (Mason J).

Second Issue: "capable of implementing" 14Section 53(3)(b) of the Mental Health Act provides that the Tribunal may make a community treatment order if the Tribunal determines that "a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it ..." (emphasis added). The plaintiff submits that the Bankstown-Lidcombe Mental Health Service is not capable of implementing the treatment plan in the community treatment order. He contends that doing the things required of it by the treatment plan does not amount to "implementing" the treatment plan. I do not accept this submission. I explained in paragraphs [5] - [6] above the role of the Bankstown-Lidcombe Mental Health Service in the application and implementation of the treatment plan to the plaintiff. The statutory requirements for a treatment plan are set out in Section 54: A treatment plan for an affected person is to consist of the following: (a) in general terms, an outline of the proposed treatment, counselling, management, rehabilitation or other services to be provided to implement the community treatment order; (b) in specific terms, the method by which, the frequency with which, and the places at which, the services would be provided for that purpose. 15Section 54(b) recognises that the method by which, the frequency with which and the places at which services are to be provided are all matters that may permissibly vary between treatment plans. Nothing in the provision suggests that services must be provided exclusively by staff of a mental health facility. The recognition that services may be provided at other places suggests to the contrary. 16The fact that a treatment plan may permit the treatment by persons other than staff of the nominated mental health facility is at least consistent with the language of Section 57(5), which refers to "[a] person implementing a treatment plan under a community treatment order" (emphasis added). There is no reason why the person referred to need be employed by the mental health facility. Indeed, Section 57(5) reveals that persons or bodies in addition to the nominated mental health facility may be regarded as "implementing" a treatment plan. Further, the community treatment order requires the plaintiff to consent to information sharing between IHMS and the Bankstown-Lidcombe Mental Health Service. This arrangement ensures performance by the director of community treatment of the obligation imposed by Section 57(4). 17The degree to which the staff of a mental health facility are directly involved in providing treatment or supervise others who do so, the degree to which treatment is administered at a mental health facility or elsewhere, and the frequency and location of appointments with a psychiatric case manager, are all matters which may accommodate themselves to the individual circumstances of the person under treatment. 18Importantly, the director of community treatment at the Bankstown-Lidcombe Mental Health Service has the functions conferred by Sections 57(2), 58 and 66. Pursuant to Section 57(2), the director is authorised to take all reasonable steps to have medication administered, and services provided, in accordance with the community treatment order. Pursuant to Section 58, the director is responsible for taking steps in the event of a breach of the community treatment order by the plaintiff. Pursuant to Section 66, the director may revoke the community treatment order if of the opinion that the plaintiff is not likely to benefit from a continuation of the order. 19In all of these circumstances, it seems appropriate to describe the Bankstown-Lidcombe Mental Health Service as "implementing" the treatment plan. It does not matter that aspects of that plan involve day to day treatment being administered by others, so as long as the treatment takes place pursuant to the plan and under the supervision of or in consultation with the specified mental health facility.

Third Issue: "reside in New South Wales" 20The plaintiff's contention is that he does not reside in New South Wales because he is detained at a "Commonwealth place" within the meaning of Section 3 of the Commonwealth Places (Application of Laws) Act 1970 (Cth). He says that the scope and operation of Section 51(1) is confined to persons who reside in New South Wales and that only Section 181 of the Mental Health Act authorises the making of a community treatment order against a person "who does not reside in this state". As the requirements of that section have not been met, he contends that there is no statutory authority for the making of a community treatment order in relation to him. His submission necessarily extends to all immigration detainees held in a Commonwealth place. 21I do not accept this submission. Residence is of course a different concept to domicile or mere presence. Unless compelled by the force of particular statutory language, the ordinary meaning of the place where a person resides is no more than the place, subject to a degree of permanence, "where he sleeps and lives": Cesena Sulphur Co v Nicholson [1876] 1 Ex D 428 at 452 (Huddleston B) or "where he eats, drinks and sleeps": Stoke-on-Trent Council v Cheshire Council [1915] 3 KB 699 at 706 (Ridley J). There are many examples of decisions which emphasise that some element of relative permanence is required: Brokelmann v Barr [1971] 2 QB 602, 611-612; Levene v IRC [1928] AC 217, 222; Matalon v Matalon [1952] P 233; Firebrace v Firebrace (1878) 4 PD 63. The question is usually factual and the answer is often pragmatic. 22Although an element of voluntary choice is usually involved in the conception of residence, it is not always a necessary element in some contexts. This is evident from the reasoning of Barry J in Keil v Keil [1947] VLR 383 at 388, a decision about the residence of a person held in an internment camp. The principle also applies to lunatics. In re XY [1937] Ch 337 at 341 Lord Wright said that "residence" for the purpose of the Lunacy Act 1891 (UK) "must mean residence in fact, even though the resident ... is not capable of the volition which is generally considered as being essential to residence". I think the same principle must apply to immigration detainees. 23There is an additional ground for rejecting this submission. Its premise is based on a sophism. It simply does not follow that because the Villawood Detention Centre is a Commonwealth place, it ceases to be part of New South Wales. That is because the effect of characterising a place as a Commonwealth place is that, pursuant to Section 52 of the Constitution, the Federal Parliament has exclusive power to make laws with respect to the place. However, the consequence is not to bring about a geographic excision of the place from the State in which it is located. At a general level, this is a well-recognised proposition: R v Phillips [1970] HCA 50; (1970) 125 CLR 93 at 100-101 (Barwick CJ), 105 (McTiernan J), 110-111 (Menzies J, Owen J agreeing), 112 (Windeyer J) and 131-132 (Gibbs J); Permanent Trustee Australia Ltd v Commissioner of State Revenue [2004] HCA 53; (2004) 220 CLR 388 at [35] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); R v Porter [2004] NSWCCA 353; (2004) 61 NSWLR 384 at [14] (Spigelman CJ, the rest of the Court agreeing). 24The general proposition is reinforced in this particular case by the perspicuous statutory language of the Commonwealth Places (Application of Laws) Act. Section 4(1) recognises that whether or not a place is a "Commonwealth place", it remains in the State. It refers to "each place in that State that is or was a Commonwealth place" (emphasis added). In case it may have been thought otherwise, the Villawood Detention Centre is and remains in New South Wales.

Fourth Issue: Section 109 Inconsistency 25Section 109 of the Constitution provides: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. 26Notwithstanding the abundance of case law generated by this provision, Dixon J neatly encapsulated the problem to which Section 109 is directed by two statements that appear in Victoria v The Commonwealth [1937] HCA 82; (1937) 58 CLR 618. The first (at 630) was as follows: When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. 27The second, which immediately followed, was: Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent. 28In Telstra Corporation Limited v Worthing [1999] HCA 12 at [28]; (1999) 197 CLR 61 at 76-77 the Court added in relation to these two statements: The second proposition may apply in a given case where the first does not, yet ... if the first proposition applies, then s 109 of the Constitution operates even if, and without the occasion to consider whether, the second proposition applies. 29I should also mention the observation by Gummow J in APLA Ltd v Legal Services Commissioner of New South Wales [2005] HCA 44 at [206]; (2005) 224 CLR 322 at 400, concerning the first of Dixon J's statements: The Commonwealth met the plaintiffs' contention that s 109 is engaged if, in the light of the practical operation of the State law, there is anything more than a de minimis impairment of the employment of a federal right by saying that the question is always one of fact and degree. This approach should be adopted. 30The starting point in the resolution of any assertion that Section 109 of the Constitution is engaged is the construction of the laws said to be inconsistent. It is only an inconsistency disclosed by the proper construction of each of those laws that will operate to invalidate the relevant State law. In the context of this litigation, Section 51 of the Mental Health Act should of course be read, not in isolation, but in the context of the statute as a whole: K & S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315.

The Scheme of the Mental Health Act 31Among the objects of the Mental Health Act, set out in Section 3, are the following: (a) to provide for the care, treatment and control of persons who are mentally ill or mentally disordered, and (b) to facilitate the care, treatment and control of those persons through community care facilities, and (c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis. 32As I have mentioned, Chapter 2 of the Mental Health Act is expressed to deal with "Voluntary admission to facilities" and Chapter 3 with "Involuntary admission and treatment in and outside facilities". Part 3 of Chapter 3, which includes Section 51, is headed "Involuntary treatment in the community". Division 2 of that Part contains detailed provisions relating to the operation of community treatment orders. I have already referred to Section 58. It provides in particular: (1) The director of community treatment of a declared mental health facility implementing a community treatment order must take the steps set out in this section if the affected person in any way refuses or fails to comply with the community treatment order and the director is of the opinion that: (a) the mental health facility has taken all reasonable steps to implement the order, and (b) there is a significant risk of deterioration in the mental or physical condition of the affected person. (2) The director must: (a) make a written record of the opinions, the facts on which they are based and the reasons for forming them, and (b) cause the affected person to be informed that any further refusal to comply with the order will result in the person being taken to the declared mental health facility or another appropriate mental health facility and treated there. (3) On a further refusal or failure by the affected person to comply with the community treatment order, the director may cause the person to be given a written notice (a breach notice): (a) requiring the person to accompany a member of staff of the NSW Health Service employed at the declared mental health facility for treatment in accordance with the order or to a specified mental health facility; and (b) warning the person that the assistance of a police officer may be obtained in order to ensure compliance with the order. (4) On the refusal or failure by the affected person to comply with a breach notice, the director may, in writing, make an order (a breach order) that the affected person be taken to a specified declared mental health facility. 33The reference in Section 58(3)(b) to the involvement of police officers directs attention to Section 59, which states: (1) A police officer to whose notice a breach order is brought must, if practicable: (a) apprehend and take or assist in taking the person the subject of the order to the mental health facility, or (b) cause or make arrangements for some other police officer to do so. (2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by Section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility. 34The powers conferred by Section 81 include the power to restrain a person who is being taken to or from a mental health facility; to place that person under sedation, albeit in accordance with the provisions of the Poisons and Therapeutic Goods Act 1966; to carry out a search, including a frisk search, of that person if it is reasonably suspected that he or she is carrying an item that either would present a danger to any person or could be used to assist his or her escape from custody; and to seize and detain any such item. 35If following the execution of a breach order, the affected person continued to refuse treatment, Section 61 of the Mental Health Act would apply. That provision is relevantly in the following terms: (2) An authorised medical officer must, not later than 12 hours after the person is taken to the declared mental health facility, review the affected person's mental condition and determine whether the person is a mentally ill person or a mentally disordered person. ... (4) If the authorised medical officer determines that the affected person is a mentally ill person or a mentally disordered person for whom no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available, the person is to be detained in the declared mental health facility for further observation or treatment, or both. (5) The affected person may be detained until one of the following events occurs: (a) in the case of a mentally ill person, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act, (b) in the case of a mentally disordered person, the maximum period for which a person may be held as such a person under Part 2 ends, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act. 36The detention of an affected person pursuant to Section 61 is further governed by Section 62, which relevantly provides: (1) An affected person detained in a declared mental health facility under this Division must be discharged from the facility: (a) if the authorised medical officer determines that the person is not a mentally ill person or a mentally disordered person or is of the opinion that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person, or (b) if the authorised medical officer decides at any time that it is appropriate to do so. (2) An authorised medical officer may do all necessary things to cause a person to be detained in a mental health facility under Part 2 at the end of the term of a community treatment order if the officer considers the person to be a mentally ill person. 37Sections 63 and 64 of the Mental Health Act then empower the Tribunal to undertake regular reviews of an affected person in detention for the purpose of determining whether he or she is a "mentally ill person for whom no other care (other than care in a mental health facility) is appropriate and reasonably available". If the Tribunal determines that that question should be answered in the affirmative, then it must also determine whether the affected person should be detained in the declared mental health facility until the end of the community treatment order or should be detained in the facility as an involuntary patient. 38If however, the Tribunal determines that care of a less restrictive kind is appropriate or reasonably available, it is then obliged to order the discharge of the affected person from detention and empowered to make, in respect of that person, any community order that it could make on the review of an involuntary patient. 39In the result, I think it is clear from this analysis that Section 51 of the Mental Health Act does not merely confer a power to make community treatment orders. It is also part of a broader scheme, pursuant to which persons the subject of such orders may, in the event of refusal to comply, be taken into custody, including by police officers, and afterwards detained in a mental health facility.

The Plaintiff's Contention 40The plaintiff's contention is that if Chapter 3, Part 3 of the Mental Health Act validly applied to persons held in immigration detention, it would represent an alteration to or a detraction from the scheme for detaining unlawful non-citizens under the Migration Act. He points to several features of the Mental Health Act. They include the power of the director of community treatment of a particular mental health facility to make orders requiring affected persons to be taken to such facilities; the power to require the detention of affected persons in a mental health facility upon the formation of a particular opinion by an authorised medical officer; and the power to provide for such detention to continue on an indefinite basis, subject only to review by the Tribunal. 41These powers are said to detract from three principle features of the scheme for immigration detention. Those features are as follows: (a) the requirement in the Migration Act that an unlawful non-citizen not be released from immigration detention, even by order of a court, unless he or she has been granted a visa; (b) the exclusivity of the conferral upon the Minister for Immigration of the power to determine when and where a specific unlawful non-citizen may reside otherwise than in "immigration detention"; and (c) the ability of the Commonwealth Executive to remove such a non-citizen or to deport him or her from Australia. 42Thus, the plaintiff contends that there is a readily apparent inconsistency between Sections 58 and 64 of the Mental Health Act and the scheme of mandatory detention, pending removal or deportation, for which provision is made in Divisions 7 to 9 of Part 2 of the Migration Act. He says that the inconsistency has the effect of invalidating the whole of Part 3 of Chapter 3 of the Mental Health Act, including Section 51, in so far as it purports to have any application to unlawful non-citizens kept in immigration detention.

The Premise of Inconsistency 43Section 109 of the Constitution deals only with inconsistency between laws, as distinct from inconsistency between powers: R v Winneke; Ex parte Gallagher [1982] HCA 77; (1982) 152 CLR 211 at 216. Thus, the circumstance that federal and state legislation may confer upon different repositories, powers in respect of the same subject matter, will not of itself engage the operation of Section 109. 44To this proposition, however, must be added two qualifications. The first is that an inconsistency may arise in the practical application or exercise of the concurrent powers. In such a case, the inconsistency "is to be resolved by giving supremacy to the Commonwealth legislation in the particular situation": Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574 at 588. This category of inconsistency has attracted the epithet "operational": Commonwealth v Western Australia [1999] HCA 5 at [61]; (1999) 196 CLR 392 at 417. See also AMS v AIF [1999] HCA 26; (1999) 199 CLR 160 at [37]. 45The second qualification was expressed in Winneke (at 216) as follows: If a federal law validly confers a power which is intended to be exclusive so that no one else can do the same thing, Section 109 directly operates, with the result that a State law conferring a power to do that thing would be invalid. 46Subject to one matter, the plaintiff's submissions do not assert any direct inconsistency between Section 51 of the Mental Health Act and the Migration Act. Rather, it is said that other provisions of the Mental Health Act are directly inconsistent with the Migration Act and that Section 51 cannot be severed from them. In effect, it is an argument about the scheme of operation of the Mental Health Act. 47The recognition that Section 51 itself does not give rise to any direct inconsistency, is an important starting point. It is a correct proposition because the making of a community treatment order pursuant to Section 51 for the treatment of an unlawful non-citizen in immigration detention does not itself alter, impair or detract from the operation of the Migration Act. Nor does it follow that the effect of a community treatment order made pursuant to Section 51 of the Mental Health Act will necessarily alter, impair or detract from the operation of the Migration Act. 48I have already referred to Section 57. It provides relevantly that: (1) The affected person must comply with the community treatment order. (2) The director of community treatment of the declared mental health facility implementing a treatment plan under a community treatment order may take all reasonable steps to have medication administered, and services provided, in accordance with the order. (3) Medication may be administered to an affected person for the purposes of a community treatment order without the person's consent if it is administered without the use of more force than would be required if the person had consented to its administration. 49Thus for example, one effect of a community treatment order is to render lawful the administration of medical treatment without consent. It does not however represent any alteration, impairment or detraction from the operation of the Migration Act.

Operational Inconsistency 50Nonetheless, depending on the terms of a community treatment order, and the particular circumstances, an operational inconsistency may arise. That would be so if the community treatment order required, by the terms of the treatment plan, that an unlawful non-citizen detained under Section 189 of the Migration Act be treated otherwise than while in immigration detention. In that event, the requirement of Section 57(1) that "[t]he affected person must comply with the community treatment order" would be directly inconsistent with the Migration Act. It would run counter to the obligations and requirements for detention specified in Sections 189(1) and 196 of the Migration Act. In such a case however, for the reasons explained in AMS v AIF, to which I referred in [44] above, Section 51 of the Mental Health Act would be construed as not authorising the making of such a community treatment order. 51Similarly, while a community treatment order may not on its face disclose any operational inconsistency with the Migration Act, the exercise of powers under the Migration Act may give rise to an operational inconsistency. Officers under the Migration Act may, for example, exercise a power to keep an unlawful non-citizen in detention at a particular location or move an unlawful non-citizen from detention at a particular location to another. Similarly, steps may be taken under the Migration Act to remove an unlawful non-citizen from Australia under Section 198 or 199, or to deport an unlawful non-citizen under Section 200. To the extent that the unlawful non-citizen is subject to these powers and their exercise is inconsistent with his or her compliance with a community treatment order, there is an operational inconsistency between the powers exercised under the Migration Act and Section 57(1) of the Mental Health Act. In those events, the former must prevail. 52Another example of possible operational inconsistency might be where provision were made for treatment of a particular kind in a community treatment order and an authorisation were given by the Secretary pursuant to Regulation 5.35(2) of the Migration Regulations. That rule provides: (1) In this regulation: "detainee" means a person held at a detention centre in detention under the Act. "medical treatment" includes: (a) the administration of nourishment and fluids; and (b) treatment in a hospital. (2) The Secretary may authorise medical treatment to be given to a detainee if: (a) the Secretary, acting in person and on a written advice of: (i) a Commonwealth Medical Officer; or (ii) another registered medical practitioner; forms the opinion that: (iii) that detainee needs medical treatment; and (iv) if medical treatment is not given to that detainee, there will be a serious risk to his or her life or health; and (b) that detainee fails to give, refuses to give, or is not reasonably capable of giving, consent to the medical treatment. (3) An authorisation by the Secretary under subregulation (2) is authority for the use of reasonable force (including the reasonable use of restraint and sedatives) for the purpose of giving medical treatment to a detainee. (4) A detainee to whom medical treatment is given under an authorisation under subregulation (2) is taken for all purposes to have consented to the treatment. (5) Medical treatment that is given under authorisation under subregulation (2) must be given by, or in the presence of, a registered medical practitioner. (6) Nothing in this regulation authorises the Secretary to require a registered medical practitioner to act in a way contrary to the ethical, moral or religious convictions of that medical practitioner. 53Following an authorisation pursuant to Regulation 5.35(2), if a person sought to exercise reasonable force to administer treatment of a particular kind that was authorised by Regulation 5.35(3) of the Migration Regulations, the authority of that person to do so would prevail over any inconsistent provision, authority or obligation under the Mental Health Act, including Section 57(1). The director of community treatment of the nominated mental health facility could not take steps to have medication administered in accordance with Section 57(2). 54On the other hand, the exercise of powers under the Migration Act may mean that what would otherwise be an operational inconsistency does not occur. For example, if a community treatment order required an unlawful non-citizen to attend at a certain time and place each week, an inconsistency might occur if the effect of attendance were to cause the person not to be in immigration detention. However the possibility of inconsistency would be removed if certain steps were taken under the Migration Act, including by permitting the person's attendance in the company of and restrained by an officer. Similarly, the Minister might approve in writing the place and the person's attendance in the company of an officer. Further still, the Minister might obviate a potential inconsistency by making a "residence determination" pursuant to Section 197AB.

The Breach Provisions 55The plaintiff's submissions focus on the "breach" provisions of the Mental Health Act. They are set out in Sections 58-64. It is no doubt true that the operation of aspects of those provisions may be restricted by the application of the Migration Act. In particular, the ability of police to exercise the power in Section 59 to take a person the subject of a "breach order" to a mental health facility, and the detention of the person at the facility pursuant to Section 60 or Section 64, may not be possible in some circumstances. However, for the reasons that I have explained, and on which I elaborate below, this does not lead to the invalidity of Section 51 of the Mental Health Act. 56That is so because the breach provisions themselves are not rendered invalid. Rather, it is merely the operation of those provisions in certain respects that may be ineffective. For instance, there is no difficulty giving effect to the breach provisions if their effect is not to remove an unlawful non-citizen from immigration detention. That may be achieved by the involvement of officers under the Migration Act, which includes members of the New South Wales police, and the approval of the mental health facility as a place of immigration detention. Accordingly, any inconsistency concerning the breach provisions is, as with other provisions of the Mental Health Act, an operational one. 57Additionally, even if aspects of the enforcement of a community treatment order are not possible because of operational inconsistency, it does not follow that the provisions of the Mental Health Act that provide for the making and the effect of a community treatment order are invalid. The Act itself contemplates that, in some cases, there may be difficulties with enforcement. Thus, Section 59(1) provides that "[a] police officer to whose notice a breach order is brought must if practicable" (emphasis added) take a person to a mental health facility. 58Finally, I reject the plaintiff's contention that Sections 58-64 of the Mental Health Act are not capable of being severed because the outcome would be "anomalous" or "perverse". Severance of the enforcement provisions of the Act is not to the point and does not arise. If, in particular hypothetical circumstances, those provisions were rendered wholly or partly "suspended, inoperative and ineffective", there would be no occasion for severance. Supremacy would simply be given to the Commonwealth legislation in relation to those provisions in the particular circumstances. But the inability to rely in a particular case on the full extent of the enforcement provisions of the Mental Health Act could not have the effect of invalidating those other provisions of the Act concerning the making and effect of a community treatment order.

Section 51 59Apart from an attack on the breach provisions, the only inconsistency directly involving Section 51 of the Mental Health Act identified in the plaintiff's submissions is that it is said that there is an "assumption" underlying Section 51 having regard to the terms of Section 53. The assumption is said to be that a person for whom treatment is prescribed by a community treatment order will be in a position to comply with it for a fixed period of time not to exceed 12 months. This is said to be at odds with Section 196 of the Migration Act because the period for which an unlawful non-citizen may be detained is not fixed and may be substantially shorter than 12 months. 60Any such assumption underlying Section 51, if it exists, does not demonstrate direct inconsistency with the Migration Act. At most, the operation of the Migration Act in the particular circumstances may falsify any such assumption. The mere fact of any such assumption does not demonstrate that the State legislation alters, impairs or detracts from the Migration Act. In any event, I think that the plaintiff states any assumption underlying section 51 too highly. The Mental Health Act contemplates that circumstances may render it impossible or inappropriate for a community treatment order to continue to apply to the plaintiff. This is apparent from Sections 64, 65 and 66. The operation of provisions of the Migration Act must be but one of the contemplated circumstances.

Covering the Field 61The plaintiff also invokes the concept of covering the field. A "law of the Commonwealth" for the purpose of Section 109 includes delegated legislation: R v Foster; Ex parte Commonwealth Steamship Owners' Association [1953] HCA 86; (1953) 88 CLR 549 at 556. I have already referred to Regulation 5.35 of the Migration Regulations. The plaintiff contends that that rule was intended to operate as an exclusive conferral of power with respect to the involuntary medical treatment of unlawful non-citizens held in immigration detention centres. On that basis, according to the plaintiff's submission, Section 51 cannot validly apply in respect of such non-citizens. However, I do not think that Regulation 5.35 evinces an intention to "cover the field" of involuntary medical treatment of unlawful non-citizens. I have summarised the several reasons why this is so in paragraphs [62]-[66] below. 62I should first make clear however that I reject the broad submission that Regulation 5.35 should be construed as covering the field because the power to exclude or deport a person from a national community is particularly apt for exercise by a national executive and the regime under the Migration Act for the detention of unlawful non-citizens is an incident of that power. That is far too general a proposition. I prefer to approach the matter by reference to the terms and effect of the particular regulation rather than by attempting to invoke such broad considerations. 63It should be noted that Regulation 5.35 does not apply to all unlawful non-citizens in immigration detention but only those in detention centres. It would be surprising for the Commonwealth Parliament to seek to regulate, exhaustively, involuntary treatment of unlawful non-citizens in detention centres but not other forms of immigration detention. That would have the result, for example, that the Mental Health Act could not apply where a person was in immigration detention in a detention centre but could apply while they were in transit between two detention centres in company of officers. That is an unlikely result. 64Further, Regulation 5.35 is clearly directed to circumstances of immediate and urgent treatment, not the kind of ongoing treatment of a mentally ill person contemplated by the Mental Health Act. This is evident from the definition, albeit inclusive, of "medical treatment" in Regulation 5.35(1). It is also apparent from the requirement for the exercise of the power in Regulation 5.35(2) stated in paragraph (a)(iv) that "if medical treatment is not given to that detainee there will be a serious risk to his or her life or health". Even if Regulation 5.35 could be construed to travel beyond those kinds of medical treatment to ongoing, long term, involuntary treatment, it was plainly not the focus of the provision. For the same reasons, even if Regulation 5.35 could be construed to permit medical treatment necessary to address mental illness, that was clearly not the focus of the provision. 65Further still, Regulation 5.35 provides no machinery for the review of ongoing treatment of the kind which may be necessary to treat mental illness. Such machinery is evident in the detailed provisions of the Mental Health Act. It is unlikely that Regulation 5.35 of the Migration Regulations was intended to regulate exhaustively involuntary medical treatment in the absence of such machinery. 66Finally, contrary to the plaintiff's submissions, Section 252F of the Migration Act does not indicate that the Mental Health Act is not to apply to persons in immigration detention. That section provides: (1) This section applies to a detainee if: (a) he or she is held in immigration detention in a prison or remand centre of a State or Territory; and (b) a law of that State or Territory confers a power to search persons, or things in the possession of persons, serving sentences or being held in the prison or remand centre. (2) To the extent that the State or Territory law confers that power, or affects the exercise of that power, it applies to the detainee as though it were a law of the Commonwealth. (3) Sections 252AA and 252A of this Act do not apply to a detainee to whom this section applies. 67Significantly, the plaintiff's submissions quote Section 252F without quoting sub-section (3). But it is that sub-section which reveals the need for the provision. Without it, specific provisions of the Migration Act concerning screening and search may have applied concurrently with State or Territory provisions, or perhaps even exclusively, to detainees in State or Territory prisons or remand centres. That would be an anomalous result. The provision says nothing about whether other provisions of the Migration Act or the Migration Regulations, concerning topics other than screening and search, and applying in places other than State or Territory prisons or remand centres, are to be regarded as covering the field.

Conclusion 68For those reasons, I have reached the view that the federal legislation does not cover the field in any relevant sense. I have also concluded that the only questions of inconsistency that may arise in relation to the community treatment order made in relation to the plaintiff, are ones of operation. On its face, the plaintiff's community treatment order does not give rise to any inconsistency. To the contrary, the treatment plan in the order has been drafted in order to operate within the constraints of the circumstances to which the plaintiff is subject by reason of the Migration Act. For the same reasons, the risk of operational inconsistency has been minimised. In any event, the effect of inconsistency in this case would not be to invalidate Section 51 of the Mental Health Act or the community treatment order itself, but to render "suspended, inoperative and ineffective" the powers or obligations under the Mental Health Act which give rise to the particular operational inconsistency.

Orders 69On 1 June 2012, I ordered that the questions of validity and authority raised by prayers 1, 2 and 3 of the Summons be heard and determined separately. I have concluded that I should reject each of those claims for relief. The parties should bring in short minutes to reflect these reasons, including costs orders if agreed. If not, I will hear submissions on costs. Bearing in mind that the community treatment order expires on 28 August 2012, I see little point in the pursuit of the relief claimed in prayer 4 of the Summons. If necessary, I will hear submissions about the appropriate final disposition of the proceedings. 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: 21 August 2012