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Cases

Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs

Immigration - Appellant charged with offence of escape by unlawful non-citizen from immigration detention contrary to s 197A of the Migration Act 1958 (Cth) - Appellant sought issue of witness summonses pursuant to Magistrates Court Act 1991 (SA) seeking production of documentary material relating to conditions and complaints about conditions at detention centre - Whether material sought by witness summonses could have assisted appellant in his defence - Whether, by reason of conditions at detention centre, it could be said that appellant did not escape from "immigration detention" within the meaning of the offence.

Immigration - Constitutional law (Cth) - Whether detention under harsh or inhumane conditions is authorised by the Migration Act 1958 (Cth) - Whether Migration Act 1958 (Cth) only authorises detention under conditions that are reasonably capable of being seen as necessary for migration control purposes - Whether detention in harsher conditions would be punitive and therefore could not validly be authorised except as a consequence of the exercise of the judicial power under Ch III of the Constitution - Distinction between lawful authority to detain and means by which detention is achieved and enforced - Relevance of potential availability of other civil, criminal or administrative remedies to the construction of the statutory offence - Relevance of Constitutional principles and international law to construction of statutory offence.

Constitutional law (Cth) - Construction of the Constitution - Whether international law applicable to interpretation of the Constitution.

Behrooz v Secretary of the Department of Immigration and Multicultural and

Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous [2004] HCA 36 (6 August 2004)
Last updated: 6 August 2004


HIGH COURT OF AUSTRALIA


GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
MAHRAN BEHROOZ APPELLANT

AND

SECRETARY OF THE DEPARTMENT OF

IMMIGRATION AND MULTICULTURAL AND

INDIGENOUS AFFAIRS & ORS RESPONDENTS


Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs

[2004] HCA 36

6 August 2004

A255/2003

ORDER

Appeal dismissed. Appellant to pay costs of first respondent.
On appeal from the Supreme Court of South Australia

Representation:

J W K Burnside QC with J P Manetta for the appellant (instructed by Jeremy Moore & Associates)

D M J Bennett QC, Solicitor-General of the Commonwealth, with M A Perry for the first and second respondents (instructed by Australian Government Solicitor)

No appearance for the third and fourth respondents

Intervener

D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs

Immigration - Appellant charged with offence of escape by unlawful non-citizen from immigration detention contrary to s 197A of the Migration Act 1958 (Cth) - Appellant sought issue of witness summonses pursuant to Magistrates Court Act 1991 (SA) seeking production of documentary material relating to conditions and complaints about conditions at detention centre - Whether material sought by witness summonses could have assisted appellant in his defence - Whether, by reason of conditions at detention centre, it could be said that appellant did not escape from "immigration detention" within the meaning of the offence.

Immigration - Constitutional law (Cth) - Whether detention under harsh or inhumane conditions is authorised by the Migration Act 1958 (Cth) - Whether Migration Act 1958 (Cth) only authorises detention under conditions that are reasonably capable of being seen as necessary for migration control purposes - Whether detention in harsher conditions would be punitive and therefore could not validly be authorised except as a consequence of the exercise of the judicial power under Ch III of the Constitution - Distinction between lawful authority to detain and means by which detention is achieved and enforced - Relevance of potential availability of other civil, criminal or administrative remedies to the construction of the statutory offence - Relevance of Constitutional principles and international law to construction of statutory offence.

Constitutional law (Cth) - Construction of the Constitution - Whether international law applicable to interpretation of the Constitution.

Words and phrases - "detain", "detainee", "immigration detention".

Constitution, Ch III.

Migration Act 1958 (Cth), ss 3A, 5, 189, 196, 197A, 273.

Magistrates Court Act 1991 (SA), s 20.



GLEESON CJ. The question in this appeal concerns the relevance, to a charge of escaping from immigration detention contrary to s 197A of the Migration Act 1958 (Cth) ("the Act"), of information about the general conditions at the place of detention from which the alleged offender escaped. This is an issue of law, and was argued as such by the parties to the appeal. It comes down to a question of construction of s 197A, understood in the light of other provisions of the Act, and of the Constitution.



The forensic context in which the question arises is as follows. The Woomera Immigration Reception and Processing Centre ("the detention centre") was established as an immigration detention centre pursuant to s 273 of the Act. The appellant[1] was detained at the detention centre as an unlawful non-citizen pursuant to the obligation imposed by s 189 of the Act. He allegedly escaped. He was charged with a contravention of s 197A. The maximum penalty for such an offence is imprisonment for five years. The charge came before a South Australian magistrate. There was some debate in the Supreme Court of South Australia as to whether the proceedings were summary, or by way of committal preparatory to indictment. It is not suggested that, for present purposes, anything turns on that. The appellant was represented by senior counsel, as he has been at all times since. The appellant's lawyers sought, and obtained, the issue of witness summonses pursuant to the Magistrates Court Act 1991 (SA). Those summonses sought the production of extensive documentary material relating to conditions at the detention centre. The first and second respondents made an application to the magistrate to have the summonses set aside. There were two grounds for the application. One was that, by reason of their form and content, and the volume of material they sought, the summonses were oppressive[2]. The other was that the information sought was irrelevant, and therefore the issue of the summonses had no legitimate forensic purpose[3] or, to express the point in terms of ss 3 and 20 of the Magistrates Court Act, the material of which they required production was not and could not be of evidentiary value[4]. The magistrate dismissed the application. There was an appeal to the Supreme Court of South Australia. The appeal was upheld at first instance by Gray J, who accepted the second of the two arguments stated above. As to the first, relating to oppression, he would have declined to interfere with the magistrate's discretion. For the reasons that follow, there is no occasion to pursue that aspect of the matter. Gray J allowed the appeal, and set aside the summonses. The Full Court of the Supreme Court of South Australia (Lander and Besanko JJ, Bleby J dissenting), refused leave to appeal.



The legal basis upon which the Supreme Court of South Australia acted in setting aside the summonses is well established. It was expressed by Bigham J in R v Baines[5], a criminal case in which there was an application to set aside subpoenas to testify on the ground that they were not issued for a legitimate forensic purpose, as follows:

"But the Court has to inquire whether its process has been issued against [the potential witnesses] with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant."


In the present case, the nature of the information sought to be obtained by the issue of the summonses appears from a reading of the summonses, and was elaborated in argument. It was information concerning the conditions at the detention centre at or about the time of the appellant's escape. The potential relevance of that information was said to be that it would, or might, disclose that the conditions of detention of the appellant were such that the detention was punitive, that it was not a form of detention authorised by the Act, and that, therefore, escape from such detention did not contravene s 197A. In the appellant's written submissions in this Court, the relevance was stated as follows (referring to all appellants):

"In defence of the charges, the appellants say that the conditions at Woomera, in their harshness, go beyond anything that could reasonably be regarded as necessary for migration purposes. They say, therefore, that their detention at Woomera was not valid 'immigration detention' and escaping from it could not constitute escape from immigration detention."


Such a defence must be understood in the light of the terms of the Act. It is accepted by the appellant, for the purposes of the argument, that he is an unlawful non-citizen. It is accepted that he was detained at the detention centre. It is accepted that the detention centre was established as such pursuant to s 273 of the Act. It is accepted, for the purposes of the argument, that the appellant escaped from the detention centre.



Section 197A provides:

"A detainee must not escape from immigration detention."


Section 5 defines "detain" to mean to take, keep, or cause to be kept, in immigration detention. The word "detainee" takes its meaning from that definition. Section 5 defines "immigration detention" relevantly, to mean being held in a detention centre established under the Act. It is clear that the appellant was being held in such a detention centre. The conditions under which he was being held do not form part of the statutory concept of "immigration detention".



As was noted above, the proposed defence, to which the information sought is said to be relevant, must turn upon the meaning of s 197A, read in the light of s 5, and also in the light of s 3A of the Act, which limits its application to that which is constitutionally valid. The argument for the appellant amounts to the proposition that, by reason of conditions at the detention centre, it is, or may be, possible to conclude that the appellant was not in immigration detention within the meaning of s 197A, and, therefore, did not escape from immigration detention.



It is important to note what is not in issue. In order to establish a defence to the charge against him, it is not sufficient for the appellant to demonstrate, if he can, that conditions at the detention centre were such as to give the inmates a cause of action for damages, or a right to declaratory or injunctive relief, or a claim to some remedy in administrative law. (The potential availability of relief of that kind cannot be brushed aside, conveniently, as a fantasy. The appellant has, at every stage of this litigation, been represented by senior counsel.) The appellant seeks to demonstrate that, by reason of the conditions at the detention centre, he, and presumably all the other inmates, had the right to leave. He seeks to demonstrate that escaping from the detention centre was not prohibited by s 197A.



There is a possible ambiguity in the expression "unlawful detention". It may refer to a case where one person has no right to detain another; the person detained has a right to be free. It could also be used to refer to a case in which the detention is authorised by law, but the conditions under which the detention is taking place are in some respects contrary to law. In the second case, the detainee may be entitled to complain, and may have legal remedies, but it does not follow that he or she is entitled to an order of release from custody, much less that he or she is entitled, in an exercise of self-help, to escape. The argument for the appellant appears to involve an intermediate position: that, while, as an unlawful non-citizen, his detention was required ("mandatory"), conditions as harsh as those at the detention centre were unlawful; and that, by reason of those conditions, what was involved at the detention centre was not "immigration detention".



There is nothing novel about courts having to deal with a claim by a prisoner, or someone subjected to a form of detention authorised by law, that the conditions of custody are harsh, oppressive, or even intolerable. In R v Deputy Governor of Parkhurst Prison; Ex parte Hague[6], Lord Bridge of Harwich said:

"I sympathise entirely with the view that the person lawfully held in custody who is subjected to intolerable conditions ought not to be left without a remedy against his custodian, but the proposition that the conditions of detention may render the detention itself unlawful raises formidable difficulties. If the proposition be sound, the corollary must be that when the conditions of detention deteriorate to the point of intolerability, the detainee is entitled immediately to go free. It is impossible, I think, to define with any precision what would amount to intolerable conditions for this purpose ...
The logical solution to the problem, I believe, is that if the conditions of an otherwise lawful detention are truly intolerable, the law ought to be capable of providing a remedy directly related to those conditions without characterising the fact of the detention itself as unlawful."



The decision of the House of Lords in that case was applied by the Court of Appeal of New South Wales in 1995 in Prisoners A-XX Inclusive v State of New South Wales[7], where a group of inmates of New South Wales prisons unsuccessfully claimed habeas corpus, contending that the failure to provide them with condoms exposed them to a risk of life-threatening illness. The Court of Appeal also considered Canadian and United States authority on the question.



The Supreme Court of the United States, in Bell v Wolfish[8], noted that there had been a series of cases before that Court involving constitutional challenges to prison conditions or practices. That case concerned prisoners held in custody pending trial. Various conditions of their confinement were said to be punitive, and therefore unconstitutional. Speaking for the majority, Rehnquist J made the point that, by hypothesis, a person complaining of conditions of confinement is being confined against his or her will: a form of treatment which, in itself, would be described, in a colloquial sense, as punitive. He said:

"Not every disability imposed during pretrial detention amounts to 'punishment' in the constitutional sense, however. Once the Government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. Traditionally, this has meant confinement in a facility which, no matter how modern or how antiquated, results in restricting the movement of a detainee in a manner in which he would not be restricted if he simply were free to walk the streets pending trial. Whether it be called a jail, or prison, or a custodial center, the purpose of the facility is to detain. Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee's understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into 'punishment'."


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.



One closely confined area in which the law has accepted a limited form of right to escape concerns the common law principle of necessity. In the Victorian case of R v Loughnan[9], and the New South Wales case of Rogers[10], consideration was given to the principles according to which a person, confronted in prison with some peril involving a threat to life or safety, may lawfully take steps, proportionate to the danger, to avoid the threat. Such steps do not ordinarily involve remaining at large in the community for an indefinite period. Thus, for example, there are United States authorities which make it a condition of pleading necessity as an excuse for escaping from prison that the prisoner, after escape, must report immediately to the proper authorities when he has attained a position of safety from the immediate threat[11]. The Supreme Court of Victoria, in Loughnan, said this was a matter of evidentiary significance, rather than a legal condition[12]. In Southwark London Borough Council v Williams[13], Edmund Davies LJ, discussing the defence of necessity, pointed out that "the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances". In the present case, Gray J recorded that there was no suggestion that the appellant was proposing to advance a defence of necessity, and it was not contended that he was compelled to escape to avoid some peril. Where a situation of necessity arises, it may justify action taken by a prisoner or detainee to get out of harm's way, but it does not mean that the prisoner or detainee becomes free from all the constraints of custody, or may escape into the community and remain at large.



The first and second respondents do not submit, and have not at any stage of the proceedings submitted, that the Act authorises conditions of immigration detention that are inhumane, or that it removes what would otherwise be the rights of detainees to seek legal redress for civil wrongs or criminal offences to which they may be subjected. In that respect, they point to s 256 of the Act, which requires that detainees be given all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to their immigration detention. What is in question is whether, by reason of their conditions of detention, detainees may lawfully escape.



The argument for the appellant is that the information sought by the witness summonses is relevant because it will, or may, establish that conditions at the detention centre were such that the appellant was not in immigration detention within the meaning of s 197A. The reason is said to be that, in the Act's constitutionally valid application (see s 3A), the detention which is in contemplation is detention which is not punitive in nature, whereas detention under harsh or inhumane conditions is punitive.



The detention which the Act contemplates, authorises, and requires is detention of unlawful non-citizens (aliens) pending processing of their visa applications or deportation. Section 189 provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. (Reference has already been made to s 273, which empowers the establishment of detention centres.) Section 196 provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed or deported (under ss 198, 199 or 200) or granted a visa. Applications for a visa are commonly made on the basis that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention[14]. Section 198 provides, in sub-s (6), that an officer must remove as soon as reasonably practicable an unlawful non-citizen who is a detainee if the non-citizen has made a visa application and the application has been finally determined in a manner adverse to the applicant. 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 this Court in circumstances where this 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.



The constitutional validity of the system of mandatory detention, which was introduced in 1992, was challenged unsuccessfully in this Court in Chu Kheng Lim v Minister for Immigration[15]. The Court held that the legislation was a valid exercise of the power, conferred by s 51(xix) of the Constitution, to make laws with respect to naturalization and aliens. Mason CJ said[16]:

"I agree with [Brennan, Deane and Dawson JJ] that the legislative power conferred by s 51(xix) of the Constitution extends to conferring upon the Executive authority to detain an alien in custody for the purposes of expulsion or deportation and that such authority constitutes an incident of executive power. I also agree that authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers and that such limited authority to detain an alien in custody can be conferred upon the Executive without contravening the investment of the judicial power of the Commonwealth in Ch III courts."


The concluding portion of that passage refers to an argument, dealt with extensively by Brennan, Deane and Dawson JJ, and rejected, that detention of the kind there under consideration was an exercise of judicial power, and could not be conferred constitutionally on the Executive. Brennan, Deane and Dawson JJ[17], distinguishing explicitly between citizens and aliens, said that, subject to certain well-established exceptions, the involuntary detention of a citizen is penal or punitive in character and exists only as an incident of judicial power. (Gaudron J said in another case that the exceptions are so numerous and important that it is difficult to sustain the primary proposition as a general rule[18].) The position with respect to aliens is different because of their vulnerability to exclusion or deportation, which flows from both the common law and the provision of the Constitution. In that respect, I would interpolate, exclusion includes what was referred to by the Solicitor-General of the Commonwealth in argument in Chu Kheng Lim as power to make laws "to prevent aliens who ... come to Australia without permission from entering the community pending a decision whether to grant them an entry permit or to remove them from the country"[19]. Authority to detain an alien in custody, Brennan, Deane and Dawson JJ said, in the context and for the purposes of executive powers to receive, investigate and determine an application for an entry permit and, after determination, to admit or deport, is not punitive in nature, and not part of the judicial power of the Commonwealth. In the case of a citizen, what is punitive in nature about involuntary detention (subject to a number of exceptions) is the deprivation of liberty involved. But an alien does not have a right without permission to enter Australia or to become part of the community. The alien's vulnerability to exclusion and deportation alters the nature of the detention when it is for the purpose described above. It is an incident of the executive power to exclude people who have no right to enter Australia, to process their applications for permission to enter, and to deport them if their applications fail.



That being the nature of the power of detention, there is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive, and an invalid exercise of judicial power. Whatever the conditions of detention, the detention itself involves involuntary deprivation of liberty. For a citizen, that alone would ordinarily constitute punishment. But for an alien, the detention is an incident of the exclusion and deportation to which an alien is vulnerable. Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort. But the assault, or the negligence, does not alter the nature of the detention. It remains detention for the statutory purpose identified above. The detention is not for a punitive purpose. The detainee is deprived of his or her liberty, but not as a form of punishment. And the detainee does not cease to be in immigration detention within the meaning of the Act.



The information the subject of the witness summonses might have assisted the appellant to demonstrate that he had a legitimate cause for complaint about his conditions of detention, and that he had a case for legal redress. But it could not have assisted an argument that he was not in immigration detention, or that s 197A did not validly prohibit his escape. The definition of "immigration detention" in s 5 of the Act includes being held in a detention centre established under the Act. The appellant was being held in a detention centre so established. By definition, he was in immigration detention. The nature of this detention was established by the statutory provisions pursuant to which, and for the purpose of which, his detention was required. The statutory definition applied to this case. That from which he escaped was immigration detention. The conditions at the detention centre could not alter the case. For that reason, the information was irrelevant to the charge of a contravention of s 197A. The purpose for which the summonses were issued was not a legitimate forensic purpose.



The decision of Gray J, and of the Full Court of the Supreme Court of South Australia, was correct. The appellant's appeal should be dismissed with costs.



McHUGH, GUMMOW AND HEYDON JJ. Since the grant of special leave in this case on 14 August 2003, the parties identified as the second and third appellants in the special leave application, Mr Mahmood Gholani Moggaddam and Mr Davood Hossein Amiri respectively, have been removed from Australia and a nolle prosequi has been entered in each instance. On the first day of the hearing in this Court, the grant of special leave in their favour was rescinded. Mr Behrooz remains the sole appellant.



This appeal turns upon the operation of s 197A of the Migration Act 1958 (Cth) ("the Act") and associated provisions. Section 197A was added to the Act with effect from 27 July 2001[20]. It states:

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

A prosecution for an offence against s 197A may be instituted at any time within five years after the commission of the offence (s 492(1)).



The term "immigration detention" is defined in s 5(1) of the Act so as to include:

"being held by, or on behalf of, an officer ... in a detention centre established under this Act".
Section 273 empowers the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") on behalf of the Commonwealth to cause the establishment and maintenance of centres for the detention of persons authorised under the Act. One such centre is the Woomera Immigration Reception and Processing Centre ("Woomera") which is proximate to the township of Woomera in the far north of South Australia, some 500 kilometres from Adelaide.



Australasian Correctional Management Pty Ltd ("Management") and Australasian Correctional Services Pty Ltd ("Services") are, by arrangement with the Commonwealth, responsible for the management of Woomera. Management and Services are the third and fourth respondents in this Court but played no active role in the appeal. The Secretary of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") is the first respondent. The second respondent is the Attorney-General of the Commonwealth.



The appellant, Mr Behrooz, is an Iranian national and unlawful non-citizen who was detained at Woomera. He was among six detainees alleged to have escaped from Woomera in the early hours of 18 November 2001. At the time of his alleged escape, the appellant had been in immigration detention under the Act for about 12 months.



The Magistrates Court Act 1991 (SA) ("the Magistrates Act") establishes the Magistrates Court of South Australia as a court of record (ss 4, 5). It is one of those State courts invested with federal jurisdiction by s 68 of the Judiciary Act 1903 (Cth) ("the Judiciary Act")[21]. By information sworn on 21 November 2001 and laid under the Summary Procedure Act 1921 (SA), Mr Behrooz and the two former appellants were charged with escaping from immigration detention contrary to s 197A of the Act.

Summonses for production



Section 20 of the Magistrates Act empowers that Court to require the production of "evidentiary material", a term given a broad meaning in s 3. On 10 January 2002, on application of the appellants, there were issued out of the Port Augusta Magistrates Court summonses to Management, Services and the proper officer of the Department. All summonses sought production of evidentiary material which had come into existence since 1 December 1999 and referred in specified ways to conditions at Woomera.



Applications were made by the recipients to set aside the summonses as oppressive and abuses of the process of the Court. After a contested hearing in which the Attorney-General of the Commonwealth intervened and was represented by senior counsel, the Magistrates Court delivered reasons for judgment on 24 May 2002. The Court was satisfied by the appellants that, upon the balance of probabilities, documents were sought which were likely to be relevant to their proposed defence to the charges of escaping contrary to s 197A of the Act. The Court recorded that defence as being:

"[E]ven though detention for the purposes of [the Act] was capable of being valid detention, if the conditions of detention were so obviously harsh as to render them punitive, then the detention went beyond that which was authorised by the Act and was necessarily illegal."
Detention at Woomera was said to be of this character, so that a detainee who escaped did not escape from a form of detention authorised by the statute.



The applications to set aside the summonses were dismissed, save in respect of those documents relating to periods outside the period of 23 months prior to 18 November 2001 and which related solely to minors. The period of 23 months was the longest period for which any of the three appellants had been in detention before their alleged escape.

The Supreme Court



An appeal was taken by the first respondent to the Supreme Court of South Australia constituted by a single judge (Gray J)[22]. The Supreme Court allowed the appeal and set aside the summonses. Mr Behrooz and the other appellants then moved the Full Court of the Supreme Court for leave to appeal. The application for leave was refused (Lander and Besanko JJ; Bleby J dissenting)[23] on 16 January 2003.



In this Court Mr Behrooz seeks an outcome setting aside that refusal of leave to appeal from the orders of Gray J, granting that leave and reinstating the order of the magistrate.



In the Full Court of the Supreme Court, the majority supported the conclusion reached by Gray J. Their Honours held that it was not reasonably arguable that Gray J had erred in concluding that there had been a failure by the appellants to identify a defence to the charges under s 197A which was known to law[24].



Section 196(1) states that an unlawful non-citizen detained under s 189 "must be kept in immigration detention until" removal from Australia under s 198 or s 199, deportation under s 200 or the grant of a visa. Shortly before the South Australian Full Court decision, the Full Federal Court had held in NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[25] that "the factual consequences" of detention for a particular individual did not render s 196(1) invalid in its application to that individual.



The majority of the South Australian Full Court concluded that, even if by the documents production of which was sought there was disclosed "evidentiary material" within the meaning of the Magistrates Act which would support a case based on the harshness of conditions at Woomera, such a case could not provide a defence to the charges under s 197A. Lander and Besanko JJ said[26]:

"The [appellants] seek to argue that their detention at [Woomera] was unlawful because of the harshness of the conditions at [Woomera]. The status of the [appellants] as unlawful non-citizens is not challenged. The fact that in the first instance they were lawfully detained, pursuant to s 189 of [the Act], is not disputed. The [appellants] do not question the validity of any section of [the Act], particularly s 196 of the Act.
Thus, it is not disputed that in being detained they were in immigration detention. There is no dispute that [Woomera] was established as an immigration detention centre pursuant to the Act.

We cannot see how it can be said that the harshness of the conditions at [Woomera] can lead to the conclusion that the [appellants] were no longer detainees or in some way they were no longer being held in immigration detention.

We do not accept that harshness of conditions in a detention centre means that a detention centre ceases to have the character of a detention centre by reason that the harshness of conditions is contrary to the power of detention in the Act.

Thus, we are of the opinion that even if the harshness of conditions was established that would not mean that any of the elements of this offence under s 197A of the Act would remain unproved."

The appeal to this Court



The appellant challenges the reasoning in that passage. No challenge is made to the decision of the Full Federal Court in NAMU, but it is said that the issue here differs. The issue is said to be not whether s 196(1) of the Act which mandates a continued detention is valid, given "the factual consequences" for particular detainees, but whether the Act "can and does authorize the kinds of conditions that prevailed at Woomera; and if not, whether the [appellant was] in valid immigration detention there". Gray J had noted that the materials before the Supreme Court did not provide information about conditions at Woomera "which directly affected or related to any of [the appellants]"[27].



Section 197A posits a "detainee", a term defined in s 5(1) as meaning "a person detained". The restraint by which or the place where the person is detained is the "immigration detention" from which it is made an offence to escape. The submissions on the appeal, for their success, require acceptance of the proposition that a person detained in what is other than "immigration detention" in the defined sense of that term is unconstrained by s 197A from escaping that detention.



The appellant relies upon the definition of "detain" in s 5(1) to support the proposition that "immigration detention" may include the taking of action and using of force which is no more than "reasonably necessary" for migration control purposes. Thereby the appellant seeks to constrain the prohibition against escape imposed by s 197A with notions of the purpose and proportionality of the conditions of confinement at Woomera.



The definition of "detain" in s 5(1) is that it:

"means:
(a) take into immigration detention; or

(b) keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so."



An example of meaning (a) is provided by s 189. This imposes upon officers what otherwise would be an incompletely expressed duty to "detain" certain persons; the definition makes it clear that the duty is discharged by the taking of persons into "immigration detention". An example of meaning (b) is provided by s 273 which authorises the establishment of centres for the detention of persons whose detention is authorised under the Act, that is to say, by keeping or causing them to be kept in "immigration detention".



The phrase in the definition of "detain", "as are reasonably necessary to do so", amplifies by the use of the term "include" what is meant by to "take into" and to "keep, or cause to be kept". As Hayne J explains in his reasons, the phrase does not qualify what is meant by "immigration detention". That is the central element for s 197A and to that term we now turn.

"Immigration detention"



The definition of "immigration detention" in s 5(1) spans various kinds of restraint, of which being held in a detention centre is but one. The definition reads:

"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 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 police 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)".

Further, the term "officer" encompasses a wide variety of individuals, as is apparent from the definition in s 5(1):

"officer means:
(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or

(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

(c) a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987, other than such a person specified by the Minister in writing for the purposes of this paragraph; or

(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

(e) a member of the police force of an external Territory; or

(f) a person who is authorised in writing by the Minister to be an officer for the purposes of [the Act]; or

(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of [the Act], including a person who becomes a member of the class after the authorisation is given."



So, for example, s 249(1) empowers an officer to take such action and use such force as are necessary to prevent a person reasonably suspected to be an unlawful non-citizen from leaving a vessel on which the person arrived in Australia; being held by an officer in these circumstances is "immigration detention". Again, a person who is in the company of and restrained by an officer for the purposes of executing a deportation order would be in "immigration detention" (ss 206, 253). Further, s 252F renders applicable as federal laws certain State and Territory laws where detainees are held "in immigration detention in a prison or remand centre of a State or Territory".



These examples, drawn from the variety of operations of the definition of "immigration detention" and thus of the reach of s 197A, support a central submission by the first and second respondents. The submission is that there is a relevant distinction to be drawn between lawful authority to detain and the means by which the detention is achieved and enforced, including the conditions of the detention.



The first exclusion in the concluding lines of the definition of "immigration detention" assists in making the point. "Immigration detention" does not include being restrained as described in s 245F(8A). That sub-section states:

"If an officer detains a ship or aircraft under this section, any restraint on the liberty of any person found on the ship or aircraft that results from the detention of the ship or aircraft is not unlawful, and proceedings, whether civil or criminal, in respect of that restraint may not be instituted or continued in any court against the Commonwealth, the officer or any person assisting the officer in detaining the ship or aircraft."


In such provisions the Act evinces a distinction between the creation and continuance of the state or condition of being in "immigration detention" and the civil and criminal liabilities which officers may encounter in relation thereto. What otherwise might be civil or criminal liability arising by acts done by officers in the exercise of authority to detain persons is qualified by a number of express provisions[28]. One such is s 245F(8A) set out above. In addition, action in good faith and with no more than reasonable force is excused in a range of cases. These include body searches (ss 245FA, 252), and removal of persons from ships and aircraft (s 245F(9A), (9B), (10)).



No such qualification to what otherwise would be liabilities of officers under the criminal or civil law is made in respect of that species of immigration detention with which the present appeal is concerned.



These considerations give added force to the conclusion expressed by the primary judge as follows[29]:

"If intolerable conditions were established to exist at [Woomera] civil equitable and [administrative law] remedies may be pursued. Criminal sanctions may also be available. The custodians of detainees are legally accountable. The [appellants'] detention pursuant to [the Act] is valid. As their detention is lawful the proposed defence cannot arise as a matter of law."


In this Court, the first and second respondents accepted that the Act does not authorise detention in inhumane conditions. Rather, it was submitted, the Act:

"provides a scheme which operates against the fabric of the common law and State law pursuant to which remedies are available to redress issues relating to conditions of detention and treatment of detainees, to the extent to which they are not inconsistent with the Act".
The reference to inconsistency with the statute was to the line of authority exemplified by Crimmins v Stevedoring Industry Finance Committee[30] which indicates that a common law duty of care will not be imposed where to do so would be inconsistent with a particular statutory scheme.



Subject to that qualification, the respondents accept that the statute confers no immunity from liability in negligence for breach of a duty of care nor from the application of the general criminal law. Their submission adds:

"Equally, for example, an action for damages may lie for assault or trespass to the person, subject to express or implied statutory authority to carry out such acts as in the case of bodily searches or the provision of medical treatment without consent."


Those propositions should be accepted and provide an answer to the primary submission of the appellant respecting the construction of s 197A. While the conditions in which detention is suffered may attract remedies of the nature indicated above, they do not deny the legality of the immigration detention and so cannot found a defence to a charge under s 197A.

Additional authorities



This conclusion is reached without particular assistance otherwise than by way of loose analogy from the reasoning in two decisions to which much reference was made in submissions. The first is that of the House of Lords in R v Deputy Governor of Parkhurst Prison, Ex parte Hague[31]. In that case, the House of Lords decided that the operation of legislation which provided lawful authority for the detention of convicted prisoners was not qualified or abrogated by conditions of detention of particular prisoners. In Prisoners A-XX Inclusive v State of New South Wales[32], the New South Wales Court of Appeal referred to Hague as authority supporting its conclusion that with the New South Wales legislation, as with that in the United Kingdom, "intolerable" conditions of detention did not deprive imprisonment of its continued statutory basis.



Reference was made in argument to a number of decisions of the United States Supreme Court. These have concerned two questions. The first is whether conditions or treatment of convicted federal and state prisoners may attract protection of residual "liberty interests" by the Due Process Clause and by the proscription in the Eighth Amendment of the infliction of cruel and unusual punishments. Wolff v McDonnell[33] and Sandin v Conner[34] indicate that the conduct of disciplinary systems and procedures may enliven the Due Process Clause. In 1976, it was decided in Estelle v Gamble[35] that there was an Eighth Amendment violation by reason of failure to provide adequate medical care. Thereafter, in Wilson v Seiter[36], Scalia J, delivering the opinion of the Court, explained:

"[W]e see no significant distinction between claims alleging inadequate medical care and those alleging inadequate 'conditions of confinement'. Indeed, the medical care a prisoner receives is just as much a 'condition' of his confinement as the food he is fed, the clothes he is issued, the temperature he is subjected to in his cell, and the protection he is afforded against other inmates."
On the other hand, the Supreme Court has warned federal trial courts not to become "enmeshed in the minutiae of prison operations"[37].



The second question concerns the remedy for such violations of constitutional rights, in particular the availability of habeas corpus for deprivation of "residual liberty", in addition to the civil action under 42 USC �1983. That statutory action is for deprivation of "any rights, privileges, or immunities secured by the Constitution and laws", the remedy being by "an action at law, suit in equity, or other proper proceeding for redress"[38]. In Prisoners A-XX Inclusive v State of New South Wales[39], Sheller JA referred to the detailed discussion of the United States position respecting habeas corpus by the Supreme Court of Canada in Miller v The Queen[40]. Sheller JA concluded that, on the United States authorities placed before the Court of Appeal, the reach of the "residual liberty" to found a writ of habeas corpus for "intolerable conditions" was unsettled[41]. However, it is to be noted that the actions which reached the Supreme Court in the authorities referred to above, Wolff v McDonnell, Sandin v Conner, Estelle v Gamble and Wilson v Seiter, were proceedings under �1983.



It is unnecessary further to consider these matters in this appeal. Enough has been said to indicate that the primary question in the United States has been the reach of the constitutional guarantees found in express terms not seen in Australia.

Other grounds



The conclusion that the decision of Gray J was properly based on his Honour's conclusion that the proposed defence could not arise as a matter of law makes it unnecessary to consider further grounds advanced in this Court to support the setting aside of the summonses.



While Gray J allowed the appeal and set aside the summonses on the ground indicated, his Honour also held that the magistrate had not otherwise erred in declining to set the summonses aside on grounds that they were oppressive or involved an abuse of process[42]. Upon these matters this Court should find it unnecessary to enter.

Order



The appeal should be dismissed with costs.



KIRBY J. In Rhodes v Chapman[43], Brennan J, in the Supreme Court of the United States, observed that where "voteless, politically unpopular, and socially threatening" detainees bring proceedings before the courts to assert or defend their legal rights, judicial intervention may be indispensable "if constitutional dictates - not to mention considerations of basic humanity - are to be observed". I agree with this proposition. It informs my approach to this appeal.



The appeal concerns whether "immigration detention" ceases to be such, within the Migration Act 1958 ("the Act"), when the conditions of that "detention" are inhuman or intolerable. In my view, it is arguable that it does: detention is not "immigration detention" if it involves conditions that are inhuman or intolerable. Evidence on the point was therefore admissible in these proceedings, indeed critical. The court below erred in concluding that the issue was not legally arguable.

The facts



The "escape" and charges: Mr Mahran Behrooz ("the appellant"), a national of Iran, arrived in Australia without a visa. He was designated by the Act an "unlawful non-citizen"[44]. He was taken into immigration detention. From early 2000, he was held at the Woomera Immigration Reception and Processing Centre ("Woomera").



On or about 18 November 2001 the appellant left (to use a neutral expression) Woomera along with other detainees being held there. He was subsequently taken back into custody. Together with two others (Mr Mahmood Gholani Moggaddam and Mr Davood Hossein Amiri) he was charged with an offence against s 197A the Act. The offence was that "being a detainee [he] escaped from Immigration Detention". The section provides:

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



Similar charges were brought against Mr Moggaddam and Mr Amiri. They made common cause with the appellant in their defence. However, between the decision under appeal and the hearing in this Court they were, at their own request, removed from Australia. The Director of Public Prosecutions withdrew the criminal proceedings against each of them. The proceedings against the appellant remain on foot.



The magistrate's ruling: In the Magistrate's Court of South Australia, the appellant foreshadowed a defence that he wished to bring in answer to the charge. In part, the defence was based on the terms of the Act, on their face, and i
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