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

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh,Gummow,Heydon JJ,Kirby J,Hayne J,Callinan J
• Judgment Date: 06 August 2004
• Neutral Citation: 2004-0806 HCA B,[2004] HCA 36
• Court: High Court
• Docket Number: A255/2003
• Date: 06 August 2004

[2004] HCA 36

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

A255/2003

Mahran Behrooz

Appellant

and

Secretary of the Department of Immigration and Multicultural and Indigenous Affairs & Ors

Respondents

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)

Constitution, Ch III.

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

Magistrates Court Act 1991 (SA), s 20.

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’.

ORDER

Appeal dismissed. Appellant to pay costs of first respondent.

1 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.

2 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.

3 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 Baines5, 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.’

4 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.’

5 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.

6 Section 197A provides:

‘A detainee must not escape from immigration detention.’

7 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’.

8 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.

9 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.

10 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...