Ruddock v Taylor

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Hayne,Heydon JJ,McHugh J
• Judgment Date: 08 September 2005
• Neutral Citation: 2005-0908 HCA D,[2005] HCA 48
• Court: High Court
• Docket Number: S421/2004
• Date: 08 September 2005

[2005] HCA 48

HIGH COURT OF AUSTRALIA

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

S421/2004

Philip Ruddock & Ors

Appellants

and

Graham Ernest Taylor

Respondent

Representation:

D M J Bennett QC, Solicitor-General of the Commonwealth with G T Johnson for the appellants (instructed by Australian Government Solicitor)

C J Birch SC with D P M Ash for the respondent (instructed by Teakle Ormsby Conn Lawyers)

Migration Act 1958 (Cth), ss 189, 196, 501.

Ruddock v Taylor

Statutes — Acts of Parliament — Statutory powers and duties — Power to detain — Respondent's permanent transitional visa twice cancelled unlawfully — Respondent twice detained in immigration detention — Whether detention lawful under s 189(1) of the Migration Act 1958 (Cth) (‘the Act’) — Whether officers of the Commonwealth knew or reasonably suspected that the respondent was an unlawful non-citizen — Whether a reasonable suspicion may rest upon a mistake of law — Whether s 189(1) of the Act confers protection against mistakes concerning reach of Commonwealth power.

False imprisonment — Unlawful cancellation of respondent's visa — Whether respondent's subsequent detention unlawful — Whether s 189(1) of the Act provides a defence to a claim for wrongful imprisonment.

Words and phrases — ‘knows’, ‘reasonable suspicion’, ‘mistake of law’, ‘unlawful detention’, ‘false imprisonment’.

ORDER

• 1. Appeal allowed.

• 2. Set aside paragraph 1 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 18 September 2003 to the extent to which it dismissed the appeal to that Court and in its place order that:

  • (a) the appeal to that Court is allowed;

  • (b) set aside paragraphs 1 and 3 of the orders of the District Court of New South Wales made on 18 December 2002 and in their place order that there be judgment for the defendants.

• 3. Appellants to pay the costs of the respondent of the appeal to this Court.

1 Gleeson CJ, Gummow, Hayne AND Heydon JJ. The respondent, born in the United Kingdom in 1959, came to Australia, with his family, in 1966. He is not an Australian citizen. Under the Migration Act 1958 (Cth) (‘the Act’) he has held a permanent transitional visa 1 permitting him to remain in Australia.

2 In 1996, the respondent pleaded guilty to eight sexual offences against children. He was sentenced to a term of imprisonment. Twice after he had been released from prison, steps were taken to cancel his visa under s 501 of the Act (a provision permitting cancellation of a visa ‘on character grounds’). Twice the decisions to cancel the respondent's visa were quashed by orders of this Court. The first decision, made in September 1999 by the first appellant, Mr Ruddock, then Minister for Immigration and Multicultural Affairs, was quashed by an order of Callinan J made by consent in April 2000. The second decision, made in June 2000, by the second appellant, Senator Patterson, then Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs, was quashed by order of the Full Court made on 7 December 2000 2.

3 Following each decision to cancel his visa, the appellant was detained in immigration detention. The first period of detention lasted 161 days, the second 155 days. For some time during each period of detention he was kept in prison under arrangements made for detention of some persons subject to immigration detention. After his release he brought action in the District Court of New South Wales claiming damages for false imprisonment. He sued the Ministers who had made the two decisions to cancel his visa and the Commonwealth. He did not sue those officers of the Department of Immigration and Multicultural Affairs who had actually detained him.

4 The respondent succeeded in the District Court. He obtained judgment for $116,000 and costs.

5 The Ministers and the Commonwealth appealed to the Court of Appeal of New South Wales. Their appeal was dismissed 3.

6 By special leave the Ministers and the Commonwealth appeal to this Court. The appeal should be allowed. The respondent's detention was not unlawful.

7 Consideration of the issues raised in this matter must begin with the relevant provisions of the Act — especially those provisions dealing with the subject of immigration detention — as those provisions stood at the times relevant to this matter.

Detention and the Migration Act

8 The operation of the Act hinged upon the distinction made in Div 1 of Pt 2 (ss 13–17) between ‘lawful non-citizens’ and ‘unlawful non-citizens’. A non-citizen in the migration zone (for present purposes the States or Territories 4) who held a visa that was in effect was a lawful non-citizen 5. Other non-citizens were unlawful non-citizens 6. If a visa was cancelled the former holder of the visa, on the cancellation, became an unlawful non-citizen unless immediately after the cancellation that person held another visa that was in effect 7.

9 Part 2 of the Act (ss 13–274) dealt with control of arrival and presence of non-citizens. Division 7 of that Part (ss 188–197) provided for detention of unlawful non-citizens; Div 8 (ss 198–199) dealt with their removal from Australia.

10 Chief attention in this appeal was given to s 189 of the Act. It was that provision upon which the appellants relied in their Notice of Grounds of Defence in the District Court as an answer to the respondent's allegations that the Ministers and the Commonwealth had wrongfully detained him. It provided:

‘(1) 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.

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

• (a) is seeking to enter the migration zone; and

• (b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person.’

An ‘officer’ was defined in s 5 as:

• ‘(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) any other person authorised by the Minister, by notice published in the Gazette, to be an officer for the purposes of this Act.’ 8

11 Section 189 must be understood in its statutory context, particularly the context supplied by the other provisions of Div 7 of Pt 2. Section 188 provided that an officer may require a person whom the officer knew or reasonably suspected of being a non-citizen ‘to show the officer evidence of being a lawful non-citizen’. Section 196 fixed the period of detention. It provided:

‘(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

• (a) removed from Australia under section 198 or 199; or

• (b) deported under section 200; or

• (c) granted a visa.

(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.’

12 Special provision was made in ss 190 and 191 for persons who were bound, on entering Australia, to seek immigration clearance but bypassed or tried to bypass that step, or could not or would not produce the required information or evidence.

13 Section 192 provided for the detention of those whose visa may be cancelled and who it was reasonably suspected would attempt to evade officers or not co-operate with officers.

14 Although the provisions of s 189 were central to the defence filed on behalf of the Ministers and the Commonwealth, the operation of that section was not the chief focus of the reasoning in either the District Court or the Court of Appeal. To understand why that is so, it is necessary to identify not only the way the respondent put his case but also some relevant decisions of this Court.

The state of authorities in this Court

15 The course of argument in the courts below, and in the appeal to this Court, must be understood against the background provided by the respondent's earlier litigation in this Court. In particular, it is necessary to understand the place occupied by the decision in Re Patterson; Ex parte Taylor9 (which culminated in the quashing of the second decision to cancel his visa) in the history of the Court's decisions about s 51(xix) and s 51(xxvii) of the Constitution, the aliens and immigration powers.

16 Some years before the first decision to cancel the respondent's visa was made, this Court had held in Nolan v Minister for Immigration and Ethnic Affairs10 and Pochi v Macphee11 that a person who had been born outside Australia to non-Australian parents and who had not been naturalised, was an alien. After the second decision to cancel the respondent's visa, some members of the Court concluded, in Patterson, that British subjects who had resided in Australia since before the enactment of the Australian Citizenship Amendment Act 1984 (Cth) (as the present respondent had) did not fall within either the aliens or the immigration power.

17 Two years after Patterson was decided, and after the Court of Appeal had given judgment in the present...