Appeal: were hotels ‘immigration detention’?

Subpara (b) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) provided:

immigration detention means:

…

(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

It was common ground that appellant could only have been in “immigration detention” during the relevant period if the hotels in which he was placed were “another place approved by the Minister in writing” under subpara (b)(v) of the definition in s 5(1) of the Act.

Section 273 of the Act provided:

Detention centres

(1)    The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

(2)    The regulations may make provision in relation to the operation and regulation of detention centres.

(3)    Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:

(a)    the conduct and supervision of detainees;

(b)    the powers of persons performing functions in connection with the supervision of detainees.

(4)    In this section:

detention centre means a centre for the detention of persons whose detention is authorised under this Act.

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Did subpara (b)(i) of the definition of "immigration detention" refer to 'detention centres' established and maintained pursuant to the Minister’s express power under s 273(1) of the Migration Act 1958 (Cth) to "cause detention centres to be established and maintained"?

Question 2: Was the only authority of the Commonwealth to detain an unlawful non-citizen under Act to detain them in "immigration detention", as defined?

Question 3: Did subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Act impliedly confer power on the Minister to approve in writing “another place” of immigration detention?

Question 4: Can it be said that, whilst, "generally, definition sections are construed as having no substantive effect, that is merely a principle of good drafting, not a substantive principle of law"?

Question 5: Does the principle that a court, in construing a statutory provision, must strive to give meaning to every word of the provision, apply to definition sections as well as substantive provisions?

Question 6: Can it be said that "subpara (b)(v) was not (on his preferred construction) otiose as it fixed upon the existence of “a writing”; in other words, subpara (b)(v) would apply to constitute a place of “immigration detention” if the objective fact was that the Minister had written somewhere that that was the position"?

Question 7: Can it be said that "there is nothing in the text of s 273(1) which contained any restriction or limitation on the power of the Minister to establish and maintain a detention centre, nor in the text of subpara (b)(i) of the definition of “immigration detention”, which described the mode in which that power shall be exercised, or contained any conditions or restrictions on the manner in which that power may be exercised"?

Question 8: Is the power to cause detention centres to be “established and maintained” the same thing as the provision of a facility for regulations to be made governing the “operation and regulation” of detention centres, once created?

Question 9: If the answer to Question 3 is 'yes', does the Anthony Hordern principle apply, with the result that that implied power excluded the power to create a de-facto detention centre, which is already provided for in subpara (b)(i) of the definition of "immigration detention" and s 273 of the Act?

Question 10: Did the text of s 496(1) imposed a limitation on the powers which the Minister may delegate under the Act?

Question 11: Did s 496(1) distinguish between express and implied powers?

Question 12: Can it be said that "s 273(1), because of its nature to establish and maintain detention centres, was not a function that the Minister could delegate pursuant to s 496(1) or any other provision of the Act", with the result that that any power under subpara (b)(v) of the definition of "immigration detention" likewise could not be delegated?

Question 13: Can it be said that "a person may only be lawfully detained in immigration detention for one of three purposes: removal from Australia, receiving, investigating and determining an application for a visa that would permit the alien to enter and remain in Australia, and determining whether to permit a valid application for a visa"?

Question 14: Would it have been unlawful for an “officer” to detain an unlawful non-citizen somewhere other than in immigration detention?

Question 15: Is immigration detention lawful even if the expenditure involved in detaining the appellant was not lawfully authorised?

The FCAFC answered those questions as follows: