Federal Court. Should subpara (b)(v) of the definition of “immigration detention” in s 5(1) of the Migration Act 1958 (Cth) be construed as impliedly conferring power on the Minister to approve in writing ‘another place’ of immigration detention? Did s 273 of the Act and subpara (b)(i) of the definition of “immigration detention” impliedly limited the Minister’s power under subpara (b)(v) only to the approval of places which are not a formal institutional place and not a de facto detention centre? If the Commonwealth’s contracting and expenditure on the Hotels was not lawfully authorised, was the applicant’s detention thus unlawful?
The applicant arrived in Australia as an unauthorised maritime arrival on Christmas, after which he was taken to PNG, where he was granted asylum. He was then transferred to Australia for psychiatric treatment under the provisions of the Migration Act 1958 (Cth) in effect at the time. Once in Australia, the Commonwealth purported to place the applicant in immigration detention in 2 hotels for 14 months.
Para (b) of the definition of “immigration detention” in s 5(1) of the Act 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;
…
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Paragraph (b)(i) of the definition of “immigration detention” in s 5(1) of the Act provided that immigration detention includes being held by or on behalf of an officer “in a detention centre established under this Act”. Is subpara (b)(i) a reference to “detention centres” established and maintained pursuant to the Minister’s express power under s 273(1) of the Act to “cause detention centres to be established and maintained”?
Question 2: Would it have been lawful for the Commonwealth to detain the applicant in a place that did not fall within the definition of “immigration detention”?
Question 3: Is there a principle of statutory interpretation that statutory definitions are not a source of substantive power, but instead operate as an aid to the construction of the statute?
Question 4: One of the written instruments in question referred to the delegate acting under the powers of the Secretary for the Department, and as an officer for the purpose of the definition of immigration detention as defined by subpara (a)(ii) of subs 5(1) of the Act. Can it be said that "it does not matter that the powers referred to in that instrument were those of the Secretary of the Department because, at the time of making the instrument, as a person appointed as an Executive Level 2, the delegate held a relevant delegation of the powers of the Minister for the purposes of the definition of “immigration detention”"?
Question 5: If the answer to Question 3 is 'yes', can that principle be departed from where there is “a clear, contrary legislative intent”?
Question 6: If the answer to Question 5 is 'yes', should subpara (b)(v) of the definition of “immigration detention” in the Act be construed as impliedly conferring power on the Minister to approve in writing ‘another place’ of immigration detention?
Question 7: Did s 273 of the Act and subpara (b)(i) of the definition of “immigration detention” impliedly limited the Minister’s power under subpara (b)(v) only to the approval of places which are not a formal institutional place and not a de facto detention centre?
Question 8: Can a "detention centre", as defined in s 273(4), be a disparate or scattered constellation of informal or ad hoc locations?
Question 9: Do the different political or administrative processes by which a detention centre is established as compared to another place of detention explain the characteristics of ‘another place’ of detention which is approved by the Minister?
Question 10: Were the hotels de facto detention centres?
Question 11: Can it be said that "a person may only be lawfully detained in immigration detention for one of three purposes, being the purposes of removal from Australia; receiving, investigating and determining an application for a visa which would permit the alien to enter and remain in Australia; and determining whether to permit a valid application for a visa"?
Question 12: Can it be said that, although the detention of an unlawful non-citizen person is required, if the conditions of the detention are harsh, then the person is not detained in “immigration detention” and the detention is therefore unlawful?
Question 13: If the answer to Question 12 is 'no', can it be said by analogy that, "if the Commonwealth’s contracting and expenditure on the Hotels was not lawfully authorised that does not show that the applicant’s detention in the Hotels was unlawful"?
Question 14: Was the Commonwealth's "contracting and expenditure for the establishment and operation of the Hotels as places of immigration detention was lawfully authorised by the executive power under s 61 of the Constitution"?
Question 15: Was the Commonwealth's "contracting and expenditure for the establishment and operation of the Hotels as places of immigration detention was lawfully authorised by the executive power under ... "s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) (the FFSP Act) and reg 16 and Sch 1AA, item 417.017 or 417.018 of the Financial Framework (Supplementary Powers) Regulations 1997 (Cth) (the FFSP Regulations)"?
The FCA answered those questions as follows: